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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continent, if she even held any isolated localities on the Pacific, in virtue of her discoveries
by sea.

Lewis and Clark, Americans, descended the southerly branch of the Columbia River,
1805, and in 1811, Mr. Thompson, of the North- West Company, came down the main
branch from the north, whose discovery is thus referred to by the British Plenipo-
tentiary : —

"In the year 1811, Thompson, the astronomer of the North- West Company , dis-
covered the northern head waters of the Columbia, and following its course till joined by
the rivers previously discovered by Lewis and Clark, he continued his journey to the
Pteific."

And again : —

" Thompson, of the North-West Company^ was the first civilized person who navigated
the northern, in reality the main branch of the Columbia, or traversed any part of the
country drained by it"

This is the title by which Great Britain has been enabled to retain the main branch
of the Columbia to its intersection with the 49th parallel of north latitude, and- the free
navigation for her subjects of the whole river from that point to its discharge in the
Pacific Ocean, as secured by the Treaty of Oregon, 1846.

With respect to McKenzie's discoveries to the north, no diplomatic reference thereto
<ain be quoted, inasmuch as there has been no disputed title on the part of any foreign
power to give rise to any controversy on the subject.

It may fairly be urged, therefore, that these "Indian Territories," originally the
fruits of C^adian enterprise, perseverance and industry, should no longer be shut out
from the Canadian people, but should in fabt be united to Canada as a part of the British



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26 MEMORANDUM OF THE HON. JOSEPH CAUCHON, 1857.



dominions which Canadian subjects have had the merit of acquiring and retaining for
the British Grown.

JurUdictioTL

The question of jurisdiction next comes under consideration, and in this, as regards
the Hudson's Bay Company, it is apprehended that the actual exercise of it is widely
different from what existing laws would sanction.

The mystery with which this Company have managed to shroud their operations in
the interior renders it difficult to say what they do or what they do not do, but it is
generally understood that they actually exercise unlimited jurisdiction in every respect,
civil, criminal, and governmental, and that not only in what has been considered their
own territories, but also in the Indian Territories and those parts of Canada not imme-
diately contiguous to settlement ; all of which existing law positively forbids them to do,
it need not be said, in Canada, but either in their own territories or in the Indian Ter-
ritories.

By the Imperial Statute 43 Gea III., cap. 138, the jurisdiction over the Indian
Territories and all "porta of America not wiiMn the UmiU of the Provincea of Lower or
Upper Camada^ or either of them, or within any civil government of the United States of
America," is vested in the said Provinces. It is a curious circumstance that the very
words of this Act, which seem to have been intended to deny all claim to any jurisdiction
on the part of the Hudson's Bay Company, should have been taken hold of as the means
of questioning its reference to them. The preamble of the Act, in giving the reason for
the enactment, states that offences not committed within the limits of the Canadas or the
United States, as above, ''are therefore not cognisable by any jurisdiction whatever."
This, the Company argued, could not mean their territories, becauee jurisdiction did exist
there. The Act, they said, could not mean aU British America not within the limits of
the Canadas, for the assertion that no jurisdiction existed was not true of Nova Scotia or
New Brunswick, and therefore might not be true of Hudson's Bay. Thus, in fact, it
appears that the framers of the Act having their minds directed to the North- West^
where the offences referred to had occurred, forgot to exclude the Provinces lying on the
opposite side of Canada, on the Atlantic coast, from its operation ; and this omission,
when the war was carried on between the two Companies in the interior, Lord Selkirk
turned to account to throw doubt on the applicability of the Act to the Company's Tei^
ritories. But the assumption that this Act does not affect their pretensions is doubly
futile ; for, when more closely considered, it either brings their territories within Cana-
dian jurisdiction or it ignores them altogether, and in either case it contracts the limits
they claim. If they make good their assertion that it does not affect their territories,
then it destroys their claim to have their limits extended to the boundaries of Canacja*
The territories referred to in the preamble of the Act are those not within the limits of
either Lower or Upper Canada, the two Provinces being treated distinctly as regards the
territories not within their limits. Now, taking Lower Canada in the first instance, it is
bounded by the Ottawa, and a line due north from the head of Lake Temiscamingue ;
and the places outside its limits on which the Act would have effect, if not the Company's
territories, must certainly be something between those limits and their territories. But
the question is more important as regards the places outside of Upper Canada. If the
maps accompanying the " Statement of Eights," submitted by Sir «r. H. Pelly, be correct,
then the territory affected by the Act is about 1,500 miles distant in iti^ nearest part from
the most remote point in Canada. In other words, Canada ends at the source of Pigeon
Biver, and the Indian Territories begin at the top of the Bocky Mountains, and we are
required, therefore, to assume that the Imperial Legislature meant to commit the absurdity
of giving jurisdiction to the courts of Canada over a territory beginning at a distance of
some fifteen hundred miles from her frontier, while a different British jurisdiction (that
of the Company) prevailed in the intervening space. But assuming for fact the Company's
view of the case, that it did not affect their territories, we find the very purpose for wlwih
the Act was passed, as expressed in the title, to be, to provide a jurisdiction for certain
parts of Nortii America cidjoining to the said Provinces of Lower and Upper Canada.
Consequently, if the territory affected by the Act only commences at the summit of the



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MEM0RANDX7M OF THE HON. JOSEPH CAUCHON, 1857. 27



Rocky Mountaiiis, as represented by the map submitted by Sir J. H. Pelly, then as it
adjoins this Province, Canada must extend to the summit of the Rocky Mountains ; so
Htui, on their own showing, the jurisdiction they exercise in the intervening space, at Red
River, for instance, is out of their own territories, and, therefore, not only without the
ttnetion of law, but in violation of a positive enactment They must thus either ignore
tbor own pretensions to the territory between what they call the westerly boundary of
Oaiiada and easterly boundary of the " Indian Territories,'' or they must admit that the
Act under consideration (which is still unrepealed) applies to their territories, in which
case their jurisdiction in every part would be in violation of the statute.

But if there was any doubt on the subject before, it was fully removed by the Act
1 and 2 Gko. lY., cap. 66, which was passed after all the strife and bloodshed in the
North-West^ and which, after reciting ^e doubt raised respecting the former Act being
t^^cable to the Hudson's Bay Company's territories, declares at sea 5, in the strongest
and most comprehensive manner, that ^e said Act and all its clauses shall be construed
to apply to their territories, anything in " cmy grcmt or charter to the Company to the
wiUrary notwUhstanding,^*

This Act, 1 and 2 Geo. lY., cap. QQ, gives jurisdiction, as full and complete as language
can make it, over all the Indian and Hudson's Bay Company's Territories, to the Courts of
Oanada^ and it provides for the appointment of Justices of the Peace by the Crown (both
for the Indian Territories and Hudson's Bay Company's Territories), to whom the Uarui-
dian Courts art empowered to issue commissions ** to take evidence in any cause or suit,
and return the same, or try such issue, and for that purpose to hold courts," eta These
ooorts are most distinctly made subordinate to the Courts of Canada, d^., and can, in fact,
be created by and exist through them only.

By the 11th and 12th clauses, however, the Crown is empowered to create Courts of
Becord, without the intervention of the Canadian Courts (but without limiting the power
to be exeroiBed through them), for the trial of small causes and petty offences, the former
b«ing limited to civil cases not affecting a larger amount than ^200, and the latter to cases
in which the offence does not subject the person committing the same to capital punish-
ment or transportation.

By this Act it is repeatedly declared and enacted in the most emphatic manner, that
its enactments shall have effect '* notwithstanding anything contained in any Charter
granted to the Governor and Company of Adventurers of England trading to Hudson's
Bay."

It is true the last clause of the Act reserves to the Company, in the most ample
manner, all rights and privileges they *< are by law entitled to claim and exercise under
their Charter.'* This, it will be observed, is what the ** Statement of Rights " refers to
when claiming a " concurrent jurisdiction " with the Canadian Courts. Now, when it is
observed that the Legislature has refrained from expressing any opinion as to what the
ri^ts and privileges of the Company really are, and cautiously abstained from recognizing
any but what they already had *^ by law,** it is difficult to suppose that it was the intention
of the Act to recognize in them those very powers which it was making the most ample
provision for the exercise of by a totally different authority in strong and repeatedly
e^ressed abnegation of their pretensions.

It la also to be observed that the previous Act, 43 Geo. III., which denies their juris-
diction, Ib still in force, unrestricted in every particular, and not deriving its force from
the subsequent Statute, which is merely declaratory in that particular of its proper
construction.

The question of whether the Company can exercise any legal jurisdiction within their
own territories — ^limited to their just extent — closes its importance, however, in face of the
more serious question of its actual exercise both in Canada and the Indian Territories, and
that even to the extent of life and death, while the intention of the Imperial Legislature
in creating a jurisdiction for these territories, reserved all important cases, either civil or
criminal, for trial by the regularly constituted legal tribunals of nn organized community,
where the Charter of British rights would be held as sacred as the interests of a com-
mercial Company who assume to be themselves the judges, where (without any reflection



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28 .MEMORAin>nM OF THE HON. JOSEPH CAtJCHON, 1867,

upon tbem collectively or individually) cases must, in the very nature of things, arise in
which they ought to be the judged.

It, therefore, becomes of very great moment to ascertain the truth of certain state-
ments that have been made to the effect that their principal officers at Red River hold
their commissions from the Crown, and if so, under what form, for what extent of terri-
tory, and how described. Such commissions might, no doubt, have been issued under the
Statute 1 and 2 Geo. IV., for the Hudson Bay Company's Territories and for the Indian
Territories, for the trial of small causes and offences of a minor nature, as already described,
without in the least infringing upon or limiting the right of Canada to intervene ; bat if
the British Government has expressly included the Red River country in any such com-
missions, it can only have been through a misapprehension of boundaries, which is not to
be wondered at from the policy pursued since the union of the Companies, and the erro-
neous view of the case they have so constantly disseminated ; and no doubt any such powers,
if they have been granted, would be withdrawn as soon as the case has been brought fully
under the consideration of the Imperial authorities.

In concluding the question of Jurisdiction, it is necessary to observe that the Imperial
Statutes herein quoted, which vest the jurisdiction in Canada to the shores of the Pacific,
have been repealed in so far as they relate to Vancouver's Island by the Act 12-13 Vic,
cap. 48, which re-invests the jurisdiction of Vancouver's Island in the Imperial Govern-
ment until the establishment of a Local Legislature, which the Act contemplates.

At the same time, a Charter was granted to the Hudson's Bay Company for the
colonization of the island, conveying a grant of the soil

Neither the Act nor the Charter, however, confers any jurisdiction upon the
Company.

The Company were required by the terms of the grant to colonize the Island within
five years, failing which the grant was to become void. It was also stipulated that the
grant might be recalled at the time of the expiration of their lease for the Indian Terri-
tories upon payment to the Company of the expenses they might have incurred, the value
of their establishments, etc.

General Remarks.

Before concluding this Report, it is desirable to offer a few general remarks upon the
subject, which the policy of the Company has kept out of view, and which consequently
is not generally well understood.

The Hudson's Bay Company claim under three separate titles, the first of which is
the Charter of Charles II., granted in 1670, /or«w. The second is the lease orginallj
granted in 1821 to them, in conjunction with the North-West Company of Canada, for
the Indian Territoriea The third is their title to Vancouver's Island, as explained.
Under the first, they base their claim to government, jurisdiction, and right of soil over
the whole country watered by rivers falling into Hudson's Bay ; at least, such is the
theory, although they have abandoned it south of the present southerly boundary of Canada
at Rainy Lake, the Lake of the Woods, and along the 49th parallel, to the south of which
those rivers take their rise. Under the second, they claim exclusive trade from the Rocky
Mountains west to the Pacific, and from the sources of the McKenzie River to the Frozen
Ocean. There is no dispute about their title on this head, but their lease expires in two
years, and it is the renewal of this lease for a further period of twenty-one years which they
now seek to obtain.

It will be seen by the question of boundary already treated, that the country about
Red River and Lake Winnipeg, <kc., which they claim under their Charter, absolutely be-
longs to Canada ; and it will be observed that the abstract right, not the value of
the territory, has been dwelt upon, but unfortunately the latter has been as little generally
understood as the former, the result of the means the Company have taken to conceal it,
for seldom if ever has the wisdom and foresight of man devised a policy better calculated
to the end for which it was intended than that adopted since the union of the Companies
in 1821.

Before that union, the Canadian Fur Trade gave employment to some thousands of
men as mere carriers, or '^ Voyagefwrs " as they were termed.



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MEMORANDUM OF THE HON. JOSEPH CAUCHON, 1857. 29



In endeavouring to depreciate the national services rendered by the North-West Com-
pany during the war of 1812, at the capture of Michilimacinac, etc., Lord Selkirk alludes
to tills body of men as forming the " Voyageurs Corps" but denies credit to the Company
for their important services, which he admits *' in a great measure secured Canada,''
because they were not constantly employed by the Company, and eflfected this service at
a season of the year when the Company did not require them. Assuming this to be the
hct, however, had there been then, as now, no such Company and no such trade, there
would have been- no such body of men ready for action in the hour of danger.

Had the circumstances of the trade continued the same to the present day, settlement
most have followed the route of such a line of traffic, and the continual intercourse be-
tween this country and the fertile plains of the *' far West " would have placed us as far
in advance of .our American neighbours in the colonization of those countries as we are
now behind them.

Bat the policy of the united Companies has been so admirably carried out in all its
details, that an erroneous impression respecting the country and everything connected with
it had graduaUy got possession of the public mind, and it is wonderful with what tact such
impressions may sometimes be conveyed without any statement being made contrary to
trutJL The very appellation of " Hudson^ a Bay Territory " as applied, for instance, to
tlie Bed River country, carries a false impression with it, for the waters of the Mississippi
and the Bed Biver, the Assiniboine and the Missouri, interlace with each other there,
and therefore the designation of ** GhdJ of Mexico Territory " would just be as correct
Bat what a different impression it would convey as regards climate. A^ain, almost every
mention of the available parts of the Western Territories, which are well known to possess
a soil and climate adapted in the highest degree for successful settlement, is interwoven
with some reference to tec in some shape or other, which no doubt the Company truly
Qicounter in carrying the trade some eight hundred miles due north through Hudson's Bay.

An admirable specimen of this kind of policy, by which erroneous impressions may
be conveyed, is to be found in Sir J. H. Felly's letter to Lord Glenelg, of 10th February,
1837 :—

*' For many years prior to the conquest of Canada, French subjects had penetrated by
the St. Laun'ence to the frorUiers of Ruperts Land ; biU no competition had occurred be-
tween the traders of the two countries within the territories of the HudsonLsBay Gompam/y
previous to the cession of Canada to Great Britain.

'* Subsequent to that period, the greater capital and activity of British subjects led
to a competition, first on the frontier parts^ then in the interior, and at last to the forma-
tion of a Company, combining all the individuals at that time engaged in the trade to
countries bordering on the west of Lake Superior, under the firm of the North- West
Company of Montreal."

This, when dissected, is a significant paragraph. Where are " the frontiers of Rup&rVs
Landy" if the French, whose forts were all around Lake Winnipeg, had not reached them
before the cession of Canada to Great Britain ? This is an important corroboration of the
views of the boundary question explained in the present report.

That " no competition had occurred within the Territories of the Hudson's Bay Com-
pany " up to that time may be very true, because the Company had never come up from
the shores of the Bay, and the French had not gone down — ^from their places on Lake Win-
nipeg — to the Bay. The second paragraph above quoted may also be substantially true,
but yet it is so framed as to convey to the general reader that the competition arose from
the inhabitants of Canada advancing beyond where they had been before ; whereas it was
the Hudson's Bay Company who then came up, for the first time, from the shores of the
Bay, which led to the competition "first on the frontier parts" of Rupert's Land, "then in
the interior," on Lake Winnipeg, the Saskatchewan, eta, where the Canadians had long
enjoyed the trade without competition.

Such is the system and policy pursued by the Company to exclude from view and
create erroneous impressions respecting the Western portions of this Province, than which
there is perhaps no finer country in North America. The same course marks their pro-
ceedings at the present moment, for no intimation has been given in this country of tlieir
intention to apply for a renewal of the lease of the Indian Territories, though, exercising



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30 MEMORANDUM OF THE HON. JOSEPH CAUCHON, 1857.



the privileges they do in countries subject to the Canadian Government, it would not have
been unreasonable to expect a different course. Neither does it appear that they have
taken any means to inform the inhabitants of those countries whose rights and interests
are most deeply affected by the action to be taken, that they were to make this early
application for renewal of their lease. Had it been effected in the quiet manner they
seem to have desired — a consummation which the thanks of the country are due to the
Imperial Government for having refused to sanction — they onZ^ would have been heard in
their own case, and the result would have been, alike to the people here and in the more
remote territories, a surprise.

Canada has no quarrel with the Hudson's Bay Company, and desires no harsh mea-
sures towards them. It would be alike ruinous to them, and injurious to the countries
over which they hold either legal or illegal sway, to put a sudden stop to their operations ;
but it is an error to suppose that the governing of those countries is a task of uncommon
difficulty. The state of anarchy which prevailed in those countries during the warfare of
the Companies was the result of the strife between them, where there was no sort of
authority, exceipt what they seenied equally to wield, and not arising from any turbulent
or ungovernable spirit on the part of the native population. On the contrary, the moment
a recognized authority stepped in to control both Companies, implicit obedience was at
once yielded to it throughout those vast territories, and either party would have found
itself powerless to command followers for any purpose of further aggression. This was
upon the occasion of the withdrawal of all commissions of the peace, previously granted
to the leading people of the two Companies, the appointment of two special Commissioners
(one of them a member of the Executive Council of Lower Canada), and the issuing of a
proclamation in the name of the Prince Regent, by authority of a despatch from £arl
Bathurst, of 6th February, 1817, requiring the mutual restitution of all the places and
property captured during the strife, to the party who had originally possessed the same,
and the entire freedom of the trade to each party, until further adjudicated upon. Qall-
ing as this restitution must have been in numerous instances, where party feeling, embit-
tered by the loss of many lives, had reached the highest pitch of excitement, it was
immediately complied with.

The proper course to pursue, therefore, would be to lay before the Imperial Govern-
ment the expediency of annexing the Indian Territories to Canada, showing that by this
means only can those countries be retained long in the possession of Great Britain. For
colonized they must and wUl he ; it is only a question of who shall do it If we do not,
the Americans will, and that in spite of anything the Company can do to prevent it
That these Territories are fit fields for settlement it is useless to dispute, for one physical
fact upsets all theories to the contrary. Where a country is found to sustain anivrud life
to such an extent that hundreds of thousands of wild cattle find subsistence there both in
summer and winter, there man also can find a home and plenty. Nor is the country
possessing this characteristic confined to a narrow strip along the frontier, but continuing
to widen to the westward it is found that the climate, even on the east side of the Rocky
Mountains and at a depth of seven degrees North of the American Boundary, is milder
than the average of the settled parts of Upper Canada.

On the west side of the Bocky Mountains the climate is mild to a still higher latitude,
but Vancouver's Island, together with the contiguous mainland, is perhaps one of the
finest countries in the world for colonization. The only drawback is the difficulty of access
— a difficulty which the present system will never remove, for it looms larger now than it
did forty or fifty years ago, when the North- West Company of Canada poured a continu-
ous stream of traffic accross the continent. This Island cannot now, of course, be annexed
to Canada on the same terms as the other Indian Territories, as the existing Charter under
which the Island is held (a different and distinct thing, be it remembered, from either the
old Charter or the expiring Lease) entitles the Hudson's Bay Company to payment 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 8 of 86)