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 59 of 86)
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St Simon, a young Canadian gentleman recently honoured by His Majesty with that
tiUa They are to penetrate as far as Hudson's Bay, draw up a memoir of all they will
<iiscover, drive a trade in furs with the Indians, and especially reconnoitre whether there
be any means of wintering ships in that quarter." That is what they were to do ; so
that if the French Government of the day had prior to that caused visits to be made to
Hudson's Bay in the way in which they pretend some years after that to state, all that
knowledge and information would have been acquired, and there would have been no
necessity for sending a priest there in order to make that discovery. If those statements
of the earlier alleged voyages had not been made by the duly constituted authorities of
the Government of the country, I think this is almost all the answer it would be needful
to make. But Father Albanel says, at page 56 of the Eelationa for 1672: <* Hitherto
this voyage had been considered impossible for Frenchipen, who, after having undertaken
it already three times, and not having been able to surmount the obstacles, had seen
themselves obliged to abandon it in despair of success. ^Vhat appears as impossible is
found not to be so when it pleases God. The conduct of it was reserved for me, after
eighteen years' prosecution th it I had made, and I have very sensible proofs that God
reserved the execution of it for me, after the signal favour of a sudden and marvellous,
not to say miraculous, recovery that I received as soon as I devoted myself to this
mission, at the solicitation of my superior, and in fact I have not been deceived in my
expectation; I have opened the road in company with two Frenchmen and six
savagea" This shows that so far as the Jesuits were concerned, the pioneers of the
country, they had never heard of anyone having penetrated to Hudson's Bay before them.
The very letter that M. Talon was writing to the King shows that he had never heard

* [For the Answen to these objections as to the reliability of the nUmoires of Callidree and Denonville. and
the aiitbenticity of tiie events related in them, see notes to the Dominion Case, pp. 278-280, ante.— G.E.L.]



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342 ARGUMENT OF MR. MACMAHON, Q.C., BEFORE THE ARBITRATORS, 1878:



of anything of the kind.^ There is no doubt, therefore, that AlbaneFs voyage was the
first effort successfully made to reach Hudson's Bay.

The Attorney-General — M. Talon says also in that letter to the King that those
countries were originally discovered by the French.

Mr. MacMahon — ^That is the way in which these accounts were made up ; but it is
evident that the French had not been in Hudson's Bay, and did not know whether it
would winter ships or not.

The Attorney-General — M. Talon says that he directed St Simon to take renevsd
possession of it.

Mr. MacMahon — It was not necessary to take renewed possession if they were in
possession already, as it is now claimed that they were. There is not a record in existence
which will substantiate the claim then made as to' former possession. In December, 1711,
the Hudson's Bay Company presented a petition to Queen Anne, in which they set forth
that the French, in time of perfect peace between the two kingdoms, in 1682, arbitrarily
invaded the Company's territories at Fort Nelson, burned their houses, and seized their
effects ; that in the years 1684 and 1685 they continued their depredations ; that in the
year 1686 they forcibly took from the Company Albany Fort, Rupert Fort, and Mooee
River Fort, and continued their violent proceedings in 1687 and 1688, and the Company
lay the damages at £108,514 19«. M. (Mills, 153.)

It is not my intention to tfeke up the time of the Arbitrators in referring to the
English discoveries. A series of them will be found at pages 4 and 5 of the Dominion
Case. The voyages are those of Sebastian Cabot, in 1517; Sir Martin Frobisher, in
1576, 1577 and 1578; Hudson, 1608-10; Button, 1611 ; Luke Fox and Thomas James,
1631. Then we come to 1667 and 1668, when we find that Des Grosellieres and Radisson
(who it is supposed were Cov/reura dee Boie) were roaming among the Assiniboines, aQ<i
were conducted by them to Hudson's Bay. These two men went to Quebec after their
return for the purpose of inducing the merchants there to conduct trading vessels to
Hudson's Bay. At page 280 of the Ontario Documents, we have the whole transactions
during that period fully set forth by the Hudson's Bay Company just as they transpired.
The proposal of Des Qrosellieres and Radisson was rejected, as the project was looked
upon as chimerical by the Quebec merchants. Now, if Attorney-General Bourdon, the
Attorney-General of the Province, had been there twelve or fourteen years before, aiwi
made known what his discovery was, and how he got there and returned from there, it
would not have been stated by the merchants of Quebec that the project was chimerical, t

The Attorney-General — Nor did they state so. The document merely says that their
project was rejected.

Mr. MacMahon^l will furnish the authority for stating that the project was looked
upon as chimerical. I think you will find it in Mr. Mills' book.

Des Grosellieres was in London in 1667, but before going there he had been in
Boston and in Paris, endeavouring to get merchants to assist in reaching Hudson's Bay
by ships. He wished them to fit out an expedition for that purpose, but they refused to
join in the undertaking, and he then referred to the British Ambassador at ihe Court of
Paris, who advised him to go to London. He went there, and those who afterwards
obtained the patent from Charles II. to the Hudson's Bay Company, employed Des
Grosellieres and Radisson, with Gillam, who went there and built Fort Rupert in 1667 or
1668. Then Capt. Newland was sent out in 1669 by the same parties who sent oat
Gillam. So far as the Hudson's Bay Territory is concerned, the English were first, both
as to discovery and occupation.

It is stated in Mr. Mills' book (and not denied) that as long as the English were not
there the Indians came to Montreal and Quebec, and Three Rivers. Hie whole of the
trade was done between Fort Frontenac (Kingston) and Quebec by the Indians them-
selves ; and with the exception of the Cov/reura dea Boia, who went into the country some
hundred miles, there was no pretence of the French having penetrated into the interior.

# [On the contrary, the letter dainui that that coontrv had loxur before been disoovered and tiJceo
possession of by the French. (See the extract, note f, p. 340, ante.— G.'E. L.]

t [See note ♦, p. 281, ante.— G. E. L.]



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ENGLISH CLAIM OF TITLE BY DISCOVERY AND POSSESSION. 343



But as soon as the English commenced occupying the Hudson's Bay Territory ; as soon
as they were intercepting and taking possession of the trade that had formerly helonged
to the French merchants, then those who were interested took steps to secure at Hudson's
Bay the trade which the English were intercepting. The memoirs are full of statements
as to the venality of those connected with ^e. French Qovemment in Canada. It is
stated that the Qoyemors-G^neral themselves were in league with certain merchants and
traders for the purpose of getting possession of as much of the trade as they possibly
ooold, and that none except certain favoured individuals could get licenses from the
Crovernors. The people stated themselves that they were persecuted by the emissaries
of the Government, who sought to prevent them going into the interior ; and thus the
Cawrw/rs dea Boi$ were prevented from going into the interior of the country, and cutting
off the trade which would otherwise have gone to Montreal, and which the officials were
bound to participate in if they oould. That is the reason why the French Governors here
thought it necessary to send these memoirs to the Court of France.

Now, having found the English making discoveries, entering into possession, and
building forts upon Hudson's Bay, the question suggests itself-^a question which ought to
be determined — what extent of territory the Kmg of England, as represented by the
Hudson's Bay Company or the discoveries of that Coippany — what extent of territory
the King of England was entitled to by this discovery, possession, and occupation. I do
not think there can be a doubt about it Most of the authorities on the point are referred
to on page 6 of the Dominion Case. It is laid down in Yattel that " navigators going on
voyages of discovery furnished with a commission from their Sovereign, and meeting with
islands or other lands in a desert state, have taken possession of them in the name of
their nation ; and this title has been usually respected, provided it was soon after followed
by real possession." Here we have these people sent out under the sanction of the King
and of Prince Rupert to make a discovery of Hud9on's Bay. They did make that
discovery, and entered into possession ; and I am going to show to the Commissioners,
no matter what the occupation was, that under the law of nations as interpreted then
and since by the highest authorities, they were entitled to the whole of the lands watered,
by the streams flowing into Hudson's Bay and James' Bay; and more than that, it
will be apparent that the Hudson's Bay Company and the English Government were
claiming that the whole of these lands belonged to England. Yattel says also : **• When
a nation takes possession of a country, with a view to settle there, it takes possession of
everything included in it, as lands, lakes, rivers, etc."*

The next authority I shall quote is Phillimore. He says : »*' In the negotiations
between Spain and the United States respecting the western boundary of Louisiana, the
latter country laid down with accuracy and clearness certain propositions of law upon
this subject, and which fortify the opinion advanced in the foregoing paragraphs. ' The
principles (America said on this occasion) which are applicable to the case are such as
are dictated by reason and have been adopted in practice by European Powers in the
discoveries and acquisitions which they have respectively made in the New World,
They are few, simple, intelligible, and at the same time founded in strict justice. The
first of these is, that when any European nation takes possession of any extent of sea
coast, that possession is understood as extending into the interior country to the sources
of the rivers emptying within that coast, to all their branches, and the country they
cover, and to give it a right, in exclusion of all other nations to the same. (See M^moire
de I'Am^rique, p» 116.) It is evident that some rule or principle must govern the rights
of European Powers in regard to each other in all sudi cases ; and it is certain that
none can be adopted, in those to which it applies, more reasonable or just than the present
one. Many weighty considerations show the, propriety of it. Nature seems to have

* [France, long before the English had obtained a footing in Hodflon's Bay, was, by consent of the
natives, in possession of the sovere^ty, and monopolized the whole trade np to the shores of the Bay.
The country being nnfit for cultivation or settlement, she could utilize this possession in no other way ; but
it was none the lc»s an integral part of her Canadian dominion. Yattel lays down the rule that if a nation
"has left uncultivated and desert places in the country, no person whatever has a right to take possession
of them without her consent Though she does not make actual use of them, those places still belong to
her ; she has an interest in preserving them for future use, and is not accountable to any person for the
manner in which she makes use of them." (Yattel, Book 2, chap. 7, s. 86.)— G. K L.]



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344 AKGUMENT OP MR. MACMAHON, Q.C., BEFORE THE ARBITRATORS, 1878 :



destined a range of territory so described for the same society, to have connected its
several, parts together by the ties of a common interest, and to have detached them from
others. If this principle is departed from it must be by attaching to such discovery and
possession a more enlarged or contracted scope of acquisition ; bat a slight attention to
the subject will demonstrate the absurdity of either: The latter would be to restrict the
rights of an European Power who discovered and took possession of a new country to €be
spot on which its troops or settlement rested — a doctrine which has been totally disclaimed
by all the Powers who made discoveries and acquired possessions in America.' " (Philli-
more's International Law, 2nd ed., vol. 1, pp. 277-8-9.)

I wish to draw the Arbitrators' particular attention to this expression in regard to
restricting the rights of European Powers, etc., to the spot on which troops or settlement
rested, because in dealing with the Treaty of Ryswick, the argument has been advanced
that all which was left to the English after that treaty were the settlements in the
immediate neighbourhood of the fort or two then in their possession : that is, the territory
immediately round about, and nothing more ; although as 1 will afterwards show, I do
not think that the Treaty of Ryswick has anything to do with the discussion of this case.
At page 223 in the discussion of the Oregon question, Dr. Twiss says : '* In the nego-
tiations antecedent to the Treaty of Utrecht, it was expressly urged, in support of Uie
British title to the territories of Hudson's Bay, that M. Frontenac, then Qovemor of
Canada, did not complain of any pretended injury done to France by the said Company's
settling, trading, and building forts at the bottom of Hudson's Bay, nor made pretensions
of any right of France to tlutt Bay till long after that time."* (Anderson's History <^
Commerce, A.D. 1670, vol. 2, page 516.) He goes on to say : " In other words, the title
which this charter created was g<x>d against other subjects of the British Crown by virtue
of the charter itself." That is what Dr. Twiss lays down as a proposition which he says
cannot be controverted — that as . regards the title created by the charter, it was good
against other subjects of the British Crown by virtue of the charter itself ; so that in
virtue of what has taken place within the last few years it must be good as against the
Province of Ontario. He continues : " But its validity against other nations rested on
the principle that the country was discovered by British subjects, and at the time of
their settlement was not occupied by the subjects of any other Christian Prince or State ;
and in respect to any special claim on the part of France, the non-interferenoe of Uie
French Oovemor was successfully urged against that power as conclusive of her aoqui-
escence."* That is laid down by Dr. Twi88,and it is a proposition which has been assented
to by Phillimore m ihe quotation just read. The quotation which was made use of by
my learned friend the Attorney-General from Twiss' Oregon was not attempted to he
controverted by the English authorities at the time of the Oregon difficulty. Mr. Mills,
at page 182 of his Report, says : " It can hardly be contended tiiat because the Hudson's
Bay Company had established certain posts and forts at the mouths of some of the rivers
that enfpty into the Bay, they could rightfully claim all the country drained by those
rivers and their tributaries. A pretension of this kind was put forward by the United
States to the whole of Oregon, because of the discovery of the Columbia River by Captain
Gray, but it was expressly repudiated at the time by Great Britain. No such rule is
recognized by writers on international law." Now, the rule of law as riecognized by
international writers and Great Britain was different from that put forward by Mr. Mills.
What was stated by Twiss and what is asserted here is, that it depended upon other con-
siderations. Sir Francis Twiss, in his discussion on the Oregon question, at page 300,
states that << Great Britain never considered her right of occupancy up to the Rocky
Mountains to rest upon the fact of her having established factories on the shores of the
Bay of Hudson, t,e.j upon her title by m^re settlement, but upon her title by diecwery^
confirmed by utHemenU in which the French natian^ her only civUixed neighbcwr^ aequi-
escedf and which they ettbseqttently recognized by treaty "\ That is the ground upon which
Dr. Twiss puts it, and it is the groundwork of the whole intemation^ law as stated by

* [Albanel and St Shnon's expedition of 1671 to take renewed poMeaeion, already referred to, wai by
way of protest against the Company's presence in the Bay. (Book Arb. Does., p. 10&)— G. K L.]
+ [See note ♦, p. 282, aiKe.— G. E. L.]

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BXTENT OF TERRITORIAL CLAIM OF H, B. CO. UNDER THEIR CHARTER. 346



Fhillimore in the quotation that I have akeadj read. The principle is stated in Vattel
in the reference I have made ; is fully recognized by Great Britain and the United States ;
and is fully assented to. by Twiss and Fhillimore.

In reference to the middle distance, my learned friend quoted from Twiss, 148. At
173 and 177, Twiss treats of this middle distance in regard to this very territory. He
says : " Again, in the case of a river, the banks of which are possessed by contiguous
States, the presumption of law is, that the Thalweg, or mid-channel, is the mutual boun-
darj ; since rivers are, in the case of the conterminous States, communis juriSy unless
aclmowledged by them to be otherwise, or prescribed for by one of the parties. * The
gaieral presumption,' observes Lord Stowell (in the Twee Q^broeders, 3 Bob., p. 339),
coiainly bears strongly against such exclusive rights, and the title is matter to be estab-
lished on the part of those claiming under it, in the same manner as all other demands are
to be substantiated, by clear and competent evidence.'

^* A title by contiguity, as between conterminous States, would thus appear to be a
reciprocal title ; it cannot be advanced by one party, excepting as a principle which sanc-
tions a corresponding right in the other. The practice is in accordance with this. Thus,
^e United States of America, in its discussion with Spain respecting the western boundary
of Louisiana, contended that * whenever one European nation makes a discovery, and
takes possession of any portion of that continent (i.e., of America), and another afterwards
does the same at some distande from it, where the boundary between them is not deter-
mined by the principle above mentioned (i.e., actual possession of the sea coast), the middle
distance becomes such a course.'" (British and Foreign State Papers, 1817-18, p. 328.)

Now, here we have taken possession of the sea oocyst, so that the question of middle
distance^ or reaching the territory by another route, cannot come in question at all ;
because, as contended by the United States and Great Britain in the discussion of this
question, they have always claimed, and the Hudson's Bay Company have always claimed,
that the territorial rights extended to the height of land on all sides ;* and I will point
oat to the Commissioners that as early as 1709, before the Treaty of Utrecht, the Hudson's
Bay Company were claiming on the east and south the very line that ran from Griming-
ton's Island down through Lake Mistassinnie. Now, it is netoessary to look at the Com-
pany's grant in different aspects. The charter will be found in Ontario Documents, 29,
30. What does the King grant to the Hudson's Bay Company under the name of Bupert's
Land ] First is granted the sole trade and commerce of all those seas, bays, lakes, rivers,
creeks, etc. Tben the Company are created the ** absolute lords and proprietors of the
same territory, limits, and places," etc., etc.^ in free and common socage, with power to
erect colonies and plantations, etc. So that here was a proprietary government created
by the charter. You will see by the charter that the Company had the power to adjudge,
to create colonies — the power to do everything, apparently, which any government ought
to be called upon to do. And I refer to the fact of its being a proprietary government
because it will be necessary to consider that in relation to the bounds which my learned
friend the Attorney- General says could be created by the King, notwithstanding that the
boundaries might have been limited by the Act of Parliament. The charter is very wide.
Although Sir Yioary Gibbs, who gave an opinion in 1804, thought the charter void because
it purports to confer upon the Company exclusive privileges of trade, he does not say
anything about the proprietary rights ; he does not say anything about the right of the
Kmg to grant a charter the same as was granted in Pennsylvania ; he does not say any-
thing about the right to make a territorial grant ; he merely gives the opinion that the
charter is invalid because it grants exclusive privileges of trade and thereby creates a
inonopoly, which they say the King could not grant without the sanction of Parliament.

The next opinion in point of time is that of Sir Arthur Pigott, Serjeant Spankie,
and Lord Brougham, 181^; and the next one is that of Mr. Edward Bearcroft in 1818.
In these two opinions they do not for a moment say that the charter is invalid, but they

* [On the contrary, Chief Jostioe Draper in his elaborate Memorandnm of 6th Ma^, 1857 (eee anUf p.
3(), oame to the conclusion that '' the claim to all the country the waters of which ran into Hudson's Bay,
^ not advanced until the time that the Company took the opinions of the late Sir Samuel KomiUy,
amn. Cruise, Holroyd, Scarlett and BelL'' which was in 1812-14. The cases on which these opinions
*«• given have never been produced.— G. K. L.]



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346 ARGUMENT OF MR. MACMAHON, Q.C., BEFORE THE ARBITRATORS, 1878 :



say that the Crown had no right, and could not of itself create a monopoly, and therefore
as to that part of the charter it might be invalid ; but as to the rest of the charter, they
say the only part of it to which a question could be raised was in regard to the extent of
territory covered by the charter. I think I will be able to show the Ck>mmi88ioner8 that
the charter was always considered by the British Government as extending to the full
length asserted now by the Dominion, and as was asserted by England shortly after the
Treaty of Utrecht

The Attorney-General urged with a great deal of force that the opinions given by the
law officers of the Crown in 1850 and 1857, were given upon statements furnished by the
Hudson's Bay Company which were exparie^ and that, therefore, the Commissioners are not
bound by these opiniona I do not pretend that Ontario is bound by any of these opinions ;
that is not asserted- by the Dominion ; but the Province of Ontario is put into a position
which I think the Province is not able to escape from by the very fact of the proceedings
referred to having been instituted, and that the law officers of the Crown stated at ihat
time that the Hudson's Bay Company were entitled to everything that they claimed ; and
I am going to point out to the Commissioners what the claims were, and upon what these
claims were based.

The claim as furnished by the Hudson's Bay Company will be found in full in Ontario
Documents, 288-90. That claim was founded — upon what I Upon a document prepared
by the Crown itself, and furnished to these very counsel as the title upon which they were
to rely ; and the law officers of the Crown, looking at that document, at the charter itself,
could see for themselves, and were giving an opinion in regard to a legal document. The
Company import into their statement a part of the charter, and set out by saying in the
words of the charter what the King had granted them ; and then they say that they ''have
always claimed and exercised dominion as absolute proprietors of the soil in the territories
understood to be embrftced by the terms of the grant, and which are more particularly
defined in the accompanying map." The map is an exact counterpart of what was used
in 1857, and in that map is set forth all that they claim.

Chief Justice Harrison — Each time that they were called upon to give their claim,
they appear to have extended their boundaries.

Mr, MacMahon — They were determined to claim enough, like my learned friend
the Attorney-General, who started out with claiming the line of the Rocky Mountains.
They furnished that claim to their grantors ; they were furnishing that claim to the Crown,
and it was submitted to the Crown officers, who gave an opinion in regard to it, and that



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 59 of 86)