give colour to the assertion of the "power" of the Company extending to the Pacific; assuming that the word "power was used to designate the exclusive right of trade, and not the ownership of the territory. For if the Charter gives the fee-simple of the lands to the Rocky Mountains, the Pacific is a "Sea," and Frazer's and McKenzie's are "rivers," into which "entry or passage by water or land out of the territories" actually granted may be found; though in such case the application for a license for the exclusive trade would, if the Charter be in this respect valid, have been unnecessary.

The French Government, it appears, would not agree to the proposal which would have limited them to the 49th parallel. Colonel Bladen, one of the British Commissioners under the Treaty of Utrecht, wrote from Paris in 1719 in reference thereto, "I already see some difficulty in the execution of this affair, there being at least the difference of two degrees between the best French maps and that which the Company delivered us." No settlement of the boundary could be arrived at.

If the later claim of territorial limits had been advanced during this negotiation, there can be no doubt it would have been resisted even more strenuously than the effort to make the 49th parallel the boundary was, not merely by contending that the territory so claimed formed part of Canada, and had been treated as such by the French long before 1670, but also that the French King had exercised an act of disposition of them, of the same nature as that under which the Hudson's Bay Company claim, by making them the subject of a Charter to a Company under the Sieur de Caen's name, and after the dissolution of that Company had, in 1627, organized a new Company, to which he conceded the entire country called Canada. And this was before the Treaty of St. Germain en Laye, by which the English restored Canada to the French. In 1663, this Company surrendered their Charter, and the King, by an edict of March in that year, established a council for administration of affairs in the colony, and nominated a Governor; and about 1665, Monsieur Talon, the Intendant of Canada, despatched parties to penetrate into and explore the country to the west and north-west, and in 1671 he reported from Quebec that the "Sieur du Lusson is returned, after having advanced as far as 500 leagues from here, and planted the cross, and set up the King's arms in presence of 17 Indian nations assembled on the occasion from all parts, all of whom voluntarily submitted themselves to the dominion of His Majesty, whom alone they regard as their sovereign protector."

The French kept continually advancing forts and trading posts in the country, which they claimed to be part of Canada: not merely up the Saguenay River towards James' Bay, but towards and into the territory now in question, in parts and places to which the Hudson's Bay Company had not penetrated when Canada was ceded to Great Britain in 1763, nor for many years afterwards.* They had posts at Lake St. Anne, called by the older geographers Alenimipigon; at the Lake of the Woods; Lake Winnipeg; and two, it is believed, on the Saskatchewan, which are referred to by Sir Alexander M'Kenzie in his account of his discoveries.

Enough, it is hoped, has been stated to show that the limits of the Hudson's Bay Company's territory are as open to question now as they have ever been, and that when called upon to define them in the last century, they did not advance the claim now set up by them; and that even when they were defining the boundary which they desired to obtain under the Treaty of Utrecht, at a period most favourable for them, they designated one inconsistent with their present pretensions, and which, if it had been accepted by France, would have left. no trifling portion of the territory as part of the Providce of Canada.

So far as has been ascertained, the claim to all the country the waters of which ran into Hudson's Bay, was not advanced until the time that the Company took the opinions of the late Sir Samuel Romilly, Messrs. Cruise, Holroyd, Scarlett, and Bell. Without presuming in the slightest degree to question the high authority of the eminent men abovenamed, it may be observed that Sir Arthur Piggott, Sergeant Spankie, Sir Vicary Gibbs, Mr. Bearcroft, and Mr. (now Lord) Brougham took a widely different view of the legal validity of the Charter, as well as regards the indefinite nature of the territorial grant, as in other important particulars.

In the evidence given by the Honourable William M'Gillivray, on one of the North-West trials at York (tow Toronto), in 1818, he stated that there were no Hudson Bay traders established in the In iian country about Lake Winnipeg or the Red River for eight or nine years after he had been used (as a partner in the North-West Company) to trade in that country.

Of the very serious bearing of this question on the interests of Canada, there can be no doubt. By the Act of 1774, the Province of Quebec is to "extend 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 Hudson's Bay."

And in the division of the Provinces under the statute of 1791, the line was declared to run due north from Lake Temiscaming "to the boundary line of Hudson's Bay;" and the Upper Province is declared to consist "of or include all that part of Canada lying to the westward and southward of the said line.”

The union of the Provinces has given to Canada the boundaries which the two sepa rate Provinces of Upper and Lower Canada had; the northern boundary being the terri tory granted to the Hudson's Bay Company.

It is now becoming of infinite importance to the Province of Canada, to know accurately where that boundary is. Plans for internal communication connected with schemes for agricultural settlements, and for opening new fields for commercial enterprise, are all, more or less, dependent upon or affected by this question, and it is to Her Majesty's Government alone that the people of Canada can look for a solution of it. The rights of the Hudson's Bay Company, whatever they may be, are derived from the Crown; the Province of Canada has its boundaries assigned by the same authority; and now that it appears to be indispensable that those boundaries should be settled, and the true limits of Canada ascertained, it is to Her Majesty's Government that the Province appeals to take such steps as in its wisdom are deemed fitting or necessary to have this important question

set at rest.

PAPER RELATIVE TO CANADIAN BOUNDARIES, DELIVERED BY CHIEF JUSTICE DRAPER TO THE HOUSE OF COMMONS COMMITTEE, MAY 28, 1857.*

On the 25th January, 1696-7, not long before the Treaty of Ryswick (which was signed on the 20th September, 1697), the Hudson's Bay Company expressed their desire that whenever there should be a treaty of peace between the Crowns of England and France, that the French may not travel or drive any tra le beyond the midway betwixt Canada and Albiny Fort, which we reckon to be within the bounds of our charter."

The 8th Article of the Treaty of Ryswick shows that the French at that time, set up a claim of right to Hudson's Bay, though that claim was abandoned at the peace of Utrecht, and was never set up afterwards.

In 1687, James the Second declared to the French Commissioners, MM. Barillon and Bonrepos, that having maturely considered his own rights, and the rights of his subjects, to the whole Bay and Straits of Hudson, and having been also informed of the reasons alleged on the part of the French to justify their late proceedings in seizing those forts (Fort Nelson and Fort Charles), which for many years past have been possessed by the English, and in committing several other acts of hostility, to the very great damage of the English Company of Hudson's Bay, His Majesty, upon the whole matter, did consider the said Company well founded in their demands, and, therefore, did insist upon his own right and the right of his subjects to the whole Bay and Straits of Hudson, and to the sole trade thereof.

"The grants of the French King signify nothing to another prince his right, and they may name what they will in their grants, places, known or unknown, but nobody is so weak as to think that anything passeth by those grants but what the King is rightfully and truly possessed of or entitled to, for nemo dut quod non habet is a maxim understood of all; but whereas the French would have no bounds to Canada to the northward, nor, indeed, to any parts of their dominions in the world if they could."-Extract from the Reply of the Hudson's Bay Company to the French Answer left with the English Commissioners, 5th June, 1699, under Treaty of Ryswick.

In 1687 there were discussions between the English and French respecting the right

From the Report of the Select Committee [of the House of Commons] on the Hudson's Bay Company, etc., 1857, p. 378.

to the Bay and Straits, in which it was, among other things, submitted on the part of the Hudson's Bay Company as follows: "It shall not be the fault of the Company of Hudson's Bay, if their agents and those of the Company of Canada do not keep within their respective bounds, the one pretending only to the trade of the Bay and Straits above-mentioned, whilst the other keeps to that of Canada; and that the forts, habitations, factories and establishments of the English Company be restored, and their limits made good, as the first discoverers, possessors and traders thither."

The Company having already waived the establishments of a right to Hudson's Bay and Straits "from the mere grant and concessions of the King, which, indeed, cannot operate to the prejudice of others that have the right of discovery and continued possession on their side, it is again averred that His Majesty's subjects only are possessed of such a right to the coasts, bays, and straits of Hudson.'

"The Hudson's Bay Company having made out His Majesty's right and title to all the bay within Hudson's Straits, with the rivers, lakes and creeks therein, and the lands and territories thereto adjoining, in which is comprehended Port Nelson as part of the whole,”. 10th July, 1700,-the Hudson's Bay Company proposed the following limits between themselves and the French, in case of an exchange of places, and that they cannot obtain the whole of the Straits and Bay which of right belongs to them.

1. That the French be limited not to trade nor build any factory, &c., beyond the bounds of 53° N. or Albany River, to the northward on the west or main coast, and beyond Rupert's River, to the northward on the east main coast.

2. The English shall be obliged not to trade nor build any factory, &c., beyond the aforesaid latitude of 53° or Albany River, or beyond Rupert's River, south-east towards Canada, on any land which belongs to the Hudson's Bay Company.

3. As likewise that neither the French nor English shall at any time hereafter extend their bounds contrary to the aforesaid limitations which the French may very reasonably comply with, for that they by such limitations will have all the country south-eastward betwixt Albany Fort and Canada, to themselves, which is not only the best and most fertile part, but also a much larger tract of land than can be supposed to lie to the northward, and the company deprived of that which was always their undoubted right. By this document it appears the French were insisting on having the limits settled between York and Albany Fort, as in the latitude of 53° or thereabouts.

22 January, 1701-2, the Lords of Trade and Plantations asked the Company to say "whether, in case the French cannot be prevailed with to consent to the settlement proposed on the 10th July preceding by the Company, they will not consent that the limits on the east side of the Bay be the latitude of 52." This proposal would have given the East Main River and Rupert's River to Canada.

On the 29th January, the Hudson's Bay Company alter their proposals, offering the boundary on the east main or coast, to be Hudson's River, vulgarly called Canute, or Canuse River (which I take to be the river now marked on the maps as the East Main River); but, they add, should the French refuse the limits now proposed by the Company, the Company think themselves not bound by this or any former concessions of the like nature, but must (as they have always done) insist upon their prior and undoubted right to the whole Bay and Straits of Hudson, which the French never yet would strictly dispute, or suffer to be examined into (as knowing the weakness of their claim), though the first step in the 8th Article of the Treaty of Ryswick directs the doing of it. If either proposal had been accepted, the French would have had access to James' Bay. The first propositions left them Moose River; the second appears to have given up Rupert's River.

In February, 1711-12, prior to the Treaty of Utrecht, the Hudson's Bay Company proposed that the limits between them and the French in Canada should begin "at Gremmington's Island, or Cape Perdrix, in the latitude of 581 north, which they desire may be the boundary between the English and French, on the coast of Labrador, towards Rupert's Land on the East Main, and Nova Britannia on the French River." line be drawn from Cape Perdrix to the Great Lake Mistassing, dividing the same into two parts, beyond which line the French were not to pass to the north, nor the English to the south.

That a

In August, 1717, they renewed their application for the settlement of the limits, adding to their former proposition, that from the Lake Mistassing a line should run south-westward

into 49° north latitude, and that such latitude be the limit, and that the French do not come to the north, or the English to the south of the boundary.

In August, 1719, in a memorial, they say that." the surrender of the Straits and Bay aforesaid has been made according to the tenure of the Treaty, at least in such manner that the Company acquiesced therein, and have nothing to object or desire further on that head." But they even then complained that since the conclusion of the peace, viz., in 1715, "the French had made a settlement at the head of Albany River, upon which very river our principle factory is settled, whereby they intercept the Indian trade from coming to the fac tories; and will, in time, utterly ruin the trade, if not prevented. It is, 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 is done, the Company's factories at the bottom of Hudson's Bay cannot be secure, or their trade preserved." This shows that the Company there sought to establish an arbitrary boundary, and that the object of it was to secure the fur trade from the French.

The English Commissioners made the demand to have limits established according to the prayer of the Hudson's Bay Company, and for the giving up the new fort erected by the French: adding a demand that the French should make no establishments on any of the rivers which discharged themselves into Hudson's Bay; and that the entire course of the navigation of these rivers should be left free to the Company, and to such of the Indians as desired to trade with them.

The precise terms of the instructions to the Commissioners hardly seem to have contemplated the latter part of the demand, for they (the instructions of 3rd September, 1719) merely designate the boundaries beyond which the French and English respectively are not to cross. They contain this passage, however: "But you are to take especial care in wording such articles as shall be agreed upon with the Commissioners of his Most Christian Majesty upon this head that the said boundaries be understood to regard the trade of the Hudson's Bay Company only."

Colonel Bladen, on the 7th November, 1719, wrote to the Lords of Trade that the English Commissioners would that day deliver in the demand, and that he foresaw "some difficulty in the execution of this affair, there being at least the difference of two degrees between the best French maps and that which the Company delivered us, as your Lordship will perceive by the carte I send you herewith."

Colonel Bladen was right. After receiving the English demands, the French Commissioners, the Maréchal d'Estrées and the Abbé Dubois, never met the English Commissioners again, and all the instances of the English Ambassadors failed to procure a renewal of the conferences.

and

The Company were again called upon on the 25th July, 1750, to lay before the Lords of Trade an account of the limits and boundaries of the territory granted to them. They replied, among other things, that the said Straits and Bay "are now so well known, that it is apprehended 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 same 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 of the said Company's territories; 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; then 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 those 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," they propose the line already set out by them, before and soon after the Treaty of Utrecht, stating that the Commissioners under that treaty were never able to bring the settlement of the said limits to a final conclusion; but they urged that the limits of the territories granted to them, and of the places appertaining to the French, should be settled upon the footing above mentioned.

MEMORANDUM FROM HON. JOSEPH CAUCHON, 1857.*

THE COMMISSIONER OF CROWN LANDS SUBMITS THE FOLLOWING REMARKS ON THE NORTH-WEST TERRITORIES OF CANADA, HUDSON'S BAY, THE INDIAN TERRITORIES, AND THE QUESTIONS OF BOUNDARY AND JURISDICTION CONNECTED THEREWITH.

The question now under special consideration has more particular reference to the subject of the renewal of a Lease held by the Hudson's Bay Company for the "Indian Territories," which are not considered to be within the boundaries of Canada, though subject to Canadian jurisdiction.

But the Hudson's Bay Company's "Map and Statement of Rights," under their original Charter, as submitted to the Imperial Government in 1850, by Sir J. H. Pelly, the Chairman of the Company, has also, however, to be considered in connection with it.

It becomes necessary, therefore, to expose the fallacies of the "Statement of Rights and Map" referred to, in order that the rights of the Province may not be misunderstood or the pretensions of the Company taken for granted.

The rights of the Hudson's Bay Company and the effect of their operations upon the interests of Canada, will best be considered under the following separate heads, viz. :

First-With respect to their operations under the original Charter on the territories affected thereby.

Second-With respect to their operations within the boundaries of this Province. Third-With respect to their operations on what has been termed the Indian Territories, now under lease to them.

Fourth-Arising out of the foregoing, the more important question of the boundaries of the above Territorial Divisions; and

Fifth-With respect to jurisdiction, as exercised, and as sanctioned by law.

OPERATIONS OF THE COMPANY ON THEIR OWN TERRITORIES.

On the first head, as regards their operations under their Charter on the territories which, if valid, it would cover, it is a matter of very secondary importance to Canada. The territories of the Hudson's Bay Company, taken at the largest extent which any sound construction of their Charter in connection with international rights would warrant, if not in point of distance so very remote, are nevertheless so situated, that it can only be when all the localities to the south and west, more available for purposes of agriculture and settlement, have been filled to overflowing, that settlers may be gradually forced into that vicinity from the superabundant population of more favoured countries.

The most direct interest that Canada could have in the matter at the present moment, being responsible for the administration of justice there, would be rather of a moral and political than of an interested or commercial character. But as the necessities of the Company, in whose hands a monopoly of the trade has practically existed since the Treaty of Utrecht, together with the powers which they profess to derive from their Charter, has induced them to establish a jurisdiction which, for the moment, seems to have been successful in maintaining tranquillity and order, Canada has had no special reason to intervene, though if any complaints had been made on this score she would of course have felt called upon to exercise the powers vested in her by Imperial Statutes.

It is not, indeed, to be denied that the freedom of the trade, consisting of furs and fisheries, would be of advantage to this country; but as this involves a question of the validity of the Charter, and whether or not, if valid in respect of the territory really affected by it, it would also affect the open sea of the Bay, and seeing that the question is not now raised of any further legislation to give effect to the powers it professes to confer, the consideration of this point is immaterial at the present moment, compared with the more important subjects that have to be treated of.

* Appendix No. 17 (B.) to Vol. XV., of the Journals of the Legislative Assembly of the Province of Canada, 1857.