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the value of their establishments if the grant be rescinded, which Caiiada would naturaUy
be expected to pay if the Island were conceded to her, and it might be well to see now
upon what terms this could be done, because it seems that if it be not done at the expira-
tion of the Lease of the " Indian Territories,'' it could not be done afterwards, unless indeed
the Company have failed to fulfil the conditions required within the first five years.



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LETTEB OF CHIEF JUSTICE DRAPER TO THE COLONIAL SECRETARY, 1857. 81



Twelve yean ago the United States had no commaoication with their territories on
\h.e Pacific except by sea ; and daring the Oregon negotiations, when proposing strenuous
measoreB upon the subject, the President, in his message to Congress, 2nd December, 1845,
aays:—

** An overland mail is believed to be entirely practicable ; and the importance of
establishing such a mail at least once a month, is submitted to the favourable consideration
of Congress."

How different the circumstances now, and how ** entirely practicable " it has proved,
need not be dwelt upon, but it must be remarked that at no other point north of the Gulf
of Mexico are the facilities for communication across the continent anything like equal to
what they are through Canada, there being good navigation three-fourths, if not more, of
the whole distance : first to the head of Lake Superior, from whence the navigation is
broken to Lake Winnipeg (though about 150 miles of this distance is navigable); then
through that Lake to the Saskatchewan, on which there are obstructions in the lower
part near the Lake, from whence the navigation is unimpeded to the very base of the
Bocky Mountains.

It would be very desirable, therefore, and quite practicable, if the British Govern-
ment will consent, to annex the Indian Territories, extending to the Pacific, and Yancou-
ver's Island, to Canada, to establish during summer a monthly communication across the
continent It is of incalculable importance that these measures should be most forcibly
pressed upon the Imperial €k>vemment at the present juncture, for on their- solution de-
pends the question of whether this country shall ultimately become a Petty State, or one
of the Great Powers of the earth ; and not only that, but whether or not there shall be a
connterpoise favourable to British interests and modelled upon British institutions to
coimteract the prepondering influence — if not the absolute dominion — to which our great
neighbour, the United States, must otherwise attain upon this continent

^0 reference has been here made to the controversy between the Company and those
who accuse them of exercising a pernicious influence over the Indian population, nor is it
necessary to enter into the subject further than to point out the erroneous impression the
Company strive to inculcate, to the effect that they are necessary to the Indians. It may
well be that the state of things is better under them than it was when the two powerful
Companies were in hostile array against each other ; and it may be that their affairs are
as well conducted, with reference to their effect upon the native population, as could well
be expected of a Commercial Company having the primary question of profit and loss as
the object of their association. But the question really comes to be, whether those coun-
tries shall be kept in statu q^io till the tide of population bursts in upon them, over an
imaginary line, from a country where it has been the rule that the Indian must be driven
from the lands the white man covets ; or be opened up under the influence of the Canadian
Qovemment, which has always evinced the greatest sympathy towards the Indian race,
and has protected them in the enjoyment of their rights and properties, not only in their
remote hunting grounds, but in the midst of thickly -peopled districts of the country.

Joseph Cauohon,

Commissioner of Grown Lands,
Crown Lakds Dbpartmbnt,
Toronto, 1857.



Chibf Justice Draper to the Colonial Secretary.*

33 Spring Gardens,

6th May, 1857.

Sir, — In the last interview with which you favoured me, I took occasion to advert
to the question of boundary between Canada and the Hudson's Bay Territory as one which
required to be settled as a necessary preliminary to many other very important inquiries

* Report Select Committee, House of Commoni (England), on the Hudson's Bay Company, 1857, p. 374.

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32 MEMORANDUM OF CHIEF JUSTICE DRAPER, 6TH MAT, 1857.



inyolved in the matters submitted to a Committee of the last House of Commons, and,
as I understood, to be again submitted to the new Parliament

I alluded to the difference between the views of the Hudson's Bay Company, as
expressed in former times, and those which are now, and have been within the last forty
years, advanced by them on this point ; and I stated my readiness to submit a memo-
randum to you in relation thereto, which you were pleased to signify your readiness to receive
and consider. That memorandum I have now the honour to enclose.

As the construction of the language of the Charter, and the extent of the territory
purported to be granted, are involved, it may be considered desirable that the matter
should be referred to the Judicial Committee of the Privy Council In this event, X
venture to request that counsel on the part of the Province may be permitted to attend
to watch the argument, and, if it be deemed necessary, that they may be heard in sup-
port of those views which more immediately affect the interests of Canada.

I have suggested a reference to the Judicial Committee because I think its opinion
would command the ready acquiescence of the inhabitants of Canada as to their legal
rights, and because I believe they entertain a very strong opinion that a considerable
portion of the territory occupied or claimed by the Hudson's Bety Company will be found
to lie within the proper limits of that Province.

Whether it would be desirable to sever this from the more general question of the
legality and validity of the Charter, is a matter I should desire to leave for your consid-
eration, but in any event I think it expedient that counsel should be permitted to attend
to watch the interests of the Province.

I have, etc.,

Wm. H, Draper.
The Right Hon. H. Labouchere.



Mbmorakdum from Chief Justice Draper, Agent of the Province of Canada,

ENCLOSED in LeTTER TO THE COLONIAL SECRETARY, MaY 6tH, 1857.'*

It is not proposed at present to discuss the validity of the Charter of the Hudson's
Bay Company. A careful perusal of it will suggest many doubts whether it be not
altogether void. But assuming that it may be sustainable for every or for any of the
purposes for which it was intended, and for the moment conceding that the indefinite
description of the territory purporting to be granted does not vitiate the grant, there is
a question as to the limits of that territory in which the Province of Canada is deeply
interested.

The parts of the Charter bearing on this question are as follows : —
1. — "All the lands and territories upon the countries, coasts, and confines of the
seas, bays, lakes, rivers, creeks, and sounds aforesaid " (stated in the preceding part to be
those which lie within the entrance of the straits, commonly called Hudson's Straits, in
whatsoever latitude such bays, etc., should be), " that are not already actually possessed
by or granted to any of our subjects, or possessed by the subjects of any other Christian
prince or state, with the fishing of all sorts of fish, whales, sturgeons, and all other
royal fishes in the seas, bays, inlets, and rivers within the premises ; and the fish therein
taken, together with the royalty of the sea upon the coasts within the limits aforesaid,
and all mines royal, as well discovered as not (discovered, of gold, silver, gems, and pre-
cious stones, to bo found or discovered within the territories, limits, and places aforesaid ;
and that the said land be from henceforth reckoned and reputed as one of our plantations
or colonies in America, called Rupert's Land : And, further, we do by these presents, for
us, our heirs and successors, make, create, and constitute the said Governor and Company
for the time being, and their successors, the true and absolute lords and proprietors of
the same territory, limits, and places aforesaid, and of all other the premises hereby
granted as aforesaid, with their and every of their rights, members, jurisdictions, preroga-

* Report Select Committee, Hooie of Oommons, Eng., on the Hadion*B Biky Gompaay, 1857, p. S74.

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MEMORANDUM OF CHIEF JUSTICE DRAPEB, 6TH ^AY, 1857. 83



Uvea, royalties, and appurtenances whatsoever, to them, the said Governor and Company,
sod their suooessors forever, to be holden of ns, oar heirs and successors, as of our
Uanor of East Greenwich, in our county of Kent, in free and common soccage."

And, 2. — " And furthermore, we do grant unto the said Governor and Company,
«Qd their successors, that they and their successors, and their factors, servants, and
.agents, for them and on their behalf, and not otherwise, shall forever hereafter have, use
and enjoy, not only the whole, entire and only trade and traffic, and the whole, entire
and only liberty, use and privilege of trading and trafficking to and from the territory,
'UmitB and places aforesaid, but also the whole and entire trade and traffic to and from all
bavmis, bays, creeks, rivers, lakes, and seas into which they shall find entrance or pas-
sage, by water or land, out of the territories, limits or places aforesaid, and to and with
■all the natives and people inhabiting within the territories, limits and places aforesaid,
and to and with all other nations inhabiting any of the coasts adjacent to the said terri-
fies, limits and places, which are not granted to any of our subjects."

Prior to this Charter, there was litUe or nothing done within Hudson's Bay in the
iray of taking any actual possession of the territory gianted. The bay had been dis-
•oorered, several ships from time to time had entered it, and probably some interchange
•of commodities with the Indians had taken place while the vessels remained within the
Straits ; but nothing whatever was known of the interior. Charles the Second claimed —
ior it was no more than a claim — all the territory which the discovery of the Straits and
Bay could confer on the British Crown. The French CroWn in like manner had claimed,
by reason of their a6tual settlement of Canada, and of their progressive discoveries and
trade, not only all the western territory, including that now in dispute, but even the Bay
of the North, and thence to the Pole ; but neither French nor English had, in 1670,
actually penetrated, so far as appears, within many hundred miles of the Red lUver.;^

The settlements made by the Hudson's Bay Company were at first confined to those
on ^e shores of James' Bay, and at the Churchill and Hayes Rivers. Henley House,
which is about 150 miles up the Albany River, was not erected before the year 1740.
The Company afterwards erected Fort Nelson, which is laid down on the maps at about
200 or 230 miles from the mouth of Churchill River, and the fort at Split Lake, which is
-represented as about 140 miles from the mouth of the Nelson River. It is believed that
these two last-named forts are of comparatively modern erection, but that, at all events,
for more than a century after the date of the Charter, these, together with the forts on
or near the shores of the Bay, were the only settled posts of the Hudson's Bay
Company.

This throws some light upon the view which the Company practically adopted, of
the extent of their territories.

In many written documents they treat Hudson's Straits and Bay as the governing
tad principal matter, in reference to or for the purpose of securing which the grant of
territory was made to them.

In a petition addressed by the Hudson's Bay Company to Charles the Second, in
1682, they say that his Majesty was graciously pleased to incorporate them, and to grant
to them forever all the said Bay, and the Straits leading thereunto, called Hudson's
Straits, with all the lands and teriritories, rivers and islands in and about the said Bay,
iffid the sole trade and commerce there ; and, referring to a letter of Monsieur de la Barre,
the (Governor of Canada, threatening to drive them out, they observe, they doubt not but
that, by the King's Royal authority and protection, they will be enabled to defend his
undoubted right and their own within the Bay, << wherein never any nation but the sub-
jects of your Imperial Crown has made discoveries or had any commerce."

In a letter dated January 25, 1696-7, they urge, " whenever there be a treaty of
peace between the Crowns of England and France, that the French may not trav^ or
4rive any trade beyond the midway betwixt Canada and Albany Fort, which we reckon
to be within the bounds of our Charter."

In 1698, in a letter written by their Deputy-Governor to the Lords Commissioners
of Trade, they repeat the same desire.

* [It baa Bince appeared that the French had so penetrated prior to 1070. - G. E. L.]
S



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84 MEMORANDUM OF CHIEF JUSTICE DBiJPER, 6tH MAY, 1857.



In a memorial, dated in Jane, 1699, they represent the Charter as constituting tiiem
the true and absolute proprietors of Hudson's Bay, and of all the territories, limits and
places thereto belonging. They farther set forth Uie attacks made in 1682 and 1686 by
the French from Canada, and their applications for redress, and the declaration made by
James the Second that he, upon the whole matter, did conceive the said Company well-
founded in their demands, and therefore did insist upon his own right and the right of
his subjects to the whole Bay and Straits of Hudson, and to the sole trade thereof ; and
they pray the then King, William the Third, to insist upon the inherent right of, the
Crown of England and the property of his subjects not to be alienated, that so consider-
able a trade might not be lost, and the Hudson's Bay Company '*be left the only
mourners " in the peace of Ryswick.

At this time all their forts but one (Albany Fort) had been taken by the French ;
some of them, indeed^ while the two Crowns were at peace ; an act of aggression specially
referred to by His Majesty in the declaration of war in 1689.

In January, 1700, being called upon by the Lords of Trade and Plantations, they
offered proposals for limits between them and the French in Hudson's Bay, insisting at
the same time upon their undoubted right *' to the whole Bay and Streights of Hudson. **
The proposed limits were to confine the French from trading or building any house,
factory, or fort to the northward of Albany River, situate in about 53' of north latitude
on the west main or coast, or to the northward of Rupert's River on the east main or coast
of the Bay, binding themselves not to trade or build any house, factory, or fort to the
southward of these two rivers ** on any ground belonging to the Hudson's Bay Com-
pany." They urged that these limits should be settled ; stating, that if the French re-
fused, they must insist upon their prior and undoubted right to the whole Bay and
Straits of Hudson, which, they observed, the French never yet would strictly dispute or
suffer to be examined into, though the first step of the eighth article of the Treaty of
Ryswick directs the doing of it. These limits would have given the French access to
the Bay by the Moose River.

The French Ambassador did, however, in March 1698-9, set forth the claims of his
Sovereign in a long answer to the English memorial, among other things observing that
the different authors who have written about Canada or New France gave it no limits
northwards, and that it appeared by all the grants or letters of corporation made at
several times by the Kings of France to the companies settled in New France, and par-
ticularly in 1628, that all the Bay of the North is comprehended .in the limita
mentioned by the said grants.*

He also further suggested, that if the English had had any knowledge of the Bay,
or any claim thereto, they would not have failed to have insisted on it, and expressly to
mention it in the Treaty of 1632 (that of St. Germain-en-Laye), when they restored to
the French New France. Admitting that the French neither then nor for a long time
afterwards had any forts on the coasts of the Bay, he explains it by saying, that being
masters of the inland country, the savages, with whom they had a continual trade,
brought their furs over lakes and rivera

In April, 1714, the Hudson's Bay Company thank the Queen " for the great care
your Majesty has taken for them by the Treaty of Utrecht, whereby the French are
obliged to restore the whole Bay and Streights of Hudson ; the undoubted right of the
Crown of Great Britain."

In August, 1714, in reference to the same treaty, the Hudson's Bay Company pro*
posed that the limits between the English and French on the coast of Labrador
should commence from the island called Grimington's Island, or Cape Perdrix, in the
latitude of 58^** N., which they desire may be the boundary between the French and
English on the coast of Labrador; and that a line be drawn south-westerly, to pass
through the centre of Lake Mistassinnie ; and from that lake a line to run south-west-

• L'Escarbot describes Canada at the period of the appointment of De la Roche, in 1698, Uhns :
" Ainsi notre Nouvelle France a pour liinites du c6t4 d'ouest lee terres josqu' h la Mer Paoifique an delk da
Tropique du Cancer, au mid! les ties de la Mer Atlantique du cdt^ de Cuba llle Espagnole, an levant 1»
Mer du Nord qui baigne la Nouvelle France ; et au septentrion cette qui est dite inoonnue Ten la Mer
Glac^e jusqu* it la Pole Arctique.*'



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HEMORAlfDUM OF CHIEF JUSTICE DRAPEB, 6TH MAT, 1857. ,35



ward into 49° north latitude ; and that such latitude be the limit, that the French do
not come to the north nor the English to the south of it

In another paper of about the same period, thej give the following account of the
motiTes which induced the formation of the Company : ''It was, therefore, after the
1h^7 restoration of King Charles II. that trade and commerce began to revive, and in
particular that some noblemen and other public-spirited Englishmen, not unmindful of
the discovery and right of the Crown to those parts of America, designed at their own
cfaaige to adventure the establishing of a regulur and constant trade to Hudson's Bay,
and to settle forts and factories there, whereby to invite the Indian nations (who lived
like savages many hundred leagues up in the country) down to their factories."

In August, '1719, the Hudson's Bay Company acknowledges the surrender by the
fVench of the Straits and Bay, in such a manner that they had nothing to object or
desire further on that head. But they urged the settlement of the limits between the
English and French territories without delay, since the French, subsequently to the con-
dosion of the peace (in 1715), made a settlement at the head of Albany Hiver, upon
wbidi the Company's principal Victory was settled, whereby they interrupted the Indian
trade from coming to the Company's factories. It was therefore proposed and desired,
"that a boundary or dividend line may be drawn so as to' exclude the French from
ocHning anjrwhere to the northward of the latitude of 49**, except on the coast of
Labrador ; unless this be done, the Company's factories at the bottom of Hudson's Bay
cannot be secure, or their trade preserved."

In all the foregoing documents it will be observed, that whether upon the peace of
Ryswick, when English affiiirs looked gloomy, and those of France were in the ascendant,
or after the Treaty of Utrecht, when the power of France was broken, the Hudson's Bay
Company sought to have the boundary between the territories they claimed and those
forming part of Canada, settled by some defined and positive line which was to be the
result of n^;otiation, not then pretending that there was anything in their Charter which
gave them a rule by which they could insist that the extent of their territories to the
southward should be ascertained.

Even in October, 1750, they entertained the same views, while at that time they
were pushing their pretensions, both to the northward and westward, to the utmost limits.
They state ihst the limits of the lands and countries lying round the Bay, comprised, as
they conceived, within their grant, were as follows : All the lands lying on the east side
or coast of the said Bay, eastward to the Atlantic Ocean and Davis' Straits, and the line
hereafter mentioned as the east and the south-eastward boundaries of the said Company's
territories, and towards the north, all the lands that lie '^ on the north end or on the
north side, or coast, of the said Bay, and exten<ling from the Bay northwards to the
Qtmoet limits of the lands there towards the North Pole ; but where or how these lands
terminate is at present unknown. And towards the west, all the lands that lie on the
west side or coast of the said Bay, and extending from the Bay westward to the utmost
limits of those lands ; but where or how those lands terminate to the westward is also
unknown, though probably it will bo found they terminate on the Great South Sea.
And towards the South all the lands that lie on ^e south end, or south side of the coast
of the said Bay, the extent of which lands to the south to be limited and divided from
tiie places appertaining to the French in those parts,, by a line," etc., describing the line
from Cape Perdrix to the 49th parallel, and along that parallel westward, as in their
proposals of August, 1719, excepting that they state the starting point to be in latitude
59^* N. They add, with regard to this boundary, that *' to avoid as much as possible any
just grounds for differing with the French in agreeing on those boundaries which lie
nearest their settlements, it is laid ddwn so as to leave the French in possession of as much
Of more land than they can make any just pretensions to, and at the same time leaves
your memorialists but a very small district of land from the south end of the said Bay
necessary for a frontier." It is worthy of remark that this line would have given to
France the southerly portion of the Lake of the Woods, Bainy River and Eainy Lake»
which are now claimed as within the Company's territories.

The foregoing extracts are deemed sufficient to establish what the Company con-
sidered their territorial rights in reference to their connection with and prolimily to Hud-



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36 MEMORANDUM OF CHIEF JUSTICE DRiJPER, 6tH MAY, 1857.



son'd Bay itself, where they had planted their factories, and desired to attract the Indian
trade. 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 175Q, 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 claims to lands lying both northward
and westward of the Bay are entirely at variance with any such idea. Sir J. Pelly,
before a Committee of the House of Commons, in March, 1837, seems to have adhered to
the views expressed in 1750, when he said "the power of the Company extends all the
way from the boundaries of Upper and Lower Canada away to the North Pole, as far as
the land goes, and from the Labrador coast all the way to the Pacific Ocean," though he
afterwards explains that the Company claimed in fee-simple all the lands the waters from
which ran into the Hudson's Bay.

It is submitted, that if this latter claim were well founded, the further grant in the
Charter of exclusive trade beyond the limits of the territories granted in fee-simple would
give colour to the assertion of the " power " of the Company extending to the Pacific ;
assuming that the word " power " was used to designate the exclusive right of trade, and
not the ownership of the territory. For if the Charter gives the fee-simple of the lands
to the Rocky Mountains the Pacific is a " Sea," and Eraser's and McKenzie's are " rivers,''
in which <* entry or passage by water or land out of the territories " actually granted may
be found ; though in such case the application for a license for the exclusive trade would,



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 9 of 86)