Extract from APPENDICES TO THE REPORT FROM THE SELECT COMMITTEE ON THE HUDSON'S BAY COMPANY, 1857.
PAPER DELIVERED IN BY MR. CHIEF JUSTICE DRAPER, 28 MAY, 1857, RELATIVE TO CANADIAN BOUNDARIES
ON 25th January 1696-7, not long before the Treaty of Ryswick (which was signed on the 20th September 1697), the Hudson Bay's 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 trade beyond the midway betwixt Canada and Albany 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 right, and the right 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 these 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 dat quod non habet, is a maxim understood of all ; but whereas the French would have no bounds to Canada to the north-ward, 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 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.” 10 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 or 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 degrees 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 to the latitude of 52° degrees." 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 .Tames' Bay. The first, propositions left them the 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 58 ½º 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 Brittannica on the French River." That a 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.
In August 1714, 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 49º 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 this boundary
In August 1719, in a memorial, they say, that “ the surrender of the straits and bay aforesaid has been made according to the tenor 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 principal factory is settled, whereby they intercept the Indian trade from coming to the Company's factories ; 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 exclude the French from coming any where 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 3d 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 Marechal d'Estrees 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.
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 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 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 then towards the North Pole ; but where or how these lands terminate is hitherto unknown. And towards the west, all the lands that lie in 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.