lands and territories in the vicinity, and on the coast and confines of the waters mentioned and described as within the Straits, they had found necessary for their purposes and for forts, factories, towns, villages, settlements, or such other establishments in such vicinity and on such coasts and confines as pertain and belong to a Company established for the purposes mentioned in their Charter, and necessary, useful and convenient to them, within these prescribed limits, for the prosecution of these purposes: and they say, that the enormous extension of land now claimed (and they had reference only to the Red River District transferred in 1812 by the Company to Lord Selkirk; for no pretence was ever made by the Hudson Bay Company that Rebaska, Rat River, or Árthabaska, was within the chartered boundaries, till it was first put forth in this case), appears therefore, not to be warranted by any sound construction of the Charter. Sir Samuel Romilly, Scarlett, afterwards Lord Abinger, and others consulted in 1814 by the Hudson's Bay Company, were of opinion that the grant of land contained in the Charter was good; and that, moreover, it would include all the countries the waters of which flow into Hudson's Bay.

All this is pretty vague; and what is most apparent and precise, in these opinions, is the different way in which they view the Charter and the western limits of the Company's territories. The Charter grants the right of exclusive trade and commerce of all seas. straits, rivers, &c., that lie within the entrance of Hudson's Straits; also together with all lands and territories upon the countries, coasts and confines of the seas, bays, lakes, rivers, creeks, and sounds aforesaid. It seems to me, if these words, taken together, are susceptible of any reasonable construction or interpretation, they were intended to concede a vast extent of country round the whole coast of Hudson's Bay and the rivers flowing into it; that all the regions westward from the shores of the Bay along the great rivers, tributaries of that inland sea, so far as those streams are navigable for the purpose of trade and commerce, are included in the grant; in other words, their limits extended as far west as the head of the water-sbed where navigation ceases, in longitude west, 95°.

Assuming this view to be correct, yet the Athabaska region would not be included within the western boundaries of the Company's territory. The Elk, or Athabaska River, rises in the Rocky Mountains, and, after flowing north and west 300 miles, discharges its waters into Lake Athabaska, otherwise known as the Lake of the Hills. By two outlets, the waters of Lake Athabaska flow into Peace River, an affluent of the MacKenzie, through it to the Frozen Ocean. It is idle, therefore, in the opinion of the Court, to contend that Rat River or the Athabaska country are or were ever within the chartered limits of the Hudson's Bay territories. *

*

*

By the 10th Article of the Treaty of Utrecht it is provided that :-"X. The said Most Christian King shall restore to the Kingdom and Queen of Great Britain to be possessed in full right forever, the Bay and Straits of Hudson, together with all lands, seas, sea-coasts, rivers, and places situate in the said bay and straits, and which belong thereunto, no tracts of lands or of sea being excepted, which are at present possessed by the subjects of France."

The Hudson's Bay territory, as described in the latter treaty, would seem to be restricted to the limits contended for by Lord Brougham, rather than to those laid down by Sir Samuel Romilly; and in any case, I believe, as before stated, that the Athabaska region was beyond and without the chartered limits of the Company, and could not, therefore, come under the operation of that grant. There may, moreover, be urged another reason, and in my opinion successfully, why the Athabaska country should be excluded from the limits of the Hudson Bay territory, and an argument more cogent than that to be found in the vague and doubtful terms of the Charter. It is declared by that remarkable instrument, that the grant is made of all those seas, bays, straits, &c., together with all lands and territories, &c., 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. Now, as I have before remarked, it appears to me to be beyond controversy that in 1670 the Athabaska country belonged to the Crown of France.

It had previously been discovered by French colonists, and been more or less explored by these adventurers and the trading companies of New and Old France. It is true their settlement and occupation was not precisely that of colonists; but they were traders with trading posts, explorers, hunters, discoverers, carrying on a trading intercourse with the natives. If this be true, and there can be no doubt of it, the region in question was ex

pressly excepted out of that grant; and such was the opinion of Lord Brougham and his associate counsel.

*

*

*

It will be observed that between 1670 and 1763, nearly one hundred years had elapsed, and during that period the French colonists and French trading companies had made settlements and established trading posts as far as the Rocky Mountains; that these countries were in the occupation of the French.

XIII.

Jocuments and Arguments Supporting Ontario's Claims.

MEMORANDUM FROM CHIEF JUSTICE DRAPER, AGENT OF THE PROVINCE OF CANADA, ENCLOSED IN LETTER TO THE SECRETARY OF STATE, MAY 6TH, 1857.*

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

The parts of the Charter bearing on this question are as follows:

1.-"All the lands and territories upon the countries, coasts, and confines of the seas, bays, lakes, rivers, creeks and sounds aforesaid "(stated in a preceding part to be those which lie within the entrance of the straits, commonly called Hudson's Straits, in whatsoever latitude such bays, &c., should be), "that are not already actually possessed by or granted to any of our subjects, or possessed by the subjects of any other Christian prince or state, with the fishing of all sorts of fish, whales, sturgeons, and all other royal fishes in the seas, bays, inlets, and rivers within the premises; and the fish therein taken, together with the royalty of the sea upon the coasts within the limits aforesaid, and all mines royal, as well discovered as not discovered, of gold, silver, gems, and precious stones, to be found or discovered within the territories, limits, and places aforesaid; and that the said land be from henceforth reckoned and reputed as one of our plantations or colonies in America, called Rupert's Land: And, further, we do by these presents, for us, our heirs and successors, make, create, and consti tute the said Governor and Company for the time being, and their successors, the true and absolute lords and proprietors of the same territory, limits, and places aforesaid, and of all other the premises hereby granted as aforesaid, with their and every of their rights, members, jurisdictions, prerogatives, royalties, and appurtenances whatsoever, to them, the said Governor and Company, and their successors for ever, to be holden of us, our heirs and successors, as of our Manor of East Greenwich, in our County of Kent, in free and common soccage."

And, 2." And furthermore, we do grant unto the said Governor and Company, and their successors, that they and their successors, and their factors, servants, and agents, for them and on their behalf, and not otherwise, shall forever hereafter have, use and enjoy, not only the whole, entire, and only trade and traffic, and the whole, entire and only liberty, use and privilege of trading and trafficking to and from the territory, limits and places aforesaid. but also the whole and entire trade and traffic to and from all havens, bays, creeks, rivers,

Printed in the Report from the Select Committee [of the House of Commons] on the Hudson's `ay Company, etc., 1857, p. 374.

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 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 which are not granted to any of our subjects."

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

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

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

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

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

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

well

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

in the

At this time all their forts but one (Albany Fort) had been taken by the French;

some of them, indeed, while the two Crowns were at peace; an act of aggression specially referred to by His Majesty in the declaration of war in 1689.

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

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

*

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

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

In August, 1714, in reference to the same treaty, the Hudson's Bay Company proposed that the limits between the English and French on the coast of Labrador, should commence from the island called Grimington's Island or Cape Perdrix, in the latitude of 584 N., which they desire may be the boundary between the French and English on the coast of Labrador; and that a line be drawn south-westerly, to pass through the centre of Lake Mistassinnie; and from that lake a line to run south-westward into 49° north latitude; and that such latitude be the limit, that the French do not come to the north nor the English to the south of it.

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

In August, 1719, the Hudson's Bay Company acknowledges the surrender by the French of the Straits and Bay, in such manner that they had nothing to object or desire further on that head. But they urged the settlement of the limits between the English and French territories without delay, since the French subsequently to the conclusion of the

* L'Escarbot describes Canada at the period of the appointment of De la Roche, in 1598, thus; "Ainsi notre Nouvelle France a pour limites du côté d'ouest les terres jusqu'à la Mer Pacifique au delà du Tropique du Cancer, au midi les îles de la Mer Atlantique du côté de Cuba l'île Espagnole, au levant la Mer du Nord qui baigne la Nouvelle France; et au septentrion cette qui est dite inconnue vers la Mer Glacée jusqu'à la Pole Arctique."

peace (in 1715) made a settlement at the head of Albany River, upon which the Company's principal factory was settled, whereby they interrupted the Indian trade from coming to the Company's factories. It was therefore proposed and desired, "that a boundary or dividend line may be drawn so as to exclude the French from coming anywhere to the northward of the latitude of 49°, except on the coast of Labrador; unless this be done, the Company's factories at the bottom of Hudson's Bay cannot be secure, or their trade preserved."

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

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

con

The foregoing extracts are deemed sufficient to establish what the Company sidered their territorial rights in reference to their connection with and proximity to Hudson's Bay itself, where they had planted their factories, and desired to attract the Indian trade. They certainly show that neither after the treaty of Ryswick, nor that of Utrecht, when they stated the boundaries, they were either willing to submit to, or were desirous of obtaining, nor yet in 1750, when they set forth what they thought themselves entitled to claim under their Charter, did they ever think of asserting a right to all the countries the waters of which flow into Hudson's Bay. Their claims to lands lying both northward and westward of the Bay are entirely at variance with any such idea. Sir J. Pelly, before a (ommittee of the House of Commons, in March, 1837, seems to have adhered to the views expressed in 1750, when he said "the power of the Company extends all the way from the boundaries of Upper and Lower Canada away to the North Pole, as far as the land goes, and from the Labrador coast all the way to the Pacific Ocean," though he afterwards explains that the Company claimed in fee-simple all the lands the waters from which ran into the Hudson's Bay.

It is submitted, that if this latter claim were well founded, the further grant in the Charter of exclusive trade beyond the limits of the territories granted in fee-simple, would