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 71 of 86)
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to Provide for the Extension of the Boundaries of the Province of Manitoba," the Legis-
lature of that Province hath consented to the increase of the same by the alteration of
its limits, as hereinafter enacted, upon the terms and conditions hereinafter expressed :
Therefore Her Majesty, by and with the advice and consent of the Senate and House of
Commons of Canada, enacts as follows : —

1. The Province of Manitoba shall be increased as hereinafter defined, that is to say,
so that the boundaries thereof shall be as follows : — '' C6mm'encing at the intersection of
the international boundary dividing Canada from the United States of America by the
centre of the road allowance between the twenty-ninth and thirtieth ranges of town-
ships lying west of the first principal meridian in the system of Dominion land surveys ;
thence northeHy, following upon the said centre of the said road allowance as the same
is or may hereafter be located, defining the said range line on the ground across town-
ships one to forty-four, t both inclusive, to the intersection of the said centre of the said
road allowance by the centre of the road allowance on the twelfth base line in the said
system of Dominion land surveys; thence easterly along the said centre of the road
allowance on the twelfth' base line, following the same to its intersection by the easterly
limit of the District of Keewatin, as defined by the^Act thirty-ninth Victoria, chapter
twenty-one, that is to say, to a point where the said centre of the road allowance on tiie
twelfth base line would be intersected by a line drawn due north from where the westeriy
boundary of the Province of Ontario intersects the aforesaid international boundary
line dividing Canada from the United States of America ; thence due south, following
upon the said line to the international boundary aforesaid ; and thence westerly, follow-
ing upon the said international boundary line dividing Canada from the United States
of America, to the place of beginning," and all the land embraced by the said description
not now within the Province of Manitoba shall, from and after the passing of this Act,
be added thereto, and the whole shall,*from and after the said date, form and be the
Province of Manitoba.

2. The terms and conditions upon which such increase is made are as follows :

(a) All the enactments and provisions of all the Acts of the Parliament of Canada

which have, since the creation of the Province of Manitoba, been extended into and made

to apply to the said Province, shall extend and apply to the territory by this Act added

thereto, as fully and effectually as if the same had originally formed part of the Province

*StatB. Can., 44 Vic,, Cap. 14. Assented to 2l8t March, 1881.

ttln the Manitoba Act above recited, the line is described as being drawn *' across townships one to
forty-six." See the Act, ante, p. 407.— G. E. L.]



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INTIMATION OF DESIGN TO INCLUDE RAT PORTAGE WITHIN MANITOBA, 1881. 413



and the boundaries thereof had, in the first instance, been fixed and defined as is done by
this Act — subject, however, to the provisions of section three of this Act.

(h) The said increased limit and the territory thereby added to the Province of
Manitoba shall be subject to all such provisions as may have been or shall hereafter be
enacted, respecting the Canadian Pacific Eailway and the lands to be granted in aid
thereof.

3. AH laws and ordinances in force in the territory hereby added to the Province of
Manitoba at the time of the coming into force of this Act, and all courts of civil and
cnnunal jurisdiction, and all legal commissions, powers and authorities, and all officers,
judicial, administrative and ministerial, existing therein at the time of the coming into
force of this Act, shall continue therein as if such territory had not been added to the
said Province ; subject, nevertheless, with respect to matters within the legislative
authority of the Legislature of the Province of Manitoba, to be repealed, abolished or
altered by the said Legislature.

4. lliis Act shall come into force only upon, from and after a day to be appointed
in that behalf by proclamation of the Governor published in the Canada Gazette,



An AcJT to CONTINUE IN FOROB FOR A LIMITED TIME THE ACT FORTY-THIRD VICTORIA,

CHAPTER THIRTY-SIX.*

Her Majesty, by and with the advice and consent of the Senate and House of Oom-
mons of Canada, enacts as follows : —

1. The Act passed in the forty-third year of Her Majesty's reign, chapter thirty-six,
and intituled " An Act respecting the Administration of Cnminal Justice in the Terri-
tory in dispute between the Governments of the Province of Ontario and of the Dominion
of Canada," shall continue in force until the end of the now next ensuing session of
Parliament.



The Undbr-Sbcretart of State to the Petitioners of Rat Portage, t

Ottawa, Ist April, 188L

Sir, — With reference to the petition, signed by you and others of the merchants and
business men of Rat Portage, praying that a court of civil jurisdiction may be established
at that place, I desite to acquaint you, for the information of the petitioners, that as Rat
Portage will shortly be included within the Province of Manitoba, when the Act extend-
ing the boundaries of that Province is brought into force (unless it be already within the
limits of Ontario), and as the administration of justice and the establishment of Provin-
cial Courts devolves upon the Provincial authorities, it would not be proper for this
QoTemment to take action upon their petition.

f I have the honour to be, Sir,

Your obedient servant,

Edouard J. Lanoevin,

Under-Secretary qf State.

* StatB. Can., 44 Vic, Cap. 15. Assented to 21st March, 1881. [An Act to conthrae in force the Act
in question for a still further period was passed in the session of the Dominion Parliament of 1882, but was
not reoeiTed in time to be inserted hi tills work. — G. E. L.]

tSess. Papers, Ont., 1882, No. 28.



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414 LEQTURE OF SIB FRANCIS HINCKS ON THE SUBJECT OF BOUNDABT AWilRD:



Mr. Lyon, Stipbmtdiart Maoistratb, to the Deputy Attornby-Gbnbbal.*

Eat Pobtaqe,

April 30th, 1881.
J. G. Scott, Bag.,

DejfnUy AttarMy-Qeneral,

Sir, — Enclosed you will find the copy of a letter from the Dominion Government in
answer to a petition sent by the people of Rat Portage, praying for a Ciyil Court to be
established.

I have the honour to be, Sir,

Your obedient servant,

W. D. Lyon, S.M.



LECTURE OP SIR FRANCIS HINCKS (ONE OF THE ARBITRATORS ) ON
THE NORTHERLY AND WESTERLY BOUNDARIES OF ONTARIO, AND
THE AWARD RELATING THERETO.t

Sir Francis Hinoks having been introduced to the meeting by the Chairman, the
Hon. Sir W. P. Howland, K.C.M.G., C.B., delivered the following lecture :—

Sir Wm. Howland, Ladibs and Gbntlbmbn, —

Before entering on the subject to which I propose to invite your attention this even-
ing, I must express to you the deep gratification which I felt on being invited, during
a recent visit, to address a Toronto audience after the lapse of so many years. Should
my life be spared for another twelve months, a period of fifty years will have elapsed
since, as a young man, I settled in the old capital of Upper Canada, then popukrlj
known as Little York, but within two years afterwards incorporated as the city of
Toronto. Ten years after my first settlement at York, I became a member of the Go?-
emment of United Canada, and was under the necessity of taking up my residence at
the capital, since which time, with the exception of about two years, when the sessions
of Parliament were held at Toronto, under the alternate system, I have been a compara-
tive stranger among you, although I have had frequent opportunities of seeing sevenl of
my old fellow-pioneers, and have had the gratification of being invariably met with a
friendly greeting, not only by my old friends, but by those with whom I had had differences
of opinion on what may now be properly termed dead issues.

Having several years ago entirely withdrawn from party connection, a political ad-
dress would be wholly repugnant to my feelings ; but circumstances seem to me to render
it desirable that the public should be better informed on a subject which is generally sup-
posed to be imperfectly understood, while it is due as well to my own character, as to
the memory of the late lamented Chief Justice Harrison, that a full explanation i^ould
be given of the grounds on which the Arbitrators appointed to determine the true boun-
daries of the Province of Ontario arrived at their decision. Such an explanation is, 1
think, likewise due to the Right Honourable Sir Edward Thornton, Her Majesty's Min-
ister at Washington, who was good enough, at the joint request of the Governments of
the Dominion and of Ontario, to act as third Arbitrator on the occasion referred ta
While it is no part of my duty to defend the action of the Dominion and Proyindal
Governments in agreeing to leave the disputed boundary of the Province of Ontario to be
determined by Arbitrators, I may remark that there are many precedents for such a

* 8688. Papers, Oat., 1882, Na 23.

t The Northerly and Westerly Boundaries of the Provinoe of Ontario, and the Award relating thereto,
as disoossed and explained by the Hon. Sir Francis Hincks, K.G.M.G., in his Pablic Leotore at the Edn-
oation Department, Toronto, May 6th, 188L Toronto : Printed by G. Blackett Robinson, 1881.



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REVIEW OF ADVERSE CRITIGISMS. 416



mode of settling oonflioting claims. It is fortunate that there is no danger of this ques-
tion, complicated though it is at present, leading to the fearful consequences which his-
tory, as well as our daily observation, teaches us to be the result of territorial disputes.
A very large proportion of the wars which have occurred during past centuries, and
▼hich have entailed such immense losses of blood and treasure, must be attributed to
quarrels regarding boundaries ; and in modem times the expediency of resorting to arbi-
tration as the best mode of settling such disputes, has been very generally admitted.

CRITICISMS OK THE AWARD.

In the case of the Ontario boundary arbitration in 1878, the unanimous award
made after a most careful and conscientious examination of the voluminous papers sub-
mitted to the Arbitrators, together with the cases of the learned counsel on both sides,
has been severely criticized, not only by the Select Committee of the House of Com-
mons in 1880, but by the leaders of the Dominion Government in the Senate and House
of Commons during the last session. It has been stated as an objection to the compe-
tency of the Arbitrators, that two of the three were not members of the legal profession,
Wt I have been unable to find any precedent in analagous cases for confinmg the choice
of arbitrators to lawyers. In one of the most recent cases, when arbitrators were ap-
pointed to determine the boundaries between Zululand and the Transvaal in South
Africa, there was one lawyer, the Attorney-General of the Cape, joined with a civilian,
and an, officer holding the rank of Lieutenant-Colonel. I own that I fail to discover the
value of special legal attainments in such a case ; and, moreover, there were before the
Arbitrators conflicting opinions given by eminent judges and lawyers. The greatest
judges are far from being infallible, and are themselves always desirous of the assistance
of counsel, whose duty is to submit every point of law, and every fact, in support of their
respective clients. Let me, for argument's sake, suppose that in a trial before a judge, a
claase in an Act of Parliament had a special bearing on the case in controversy, and that
the counsel, whose client would be benefited by that clause, were to fail to bring it to the
notice of the Court, and that the judgment afforded proof that this important clause had
not engaged the judge's attention, surely it would not be contended that, however emi-
nent the judge might be, his judgment ought to carry as much weight as that of a non-
professional arbitrator whose opinion had been formed after a. full consideration of cir-
cumstances, which had never been brought under the notice of the judge. I shall have
to make a practical application of this suppositious case to the disputed boundary of
Ontario on the south-west, and as bearing on the judgment of Chief Justice Sewell in the
Be Reinhardt case, which was concurred in by his colleagues. I must, before doing so,
notice as briefly as possible some statements, which appear to me to be a sufficient justifica-
tion of my placing on record the reasons which induced the Arbitrators to make the
award which is now the subject of controversy. During the session of Parliament held
in 1880, a Select Committee was appointed by the House of Commons to inquire into
and report upon all matters connected with the boundaries between the Province of
Ontario and the unorganized territories of the Dominion. The report, concurred in by
nine out of thirteen members of that Committee, declares that '* the award does not
declare the true boundaries of Ontario,'' adding, " it seems to your Committee to be in-
consistent with any boundary line ever suggested or proposed subsequent to the Treaty
of Utrecht." One of the principal witnesses, Mr. William McD. Dawson, a portion of
whose evidence is embodied in the report, stated that the Arbitrators had adopted a
boundary " which was not a possible one." Sir John Macdonald is reported in Hcmscurd
to have said : — " We have oidy to read the written statement of one of those Arbitrators,
Sir Francis Hincks, in which he admitted they did not settle the true boundary, to be
convinced." Sir Alexander Campbell was reported to have made substantially the same
statement in the Senate. It has seemed to me that such allegations as I have cited,
render it desirable that the public should be put in possession of the grounds, on which
the Arbitrators concurred in an award, which, although adverse to the claims of the
Ontario Government, was promptly accepted by it, and subsequently by the Provincial
li^lialature.



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416 LECTURE OF SIR FRANCIS HINCKS ON THE SUBJECT OF BOUNDARY AWARD:



SOUTH-WjEBSTERN BOUNDARY.

I shall first consider the South- Western Boundary. It is evident from the report of
the Select Committee, that its framer attached much greater weight to Oommisaons to
Governors as affecting boundaries, than the Arbitratora did. Commissions may be of
assistance in interpreting obscure language in an Act of Parliament, but where the mean-
ing of an Act is tree from doubt, it cannot be set aside by a Commission. The south-
western boundary of Ontafio depends on the construction of the Imperial Act of 1774,
on the effect of the subsequent treaty with the United States of 1783, and on the procla-
mation issued under the Act of 1791. It is important to consider the circumstances
under which the Act of 1774 was passed. In the year 1763 a treaty was concluded at
Paris, between England and France, which contained the following provision : " In
order to establish peace on solid and durable foundations, and to remove forever all
subject of dispute with regard to the limits of the British and French territories on the
continent of America, it is agreed that for the future the confines between the dominions
of His Britannic Majesty, and those of His Most Christian Majesty, in that part of the
world, shall be fixed irrevocably by a line drawn along the middle of the Hiver Missis-
sippi from its source to the River Iberville, and from thence by a line drawn along the
middle of that river and the lakes Maurepas and Pontchartrain to the sea ... . pro-
vided that the navigation of the Mississippi shall be equally free as well to the subjects
of Great Britain as to those of France in its whole breadth and length from its source to
the sea." The treaty from which I have just* quoted was conclud^ on the 10th Feb-
ruary, 1763, and on 7th October, 1763, a proclamation was issued erecting four new
Crovemments, one of which was Quebec, the western boundary of which was fixed at the
south end of Lake Nipiasing. In the year 1 774, in consequence of urgent representa-
tions, as to the necessity of establishing a settled government in territories where no
government of any kind existed, a bill was introduced by the Government of the day, the
object of which was cleisurly stated by Lord North in language which I shall quote. " It
is well known that settlers are in the habit of going to the interior parts from time to
time. Now. however undesirable, it is open to Parliament to consider whether it is fit
there should be no government in the country, or, on the contrary, separate and distinct
governments, or whether the scattered posts should be annexed to Canada. The House
of Lords have thought proper to annex them to Canada, but when we consider that there
must be some government, and that it is the desire of all those who trade from Canada
to those countries, that there should be some government, my opinion is that, if gentle-
men will weigh tl^ inconveniences of separate governments, they will think the least
inconvenient method is to annex those posts, though few in population, great in extent of
territory, rather than to leave them without government at all, or make them separate
ones. Sir, the annexation likewise is the result of the desire of the Canadians, and of
those who trade to those settlements, who think they cannot trade with safety as long as
they remain separate." Now, it must be borne in mind, that the principal posts in the
unorganized territories, when the Act of 1774 was passed, were situated on the River
Mississippi, and of course in British territory by the Treaty of 1763. The pretension of
the advocates of the due north line, which is the boundary claimed by the Dominion, is
that Parliament deliberately abandoned the natural boundary of the Mississippi, thereby
excluding from tb© benefit of the Act, the very persons for whom it was specially intended,
and that it adopted, without a single conceivable motive, a conventional line running due
north from the junction of the Ohio with the Mississippi It is well known that the Bill
was introduced in the House of Lords, in 1774, and that as sent down by that House to
the Commons the description was *' all the said territories, islands and countries, hereto-
fore a part of the territory of Canada in North America, extending southward to the
banks of the River Ohio, westward to the banks of the Mississippi, and northward to the
southern boundary of the territory granted to the Merchants Adventurers of England
trading to Hudson's Bay, and which said territories, islands and countries are not within
the limits of some other British Colony as allowed and confirmed by tlie Crown*" Now
it has never been pretended that there was any ambiguity in that description as to the
western boundary, but a discussion was raised in the Commons by Mr. Edmund Burke,



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INTKNTION OF THE ACT OF 1774. 417



then agent for the State of New York, who had donbts whether under the description
Canada might not encroaoh on territory on the north-east of that State, which had
•ctaaQy been, in dispute, and which by amicable agreement had been made over to New
York, reserving the rights of Canadian settlers in the disputed territory. The territory
on the Mississippi had never been in dispute during the protracted wars between the
British and French regarding boundaries in the Ohio valley.

IKTBNTION OF AOT OF 1774.

There is not the slightest reason to suppose that a single member of the House of
Commons desired to alter the natural boundary of the Mississippi, on the banks of which
were the principal settlements, for the inhabitants of which the Act was specially intended
to provide a government. Mr. Burke, as appears from a report of his remarks in a book
entitled '* The Cavendish Debates," insisted very strenuously on defining the boundaries
more precisely. I am not unaware that the framer of the report of the Commons Com-
mittee has, on the authority of Mr. Justice Johnson of Montreal, pronounced the Caven-
dish Debates as of no authority, but the Hon. Wm. McDougall has given most satis-
tmAary reasons for considering them a valuable contribtion to the history of the period.*
nere is however a letter in existence, addressed by Mr. Burke to the Legislature of
New Tork, in which he explains with great precision the object of his amendments, and
from which it is clear that it never was contemplated to interfere with the Mississippi
boondary. The change in the description of the boundary was made while the Hou£e
was in Committee on the Bill, four members, one of whom was Mr. Bui^e, having left the
House in Committee to arrange the new description. It is said *' the difference was
whether the tract of country not inhabited should belong to New Tork or Canada," and
most assuredly this difference could not possibly apply to territory on the Mississippi
Biver. 1 shail now cite the boundaries as finally agreed to by the House, and I request
your most particular attention to the first words, which seem to me to deserve mu<^
mote consideration than has been given to them by the advocates of the due north line,
from the confluence of the Ohio and Mississippi lUvers. " That all the territories, islands
and countries in North America, belonging to the Crown of Great Britain, bounded on
the south by a line from the Bay of Chaleurs, along the high lands which divide the
rivers that empty themselves into the Biver St. Lawrence from those which fall into the
sea, to a point in forty-five degrees of northern latitude on the eastern bank of the Biver
Connecticut, keeping the same latitude directly west through the Lake Champlain, until
in the same latitude it meets the Biver St. Lawrence, from thence up the eastern bank
of the said river to the Lake Ontario, thence through the Lake Ontario and the river
commonly called the Niagara, and thence along by the eastern and south-eastern bank of
Lake Erie, following the said bank until the same shall be intersected by the northern
boundary granted by the Charter of the Province of Pennsylvania, in case the same shall
be so intersected, and from thence along the said northern and western boundaries of the
said Province until the said western boundary strike the Ohio ; but in case the said
bank of the said lake shall not be found to be so intersected, then following the said
bank until it shall arrive at that point of the said bank which shall be nearest to the
north-western angle of the said Province of Pennsylvania, and thence by a right line to
the said north-western angle of the said Province, and thence along the western boundary
of the said Province until it strike the Biver Ohio, and along the bank of the said river
wetBtward to the banks of the Mississippi, and northward to the southern boundary of
the territory granted to the Merchants Adventurers of England trading to Hudson's
Bay." Tou will not fail to observe that the intention of the framers of the amendment,
as of the original Bill, was to include all t(^e territories belonging to the Crown of Great

* [The Report of the Gavendieh Debates niioee aathentidty has been qnestioned by Mr. Jnstice John-
son and Mr. S. J. Dawson, was published in 1839, the original MS., which is in the Briti^ Mnseom,
hftvinff been disoovered on^ in the eaily part of that year. In 1837. two years before this discovery,
another and ind^iendent aoooont of the proceedings upon the Quebec Bill of 1774, which was the subject
of these Debates, was published in the American Archives ; which account is in perfect aooord with the
Owendish Repott. (American Archives, vol. 1, pub. by authority of Congress.)— 6. £. L.]

27



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418 LECTURE OF SIR F. HINCKS ON THE SUBJECT OF THE BOUNDARY AWARD :



Britain in the newly constituted Province, ^diich were not already included in the old
Provinces. You will notice how precise the definition is untU the Ohio is readrad, after
which there was no territory regarding which there could be a diq>ute. Yon will like-
wise bear in mind that the last clause of the description is precisely the same as in the
original Bill, viz., *' Westward to the banks of the Mississippi and northward to the
southern boundary of the territory granted to the Merchants Adventurers of Engiand
trading to Hudson's Bay," and that in that Bill ** northward ** could not have had the
meaning which has been claimed for it, and which is that it must necessarily mean " dne



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 71 of 86)