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MSS. Brit. Emp. S. 18 / C138-231
6 Marlborough Rd
My dear Sir,
I have carefully read over Mr Draper’s evidence and its appendix again. What has caused the confusion is the idea that the boundary proposed by the H.B.Co at the Treaty of Ryswick namely 53 N. Lat or ‘Albany River’ was to be the boundary all across the continent. Now so such boundary was proposed or referred to under the treaty; the country west of Albany River being unknown was totally unprovided for.
The first time any limit was proposed for this part of the country was during the negotiations under the Treaty of Utrecht, when the 49th parallel was proposed. Mr Draper may however have had in his mind the extension of the Ryswick line of 53, to the Rocky Mountains and this would account for the perplexing answer to question 4090 and his pointing to the map, which I distinctly remember his doing and running a line from the north end of Lake Winnipeg westward to the Rocky Mountains.
Turn now to question 4209. If 53 is to be the line west of Lake Winnipeg to which Canada is in Mr Draper’s opinion entitled and for which he is prepared to go, how do you reconcile this notion with his asking that Canada be ‘permitted’ as an experiment to colonize this very district, the H.B.Co’s monopoly continuing while the experiment is being made. Either this district belongs to Canada, by the very assertion of its frontier over it in which case it can no more abrogate its functions of government over it than any other portion of the Province. Or it does not belong to Canada in which case we cannot suppose the Mr Draper meant to extent the frontier to 53.
In either case the people of Red River and their rights, not to speak of the Indians are utterly sacrificed. I think that both the Aborigines Protection Society who have so long advocated the annexation of Red River to Canada, and myself individually whose business and duty it is to assert the rights of the settlement have just grounds to complain of its being so unceremoniously thrown overboard. Mr Draper has certainly a right to make the best bargain he can for Canada. We have the same right to make the best bargain we can for Red River and to appeal if necessary to the people of Canada, whose views Mr Draper does not even profess to represent.
I propose to raise the question in such a way during my examination, as to compel Mr Draper to clear up the strong jumble (… your view of the frontier to be correct) involved in the proposal, that the colony shall be governed 1st as a territory or something of that kind under the control of the Colonial Office, 2nd as a theatre for a contingent experiment to colonize and settle it on the part of Canada and 3rd as a preserve of the H.B.Co while that contingency lasts, the right of exclusive trade to exist while the contingency exists, and all this in a territory which is … an integral part of Upper Canada.
I cannot for the life of me see how this territory is to be governed at all with these three experiments going on at the same time and Mr Draper is far too clear-headed a man to propose anything so impractical. I adhere to me opinion that Mr Draper does not go for 53 that he limits the right of Canada to the parallel of 49 (as the limit which has ever been proposed between the French and English possessions in this part). That he is asking our government to take from the H.B.Co the country up to the north end of Lake Winnipeg or 53, and govern it as a territory, in such a way as to fit it for future annexation to Canada, or to use his own words (question 4070) ‘assuming as a point of policy that the territory is to become Canadian hereafter.’
In answer to Sir J. Parkington (2, 4134) he says distinctly, (while he admits that what he says is at variance with the opinion of the Executive Council) ‘I do not know by what authority we can extend west of the Mississippi unless you give it us.’ And of course Red River and the Saskatchewan are west of the Mississippi.
I am writing in a hurry and do not know whether I have succeeded in making myself understood; but the whole thing has been to my mind, from the first, as clear as a sunbeam. Mr Draper believes or fears that the fact (certainly of immense importance) that the British government backed the H.B.Co in their claim at the Treaty of Utrecht for the 49th parallel, as against France, will be looked upon as amounting to an acknowledgement of that claim, he sees that if Canada demands the frontier of 53 and the Company obtain the line of 49 Canada must pay for the difference (see Question 4177).
What he is driving at, is to get our governmen to take that territory from the Company; he is temporizing and procrastinating in order to get that decision of the Committee that the Red River and Saskatchewan valleys be taken from the Company, declared before the legal question comes on, in order that if the question of frontier is decided in favour of the H.B.Co (that is the 49th parallel) the compensation to which the Co will in that case be entitled will fall upon us. He has not the courage to ask in so many words, that the imperial government shall buy the new territory and give it to Canada; but he wishes to mix up Canada in such a way with it that eventually the Colonial Office will be obliged to give it to Canada.
My complaint against Mr Draper is that he is trifling with the Committee in this matter. It is an uncommonly clever game in the interest of Canada and I believe that poor Mr Labouchere has not the remotest conception of where the chief justice is leading him.
There are two ways in which the legal question can be taken up. 1st on the ground that the grant of King Charles 2nd is invalid in toto having been granted without the sanction of Parliament, and in contention of the statute of James 1st against monopolies. 2ndly on the ground (assuming the validity of the Charter and … that the Company have rights of some kind on Hudson’s Bay) that these rights do not extend to the limits claimed by the Company.
Now to take the question on the second issue as Mr Draper wishes to do appears to me, as it has always appeared, nothing less than … the whole question. The Company will of course claim they they did before, the 49th parallel. They have in their favour the fact, the importance of which it is impossible to over-rate, that the English government’s acquiescing in their claim, did make this very demand for them at the treaty of Utrecht. As a lawyer Mr Draper cannot be blind to the immense significance of such an acknowledgement. If you look at Appendix no 7 you will see what I mean. I think you will agree with me that there will be no getting over the distinct and formal acknowledgement of the Company’s claim as far as our government is concerned, in the instructions to the English Commissioners there alluded to.
I am tired of telling everybody that there is no hope for the question except on the first issue, the total invalidity of the Charter on the ground of its non-confirmation by Parliament and the prior grant of the same country by the French king.
Mr Draper evades the issue and views with alarm the notion of abrogating the rights of the Company at once. I can understand his reasons for this alarm, but if no other means can be found of governing the country what is easier than to re-grant the exclusive trade for a limited period on terms more favourable to the Indians for such parts as Canada cannot conveniently and effectively administer. Next time he says that if in the discussion of the frontier, the larger question should to be avoided, but if the Company’s claims are established to the frontier of 49 or even 53, how can the larger question come up without supposing that the Court after giving its decision in the Company’s favour under our view, will go back and reverse its decision under another view.
It is clear from various parts of Mr Draper’s evidence that he considers the Charter itself invalid. Why in the name of common sense does he not take the question on this issue instead of taking it up as a question of frontier when the chances are that he will be cast. However it is time to put an end to this, there is no end to my vexations whenever I think of it. Will you have the kindness to return Mr Draper’s evidence by the parcel delivery as soon as you can.