have arisen between them, but we have here one of the parties, familiar with the country, declaring that any other line would be impracticable. That, I submit, is a sufficient reason for adopting that line.

Sir ROBERT COLLIER.-Who says that?

Mr. MOWAT.-The Hudson's Bay Company, through whom the present defendants are claiming. They say it is impracticable. The advantages of this line, over any other are really enormous. It is impossible to state them too highly. The cost, which I referred to in my opening, of running an astronomical line, would be very large and out of proportion to the value of the territory, and, when done, would be an extremely inconvenient line. Now, convenience is of course an important element of decision, when there is nothing else to go by. It is not to over-ride more important elements, but we have nothing else to go by here, and when I mention that, and refer to what I propose as being analogous to what is done in other cases, where the natural boundary is taken into account by the Courts in the absence of other controlling considerations, I think I have said on that point all that I have to say to your Lordships.

[Counsel and parties retired for a time to permit their Lordships to deliberate. Upon their re-admission :-]

The LORD CHANCELLOR.-Counsel are probably aware that the practice of their Lordships in references of this character has always been not to deliver a judgment, with reasons, but to make a report to Her Majesty, upon which Her Majesty will act, or not, as she may be advised; and that course will be followed upon the present occasion. Their Lordships see no reason why they should deviate from that, even if it were clear that it would be consistent with their duty to do so. It is right to mention to counsel, that their Lordships will not consider it to be their duty to say anything about any boundary except the boundary between the two provinces of Ontario and Manitoba.

Whatever is beyond that will not enter into the report which they will make to Her Majesty.

APPENDIX.

A.-Award of the Arbitrators.

[Note, as to the limitation of the Western Boundary to the line of the Lake of the Woods.] B.-Deduction of the claims of the Hudson's Bay Company and the French and English Crowns respectively.

C.-Imperial Order in Council, 11th August, 1884.

D.-Joint Address of the Senate and Commons of Canada to Her Majesty, with the proceedings in Parliament thereon.

E,-Imperial Act, 52 and 53 Vict., chap. 28.

A.

AWARD OF THE ARBITRATORS.

To all to whom these presents shall come:

The undersigned, having been appointed by the Governments of Canada and Ontario as arbitrators to determine the northerly and westerly boundaries of the Province of Ontario, do hereby determine and decide the following are and shall be such boundaries; that is to say :

Commencing at a point on the southern shore of Hudson Bay, commonly calied James' Bay, where a line produced due north from the head of Lake Temiscaming would strike the said south shore; thence along the said south shore westerly to the mouth of the Albany River; thence up the middle of the said Albany River and of the lakes thereon, to the source of the said river at the head of Lake St. Joseph; thence, by the nearest line, to the easterly end of Lac Seul, being the head waters of the English River; thence westerly, through the middle of Lac Seul and the said English River, to a point where the same will be intersected by a true meridional line drawn northerly from the International Monument placed to mark the most northwesterly angle of the Lake of the Woods by the recent Boundary Commission; and thence due south, following the said meridional line, to the said International Monument; thence southerly and easterly, following upon the international boundary line between the Brivish possessions and the United States of America, into Lake Superior.

But if a true meridional line drawn northerly from the said international boundary at the said most north-westerly angle of the Lake of the Woods shall be found to pass to the west of where the English River empties into the Winnipeg River, then, and in such case, the northerly boundary of Ontario shall continue down the middle of the said English River to where the same empties into the Winnipeg River, and shall continue thence, on a line drawn due west from the confluence of the said English River with the said Winnipeg River, until the same will intersect the meridian above described; and thence due south, following the said meridional line, to the said International Monument; thence southerly and easterly, following upon the international boundary line between the British possessions and the United States of America, into Lake Superior.*

Given under our hands, at Ottawa, in the Province of Ontario, this third day of August, eighteen hundred and seventy-eight.

Signed and published in the presence of—

E. C. MONK,
THOMAS HODGINS.

ROBT. A. HARRISON,
EDWD. THORNTON,
F. HINCKS.

* [NOTE as to the limitation of the Western Boundary to the line of the Lake of the Woods]:The Rupert's Land Act, 1868, declares that the term " 'Rupert's Land" shall mean all the lands held, or claimed to be held" by the Hudson's Bay Company-that is, Ontario contended, "all the lands rightfully held, or rightfully claimed to be held."

Among the lands which the Company so claimed to hold under their Charter, were the 100,000 square miles subsequently adjudged to have been, and to be, within the limits of Ontario.

The Company made the like claim to the Red River country, and in fact to the whole of the NorthWestern Territory, outside of the Arctic slope; but with no better foundation, as was demonstrated by the evidence in this case, which conclusively established that the North-West had been an integral part of French Canada, and as such had been ceded, as an inseparable parcel of the whole, to the British Crown, by the Treaty of 1763.

On this ground, and as being so within the scope of the various acts of the Crown and Parliament, of 1774, 1786 and 1791, the North-West was claimed by Ontario, before the Arbitrators, and before the Privy Council, as being within the true limits of the Province.

That this claim of Ontario was only in part allowed-in having the line of its westerly limit drawn at the Lake of the Woods, instead of at the sources of the Saskatchewan-may be assumed to have been due to consideration's which had no reference whatsoever to any supposed rights of the Hudson's Bay Company.

On the part of the Arbitrators, we are authoritatively informed that they entertained doubts, and that "the only questions of doubt were decided in favour of the Dominion; both on the west and north, the doubts were whether Ontario should not have had more territory."

Throwing aside the suggestion of any unconscious, though natural, leaning to decide the case of doubt against what some might consider the impolicy of giving to any one Province the preponderating influence in the Confederation which could not but result from the assignment to it of so vast a territory-it does not appear difficult to come to a correct conclusion as to what these doubts really were. The Arbitrators cannot but have felt impelled, in strictness, to favour the adoption of the line of the westerly and northerly watershed of the Saskatchewan, which seemed to Ontario to be clearly pointed out by, among others, the following facts and pieces of evidence :-(a) the actual occupation of the whole by France, (b) the terms of the Quebec Act, 1774; which embraced as well the "several colonies and settlements of the subjects of France as "all the territories, islands and countries in North America, belonging to the Crown of Great Britain, bounded on the south by a line " described in the Act, and on the north by "the territories granted to the Merchants Adventurers of England trading to Hudson's Bay," (c) the Royal Commission of 1786, (d) the Order in Council and the Proclamation respectively, of 1791, approved in effect by the Act of the same year, which are clear evidence that Upper Canada embraced "all the territory to the westward and southward of the [interprovincial line and of the boundary line of Hudson's Bay] to the utmost extent of the country commonly called or known by the name of Canada "-that is, the Canada of the French, which extended as far at least as to the westerly and northerly watershed of the Saskatchewan, if not to Athabasca. It had seemed to Ontario that these authorities-not in any wise qualified on a true construction of the other pieces of evidence relating to the subject-indicated with sufficient and undoubted clearness the territorial rights of the Province.

But, on the other hand, it may well have been that the Arbitrators felt constrained to a more restricted view of the scope of the Quebec Act by reason of the changed knowledge of the true geographical relations of the Mississippi and the Lake of the Woods; the drawing of the line of boundary of that Act "northward from the source of the real, and not of the supposed Mississippi; and the extension of the southerly line, by the Treaty of 1783, and by the subsequent instruments, in terms as far only as "the most north-western point of the Lake of the Woods, and from thence on a due west course to the River Mississippi," when in reality the river was to be found, not on a due west, but on a due south course; and further, may have considered that the erection, in 1870, of the original Province of Manitoba, without protest on the part of Ontario, and its confirmation by Imperial Act, in 1871, operated by way of estoppel to Ontario's claim to a more westward extension.

And on the part of the Judicial Committee-having satisfied themselves that the extent of territory awarded to Ontario had been, as far as it went, determined upon the strictest principles of law, and not entering upon the consideration of any arguments in favour of the wider claim, except in so far as these went to strenghten the case in favour of the more restricted limits-an evident determination from the first to uphold, as against the one party and the other, the conclusions arrived at by the Arbitrators and embodied in their Award. The ready appreciation by the Attorney-General of Ontario of this fact, and of the masterful position in which a ready conformation to it on the argument would place the case of the Province, led to the determination-acquiesced in by all the associate counsel-to limit Ontario's claim to the lines of the Award, and to marshal in support the whole weight of the evidence which had been designed to fortify as well the narrower as the wider claim. The wisdom of this course was justified by the result. The Award itself -the mere instrument by which the Arbitrators made known their determination-could not be held to be legally valid, because of the breach of faith of the Dominion Government in failing to carry out their agreement to procure confimatory legislation; but the conclusions of the Award were fully upheld and re-affirmed. The Lords of the Judicial Committee of the Privy Council reported to Her Majesty:

"1. . . . That as no such legislation has taken place, the Award is not binding.

"2. That nevertheless, their Lordships find so much of the boundary lines laid down by that Award as relate to the territory now in dispute between the Province of Ontario and the Province of Manitoba to be substantially correct, and in accordance with the conclusions which their Lordships have drawn from the evidence laid before them."

B.

The numerous references, by the counsel for Manitoba and for the Dominion, to the respective rights and positions of the French and of the Hudson's Bay Company, in regard to the territory to the northward and westward of the watershed of the St. Lawrence system, which the counsel for Ontario, by the course pre-determined upon for the conduct of the argument in reply, were precluded from noticing in detail, seemed to call, in this edition, for some notes of correction or explanation in the interest of the general reader, who had not the advantage of access to, or familiarity with, the very voluminous evidence. It was found, however, that the frequent repetition of the same arguments, in varieties of form, would also involve considerable repetition in the foot notes; to avoid which, to some extent, the present Note also has been prepared, exhibiting a general view of the position of each party upon the evidence and the facts.

The figures printed at the end of each particular have reference to the pages of the Joint Appendix, except where otherwise specifically indicated.

I.

PROCEEDINGS OF THE FRENCH, OR BEARING UPON THEIR REGIME,

(1) AS RESPECTS HUDSON'S Bay, and the TERRITORIES TO THE NORTH OF THE
Height of LAND, UP TO THE TREATY OF UTRECHT, 1713.

1608-City of Québec founded (172).

1610-Formal act of taking possession of the country by Champlain (462-3).

1612-Commission to Champlain (647).

1627-Charter to the Company of New France, or of the Hundred Associates, covering Hudson's Bay and the territories northward to the Arctic circle (174, 197, 647), replacing a like charter of 1620 to the Montmorency (de Caën) Company. (Ib.; Ferland, i, 200.)

1632-Treaty of St. Germain en Laye, restoring Canada to the French, without limits (174, 197, 453). [Canada had fallen to the English, under Kirk, in 1629.] 1640-The Company of New France take possession of the region of New North Wales (463).

1656-The Company of New France, authorized by the Sovereign Council of Quebec, send Jean Bourdon to the Bay, in command of one of their ships-he takes possession and forms a settlement (466, 477, 625, 628).

1658-Decree of the Superior Council of Quebec, giving control of the King's Domain or Limits of (Traite de) Tadoussac to Sieur Demaure (653). [The said limits were adjudged to extend from the St. Lawrence, in front, back to Hudson's Bay "in the extent of whose boundaries are found the Posts of

Mistassins, and behind the Mistassins as far as the Hudson's Bay" (653, 656)]

1661-Fort Nemiscau, on the Nemiscau (Rupert) River, established (477).

1661-By order of the Governor, the Jesuit Father Dablon, with the Sieur de la Vallière, an officer, and five soldiers, proceed to the Height of Land, at the sources of the Rupert and Saguenay, and make acts of taking possession of the northern lands (467, 477, 625, 628).

1663-M. Couture, Seneschal of the Cote de Beaupré, accompanied by five others and some Indians of the country, proceed overland to the foot of James' Bay and take possession (467, 477, 625, 628).

1663-The Sieur Duquet, King's Attorney to the Prevôté of Quebec, and Jean L'Anglais, also visit the Bay, by order of the Governor, and take renewed possession (625). 1664-The Company of New France having surrendered their charter to the Crown, new charter granted to the Company of the West Indies, covering, like the former, Hudson's Bay and to the Arctic circle (467, 477).

1665-The possessions of France in America confirmed to her, as of this date, by the Treaty of Breda, 1667, (464-5, 512-13).

1662-6-Radisson and Des Grosselliers, employees of the Company of the West Indies, at Lake Winnipeg, being the upper waters of the Bourbon or Nelson river. They proceed thence overland to Hudson's Bay, returning the same way (463-4, 566).

1666-Arrêt of the King's Council of State, confirming the Company of the West Indies in their enjoyment of the Limits of Tadoussac, a former lease having been set aside (Book of Arbitration Documents, 203).

1667-Treaty of Breda-see 1665 supra.

1670-Charter to the Hudson's Bay Company, saving the possessions of "the subjects of any other Christian Prince or State" (341).

1670-1-The presence of English ships in the Bay being reported at Quebec, the Intendant Talon despatches Father Albanel, Jesuit, and the Sieur de St. Simon to the Bay, to examine into the matter and "to take renewed possession in His Majesty's name," "as those countries have been long ago (anciennement) originally discovered by the French" (619, 620).

1671-The Indian nations of the North and North-West, assembled before the sub-delegate St. Lusson, put themselves and the territories occupied by them under the French dominion (467, 478, 619, 628, 633).

1672-Claim of the Company of the West Indies, as against the French Crown, that the Limits of Tadoussac extend to Hudson's Bay (621).

1672-Formal taking possession of the lands of Hudson's Bay by Albanel and St. Simon. (Joint App., 478; Book of Arb. Doc., 348-9).

1673-Several forts and factories established by the French on the Hudson's Bay slope, viz., one on the Moose River (567), one on Pisgoutagany Lake (Lake Ste. Anne) on the Albany River, one on the Tabbitibi River, and one "between the Outoulibis and the Asseniboëls," which was probably towards the head of the Albany (478).

1675-A French-Canadian ship despatched to the Bay to check the designs of the English; it winters in the Bourbon (Nelson) River (638).

1676-French post established on the Bourbon (Nelson) River (626).

1679-Louis Joliet's voyage from Quebec to the Bay-his report and map, prepared at the instance of the Farmers of the Revenue (621).

1682-The French re-establish Fort Bourbon on the Nelson. The English arriving subsequently, and attempting a settlement, are, with their ships and effects, seized and kept prisoners (569, 572, 585, 622-3).

1683-5-The Hudson's Bay Company's servants refuse to visit the inland parts (585). 1683-Two detachments of French proceed towards Hudson's Bay, to protect the trade and oppose the English (623).

Ante 1684-Fort on the River Lamaune [? Savanne] established by Du L'Hut (624). 1684-5-Fort on Lake Ste. Anne (Albany River) re established (624; see Bellin, 643).