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 57 of 86)
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appear in these papers — ^notably Mr. Secretary Craggs, the Earl of Snuiderland, het
Qumcellor of the Exchequer, and others— became implicated in corrupt transacticms with
the South Sea Company, whidi caused their expulsion ftom Parliament the followii^
year. Their successors in the Government appear to have allowed the negotiations to
lapse. *' Nothing was done," wrote the Duke de Choiseuil in 1761.

The next chapters in this history are the capture of Quebec and the Treaty of Paris
of 1763, by which Canada was ceded to England. By the Articles of the Capitulation
of Montreal between General Amherst and the Marquis de Yaudreuil in 1760, and the
Treaty of 1763, France ceded to England ''in full right, Canada and all its dependencies,
and the sovereignty and property acquired, by treaty or otherwise," and declared that
"a line drawn along the middle of the River Mississippi" should be the timits of the
ftitifih and French Territories.

Neither in the capitulation between General Amherst and the Marquis de Yaudreuil,
nor in the Treaty of 1763, is there any reference to the territories about Hudson's Bay.
But I take this ground now : By tUs capitulation, by this, treaty, the English Eling
sacceeded to the sovereignty, to the prerogative rights, and to the assertion of title, over
the territories which the French King claimed about Hudson's Bay. In addition to his
own prerogatives as King of England, he became clotlied with the prerogatives which had
pertained to the King of France as the Sovereign over this territory ; and this double
prerogative was to be exercised in such a way as would best maintain the public right of
the people to whose allegiance he had succeeded. The claim to the territories about
Hudson's Bay had been >in contest between the King of France and the Hudson's Bay
Company. It now became a question of territorial right between the King of England,
as representing the possessory rights and sovereignty of the King of France, on the one
side, and the Hudson's Bay Company on the other. Succeeding, therefore, to the French
sovereignty over this territory and people, the Crown of England had the right to claim
as against the Hudson's Bay Company, and all others, the French sovereignty, as if the
French authority had not been suppressed, and as if the French authority was itself
seeking to enforce its territorial claims. Viewed in the light of this claim of the double
sovereignty which it thus had, the subsequent proceedings of the Crown of England in
regard to the boundaries of Upper Canada, should weigh with the Arbitrators in
determining what effect and what interpretation should be given to these subsequent
proceedings as political acts of state. The interpretation, I take it, of this double
sovereignty, must be that which was the largest and most advantageous for the public
rights of the Sovereign and people. This doctrine of succession to sovereign rights has
received judicial interpretation in regard to the property and territory, and sovereign
rights, of a displaced power. And the judicial interpretation which I shall quote is cited
with approval in the Istst edition of WhecUan on International Law, as being a fair and
proper exposition of public law on that question. In the case of the United States vs»
McRae §, Vice-Chancellor (now Lord Justice) James, says : ** I apprehend it to be the

* Book of Dooumente, p. 368. fJ&id., p. 363. % Ibid,, p. 242.

§ Law Reports, 8 Equity, 75.



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932 ARGUMENT OF MR. HODGINS, Q.C., BEFORE THE ARBITRATORS, 1878 :



clear, public, universal law, that any GoTemment which de faeio sucoeeds to anj other
Government, whether by revolution or restoration, oonqueet or re-oonqueet, succeeds to
all the public property, to everything in the nature of public property, and to all ri^ts
in respect of the public property of the displaced power, — whatever may be the nature or
origin of the title of such displaced power.'' '' But this right is the right of succession, is
the right of representation ; it is a right not paramount but derived, I will not say under,
but through the suppressed and displaced authority, and can only be enforced in the same
way, and to the same extent, and subject to the same co-relative obligations and rights, as
if that authority had not been suppressed and displaced, and was itself seeking to enforce
it.'' The same doctrine had been previously recognized in England, in the case of the
King of the Two Sicilies vs, Wilcox* United Slates vs. Prioleau,\ and in Canada in the
case of United StaUs vs. Boyd. % The Supreme Court of the United States has in various
cases affirmed the same doctrine : that the new government takes the place of that which
has passed away, and succeeds to all the rights and property of the original sovereign.

Now, with reference to the alleged claims of the Hudson's Bay Company to the
lands south of Hudson's Bay, to line i^*, it may reasonably be argued that there could
be no estoppel between the Crown of England, clothed with the double sovereignty of the
French and English Crowns, over thia disputed territory, and the Hudson's Bay Company.
Whatever representations and claims the Hudson's Bay Company may have induced the
English Goveiimient to make prior to the cession of the territory, would not estop the
Crown of England, having acquired the sovereignty which France had held, in any con-
tention between it and the Hudson's Bay Company.

Chief Justice Ha/rrison — I fancy that Great Britain could not have conferred on
the Hudson's Bay Company any greater rights than Great Britain at the time of the
grant possessed.

Mr. Hodgins— The cession of the disputed territory would not accrue to the Hud-
son's Bay Company.

Chief Justice Harrison — Not in the absence of an express grant.

Mr. Hodgins — We say that this territory about the south shore of Hudson's Bay
had been surrendered by Indian treaty to the Crown of France prior to the Hudson's
Bay Company's claim of title, and had been occupied and thenceforward claimed as French
territory up to a period after the Treaty of Utrecht, and therefore could not have been
granted to the Hudson's Bay Company. And that there would be no estoppel operating
in favour of the Hudson's Bay Company by reason of the subsequent acquirement of
that territory by the Crown of England in 1763.

We come next to the King's Proclamation of the 7 th October, 1763, under which
the Provinces of Quebec, East and West Florida, and Grenada, were established. In
that Proclamation there seems to be an express reservation. The Proclamation is not
printed in full in Book of Documents, but it will be found in a work which I obtained
from the Education Department of Ontario, in which the terms of Capitulation, the
Treaty of Peace, and the Proclamations in regard to the earlier establishment of Quebec
and the other Provinces, are collected. . That Proclamation reserves out of the extensive and
valuable acquisitions in America secured to the Crown by the Treaty of Paris, other ter-
ritories than those placed under the four Governments then constituted, viz., a territory
not yet ceded to the Crown, which, I assume, included the Indian territories before refer-
red to, and a territory beyond the sources of the rivers which fall into the Atlantic. It
was assumed at that time, and some of the maps confirmed the assumption, that Lake
Winnipeg was connected with Pigeon River, and so through the great la!kes with the St.
Lawrence. The Crown therefore reserved for future disposition the territories referred
to, and expressly limited the jurisdiction of the Governors of the new Provinces in a way
markedly different from the commissions which issued subsequently under the Quebc^
Act : " That no Governor or Commander-in-Chief do presume, upon any pretence what-
ever, to grant warrants of survey, or pass any patents for lands beyond the bounds of
their respective governments, or for lands beyond the heads or sources of any of the rivers



* 1 Simons N.S., 301. f 2 Hemming ft Miller, 568.

t 15 Grant's Chancery, 138.



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ErFEOT OF THE QUEBEC A€!T, 1774.



vhioh fall into the Atlimtic Ocean, from the w^est or north-west, or any lands whatever,
which, not having been oeded to or purchased by us, are reserved to the Indians/'

The next document in point of time is the Quebec Act of 1774. The Attorney-
General has left me little to add in construing that Act, and he has shown that the words
" during His Majesty's pleasure," preserved the future exercise of the Royal prerc^tive.
The Dominion contends for the most limited construction which can be placed upon the
term " northward " in that Act — ^that it means " due north." The rule is otherwise
stated hj the Supreme Court of the United States : '^ In great questions which concern
the boundaries of States — ^when great natural boundaries are established in general terms
with a view to public convenience and the avoidance of controversy — the great object,
where it can be distinctly perceived, ought not to be defeated by those technical perplex-
ities which may sometimes influence contracts between individuals."^ But apart from
the construction placed by the Crown upon that word " northward," immediately after,
the passing of the Act, we find in the preamble of the Act, and on the ground within the
disputed territory — that is, between the line drawn ", due north " from the junction of
the Ohio and Mississippi, and the line of the *^ banks of the Mississippi River" — irresisti-
ble arguments against the contention of the Dominion. Now, within that disputed ter-
ritory between the lines referred to, there were, at the time, several well-known settle-
ments and trading forts of the French, as shown on the maps : Forts Kaministiquia, St.
Pierre, St. Charles, La Pointe or Chaoouamicon, St. Croix, Bpnsecour, St. Nicholas,
Crevecoear, St Louis, De Chartres, and the settlements on Lake Superior, west of this
" due north " line.

The preamble of the Act shows that the intention of Parliament was to extend civil
govomment over French settlements left out of governmental control ; for after reciting
the Proclamation of 1763, it says: *' Whereas, by the arrangements made. by the said
Boyal Proclamation, a very large extent of country, within which there were several
colonies and settlements of the subjects of France who claimed to remain therein under
the faith of the said Treaty, was left without any provision being made ior the administra-
tion of civil government therein." Now, if the object of the Act, as stated in the pre-
amble, was to extend civil government over the colonies and settlements not theretofore
within, the limits of any of the Provinces, can any reasonable argument be advanced for
excluding from the bmiefits of that Act a long and narrow strip of territory containing
the settlements and forts named, lying between tiiis '* due north " line and the eastern
banks of the Mississippi 1 England, at the surrender of Canada, daimed to the line of
the Mississippi, and the map produced by the Dominion as the one containins^ the line
traced between General Amherst and the Marquis de Yaudreuil, shows that the line
started from Red Lake, one of the sources of the Mississippi. And as if to place the
boundary beyond question, the Treaty declares that the limits between the British and
French territories shall '^ be fixed irrevocably by a line drawn along the middle of the
Biver Mississippi from its source to the River Iberville," etc

But, — still keeping in view the object of the Quebec Act as set forth in the preamble,
and remembering that the Crown in its negotiations with France had perseveringly insisted
upon the line of the Mississippi as the western boundary of Canada, and had obtained
that boundary, — ^there is a further point which I would press upon the Arbitrators. The
first document promulgated by the Crown immediately after the passing of the Act, was
a commission to Sir Guy Carleton, in December, 1774, as Gbvemor-General of the new
Province of Quebec, and it gives an authoritive interpretation by the Crown of the inde-
finite word " northward," used in the Act of Parliament, and which was peculiarly within
the power and prerogative of the Crown to interpret. That commission gives the boun-
daries mentioned in the Quebec Act until it comes to the words '' westward to the banks
of the Mississippi and northward," not " due north," but ^' northward along the eastern
bank of the said river (Mississippi)." This description must be taken to be the Crown's
inter^etation of the boundaries which the A(^ of Parliament had established for the
Province of Quebec, and was a political act of state within the prerogative right of the
Crown — to fix the boundaries where they were uncertain, and even to extend them if

* £Umdle7*8 Lessee v. Anthony, 5, Wheaton, 574.

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384 ARGUMENT OF MR. HODGINS, Q.C^ BBPORE THB ARBITRATORS, 1878 :



necessary ; and suoh act of the Crown is binding upon the Arbitrators and cannot nevbe
questioned. That Croyemor-G^neral, as well as his sncoessor, had thus from the Crown
complete jurisdiction over the territory to the line of the banks of the Mississippi Bat
when the southern portion of the Province of Quebec was ceded to the United States, by
the Treaty of 1783, the Crown had again to interpret the Quebec Act as to the remaining
territory; and in the commission issued by the Crown in 1786, appointing Sir Guy
Carleton, Governor-General over what remained of the IVovinoe of Quebec, the Crown
defined that Province as extending on the west to the Lake of the Woods and the Missis-
sippi River.*

These commissions to the Governors were political acts of state or oi sovereign
power over the territory in question, and brought the territory within the jurisdiction of
the civil government of Quebec del^;ated to the Governors. The Courts of the United
States have been called upon to determine questions of boundaries similar to that now
before the Arbitrators ; and by a consensus of decisions from 1818 to the present, their
courts say that in all these questions affecting boundaries the act is a political act. We
call it a prerogative act. They hold that where ihe political act has been recognized
either by the Executive or by Congress, either officially or in legislative documents^ or in
diplomatic controversies with foreign nations, that the interpretation put upon the boun-
daries of territories, and the Hmitation of such boundaries, and thedum in regard tosudi
boundaries, shsdl govern the civil courts. Chief Justice Marshall, in delivering the judg-
ment of the Supreme Court on the question of the boundaries of Louisiana and West
Florida, in the case of Foster v, I^eilsonyf says : " After these acts of sovereign power
over Uie territory in dispute, to maintain the opposite oonstruct»on would certainly be
an anomaly in the history and practice of nations. If the Government have unequivo-
cally asserted its right of dominion over a country of which it is in possession, and which
it claims under, a treaty, if the Legislature has acted on the construction thus asserted, it
is not in its own oourts that this construction is to be denied. A quesdon lii» this,,
respecting boundaries of nations, is more a political than a legal questicm, and in its dis-
cussion the courts of every country must respect Uie pronoimeed will of the Ckyvemmsfit
To do otherwise would be to subvert those principles which govern the relations betwen
the legislative and judicial departments, and mw^ the limits of each." This judgment
has bmi cited with approval, and has been followed in all subsequent oases of diluted
boundaries of states or territories.

But we are not limited to these unquestioned and unquestionable prerogative acts of
the Crown in interpreting the statute. We oome next to the division of ihb Province of
Quebec into Upper and Lower Canada ; and if words mean what ihey express, then the
words used in the Order in Council, { in the paper presented to tiie Houses of Parliameat,
previous to the passing of the Act of 1 791,§ in the proclamation of General Clarke,|| and
in the Comi^aisEdons which were subsequently issued to the Croveraors under tiiat Aetf
show conclusively the intention of the Crown as to the boundaries of the new Provinoe
of Upper Canada, whether as dividing the old Province of Quebec, or as settling the
uncertain course of the " northward " line of the Quebec Act The Order of the Eling in
Council and the Proclamation issued immediately after the passing of the Act, were ateo
*' acts of sovereign power over the territory ** in question, and are, we contend, as
binding on the arbitrators as they would be on a court of justice. If these acts of the
Crown, were more than a division of the Province of Quebec ; if they were also an exten-
sion of the boundaries of the old Province of Quebec, they are equally acts of tiie pre-
rogative, done with the concurrence of the other estates of the realm, and are binding
upon this Arbitration as a oourt of justice. Therefore, in whatever light the Order in
Council of 1791, and the Proclamation under it, are viewed, that Proclamation — giving
the boundaries described in the paper presented to the Parliament, and sanctioned by the
Order in Council — ^is the document which determines what are the boundaries of the
Province of Ontario. It determined what were the boundaries of the Province of Upper
Canada. The Statute of 1841 united the Province of Uppw Canada with the Province

* Book of Documents, pp. 47-8. + 2 Peters, U. S., 254. X Book of Documents, p. 388.

%Ibid., p. 411. I Ibid,, p. 27. ir/6id., pp. 48-53.



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EFFECT OF •raE ACTTS OF THE CROWN AND PARLIAMENT OF 1791. 335



of Lower Canada, but did not alter the boundaries of either. The Confederation Act of
1867 dedares that the boundaries of the former Province of Upper Canada shall be the
boundaries of the Province of Ontario. Thus we are brought back to the Order in Council
and Proclamation of 1791, as to what are the true boundaries of Ontario. The paper
submitted to Parliament, and the Proclamation, give two limits :

Firgi. — ^lliat the boundary shall commence at the St Lawrence at Longueuil, thence
to the Ottawa River, thence up the Ottawa to the head of Lake Temiscaming, and thence
in a line ** due north until it strikes the boundary line of Hudson's Bay " — ^not, of the
Hudson's Bay Company's territory. And we have in the commissions to the Governors-
General, as the Attorney-General has stated, a further interpretation of the word *' boun-
dary " — ^the use of the word "shore." From 1791 to 1846 every commission issued by
the Crown contains the expressions — "strikes the boundary line," or " strikes " or
'"reaches" the "shore of Hudson's Bay." No less than eighteen commissions issued by
the Grown of England to the Governors between those dat^ use the terms " strikes " or
** reaches " the boundary line or the shore of Hudson's Bay. Therefore we contend that
the Crown of England, having what may be called the double sovereignty of the French
and English Crowns in r^;ard to that disputed southern ilhore of Hudson's Bay — whether
the former sovereignty had been admitted or denied — intended that this new Province of
Uppor Canada should extend to the southern shore of Hudson's Bay.

Second, — ^The Parliamentary paper and the Proclamation say, "westward to the utmost
extent of tihe country commonly called or known by the name of Canada." Now the
Crown here uses a word whidi the Ckx>wn had knowledge of. In the n^;otiations with
the French King, the Crown had been contending far the cession of the country called or
known by the name of " Canada." It had obtained, first by conquest, and then by treaty ,^
the territory or country called or known by the natne of " Canada." Now, the limits of
Osnada were known either from descriptions in State docutlients, of from a known extent
of territory — ^known to the Crown and to the officers of the Crown — or known by local-
Hies wtiicfa had certain names admitted to be within the territory or country called or
known by the name of "Canada." To aid us in finding the extent of Canada we may
refer to maps published in England and France prior to and at the time of this Proclama-
tion. We may also refer to the prior admissions or reports by €lie officers of the English
and French Governments ; to the works of historians and geographers, and the knowledge
acquired by the actual experience of travellers ; and froiti idl these we can obtain with
tolerable certainty a knowledge of the extent of the territory called or known by the
name of "Canada." Now, it is not necessary, so far as this arbitration is concerned, to
consider that portion south of the present boundary between the United States and our-
sdvee, or to determine whether it was part of Canada or not. I have argued that it was ;
and the United States Courts in dealing with questions of tiMtas t^ere have held that the
territory lying to the east of the Mississippi was formerly Canada, and, that the 'United
States had succeeded to -the tit^e of the King of Fmnce in that part of Canada w^hich he
had prior to the conquest by Gi'eat Britain in 1759, and which was ceded to England by
the treaty of 1763.* So far, therefore, as that territory is concerned, had it remained the
property of England it would have become part of ihe new Province under the term
"Ciuiada," used in the Proclamation of 1791. North of the line of the Mississippi, and
north of what is now the international boundary, there were French forts or trading posts.
These French forts — Fort Bourbon, Fort Dauphin, Fort La Heine, Fort Bouge, Fort St.
Charles, Fort Maurepas, Fort St Pierre and Fort Kaministiquia — appear on both French
and Ei^lish maps published prior and subsequent to the surrender of Canada. Now, to
what Sovereign did these forts belong 1 Did they belong to the Sovereign of England or
of France 1 Were they occupied by English or by French subjects 1 Every record we
have, whether taken from English or French sources, admits that these forts were French ;
that all through that interior western country the French had established their posts, had
carried on tn^de with the Indians, and were more adventurous than the English. The
English had sitoply occupied a scattered fringe of posts on the shores of Hudson's Bay,
while the French had gone into the interior of the country, had established these trading

♦ United States vs. Repentigny, 5 Wallace, U. S., 211.

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336 ARGUMENT OF MR. HODQINS, Q.C., BEFORE THE ARBITRATORS, 1878 :



posts, and by virtue of their establishment had occupied the territory with the knowledge
and tacit acquiescence of the English — if the English had been entitled by the possession
of the coastd to that interior country, — ^had occupied the interior portions of the country
and made settlements, and had therefore acquired for the King of France the dominion
and sovereignty of that territory. That interior territory, therefore, as part of the ter-
ritory of Canada, was surrendered under the Treaty of 1763. I think that this is put
beyond question by the Articles of Capitulation between the Marquis de Yaudjreuil and
General Amherst Article 3 mentions the posts situated on the frontiers — Detroit,
Michillimackinac, and other posts. Article 25 provides for the affairs of the trading com-
pany known as the Indian or Quebec Company, referred to in the Treaty of Utrecht.
Article 37 provides that the Canculiansand French '* settled or trading in the whole extent
of the Colony of Canada,'' shall preserve peaceable possession of their goods both movable
and unmovable ; they shall also retain the furs in the " posts above " which belong to
them, and those which may be on their way to Montreal ; and they shall have leave to
send canoes to fetch furs which shall have remained in the posts. These particular refer-
ences to the settlements and posts in the countries above, clearly point to the French
trading posts on Lake Superior and in the country west of that lake. Then we have the
map which is printed in the Dominion case, which shows that whatever may have been
the dispute between the Marquis de Yaud];euil and General Amherst as to the Mississippi,
the Marquis admitted that the western boundary of Canada extended to Bed Lake — a
lake immediately south of the Lake of the Woods. They did not dispute as to the ter-
ritories north of that lake ; and the terms of the capitulation covered the posts and forts
iu the countries above, which posts and forts were those I have mentioned, some of which



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 57 of 86)