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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the Bourbon River, about midway between the said Lake and Bay, thence passing to th&
west and north by the sources of Churchill River, etc. ; no westerly boundary being any-
where assigned to Canada. It may indeed be held doubtful whether the terms in which
Hndaon's Bay was ceded could possibly be interpreted to mean more than the Bay and
its immediate environs, but whatever the legitimate interpretation of the Treaty, the
actual acceptation of it gave to France at least all to the south of the dividing high lands-
above described, for she remained in undisputed possession thereof until the final cession
of Canada in 1763 ; while on the other hand the acceptation of it on the part of Great
Britain, as proved by the same test of occupation, confined her at least to the north of
the said high lands, if not to the very shore of the Bay, beyond which her actual posession
never extended.

It must here be observed, however, that the Treaty of Utrecht conferred nothing
upon the Httdsan's Bay Company. It gave them nothing that was not theirs at the Treaty
of Ryswick, and the Treaty of Ryswick gave them nothing that was not theirs before.
The Charter obtained from King Charles the Second may have granted all that was his
(if anything) to grant in 1670, but it would have required a new Charter to have granted
what France ceded to Great Britain forty-three years afterwards. No doubt the Treaty
of Utrecht had this important bearing upon the Company, that although it conferred na
territorial rights upon them, the territory it conferred on Great Britain was then inacces-
sible to British subjects by any other route than through the Bay and Straits of Hudson,
over which ^if over anything) the Company's Charter gave exclusive control, and over
which, whether rightfully or wrongfully, they have exercised such control.

Matters continued in this state as regards the territorial rights of Great Britain and
France for fifty years more, when Canada was ceded to Great Britain by the Treaty of
Paris in 1763. During this period the Hudson's Bay Company occupied the posts on the
coasts of the Bay, and these only, having made no attempt to penetrate into the interior
or occupy even what the Britieh geograpJiers of the time construed the Treaty of Utrecht
as conferring, not upon the Company, but upon Great Britain : while on the other hand
the French had covered that part of New France which still remained to them (accord-
ing to the British authorities*) with posts or forts from the Lake of the Woods to the
lower end of Lake Winnipeg, and remained in peaceable possession thereof, and in the
most active prosecution of the trade until the whole country was given up to the British
by the Peace of Paris, in 1763 ; by which, however, nothing was conferred upon the
Hudson's Bay Company any more than there had been by the Treaty of Utrecht, the
rights acquired by these treaties being simply in common with other British subjects.

For a few years, about the time of the transfer of Canada from French to British
dominion, the trade of the western territories languished from a very natural want of
confidence on the part of the Canadians by whom it had, up to that time, been carried
on, and who now owed a new allegiance and had to seek a new market for the produce
of their industry ; but a fresh impulse was soon given to it, first by separate individuals,
then by small companies, and finally by the great North- West Company of Montreal,

* [Jeffeiys {% British authority subsequently quoted in this paper) mentions, in addition to the posto
here.Mferred to, two of the French posts on the Saskatchewan.— G. E. L.]

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16 MEMORANDUM OF THE HON. JOSEPH CAUOHON, 1857.



who not only spread their operations over all the territories formerly possessed by the
French, but explored new countries to the north and west, while the Hudson's Bay Com-
X>any had not yet made a single establishment beyond the immediate confines of the sea
coast.

The temporary depression of the fur trade at the period of the transfer of Canada to
British dominion was, of course, advantageous to the Hudson's Bay Company, for the
Indians inhabiting those parts of Canada where the French posts were established around
Lake Winnipeg and its tributaries, would naturally seek a market in Hudson's Bay during
the comparative cessation of demand at the establishments in their midst But when
confidence was restored, and a new impulse was given to the trade in the north-west of
Canada, the supply was again cut off from Hudson's Bay, and now the Company for the
jvni time entered into competition with the Canadian traders in the interior, where their
first establishment was made in 1774. And why, it may be asked, did not the Hudson's
Bay Company oppose the French Canadians in the interior a few years earlier, as well as
they opposed them (principally the same people) now that they had become British sub-
jects) The answer is very simple. During French dominion they could not do it
because the country belonged to France, but by the cession of the country to Great
Britain, the Company had acquired the same right as any other British subjects to trade
in it, and they availed themselves of that right accordingly.

From this period an active competition was carried on between these companies, but
the Canadian North- West Company were everywhere in advance of their ri^s. They
were the first to spread themselves beyond the limits of the French, over the prairies of
the Saskatchewan ;* they were the first to discover the great river of the north, now
bearing the name of McKenzie, and pursue its course to its discharge in the iSrozen
Ocean ; they were the first to penetrate the passes of the Northern Cordilleras and plant
their posts upon the shores of the Pacific ; and with such indomitable energy did they
carry on their business, that, at the period of Lord Selkirk's interference, they had
upwards of 300 Canadians, " Voyageurs/^ employed in carrying on their trade to the west
of the Kocky Mountains.

It would bo a useless task now to enter into a detail of the attempt made by the Earl
of Selkirk, as a partner of the Hudson's Bay Company, to ruin their opponents. It is
only necessary to refer to it here as the first endeavour made to exercise the privileges
oontended for under the Charter over those territories which had not been acquired by
Great Britain till the conquest or cession of Canada. Lord Selkirk having become princi-
pal partner, and acquired a predominant influence in the affairs of the Hudson's Bay
Company, it was determined to assert the assumed privileges of the Company to an
oxtent never before attempted ; and for this purpose a grant of the country on tbe Red
River was made to his lordship, who commenced in 1811-12 to plant a colony there.f
A Governor was appointed, the colonists and the servants of the Company were armed
and drilled, and in 1814 the claims of the Company to soil, jurisdiction and exclusive
trade were openly asserted, and for the first time attempted to be enforced by the actual
expulsion of the North-West Company, several of whose forts were surprised and taken,
their people being made prisoners, dieir goods seized, and the channel of their trade
obstructed by the interception of their supplies. Overawed somewhat for the moment by
this bold assumption of authority, the Canadian Company appear to have avoided the
contest, but when forced into it they proved the stronger ; the Governor was killed in
leading an attack upon a party of the North-West Company, who turned and gave battle,
and the colony was dispersed. This final catastrophe occurred in the spring of 1816,
while in the meantime Lord Selkirk was organizing a more formidable force than had

* [It is now historically established that the French, before the cession of Canada, occupied the whole
country of the Saskatchewan. They had several forts on that river; one of them at its source in the Rocky
Mountains.— G.£. L.]

t ''Who have been the aggressors in their different quarrels, I am not able to determine ^owever, pre-
vious to 1811, aX which time Lord Selkirk became connected with the Company trading to Hudson's Bay,
and sent settlers from Europe to that country, no great differences existed between the servants of that Com-
pany and the fur traders of Canada, There might oe difficulties between different posts, but seldom attai^ded
iwitii serious consequences.**— Despatch of Lieutenant-Grovemor Gore to Earl Bathurst, 9th September, 1816.



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MEMORANDUM OF THB HON. JOSEPH CAUCHON, 1857. l7



hitherto taken the field. Having procured a commission of the peace from the Gk>vem-
ment of Canada^ he engaged a large force of the disbanded DeMeuron soldiers, equipped
ihsm in militaiy style, procured arms, ammunition, artillery even, and started for the
interior. '

It must be allowed that it was a somewhat anomalous course for the Government of
Canada to have pursued, to permit such a force to be organized ; but when it is con-
sidered that great ignorance prevailed as to the state of those remote localities, that it
was known that there had been disturbances and bloodshed the previous year ; when also
Lord Selkirk's position is considered, and that he went as a pacificator professedly to main-
tain peace, it may not be deemed so extraordinary that so much confidence should have
been placed in him, for he was even granted a sergeant's guard of regular troops. I^ is not
the object here, however, to enter into a discussion of the unfortunate occurrences of that
period, or the particular action of the Provincial Government, and the circumstances are
only referred to, to show that Canada actually exercised the jurisdiction, that Lord Sel-
kirk's destination was the Hed River Colony, and that he deemed it necessaiy to fortify
himself doubly with commissions as a Canadian magistrate, first for Canadian territory,
and second (under 43 Geo. 3rd) for the " Indian territories^'^ so that those who resisted
his authority on the ground that they were in Canada, he could judge under the one com-
mission, and those who resisted on the ground that they were in the Indian territories,
he could judge under the other, while the judicial and governmental attributes claimed
for the Company would have served as a third basis of operation ; and thus with the
actual force at his disposal there was a pretty fair prospect of the Hudson's Bay Com-
pany being made the absolute masters of the north-west country.

At the Sault Ste. Marie, however. Lord Selkirk met intelligence of the death of
Governor Semple and the dispersion of his colony ; nevertheless, he still proceeded with
his force as far as Fort William, on Lake Superior, where he arrived about the 1 1th of
August, 1816, and soon after arrested the partners of the North-West Company, who
were there at the time, and took possession of the whole establishment, including the
merchandise and stores of the Company. The course pursued on this occasion, as appears
by documents published at the time, shows the character of the pretensions set up at that
period — pretentions which were then and not till then presumed upon.

It will be observed that Fort William was the principal depot of the Canadian mer-
chants, through which all their supplies for, and peltries from, the North- West had to
pass. By seizing on this point, therefore. Lord Selkirk had possession of the key of their
whole trade, and was enabled to permit or refuse the transit of their goods as he saw fit
For whatever purpose, therefore, he obtained his two commissions of the peace in Canada,
the expedition simply resolved itself into a continuation of the attempt to destroy the
North- West Company of Canada, the rivals in trade of the Hudson's Bay Company -, for,
however desirable it might be to arrest and bring to trial all parties implicated on either
side in the death of Governor Semple, there could be no excuse for seizing the persons of
those gentlemen- who were known not to have been at the time within hundreds of miles
of the scene of that catastrophe, merely because they were partners in the North- West
Company, nor, even if there were cause for their arrest, did that justify the taking pos-
session of their property without the sanction or the form of law.**"

The object of entering upon this brief record is, to point out that all this occurred at
Fort WiUiamy on the shores of Lake Superior, within what the Hudson's Bay Company,
by their map and statement of " rights," now admit to be within the boundaries of Can-
ada. And thus it will be seen that, while the pretension of extending the privileges of
the Charter beyond the *' coasts and confines " of the Bay to the western territories of
Canada was a mere invention of that period, to further their own ends and to destroy the
rival Company of Canada, they were as ready to employ force at Fort William as in the
Valley of the Bed River.

in further proof that the transactions at Fort William were openly done in violation

• " From these Documents it appears, that the Earl of Selkirk, acting in his own cause, aided by an
annad force, has not only made the Fartneis of the North-West Company prisoners, but has also seued
their Pinters and Property.**— Lieut -Gov. Gore to Earl Bathurst, 9th Sept, 1816.



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18 MEMORANDUM OF THE HON. JOSEPH CAUCHON» 1857.



of Canadian law and in defiance of Canadian axithority, it is only neoessarj to add that
when Lord Selkirk's proceedings became known, warrants were issued for his apprehen-
sion and a party of constables sent to arrest him, and that refusing obedience to the laws
of this country, and presuming upon the force for the moment at his command in that re-
mote locality (remote then as regards the time it took to reach it, though at our doors
to-day), he caused the constables to be taken prisoners themselves, and treated the Deputy
Sheriff of the Western District, who afterwards made the attempt, in like manner.

This war between the Companies, though injurious to both, failed to exterminate
either, and the final result was a compromise by which they entered into partnership ;
and thus the trade has been carried on since, under the name indeed of the Hudson's
Bay Company, but expreeely in conjunction with the North-West Company of Canada, so
that Canada can at no time be said to have been out of possession of her western terri-
tories within the limits occupied by the French at the time of the conquest, nor out of
possession of the '^ Indian Territories " beyond, which, after the conquest, were first dis-
covered by the Canadian traders, and for which the License of exclusive trade was granted
to the Partners of the North- West Company of Canada, as such, in conjunction with
the Hudson's Bay Company.

It is true that after the amalgamation of the Companies and the License of exclusive
trade granted in 1821, competition became illegal in the " Indian Territories " beyond the
boundaries of Canada, as indeed it had always proved impracticable on the part of minor
traders either within or beyond the remote parts of the province, small traders being
altogether unable to cope with the two great Companies. It is true also that after they,
the two great Companies, had been for some time united, and when by the policy pursued
by them the trade had ceased tp be beneficial to, and had been lost sight of in, Canada,
an arrangement was effected between the two sections of the United Company by which
the name of the North-West Company was dropped entirely, the lease relinquished, and
a new one obtained in which the name of the Hudson's Bay Company alone appeared ;
but it must be observed that this new arrangement was accepted and entered into by the
British Government by consent of the partners representing the original Canadian Com-
pany, for although this Lease or License only affects the Indian Territories beyond the
actual boundaries of Canada, it can scarcely be supposed that the Government would
have agreed to give it, had Canadian traders still remained in the field. The policy of
the Companies when joined, has however been so far successful that they have managed
heretofore to secure themselves against opposition, many no doubt being imposed upon by
the pretentious but erroneous construction put upon their Charter, and the public in
general kept in the dark respecting a trade which, though partly carried on in the very
centre of Canada and within range of steam navigation, is so managed as to pass by a
circuitous route, by means of the primitive canoe and over portages on men's backs, away
hundreds of miles into the interior and round by Hudson's Bay.

But the time has come when Canada must assert her rights, not only from that
necessity for expansion which her growing population and trade require, but also because
if she does not now begin to provide for the future by opening up her remote territories
to colonization, and securing the loyalty and attachment of the people by extending to
them the rights and privileges of her laws and institutions, there is a moral certainty that
a power far more formidable than the Hudson's Bay Company must in a very short period
acquire the actual possession of those countries.

This brief chronological sketch of the history of the Company and of the circum-
stances connected therewith, must sufficiently show that they have acquired no territorial
grant whatever under either of the two conditions stated, to which their Charter was
subject ; first as regards the countries then known upon the *' coasts and confines " of
Hudson's Bay, because they were already in the possession of the subjects of another
Christian Prince, and were therefore excluded from the grant in terms of the Charter
itself ; and second, as regards discoveries, because when they first penetrated into the in-
terior, 104 years after the date of their Charter, they found the country and a long-estab-
lished trade in the hands of others — unless indeed as regards some discoveries to the north,
which are of no special importance to Canada, such as the Copper Mine Biver, discovered
by Heame under the auspices of the Company.



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MEMORANDUM OF THE HON. JOSEPH CAUCHON, 1857. 19



Under the first head the most sanguine advocate of the Company, upon a full inves-
tigation of all the circumstances, could only urge on their behalf a claim to certain points,
or stations, on the sea coasts of the -bay, and even to these a doubtful and disputed title.

The high legal authorities that may be quoted in favour of the claims of the Com-
pany cannot be held as of weight against the conclusions inevitably resulting from a fuller
investigation of the subject, inasmuch as they are merely opinions upon the cases iub-
miUed, The latest opinion given upon the subject is that of Sir John Jervis and Sir John
Bomilly in their letter to Earl Grey, of January, 1850, in which they gave it as their
opinion, " That the rights claimed by the Company do properly belong to them." Before
arriving at this conclusion, however, these learned gentlemen are careful to specify pre-
cisely what papers they had then under consideration, and to which alone they refer as
the basis of their opinion. These papers were simply the ^' Statement of BiglUs and the
Mapy' submitted by the chairman of the Company, Sir J. H. Felly.

This opinion, therefore, can only bo taken as aJirmative of the power of the King to
grant such rights and privileges as the Charter specifies, and that the Charter would
cover all the territory claimed ; but the question of whether that territory belonged to
the King to grant was not before them. With respect to the territory which the word-
ing of the Charter would cover, it would be difficult to say what it would not cover ; and
with respect to the validity of the grant of such powers, it is to be remarked that very
high authorities have given a directly opposite opinion; and it may be asked why, if the
Charter was valid, did the Company procure an Act of Parliament to confirm it in 1690,
and why, when that Act expired, which was limited to seven years, did they again ask for
an Act to continue it ? It is worthy of notice, too, that the seven years' Act was passed
during war with France, when it appears that P irliament did not scruple to grant or con-
firm a Charter for countries to which Great Britain had, at best, but a disputed title, based
only upon a very partial, and even during peace, a very precarious possession ; nor is it
less worthy of remark, that when Parliament refused to re-grant or continue the Charter,
the Treaty of Ryswick had intervened, by which the rights of France were recognized,
and those of Great Britain left, at most, in doubt, and when, therefore, any such Act
w6uld have been a direct violation of an international Treaty.

Another opinion appears to have been obtained by the Hudson's Bay Company at an
earlier period, from Romilly, Holroyd, Cruise, Scarlett and Bell, equally upon the case
drawn and without reference to the real points at issue, merely affirming that the grant
of the soil contained in the Charter is good, and that it will include all the countries the
waters of which flow into Hudson's Bay. This opinion is, therefore, like the other, of no
weight on questions which were not before the learned gentleman who gave it.

Opposite opinions were obtained at an earlier period by the North-West Company,
viz., in 1804, from Sir V. Gibbs and Mr. Bearcroft. These opinions, however, although
they touched the fundamental principles of the Charter, had no reference to the interior
countries on the Red River, Lake Winnipeg, the Saskatchewan, etc., for the simple reason
tiiat no opinion was asked on a case which only arose six or seven years later, when Lord
Selkirk came on the field.

The position of the question at this period was that the North-West Company, being
in {y)88ession not only of all the country formerly possessed by the Canadian-French in that
direction, but also of the country first discovered by themselves, to the north-west of the
Churchill River, came to the conclusion that their trade could be more conveniently car-
ried on with these more remote parts through Hudson's Bay than through Canada. The
question they submitted, therefore, was solely in regard to the validity of the Charter in
respect of the navigation, trade, and fisheries of the Bay itself. The North-West Com-
pany as little dreamt of asking an opinion respecting the legality of their trade in the
interior as the Hudson's Bay Company thought, at that period, of attempting its forcible
restraint. In the case put it is to be remarked that no reference is made to the early
possessions of the French on the coasts of the Bay, and consequent possession of the Bay
itself in communicating therewith, and yet, and even without this, these opinions are
entirely adverse to the exclusive privileges claimed under the Charter.

After the difficulties occasioned by the more recent assumption of power in virtue of
the Charter to expel the North-West Company from the Red River country, under the



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20 MEMORANDUM OF THE HON. JOSEPH CAUCflON, 1857.



auspices of Lord Selkirk, had become serious, another opinion was obtained by that Com-
pany in 1816, from Sir Arthur Pigott, Sergeant Spankie and Lord Brougham. This
opinion must be held to be more valuable than those obtained by the Hudson's Bay Com-
pany, inasmuch as it enters more into the merits of the case, and is therefore more
explicit as to the real views of the learned counsel on the subject submitted to them,
whereas the opposite opinions are such as the gentlemen who gave them would be at
liberty to ignore upon a fuller submission of the case, without incurring a charge of incon-
sistency.

The opinion under consideration is very decided on the point that the Red River and
Saskatchewan countries are not within the limits of the Charter, even upon the merits of
the description contained in the Charter itself, apart from the question of prior possession
by another State. The question of prior occupation of these localities by the French is
indeed lightly touched upo;i, though the opinion, as above, is definitely given without it ;
but the rights of Canada now for the iirst time fully discussed, based on prior dis-
covery, at least of the whole of the interior, prior occupation on the shores of the Bay itself,
and international treaties, do not appear to have ever been pronounced upon by any of those
high legal authorities who have heretofore been consulted, because no such case has ever



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 6 of 86)