Ontario. Legislative Assembly.

Correspondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario online

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Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 55 of 86)
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pretended that he could have made a voyage to Hudson's Bay and return between these
dates. (Journal des Jesuites, pp. 209-218.)" . Of course he could not; but then a man
may make voyages in diffisrent years. It is not to be assumed that he did not make a
voyage the year before because he made a partial voyage in this year, since we have
positive testimony that he had also made that previous voyage. If these Governors were
making false statements to their superiors in France, they would haye referred to 1657 ;
but they referred to 1656, showing that the reference was to a dijflQ^rent transaction
altogether. It is true there is no entry in the Jesuits' book of this voyage of 1656,



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THE FRENCH IN POSSESSION OP WHOLE TRADE OF H. B. BEFORE 1670. 321



bat that book is silent in regard to many things which no doubt did occur ; and the mere-
fact of its not mentioning a voyage is no sort of evidence that the voyage did not take
place. The printed case for the Dominion comments also on what is said in reference to
Father Dablon. It does not appear whether there were two priests of that name or only
one. At all events, the mere fact that the journeys which we prove to have 'been made
by a priest of that name were not recorded by the Jesuits is no evidence against the
direct authority that we have for the fact. On the whole, there seems to be no reason
which would justify us in now doubting that persons acting under the authority of the
French Grovernment had repeatedly visited Hudson's Bay in and before 1663; had taken
possession in the French King's name, and set up the Koyal Arms there.

And, however that may be, the French had certainly before that date established
posts at convenient points for trade with the Indians, and had secured the whole trade
with the Indians around the Bay. In 1627, long before the date of the Hudson's Bay
Charter, the King of France gave to the Company of New France the right of trade to an
extensive territory — ^including Hudson's Bay — both along the coasts and into the interior;
those words being inserted in the Charter. The French were enjoying the whole trade
with the Indians around the Bay at the time the Charter to. the Hudson's Bay Company
was given. It is said in the books that for the purpose of giving property in a country,
the possession needed is a possession having relation to the nature of the country. This
was not an agricultural country; settlement for the purpose of agriculture was not
expected ; all that either party wanted was the trade with the Indians ; the French had
secured that, and had been in the enjoyment of it long before the Hudson's Bay Company
obtained their Charter, and this was sufficient to prevent their rights from being interfered
with by the subsequent possession of the coast by the English, after they had allowed one
hundred and fifty years to pass without acting on the discovery which they are said to
have made.

In the Dominion case, stress is laid on the fact that, by the Treaty of Utrecht (1713),
the whole Bay and Straits were ceded or restored to England by France. . But it was
never intended by either party that so extensive a claim as is now made should be made
under any language employed in that Treaty. In the memorial concerted with the
Marquis de Torcy, January 19th, 1713, and forwarded to Lord Bolingbroke by the Duke of
Shrewsbury (Book of Documents, page 153), it is stated : — "The inhabitants of Hudson's
Bay, subjects of the Queen of Great Britain, who have been dispossessed of their lands
by France in time of peace, shall be entirely and immediately after the ratification of
the Treaty, restored to the possession of their said lands ; and such proprietors shall also
have a just and reasonable satisfaction for the losses Uiey have suffered, with respect to
their goods, movables and effects ; which losses shall be settled by the judgment of com-
missaries, to be named for this purpose, and sworn to do jastice to the parties interested."
And Mr. Prior writes to Lord Bolingbroke on January 8th of the same year (Book of
Documents, p. 153) : — " As to the limits of Hudson's Bay, and what the ministry here
seem to apprehend, at least in virtue of the general expression, tout ce que I 'Angleterre a
jamais possede de ce cdte la (which they assert to be wholly new, and which I think is
really so, since our plenipotentiaries make no mention of it), may give us occasion to
encroach at any time upon their dominions in Canada, I have answered, that since,
according to the carte which came from our plenipotentiaries, marked with the extent of
what was thought our dominion, and returned by the French with what they judged the
extent of theirs, there was no very great difference, and that the parties who determine
that difference must be guided by the same carte, I thought the article would admit no
dispute. In case it be either determined immediately by the plenipotentiaries or referred
to commissioners, I take leave to add to your Lordship that these limitations are not
otherwise advantageous or prejudicial to Great Britain than as we are better or worse
with the native Indians, and that the whole is a matter rather of industry than dominion.
If there be any real difference between restitution and cession, queritur ? '!

It is plain, therefore, that the Treaty was not intended to authorzie so large a claim
by England against France as the Dominion case contends. We know pretty well what,
for the sake of peace, the French were willing to give up — ^namely, the territory to one
or the other of the lines marked on DeLisle's maps, and marked as such on our map — and

21



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822 ARGUMENT OF THE ATTORNEY-GEN. OF ONT. BEFORE THE ARBITRATORS, 1878 :



what I have just read shows that there was not a great difierence between what England
demanded and what France was willing to give ; and it is manifest that would not haye
been the case if there was anything like what is now demanded.

The testimony, therefore, appears to be abundant that the height of land boundary
was what the English had no right to claim. Assuming that to be so, the question is, —
. What line north of the height of land is to be regarded as the Company's southern
boundary?

The language of the Charter, by reason of its ambiguity, affords no assistance in this
inquiry. The validity of the Charter has always been questioned on the ground of its
ambiguity, sis well as for other reasons. Assuming that the northern boundary is on one
side the shore of Hudson's Bay, say beetwen 6V and 52° of latitude, and on the other at
least as far north as the most north-western point of the Lake of the Woods, say latitude
49* 23' 55" ; if these points were clearly in the Hudson's Bay Territory, the northern
boundary would perhaps be a line drawn from one of these points to the other. We
clfldm that our boundary is farther north than this, but cannot be south of it. Are these
points i9 what was the territory of the Company f And is the Provincial boundary no
farUier north I If by reason of the Cl^^rter being so old, and having been acted upon in
some sort, and of its validity to some extent being implied in ca-tain statutory references
to the Company, the instrument cannot be treated as absolutely void, it must, as regarcb
its construction and operation, on well-known and well-settled principles, be interpreted
most strongly against the Company, and in favour <^ the Crown. The object of giving
the Charter, as the Charter itself declares, was to encourage discoveries by tiie Company ;
and the vididity or operation of the instruarant is to the extent only of giving (so far as the
Crown could give) to the Company whatever of unknown territory the Compmiy, witiiin
a moderate and reasonable time should occupy ; and all that the Company could be
entitled tq was what the Company had, in this manner, acquired for themselves and for
the Cfown previous to the cession of Canada in 1763 by France to England ; or what,
previous to that time, the Company had been in poBsession or enjoyment of as their own
with the concurrence of ike Crown.

It is a familiar rule that Crown Grants are construed most favourably to the Crown,
the gMntor. The rule is tihus stated in Chitty on Prero. page ^91 : " In ordinary cases
between subject and. subject, the principle is that the grant shall be construed if the
nieaning be doubtful, most strongly against the graoitor, who is presumed to use the most
cautious words for his own advantage and security. But in the case of the king, whose
gvaftts chiefly flow from his royal bounty and grace, the rule *is otherwise ; and Grown
grants have at all times been construed most favourably for the king where a fair donbt
exists as to the real meaning of the instrument, as well in the instance of grants from Hjs
Mi^eaty as in the case of toansfers to him.'' The rule is not new but was in existence at
the time of this Charter and before, and was, perhaps, more stringently acted upon then
than it is in the case of modem deeda Independently of this consideration, legal opinions
are uniform that, in the case of an old and ambiguous charter like this, the instrument
operates as far as possession and enjoyment have been had under it, and no further. I
may cite some decided cases bearing on this point. Blankley va, Winstanley, 3 Term
Reports, 288, is one of them. In that case it was observed by one of the learned judges
as follows : — " With regard to the usage : usage consistent with the meaning of the
Charter has prevailed for one hundred and ninety years past, and if the words of ^e
Charter wero more disputable than they are, I think that ought to govern this case.
There are osmos in which this Court has held that a settled usage woidd go a great way
to control the words of a charter. Such was the case of Gape vs, Handley, in which the
Court went much further than is necessary in the present case ; and it is for the sake of
quieting corporations that this Court has always upheld long usage where it w:as possible,
though recent usage would not perhaps have much weight." So in Wadley w. Bayliss,
5 Taunt., 753, the case of an award under the Inclosure Acts, it was laid down that '* tiie
language of the award being ambiguous, it was competent to go into evidence of the
enjoyment had, in order to see what was the meaning of those who worded it"

The rule is thus applied by Sir Arthur Pigott, Mr. Spankie, and Mr. Brougham, in
the opinion printed at page 198 of the Book of Documents : — " In such a long tract of



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THfi POSSESSION OF H. B. 00. LIMITED TO PARTS OF THE SHORE OF THE RA.Y. 323



time as nearlj one hundred and fifty years now elapsed since the grant of the Charter, it
nrast now be, and must indeed long since have been, fully ascertained by the actual
oecupation of the Hudson's Bay Company, what portion or portions of ]ands and territories
in the yicinity, and on the coasts and confines of the. waters mentioned and described as
within the Straits, they have found necessary for their purposes, and for forts, factories,
towns, villages, settlements or such other establishments in such vicinity, and on sueh
coasts and confines, as pertain and belong to a Company instituted for the purposes
mentioned in ^eir Cluuiier; and necessary, useful or convenient to them within the
prescribed limits for the prosecution of those purposes."

In 1857 the Crown Lawyers pointed out (page 202) that the question of the validity
and construction of the Company's Charter cannot be considered apart from the enjoyment
that had been had under it '< Nothing could be more unjust than to treat this Charter
as a thing of yesterday, and upon principles which might be deemed applicable to it if it
had been granted witiiin the last ten or twenty years." They likewise say: — "The
remaining subject for consideration is the question of the geographical extent of the
territory granted by the Charter, and whether its boundaries can in any and what mcmner
be ascertained. In the case of grants of considerable age, such as this Charter, whete Ike
words, as is often the case, are indefinite or ambiguous, the rule is that they are construed
by usage and enjoyment" There is no authority or opinion against that.

Again, ike Company wwe certainly not entitled to any of the territory which France
owned at the time of the cession, and ceded to England ; it is preposterous to suppose
that the Charter intended to grant, and did effectually grant to tiie Company, as agaamt
the worid, all the territory southerly and westerly of the Bay, to the then unknomi
hei^t of land (unknown to the Crown and to the Company), though such territory shovdd
be, as it was, to the extent of unknown hundreds of liiousands of square miles — ^a tiuvd
of the continent ; that the Charter was intended to give, and did give to the GcnnpMiy,
the right to shut up this enormous territory from the Crown and from all Britisfa subjeels
—and from other nations also — ^f or all time ; that if the Company should do notluBg io
discover, settle or acquire it ior a hundred years or more, nobody else ooold ; and that
any portion of it whidi England diould, a hundred years afterwards, acquire by war with
another aatkm, and by the emph^rment of the resouroes of the whole empire, in Motntpe
as well as America — acorued, when so acquired, and was intended to accrue, to the Omnpaay
for their own private benefit. Such a dahd cannot be in accordance with a sound inlst^
pretation of any authorities iviuoh can be found.

It is dear, and indeed has been repeatedly admitted by the Company tbesoselves,
that until long after the date of the cession, the Company had no possession of any part
of the interior of the country, and tiiat their possession was confined to certain forts on
the Bay and two factories not very distant. Henley House was one of these factories, on
the Albany, erected in 1744 ; and France had at the same time forts on the same riv*er.
At all events, with these exceptions, no possession of any part of the territory away
from ^e shore was had by the Company until long after the cession.

I have said that the Company have admitted that to be so. A Committee of the
^tish House of Commcms was appointed in 1749 to inquire into the state and condition
of the countries adjoining Hudson's Bay, and of the trade carried on there; and
evidence was given before this committee that, at that time, the only forts and settle-
ments of the Company were on the Bay. (Book of Documents, 395.) Those opposed
to the Company at that time were complaining of tiiis, and urging that the Company had
not attempted to settle the country.

Again, in a statement of the Hudson's Bay Company, the material part of which is
printed in ihe Book of Documents, page 402, there is this admission : ^' As long as
Canada was held by the French the opposition of wandering traders (Gtmreurs des Bai&)
was insufficient to induce the Company to give up their usual method of trading. Their
servants waited at the forts built on the coast of the bay, and there bought by barter Uie
furs which the Indians brought from the interior. But after the cession of Canada to
Chreat Britain in 1763, British traders, following in the track of the French, penetrated
into the countries lying to the north-west of the Company's territories, and by there
buQding factories, brought the market for furs nearer to the Indian seller." That means



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324 ARGUMENT OF THE ATTORNEY-GEN. OF ONT. BEFORE THE ARBITRATORS, 1878:



British traders unconnected with the Company. " The Company, finding their trade
seriously affected, extended the field of their operations, and sent parties to establish
themselves in the interior." I need for my purpose nothing more than this statement by
the Company themselves. It is an express admission that the French did settle in the
territories referred to; that the Hudson's Bay Company confined themselves to the forts on
the Bay ; and that after the Treaty of 1 763, British traders unconnected with the Com-
pany commenced to move ; that they were first to move ; and that it was not until the
Company found their trade seriously affected by the acts of these other traders that the
Company extended their operations.

Then at page 412, Book of Documents, there is a letter' from Mr. Goschen, then
<;hairman of the Company, telling the result of his researches into the books and papers
«f the Company. Amongst other things he says : ^' At the time of the passing of the
•Quebec Act, 1774, the Company had not extended their posts and operations far from
the shores of Hudson's Bay. Journals of the following trading stations have been pre-
served bearing that date, namely, Albany, Henley, Moose, East Main, York, Severn,
And Churchill." The solicitors employed by the Dominion to search the records of the
Hudson's Bay Company, wrote as follows (see page 414, Book of Documents) : — "From
a perusal of the Company's Journals, we find that it was not the practice of the Com-
pany's servants to go up country to purchase peltry from the Indians ; but the Indians
came down to York and other forts on the Bay and there exchanged their furs, etc., for
the Company's merchandise." So that the Company not only did not establish stations,
but did not go up the country. " It appears that the peddlers (French traders — Courews
des Bo%8^ as they were called), from Quebec, had, for some time prior to the year 1773,
gone up into the Bed Eiver district, and by so doing had cut off the Indians and bought
their furs." Sir John Rose says (his statement is at page 414 of the same book) : ^I
may mention that I do not think that any further research would have thrown more
light on the matter than the Ontario Government is already in possession of. I em
ployed a gentleman for several weeks to search at the Colonial Office and Foreign Office,
as well as the Rolls' Office and Hudson's Bay Archives, and every scrap of information
bearing on it was, I think, sent out either to Mr. Campbell or to Mr. Scott [Dominion
Ministers] some months ago. I believe that any further search would be attended with
no result.^' Thus, during the whole period from 1670 to the passing of the Quebec Act,
the Hudson's Bay Company had been in no' sort of possession of more than their forts
and factories en and in the immediate neighbourhood of the Bay.

The Dominion Ministers truly affirmed in 1869, that ''the evidence is abundant and
conclusive to prove that the French traded over and possessed the whole of the country
known as the Winnipeg Basin and • Fertile Belt,' from its discovery by Europeans down
to the Treaty of Paris, and that the Hudson's Bay Company neither traded nor estab-
tiphed posts to the south or west of Lake Winnipeg until many years after the cession of
Canada to England." The Company's first post — viz., Cumberland House, on Sturgeon,
Lake — in the vicinity of the region in question — was not built until 1774, and they did \
not establish any post within this tract of country before 1790.

There has been printed in the Book of Documents, 230, the judgment of the Hon. \
Mr. Justice Monk, of Lower Canada, in a case of Connolly vs, Woolrich, and the
Bubstance of it is this : — He shows, in regard to the French, that as early as 1605,
"Quebec had been established and had become an important settlement ; that before 16t^
!the Beaver and several other companies had been organized at Quebec for carrying on
the fur trade in the west, near and around the great lakes and in the North- West Terri-
iK>ry ; that the enterprise and trading operations of these French companies, and of the
French colonists generally, extended over vast regions of the northern and north-western
portions of the continent ; that they entered into treaties with the Indian tribes and nations,
and carried on a lucrative and extensive fur trade with the natives ; that in the prose-
•cution of their trade and other enterprises these adventurers evinced great energy,
courage and perseverance ; that they had extended their hunting and trading operations
to the Athabasca country (say 58* north latitude and- 111° west longitude) ; that some
portions of the Athabasca country had, before 1640, been visited and traded in, and to



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FRENCH OCCUPATION OF NORTH AND NORTH-WEST, 1629-l7tt3. 325



some extent occupied by the French traders in Canada and their Beaver Company
(which had been founded in 1629); that from 1640 to 1670 these^discoveries and tradin/ic
settlements had considerably increased in number and importance ; that Athabasca and
other regions bordering upon it belonged to the Crown of France, at that time, to the
same extent, and by the same means, as tbc country around Hudson's Bay belonged to
England, viz., by discovery, and by trading and hunting. Judge Monk mentions 1670,
be<»u8e it was the date of the Charter of the Hudson's Bay Company. These were the
conclusion to which Judge Monk came judicially.

It may be added, that if the Athabasca country belonged to France at so early a
period, so would the whole intermediate country between Athabasca and Hudson's Bay
on the east, and between the Athabasca country and the St. Lawrence on the south,
because with these parts the French were more familiar, and traded to a much larger .
extent than farther north. Between 1670 (the last date named by Judge Monk) and
1763, the French established posts or forts in that North-West Territory which they had
previo usly explored, and hunted over, and traded with, namely, on Bainy Lake, the Lake
of the Woods, Lake Winnipeg, Lake Manitoba, on the Winnipeg River, the Red River,
the Assiniboine River, the River aux Biches, and the Saskatchewan, and so west to the
Rocky Mountains, where Fort la Jonquiere was established by St. Pierre in 1752. All
these lakes and rivers are connected by the Nelson River with Hudson's Bay, and are in
the territory which, in the following century, the Hudson's Bay Company claimed under
their Charter ; but confessedly they had constructed in it no post or settlement of any
kind until long after 1763.

The subjects of France had also, on the northerly side of the dividing line. Fort
Abbitibi, which was north of the height of land, and was built in 1686. It was situate
at a considerable distance north of the height of land, and upon the lake of the same
name, from which the River Monsippy flows into Hudson^s Bay. The French had also*
Fort St. Germain, on the Albany, which was built in 1684 ; and still higher up on the
same river Fort La Maune, established about the same period ; and, to the east, Port
Nemiscau, on the lake of that name, situate on the River Rupert, midway between Lake
Mistassin and the Bay ; this fort was built before 1695. Of none of these did the
English Government or the Company ever complain. The French had also another fort on
the Albany, being that mentioned in one of the memorials of the Company as having
been built in 1715. The facts enumerated form another conclusive ground against such
a claim as is now set up by the Dominion as purchasers from the Company.

The matter is made clear in another way; that is, by the maps which the Company-
has furnished for the purposes of the present arbitration. We applied to them for what
maps they had, and they furnished seven, only two of which seem to be of importance.
One of the two, dated 1748, bears the Royal Arms and the Arms of the Company, and
seems to have been prepared by the Company in view of the Parliamentary inquiry of
that period, and for the purpose of showing the limits which the Company then claimed.
The line which this map gives as the Company's southern boundary is considerably north
of the height of land, even as shown on this map ; for the line is thei*ein made to cut
Frenchman's River, and several other rivers shown on the map as flowini;; into Hudson's
Bay. The Company does not by the map claim to the height of land even so far as these
oomparatively small rivers are concerned. Their southerly line on the map runs to the
eastern shore of a lake called Nimigon, thence to and northerly along the easterly shore
of Winnipeg, and thence northerly to Sir Thomas Smith's Sound in Baffin's Bay. I am
entitled to say that this map demonstrates that the Company, in 1748, did not claim to
the height of land, even as the height of land was then supposed to be situated, and
did not claim Lake Winnipeg.

The other of the two maps is Mitchell's engraved map, described as published by
the author, February, 1755. This copy appears to have been much used and worn ; I



Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 55 of 86)