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 73 of 86)
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territory claimed by the Hudson's Bay Company to the height of land. As a matter of
fact, the boundaries under the Treaty of Utrecht were to have been settled by Commis-
saries, who never acted in the matter, and, fifty years later, Great Britain acquired the
French title. Chief Justice Draper furnished a number of extracts from documents bearing
on the question of title, on which he observed : " They certainly show that neither after
the Treaty of Ryswick, nor that of Utrecht, when they stated the boundaries they were
either willing to submit to or were desirous of obtaining, nor yet in 1750, when they set
forth what they thought themselves entitled to claim under their charter, did they ever
think of asserting a right to all the countries the waters of which flow into Hudson's Bay.
Their claim to lands lying both northward and westward of the Bay is entirely at variance
with any such idea."

OBJECTIONS TO AWARD ANSWSRBD.

I could not treat the important subject under your consideration with entire satis^tion
if I failed to notice the numerous criticisms to which the award of the Arbitrators has been
subjected. I shall dismiss very briefly that class that I believe to be numerically the most
formidable, whose opposition to the award is based, not on its merits, but on the extent of
territory to which Ontario is entitled under it. The decision of the Arbitrators had scarcely
been announced in 1878, when an anonymous writer, over the signature " Britannicus,"
pablished several letters on the subject, in which he contended that the award was " open
to grave objections," the first being that "the region is worth millions." He was told in
an article, diat I contributed to the press, that " the Arbitrators were appointed to decide
on boundary lines, on principles of law and justice, and ought not to have been influenced
by the extent or the value of the territory in dispute."

CHIEF JUSTICE HARRISON ON AWARD.

I shall offer no apology for citing a few extracts from letters of the late Chief Justice
Harrison addressed to me in August, 1878, on the subject of the criticisms made on the



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4?4 LECTURE OF SIR F. HINCKS ON THE SUBJECT OF THE BOUNDARY AWARD :



award : *' I feel.satiiified that you can give an amiwer to all and sundry who attack tka
award. I believe there never was an award made in a matter of snch importance that is
so little open to honest criticism. * * * Singular to say, since the award was nMidey
I have received from Judge McDonald, of Guelph, an old lithographed map, without name
or date, but evidently made long before the Constitutional Act of 1791, which indioates
the northern boundary of Upper Canada to be on the precise line where we have placed
it ^ * * I also received the Oaz&Us (Mon^^) of the 15th August, containing the
second letter of ' Britannicus.' These attacks, wiUi the exception of the last, are puerile,
a^d the last is a perfect absurdity. Assume that all which ^ Britannicus ' aays about the '
territory awarded to Ontario, is true, how does that affect the validity of the award % Our
duty was judicial, we had little or nothing to do with questions o£ poUoy. By the light
of Uie evidence adduced, and the arguments propounded, we unanimously decided . upon
certain boundaries, for the north and west of the Province. Whether the land thus giveA
to the Province was full of diamonds, or only of worthless rocks, was no business of owes.
The surveyor who finds the boundaries of two lota of land is nevtt* influenced by the con-
sideration that one piece is intrinsically more valuable than the other. None of the aUe
counsel who addressed us ventured so i^r to take leavd of his senses as to attempt to take
such untenable ground."

JEALOUSY OF OHTARIO.

*' Britannicus'' is a representative of the class of whose opinions Mr. Royal, M.P., is
one of the latest exponents. He was a member of the Select Committee of 1880, aad
while Mr. S. J. Dawson is the avowed advocate of the formation into a new Province
of a large portion of the Province of Ontario, Mr. Royal contends that Manitoba should
obtain ports on Lake Superior and Hudson's Bay. The masses outside of Ontario take
no other interest in the subject than to oppose the extension of her territory, without the
lesist reference to her legal rights. I may notice in this connection an extraordinary
assertion in Mr. W. McB. Dawson's evidence, to the effect that Quebec would not have
CQUsented to enter Confederation had the legal boundaries of Ontario been believed to be,
where they were placed by the award of the Arbitrators, or, perhaps I should rather say,
where the witness himself stated them to be in his report in 1857. There is a very simple
answer to Mr. McB. Dawson, and all who share his opinions. The boundaries of Ontario
depend on the construction placed on the Statute of 1774, the Treaty of Peace of 1783,
and the ProclaiQation in conformity with the Statute of 1 79 1. The claim of the Dominion,
as well as that of Ontario, is based on the construction of the law. Mr. McD. Dawson's
recent pretension, which I need scarcely remind you is at complete variance with the
former assertions both of himself and of his brother, is based on the omission to define
the western boundaries in the Commissions of the Earl of Durham in 1838, and in subse-
quent Commissions, which, so far as I have any knowledge, is not deemed to have any
legal effect by any of the disputants on the boundary question with the exception of the
Messrs. Dawson.*

CLAIMS TO MOBB EXTSKDBD BOUKDABIBS.

Having noticed those opponents of the award, who do not pretend to appeal to the
law in support of their pretensions, I shall advert very briefly to the views of those who
contend that the Proclamation issued under the Statute of 1791 extended the territories
of Ontario beyond the boundaries of the Province of Quebec as established by the Statute
of 1774. The Act of 1791 declares that a message had been sent to both Houses of FUv
liament, signifying the royal intention to divide ^e Province of Quebec, and it then makss
provision for the future government of the two Provinces to be created out of the oU
Province of Quebea It is true that the Proclamation uses the term Canada instead of
Quebec. I have already stated that although a Oovemor's Commission cannot be invoked
in opposition to an Act of Parliament, it may fairly be referred to when the language if
at all ambiguous. It seems to me that the Proclamation of 1791 could not be construed
to give an extension of territory noi contemplated by the Act, but the first CommissioA



• [See, as to this pretension, note *, p. 294, an$f. — G. K. L]

i



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"TirfeBdtriirDARYLlNEOF BTTTDSON'S BAY." 446



iflraed under it to Lard Dorehestdr, deatiiribee the territory comprised in TTppor Canada to
be all lying to the westward of the line from Lake Temiscamingue to the boundary of
Hudmrn's Bay, •* as were part of our said Province of Quebec." The Arbitrators con-
cuired so far with the judgment of the Lower Oanada Court in 1818, as to confine ^e
western boundary to that established by the Act of 1774. I have now to refer to a mild
critknsm, which I notice merely to draw attention to what I consider a very reasonable
view of the south-western boundary. ShorUy after the publication of the award, a writer
in the Monetary Time$y of Toronto, criticised the decision to adopt the north-western
angle of the lAke of the Woods as the south-western boundary, on the ground that the
true bobndary was a point on the meridian of the source of the Mississippi, due west from
the international boundary. The writer took precisely the same view as the Arbitrators
.-4hat under the Statute of 1774 iAte western boundary was the Mississippi River, and it
must be obvious that such was the view of the diplomatists who negotiated the IVeaty of
Peaee between Great Britain and the United States. Moreover, he admitted that the
award '* cannot be impeached as inequitable,'' although he gave it as his own opinion that the
Arbitrators had '* stumbled " on a decision which, << if the work had to be done over again,
we fail to aee in what respects it ootild be materially improved." I admit that there is
much te be said in favour of the view taken by the writer in the Monetary Timee^ whioh
I believe was likewise the view of the Hon. Wm. McDougall, who has studied the ques-
tion very carefully, and who has pronounced himself 'strongly in favour of the Mississippi
having been the western boundaiy' of the Province of Quebec, under the Act of 1774.
Praetically it is a matter of no importence whether the south-westerly boundary is at the
international boundary or at a point, a few miles farther west, that would be intersected
by a line on the meridian of the source of the Missieudppi

flON. WM. H^DOUOALL's OPINION.

I have noticed Mr. MoDougall's opinion on the south-westerly boundaryv and it may
be convenient te advert here te his criticism on the award as to the north-easterly
boundary. Li his speech on the 'Subject in the House of Commons in 1880, Mr.
McDougall steted that he had become satisfied that the words ''boundary line of Hudson's
Bay" had been a clerical error of the Attomey-Ceneral, but as he did not state the
grounds for that opinion, I am unable to judge whether they are entitled to any weight.
It appears, however, from his evidence before the Committee, that when in England in the
year 1869, he took a great deal of trotible to ascertain whether the description was a clerical
error. He searched the records of the Colonial Office without success, and then went to
the Privy Council Office where he procured the Attorney-Cenerars fiat, which, he said, he
opened '' with a good deal of anxiety," only to find the same language as in the original
Proclamation, '< to the boundary line of Hudson's Bay." He still, however, clings to his
opinion t^t ''it was an error of the Attomey-Ceneral, who, being human in those days,
as in these, was liable to err." May it not be possible that Mr. McDougall himself has
arred in his conclusion that an erifor was committed by others ¥ The Arbitrators, I need
icaroely add, did not feel themselves justified in awuming that the Proclamation issued in
oonfoitnity with an Act of Parliament contained an important error. Mr. McDougall
likewise stated that the Arbitrators " had found in some communications between the
Imperial Government and their officers in this country, the words ' to the boundary line
of Hudson's Bay.'" This seems to me an extraordinary mode of describing a Proclamation
issued on ihe authority of the King in Council for the division of the Province of Quebec
in accordance with an Act of Parliament. Mr. Mcl>ougall took no notice of the Com-
missionfl in which the shore of Hudson's Bay was - declared the boundary, nor does he
aeem to have recollected that on every occasion when the territorial boundary was meant
the description was invariably " the territory belonging to the Merchante Adventurers
trading to Hudson's Bay." Mr. McDougall has acknowledged that the Hudson's Bay
Company had at one time agreed to accept the Albany River as the southern boundary
of <£eir territory ; and although it was never agreed to by the high contracting parties,
still the fact that the Hudson's Bay Company at that period made no claim to any country
south of the Albany Bivor is confirinatory of the correctness of ihe award.



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426 L£eruR£ of sib f. hincks on the subject of the boundabt awabd :



MR. W. M'D. DAWBON's OPIKION.

I shall now proceed to the consideration of another view of the boundary qaeation.
In the report of the Select Ck>mmittee of 1880, the evidence of Mr. W. McD. Dawaoa is
prominently broo^t forward as that of the person ** who was ^e first to investigate the
ease on the part of Canada, in 1857, than whom no one should have a more thoroagh
knowledge of the subject.'' Mr. McD. Dawson himself states in his evidence tbat he
wrote a report in 1857 ior tiie Oommissioner of drown Lands, which, he adds ^' has been
the cause of all the controversy that has since taken place in relation thereta" He gave
an interesting account of the circumstances under which he wrote this well-known
report, having assured Mr. Cauchon, who was th^i his chie^ <' that there was no aathority
whatever for such a boundary " as the northern watershed of the Si. Lawrence.

I may state, before noticing Mr. Dawson's evidence further, that it ought to be
carefully read together with his own report of 1857, and I shall be much surprised if
any different opinion from my own is arrived at, and ihat» I must acknowledge, is that it
is a massof inconsistency. Mr. Dawson infcHrmed the Cknnmittee that *' the case presented
by the Dominion was no case at all," that the learned Counsel, '* after a great deal <^
desultory reading, failed to seize the true facte of history bearing on it," and he then
referred to the prevailing ignorance of the subject, which he illustrated by a quotation
from the evidence of his esteemed friend, Col. Dennis, Deputy Minister of the Interior,
which I shall have to notice later.

OHAAQB AGAINST DOMINION 00UN8BL.

Mr. Dawson has not only made the very serious charge against the learned counsel
for the Dominion, which I have just cited, but in his answer to a question whether
he had himself been consulted, he declared that ** it very often seems to be the habit of
Governments not to consult those who know most about the case that has to be dealt
with." I should feel that an apology was due from me to the learned counsel for the
P^miinion, Mr. MacMahon, Q.C., of Ontario, and Mr. Monk, of Montreal, for noticing
such a charge, were it not that it enables me to define clearly Mr. W. McD. Dawson's
peculiar position as to this question. It will not, I presume, be denied by a single
member of the legal profession, or indeed by anyone else, that the duty of the learned
counsel for the Dominion was to advocate the claim of the Government which they repre-
sented, to the utmost extent of their ability. The Dominion claim which was fonnallj
made in March, 1872, was to a boundary on the west on the meridian due north from
the confluence of the Ohio and Mississippi Elvers, and on the north, to the height of land
dividing the waters which flow into Hudson's Bay, from those emptying into the great
lakes. Such was the Dominion claim made in 1872, in the form of a draft of instructions
for a Commission to be appointed to survey and locate the boundaries. If the Dominion
counsel had neglected to support the pretension, which they were retained to defend,
they would of course be liable to censure, but it has never been pretended by any one,
until very recently by Sir John A. Macdonald, that they failed from want of zeaL I am
sure that the Arbitrators would have unanimously borne testimony to their exertions in
support of the boundaries, which they were instructed to contend for. But then they did
not consult Mr. W. McD. Dawson. Now it is quite true that is a very wide divergence
between Mr. Dawson's opinions in 1857 and in 1880. Most assuredly no lawyer who
had read Mr. Dawson's report of 1857, woidd have called on him to support the Dominion
claim, and if the learned counsel could have made a forecast of Mr. McD. Dawson's
evidence in 1880, he was the last person to whom they would have applied for aid in
support of their case. An extract or two from Mr. McD. Dawson's evidence will suffice.
He said, " I think, therefore, that in commencing their description at the shore of Hud-
son's Bay, the Arbitrators were conrect" Then having referred to Lord Durham's
Commission in 1838, which only defined the boundary into Lake Superior, Mr. Dawson
states in his evidence : " From that date the Province of Upper Canada no longer sub-
sisted as a divisional part of ihe old Province of Quebec." The Messrs. Dawson avow-
that they hold the opinion that the language in the Commission of a Governor can



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REPLY TO ADVERSE CRITICISMS, 427



supersede an Act of Parliament, although in the report it is said, ** it may be remarked
that the judges who appeared before your Committee seemed to be strongly of the
opinion that the boundaries of provinces with constituted governments could not be
altered by Oommisdons to Governors or Proclamations.'^ I refer to Mr. Dawson's opinion
at present, merely to demonstrate the impossibility of counsel employed to advocate the
Dominion claim, being guided by his ^vice, valuable as he himself pronounced it to be.
Let me suggest a case. Had the Government of Mr. Mackenzie, in 1878, instructed the
learned counsel which it employed, to abandon altogether the pretension of Sir John
Maodonald in 1872, and to adopt the Dawson theory, if I may so term it, that the true
western boundary was to be determined by the Commission to Lord Durham in 1838, as
terminating at the east end of Lake Supericnr,* and had the decimon been precisely what
it was, as it most assuredly would have been, what, I ask, would have been the conse-
quence t Why, from one end of the Dominion to the other it would have been proclaimed
that the Government of Mr. Mackenzie had deliberately sacrificed the rights of the
Dominion to the Province of Ontario. Between those who contend for the* due north
line, and for the Mississippi boui;idary, there is at least one principle held in common.
Both profess to be governed by the Statute of 1774, and to claim the boundary prescribed
by that Act. They differ as to the interpretation of the Act, but they acknowledge it as
their guide. The Messrs. Dawson repudiatait altogether, and claim that the Province
of Canada had been deprived, by virtue of the language of a Commission, of territory
over whidi it had exercised jurisdiction during many years. I feel assured that on one
point there can be no difference of opinion, and that is, that Mr. Mackenzie's Government
acted wisely in instructing their counsel to maintain the Dominion Claim precisely as it
had been put forward by the Government of Sir John Maodonald. Even if Mr. Dawson's
view of the question were as sound, as I believe it to be the reverse, it would have been
most improper for counsel to have entertained it. Their duty was to defend the Dominion
claim, not tJiat of the Messrs. Davrson ; and they performed it faithfully.

MR. WM. M*D. DAWSON's INCONSISTENCY.

In his report in 1857, Mr. Dawson had taken the inost extreme view of the claim
of Ontario, then part of United Canada, and he felt it necessary to endeavour to recondle
that opinion with the one which he subsequently adopted in 1880. He declares in his
last evidence : '* I claimed these countries as the birthright of the people of United
Canada," but he soon after admitted that '^ the claim put forward by me would have
inured, if properly and efficiently maintained, to the benefit of Upper Canada, but that
was not a point of special importance at the time. We were one Province, under one
Government and one Legislature, and every acre of those vast regions was as much the
property of the one as the other portion of the United Provinces." This is a specimen of
Mr. McD. Dawson's mode of reasoning. The claim was eitiier in accordance with the
Act of 1774, or it was without foundation. In 17^1, Mr. Dawson must admit, that all
the territory in the old Province of Quebec, which was not comprised in Lower Canada,
became part of Upper Canada. The disputed territory, as I will call it for the sake of
convenience, was, of course, part of the United Province, and when the Provinces were
again separated, Ontario retained the precise boundaries of Upper Canada. To do the
Dominion Government justice, they have never pretended that Ontario was not entitled
to her true boundaries, but have merely disputed what those boundaries really were. Mr.
Dawson asserts that the decision of the Arbitrators "has no basis whatever of history or
&ct to sustain it," and he then gives it as his opinion that they had " one of three things
open to them to declare," viz.: 1st, "That Ontario embraced the whole North-West
Territory under the Proclamation of 1791, which I have just dismissed as untenable.'^
The Arbitrators dismissed it likewise, although Mr. McD. Dawson's report of 1857 was
G&loulated to induce them to adopt that boundary. 2nd, " That it was bounded by the
line prescribed by the Quebec Act of 1774." That was precisely what the Arbitrators
did deci'le, although the precise boundary was necessarily governed by the terms of the

♦ [See the note *, p. 294 anttf already referred to.— -G. E. L.l

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



treaties between Great Britain and the United States, negotiated daring the intervaL
3rd, ** That a more recent definition, which they seemed to hare intended to adopt in
part, should prevail." Mr. Dawson is completely mistaken if he imagines that the north-
-eastern boundary was adopted on the ground of the language in the Commissions of Lord
Durham and of other Oovernors. The Proclamation issued under the authority of the
Statute of 1791, and of an Order in Oouncil, was the ground of the decision, although the
Commissions were held to be corroborative of language not quite so clear as might have
been wished. It appears, then, that although Mr. W. McD. Dawson stated in his
evidence that the decision of the Arbitrators ^* had no basis whatever of history or fact
to sustain it," the south-western boundary was determined on one of the three grounds
which he himself stated in his evidence it was " open to them to declare," vis. : *' that it
was bounded by the line prescribed by the Queb^ Act in 1774," while, as regards the
north-eastern boundary, his own language in his evidence is : — ** I think, therefore, that
in commencing their description at the shores of Hudson's Bay, the Arbitrators were
correct." I think that it will be generally admitted that the evidence of Mr. W. McD.
Dawson has no weight whatever, and I shall therefore proceed to consider the course
which the Dominion Government has adopted with reference to this boundary dispute.

POLIOT OF DOMINION OOVBRNMBNT.

It will, I presume, be at once admitted that the Province of Ontario is entitled to
precisely the same territory west of the Quebec boundary line to which united Canada
was entitled prior to Confederation. I have already referred to Mr. Cauchon's report of
1857, which Mr. McD. Dawson claims as his own, and which is published as his in the
Appendix to the Report of the Select Committee of 1880. That report, which was adopted
by the Government of the day, concludes a long historical statement in the following
words : — " This brief chronological sketch of the history of the Company, and of
the circumstances connected therewith, must sufficiently show that they have acquired
nq territorial ^ grant whatever under either of the two conditions to which their
Charter was subject : fbrst, as regards the countries then known upon * the coasts and
confines ' of Hudson's Bay, because they were already in possession of another ChristiaiL
prince, and were, therefore, excluded from the grant in terms of the Charter itself ; and
second, as regards discoveries, because when they first pencftrated into the interior, one
hundred and four years after the date of their Charter, they found the country, and a long-
established trade, in the hands of others, unless indeed as regards some discoveries to the
north, which are of no special importance to Canada." In his evidence before a committee
in 1857, Mr. McD. D%wson staled that for ^'the boundary designated for us by the
Hudson's Bay Company, viz., the water-shed of the St. Lawrence, there is no earthly
authority except themselves." Mr. Dawson's view, which gave Canada, now represented
by Ontario, much more territory than, was given to it by the Arbitrators, was deliberately
adopted by the Government of the day. On the 16th January, 1869, a letter was
addressed to the Colonial Department by the late Sir George £. Cartier and the Hon.
William McDougall, from which I shall make a brief quotation : — " Whatever doubt
may exist as to the * utmost extent ' of old or French Canada, no impartial investigator
of the evidence in the case can doubt that it extended to and included the country between
the Lake of the Woods and Red River." The chief opposition to the award of the
Arbitrators has been raised by the professed admirers of Sir George Cartier, who declared
that ** no impartial investigator " would hesitate as to giving Ontario a greater extent of



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 73 of 86)