■ ■ 1 1 1 nm ^L_ ■J LIBRARY OF CONGRESS. [SMITHSONIAN DEPOSIT.] «^t. F/05^ UNITED STATES OF AMERICA.! ■Tit I ■ ■ ^ ■ ■ ■ ■ V .' / A REPORT OK THE BOUNDARIES OF THE PROVINCE OF ONTARIO. i BY 7/ DAVID MILLS, M.R TORONTO: PRINTED BY HUNTER, ROSE Alinipogies. < a few upon the Susquehana Nipissenes. ( river. J Western Indians. Southern Indians. Sioux. Osages. Nadouesseries. Arkansaws. Illinois. Choctaws. Tan igtwies. Passimacs. Piankashawaes. Adages. Wawyactaes. Picques. Kaskaskies. Creeks. Indians in the English interest : Mohawks. Cherokees. Mehikanders. Chickasaws. Cawtabas. The Five Nations. — Pownall on the Colonies, vol. 2, p r 205. 4 WESTERN BOUNDARY OF ONTARIO. Part L At Detroit, Mackinaw, G-reen Bay, St. Josephs, and in the Illinois country, colonies were formed, and the country was taken possession of, in the name of the King of France. As eaily as 1682, La Salle explored the j valley of the Mississippi, to the mouth of that river, and took formal possession of the country, which he designated the country of Louisiana. * The wars in which France was soon after engaged upon the Continent of Europe, and the murder of La Salle, checked for a time, French colonization in North America. In 1688, a census of all the French upon this continent showed a population of only 11,249. The English colonists at that time, were at least twenty times as numerous. The coun- try of the Illinois, or, as it was then frequently called by the French, Upper Louisiana, seems to have been occupied, with- without interruption, by French Canadians, from the time of La Salle's first visit in 1679. On account of the hostility of the Iroquois, the earlier French explorers were cut off from Lakes Ontario and Erie, * " A process verbal " says Albach, ' ' in the French Archives describes the ceremony with which possession was taken of the country, in the name of the French King. It thus proceeds : " ' We landed on the bank of the most Western Channel, about three leagues from its mouth. On the 7th, M. de la Salle went to reconnoitre the shores of the neigh- bouring sea, and M. de Tonti likewise examined the great middle channel. They found these two outlets beautiful, large, and deep. On the 8th, we reascended the river, a little above its confluence with the sea to find a dry place, beyond the reach of inundations. The elevation of the North Pole was here about twenty-seven degrees. Here we prepared a column and cross, and to the said column we affixed the arms of France with this inscription : ' Louis le Grand, eoi de France et de Navarre, REGNE, LE NEUVIEME AVRIL, 1682.' " ' The whole party under arms chanted the Te Deum, the Exaudiat, the Domine Salvum fac Regum ; and then after a salute of firearms, and cries of Vive le Roi, the column was erected by M. de la Salle, who standing near it said with a loud voice in French : ' In the name of the Most High, Mighty, Invincible and Victorious Prince, Louis the Great, by the grace of God, King of France and of Navarre, Fourteenth of that name, this the 9th day of April, 1682, I, in virtue of the Commission of his Ma- jesty which I hold in my hand, and which may be seen by all whom it may concern, have taken and do now take in the name of his Majesty, and of his successors to the Crown, possession of this country of Louisiana, the seas, harbours, ports, bays, adjacent straits, and all the nations, peoples, provinces, cities, towns, villages, mines, minerals, fisheries, streams, and rivers within the extent of the said Louisianna, from the mouth of the great river St. Louis, otherwise called the Ohio, &c, and this with consent of the (nations) with whom we have made alliance, as also along the river Colbert or Mississippi, and the rivers which discharge themselves therein, from its source beyond the country of the Sioux. * * * * As far as its mouth at the sea or Gulf of Mexico, and also the mouth of the river of Palms, upon the assur- ance we have had from the natives of these countries, that we are the first Europeans who have descended or ascended the said river Colbert (Mississippi); hereby protesting against all who may hereafter undertake to invade any or all of these aforesaid coun- tries, peoples or lands, to the prejudice of the rights of his Majesty acquired, by the Parti. WESTERN BOUNDARY OF ONTARIO. 5 and their route to the upper lakes and the valley of the Mis- sissippi, was by the way of the Ottawa, Lake Nippissing, French Eiver, and Lake Huron. It was this exclusion of the French from what is now the settled part of the Province of Ontario, by the Iroquois, that formed the basis of the claim of the colony of New York to the territory between the Ottawa and Detroit rivers. Marquette reached the Mississippi by passing through G-reen Bay, Fox Eiver, Lake Winnebago, and thence down the Wisconsin, The route followed by La Salle was from Niagara through Lakes Erie, St. Clair, Huron and Michigan to the river St. Joseph. Up that river to the nearest point of the Kankakee — a branch of the Illinois — and thence down the Kankakee and Illinois rivers into the Mississippi. About the year 1716, another route was discovered from the upper part of Lake Erie up the Miami to what is now the site of Fort Wayne, and thence across a portage to the Wabash, and down the Wabash and the Ohio, into the Mississippi. At a still later period, a fourth route was opened from Pres- qu'Isle, on Lake Erie, over a portage fifteen miles in length, to a point on French Creek, now Waterford, in Pennsylvania, and thence down that stream to the Alleghany and the Ohio, Along these various routes communication was kept up be- tween the people of Montreal and Quebec, and the settlers and the traders upon the Mississippi and its tributaries. Many trading posts and forts were established not only consent of the nations dwelling herein. Of which and of all else that is needful, I hereby take to witness those who hear me, and demand an Act of the notary here pre- sent, as required by law. " ' To which the whole assembly responded with shouts of Vive le Roi, and with salutes of firearms, and the said Sieur de la Salle, caused to be buried at the foot of a tree, a leaden plate, on one side of which were engraved the arms of France, and upon the other side an inscription in Latin, with the name of the King, the date, the number in the expedition, and the extent of the river which they had navigated."' By this act the foundation of the claim of France to the Mississippi valley, according to the usages of European nations, was laid. On the 24th of July, 1684, twenty-four vessels sailed for America, four of which containing two hundred and eighty persons, was d stined for La Salle's new country, the famed Louisiana. See, also, Falconer's Mississippi Spark's Life of La Salle; and Parkman's Discovery of the Great West. 6 WESTERN BOUNDARY OF ONTARIO. Part t upon Lakes Superior and Nipigon, but also upon Lake of the Woods, Lake Winnipeg, the upper Missouri, the Eed River of the north, and the Saskatchewan. Agriculture was neglected, except at Detroit, and at the colonies in Illinois. Forts were built at many other points to protect the traders, and to make secure the ascendancy of the French oyer the Indians. As early as 1721, Charlevois pre- dicted that the posts in Illinois would become the granary of Louisiana; and in 1746, there were sent from these colonies to New Orleans fifty tons of flour, besides a large quantity sup- plied to the Indians.* Two years later M. Vaudreuil enu- merated its productions, among which were flour, corn, bacon, hams, and various other edibles. I make these statements for the purpose of showing that small colonies of French were scattered over various parts of the continent, from the Grulf of St. Lawrence to the Mississippi, advantageously planted to secure the fur-trade, to form the nuclei of larger settlements, and to keep the English colonies confined within their settled limits, south of the water shed of the St. Lawrence, and east of the Alleghany mountains. The policy of France in extending her possessions, ne- cessitated cautious watchfulness on the part of England and her colonies. The French rested their claim to the whole valley of the Mississippi upon the explorations of Marquette and La Salle, upon actual occupation, and upon the construc- tion they gave to the Treaties of Ryswick, Utrecht, and Aix-la- Chapelle. With characteristic negligence, the British plenipo- tentiaries, at Aix-la-Chapelle, had left their boundary along its whole line, determined only by the very vague agreement, that it should be, when peace was restored, what it had been before the war began. Previous to the war it had, for a quar- ter of a century, been a matter of dispute. The Treaty simply postponed a settlement. In this doubtful condition of unde- termined limits of sovereignty, the two peoples made haste to * Imlay says that 800,000 pounds of flour— a quantity equal to 4,285 barrels— was ex- ported in 1746 from Illinois to New Orleans. PartI. WESTERN BOUNDARY OF ONTARIO. 7 occupy as much of the disputed territory as possible, without flagrantly violating their treaty obligations. The English claimed all the country lying west of their colonies upon the coast. They based their claim upon prior occupation of the coast, upon opposite constructions of treaties, and upon the cession to them of Indian rights by the Indians themselves. The charters granted by the kings to all the old colonies, ex- pressly extended their grants westward to the South Sea. These claims, though held in abeyance, were never relinquish- ed. The English colonies being fixed agricultural communi- ties, seeking to draw their wealth from the soil, rather than by profits upon trade with the Indians, were, for this reason, not likely to explore the country further than they were pre- pared to colonise it; yet they were not willing that their opportunity for indefinite expansion should be destroyed, by a loss of a large part of the territory covered by their charters. The French colonies were trading, military, and missionary establishments, and it is easy to understand why they became fa- miliar with the whole valley of the Mississippi, before the Eng- lish colonists passed the Alleghanies. The country beyond the mountains was not, however, wholly unknown to the English. Explorations had been made by means of individual enter- prise, and efforts were put forward at a very early day to induce the English Government to colonise the valley of the Mississippi. Charles L, in 1630, granted to Sir Eobert Heath -all the continent between thirty-one and thirty-six degrees north latitude, from the Atlantic to the Pacific Ocean. In 1638, it was consigned to the Earl of Arundel. It was afterwards transferred to one Coxe.* It is related by his son, that in the prosecution of this claim, the valley of the Mississippi was ex- plored by Col. Wood and a Mr. Needham between 1654 and 1664; that in 1698, several persons went from New England nearly five hundred miles west of the Mississippi ; that Dr.Coxe * See Coxe's Memorial to King William, 1699. 8 WESTERN BOUNDARY OF ONTARIO. Part!. had fitted out two vessels under Captain Barr, one of which as- cended the Mississippi, in 1698, a hundred miles ; and that they designed to establish there a Huguenot settlement ; but the project was frustrated by the death of its chief promoter, Lord Lonsdale. The south pass over the Eocky Mountains is- described. The country west of the Mississippi is said to be well suited for the use of camels, and the gold of California is noticed. The statements in this remarkable book, being without contemporary corroboration, were never relied on as the basis of any right to the Povince of Carolana.* As early as 1710, Alexander Spoftswood, the Governor of Yirginia, induced the Legislature of that province to make an appropriation to defray the expenses of exploring the country beyond the Alleghanies, and to discover, if possible, a pass to the Ohio or Mississippi valley. He presented a memorial to the English Government in which he described the French plan of military occupation, and pointed, out with wonderful sagacity, the effort that would be made to keep the English east of the mountains, f The chief ground upon which the British claimed the coun- try west of the Alleghany mountains was, that they had pur- chased the country from the Iroquois nations. The Iroquois held the country by original possession, or by conquest, from the Ottawa to the Mississippi. They had left most of the tribes they conquered to manage their internal af- fairs as they chose, but they claimed, as conquerors, the right to dispose of the country. On this right thus acquired the Iroquois confederacy sold to the British Government what is now Western Yirginia, Kentucky, and a large part of Illinois. In 1684 they made a deed of sale to the British authorities, at Albany, of the country from the Illinois river eastward into Ca- nada^ and in 1726 they conveyed all their lands in trust to * Coxe's Description of Caroiana, called by the Spanish Florida, and by the French Louisiana, London, 1772. + See Graham's Colonial History. t Plain Facts : Philadelphia, 1781, pp. 22-3. Part I. WESTERN BOUNDARY OF ONTARIO. 9 England to be protected and defended by his Majesty to and for the use of the grantors and their heirs. # f t * Pownall's Administration of the Colonies, vol. 1. + In 1673 AUouez and Dablon found the Miamis upon Lake Michigan dreading a visit from the New Ycrk Ccnfedsrates. In 1680 La Sa"'e for ad them upon the Illinois, and Tonti was in the country when they drove the Illinois beyond the Mississippi ; but through the influence of the French, confederacies were formed against them, and their title to such extended regions became very questionable. See Colden's History of the Iroquois ; Early History of Pennsylvania ; and Parkman's Discovery of the G-reatWest. + The Erencb nation, having always been desirous to extend their dominion in Ame- rica, have lost no opportunity of encroaching upon their neighbours there. And al- though your Majesty and your royal ancestors have an uncontestable right as well by discovery as possession to the several British colonies in America; yet the French Kings have at sundry times made grants thereof to their subjects. Such were the letters patent of Louis the 13th, in favour'of the French West India Company, bearing date the 29th of April 1627 ; and those of Louis the 14th to Monsr. Croisot, sometime since surrendered to the .United India Company of France, upon which they build their title to the Mississippi. Many other instances of like nature might be given, were they necessary to the present purpose ; but these two, which comprehend almost all your Majesty's dominions in America, may be sufficient to shew the unlimited inch- nation the French have to encroach upon your Majesty's territories in those parts. However, as the French are convinced that a charter without possession can never be allowed by the law of nations to change the property of the soil ; they have employ- ed another artifice, and without embarrassing themselves about former disco veriea made by the subjects of other Princes, have built small forts at the heads of lakes and ri- vers along that vast tract of land from the entry of the River St. Lawrence to the embou- chure of the Mississippi into the Bay of Mexico ; not so much with the intention pro- bably to bound their own territories, as to secure what they have already got, till a- more favourable juncture shall give them occasion to make further intrusions upon their neighbours. And if the late war in Europe, where the Allies made so successful efforts against the exorbitant power of France, had not found Louis the 14th employ- ment at home, it is very likely the French would have been much more formidable: than they now are in America. Notwithstanding the treaty of neutrality for those parts made in London in 1686, ought to have secured to Great Britain the several colonies, whereof your Majesty's royal predecessors stood possessed at the time of making the said treaty, but the little regard the French have had to that treaty will evidently appear by the evasions and frivolous pretences set on foot by their Ministers during the debate in the year 1687 at London, where the Lords Sunderland, Middleton and Godolphin were, appointed by King James to confer with the then French Ambassadors, Monsr. de Bar- rillon and the Sieur Dusson de Bonrepeaux concerning the boundaries of the Hudson's Bay Company, and although that Conference terminated in the„aforesaid treaty of neutrality, together with a resolution of settling the boundaries between the English and French colonies in America by proper commissaries, which resolution has since been enforced by the 10th article of the Treaty of Utrecht ; yet the French could never be induced to enter sincerely upon so necessary a work, notwithstanding commissaries were lately appointed for that purpose, and met with others deputed by the French Court at Paris. -London Doc. 22 ; Sept. 8,1721 ; N. Y. Hist. Col. vol. 5. pp. 619-20. 10 WESTERN BOUNDARY OF ONTARIO. Part L In 1744 the Treaty of Lancaster, and in 1752 the Treaty of Logstown, were made, renewing the provisions of former trea- ties between England and the Iroquois, and large tracts of land were granted to various companies for purposes of colo- nization in the Valley of the Ohio. ^ Upon the 10th of May 1744, Vaudreuil wrote to the G-ov- ernment of France, pointing out the danger to the French pos- sessions of allowing the English to build trading houses among the Creeks. In the summer of 1749, Grallissoniere,who was then Governor of Canada, resolved to place in the valley of the Ohio, eviden- ces of the French possession of the country, sent Louis Cele- ron with a company of soldiers to bury lead plates, in the mounds, and at the mouths of rivers, on which were written the claims of the King of France to the river and land on both sides, as a possession enjoyed by preceding kings, main- tained by their arms, and by treaties ; especially by the trea- ties of Byswick, Utrecht, and Aix-la-Chapelle. When the English colonists crossed the mountains, the French were collecting military stores on Lake Erie. They erected a fort at Presqu'Isle in the north western part of Penn- sylvania, Fort Le Bceuf on French Creek, Fort Yenango at the junction of French Creek with Alleghany river, and nearly opposite to Fort Yenango, Fort Michault, and Fort Du Quesne at the junction of the Alleghany and Monongahela rivers. All these forts were erected in 1753 and 1754. Washington was sentbyDinwiddie, the Governor of Virginia, to the commander of the French forces in the wilderness of North-western Pennsylvania, to demand from them a statement of their object in invading the British possessions ; to ascertain their numbers on the Ohio ; how they were likely to be assisted from Canada; what forts they had erected, and where; how they were garrisoned; and what had given occasion to the expedition.! These instructions were given in Oc- * Early History of Pennsylvania, App. 12. Plain Facts, pp. 22-3. + Spark's Washington, Vol. 2. Part I. WESTERN BOUNDARY OF ONTARIO. 11 tober, 1753. During Washington's absence, the Ohio Company, which had, five years before, received from the British Government, a large grant of land, west of the mountains, had taken measures to fortify and settle the point of land be- tween the Alleghany and Monongahela rivers upon which Fort Du Quesne was soon after erected. But when "Washing- ton returned with the letter of St. Pierre, the commander of the French troops, it was evident that he was come to hold the country by force, and victory alone could restore it to the Eng- lish colonists. The Virginians prepared for active hostilities, but the legislatures of New York and Pennsylvania, when called upon for aid, began discussing the question whether the French had really invaded his Majesty's dominions.* In the spring of 1754, Contrecceur, who had become commandant of the French forces upon the Ohio, demanded the surrender, without delay, of the unfinished fort of the Ohio Company. He asked by what authority they had come to fortify them- selves within the dominion of the king, his master; he declared their action to be so contrary to the treaty of Aix-la-Chapelle, that he knew not to whom to impute such usurpation, as it was incontestible that the lands along the Beautiful (Ohio) ri- ver belonged to the King of France. Ensign Ward, who, with a few troops, was then in charge of the fort, was ordered to retreat peacefully with his men, from the lands of the French King, and not to return. f Ward surrendered the fort, and re- tired up the Monongahela. The fort of the Ohio Company was completed by the French, and was, while in their possession, known as Fort Du Quesne. After this came the defeat and death of Jumonville, and the surrender of Fort Necessity by Washington.^ Both the governments of England and France expressed * Proud's History of Pennsylvania : New York Colonial Documents : London Do- cuments. + The letter of Contrecceur will be found in Craig's History of Pittsburg, also i the Pownall Manuscripts in the Library of Parliament, Canada. J Spark's Life of Washington, Vol. 2. 12 WESTERN BOUNDARY OF ONTARIO. Part i. their desire for peace. In January, 1755, France proposed to restore everything to the state it was in before the last war, and to refer all disputes to the Commissioners at Paris. On the 22nd, England replied that the west of North America must be left as it was at the treaty of Utrecht. On the 6th of Febru- ary, France answered that the claims formerly put forward by England were untenable, and proposed that the English should withdraw east of the Alleghany mountains, and the French to the west of the Ohio river. No answer was made to this proposition until the 7th March, when it was agreed to by England, provided France would destroy all her forts upon the Ohio and its branches. This the French Government re- fused to do.^ It was at this time rumoured, that, in case of war, the Indians, heretofore allies of England, would side with France ; and French forts along the Ohio and its tributaries, would have enabled both French and Indians to overawe the more western of the English settlements. This was a propo- sition to make the country between the mountains and the Ohio, neutral territory, which France wished to remain in a condition to control. The two Governments failing to agree upon a conventional boundary, the English G-overnment stood by what they regarded as their rights, recognized by France in the treaty of Utrecht, in which the Five Nations are declared to be under the protection of G-reat Britain ; and in a memo- rial delivered to the Duke Mirepoix on the 7th of June, 1755, they observe : " As to the exposition which is made in the French memorial of the 15th Article of the Treaty of Utrecht, the Court of G-reat Britain does not think it can have any foundation, either by the words or the intention of the Treaty. " The Court of Great Britain cannot allow of this article as relating only to the persons of the savages, and not to their country. The words of the Treaty are clear and precise, that is to say, the Five Nations or Cantons are subject to the * Stanley to Pitt. Thackeray's Chatham, Vol. 2. p. 581. Instructions to Varin, N. Y. Paris Documents 11, 2. Instructions to Vaudreuil, N. Y. Paris Doc, 10, 8. Part I. WESTERN BOUNDARY OF ONTARIO. 13 dominion of Great Britain, which, by the received exposition of all treaties, must relate to the country as well as to the persons of the inhabitants ; it is what France has acknow- ledged in the most solemn manner. She has well weighed the importance of this acknowledgment at the time of sign- ing the Treaty, and G-reat Britain can never give it up. The countries possessed by these Indians are very well known, and are not at all so undetermined as it is pretend- ed in the memorial ; they possess and make them over, as other proprietors do in all other places Whatever pretext might be alledged by France, in consider- ing these countries as the appurtenances of Canada, it is a certain truth that they belonged, and (as they have not been given up or made over to the English) belong still to the same Indian nations, which by the 15th article of the Treaty of Utrecht France agreed not to molest : nullo in posterum impedimento, aut molestia afficiant. " Notwithstanding all that has been advanced in this arti- cle, the Court of G-reat Britain cannot agree to France hav- ing the least title to the Eiver Ohio and the territory in question. " Even that of possession is not, nor can it be alleged on this occasion, since France cannot pretend to have had any such before the Treaty of Aix-la-Chapelle, nor since, unless it be that of certain forts unjustly erected lately on the lands which evidently belong to the Five Nations, or which these have made over to the Crown of G-reat Britain or its subjects, as may be proved by treaties and acts of the greatest au- thority. What the Court of G-reat Britain maintained, and what it insists upon, is, that the Five Nations of the Iro- quois acknowledged by France are, by origin or by right of conquest, the lawful proprietors of the Eiver Ohio and the territory in question. And as to the territory which has been yielded and made over by these people to G-reat Bri- tain, which cannot but be owned must be the most just and lawful manner of making an acquisition of this sort, she re- 14 WESTERN BOUNDARY OF ONTARIO. Pabt l claims it as belonging to her, having continued cultivating* it for above twenty years past, and haying made settlements in several parts of it, from the sources even of the Ohio to the Pichawillanes, in the centre of the territory, between the Ohio and the Wabache." In the war which followed, the French proved that they knew best how to manage the Indians, and they succeeded in a way the English were never able to rival, in attaching the Indians to their cause. The Indians said that the French treated them kindly, while the English settled upon their lands for their own benefit, spoiled their hunting grounds, and when they asked for arms and aid, forsook them, and left them exposed to their enemies.^ Both Washington and Braddock received their offers of assistance coldly, and treated them as slaves.f The French, on the contrary, appeared among them, not so much as masters, as companions and friends. When peace with France was concluded, the Indians under Pontiac were forming themselves into a confederacy, embracing all the tribes from the Susquehanna to the head waters of the Mississippi, for the purpose of holding the entire country west of the Alleghany mountains. "Be of good cheer, my fathers," said the tribes of the west to the French commander of Fort Chartres, in Illinois, " do not desert thy children ; the English shall never come here so long as a red man -lives. Our hearts are with the French ; we hate the English, and wish to kill them all. We are all united ; the war is our war, and we will continue it for seven years. The English shall never come into the west." The Indians were determined to destroy the forts, and the weak and scattered garrisons found throughout their dominions. Fort Sanduskey, Fort Miami, at the head of navigation upon the Miami river, Fort Owatanon in Indiana, Fort Mackinac, the Fort on the St. Jo- seph river, south of Lake Michigan, Forts Presqu'Isle, Le * Chief of the Iroquois at Easton, 1758. f Thomson's Inquiry into the Causes of the Alienation of the Delawares and Sha- wanese . London, 1758 ; and Craig's Olden Time. part I. WESTERN BOUNDARY OF ONTARIO. 15 Boeuf, and Venango, were all taken by the Indians, and most of the garrisons were massacred.* Forts Pitt and Detroit had to endure terrible sieges ; and it was not until they were in- formed by Noyen, the French commandant in Illinois, that France was conquered, that Canada would remain in the possession of the English, and that the French could not come to their assistance, that they were disposed to make peace.f It was not until the close of Pontiac's war that the English could accept the surrender of the Illinois country. The long-continued complaints of the Indians before the war of Pontiac made a strong impression upon the minds of English statesmen, and led to a change in the conduct of In- dian affairs. They had been before removed from the super- vision of the Colonial Governments ; and when the conquest of Canada was completed, and the Treaty of Paris ratified, there were men in England, among whom was Lord Hillsbo- rough, who were (both to avoid trouble in the future with the Indians, and because of the spirit of independence manifested by the colonists,) opposed to permitting settlements to be formed beyond the Alleghanies ; and this was declared, by the proclamation of the 7th of October, 1763, to be, for the pre- sent, the policy of the G-overnment. That proclamation * One only of the forest garrisons escaped, by the good conduct and address of its commandant. Lieutenant Gorell, in command of Green Bay, devoted himself to the task of conciliating the neighbouring savages. The Menemonies were sharers in the conspiracy, but they were attached to Gorell, and delayed the execution of the work assigned to them. On hearing of the fall of Mackinaw, Gorell called a council of their chiefs, told them he was going thrther to punish the enemies of his king, and offered to leave the fort in the meantime in their care. The chiefs were divided. The warriors weie waiting to strike the meditated blow ; but providentially at this juncture a depu- tation of the Dacotahs appeared to denounce the vengeance of that powerful confede- racy against the enemies of the English. The Menemonies laid aside their warlike designs. Gorell and his garrison passed down the bay, and along the lake to Macki- naw, under their escort, ransomed Ethrington and twelve of his men, and passed, by way of Lake Huron and the Ottawa river, to Montreal. — Albach's Annals of the West, pp. 168, 169. f See Bancroft's History of the United States, vol. 5, chap. 7, and Parkman's His- tory of the Conspiracy of Pontiac, where the authorities are cited. Gayarre attack* Noyen for his humanity. 16 WESTERN BOUNDARY OF ONTARIO. Part L caryed out of Canada the Province of Quebec. It annexed Oape Breton and Prince Edward's Island to Nova Scotia. It divided the Province of Florida, which had been ceded by Spain, and added to the western part, territory acquired from France by the Treaty of Paris. It added to the Government of G-renada the Grenardines, Dominico, St. Yincent and Tobago Islands. It annexed to the Province of Georgia all the lands lying between the Rivers Altamaha and St. Mary's. General Murray advised the English Government to make Canada a military colony, and to extend it westward to the Mississippi, in order to overawe the older colonists.* Shel- burne favoured the boundaries which were afterwards set forth in the proclamation.! Egremont rejected the proposi- tion, and insisted on the Mississippi as the western bound- ary. J Shelburne adhered firmly to his opinion, and after consi- derable delay, his view for a time prevailed. § The Earl of Egremont, on the 19th of September, informed the Lords of Trade that "His Majesty is pleased to lay aside the idea of including within the government of Canada the lands which are to be reserved, for the present, for the use of the In- dians."** Gol. George Crogan, the Deputy of Sir ¥m. Johnson, the Northern Superintendent for Indian affairs, having gone to England in 1764, was recommended by Sir William Johnson to the Lords of Trade and Plantations as a person whose tho- rough acquaintance with Indian matters, would enable him to impart to the Board much valuable information.-)- f I find among the papers of the Lords of Trade and Plantations, a * M. Frances au Due de Choiseul, 2 Sep., 1768. t Lords of Trade to Secretary of State, 8th June, 1763. X Secretary of State to Lords of Trade, 14th July, 1763. § Lords of Trade to the Secretary of State, 5th August, 1763. Secretary of State to the Lords of Trade, 19th Sep., 1763. ** The king said Lord C. J. Mansfield had advised him to show favour to Shelburne in order to play him and Egremont against each other, and by that means keep the power in his own hands. — Grenvlllc papers, vol. 2, p. 238. if See Simcoe Papers, Mss., vol. 1, Library of Parliament, Canada. Part I. WESTERN BOUNDARY OF ONTARIO. 17 letter from Col. Orogan, which is not dated, but which, it is highly probable, was written at this time. He therein sets forth what he considers the best plan of dealing with the In- dian Territories. He says, " That a natural boundary should be made between them (i. e. the Indians,) and us across the frontiers of the British Middle Colonies, from the heads of the River Delaware to the mouth of the Ohio, where it emp- ties into the Mississippi ; that the lands west of such a line should be reserved for the hunting grounds of the Six Na- tions, and the several tribes dependent on them, and that a reasonable consideration be given them as they are the ori- ginal proprietors of that tract of country, for all the land east of such boundary. This, in all probability, may be effected, and is the likeliest method to remove all suspicions of us. " The Indians, before the late war or the conquest of Que- bec, considered us in the light of a counterpoise to the power of the French, their ancient enemies, and were steady friends of the English on that account ;* but since the reduction of Canada, they consider us in a very different and less favour- able light, as they are now become exceedingly jealous of our growing power in that country. It is not necessary to enter into any part of our conduct towards them since the reduction of Canada, which might have raised their jealous- ies, or whether the French used any measures to spirit them up to what they have done ; we know them now to be a very jealous people, and to have the highest notions of liber- ty of any people on earth, and a people who will never con- sider consequences where they think their liberty likely to be invaded, though it may end in their ruin ; so that all that can be done now is to prevent such a defection of the In- dians for the future, by the boundary and good treatment. " By the concessions made by his Majesty, at the late Treaty of Peace, the country lying west of the Ohio to its mouth, and up the Mississippi to its sources, appears to be the boundary be- * Mr- Crogan here refers to the Iroquois, Delaware and Shawanese Indians. C 18 WESTERN BOUNDARY OF ONTARIO. Part i# Iween the French and us, in that part of the country, and of course become our frontiers ; as the west side of the Mississippi will no doubt be settled by the French.* I would offer to your Lordship's consideration whether it would not be good policy at this time, while we certainly have it in our power, to se- cure all the advantages we have got there by making a pur- chase of the Indians inhabiting the country along the Mis- sissipi from the mouth of the Ohio up to the sources of the Eiver Illinois, and there plant a respectable colony in order to secure our frontiers and prevent the French from any at- tempt to rival us in the fur trade with the natives, by draw- ing the Ohio and Lake Indians over the Mississippi which they have already attempted by the last accounts we have from Detroit. From planting this new colony, many great advantages would arise to this kingdom, as well as to his Majesty's subjects in North America; it would extend trade and commerce with the furthermost nations of Western Indians hitherto unknown to us, which would enable the trad- ing people in the colonies to import more of the manufactures of this kingdom than they have heretofore done, which is an object of the greatest consequence to a trading people; it would extend his Majesty's settlements in America and make his subjects appear more formidable in the eyes of the Indians, which is now become abolutely necessary, in order to preserve the peace between them and us; it would cut off all the communication between the French and those na- tions settled over the large tract of country on this side of the Mississippi,, and gives us the absolute dominion over all the Up- per Lakes — Huron, Michigan and Superior, and bids fair to give a lasting peace to all his Majesty's southern colonies : be- sides, from this colony, in a very few years we should be able to supply with provisions of every kind the several posts or marts that may be erected for trade with the natives on much easier terms, than they have or can be supplied * This observation fixes the date of this communication, as it became known in 1765 that France had ceded the country west of the Mississippi to Spain. Part I. WESTERN BOUNDARY OF ONTARIO. 19 from any of our colonies. At present it may be objected that the establishing such a colony, so far from the sea, w'll be at- tended with too great an expense to the nation, which may be easily answered. The fertility of the country and the fine- ness of the climate is now known to us which is sufficient to encourage industrious people to settle in it in a very little time without any expense to the nation, or hindrance to the growth of the present colonies, and I dare say that people enough will be found that will undertake it." * There is one part of Col. Crogan's recommendation which was scarcely practicable at the time it was made — that relat- ing to the Indian reservation, and it is evident that he was not aware of the extent to which the Crown had already alie- nated lands within the limits he proposed to reserve for the Six Nations. Immediately after the treaty of Logstown, in 1748, Lee and Washington of Virginia, Hanbury of London, and others, formed an association, called the Ohio Company, and petitioned the king for a grant beyond the mountains. The application was approved of, and the G-ovemment of Vir- ginia was ordered to make a grant of 500,000 acres, within the bounds of that colony. Of this [grant, 200,000 acres were to be at once located by the Company; and if one hundred fami- lies were settled within seven years, the grant was to be free from quit rent for ten years. The Company agreed to build a Fort sufficient for the protection of the settlement. Other com- panies were formed, about the same time, within the Province of Virginia, to colonize the "West. On the 12th of June, 1749, 800,000 acres were granted to the Loyal Company, from the line of Canada on the North and West. In October, 1751, 100,000 acres were granted to the G-reen Briar Company. In 1757, the books of the Secretary of Virginia show that three millions of acres had been alienated beyond the Alleghaney Mountains. The report of Blair, the Clerk of the Virginia Council (1768 or 1769,) states that most of the land grants, west of the mountains within that Province, were made before 1754. f * New York Historical Documents, vol. 7, pp. 603, 604. + Quoted by Albach Western Annals, p. 129. 20 WESTERN BOUNDARY OF ONTARIO'. Pakt i:. As soon as Fort Du Quesne had fallen, the border settlers of Pennsylvania and Virginia, who had been driven from their homes, returned. In 1760, the Ohio Company began again to carry out their plan of settlement. They once more sent to> England, for such directions to be given to the Government of Virginia, as would enable them to do so. At this time, General Monkton, by a treaty at Fort Pitt r obtained leave from the Indians to establish posts within their unceded territories, with land enough about each post to raise corn and vegetables for the subsistence of the garri- son * In the year 176 4-, the English Ministry had in contemplation an Act for the proper regulation of trade with the Indians, and for raising a fund, by a duty upon the trade, for the support of the officials of the Indian Departments. They also proposed where and how the trade was to be carried on. They had re- solved on acquiring more territory from the Indians, so as to remove the boundary between the colonists and the Six Na- tions beyond the lands upon which any white man had a claim. Upon the Indian side of this new boundary, no settlements were to be permitted. In consequence of this determination,, instructions were transmitted to Sir "William Johnson, direct- ing him to call a council of the Indians, and informing him that a boundary might be ultimately established west of the terri- tory upon which any claims had been created by grants from the Crown, or by actual occupation. Beyond the boundary so established by treaty with the Indians, no white man was to be allowed to settle. f With a view to giving effect to this policy, Sir ¥m. Johnson r the Northern Superintendent, was instructed to convoke the Six Nations, and to submit to them the proposition for a new * Craig's Olden Time, vol. I. : Plain Facts, p. 120. t Franklin's Reply to the reports of the Lords of Trade and Plantations, 1772 — Spark's Franklin, vol. 4. The Lord of Trade to Sir W. Johnson, N. Y. Hist. Doc. vol. 8, pp. 037 et seq y ART i. WESTERN BOUNDARY OF ONTARIO. 21 boundary.* A conference was held with them at John- son's Hall, in May 1765. Sir William informed the Indians that the king, whose generosity and forgiveness they had al- ready experienced, being very desirous of putting an end to the disputes between them and his people, concerning lands, and to do them strict justice, had fallen upon the plan of a boundary between them and his people, as the best method of accomplishing this object; he told them that "the settling of such a division line will be best for both white men and Indians, and he hoped it would be such a line as would best agree with the extent and increase of each Province : he wanted to know in what manner they would choose to extend it, and what they would heartily agree to, and abide by, in general terms." He said he would consult the governors of the Provinces in- terested as soon as he was fully empowered ; and that when- ever the whole would be settled, and that it appeared that they had so far consulted the increasing state of the colonists as to make any convenient cessions of ground where it was most wanted, that then they would receive a considerable present in return for their friendship.f The Indians agreed to the proposition of a boundary line. Within three years, thirty thousand whites settled beyond the mountains. A change of administration took place in England. The contemplated Bill for establishing the boun- dary and regulating the Indian trade was not brought for- ward. The letters of Sir William Johnson were mislaid by Ministers, and he received no instructions enabling him to fulfil his engagements with the Indians .$ The Indians, find- ing their country everywhere invaded, began to believe they had been duped by the fair promises made by the northern superintendent. A border war was imminent. Many settlers *The plan of a boundary line having been communicated to the Superintendent for Indian Affairs, they have [though not strictly authorized to do so] made it a subject of discussion and negotiation with the Indians in their respective districts. Lords of Trade to Earl Shelburne. N. Y. Hist. Doc, vol.8., p. 1005. *t* N. Y. Hist. Doc. vol. 8, where the correspondence will be found, + See Franklin's letters to his son. Spark's Life of Franklin, vol. 4. 22 WESTERN BOUNDARY OF ONTARIO. Part L were massacred. A detachment of soldiers were sent in 1766, to Eedstone creek and Cheat river, to remove those who had settled at these places.* On the 7th of December, 1767, General Gage, the Comman- der-in-Chief of the forces in the Colonies, wrote to the Gover- nor of Pennsylvania, on the subject of the Indians' grievances, and of the disregard paid by the western settlers to the several proclamations that had been published ; and he declares that the removal of those who had settled on Red. Sandstone creek and Cheat river, " has been only a temporary expe- dient, as they are returned again to the same encroachments in greater numbers than ever." The Governor of Pennsylva- niu communicated the letter which he had received from General Gage to the Assembly of that Province on the 5th of January, 1768, and eight days after, the Assembly presented a reply to the Governor ; and, on the 19th, the Speaker and the Committee of Correspondence informed the London Agents, by order of the House, — "That the delay of the confir- mation of the boundary, the natives had warmly com- plained of, and that although they have received no consider- ation for the lands agreed to be ceded to the Crown on our side of the boundary, yet that its subjects are daily settling and occupying those very lands." The Legislature of Pennsylvania, finding that the Indians were becoming more and more inclined to war, on account of the unauthorized encroachments upon their lands, and not doubting that orders would soon arrive from England to confirm the inchoate treaty of May, 1765, voted one thousand pounds to purchase presents for the Indians upon the Ohio. A confer- ence was held at Fort Pitt, in May, 1768. The Indians said that their grievances had long been known, and were still un- redressed ; that settlements were still extending further into their country, and some of them were upon their war-path; that the English had laws to govern their people, and it would be a strong proof of the sincerity of their friendship, if * Plain Facts. Part I. WESTERN BOUNDARY OF ONTARIO. 23 they would remove the settlers from their lands ; " they will have time enough to settle the lands after they have been purchased."^ As soon as Sir William Johnson received orders from Eng- land, relative to a treaty with the Indians, he at once took the necessary steps to secure a full attendance. Notice was given to the Colonial Governments interested, and to the Six Nations, the Shawanese, and the Delewares, and. a Congress was appointed to meet in October, at Fort Stanwix. It was at- tended by Sir William Johnson and his deputies ; by the re- presentatives of Virginia, Pennsylvania, and New Jersey ; and by the agents of the traders who had suffered in the war of 1763. Deputies from the Six Nations, the Delewares, and the Shawanese, were present. On the first of November a line was agreed upon beginning at the north, where Canada creek joins Wood creek, and extending south to the Dele- ware river, down that river to Aw an dee creek, up the Creek to Burnett's Hills, west along these hills to the Susquehanna, and from the nearest fork of the wect branch of that river to Kittaning, on the Alleghany, and thence down the Ohio to the Cherokee river. At the mouth of Kanawha it met the line of Stuart's treaty with the Cherokees. Beyond this line Sir William Johnson was instructed not to go, as it was Hills- borough's policy to form an unbroken line of Indian frontier, as an impassable barrier to the extension of the colonial settle- ments, from the Gulf of Mexico to Lake Ontario. But the Six Nations claimed the country to the River Cherokee (now Tennessee) and it was the intention of Sir William John- son to put an end to their title to lands south of the Ohio.f One deed for a part of this land was made on the third * Proud's History of Pennsylvania, vol. 2. Colonial Archives of Pennsylvania. ■f See the accompanying map from N. Y. Hist., Doc. vol 8, where the treaty also will be found. Bancroft censures Johnson's conduct for treating for territory be- yond the Kenawha, and commends the conduct of Stuart, of the Southern Indian De- partment. See Bancroft's History, vol. 5, ch. 38. Franklin, on the contrary, con- demns Stuart for treating with the Cherokees for any territory north of the Cherokee river. See Franklin's reply to the Lords of Trade. Franklin's works vol. 4. 24 WESTERN BOUNDARY OF ONTARIO. Pabt l of November, to "William Trent, attorney for twenty-two traders whose goods had been destroyed during the war with Pontiac. This tract of land lay between the Mon- ongahela and Kanawha rivers, and was called by the traders Indiana. Two days later a deed was made to the king for the remainder, and the Indians were at once paid. The chiefs of the Six Nations signed for themselves, their allies and dependents. The Shawanese and Deleware depu- ties did not sign these deeds. * By this ^treaty the boun- dary of the territory thrown open for settlement along the middle colonies, was removed " from the sources of the rivers which fall into the Atlantic Ocean, from the west or north- west," where it was "for the present" fixed by the procla- mation of 1763, to the Ohio river. The western boundary of Virginia, became at once the engrossing topic to the people of that Province. Lord Bote- tourt, who had shortly before become Governor of Virginia, cordially seconded their wishes, and declared he was ready to put in pledge his life and fortune to carry its jurisdiction on the parallel of thirty-six and-a-half degrees North latitude, as far west as the Treaty of Fort Stanwix would permit, f This boundary he was told would give room for settlement for ten or twelve years. J The Earl of Shelburne, on the 5th of October, 1767, addressed a letter to the Lords of Trade, enclosing memorials and peti- tions which had been presented to the king from English and Colonial merchants, on the state of the Indian trade. He suggested the abolition of the Indian Departments, which had been created at a time when a general union of the Colonies, under the immediate direction of the king was contemplated, with a view, the better to resist the encroachments of France. He intimated that it would be well to trust both the Trade and * Plain Facts, page G5--104. N. Y. w Hist. Doc. vol 8. Stone's Life of Sir W. Johnson, f Botetourt to Hillsborough, 24th Dec, 1768. X Lewis & Walker to Lord Botetourt, in Botetourt to Hillsborough, 11th Feb'y, 1769. Bancroft, vol. 5, ch. 38. Part I. WESTERN BOUNDARY OF ONTARIO. 25 the general management of Indian affairs to the different Colonies, subject to the king's disallowance. He then addressed himself to the subject of establishing new colonies. He says : " His Majesty likewise commands me to refer to your Lord- ship's extracts from several letters of Sir Jeffrey Amherst and General G-age, recommending the establishment of fur- ther new governments, on the Mississippi, the Ohio, and at Detroit, at one or more of which places a considerable body of French have been suffered to remain since the peace, without any form of government ; also, different proposals from private people for undertaking establishments in these parts. Your Lordships will consider the force of the several arguments which are brought in fay our of these settlements, setting forth that they will secure to his Majesty's subjects the com- mand of the Fur and Peltry Trade, in preference to the French and Spaniards, preventing any smuggling with them, which, as appears, by the extracts of General Grage's and Mr. Crogan's letters, amounts to so considerable a sum annually as to become a national object ; that they will be an effectual check to the intrigues of those nations, for gaining the affec- tions of the Indians ; that they will promote the great object of population in general, and increase the demand for the consumption of British manufactures, particularly by afford- ing to the Americans an opportunity of following their natural bent for the cultivation of the lands, and offering a convenient reception and cultivation for their superfluous hands, who otherwise cooped up in narrow bounds, might be forced into manufactures, to rival the mother country — an event, which, any other way, it might be difficult to pre- vent ; that by raising provisions of all sorts to supply such interior garrisons, as it may still be found necesary to keep up, they would greatly contribute to lessen the extraordinary expense accruing, not only from the establishment of the different Forts and the various contingent charges, but also from the necessity of transporting provisions as well as stores to supply the garrisons from the Provinces on the coast, by 26 WESTERN BOUNDARY OF ONTARIO. Part I. the rivers and by the great lakes as well as by the land portage, all which not only occasions an accumulated ex- pense, but also, often reduces the garrisons to great distress, and in case of an Indian war, when alone they can be useful, leaving them in a very precarious situation ; that these new Colonies will prove in effect a protection and a security to the old, forming of themselves an exterior line of defence, rendering most of the interior Forts useless, and equally contributing to reduce the present Indian and Military Ex- pense ; that being situated behind the other Provinces, they will be of singular use to keep the Indians in awe, and pre- vent their hostile incursions upon the frontiers to the east- ward, while those savages who are hemmed in by our settlements on both sides, must either become domiciliated, and reconciled to our laws and manners, or be obliged to retire to a distance. " In case your Lordship should think it right to advise his Majesty to establish these new governments, you will consider whether it will be practicable to fall upon such a plan, as will avoid a great part of the expense incurred by the esti- mates of the new governments established after the peace."* William Franklin, son of Benjamin Franklin, the Governor of New Jersey, Sir William Johnson, the Northern Superin- tendent of Indian Affairs, General Gage, and several fur-traders of Philadelphia, proposed to acquire, for colonization, a great portion of the North West Territory, embracing all the country from Lake Erie to the Mississippi, North of the Wabash and Miami rivers, and south of Fox river and the Wisconsin. The tract was estimated to contain sixty-three millions of acres. Franklin, who had gone to England to promote the Walpole Grant, South of the Ohio, acted as the agent of those who wished to undertake the colonization and government of this vast extent of territory. And in his letters to his son, extend, ing over a period of two years, from April 1766 to April 1768, he puts us in possession of the views of Lord Shelbuine, Gene- * N. Y., Hist, Doc. vol. 8. Part I. WESTEKN BOUNDARY OF ONTARIO. 27 ral Conway, Lord Clare, and Lord Hillsborough, on the pro- priety of establishing new Colonies in the country, acquired from France.* We learn from these communications that Earl Shelburne, who favoured the enterprise, delayed bringing the matter up in Council, for more than a year, until he thought the Lords of Trade could be induced to make a favourable report. The subject was brought under their attention in October, but no report was made until the March following. In the mean time the affairs of the Colonies were taken from under the control of Lord Shelburne, and consigned to a separate Department of State, and Lord Hillsborough was made the first Colonial Secretary. The changes which at that time took place in the Ministry, indicated a change in the Colonial policy. The report of the Lords of Trade, when made, was decidedly adverse to the policy of establishing new Colonies, and pointed towards the adoption of the views expressed by Hillsborough, Murray, andEgremont in 1763 — the extension of the Province of Quebec to the Mississippi. They say that "the proposition of forming inland Colonies in America is, we humbly conceive, entirely new, it adopts principles in respect to American settlements different from what have hitherto been the policy of this kingdom, and leads to a system which, if pursued through all its consequences, is, in the present state of that country,, of the greatest importance. " The great object of colonizing upon the Continent of North America, has been to improve and extend the commerce, naviga- tion, and manufactures of this kingdom, upon which its strength and security depend. " 1. By promoting the advantageous fishery carried on upon the northern coast. " 2. By encouraging the growth and culture of naval stores, and of raw materials to be transported hither in exchange for perfect manufactures and other merchandise. * See Appendix B. , consisting of extracts from these letters. 28 WESTERN BOUNDARY OF ONTARIO. Part I. " 3. By securing a supply of lumber, provisions, and other necessaries for the support of our establishments in the Ame- rican Islands. " In order to answer these salutary purposes, it has been the policy of this kingdom to confine her settlements as much as possible to the sea coast, and not to extend them to places inaccessible to shipping, and consequently more out of the reach of commerce ; a plan, which, at the same time that it secured the attainment of these commercial objects, had the further political advantage of guarding against all interfering of foreign powers, and of enabling this kingdom to keep up a superior naval force in those seas, by the actual possession of such rivers and harbours as were proper stations for fleets in time of war It was upon these prin- ciples, and with these views, that Government undertook the settling of Nova Scotia in 1749 ; and it was from a view of the advantages represented to arise from it in these different articles, that it was so liberally supported by the aid of Par- liament. " The same motives, though operating in a less degree, and applying to fewer objects, did, as we humbly conceive, in- duce the forming the Colonies of Georgia, East Florida, and West Florida, to the south, and the making those provincial arrangements in the proclamation of 1763,* by which the interior country was left to the possession of the Indians." This policy the Lords of Trade go on to state would be frus- trated by forming settlements in the interior. " More especially, where every advantage, derived from an established government, would naturally tend to draw the stream of population ; fertility of soil and temperature of climate offering superior incitements to settlers, who, exposed to few hardships, and struggling with few difficulties, could, with little labour, earn an abundance for their own wants, but without a possibility of supplying ours with any considera- ble quantities. Nor would these inducements be confined * See Appendix F. Part WESTERN BOUNDARY OF ONTARIO. 29 in their operation to foreign immigrants, determining their choice where to settle, but would act most powerfully upon the inhabitants of the northern and southern latitudes of your Majesty's American dominions ; who. ever suffering under the opposite extremes of heat and cold, would be equally tempted by a moderate climate to abandon latitudes pecu- liarly adapted to the production of those things which are by nature denied to us, and for the whole of which we should,, without their assistance, stand indebted to, and dependent upon, other countries." The Lords of Trade observe that before 1749, the sea coast of the empire in America, from the Province of Maine to the mouth of the St. Lawrence, had been neglected, although it abounded in every species of naval stores : that France had, at an immense expense, attempted, by the war which ended at that period, to wrest the country from Great Britain ; that aware of its great commercial value, the country was held, and to further this end, and make the possession more sure, the settlement of Nova Scotia had been promoted, though at a very great expense to the kingdom ; that in consequence of the great commercial advantages to be derived from the settlement of the north eastern coast, associations had been formed for that purpose. Ten thousand persons had gone from the other Provinces to settle in Nova Scotia, who had either engaged in the fisheries or become exporters of lumber and provisions to the West Indies, and that many of the principal persons of the Province of Pennsylvania were engaged in the settlement of twenty-one townships of one hundred thousand acres each in Nova Scotia ; that the success of these settlements had given en- couragement to like settlements in Maine and Massachusetts, in the Islands of St. John and Cape Breton, and in the Floridas. They say " they are therefore fully convinced, that the encouraging settlements upon the sea coast of North America is founded in the true principles of commercial po- licy ; as we find upon examination, that the happy effects of that policy are now beginning to open themselves, in the es- 30 WESTERN BOUNDARY OF ONTARIO. Part l tablishment of these branches of commerce, culture, and navigation, upon which the strength, wealth, and security of this kingdom depend ; we cannot be of opinion, that it would in any view be advisable, to divert your Majesty's subjects in America from the pursuit of those important objects, by adopting measures of a new policy, at an expense to this kingdom, which in its present state it is unable to bear." The Lords of Trade next proceed to consider the arguments in support of the particular establishments recommended by- Lord Shelburne, which they say are reducible to the following propositions : — " 1st. That such colonies will promote population, and in- crease the demand for and consumption of British manufac- tures. " 2nd. That they will secure the fur trade, and prevent an illicit trade, or interfering of French or Spaniards with the Indians. " 3rd. That they will be a defence and protection to the old colonies against the Indians. "4th. That they will contribute to lessen the present heavy expense of supplying provisions to the different forts and garrisons. " 5th. That they are necessary in respect to the inhabitants already residing in those places where they are proposed to be established who require some form of civil government. " We admit as an undeniable principle of true policy, that with a view to prevent manufactures it is necessary and proper to open an extent of territory for colonization proportioned to the increase of people, as a large number of inhabitants, cooped up in narrow limits, without a sufficiency of land for produce would be compelled to convert their attention and industry to manufactures ; but we submit whether the en- couragement given to the settlement of the colonies upon the sea coast, and the effect which such encouragement has had, have not already effectually provided for this object, as Part I. WESTERN BOUNDARY OF ONTARIO. 31 well as increasing the demand for, and consumption of Bri- tish manufactures, an advantage which, in our humble opin- ion, would not be promoted by these new colonies, which beino- proposed to be established, at the distance of above fifteen hundred miles from the sea, and in places which, upon the fullest evidence, are found to be utterly inaccessible to shipping, will, from their inability to find returns wherewith to pay for the manufactures of Great Britain, be probably led to manufacture for themselves : a consequence which ex- perience shews has constantly attended in greater or less de- gree every inland settlement, and therefore ought, in our humble opinion, to he carefully guarded against by encouraging the set- tlement of that extensive tract of sea coast hitherto unoccupied ; which together with the liberty that the inhabitants of the middle colonies will have (in consequence of the proposed boundary line with the Indians) of gradually extending themselves back- wards, will more effectually and beneficially answer the object of encouraging population and consumption, than the erection of new governments ;^ such gradual extension might through the medium of a continued population, upon even the same extent of territory, preserve a communication of mutual commercial benefits between its extremest parts and G-reat Britain, impossible to exist in colonies separated by immense tracts of unpeopled desert.f As to the effect which it is sup- posed the colonies may have, to increase and promote the fur trade, and to prevent all contraband trade or intercourse be * This gradual settlement Hillsborough opposed in 1772. See Report of Lords of Trade on the application of the Ohio Company. Vol. 10, North American Pamphlets. t The colonists were inhibited by law from exporting sugar, cotton, rice, molasses, indigo, pitch, tar, turpentine, wool, ginger, masts, yards, bowsprits, beaver, peltry, hides, skins, whalefins, and other products of their industry, to any place but Great Britain, not even to Ireland. Foreign ships were excluded from colonial ports. In- tercolonial trade in wool, or woollen goods was forbidden. An English sailor must not purchase woollen clothing beyond the value of two pounds in a colonial port. The printing of the Bible in English was prohibited. No American hat could be sent from one colony to another, nor could it be loaded on any horse, cart or car- riage for conveyance. Slitting mills, steel furnaces, and plating forges to work with a tilt hammer, were prohibited. Bancroft, Vol. iv., chap. 12. Eranklin's Letters to Shirley. 32 WESTERN BOUNDARY OF ONTARIO. Part l tween the Indians under your Majesty's protection, and the French or Spaniards ; it does appear to ns that the extension of the fur trade depends entirely upon the Indians being un- disturbed in the possession of their hunting grounds ; that all colonizing does in its nature, and must, in its consequen- ces, operate to the prejudice of this branch of commerce, and that the French and Spaniards would be left in possession of a great part of what remained, as New Orleans would still continue the best and surest market. " As to the protection which it is supposed these new colo- nies may be capable of affording to the old ones, it will, in our opinion, appear, on the slightest view of their situation, that so far from affording protection to the old colonies, they will stand most in need of it themselves. " It cannot be denied, that new colonies would be of advan- tage in raising provisions for the supply of such forts and garrisons as may be kept up in the neighbourhood of them, but as the degree of utility will be proportioned to the num- ber and situation of these forts and garrisons which upon the result of the present enquiry it may be thought advisable to continue, so the force of the argument will depend upon that event. " The present French inhabitants in the neighbourhood of the lakes will, in our humble opinion, be sufficient to fur- nish with provisions whatever posts may be necessary to be continued there ; and as there are also French inhabi- tants settled in some parts of the country, lying upon the Mississippi between the Rivers Illinois and the Ohio, it is to be hoped that a sufficient number of these may be induced to iix their abode, where the same convenience and advantage may be derived from them The settlements already existing as above described, which being formed under military establishments, and ever subject to military authority, do not, in ur humble opinion, require any further superintendence than that of the military officers commanding' at these posts'' No one can read over the various reports of the Lords of Trade Part I. WESTERN BOUNDARY OF ONTARIO. 33 and Plantations to the Committee of the Privy Council, with- out being struck with the change that their policy underwent between 1748 and 1774. In 1 748 they reported to his Majesty's Most Honourable Privy Council, " that the settlement of the country lying westward of the great mountains, as it was the centre of the British Dominions, would be for his Majesty's interest, and the advantage and security of Virginia and the neighbouring Colonies." They again reported to the Privy Council in favour of this grant to Hanbury, Lee and others, in which report they say that they had " fully set forth the great utility and advantage of extending our settlements beyond the great mountains (which report has been approved of by your Lordships). And as by these new proposals there is a great probability of having a much larger tract of the said country settled than under the former, we are of opinion that it will be greatly for his Majesty's service, and the wel- fare and security of Virginia, to comply with the prayer of the petition." But there was, in truth, some reason for this change. The difference was not so great between Lords Hali- fax and Hillsborough, as between the years 1748 and 1768. England at the one period was competing with France, for the possession of the Valley of the Ohio, and the South Shore of the St. Lawrence, and the Great Lakes. She felt that her claims would be strengthened by the actual occupation of the country ; and she threw no obstacles in the way of the adven- turous who courted danger, and the enterprising who sought wealth. Her colonists were her allies, on the sea coast, and beyond the western settlements, they fought with her, and for her, and victory crowned their united efforts. They won from France a territory far more extensive than that which was, before the war, in the possession of the colonists. When France had withdrawn from America, the colonists felt less dependent upon the mother country. Not a few public men in Great Britain declared that it would be for the interest of their country, to restore to France the Valley of the St. Law- rence ; that their success had destroyed the balance of power D 34 WESTERN BOUNDARY OF ONTARIO. Part i. upon the North American Continent; that the colonists, no longer requiring their assistance, would soon weary of their authority.^ Chatham, Shelburne, Camden and Conway, the public men who strove to prevent colonial taxation, one after another, ceased to be among the advisers of the Crown. The Colonial policy became less and less liberal, and the danger which was dreaded, was created by the policy which was pur- sued. Ministers undertook to hold the Valley of the Ohio, against the colonists, as France had held it twenty years be- fore against both. No new colonies were to be formed. The climate of the unpeopled West was too favourable, the soil was too fertile, and the country was too far away. They would too soon cease to be hewers of wood and drawers of water to G-reat Britain. They would produce wealth for themselves beyond the reach of a parental hand, f Lord Hillsborough not only opposed the establishment of new provinces north of the Ohio, but sought to prevent the colonization of the lands acquired from the Indians by the Treaty of Fort Stanwix ; and because his colleagues were not willing to go quite so far, he resigned his seat in the Cabinet. With the exception of the policy or impolicy of settling this purchased district, the views of Hillsborough became the poli- cy of the Grovernment that introduced the Quebec Bill. The object of that Bill was declared by its promoters- to be — to embrace all the French settlements in British America, in the new Province of Quebec; to protect the Indians ; to make uni- form regulations relating to the fur trade ; to prevent coloniz- ation ; and to give to the French population, in the territory ceded by France, the rights and privileges guaranteed to them by the Treaty of Paris. J The introduction of the Quebec Bill proved that the policy which had been pursued, since the con- quest of Canada, in dealing with the French population, was * See Spark's Franklin. Vol. 4 f See Lords of Trade Report 1772, on the Walpole Land Grant. N. American Pamphlets vol. 10. Library of Parliament. X See the preamble and also the speeches of Thurlow and Wedderbnrn, in Appen- dix C. Also, Lords of Trade to Sir W. Johnson, N. Y. Hist. Doc, vol. 8. Part I. WESTERN BOUNDARY OF ONTARIO. 35 about to be abandoned. The French had been accused, and not without reason, of haying secretly encouraged the Indians under Pontiac to make war upon the English, and the in- structions to Governor Murray, in 1763, show that the Pro- vince of Quebec was to be ruled by an iron hand.* The laws under which the inhabitants had been governed, before the conquest, were abrogated. A man who was ignorant of their language and their ancient laws and usages, was made their judge. They were allowed to hold no offices, civil or military. It was supposed they were incapacitated on account of their religion by the laws of England, which had been intro- duced in the gross. The magistrates and the militia officers appointed over them, were men who had come to the Pro- vince as suttlers to the troops, or traders among the Indians. It was said, in defence of the Quebec Bill, which removed the disabilities of the French, that the magistrates had rendered their powers useful to their business. The French debtor fre- quently found himself cited before a justice of the peace, for a small sum, and required to make instant payment, at a time when it was well known, that payment was impossible, or sub- mit to incarceration until his creditor was satisfied; and if the debt exceeded two pounds, he could be dragged to Quebec from the most distant part of the Province.! " The history of the world," wrote Lord Mansfield to Grenville, " don't fur- nish an instance of so rash and unjust an act."$ When the Proclamation establishing Quebec and the Flori- das was published, the English had not yet acquired posses- sion of all the French military posts in the ceded territory ; and it was not until two years later that St. Ange, the French commandant at Fort Chartres, surrendered the Illinois coun- try to Captain Stirling, who went thither with one hundred * American Archives, fourth Series, where the commission to Murray will be found. + North American Pamphlets, vol. 12. Library of Parliament. + For Lord 0. J. Mansfield's letter see appendix D. Letter to Grenville, Gren- ville papers, vol. 2., p. 476. 36 WESTERN BOUNDARY OF ONTARIO. Part u soldiers from Fort Pitt * to obtain possession. Major Loftus had essayed to go up the Mississippi in the spring of 1764, with four hundred men, to accept the surrender, but was prevented by an attack of a few Indians upon the banks of that river, and he returned again to Mobile. Captain Stirling, without delay, published a proclamation from General G-age.. setting forth the rights guaranteed to the French inhabitants of Canada, by the Treaty of Paris, f Stirling remained but a short time, and was superseded by Major Farmer, of whose administration of the government little is known. The next person who held the office of Commandant in that country, was Colonel Reed, who made himself odious to the population, by acts of military oppression, occasioned by their ill concealed dislike to British authority. On the oth of September 1768, Lieutenant-Colonel Wilkins, who had been appointed by G-eneral Gage, to supersede Colonel Eeed, arrived at Fort Chartres, and, in the following month, he issued a pro- clamation, by order of G-eneral Gage, establishing a court of justice in Illinois, for the purpose of settling all disputes and controversies between man and man, and all claims in relation to property, both real and personal. Courts were held at Fort Chartres once in each month. This system, though accepted as preferable to a military tribunal, did not satisfy the people. They demanded trial by jury; but this was refused, and it is said, the court became unpopular. $ The government of all the Indian Territories was under the absolute control of the Commander-in-Chief of the King's forces in North America. It is not surprising that justice was sternly administered in these remote districts, and that commanders were guilty of gross abuses, where they could be neither restrained by law nor by public opinion. Lord Shelburue informed Dr. Franklin * Albach says Stirling went from Detroit. t See Appendix E. t Albach's Annals of the West ; Brown's History of Illinois ; Monette's History of the Mississippi valley; Grayarre's History of Louisiana ; Parkman's Conspiracy of Pontiac. Part I. WESTERN BOUNDARY OF ONTARIO. 37 that Major Farmer had drawn £30,000, as extraordinary charges, on going to take possession of the Government of Illinois.* In April, "1769, we find Colonel Wilkins, of his Majesty's 18th Royal Eegiment of Ireland, Governor and Commandant throughout the Illinois country," making ex- tensive grants of lands to several of his friends in Illinois and -elsewhere. " for the better settlement of the Colony, and the Governor agreed to be interested to the extent of one-sixth part thereof."! Wilkins was the last Governor of Illinois ap- pointed by the Commander-in-Chief, at all events, the last of whom I have been able to find any account. After 1774, the G-overnor of the Illinois country was Lieutenant under the Governor of the new Province of Quebec. In November, 1773, the year prior to the passage of the Quebec Act, the people of Illinois, failing to obtain from Ge- neral Gage the reforms in their government which they desired, addressed themselves directly to Lord Dartmouth,:}: the Secretary of State for the Colonies. He pronounced their demand " very extravagant." A plan of government was sketched out by the Ministry for the Colonies of the west. The people of Illinois protested against it. u Should a plan of government so evidently tyrannical be established," said Blouin, the agent of Illinois, to Lord Dartmouth, " it could be of no long duration." About the same time the French inhabitants of old Quebec were petitioning the king for a restoration of their ancient laws, the toleration of their religion, the removal of their civil and political disabilities, and the restoration of its ancient limits. The English inhabitants petitioned his Majesty for the main- tenance of the English law, and the election of a General As- sembly, " as there is a sufficient number of Protestant subjects residing in and possessed of real property in this Province, * Franklin's letters to his son, October 11, 1767. See extracts in appendix B. + See American State papers, vol. 2. Public Lands, page 180. This volume con- tains complete plans of the French settlements in Illinois. X Dartmouth to Gage, 4 Nov. 1772 ; Gage to Dartmouth, 6 January, 1773 ; Dart- mouth to Gage, 3 March, 1773 ; Daniel Blouin to Lord Dartmouth, 4 Nov. 1773. 38 WESTERN BOUNDARY OF ONTARIO. Part u and who are otherwise qualified to be members of a General Assembly/' * The people in every part of the territory conquered from France, were asking for a change in the systems of govern- ment, which had been established by the English. At the conqnest, the French population of Illinois was about three thousand, f At Yincennes, upon the Wabash, there was a colony of between four and five hundred. J Many from the villages alongthe east shore of the Mississippi, joined their coun- trymen on the other side, before they learned of the cession to Spain. || Those that remained remonstrated to General Gage against the corruption and favouritism of Wilkins. They asked for institutions like those of Connecticut, and declared that no irresponsible government could give satisfaction. " A regular constitutional government for them," said Gage to Hillsbo- rough, " cannot be suggested. They don't deserve so much attention." " A regular government for that district," rejoined Hillsborough, " would be highly improper." Hillsborough suggested their removal to some place within the limits of any established colony. § This, however, was impracticable; as any attempt to carry out such a policy would have led to their settlement beyond the Mississippi ; and an expatriated population upon the frontier was to be dreaded. Towards the colony at Yincennes the Government could act- upon this policy with less hesitation, as the inhabitants were farther * See volume 12, North American Pamphlets, Library of Parliament, where both petitions will be found ; and also the Masseres' Papers. t Martin estimated the population of Louisiana, in 1763, at 13,538. Of whom 891 were in that part of Illinois, west of the Mississippi. East of the Mississippi, and before the French crossed the river to avoid British rule, the population of the several posts arxd villages was 3,000. X 427. Gage's state of the settlement on the Wabash, 6 January, 1769. || St. Louis was founded by La Clade, 1764 ; D'Emegrant by Florissant in 1766 ; Portage des Sioux, eight miles above the Missouri river, in 1766 ; Les Petites Cotes (now St. Charles) by Blanchette in 1769 ; and Carondelet, six miles below St. Louis, by De Targette in 1767. § No impediment stood in the way of colonising Illinois after 1769. In that year an Illinois Indian assassinated Pontiac, and the Illinois Indians were in consequence exterminated by some of the northern Tribes. PART L WESTERN BOUNDARY OF ONTARIO 39 away from the border. A proclamation was accordingly issued in April, 1772, commanding them to retire within the jurisdiction of some one of the colonies. But the people were unwilling to expatriate themselves from a country where they or their friends had resided for seventy years. Hills- borough resigned in August, and his successor, Lord Dart- mouth, being a humane man, left them in quiet possession of their western homes. * As the breach between England and her old colonies widened, the ill-will harboured by English officials towards those who had encouraged Pontiac to begin his war, died away. The petition from the French inhabitants of the old Province of Quebec asked, among other things, to have " restored to Ca- nada the same limits which it had before, and to include the coasts of Labrador in the Province of Quebec, and those parts of the upper country which had been taken from it ; since it cannot maintain itself without its usual commerce."-f- By the Proclamation of 1763, the Province of Quebec was carved out of Canada, with the following boundaries : ' Bound- ed on the Labrador coast by the Kiver St. John, and from thence by a line drawn from the head of that river through the Lake St. John to the south side of the Lake Nippissim ; from whence the said line crossing the River St. Lawrence and the Lake Champlain in 45 degrees of north latitude, passes * " The King having become convinced that Hillsborough had weakened the respect of the Colonies for a royal government, was weary of him ; his colleagues disliked him and conspired to drive him into retirement. The occasion was at hand. Franklin had negociated with the Treasury for a grant to a company of about twenty -three millions of acres of land south of the Ohio and west of the Alleghanies. Hillsborough, from fear that men in the back-woods would be too independent, opposed the project. Franklin persuaded Hertford, a friend of the King's ; Gower, the President of the Council ; Camden, the Secretaries of the Treasury, and others, to become shareholders in his scheme. By their influence the Lords of Council disregarded the adverse report of the Board of Trade, and decided in favour of planting the new province. Hills- borough was too proud to brook this public insult His system remained behind him. When he was gone, Thurlow took care that the grant for the western province should never be sealed."— Bancroft, vol. 5, ch. 47. See also Spark's Life of Franklin, vol. 4. tNorth American Pamphlets, vol., 12 ; also Masseres' Papers. 40 WESTERN BOUNDARY OF ONTARIO. Part l along the High Lands which divide the rivers that empty them- selves into the said River St. Lawrence from those which fall into the sea ; and also along the north coast of the Baye des Chaleurs, and the coast of the Gulf of St. Lawrence to Cape Ro- siers, and from thence crossing the mouth of the River St. Law- rence by the west end of the island of Anticosti, terminates at the River St. John." The remaining portion of the terri- tory acquired from France, and not added to West Florida, nor to Georgia, was declared, by the same proclamation, " to be re- served for the present, under the King's sovereignty and pro- tection, for the use of the Indians." The only provision made by the proclamation for the government of persons in the In- dian country, is that contained in the concluding paragraph, which reads as follows : — " And we do further expressly en- join and require all officers whatever, as well military as those employed in the management and direction of Indian affairs within the territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all persons whatever who stand charged with treasons, murders and other vio- lence or misdemeanors, who shall fly from Justice and take re- fuge in the said territory ; and to send them under a proper guard to the colony where the crime was committed, where they shall stand accused in order to take their trial for the same." This was simply a provision for the extradition of the criminal to the province in which the crime had been committed, where the accused would be best known, and where the evidence by which he might be convicted or excul- pated, would be most likely available. About the government of the few scattered colonists nothing is said. They had mili- tary governments provided for them by the Commander-in- Chief of the army in North America. This system was con- tinued north of the Ohio river, until the country was united to the old Province of Quebec under the Act of 1774. The Quebec Bill was introduced by the Earl of Dartmouth, into the House of Lords, on the second of May of that year'. It was declared that " a very large part of the territory of Canada PART I. WFSTERN BOUNDARY OF ONTARIO. 41 within which there were several colonies and settlements, subjects of France, who claimed to remain therein under the faith of the said treaty, were left without any provision being made for the administration of civil government therein* Be it enacted that all the said territories, islands and coun- tries, heretofore a part of the territory of Canada, in North America, extending southward to the banks of the Eiver Ohio,f and 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 Hud- son's Bay, and which said territories, islands, and countries are not within the limits of the other British Colonies, as al- lowed and confirmed by the Crown, or which have been, since the 10th of February, 17d3, made a part and parcel of the Province of Newfoundland, be and they are hereby during his Majesty's pleasure, annexed to and made part and par- cel of the Province of Quebec, as created and established by the said Royal Proclamation." % When the Bill came down to the House of Commons, this clause was attacked by Burke, who was, at the time, agent for the Province of New York. The boundary between New York and Canada was unsettled. The western portion of the Province was still the property of the Six Na- tions, as recognized by the Treaty of Fort Stanwix ; and it was not impossible that unr)er this clause a boundary might be established which would take from that Province a large sec- tion of country, which its people and representatives held to * These words were used by Shelburne in his letter to the Lords of Trade in favour of establishing new colonies. + Had this section been enacted in this form, the construction which would make the word southward mean due south, would exclude from the New Province all the territory outside of the old Province of Quebec, which lies East of a line drawn due north from Pitts- burg. + It is important to observe in the changes which were subsequently made in this section that all the words after the word Mississippi, were retained as they here stand ; and here they, beyond question, apply not to a line but to the country. It is the country southward to the banks of the River Ohio, westward to the banks of the Mississippi, &c. 42 WESTERN BOUNDARY OF ONTARIO. Part l be within its proper limits.^ There was always less hesitation in altering the boundaries of a Crown Colony than of a propri- etary one.f New York was a Crown Colony. It is true that it was twice granted by Eoyal Charter to the Duke of York ; but when he ascended the throne, his rights, as proprietary Governor, were merged in his rights as Sovereign, and it re- mained a Colony of the Crown, until it ceased to be a British Province. I have given elsewhere so much of the debate on the Que- bec Bill, as relates to the proposed extension of the limits of the Province, that I need not here say anything more to show that there was, from the beginning to the close of the discussion upon the Bill, no evidence of the abandonment of the clearly expressed intention of the Ministry, and the law officers of the Crown, to embrace al] the country between the Atlantic and the Mississippi, the Ohio and Hudson's Bay terri- tories, in the new Province of Quebec.J Mr. Burke declared, that under the Bill, " the Crown has the power of carrying the greatest portion of the actually settled part of the Province of JSIew York into Canada;" that the boundary iine might be fixed at the very gates of the City of New York, " and subject that colony to the liability of becoming a Province of France.' Mr. Burke is careful to put his advocacy of the interests of New * It is highly probable that what the Province of New York feared from an un- determined boundary on the side of Canada was, that the territory reserved to the Six Nations by the Treaty of Fort Stanwix would be included in Canada. The map will shew what New York would have lost. t With regard to the grants heretofore made by the Governors of Canada adjacent to Lake Champlain, and by the G-overnor of New Hampshire to the west of Connecti- cut river, I do not conceive that the titles of the present claimants or possessors ought to have been discussed or determined upon any agreement or reason drawn from a consid- eration of what were or were not the ancient limits of the Colony of New York. Had the soil and jurisdiction within the Province of New York been vested in Proprietaries as in Maryland, Pennsylvania, Massachusetts Bay, or other Charter Governments, it would have been a different question ; but when both the soil and jurisdiction are in the Crown, it is, I conceive, entirely in the breast of the Crown to limit the jurisdiction and dispose of the property in the soil in such a manner as shall be thought most fit. Earl of Dartmouth to Governor Tyson, March 3rd, 1773, New York Hist. Hoc, vol. 8., page 356-7. X See Appendix C. PART L WESTERN BOUNDARY OF ONTARIO. 43 York on grounds of public policy. He says : " It is not a line between New York and some other English settlements ; it is not a question whether you shall receive English law and English government upon the side of New York, or whe- ther you shall receive a more advantageous Government upon the side of Connecticut ; or whether you are restrained upon the side of New Jersey. In all these you still find English customs, English juries, and English assemblies, wherever you go. But this is a line which is to separate a man from the right of an Englishman." He, therefore, insisted that the line should be clearly laid down in the Bill between the other Provinces and Canada, instead of leaving it to be afterwards determined by the King. The only objection made by Lord North to Mr. Burke's proposal, was the diffi- culty of the undertaking, and the danger of making a mistake " by doing at Westminster what could be better done upon the ground :" but he added that if any gentleman would find a " boundary of certainty, he would accept it." It will be seen, both from the discussions, and the amendments propos- ed, that there was no attempt to give to the Province less ex- tensive limits than the Ministry proposed in the Bill as intro- duced. All that Mr. Burke attempted was to lay down a cer- tain boundary between Canada and the other colonies. This necessitated a considerable change in the phraseology of this section, but none in the actual boundaries as first set forth ; and whatever doubt may have arisen in consequence of the extraordinary construction put upon the Act in DeEienhard's case, has been owing to a want of careful attention to the fact, that there is but one line described — the boundary upon the south, and that the term " northward" is not descriptive of a line upon the west, but of " all the territories, islands, and countries in North America," from the southern boundary so described to the " territories of the Merchants Adventurers of England trad- ing in Hudson s Bay." It is true that Messrs Townshend, Dunning, Grlynn, Barre, and Fox objected to the immense extent of territory which the 44 WESTERN BOUNDARY OF ONTARIO. Part j. Bill would place under French Law and an arbitrary sys- tem of G-overnment. They said that to speak of all the vast extent of country between the G-reat Lakes and the Mississippi river, south to the Ohio, " as heretofore part of the territory of Canada," was admitting, in the most solemn manner, after the conquest, what both the colonies and Great Britain had always denied before ; that, in another war, Canada might be recon- quered by France ; and, it was asked, how could England in such an event, deny that Canada extended southward to the Ohio river? Lord North so far recognized the force of this argument, as to propose in place of the words "hereto- fore part of the territory of Canada," the words " extent of country." Mr. Burke expressed himself dissatisfied with the the few verbal changes offered by Lord North, and intro- duced an amendment, the object of which was to locate with precision the boundary between Canada upon the one side, and New York and Pennsylvania upon the other. I need not repeat his proposed amendments here ; I have given them in an ap- pendix, to this report, of extracts from the "Cavendish debates." They certainly are not well drawn, and had they been accepted they would not have given such a boundary as Mr. Burke de- scribed — "one physically distinguished," "astronomically dis- tinguished," " fixed by actual observation, and agreed upon by surveyors." To describe a boundary as running " across Lake Ontario, to the Niagara river, and from Niagara across Lake Erie, to the north-west point of Pennsylvania, and down the west boundary of that Province from a line drawn from thence until it strikes the Ohio," is not distinguishing it either physically or astronomically ; and it was proposing an amend- ment which, to say the least, was in some degree, open to the same objection which Mr. Burke made to the clause of the Bill, as it originally stood. The Solicitor General ( Wedderburn) said in reply to those who objected to the extension of the Province, that so far as the old English colonists were concerned, he thought " one great advantage of the extension of territory was this, that they will have little temptation to stretch them- PART j WESTERN BOUNDARY OF ONTARIO. 45 selves northward. I would not say, cross the Ohio, you will find the Utopia of some great 'and mighty empire,' I would say, 'this is the border beyond which, for the advantage of the whole empire, you shall not extend yourselves' It is a regular government, and that government will have au- thority to make enquiry into the views of native adventurers. As to British subjects within the limits, I believe there are not five in the whole country.* I think this limitation of the boun- dary will be a better mode than any restriction laid upon govern- ment. In the grant of lands, we ought to confine the inhabi- tants to keep them, according to the ancient policy of the country ;. along the line of the sea and the river. ."f This was the policy long advocated by Lord Hillsborough, and which it was be- lieved, by the promoters of this Bill, could be better accom- plished by the adoption of a system of absolute government and of French jurisprudence, than by a proclamation prohibit- ing settlement within the territory, which, according to the political and commercial notions of the times, it was not for the interest of the mother land, should be colonized. Through- out the discussion there is not the faintest indication, either on the part of the Ministry or the majority of the House of Commons, of any intention to depart from that policy which Ministers aimed at when they proposed to embrace in the Province of Quebec the entire Indian territory, " south to the Ohio and west to the Mississippi." When the Province of Virginia remonstrated against the Act, she assumed that the new Province extended westward to the Mississippi ; \ and when the repeal of the Act was proposed the following year in the House of Lords, it was said that the Province of Quebec extended to the Mississippi river ;§ and this, too, was *" This is a mistake. Some had purchased from the French in the Illinois country when they were removing beyond the Mississippi. See American State Papers, vol. 2, p. 113, Public Lands. f This proved to be a well-founded opinion, No new grants were made after the passage of the Bill. See American State Papers, vol. 2, p. 180, Public Lands. % Bancroft, vol.6, ch.15. § See Speech of Lord Shelbunae in the House of Lords, 1775. 46 WESTERN BOUNDARY OF ONTARIO. Part l the view of the Grove rnment, and of the Law Officers of the Crown, who supported the Bill, as the first commission to Sir Griiy Carleton, after the Act was passed, will show. I can discover no grounds for supposing that the western boundary was to be a line drawn due north from the junction of the Rivers Ohio and Mississippi. There is no word or phrase in the section defining the limits of the Province, to warrant such a construction. If this section of the Quebec Act was ambi- guous, which I think is not the case, there were many reasons of public policy, existing at the time, which moved the Govern- ment and Parliament to propose this measure, that would have been, in part, defeated, had the law been so construed. I have assumed that, in the construction of this Act, you are not con- fined to the Act itself. It would be unreasonable to apply the arbitrary and technical rules laid down by courts in the construction of contracts, or even of public statutes regulating the private affairs of men, to a Statute like this. A law defin- ing the boundaries of a country is as much a matter of state as a treaty. It should be dealt with as a state paper, and ought to be construed by rules applicable to treaties entered into by independent states for a similar purpose. The rules by which the true construction of the first section of the Quebec Act is to be ascertained, are those which would be followed, by the political departments of the Government, if Ontario and Ca- nada were separate and independent states.^ In the suit of * Chalmer's Collection of Opinions, vol. 2, pp. 345-6. In the case of Marryatt v. Wilson. Upon the construction of a treaty between Great Britain and the United States, in error in the Exchequer Chamber, Chief -Justice Eyre, after observing that a treaty should be construed liberally, and consistent with the good faith which always distinguishes a great nation, said that courts of law, although not the expounders of a treaty, yet when it is brought under their consideration incidentally, they must say how the treaty is to be understood between the parties to the action, and in doing which they have but one rule by which to govern themselves. We are to construe this treaty as we would construe any other instrument, public or private : we are to collect from the nature of the subject, from the words and the context, the true intent and meaning of the contracting parties, whether they are A and B, or happen to be two independent states. (Bos <& Peel, 436-9.) The authority of a decision can never be broader than the facts upon which it is based. This opinion must be taken as limited by the subject matter. The treaty was only incidentally in issue, and is then made part of the agree- PART j WESTERN BOUNDARY OF ONTARIO. 47 the Nabob of Camatic against the East India Company (2 Yes. jr. 56,) the court said that "In case of mutual treaty between persons acting in that instance as states independent of each other — and the circumstance that the East India Company are mere subjects with relation to this country has nothing to do with that — the treaty was entered into with them, not as subjects, but as a neighbouring and independent state, and is the same as if it was a treaty between two sovereigns, and consequently is not a subject of private municipal juris- diction. It is not mercantile but political in its nature." The fact that Canada includes the Province of Ontario, can- not alter the rules of law appropriate in the case. Under our Federal system of Government, each has its appropriate sphere of separate and distinct political power, marked out for it by a supreme law, and is as far beyond the reach of the other, " as if the line of division was traced by landmarks and mon- uments visible to the eye." =* And hence it is that questions of difference as to boundary, or other disputes be- tween two provinces, or between Canada and a province, for the settlement of which no provision is made by the constitu- tion, can only be properly dealt with according to the usages of independent nations for an amicable settlement of such disputes. "The evidence," says Chief Justice Taney, "by which a boundary between states must be decided in this court, (U.S. Supreme Court) depends upon the law and usages of nations in disputes of this kind." f In England the courts have re- ment or contract between the parties whose rights are being litigated. In that event, the contract is not raised to the dignity of a state paper, but the treaty, for the purpose of the suit, is merged into the pact between the parties, and has the same character as any other part of the instrument between the same persons. It is only in this way that the opinion of Chief Justice Eyre can be reconciled with international law. The court in this case can hardly be supposed as laying down broadly a general rule,which would, in effect, conflict with a well-settled principle in constitutional law, that where a construc- tion has been given to a treaty by the political department of the government, it is the duty of the courts to follow it. * Ch. J. Taney in Ableman v. Booth, 21 Howard 516. t State of Pennsylvania v. the Wheeling^and Belmont Bridge Company, 13 Howard, E. 518. 48 WESTERN BOUNDARY OF ONTARIO. Part r ceived evidence to ascertain the boundaries of parishes which they have held inadmissible for the purpose of proving the limits of private estates. * It is certain that those upon whom has devolved the task of determining the construction of trea- ties, have not failed to avail themselves of all the light that the history of the circumstances which led up to the treaty may throw upon any obscure or ambiguous expression it contains. They have not hesitated to go outside of the treaty for the pur- pose of ascertaining its meaning, f And in the construction of a public statute, relating to the good government of any portion of the empire, the same lati- tude has been claimed. In 1851, when Earl G-rey was Colo- nial Secretary, doubts having been expressed by the Governor of Antigua as to the proper construction of " An Act to Pro- vide for the prosecution and trial in her Majesty's Colonies of offences committed within the jurisdiction of the Admiralty," he commanded Mr. Merivale to obtain the opinion of the Law Officers of the Crown; and Mr. Merivale, in doing so, stated that he was directed " to subjoin a paper which was drawn up shortly before the passing of the Act, and explanatory of the reasons for its introduction]' and this paper the Law Officers perused before they gave an opinion upon the scope of the statute they were asked to construe. They seem to have dealt with the paper as if it were a preamble to the statute.^ Earl G-rey would hardly have directed Mr. Merivale to have subjoined such a paper had it not been the practice to seek * Reed v. Jackson 1 East, 355, 357 ; Doe v. Thomas, 14 East, 323 ; Outram v. More- wood 5 Term R. 121,123 ; Nichols v. Parker, and Clothier v. Chapman,note in 14 East R. 331 ;Morewood v. Wood, note ?in 14 East [R. 327 ; Wells v. Sparke, 1 M & S., 688, 689 ; Dunraven v. Llewellyn 15, Q. B. 791 ; Daniel v. Wilkin, 12 Eng. L. and Eq. 547. t See the correspondence between England and France as to the true construction of the Treaty of Utrecht, in relation to the limits of Acadia : between the United States and Spain as to the limits of Florida ; also as to the western boundary of Loui- siana ; and between the United States and England as to the meaning of the Alabama Claims in the Washington Treaty. + On th. C D. 76 ; Cowp, 204-11 ; 7 Co. 17 b.) as the supreme legislator— save a limited power in Parlia- ment. He could make or unmake boundaries in any part of his dominions, except in proprietary provinces. He exercised this power by treaty, as in 1763, by limiting the colonies to the Mississippi, whose charters extended to the South Sea ; by proclamation! which was a supreme law, as in Florida and Georgia, (12 Wheat 524 ; 1 Laws of U. S. 443-51 ;) by Order in Council, as between Massachusetts and New Hampshire cited in the argument (1). But in all cases it was by his political power, which was com- petent to dismember royal, though it was not exercised on the chartered or proprietary provinces. (Mclntyre v. Johnston, 8. Wheat 580.) In Council the King had no origi- nal power (1 Ves. Sr. 447). He decided on appeals from the colonial courts, settled boundaries in virtue of his prerogative where there was no agreement : but if there is disputed agreement, the King cannot decree on it ; and therefore, the Council remit in to be determined in another place, on the footing of a contract (1 Ves. Sr. 347); Baldwin, J. in Rhode Island v. Massachusetts— 12 Peters, S. C. Reports. Before the Treaty of Paris, 1763, the territory claimed by England in North America extended southwardly to the 29th degree of north latitude as is evidenced by her charters to the Lords proprietors in 1677, (1665) and by the same instrument she in- terfered with the province of Louisiana by extending her southern line to the ocean. The country of Florida south of the 29th degree N. L., and west to the Mississippi was a conquest on the seventh of October, 1763, the King established the northern boundary of the Floridas at 31 degrees N. L., taking off a strip two degrees in width from the original colonies. This became a subject of dispute between the United States and Spain after the treaty of 1783. The original title of South Carolina, under the grant to the lord's proprietors, was unquestionable ; and she contended that she had never been legally divested of the soil or sovreignty. Georgia founded her claim upon the commission to her governor, Wright, which comprised within its jurisdiction the territory in question, and the United States claimed it as a conquest from the British Province of West Florida. While Spain insisted that it was either a part of Louisiana or Florida, and as such was ceded to Her by the Treaty of 17S;>. South Carolina, by theTreatyof Beaufort, relinquished her claim to Georgia, and the United PaktI. . WESTERN BOUNDARY OF ONTARIO. 69 and in the commission to Lord Dorchester, formerly Sir G-uy Car- leton, bearing date the 12th of September following, the boun- daries of Upper Canada (Ontario) are given as follow : — " It is to be separated from Lower Canada by a line to commence at a stone boundary on the north bank of Lake St. Francis, at the cove west of the point on Baudet ; in the limit be- tween the Township of Lancaster and the Seigneury of New Longeuil, running alongside the limit in the direction of north, thirty-four degrees west to the westernmost angle of the said Seigneury of New Longeuil ; thence along the north-western boundary of the Seigneury of Yaudreuil, running north, twenty-five degrees east, until it strikes the Ottawa river ; and ascending the said river into the Lake Temiscaming ; and from the head of the said lake, by a line drawn due north until it strikes the boundary line of Hudson's Bay. The Province of Upper Canada ^Ontario) to comprehend all such lands, territories, and islands, lying to the westward of the said line of division as part of our said Province of Quebec." These acts of state prove conclusively that the eastern boundary of Ontario extends due north from Lake Temiscaming, to the boundary of Hudson's Bay, and that the western boundary, under this commission, is a line drawn northward from the head waters of the Mississippi ; or, under the Order in Council, one still farther to the west. It is quite certain, that no part of the country north of the Missouri river was ever known as a part of the States settled her claim by taking a cession from. Georgia The Board of Trade of Great Britain in March, 1764, passed a resolution advising the King to extend the limits of West Florida up to the line drawn from the movth of the Yazoo river east to Chatahouchee ; it does not appear that the King ever made an order adopting this re- commendation. No proclamation was issued in pursuance of it, but it appears that the commissions to the Governors of Florida designated that line as the northern limit of that Province. Notwithstanding which Governor Wright continued to preside over Georgia under his commission of 1763, which extended to the twenty ninth degree N. L. on the south. It is true that the power of the Crown was at that time absolute over the limits of the royal provinces, but there is no reason to believe that it ever had been exercised^by any means less solemn and notorious than a proclamation. Harcourt v. Galliard. 2 Wheat. 526-7. (1) See 1 Chalmer's Annals, 480, 490; also, the History of the Boundary Disputes between New Hampshire and New York in 1764. 3 Belknap's Hist. N. H. 296. 70 WESTERN BOUNDARY OF ONTARIO. part u Province of Louisiana before the surrender of Canada to Great Britain* In the grant of Louisiana to Crozat in 1712, the Missouri and the Ohio were the northern boundaries of the Province, which, in the charter, was declared to be a depen- dency of Canada.f The boundary upon the east of the Mis- sissppi, under the Western Company, to whom the country was transferred upon its surrender by Crozat in 1717, was ex- tended northward to the River Illinois, and was held by the French to include the valley of the Ohio. The Western Com- pany surrendered the country to the Crown of France in 1732.$ In 1735. Bienville, a Canadian, assumed the government of the country on behalf of the Crown of France, but it was subject to Canada, and it was from Canada that the line of fortifica- tions which were to protect the valley of the Ohio against English encroachments were constructed, and it was as a part of Canada that this valley was surrendered to G-eneral Am- herst in the capitulation at Montreal. || After the Treaty of Paris the Mississippi became the eastern boundary of Louisi- ana, but the country to the north of that river was counted as a part of New France or Canada. It was from the Grove rnor of Canada that the commanders upon the Red river of the north, and the Saskatchewan obtained their licenses to trade with the Indians in those distant regions. M. Dufiot de Mo- * Upon Franquelin's map of 1684 the boundary runs along the highlands, south of Lakes Erie and Michigan, and northward upon the watershed between Lake Michigan and the Mississippi river; — that is the whole valley of the Mississippi. This was im- mediately after La Salle's discoveries. Coronelli's map published in 1688 includes the whole in " Canada on La Nouvelle France," of which " La Louisiane" forms a part, and this latter accords with the political arrangement at the time. | See Appendix J. t See Monette's History of the Valley of the Mississippi, vol. 1 : French's Hist. Col. The Oregon Question, by T. Falconer. || The King will not desert his claim to the entire and total session of all Canada and its dependencies. Pitt to M. Bussj/,17 August, 1761. As the Court of England has added to the first article of their answer to the entire and total cession of Canada as agreed between the two Courts the word dependencies, it is necessary to give a specific explanation of this word, that the cession might not in the end occasion difficulties between the two Courts with regard to the meaning of the word dependencies. Choiseul, 9 Sep., 1761. The reason is obvious, for otherwise it would include all Louisiana. Part I. WESTERN BOUNDARY OF ONTARIO. 71 fras says: "If the boundaries between New France and tjpie Hudson's Bay Company were not clearly denned even after the Treaty of Utrecht in 1713 and that of the cession of Ca- nada in 1763, it is undeniable, that, either New France or the possessions of the Hudson's Bay Company extended as far as the Pacific ocean ; and that if the Spaniards first explored the north-western coast of America, the French first discov- ered the interior of the continent proceeding from the east westwards. All the old maps, in this, in accord with the most reliable authors, only place the boundary of the French pos- sessions in Canada at the southern sea. L'Escarbot, who wrote in 1617, among others, states as follows : — ' Thus our New France has for its limits, on the western side the lands as far as the sea called the Pacific, on this side the tropic of Cancer ; on the south the islands of the Atlantic sea, in the direction of Cuba and the island of Hispaniola ; on the east the northern sea which bathes New France, and on the north thai land called unknown towards the icy sea as far as the arctic pole.' Lastly, in a map engraved in 1757, and attached to the memorials of the Commissioners of the Kings of France and England in America it may be observed that New France extended as far as the Pacific ocean, and it shows on the western coast of America, at the 46th degree, a large river running in a direc- tion which corresponds exactly with that of the Rio Columbia. There is moreover nothing surprising in this specific descrip- tion since from 1711 to 1754, the Captains G-eneral of New France sent out numerous expeditions to the western part of Canada, and after thirty years of uninterrupted explorations under the enlightened government of the Marquis de Beau- harnois, an officer, M. de la Yerendrye, acquired a thorough knowledge of the river and the western sea, which were no other than the Pacific Ocean and the Columbia."* As early as 1641, Jogues and Raymbault preached to the Indians at the outlet of Lake Superior.! Shortly after this the * Mofras ' Exploration de 1' Oregon et des Calif ornies. + Bancroft, vol. 2, chap. 20. 72 WESTERN BOUNDARY OF ONTARIO. Part l Iroquois war began, and many of the Hurons and Ottawas fled to the western shore of that lake. In 1654, two young fur traders joined a band of those In- dians who were then at Quebec, and were absent for two years. They returned in 1656, accompanied by 250 Indians. They gave information in regard to the great lakes beyond Lake Huron. They described the Sioux of the west and the Knisteneaux of the north, and other tribes who dwelt in the region about them. The Indians asked to have their commerce with the French renewed, and missionaries sent amongst them. In 1659 some fur traders went to Grreen Bay, and two of them passed the winter upon the shore of Lake Superior. They re- turned to Quebec the following summer with an escort of sixty canoes and 300 Indians. Between 1660 and 1672 the whole country about Lake Su- perior was explored by Mesnard, Allouez, Dablon, Marquette, and Andre. In 1671 the Hurons and Ottawas who dwelt at La Point e near the western extremity of Superior, and whose emigration thither facilitated the explorations of the French, were sud- denly attacked by the Sioux, and returned to their ancient country." The Illinois tribes, who had at one time dwelt near Lake Michigan, but who had been driven by the Iroquois beyond the Mississippi, were yearly visitors at La Pointe, informed Marquette and others of the existence of the Mississippi and the intervening country. f Daniel G-reysolon du Lhut, in 1678, ex- plored the country between Lake Superior and the Mississippi. He had been two years in those regions when met by Henne- pin. He sought to establish relations of friendship between the Sioux and the Assiniboines. In the summer of 1679, he visited three towns of the Sioux, and planted in their country the arms of the French King 4 He, with the four Frenchmen who * Parkman's Discovery of the Great V.Cst, p. 31. | Dalbon. Relation, L671. X Du Lhut to M. Frontenac. He left Quebec on the 1st of September, 1678, for the purpose of discovering the Nadessious (Sioux) and Assinipoulaks (Assiniboins). On Part I. WESTERN BOUNDARY OF ONTARIO. 73 were with him, accompanied Hennepin down the Mississippi to the Wisconsin, and thence to Green Bay. He built a trading- post near Thunder Bay on the north-west shore of Lake Super- ior, called Camanistigoyan. The Intendant, Duchesneau, de- nounced him as a leader of the coureurs des bois, of whom the missionaries complained, and who were trading with the In- dians without licenses. In all this he acted in & public capacity, and under the authority of the Governor of Canada.* The French, about this time, established forts at the river Mpigon and other places upon Lake Superior ;f and it would seem that a trading post was erected north or north-west of Lake Nipigon.J§ In 1716, Messrs. Vaudreuil and Began addressed the French Government in favor of extending the explorations westward to the Pacific ocean. The Government of France, the following year, approved of the plan. M. de Yaudreuil was instructed to establish three posts without any expense the 2nd July, 1679. he caused his Majesty's arms to be planted in the great village of the Nadessioux called Kathio, where no Frenchman had ever been, nor at Sougaski- kous and Honetbatons, 120 leagues distant from the former, where he also set up the King's arms in 1679. On the 15th of September he gave to the Assenipoulaks and other northern nations a rendezvous at the head of Lake Superior, with a view to get them to make peace with the Nadessioux. They all were there and he united them together. N. Y. Hist. Doc., vol. 9, p. 795. * Parkeman's Discoveries of the Great West, pp. 251-9. t See M. de Beauharnois to Count de Maurepas, 8th Oct., 1744. See Appendix M. X Du Lhut's brother who has recently arrived from the rivers above the Lake of the Allenenipigons assures me that he saw more than 1500 persons come to trade with him. They were very sorry that he had not sufficient goods to satisfy them. They are of the tribes accustomed to resort to the English of Port Nelson or Biver Bourbon, where they say they did not go, through Sieur du Lhut's influence. It remains to be seen whether they speak the truth. The overland route to them is frightful, on account of its length and of the difficulty of finding food. He says there is a multitude of peo- ple beyond these, and that no trade is to be expected except by sea, for by the rivers the expense is too great. Denonville to Seigneiay. August 1687. § The North- West Company had a fort (Ft. Duncan) at the north end of Lake Nipi- gon. described by Harmon in his journal. Employing the Coureurs des bois, formerly in the service of the French, they occupied the trading posts which had been established by the French. The old commanders had returned to the army, and the trade was for a few years suspended. This is evident from the statement made by the Indians to Carver. When the war was over the wood runners remained, but the commanders returned no more. 74 WESTERN BOUNDARY OF ONTARIO. Part L. to the King ; as it was thought that those who founded them would find a sufficient remuneration in the Indian trade. In July 1717, M. de Yaudreuil caused Sieur de la Noue, lieu- tenant, to set out with eight cannons to prosecute this scheme of discovery. He instructed Lieutenant de la Noue "to estab- lish the first post at the Biver Kanastigoya," to the north of Lake Superior, after which he was to go to Takancamiononis near the Christianaux lake, to establish a second,* and to acquire through the Indians the information necessary for the establishment of the third at the Lake of the Assenipoles.f It is said that while this expedition will cost the King nothing, it is absolutely necessary that the King should bear the ex- pense of those who continue to explore the country, after these posts have been established, as they will be obliged to give up all idea of trade. They estimate that fifty good voy- ageurs will be required; twenty -four to occupy the three posts, and twenty-six others to prosecute the exploration of the country from Lake Assenipoles to the western sea.-f- The next expedition of which I have been able to find any authentic account, is that of M. Yerendrye. He formed a trading partnership with some Montreal merchants. They supplied goods, or funds wherewith to purchase such as were suited to the Indian trade. They also furnished the equip- ment for his journey. He set out for Lake Superior, accom- panied by Pere Messager, a missionary priest. He was au- thorized to take possession, in the King's name, of all countries he should discover ; also to examine them attentively, in order to form an idea as to what facilities they might possess for establishing a route across those western regions, by which Canada and Louisiana might be connected with the South sea. To enable him to perform this important service no public aid was accorded to him, and, as a consequence, he found it necessary to linger about Michilimackinac and Lake * Lake St. Joseph's, north of Nipigon, and at the head of Albany river. f Lake Winnipeg. X See Minute of Council. Appendix K. Part WESTEKN BOUNDARY OF ONTARIO. 75 Superior until 1733. In the year 1731 some of those in the employment of M. Yerendrye, starting from Kaministigoya r a fort constructed by Lieutenant Robert de la Noue, passed on to Eainy lake, where they built Fort St. Peter. They then proceeded westward to Lake of the Woods, where they erected Fort St. Charles the following year. They subsequently fol- lowed the course of Winnipeg river, upon the north bank of which they constructed Fort Maurepas in 1734, " They took," says Grarneau, "possession of the country for a two-fold pur- pose — to fulfil the obligation they owed to the King, and to establish fortified posts, useful to themselves, for the prosecu- tion of their private traffic. They crossed Lake Dauphin and Swan Lake ; they recognized the Eiver des Biches, and ascend- ed the Saskatchewan or Poscoyac to the forks. They raised Fort Dauphin at the head of Lake Manitoba, and Fort de la Reine at its foot. They also built Fort Bourbon on the Biches river, at the head of Lake Winnipeg;* and lastly they con- structed Rouge Fort at the junction of the Assiniboine and Red rivers. Subsequently directed by Yerendrye's brother and sons, they went westerly and northerly. In 1736 a son of Yerendrye, Pere Amnion, and twenty others were massa- cred by the Sioux upon an island in Lake of the Woods."f Four years later Yerendrye reached the base of Rocky Mountains. % The fur trade was carried on by retired officers of the French army, called commanders, " who engaged in these distant ex- peditions, and had posts as far west as the banks of the Sas- * Fort Bourbon was built by M. de Saint Pierre, a French Officer, and the first ad- venturer into these parts of the country. Henry's Travels, ch. 9, pt. 2nd. Lieut. St. Pierre was employed for many years about Lake Superior. See Narrative of Occur- rences in 1746, 7, 8. + The French had several settlements in and about Lake of the Woods. Sir A. Mac- kenzie, p. lvii. + Journal of M. Verendrye. Garneau refers to two letters of M. Margry in the Moniteur, in September and November, 1857, as containing interesting accounts of M. Verendrye's discoveries and labours in the west ; but they are not in the papers of the dates given. I suppose the dates have been misprinted, and I did not, in conse- quence, find them. 76 WESTERN BOUNDARY OF ONTARIO. Part l katchewan river, in 53° north latitude and longitude 102 Q west."* " It may be proper," says McKenzie, " to observe that the French had two settlements upon the Saskatchewan long- before and at the conquest of Canada ; the first at the Pas- quia, near Carrot river, and the other at Nipawi, where they had agricultural instruments and wheel carriages, marks of both being found about these establishments, where the soil is excellent." f All the posts in the north-west were un- der the control of the Governor of Canada, and were recog- nized as being within its limits. In the year 1746, when a number of French traders had been murdered by the Indians, Gallissoniere (the Governor) suggests the propriety of abandoning the northern and west- ern posts, so as to compel the Indians " to come to Michili- mackinac, and even to Montreal, in search of what they want." He informs Lieutenant St. Pierre that he is at liberty to determine, according to circumstances, as to whether the different licenses to the northern posts shall be carried into execution or not. They were ; and the only reason for not undertaking to coerce the Indians in the manner suggested was, that the trade of the north-west would pass into the hands of the English at Hudson's Bay.$ Between the period of the fall of Quebec, and the year 1766, the trade by the lakes and the St. Lawrence was greatly in- terrupted. Few, if any, of the old " commanders" remained. They were men of education, with strong national feeling, and, for the most part, officers of the army ; and they with- drew, when New France became a British possession. || Carver, who visited the country north of Lake Superior, in 1767, says that, on the waters which fall into Lake Winnipeg, * History of the Fur Trade, pp. v. vi. Sir A. McKenzie, 1789-93. | Ibid. p. lxxiii. Nipawi is in 104 Q west longitude, and seems to have been esta- blished by Captain de la Come, some time prior to 1746. See Appendix L. + See extracts from N. Y. Hist. Doc, appendix M. || See Sir W. Johnson to Lords of Trade ; also, extracts from Sir A. McKenzie's History of the Fur Trade. Part I. WESTERN BOUNDARY OF ONTARIO. 7T " the neighbouring nations take great numbers of excellent furs, some of these they carry to the factories and settlements belonging to Hudson's Bay Company, situated above the en- trance of the Bourbon river ; but this they do with reluc- tance on several accounts ; for some of the Assinipoils and Killistinoes, who usually traded with the Company's servants, told me that, if they could be sure of a constant supply of goods from Michilimackinac, they would not trade anywhere else."* The Canadians who had lived long with the Indians con- tinued to reside among* them after the conquest. They had done so from the time of Du Lhut. They enjoyed the confi- dence of the tribes among whom they dwelt. There had al- ways been many border men in the old colonies, who engaged in the Indian trade. In the year 1746 eight of them, led by a Canadian, succeeded in passing from the Ohio to north shore of Lake Superior.! They were, however, generally ig- norant of the north-west ; and they knew, after Canada be- came a dependency of England, by recent experience, that the former allies of the Indians had taught them to cherish feel- ings of hatred to Englishmen. $ When, then, the English be- gan to engage in the fur trade of the west, they employed the coureurs des bois, as their intermediate agents, in dealing with the Indians. The trade, by the way of the lakes, was rapidly resuscitated, and extended from the Missouri river to the Polar sea, and west to the Eocky Mountains. § One of the * See extracts from Carver's Travels, Appendix L. + See extracts from New York Hist., Doc, appendix M. X Parkman's war of Pontiac, and Paris documents in the N. Y. Hist., Doc. § " The northern Indians, by annually visiting their southern friends, the Atha- pascow Indians have contracted the small pox — which has carried off nine-tenths of them, particularly those people who compose the trade at Churchill Factory. The few survivors follow the example of their southern neighbours and trade with the Canadians, who are settled in the heart of the Athapascow country. I was informed by some nor- thern Indians that the few who remain of the Copper Tribe have found their way to one of the Canadian houses in the Athapascow Indians' country, where they get supplied with everything at less, or about half the price they were formerly obliged to give ; so 78 WESTERN BOUNDARY OF ONTARIO. PaR t i. English traders, Thomas Curry, in the autumn of 17G6, accom- panied by several guides and interpreters, went to Fort Bour- bon, on the Saskatchewan, and returned after a most fortunate adventure, the following spring.^ Within a very short period of time, an animated competi- tion prevailed among the fur traders, and occasional conflicts ensued which pointed to the necessity of union, f In 1783, the North- West Company was formed at Montreal, with a capital which was divided into sixteen shares, but no portion of it was deposited. In the spring of the following year, two of the shareholders went to the Grrand Portage, near the head of Lake Superior, for the purpose of seeing the prin- cipal traders, whom it was proposed to embrace in the com- pany. The arrangements which had been made, were agreed to, and confirmed by all, except a Mr. Pond, who was not sat- isfied with the share allotted him. He and a Mr. Pangman, who seems to have been overlooked, came to Montreal to or- ganize another company, intending, if successful, to return again to the north-west for the purpose of superintending the trade. Pond united with the first company. But Pangman, being joined by Gregory, McLeod and McKenzie, formed a separate organization. These rival companies soon came into conflict, and Sir A. McKenzie, says, — "After the murder of one of our partners and the laming of another, and -the narrow escape of one of the clerks, who received a bullet through his powder horn in the execution of his duty, a union of the two Companies was effected in July, 1787."J The X. Y. Company which had several forts, and for a time carried on an extensive trade in the north-west, united with the North-West that the few surviving northern Indians, as well as the Hudson's Bay Company have now lost every shadow of any future trade from that quarter, unless the Company will establish a settlement within the Athapascow country and undersell the Canadians." — Hearne's Journal, 1771. * History of the Fur Trade— P. vin. Sir \. McKenzie. + McKenzie's History of the Fur Trade. X History of the Fur Trade, p. liii. Sir A. McK. Part I. WESTERN BOUNDARY OF ONTARIO. 79 Company in 1803.* " The Hudson's Bay Company, who, in the year 1774, and not till then, thought proper to move from home to the east bank of Sturgeon lake, in latitude 53° 56' north, and longitude 102° 15' west, and became more jealous of their fellow subjects, and perhaps with more cause, than they had been of those of France. From this period to the present time, they have been following the Canadians to their different establishments, while, on the contrary, there is not a solitary instance that the Canadians have followed them; and there are many trading posts which they have not yet attained. This, however, will no longer be a mystery, when the nature and policy of the Hudson's Bay Company is compared with that which has been pursued by their rivals in the trade."! There seems to have been no misun- derstandings or conflicts between the two Companies until after the arrival of Lord Selkirk.! The North-West Company extended their posts beyond the Rocky Mountains, and up- wards of three hundred Canadians were employed in carrying on a traffic over the country between California and Russian America. § At some seasons of the year not less than three thousand traders were assembled at Fort William, which had become the chief entrepot of the North-West Fur Trade. The Hudson's Bay Company did not enter the Valley of the Saskatchewan before the year 1780, nor the Valley of the Red river before 1805. || They followed the North- West * A Journal of fifteen years' residence among the Indians. Daniel Harmon. This does not agree with the statement of Sir E. Ellice, before the Committee of the House of Commons, 1857. He says these Companies remained separate until both united with the H. B. Company. Question 5776. It is probable he had partly forgotten the circumstances. + History of the Fur Trade, p. ix. Sir A. McK. % Harmon's Journal. §" Occurrences in North America," p. 125. This book was written by the Bight Hon. Edward Ellice and Wm. McGillivray. See statement of Ellice before Com- mittee of House of Commons, enquiring into affairs of H. B. Company, 1857- Ques- tion 5992. || McKenzie's History of the Fur Trade. Harmon's Journal. Testimony of Mc Donell and Dawson before a Committee of the Legislative Assembly of Canada, 1857. 80 WESTERN BOUNDARY OF ONTARIO. Part l Company as they extended their posts to the north and west, and for a time the traders of the two companies remained on the most friendly terms. With the accession of Lord Selkirk to the head of the H. B. Company's affairs, a policy of violence and lawlessness was adopted.* The period from 1811 to 1820 was one of conflict between the North-West and Hudson's Bay Companies. A grant was made of several thousand square miles to Lord Selkirk by the Hudson's Bay Company in the Eed river district, six years after that company first entered that part of the country, and one hundred and forty years after they had obtained their charter. Lord Selkirk, acting in the interests of the Hudson's Bay Company, at once set to work to expel the Canadian traders. Many of their posts and forts were taken, and some of them destroyed. Their supplies were seized. Forcible possession was taken of their letters and correspondence, and an attack was made upon a band of their traders, in which the people of the Hudson's Bay Company were defeated and upwards of twenty lives were sacrificed. Representations were made, by leading partners of the North- West Company, both to the Imperial and Canadian Governments, of the actual condition of affairs, in which the conduct of Lord Selkirk and his agents was denounced, and the pretensions to exclusive possession denied. f On the 12th of February, 1817, Earl Bathurst ad- dressed a despatch to the Governor General, in which he sa id : — » You will also require, under similar penalties, the restitution of all forts, buildings, or trading stations, with the property which they contain, which may have been seized or taken possession of by either party, to the party who originally established or constructed the same, and who were possessed of them previous to the recent disputes between the two Companies." * The various places where these companies had forts or other posts are named in Harmon's Journal. t Occurrences in North America, 1817. Part i WESTERN BOUNDARY OF ONTARIO. 81 " You will also require the removal of any blockade, or im- pediment, by which, any party may have attempted to pre- vent, or interrupt, the free passage of traders, or others of his Majesty's subjects, or* the natives of the country, with their merchandise, furs, provisions, and other effects through- out the lakes, rivers, roads, and every other usual route or communication heretofore used for the purposes of the fur trade in the interior of North America ; and ti e full and free permission for all persons to pursue their usual and accustomed trade, without hindrance or molestation." Propositions were made by the North- West Company, be- fore this time, for the union of the two companies, the Cana- dians receiving two-thirds and their rivals one-third of the profits, and that each should furnish in that proportion the means and capital, or to give the H. B. Company two-thirds of the trade over which they claimed their chartered rights extended, upon the condition that they refrained from en- croaching upon the northern and western slopes of the conti- nent. These offers for an arrangement were declined. The company, through Lord Selkirk, submitted a counter-propo- sition in which they stated " that they would not interfere with the Athabaska posts if the Canadians would give up all trade in the countries through which any waters passed, flow- ing towards the Hudson's Bay ;" that in the event of the North- West Company acceding to this stipulation, they would be per- mitted to retain some of their own posts along the line to the Arthabasca country, if they would agree to leave the ques- tion of right to arbitration, which, if it decided in favour of the Hudson's Bay Company, then *the North-West Company should pay an adequate rent to their rivals as landlords.* This counter-proposal the North-West Company declined to entertain. The Governor-General appointed a Mr. Coltman, in 1816, a commissioner, to enquire into and report upon the causes and extent of the disturbances in the North-West. Mr. Coltman made his report in which he recommended a union of * Occurrences in North America 1817, p.p. 59, 60, 61. G 82 WESTEEN BOUNDARY OF ONTARIO. Part L the interests of the various fur-traders in that country. Both companies had lost largely. The stock of the Hudson's Bay Com- pany fell, during the contest, from 230 to 50 per cent. " In this state of things," says the Eight Hon. Ed. Ellice, " I think about 1819 or 1820, Lord Bathurst, then Secretary of State for the Co- lonies, sent for me to consult me whether it was possible to do anything towards promoting a union between the com- panies I undertook that matter, not only at his request, but from obvious considerations of interest, having become under considerable engagements for one of the companies ; and after a very difficult negotiation I succeeded in uniting the interests of the various parties and inducing them to agree to carry on the trade after that agreement under the charter of the Hud- son's Bay Company. At the same time, I suggested to Lord Ba- thurst to propose a Bill to Parliament which should enable the Crown to grant a license of exclusive trade {saving the rights of the Hudson's Bay Company over their territory) as well over the country to the east, as over that beyond the Eocky Mountains, and to extend to the Pacific ocean, so that any competition which was likely to be injurious to the peace of the country should be thereafter prevented. From these different arrangements sprung the present Hudson's Bay Company, which is more in fact a Canadian company than an English company. The Act then passed under which the company have since carried on the fur trade throughout the Indian territories beyond their boundaries exclusively by virtue of the license."* An Act was then passed for regulating the fur trade ; and a Eoyal license for the privilege of trading with the Indians to the exclusion of other parties was obtained. This license does not embrace the territories granted to the Hudson's Bay Company ; and tvhile it secured to the new company a monopoly of the trade, it made it impossible for them to improve their title to the disputed territory by lapse of time. From 1811 until 1820 the Hudson's Bay Company claimed the North- West, as a part of their grant which had neverthe- * Question 5784 — answer to Committee on H. B. Co. The House of Commons. Part I. WESTERN BOUNDARY OF ONTARIO. 83 less been in the possession of others for a period of 119 years. During the nine years of hostility between themselves and the Canadian company, their pretensions were energetically re- sisted ; then came a union of the rival parties and the grant of an exclusive license. It can hardly be seriously argued that if their claim to the North- West was bad in 1811, "it would be opposed to the spirit of our law," to try the validity of that claim by principles which might then have been deemed applicable, since it must be admitted that this territory, in that event, was held by a license from the Crown ; and the company, during the continuance of their license, could not, any more than other tenants set up an adverse claim which would be strengthened by lapse of time.* From this brief historical sketch of the North-West country, it will be observed that it was explored by Du Lhut in 1671, and from that time down to the fall of Quebec in 1759, the French carried on an extensive trade with the Indians be- yond Lake Superior ;-f- that from 1717 until the country was ceded to G-reat Britain, it was under the authority of the G-o- vernors of Canada, and was recognized as a part of Canada by the French Government ; that the trade from Montreal and Quebec which was frequently interrupted between 1759 and 1765, at the end of the Pontiac war, began again to revive and was carried on exclusively by traders from Canada until the beginning of this century; % that the French half-breeds * See copy of the License — Appendix 0. f McKenzie's History of the Fur Trade. Harmon's Journal. Evidence of the Hon. Win. Gillivray. N. W. Trials at York, U. C., 1818. X G. H. Pelly, Governor of H. B. Company, in a letter to the Lords of the Commit- tee of the Privy Council for Trade, 7th February, 1838, says that "Up to this period (A. D. 1800) the Hudson's Bay Company had no great cause of complaint for interfe- rence with their inland trade, and if they had been left unmolested or been protected in the undisturbed possession of it, and of the rights and privileges vested in them by their charter, they would in all probability have continued in the enjoyment of the ad- vantages they were deriving from their labours and exertions in those remote and little frequented wilds." That is up to the period that they became aware of the existence of the country and wasted their resources in seeking to expel the Canadian traders. The H. B. Company paid their servants fixed salaries while the Canadian Company compensated theirs by a share of the dividend, and Mr. Harmon refers to the marked difference in the zeal of the two classes for the welfare of their employers. 84 WESTERN BOUNDARY OF ONTARIO. Part T. in the North- West, (the descendants of the wood-runners and traders who intermarried with the Indians,) from the time of the conquest, looked upon themselves as the law- ful proprietors of the country, and demanded compensation for permission to trade there.* It is difficult to understand how any valid claim to that country, can be based upon the charter granted to the Hudson's Bay Company. To say that the company's charter is valid, is beside the question. The charter, in one respect, must be regarded as a commis- sion to make discoveries, and to take possession of unknown regions, on behalf of the English Crown.f It could not be held to convey a country seven hundred miles away from the nearest point visited by a company, that had never made any explorations in the territory, and that had in no way attempted to establish their authority over it. The grant of the territo- ries named in the charter of the Hudson's Bay Company, was not a grant of lands in the actual possession of the Crown ; it was a prospective conveyance of a country to be acquired by discovery and settlement, or occupation, and it can be conclu- sively shown, that the whole North- West country was in the actual possession of the French for nearly a century before it * An impression is attempted to be made [by Lord Selkirk and his friends,] that these latter people, [the French half-breeds] are a race only known since the establish- ment of the North-West Company ; but the fact is, that when the traders first pene- trated into that country, after the conquest of Canada, they found it overrun by per- sons of this description. Some of whom were then chief leaders of the different tribes of Indians in the plains, and inherited the names of their fathers, who had been the principal French commandants, and traders of the district. A gentleman who was formerly engaged in the Indian Trade, and who was lately in London, informed the author, that when he first visited the Red river in the year 1784, he was stopped near the Forks by some of these half-breeds, or Brulee Chiefs, who told him that he could only trade in that country by their permission ; and as the y>rice of such permission, they exacted from him goods, to the value of above £400. This gentleman found at the Upper Red river, Mr. Grant, the father of the half-breed Grant, mentioned in the Narrative, who had paid a similar tribute for permision to trade ; so that it appears the right now claimed by the half-breeds, to the possession of the country, is at least no novelty. iVotep. 150, Occurrences in North America, 1817. f Many of the early charters were commissions to explore and take possession of countries to be discovered ; and the rights of trade, &c, granted, were the reward They gave the grantees an interest in promoting the interests of the Crown. Part I. WESTERN BOUNDARY OF ONTARIO. 85 was ever visited by any one on behalf of the Hudson's Bay Company. The Sovereigns of England granted many charters in North America, conveying very extensive territories — some of them embracing the continent from the Atlantic ocean to the South sea, between certain parallels of latitude. Yet they were never regarded as furnishing a good ground for exclud- ing the French from, the banks of the Mississippi, or the Spaniards from the Western coast, between the same parallels. I am not aware that they have ever been referred to in any correspondence between those European nations, that claimed extensive possessions upon this continent, covered by such charters. Differences arose between England and Holland, and between England and France, as to the limits of their respective possessions iu North America ; but in no instance did any one of the governments commit the folly of referring to the charters which it had granted to its own subjects, for the purpose of establishing its superior claim to the territory in dispute. It is true that the charter granted by Charles the Second to " The Merchant Adventurers of England trading in Hudson's Bay," does not profess to grant territory in the possession of another State, but upon what principle of right, or of public law y can it be maintained, that he could convey all the territory in North America, not in the possession of any other Christian Prince ? What authority or power did he possess, that could make a charter of this kind from him, of any more value than like charters made by the Kings of France and Spain to their subjects ? Such grants were made by the King of France ; and the respective rights of the two governments were defended upon grounds of prior discovery, followed by occupation in some way, by treaties of cession from the natives, or by some other act which, according to the usages of nations, and the moral sense of mankind, creates a superior claim to the sover- eignty of the country in dispute. Had Charles the Second granted to the Hudson's Bay Company all the lands along the shore of the bay, to the distance of a hundred miles inland, it 86 WESTERN BOUNDARY OF ONTARIO. Pabt I. would not have made his claim to the sovereignty of the country lying beyond the grant any the less strong ; and can any one say upon what ground that claim can be based ? Whoever has taken the trouble to look into the policy of grant- ing charters like this, must be aware that they were not usu- ally given, because the king had the sovereignty of the country conveyed, but in order that it might become his by the subse- quent acts of those to whom the grant was made * There are in the history of English colonization many instances of pros- pective grants of this kind ; and the validity of the grant, as against any foreign prince or his subjects, depends upon the fact as to who was the first to perform those acts, which are held, byjthe law of nations, to constitute a title to the sovereignty of the country. The widest possible extent of territory was usually granted by the king, not because another sovereign could thereby be stopped from conveying, in like manner, a title equally valid to his subjects, but for the purpose of extend- ing his dominions by stimulating certain of his people to make discovery, and take possession of unappropriated tracts of country, by his authority, and on his behalf. The French King- did exercise his prerogative of making similar grants to his peo- ple, and while the English adventurers rested upon the shore of Hudson's Bay, and slept upon their prospective rights, the French boldly pressed forward and took possession of the interior, and held it for eighty years, when it was ceded to England by the Treaty of Paris. France had possession of the country to the Eocky Mountains at the time of the peace of Aix-la-Chapelle, but no complaint was made by the English that she had encroached upon British territory. The truth is, that the whole country drained by the Red and the Saskatch- '* As in the cases of the two Patents by Henry VII. to John Cabot. Biddle's Memoir of Sebastian Cabot, p. 75 ; Hakluyt, vol. 3, p p. 30, 31 ; the Patent by Elizabeth to Sir Humprey Gilbert, 1578 ; Hakluyt, vol. 3, 174-176 ; Charters to noblemen, &c. , of London, and knights, &c, of the west, 1606 ; Hazard's Hist. Col. vol. 1 ; pp. 51-58 ; and many others of a prospective character. To assume that the lands granted were actually claimed by the Crown at the time is a mistake. It was by the act of the adventurers that the Crown expected to acquire a title. Part I. WESTERN BOUNDARY OF ONTARIO. 87 ewan rivers, was to the British Government and people. an unknown land, and the maps of that country, published by British G-eographers, were simply copied from the maps of the French.^ Had the Hudson's Bay Company acquired the possession of the North- West country, by establishing forts and trading posts there, before the country was in the actual possession of the Canadians, they might have claimed it with some reason under their charter. They did not do so. There had been no act, formal or informal, of any Englishman, which gave to the Crown of England any basis upon which it could found a claim to the sovereignty of the North-West. The company rested upon the rights which a contested claim to the exclusive possession of the bay itself, gave ; and while they did so, another people, against whom the rights conferred by their charter had no force, in fact, or in law, occupied the in- terior. No discoveries were made by the company until the time of Hearne, nine years after Canada became a Province of Great Britain. Before concluding this part of my report, I would invite your attention to the maps published by British Geographers during the period which elapsed between the Quebec Act of 1774, and the treaty of peace with the United States in 1783, in all of which, the Mississippi river is marked as the western boundary of the Province, from its junction with the Ohio to its source, f Nor can I omit all allusion to the position uni- formly taken by the Government of the Province of Canada upon the subject of the western boundary, as set forth in several public documents and acts of the executive. I have appended to this report the memorandum submitted to the House of Assembly in 1857, on the rights of Upper Canada to the North- West territory, by the then Commissioner of Crown Lands ; the memorandum and papers submitted to a * See statement of Jeffries' in his geography, p 19. See also a letter from C. Colden, Surveyor General, colony of New York, to Governor Clarke. New York. Col. Doc. vol. 4, p 177. + See Governor Pownall's Map in Appendix of Maps. 88 WESTERN BOUNDARY OF ONTARIO. Part u Committee of the House of Commons, appointed to enquire- into the affairs of the Hudson's Bay Company, in May, 1857 r by Chief Justice Draper, the Commissioner of the Canadian Grovernment, and to the treaty made with the Indians west of Fort William for the extinguishment of their title. I would also call your attention to the fact, that the Crown Lands De- partment laid oat townships and granted lands west of the limits which it is now sought to assign to the Province of Ontario; that a part of the District of Algoma, which re- turns a representative from the Province of Ontario to the House of Commons, lies in the disputed territory ; and that the present limits of that district were assigned to it by those who now maintain that it includes territory which forms no part of this Province.* I have also appended two official letters, addressed by Sir G-eorge Cartier and the Hon.William McDougal, to Sir F. Rogers, bearing date the 16th of January and the 8th of February, 1869, respectively. From the facts which I have stated in the foregoing pages,, it is clear that New France extended westward to the Rocky Mountains, if not to the Pacific ocean ; that, of this territory, the Province of Quebec included all eastward of the Missis- sippi to its head waters, and from thence to the Hudson's Bay territories, it included all eastward of a line drawn from the source of the Mississippi sufficiently far to the westward to embrace all the French settlements and posts in the North- West, that is, to the forks of the Saskatchewan river ; that by the Order in Council of 1791, all that part of Canada, to its- utmost limits, west of the boundary between Upper and Lower Canada, is declared to be included in Upper Canada. This would extend the boundary on the west to the Rocky Mountains. It would carry the boundary of the Province wertward beyond the limits of Quebec under the Act of 1774; and where that Order in Council placed the boundary, it, in my opinion, still remains. The commission to Lord Dorchester * The decision of the Court in de Reinhard's case was not then so much regarded by the Premier of Canada as it is now. Parti. WESTERN BOUNDARY OF ONTARIO. 89 extended his authority oyer so much of Upper Canada as was included in the Province of Quebec as altered by the treaty of 1783, and the limits of which are set forth in the commission of 1786. I have no doubt but that the Province of Manitoba has been formed within the legal limits of Ontario. It is to be regretted that no protest was made by the Government of Ontario at the time that Manitoba was being established. It would have been to the advantage of this Province had her just claims to the North -West been asserted while the ne- gotiations between the Imperial and Canadian Governments, for the transfer of Prince Rupert's land and the Indian ter- ritories, were pending. This was not done. I will not say that the rights of the Province to the territories west of Mani- toba have been greatly prejudiced by the failure of a former G-overnment to assert them. The difficulty ot procuring an equitable arrangement has certainly been increased. The Province of Manitoba exists by the sanction of the Imperial Parliament. The British North America Act of 1871 recog- nizes and sanctions the establishment of that Province. The claims of Ontario to the country which is included within its boundaries, having regard to existing facts, can now be met only by adequate compensation. REPORT ON THE BOUNDARIES OF THE Province of Ontaeio NORTHERN BOUNDARY OF ONTARIO. The sovereignty of the territory, upon the shore of Hud- son's Bay was a matter in dispute, between the Crowns of Great Britain and France, from the year 1670 until the sign- ing of the Treaty of Utrecht, when the French claims to the possession of the coasts of the bay were definitely yielded to Great Britain. The location of the boundary line between Ontario and the Hudson's bay country, can be determined only by the facts of history and the recognized principles of public law. Hudson Bay and Straits were discovered by Sebastian Cabot, who sailed thither under a commission from Henry VIII. of England, in 1517. He then entered the bay, which ninety- three years later took its name from Henry Hudson.* It is stated in a paper prepared by the Hudson's Bay Com- pany, for the purpose of establishing the right of the Crown of Great Britain to this bay at the time they obtained their charter, " that Sir Martin Frobisher, in Queen Elizabeth's time, made three voyages to the said bay, in 1576, 1577, and 1578, and gave English names to several places there ; and that Cap- tain Davis made also three voyages, and named other places in the bay." This statement is inaccurate. In the year 1576, * Sir H. Gilbert, in Hackluyt, vol. 3, pp. 49, 50 ; Eden and Willis' History of Tra- vayles in the East and West Indies, fol. 223 ; Anderson's History of Commerce, ann. 1496. " In a map published by Ortelius," says the author of the Memoir of Cabot, " Hudson's Bay is laid down with singular precision. Ortelius was in possession of a map of the world by Sebastian Cabot."— Memoir of Cabot, p. 29. 92 NORTHERN BOUNDARY OF ONTARIO. Part 1L Frobisher, who had long desired to start on a voyage for the discovery of a north-west passage to the east, regarding it, as he himself declared, as " the only thing of the world that was yet left undone by which a notable minde might be made fa- mous and fortunate," was gratified through the favour of the Earl of Warwick. He sailed from the Thames in command of three small vessels of ten, twenty, and twenty-five tons burden, respectively. The smallest of the three sank in a storm. The mariners on the second, fearing a similar fate, returned. Frobisher sailed in the remaining sloop to the en- trance of Hudson's Bay. He landed on an island near the strait which bears his name, and took formal possession of it for Elizabeth, and returned to England. A stone was brought back from this island which, it was said, contained gold. A fleet was at once fitted out. Elizabeth, who had done nothing more than express her good wishes at the first voyage, sent a large ship. This fleet which went in search for the northern El- dorado, did not advance westward as far as Frobisher had done in his little barque of twenty-five tons burden the year before. In his third voyage, a fleet of fifteen sail left upon the adven- ture, with one hundred persons as colonists. He reached the strait now called Hudson's. Frobisher thought that this strait led to the Pacific. As he was not seeking for geogra- phical knowledge, but for the rich mines which were sup- posed to have been discovered upon his first voyage, he did not feel himself at liberty to sail further westward. He and his companions voyaged northward through dense fogs, amidst mountains of ice, again and again escaping destruc- tion, they scarcely knew how ; so that, by the time they had reached the point of destination, those who were to colonise the islands, between Hudson's Bay and Davis Straits, were most willing to return to England. The sailors were ready to mutiny. A cargo of the black ore was carried back. The avaricious were disappointed, and science gained nothing by the adventure. Frobisher, perhaps, would have found his way into the bay, had he not felt that his duty as a mercantile part II. NORTHERN BOUNDARY OF ONTARIO. 93 agent forbade him sailing thither. He did not do so, and I fail to discover in what way these voyages of Frobisher can establish a title to territories which stretched along a shore at least a thousand miles away.* The discoveries of Davis were still more distant. The bay was explored by " Frederic Anschild, who had set out from Norway or Yclandia some years before with a de- sign to find out a passage to Japan. He entered a strait, which twenty or thirty years later, was called Hudson's Straits. He wintered in Hudson's Bay, and returned the next spring to Denmark.f Captain Hudson entered the bay in 1610, in search of a north-west passage. He is often credited with being the dis- coverer ; and the English claim to the possession of the bay has been in part based upon his supposed discovery. Baron La Hon tan says that he was in command of a Dutch ship, and when he left the bay returned to Holland. In this La Hon- tan is in error. Hudson made four voyages in search of a highway to the east. The first was in 1607, under the direc- tion of a company of London merchants. He coasted the eastern shore of Greenland, and visited Spitzbergen. He sailed north to within eight degrees of the pole, and was compelled, on ac- count of the ice, to return. In 1608 he sailed a second time, and attempted to reach the East Indies by passing between Spitzbergen and Nova Zembla, but failed. The ardour of the London merchants was dampened by these failures, and they were not willing to in- cur further expense. Hudson repaired to Holland, where he was engaged by the Dutch East India Company, through the influence of Mouche- ron, and in April, 1609, the Orescent, under his command, manned by a mixed crew of Dutch and English, put to sea in search of a north-west passage. This time he sailed along the coast of Nova Scotia to Sandy Hook, passed through the Nar- * llackhiyt, vol. 3, pp. 52-129. + La Hontan's Memoirs. 94 NORTHERN BOUNDARY OF ONTARIO. Part II. rows, discovered and explored the Hudson river, and gave to Holland a claim upon the country which subsequently became the Province of New Netherlands. He sailed from America to Dartmouth. From thence he sent " a brilliant account of his discoveries," to the Dutch Company, but they refused to search further for a north-western passage to southern Asia. In 1610 Hudson made his fourth voyage under the direc- tion of a company of English merchants. He entered the straits which bear his name. He supposed when he came upon the wide gulf that he had indeed gained his object. He voyaged along the coast, and found himself within an inland sea. He still hoped to discover a western strait, and resolved to winter in the bay. For this no adequate preparation had been made. When spring opened, the ship's supplies were exhausted, and he was compelled to make ready for a return. The ship became encompassed with vast fields of ice. The crew, who were discontented before, now mutinied. Hudson, his only son, and seven others were placed in a boat. Four of the seven were sick at the time. Philip Staffe, the ship's car- penter, asked leave to share the fate of his captain, and the request was granted him. Just when the ship made its way from the ice> the boat, with the ten who had been placed in it, was sent adrift, and was never after heard of. Such is a brief abstract of the voyages of Captain Hudson. The first two and the last of which were made under the patronage of Eng_ lishmen.* It is recorded that Sir Thomas Button, in 1612, entered the bay and erected a cross at the mouth of Nelson river, and took possession of the country on behalf of the Crown of Eng- land ; that Captains Baffin and Bylot entered the bay in 1615 ; that Captain Fox, by command of Charles the First, made a voyage to Hudson's Bay, in 1631, and finding the cross erected by Sir Thomas Button, with the inscription nearly worn out. renewed the inscription and again took formal possession ; and * N. Y. Hist. Doc, vol. 1, p. 61, 146-188. Part II. NORTHERN BOUNDARY OF ONTARIO. 95 that Captain James explored the southern part to which he gave his name, the same year.* For more than thirty years after Fox's voyage, we have no account of the bay having been visited by any English ship. After the restoration of Charles the Second, some noblemen and merchants undertook to establish a trade with the Indians,, and to erect forts and factories upon the southern and western shores of the bay. In the year 1667, after the visit of Eadisson and Des G-ros- silliers to London, one Zachray G-ilham, in the interest of some London merchants, sailed through Hudson's Straits to the southern end of the bay, and erected a fort at the mouth of Rupert's river. In the year 1669, another voyage was undertaken by the same adventurers, and one Captain Newland was sent by them to the mouth of Nelson river. In 1670, those persons who were engaged in fitting out these expeditions applied to the King (Charles Second) for a char- ter, conferring upon them the exclusive property and trade of the Straits and Bay of Hudson and its coasts, which charter was granted them in May of that year. This charter professed to grant them in free and common socage, " all the lands and territories upon the countries, coasts, and confines of the seas, bays, lakes, rivers, creeks, and sounds aforesaid, 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." These words imply the following proposi- tions : — That the grant to the Hudson's Bay Company should not be held to include : — 1st. Any portion of the country granted to any other British subject. * Robson's account of Hudson's Bay, Appendix 1, p. 4. In many of the maps pub- lished early in the last century the greater part of what is now called Hudson's Bay was then called Button's Bay. Hudson's Bay was, upon the west, but little more than what is now called James Bay. The company by extending the name, have increased the limits embraced by their charter. «)6 NORTHERN BOUNDARY OF ONTARIO. part II. 2nd. Any portion of the country in the possession of any other British subject. 3rd. A.ny portion possessed by any other Christian Prince or State. That it should include : — 1st. Any territory in possession of the Crown, not included in the above exceptions. 2nd. Any territory not in the possession of any European nation, to which, the Crown, through the diligence of the company, might acquire a title. The words imply, too, that the King was not prepared to deny the right of France, to a part of the country about the bay ; and that he was not rest- ing any right of the Crown upon prior discovery ; but that he was disposed to look at the actual condition of things at the time the charter was granted. In this particular the position of the King was a proper one. Ninety-three years intervened between the voyages of Cabot and Hudson ; sixteen years between the voyages of Baffin and Fox ; and thirty-six years between the voyages of Fox and G-ilham; that is one hundred and fifty years intervened between the first and seventh voy- age. It will not be difficult to show that title, according to the usages of nations, cannot be based upon discovery made at some period long past. There must be, besides discovery, such acts of occupation or settlement accompanying the act of discovery, or following it within a reasonable time, as will serve to show that the authority of the sovereign has had a potential existence over the territory so claimed. Now there were no such relations existing between the explorations of Cabot, of Hudson, of Button, or of Fox, and any subsequent act of the English Sovereign as would indicate that he, from the first, intended making it a part of his dominions. The charter to the Hudson Bay Company asserted only a conditional right in the King founded upon the then recent acts of his subjects, and related back to the voyages of Gilham in 1667 and no further. It is worthy of note that the Company of New France had Pari II. NORTHERN BOUNDARY OF ONTARIO. 97 received a similar charter in the year 1626 from Louis XIII., which included the whole country about Hudson's Bay. In 1656, an order of the Sovereign Council of Que bee autho- rized Jean Bourdon, its Attorney-G-eneral, to make the discovery of Hudson's Bay. He went thither in a barque of thirty tons, and took possession in the name of the French King. "While there, he made treaties of alliance with the Indians.* "In 1661, Father Dablon, a Jesuit, and Sieur deValliere were ordered by Sieur d'Argenson, at that time Governor of Canada, to proceed to the country about the Hudson's Bay; they went thither accordingly, and the Indians who then came back with them to Quebec, declared that they had never seen any Euro- peans there, f " The Indians, anxious to continue their trade with the French in Canada, sent a party who returned with Dablon to Quebec, to invite the Canadians to establish trading posts on the Bay, and to send missionaries among them. Upon their way back, they seemed to have repented of what they had done, and refused to conduct the missionaries to the Bay." t "In 1663, the Indians from about Hudson's Bay returned to Quebec in further quest of traders, and D'Avangour sent thither Sieur de la Couture with five men, who proceeded overland to the said Bay, possession whereof he took in the King's name, noted the latitude, planted a cross, and deposited at the foot of a large tree, his Majesty's arms engraved on copper and laid between two sheets of lead, the whole being covered with some bark of trees." " In the same year (1663,) Sieur Duquet, King's attorney to the Prevote of Quebec, and Jean L'Anglois, a Canadian co- lonist, went thither again, by order of Sieur D'Argenson, and re- newed the act of taking possession by setting up his Majesty's * Colliers to M. De Seignelay. N. Y. Hist. Col., vol. 9. p. 268. t Ibid ; also M. de Denonville to M. de Seignelay. p. 303, 4, 5. I Memoir of the French in Canada from 1504—1706. Paris Doc. 6. N. Y. Hist. Col. Vol. 9 p. 784. H 98 NORTHERN BOUNDARY OF ONTARIO. Part n arms there a second time. This is proved by the arret of the said Sovereign Council of Quebec, and by the orders in writ- ing of the said Sieurs D'Argenson and D'Avangour." * In 1667, Radisson and des Grrossilliers traversed the country from the St. Lawrence to the Upper Lakes and thence to the Bay — crossing from Lake Superior, of which the French had possession at the time. They returned to Quebec, and proposed to the merchants there to conduct ships to Hudson's Bay — the proximity of which, to the principal fur district, was now ascertained. This proposal was rejected. They then went to Paris and explained the matter to the King's Ministers, but with no better success. They were persuaded by Lord Preston, the English Ambassa- dor, to go to London, and to lay their scheme before certain per- sons there. They did so, and were favourably received, f The London merchants, who entertained the project of the two Canadians, entrusted the prosecution of this discovery, not to them, but to Zachray Grilham, who had long been engaged in the Newfoundland trade. He sailed thither in a small ves- sel named the None Such. The discovery I here refer to is the one made known to them by Radisson and Des Grrossil- liers— that the fur trade north of the great lakes might be car- ried on, advantageously, from Hudson's Bay. It is highly probable that they were not the first French- men to cross from Lake Superior to the Bay, but that they were, as has been suggested by Denonville, led thither by the old coureurs des bois, with whom they had formerly carried on trade. In November 1670, Talon wrote to Colbert: — " I learn by the return of the Algonquins, who will winter this year at Tadousac, that two European vessels have been seen very near Hudson's Bay, where they wigwam, as the Indians ex- press it. After reflecting on all the nations that might have * Memoir of the French in Canada. N. Y. Hist. Col. Vol. 9 p.p. 303, 4, 5. Charle- vois's, Vol. 3. Book 10. t Ibid. Part II. NORTHERN BOUNDARY OF ONTARIO. 99 penetrated as far north as that, I can light only on the English who, under the guidance of a man named Degrossilliers, for- merly an inhabitant of Canada, might possibly have attempted that navigation not much known and not less dangerous. I intend despatching thither overland some man of resolution to invite the Kilistinoes, who are in great numbers in the vi- cinity to that Bay, to come down to see us, as the Ottawas do, in order that we may have the first pick of what the latter savages bring us, who acting as pedlars between those nations and us make us pay for a round-about of three or four hun- dred leagues. The proposal made to me by Capt. Poulette, of Dieppe, ought to be menticned here. This man, wise by long practice and experience acquired from an early age and became a skilful navigator, offers to undertake the discovery if not yet accomplished, of the passage between the two seas, the North and South, either by Davis Straits, or by Magellan, which he thinks more certain. After having doubled the opposite coast of America, as far as California, he will take the western winds and favoured by these, re-enter Hudson's Bay or Davis Straits. I have given him a letter which he is to present to you if he have not altered the plan, which would be to penetrate as far as China by one or the other of these passages. If you desire to hear him, my secretary will have him repair to you."* In November, 1671. Talon writes to the King — "Three months ago I despatched with Father Albanal, a Jesuit, Sieur de Saint Simon, a young Canadian gentleman recently honoured by his Majesty with a title. They were to penetrate as far as Hudson's Bay ; draw up a memoh; of all they will discover ; drive a trade in furs with the Indians, and especially reconnoitre whether there be any means of wintering ships in that quarter, in order to establish a factory, that might when necessary supply provisions to the vessels that will possibly hereafter discover, by that channel, the communicaion between the two seas — the north and the south. Since their departure, I received letters **N. Y. Hist. Col. Vol. 9 p. 97. 100 NORTHERN BOUNDARY OF ONTARIO. Part il from them three times. The last, brought from one hundred leagues from here, informs me that the Indians, whom they met on the way, have assured them that two English vessels and three barques wintered in the neighbourhood of that bay, and made a vast collection of beavers there. If my letters in reply are safely delivered to the said father, this establishment will be thoroughly examined, and his Majesty will have full infor- mation about it. As those countries have been long ago ori- ginally discovered by the French, I have commissioned the said Sieur de St. Simon to take renewed possession in his Majesty's name, with orders to set up the escutcheon of France with which he is entrusted, and to draw up his proces-verbal in the form I have furnished him. " It is proposed to me to despatch a barque of sixty tons hence to Hudson's Bay, whereby it is expected something will be dis- covered of the communication of the two seas. If the adven- turers who from their design subject the King to no expense, I shall give them hopes of some mark of honour, if they suc- ceed ; besides indemnifying from the fur trade which they will carry on with the Indians."* In 1673, a Jesuit missionary was sent overland from Canada to discover the country and the situation of the Trading Posts of the Hudson's Bay Company. Under the pretence of friend- ship, he carried with him letters to Des Grossilliers- from his friends in Canada, which led the Grovernor of the Company to suspect that he was corresponding with the French to the prejudice of the English interests in that section. Des G-ros- silliers and Eadisson were dismissed, after having been in the service of the English nearly six years, and returned to Ca- nada.* In 1676, Radisson and Des G-rosilliers having obtained par- don for their defection, a company was formed at Quebec, who sent them to Hudson's Bay, where they formed a sett le- nient north of the said bay on the River Bourbon, which is the * N. Y. Hist. Col., vol. 9, pp. 72-73. f Robson's Hudson's Bay, Appendix I, pp. 6-8. Part n NORTHERN BOUNDARY OF ONTARIO. 101 one the English seized last year (1684), in consequence of a new treachery on the part of Radisson, who returned to their service and conducted them thither.* In 1679, Sieur Joliet prepared a narrative and maps of his voyage to Hudson's Bay, which the farmers of the revenue of Canada demanded of him. This relation is dated the 27th of October, 1679, and signed Joliet. f In October 1681, Duchesneau, the Intendant of New France, in a letter to Seignelay, says : — " The English are still at Hud- son's Bay, on the north, and do great damage to our fur trade. The farmers of the revenue suffer in consequence by the di- minution of trade at Tadoussac, and throughout the entire country, because the English draw off the Ottawa nations for the one and the other design. " They have two forts in the said bay, the one towards Ta- doussac and the other at Cape Henriette Marie, on the side of the Assinnibouetz.J " The Ambassador of the King of England, at Paris, com- plained that the man named Radisson and other Frenchmen having gone with two barques, called le St Pierre and la Ste. Anne, into the river and port of Nelson in 1682, seized a fort and some property of which the English have been in possession for several years. "Eadisson and Des G-rossiliers maintain^ that these allega- tions are not true, but that having found a spot on the Nelson river adapted to their trade, more than 150 leagues distant from the place where the English were settled in Hudson's Bay, they took possession of it in the King's name, in the month of August, 1682, and had commenced building a fort and some houses there. " That on the fourteenth of September following, having heard cannon, they went out to examine, and on the 26th found some beginning of houses on an island, and a vessel aground near the coast. * Calliers to Seigaelay, N. Y. Hist. Col., vol. 9Jp. 268. + N. Y. Hist. Col., vol. 9, p. 795. t K Y. Hist. Col., vol.9, p. 166. 102 NORTHERN BOUNDARY OF ONTARIO. PART II# " That these houses had been begun since they had entered the river, and had set about working at their fort and building, and, therefore, that they were the first occupants. " That since then each haying wished to maintain his esta- blishment, the French were become the masters. " That the ice and bad weather having caused the destruction of the English ship, some men belonging to it had died ; but that they had, on their part, treated them with great modera- tion and kindness, and rendered every assistance to the Eng- lish, who appeared satisfied."" The person in command of the English was John Bridger, the Governor of the Hudson's Bay Company. He arrived, say the English accounts, a few days before the Canadians. The French established themselves on the south branch, then called Ste. Therese, now Hayes river. They ordered Bridger away from the country. He declined to obey. In February of the following year, the English were seized and sent to the southern end of the bay, with the exception of Grilham and Bridger, who were carried prisoners to Quebec. The son of Des Grossilliers and five others were left in possession of Fort Bourbon. f Upon reaching Quebec, Bridger and Grilham were released by La Barre, and their vessels restored. M. de la Barre, the Governor of New France, on the 12th of November, 1682, writes : " As to what relates to Hudson's Bay, the company in Old England advanced some small houses along a river which leads from Lake Superior (Winnipeg). As possession was taken of the country several years ago, he will put an end to this disorder, and report next year the suc- cess of his design." On the 30th of April, 1683, M. de la Ba.rre writes: " Two detachments of Frenchmen have proceeded to the north for the purpose of preventing the English of Hudson's Bay enter- ing on French territory, and obstructing the trade the French * Paris Documents, 6, N. Y. Hist. Col., vol. 9, 798. f Robson's Hudson's Bay. Part II. NORTHERN" BOUNDARY OF ONTARIO. 103 carried on with the Assillibois, Themiscamings, Puisescamins, and Christinoes." On the 5th of August, 1683, the King writes to M de la Barre : " I recommend you to prevent, as much as possible, the English establishing themselves in Hudson's Bay — posses- sion whereof has been taken in my name several years ago ; and as Colonel Dunguent (Dongan,) who is appointed by the King of England, G-overnor of New York, has had precise orders from his Majesty, to keep up a good correspondence with you, carefully to avoid every thing that will possibly in- terrupt it, I doubt not but the difficulties you have experi- enced from the English will cease henceforth." On the 4th and 9th of November, 1683, M. delaBarre writes ihe King, that — " The people who had been at Hudson's Bay have returned, after having encountered extreme dangers. They erected a small fort in which they left a garrison of a few men, about four leagues up a river, 200 leagues north of any Eiglish settlements. It is expected that communication can be had with it overland, as will be seen by the maps he sends. He has received his Majesty's instructions respecting Hudson's Bay, and has engaged those who have organized that expedi- tion, to form a company, and send and purchase a ship in France." * la 1683, an Ordinance of the King was promulgated to the effect, ' ; That all merchants and settlers of New France, who will purchase beaver, moose and peltries, in Hudson's Bay, Perce Island and other parts of New France, Acadia excepted, shaL be bound to bring said beaver and moose to Quebec, that they may be paid for them, and one-fourth retained for the farmers of the revenue."! Iu April, 1784, the King writes to the G-overnor of Canada, that — " The King of England has authorized his Ambassador to spexk to me respecting what occurred in the River Nelson, be- tween the English, Radisson and Des Grossilliers ; whereupon * Paris Documents, 6. N. Y. Hist. Col. vol. 9. p p. 798-9. - N. Y. Hist. Col. vol. 9, p. 800. 104 NORTHERN BOUNDARY OF ONTARIO. Part n . I am happy to inform you, that as I am unwilling to afford the King of England any cause of complaint, and as I think it important, nevertheless, to prevent the English establishing themselves on that river, it would be well for you to have a proposal made to the Commandant at Hudson's Bay, that neither the French nor the English should have power to make any new establishments, to which I am persuaded he will give his consent the more readily, as he is not in a position to prevent those which my subjects would wish to form in said Nelson's river." * On the 10th of April, 1684, the Minister of Marine addressed M. de la Barre, in reference to the restoration of the vessel to G-ilham, which had been captured in Hudson's Bay by Hadisson and Des G-rossilliers. He sa> s — " It is impossible to imagine what you pretented, when of your own authority, without calling on the Intendant, and submitting the matter to tht Sovereign Council, you ordered a vessel to be restored to oris G-uillam (Grilham), which had been captured by Radisson and Grossilliers, and in truth you ought to prevent these sort of pro- ceedings, which are entirely unwarranted, coming under h:s Majesty's eyes. You have herein done what the English will l>e able to make a handle of, since in virtue of your ordinance you caused a vessel to be surrendered which ought strictly to be considered a pirate, as it had no commission ; and the English * The King to M.. de la Barre, 10 April, 1684. Paris, Dec. 6, N. Y. Hist. Col. p. 799. Note. — The arrangement here suggested was made shortly after. The Governor of .Vew France says of it, — " The convention concluded with England, that the River Boirbon Port Nelson, shall remain in joint occupation of the two Crowns, is not advantage- ous to the French, for the voyages of the English are too dangerous, on accouit of their attracting the coureurs des bois as much as possible, besides purchasing the beaver at a higher rate and furnishing the goods cheaper than the French. In his opinion, it would be more beneficial for the company and colony that the French merchants restore the posts at the head of the bay which they took, and that the French should leave them Port Nelson or River Bourbon. If this arrangement were feasible, the Indians could thus be intercepted by land, for it would be useleffl to attempt to become masters of the upper part of the rivers Bourbon and Ste. Therese, inasmuch as it is impossible to prevent the Indians trading with the English." - N. Y. Hist. Col. vol. 9. Part II. NORTHERN BOUNDARY OF ONTARIO. 105 will not fail to say that you so fully recognized the regularity of this ship's papers, that you surrendered it to the proprie- tors, and they will thence pretend to conclude that they have taken legitimate possession of the River Nelson before Messrs. Radisson and Des G-rossilliers had, which will be very pre- judicial to the colony."* " Radisson having gone from Canada to France, in the begin- ning of the year 1684, went to London and once more gave in his adhesion to the English Hudson's Ray Company, and returned to Port Nelson with five ships which they gave him, destroyed the French factories that he had himself erected with Des G-rossilliers, in 1682, plundered their stores, carried off sixty thousand weight of beaver, which he took to London, whither also he conveyed all the French who happened to be at Nelson, among whom was Des G-rossilliers' son, his nephew, and did the Company 400,000 livres damage."f "In 1684, the French Company fitted out two barques to proceed to Hudson's Ray under the command of Sieur de La- martiniere. They sailed on the 19th of June, tarried at St. Paul's Ray until the 12th of July, and arrived at Port Nelson in the morning of the 22nd of September of the same year ; having entered the River St. Therese, they encountered two, leagues up, a boat coming towards them having five English- men on board, w 7 ho enquired of Lamartiniere what he was about in that country, which was the property of the King of England. He answered that the river belonged to the King of France ; that he was come to trade there, and that he wished to speak to the English commandant. After an inter- view of six hours they agreed to prosecute their trade without troubling each other, and that if any difference occurred be- tween them it would be decided by their masters, and that meanwhile Lamartiniere could pass their fort. Some French- men perceiving that all preparations were being made * N. Y. Hist. Col., vol. 9, p. 800. t Ibid. Also N. Y. His+. Col., vol. 9, p. 918. Paris, Doc. 7. See also Guerin's Maritime History of France, vol. 3. 106 NORTHERN BOUNDARY OF ONTARIO. Part I( . within the fort to insult the French, and that a battery of twenty-four guns was erecting to sink them whilst passing, Lamartiniere reproached the governor of the fort, of whom he demanded six men as hostages, offering him as many of his. The English having refused to ac- cede to this, Lamartiniere detached during the darkest part of the night following thirty men to surprise the Eng- lish, who w^ere alarmed by their sentinels. The French were, in consequence, obliged to retire in haste, and resolved to pass from the north to the south branch of that river, and enter another, called La Gargoussee (Cartridge river), which w r as opposite their ship, where they wintered, half a league from the river. " In June, 1685, they ascended four leagues above the Eng- lish, where they made a small settlement." On the 15th of July they set out to return to Quebec, having obtained, in six weeks, 20,000 livres' worth of beaver. "" After having passed Hudson's Bay, they met in the Strait a vessel of 40 or 50 tons burden, called 'The Little Pink,' which arrived without opposition. She was laden with black to- bacco, merchandise for the trade, and 3,000 weight of powder, some woollens, and 400 fusils, all valued with the vessel, at 20,000 livres. This vessel was followed by ' The G-reat Pink,' which they did not think proper to attack. Two days after- wards they met another vessel, of ten or twelve guns, com- manded by Osier, on board of which was the man named Briguere (Governor Bridger), who was going to relieve the Governor at the head of the bay. He is the same that Radis- son brought to Quebec three years ago in the ship that M. de la Barre restored to him. This Governor gave them chase, and obliged them at the end of two days to throw themselves into a cove, at the bottom of which was a little river, where they ran aground. As the English vessel could not do the same, he left at the end of four days. Before leaving, he asked a parley of the commander of the barks, and told him that Eadisson had gone with Chouars, his nephew, fifteen PaetII. NORTHERN BOUNDARY OF ONTARIO. 107 days ago, to winter in the River Ste. Therese, where they win- tered a year. The Governor having left, they hoisted sail, and arrived at Quebec on the first of October, 1685."* In a memoir on the Present State of Canada, by M. de Den- on ville addressed to M. de Seignelay, on the 12th of Novem ber, 1685, he says : " We also see the English establishing themselves at the North Bay, where they will be more inju- rious to us than in the direction of Acadia ; for if their estab- lishments continue as they have begun at the three places on that bay which they actually occupy, and on the River Bour- bon, or Port Nelson, we must expect to see all the best of the beaver trade, both as to quality and quantity, in the hands of the English ; if not expelled thence, they will get all the fat beaver from an infinite number of nations in the north, which are being discovered every day ; they will abstract the greatest portion of the peltries, that reach us at Montreal through the Ottawas and Assinnibois and other neighboring tribes, for these will derive a double advantage from going in search of the English at Port Nelson. They will not have so far to go, and will find goods at a much lower rate than with us. That is evident from the fact that our Frenchmen have seen quite re- cently at Port Nelson some Indians who were known several years ago to have traded at Montreal. The ports at the head of the bay, adjoining the rivers Abitibis and Nemisee, can be reached through the woods and seized ; our Frenchmen are acquainted with the road. But in regard to the ports occupied by the English in the River Bourbon or Port Nelson, it is im- possible to hold any posts below them, and convey merchan- dise thither, except by sea. Some pretend that it is feasible to go there overland ; but the river to reach that quarter remains to be discovered, and when discovered could only admit the conveyance of a few men, and not of any merchandise. The best informed on the subject agree herein. . . . . In re- gard to Hudson's Bay, should the King not think proper for enforcing the reasons his Majesty has for opposing the usurpa- *N. Y. Hist. Col., vol. 9, p. 800. 108 NORTHERN BOUNDARY OF ONTARIO. Part il tions of the English, on his lands, by the just titles, proving his Majesty's possession long before the English had any know- ledge of the said country — nothing is to be done but to find means to support the company of the said bay, formed in Canada, by the privilege his Majesty has been pleased this year to grant to his subjects of New France, and to furnish them for some years a few vessels of one hundred and twenty tons only, well armed and equipped. I hope with this aid, our Canadians will support this affair, which will otherwise perish of itself ; whilst the English merchants more powerful than our Canadians, will, with good ships, continue their trade, whereby they will enrich themselves at the expense of the colony and the King's revenue."* In March, 1686, the Directors of the French Company ob- tained from M. de Denonville a body of Canadian and regu- lar troops, under the command of M. de Troye. He set out overland, accompanied by Messrs. D'Iberville, St. Helene, and Mariconrt. They reached Hudson's Bay in June, and cap- tured three of the company's forts. f In 1687, D'Iberville returned to Quebec with a ship which he and nine others had taken from the Hudson's Bay Com- pany, loaded with peltry, that he had found in their fac- tories. In 1688 he went back to Hudson's Bay. The British had sent thither three vessels to expel the French. The ships were all taken by D'Iberville, and their crews, who were dying of scurvy, were to a man killed. § In 1689 the British attacked Fort Ste. Anne. They were repulsed, and one ship was taken by D'Iberville. The prison - * N. Y. Hist. Col., vol. 9, p. 286. + The French coureurs dcs hois, with one hundred men, took from the English, three forts which they were occupying in Hudson's Bay. — N. Y. Hist. Col., vol. 9, p. 801. Garneau gives the date of this expedition as 1685, and the Hudson's Bay Company as 1680. The latter is the true date. (See Instructions to Frontenac, where the date is given.) The forts taken were Forts Rupert, Ste. Anne, and a fort on the Monsenis, The furs taken at Ste. Anne were valued at 50,000 crowns. § Referred to by King William in his declaration of war against France in 1689. Part II. NORTHERN BOUNDARY OF ONTARIO. 109 ers that had been taken by the French at the time of the attack upon the forts and since, were put on board one of the vesseJs, with leave to return to England. D'Iberville sailed for Quebec, in a ship carrying twenty-four guns, and loaded with peltry. * In 1691, Fort Ste. Anne was re-taken by the British.f In 1694, Fort Bourbon was attacked by the French with two frigates, under the command of D'Iberville, and was taken. It was at this time that D'Iberville defeated three British ships off trie mouth of Nelson river, capturing one and sinking a second. This victory established for a time the supremacy of France in Hudson's Bay. From that time until after the signing of the Treaty of Utrecht, a period of twenty years, the possessions of Hud- son's Bay Company in the bay were confined to the single fort at the mouth of the Albany river, which, - by the condi- tions of the Treaty of Ryswick, they were to have surren- dered to the French. Such is a brief summary of the contest between France and England, during the last half of the seventeenth century, for the sovereignty of the Hudson's Bay. The Treaty of Ryswick, which was concluded in 1697, pro- vided that : — " 7th. The Most Christian King shall restore to the said King of G-reat Britain all countries, islands, forts, and colo- nies, wherever situated, which the English did possess before the declaration of this present war. And in like manner the King of G-reat Britain shall restore to the Most Christian King * In the Instructions to Frontenac, dated the 7th of June, 1689, it is said that " The intelligence of this reciprocal invasion caused a meeting at London of Commis- sioners on the part of his Majesty and of the King of England, at which, not being- able to concur as to the facts, they agreed to postpone the negotiations to the first of January of the present year. It could not be continued, in consequence of the revo- lution in England. As the English in the present troublesome conjuncture in that kingdom will not seemingly have adopted great precaution in those parts, his Majesty desires him to afford that Company the protection it will need, as well for the expul- sion of the English from the parts they occupy there, as for the continuation of the trade.— N. Y. Hist. Col., vol. 9, p. 428. t G-arneau's History of Canada. 110 NORTHERN BOUNDARY OF ONTARIO. Part n , all countries, islands, forts, and colonies, wheresoever situated, which the French did possess before the said declaration of war ; and this restitution shall be made on. both sides, within the space of six months, or sooner if it can be done. And to that end, immediately after the ratification of this Treaty, each of the said Kings shall deliver or cause to be delivered to the other, or to commissioners authorized in his name for that purpose, all acts of concession, instruments, and necessary orders, duly made and in proper form, so that they may have their effect. " 8th. Commissioners shall be appointed on both sides to examine and determine the rights and pretensions which either of the said kings hath to places in Hudson's Bay ; but the possession of those places which were taken by the French du- ring the peace that preceded this present ivar, shall be left to the French by virtue of the foregoing articled By article seven, the principle of reciprocal restitution, so far as it related to conquests made during the war, was agreed to. The statu quo ante helium was to be established. Lest any doiibt should arise as to the forts taken by the French be- fore the war began, article eight declares that places " taken by the French in Hudson's Bay during the peace that prece- ded this present war," shall be left to the French by virtue of the seventh article. This is not simply the application of the principle of uti possidetis at the close of the war, which would have given France all of the places taken by D'lber- ville and others which she then held ; it is the application of the principle to the condition of things immediately preceding the war. It was saying to France, " What you took from us before the war began, shall be yours, and shall be restored to you within the space of six months by virtue of the words : — ' The King of Great Britain shall restore to the Most Chris- tian King all countries, islands, forts, and colonies, wherever situated, which the English did possess before the declaration of war.' " Commissioners were appointed under the Treaty ; but I Part IT. NORTHERN BOUNDARY OF ONTARIO. Ill need not say that they were not at liberty to question the rights of France to the possession of those places which had been taken from the English before the war began. Of these France was made the Sovereign, by the Treaty. The duty of the commissioners, it would seem, was to decide after due ex- amination, the rights of France and England, respectively, to places other than those which the Treaty made uncondition- ally the property of France. It was not impossible for the entire country about the bay, by the decision of the Commis- sioners, to become the property of France ; it was impossible that it could so become a possession of England. Had it been intended to make them the possessions of France, pending the decision of commissioners only, it would have been so stated, or the latter half of the eighth article would have been embraced in the seventh ; but following as it does a provision for the appointment of commissioners to determine the rights and pretensions of the two kings to places in Hudson's Bay, it must be regarded as a limitation upon the scope of the Commission rather than a provision for the temporary possession of the places referred to, the only effect of which would have been to throw upon the English Grovernment the onus of proving a superior title to the country. It is obvious that as a claimant to Hudson's Bay and the ad- jacent country, France stood, after the Treaty of Eyswick, in a more advantageous position than England. The Hudson's Bay Company held Fort Albany. It had been captured by the French in a time of peace, and was re-taken by the Eng- lish during the war ; and was therefore by the Treaty itself awarded to France. In July, 1700, the Hudson's Bay Company addressed a communication to the Lords of Trade in reference to their boundaries. They proposed the Albany river, or the 53rd paral- lel of north latitude, as the boundary on the West coast of the bay, and Rupert's river as the boundary on the East coast. Beyond these limits neither Government was to permit its h 112 NORTHERN BOUNDARY OF ONTARIO. part n. subjects to trade in the territory of the other. They informed the Lords of Trade that "by such limitations the French will have all the country to the south-eastward betwixt Albany Fort and Canada to themselves, which is not only the best and most fertile part, but is also a much larger tract of land than can be supposed to be to the northward, and the Com- pany deprived of that which was always their undoubted right." The French, while maintaining that they were by the prior occupation of the surrounding country, and by the Treaty of St. G-ermain-en-Laye rightful owners of the whole country, seemed ready to accept the line of the fifty-fifth paral- lel, between Albany and York Forts, as the boundary between the possessions of the two countries in the region of Hudson's Bay.* This limit the Company declined to accept, " as they would thereby be the instruments of their own destruction." In January, 1701, Mr. Popple, by order of the Lords of Trade, inquired of the G-overnor of the Hudson's Bay Com- pany, "whether in case the French cannot be prevailed with to consent to the settlement of the boundary proposed, the Com- pany will not think fit to consent that the limits on the east side of the bay be extended to the latitude of 52 J degrees, * "All the world knows," says La Hontan, "that Canada reaches from the 39th to the 65th degree of North, that is, from the South of Lake Erie to the North side of Hudson's Bay ; and from the 284th to the 336th degree of longitude, viz., from the river Mississippi to Cape Race Were I to reckon in all the countries that lie to the Nortb-West of Canada, I should find it larger than Europe ; but I confine myself to what is discovered, known and owned— I mean to the countries in which the French trade with the natives for beavers, and in which they have forts, magazines, missionaries, and small settlements." — Memoirs of Travels in N. America (1683-93). As to the situation of the country possessed by the French in North America, and commonly all comprehended under the prevailing name of Canada, the seat and resi- dence of their Grovernor-G-eneral being upon the place properly so-called- -its situation is from about 54 degrees of North latitude to the Eastward of Port Nelson, in the country of the Escimoes, extending itself all the way South- West to the mouth of the Mississippi river, which falls into the Bay of Appalachio, in the Great Bay of Mexico, about the latitude of 28 degrees and 30 minutes, comprehending as it goes, their part of Newfoundland, the Island of St. Peter, Acadia or Nova Scotia, which borders upon the British Province of New Hampshire whose boundary to the East- ward is the little River St. Croy (as the French allege). — Captain Vetch (1708), Pow- nallMSS., vols. 1 and 4. Part II. NORTHERN BOUNDARY OF ONTARIO. 113 with whatever further they may think it advisable to propose in reference to their own affairs, for the more easy settlement of all disputes between the Company and the French in Hud- son's Bay."* The Company on the 12th of February following made the further offer as to the limits between themselves and the French : "1. That the French be limited not to trade by wood- runners or otherwise, nor build any house, factory, or fort to the northward of Albany river, vulgarly called Checheawan, on the West main or coast. " 2. That the French be limited not to trade by wood- runners or otherwise, nor build any house, factory, or fort to the Northward of Hudson's River, on the East main or coast." By Propositions 3 and 4, the English were to be restrained in like manner from trading south of these limits. By Propositions 5 and 6, the islands of the bay were to have been divided in a manner corresponding to the limitary lines upon each coast. •' 7. That neither the French nor the English shall at any time hereafter extend their bounds contrary to the aforesaid limitations, or instigate the natives to make war on or join with either in any acts of hostility to the disturbance or de- triment of either nation." The Company were willing to agree to these terms upon condition, " that they were secured against any claim that ha% been 'made, or that may be made on them, under the Eighth Arti- cle of the Treaty of Ryswick." They were ready to give up Fort Albany, and accept the forts north of the boundary line which they had proposed, but only upon condition that the limits were definitely settled. They said that if the limits they had proposed " are not ac- cepted, they will not feel themselves bound by this or any former concession of like nature, but must insist upon their right to the whole bay." * Pownall's MSS. , see Appendix, O. I 114 NORTHERN BOUNDARY OF ONTARIO. Part „ I need say nothing concerning this threat. If the Company ever had any such right, the Eighth Article of the Treaty of Eyswick put it out of the power of the English Government to make so extravagant a demand. "When the Company asked to be secured against any claim under this article of the Treaty, they in effect admitted that a claim might be made. It is not difficult to understand what that claim was. I have already stated that the Eighth Article of the Treaty made the forts and settlements which the French had taken from the English before the war, French possessions, which by the Seventh Article were to remain to France, and to be restored to her where, at the close of the war, they were in the hands of the English. By the provisions of the Treaty, Fort Albany became a possession of France. The Company proposed a line of action which could only have been defended had the principle of uti possidetis been the one upon which the Treaty had been based. They were not willing to surrender Fort Albany without an equivalent, which, by the Treaty, they had no right to demand. The feature of the Treaty which impressed itself most strongly upon the minds of the Com- pany, seems to have been this — that no boundary line could be drawn which would exclude the French from the territory that would remain to the Company. The Company sought, not a fulfilment, but an amendment of the Treaty. Their propositions and memorials to the English Government show that they were most anxious to have a boundary of mutual exclusion, which under the treaty was impossible. They wanted in exchange for Fort Albany the places held by the French north of the line of division which they expressed themselves ready to accept. The motive of the Company is obvious. The French were in possession of the Severn and Nelson rivers. The com- mand of these rivers would have given them the greater part of the fur trade north of the limitary line proposed. When this fact is remembered, we can fully appreciate their efforts to escape from the stipulations of the Treaty, and to proceed Part II. NORTHERN BOUNDARY OF ONTARIO. 115 with the Commission as if there had been no agreement on the part of England to leave France in possession of all she held before the war. On the 9th of January, 1702, the Lords of Trade asked the Hudson's Bay Company " to lay before them whatever they may think fit to offer in relation to the trade and security of the place at this time."^ On the 19th of the same month, the Company state " that they have been left in such a deplorable state by their great losses by the French, both in times of peace as well as during the late war, together with the hardships they lie under by the late Treaty of Ryswick, they may be said to be the only mourners by the peace." Albany Fort — their only possession — is surrounded by the French on every side, " by their set- tlements on the lakes and rivers from Canada to the north- wards towards Hudson's Ba}^ as also from Port Nelson (Old York Fort) to the southward." They say that " the French have made another settlement, at a place called New Severn, 'twixt Port Nelson and Albany Fort, where they have hin- dered the Indians coming to trade at the Company's Factory." They ask for " three men of war, one bomb-vessel, and two- hundred and fifty soldiers besides the crews, in order that the vast tract of land may not be lost to the kingdom." On the 19th of May, 1709, the Lords of Trade " ask the Company for an account of the encroachments made by the French upon the territories and places within the limits of the said Company's Charter," This the Company gave, in a memorial in which they complain of the sacrifice of their rights by the Treaty of Ryswick. They refer to the Report of the Commissioners in 1687 in reference to the damages they had sust lined from the French, and repeat the King's resolution thereupon ; and in a long communication to the * This was just before the commencement of the War of the Succession. Each of the communications asked from the Company, were sought in view of negociations for peace, at the Hague, 1709, at Gertruydenberg, 1710, and at Utrecht, 1711-12. — Memoirs de Torcy, vol. 2 ; Coke's Marlborough, vol, 3 ; Bolingbroke's Letters on History, 116 NORTHERN BOUNDARY OF ONTARIO. Part II. Queen, in December, 1709, they say that " when your Majesty in your high wisdom shall think fit to give peace to those enemies whom your victorious arms have so reduced and humbled, and when your Majesty shall judge it for your people's good to enter into a Treaty of Peace with the French Kins', your petitioners pray that the said Prince be obliged by such Treaty to renounce all right and pretensions to the Bay and Straits of Hudson, to quit and surrender all posts and settle- ments erected by the French or which are now in their pos- session, as likewise not to sail any ship or vessel within the limits of the Company's Charter, and to make restitution of the £108,514 19s. 8d. of which they robbed and despoiled your petitioners in times of perfect amity between the two kingdoms." On the 8th of February, 1712, they addressed a memorial to the Lords of Trade, in which they proposed that " No wood- runners, either French or Indians or any other person what- soever, be permitted to travel or seek for trade beyond the limits hereinafter mentioned. That the said limits begin from the island called G-rimmington's Island or Cape Perdrix in the latitude of 58 J degrees north, which they desire may be the boundary between the English and the French on the coast of Labrador, towards Rupert's Land on the east main, and Nova Britannia on the French side, and that- no French ship, barque, boat, or vessel whatsoever shall pass to the northward at Cape Perdrix or G-rimmington's Island towards or into the Straits or Bay of Hudson on any pretence whatso- ever. " That a line supposed to pass to the south-westward of the said Island of G-rimmington or Cape Perdrix to the great Lake Miskosinke at Mistoveny,^ dividing the same into tivo partsj as in the map now delivered, and that the French nor any others employed by them shall come to the north or * Now called Lake Mistassinnie, or Mistassin. f Upon all the English maps since this period the boundary is extended to the high- lands south of this lake. PAR T n. NORTHERN BOUNDARY OF ONTARIO. 117 northward of the said lake, or supposed line by land or water, on or through any rivers, lakes, or countries, to trade, or erect any forts or settlements whatsoever, and the English on the contrary, not to pass the said supposed line either to the southward or eastward. " That the French be likewise obliged to quit, surrender, and deliver up to the English upon demand York Fort (by them called Bourbon) undemolished, together with all forts, factories, settlements, and buildings whatsoever taken from the English, or since erected or built by the French, with all the artillery and ammunition in the condition they are now in, together with all other places they are possessed of within the limits aforesaid or within the Bay and Straits of Hudson." The Company add that their Charter constituted them the lord proprietors of all those lands, territories, seas, straits, bays, rivers, lakes, and soundings within the entrance of the Straits. On the 19th of the same month, the Lords of Trade write to the Earl of Dartmouth to say " that in obedience to her Majesty's commands, they have considered the petition of the Hudson's Bay Company, and that they are of opinion that they have a good right and just title to the whole Bay and Straits of Hudson." They state further that they have received from^ the Com- pany a memorial, a copy of which they enclose to his Lord- ship, and upon which they observe " that it will be for the advantage of the said Company that their boundaries be set- tled," and they suggest that this, with other matters to which they refer, be "recommended to her Majesty's Plenipoten- tiaries at Utrecht." All these representations of the Hudson's Bay Company were made upon the assumption that the War of the Succes- sion, which began in 1702, would put an end to the Treaty of Byswick, and that the stipulations therein made by England and France were no longer binding upon either. This is not the rule. " Transitory conventions are perpetual in their na- 118 NORTHERN BOUNDARY OF ONTARIO. Part n. ture, so that being once carried into effect, they subsist inde- pendent of any change in the sovereignty and form of go- vernment of the contracting parties, and although their ope- ration may, in some cases, be suspended during war, they re- vive on return of peace without any express stipulation — such are treaties of cession, boundary, or exchange of territory, or those which create a permanent servitude in favour of one nation within the territory of another."* " It is of great importance," says Vattel, " to draw a proper distinction between a new war and the breach of an existing treaty of peace, because the rights acquired by such a treaty still subsist, notwithstanding the new war, whereas they are annulled by the rupture of the treaty on which they were founded. It is true, indeed, that the party who had granted those rights, does not fail to obstruct the exercise of them du- ring the course of the war, as far as lies in his power, and even may, by the right of arms, wholly deprive his enemy of them, as well as he may wrest from him his other possessions. But in that case he withholds those rights as things taken from the enemy, who, on a new treaty of peace, may urge the restitution of them." The subject matter of the seventh article of the Treaty of By s wick is of such a nature that it could not be affected by a declaration of war made five years later. The War of the Succession was adverse to France, and England was enabled to make demands in reference to Hudson's Bay, at its conclu- sion, which the triumphs of her arms may have justifiecj, and it is upon the treaty which followed, that her sovereignty to the shores of the bay must rest It is equally certain that be- fore 1713 it was the recognized possession of France. Being unconquered, it was, during the war, as much French terri- tory as Normandy. What effect the ratification of the Treaty of Eyswick had upon the Charter of the Company, I shall by and by consider. * Wheaton's International Law, part 3, sec. 268 ; see also Vattel, B. 2, chap. 12, sec. 192; Kent's Com., vol. 1,420, Society for Propagating the Gospel, v. New Haven, 8 Wheat R., 4W. Part II NORTHERN BOUNDARY OF ONTARIO. 119 The provisions of the Treaty of Utrecht, concluded in 1713, relating to the claims of France and England in Hudson's Bay, are as follows :* "X. — The said Most Christian King shall restore to the kingdom and Queen of Great Britain, to be possessed in full right, the Bay and Straits of Hudson, together with all lands, seas, sea-coast, rivers, and places situated in the said bay and straits, and which belong thereunto, no tracts of land or sea being excepted, which are at present possessed by the subjects of France. All which, as well as any buildings there made, in the condition they now are, and likewise all fortresses there erected either before or since the French seized the same, shall within six months from the ratification of the present Treaty, or sooner, if possible, be well and truly delivered to the British subjects having commission from the Queen of Great Britain to demand and receive the same entire and un- demolished, together with all the cannon and cannon-ball, and with the other provisions of war usually belonging to cannon. It is, however, provided that it may be entirely free for the Company of Quebec, and all other the subjects of the Most Christian King whatsoever, to go by land or by sea, whither- soever they please out of the lands of the said bay, together with all their goods, merchandises, arms, and effects of what nature or condition soever, except such things as are above reserved in this Article. But it is agreed on both sides to de- termine within a year by commissaries to be forthwith named by each party, the limits which are to be fixed between the said Bay of Hudson and the places appertaining to the French, which limits both the British and French subjects shall be wholly forbidden to pass over, or thereby go to each other by sea or by land. The same commissaries shall also have orders to describe and settle the boundaries between the other British and French colonies in those parts " XI. — The above-mentioned Most Christian King shall take care that satisfaction be given, according to the rule of * Chalmers Collection W Treaties, vol. 1, pp. 378-9-80. 120 NORTHERN BOUNDARY OF ONTARIO. PARr „. justice and equity, to the English Company trading to the Bay of Hudson, for all damages and spoil done to their colonies, ships, persons, and goods, by the hostile incursions and depre- dations committed by the French in time of peace, an estimate being made thereof by commissaries to be named at the requi- sition of each party. . . . ." On the 4th of August, 1714, the Hudson's Bay Company renewed their application to the Lords of Trade for a settle- ment of the boundary between their territory and Canada. They again described from Cape Perdrix to the great Lake Miskosinke at Mistoveny (Mistasin), the boundary asked for in February, 1712 ; but they added to their proposition of that date, the words, " and from the said Lake to run south- westward into 49 degrees north latitude, as by the red line may more particularly appear, and that latitude be the limit. . It is quite clear from the correspondence which passed be- tween the two Governments at the time that the Treaty was being negociated, that no such pretension was put forward by the English, and that it was upon the east of the bay alone that the Hudson's Bay Company made any suggestions in reference to the boundary. In August, 1719, in a memorial to the Lords of Trade, the Hudson's Bay Company admit that the bay and straits have been surrendered to them according to the terms of the Treaty ; but they complain that since the conclusion of the Peace — viz., in 1715 — the French had made a settlement at the head of Albany river,* upon which they have their principal factory, intercept- ing the Indian trade, and will ultimately ruin their factories if not prevented — and they renew the desire expressed in their petition of 1714, that except upon the Labrador coast, the French might be prevented going north of the forty-ninth parallel. The English Government undertook to refer the " several matters pursuant to the 10th, 11th, and 15th Articles of the Treaty of Peace with France" to the commissaries who had * This may have been the Fort built by Lieutenant Noiie in 1717, by order of Vau- dreuil.— See Minute of Conseil de Marine. Appendix K. * Part II. NORTHERN BOUNDARY OF ONTARIO. 121 been appointed under the Commercial Treaty of Utrecht for the purpose of giving effect to the provisions of that Treaty ; but they were informed that the French commissaries could not deal with the subjects referred to in the Treaty of Peace.* In 1719, commissioners were appointed for the purpose. The demands of the English commissioners were, that the limits should be those which the Hudson's Bay Company had prayed for since the peace ; that the fort erected by Lieut. Noiie at the head of Albany river should be given up, as coming within the stipulations of the Treaty ; and that no new posts should be established on any of the rivers which were discharged into Hudson's Bay. When pretensions were thus put forward by the English to so large a territory, the French commissioners avoided any further conference. Nor is this at all surprising. I think these demands can be con- clusively shown to have been inconsistent with the under- standing arrived at between the two Governments while the Tenth Article of the Treaty of Utrecht was under consideration. In a memorial addressed by the Marquis de Torcy to Mr. Prior, one of the English Plenipotentiaries to the French Court, dated the 7th of January, 1713, New Style, he says : " The Plenipotentiaries of Great Britain insist that it shall be expressed that France shall restore, not only what has been taken from the English, but also all that England has ever possessed in that quarter. This new clause differs from the plan, and would be a source of perpetual difficulties ; but to avoid them, the King has sent to his Plenipotentiaries the same map of North America as had been furnished by the Plenipotentiaries of Great Britain. His Majesty has caused to be drawn upon this map, a line which describes the boundaries in such a manner as he has reason to be- lieve they may easily agree [as to~\ this point on both sides." f On the following day, Mr. Prior addressed a letter to Lord Bolingbroke, in which he says : " As to the limits of Hud- son's Bay, and what the Ministry here seem to apprehend, at * See Pownall's MSS., vol. 5, p.p. 1-37. t Correspondence of Lord Bolingbroke, vol. 3. Appendix P. 122 NORTHERN BOUNDARY OF ONTARIO. Part II. least in virtue of the general expression — tout ce que V Angle- terre a jamais possedS de ce cote la (which they assert to be wholly new, and which I think is really so, since our pleni- potentiaries make no mention of it) — may give us occasion to encroach at any time upon their dominions in Canada, I have answered, that since, according to the carte which came from the Plenipotentiaries, marked with the extent of what was thought our dominion, and returned by the French ivith what they judged the extent of their 's, there was no very great difference, and that the parties who determine that difference, must be guided by the same carte. / thought the Article would admit of no dispute, in case it be either determined immediately by the Plenipoten- tiaries, or referred to commissioners. I take leave to add to your Lordship that these limitations are not otherwise advan- tageous or prejudicial to Great Britain than as we are better or worse with the native Indians, and that the whole is rather a matter of industry than dominion."^ It is manifest from this letter of Mr. Prior's, that the extreme pretensions of both Governments were marked upon the map referred to, and that when a commission came to be ap- pointed, they could not seek for a boundary under the Treaty elsewhere than within the country lying between these lines, These letters have no meaning if it was intended to restore the whole country drained into the bay, to England. This would be the most extreme demand she could make, and these letters show that the actual cession fell far short of such a claim. Had there been no maps referred to, and letters written, the use of the word restore in the Treaty, must of it- self have precluded the English from claiming more than she ever actually possessed. The correspondence shows that she was to have less; that some of her former possessions were not to be restored to her, and the words of the Treaty were to be interpreted by the lines upon the map. I have no doubt whatever that the boundary of the Hud- son's Bay territories marked upon De Lisle's map, which was * Hardwicke's State Papers, vol. 2, p. 500. Appendix P. PartII. NORTHERN BOUNDARY OF ONTARIO. i23 first published about the period of these negociations, cor- rectly represents the line drawn by the French, upon the map referred to by Mr. Prior and the Marquis de Torcy, and it cannot for a moment be supposed that upon that map the English drew a line coming down to the forty-ninth parallel. It is not at all improbable that the British commissioners were, at the time they put forward the extreme claims of the Hudson's Bay Company, unaware of the limitations the re- spective Governments had put upon their claims to dominion over the basin of the bay, by lines drawn upon the map, which was intended to assist in a proper construction of the Tenth Article of the Treaty of Utrecht ; otherwise the con- duct of the British commissioners is inconsistent with good faith on the part of the Government they represented. Six years had elapsed. Bolingbroke had been driven into banish- ment. The men who had come into power upon the fall of Marlborough were displaced, and it is not at all improbable that they were ignorant of the limitation that the letters of De Torcy and Prior, and the map they refer to, put upon the demands, that otherwise might, with a little show of reason, be made under a literal construction of the Treaty. The Hudson's Bay Company were called upon in July, 1750, to lay before the Lords of Trade and Plantations a description of the limits of the territories granted them by the Charter of 1670. Their knowledge of the geography of the regions they claimed, seemed to have improved since 1714. They enter into a more minute description of the country. They say that the Bay and Straits of Hudson " are now so well known that they stand in no need of any particular description than by the chart or map herewith delivered, and the limits or boundaries of the lands and countries lying round the same, comprised as your memorialists conceive in the said grant, are as follows : that is to say, all the lands lying on the east side or coast of the said bay, and extending from the bay eastward to the Atlantic Ocean and Davis' Strait, and the line hereafter mentioned, as the east and south-eastern boundaries 124 NORTHERN BOUNDARY OF ONTARIO. part II. of the said Company's territories ; and towards the north, all the lands that lie at the north end, or on the north side or coast of the said bay, and extending from the bay northwards to the utmost limits of the lands there towards the North Pole ; but where or how these lands terminate is hitherto unknown. And towards the west, all the lands that lie on the west side or coast of the said bay, and extending from the said bay westward to the utmost limits of the said lands ; but where or how these lands terminate to the westward is also unknown, though probably it will be found they terminate on the Great South Sea. And towards the south, all the lands that lie on the 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 the places appertaining to the French in those parts by a line from the island called G-rimmington Island or Cape Perdrix, in the latitude of fifty-nine and a half degrees north, which they desire may be the boundary between the English and the French on the coast of Labrador," &c. The remain- der of the description corresponds with the line set out in their proposal of the 4th of August, 1714. This memorial shows that they did not regard their Char- ter as simply covering the territory drained by the rivers falling into the bay — as they claimed the territory to the North Pole and to the Pacific Ocean. They seem to have ad- mitted the claims of the French to the southern part of the basin of Hudson's Bay ; for they say with regard to the southern boundary, that " to avoid as much as possible any just grounds for differing with the French in agreeing on those boundaries whiph lie nearest their settlements, it is laid down so as to leave the French in possession of as much or more land than they can make any just pretension 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." This line, as laid down on the maps of Mit- chell and Bell, gave to France the country as far west as the longitude of the head waters of the Mississippi; and this Part II. NORTHERN BOUNDARY OF ONTARIO. 125 was the most extreme pretension put forward by the Com- pany before the conquest of Canada, and the Treaty which confirmed it in 1763. I have not deemed it necessary to detail the voyages and discoveries upon which the French founded their claims to the sovereignty of Hudson's Bay. A memoir of their rights will be found written by M de Denonvilie, and addressed to M. de Seignelay, from Quebec, on the 8th of November, 1686, at pages 303, 304, and 305, volume 9, of the New York His- torical Collection. The French attempt at continuous occupa. tion of the shores of the bay, dates from 1656, and the Eng- lish occupation began eleven years later. The French hold- ing, as they did, the interior country, carried on the fur trade with the northern Indians at Temiscaming, Alemipigon, and other posts, did not make any effort to establish themselves upon the shores of the bay. They no doubt felt that they could better protect the revenue derived from the licenses granted to the traders, by making the St. Lawrence the exclusive highway to Europe, than by permitting a portion of the trade to escape thither from Hudson's Bay. There is no evidence that Hudson, or any of those who succeeded him, was commissioned to take possession of the country about Hudson's Bay, on behalf of the Crown of England. Nor is there any evidence that the English had any intention of seeking to acquire the territory before 1667. If they had any intention before that time to base a claim to the sovereignty of the country upon the voyages of Hudson, Fox, or Button, there would have been some mention made of it during the negociations of the Treaty of St. Grermain- en-Laye, in 1632, when Canada was restored to France, and the successes of Kirke were thrown away. But there is no allusion to any British possessions in the north, and that Treaty proves that hi 1632 the English laid claim to no terri- tory north of the St. Lawrence.^ * Blome's " Present State of His Majesty's Isles and Territoides in North America,' published in July, 1686, makes no mention of Hudson's Bay. It was for years only known as British territory to the Company, and to the Ministers to whom they com- plained of French aggressions. 126 NORTHERN BOUNDARY OF ONTARIO. Part II. It is not, however, necessary to determine the merits of the claims of the respective parties in order to arrive at a just con- clusion as to the location of the northern boundary of Ontario. The Treaty of Utrecht gave to England the shores of the bay, and it is my purpose to state where I think the Treaty of Utrecht, and the subsequent acts of the Parliament and King of England placed it. During the negociations of the Treaty of Utrecht, long discussions took place between the Plenipo- tentiaries of England and France as to the phraseology of the Treaty.^ The French, in surrendering the bay and the adjacent territory, wanted to use the word cede, and the Eng- lish insisted on the use of the word restore. The French were unwilling to admit that when they captured the Eng- lish forts upon the shores of the bay, in time of profound peace, they had been capturing forts which were rightfully erected by British subjects upon British territory. The English seemed to have insisted upon the use of the word restore, to revive, if possible, the rights of the Hudson's Bay Company to the country which had for twenty years been in the possession of the French ; and the letter of Lord Dart- mouth to the Hudson's Bay Company shows very clearly that the transfer was to be made directly by France to the Com- pany, and not to the Government of Great Britain ; so that " by this means, the title of the Company is acknowledged, and they will come into the immediate enjoyment of their property without further trouble."! From the signing of the Treaty of Utrecht to the signing of that of Paris, the Hudson's Bay Company built a few ad- ditional posts, but except Henley House, and a trading post in the direction of Temiscaming, none of these posts drew them away from the shores of the bay. Nor do I see upon what principle that any act of the Company could, at that time, have enlarged their possessions. The fur-traders, under the Government of Canada, had for half a century traversed * Bolingbroke's Correspondence, vol. 3. Appendix P. t Dartmouth to Lords of Trade, May 27th, 1714. Appendix O. part II. NORTHERN BOUNDARY OF ONTARIO. 127 the country between the great lakes and the bay, westward to Lake Winnipeg, and when the French had gone from Quebec, from Mackinac, and from Nipigon, to Hudson's Bay, and captured the forts of the Company, which were subse- quently recognized as rightfully belonging to them, it could scarcely be held that it was possible for the Company to extend their dominion over any part of the country east of Lake Winnipeg and Nelson's river, without encroaching upon Canada. In 1718 the Company built a wooden fort upon the Churchill Eiver, called The Prince of Wales Fort.=* In 1730 they built one fort upon the Moose River, and another small one on the East Maine. In 1744 they built Henley House, 150 miles up the Albany river, so as to share the trade in a larger degree with the French, who had twenty-seven years earlier built a fort near the source of that river.f They did not enter the Valley of the Saskatchewan until the end of the last century, nor that of the Red River until the beginning of this. I have stated in the first part of this report, that the Charter of the Hudson's Bay Company was not intended to confer a title to a country already possessed by the Crown. It was, as it professes to be, and as many * Hearne says it was built in 1721. f It seems the French had been in the habit of trading about Lake St. Joseph's and the Head Waters of the Albany river long before Lieutenant Noue was sent thither (1717) to establish a fort. In fact, he could not have been ordered to estab- lish a fort at a lake near Lake Christinaux unless the country had been thoroughly explored before, and the propriety of making it the centre of a trade determined. M. de Denonville, in writing to M. Seignelay, August 25th, 1687, says : " Du L'Hut's brother, who has recently arrived from the rivers above Lake Alernmipigons, assures me that he saw more than 1,500 persons come to trade with him. They were very sorry that he had not sufficient goods to satisfy them. They are of the tribes accustomed to resort to the English of Port Nelson or River Bourbon, where they sa> they did not go through Sieur Du L'Hut's influence. It remains to be seen whether they speak the truth. The overland route to them is frightful, on account of its length, and of the difficulty of finding food. He says there is a multitude of people beyond these, and that no trade is to be expected except by sea, for the expense is too great." — N. Y. Historical Collection, vol. 9, p. 343. L28 NORTHERN BOUNDARY OF ONTARIO. Part II. earlier charters were, a commission from the King to make discoveries. It is true that the Company constituted by the Charter, were informed that the King expressly excepted from the grant the possessions of other Christian Princes. But the King could not convey what he did not have, and it cannot for a moment be maintained that either by actual pos- session or by discovery, any claim could at that time be set up to the country in the interior. If it be admitted that the King had the power to grant such a charter — and I am not here questioning his right to do so — it could not be held to convey more territory than was in his possession at the time, unless it subsequently became English territory by the enter- prise of the company to whom the grant was prospectively made.* The Company, by the terms of their Charter, as- suming it to have been valid, were the commissioned agents of the Crown for the purpose of extending the sovereignty of England in the region about Hudson's Bay. They made no effort under their Charter to extend the King's dominions. They, as time advanced, laid claim to more and more terri- tory. This they did as the country became known to them through the explorations of the French. The French, by the Treaty of Utrecht, surrendered the Bay and Straits of Hudson ; but they pushed on with all the more energy their explorations of the interior. They estab- lished trading posts in the country north of Lake Superior and Lake Nipigon, which had thirty years earlier been ex- plored by Du L'Hut and others. It was in 1666 or 1667 that Eadisson and Des Grosseliers crossed from Lake Superior to Hudson's Bay, and it is highly probable that they did what M. Denonville says — they went over a country that the French fur-traders had before explored, "f* Thomas Jeffery, Geographer to the King of England, in his account of the French dominions in North America, * Great doubt was expressed in the case of the Duke of York, as to whether a grant could be made valid by the subsequent acquisition of the country, t M. Denonville to M. de Seignelay, Nov. 18, 1686. Part II. NORTHERN BOUNDARY OF ONTARIO. 129 marks the northern boundary of Canada as extending along the height of land between Lake "Winnipeg and Hudson's Bay, crossing Nelson river at what is marked upon his map as Lake of the Forts, and upon more recent maps as Split Lake. He says that, " At the mouth of the Three Kivers (Kamenistiquia) is a little French fort called Camenista- gonia,* and twenty-five leagues to the west of the said fort, the land begins to slope, and the river to run towards the "West. At ninety-five leagues from the greatest height lies the second establishment of the French that way, called Fort St. Pierre, in the Lake Des Pluies. The third is Fort St. Charles, eighty leagues further on, on the Lake Des Bois. The fourth is Fort Maurepas, a hundred leagues distant from the last, near the head of the Lake Ouinipigon. Fort La Reine, which is the fifth, lies a hundred leagues further, on the river of the Assiniboils. Another fort had been built on the River Rouge, but was deserted, on account of its vicinity to the two last. The sixth, Fort Dauphin, stands on the west side of Lac Des Praries, or of the Meadows. The seventh, which is called Fort Bourbon, stands on the shore of the G-reat Lake Bourbon. The chain ends with Fort Poskoyac, at the bottom of a river of that name, which falls into Lake Bourbon. The River Poskoyac is made by De Lisle and Bauche to rise within twenty -five leagues of their west sea, which they say communicates with the Pacific Ocean. All these forts are under the Governor of Canada." f These settlements of the French carry Canada beyond the watershed of the St. Lawrence, and if any one will examine into the claims of the respective parties, he can have little * The design of building Fort Camanistigoyan, on Lake Superior : " 'Tis some years since Mr. Dulhut built a fort upon this lake, where he had made large maga- zines of all sorts of goods. That fort was called Camanistigoyan, and did consider- able disservice to the English settlements in Hudson's Bay."— La Hontan's Memoirs of North America, p. 214. f Jeffery's French Dominions in America, p 19 ; taken from Remarks upon the Map of America, by N. Bellin, Paris, 1755. See also the works of Henry Carver, and La Hontan. K 130 NORTHERN BOUNDARY OF ONTARIO. Part il doubt to whom the territory north-west of Lake Superior by- right belonged. The Charters granted to Sebastian Cabot, to Sir Humphrey Gilbert, to Sir Walter Raleigh, to the London Company, and to the Plymouth Company, show very clearly that the policy of the Crown was to extend by such agencies its dominion over North America. They embraced vast tracts of territory of which England was never able to claim the sovereignty. Such unlimited grants can only be understood in this sense, that the Crown did not wish to set limits to the extension of its dominions by the discoveries of its own subjects. Its pos- sessions hi the neighbourhood of Hudson's Bay, if it had any, were to be enlarged by the discoveries and settlements of the Company, it could not well set definite limits to the terri- tories granted by the Charter, except such as were possessed by other British subjects, or by the subjects of other Christian States. It is, indeed, very doubtful whether such a grant would prevent future explorations and settlements by other British subjects beyond the country actually appropriated by the Company. Had it been possible for other subjects of the King of England to have gone to the head waters of the Nelson, the Albany, or the Severn rivers without entering the bay, and to have formed settlements there, which were not reached by the Company for half a century, who^ will hold that they would have been, from the beginning, trespassers upon the property of the Company ? But whatever doubt might exist in the mind as to other British subjects, in such a case, there can be no doubt as to the rights of the subjects of a foreign prince. A right of sovereignty attends, as a neces- sary consequence, upon the establishment of a nation in an unsettled or barbarous country. A nation may so establish itself either by immigration in a body or by sending forth colonies ; and when a nation so takes possession, the country becomes a part of the parent state.* The right of dominion in a nation corresponds to the right * Vattel's Law of Nations, book 1, sections 205-210. Part II. NORTHERN BOUNDARY OF ONTARIO. 131 of property in an individual. When a nation occupies a vacant country, it imports its sovereignty into the country. A nation differs from an individual in this — when an individ- ual settles in a country in which he finds no previous owner, he cannot arrogate to himself an exclusive right to the coun- try, or to its government, unless some sovereign authority has delegated to him power to do so.* " The exclusive right," says Wheaton, " of every individual State to its territory and other property, is founded upon the title originally acquired by occupancy, and subsequently con- firmed by the presumption arising from the lapse of time, and by treaties and other compacts with foreign States."! To constitute a valid territorial title by occupation, the ter- ritory must be previously vacant, and the State must intend to take and maintain possession. The cJaims of European nations to possessions held by them in the New World discovered by Columbus and other adventurers, was originally derived from discovery, or conquest, or colonization .% When Mendoza, the Spanish Ambassador, remonstrated against the expedition of Drake, Queen Elizabeth replied : " That she did not understand why either her subjects or those of any other European Prince should be deprived of traffic in the Indies ; that as she did not acknowledge the Spaniards to have any title by the donation of the Bishop of Rome, so she knew no right that they had to any places other than those they were in actual possession of. For that their having touched only here and there upon a coast, and given names to a few rivers or capes, were such insignificant things as could in no wise entitle to a propriety, further than in parts where they actually settled, and continued to inhabit ."§ Elizabeth, in refusing to recognize the double Spanish title by exploration and investiture, put it out of the power of her * Vattel's Law of Nations, book 2, section 96. t Wheaton's International Law, chap. 4., sec. 161. + Wheaton's International Law, chap. 4, section 165. § Camden's Annals, anno 1580 (edit Hearne, 1717), p. 360. 132 NORTHERN BOUNDARY OF ONTARIO. Part IT. successors to found any claim upon the discoveries of Cabot, Hudson, Fox, and others who sailed into Hudson's Bay. In 1824, Mr. Eush, in a letter to Mr. Adams, said that Great Britain " could never admit that the mere fact of Spanish navigators having first seen the coast at particular points, even where this was capable of being substantiated as a fact, without any subsequent or efficient acts of sovereignty or settlement following on the part of Spain, was sufficient to exclude all other nations from that portion of the globe .'^ The principle recognized and maintained by the United States is " that prior discovery gives the right to occupy, pro- vided that occupancy takes place within reasonable time, and is followed by permanent settlement, and by the cultivation of the soil."f In the discussion that took place between Russia and the United States in respect to the boundary upon the North- West coast of America, the Chevalier de Poletica, the Russian Minister at "Washington, laid down the following doctrine as a basis upon which a Government may fairly claim the sovereignty of a country: "The title of first discovery, the title of first occupation, and in the last place, the peaceable and uncontested possession for more than half-a-century." % The same doctrine was stated in 1826 by the British Com- missioners, Messrs. Huskisson and Addington, for the settle- ment of the boundary between the United States and British America. They say : " Upon the question how far prior dis- covery constitutes a legal claim to sovereignty, the law of nations is somewhat vague and indefinite. It is, however, admitted by the most approved writers that mere accidental discovery, or receiving the sovereignty from the natives, constitutes the lowest degree of title ."§ • " Soon after," says C. J. Marshall, " Great Britain deter- * State Papers 1825-1826, p. 512. f Mr. Gallatin, in Appendix to Greenhow's Oregon Boundary ; also Twiss' Oregon Question, p. 105. X British and Foreign State Papers, 1821-2, p. 485. § London Conference, Dec. 16, 1826. Part II. NORTHERN BOUNDARY OF ONTARIO. 133 mined on planting colonies in America, the King granted charters to companies of his subjects who associated for the purpose of carrying the views of the Crown into effect, and of en- riching themselves. The first of these charters was made before possession was taken of any part of the country ; they purport generally to convey the soil from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to con- vey the title, which, according to the common law of Euro- pean sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of pur- chasing such lands as the natives were willing to sell. The Crown could not be understood to grant what the Crown did not affect to claim, nor was it so understood."* It will hardly be contended by the Government of Canada, that, because the Hudson's Bay Company had established cer- tain posts and forts at the mouth of some of the rivers that empty into the bay, that this gave to the Company, or to the Crown of Great Britain the right to all the countries through which rivers flow to the bay. A pretension of this kind was put forward by the United States, for the purpose of estab- lishing a claim to the entire valley of the Columbia river and its tributaries, and it was at the time expressly repudiated by Great Britain. It is a principle as well settled as any in international law, that rivers are no more than appendages of the countries through which they run, and a settlement upon the coast * Worcester v. The State of Georgia, 6 Peter's R. Note.— Gilbert's patent, made the 11th of June, 1578, authorized him to discover and occupy any remote, heathen, or barbarous lands not actually possessed of any Christian prince or people. — Hazard's Hist. Col., vol. 1., p.p. 24-28. 134 NORTHERN BOUNDARY OF ONTARIO. Part II. gives possession to the country in the rear, only so far as it bars the approach to the interior of the country.* By the Tenth Article of the Treaty of Utrecht, the French restored to the English, " Hudson's Straits and Bay, and all the lands, seas, sea-coasts, rivers and places situated in the said Bay and Straits, and which belong thereunto, no tracts of land or sea being excepted which are at present possessed by the subjects of France." It is true, that, was it not for the use of the word restore in the Treaty, the expressions employed are very compre- hensive ; but this one word limits all general words of description to what was once in the actual possession of England. If this were not the case, there would have been no propriety in inserting the additional terms for the cession of tracts of land in the possession of French subjects.! Had the word cessio n been used instead of restoration, the terms all lands, seas, sea-coasts, etc., would certainly have been broad enough to have conveyed the entire coasts of the bay ; but it would seem that, for the purpose of maintaining that Charles the Second had the right to make a grant of some part of the coast, and in this way to give color to the claims of the Company, the word restoration was insisted on, and, * See correspondence between the Governments of England and the "United States, relative to the Oregon boundary, and the discovery of the Columbia River. — State Papers, 1845-6. | Hudson's Bay, which was one of Canada's most lucrative establishments, has been ceded to the English by the Treaty of Utrecht, under the denomination or title of restitution. They carry on a profitable trade there ; but the excessive cold, and difficulty of subsistence, will never permit them to form establishments there capable of affording any uneasiness to Canada — and if the strength of the latter country be augmented, as proposed, 'twill possibly be in a condition in the first war to wrest Hud- son's Bay from the English. The Treaty of Utrecht had provided for the appointment of commissioners to regu- late the boundaries of Hudson's Bay ; but nothing has been done in that matter. The term " restitution" which has been used in the Treaty, conveys the idea clearly that the English can claim only what they have possessed, and as they never had but a few establishments on the sea-coast, 'tis evident that the interior of the country is consi- dered as belonging to France. — Memoir on the French Colonies in North America, by M. de la G-aUisseioniere, Paris, Doc. 10.— N. Y. Hist. Col., vol. 10, p. 225. part II. NORTHERN BOUNDARY OF ONTARIO. 135 therefore, further words of conveyance became necessary to put England in possession of the entire coast. This fact must not be overlooked, that while France con- sented by this Article of the Treaty to transfer to England possessions which had not been hers before ; she at the same time refused to agree to it in its present form until the English Government made known the extent of country they claimed, because she was resolved not to surrender all that might, otherwise, be demanded. The letters of the Marquis de Torcy and Mr. Prior establish beyond question that the resto- ration referred to was greatly restricted by the lines drawn upon the map, which must be regarded as a necessary part of the Treaty. The French Grove rnment had, as Mr. Prior ad- mits, expressed their fears that a large extent of country would be demanded from them under the Treaty. They re- membered the former pretensions of England, and it was to prevent the possibility of her insisting upon being put in pos- session of all she had ever claimed, that a map was brought into requisition, and lines drawn by the plenipotentiaries of the two governments, showing beforehand how each party to the Treaty understood it. They were drawn to construe the Treaty, not in the interest of England, but in the interest of France, and in order that she might be protected against a demand for as much territory as the Treaty would, otherwise, seem to entitle England to claim. It is true that Fortifications and Military Posts are some- times expressly mentioned as having been ceded or restored, when there has already been a stipulation for the transfer of the entire country in which they are situated ;* and had the Treaty only mentioned the Posts and Forts in the possession of the French, in addition to the general words of restoration, it might have been very properly argued that they were within the territory to be restored ; but the words of the * See the Discussion Between the Governments of England and France, on the Limits of Nova Scotia, as to the effect of mentioning the cession of certain forts, as well as " all Acadia."— J1qt Majesty's Rights in Acadie, 1756. 136 NORTHERN BOUNDARY OF ONTARIO. Part IL Treaty show that however comprehensive the terms of resto- ration might be, the English did not think them alone suf- ficient to secure the transfer of the entire coasts of Hudson's Strait and Bay. I have already quoted the Articles of the Treaty of Ryswick, by which it was stipulated that all Places and Forts estab- lished on the shores of Hudson's and James' bays by the Hud- son's Bay Company, became the property of France. I am of opinion that these stipulations extinguished what- ever rights the Company had by their Charter, and that they were not revived by a retrocession of the country to Great Britain by the Treaty of Utrecht. As a general rule, when a Government comes into posses- sion of property which belonged to its subjects, and which had been captured by an enemy, it restores the property to the original owners. So far as it can, it puts them upon the same footing as that in which they stood before the capture.* It is, too, the rule and the practice for the conqueror to re- spect the right to private property in the soil when a country is conquered. But to both these rules there are important ex- ceptions. " Where a territory," says Halleck, " has been ac- quired by conquest, and confirmed to the conqueror by a Treaty of Peace, the right or title of the new sovereign is not that of the original possessor, and therefore is not subject to the same limitation or restriction. It originated in force, and dates back to the conquest. A subsequent restoration of such territory to its former sovereign is regarded in law as a retro- cession, and carries with it no right of postliminy. When the inhabitants of such conquered territory become a part of the new State, they must bear the consequence of the transfer of their allegiance to a new sovereign ; he is in turn to be regarded as a conqueror, and they cannot claim, as against him, any rights of postliminy. The correctness of the principle of international law is never disputed."! * Vattel, book 3, section 205. + Halleck's International Law, chapter 35, section 9. Part II. NORTHERN BOUNDARY OF ONTARIO. 1ST Vattel might seem to a careless reader to lay down a differ- ent doctrine, but when carefully examined, it will be found to be substantially the same. He says : " Provinces, towns, and lands which the enemy restores by the Treaty of Peace are certainly entitled to the right of postliminium ; for the sovereign, in whatever manner he recovers them, is bound to restore them to their former condition as soon as he regains possession of them (§205). The enemy in giving back the town at the peace, renounces the right he had acquired by arms. It is just the same as if he had never taken it, and the transaction furnishes no reason which can justify the sovereign in re- fusing to reinstate such town in the possession of all her rights, and restore her to her former condition. But what- ever is ceded to the enemy by a Treaty of Peace is truly and completely alienated. It has no longer any claim to the right of postliminium unless the Treaty of Peace be broken and cancelled."* The restoration here spoken of is not a retro- cession of territory, the title to which has already been vested in the conqueror, but the restoration of territory at the peace immediately following the war in which the conquest was made ; and in that event the adverse possession is regarded rather as a belligerent occupation than a conquest.^ The Hudson's Bay Company were not simply private owners of a great estate, endowed by their Charter with limited powers of G-overnment. They built forts, and armed them. Their valuable property in the vicinity of Hudson's Bay was such as belongs to a State rather than to a citizen. Had their forts and posts been re-captured during the war preceding the Treaty of Eyswick, and left to the English by the Treaty, it would have been the duty of the G-overnment to have placed the Company in the position they stood before * Vattel's Law of Nations, book 3, sections 214 and 215. t 3 Washington C. C. Rep. 101 ; 8 Wheaton's R. 591 ; 12 Peter's R. 410 ; Halleck's Int. Law 840, 841 ; 2 Dallas R. 1 ; 1 Cowp. R. 165 and 205 ; 2 East R. 260 ; 4 Mod. R. 225. Conquest does not per se give the conqueror plenum dominium et utile, but a temporary right of possession and government.— 2 Gallis. R. 486. 138 NORTHERN BOUNDARY OF ONTARIO. Part 1L the capture.* But this rule does not apply where the rights of the original owners have been once extinguished.! The Hudson's Bay Company were not recognized by France as or- dinary proprietors of the soil, who continued in possession of their lands under a change of sovereignty. They were re- garded as a great public corporation, acting on behalf of their G-overnment, whose rights must stand or fall with the autho- rity of the G-overnment which created them a corporation. This may be taken as the Common Law of the European States that were seeking to establish their authority upon this continent. Their conduct and policy, during the seventeenth and eighteenth centuries, show conclusively that companies such as this one were looked upon as great political corpora- tions, whose rights and franchises were created mainly to ex- tend the power and authority of the sovereign who chartered them, and that they had, therefore, no rights as private owners which a foreign state was, in case of conquest, bound to re- spect. They were looked upon as the custodians of political power rather than as private citizens, and were dealt with ac- cordingly. It was in this way that the English dealt with the Quebec Company, and the Treaty of Utrecht recognizes the principle in express terms. The case of the Duke of York, under the charters granted to him, well illustrates the principle. On the 12th of March, 1664, O. S., the King granted, by Royal patent, to his brother James, Duke of York and Albany, all the lands and rivers from the west side of the Connecticut river to the east side of Delaware bay. His patent also embraced Long Island and the islands in the neighbourhood. These had before been granted to Lord Stirling, but he had released his title before the grant was made to James. This patent conveyed a part of Connecticut and the whole of New Netherlands. James was at the time Lord High Admiral. He took four ships of war to give effect to his patent, and to put himself in possession of his new * Vattel's Law of Nations, book 3, section 205. t Halleck's Int. Law, 840, 1, 2. Phillimore's Int. Law, vol. 3, p.p. 568-572. Part II. NORTHERN BOUNDARY OF ONTARIO. 139 estate. These were put under the command of Colonel Nicolls, who had associated with him Sir H. Carr, Colonel G-. Carteret, and Samuel Moverick (who "was a commissioner to the New England colonies), requiring them to assist in the conquest of the country granted to the Duke. On the 20th of October, N. S., the conquest of New Netherlands was com- pleted, and James went into possession. Three years later the sovereignty of the country was confirmed to England by treaty. In 1773, war again broke out between England and the United Provinces, and the country was re-conquered by the Dutch. By the Sixth Article of the Treaty of Westmin- ster, which was ratified on the T % of February, 167|, the United Provinces relinquished their conquest of new Nether- lands to the King of England. It was claimed that James' former proprietorship in America revived by the restoration of the Province to the King of England, especially as the Treaty of Westminster re-established the Articles of Capitulation between Nicolls and Stuyvesant, in 1664. The Treaty of Breda confirmed the conquest to England upon the principle of uti possidetis. There were two grounds upon which the validity of the Charter was questioned by eminent lawyers — the one that the country was in the possession of the Dutch when the Patent was made ; the other, that the conquest of the Dutch extinguished the title, if good before. The opinion of counsel having been taken, they advised that " the Duke's rights had been extinguished by the Dutch conquest, and that the King alone was now seized of New Netherlands, by virtue of the Treaty of Westminster. The jus postliminii did not obtain where there had been a complete change of sovereignty." A new Patent was accordingly issued on the 29th of June, 1674.* f It may not be always easy to say whether there * Broadhead's History of New York, vol. 2, ch. 5, 6 ; 1 Kent's Commentaries, p.p. 108-111 ; 2 Douglass, p.p. 224-268. + The colony of Pemaquid was conquered by D'Iberville in 1689. It was restored to the English by the Treaty of Ryswiok, but they did not obtain possession, it seems, 140 NORTHERN BOUNDARY OF ONTARIO. Part II. has been a suspension or an extinguishment of a right by conquest and restoration. The principle recognized in this case seems to have been this — that where there has been not only belligerent occupation, but the establishment of civil au- thority, and the people have been so far reconciled to their new masters as voluntarily to recognize their authority, there before the war of 1702. It was re-conquered by General Nicholson, and the law offi- cers of the Crown were consulted as to whether the right to the lands was in the Crown, or whether the Charter granted before the conquest, was still in force. They answered : "As to the question stated in the Case, upon the effect of the conquest of this tract of country by the French, and the re-conquest thereof by General Nichol- son, we conceive that the said tract, not having been yielded by the Crown of England to France by any treaty, the conquest thereof by the French created, according to the law of nations, only a suspension of the property of the former owners, and not an ex- tinguishment of it ; and that upon the re-conquest by General Nicholson, all the ancient right, both of the Province and of private persons subjects of the Crown of Great Britain, did revive, and were restored jure postliminii. The rule holds the more strongly, in the present case, in regard it appears by the affidavits that the Pro- vince joined their forces to those which came thither under the command of General Nicholson, in this serrice " P. Yokke. Aug. 11, 1731. C. Talbot. " A long possession, accompanied with an equitable government, may legitimate a conquest, in its beginning and principle the most unjust. There are modern civilians who explain the thing somewhat differently. These maintain that in a just war the victor acquires the full right of sovereignty over the vanquished, by the single title of conquest, independently of any convention ; and even thotigh the victor has other- wise obtained all the satisfaction and indemnification he could requir e. " The principal argument these writers make use of is, that otherwise, the conqueror could not be certain of the peaceable possession of what he has taken, or forced the conqueror to give him for his just pretensions, since they might retake it from him by the same right of war. "But this reason proves only that the conqueror who has taken possession of an enemy's country, may command in it while he holds it, and not resign it till he has good security that he shall obtain or possess, without hazard, what is necessary for the satisfaction and indemnity which he has a right to exact by force. But the end of a just war does not always demand that the conqueror should acquire an absolute and perpetual right of sovereignty over the conquered. It is only a favourable occasion of obtaining it ; and for that purpose there must always be an express or tacit consent of the vanquished.* Otherwise, the state of war still subsisting, the sovereignty of the con- queror has no other title than that of force, and lasts no longer than the vanquished are unable to throw off the yoke." — Burlamaqui's Politic Law, part 4, chap. 8, sections 8, 9, and 10. * The consent of the conquered in New York, and the want of it in Pemaquid, may explain the difference of the rule in the two cases. New York was restored after the war ; Pemnaquid was retaken during the war. Part II. NORTHERN BOUNDARY OF ONTARIO. 141 is in law, as well as in fact, a change of sovereignty * But there can be no doubt that the right of postliminy does not obtain where a recognized change of sovereignty has intervened between the conquest and the restoration. It is worthy of note that the Duke of York, upon the au- thority of his first patent, conveyed that portion of his grant lying between the Hudson and Delaware rivers, to Lord Berkeley and Sir George Carteret, and which was named New Jersey as a compliment to Sir G-eorge, who had been G-overnor of the Island of Jersey during the Civil War, and held it for the King. Berkeley sold his rights to Edward Bil- linge. Billinge, who was greatly in debt, consented to sell his part for the benefit of his creditors, and William Penn. G-awen Lawrie, and Nicholas Lucas, were appointed trustees for the purpose. In 1676 they divided the territory with Sir G-eorge Carteret, he taking the eastern and they the western portion. This country fell into the hands of the Dutch at the time they retook New York, and it was by the Treaty of West- minster restored to England, but the titles of the settlers. which were derived through the Duke of York from the first Patent granted by the King, were unquestioned. Unlike that of James, they were unaffected by the conquest.^ * In the case of the colony at Pemaquid, they assisted in the expulsion of the French. Pf eiff er says there can never be a change of sovereignty so long as the war continues during which the conquest was made ; but a different principle was recog- nised when the Dutch retook New York — for the peace which followed the conquest, gave back the territory to England. A belligerent who has not succeeded to the sovereignty of a country which he holds by military force, has no right to play the part of a public creditor to the country held by military duress, nor can the country subsequently be held responsible for what he may do . But where there has been a change of sovereignty, the rule is different. In the case of Murat, who drove Ferdi- nand IV. , King of the two Sicilies, from one-half his dominions, and committed out- rages upon American shipping and commerce, the Government of the United States held Ferdinand responsible upon his restoration, on the ground that Murat was King with the consent of those whom he governed, and was, therefore, not an enemy holding the country against the consent of the nation. Ferdinand must in that case be regarded as his successor.— See Note 169 to the 8th Edition of Wheaton, by Pv. H. Dana. % See the opinions of Sir William Jones and Sir Clement Wearg in the New Jersey Historical Collection. 142 NORTHERN BOUNDARY OF ONTARIO. Part II. "Whatever may be thought of the intentions of Bolingbroke and Dartmouth towards the Hudson's Bay Company, there cannot be much doubt that those who succeeded them, recog- nized the legal effect of the Treaty of Eyswick upon the claims of the Company. In their instructions to the English commissioners at Paris for settling the boundary between Canada and the territory restored to England about the bay, they direct them " to take special care in wording such Arti- cles as shall be agreed upon with the Commissioners of His Most Christian Majesty upon this head — that the said bound- aries be understood to regard the trade of the Hudson's Bay Company onlyT The Government, it would seem, were prepared to restore to the Company a right to trade with the Indians, but were not disposed to recognize in the Company any powers of gov- ernment, or any property in the soil. When the King, by an Order in Council, in August, 1791, divided Quebec into Upper and Lower Canada, and extended the separating line " north- ward to the boundary of Hudson's Bay," he did not recognize in the Company any rights of property or of government which this extension could take away. So, too, when that portion of Lower Canada which lay between the River St. John and the Atlantic Ocean, was severed from Lower Canada, in 1809, and re-annexed to Newfoundland, it em- braced the country northward to Hudson's Straits, which did, beyond question, annex to Newfoundland part of the country covered by the Charter of the Company* The action of the King in the one case, and Parliament in the other, would seem to show that they did not regard the pre- tensions of the Hudson's Bay Company as presenting any obstacle to the extension of the Provinces upon the south to the shores of the straits and the bay. We have seen that the French posts, forts, and settle- ments extended beyond the water-shed of the St. Lawrence to the head water of the Albany river, to the Saskatchewan, * See 49 Geo. 3, c. 27, sec. 14. Part II. NORTHERN BOUNDARY OF ONTARIO. 143 and to Lake Winnipeg. If the map referred to by Prior and the Marquis De Torcy as the one used by the plenipotentiaries in 1713, and the one mentioned by M. de Mofras, which was used by Bedford and De Choiseul in 1763, cannot be found, still I apprehend a boundary may be laid down in conformity with the Treaty of Utrecht and the Order in Council of the 19th of August, 1791, by a line drawn midway between the English posts upon the shores of the bay on the one side, and the French posts upon the head waters of the Albany river and Lake Winnipeg upon the other, which line will fix the western limit of the territory restored by France under the Treaty of Utrecht. In my opinion, the territory about James' bay to the south of the Albany river was made a part of Upper Canada by the Order in Council referred to, if it was not so before. The United States, in their discussions with Spam respect- ing the western boundary of Louisiana, mentions, in a case like this, the middle distance between two nations' colonies as the proper location of the boundary,* and Yattel lays down the same rule.f It is in accordance with the facts here set forth that the principle is to be applied. A letter from the Governor of Canada to Count de Maurepas shows that the French had several posts about Lake Nipigon in 1744.$ The * British and Foreign State Papers, 1817-18, p. 328. t Vattel, book 2, sec. 95. + M. de Beauharnois to Count de Maurepas. — " In regard to the posts on Hudson's Bay, and those they have established on this side in the direction of Temiscaming, and which His Majesty has been pleased to recommend me to endeavour to neutralize or to utterly destroy, if possible ; I have accordingly instructed Sieur Guillet, who farms the Post of Temiscaming, and has gained the good opinion and confidence of all the nations thereabouts to prevail on them to assemble together in the course of this winter in order to fall, at the opening of the spring, as well on Fort Rupert as on the other posts in the direction of Hudson's Bay ; I have in like manner, on receiving news of the war, sent orders to Michilimackinac, to be transmitted to Alepimigon and the other posts in that neighbourhood, so that they may all co-operate in the destruc- tion of the English establishments at the north, and among the rest, of that newly built, about twenty leagues above Michipicoton, by a Canadian refugee, who has con- ducted thither seven or eight Englishmen who trade there ; and I have ordered not only the forcible destruction of that establishment, but also that the Cana dian be 144 NORTHERN BOUNDARY OF ONTARIO. Part u . Treaty of Utrecht itself, and trie remonstrances of the Hud- son's Bay Company, bear testimony to the fact that the Quebec Company and other French fur-traders occupied the country from the St. Lawrence and the G-reat Lakes to the shores of Hudson's Bay. I know of no principle applicable to the case, whether of settlement or of discovery, upon which the Hudson's Bay Company could, after 1713, extend their domin- ion beyond the line marked upon the map of the plenipoten- tiaries, even admitting their chartered rights to have been un- impaired by the conquest and the Treaty of Kyswick. What I have so far written is sufficient to show that if it is admitted that England formed the first settlements upon the bay, they would not, by any established rule of public law, give her a right to the entire basin ; that this could only be claimed by a country which possessed both the entire shore, and the only means of access to the interior ; that the possession of the mouth of a river does not draw with it the entire country drained by the river ; on the contrary, it is the possession of the country that draws along with it the possession of the rivers ; that the Treaty of Utrecht circumscribed the possessions restored to England about the Bay within very narrow limits, when com- pared with the modern pretensions of the Company — limits which must have fallen far short of the sources of all the great rivers that disembogue their waters into Hudson's Bay ; and that the Order in Council of 1791, by which Quebec was di- vided into two Provinces, included, in Upper Canada, that sec- tion of the country which was restored to G-reat Britain in killed if it be impossible to seize him. I have also given Sr. Guillet notice that I should, at the very opening of spring despatch a party of Frenchmen and Indians, under the command of an officer and some others, so as to make a simultaneous attack on these posts. Sr. Quillet is to warn these Indians of this expedition, in order that they may hold themselves in readiness to join it, and, in fact, I calculate on sending it thither as soon as the season will permit, and I beg you, my Lord, to assure his Ma- jesty that I will not neglect anything to utterly destroy, if possible, the English estab- lishments in that quarter, as well as all those the difficulties whereof I shall be able to surmount.— 8th October, 1744."— Paris Doc. 8.— N. Y. Hist. Col., vol. 9, p. 1,105. " Have not been able to make the attack, on account of the want in the King's stores. -June, 1745."— Paris Doc. 9.— N. Y. Hist. Col., vol. 10, p. 2. part II. NORTHERN BOUNDARY OF ONTARIO. 145 1713, which lies about the south- western part of James' Bay. This extension to the boundary of Hudson's Bay, instead of stopping at the line of the Treaty of Utrecht upon the south, and following it, would seem to point to the establishment of the Albany river, or the 5 3rd parallel of north latitude, west- ward to the limitary line under the Treaty, as a contemplated boundary. I am not aware that any such limitary line was ever formally established. But the facts here recounted prove that the most restricted limits which can be given to Ontario on the north, is to run due west from James' Bay to the international boundary of 1713,* thence in a north-westerly direction to the Split Lake, in Nelson's river, thence south- westerly along Nelson's river towards Lake Winnipeg, and thence westerly to the north of the Saskatchewan as far as the junction of the north and south branches of that river, meeting near that point the western limit of Quebec under the Act of 1774. I would earnestly recommend the Government to obtain tracings of the maps used by the English and French pleni- potentiaries in 1713 and in 1763 r and of those sent at different times by the Hudson's Bay Company to the Lords of Trade and Plantations. I would also recommend them to obtain copies of all correspondence between the Governments of England and France upon the subject ; a copy of the instruc- tions given to the English commissioners appointed under both the Treaty of Eyswick and the Treaty of Utrecht, together with any reports which they may have made. These maps and papers, when obtained, will, in my opinion, be found to sustain the views expressed in this report as to the extent of territory the Government of Ontario may fairly claim as being within the limits of the Province. * That is the boundary marked upon the map referred to by Mr. Prior, APPENDIX, APPENDIX A. The Eoyal Charter for incorporating the Hudson's Bay Company, granted by his Majesty King Charles the Second, in the 22nd year of his reign, A.D. 1670. Charles the Second, by the grace of G-od, King of Eng- land, Scotland, Prance, and Ireland, Defender of the Paith, &c, To all to whom these presents shall come, greeting : Whereas our dear and entirely beloved Cousin, Prince Rupert, Count Palatine of the Rhine, Duke of Bavaria and Cumberland, &c. ; Christopher Duke of Albemarle, William Earl of Craven, Henry Lord Arlington, Anthony Lord Ash- ley, Sir John Robinson, and Sir Robert Yyner, Knights and Baronets ; Sir Peter Colleton, Baronet ; Sir Edward Hunger- ford, Knight of the Bath ; Sir Paul Neele, Knight ; Sir John Griffith and Sir Philip Carteret, Knights ; James Hayes, John Kirke, Francis Millington, William Prettyman, John Fenn, Esquires ; and John Portman, Citizen and Goldsmith of London : have, at their own great cost and charges, under- taken an expedition for Hudson's Bay, in the north-west part of America, for the discovery of a new passage into the South Sea, and for the finding some trade for furs, minerals, and other considerable commodities, and by such their under- taking have already made such discoveries as to encourage them to proceed further in pursuance of their said design, by means whereof there may probably arise very great advan- tage to us and our kingdom : And Whereas the said Under- 148 APPENDIX. takers, for their further encouragement in the said design, have humbly besought us to incorporate them, and grant unto them and their successors the sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks and sounds, in whatsoever latitude they shall be, that lie within the entrance of the straits, commonly called Hudson's Straits, together with all the lands, countries and territories upon the coasts and confines of the seas, straits, bays, lakes, rivers, creeks and sounds aforesaid, which are not now actually possessed by any of our subjects, or by the subjects of any other Christian Prince or State : Now know ye, that we, being desirous to promote all endeavours tending to the public good of our people, and to encourage the said undertaking, have, of our especial grace, certain knowledge, and mere motion, given, granted, ratified and confirmed, and by these presents, for us, our heirs and successors, do give, grant, ratify and confirm, unto our said Cousin, Prince Rupert, Christopher Duke of Albemarle, William Earl of Craven, Henry Lord Arlington, Anthony Lord Ashley, Sir John Robinson, Sir Robert Yyner, Sir Peter Colleton, Sir Edward Hungerford, Sir Paul Neele, Sir John G-rimth and Sir Philip Carteret, James Hayes, John Kirke, Francis Millington, William Prettyman, John Fenn, and John Portman, that they, and such others as shall be ad- mitted into the said society as is hereafter expressed, shall be one body corporate and politic, in deed and in name, by the name of " The Governor and Company of Adventurers of England trading into Hudson's Bay," and them by the name of " The Governor and Company of Adventurers of England trading into Hudson's Bay," one body corporate and politic, in deed and in name, really and fully for ever, for us, our heirs and successors, we do make, ordain, constitute, establish, con- firm and declare by these presents, and that by the same name of Governor and Company of Adventurers of England trading into Hudson's Bay, they shall have perpetual succes- sion, and that they and their successors, by the name of " The Governor and Company of Adventurers of England trading APPENDIX. 149 into Hudson's Bay," be, and at all times hereafter shall be per- sonable and capable in law to have, purchase, receive, possess, enjoy and retain lands, rents, privileges, liberties, jurisdictions, franchises and hereditaments, of what kind, nature or quality soever they be, to them and their successors ; and also to give, grant, demise, alien, assign and dispose lands, tenements and hereditaments, and to do and execute all and singular other things by the same name that to them shall or may appertain to do ; and that they and their successors, by the name of " The Governor and Company of Adventurers of England trading into Hudson's Bay," may plead and be impleaded, answer and be answered, defend and be defended, in whatso- ever courts and places, before whatsoever judges and justices, and other persons and officers, in all and singular actions, pleas, suits, quarrels, causes and demands whatsoever, of whatsoever kind, nature or sort, in such manner and form as any other our liege people of this our realm of England being persons able and capable in law, may or can have, purchase, receive, possess, enjoy, retain, give, grant, demise, alien, assign, dispose, plead, defend and be defended, do, permit and execute ; and that the said Grovernor and Company of Adventurers of England trading into Hudson's Bay, and their successors, may have a common seal to serve for all the causes and businesses of them and their successors, and that it shali and may be lawful to the said Grovernor and Company, and their successors, the same seal, from time to time, at their will and pleasure, to break, change and to make anew or alter, as to them shall seem expedient : And further we will, and by these presents, for us, our heirs and successors, we do ordain, that there shall be from henceforth one of the same Company to be elected and appointed in such form as here- after in these presents is expressed, which shall be called the Grovernor of the said Company ; and that the said Grovernor and Company shall or may select seven of their number, in such form, as hereafter in these presents is expressed, which shall be called the Committee of the said Company, which 150 APPENDIX. Committee of seven, or any three of them, together with the Governor or Deputy-Governor of the said Company for the time being, shall have the direction of the voyages of and for the said Company, and the provision of the shipping and merchandizes thereunto belonging, and also the sale of all merchandizes, goods and other things returned, in all or any the voyages or ships of or for the said Company, and the ma- naging and handling of all other business, affairs and things belonging to the said Company : And we will, ordain and grant by these presents, for us, our heirs and successors, unto the said G-overnor and Company, and their successors, that they the said Governor and Company, and their successors, shall from henceforth for ever be ruled, ordered and governed according to such manner and form as is hereafter in these presents expressed, and not otherwise ; and that they shall have, hold, retain and enjoy the grants, liberties, privileges, jurisdictions and immunities only hereafter in these presents granted and expressed, and no other : And for the better execution of our will and grant in this behalf, we have assigned, nominated, constituted and made, and by these presents, for us, our heirs and successors, WE DO assign, nominate, constitute and make our said Cousin, Prince Ru- pert, to be the first and present Governor of the said Com- pany, and to continue in the said office from the date of these presents until the 10th November then next following, if he, the said Prince Rupert, shall so long live, and so until a new Governor be chosen by the said Company in form hereafter expressed : And also we have assigned, nominated and appointed, and by these presents, for us, our heirs and succes- sors, we DO assign, nominate and constitute, the said Sir John Robinson, Sir Robert Yyner, Sir Peter Colleton, James Hayes, John Kirke, Francis Millington and John Portman to be the seven first and present Committees of the said Company, from the date of these presents until the said 10th day of No- vember then also next following, and so until new Commit- tees shall be chosen in form hereafter expressed : And further APPENDIX. 151 WE will and grant by these presents, for us, our heirs and successors, unto the said Governor and Company, and their successors, that it shall and may be lawful to and for the said Governor and Company for the time being, or the greater part of them present at any public assembly, commonly called the Court General, to be holden for the said Company, the Governor of the said Company being always one, from time to time to elect, nominate and appoint one of the said Com- pany to be Deputy to the said Governor, which Deputy shall take a corporal oath, before the Governor and three or more of the Committee of the said Company for the time being, well, truly and faithfully to execute his said office of Deputy to the Governor of the said Company, and after his oath so taken, shall and may from time to time, in the absence of the said Governor, exercise and execute the office of Governor of the said Company, in such sort as the said Governor ought to do : And further we will and grant by these presents, for us, our heirs and successors, unto the said Governor and Company of Adventurers of England trading into Hudson's Bay, and their successors, that they, or the greater part of them, whereof the Governor for the time being or his Deputy to be one, from time to time, and at all times hereafter, shall and may have authority and power, yearly and every year, between the first and last day of November, to assemble and meet together in some convenient place, to be appointed from time to time by the Governor, or in his absence by the Deputy of the said Governor for the time being, and that they being so assembled, it shall and may be lawful to and for the said Governor or Deputy of the said Governor, and the said Com- pany for the time being, or the greater part of them which then shall happen to be present, whereof the Governor of the said Company or his Deputy for the time being to be one, to elect and nominate one of the said Company, which shall be Governor of the said Company for one whole year then next following, which person being so elected and nominated to be Governor of the said Company, as is aforesaid, before he be 152 APPENDIX. admitted to the execution of the said office, shall take a corpo- ral oath before the last Governor, being his predecessor or his Deputy, and any three or more of the Committee of the said Company for the time being, that he shall from time to time well and truly execute the office of Governor of the said Company in all things concerning the same ; and that imme- diately after the same oath so taken, he shall and may execute and use the said office of Governor of the said Company for one whole year from thence next following : And in like sort we will and grant that as well every one of the above-named to be of the said Company or Fellowship, as all others here- after to be admitted or free of the said Company, shall take a corporal oath before the Governor of the said Company or his Deputy for the time being to such effect as by the said Gover- nor and Company or the greater part of them in any public court to be held for the said Company, shall be in reasonable and legal manner set down and devised, before they shall be allowed or admitted to trade or traffic as a freeman of the said Company : And further we will and grant by these pre- sents, for us, our heirs and successors, unto the said Governor and Company, and their successors, that the said Governor or Deputy Governor, and the rest of the said Company, and their successors for the time being, or the greater part of them, whereof the Governor or Deputy Governor from time to time to be one, shall and may from time to time, and at all times hereafter, have power and authority, yearly and every year, between the first and last day of November, to assemble and meet together in some convenient place, from time to time to be appointed by the said Governor of the said Com- pany, or in his absence by his Deputy ; and that they being so assembled, it shall and may be lawful to and for the said Governor or his Deputy, and the Company for the time being, or the greater part of them which then shall happen to be present, whereof the Governor of the said Company or his Deputy for the time being to be one, to elect and nominate sev en of the said Company, which shall be a Committee of APPENDIX. 153 the said Company for one whole year from then next ensuing, which persons being so elected and nominated to be a Com- mittee of the said Company as aforesaid, before they be ad- mitted to the execution of their office, shall take a corporal oath before the Governor or his Deputy, and any three or more of the said Committee of the said Company, being their last predecessors, that they and every of them shall well and faithfully perform their said office of Committees in all thmgs concerning the same, and that immediately after the said oath so taken, they shall and may execute and use their said office of Committees of the said Company for one whole year from thence next following. : And moreover, our will and pleasure is, and by these presents, for us, our heirs and suc- cessors, we do grant unto the said Governor and Company, and their successors, that when and as often as it shall hap- pen, the Governor or Deputy Governor of the said Company for the time being, at any time within one year after that he shall be nominated, elected and sworn to the office "of the Governor of the said Company, as is aforesaid, to die or to be removed from the said office, which Governor or Deputy Governor not demeaning himself well in his said office, we will to be removable at the pleasure of the rest of the said Company, or the greater part of them which shall be present at their public assemblies, commonly called their General Courts, holden for the said Company, that then and so often it shall and may be lawful to and for the residue of the said Company for the time being, or the greater part of them, within a convenient time after the death or removing of any such Governor or Deputy Governor, to assemble themselves in such convenient place as they shall think fit, for the elec- tion of the Governor or Deputy Governor of the said Com- pany ; and that the said Company, or the greater part of them, being then and there present, shall and may, then and there, before their departure from the said place, elect and nominate one other of the said Company to be Gov- ernor or Deputy Governor for the said Company 154 APPENDIX. in the place and stead of him that so died or was removed ; which person being so elected and nominated to the office of Governor or Deputy Governor of the said Com- pany, shall have and exercise the said office for and during the residue of the said year, taking first a corporal oath, as is aforesaid, for the due execution thereof ; and this to be done from time to time so often as the case shall so require : And also, our will and pleasure is, and by these presents, for us, our heirs and successors, WE do grant unto the said Governor and Company, that when and as often as it shall happen any person or persons of the Committee of the said Company for the time being, at any time within one year next after that they or any of them shall be nominated, elected and sworn to the office of Committee of the said Company as is aforesaid, to die or to be removed from the said office, which Committees not demeaning themselves well in their said office, we will to be removable at the pleasure of the said Governor and Com- pany, or the greater part of them, whereof the Governor of the said Company for the time being or his Deputy to be one, that then and so often, it shall and may be lawful to and for the said Governor, and the rest of the Company for the time being, or the greater part of them, whereof the Governor for the time being or his Deputy to be one, within convenient time after the death or removing of any of the said Commit- tee, to assemble themselves in such convenient place as is or shall be usual and accustomed for the election of the Go- vernor of the said Company, or where else the Governor of the said Company for the time being or his Deputy shall ap- point : And that the said Governor and Company, or the greater part of them, whereof the Governor for the time being or his Deputy to be one, being then and there present, shall and may, then and there, before their departure from the said place, elect and nominate one or more of the said Company to be of the Committee of the said Company in the place and stead of him or them that so died, or were or was so removed, which person or persons so nominated and elected to the APPENDIX. 155 office of Committee of the said Company, shall have and exer- cise the said office for and during the residue of the said year, taking first a corporal oath, as is aforesaid, for the due execu- tion thereof, and this to be done from time to time, so often as the case shall require : And to the end the said Governor and Company of Adventurers of England trading into Hudson's Bay may be encouraged to undertake and effectually to prose- cute the said design, of our more especial grace, certain knowledge and mere motion, we have given, granted and confirmed, and by these presents, for us, our heirs and suc- cessors, do give, grant and confirm, unto the said Governor and Company, and their successors, the sole trade and com- merce of all those seas, straits, bays, rivers, lakes, creeks and sounds, in whatsoever latitude they shall be, that lie within the entrance of the straits, commonly called Hudson's Straits, together with all the lands and territories upon the countries, coasts, and confines of the seas, bays, lakes, rivers, creeks and sounds aforesaid, 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 royai, as well discovered as not discovered, of gold, silver, gems and precious stones, to be found or discovered within the terri- tories, limits and places aforesaid, and that the said land be from henceforth reckoned and reputed as one of our planta- tions or colonies in America, called " Rupert's Land" : And further we do by these presents, for us, our heirs and suc- cessors, make, create, and constitute the said Grovernor 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. saving always the faith, allegiance and sovereign dominion due to us, our heirs and successors, for the same to have, 156 APPENDIX. HOLD, possess and enjoy the said territory, limits and places, and all and singular other the premises hereby granted as aforesaid, with their and every of their rights, members, ju- risdictions, prerogatives, royalties and appurtenances whatso- ever, to them the said Grovernor and Company, and their suc- cessors for ever, to be holden of us, our heirs and succes- sors, as of our manor of East G-reenwich, in our county of Kent, in free and common soccage, and not in capite or by Knight's service ; yielding and paying yearly to us, our heirs and successors, for the same, two elks and two black beavers, whensoever and as often as we, our heirs imd succes- sors, shall happen to enter into the said countries, territories and regions hereby granted : And further, our will and pleasure is, and by these presents, for us, our heirs and suc- cessorSj we do grant unto the said Grovernor and Company, and to their successors, that it shall and may be lawful to and for the said Grovernor and Company, and their successors, from time to time, to assemble themselves, for or about any the matters, causes, affairs or businesses of the said trade, in any place or places for the same convenient, within our do- minions or elsewhere, and there to hold court for the said Company and the affairs thereof ; and that, also, it shall and may be lawful to and for them, and the greater part of them, being so assembled, and that shall then and there be present, in any such place or places, whereof the Grovernor or his Deputy for the time being to be one, to make, ordain and con- stitute such and so many reasonable laws, constitutions, orders and ordinances as to them, or the greater part of them, being then and there present, shall seem necessary and con- venient for the good government of the said Company, and of all governors of colonies, forts and plantations, factors, masters, mariners and other officers employed or to be em- ployed in any of the territories and lands aforesaid, and in any of their voyages ; and for the better advancement and continuance of the said trade or traffic and plantations, and the same laws, constitutions, orders and ordinances so made, APPENDIX. 157 to put in, use and execute accordingly, and at their pleasure to revoke and alter the same or any of them, as the occasion shall require : And that the said Governor and Company, so often as they shall make, ordain or establish any such laws, constitutions, orders and ordinances, in such form as afore- said, shall and may lawfully impose, ordain, limit and provide such pains, penalties and punishments upon all offenders, contrary to such laws, constitutions, orders and ordinances, or any of them, as to the said Governor and Company for the time being, or the greater part of them, then and there being present, the said Governor or his Deputy being always one, shall seem necessary, requisite or convenient for the observa- tion of the same laws, constitutions, orders and ordinances ; and the same fines and amerciaments shall and may, by their officers and servants from time to time to be appointed for that purpose, levy, take and have, to the use of the said Go- vernor and Company, and their successors, without the im- pediment of us, our heirs or successors, or of any the officers or ministers of us, our heirs or successors, and without any account therefore to us, our heirs or successors, to be made : All and singular which laws, constitutions, orders, and ordi- nances, so as aforesaid to be made, WE will to be duly ob- served and kept under the pains and penalties therein to be contained ; so always as the said laws, constitutions, orders and ordinances, fines and amerciaments, be reasonable and not contrary or repugnant, but as near as may be agreeable to the laws, statutes or customs of this our realm ; And fur- thermore, of our ample and abundant grace, certain know- ledge and mere motion, w E have granted, and by these pre- sents, for us, our heirs and successors, do grant unto the said Governor and Company, and their successors, that they and their successors, and their factors, servants and agents, for them and on their behalf, and not otherwise, shall for ever 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 158 APPENDIX. territory, limits and places aforesaid ; but also trie whole and entire trade and traffic to and from all havens, bays, creeks, rivers, lakes and seas, into which they shall find entrance or passage by water or land out of the territories, limits or places aforesaid ; and to and with all the natives and people inhabiting, or which shall inhabit within the territories, limits and places aforesaid ; and to and with all other nations inhabi- ting any the coasts adjacent to the said territories, limits and places which are not already possessed as aforesaid, or whereof the sole liberty or privilege of trade and traffic is not granted to any other of our subjects : And we, of our further royal favour, and of our more especial grace, certain knowledge and mere motion, have granted, and by these presents, for us, our heirs and successors, DO grant to the said Governor and Company, and to their successors, that neither the said territories, limits and places hereby granted as afore- said, nor any part thereof, nor the islands, havens, ports, cities, towns, or places thereof or therein contained, shall be visited, frequented or haunted by any of the subjects of us, our heirs or successors, contrary to the true meaning of these presents, and by virtue of our prerogative royal, which we will not have in that behalf argued or brought into question : We STKAITLY charge, command and prohibit for us, our heirs and successors, all the subjects of us, our heirs and successors, of what degree or quality soever they be, that none of them, di- rectly or indirectly do visit, haunt, frequent, or trade, traffic or adventure, by way of merchandize, into or from any of the said territories, limits or places hereby granted, or any or either of them, other than the said Governor and Company, and such particular persons as now be or hereafter shall be of that Company, their agents, factors and assigns, unless it be by the license and agreement of the said Governor and Company in writing first had and obtained, under their com- mon seal, to be granted, upon pain that every such person or persons that shall trade or traffic into or from any of the coun- tries, territories or limits aforesaid, other than the said Go- APPENDIX. 159 vernor and Company, and their successors, shall incur our indignation, and the forfeiture and the loss of the goods, mer- chandizes and other things whatsoever, which so shall be brought into this realm of England, or any the dominions of the same, contrary to our said prohibition, or the purport or true meaning of these presents, for which the said Governor and Company shall find, take and seize in other places out of our dominion, where the said Company, their agents, factors or ministers shall trade, traffic or inhabit by virtue of these our letters patent, as also the ship and ships, with the furni- ture thereof, wherein such goods, merchandizes and other things shall be brought and found ; the one-half of all the said forfeitures to be to us, our heirs and successors, and the other half thereof we do by these presents clearly and wholly, for us, our heirs and successors, give and grant unto the said Governor and Company, and their successors : And further, all and every the said offenders, for their said con- tempt, to suffer such other punishment as to us, our heirs and successors, for so high a contempt, shall seem meet and con- venient, and not to be in any wise delivered until they and every of them shall become bound unto the said Governor for the time being in the sum of One thousand pounds at the least, at no time then after to trade or traffic into any of the said places, seas, straits, bays, ports, havens or territories aforesaid, contrary to our express commandment in that behalf set down and published : And further, of our more especial grace, we have condescended and granted, and by these presents, for us, our heirs and successors, do grant unto the said Governor and Company, and their successors, that we, our heirs and successors, will not grant liberty, license or power to any person or persons whatsoever, con- trary to the tenour of these our letters patent, to trade, traffic or inhabit, unto or upon any the territories, limits or places afore specified, contrary to the true meaning of these presents, without the consent of the said Governor and Company, or the most part of them : And, of our more abundant grace 160 APPENDIX. and favour to the said Governor and Company, we do hereby declare our will and pleasure to be, that if it shall so happen that any of the persons free or to be free of the said Company of Adventurers of England trading into Hudson's Bay, who shall, before the going forth of any ship or ships appointed for a voyage or otherwise, promise or agree, by writing under his or their hands, to adventure any sum or sums of money towards the furnishing any provision, or maintenance of any voyage or voyages, set forth, or to be set forth, or in- tended or meant to be set forth, by the said Governor and Company, or the more part of them present at any public as- sembly, commonly called their General Court, shall not within the space of twenty days next after warning given to him or them by the said Governor or Company, or their known officer or minister, bring in and deliver to the Treasurer or Treasurers appointed for the Company, such sums of money as shall have been expressed and set down in writing by the said person or persons, subscribed with the name of said Adventurer or Adventurers, that then and at all times after it shall and may be lawful to and for the said Go- vernor and Company, or the more part of them present, whereof the said Governor or his Deputy to be one, at any of their General Courts or General Assemblies, to remove and disfranchise him or them, and every such person and persons at their wills and pleasures, and he or they so removed and disfranchised, not to be permitted to trade into the countries, territories and limits aforesaid, or any part thereof, nor to have any adventure or stock going or remaining with or amongst the said Company, without the special license of the said Governor and Company, or the more part of them pre- sent at any General Court, first had and obtained in that be- half, any thing before in these presents to the contrary thereof in anywise notwithstanding : And our will and pleasure is, and hereby we do also ordain, that it shall and may be lawful to and for the said Governor and Company, or the greater part of them, whereof the Governor for the time be- APPENDIX. 161 ino- or his Deputy to be one, to admit into and to be of the said Company all such servants or factors, of or for the said Company, and all such others as to them or the most part of them present, at any court held for the said Company, the Governor or his Deputy being one, shall be thought fit and agreeable with the orders and ordinances made and to be made for the government of the said Company : And fur- ther, our will and pleasure is, and by these presents for us our heirs and successors, WE DO grant unto the said Governor and Company, and to their successors, that it shall and may be lawful in all elections and by-laws to be made by the General Court of the Adventurers of the said Company, that every person shall have a number of votes according to his stock, that is to say, for every hundred pounds by him sub- scribed or brought into the present stock, one vote, and that any of those that have subscribed less than One hundred pounds, may join their respective sums to make up One hun- dred pounds, and have one vote jointly for the same, and not otherwise : And further, of our special grace, certain know- ledge, and mere motion, WE do, for us, our heirs and succes- sors, grant to and with the said Governor and Company of Adventurers of England trading into Hudson's Bay, that all lands, islands, territories, plantations, forts, fortifications, facto- ries or colonies, where the said Company's factories and trade are or shall be, within any the ports or places afore limited, shall be immediately and from henceforth under the power and command of the said Governor and Company, their suc- cessors and assigns ; saving the faith and allegiance due to be performed to us, our heirs and successors, as aforesaid ; and that the said Governor and Company shall have liberty, full power and authority to appoint and establish Governors and all other officers to govern them, and that the Governor and his Council of the several and respective places where the said Company shall have plantations, forts, factories, colonies or places of trade within any the countries, lands or territo- ries hereby granted, may have power to judge all persons be- M 162 APPENDIX. longing to the»said Governor and Company, or that shall live under them, in all causes, whether civil or criminal, according to the laws of this kingdom, and to execute justice accord- ingly ; and in case any crime or misdemeanour shall be com- mitted in any of the said Company's plantations, forts, facto- ries or places of trade within the limits aforesaid, where judi- cature cannot be executed for want of a Governor and Coun- cil there, then in such case it shall and may be lawful for the chief Factor of that place and his Council to transmit the party, together with the offence, to such other plantation, fac- tory or fort where there shall be a Governor and Council, where justice may be executed, or into this kingdom of Eng- land, as shall be thought most convenient, there to receive such punishment as the nature of his offence shall deserve : And moreovee, our will and pleasure is, and by these pre- sents, for us, our heirs and successors we do give and grant unto the said Governor and Company, and their successors^ free liberty and license, in case they conceive it necessary, to send either ships of war, men or ammunition unto any their plantations, forts, factories or places of trade aforesaid, for the security and defence of the same, and to choose commanders and officers over them, and to give them power and authority, by commission under their common seal, or otherwise, to con- tinue or make peace or war with any prince or people whatso- ever, that are not Christians, in any places where the said Company shall have any plantations, forts or factories, or ad- jacent thereunto, as shall be most for the advantage and bene- fit of the said Governor and Company, and of their trade : and also to right and recompense themselves upon the goods, estates or people of those parts, by whom the said Governor and Company shall sustain any injury, loss or damage, or upon any other people whatsoever, that shall in any way, con- trary to the intent of these presents, interrupt, wrong or in- jure them in their said trade, within the said places, territories and limits granted by this Charter : And that it shall and may be lawful to and for the said Governor and Company, and APPENDIX. 163 their successors, from time to time, and at all times from henceforth, to erect and build such castles, fortifications, forts garrisons, colonies or plantations, towns or villages, in any parts or places within the limits and bounds granted before in these presents unto the said Governor and Company, a& they in their discretion shall think fit and requisite, and for the supply of such as shall be needful and convenient, to* keep and be in the same, to send out of this kingdom, to the said castles, forts, fortifications, garrisons, colonies, plantations,, towns or villages, all kinds of clothing, provision of victuals* ammunition and implements necessary for such purpose, pay- ing the duties and customs for the same, as also to transport and carry over such number of men being willing thereunto r or not prohibited, as they shall think fit, and also to govern them in such legal and reasonable manner as the said Go- vernor and Company shall think best, and to inflict punish- ment for misdemeanors, or impose such fines upon them for breach of their orders, as in these presents are formerly ex- pressed : And further, our will and pleasure is, and by these presents, for us, our heirs and successors, WE do grant unto the said Governor and Company, and to their successors,- full power and lawful authority to seize upon the persons of all such English, or any other our subjects which shall sail into Hudson's Bay, or inhabit in any of the countries, islands, or territories hereby granted to the said Governor and Com- pany, without their leave and license, and in that behalf first had and obtained, or that shall , contemn or disobey their orders, and send them to England and that all and every per- son or persons, being our subjects, anyways employed by the said Governor and Company, within any the parts, places", and limits aforesaid, shall be liable unto and suffer such pun- ishment for any offences by them committed in the parts aforesaid, as the President and Council for the said Governor and Company there shall think fit, and the merit of the offence- shall require, as aforesaid ; and in case any person or persons- being convicted and sentenced by the President and Council of the said Governor and Company, in the countries, lands or 164 APPENDIX. limits aforesaid, their factors or agents there, for any offence by them done, shall appeal from the same, that then and in such case it shall and may be lawful to and for the said Presi- dent and Council, factors or agents, to seize upon him or them, and to carry him or them home prisoners into England, to the said Governor and Company, there to receive such con- dign punishment as his cause shall require, and the law of this nation allow of ; and for the better discovery of abuses and injuries to be done unto the said Governor and Company, or their successors, by any servant by them to be employed in the said voyages and plantations, it shall and may be law- ful to and for the said Governor and Company, and their re- spective President, Chief Agent or Governor in the parts aforesaid, to examine upon oath all factors, masters, pursers, supercargoes, commanders of castles, forts, fortifications, plant- ations or colonies, or other persons, touching or concerning any matter or thing in which by law or usage an oath may be administered, so as the said oath, and the matter therein contained, be not repugnant, but agreeable to the laws of this realm : And we do hereby straitly charge and command all and singular our Admirals, Vice-Admirals, Justices, Mayors, Sheriffs, Constables, Bailiffs, and all and singular other our officers, ministers, liege men and subjects whatsoever to be aiding, favouring, helping and assisting to the said Governor and Company, and to their successors, and to their deputies, officers, factors, servants, assigns and ministers, and every of them, in executing and enjoying the premises, as well on land as on sea, from time to time, when any of you shall thereunto be required ; any statute, act, ordinance, proviso, proclamation or restraint heretofore had, made, set forth, or- dained or provided, or any other matter, cause or thing what- soever to the contrary in anywise notwithstanding. In witness whereof we have caused these our Letters to be made Patent. Witness ourself at Westminster, the second day of May, in the two-and-twentieth year of our reign. By Writ of Privy Seal. Pigott. APPENDIX. 165 APPENDIX B. EXTRACTS FKOM BENJAMIN FEANKLIN'S LETTERS TO HIS SON. — See Spark's "Franklin" vol. 4. May 10, 1766. — I like the project of a colony in Illinois country, and will forward it to my utmost here. Aug. 25, 1766. — I can now only add that I shall endeavor to accomplish all that you and your friends desire relating to the settlement westward. Sept. 12, 1766. — I have just received Sir "William's open letter to Secretary Conway, recommending your plan for a colony in the Illinois, which I am glad of. I have closed and sent it to him. He is not now in that Department ; but it will of course go to Lord Shelburne, whose good opinion of it I have reason to hope for — and I think Mr. Conway was rather against distant Posts and settlements in America. We have, however, suffered a loss in Lord Dartmouth, who I know was inclined to grants there in favour of the soldiery, and Lord Hillsborough is said to be terribly afraid of dis- peopling Ireland. Gren. Lyman has been long here soliciting such a grant, and will readily join the interest he has made with ours ; and I should wish for a body of Connecticut set- tlers, rather than all from our frontiers. I purpose waiting on Lord Shelburne on Tuesday, and hope to be able to send you his sentiments by Falconer, who is to sail about the 20th. A good deal, I imagine, will depend on the account when it arrives of Mr. Croghan's negotiation in that country. This is an affair I shall seriously set about ; but there are such con- tinual changes here that it is very discouraging to all applica- tions to be made to the Ministry. I thought the last set to be well established ; but they are broken and gone. The pre- sent set are hardly thought to stand very firm, and God only knows whom we are to have next. The plan is, I think, well drawn, and, I imagine, Sir William's approbation will go a great way in recommending it, as he is much relied on in all 166 APPENDIX. affairs that may have any relation to the Indians. Lord Adam Gordon is not in town, but I shall take the first oppor- tunity of conferring with him. I thank the Company for their willingness to take me in, and one or two others that I may nominate. I have not yet concluded whom to propose it to ; but I suppose our friend Sargent should be one. I wish you had allowed me to name more, as there will be in the proposed country, by reckoning, near sixty-three millions of acres, and therefore enough to content a great number of reasonable people ; and by numbers we might increase the weight of interest here. But perhaps we shall do without. Sept. 27, 1766. — I have mentioned the Illinois affair to Lord Shelburne. His lordship has read your plan for establishing a colony there, recommended by Sir William Johnson, and said it appeared to him a reasonable scheme ; but he found it did not quite rate with the sentiments of people here ; that their objections to it were, the distance, which would make it of little use to this country, as the expense on the carriage of goods would oblige the people to manufacture for themselves ; that it would for the same reason be difficult both to defend it and to govern it ; that it might lay the foundation of a Power in the heart of America, which in time might be troublesome to the other colonies, and prejudicial to our government over them ; and the people were wanted both here and in the al- ready settled colonies, so that none could be spared for a new colony. These arguments, he said, did not appear of much weight, and I endeavoured by others to invalidate them en- tirely. 'But his lordship did not declare whether he would or would not promote the undertaking, and we are to talk fur- ther upon it. I communicated to him two letters of Mr. Orogan's, with his journal, and one or two of yours on the subject, which he said he would read and consider ; and I left with him one of Evans' maps of the middle colonies, in the small scale part of which I had marked with a wash of red ink the whole coun- try included in your boundaries- His lordship remarked APPENDIX. 167 that this would coincide with G-en. Lyman's project, and that they might be united. Sept. 30, 1766. — I have just had a visit from G-en. Lyman, and a good deal of conversation on the Illinois scheme. He tells me that Mr. Morgan, who is Under-Secretary of the Southern Department, is much pleased with it, and we are to go together to talk to him concerning it. • Oct. 11, 1766. — I was again with Lord Shelburne a few days since, and said a good deal to him on the affair of the Illinois settlement. He was pleased to say that he really ap- proved of it ; but intimated that every new proposed expense for America would meet with great difficulty here, the Treasury being alarmed and astonished at the growing charges there, and the heavy accounts and drafts continually brought in from thence ; that Major Farmer, for instance, had lately drawn for no less than thirty thousand pounds, extraordinary charges, on his going to take possession of the Illinois, and that the Superintendents, particularly the South- ern one, began also to draw very largely. He spoke, however, handsomely of Sir William on many accounts. Nov. 8, 1776. — Mr. Jackson has now come to town. The Ministry have asked his opinion and advice on your plan of a colony in the Illinois, and he has just sent me to peruse his answer in writing, in which he warmly recommends it, and enforces it by strong reasons, which give me great pleasure, as it corroborates what I have been saying on the same topic, and from him appears less to be suspected of some American bias. June 13, 1767. — The Illinois affair goes forward but slowly. Lord Shelburne told me again last week that he highly ap- proved of it, but others were not of his sentiments, particu- larly the Board of Trade. Lyman is almost out of patience, and now talks of carrying out his settlers without leave. Aug.- 28, 1767. — Last week I dined at Lord Shelburne's, and had a long conversation with him and Mr. Conway (there being no other company) on the subject of reducing 168 APPENDIX. the American expenses. They have it in contemplation ta return the management of Indian affairs into the hands of the several Provinces on which the nations border, that the colonies may bear the charge of treaties and the like, which they think will be then managed more frugally, the Treasury being tired with the immense drafts of the Superintendents. I took the opportunity of urging it as one mode of saving expense in supporting the outposts that a settlement should be made in the Illinois country, expatiated on the various ad- vantages, namely, furnishing provisions cheaper to the garri- sons securing the country, retaining the trade, raising a strength - there, which on occasion of a future war, might easily be poured down the Mississippi upon the lower coun- try, and into the Bay of Mexico, to be used against Cuba, the French islands, or Mexico itself. I mentioned your plan, its being approved of by Sir William Johnson, and the readiness and ability of the gentlemen concerned to carry the settle- ment into execution with very little expense to Government. The Secretaries appeared finally to be fully convinced, and there remained no obstacle but the Board of Trade, which was to be brought over privately before the matter was re- ferred to them officially. In case of laying aside the Super- intendents, a provision was thought of for Sir William John- son. He will be made Governor of the new colony. Oct. 9, 1767. — I returned last night from Paris, and just now hear that the Illinois settlement is approved of in the Cabinet Council so far as to be referred to the Board of Trade for their opinion, who are to consider it next week. Nov. 13, 1767. — Since my return, the affair of the Illinois settlement has been renewed. The King in Council referred the proposal to the Board of Trade, who called for the opinion of the merchants on two points, namely whether the settle- ment of colonies in the Illinois country and at Detroit might not contribute to promote and extend the commerce of G-reat Britain ; and whether the regulation of the Indian trade might not be best left to the several colonies that carry on APPENDIX. 169 such trade — both which questions they considered at a meet- ing, where Mr. Jackson and I were present, and answered in the affirmative unanimously, delivering their report accord- ingly to the Board. Nov. 25, 1767. — As soon as I received Mr. G-alloway's, Mr. S. Wharton's, and Mr. Crogan's letters on the subject of the (Indian) boundary, T communicated them to Lord Shelburne. He invited me next day to dine with him. Lord Clare was to have been there, but did not come. There was nobody but Mr. Maclean. My lord knew nothing of the boundaries having been agreed on by Sir William ; had sent the letters to the Board of Trade, directing search to be made there for Sir William's letters ; and ordered Mr. Maclean to search the Secretary's office, who found nothing. We had much dis- course about it, and I pressed the importance of despatching orders immediately to Sir William to complete the affair. His lordship asked who was to make the purchase, that is, who should be at the expense. I said that if the line included any lands within the grants of the charter colonies, they should pay the purchase-money of such proportion. If any within the proprietary grants, they should pay their propor^ tion. But what was, within Eoyal governments, where the Ring granted the lands, the Crown should pay for that pro- portion. His lordship was pleased to say he thought this reasonable. He finally desired me to go to Lord Clare as from him, and urge the business there, which I undertook to (1A t ^ ^ I waited next morning on Lord Clare, and pressed the mat- ter of the boundary closely upon him. * * * He agreed upon settling it, but thought there would be some difficulty about who should pay the purchase-money ; for that this country was already so loaded, it would bear no more. We then talked of the new colonies. I found he was inclined to think one near the mouth of the Ohio might be of use in se- curing the country, but did not much approve that at Detroit. And, as to the trade he imagined it would be of little conse- 170 APPENDIX. quence, if we had it all, but supposed our traders would sell the peltry chiefly to the French and Spaniards at New Orleans, as he had heard they had hitherto done. March 13, 1768. — The purpose of settling the new colonies seems at present to be dropped, the change of American ad- ministration not appearing favourable to it. There seems rather to be an inclination to abandon the posts in the back country, as more expensive than useful. But counsels are so continually fluctuating here that nothing can be depended on. The new Secretary, Lord H., is, I find, of opinion that the troops should be placed, the chief part of them in Canada and Florida. * * * On the Colonization of the Illinois Country. — Extract. [Sir William Johnson to the Lords of Trade and Plantations.] Johnson's Hall, Jan. 31, 1776. My Lords, — * * * I have received the agreeable news of our being in actual possession of the Illinois, the Indians, in consequence of their engagements to Mr. Crogam having given no obstruction to Captain, Stirling or his party, who arrived at Fort Chartres in October last, and were well received. As the possession of this fine country has been earnestly de- sired and often in vain attempted since the reduction of Canada, and now proceeds from the late negociations of my Deputy with the Indians in that quarter, it may not be amiss to offer my thoughts on the best manner for possessing so valuable an acquisition, and render it of real use to the Crown. It will be needless to enlarge upon the natural ad- vantages of soil and situation which this country peculiarly enjoys, these being matters pretty well known ; but to avail ourselves of these advantages, it is highly necessary that we should do all in our power to keep the Indians contented, easy and reconciled to our manners and government, without APPENDIX. 171 which we can neither keep up the communication, or retain it for any time, and the difficulties and obstructions which have hitherto prevented our possessing it, by way of the Mississippi, are convincing proof of this. Neither is it in our power, with any force to be spared for that service, to ascend the river or cross the country by land to that settlement, if the Indians are at all disposed to obstruct their progress.^ The settlements at the Illinois extend for many miles above the Kaskaski river along the Mississippi ; the land is ex- tremely fine, and capable of raising anything. Some of the present inhabitants may possibly incline to go home, and our traders will, I dare say, choose to purchase their rights ; this may be a foundation for a valuable colony in that country, which, once established, would prove very beneficial to Great Britain, as well as a great check to the large cessions obtained of the natives. But to effect this, and every other purpose, their jealousies and dislike must be conquered, and they must be convinced by a series of good management and occasional generosity that their suspicions are groundless. — N. Y. Hist. Doc, vol. 8. APPENDIX C. so much of the debate in the house of commons on the Quebec Bill as Relates to the Boundaries. Mr. T. Townshend, jun. — Although I bow very low to all great authorities, I must venture to mention one thing, that when I was calling for regulations for Canada, little did I think, that I was calling for regulations for a country much larger than Canada, a country " extending," in the words of the Bill. " 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' Adven- * The expeditions of Lord Dunmore and Colonel Boquet would seem to warrant different conclusion. 172 APPENDIX. turers of England trading to Hudson s Bay." I say, Sir, that when I was calling for regulations for Canada, little did I think that I was calling for an arrangement which, I will venture to say, is oppressive to the English subject, and dis- agreeable and hateful to the Canadian. * * * I know there prevails an opinion that the best thing you can do with this country is to make it a French colony, to keep the English out of it as much as possible, that they may not mix with the Canadians. * * * Now, for what purpose are they (the English settlers) to be placed under French laws, unless it is meant to be laid as a foundation that, for the future, French laws are to be the laws of America ? If this is to be the case, tSir, that may be a good reason for extending French law to the whole of Illinois, and to all that is inter- mediate between Illinois and Canada. You have given up to Canada almost all that country which was the subject of dispute, and for which we went to war. We went to war calling it the Province of Virginia. You tell the French it was only a pre- text for going to war ; that you knew then, you know now, that it was a part of the Province of Canada. * * * I should wish to know why Canada may not be reduced to some less limits ; why not the same limits England and France have ever given it ; why not within some bounds, a little less than that which is given to it here ?- Lord North. — * * * The first thing objected to by the honourable gentleman is the very great extent of terri- tory given to the Province. Why, he asks, is it so extensive ? There are added undoubtedly to it two countries which were not in the original limits of Canada, as settled in the procla- mation of 1763 : one, the Labrador coast, the other, the coun- try westward of the Ohio and Mississippi, and a few scattered posts to the west. Sir, the addition of Labrador coast has been made in consequence of information received from those best acquainted with Canada and the fishery upon that coast, who deem it absolutely necessary, for the preservation of that fishery, that the Labrador coast should no longer be APPENDIX. 173 considered as a part of the government of Newfoundland but be annexed to that country. With respect to the other additions, these questions very fairly occur. 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 Parlia- ment to consider whether it is fit there should be no government in the country, or, on the contrary, separate and distinct govern- ments ; 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 gentlemen will weigh the inconveniences of separate governments, they will think the least inconvenient method is to annex those spots, 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. Mr. T. Townsend, jun. — * * * Near the Illinois and Fort du Cane, I am informed there are at this time upwards of five-and-twenty thousand British settlers. Mr. Dunning. — * * * The first object of this Bill is to make out that to be Canada, which it was the struggle of this country to say was not Canada. Now, Sir, if this Pro- vince should ever be given back to its old masters — and I am not without an inclination to think that the best way would be to give it back to its old masters — if it should ever become right to give back Canada, with what consistency can its future nego- ciator say to Franco, We will give you back Canada ; not that Canada which you asserted to be Canada, but that stated in the proclamation, having discovered that we were mistaken in the extent of it, which error has been corrected by the highest authority in this country ? Then, suppose Canada 174 APPENDIX. thus extended should be given back to France, the English settled there will then have a line of frontier to an extent un- defined by this Bill ; for this country is bounded by the Ohio on the west — Grod knows where ! I wish Grod alone may not know where. I wish any gentleman would tell us where. I observe in this description of frontier a studied ambiguity of phrase. I cannot tell what it means ; but I conjecture that it means something bad. The Ohio is stated as a bound- ary confirmed by the Crown ; but what act, what confirma- tion by the Crown has passed upon this subject ? I know of no such act, of no such confirmation. I know, by the terms of the Charter, the colonists suppose, and I think they are well grounded in the supposition, that they are entitled to settle back as far as they please to the east (? West) to the sea, their natural boundary. They did not like a dif- ferent barrier. I know some assert this right, and others content themselves with a less extensive claim. Whether so extensive a claim has been allowed, I know not ; but I do understand, in point of fact, that there has been long subsisting a dispute about the western frontier, which was never discussed, still less decided ; and when this Bill shall become a law, those colonists will then learn that this Parlia- ment, at this hour, have decided this dispute without know- ing what the dispute was, and without hearing the parties. Looking, Sir, at the map, I see the Eiver Ohio takes its rise in a part of Pennsylvania, and runs through the Province of Virginia ; that, supposing myself walking down the river, all the country to the right, which is at this moment a part of the Province of Yirginia, has been lopped off from this part, and has become instead a part of Canada ; for, we tell them, the instant they pass that river, which by the terms of the Charter they may pass, that matter is now for ever at rest ; the moment, say we, you get beyond that river, you are in the condition in which this Bill professes to put Canada — the Indian finds himself out of the protection of that law under which he was bred. Sir, do we treat the proprietors of APPENDIX. 175 Indiana well ? Some of them are resident in this country I apprehend, at this very hour they are unapprised of this Bill to stop them. To decide upon questions without exactly knowing whether such questions are existing, is an obvious injustice. ^ ^ # I should be glad to learn what is the good intended to be effected by this extent of territory ? The noble lord says it is to comprise a few straggling posts under some form of government. If I should admit the necessity of so comprising a few straggling posts, does it follow that this is a form of government fit to be established ? Does it follow from any local reasons why Canada should be so ex- tensive, or that the English, settlers should be likewise in- volved ? What objections are there to making more settle- ments ? Whatever they are, they will be found trivial, com- pared to the consequence of involving this whole region in this form of government. ^ ^ # Attorney- General Thurlow. — # ^ # The honourable gentlemen complain that the bounds of Canada extend a great way beyond what they were acknowledged to do formerly, and that it was peculiarly bad policy, as far as it regarded the French, to give the limits so great an ex- tension. Now, the House will remember that the whole of Canada, as we allowed it to extend, was not included in the proclamation ; that the bounds were not coequal with it as it stood then, and that it is not included in the present Act of Parliament, if that were material. But I will not, Sir, consider it as the Province that formerly belonged to France, nor cls called by the same name ; it is a new scheme of a constitution adapted for a part of the country, not that part only which was under French government, but embracing many other parts of great extent which were for- merly not under French government, but were certainly oc- cupied in different parts by French settlers, and French settlers only. The honorable gentlemen are mistaken if they suppose that the bounds described embrace in point of fact any English settlement. I know of no English settlement 176 APPENDIX. embraced by it. I have heard a great deal of the commence- ment of English settlements ; but, as far as I have read, they all lie upon the other side of the Ohio.* I know at the same time, that there have been for nearly a century past, settlements in different parts of all this tract, especially in the southern parts of it, and in the eastern (? western), bounded by the Ohio and Missis- sippi ; but with regard to that part, there have been different tracts of French settlements established. As far as they are inhabited by any but Indians, I take those settlements to have been altogether French ; so that the objection certainly wants foundation. * * * It is undoubtedly true, if you read the French history, that the bounds prescribed neither are nor ever were the bounds of the Province of Canada, as stated by the French ; and therefore the argument is not itself a proper one to proceed upon. ^ ^ ^ With regard to the more southern part of the country, I do not take it that Vir- ginia has ever made a single claim within more than a hun- dred miles of the bounds prescribed for the present Province. The most extensive claim I ever heard of went to what is called The Endless Mountains, just in a nook of the Province of Yirginia (? Pennsylvania). I know of none that ever pre- tended to exceed that, nor ever heard that some new settle- ments which were applied for, between these mountains and the Ohio, have ever been looked upon as an invasion of the rights of those who have claims upon the Province of Yir- ginia. * * * I have always understood, also, that it was under that authority, and in conformity with the rule and measure of law, that in every instance, through every period of English history, the King has given to newly-conquered countries their constitution ; subject to be corrected by the joint interposition of the King, Lords, and Commons of this country ; and that such a constitution might be reformed, by * There were at this time no English settlements west of the Ohio river. Franklin, in his reply to the Lords of Trade, refers to a settlement of 30,000 on the Ohio ; but it was on the other side — and this is probably the one that Mr. Townshend and others refer to, but they had forgotten the locality. APPENDIX. 177 correcting the ill advice, if any ill advice had been given, under which the King had acted, in giving them a constitu- tion upon the event and at the moment of the conquest. Col. Barre. — * * * The honourable and learned gen- tleman was not precise in stating the limits of our colonies. He seemed unwilling for the House to think that any one of i the colonies, especially Pennsylvania and Virginia, had a right to settle beyond the Endless Mountains ;* as if the honorable and learned gentleman could be ignorant of the fact that many thousands of English subjects are established some hundred miles beyond the Endless Mountains, upon the very spot which you are now going to make a part of this country of Canada. * * * It was, says the noble lord, necessary to take in and to annex the scattered Posts in the neighbourhood of Detroit and Lake Michigan. If the noble lord will be so good as to look at the map, he will find Jie could have taken in every one of those Posts, and never thrown out any doubt about the shape of Canada ; at the same time that all that part between the Lake and the Ohio would have been kept out by this Bill — and all the purposes of the Bill, except the reference to settling upon the Ohio, would have been answered by his taking that boundary. If there had been any doubt, what would have removed that doubt, would have been looking at the course pur- sued between the English and French negociators, when the French offered to withdraw from that part of the country which they had taken possession of on the south of the Ohio, and retire to the north side, making that river the boundary of the colony* The English Minister said, " No ; we will not submit to those terms. They are not the boundaries; the River St. Lawrence and the lakes are our boundary — we will agree to no other." Their language now is, the River St. Law- rence is the centre, not the frontier ; we will not be deprived of our property in the country. * For the position of the Endless Mountains, see Pownall's map. They are near the northern part of Pennsylvania. N 178 APPENDIX. Mr. Serjeant G'ynne. — * * * You are incompetent to decide upon the limits of the country, or whether the descrip- tion of it in the Bill is most conformable to the claim of the French or to our claim before the war ; but I shall take it as I find it slated on both sides of the House, namely, that there is to be a newly-erected Province, comprehending a great part of North America, partly inhabited, partly uninhabited - that such parts are to be erected into a Province, in hopes that the population will increase, and that all those parts by degrees will become peopled. * * * In times past, a Minister of the Crown was censured for proposing an arbi- trary form of government for the colonies. However objec- tionable that proposed form of government may have been, we do not find that the powers given to the Governor, on that occasion, were so extensive as those vested in him by this measure. The principles which prevailed in the days of Charles the Second will not, I trust, receive the sanction of the legislature of the present day. Solicitor- General Wedderbum. — It is one object of this measure that these persons {the English) should not settle in Canada. The subjects of this country, in Holland, in the Baltic, and in dif- ferent parts of the world, where they may go to push their commercial views, look upon England as their home ; and it should be our care to keep alive in their breasts this attach- ment to their native soil. With regard to the other portion of the inhabitants of North America, I think the consideration alters ; if the geographical limits are rightly stated, I think one great advantage of this extension of territory is this, that they will have little temptation to stretch themselves north- ward. I would not say, " Cross the Ohio ; you will find the Utopia of some great and mighty empire." I would say, " This is the border beyond which, for the advantage of the whole empire, you shall not extend yourselves." It is a regu- lar government ; and that government will have authority to make inquiry into the views of native adventurers. As tc British subjects within the limits, I believe that there are not APPENDIX. 179 five in the whole country. I think this limitation of the boundary will be a better mode than any restriction laid upon government. In the grant of lands, we ought to confine the inhabitants to keep them, according to the ancient policy of the country, along the line of the sea and river. Mr. Charles Fox. — * * * It is not right for this coun- try to originate and establish a constitution in which there is not a spark of semblance of liberty. A learned gentleman has said that by this means we should deter our own country- men from settling there. Now, Sir, as it is my notion that it is the policy of this country to induce Englishmen to mix as much as possible with the Canadians, I certainly must come to a different conclusion. Monday, June 6. The House resolved itself into a Committee upon the Bill, Sir Charles Whit worth in the Chair. The first clause was read, viz. : " And whereas, by the arrangements made by the said Royal Proclamation, a very large part of the territory of Canada, within which there were several colonies and settle- ments of the subjects of France, who claimed to remain therein under the faith of the said treaty, was left without any provision being made for the administration of civil gov- ernment therein, and other parts of the said country, where sedentary fisheries had been established and carried on by the subjects of France, inhabitants of the said Province of Canada, under grants and concessions from the government thereof, were annexed to the government of Newfoundland, &c, be it enacted that all the said territories, islands, and countries heretofore 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 Hud- son's Bay, and which said territories, islands, and countries are not within the limits of some other British colony, as 180 APPENDIX. allowed and confirmed by the Crown, or which have since the 10th of February 1763, been made part of the govern- ment of Newfoundland, be, and they are hereby, during his Majesty's pleasure, annexed to and made part and parcel of the Province of Quebec, as created and established by the said Eoyal Proclamation of the 7th of October, 1763." Lord North. — **•'.* There are great difficulties as to the best mode of proceeding. I apprehend the alteration I am about to propose will save every right where there is a right. I will explain the amendment I intend to make ; if that should not give satisfaction, gentlemen will state what it is they pro- pose to substitute in its stead. We shall then ascertain how far we shall be able to make anything more precise. The question is an extremely difficult one. It is usual to have different boundaries laid down in different manners. "Where the King is master of the country, then they are drawn by his Majesty's officers only ; where there has been any grant or char- ter, and it has been necessary to draw any boundiry line, then not only his Majesty's officers, but commissioners have been appointed, and together they draw a line, subject, afterwards, to an appeal to the Privy Council — therefore that distinction is made here. It is intended, immediately after the passing of this Act, to go on with the project of running the boundary line between Quebec and New York and Pennsylvania, &c, belonging to the Crown. This is made to prevent the Province of Quebec from encroaching on the limits of any of those grants where no boundary has been settled. I find many gentlemen are desirous of having something more precise, if possible. To this I have no objection ; but we are so much in the dark as to the situation of this country, that it is not possible to do anything more safe than saving the rights of the other colo- nies, leaving them to be settled on the spot by commissioners. Persons possessing local knowledge can act better than we can. For that reason I propose to leave out the words " here- tofore part of the territory of Canada," and insert '■ extent of country," and also leave out the words " said country" and insert " territory of Canada." APPENDIX. 181 Governor Johnstone. — * * * My objection to it is, yon are going to extend a despotic government over too large a surface ; and that you are going to establish a boundary line with a pretence of bringing it within the line of justice where God and nature are against you. The pretence that is held out to induce this House to accede to the measure, is, first, that with the former government of Quebec, Canada did extend so far, and that as we are about to give the Cana^ dians back their old laws, we ought at the same time to give them back what has been asserted in this House to have been their ancient territory. * * * Now, Sir, as I had the honour of being appointed Governor of West Florida, it be- came my duty to make myself acquainted with the bounda- ries of Louisiana, and I accordingly endeavoured to obtain the best information upon that subject. I was surprised, there- fore, to hear it given in evidence, not directly, but insinuated, that the former Government of Canada extended as far as you propose to make it. One of the reasons given by General Carleton for this extension of country, was that the inhabi- tants of these remote parts might be under the direction of the government of Canada. Mr. Edmund Burke. — If we had originated this measure above stairs, where maps might have been laid upon the table, no doubt the whole dispute of this day would have been avoided. I shall ask for the attention of the Committee, partly that they may understand me ; partly that I may un- derstand myself. In the first place, when I heard that this Bill was to be brought in on the principle that Parliament were to draw a line of circumvalation about our colonies, and to establish a siege of arbitrary power, by bringing round about Canada the control of other people, different in man- ners, language, and laws from those of the inhabitants of this colony, I thought of the highest importance that we should endeavour to make this boundary as clear as possible. I con- ceived it necessary for those who are to be besieged in this manner ; and also necessary for the British subject, who j 182 APPENDIX. should be restricted, and not be allowed unknowingly to ven- ture into the colony and disturb its possessors. I wish these limits to be ascertained, and fixed with precision, for the sake of both parties. Having this object in my view, I shall first consider the line drawn in the proclamation of 1763. It was drawn from a point taken in the lake called Nipissim ; that lake stands to the north of this point. I entreat the attention of the Committee ; for the escape of a word is the escape of the whole argument- Sir, this boundary was fixed by a line drawn obliquely from Lake Nipissim, which line crossing the St. Lawrence and the Lake Champlain, formed an angle in the latitude of forty-five degrees. This constituted the south-west boundary of Canada ;=& beyond that the Province was to extend no further — and confined within this limit it remained from the year 1763 to this time. That was then the boundary of Canada ; and when that boundary was formed, that was the boundary of the government — and that bound- ary was fixed there because it was the boundary of the pos- session. There was then no considerable settlement to the south-west of that line. This line the people of Canada acquiesced in. They have since come before his Majesty's government, and have laid before it a complaint in which they state that this was a line drawn especially for the pur- pose of territorial jurisdiction, and the security of property ; but they represent that it is a line ill-suited for a gro wing- country . They do not complain that they have not the legal limits, but they complain of the climate to which they are re- stricted. " The Province," they say, " as it is now bounded, by a line passing through the forty-fifth degree of north lati- tude, is confined within too narrow limits ; this line is only fifteen leagues distant from Montreal and yet it is only on this side that the lands of the Province are fertile, and that agriculture can be cultivated to much advantage." Sir, if no injustice will thereby be done to any one, I don't know a more reasonable request than that their complaint should be * Burke, like many other speakers, confounds Canada with Quebec. APPENDIX. 183 attended to. * * * The noble lord showed me the amendment, which by no means relieved my apprehensions. The reason why I feel so anxious is that the line proposed is not a line of geographical distinction merely ; it is not a line between New York and some other English settlement ; it is not a question whether you shall receive English law and English government upon the side of New York, or whether you shall receive a more advantageous government upon the side of Connecticut ; or whether you are restrained upon the side of New Jersey. In all these you still find English laws, English customs, English juries, and English assemblies, wherever you go. But this is a line which is to separate a man from the right of an Englishman. First, the clause pro- vides nothing at all for the territorial jurisdiction of the Prov- ince. The Crown has the power of carrying the greatest portion of the actually settled portion of the Province of New York into Canada. * * * The Bill turns freedom itself into slavery. These are the reasons that compel me not to acquiesce by any means, either in the proposition originally in the Bill, or in the amendment. Nay, the proposition in the amendment is a great deal worse, because you therein make a saving of the right of interference with, and may fix your boundary line at the very gates of, New York, perhaps in the very town itself, and subject that colony to the liability of be- coming a province of France. It was this state of things, Sir, that made me wish to establish a boundary of certainty. The noble lord has spoken upon this subject with a great deal of fairness. He says that if any gentleman will find a bound- ary of certainty, he will accept it. Whether, if we shall be able to find such a boundary, the colony of New York will be satisfied with it, I know not ; but speaking* here as a Member of Parliament, I do think the colony had better have a boundary much less in extent, yet reduced to such a cer- tainty that they may exactly know when and where they cease to be English subjects. The boundary originally settled between Canada and New York was entitled to contest with 184 APPENDIX. the Crown under the first proclamation. That was given tip. I am glad the noble lord has got a map before him. They gave up a yast extent of country. I recommended them to give up for peace all that part which lies between that coun- try and the river St. Lawrence, and to take their departure from a line drawn through Lake Champlain in forty-five de- grees of latitude, as far as the Riyer St. Lawrence, then fol- lowing the course of that river through Lake Ontario and Lake Erie, to make it the western bound of the colony of Pennsylvania. These limits and bounds would give New York a territory sufficient to enable it to meet every exigency of government. It would give the Crown a boundary of certainty ; it would give the people of Canada a certainty of knowing upon what side of the water their territory began ; and it would give the subjects of Great Britain the power of knowing where they can be free. * * * He does not know enough of the state of that country to be able to adopt the line which he has drawn ; whereas nothing can be more geographically distinguished than water and land. This boundary is physically distinguished ; it is astronomically distinguished. It has been fixed by actual observation, and agreed upon by the surveyors. We have everything that geography, astronomy, and general ( convenience, stronger sometimes than either, can give to make this boundary defi- nite. I shall therefore now move the boundary which I have proposed, viz., by a line drawn from a point on the east side of Lake Champlain in 45 degrees north latitude, and by a line drawn in that parallel west to the River St. Lawrence, and up that river to Lake Ontario, and across that lake to the River Niagara, and from Niagara across Lake Erie to the north-west point of the boundary of Pennsylvania, and down the west boundary of that Province, by a line drawn from thence till it strikes the Ohio. If the noble lord admits this proposition, the Committee will no doubt be able to express it in proper words ; if not, I must beg that we may receive in- formation from a gentleman who can abundantly inform the APPENDIX. 185- House, and who is as ready to communicate it as any man I ever knew."^ Lord North. — We agree in principle, and I hope we shall succeed in drawing a clear boundary line ; but I am doubt- ful whether a clear bouudary line can be drawn by Parlia- ment. It strikes me that the only method is to leave it to be drawn after the passing of the Act, leaving it in such a man- ner that the line where drawn shall actually form a clear line between the Province of Canada and New York. The line as far as it appears by the map is very distinct. The objec- tion I have is precisely what the honourable gentleman has mentioned. I am not clear whether there are not on the south-east part of the Kiver St. Lawrence, Canadian settle- ments. I have been informed there are. I am sure there are no New York settlements in that part of the world. I think it more prudent to have the boundary line settled upon the spot, reserving, in the Act, all those lands that have been granted under any authority the old settlers. * • * * It is my opinion that all this uninhabited country added to Canada or added to New York should not be immediately considered as country which the Government are to grant; away. * * * ' 1 rise up at present to confirm the declara- tion I have made, that if a clear line can be made to the satis- faction of gentlemen, so that they are not likely to involve themselves by drawing a line in Westminster which would be better drawn in America, I shall not opiniatre it, but shall be very thankful to the gentleman who can draw that line. Mr. Burke. — * * * If Canada is in future to have boundaries determined by the choice of the Crown, the* Crown is to have the power of putting a great part of the subjects of England under laws which are not the laws of England. The government of France is good — all govern- ment is good — but compared with the English government, that of France is slavery. * * * The parties here are * Mr. Pownall, the Under-Secretary for the American colonies. 186 APPENDIX. English liberty and French law ; and the whole Province of New York, further than it is defined by actual bound, is in the power of the Crown, not to adjudicate, but to grant, and hand over to the French. I do not suppose if the Crown were under the necessity of adjudging, that it would adjudge amiss ; but it is in the power of the Crown to grant even its power of adjudging. Where put on the English side, they are put in the power of the laws ; where put on the French side, they are put out of the power of the laws. Let us con- sider, then, whether it is not worth while to give a clear boundary, and let the man know whether he is or is not an Englishman. I shall take the sense of the Committee upon it. I am as much in earnest as ever I was in my life. I have produced a practical idea ; I can produce practical words. After a long and desultory conversation, the words pro- posed by Mr. Burke were inserted. The words — " Until it strike the Ohio ; and along the banks of the said river, west- ward to the banks of the Mississippi, and northward to the southern boundary of the territory to the Merchants' Adven- turers of England trading to Hudson's Bay ; and also all such territories, islands and countries, which have, since the 10th of February, 1763, been made part of the government of Newfoundland, be, and they are hereby, during* his Majesty's pleasure, annexed to and made part and parcel of the Prov- ince of Quebec" — were next read. On June 10th, Sir Charles Whit worth reported to the House the amendments which the committee had made to the Bill. The first clause being read, there was much puzzling about settling the boundary line. Mr. Edmund Burke, Mr. Jack- son, Mr. Barker, and Sir Charles Whitworth went up stairs, in order to settle it, while the House was supposed to be pro- ceeding upon it. The House continued for at least half-an- hour, doing nothing in the meantime. The difference was, whether the tract of country not inhabited should belong to New York or Canada ? At live o'clock, Mr. Burke returned with the amendments, some of which were agreed to, others APPENDIX. 187 not. The following is the clause, as finally agreed to by the House : " 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 islands which divide the rivers that empty themselves into the Eiver St. Lawrence, from those which fall into the sea, to a point in forty-five degrees of northern latitude on the west- ern bank of the Eiver Connecticut, keeping the same latitude directly west, through the Lake Champlain, until, in the same latitude, it meets the Eiver 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 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 inter- sected, 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 Eiver Ohio ; and along the bank of the said river, westward, to the banks of the Mississippi, and northward to the so ui hern boundary of the territory granted to the Merchants' Adventurers of England trading to Hudson's Bay ; and also all such territories, islands and countries which have, since the 10th of February, 1763, been made part of the government of Newfoundland, be, and they are hereby, during his Majesty's pleasure annexed to and made part and parcel of the Province of Quebec, as created and established by the said Eoyal Proclamation of the 7th of October, 1763. APPENDIX. " Provided always, that nothing herein contained, relative to the boundary of the Province of Quebec, shall in anywise affect the boundaries of any other colony." * APPENDIX D. [Lord Mansfield to the Right Hon. G. Grenville.) Bloomsbury, Dec. 24, 1764. Dear Sir, — Since I saw you, I have heard from the King in general, and afterwards more particularly, but very indis- tinctly, from some persons who visited me last night, of a complaint concerning a civil government and a judge sent to Canada. Is it possible thai we have abolished their laws and customs and forms of judicature all at once ? — a thing never to be at- tempted or wished. The history of the world don't furnish an instance of so rash and unjust an act by any conqueror whatever, much less by the Crown of England, which has al ways left to the conquered their own laws and usages, with a change only so far as the sovereignty was concerned. Where other changes have happened, as in Ireland, they have been the work of great length of time, many emergencies, and where there was a pale of separation between the con- querors and the conquered, by their own laws at first, Berwick, the conquest made by Edward III., and yielded by the Treaty of Bretigny, retained their own municipal laws. Minorca does now. Is it possible that a man sansaveu, with- out knowing a syllable of their language or laws, has been sent over with an English title of magistracy unknown to them, the powers of which office must consequently be inex- plicable and unexecutable by their usages ? For G-od's sake learn the. truth of the case, and think of a speedy remedy. I was told last night that the penal statutes of England concerning Papists are to be held in force in Canada. *This section excluded the English colonists from the St. Lawrence, the Great Lakes and the Mississipi. APPENDIX. 189 The fundamental maxims are that a country conquered, keeps her own laws, till the conqueror expressly gives new. A colony which goes from hence to settle in a waste conn- try, if they have an express constitution by charter (or so far as that is silent), carries with them snch a part of the common law of England as is adapted to and proper for their situation. A very small part of the common or statute law of Eng- land is law, there, by this maxim. Ecclesiastical laws, revenue laws and penal laws, and a thousand other heads, do not bind these by implication, though in force here at the time of their settlement. Perhaps the principal parts of this report may be untrue ; but I am so startled at it that I cannot help writing to you. You may easily learn from the Board of Trade whether there has been any act from hence to send them over in a lump a new and unknown law.* I have thought of the observation you made yesterday, from looking into the charters of some of the charter govern- ments. Though the question does not want this or any other au- thority, yet it will be a striking attestation to ignorant people, and an unanswerable argument ad homines ; and therefore I wish you would employ somebody to look with this view into the origin of their power to tax themselves and raise money at all. As to the charter and proprietary governments, it can only be found in the letters patent from which it must be derived. As to the King's commission and instructions to the gov- ernors of an early date, which may be found at the Council Office or the Board of Trade, I would particularly look into that of New York, which was taken from the Dutch, and in a few years afterwards changed her master. Their first com- mission by a King of England is by Charles the Second. * The remaining part of the letter refers to the right of Parliament to tax the colo- nies ; but I do not, as it is brief, suppress it. 190 APPENDIX. I am just going out of town for the holidays. I could not help troubling you, for which I hope you will forgive me. Yours most affectionately, Mansfield. — Grenville Paper, vol. 2, p. 476. APPENDIX E. Captain Stirling, who was despatched in 1765 by •General Gage to take possession of the posts and settlements of the French in the Illinois country east of the Mississippi, upon his arrival, St. Ange surrendered Fort Chartres, and retired with the garrison of twenty-one men, and a third of the in- habitants of that settlement, to St. Louis, where he exercised the duties of commandant by the general consent of the people, till he was superseded by the Spanish governor, Piernes, in 1770. Upon assuming the government of the country, Captain Stirling published the following proclama- tion from General Gage, who was at this time the Com- mander-in-Chief of the British forces in North America : " "Whereas, by the peace concluded at Paris, the tenth day of February, 1763, the country of Illinois has been ceded to his Britannic Majesty, and the taking possession of the said country of the Illinois by the troops of his Majesty, though delayed, has been determined upon. We have found it good to make known to the inhabitants — " That his Majesty grants to the inhabitants of the Illinois, the liberty of the Catholic religion, as has already been granted to his subjects in Canada. He has consequently given the most precise and effective orders to the end that his new Roman Catholic subjects of the Illinois may exercise the worship of their religion according to the rites of. the Romish Church, in the same manner as in Canada. 14 That his Majesty, moreover, agrees that the French in- habitants or others, who have been subjects of the Most APPENDIX. 191 Christian King (the King of France), may retire in fall safety and freedom wherever they please, even to New Orleans, or any part of Louisiana ; although it should happen that the Spaniards take possession of it in the name of his Catholic Majesty (the King of Spain), and they may sell their estates, provided it be to the subjects of his Majesty, and transport their effects as well as their persons, without re- straint upon their emigration, under any pretence whatever except in consequence of debts or of criminal processes. " That those w r ho choose to retain their lands and become subjects of his Majesty, shall enjoy the same rights and privi- leges, the same security for their persons and effects, and the liberty of trade, as the old subjects of the King. " That they are commanded by these presents to take the oath of fidelity and obedience to his Majesty, in presence of Sieur Stirling, Captain of the Highland Eegiment, the bearer hereof, and furnished with our full powers for this purpose. " That we recommend forcibly to the inhabitants to con- duct themselves like good and faithful subjects, avoiding, by a wise and prudent demeanour, all causes of complaint against them. " That they act in concert with his Majesty's officers, so that his troops may take possession of all the forts, and order be kept in the country. By this means alone they will spare his Majesty the necessity of recurring to force of arms, and will find themselves saved from the scourge of a bloody war, and of all the evils which a march of an army into their country would draw after it. " We direct that these presents be read, published, and posted up in the usual places. " Done and given at head-quarters, New York, signed with our hands, sealed with our seal at arms, and countersigned by our Secretary, this 30th of December, 1764. " Thomas G-age. " By his Excellency, G-. Masturin " 192 APPENDIX. APPENDIX F. (By the King.) A Proclamation. G-eorge R. " Whereas, we have taken into our Royal consideration the extensive and valuable acquisitions in America, secured to our Crown by the late definitive treaty of peace concluded at Paris the 10th of February last ; and being desirous that all our loving subjects, as well of our kingdoms as of our colonies in America, may avail themselves, with all con- venient speed of the great benefits and advantages which must accrue therefrom to their commerce, manufactures and navigation, we have thought fit, with the advice of our Privy ^Council, to issue this our Royal Proclamation, hereby to pub- lish and declare to all our loving subjects that we have, with the advice of our said Privy Council, granted our letters pa- tent under our great seal of Great Britain, to erect within the countries and islands ceded and confirmed to us by the said treaty, four distinct and separate governments, styled and called by the names of Quebec, East Florida, West Florida, and Grenada, and limited and bounded as follows, viz. : " First, The Government of Quebec, bounded on the La- brador coast by the River St. John, and from thence by a line drawn from the head of that river, through the Lake St. John, to the south end of the Lake Nipissim ; from whence the said line, crossing the River St. Lawrence and the Lake Cham- plain, in forty-five degrees of north latitude, passes along the islands which divide the rivers that empty themselves into the said river St. Lawrence, from those which fall into the sea ; and also along the north coast of the Baie des Chaleurs, and the coast of the Gulf of St. Lawrence to Cape Rosieres, and from thence crossing the mouth of the River St. Law- rence by the west end of the Island of Anticosti, terminates at the aforesaid River St. John. " Secondly, The Government of East Florida, bounded on APPENDIX. 193 the westward by the Gulf of Mexico and the Appal achicola river ; to the northward, by a line drawn from that part of the said river where the Chatahouchee and Flint rivers meet, to the source of St. Mary's river, and by the course of the said river to the Atlantic Ocean; and to the east and south by the Atlantic Ocean and the Gulf of Florida, including all islands within six leagues of the sea coast. " Thirdly, the Government of West Florida, bounded to the southward by the Gulf of Mexico, including all islands within six leagues of the coast from the River Appalachicola to Lake Pontchartrain ; to the westward, by the said Lake, the Lake Maurpas, and the Eiver Mississippi; to the northward, by a line drawn due east from that part of the Mississippi which lies in thirty-one degrees north latitude, to the River Appalachicola or Chatahouchee ; and to the eastward by the said river. " Fourthly, The Government of Grenada, comprehending the island of that name, together with the Grenadines, and the islands of Dominico, St. Vincent and Tobaga. ' : And to the end that the open and free fishery of our sub- jects may be extended to, and carried on, upon the coast of Labrador and the adjacent islands, we have thought fit, with the advice of our said Privy Council, to put all the coast, from the Eiver St. John's to Hudson's Straits, together with the islands of Anticosti and Madeline, and all other smaller islands lying upon the said coast, under the care and inspec- tion of our Governor of Newfoundland. " We have also, with the advice of our Privy Council, thought fit to annex the islands of St John and Cape Breton, or Isle Royale, with the lesser islands adjacent thereto, to our Government of Nova Scotia. " We have also, with the advice of our Privy Council afore- said, annexed to our Province of Georgia all the lands lying between the rivers Altamaha and St. Mary's. " And whereas, it will greatly contribute to the speedy settling our said new governments, that our loving subjects 194 APPENDIX. should be informed of our paternal care for the security of the liberties and properties of those who are and shall become inhabitants thereof, we have thought fit to publish and declare by this our proclamation, that we have, in the letters patent under our great seal of Great Britain, by which the govern- ments are constituted, given express power and direction to our governors of our said colonies respectively, that, so soon as the state and circumstances of the said colonies will admit thereof, they shall, with the advice and consent of the mem- bers of our Council, summon and call General Assemblies within the said governments respectively, in such manner and form as is used and directed in those colonies and prov- inces in America which are under our immediate govern- ment. And we have also given power to the said governors, with the consent of our said councils and the representative of the people, so to be summoned as aforesaid, to make, con- stitute and ordain laws, statutes and ordinances for the public peace, welfare and good government of our said colonies, and of the people and inhabitants thereof, as near as may be agreeably to the laws of England, and under such regulations and restrictions as are used in other colonies ; and, in the meantime, and until such Assemblies can be called as afore- said, all persons inhabiting in, or resorting to, our said colo- nies, may confide in our our Royal protection for the enjoy- ment of the benefit of the laws of our realm of England ; for which purpose we have given power under our great seal to the governors of our said colonies respectively, to erect and constitute, with the advice of our said councils respectively, courts of judicature and public justice within our said colo- nies, for the hearing and determining of all causes, as well criminal as civil, according to law and equity, and as near as may be agreeably to the laws of England ; with liberty to all persons, who may think themselves aggrieved by the sen- tences of such courts, in all civil cases, to appeal, under the usual limitations and restrictions, to us, in our Privy Council. " We have also thought fit, with the advice of our Privy APPENDIX. 195 Council as aforesaid, to give unto the governors and councils of our three new colonies upon the continent, full power and authority to settle and agree with the inhabitants of our said new colonies, or to any other person who shall resort thereto, for such lands, tenements and hereditaments, as are now, or hereafter shall be, in our power to dispose of, and them to grant to any such person or persons, upon such terms and under such moderate quit-rents, services and acknowledg- ments as have been appointed and settled in other colonies, and under such other conditions as shall appear to us to be necessary and expedient for the advantage of the grantees, and the improvement and settlement of our said colonies. " And whereas, we are desirous upon all occasions to testify our Royal sense and approbation of the conduct and bravery of the officers and soldiers of our armies, and to reward the same, we do hereby command and empower our governors of our said three new colonies, and other our governors of our several provinces on the continent of North America, to grant, without fee or reward, to such reduced officers as have served in North America during the late war, and are actu- ally residing there, and shall personally apply for the same, the following quantities of land, subject at the expiration of ten years to the same quit-rents as other lands are subject to in the Province within which they are granted, as also subject to the same conditions of cultivation and improvement, viz. : " To every person having the rank of a field-officer, five thousand acres. " To every captain, three thousand acres. " To every subaltern or staff-officer, two thousand acres. u To every non-commissioned officer, two hundred acres. " To every private man, fifty acres. " We do likewise authorize and require the governors and commanders-in-chief of all our said colonies upon the conti- nent of North America, to grant the like quantities of land, and upon the same conditions, to such reduced officers of our navy of like rank as served on board our ships of war in 196 APPENDIX. North America at the times of the reduction of Louisbure: and Quebec, in the late war, and who shall personally apply to our respective governors for such grants. " And whereas it is just and reasonable and essential to our interest and security of our colonies that the several nations and tribes of Indians with whom we are connected, and who live under our protection, should not be molested or disturbed in the possession of such parts of our dominions and territo- ries as, not having been ceded to, or purchased by us, are re- served to them, or any of them, as their hunting grounds ; we do, therefore, with the advice of our Privy Council, de- clare it to be our Royal will and pleasure that no governor or commander-in-chief in any of our colonies of Quebec, East Florida, or West Florida, do presume, upon any pretence whatever, to grant warrants of survey, or pass any patents for lands beyond the bounds of their respective governments, as described in their commissions ; as also that no governor or commander-in-chief of our other colonies or plantations in America, do presume for the present, and until our further pleasure be known, to grant warrants of survey, or pass pa- tents, for any lands beyond the heads or sources of any of the rivers which fall into the Atlantic Ocean from the west or north-west ; or upon any lands whatever which, not having been ceded to, or purchased by us, as aforesaid, are reserved to the said Indians, or any of them. " And we do further declare it to be our Royal will and pleasure, for the present, as aforesaid, to reserve under our sovereignty, protection and dominion for the use of the said Indians, all the lands and territories not included within the limits of our said three new governments, or within the lim- its of the territory granted to the Hudson's Bay Company ; as also all the lands and territories lying to the westward of the sources of the rivers which fall into the sea from the west and north-west as aforesaid ; and we do hereby strictly for- bid, on pain of our displeasure, all our loving subjects from making any purchase or settlements whatever, or taking pos- APPENDIX. 197 session of any of the lands above reserved, without our special leave and license for that purpose first obtained. " And we do further enjoin and require all persons what- ever, who have either wilfully or inadvertently seated them- selves upon any lands within the countries above described, or upon any other lands which, not having been ceded to, or purchased by us, are still reserved to the said Indians as afore- said, forthwith to remove themselves from such settlements. " And whereas, great frauds and abuses have been commit- ted, in the purchasing lands of the Indians, to the great pre- judice of our interests, and to the great dissatisfaction of the said Indians ; in order, therefore, to prevent such irregulari- ties for the future, and to the end that the Indians may be convinced of our justice and determined resolution to remove all reasonable cause of discontent, we do, with the advice of our Privy Council, strictly enjoin and require, that no private person do presume to make any purchase from the said In- dians, of any lands reserved to the said Indians, within those parts of our colonies where we have thought proper to allow settlement ; but that if at any time any of the said Indians should be inclined to dispose of any of the said lands, the same shall be purchased only for us, in our name, at some public meeting or assembly of the said Indians, to be held for that purpose by the governor or commander-in-chief of our colony respectively within which they shall lie ; and in case they shall lie within the limits of any proprietaries, conform- able to such directions and instructions as we or they shall think proper to give for that purpose. And we do, by the ad- vice of our Privy Council, declare and enjoin that the trade with the said Indians shall be free and open to all our sub- jects whatever, provided that every person who may incline to trade with the said Indians, do take out a license for carry- ing on such trade, from the governor or commander-in-chief of any of our colonies respectively where such person shall reside, and also the security to observe such regulations as we shall at any time think fit ; by ourselves or commissaries t 198 APPENDIX. be appointed for this purpose, to direct and appoint for the benefit of the said trade. And we do hereby authorize, en- join and require the governors and commanders-in-chief of all our colonies respectively, as well as those under our im- mediate government, as those under the government and di- rection of proprietaries, to grant such licenses, without fee or reward, taking especial care to insert therein a condition, that such license shall be void, and the security forfeited, in case the person to whom the same is granted, shall refuse or neg- lect to observe such regulations as we shall think proper to prescribe as aforesaid. " And we do further expressly enjoin and require all officers whatever, as well military as those employed in the manage- ment and direction of Indian affairs within the territories re- served as aforesaid for the use of the said Indians, to seize and apprehend all persons whatever who, standing charged with treasons, misprisions of treasons, murders or other felonies or misdemeanors, shall fly from justice, and take refuge in the said territory, and to send them under a proper guard to the colony where the crime was committed of which they shall stand accused, in order to take their trial for the same. " Given at our Court of St. James's, the seventh day of October, 1763, in the third year of our reign. " God Save the King" APPENDIX G. Extracts from The Present State of the European Settle- ments on the Mississippi, by Captain Philip Pitman, 4to, London, 1770. " Fort Chartres, when it belonged to France, was the Seat of Government of the Illinois. The head-quarters of the English commanding-officer is now here, who, in fact, is the arbitrary governor of this country. The fort is an irregular APPENDIX. 199 quadrangle ; the sides of the exterior polygon are 490 feet. It is built of stone, is plastered over, and is only designed' as a defence against the Indians The walls are two feet two inches thick, and are pierced with loop-holes at regular dis- tances, and with two port-holes for cannon in the faces, ana two in the flanks of each bastion. The ditch has never been finished. The entrance to the fort is through a very hand- some rustic gate. Within the walls is a banquette raised three feet, for the men to stand on when they fire through the loop- holes. The buildings within the fort are — a commandant's and a commissary's house, the magazine of stores, corps de garde and two barracks ; these occupy the square. Within the gorges of the fort are a powder - magazine, a bake- house and a prison, in the lower floor of which are four dungeons, and in the upper, two rooms, and an out-house be- longing to the commandant. The commandant's house is thirty-two yards long, and ten broad, &c. The commissary's house (now occupied by officers) is built on the same line as this, and its proportion and the distribution of its apartments are the same. Opposite these are the store-house and the guard-house ; they are each thirty yards long and eight broad. The former consists of two large store-rooms (under which is a large vaulted cellar, a large room, a bed-chamber, and a closet for the store-keeper ; the latter, of a soldiers' and offi- cers' guard-room, a chapel, a bed-chamber, a closet for the chaplain and an artillery store-room. The lines of barracks have never been finished ; they at present consist of two rooms each for officers, and three rooms each for soldiers. They are each twenty feet square, and have betwixt them a small passage. There are five spacious lofts over each build- ing, which reach from end to end ; these are made use of to lodge regimental stores, working and entrenching tools, &c. It is generally believed that this is the most convenient and best-built fort in North America." In 1756, Foit Chartres was rebuilt by order of the French G-overnment, in view of the war with England. It was then 200 APPENDIX. half-a-mile from the Mississippi. In 1766 it was but eighty- yards from the bank. In 1768, Captain Pitman writes : " The bank of the Mississippi, next the fort, is continually falling in, being worn away by the current, which has been turned from its course by a sand-bank, now increased to a considerable island, covered with willows. Many experi- ments have been tried to stop this growing evil, but to no purpose. Eight years ago the river was fordable to the island ; the channel is now forty feet deep. " In the year 1761, there were about forty families in the village near the fort, and a parish church, served by a Fran- ciscan friar, dedicated to Ste. Anne. In the following year, when the English took possession of the country, they aban- doned their houses, except three or four poor families, and settled in the villages on the west side of the Mississippi, choosing to continue under the French Government." In 1772, the channel of the river reached the fort and the wall, and two bastions upon the west side were undermined, and fell, and the British garrison abandoned the place, and Kaskaskia became the Seat of Government for the Illinois country.^ " The Village of Notre Dame de Cascasquias is by far the most considerable settlement in the country of Illinois, as well from its number of inhabitants, as from its advantageous situation. i( Mons. Paget was the first who introduced water-mills in this country, and he constructed a very fine one on the river Cascasquias, which was both for grinding corn and sawing boards. It lies about one mile from the village. The mill proved fatal to him, being killed as he was working in it, with two negroes, by a party of Cherokees, in 1764. * For a very minute and interesting description of Fort Chartres, see Dr. Beck's Gazeteer of Illinois, 1820 : " Over the whole Fort, there is a considerable growth of trees, and in the hall of the houses, there is an oak about eighteen inches in diameter. • . . . Trees more than three feet in diameter are within the walls. It is a ruin in the midst of a dense forest, and did we not know its history, it might furnish a fruitful theme for antiquarian speculation. APPENDIX. 201 " The principal buildings are the church and Jesuits'- house, which has a small chapel adjoining it ; these, as well as some other houses in the village, are built of stone, and, con- sidering this part of the world, make a very good appearance. The Jesuits' plantation consisted of two hundred and forty arpents of cultivated land, a very good stock of cattle, and a brewery : which was sold by the French commandant, after the country was ceded to the English, for the Crown, inconse- quence of the suppression of the Order. " Mons. Beauvais was the purchaser, who is the richest of the English subjects of this country. He keeps eighty slaves ; he furnishes eighty-six thousand weight of flour to the King's magazine, which was only a part of the harvest he reaped in one year. " Sixty-five families reside in this village, besides merchants, other casual people and slaves. The fort, which was burnt down in October, 1766, stood on the summit of a high rock opposite the village, and on the opposite side of the Koskas- kin river. It was an oblongular quadrangle, of which the exterior polygon measured two hundred and ninety feet by two hundred and fifty-one feet. It was built of very thick squared timber, and dovetailed at the angles. An officer and twenty soldiers are quartered in the village. The officer go- verns the inhabitants, under the direction of the commandant at Chartres. Here are also two companies of militia." " La Prarie de Roches is about seventeen miles from Cascasquias. It is a small village, consisting of twelve dwel- ling houses, all of which are inhabited by as many families. Here is a little chapel, formerly a chapel-of-ease to the church at Fort Chartres. The inhabitants here are very industrious, and raise a great deal of corn, and every kind of stock. The village is two miles from Fort Chartres. It takes its name from its situation, being built under a rock that runs parallel with the river Mississippi, at a league distance, for forty miles tp. Here is a company of militia, the captain of which regu- lates the police of the village. 1 ' 202 APPENDIX. " Saint Phillippe is a small village about five miles from Fort Chartres, on the road to Kaoquias. There are about six- teen houses and a small church standing, All the inhabitants > except the captain of the militia, deserted it, in 1765, and went to the French side. The captain of the militia has about twenty slaves, a good stock of cattle and a water-mill for corn and planks. This village stands in a very fine meadow, about one mile from the Mississippi." " The village of Satnte Famille de Kaoquia (Cahokia) is generally reckoned fifteen leagues from Fort Chartres, and six leagues below the mouth of the Missouri. It stands near the side of the Mississippi, and is marked from the river by an island of two leagues long. The village is opposite to the centre of this island ; it is long and straggling, being three- quarters of a mile from one end to the other. It contains forty-five dwelling-houses, and a church near its centre. The situation is not well chosen, as in the floods it is generally overflowed two or three feet. This was the first settlement on the Mississippi. The land was purchased of the savages by a few Canadians, some of whom married women of the Kaoquias nation, and others brought wives from Canada, and then resided there, leaving their children to succeed them. The inhabitants of this place depend more on hunting, and their Indian trade, than on agriculture, as they raise scarcely corn enough for their own consumption ; they - have a great plenty of poultry, and good stocks of horned cattle. The Mission of St. Sulpice had a very fine plantation here, and an excellent house built on it. They sold this estate, and a very good mill for corn and planks, to a Frenchman who chose to remain under the English Government. They also disposed of thirty negroes, and a good stock of cattle to different people in the country, and returned to France in 1764. What is called the Fort, is a small house standing in the centre of the village. It differs nothing from the other houses, except in being one of the poorest. It was formerly enclosed with high palisades, but these were torn down and burnt. Indeed, a fort at this place could be of little use." APPENDIX. 20& APPENDIX H. Extracts from the Diary of Colonet, Croghan, ' Deputy-Superintendent of the Northern Indian Department. Colonel G-eorge Croghan, the Commissioner of Sir William Johnson, went to the west to learn the disposition of the French inhabitants, and to secure, if possible, their adhesion to the English interest ; and to prevent a second Indian war. He left Fort Pitt on the 15th of May, 1764, and was taken prisoner on the 8th of June by a party of Indians, and was carried to Yincennes. He says : " On my arrival there, I found a village of about eighty or ninety French families set- tied on the east side of this river, being one of the finest situations that can be found. The country is level and clear, and the soil very rich, producing wheat and tobacco. I think the latter preferable to that of Maryland or Virginia. The French inhabitants hereabouts are an idle, lazy people, a par- cel of renegaders from Canada, and are much worse than the Indians. They took a secret pleasure at our misfortunes, and the moment we arrived, they came to the Indians, exchanging trifles for their valuable plunder. As the savages took from me a considerable quantity of gold and silver in specie, the French traders extorted two half-johannes from them for one pound of vermilion. " Here is likewise an Indian village of the Pyankeshaws, who were much displeased with the party that took me, tel- ling them, ' our chiefs and your chiefs have gone to make peace ; and you have begun a war, for which our women and children will have reason to cry.' From this post, the Indians permitted me to write to the Commander, at Fort Chartres, but would not suffer me to write to anybody else (this, I ap- prehend, was a precaution of the French, lest their villainy should be perceived too soon), although the Indians had given me permission to write to Sir William Johnson and Fort Pitt 204 APPENDIX. on our march, before we arrived at this place. But immedi- ately after our arrival, they had a private council with the French, in which the Indians urged (as they afterwards in- formed me) that as the French had engaged them in so bad an affair, which was likely to bring a war on their nation, they now expected a proof of their promise and assistance. They delivered the French a scalp and a part of the plunder, and wanted to deliver some presents to the Pyankeshaws, but they refused to accept of any, and declared that they would not be concerned in the affair. This last information I got from the Pyankeshaws, as I have been well acquainted with them several years before this time. " Post Vincent is a place of great consequence for trade, being a fine hunting country all along the Ouabache (Wa- bash), and too far for the Indians, which reside hereabouts, to go either to the Illinois or elsewhere to fetch their necessaries. " June 23. — .... The distance from Post Vincent to Ouicatanon is 210 miles. This place is situated on the Oua- bache. About fourteen French families are living in the Fort, which stands on the north side of the river. The Kickapoos and Musquattinees, whose warriors had taken us, live nigh the fort, on the same side of the river, where they have two villages ; and the Ouicatanons have a village on the south side of the river. At our arrival at this post, several of the Wawcattonans (or Ouicatanons), with whom I had been for- merly acquainted, came to visit me, and seemed greatly con- cerned at what had happened. They went immediately to the Kickar5oos and Musquattinees, and charged them to take the greatest care of us till their chiefs should arrive from the Illinois, where they were gone to meet me some time ago, and who were entirely ignorant of this affair, and said the French had spirited up this party to go and strike us. " The French have a great influence over these Indians, and they never fail in telling them many lies to the prejudice of his Majesty's interest, by making the English nation odious and hateful to them. I had the greatest difficulties in remov- APPENDIX. 205 ing these prejudices. As these Indians are a weak, foolish and credulous people, they are easily imposed on by a design- ing people, who have Led them hitherto as they pleased. The French told them that as the Southern Indians had for two years past made war on them, it must have been at the insti- gation of the English, who are a bad people. However, I have been fortunate enough to remove their prejudice, and in a great measure their suspicions against the English. The country hereabouts is exceedingly pleasant, being open and clear for many miles, the soil very rich and well watered, all plants have a quick vegetation, and the climate very tempe- rate through the winter. This post has always been a, very considerable trading place. The great plenty of furs taken in this country, induced the French to establish this post, which was the first upon the Ouabache, and by a very advan- tageous trade, they have been richly recompensed for their labour. " August 1. — The Twigtwee village is situated on both sides of a river called the St. Joseph. This river, where it falls into the Miami river, about a quarter of a mile from this place, is about one hundred yards wide, on the east side of which stands a stockade fort, somewhat ruinous. " The Indian village consists of about forty or fifty cabins, besides nine or ten French houses, a runaway colony from Detroit, during the Indian war ; they were concerned in it, and being afraid of punishment, came to this post, where, ever since, they have spirited up the Indians against the Eng- lish. All the French residing here are a lazy, indolent people, fond of breeding mischief and spiriting up the Indians against the English, and should by no means be suffered to remain here. The country is pleasant, the soil rich and well watered. After several conferences with these Indians, and their deliv- ering me up all the English prisoners they had, on the 6th of August we set out for Detroit, down the Miami river, in a canoe. " August 17. — In the morning we_arrived at the fort, which 206 APPENDIX. is a large stockade, inclosing about eighty houses ; it stands close on the north side of the river, on a high bank, com- mands a very pleasant prospect for nine miles above and nine miles below the fort ; the country is thickJy settled with French ; their plantations are generally laid out about three or four acres in breadth on the river, and eighty acres in depth ; the so:l is good, producing plenty of grain. All the people here are generally poor wretches, and consist of three or four hundred French families, a lazy, idle people depend- ing chiefly on the savages for their subsistence ; though the land, with little labour, produces plenty of grain, they scarcely raise as much as will supply their wants, in imitation of the Indians, whose manners and customs they have en- tirely adopted, and cannot subsist without them. The men, women and children speak the Indian tongue perfectly well. In the last Indian war, the most part of the French were con- cerned in it (although the whole settlement had taken the oath of allegiance to his Britannic Majesty) ; they have there- fore great reason to be thankful to the English clemency in not bringing them to deserved punishment. Before the late Indian war, there resided three nations of Indians at this place — the Putawatimes, whose village was on the west side of the river, about one mile below the fort ; the Ottawas, on the east side, about three miles above the fort ; and the Wyandottes, whose village lies on the east side, two miles below the fort. The former two nations have removed to a considerable distance, and the latter still remain where they were, and are remarkable for their good sense and hospitality. They have a particular attachment to the Roman Catholic re- ligion ; the French, by their priests, have taken uncommon pains to instruct them." Rogers says, in his Account of North America : " When I took possession of the country (Detroit) soon after the surren- der of Canada, they were about 2,500 in number, there being near 500 that bore arms, and near 300 dwelling-houses." (p. 168.) APPENDIX. 207 " In 1764 there were but men enough to form three compa- nies of militia." — Mante's History of the War in North America- p. 525. In 1768, the census, when taken, showed the population to be 572. Bancroft says that he has a MS. in his possession contain- ing the .recollections of Madame Catherine Thibeau, in which it is stated that " about sixty French families in all when the the English took possession of the country ; not more than eighty men at the time. Yery few farms ; not more than seven or eight farms settled." " July 18, 1765. — I set off for the Illinois with the chiefs of all those nations, when by the way, we met with Pondiac, together with the deputies of the Six Nations, Delawares and Shawanees, which accompanied Mr. Frazer and myself down the Ohio, and also deputies with speeches from the four nations living in the Illinois country, to me and Six Nations, Delawares and Shawanees, on which we returned to Onita- non, and there held a conference, in which I settled all mat- ters with the Illinois Indians, Pondiac and they agreeing to everything the other nations had done The French had informed them that the English intended to take their country from them, and give it to the Cherokees to settle on, and that if ever they suffered the English to take posses- sion of their country, they would make slaves of them, that this was the reason of their opposing the English hitherto from taking possession of Fort Chartres they de- sired that their Father, the King of England, might not look upon his taking possession of the forts which the French had formerly possessed, as a title for its subjects to possess their country, as they had never sold any part of it to the French, and that I might rest satisfied that whenever the English came to take possession, they would receive them with open arms." — Crogharts Diary ; also N. Y. Hist. Doc. vol. 8, p. 781. 208 appendix. Thoughts on Indian Affairs, by Colonel Broad street. — Extract. " I am assured, by persons lately from Illinois, that exclu- sively of the French garrison there, the inhabitants are six hundred fighting men, have one thousand negroes, well ac- customed to the use of arms, averse to our taking of the country, and having painted us in such colours to the ' nume- rous savages near them, that the latter will certainly endea- vour to prevent the troops getting there by the Mississippi, even should the Indians near the sea allow them to pass, which they think they will not, unless well paid for it, which will not answer, what may perhaps be expected. They add that this is their opinion also, that all attempts to get posses- sion of the Illinois with less than three thousand men will fail, and that those troops should go down the Ohio river, and that the expedition be carried on with such secrecy, that they may enter the Mississippi ninety miles below Fort Chartres, before the inhabitants can have intelligence of it, and time to apprize all the savages."—^. Y. Hist. Doc, vol. 8, p. 633. These statements differ very widely. This difference may in some measure be accounted for by remembering that the men were nearly all fur-traders, and that after the war with Pontiac was over, many went to Mackinac, to Nipigon, Grand Portage, Green Bay and other points, to carry On the trade of the north-west. Some families went beyond the Mississippi, to avoid becoming subjects of Great Britain, not knowing that France had ceded Louisiana to Spain. APPENDIX. 209 APPENDIX I. [This document seems to have governed the conduct of the Due de Choiseul in his propositions first made to Mr. Pitt ; and I append as serving to elucidate that corres- pondence.] Extract. — Paris Documents XVII. (page 1134.) Memoir on the Boundaries of Canada. By M. Dumas. 'Tis supposed that the plenipotentiaries named for the future Congress, are incapable of adopting the frivolous ideas entertained in France respecting our possessions in Canada ; statesmen have notions different from the simple vulgar. The French are too volatile and too superficial to trouble themselves about the future ; but Ministers whom wisdom has selected and ability directs, will of themselves observe that the interests of commerce, the progress of navigation, the good of the State and the King's glory necessarily require that the restitution of Canada be laid down as a preliminary in the Treaty of Peace. In more favourable conjunctures, we would be justified in demanding of the English, damages corresponding to the enormous depredation of our marine, as well commercial as national ; but the circumstances which will exist at the con- clusion of the peace, are to decide the sacrifices we shall be obliged to make, or the advantages which are possibly to re- sult therefrom. Commerce has changed the face of Europe ; it is now evident that, in the long run, the more commercial nation will become the more powerful. We can no longer dispense with America, without falling sensibly from our state of splendour. On the restitution of Canada depends the fate of the rest of our colonies. These principles, clearer than the day, once admitted, that restitution ought to form the basis and foundation of the Treaty of Peace. 210 APPENDIX. But will the work of our Ministers be durable ? For want of local knowledge, will they be in a condition to manage beneficially the interests of the King and nation in this re- gard ? Will they prevent the subterfuges in which English trickery will not fail to envelop them ? If the English desire peace, do they desire it to be lasting ? Will they renounce that system of maritime despotism which constitutes the sole object of their policy ? Will they not preserve a constant hankering to render themselves masters of the whole of America ? And will they not allow it to appear when we shall be least on our guard ? Incapable of accomplishing that project now, in consequence of the exhaustion of their finances, will they not renew it at another time ? In front of an enemy so active, so ambitious, so enterprising, conjectures are as go@d as demonstrations ; the past cannot render us too cautious for the future. By a fatality which cannot be comprehended, the English were better acquainted than we before the war, with the topographical map of our possessions. Aided by similar help, what advantage do they not possess to cheat us ? To this ob- ject, then, should be directed all the prudence and sagacity of our plenipotentiaries. Boundaries. I limit their labours, respecting Canada, to four general ob- jects : 1st. The entire property of both shores of the River and G-ulf of St. Lawrence. 2nd. The property of the lakes and rivers which form the natural communication between Canada and Louisiana ; they consist of Lake Ontario, Lake Erie, and the Ohio. 3rd. That neither of the two nations can form any estab- lishments on the rivers watering the possessions of the other. 4th., That both colonies shall exist and increase by popu- lation, without covering their frontiers with advanced posts, which is a principle of jealousy, suspicion and distrust ; an APPENDIX. 211 occasion always at hand, or a pretext often specious, for a rupture between the two nations. As for the first article — to cede to the English, as they pre- tend the entire peninsular of Acadia is to reduce ourselves evidently to a precarious possession. That peninsula is sus- ceptible of an immense population ; its position is one of the most advantageous, both for the erection of fortifications, and of posts there. Solid settlements of every description can be found there ; agriculture can be followed with the greatest success. In vain would France flatter herself that she should preserve in peace the possession of the mouth of the river, if the English obtained the entire cession of that penirasula. Already masters of Newfoundland, they should grant us the property of a country whereof they would guard the en- trance. The peace will scarcely be signed, when the activity of that ambitious people will be revived ; soon will they be seen establishing themselves on the north side of that peninsula, and neglecting the remainder, if necessary, in order to tran- sport to that quarter all their industry in favour of planta- tions. "What service would not the plenipotentiaries be rendering the State, if by their ability, they would induce the English to consent to a division of that peninsula, so that France should preserve the property of the northern part, from Cape Can so to Minas ? But if their zeal become useless, if English firmness leave no hope on that point, they ought to be prepared to rather break all conference, than to give up an inch of ground on that continent. 'Tis evident that our colony would lose thereby all communication with the metropolis ; we should no longer possess the free entrance of the river, except so far as the English would think proper. The lines of demarca- tion which separate the respective possessions on the map, annexed to this memoir,^ are drawn in accordance with the * The map is wanting. — Ed. 212 APPENDIX. largest sacrifices that it is possible for France to make. 'Tis for the plenipotentiaries to take advantage of favourable events, to obtain the best terms ; but in all possible reverses, 'twill be more advantageous for the King and the State to re- nounce Canada, and consequently Louisiana, which cannot exist without it, than to cede an inch of territory beyond that division. The blue colour indicates the French possessions. The red indicates the English possessions. The green, what can be ceded towards Hudson's Bay — should events require France to make further additional sac- rifices. I have said, and repeat it, Louisiana cannot exist for us without Canada. But 'tis more advantageous for France promptly to cede these two colonies to the English, than to accept conditions worse than those indicated by the lines draw r n on that map. On this hypothesis, let the river Pentagouet be the boundary of the English possessions on the continent, on the N.E., and let them be precluded from settling only the right bank. Let the Eiver St. John bound the French settlements, and let them be precluded from settling only the left bank. The territory between these two rivers shall perpetually remain neutral and undivided between both nations, as marked on the map by the yellow colour. The second object of the labour of our plenipotentiaries relative to Canada, regards the communication of that colony w T ith Louisiana. The projects of the English w^ould be accomplished beyond their hopes, were the freedom of that communication not stipulated and solidly established by the treaty of peace ; 'twould be separating two colo- nies, which cannot sustain themselves except by their im- mediate affinity. Now that communication can occur only by the Ohio, every other route renders it very difficult, often even impracticable. 'Tis essential, then, to insist strongly on the entire possession of the Ohio. APPENDIX. 213 That river, navigable throughout all its course for very- large craft, threatens Louisiana afar, and combines the ad- vantage of distance in concealing preparations, with that of extreme rapidity of current for promptitude of execution. To make the Ohio the boundary of the respective colo- nies, is to surrender it entirely to the English. In fact, already the English population is advancing towards that river ; it has only one step to take to clear the Apalachies, and that step would be taken on the day after the sign- ing of the treaty. The left bank of the Ohio would be under English cultivation in less than four years, whilst our population would not reach that point in the space of a century. Who does not perceive in that explanation the approaching and inevitable fall of Louisiana ? The entire possession of the Ohio cannot, then, be too much insisted on, the Apalachies constituting the limits ; but if events were such as to force us to give way on that important article, the only middle course to adopt is marked on the map by the yellow colour, viz., to leave the course of that river neutral, unsettled, without ownership, free to both nations to convey on it their goods for movable trade, with express reservation to France of the communication between both those colonies. The possession of lakes Ontario and Erie, which is the consequence of that communication, is a point of the greatest interest to us, the rather as for want thereof, those lakes assure another passage by the Miamis and Ouabache rivers, more difficult, more uncertain, but which furnishes neverthe- less a resource in times of misfortune. I admit that very favourable events would be required to reduce the English to abandon the south shore of Lake Ontario, of which they are a long time in possession, through Fort Chouequen — a pos- session usurped, but constant, and, as it were, unopposed ; an empty protest by the French Government, when the first foundations of that post were laid, is the only contradiction they have experienced. 214 APPENDIX. If circumstances were such, on the conclusion of the peace, as that France had to make good its advantages^ that would be the moment to protest against that usurpation. This im- portant object merits the greatest attention of our plenipoten- tiaries. It is sufficient to consider the course of the waters to perceive that that lake commands the whole of Canada. General Amherst has found no route more certain for inva- sion ; the event has not over-justified his principles and mind. If, on the contrary, we are reduced to take back Canada in the same condition that we possessed it before the war, France might consent to confine its cultivated settlements to the north shore of Lake Ontario, leaving the south shore free from the Bay of Niaoure* to the Eiver Niagara. The English would preserve the freedom of conveying- their merchandise for movable trade to the mouth of the Chouequen river, and could extend themselves only to the Onondaga river on one side, and as far as the River & la Famine on the other. But nothing should make France give up the property of the soil, so that the freedom of trade granted to the English could not at any time invest them with a title thereto. Let their possessions be always confined to the heads of the rivers by which they are watered, and let the height of land be constantly the limit between the two nations. The entire possession of Lake Erie ought to belong to France incontestably up to the head waters of the streams that empty into that lake on the south side ; the rivers flow- ing towards the Ohio are included in the neutrality proposed by that river. The third object proposed at the head of this memoir, will be rendered clearer by a brief reflection. The English are ten to our one in America. But if passing the height of lands, we should push our posts as far as the heads of the rivers which water the English colonies, all their superiority in numbers, means and resources would not APPENDIX. 215 guarantee them against an invasion when it should please us to attempt it. He who meditates an expedition, prepares it secretly, and when 'tis time to put it in execution, if he have in his favour the current of the stream which conveys him with rapidity, he surprises his enemy, and infallibly succeeds ; the same is not the case where the agressor has to ascend the rivers, has portages to make, lakes to traverse and mountains to pass. The immense preparations necessary to be made for that pur- pose discover the movement, and the slowness of the execu- tion affords time to the menaced province to place itself in a state of defence. The EngJish Colonies are in the latter position in respect to Canada, and Canada would be in the first relative to the English Colonies were the English to advance their settlements on Lake Champlain, Lake Ontario, or the Ohio, I am fully convinced, and every man of sense who is con- versant with the manner in which war can be carried on in that country, will agree with me that all the resources of the State will never preserve Canada if the Eng- lish are once settled at the heads of our rivers. 'Tis, again, one of the conditions that must never be consented to. Should peace be concluded under unfavorable circumstances to France, I point out the only middle course to be adopted, which is the neutrality of certain districts ; such might Lake St. Sacrament be without great prejudice to us, provided the English confine their settlements to the sources of the waters flowing into the River of Orange. Come we now to the fourth principle : I know nothing more useless in that country than forts to cover the frontiers ; they are equally a burthen to both nations, which have an equal interest in demolishing them ; they are, in time of peace, a source of useless expense, and experience has demonstrated that, in time of war, they would be good for nothing. These frontier posts are adapted only to create difficulties, to afford umbrage and sometimes furnish pretexts for a rupture. 216 APPENDIX. They would favour that nation which would preserve the the desire to seize the possessions of the other. By aid of the stand-points, it would pounce on its enemy when least expected, whilst every considerable enterprise becomes more difficult, more tedious, were they no longer in existence. If entrepots must be established, the step forward is a cry " To arms." The French plenipotentiaries will labor usefully for that Colony, and more profitably still for the Royal Treasury, if they agree with the British Ministers on not preserving any post on the frontiers on either side ; thus, Couequen and Niagara will be demolished. That does not exclude useful settlements in the interior of the possessions, either relatively to trade or otherwise, which each nation is to be at liberty to direct, according to its inter- ests ; but merely on what is called frontier, an outlet which may tend to supply means of an invasion. To place matters at the worst, if the fortune of war be un- favourable to France, this campaign, and peace be concluded in an unpropitious moment for us : If, in order to obtain the conditions I propose, we be under the necessity of making new sacrifices in any part of Canada, the least dangerous for us would be to allow more extent to the English possessions in the direction of Hudson's bay. Let us cede to them the whole of Lake Superior, rather than one inch of territory in the south part, at this side the height of land or the Apalachies. That sacrifice which is to be made by France at the most critical moment, is marked by the green colour on the map. Anything beyond those lines of demarcation, and France must give up Canada, inasmuch as it is evident she cannot preserve it ; moreover, to maintain ourselves in that state, the Minister essentially and constantly occupy himself therewith ; but above all things, must men be carefully selected, to whom the government, the police and finances are to be confided. Otherwise we shall labour for our enemies. Canada, bathed APPENDIX. 217 in the blood of our unfortunate Colonists, will soon be the appendage of the English. Our clearances, our settlements, our villages, will be so much fruit to be gathered by them when they have arrived at maturity. Let the height of land and the Apalachies be the limits between the two peoples ! Nature appears to have marked them expressly. The caprice of man cannot change that barrier, always per- manent, and always ready* to protest against the usurper. People aspire to a/uld be by the first waters of the Mississippi which it did intersect, which would be the White Earth River, and this would in fact correspond with the extent of Canada previously known to the French, taking in all the old forts already mentioned and leaving out the " countries and nations hitherto undiscovered,'" that is at APPENDIX. 385 the time of the conquest, though at the period when that des- cription was made the North-west Company were carrying on an active trade much farther to the west : nor is it clear that this would be adverse to the intention of the description, for some of the .maps of that period represent the Mississippi as west of the "Red River. The southerly boundary of the British dominions west of Lake Superior being therefore demonstrated as identical with the southerly boundary of Canada to some point due west of the Lake of the Woods, the only question is as to where that point is to be found ; is it the White Earth River, the first waters of the Mississippi with which the due west line intersects ? or is it the summit of the Rocky Mountains, on the same principle that the co-terminous boundary of Louisiana was ultimately so construed ? The next point to be determined is the northerly extension of Canada from its southerly boundary. The official descrip- tion, corresponding with the Act of 1774, carries it to the boundary of the Hudson's Bay Company's Territories, but the same official description ignores the boundaries they claim, (thus proving so far the construction then put upon the Act of 1774,) for it carries the southerly boundary of Canada down the watershed of Hudson's Bay from two to three hundred miles to the Lake of the Woods, and thence due west, thus making the starting point far within what the Hudson's Bay Company claim, and thus, from a point within what they claim as their territory, it is to extend northerly to their territories. If then the " rights " of the Hudson's Bay Company were even far less equivocal than they are, their southerly boundary, as pretended by themselves, is entirely demolished, and the question arises where is the boundary of their territories so des- cribed as the northerly limit of Canada ? The question of terri- torial rights has already been so fully discussed that it is un- necessary to repeat the arguments. The only possible conclu- sion is, that Canada is either bounded in that direction by a few isolated posts on the shore of Hudson's Bay, or else that AA 386 APPENDIX. the Company's territory is — like the intersection of the due west line with the Mississippi —a myth, and consequently that Canada has no particular limit in that direction. The accompanying map illustrates the northerly boundary of Canada, according to British authorities, as ceded by the French in 1763, there being no westerly boundary then known or since provided. This is perhaps all that could in the first instance be absolutely claimed as under the Government of Canada, were it not that, since the final determination of the southerly boundary, the Imperial Government merely des- cribed the authority of this Government as extending over all the countries theretofore known as Canada, which might fairly be taken to cover the territory acquired by the Treaty . of Utrecht, as well as that acquired by the Treaty of Paris. BOUNDARIES OF THE INDIAN TERRITORIES. The boundaries of the Indian Territories need little consi- deration or explanation, as they simply include all that belongs to Great Britain in North America to the north and west of Canada, excepting the Territory (if any) which the Hudson's Bay Company may of right claim. It must not be lost sight of, however, that the great bulk of this territory has been acquired by the Crown of Great Britain through discoveries of its Cana- dian subjects, beyond whatever may be determined to be the westerly boundary of Canada, across the Rocky Mountains to the shores of the Pacific, and by the McKenzie Eiver to the Frozen Ocean. The importance of these discoveries in the negotiations pending the Treaty of Oregon cannot be for- gotten, for it is in virtue of Canadian Discovery and Canadian Settlement that the British negotiator was enabled to maintain his position in the controversy, and secure a footing for his country on the Pacific. And when, it may be asked, did ever the Hudson's Bay Company afford such an important advan- tage to British interests ? Sir Alexander McKenzie's journey in 1793 across the Rocky APPENDIX. 387 Mountains (the first ever performed north of Mexico) is thus referred to by the British Plenipotentiary, in negotiating the Treaty of Oregon : " While Vancouver was prosecuting discovery and exploration by sea, Sir Alexander McKenzie, a 'partner in the North-west Company, crossed the Rocky Mountains, dis- covered the head waters of the river since called Frazer's River, and following for some time the course of that river, effected a passage to the sea, being the first civilized man who traversed the continent of America from sea to sea in these latitudes. On the return of McKenzie to Canada the North-west Company established trading posts in the country to the westward of the Rocky Mountains." This was the British title to that part of the country, and but for this journey and the establishing of these trading posts, by which were . acquired what the same diplomatist says " may be called beneficial interests in those regions by com- mercial intercourse," the probability is that G-reat Britain would now hold no continuous possessions across this con- tinent, 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, i805, and in 1811, Mr. Thomp- son, of the North-west Company,®came down the main branch from the north, whose discovery is thus referred to by the British Plenipotentiary : "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 Pacific." 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 dis- charge in the Pacific Ocean, as secured by the Treaty of Ore- gon, 1846. 388 APPENDIX. With respect to McKenzie's discoveries to the north, no diplomatic reference thereto can be quoted, inasmuch as thero has been no disputed title on the part of any foreign Power to give rise to any controversy upon the subject. It may fairly be urged therefore, that these " Indian Ter- ritories," originally the fruits of Canadian enterprise, persever- ance and industry, should no longer be shut out from the Cana- dian people, but should in fact be united to Canada as a part of the British Dominions, which Canadian subjects have had the merit of acquiring and retaining for the British Crown. Jurisdiction. The question of jurisdiction next comes under consideration, and in this, as regards the Hudson's Bay Company, it is ap- prehended 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 immediately contiguous to settlement, all 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 Territories. By the Imperial Statute 43 George 3, chapter 138, the juris- diction over the Indian Territories and all " parts of America not within the limits of the provinces of Lower or Upper Canada, 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 refer- ence to them. The preamble of the Act, in giving the reason APPENDIX. 389 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, because jurisdiction did exist there. The Act, they said, could not mean all 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 Territories. But the assumption that this Act does not affect their preten- sions is doubly futile ; for, when more closely considered, it either brings their Territories within Canadian 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 Canada The territories referred to in the preamble of the Act are those not within the limits of either Lower or Up- per Canada, the two provinces being treated distinctly as re- gards 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 Temis- camingue, and the places outside its limits on which the Act would have effect, if not the Company's territories, must cer- tainly be something between these limits and their territories. But the question is more important as regards the places outside of Dpper Canada. If the maps accompanying the " Statement of Rights " submitted by Sir J. H. Pelly be correct, then the territory affected by the Act is about 1,500 miles 390 APPENDIX. distant in its nearest part from the most remote point in Canada. In other words, Canada ends at the source of Pigeon River, and the Indian Territories begin at the top of the Rocky 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 which the Act was passed as expressed in the title to be to provide a juris- diction for certain parts of North America adjoining to the said provinces " of Lower and Upper Canada. Consequently, if the territory affected by the Act only commences at the summit of the Rocky Mountains, 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 that on their own shewing 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 sanction of law but in violation of a positive enactment. They must thus either ignore their own pretensions to the territory be- tween what they call the westerly boundary of Canada, and easterly boundary of the " Indian Territories," "or they must admit that the Act under consideration (which is still unre- pealed) applies to their territories, in which case their jurisdic- tion 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 G-eo. 4, Cap. 66, which was passed after all the strife and bloodshed in the north-west, and which, after reciting the doubt raised respecting the former Act being applicable to the Hudson's Bay Company's territories, declares at section 5 in the strongest and most comprehensive manner, that the said Act and all its clauses shall be con- strued to apply to their territories, anything in " any grant or Charter to the Company to the contrary notwithstanding." APPENDIX. 391 This Act, 1 and 2 G-eo. 4, Cap. 66, gives jurisdiction as full and complete as language can make it oyer all the Indian and Hudson's Bay Company's Territories to the Courts of Canada, 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 Canadian Courts are 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, &c." These courts are most dis- tinctly made subordinate to the Courts of Canada, &c, and can in fact be created by and exist through them only. By the 11th and 12th clauses, however, the Crown is em- powered to create Courts of .Record, without the intervention of the Canadian Courts (but without limiting the power to be exercised through them), for the trial of small causes and petty offences, the former being 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 punishment 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 Legis- lature has refrained from expressing any opinion as to what the rights or privileges of the Company really are, and cautiously abstained from recognising any but what they already had " by law" it is difficult to suppose that it was the intention of the Act to recognise in them those very powers which it was making the most ample provision for the exer- 392 APPENDIX. cise of by a totally different authority in strong and repeatedly expressed abnegation of their pretensions. It is also to be observed that the previous Act, 43 G-eo. 3, which denies their jurisdiction is still in force, unrestricted in every particular, and not deriving its force from the subse- quent 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, — loses 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 im- portant cases, either civil or criminal, for trial by the regularly constituted legal tribunals of an organized community, where the Charter of British rights would be held as sacred as the interests of a commercial company who assume to be them- selves the Judges where (without any reflection upon them collectively or individually) cases must, in the very nature of things, arise in which they ought to be judged. It therefore becomes of very great moment to ascertain the truth of certain statements that have been made to the effect that their principal officers at the Red River hold their com- missions from the Crown, and if so, under what form, for what extent of territory, and how described. Such commis- sions might no doubt have been issued under the statute 1 and 2 Geo. 4, for the Hudson's 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 ; but if the British Government has expressly in- cluded the Red River country in any such commissions, 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 erroneous view of the APPENDIX. 393 case they have so constantly disseminated, and no doubt any such powers, if they had been granted, would be withdrawn as soon as the case has been brought fully under the consider- ation 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 Yic, Cap. 48, which re-invests the jurisdiction of Yancouver'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 juris diction 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 Territories upon payment to the Company of the expenses they might have incurred, the value of their establishments, &c. GrENERAL EEMARKS. 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, for ever. The second is the lease originally granted in 1821 to them in conjunction with the North-west Company of Canada for the Indian Territories. The third is their title 394 APPENDIX. 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 Hud- son'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 a renewal of this lease for a further period of 21 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, etc., which they claim under their Charter, absolutely belongs to Canada ; and it will be observed that the abstract right, not the value of the territory, has been dwelt upon, but unfor- tunately 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 Com- panies in 1821. Before that union the Canadian Fur Trade gave employment to some thousands of men as mere carriers, or " Voyageurs " as they were termed. In endeavouring to depreciate the national services ren- dered by the North-west Company during the war of 1812, at the capture of Michilimacinac, &c, Lord Selkirk alludes to this body of men as forming the " Voy agents Corps' 1 but denies credit to the Company for their important services, which he admits "in a great measure secured Canada," be- cause they were not constantly employed by the Company, and effected this service at a season of the year when the Company did not require them. Assuming this to be the fact, APPENDIX. 39'5 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 must have followed the route of such a line of traffic, and the continual intercourse between 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. But the policy of the united Companies has been so admir- ably carried out in all its details, that an erroneous impression respecting the country and everything connected with it had gradually 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 truth. The very appellation of " Hudson's Bay Territory" as applied for instance to the Red River country, carries a false impression with it, for the waters of the Mississippi and the Red River, the Assiniboine and the Missouri, interlace with each other there,. and therefore the designation of " Gulf of Mexico Territory " would just be as correct. But what a different impression it would convey as regards climate. Again, almost every men- tion 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 ice in some shape or other, w 7 hich no doubt the Company truly encounter 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, Pelly'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. Lawrence to the frontiers of Rupert s Land ; but no competition had occurred between the traders of the two countries within the territories of the Hudson's Bay Com- pany previous to the cession of Canada to Great Britain. 396 APPENDIX. " 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 and west of Lake Superior, under the firm of the North-west Company of Montreal." This when discussed is a significant paragraph. Where are " the frontiers of Ruperts Land" if the French, whose Forts were all around Lake Winnipeg, had not reached them before the cession of Canada to G-reat 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 Company " 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 Winnipeg — 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, &c, where the Cana- dians 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 respect- ing the Western portion of this Province, than which there is perhaps no finer country in North America. The same course marks their proceedings at the present moment, for no inti- mation has been given to this country of their intention to apply for a renewal of the lease of the Indian Territories, though, exercising the privileges they do in countries subject to the Canadian Government, it would not have been unrea- sonable 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 APPENDIX. 397 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 only would have been heard in their own ease, 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 measures 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 dur- ing the warfare of the Companies was the result of the strife between them, where there was no sort of authority, except what they seemed 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 au- thority stepped in to control both Companies, implicit obedi- ence was at once yielded to it throughout those vast territories, and either party would have found itself powerless to com- mand followers for any purpose of further aggression. This was 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 Eegent, by authority of a despatch from Earl Bathurst of 6th February, 1817, requiring the mutual restitution ot 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. Galling as this restitution must have been in numerous instances, where party feeling, embittered by the loss of many 398 APPENDIX. lives, had reached the highest pitch of excitement, it was im- mediately complied with. The proper course to pursue, therefore, would be to lay before the Imperial Government the expediency of annexing the Indian Territories to Canada, shewing that by this means only can those countries be retained long in the possession of G-reat Britain. For colonized they must and will be ; 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 animal 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 Kocky 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 Rocky Mountains the climate is mild to a still higher latitude, but Vancouver's Island together with the contiguous main land 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 continuous stream of traffic across 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 dis- tinct thing, be it remembered, from either the old Charter or the expiring Lease) entitles the Hudson's Bay Company to payment of the value of their establishments if the grant be rescinded, which Canada would naturally be expected to pay if APPENDIX. 399 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 expiration of the Lease of the " Indian Territories," it could not be done afterwards, unless indeed the Company have failed to fulfil the conditions re- quired within the first five years. Twelve years ago the United States had no communication with their territories on the Pacific except by sea, and during the Oregon negociations, when proposing strenuous measures upon the subject, the President in his message to Congress, 2nd December, 1845, says : " 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 conside- ration 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 Grulf of Mexico, are the facilities for communication across the con- tinent 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 obstruc- tions, in the lower part near the Lake, from whence the navi- gation is impeded to the very base of the Rocky Mountains. It would be very desirable, therefore, and quite practicable, if the British Government will consent to annex the Indian Territories, extending to the Pacific and Vancouver's Island, to Canada, to establish during summer a monthly communi- cation across the continent. It is of incalculable importance that these measures should be most forcibly impressed upon the Imperial Government at the present juncture, for on their solution depends 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 400 APPENDIX. shall be a counterpoise favourable to British interests and modelled upon British institutions to counteract the pre- ponderating influence — if not the absolute dominion — to which our great neighbour, the United States, must otherwise attain upon this continent. No reference has been here made to the controversy between the Company and those who accuse them of exercising a per- nicious influence over the Indian population, nor is it neces- sary 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 Com- pany, having the primary question of profit and loss as the object of their association. But the question really comes to be, whether those countries shall be kept in statu quo 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 Government* 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-peopJed districts of the country. Joseph Cauchon, Commissioner of Crown Lands. Crow\ Lands Department, Toronto, 1857. APPENDIX. 401 APPENDIX T. No 1. Me.Bearcroft's Opinion as to the Validity of the Charter of the Hudson's Bay Company. Q. 1st. Whether the King, without the co-operation of the other Legislative powers, can grant to any company an exclusive trade for ever, together with a right of seizing the person and goods of a fellow-subject, without legal process ; and if not, whether his having illegally granted such advantages and power, does not anna] the charter? A. I am of opinion that the King, without the assent of Parliament, cannot legally grant to any company, or to any individual, an exclusive trade for ever, together with a right to seize the person and goods of subjects, without process of law ; and that such a grant, if made, is illegal, void, and with- out effect. Q. 2nd. If this Charter is not valid upon the principle above stated, whether it is not voidable by the Company's neglecting to fulfil the views the King had when he granted it ? A . If such a Charter could be considered legal and valid in its commencement, yet it will be voidable by Sci. Fa. if the grantees neglect to endeavour, by reasonable and adequate means, to carry the purpose of it into effect. Q. 3rd. Whether the grant to them, of the right of fishing, is exclusive, or whether the Greenland fishermen, who have a right to fish at Greenland and the seas adjacent, have not a right to fish at Hudson's Bay ? A. The Charter in question, as to so much of it as affects to grant an exclusive trade and inflict penalties and forfeitures, being, as I conceive, illegal and void, I am of opinion that the Greenland fishermen, who have a right to fish there, have also a right to fish in Hudsom's Bay. Q. 4th. If an individual invades the Charter, by fishing or trad- BB 402 APPENDIX. ing in any of the places granted to the Company, and they seize his people, ship or goods, whether they have any and what remedy ? A. If the Hudson's Bay Company, or those acting under their authority, shall venture to seize the person, ship, or goods of a British subject fishing there, the action is by action of trespass against the Company, or against the persons who do the act complained of, which action may be brought in any of the courts of Westminster Hall. Q. 5th. If you should be of opinion that the Charter is in its present form illegal, which is the best way of attacking it — by invading the patent, and permitting them to seize or bring an action, and complaining or defending, according to the cir- cumstances, or by applying to Parliament ? A. It is obvious that the safest way of attacking the Charter is by applying to Parliament or by Sci. Fa., though in case of seizure, I cannot help thinking an action of trespass by the party injured would be successful. Q. 6th. And generally to advise the parties proposing the pre- sent case, who wish to fish and trade in and near Hudson's Bay (and have sent out a ship which means to winter there, unless cut off by the Company's engines, and only wait for yoar opinion whether to send several more), for the best? A. Upon the whole of this case, I am strongly inclined to think that the parties interested, if it is an object of importance to them, may venture to carry on the proposed trade imme- diately. The case of the East India Company and Sandys, determined at such a time, and by such Judges as it was, I cannot take to be law ; and as to the length the said Charter has been granted and enjoyed, it is a clear and a well-known maxim of law, that which is not valid in the beginning can- not become so by lapse of time. (Signed) Edward Bearcroft. I APPENDIX. 403 No. 2. Mk. Gtibbs' Opinion. let. Such a Charter may certainly be good in some cases, but I am of opinion that the Charter in question was originally void, because it purports to confer on the Company exclusive privileges of trading which, I think, the Crown could not grant without the authority of Parliament. In Sandys against the East India Company, Skinn. 132, 165, 197, 223, the argu- ments used against their Charter, which was not then con- firmed by Act of Parliament, appear to me decisive upon the subject; and although both J. Jefferies and the other Judges of the King's Bench decided in favour of the Charter, I have understood that their judgment was afterwards reversed in Parliament. Adam Smith, in his Wealth of Nations, treats it as an ad- mitted point, that the Charter granted to the Hudson's Bay Company, and others of the like sort, not being confirmed by Parliament, are void, which I mention, not as a legal author- ity, but only to shew how the question has been generally un- derstood. 2nd . A Charter may be forfeited on this ground. 3rd. I should doubt whether they had by this acquiescence forfeited their exclusive privilege, if it ever existed ; but this question is immaterial after my answer to the first. 4th. If the former were legal, this would be so likewise. I think them both legal, on the ground of my answer to the first query. 5th. Probably they might prosecute the captain ; but if this question were material, it would be necessary that I should see a copy or abstract of the Charter before I could answer it. 6th. He might, if there were any legal cause of prosecution. 7th. I hardly think that they would be held to fall within this Act, nor does it signify whether they do or not. If my opinion is well founded, the North-West Company may 404 APPENDIX. navigate Hudson's Bay and carry on their trade as they please, without any fear of legal molestation in consequence of the monopoly claimed by the Hudson's Bay Company under their Charter, and I think they may act as if no such Charter existed. (Signed) V. G-ibbs. Lincoln's Inn, June 7th, 1804. No. 3. In the matter of the Hudson s Bay Company's Charter and their Grants to Lord Selkirk. (Copy.) Questions, and Opinion of Sir Arthur Pigott, Mr. Spankie, and Mr. Brougham. — January, 1816. 1st. Whether the exclusive trade, territories, powers and privileges granted by the Charter of Charles the Second, con- firmed by the expired Act of King William, is a legal grant, and such as the Crown was warranted in making ; and if it was, whether it entitles the Company to exclude the Canadian traders from entering their territory to trade with the Indians, and authorises the Governors and other officers appointed by the Company to seize and confiscate the goods of the persons so trading, without the license of the Company ? The prerogative of the Crown to grant an exclusive trade was formerly very much agitated in the great case of " The East India Company versus Sandys." The Court of King's Bench, injwhich Lord Jefferies then presided, held and decided that such a grant was legal. We are not aware that there has since been any decision expressly on this question in the Courts of Law, and most of the charters for exclusive trade and exclusive privileges to companies or associations, have, since the Re volution, received such a degree of legislative APPENDIX. 405 sanction or recognition, as perhaps to preclude the necessity of any judicial decision on it. Much more moderate opinions were, however, entertained concerning the extent of the pre- rogative, after the Revolution, than prevailed in the latter part of the reign of Charles the Second, and in the reign of James the Second, and to those is to be attributed the frequent recourse which, after the Revolution, was had to legislative authority on such cases, and particularly in the very case of this Company, evidenced by the temporary Act of the 2nd of William and Mary, " for confirming to the Governor and Company trading to Hudson's Bay their privileges and trade ;" a confirmation the duration of which the Legislature expressly limited to seven years and the end of the then next session of Parliament, and no longer : and part of the preamble of that Act is, in effect, a legislative declaration of the insufficiency and inadequacy of the Charter for the purposes professed in it, without the aid and authority of the Legislature ; which legislative aid and authority entirely ceased soon after the expiration of seven years after that Act passed. In 1745, indeed, the 18th Geo. II., cap. 17, for granting a reward for the discovery of a North-west Passage through Hudson's Straits, enacts, " that nothing therein contained shall any ways extend, or be construed to take away or prejudice any of the estate, rights or privileges of or belonging to the Governor and Company of* Adventurers of England trading into Hudson's Bay ; " but this provision gives no validity whatever to the Charter, and only leaves its effect and au- thority as they stood before that Act. and entirely unaffected by it. These parliamentary proceedings may at least justify the inference that the extent of the prerogative in this matter was considered as a subject which admitted of great doubt, in times when the independence of the judges insured a more temperate and impartial consideration of it. They may, how- ever, be perhaps considered as too equivocal to afford any certain and conclusive authority on the strict question of law. 406 APPENDIX. Such rights, therefore, as the Hudson's Bay Company can derive from the Crown alone, under this extraordinary Char- ter, such as it is, may not be affected by these proceedings or declarations, and they may now rest entirely upon, and stand or fall by, the Common Law Prerogative of the Crown to make such a grant. Upon the general question of the right of the Crown to make such a G-rant, perhaps it may not be necessary for the present purpose that we should give any opinion. The right of the Crown merely to erect a company for trading by char- ter, and make a grant of territory in King Charles the Second's reign, may not be disputable ; and on the other hand, besides that this Charter seems to create, or attempt to create, a Joint Stock Company, and to grant an exclusive right of trading, there are various clauses in the Charter, particularly those empowering the Company to impose fines and penalties, to seize or confiscate goods and ships, and seize or arrest the persons of interlopers, and compel them to give security in c£l,000, &c, &c, which are altogether illegal, and were al- ways so admitted to be, and among other times, even at the time when the extent of the Prerogative in this matter was maintained at its height, to grant an exclusive right to trade abroad ; and even if, by virtue of their Charter, they could maintain an exclusive right to trade, we are clearly of opinion that they and their officers, agents or servants could not justify any seizure of goods, imposition of fine or penalty, or arrest or imprisonment of the persons of any of His Majesty's sub- jects. Probably the Company would have some difficulty in finding a legal mode of proceeding against any of those who infringe their alleged exclusive lights of trading, or violate their claimed territory ; for we hold it to be clear, that the methods pointed out by the Charter would be illegal, and could not be supported. But we think that the Hudson's Bay Company and their grantee, Lord Selkirk, have extended their territorial claims much farther than the Charter or any sound construction of APPENDIX. 407 it will warrant. Supposing it free from all the objections to which we apprehend it may, in other respects, be liable, the words of the Grant, pursuing the recital of the petition of the grantees, with a yery trifling variation, and with none that can affect the construction of the instrument, are of " the sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks and sounds, in w T hatever latitude they shall be, that lie within the entrance of the Straits, commonly called Hudson's Straits, together with the lands and territories upon the countries, coasts and confines of the seas, bays, lakes, rivers, creeks and sounds aforesaid : " that is, within the Straits — and these limits are frequently referred to in the subsequent parts of the Charter, and always referred to throughout the Charter as "the limits aforesaid." There is indeed (p. 10,) an extension of the right of trade, and His Majesty grants that the Company " shall for ever hereafter have, use and enjoy not only the whole entire and only liberty of trade and traffic, and the whole entire a,nd only liberty, use and privilege of trading and traffic to and from the territories, limits and places aforesaid, but also the whole and entire trade and traffic to and from all havens, bays, creeks, rivers, lakes, and seas into which they may find entrance or passage by water or land, out of the territories, limits and places aforesaid, and to and with all the natives and people, inhabitants, or which shall inhabit within the territories, limits and places aforesaid, and to and with all other nations inhabiting any of the coasts adjacent to the said territories, limits and places aforesaid, which are not already possessed as aforesaid." It is plain, therefore, that the Territorial Grant was not in- tended to comprehend all the lands and territories that might be approached through Hudson's Straits by land or water. The Territorial Grant then appears to be limited by the rela- tion and proximity of the territories to Hudson's Straits. The general description applying to the whole, is the seas, &c, that lie within Hudson's Straits, and the lands, &c, upon the 408 APPENDIX. countries, coasts, and confines of the seas, &c., that is, Redden- do Singula Singulis, the lands upon the countries, coasts, and confines of each of the seas, rivers, &c, naturally including such a portion of territory as might be reasonably necessary for the objects in view ; but it is not a grant of all the lands and territories in which the seas, rivers, &c, lie, or are situ- ated, or which surround them to any indefinite extent or dis- tance from them. Still less is it a grant of all the lands and territories lying between the seas, straits, rivers, &c, though many hundred or thousand miles or leagues of lands and ter- ritories might lie between one sea, strait, river, lake, &c, and another sea, strait, river, lake, &c, and though the quantity of land comprised in this interior situation, and far distant from any coast or confine of the specified waters, might exceed in dimensions the extent of many existing powerful Kingdoms or States. Within the straits, must mean such a proximity to the straits as would give the lands spoken of a sort of affinity or relation to Hudson's Straits, and not such lands as, from their immense distance (in this case the nearest point to Hudson's Bay being 700 miles, and from thence extending to a distance of 1 ,500 miles from it), have no such geographical affinity or relation to the straits, but which are not even ap- proached by the Canadians through or by the straits in ques- tion. The whole Grant contemplates the straits as the access to the lands and territories therein referred to ; and as there is no boundary specified, except by the description of the coasts and confines of the places mentioned, that is, the coasts and confines of the seas, &e. Within the straits, such a boundary must be implied as is consistent with that view, and with the professed objects of a trading company intending, not to found Kingdoms and establish States, but to carry on fisheries on those waters, and to trade and traffic for the acquisition of skins and peltries, and the other articles mentioned in the Charter ; and in such a long tract of time as nearly 150 years now elapsed since the grant of the Charter, it must now be, and must indeed long since have been, fully ascertained by the APPENDIX. 409 actual occupation of the Hudson's Bay Company, what portion or portions of lands and territories in the vicinity, and on the coasts and confines of the waters meniioned and described as within the straits, they have found necessary for their purposes, and for forts, factories, towns, villages, settlements or such other establishments in such vicinity, and on such coasts and con- fines, as pertain and belong to a Company instituted for the purposes mentioned in their Charter, and necessary, useful, or convenient to them within the prescribed limits for the prosecution of those purposes. The enormous extensions of land and territory now claimed appears therefore to us not to be warranted by any sound construction of the Charter ; and if it could be so, we do not know where the land and territory of the Hudson's Bay Company, granted by this Charter, terminates, nor what are the parts of that vast Con- tinent on which they have taken upon them to grant 116,000 miles of territory exempted from their proprietorship under their Charter. Indeed, there may be sufficient reason to suppose that the territories in question, or part of them, had been then visited, traded in, and in a certain degree occupied by the French settlers or traders in Canada, and their Beaver Company erected in 1630, whose trade in peltries was considerable prior to the date of the Charter. These territories, therefore, would be expressly excepted out of the G-rant ; and the right of British subjects in general to visit and trade in these regions would follow the national rights acquired by the King, by the conquest and cession of Canada, and as enjoyed by the French Canadians previous to that conquest and cession. No territorial right, therefore, can be claimed in the districts in question ; and the exclusive trade there cannot be set up by virtue of the Charter, these districts being remote from any geographical relation to Hudson's Bay and to the Straits, and not being in any sense within the straits, and not being approached by the Canadian traders, or other alleged inter- lopers through the interdicted regions. Of course no violence 410 APPENDIX. to or interruption of trade could be justified there under these territorial claims. 2nd. Whether the Hudson's Bay Company were warranted in making aG-rant to Lord Selkirk, as one of their own body, of the immense district of territory described in Governor M'Donell's Proclamation, notwithstanding the opposition of part of the Proprietors of Stock ; and after making such Grant, has the Company any right to exercise their jurisdiction in appointing Governors and other officers over that district ; or can they grant or transfer such power to his lordship? If you should be of opinion that the Grant to his lordship is illegal, unwarrantable by the Charter, what measures ought to be taken to set aside the same ? The validity of the Grant to Lord Selkirk may be consid- ered both as it affects the members of the Company and the public at large. If, contrary to our opinion, the land and territory in ques- tion were within the Grant, then the Grant of so large a por- tion of territory as that to Lord Selkirk, being not less than 116,000 square miles, might perhaps seem an abuse of the Charter, which might justify the interference of the Crown. Because, though the Company might have a right to make grants of land, such Grant must be for the promotion of,oratleast must be consistent with, the object of the Institution. But the Grant to Lord Selkirk tends to an establishment indepen- dent of the Company, inconsistent with the purposes of their Institution and its effects ; erecting a sub-monopoly in one person, to the detriment both of the Company and of the pub- lic. The Company could confer no power upon Lord Selkirk to appoint Governors, Courts of Justice, or exercise any inde- pendent authority, nor could they, directly or indirectly, trans- fer their authority to him, to be exercised by him in his own name. Supposing the Grant of land to be such a Grant as falls within the powers of the Company to make, their supe- rior lordship and authority would continue as before, and must be exercised through them. APPENDIX. 411 3rd. Whether the jurisdiction given by the Act of 43rd G-eo. III. to the Canadian Courts of Criminal Judicature, extends to the Territories of the Hudson's Bay Company, so as to en- title those Courts to try and punish offences committed within those territories ? And whether Governor M'Donell, and Mr. Spencer, his Sheriff, can legally be tried before the Canadian Courts for the offence with which they now stand charged ? There seems no reason to doubt that offences actually com- mitted in the territories and districts in dispute, where no Court of Judicature is or ever has been established, might, in point of jurisdiction, legally be tried by the Courts of Canada, under the 43rd G-eo. III., Cap. 138 ; and indeed, unless this district was within the provisions of that Act, we cannot dis- cover what territory was meant to be included in it ; but we think that though the jurisdiction might be capable of being supported, the acts done by Messrs. M'Donell and Spencer could not be deemed larceny, and that they, or others acting in similar circumstances, ought not to be indicted or brought to a trial for the crime of larceny. They acted, perhaps erro- neously, upon a claim of territorial dominion and of exclusive commercial privilege, and may be liable to be proceeded, against as for a trespass or other injury to persons or property; but we think they could not be properly convicted on a charge of felony. 4th. Is it competent to the Governors and other officers already appointed, or that may be appointed by the Hudson's Bay Company, to seize and bring to trial before their Courts of Judicature, His Majesty's Canadian subjects who may be found trading withm the Company's territories, for infringing the Company's monopoly, or for committing any other alleged crime or offence ? Supposing the Charter of the Company valid, and the dis- tricts in dispute to be within their limits, we should still doubt whether the G-overnor and Company have lawful power by the Charter to establish courts for the trial by the laws of England of offences committed therein. That power the 412 APPENDIX. Company have never yet attempted to exercise, though nearly 150 years have elapsed since they procured their Charter. But if they should still possess the extraordinary power with- out further authority, legislative or regal, we should never- theless think that no Courts there established would have authority to try and punish as an offence the act of going there simply; which, if the G-rant be legal, could amount at the most only to a misdemeanour or contempt of the King's lawful authority, to be prosecuted at the suit of His Majesty. But the Charter itself seems to take the offence, as far as the Company are concerned, out of the jurisdiction of the local Courts by (illegally indeed) prescribing certain forfeitures, and declaring (page 12) " that every the said offenders, for their said contempt to suffer such punishment as to us, our heirs and successors, shall seem meet or convenient, and not to be in amprize (query, mainprize ?) delivered until they and every of them shall become bound unto the said Governor for the time being, in the sum of £ 1,000 at least, at no time there- after to trade," &c. A subsequent clause (page 16) authorizes the seizing and sending to England those who come into their territories without authority. It seems, therefore, that the Courts in question would have no power to try as an offence at common law the mere coming into the Company's territorie s contrary to the prohibition in the Letters Patent, which point out other modes of proceeding, and legally confer no other powers applicable to the case. If the question were merely a question of boundary be- tween two acknowledged adjacent colonies or provinces, it might perhaps be determined by the King in Council, where we apprehend such a jurisdiction is vested, and has been ex- ercised, but that probably would not set at rest the principal points, or prevent interference. The validity of the G-rant of an exclusive trade might, we apprehend, be tried directly by Scire Facias, or incidentally in actions of trespass, which, how- ever, might still leave other main points undecided ; and the Company might perhaps be capable of retaining some part of APPENDIX. 413 what has been granted to them, and might fail as to many- others. In these circumstances, it appears that interests and pretensions so opposite, and which may be productive of so much confusion and disorder, and of consequences so danger- ous and destructive to the persons and properties of those who, by reason of the failure of the ordinary means of pro- tection afforded by the law, may be said to be peculiarly under the safeguard of Grovernment, can only be effectually and satisfactorily adjusted and reconciled by G-overnment, with the aid and authority of Parliament ; and by that authority (after causing such an investigation into them as Grovernment would, in such a case, probably feel it indispensable to make, and are fully possessed by the law officers of the Crown, and otherwise, of all the means of making,) due allowance would be made for such rights of the Company as were deemed legal and well founded, and protection and freedom secured to the Canadians as well as to the rest of the King's subjects,, in the prosecution of that commerce which the Canadians have long enjoyed, and which the rest of the King's subjects have frequently, and whenever they have thought proper, carried on, and which, it is stated to us, they have never been hitherto attempted to be interrupted in by the Hudson's Bay Company. No. 4. Opinion of Richard Bethell, A.Gr., and Henry S. Keat- ing, S.Gr., upon Various Matters Connected with the Charter of the Hudson's Bay Company. Lincoln's Inn, July, 1857. Sir, — We are favoured with Mr. Merivale's letter of the 9th of June ultimo, in which he stated that he was directed by you to transmit to us copies of two despatches from the Grovernor of Canada, inclosing the copy of a Minute of his 414 APPENDIX. Executive Council, and extract from another Minute of the same in reference to the questions respecting the affairs of the Hudson's Bay Company, then under investigation by a Com- mittee of the House of Commons. We were also requested to observe from the former of those Minutes that the Executive Council suggest, on the part of Canada, a territorial claim over a considerable extent of coun- try, which is also claimed by the Hudson's Bay Company, as owners of the soil, and with rights of government and exclu- sive trade under their Charter. "We were also requested to observe by the annexed Parlia- mentary Papers of the 12th of July, I80O, that the statement of the Hudson's Bay Company's rights as to territory, trade, taxation, and government, made by them to Earl Grey, as Secretary for the Colonies, on the 13th September, 1849, was submitted to the then law officers of the Crown, who reported that they were of opinion that the rights so claimed by the Company properly belonged to them, but suggested, at the same time, a mode of testing those claims by petition to Her Majesty, which might be referred to the Judicial Committee. Mr. Merivale was farther to annex a Parliamentary Eeturn made in 1842, containing the Charter of the Company, and documents relating thereto ; and another of 23rd April, 1849, containing, among other papers, an Act of 2nd William and Mary, " for confirming to the Governor and Company trading to Hudson's Bay their privileges and trade." The rights so claimed by the Company have been repeatedly questioned since 1850 by private persons in correspondence with the Secretary of State, and were then questioned to a certain extent, as appears by those despatches, by the present local Government of Canada. Mr. Merivale was also to request that we should take those papers into our consideration, and report — Whether we thought the Crown could lawfully and consti- tutionally raise, for legal decision, all or either of the follow- ing questions : — APPENDIX. 415 The, validity at the present day of the Charter itself . The validity of the several claims of territorial right of government, exclusive trade, and taxation insisted on by the Company. The geographical extent of this territorial claim (supposing it to be well founded to any extent). And if we were of opinion that the Crown could do so, we were requested further to state the proper steps to be taken, in our opinion, by the Crown, and the proper tribunal to be resorted to ; and whether the Crown should act on behalf of the local Government of Canada, as exercising a delegated share of the Royal authority, or in any other way. And, lastly, if we should be of opinion that the Crown could not properly so act, whether we saw any objection to the questions being raised by the local G-overnment of Canada, acting independently of the Crown, or whether they could be raised by some private party in the manner suggested by the law advisers in 1850, the Crown undertaking to bear the expense of the proceedings. In obedience to your request, we have taken the papers into our consideration, and have the honour to report — That the questions of the validity and construction of the Hudson's Bay Company's Charter cannot be considered apart from the enjoyment that has been had under it during nearly two centuries, and the recognition made of the rights of the Company in various acts, both of the Government and the Legislature. Nothing could be more unjust, or more opposed to the spirit of our law, than to try this Charter as a thing of yester- day, upon principles which might be deemed applicable to it if it had been granted within the last ten or twenty years. These observations, however, must be considered as limited in their application to the territorial rights of the Company under the Charter, and to the necessary incidents or conse- quences of that territorial ownership. They do not extend to the monopoly of trade (save as territorial ownership justi- 416 APPENDIX. ties the exclusion of intruders), or to the right of an exclusive administration of justice. But we do not understand the Hudson's Bay Company as claiming anything beyond the territorial ownership of the country they are in possession of, and the right, as incident to such ownership, of excluding persons who would compete with them in the fur trade carried on with the Indians resort- ing to their districts. With these preliminary remarks we beg leave to state, in answer to the questions submitted to us, that in our opinion the Crown could not, with justice, raise the question of the general validity of the Charter ; but that on every legal prin- ciple the Company's territorial ownership of the lands, and the rights necessarily incidental thereto (as, for example, the right of excluding from their territory persons acting in viola- tion of their regulations), ought to be deemed to be valid. But with respect to any rights of government, taxation, ex- clusive administration of justice, or exclusive trade, otherwise than as a consequence of the right of ownership of the land, such rights could not be legally insisted on by the Hudson's Bay Company as having been legally granted them by the Crown. This remark, however, requires some explanation. The Company has, under the Charter, power to make ordi- nances (which would be in the nature of by-laws) for the gov- ernment of the persons employed by them, and also power to exercise jurisdiction in all matters, civil and criminal ; but no ordinance would be valid that was contrary to the Common Law, nor could the Company insist on its right to administer justice as against the Crown's prerogative right to establish courts of civil and criminal justice within the territory. We do not think, therefore, that the Charter should be treated as invalid because it professes to confer these powers upon the Company ; for to a certain extent they may be law- fully used, and for an abuse of them the Company would be amenable to law. APPENDIX. 417 The remaining subject for consideration is the question of the geographical extent of the territory granted by the Charter, and whether its boundaries, can in any and what manner be ascertained. In the case of grants of considerable age, when the words, as is often the case, are indefinite or ambiguous, the rule is, that they are construed by usage and enjoyment, including in these latter terms the assertion of ownership by the Company on important public occasions, such as the Treaties of Ryswick and Utrecht, and again in 1750. To these elements of consideration upon this question must be added the enquiry (as suggested by the following words of the Charter, viz., " not possessed by the subjects of any other Christian prince or state "), whether, at the time of the Charter, any part of the territory now claimed by the Hudson's Bay Company could have been rightfully claimed by the French as falling within the boundaries of Canada or Nouvelle France, and also the effect of the Acts of Parliament passed in 1774 and 1791. Under these circumstances, we cannot but feel that the im- portant question of the boundaries of the Hudson's Bay Com- pany might with great utility, as between the Company and Canada, be made the subject of a quasi-judicial inquiry. But this cannot be done except by the consent of both parties, namely, Canada and the Hudson's Bay Company ; nor would the decision of a Committee of the Privy Council have any effect as a binding judicial determination. But if the Hudson's Bay Company agree to the proposal of the Chief Justice of Canada, that the question of boundaries should be referred to the Privy Council, it being further under- stood by both parties that the determination of the Council shall be carried into effect by a declaratory Act of Parliament, we think the proceeding would be the best mode of deter- mining that which is, or ought to be, the only real subject of controversy. The form of procedure might be a petition to the Queen by Chief Justice Draper, describing himself as acting under the cc 418 APPENDIX. direction of the Executive Council of Canada, unless, which would be the more solemn mode, an address were presented to Her Majesty by the Canadian Parliament. Counsel would be heard on behalf of Canada, and of the Company. We are, &c, (Signed) Richard Bethell, Henry S. Keating The Eight Honourable H. 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