Extract from APPENDICES TO THE REPORT FROM THE SELECT COMMITTEE ON THE HUDSON'S BAY COMPANY, 1857.
LETTER ADDRESSED BY MR. CHIEF JUSTICE DRAPER TO HER MAJESTY'S SECRETARY OF STATE FOR THE COLONIES,
BEARING DATE 6TH MAY 1857, TOGETHER WITH A COPY OF THE MEMORANDUM THEREIN REFERRED TO.
33, Spring-gardens, 6 May 1857.
IN the last interview with which you favoured me, I took occasion to advert to the question of boundary between Canada and the Hudson's Bay territory, as one which required to be settled as a necessary preliminary to many other very important inquiries involved in the matters submitted to a Committee of the last House of Commons, and, as I understood, to be again submitted to the new Parliament.
I alluded to the difference between the views of the Hudson's Bay Company, as expressed in former times, and those which are now, and have been within the last forty years, advanced by them on this point ; and I stated my readiness to submit a memorandum to you in relation thereto, which you were pleased to signify your readiness to receive and consider.
That memorandum I have now the honour to enclose. As the construction of the language of the charter, and the extent of the territory purporting to be granted are involved, it may be considered desirable that the matter should be referred to the Judicial Committee of the Privy Council. In this event, I venture to request, that counsel on the part of the Province may be permitted to attend to watch the argument, and, if it be deemed necessary, that they may be heard in support of those views which more immediately affect the interests of Canada.
I have suggested a reference to the Judicial Committee, because I think its opinion would command the ready acquiescence of the inhabitants of Canada as to their legal rights, and because I believe they entertain a very strong opinion that a considerable portion of the territory occupied or claimed by the Hudson's Bay Company will be found to lie within the proper limits of that Province.
Whether it would be desirable to sever this from the more general question of the legality and validity of the charter, is a matter I should
desire to leave for your consideration, but in any event I think it expedient that counsel should be permitted to attend to watch the interests of the Province.
I have, &c.
The Right Hon. H. Labouchere, (signed) Wm. H. Draper
&c. &c. &c.
MEMORANDUM ENCLOSED IN CHIEF JUSTICE Draper's LETTER OF MAY 6TH, 1857, TO THE SECRETARY OF STATE.
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 follow :—
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 constitute the said Governor and Company for the time being, and their successors, the true and absolute lords and proprietors of the saine 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 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 territory, 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 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 mouth of Churchill River, and the fort at Split Lake, which is represented as about 140 miles from the mouth of the Nelson River. It is believed that these two last-named forts are of comparatively modern erection, but that, at all events, for more than a century after the date of the charter, these, together with the forts on or near the shores of the 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 Hudson'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 25 January 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.
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 well founded in their demands, and therefore did insist upon his own right and the right of his subjects to the whole Bay and Straits of Hudson, and to the sole trade thereof ; and they pray the then King, William the Third, to insist upon the inherent right of the Crown of England and the property of his subjects not to be alienated, that so considerable a trade might not be lost, and the Hudson's Bay Company " be left the only mourners " in the peace of Ryswick.
At this time all their forts but one (Albany Fort) had been taken by the French ; some of them, indeed, while the two Crowns were at peace ; an act of aggression specially referred to by his Majesty in the declaration of war in 1689.
In January 1700, being called upon by the Lords of Trade and Plantations, they offered proposals for limits between them and the French in Hudson's Bay, insisting at the same time upon their undoubted right “ to the whole Bay and Streights of Hudson.” The proposed limits were, to confine the French from trading or building any house, factory, or fort to the northward of Albany River situate in about 53° of north latitude on the west main 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 Grirnmington's Island or Cape Perdrix, in the latitude of 58 ½ ° 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 in 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,
* 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 côte d'ouest les terres jusqu'a la Mer Pacifique au dela du Tropique du Cancer, au midi les îles de la Mer Atlantique du côte de Cuba et l'île Espagnole au levant la Mer du Nord qui baigne la Nouvelle France ; et au septentrion cette terre qui est dite inconnue vers la Mer Glacée jusqu'a la Pole Arctique.”