EXTRACT FROM THE ONTARIO-MANITOBA CASE. THE ARGUMENT FOR THE DOMINION OF CANADA.
PRINTED CASES IN APPEAL. VOL. 7, 1884, p. 25.
The British Nation, therefore, acquired, by discovery and by settlements made on Hudsons [sic] Bay, the possession of the country extending into the interior to the sources of the rivers emptying within that coast, which would include the Saskatchewan and English rivers to the West, having their sources at the foot of the Rocky Mountains, and extending South and East to the sources of all the rivers flowing into James' Bay.
The law entitling England to this has been stated not only by Vattel, but has been adopted as correct by the United States, and is recognised by the highest authorities on International Law in England—Dr. Twiss and Dr. Phillimore—as being the correct principle to apply in such cases.
PART OF THE CASE FOR THE DOMINION, AS SUBMITTED TO THE ARBITRATORS IN 1878.
In 1871 a Commissioner was appointed by each of the Governments of the Dominion and Province of Ontario, for the settlement of the northerly and westerly boundaries of the Province.
The instructions given to the Commissioners on behalf of the Dominion were that “The boundary in question is clearly indentical [sic] with the limits of the Province of Quebec, according to the 14th George III., ch. 83, known as the 'Quebec Act,' and is described in the said Act as follows, that is to say : Having set forth the Westerly position of the Southern Boundary of the Province, as extending along the River Ohio, 'westward to the banks of the Mississipi [sic],' the description from thence (i.e., the junction of the two rivers) and northwards to the southern boundary of the territory granted to the Merchants Adventurers of England trading to the Hudson's Bay.
“Having determined the precise longitude, west of Greenwich, of the extreme point of land making the junction of the north and east banks respectively of the said river, you will proceed to ascertain and define the
corresponding point of longitude or intersection of the meridian passing through the said junction with the international boundary between Canada and the United States.
“Looking, however, to the tracing enclosed, marked A, intending to illustrate these instructions, it is evident that such meridian would intersect the international boundary in Lake Superior.
“Presuming this to be the case, you will determine and locate the said meridian, the same being the westerly portion of the boundary in question, on such point on the northerly shore of the said lake as may be nearest to the international boundary, and from thence survey a line due South to deep water, marking the same upon and across any and all points or islands which may intervene, and from the point on the main shore found as aforesaid, draw and mark a line due north to the southern boundary of the Hudsons [sic] Bay territory before mentioned. This will complete the survey of the westerly boundary line sought to be established.
“You will then proceed to trace out, survey, and mark, eastwardly, the aforementioned southern boundary of the territory granted to the Merchants Adventurers of England trading to Hudson's Bay.
“This is well understood to be the height of land dividing the waters which flow into Hudson's Bay from those emptying into the valleys of the Great Lakes, and forming the northern boundary of Ontario ; and the same is to be traced and surveyed, following its various windings, till you arrive at the angle therein between the Provinces of Ontario and Quebec, as the latter is at present bounded, having accomplished which, the same will have been completed.”
EXTRACT OF ARGUMENT OF MR. McMAHON, Q.C., COUNSEL FOR THE DOMINION BEFORE THE ARBITRATORS, 3rd AUG., 1878.
Mr. MCMAHON : “My learned friends do not claim that they are entitled to any land north of the height of land.”
The ATTORNEY-GENERAL : “I thought I had occupied a good deal of time in showing that I was claiming that.”>
CHIEF-JUSTICE HARRISON: “I understood the Attorney-General to claim to the Arctic Ocean.”
Mr. MCMAHON : “I did not know that he meant that.”
SIR FRANCIS HINCKS: “Do I understand that you have no difficulty about the northern boundary.”
Mr. MCMAHON : “The northern boundary is of no consequence: the trouble is with the western boundary.”