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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-10-07] British Columbia. Supreme Court Oct 7, 1989

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 20536  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 Vancouver B.C,  2 October 7, 1989.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia this  7 7th day of October, 1989.  In the matter of Delgamuukw  8 versus Her Majesty the Queen at bar, my lord.  9  10 FRANK MURRAY GREENWOOD, resumed:  11  12 THE REGISTRAR:  May I remind you, sir, you are still under oath?  13 A   Yes.  14 THE REGISTRAR:  And would you state your full name?  15 A   Frank Murray Greenwood.  16 THE REGISTRAR:  Thank you.  17 THE COURT:  Mr. Goldie.  18 MR. GOLDIE:  My lord, a couple of housekeeping matters.  My  19 friend Mr. Rush pointed out that at tab 26, Mr.  20 Pownall's letter to Lord Egremont, there appears to be  21 a missing page.  The material under that is as we  22 received it from the public record office.  Our agent  23 in London has been asked to look into it, but he  24 advises us that it may be a week to two weeks before  25 the document, if there is one, can be copied and  26 delivered.  If that turns out to be the case we'll ask  27 him to send us by FAX, facsimile the text of the  28 missing page.  2 9 THE COURT:  Thank you.  30 MR. GOLDIE:  Tab 46, I think my friend's point there was that he  31 didn't have that.  32 THE COURT:  I don't have a tab 46.  33 MR. GOLDIE:  No.  I think it was from the list of documents that  34 we have supplied him.  35 THE COURT:  I see.  36 MR. GOLDIE:  I shouldn't say tab 46.  We do not have that copy  37 readily at hand, but we can obtain a copy from the  38 microfilm collection at U.B.C.  Mr. Rush has also  39 pointed out to me that a map which is yet to come, my  40 lord, and is at tab 281 known as the Carver map is a  41 very poor copy and that too is as we received it and  42 it too comes from the public record office.  The  43 inscriptions on the map --  44 THE COURT:  We haven't reached it yet, have we?  45 MR. GOLDIE:  No, we haven't.  I am just dealing with these  46 matters and advising my friends of the present  47 situation.  That too is from the public record office 20537  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 and what I have said earlier applies to it, but we  2 have had our agent send us by facsimile the wording of  3 two notations on that and we will supply that to  4 our -- to my friends.  There is one other matter which  5 I can deal with without taking up the court's time.  6 Yesterday Mr. Grant informed us that it was as a  7 matter of convenience to counsel for the plaintiffs  8 they would not like to have Mr. Magwood called as we  9 had intended to before Mr. Williams.  We have  10 ascertained from Mr. Magwood that he would be  11 available in the week of the 16th of October and we  12 will schedule him for that week.  He's not available  13 in the period immediately following that week and it  14 will mean that we may have to ask a witness to stand  15 down in order to call him.  But he will be called  16 after Mr. Williams or before the end of the week of  17 October 16.  Returning to the witness, my lord.  18  19 EXAMINATION IN CHIEF BY MR. GOLDIE (Continued):  20 Q   Dr. Greenwood, yesterday we had dealt with some of the  21 French map material, maps and material which you had  22 examined in determining the knowledge or lack of it of  23 the western limits of Canada or New France and I  24 believe I had asked you to look at tab 181.  Do you  25 have that in front of you?  26 A   Yes.  27 Q   And I had directed your attention to the paragraph  28 numbered four?  29 A   Yes.  30 Q   And I had asked you to tell his lordship whether you  31 could throw any light on the general location of the  32 rivers which discharge into the St. Lawrence --  33 A   Uh-huh.  34 Q   -- having regard to the preceding clause which refers  35 from the mouth to the source.  36 A  Well, of course I couldn't possibly list them all  37 here.  38 Q   No.  I just mean a general geographic location.  39 A  Well, it's essentially talking about the area I think  40 from the Great Lakes to the mouth of the St. Lawrence.  41 Q   Yes.  And did you also have occasion to examine the  42 commissions issued to governors and attendants of the  43 French regime in the century prior to the conquests  44 for the purpose of determining whether there was any  45 greater precision --  4 6 A   I made a sampling --  47 Q   Excuse me.  Let me finish the question. 2053?  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 A   Oh, sorry.  2 Q   Any greater precision in determining the western  3 boundary of Canada?  4 A  Well, I made a sampling and we have discussed one of  5 them and together with reliance on the secondary  6 sources I could find no evidence of greater precision.  7 Q   And the sources of your information are found in  8 footnote number 178 and the example we referred to  9 under tab 179?  10 A   Yes.  11 Q   Now, you also, I understand, then looked at the  12 British information?  13 A   Yes.  14 Q   With respect to the same question, that is to say the  15 knowledge or lack of knowledge of the western limits  16 of Canada or New France, and your material at tabs  17 183, 184, 185, 186, 187, 188, 189, 192, 193 and 194  18 and 195 include the sources that you looked at in your  19 attempt to trace the British knowledge or lack of it?  20 A   Yes.  21 MR. RUSH:  You said tabs.  Did you mean to say footnotes?  22 MR. GOLDIE:  No.  I mean tabs.  2 3    MR. RUSH:  We don't have —  24 MR. GOLDIE:  That, my lord, will take us into the next volume.  25 Q   And I am going to before I do that refer to just a  26 couple of notes that I have made reference to.  In  27 this volume, doctor, would you look under tab 186?  28 A   Yes.  29 Q   And this too is from the collection that you  30 identified yesterday?  31 A   Yes.  32 Q   And what is the section that you wish to refer to?  33 A  Well, the very last paragraph on the first page, page  34 55.  35 Q   Yes.  36 A  37 "Canada, according to the English accounts, is  38 bounded on the North by the Highlands which  39 separates it from the country about Hudson's  40 Bay, Labrador, or New Britain, and the country  41 of the Eskimeaux, and the Christinaux; on the  42 East, by the River St. Lawrence; and on the  43 South by the Ottawa River,"  44  45 Or Outawai River,  46 "the country of the Six Nations, and  47 Louisianna; its limits towards the West, 20539  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 extending over countries and nations hitherto  2 undiscovered."  3  4 End quote.  5 Q   Thank you.  And that is taken from the source that is  6 described in the asterisked footnote?  7 A   Yes.  8 Q   Thank you.  And I want to refer you to tab 187 and  9 perhaps you'd be good enough to tell his lordship what  10 that document is and refer him to the significant  11 parts?  12 A   Yes.  187.  That's General Gage's report.  13 Q   And who is he, please?  14 A   General Gage was then the governor.  He would later be  15 the Commander-in-Chief in British North America.  At  16 this point he was the Governor of the Government of  17 Montreal.  Until the military regime came to an there  18 were three governments:  Quebec, Three Rivers and  19 Montreal.  He was the Governor of Montreal.  2 0 Q   All right.  Thank you.  And now would you refer end us  21 to the part that you --  22 A   Yes.  It's on internal page, I think it's the very  23 last page.  72.  24 Q   Yes.  25 A   In the middle paragraph beginning "as I."  26 "As I cannot discover that the Limits betwixt  27 Louisiana & Canada were distinctly described,  28 so as to be Publickly known, I can only inform  29 you, what were generally believed here, to have  30 been the Boundaries of Canada & give you my own  31 Opinion, which is drawn from the Trade -- "  32  33 Which means the Canadian Traders,  34  35 "-- that has been Constantly carried on, by the  36 Canadians, under the Authority, and permission  37 of their several Governors.  From hence I  38 judge, not only the Lakes, which are  39 Indisputable, but the whole Course of the  40 Mississippi from its Heads to its Junction with  41 the Illinois, to have been comprehended by the  42 French and the Government of Canada."  43  44 End quote.  45 Q   And from the context, the reference to lakes is to  46 what lakes, please?  47 A   Great Lakes. 20540  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 Q   And tab 188 you have a reference to Governor Murray's  2 report on the state of the Government of Quebec.  He  3 was Gage's equivalent in Quebec, was he?  4 A   Yes, he was.  And --  5 Q   And to what do you wish on refer his lordship in that  6 document?  7 A   Just a moment.  I am just checking my internal page  8 reference.  9 Q   Well, would you look perhaps at --  10 A   I think it's at 60.  Page 60.  11 Q   Yes.  12 A   The date, by the way, of this is given by the editors  13 as 5 -- is it 5 June 1762, but your lordship will  14 notice at the very last page, page 61 where the date  15 is either put on by Murray or copied, it is the 6th of  16 June and I have sort of assumed for the purposes of  17 this trial it's the 6th of June.  18 Q   And the reference is at page 60, is it, the third to  19 last paragraph?  20 A   It's at the very bottom of page 60.  And it's:  21  22 "Before this report is closed it will not be  23 improper to observe to Your Lordship how  24 impossible it is to ascertain exactly what part  25 of North America the French stiled Canada, no  26 Chart or Map whatever having fallen into our  27 hands or public record of any kind to show what  28 they understood by it."  29  30 End quote.  31 Q   Thank you.  Doctor, you have made reference on several  32 occasions to the collection of maps prepared by  33 Ontario for the resolution of the boundary between  34 Ontario and Manitoba?  35 A   Yes.  36 Q   Can you tell his lordship how many maps were  37 identified and commented upon by Ontario?  38 A  A hundred and thirty-five.  39 Q   And was there any one of those in which it was found  40 to have -- in which there was found to be an  41 unambiguous indication that Canada or New France  42 extended its territory to the Pacific?  43 A   No, there was not.  Not in every case was a comment  44 made as to where the printing of Canada or New France  45 began, but no, there were no unambiguous examples  46 indicating that New France stretched to the Pacific  47 coast. 20541  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  Q  2  3  4  A  5  Q  6  A   ]  7  Q  8  MR.  RUSH:  9  10  ]  11  12  13  MR.  GOLDIE  14  Q  15  16  17  A  18  Q  19  20  21  A  22  Q  23  A  24  Q  25  A  26  27  Q  28  A  29  Q  30  A  31  MR.  RUSH:  32  33  34  THE  COURT:  35  A  36  MR.  GOLDIE  37  MR.  RUSH:  38  MR.  GOLDIE  39  Q  40  41  42  A   '  43  44  45  46  47  MR.  GOLDIE  Under tab 189 you have the beginning of the notes on  the maps which is comprehended in that collection and  which extended to 135, this all --  Yes.  Thank you.  I am sorry, 135 --  Maps were described.  Were -- yes.  Well, I think, my lord, you should be -- we should  know who the author of this is and the fact that the  maps, of course, aren't anywhere in the material, but  simply the notes of the maps.  Some of the maps may be  in the material, but certainly not the 135.  No.  I quite agree.  The person who supervised the  collection of these maps was identified by the witness  yesterday as Mr. David Mills?  David Mills.  And he also stated that the text in each note is  generally speaking that of the map maker or the  cartographer, is that correct?  The notes in brackets you mean?  Yes.  Yes.  Following the --  That would be the note of the compilers of the  collection, Mills and undoubtedly other people.  Yes.  With quotations from the --  From the maps themselves.  Yes.  Yes.  But the -- there are quotes here but the notes  themselves also are the compilers' notes as I  understand the witness' evidence.  Yes.  That's correct.  :  That's right.  Thank you.  It was in the interest -- or will you tell his  lordship what the interest was of Ontario in making  this examination?  Well, it was involved in a boundary dispute that  lasted from approximately 17 -- 1873 to 1889.  That's,  I think, the final legislation with Manitoba,  supported by the Federal Government over the area west  of Fort William.  :   Thank you.  I'm not going to ask the witness to 20542  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  identify each of the tabs that I have referred to in  respect to this section, my lord, but the volume comes  to an end with tab 192B and I tender this volume as  Exhibit 1163 with each of the exhibits as described in  the index at the front of the volume and numbered  according to the tab numbers.  THE COURT:  Yes.  All right.  Thank you.  (EXHIBIT 1163-159:  Nicolas Bellin Map)  (EXHIBIT 1163-161:  Robert de Vaugondy Map)  (EXHIBIT 1163-162:  Delisle de Fonte Map of 1752)  (EXHIBIT 1163-163:  Thomas Kitchin - Map of the World)  (EXHIBIT 1163-165A:  John Mitchell Map)  (EXHIBIT 1163-166:  Thomas Jefferys Map)  (EXHIBIT 1163-167B:  A New Map of the N.E. Coast of  Asia & N.W. Coast of Am.)  (EXHIBIT 1163-168: Thomas Jefferys Map)  (EXHIBIT 1163-169: Thomas Jefferys Map)  (EXHIBIT 1163-170: Emanuel Bowen Map)  (EXHIBIT 1163-172: Emanuel Bowen Map)  (EXHIBIT 1163-177A:  Extract:  "Bougainville on the  French Posts, 1757")  (EXHIBIT 1163-179:  Commission to Vaudreuil)  (EXHIBIT 1163-180:  Extract:  Vaisette on Boundaries  of Canada, 1755)  (EXHIBIT 1163-181:  Nicolas-Gaspard Boucault's Report)  (EXHIBIT 1163-182:  Bellin Re His 1755 Map)  (EXHIBIT 1163-183:  Moll, Herman on Canada's  Boundaries)  (EXHIBIT 1163-184:  Mitchell, John) 20543  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  (EXHIBIT 1163-185:  (EXHIBIT 1163-186:  Boundaries)  (EXHIBIT 1163-187:  (EXHIBIT 1163-188:  (EXHIBIT 1163-189:  (EXHIBIT 1163-191:  (EXHIBIT 1163-192A:  (EXHIBIT 1163-192B:  Mitchell, John)  Thomas Jefferys on Canada's  Gage to Amherst)  James Murray Report to Government)  "Notes on Maps")  John Gibson Map)  Jean Palairet Map)  Jean Palairet Map)  MR. GOLDIE:  I'd like to hand up, my lord, Volume 4.  Q   This volume continues the collection that you had to  assemble for the purposes of seeking some indication  of British knowledge, is that correct?  A   Yes.  And also to demonstrate that the printing of  Canada or New France was very seldom west of the  source of the Mississippi and never on the Pacific  coast.  Q   All right.  And look at tab 195, please, as -- oh,  yes, before you do that, I'd ask, my lord, that a  number be reserved for this volume.  THE COURT:  Yes.  That will be 1164.  Oh, wait a minute, I —  THE REGISTRAR:  Yes.  THE COURT:  Have we used that up?  THE REGISTRAR:  No.  That's all right.  THE COURT:  1164 is all right.  MR. GOLDIE:  Thank you.  (EXHIBIT 1164 Reserved:  Document Book Re Greenwood's  Report - Volume 4 Tabs 193 - 249)  MR. GOLDIE:  Q   Well, first perhaps I would ask you to look at 193.  A   193.  Q   And that is entitled "A New and Accurate Map of North  America Including the British Acquisition Gained by  the Late War 1763"?  A   Yes.  Q   And what is the source of this? 20544  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  A  2  3  4  Q  5  6  A   '  7  8  9  10  Q  11  12  THE  COURT:  13  MR.  GOLDIE  14  Q  15  MR.  RUSH:  16  17  MR.  GOLDIE  18  MR.  RUSH:  19  MR.  GOLDIE  20  MR.  RUSH:  21  THE  COURT:  22  MR.  GOLDIE  23  Q  24  25  A  26  1  27  Q  28  THE  COURT:  29  MR.  GOLDIE  30  THE  COURT:  31  MR.  GOLDIE  32  THE  COURT:  33  MR.  GOLDIE  34  Q  35  36  A   '  37  38  39  40  41  Q  42  43  44  45  46  A  47  Q  This is in John Entick, his volume the General History  of the Late War published in London 1763 and it's  Volume 1 page 167.  And what is the significant feature that you find  there?  Well, the most westerly placing of the printing of  either New France or Canada is just west, I suppose,  or almost exactly parallel with the western part of  Lake Superior.  This, my lord, was put to Dr. Farley in his  cross-examination Exhibit 1154-23.  All right.  Thank you.  And then turn to 195.  Are you proceeding by the footnote or the number, the  tabs?  :  I am sorry, the tab.  Because --.  Oh, I see.  You indicated 193.  :  Yes.  We just went to that.  Thank you.  The tabs and the footnotes are the same?  :  They are, yes.  Under tab 195 you have a map.  Would you tell his  lordship what that is?  That's a map by John Gibson which appeared in the  Gentleman's Magazine for 1763.  That's Exhibit 1154-21.  I am sorry, the number?  :  I beg your pardon, my lord?  What was number again?  :  1154-21.  Thank you.  :  That was put to Dr. Farley.  And what feature is it that you make reference to  there, doctor?  Well, your lordship will notice that there are words  printed on the map "lands reserved for the Indians"  which run from West Florida to Lake Erie and secondly,  that nothing is shown west of the Lake-of-the-Woods on  that map.  Thank you.  You next consider in your -- in your  report or really you are in the process of considering  it in the evidence you have given now, the demarcation  of Canada on the -- or New France on these seventeenth  and eighteenth century maps?  Yes.  And the sources of the documents which are placed 20545  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 under the tabs are in the footnotes and I will be  2 supplying your lordship with a copy of those so I  3 won't pause with that.  I can only go on now or I wish  4 to go on now to the question of whether the limitation  5 or delimitation of Canada can be ascertained from at  6 least in part the Treaty of Paris and its preparatory  7 works.  I am correct from your earlier evidence that  8 the Treaty of Paris underwhich France ceded to Britain  9 Canada with all its dependancies did not provide a  10 definition of the western extent of that colony, is  11 that correct?  12 A   Yes.  13 Q   You examined in pursuing this question the peace  14 negotiations which failed between England and France  15 in 1761?  16 A   Yes, I did.  I examined the manuscript sources on that  17 in the State Papers Series in the public record office  18 Chancery Lane, the printed sources found in Thackeray  19 and Pease and the detailed secondary source Savelle,  20 which is found in footnote two of my -- found with  21 full cite in footnote two.  22 Q   Footnote two.  And is it what is referred to in  23 footnote 196?  24 A   Yes.  25 Q   Now, am I correct in my understanding, doctor, that in  26 those abortive peace negotiations the question of the  27 boundary between Canada and Louisiana loomed large?  28 A   That was a major dispute, yes.  29 Q   And perhaps you would first refer to a document under  30 tab 197.  31 A   Yes.  32 Q   And then explain to his lordship the background of  33 that particular document.  34 A  Well, by June 1761, my lord, the French had agreed to  35 cede all of Canada, but the definition of Canada had  36 not been arrived at at that point and the French were  37 to keep Louisiana.  So it was clearly in the interest  38 of France to keep as much of Louisiana as possible.  39 In August 1761, the Duke of Choiseul who was the  40 negotiator, French foreign minister negotiating for  41 France, sent a note to his Ambassador in London,  42 Francois Bussy, B-u-s-s-y, to deliver to Pitt or to  43 the Imperial government which set out the French  44 government's definition of Louisianna as opposed to  45 Canada.  And that is tab 197C, which is in French,  46 slightly -- slightly difficult French.  Now, I have  47 translated that.  If it's of use to the court I can 20546  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 read my translation into the record.  2 Q   Would you do so, please.  3 MR. RUSH:  Just before you do, where are you reading from?  4 MR. GOLDIE:  5 Q   From 197C  And the author of this document is the  6 Duke of Choiseul?  7 A   Duke of Choiseul.  And it's actually dated 13 July.  8 No, I am sorry, 16 August 1761.  9 Q   Yes.  10 THE COURT:  I am sorry, August?  11 A  August of 1761.  12 THE COURT:  1761?  13 A  And I am translating from the entire tab at internal  14 page 59 there.  Quote:  15  16 "To fix the boundaries of Louisiana bordering  17 on the English colonies and Canada -- "  18  19 THE COURT:  I am sorry, just a minute.  "Bordering on English."  20 A  21 "Pour fixerles limited de la Louisiana."  22  23 THE COURT:  I am sorry?  24 MR. GOLDIE:  25 Q   Read slow.  26 THE COURT:  "Bordering on English colonies."  27 A  28 "on the English colonies and Canada, we will  29 draw a line running from the Rio Perdido,  30 between Mobile and Pensacola Bays, passing by  31 Fort Toulouse in the Alabamas territory,  32 extending to the western end of Lake Erie,"  33  34  35 Q   Just pause there.  36 A   Yes.  37 Q   All right.  Proceed.  38 A  39  40 "So as to include the Miami River, and then  41 through the eastern end of Lake Huron it will  42 go to the Hudson Bay's heights of land towards  43 lake Abitibi,"  44  45 Q   All right.  Just pause there, please.  All right.  46 A  47 "from which the line will be continued from 20547  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 east to west up to and including Lake  2 Superior."  3 End quote and end translation.  4 Q   Now, preceding that under tab 197 is further or  5 earlier instructions?  6 A   Yes.  7 Q   Is that correct?  8 A   Yes.  9 Q   And the French is given at the top of the page and the  10 translation is at the -- is at the lower half of the  11 page?  12 A   Yes.  13 Q   And in the first paragraph on July 15 the Due de  14 Choiseul is advising Louisiana, and I quote:  15  16 "In the event that Canada is ceded to the  17 English it is essential to settle the  18 boundaries of Louisiana in such a way as to  19 leave no pretext to the English to confuse them  20 with those of Canada."  21  22 Unquote.  23 A   Yes.  24 Q   And what you have translated from tab 197C represents  25 the French position on that?  26 A   This is the last position taken by the Due de Choiseul  27 on that question before he yielded to Pitt.  28 Q   And I take it from your last comment that it is common  29 ground that Pitt on behalf of England rejected the  30 French position?  31 A   Utterly.  32 Q   And he -- you make reference at tab 199 to the  33 instructions given by Pitt to his representative.  34 Would you refer to that, please, and indicate to his  35 lordship the significant passages?  36 A   Tab 200 is it we are dealing with?  37 Q   I am looking at tab 199.  38 A   200 is clearer.  39 Q   200 and 199 are the same document, I believe.  4 0    THE COURT:  Tab 199?  41 MR. GOLDIE:  Yes.  42 Q   Is your reference the reference you want to refer to  43 under 200?  44 A   It's under 200.  It makes it clearer.  45 Q   All right.  46 MR. RUSH:  There are two different documents?  47 A   Yes.  This is Pitt's instructions to Hans Stanley who 2054?  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 was the Ambassador in Paris doing the, you know,  2 presenting of memorials for Pitt to the court of  3 Versailles and the date is the 27th of August 1761 and  4 it's on internal page 607.  5 Q   Under Tab 200.  The documents, my lord, I should make  6 it clear under 199 and 200 are taken from the same  7 source.  8 THE COURT:  Yes.  9 MR. GOLDIE:  10 Q   All right.  Please proceed, doctor.  11 A   These instructions say this, quote:  12  13 "and, lastly, the claiming, as Louisiana, with  14 an effrontery unparalleled, vast regions which  15 the Marquis de Vaudreuil has surrendered to  16 General Amherst as Canada, and defined himself,  17 with his own hand, as comprehended in the  18 government of that province where he commanded.  19 And, as far as concerns the whole course of the  20 Ohio and the countries in that part, you will  21 see by the enclosed memorial transmitted to you  22 for that purpose, that the Due de Mirepoix did  23 solemnly declare here, in the name of his  24 Court, that France had constantly regarded the  25 said River Ohio as a dependance of Canada, and,  26 instead of making part of Louisiana, as being  27 essential to the communication of Canada with  28 that first-named province."  29  30 Then later on he goes on, the instructions go on:  31  32 "Having mentioned in the answer to the French  33 ultimatum the line traced by hand of the  34 Marquis de Vaudreuil, defining the limits of  35 the government of Canada, to which I allude in  36 this letter, I send you enclosed, for your  37 information and use, an imperfect, but I trust  38 intelligible, sketch of the same, copied from  39 the original transmitted to me by General  40 Amherst, together with an extract of the  41 General's letter on that subject."  42  43 End quote.  44 Q   All right.  The reference there to the map traced by  45 the Marquis de Vaudreuil?  46 A   Yes.  47 Q   You have a copy of that map in your collection of 20549  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR.  A  Q  A  Q  A  RUSH:  A  THE COURT  A  MR.  RUSH  A  MR. GOLDIE  Q  A  documents?  Yes.  And of the correspondence or the letter of Lord  Jeffery Amherst.  Perhaps you might be good enough  before coming to those just to sketch the background  of the map --  Yes.  I can do this without referring --  Excuse me.  The background of the map referred to by  Pitt.  Yes.  Well —  I would like the witness to keep in mind that he  should, where he can, direct us to the documents in  the background of this.  Well —  I understand you thought it would be useful if he  sketched it out.  I can go back into the document after.  I am just  trying to get the general background.  Thank you.  So am I to proceed?  You are.  Shortly after the conquest of Canada which can be  dated as the 8th of September 1760, that is the  capitulation of Montreal which ceded, subject of  course to other negotiations, ceded Canada to Great  Britain, shortly after that date Sir Jeffery Amherst,  who was the Commander-in-Chief, sent his subordinate  Haldimand, who is a colonel at the time, to see  Vaudreuil who had been commanding in Montreal  District, and to ask him if he had any map showing  what Canada amounted to since, you know, one Canada,  the British, and he said, "No, no, any maps we have  they were destroyed in Quebec when Quebec fell."  Then  he produced at one stage a very large North American  map and on the day that the French army sailed out of  Montreal, on parole, just before that Haldimend went  to see Vaudreuil and sat down or at least Haldimend  sat down and started to draw out what he considered to  be the boundaries of Canada as opposed to Louisiana,  the boundary between Canada and Louisiana in the west.  He took a pencil out of his pocket.  He started at  Illinois, etc.  Vaudreuil was by his shoulder all the  time and this map was given, of course, to Amherst and  Amherst sent a copy or sent it, rather, excuse me, to  Pitt.  Pitt sent it to Stanley, and it was used in the  negotiations, and after a great deal of objection the 20550  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 French government, including Versailles, that is King  2 Louis XV, agreed that this would be the definition of  3 Canada and Louisiana where they neighboured or abutted  4 on each other.  5 Q   My lord, under tab 206 is the reproduction of the map  6 in question.  Dr. Greenwood, I am showing you a  7 document which is similar to what is under tab 206,  8 but it is certified.  Can you tell me what its origin  9 is, please?  10 A   Yes.  This is one that I located in the public record  11 office Kew Gardens under map reference MPG 3, PRO and  12 it had been separated, this map had been separated  13 from Amherst's dispatch to Pitt of 4 October 1760.  14 Now, there are two lines that essentially travel from  15 the junction of the Ohio and the Mississippi to Red  16 Lake or Lac Rouge.  One is a sort of dotted line, dark  17 dotted line, and another is a red line.  Now, I can  18 phrase how it was traced, if you wish.  19 Q   Well, there is a -- there is a document which  20 indicates --  21  22  23  24 MR. RUSH:  Just for a moment I'd like to review this.  If you  25 would just pause for a moment, please, if you are  26 going to continue with this further.  Yes, my lord,  27 just a point of clarification.  I am sure the witness  28 intended to say this, but the red line tracks the  29 dotted line.  30 THE COURT:  Yes.  Seems to.  I take it the red line is what  31 looks more like a pencil line here?  32 A  Well —  33 THE COURT:  The black line is — the red line was the solid  34 line?  35 A   I wouldn't swear to that, my lord.  36 THE COURT:  All right.  37 MR. GOLDIE:  I tender that, my lord, as the next exhibit.  That  38 would be 1165.  39 THE REGISTRAR:  Yes, it would.  40 THE COURT:  No.  Is that different from 209A?  41 MR. GOLDIE:  It is not different from what is under tab 206.  42 206 is simply a photograph.  43 THE COURT:  Oh, I am sorry.  I am looking at 206.  Yes.  Sorry.  44 MR. GOLDIE:  The only virtue, if it may be put that way, is that  45 the colours are --  46 THE COURT:  Yes.  All right.  Yes, well, then this can be —  47 what's the number?  A  Yes.  Q  -- how it is done?  A  Yes.  rSH:  :  Just for a moment 20551  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE REGISTRAR:  1165, my lord.  THE COURT:  And there is only the one?  MR. GOLDIE:  Just the one, yes.  THE COURT:  All right.  We should mark it as the official  exhibit.  THE REGISTRAR:  Thank you.  THE COURT:  What's the exhibit number?  THE REGISTRAR:  1165.  (EXHIBIT 1165: Vaudreuil-Haldimand Map dated 1760)  MR. GOLDIE:  Q   Doctor, under tab 202 you have placed an extract from  the collection of the Illinois State Historical  Library and at internal page 402 is a letter from  Colonel Haldimand to Sir Jeffery Amherst?  A   Yes.  Q   Is that correct?  A   Yes.  Q   And is that the source of or information about the  manner in which the marks on that map were made?  A  Well, yes.  I used the French original in the War  Office Papers, but I also consulted this document  before the court.  Q   And would you refer his lordship to the part which  contains the --  Internal page 404, the last paragraph.  Yes.  It runs down to almost the end of page 405.  I don't  know whether you --  Does it start "upon"?  "Upon that taking a pencil," yes.  Yes.  But I could probably explain it much more quickly than  quoting.  Well, if the description is there, that's what we  need.  Yes.  Thank you.  And the sources which you used you have  identified, but they are also identified in footnote  201, is that correct?  A   Yes.  Yes.  Q   And as you have stated, that was transmitted by  Amherst?  A   Yes.  Q   And it is a generally accepted conclusion, then,  that -- or is it, that that is the map to which Pitt  A  Q  A  THE COURT  A  THE COURT  A  A  Q 20552  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 was referring?  2 A  Well, not very many scholars have dealt with the  3 issue, but those I have come across have accepted it,  4 yes.  5 Q   Thank you.  6 THE COURT:  Well, do I understand at this time Britain and  7 France were arguing about a line well east of the  8 Mississippi?  9 A   Yes.  Except that on the map which your lordship has  10 Red Lake or Lac Rouge is depicted as the source of the  11 Mississippi, but there are -- their interest stops at  12 that point westwardly, yes.  13 MR. GOLDIE:  Your lordship will appreciate that Vaudreuil was  14 carving out some territory for Louisiana or  15 endeavoring to carve out some territory for Louisiana  16 which France was retaining east of the Mississippi,  17 north of the junction of the Ohio and the Mississippi.  18 THE COURT:  Yes.  19 MR. GOLDIE:  But that's far short of what Choiseul instructed  20 his —  21 THE COURT:  Yes.  22 MR. GOLDIE:  23 Q   Just so that his lordship has that point, Dr.  24 Greenwood, by reference to the map under 206, can you  25 indicate the direction that Choiseul gave to Bussy?  26 A   Yes.  It's 197C  This would be —  27 THE COURT:  I am sorry, 197?  28 A   197C  I can do it from that map as well.  But  29 essentially the line indicated in 197C starts just  30 east of the mouth of the Mississippi in the Bay of  31 Pensacola, the Bay of Mobile, Gulf of Mexico, goes up  32 through Alabama to the West Coast, Lake Erie.  So if  33 we look at this Vaudreuil-Haldimand map, we can  34 perhaps start our thinking at the western point of  35 Lake Erie.  Then it would go in an -- it appears a  36 straight line through Lake Huron to the heights of  37 land around Lake Abitibi, which is not shown on this  38 map, but that's where it would go.  It would go  39 straight up through Lake Huron to Lake Abitibi south  40 of James Bay, and then it would go -- it's not stated  41 by Choiseul whether it would go by heights of land or  42 by straight line, it would go east to west from Lake  43 Abitibi to Lake Superior and include Lake Superior and  44 nothing is mentioned about anything further west.  And  45 that would be what Choiseul wanted to retain really  46 for Louisiana.  He didn't -- obviously didn't get what  47 he wanted. 20553  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  MR.  GOLDIE  2  Q  3  A  4  Q  5  6  7  A   '  8  1  9  Q  10  i  11  A   '  12  13  14  Q  15  i  16  17  THE  COURT:  18  19  MR.  GOLDIE  20  THE  COURT:  21  22  23  MR.  GOLDIE  24  THE  COURT:  25  A  26  MR.  GOLDIE  27  A  28  THE  COURT:  29  A  30  31  32  33  34  35  1  36  1  37  38  39  ]  40  THE  COURT:  41  A  42  43  THE  COURT:  44  MR.  GOLDIE  45  THE  COURT:  46  MR.  GOLDIE  47  Q  So Pitt utilized Vaudreuil's map?  Yes.  And then in later negotiations the French ceded even  that, is that correct?  When I say "that" I mean the  area west east of the Mississippi?  With much reluctance they agreed to the map as  defining the differences between Louisiana and Canada.  Yes.  But subsequently it went even further than that,  did it not?  Well, the issue of Louisiana/Canada became irrelevant  in 1762 when Britain demanded Eastern Louisiana and  the French agreed to that.  Yes.  And your sources for that are indicated in the  material under tabs -- well, the transmittal to  Amherst is under tab 203.  Mr. Goldie, I am sorry to interrupt, but it will  certainly help me if I can clarify something now.  :  Yes.  Because it might confirm or displace a conception I  have.  Where on this map would you put the line as  settled by the Peace of Paris in 1763.  :  On Vaudreuil's map.  On this tab?  The line of what?  :  Of the boundary between Canada and Louisiana.  Oh, it would be in the Mississippi River.  On this map all the way up to Red Lake?  Yes.  In the Treaty of Paris the thinking of the  negotiators had changed from 1761 when Pitt was  negotiating to 1762.  1761 France was to keep eastern  Louisiana.  So the sort of manoeuvres were to increase  the size of Eastern Louisiana.  Now, that's not  reflected on that map.  It's what Choiseul tried to  do.  In 1762 when Bute started the negotiations the  demands were different.  There had been further  conquests by the British and they said we want all of  Eastern Louisiana and the boundaries to be the  Mississippi.  All the way to its mouth or to its source?  From its source, which was not known by anyone at the  time, to its mouth, yes.  All right.  Thank you.  :  Does that --  Yes.  Thank you.  :  -- clarify the point?  Thank you, my lord.  Now, just to complete the story with respect to Pitt, 20554  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 and I won't ask you to go through these documents.  2 You have the transmittal of the map under tab 203, do  3 you?  4 A   Yes.  5 Q   And under tab 204 is the -- is a record of the  6 conference between Choiseul and Stanley?  7 A   Yes.  8 Q   In which the map is referred to and the bounds of  9 Canada agreed?  10 A   Yes.  In other words, the maps accepted by Choiseul.  11 Q   Yes.  12 MR. RUSH:  Can you just direct him to that, please.  13 MR. GOLDIE:  Yes.  14 Q   Under tab 204 can you indicate to my friend --  15 A   Yes, I can.  It's the very beginning:  16  17 "Marquis de Vaudreuil's map shown Bounds of  18 Canada as agreed therein stated.  Minutes of a  19 conference September 2, 1761."  20  21 It's the first page of the tab at the top.  22 Q   And tab 205 is the -- is the --  23 A   The map itself.  24 Q   No.  Under tab 205.  25 A   Oh.  Sorry.  26 Q   The last memorial of France to England?  27 A   Yes.  28 Q   And that is the last document in the unsuccessful  29 peace negotiations, is it, that you have included?  30 A   Yes.  31 THE COURT:  That's 206, 205.  32 MR. GOLDIE:  205, yes.  33 Q   It contains Bussy's memorial delivered to Mr. Pitt on  34 the 13th of September 1761?  35 A  Accepting the line.  36 Q   Accepting the line.  And as you have explained that  37 changed and the boundary between Canada and Louisiana  38 ceased to be a matter of debate as a result of the  39 further British victories?  40 A   Yes.  May I point out something that may be of  41 importance to his lordship on the map itself?  42 Q   On which map?  43 A   On the Vaudreuil-Haldimand.  44 THE COURT:  Yes.  That's number — ?  45 A   206.  46 MR. GOLDIE:  47 Q   206. 20555  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  A  2  3  4  5    ]  MR. RUSH  6  A  7  8  9  10  11    ]  MR. GOLD  12  Q  13  14  15  A  16  Q  17  A  18  Q  19  A  20  Q  21  22  A  23  Q  24  25  26  27  28  29  30  A  31  32  Q  33  A  34  35  36  Q  37  38  39  A  40  41  42  43  44  45  46  47  Both the dotted line and the red line if we are  proceeding east to west, from below Lake Superior  proceed to Lac Rouge which is given as the source of  the Mississippi.  Well, I —  Well, depicted it seems to me as the source of the  Mississippi.  But anyway, the two lines proceed east  to west to the eastern bank of Lac Rouge.  It does not  proceed through Lac Rouge or appear on the other side,  that is the western side of Lac Rouge.  And there are secondary sources and primary sources  for this part of your consideration in footnotes 207,  208, and under 209 you have a document which --  Yes.  -- is Vaudreuil's letter to Bussy?  Yes.  In which he refers to this particular episode?  Yes.  All right.  And the same footnote contains other  references to that?  Yes.  You next in your endeavor to determine the western  limits of Canada considered the views of the framers  of the Royal Proclamation and you have referred to at  some length.  What light can you shed on the views of  the framers by reference to the documents which you  have already identified, and the first one I refer you  to is Pownall's sketch, which is Volume 1 tab 52.  52.  Pownall understood Canada to stretch as far as  the Great Lakes.  And —  Stretch westward, that is to the Great Lakes.  When I  say Great Lakes I mean the Great Lakes area, general  area.  Right.  Is there a reference in that volume that you  can direct his lordship to under tab 52?  That's all  right, I can --  It would be internal page 19 -- sorry, 261 towards the  bottom:  "And it seems by a paper transmitted to us with  the Earl of Egremont's letter to have been the  idea of some person that it might be advisable  to establish two governments upon the river St.  Lawrence and its dependent territories, and  although we conceive that such an establishment 20556  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 might in some particular cases be attended with  2 local convenience, yet as the proposition is  3 found upon a supposed extention of settlement  4 and jurisdiction as far as the Great Lakes and  5 does not therefore mititate against the general  6 principle -- "  7  8 Is mercantile items,  9  10 "-- upon which all our system is founded, we  11 cannot take upon us to recommend such a plan."  12  13 End quote.  14 Q   Thank you.  And you also considered the report of the  15 board itself, which is tab 58, and I won't ask you --  16 A   Yes.  17 Q   -- to go to that.  His lordship is familiar with that.  18 You also had reference to the letter of Egremont to  19 the board itself --  20 A   Yes.  21 Q   — on July 14, 1763 which is tab 65?  22 A   Yes.  23 Q   And to the supplementary report of the Board of Trade  24 of the 5th of August 1763 which is tab 67?  25 A   Yes.  26 Q   And the -- I -- you next turned your attention to the  27 absence of explicit western boundaries in the  28 Proclamation?  29 A   Yes.  30 Q   And you have identified or you did identify from the  31 text of the Proclamation the one scholarly viewpoint  32 or one viewpoint have proceeded on the basis that the  33 Proclamation could be interpreted in such a way as to  34 allow expansion westward, is that correct?  35 A   I dealt with this in my report.  I don't believe I  36 have testified to that.  37 Q   No.  I say you examined that?  38 A   Yes.  Yes.  39 Q   Yes.  And in respect of that you considered the views  40 identified in your footnotes 215, 216.  You considered  41 scholars and referred to one source at tab -- footnote  42 217?  43 A   Yes.  44 Q   And others at tab — footnote 218?  45 A   Yes.  46 Q   In that respect did you consider whether there was any  47 change between the Board of Trade's recommendations 20557  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  A  3  Q  4  5  A  6  7  8  MR.  RUSH:  9  MR.  GOLDIE  10  Q  11  A  12  13  14  15  Q  16  A  17  Q  18  i  19  A   '  20  21  Q  22  A  23  Q  24  A  25  26  Q  27  A  28  Q  29  A  30  THE  COURT:  31  A  32  THE  COURT:  33  MR.  GOLDIE  34  35  36  37  A  38  THE  COURT:  39  A  40  1  41  42  43  44  45  46  47  and the Proclamation?  Yes, I did.  And did you find anything which was of assistance to  you in forming a conclusion with respect to that?  Yes.  There is a letter from Lord Halifax to Jeffery  Amherst dated October 11, 1763 in which he says  essentially that the Proclamation --  Where is this, please?  :  Tab 220.  Is that the document, doctor?  Yes.  Essentially the Proclamation reproduces the  Board of Trade's report.  I would have myself a couple  of things to say about that, but that's what Halifax  says .  Where --  It's tab 220.  What is the language under tab 220 that you wish to  direct his lordship's attention?  Well, he's writing to the Commander-in-Chief four days  after the Royal Proclamation.  Yes.  Referring to it and he says this, quote.  At what page?  This is tab 220.  I believe there is only -- that's at  internal page 258.  258?  Yes.  All right.  Just a second.  Towards the top.  Just a moment.  It's the last part of the --  I can't find page 258.  :  Yes.  My lord, there are some page numbers which  are not the pages of the document itself on the upper  right-hand corner, but the page that the witness is  referring to is fourth from the end.  Yes.  Yes.  All right.  Yes, I have it.  This is the Southern Secretary informing the  Commander-in-chief:  "By this Proclamation, you will perceive that  the propositions made by the Board of Trade in  their report of the 8th of June last, have in  generally been adopted, with respect to the new  governments to be erected, and the interior  country to be reserved for the use of the  Indians; except only with regard to the first 2055?  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 of those points, that his Majesty has thought  2 proper to give the name of the Province of  3 Quebec to that government which their lordships  4 propose to denominate the Province of Canada,  5 and to extend the northern boundary of East  6 Florida as far as the river St. Mary."  7  8 End quote.  9 Q   From your comparison of the board's report and of the  10 Proclamation, is Lord Halifax's enumeration of the  11 changes exhaustive?  12 A   No.  13 Q   Can you state what other differences there might be  14 which are relevant to the issues here?  15 MR. RUSH:  Differences between?  16 MR. GOLDIE:  17 Q   The —  18 A   The Board of Trade's report and the Proclamation.  19 There are a number of minor differences in boundaries.  20 For example, the northern boundary of East Florida is  21 different, slightly different.  It's moved northward  22 in the Proclamation.  The boundaries of Quebec are  23 slightly different, that is the boundaries of  24 Canada/Quebec are slightly different.  The report  25 talks about western boundaries to the Reserve in terms  26 of the Mississippi and the territory owned by the  27 Hudson's Bay Company, whereas those boundaries are not  28 mentioned in the Proclamation.  Those I would consider  29 minor.  Major difference, though, is that the report  30 of the Board of Trade on the 8th of June advocated  31 that the New Constitutions for Canada/Quebec and the  32 Floridas should be Governors and Councils and, you  33 know, assemblies should be delayed for considerable  34 length of time.  Whereas assemblies are promised by  35 the Proclamation in the context in which individuals  36 would think this would happen very soon.  That's, I  37 think, you know, the major defect I would find in his  38 description.  39 Q   Halifax didn't make any mention of changes in the  40 limits of the Reserve?  41 A   No.  He mentioned a boundary change to East Florida  42 but did not mention any boundary change with relation  43 to the Reserve.  44 Q   All right.  Thank you.  And then you have also  45 considered the -- as I suggested a few minutes ago,  46 suggested the -- considered the writings of various  47 scholars with respect to the question of whether the 20559  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  A  4  Q  5  1  6  A  7  Q  8  A   '  9  ]  10  11  i  12  13  14  15  Q  16  17  A  18  Q  19  A  20  Q  21  A  22  Q  23  A  24  25  26  27  Q  28  29  30  MR.  RUSH:  31  ]  32  MR.  GOLDIE  33  THE  COURT:  34  MR.  GOLDIE  35  Q  36  A  37  Q  38  39  40  41  42  A  43  MR.  RUSH:  44  THE  COURT:  45  46  MR.  RUSH:  47  MR.  GOLDIE  Proclamation contemplated expansion westward or  whether it did not?  Yes.  And you referred in particular under footnote 221 to  Clarence Alvord?  Yes.  Can you tell us who he was?  Well, he was an American historian interested in the  Middle West.  He edited a great number of documents  relating to Imperial policy, dealing with the Middle  West.  He wrote articles and a book on the Mississippi  Valley in British politics in which goes into  tremendous details about the genesis of the  Proclamation.  And in the course of -- and you refer to him in your  footnote 221 and --  Yes.  And also to other writings in footnote 222?  Yes.  And in the writings of a Mr. Harlow?  Yes.  In footnote 223.  Can you tell us who he was?  Vincent Harlow wrote two volumes, a two-volume study  of the British empire from I believe it was 1763 to  1793.  It's considered to be the definitive overall  work on the British empire in that period.  And can you state what conclusion he reached with  respect to the expansion westward of settlement having  regard to the Royal Proclamation?  Well, I think we should be directed to Mr. Harlow's,  my lord.  Well —  It's not here, is it?  It's not here, no.  Well —  I can quote from Harlow.  The page number is provided and that's sufficient for  us at the present time.  Did you find any positive  evidence in the documentary material for the  Expansionists westward of settlement having regard to  the Royal Proclamation?  No.  I think that calls for a conclusion, doesn't it?  Well, I don't know, Mr. Rush.  He said did you find  any evidence.  No.  Did you find any positive evidence of --  :  Well, all right. 20560  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE  MR.  MR.  THE  MR.  THE  THE  MR.  THE  MR.  COURT:  All right.  You are quite right.  GOLDIE:  Q   Any evidence?  A   You mean any evidence that could be arguable one way  or the other or what?  GOLDIE:  No, I should go back my, lord.  Positive means  explicit.  COURT:  Does it?  GOLDIE:  As opposed to lack of it.  Q   Did you find any explicit evidence, and that's what I  meant by the word positive?  A  And this is in the documents outlined by the  Proclamation?  Q   Yes.  A   I guess the answer is no, but with a qualification.  There is a letter from Amherst to Egremont, I believe,  in 1762 suggesting interior colonies and there are one  or two other documents of the same nature which were  ignored by the Board of Trade.  Subject to that caveat  the answer is no.  Q   The date of Amherst's letter?  A   That's, I think, tab 239, a letter from Sir Jeffery  Amherst to the Earl of Egremont.  Q   Yes.  A   That's dated New York, 30 November, 1762 and I got  that from the Shelburne Papers by correspondence in  the WLCL.  Q   And —  A  And he had advocated that there should be colonies at  Detroit and Niagara, and this was ignored in the Royal  Proclamation, but there were people -- there were a  few people advocating such things, but in the  government correspondence that leads clearly to the  Proclamation, the answer is no.  All right.  I am not talking about the pamphleteers.  No.  Was Detroit then as it is now?  Yes.  Just as bad.  That bad?  That's off the record.  Q  A  COURT:  A  COURT:  A  GOLDIE:  Q   Everything is on the record.  A   Oh, I am sorry.  COURT:  But the location was the same?  A   Yes.  GOLDIE:  Yes.  Q   Now, doctor, you have considered the evidence that was 20561  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 available to you with respect to what has been called  2 the Mercantilist position?  3 A   Yes.  4 Q   And are there any documents that you wish to refer us  5 to there?  6 A  Well, I think I have gone over those previously in my  7 testimony and I would refer to my -- drawing the  8 attention of his lordship to Mercantilist's portion of  9 A, the Hints.  10 Q   Yes.  11 A   B, the sketch, C the Knox memoranda and D, the Board  12 of Trade's report.  13 Q   All right.  Thank you.  14 A   Of 8 June.  15 Q   I am sorry, go ahead.  16 A   Of 8 June.  17 Q   And you have earlier referred to Lord Shelburne?  18 A   Yes.  19 Q   Do you wish to add anything that you have said in  20 connection to this?  21 A   Lord Shelburne, although scholars now consider that  22 Lord Shelburne was considered not the most important  23 person behind the Proclamation, but perhaps that  24 scholarship now goes to Lord Egremont and/or John  25 Pownall.  But Shelburne was the Board of Trade's  26 president and was responsible for drafting the June 8  27 report, and in particular he was responsible for  28 drafting the section on advantages, which I think I  29 pointed out to his lordship amounts to over two  30 thousand words and does not contain any suggestion of  31 a westward advance.  Now, Shelburne had gone on record  32 earlier in late 1762.  He gave a speech to the House  33 of Lords on the peace preliminaries.  And I haven't  34 got the tab number in my --  35 Q   235?  36 A   Yes.  37 Q   Are those the notes of his speech?  38 A   Shelburne notes of a speech that he gave in I believe  39 it was December 1762 to the House of Lords on the  40 peace proposals, supporting them.  Scholars have  41 accepted those notes which come from the W. L.  42 Clements Library, the originals of the Shelburne  43 Papers, as accurately reflecting, in as far as notes  44 can do, what he said on that occasion and he went  45 through the advantages of retaining Canada, but did  46 not refer to western expansion.  He wished to have  47 population expansion, but in the coastal area.  And 20562  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  4  Q  5  MR.  RUSH:  6  7  MR.  GOLDIE  8  9  Q  10  11  12  13  A  14  Q  15  16  A  17  18  19  20  Q  21  A  22  23  Q  24  A  25  Q  26  27  28  A  29  30  Q  31  32  33  34  35  36  37  38  39  40  THE  COURT:  41  MR.  GOLDIE  42  43  44  45  46  THE  COURT:  47  MR.  GOLDIE  it's clearly laid out in that document that that's  what he was after.  So that as of 1762, '63, Lord  Shelburne was not an Expansionist.  All right.  I object to the conclusion about what --  Expansionists, my lord.  :  I agree my lord.  The document is here and we -- my  friend can argue from it.  I next ask you to direct your attention to the events  which occurred after the Proclamation and first -- and  this is one that has been referred to earlier, the  Treaty of Stanwix?  Yes.  Would you just briefly tell his lordship what that is  all about?  It's dated 1768, and Sir William Johnson obtained a  surrender from the Six Nations who claimed suzerainty  in the area of a vast tract in the Ohio country from  the Appalachians almost to the Mississippi River.  And how was that received?  The Board of Trade claimed that Johnson had exceeded  his mandate and that tab is --  243?  243, yes.  Yes.  Thank you.  Tab 243.  And is there any part of  that that you wish to draw his lordship's attention  to?  I don't seem to have it marked here.  I have to go  through this.  Well, in the first paragraph when the board says in  the last sentence in the first paragraph:  "....that the Proceedings of your Majesty's  Superintendants in this Business do, each,  relate to Bodies of Indians, having separate  and distinct interests, and that such  Proceedings have, as far as they have hitherto  gone, been carried on without any  inter-Communication or Concurrence."  Where is that, please?  :  That's in the first page, page 158 of the Board of  Trade to the king, a representation of the Board of  Trade to the king upon Sir William Johnson's treaty  with the Indians and this is referring to the Treaty  of Stanwix.  And where is that particular language?  :  It's the second -- well, it is the last long 20563  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  THE  COURT:  4  MR.  GOLDIE  5  THE  COURT:  6  A  7  8  THE  COURT:  9  A  10  MR.  GOLDIE  11  Q  12  A  13  Q  14  15  16  17  A  18  Q  19  20  A  21  ]  22  23  THE  COURT:  24  A  25  THE  COURT:  26  A  27  28  29  30  31  MR.  RUSH:  32  A  33  MR.  GOLDIE  34  ]  35  36  37  38  THE  COURT:  39  MR.  GOLDIE  40  Q  41  42  A  43  44  45  46  47  clause, begins with the word "and as we humbly  conceive."  Oh, yes.  Thank you.  :  And then I've read down to the word "concurrence."  Yes.  This would be one of the passages.  I think I simply  refer to the entire document and I haven't specified.  Stanwix is S-t-a-n --  w-i-x.  That is one aspect that you considered?  Uh-huh.  And that was from the Board of Trade and at some later  point around that time do the board have occasion to  reconsider its particular position with respect to  expansion in land?  And I refer you to tab 249.  Yes.  And if you wish assistance with respect to the page of  your report, page 175.  Yes.  This is a report of the Board of Trade to his  Majesty dated 7 March 1768 and in that report  particularly at pages 27 to 30 it said this.  I am sorry, what page?  27 to 30.  Yes.  Thank you.  "The great object of Colonizing upon the  Continent of North America -- "  Where were you reading from?  Page 27 to 30.  :  It's about three-quarters of the way down the page,  my lord.  The left-hand margin of the print has cut  some of the words in two, but there is a sentence that  begins with the words "the Proposition of forming  inland Colonies in America."  Yes.  And then Dr. Greenwood was beginning to read just  below that.  "The great object of Colonizing upon the  Continent of North America has been to improve  and extend the Commerce, Navigation and  Manufactures of this Kingdom, upon which its  strength and security depend.  First, by 20564  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 promoting the advantageous fishery carried on  2 upo the Northern Coast; secondly, by  3 encouraging the growth and culture of Naval  4 Stores, and of raw materials to be transferred  5 hither in Exchange for perfect Manufacture and  6 other Merchandise.  Thirdly, by securing a  7 supply of Lumber, provisions, and other  8 necessaries for the support of our  9 Establishments in the American Islands.  In  10 order to answer these Salutary purposes it has  11 been the policy of this Kingdom to confine her  12 Settlements as much as possible to the Sea  13 Coast and not to extend them to places  14 unaccessible to Shipping and consequently more  15 out of the reach of Commerce."  16  17 These --  that's my editorial addition, "these",  18 quote, "same motives," as an addition.  19  20 Q   Yes.  You are over onto page 28 now?  21 A   Yes.  22 Q   It's the second complete paragraph, my lord.  2 3    THE COURT:  Yes.  24 A  25  26 "These same Motives  did as we humbly  27 conceive induce the forming the Colonies of  28 Georgia, East Florida and West Florida to the  29 South and the making of those provisional  30 Arrangements in the Proclamation in 1763, by  31 which the interior Country was left to the  32 Indians."  33  34 MR. GOLDIE:  35 Q   "To the possession of the Indians."  36 A   "Left to the possession of the Indians."  And I go on:  37  38 "We admit as an undeniable principle of true  39 policy — "  40  41 THE COURT:  I haven't found that.  42 MR. GOLDIE:  No.  43 A   It's at the top of page --  44 MR. GOLDIE:  45 Q   30.  46 A   30.  The last page.  47 Q   It begins at line one, my lord. 20565  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 A  2  3 "We admit as an undeniable principle of true  4 policy, that with a view to prevent  5 Manufactures it is necessary and proper to open  6 and extent of territory for Colonization  7 proportioned to the increase of people, as a  8 large number of inhabitants, cooped up in  9 narrow limits without a sufficiency of lands  10 for produce would be compelled to convert their  11 attention and industry to Manufactures; but we  12 submit whether the encouragement given to the  13 Settlement of the Colonies upon the Sea Coast,  14 and the effect which such encouragement has  15 had, has not already effectually provided for  16 in object   an advantage which in our  17 humble opinion --"  18  19 MR. GOLDIE:  You have skipped some words?  20 A   Yes.  21  22 "-- would not be promoted by these new colonies  23 which being..."  24  25 Skip.  26  27 " .... at the distance of above fifteen hundred  28 miles from the Sea, and in places..."  29  30 Skip.  31  32 " .... utterly inaccessible to shipping will  33 from their inability to find returns wherewith  34 to pay for the Manufactures of Great Britain be  35 probably led to manufacture for Themselves a  36 consequences which..."  37  38 Skip.  39  40 " .... ought in our humble opinion to be  41 carefully guarded against by encouraging the  42 Settlements of that extensive tract of Sea  43 Coast hitherto unoccupied."  44  45 End quote.  46 Q   All right.  Now, the board -- was the board addressing  47 any particular proposal at that point? 20566  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 A   I think there was a proposal for interior colonies,  2 one or more interior colonies being put forth by  3 persons interested in western land such as Benjamin  4 Franklin.  5 Q   All right.  And you have included --  6 A  Which was a constant -- constantly going on from 1767  7 to 1773.  8 Q   All right.  Now, I will come it that in a minute.  I  9 want to go back to the documents that you have.  10 THE COURT:  Did I get it right that that document was dated  11 March 7, 1786?  12 A   1768.  13 THE COURT:  1768?  14 A   8, yes.  15 THE COURT:  I was transposing my letters.  16 MR. GOLDIE:  My lord, to follow the sequence I'll be going over  17 to the next volume.  But before I do that, I wondered  18 if it would be convenient for your lordship to take a  19 morning break at this point.  20 THE COURT:  Yes.  Almost halfway to 12:30.  21  22 (PROCEEDINGS ADJOURNED PURSUANT TO MORNING BREAK)  23  24 I hereby certify the foregoing to be  25 a true and accurate transcript of the  26 proceedings herein to the best of my  27 skill and ability.  28  29  30  31 Laara Yardley, Official Reporter,  32 United Reporting Service Ltd.  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 20567  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  A  THE COURT:  A  THE COURT:  A  (PROCEEDINGS RESUMED FOLLOWING SHORT RECESS)  THE COURT:  Mr. Goldie.  MR. GOLDIE:  My lord.  Before finishing with this volume, my  lord, I might just mention the remaining footnote  references that I would wish to have available for me.  They are the references in footnotes 211, 215 and 216,  219, 228, 230, 231, 232, 236, 237, 240, 241 and 248.  Q   Now, Dr. Greenwood, with respect to the question of  matters which occurred after the Royal Proclamation  did you also consider the view points of Lord  Barrington, and if so would you tell us who he was and  what document it is that you are referring to?  Yes.  It's the document in tab 247.  Viscount  Barrington, whose full name was William Wildman, was a  successful placeman in the British government.  A successful --  Placeman.  A man who held numerous offices.  I see.  Yes.  And prior to the Proclamation he had been Secretary of  War.  At the time of Proclamation he held one of the  great offices of state, Treasurer of the Navy.  But I  must point out that he was although a minister of the  Crown then it was not of the inner cabinet at the time  of the Proclamation.  At the time of the document,  which is 1766, he was again Secretary of War.  The  document is endorsed "Lord Barrington's thoughts upon  North America".  It comes from the Barrington papers  in the National Archives of Canada.  This is a copy  with General Gage's comments in the margin.  General  Gage was then --  How do we know?  Thomas Gage was then North America Commander in Chief.  The text itself in the right-hand column is that of  Barrington either written by him or written for him.  Now, he proposed in this plan to bring -- bring back  troops from the west to the coastal area.  He had been  much influenced by the Stamp Act riots and thought  there should be a receding eastward of the military  troops, the British military troops, and this is what  he was arguing for in his plan.  It was partly  implemented later.  I would direct your lordship's  attention to the first internal page and the first few  lines of that where he refers explicitly to the Royal  Proclamation of October, 1763.  Next I would refer your lordship to the second  paragraph, and I will quote that second paragraph.  MR.  RUSH:  A 2056?  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  MR. RUSH:  Is this on the first page?  A   It's on the first page, but it runs over onto page  two.  And this is what he had to say about the policy  behind the Proclamation.  "The policy of forbiding British subjects to  settle beyond the Heads of those Rivers which  run into the Atlantic Ocean."  That is the Appalachian Ridge.  "Is founded on this Consideration that as the  North American Productions are weighty and of  great Bulk, water Carriage is extremely  necessary to convey them to the Seaside for  Exportation and to reconvey to the Inland  Country the Manufactures of Great Britain, a  Convenience without which such settlements can  have little or no communication with the Mother  Country or be of much utility to it."  MR. GOLDIE:  Q   Thank you.  He then goes on to make his suggestions  with respect to the disposition of the troops, and  that is the matter in which General Gage was required  or did comment?  A   Yes.  MR. GOLDIE:  Thank you.  Now, we had -- or you had brought to  his lordship's attention the comments of the Board of  Trade in its statement dated March 7th, 1768 under tab  249.  And I'm going to follow that up, but before I do  so I tender Volume 4 as Exhibit 1164 comprising --  comprised of the documents under tab 193 to 249 as  identified on the index at the beginning of that  volume, my lord.  THE COURT:  Yes.  (EXHIBIT 1164-193: John Entick Map)  (EXHIBIT 1164-194A: London Magazine Map)  (EXHIBIT 1164-194B: Thomas Kitchen Map)  (EXHIBIT 1164-195: John Gibson Map)  (EXHIBIT 1164-197A: Choiseul's Memorial) 20569  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 (EXHIBIT 1164-197C  Choiseul to Bussy)  2  3 (EXHIBIT 1164-198A:  Bussy to Choiseul)  4  5 (EXHIBIT 1164-198B:  Pitt's Ultimatum)  6  7 (EXHIBIT   1164-198C      Bussy  to   Choiseul)  8  9 (EXHIBIT 1164-199:  Pitt to Bussy)  10  11 (EXHIBIT 1164-200:  Pitt to Stanley)  12  13 (EXHIBIT 1164-201A:  Amherst to Haldimand)  14  15 (EXHIBIT 1164-201B:  Haldimand to Amherst)  16  17 (EXHIBIT 1164-202:  Haldimand to Amherst)  18  19 (EXHIBIT 1164-203:  Amherst to Pitt)  20  21 (EXHIBIT 1164-204:  Minutes of Conference Between  22 Choiseul and Stanley)  23  24 (EXHIBIT 1164-205:  Bussi to Pitt)  25  26 (EXHIBIT 1164-206:  Vaudreiul - Haldimand Map)  27  28 (EXHIBIT 1164-209A:  Vaudreuil to Choiseul)  29  30 (EXHIBIT 1164-209B:  Ontario Sessional Papers)  31  32 (EXHIBIT 1164-220:  Halifax to Amherst)  33  34 (EXHIBIT 1164-225B:  Pownall Drafted Memo for  35 Shelburne)  36  37 (EXHIBIT 1164-235:  Shelburne's Notes of Speech)  38  39 (EXHIBIT 1164-239:  Amherst to Earl of Egremont)  40  41 (EXHIBIT 1164-243:  Representation of Board of Trade)  42  43 (EXHIBIT 1164-247:  Barrington's Thoughts Upon North  44 America)  45  46 (EXHIBIT 1164-249:  Board of Trade Report)  47 20570  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 MR. RUSH:  Just one observation, my lord.  I take it that the  2 document after the divider in tab 247 is a  3 transcription of the remarks which appear to be in  4 handwriting before the tab; is that right?  5 THE COURT:  It looks like it.  6 MR. RUSH:  It does look like it to me.  7 THE COURT:  Is that right, Mr. —  8 MR. GOLDIE:  9 Q   Can you identify the origin or the source of the  10 typewritten pages following the blue divider under  11 section -- under tab 247?  12 A   Yes.  The typewritten copy appears to be identical at  13 least with the Barrington original which I used.  It  14 is found -- that is the typed copy is found in the  15 Shelburne -- Shelburne papers in the National Archives  16 of Canada.  And it's a copy made by, as all of them  17 are, by an archivist clerk early in the century using  18 the Shelburne originals then housed in Landsdowne  19 House, London, since been purchased by Ann Arbour  2 0              WLCL.  21 Q   WLCL being?  22 A  William L. Clements Library, Ann Arbour, Michigan,  23 University of Michigan, U.S.A..  24 Q   I want to go to volume five, my lord.  25 THE COURT:  Shall we reserve 1165 for this?  26 MR. GOLDIE:  I think 1165 has been taken.  27 THE REGISTRAR:  1166.  28 MR. GOLDIE:  1166.  And may I reserve that number then, my lord.  29  30 (EXHIBIT 1166:  Document Book re Greenwood's Report -  31 Volume 5 tabs 251 - 292B)  32  33 MR. GOLDIE:  34 Q   Now, you had occasion to examine the history of a  35 petition of Benjamin Franklin and others for a grant  36 of land on the River Ohio for the purpose of  37 settlement.  And is that the project that was  38 sometimes known as Vandalia?  39 A  Vandalia came out of it, or emerged out of it  40 afterwards, yes.  41 Q   Yes.  Thank you.  By reference to the document under  42 251 would you tell his lordship what the response of  43 the Board of Trade was to this?  44 A   Yes.  This is a report of the Board of Trade dated 15  45 April, 1772.  The only copy I could come across was  46 found in this document which is a report -- printed  47 report with comments thereon by, among others, 20571  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 Benjamin Franklin.  2 Q   Yes.  3 A  And I direct his lordship's attention to pages six and  4 seven, internal pages six and seven.  And this is what  5 the Board of Trade had to say in this particular  6 report.  7 MR. GOLDIE:  This is page six and seven are the second page in?  8 THE COURT:  Yes.  9 MR. GOLDIE:  Of the tab.  10 A   Yes.  And they're Franklin et als production of the  11 report.  12  13 "And first with regard to the policy we take  14 leave to remind your Lordships of that  15 principle which was adopted by this Board, and  16 approved and confirmed by his Majesty,  17 immediately after the Treaty of Paris, viz, the  18 confining the western extent of settlements to  19 such a distance from the sea coast, as that  20 these settlements should lie within the reach  21 of trade and commerce of this kingdom, upon  22 which the strength and riches of it depend, and  23 also of the exercise of that authority and  24 jurisdiction, which was conceived to be  25 necessary for the preservation of the colonies,  26 in a due subordination to and dependance upon  27 the Mother Country; and these we apprehend to  28 have been the two capital objects of his  29 Majesty's Proclamation of the 7th of October  30 1763, by which his Majesty declares it to be  31 his royal will and pleasure to reserve under  32 his sovereignty, protection and dominion, for  33 the use of the Indians, all lands..."  34  35 The report --  36 MR. RUSH:  You should finish that.  37 A   Okay.  38  39 "Not included within the three new governments,  40 the limits of which are described therein, as  41 also all the lands and territories lying to the  42 westward of the sources of rivers which shall  43 fall into the sea from the west and northwest,  44 and by which all persons are forbid to make any  45 purchases or settlements whatever, or to take  46 possession of any of the lands above reserved  47 without special licence for that purpose." 20572  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  MR. GOLDI  2  Q  3  4  5  A  6  7  8  Q  9  A  10  Q  11  12  13  14  A  15  Q  16  17  A  18  19  20  21  22  23  Q  24  A  25  Q  26  A  27  28  29  30  31  Q  32  A  33  Q  34  A  35  36  37  Q  38  THE COURT  39  A  40  41  42  MR. GOLDI  43  Q  44  45  A  46  Q  47  All right.  Thank you.  And are there any other  documents that you wish to refer to which deal with  that proposal?  Well, there of course is the reaction of Walpole and  Associates later on in the pamphlet.  I don't know if  that's what you're referring to.  Perhaps I -- before following the event itself --  M'hm.  -- Can you tell his lordship something about the  composition of the Board of Trade in 1768 and 1772  when the two reports to which you've referred were  issued?  Yes.  Having regard to those which -- the composition of the  board in 1763.  Yes.  There were three members of the board actively  involved in preparing the 1768 document who had helped  to frame the Proclamation itself.  They were Soame  Jenyns, J-E-N-Y-N-S, George Rice and Edward Eliot.  They had attended the Board of Trade meeting of 8  June, 1763.  Which resulted in the board report of the same date?  Yes.  Yes.  Eliot and Rice also participated in the session of 5  August, 1763 which resulted in the supplementary  report of that date.  Rice in addition had been  present during some of the drafting sessions from the  28th of September to 4th of October, 1763.  Thank you.  I have the others for 1772.  Do you want them?  Yes.  Thank you.  Among those who prepared the 1772 report were Jenyns,  Eliot and the longstanding member, the lawyer Bamber  Gascoyne.  All right.  Thank you.  :  I'm sorry?  Bamber Gascoyne.  The latter Bamber Gascoyne had  attended both sessions of 8 June and 5 of August,  1763.  You have under tab 253 an extract from the journal of  the Board of Trade?  Yes.  And is that the source of your information with  respect to the personnel of the board? 20573  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 A  Well, the 252 as well as 253, yes.  2 Q   Of the two dates we've been talking about?  3 A   No.  252 and 253.  4 Q   All right.  Thank you.  Now, you told his lordship  5 earlier something about the Earl of Hillsborough?  6 A   Yes.  7 Q   He -- have you run across anything which related to  8 his views, and if so what were they by reference to a  9 document?  10 A   Yes.  11 Q   And would you tell me, please, again who the Earl of  12 Hillsborough was?  That is to say the office he held.  13 A  Well, at the time of the Proclamation he was the  14 President of the Board of Trade.  In April 1772 he was  15 Secretary of State for the American colonies.  That  16 had been a third office created in 1768, a third  17 secretaryship for the American colonies.  He held that  18 office, and he was also at that time President of the  19 Board of Trade as well.  20 Q   Now, and have you discovered anything which reflects  21 his subsequent point of view?  22 A   Yes.  There's a document -- a letter written by  23 Hillsborough to Sir William Johnson who was still  24 Northern Superintendent, and dated 1st of July, 1772.  25 And I cite that in footnote 255.  26 Q   And the document itself is under tab 255, is it?  27 A   Yes.  28 Q   And the portion to which you refer under that tab is  29 the fourth complete paragraph?  30 A   Beginning "Everyday discovers".  31 Q   Yes.  32 A  And I might note that the verb discoveries or  33 discovered meant in the eighteenth century, among  34 other things, revealed.  35 Q   Yes.  36 A  37 "Everyday discovers or reveals more and more  38 the fatal policy of departing from the line  39 prescribed by the Proclamation of 1763 and the  40 extension of it."  41  42 Q   Right.  Well, yes.  All right.  Thank you.  43 There were criticisms, were there, of the points  44 of view revealed by some of your last references?  45 A   Yes, there were.  And there were a number -- at this  46 time when we're speaking of some years after the  47 Proclamation there were a number of people publicly 20574  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  4  5  Q  6  A  7  Q  8  A  9  Q  10  A  11  12  13  14  15  Q  16  A  17  Q  18  19  20  21  i  22  i  23  A  24  Q  25  i  26  A  27  Q  28  29   :  MR. RUSH:  30  A  31  MR. GOLDIE  32  Q  33  34  35  A  36  37  38  Q  39  40  i  41  42  43  A  44  45  46  Q  47  A  agitating for western expansion and lobbying the  imperial government, and indeed there were criticisms  of the positions taken by such people as Lord  Barrington and the Board of Trade.  And you have gathered some of that under tab 256A?  Yes.  Which is Amherst's --  Yes.  -- Observations?  Yes.  This document is entitled "Remarks on Ld.  Barrington's Plan No. 1" found in the Shelburne papers  of the National Archives of Canada.  Authorship has  been attributed to Jeffery Amherst by the sources I  gave in footnote 256.  Yes.  Thank you.  And under 2 --  Do you wish me to quote that?  No.  That's all right.  Thanks.  Under 256C there is  reference to a Mr. Jackson and his opinion on western  plans of November, 1766.  Perhaps you might tell us  who Mr. Jackson was.  Well, there's a footnote in the  document.  This is from the Illinois Historical  Collections?  Historical Collections, yes, volume ten.  And there's a footnote two on the page 422 which  describes Mr. Jackson?  Yes.  And he refers to it as a temporary -- the Proclamation  as temporary provision.  That's at 426.  Where are you reading from, please?  426.  :  Page 426.  And these observations that you have found relate to  the -- the merits or the application of the policy at  the time of the writing?  That's correct.  They are not attempting to write  history, they're attacking history on the merits of  confinement.  All right.  Thank you.  Now, I want to just note that  at 257 there is a document which -- tab 257 is a  document which is -- I think we've seen it before in  another form, but would you identify this for us,  please?  Yes.  These are minutes submitted to the cabinet in  the beginning of the summer of 1767 by Lord Shelburne,  and they are found in the Shelburne papers, volume 12.  All right.  And —  And I would direct your attention -- I don't think we 20575  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 need quote perhaps, but page 123 verso to 124.  2 Q   All right.  Thank you.  3 THE COURT:  Where are the page numbers?  4 MR. GOLDIE:  It's page 123, my lord.  5 THE COURT:  Volume number?  6 MR. RUSH:  How can you tell?  7 MR. GOLDIE:  The upper right-hand corner.  8 MR. RUSH:  There aren't any on mine.  9 THE COURT:  No numbers.  10 A   I can do it.  11 MR. GOLDIE:  Perhaps —  12 A   Tenth physical page in, my lord.  13 THE COURT:  Ten pages in?  14 A   Tenth physical page, yeah.  The beginning of the text  15 being the first.  16 THE COURT:  What's the first word on the top?  17 A   On that page "undoubtedly".  18 MR. GOLDIE:  My lord, my page has a number and I'm going to  19 suggest that your lordship exchange for mine and I'll  20 find -- try and find a page number for my friend.  21 MR. RUSH:  Well, if you can just confirm that the beginning of  22 the page is "if anything can tend to keep up"?  23 A   No.  It starts "undoubtedly be maturely considered".  24 MR. RUSH:  Yes.  All right.  The page before.  25 THE COURT:  I can follow here.  I've found the page, and I've  2 6 made some notes on it.  27 MR. GOLDIE:  Thank you, my lord.  28 THE COURT:  So the page starting "undoubtedly" is the page?  29 A   Is 123.  And the next page would be 124.  And those  30 are the only ones I have noted.  31 THE COURT:  Yes.  Thank you.  32 MR. GOLDIE:  Thank you.  33 Q   And as a secondary reference with respect to that you  34 have made -- you have considered the publication of  35 Sosin, "Whitehall and the Wilderness" to which  36 reference has already been made, and Humphreys, "Lord  37 Shelburne and British Colonial Policy", both referred  38 to in footnote 257?  39 A   Yes.  40 Q   Now, going back to the -- to the Franklin application,  41 which was -- we have referred to under the Board's  42 report --  43 A  M'hm.  44 Q   -- Under tab 251.  What was the -- was the Board's  45 recommendation accepted?  46 A   No, it was not.  47 Q   And the -- is there any evidence of the grounds upon 20576  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 which the -- the plantation -- the Plantations  2 Committee of the Privy Council accepted grounds upon  3 which they accepted the petition?  4 A   Yes, there is.  And it would be found cited in  5 footnote 260, Proceedings of the Privy Council.  6 Q   Yes.  And that document is found under tab 260, my  7 lord.  8 A   Yes.  Internal page 209, I believe.  9 Q   Yes.  10 A  And essentially what they said is that the lands in  11 question --  12 Q   This is at page 209?  13 A   Yes.  14 Q   The paragraph beginning with the number second.  15 Perhaps I should refer you, Dr. Greenwood, to the  16 preceding two paragraphs.  17 A   Yes.  18 Q   Beginning with the words:  "The committee having  19 received the Board of Trade report and heard further  20 evidence produced by the petitioners reported".  And  21 this is the report of the Plantations Committee of the  22 Privy Council?  23 A   Yes.  Do you want me to read --  24 Q   I'd like you to read the paragraphs numbered first and  25 second.  26 A   Yes.  27  28 "That the lands in question have been for  29 sometime past and are now in actual state of  30 settling numbers of families to a very  31 considerable amount moving thither continually  32 from your Majesty's other colonies.  33 Second.  That the lands in question do not lie  34 beyond the reach of advantage (sic) intercourse  35 with this kingdom.  It appearing from diverse  36 policies of insurance laid before this  37 committee that sundry commodities, the produce  38 of those lands are exported from vent to a  39 considerable amount.  Evidence having been  40 likewise produced of a person being employed to  41 collect a ship from hence a cargo of British  42 merchandise for the use and consumption of the  43 said settlers and natives."  44  45 Q   Thank you.  And I next ask you if you considered the  46 Quebec Act and its legislative history in connection  47 with the question of the policy of the Proclamation 20577  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 and whether it was expansionist or contained?  2 A   Yes.  3 Q   Would you first identify for us the Quebec Act.  Is  4 that under tab 206 — 261?  5 A   Yes.  14 George the III, 1774, chapter 83.  6 Q   Right.  And perhaps you might refer to the -- to the  7 first -- well, the preamble makes reference to the  8 Royal Proclamation, does it?  9 A   Yes, it does.  Six lines down.  10  11 "And were asked by the arrangements made by the  12 said Royal Proclamation a very large extent of  13 country within which there were several  14 colonies and settlements from France who  15 claimed to remain under the faith of the said  16 treaty was left without any provision being  17 made for the administration of civil government  18 therein."  19  20 Q   Right.  And then in the substantive parts of the  21 Quebec Act --  22 A   Yes.  23 Q   -- Is there any reference to the Proclamation?  24 A  Well, they don't have paragraph numbers, but at the  25 bottom of page 402, 403:  "The Proclamation and all  2 6 documents dependent upon it are revoked for Quebec  27 entirely".  28 Q   Would you read the words to which you have reference?  29 A   Yes.  30 "Be it therefore further enacted --"  31  32 THE COURT:  Just a moment.  Yes.  Thank you.  Fourth line from  33 the bottom?  34 A   Yes.  35  36 "Further enacted by the authority of the  37 aforesaid."  38  39 Which is the Imperial Parliament.  40  41 "That the said Proclamation so far as the same  42 relates to the said Province of Quebec and the  43 commission under the authority whereof the  44 government of the said province is at present  45 administered, and all and every the ordinance  46 and ordinances made by the governor and Council  47 of Quebec for the time being relative to the 2057?  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  4  5  6    ]  MR. GOLDIE  7  Q  8  9  10  11  A  12  13  Q  14  15  A  16  Q  17  18  i  19  A  20  21  22  23  24  25  26  Q  27  A  28  Q  29  A  30  Q  31  A  32  33  34  Q  35  A  36  37  38  39  40  41  42  43  44  45  46  47  civil government and administration of justice  in the said province, and all commissions to  judges and other officers thereof, be, and the  same are hereby revoked and made void from and  after the 1st day of May, 1775."  Now, the effect -- without going into the specific  provisions of the Quebec Act, but the effect was to  enlarge substantially the Colony of Quebec; is that  correct?  Yes.  Towards Labrador and especially towards the Ohio  and the Mississippi, yes.  And was this commented upon by the Earl of  Hillsborough?  Yes , it was.  And did he raise objections, and were those objections  answered, and if so can you make reference to a  document?  Yes.  Hillsborough objected that the extension of the  boundaries plus the granting of civil jurisdiction in  the area of the northern part of the reserve seemed to  imply that settlers would be going there, because  there would be civil jurisdiction for the first time.  These objections were laid to rest in a letter of --  from Dartmouth, Lord Dartmouth --  Under tab --  -- To Hillsborough.  262?  262.  Yes.  Dated 1st of May, 1774.  I consulted the original and  used that, but have filed the shortened copy.  Should  I read that?  Yes, please.  "To Lord Hillsborough.  My Dear Lord.  Mr. Knox  has stated to me your lordship's two objections  to the Canada Bill which I propose to lay  before the House of Lords tomorrow."  That is the bill, not the objections.  "And I have communicated them to the Cabinet,  who are unanimously of opinion that the  extension of the Province to the Ohio and  Mississippi, is an essential and very useful  part of the Bill, it provides for the 20579  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 establishment of civil government over many  2 numerous settlements of French subjects but  3 does by no means imply an intention of further  4 settling the Lands included within this  5 extension, and if it is not wished that British  6 Subjects should settle that Country nothing can  7 more effectually tend to discourage such  8 attempts, which in the present state of that  9 Country, your lordship knows very well, is  10 impossible to prevent.  Your objection to the  11 clause allowing a change of tenure their  12 lordship's thought proper to come into and was  13 accordingly struck out of the bill."  14  15 Q   And subsequent to the passage of the Quebec Act were  16 instructions issued to the Governor of Quebec which  17 contained any relevant observations on this question  18 of settlement?  19 A   Yes.  20 THE COURT:  I'm sorry.  Mr. Greenwood, could you tell me again  21 who was Dartmouth?  22 A   Dartmouth is the American Secretary.  One of the three  23 at that time secretary's of state.  He was responsible  24 for the colonies.  2 5    THE COURT:  Thank you.  2 6 A  And everything -- documents related to Dartmouth I've  27 taken from the originals in the National Archives of  2 8 Canada.  29 THE COURT:  And Hillsborough at that time was Board of Trade —  30 A   Hillsborough at that time was out of office, but very  31 close to the ministry so was consulted, but he had no  32 official position.  33 MR. GOLDIE:  34 Q   At the time of that correspondence?  35 A  At the time of the Quebec Act and the events leading  36 up to it.  37 THE COURT:  Thank you.  38 MR. GOLDIE:  39 Q   Now, would you turn to tab 263.  40 A   Yes.  41 Q   And identify for his lordship what the document there  42 is, and direct him to the section that is relevant to  43 the question of settlement.  44 A   Yes.  It's paragraph 31 on page 428.  These were  45 instructions to Governor Carleton, 3rd January, 1775.  46 Q   That is to say after the passage of the Quebec Act?  47 A   Yes.  They're instructions that are redrafted to take 20580  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  Q  3  4  A  5  Q  6  7  A  8  Q  9  THE  COURT:  10  MR.  GOLDIE  11  THE  COURT:  12  A  13  1  14  15  16  17  18  1  19  20  Q  21  22  A  23  Q  24  A  25  26  Q  27  A  28  THE  COURT:  29  MR.  GOLDIE  30  MR.  RUSH:  31  MR.  GOLDIE  32  MR.  RUSH:  33  THE  COURT:  34  MR.  GOLDIE  35  Q  36  37  A  38  39  1  40  41  42  43  44  45  46  47  Q  account of the Quebec Act.  Yeah.  And the sections to which you refer are  paragraphs 31?  Yeah, 31.  Thank you.  Would you, please, look at the document  under tab 264 and --  Yes.  -- Just tell his lordship what that is.  264?  :  2 64.  Yes, my lord.  Yes.  It's a dispatch from Shelburne, Secretary of State, to  Carleton dated 14 November, 1767.  And it's taken from  the C042 series in the National Archives of Canada.  Those are microfilms of the original C042 documents  which are in PRO.  They primarily deal with dispatches  and enclosures from Quebec back to London.  Occasionally, as in this case, there is correspondence  coming the other way.  Not normally though.  You noted it with respect to the question of the  knowledge --  Yes.  -- And instructions to the Quebec Governor as of 1767?  Yes.  The area west of Lake Superior I was referring  to.  Yes.  And at pages 209 verso.  Sorry.  Which document are you referring to?  :  It's under 264.  There are two documents.  :  I think they're the same document, are they not?  No, there is different --  Different handwriting.  Blue divider.  Can you advise his lordship with respect to that,  please?  Yes.  It's simply that if you take the second one, the  second one is a microfilm copy of the original C042  document.  You know, this document in the C042 in the  PRO, and those are originals.  Now, the first document  is a copy of that original.  It's found in the Q  Series at the National Archives of Canada.  The Q  Series was simply a set of copies made of C042 by  numerous archivist clerks in the late nineteenth  century and early twentieth century.  It's a majestic  job, but they're essentially the same.  If you can make out the handwriting, and I take it you 20581  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  A  3  4  MR.  RUSH:  5  6  1  7  MR.  GOLDIE  8  9  Q  10  A  11  THE  COURT:  12  A  13  MR.  RUSH:  14  15  THE  COURT:  16  MR.  RUSH:  17  18  MR.  GOLDIE  19  MR.  RUSH:  20  MR.  GOLDIE  21  22  Q  23  24  25  A  26  27  Q  28  A  29  THE  COURT:  30  A  31  THE  COURT:  32  A  33  THE  COURT:  34  A  35  THE  COURT:  36  A  37  38  39  THE  COURT:  40  MR.  GOLDIE  41  THE  COURT:  42  MR.  GOLDIE  43  THE  COURT:  44  A  45  46  MR.  GOLDIE  47  Q  can, you're referring to the photocopy?  I was referring to the more original one, which is an  original, yes.  I guess my confusion springs from the fact that if  they're original the face page appears to date them on  different dates.  That's --  :  Well, I think the witness said the first document  is an archivist's copy.  Is that correct?  Just let me check.  They have the same date, don't they, Mr. Rush?  Both have 14 November, 1767 as far as I can see.  That's what appears on the document itself, but as I  say, my lord, the face page or the --  Oh.  The listing page, if you will, of the AGBC lists them  as 14 and 11 of November.  :  Well, I think that's a typographical error.  I see.  :  What has happened is that the -- well, I won't  speculate on that.  You were going to go to the page that follows 209,  number 209 I should say, and what part were you going  to direct his lordship's attention to, please?  The first full paragraph, and the concluding words on  page 210.  All right.  Do you wish me to read them or no?  I haven't found this numbering yet.  It's in the second document, my lord.  Oh, yes.  Yes.  209.  Go one more page.  I have it?  209 verso.  Yes.  All right.  There's a paragraph "as an accurate knowledge of".  And he points out that they don't have any accurate  knowledge of.  I haven't found that yet.  I have 209.  :  The next -- would your lordship --  Yes, I have it.  :  -- Go to the page following the number 209.  An accurate --  "An accurate knowledge of the interior parts of North  America".  Perhaps you might just read that out into the record. 20582  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  A  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  Q  17  18  19  A  20  Q  21  A  22  THE  COURT:  23  A  24  25  26  27  28  29  30  MR.  GOLDIE  31  Q  1  32  A  33  THE  COURT:  34  A  35  THE  COURT:  36  1  37  A  38  39  40  MR.  GOLDIE  41  42  43  THE  COURT:  44  A  45  THE  COURT:  46  A  47  "As an accurate knowledge of the interior parts  of North America would contribute much towards  enabling his Majesty's ministers to judge  soundly of the true interests of the different  provinces.  I cannot too strongly recommend to  you the encouraging such adventurers as are  willing to explore those parts which have not  hitherto been much frequented and consequently  are scarcely, if at all, known.  Particularly  towards the territories comprised in the  charter of the Hudson's Bay Company, north of  the Hudson's Bay Company and northward, and the  country beyond the Lake Superior westward."  All right.  Thank you.  And you have included in your  collection under tab 269 a document which -- well,  would you identify it, please?  Yes.  It's a very long and almost illegible document.  Right.  Yes, this is a letter --  Not almost, Mr. Goldie.  It's a letter from Captain Bell to Pitt.  This is  Thomas Bell, Captain Thomas Bell to Pitt.  Well, I was  unable to find much about Captain Bell other than he  was obviously a very learned gentleman, and he was  interested in international law and politics, and he  corresponded considerably on a friendly basis with the  elder Pitt.  Must have been a naval Captain?  Could be.  And this is at 328 the quotation.  Page 328?  Now, that's going to be difficult to find.  Well, the second page in at the bottom has a little  diamond in it.  I don't know if that says B29 or --  The pagination as it appears here is reflective of  what the document is in the PRO.  The pagination is  all out of kilter in the PRO.  Fifth physical page in.  :  Excuse me.  My lord, we've had an enlargement made  of this and perhaps your lordship can follow it from  there.  All right.  You said the fifth physical page in?  The fifth physical page in the document in the tab.  All right.  At the top of the page, first line, "there appears".  Have you got that? 20583  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 THE COURT:  Yeah.  2 A  3 "There appears a great weakness in a late  4 Proclamation, which seems to have little Idea  5 of the high grand Scale on which all national  6 Affairs should be conducted on, talks about the  7 River St. John when it ought to be thinking of  8 the North pole; and of the Lake Nipissin (sic)  9 when it ought to be pushing to the Grand  10 pacific ocean."  11  12 MR. GOLDIE:  13 Q   Is that the only contemporary author or individual who  14 appears from what you've just read to have favored  15 indefinite expansion?  16 A   Yes, he is.  17 Q   Thank you.  18 A  Meaning expansion beyond the Mississippi, yes.  19 Q   Yes, that's right.  Thank you.  Now, I want to turn,  20 Dr. Greenwood, to the question of, or the apparent  21 question of the intersection of the Mississippi River  22 and the southern limit of the Hudson's Bay Company  23 territory.  And the -- you have already referred to  24 the framers of the Royal Proclamation and to the  25 documents which you have examined with respect to that  26 intersection.  27 THE COURT:  I'm sorry.  Mr. Goldie, the intersection of  28 Mississippi?  29 MR. GOLDIE:  And the boundary -- the southern boundary of  30 Rupert's Land.  31 THE COURT:  Right.  32 MR. GOLDIE:  33 Q   And you've examined the documents and considered what  34 was available to assist you in that regard?  35 A   Documents and maps, yes.  36 Q   Yes.  And you have already pointed out that there was  37 a dispute arose between the provinces of Manitoba and  38 Ontario in the late nineteenth century in which the  39 southern limit of the Hudson's Bay Company's territory  40 was relevant; is that correct?  41 A   Yes, that's true.  42 Q   Can you describe what happened with respect to that?  43 A  Well, this is the Judicial Committee's ruling in 1884  44 held that the southern limit of Rupert's Land ran  45 through the Albany and English Rivers to a point north  46 of the northwest corner of the Lake of the Woods.  47 West of Lake Superior the line ran between 51 north 20584  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  MR.  MR.  RUSH:  GOLDIE:  Q   The  latitude and 50 north latitude ending in the west just  north of the 50th parallel.  So that was the ultimate  determination by the Judicial Committee.  That was in  1884.  Where is that located, please?  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  A  MR. GOLDIE  A  Q  A  Q  A  Q  was there a formal report, or I should put it  this way, what was their decision with -- by the  judicial committee?  A   The judicial committee upheld an arbitration award in  favour of Ontario and stated that it would not give  reasons for its decision.  There is a tab for that  decision if one needs the reference.  Q   There are some extracts from the argument that took  place before the boundary, and if we can lay our hands  on the actual reference to the committee's decision  we'll advise my friends.  My concern here was that the witness expressed what I  thought to be his description of a boundary which was  reflected in the Judicial Committee's ruling of 1884.  He told me -- I think he told me what that boundary  was .  Yes, I thought so too.  I think then we would be able  to find that description in some document.  I understand that's what I'm looking for now, are  we?  It would take me awhile to locate that precise  passage.  You can do that over the noon hour.  There are some -- this matter's been examined by  scholars, has it?  The matter of the boundary as of --  Of Rupert's Land.  Of Rupert's Land, yes, as of the eighteenth century.  And it's a checkered history?  Yes.  And do you have an excerpt from, is it Mr. Slattery's  thesis under tab 272A which -- to which you wish to  make reference?  A   Yes.  Q   Perhaps you can just summarize the -- what is there.  A   This is a quotation from a memorial of the company in  1750 which we've already referred to, and it describes  what the company claimed to be its boundaries.  And  the boundary essentially ran -- their version was a  straight line from Cape Perdrix in latitude of 59 and 20585  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 a half north latitude on the Labrador coast, drawn  2 southwestward passing through Lake Mistassini,  3 M-I-S-T-A-S-S-I-N-I, and down to the 49th degree north  4 latitude, and then along that 49th parallel.  And I  5 quote from the memorial.  "By a meridian line of the  6 said latitude 49 westward".  So it was going to go  7 along west along the 49th parallel.  The line from  8 Cape Perdrix would hit that at about approximately  9 Lake Abitibi.  10 Q   And there is in footnote 271 a reference to another  11 scholarly --  12 MR. RUSH:  Just before my friend goes on, the reference in  13 Slattery is to ibid 4094 referring to the memorial.  14 MR. GOLDIE:  Yes.  15 MR. RUSH:  And is that — is that to be found here?  16 MR. GOLDIE:  The memorial is set out at page 188, and it has  17 been referred to before.  I just ask the witness to  18 bring it to his lordship's attention at this time,  19 because I now want to direct the witness' attention to  2 0 the contemporary views on the boundary, and the  21 memorial is certainly one of them.  22 A   Yes.  23 Q   Yes.  And that was a viewpoint that was asserted in  24 the -- in the negotiations following the Treaty of  25 Utrecht?  2 6 A   Yes, it was.  27 Q   And the -- was there any agreement as between the  28 British and French negotiators following that treaty  29 on that boundary?  30 A   There were meetings in 1719, but no agreement  31 whatsoever.  The French rejected out of hand this  32 boundary claim.  33 Q   Was that boundary, however, reflected in contemporary  34 maps?  35 A   Yes, it was.  36 Q   British maps, I should say?  37 MR. RUSH:  You mean the boundary claim?  38 MR. GOLDIE:  Yes.  The boundary claim.  39 Q   And in what words were those -- was that boundary  4 0 claim found on a number of the maps that you have  41 examined?  42 A  Well, a number of the maps state that it was the  43 boundary.  When they're referring to the 49th parallel  44 proceeding west they state that this was the boundary  45 agreed to either at the Treaty of Utrecht or by  46 commissaries appointed under the Treaty of Utrecht.  47 From 1749 on it is truly commonplace that the maps 20586  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  3  Q  4  A  5  Q  6  7  8  9  A  10  Q  11  A  12  Q  13  A   ]  14  Q  15  16  17  18  19  20  21  22  THE  COURT:  23  MR.  GOLDIE  24  THE  COURT:  25  MR.  GOLDIE  26  A  27  THE  COURT:  28  MR.  GOLDIE  29  THE  COURT:  30  MR.  GOLDIE  31  THE  COURT:  32  MR.  GOLDIE  33  Q  34  35  36  37  A  38  Q  39  A  40  Q  41  A  42  43  44  45  MR.  GOLDIE  46  47  certainly assert this without, of course, any  foundation.  The -- under tab 275 --  Yes.  -- You have from the Ontario material gathered pages  135 to 138 which contain a great many more pages than  that would suggest.  And at page 136U -- well, I  should really start on page 136T.  Yes.  And map 140 is the Mitchell map, is it not?  It appears so, yes.  And it contains on it as the annotator notes --  M'hm.  -- A line which he says:  "Untruely marked 'bounds of  Hudson's Bay' by the Treaty of Utrecht in one place  and another 'bounds of Hudson Bay'."  My lord, that's on page 136U?  It's about a third  of the way down the paragraph, and it is a sentence  which begins on the right-hand side, three words in,  "this line is untruely marked 'bounds of Hudson's  Bay'."  That's on page 136U?  :  Yes, my lord.  Two-thirds of the way down?  :  About one-third of the way down.  One-third.  Oh, one-third.  :  Yeah.  Yes, I see.  Yes.  :  Does your lordship see those words?  Yes.  And that, Doctor, is that kind of annotation whether  it -- whether it's true or untrue is immaterial at  this point.  Is that the kind of annotation that you  found on a number of the British maps?  Yes.  Several.  Is there an annotation on the Bowen map which is --  Yes, there is.  I wonder if you could read that out to his lordship.  Running along the dotted line which is at the 49th  parallel it reads:  "The southern boundary of Hudson's  Bay Company's territories settled by commissaries  after the Treaty of Utrecht".  :  My lord, under -- in the same document under tab  275 at page 136P, map number 83, described as having  been dated 1749 as a manuscript map on parchment by 20587  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 William Morris dedicated to His Excellency William  2 Shirley, Captain General and Commander in Chief in and  3 over the Majesty's Province of Massachusetts in  4 England, et cetera.  Then there follows a description  5 in the first paragraph of certain features on that,  6 and then the second paragraph reads as follows:  7 "There is also on the map this further  8 inscription.  By the Treaty of Utrecht the  9 lines between the English and French were thus  10 adjusted."  11  12 And then follows a description.  There is a  13 footnote indicated by the dagger and then follows a  14 discussion by the annotator as to the fact that the  15 line was not settled in the negotiations following the  16 Treaty of Utrecht.  Reference to that footnote number  17 83, or the footnote following 83 is found in every map  18 in which those words occur.  The annotator makes sure  19 that he picks up each one of them and refers one back  20 to footnote 83.  21 Q   That's your recollection, is it not?  22 A   Oh, yes.  23 Q   Now —  24 MR. RUSH:  I'm sorry.  I guess I'm not quite sure what that  25 evidence was.  26 MR. GOLDIE:  Well, let me try again.  Is my friend at page 136?  27 MR. RUSH:  I'm with you with the footnote, it's just the  28 reference to the other maps that's -- the other --  29 what's the witness' evidence on that account?  30 MR. GOLDIE:  Well, if you'd go back to 136U.  31 MR. RUSH:  Yes.  32 MR. GOLDIE:  You see that "see note to number 83"?  33 MR. RUSH:  Yes.  34 MR. GOLDIE:  That's what I'm referring to.  Every time there's a  35 map to which reference is made to the Treaty of  36 Utrecht here you will find a reference back to note  37 83, and that was the witness' evidence.  38 THE COURT:  Does that mean that — that the boundaries of the  39 Hudson's Bay Company's land or concession were not  40 fixed by the proceedings following the Treaty of  41 Utrecht?  42 A   They definitely were not, and as far as I'm aware  43 there was never any official Imperial Government  44 position with regard to the southern boundary after  45 1719 when the commissioners negotiating the Treaty of  46 Utrecht put that forward -- that claim forward to the  47 French.  But it was not settled at Utrecht or after 20588  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1  2  THE COURT  3  A  4  5  6  7  8  MR. GOLDI  9  Q  10  11  A  12  13  Q  14  15  16  17  A  18  Q  19  A  20  21  22  Q  23  24  25  26  27  28  29  30  31  A  32  Q  33  34  A  35  Q  36  37  A  38  39  40  41  42  43  44  Q  45  46  A  47  MR. RUSH:  Utrecht.  :  And not settled --  It was not settled up to the Proclamation.  However,  on the maps from 1749 it's invariable -- almost  invariable that there will be an assertion that this  boundary had been set by the Utrecht, or the  commission after Utrecht.  r:  The Mitchell map had a slight variation on that, did  it?  Yes.  Yes, it reads:  "Bounds of Hudson's Bay by the  Treaty of Utrecht".  All right.  Now, and that is the evidence that you  examined when you were determining the perception of  the southern boundaries of the Hudson's Bay Company's  territory as it was --  Yes.  As perceived in the mid-eighteenth century?  Principally the maps -- the memorial and the maps.  There were two versions of the southern boundary in  the maps.  Yes.  All right.  Now, I want to go to the question of  the -- of the headwaters of the Mississippi.  And you  have given his lordship references to documentary  material that you examined in terms of knowledge of  Canada's western boundary, or lack of knowledge.  Do  you refer his lordship to the same sources with  respect to the headwaters of the Mississippi as they  were then known or not known in the mid part of the  eighteenth century?  They would be some of the sources, yes.  All right.  Are there any others to which you wish to  refer his lordship, and I refer you to tab 278.  Yes.  And would you explain to his lordship what this  document is?  Well, this is compiled by the Ontario government  again, and it outlines the routes which the French had  to the Mississippi in New France, and all these routes  to the Mississippi were well south of the source by  the Illinois, for example, or the Ohio, St. Croix,  Wisconsin, but all many miles south of what is  considered to be the actual source today.  Right.  And you have noted in addition to that that a  number of the maps indicate a lack of knowledge?  Yes, I do.  Bowen's map particularly.  Well, the map speaks for itself, doesn't it, my lord? 20589  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 MR. GOLDIE:  2 Q   And at tab 279 you have a chart which has, or a map  3 which has been referred to already in evidence.  If it  4 isn't can you tell his lordship what this map is?  5 A  Well, it's a map by Philippe Buache.  1752, I believe.  6 THE COURT:  '52?  7 A   Sorry, 1754.  And it's based on notes taken from what  8 he calls the Sauvage Ochagach.  An Indian by the name  9 of Ochagach.  And he has remarks or a remark on the  10 left-hand side.  And in the first paragraph he refers  11 to the course of the Mississippi and says this --  12 MR. RUSH:  Where are you quoting from?  13 A   First paragraph of the remark.  14 MR. RUSH:  Yes.  15 A  16 "The course of the Mississippi which is little  17 known above the Falls of St. Anthonys".  18  19 MR. GOLDIE:  That was entered as Exhibit 1154-8, my lord, in Dr.  20 Farley's cross-examination.  21 THE COURT:  What does it say again?  Mississippi which is --  22 A  23 "The course of the Mississippi is little known  24 above the Falls of St. Anthony".  25  26 THE COURT:  And it is — what does the next say?  It is west —  2 7 A   Oh.  28  29 "We must recognize that the course of the  30 Mississippi which is little known to us above  31 the Falls of St. Anthony is from the west to  32 the east and not from the northeast as we've  33 supposed up to now".  34  35 MR. GOLDIE:  36 Q   Under tab 281, and I don't think this is a document  37 that has been here before, would you describe what  38 the -- what the map itself is?  39 A   281.  It appears to be --  40 MR. RUSH:  Well, my lord, I can't make out anything on this map.  41 Is there a better -- better version of this?  42 MR. GOLDIE:  Yeah.  43 MR. RUSH:  This is one I had asked my friend about earlier.  44 MR. GOLDIE:  That's correct.  And we tried our hand at a variety  45 of reproductions, and I'll give my friend what appears  46 to be about the best.  47 THE COURT:  Are we looking at tab 280? 20590  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 MR. GOLDIE:  No, my lord.  I think it's tab 281.  2 THE COURT:  Oh.  3 MR. GOLDIE:  4 Q   Now, Doctor, maybe --  5 MR. RUSH:  Just let us examine this, please.  I've not seen this  6 before.  7 A   I don't recall looking at it either.  8 MR. GOLDIE:  9 Q   Well, in that case you better put it to one side.  10 Let me ask you this question, Doctor, when you  11 were doing your research work in the British Museum  12 did you examine a map called -- in a Carver's journal?  13 A   I examined Carver's journal itself, and I may well  14 have seen this map at the time, but I just cannot  15 swear to that in court.  But I have quoted from the  16 journal.  17 Q   All right.  18 A  And the journal which is identified in footnote 281.  19 Q   Yes.  20 A  And this is the Additional Manuscripts from the  21 British Library.  The journal said this -- this is in  22 a journal of his travels.  Johnathan Carver in the  23 North American interior in the years 1766 to '68 and  24 in that journal he said:  "Head Branches of the  25 Mississippi are little known".  26 Q   Who was Carver?  27 A   Carver was a traveller -- travel writer and  28 cartographer travelling in the interior.  29 Q   All right.  Thank you.  Could I just retrieve that,  30 please.  31 A   Sorry.  32 MR. RUSH:  I think -- I'm not sure if my friend is directing the  33 witness' attention to the inscription which is at tab  34 281.  Is that -- is that the inscription that was  35 identified as the source of the information?  36 MR. GOLDIE:  No.  It's different.  My friend asked me if he  37 could -- if we could produce a better map of what is  38 under 281, and we can not do any better than we've  39 done so far without getting assistance from the people  4 0 in London.  And as an interim measure we had the  41 gentleman in London fax us the statement under the tab  42 281.  I suspect I will be taking 281 out, my lord, but  43 I'll defer that until after the luncheon break.  44 Q   You also examined, did you, statements by a Mr.  45 Pittman?  46 A   Yes, I did.  47 Q   Can you tell us who he was? 20591  F.M. Greenwood (for Province)  In Chief by Mr. Goldie  1 A   This Pittman was sent up the Mississippi to make a  2 report to the Commander in Chief, Sir Thomas Gage, on  3 the settlements along the Mississippi, and  4 particularly the old French settlements.  5 Q   Yes.  6 A  And he produced a report and it was published under  7 the title "The Present State of the European  8 Settlements on the Mississippi with a Geographical  9 Description of that River".  10 Q   Now, there is --  11 A   Published in London, 1772.  12 Q   Yes.  If you'd look under tab 280, please, Doctor.  13 283.  I beg your pardon.  14 A   283.  15 Q   Yeah.  16 A   Okay.  283.  17 Q   Is that a facsimile of the --  18 A   Yes.  19 Q   -- Of the frontispiece of the -- or title page of the  20 publication you're referring to?  21 A   Yes.  It originally was printed or published in London  22 1770.  This is a reprint of Memphis 1977.  23 THE COURT:  What tab are you looking at now?  24 MR. GOLDIE:  At 283, my lord.  25 Q   And this is dated 1770, and you're quoting from the  26 first complete or the last four lines on the first  27 page over onto the next page?  28 A   Yes.  Do you wish me to quote them?  29 Q   No.  Just tell us the extent of the quotation.  30 A   The quotation runs from "nothing can", that is the  31 second full paragraph on the first page.  32 Q   Yes.  33 A  And it runs to the end of the paragraph on the next  34 page "4500 miles".  35 Q   All right.  Thank you.  And from your -- from your  36 investigations can you -- well, perhaps that requires  37 an expression of judgment so I'll defer that.  38 THE COURT:  Where are the Falls of St. Anthony?  39 A   Yes.  I have a reference to that.  44 58 45 north.  44  40 58 45 north latitude and 93 15 30 west.  A few miles  41 north of the junction of the Minnesota and Mississippi  42 Rivers.  That's the modern placing.  43 MR. GOLDIE:  44 Q   The Falls of St. Anthony is an easily identifiable  45 landmark, is it?  46 A   Yes.  47 Q   I next want to consider with you the material that you 20592  Proceedings  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  looked at in determining the question of whether the  Mississippi had its source in Rupert's Land or outside  of Rupert's Land.  THE COURT:  Can you do that in one minute, Mr. Goldie?  MR. GOLDIE:  No, my lord.  THE COURT:  Would a truncated lunch hour be appropriate?  Say at  1:30?  MR. RUSH:  Well, my lord, it appears to me as though my friend  is going to finish this afternoon; is that right?  MR. GOLDIE:  I think so.  MR. RUSH:  I'm not going to be able to complete  cross-examination in the time left that we have for  today.  THE COURT:  Oh, I wouldn't think so.  MR. RUSH:  And that being so if that is understood then, my  lord, I don't have a problem with a truncated lunch  hour.  THE COURT:  Yes.  All right.  Thank you.  1:30.  MR. GOLDIE:  Yes.  THE REGISTRAR:  Order in court.  Court stands adjourned until  1:30.  (PROCEEDINGS ADJOURNED)  I hereby certify the foregoing to be  a true and accurate transcript of the  proceedings herein to the best of my  skill and ability.  Peri McHale, Official Reporter  UNITED REPORTING SERVICE LTD. 20593  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 (PROCEEDINGS RECONVENED AT 1:30 p.m.)  2  3 THE REGISTRAR: Order in court.  4 THE COURT:  Goldie.  5 MR. GOLDIE:  6 Q   Thank you, my lord.  Dr. Greenwood, before I go on to  7 the next section, under tab 287 you have some further  8 extracts from the material gathered by the province of  9 Ontario for the arbitration to which you've referred  10 and under this you have the extracts of the evidence  11 and the judge's charge of a case called de Reinhard's  12 case?  13 A   Yes.  14 Q   What have you placed this in here for, please?  15 A  Well, it's for two purposes, one chronologically here  16 in my brief and another later, but for the moment page  17 210, internal page 210, the words under  18 "Cross-examined by Mr. Valliere de St. Real"?  19 Q   Yes.  20 A   It's simply an example that in 1818 the source of the  21 Mississippi was then considered by in Canada, or at  22 least there's evidence it was considered as Turtle  23 Lake, in latitude 47, 38 north, longitude 94 or 95  2 4 west.  25 Q   Right.  26 A   Turtle Lake's at the upper part where the Mississippi  27 sort of curves around.  It's at the top there.  28 Q   And Dr. Farley has given evidence of the present  29 co-ordinates of what is considered to be the sources  30 of the Mississippi?  31 A   Yes.  32 Q   Now, proceeding on to a later quotation from or a  33 reference to a publication by Mitchell?  34 A   Yes.  35 Q   Called "The Contest in America".  That was a book  36 published by him?  37 A   Yes, I think it's tab 290 I believe.  38 Q   290.  Yes.  Would you refer to that, please?  39 A   Yes.  40 Q   And indicate — firstly, that's Mitchell, the  41 Mitchell?  42 A   John or sometimes called Jonathan Mitchell the  43 cartographer and the person who drafted the famous map  44 of 1765.  45 Q   Right.  And what reference do you wish his lordship to  46 have regard to?  47 A  At page 77. 20594  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 Q   Yes.  2 A   I believe.  3 THE COURT:  Where are we, please?  4 MR. GOLDIE:  5 Q   Tab 290, my lord.  6 A   It doesn't seem to be -- this is a republication.  I  7 can quote from the original page 77 which I perhaps  8 should.  May I?  9 Q   Well, just hold on a minute.  I want to make sure that  10 I can -- will you be able to identify the source of  11 what you're referring to?  12 A   Yes, I will.  The source I'm going to be using here is  13 called -- the book called "The Contest In America  14 Between Great Britain and France" written by John  15 Mitchell, published London 1757.  And I'm quoting from  16 page 77 of the original.  17 Q   I see.  18 A   It seems not to be here.  19 Q   Well, it's a reprint.  I see it's reprinted.  20 A   Usually the pagination is the same, but here it's not.  21 It's possible I made a mistake, but I think I checked  22 that, but it is possible.  But the quotation  23 indicates -- reads as follows from the book "The  24 Contest In America":  25  26 "As for the Mississippi, it is still more  27 extensive than the River St. Lawrence.  It  28 springs in the northern and western parts of  29 North America about the same sources with the  30 waters that fall into the Great Lakes and the  31 River St. Lawrence and runs through that whole  32 continent almost from latitude 50 or 51 to the  33 latitude 29."  34  35 Q   All right.  Now, subject to checking that with --  36 A   Yes.  37 MR. GOLDIE:   -- the page number with the source and providing  38 his lordship with the proper page --  39 THE COURT:  What's the date of this?  40 MR. GOLDIE:  41 Q   1757, my lord.  At tab 291 is -- can you identify that  42 for us, please, this map?  43 A   Yes.  This is a map prepared by one Louis, o-u-i-s, de  44 Larochette, d-e, small, all one word  45 L-a-r-o-c-h-e-t-t-e, and engraved by Thomas Kitchin.  46 It was drafted between the Royal Proclamation and  47 before the Quebec Act. 20595  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 Q   So in the upper right-hand corner, not the corner, but  2 the upper part of the map in the northeast quadrant?  3 A   Yes.  4 Q   That's the old -- the boundaries of old Quebec; is  5 that correct?  6 A   That is the boundaries of old Quebec prior to the  7 Quebec Act.  Yes.  8 Q   Yes.  And the boundaries of the -- and well, I'll ask  9 you this:  What other features on this map do you wish  10 his lordship to have regard to?  11 A  Well, it reproduces the note which is on the Bowen map  12 in the same place, in the far north-west portion where  13 the most westerly branch of the Mississippi is  14 depicted.  The note reads:  15  16 "Mississippi R., its head very uncertain.  17 Situated according to the Indians in a very  18 marshy country about the 50th deg. of  19 latitude."  20  21 "Deg." meaning degree.  So that essentially the same  22 note on the Bowen map at the headwaters of the  23 Mississippi in the far west is reproduced in this map  24 by de Larochette between the Proclamation and the  25 Quebec Act.  26 Q   All right.  Thank you.  And the 50th degree is the one  27 immediately above the line marked the southern  28 boundary of Hudson's Bay Company territory?  29 A   It's the next parallel line to the north.  30 Q   Yes.  Thank you.  All right.  I don't believe that map  31 was referred to in Dr. Farley's evidence, my lord.  32 Now, did you have reference to any maps prepared  33 for the use of the military?  34 A   Yes, I did, and they'll be found in tab 292 A and B.  35 Q   All right.  Suppose we take both of those out, and  36 would you tell his lordship please what the origin is  37 and the purposes for which you are -- what the  38 purposes are of these two maps and what their origin  39 is and the reason why you're referring to them?  40 A   Yes.  The origin of 292 A is -- the map is found in  41 the additional manuscripts of the British Library.  42 Additional manuscripts is a gigantic series and they  43 have numbers, but I don't think that's necessary to  44 point out.  This was dated in 1765, 11 October 1765.  45 It -- further than that I can't say from my own  46 personal experience, but it seems on its face clearly  47 to be a map exhibiting where troops were stationed in 20596  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 1765.  2 Q   All right.  3 A   Now, should I point out what I think are the salient  4 features?  5 Q   Yes, please.  6 A   The Mississippi River is depicted in this map as  7 arising at least north of Lake Superior.  I mean, it's  8 possible that it arose further according to the  9 map-makers, but it's certainly above Lake Superior.  10 Also I would point out the southern boundary of the  11 Hudson's Bay Company territories simply as one more  12 example of another version of that southern boundary  13 which followed the heights of land.  It's found in the  14 Mitchell map.  There are two basic versions as of  15 1763, circa 1763.  One runs along the 49th parallel as  16 in Bowen, the other follows the supposed heights of  17 land.  A third point that may be important is that  18 there are no cantonments of troops shown on the shores  19 of Lake Superior or west of Lake Superior.  The ones  20 to the far west are in the Illinois country.  21 Q   That's the 34th regiment afoot?  22 A   That's right.  And I think the small lines are  23 companies and there are a couple of companies at  24 Michilimakinac, which is not on Lake Superior, okay,  25 it's Lake Huron and Lake Michigan.  And the second map  26 is a very similar one and I -- it's for the same  27 purpose.  Its source is different.  It is taken from  28 the original Shelburne papers in W.L. Clements Library  29 and in Arbor and it's dated in 1766, as you'll see at  30 the top, and the three points I made with reference to  31 the earlier map apply to this one as well, although  32 there's no writing.  33 Q   This is -- so this is apparently a year later?  34 A   Yes.  There are no further troops on Lake Superior or  35 west of it and, although the words aren't written, one  36 assumes that that wavy line at the top of the map is  37 the southern boundary of the Hudson's Bay Company  38 territories.  And again, the Mississippi rises north  39 of Lake Superior.  40 MR. GOLDIE:   All right.  Thank you.  My lord, that concludes  41 the references in that volume.  I rely upon secondary  42 references in the footnotes relating to the tab  43 numbers and, as well, to secondary sources already  44 referred to at footnote 254, 258, 265, 271.  I think  45 I've referred to 273, 276, 277, 282, 285, 286  46 containing references that have already been referred  47 to, 288.  And then I tender, my lord, Volume 5 as 1166 20597  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  F.M Greenwood (for Province)  In chief by Mr. Goldie  THE  MR.  THE  MR.  MR.  THE  MR.  MR.  MR.  THE  MR.  THE  MR.  THE  MR.  THE  MR.  COURT  RUSH:  COURT  RUSH:  with tabs running from 251 to 292B, as identified in  the index at the front of the volume.  Mr. Rush?  Subject I think, my lord, to my friend's decision  about the Carver map, which wasn't identified by the  witness, and as well the reference that the witness  read from the original of the Mitchell book --  Yes.  -- is not contained in the copy that we have,  the understanding that he will produce that.  Yes.  So on  GOLDIE:  COURT:  All right.  GOLDIE:  Thank you, my lord.  RUSH:  Are we going to remove 281 or --  GOLDIE:  Yes.  Thank you.  281.  COURT:  2 8 —  GOLDIE:  281, my lord.  COURT:  And the three maps?  GOLDIE:  Yes.  REGISTRAR: So the whole tab is coming out, right?  GOLDIE:  Yes.  REGISTRAR: I'll put a line through the index.  GOLDIE:  Yes.  Thank you.  (EXHI  (EXHI  (EXHI  (EXHI  (EXHI  Barri  (EXHI  (EXHI  (EXHI  (EXHI  (EXHI  (EXHI  (EXHI  (EXHI  Carle  (EXHI  (EXHI  (EXHI  (EXHI  (EXHI  (EXHI  (EXHI  (EXHI  11  11  11  11  11  BIT  BIT  BIT  BIT  BIT  ngtons  BIT 11  BIT  BIT  BIT  BIT  BIT  BIT  BIT  ton)  BIT  BIT  BIT  BIT  BIT  BIT  BIT  BIT  11  11  11  11  11  11  11  11  11  11  11  11  11  11  11  66-251: Board of Trade Report)  66-252: Board of Trade Report)  66-253: Minutes of Board of Trade)  66-255:  Hillsborough to Johnson)  66-256A: Amherst's Remarks on Ld.  Plan No.1)  66-256C: Jackson, Richard, M.P.)  66-257A: Shelburne's Minutes to Cabinet)  66-259:  Franklin & Wharton)  66-260: Plantations Committee)  66-261: Quebec Act)  66-262: Dartmouth to Hillsborough)  66-263: Instructions to Carlton)  66-264: Lord Shelburne dispatch to  66-266: Morgann, Maurice)  66-267:  Memo to Shelburne, unsigned)  66-268: Annual Register for 1763)  66-269:  Bell to Pitt)  66-272A: Slattery, Brian)  66-275: Notes on Maps)  66-278: " the Mississippi)  66-279: Philippe Buache - map) 2059?  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  F.M Greenwood (for Province)  In chief by Mr. Goldie  (EXHIBIT 1166-280  (EXHIBIT 1166-283  (EXHIBIT 1166-287  (EXHIBIT 1166-289  (EXHIBIT 1166-290  (EXHIBIT 1166-291  (EXHIBIT 1166-292A  Kitchin, Thomas)  Pittman, Capt. Philipp)  De Reinhard's case)  Notes on Maps)  John Mitchell)  de Larochette - map)  : "Cantonment of the Forces in North  America 11 Oct. 1765" - Map)  (EXHIBIT 1166-292B: "Cantonment of the Forces in N.  America 1766" - Map)  MR. GOLDIE:  Q   Now, in considering the location of the, or the  assumed location of the head of the Mississippi and  its relationship to the southern boundary of Rupert's  Land, you again re-examined the treaty and the  documents relating to the framers of the Proclamation?  A   Yes, I did.  Q   Thank you.  A   Treaty of Paris you're referring to.  Q   Yes.  And, in particular, the article of the Treaty of  Paris which gives the international boundary and you  had regard in considering that to the instructions or  draft instructions given to the Duke of Bedford?  A   Yes.  Q   And you refer to that under tab 293, do you?  A   Yes.  MR. GOLDIE:   Yes.  I should ask for a number to be reserved for  the Volume 6, my lord.  THE COURT:  Yes.  THE REGISTRAR: 1167, my lord.  THE COURT:  Thank you.  (EXHIBIT 1167:  Greenwood)  Reserved;  Volume 6 binder re-Dr.  MR. GOLDIE:  Q  A  Q  A  Now, I'd asked you to have regard to tab 293?  Yes.  And would you tell his lordship what that is?  Yes.  293 is the draft instructions to Bedford who was  the Minister Plenipotentiary in Paris, a British  Minister.  They're dated 4 September 1762, and they're  taken from the state papers 78 series Volume 253 in  the public record office, and I would like to quote  from the page -- seventh page in, seventh physical  page in.  Sorry about the pagination, but there's -- 20599  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 there's none.  It's the one with the picture of a map  2 on the right-hand side.  3 Q   Oh, yes.  4 A  And Bedford in these draft instructions was instructed  5 that on the international frontier, the article on the  6 international frontier, was to be written in such --  7 and this is about two-thirds of the way down the  8 left-hand column in such -- the quotation begins  9 "clear and" —  10 THE COURT:  I'm sorry, I haven't got the page.  11 THE WITNESS: I don't think there's internal pagination, my lord.  12 MR. GOLDIE:  13 Q   It's —  14 A   It's the seventh physical page in and the one with the  15 map on the right-hand side.  16 THE COURT:  Yes.  17 THE WITNESS: And two-thirds down that page.  18 THE COURT:  Yes.  19 THE WITNESS: And the word beginning towards the right "clear  2 0 and".  21 MR. GOLDIE:  22 Q   The sentence begins:  23  24 "Our Will and Pleasure is that you do exert Your  25 utmost Attention with regard to this Article  26 which is to be treated..."  27  28 And then go on, please?  29 A  30  31 " such clear and explicit Terms, as shall  32 render it incapable of any misconstruction and  33 as shall, for the future, remove even a  34 Pretence, on the part of France, to claim  35 either as part of Louisiana or under any other  36 Denomination, whatsoever any thing in North  37 America, to the East, or on the Left, of the  38 Mississippi, from the source of the said River  39 until the branching of the river Iberville out  40 of the Mississippi."  41  42 Q   Now, the river Iberville of course is down near the  43 mouth is it?  44 A   Yes.  45 Q   All right.  Thank you.  And the Duke of Bedford was in  46 fact the British Ambassador who was granted full  47 powers to -- 20600  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 A   -- negotiate the peace preliminary.  They had to be  2 ratified of course by the Cabinet.  3 Q   Well, he is -- he was given full powers to -- referred  4 to in the Treaty of Paris itself, was he not?  5 A   Yes.  6 Q   Yes.  Now, that -- oh, the other question that I  7 wanted to ask you was to your knowledge are there any  8 other instructions extant of this character, whether  9 final or further draft or otherwise?  10 A   I searched for them, but did not do an exhaustive  11 search, and I was not able to find the actual  12 instructions.  13 Q   Thank you.  And Bedford himself, did he raise any  14 question about his instructions?  15 A   Yes, he did.  Well, not about his instructions, but on  16 a draft -- he commented on a draft treaty proposal.  17 Q   I see.  18 A   But not his instructions.  Slightly before his  19 instructions were issued.  20 Q   And is that -- are you referring under -- in that  21 under tab 294?  22 A   Yes.  And that will be the first page.  23 Q   Yes.  2 4 A  And —  25 Q   And this is written by the Duke of Bedford?  26 A   Yes, it's written comments by Bedford on a draft  27 treaty and these comments are found in the Egremont  28 papers, and he was a southern secretary responsible  29 for foreign policy with relation to France and Spain.  30 It's found in the Egremont papers.  I have a reference  31 in 294 at the public record office.  32 Q   Right.  33 A  And the comment of the Duke of Bedford on seeing a  34 draft treaty was this:  35 MR. RUSH:  What page, please?  36 THE WITNESS:   It's on the first page and I think it's number 3.  37 MR. GOLDIE:  38 Q   Yes.  39 A  And he says:  "In the 6th article the source of the  40 Mississippi is mentioned."  Full stop.  "Is it known?"  41 Q   Right.  Now, is there any further -- is there a  42 further consideration which you took into account, and  43 that is to say, the membership of the cabinets in  44 England, the one which negotiated the treaty or the  45 one that supervised the negotiation of the Treaty of  46 Paris, and the one that supervised or oversaw the  47 preparation of and the approval of the Proclamation of 20601  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 1763?  2 A   Yes.  3 Q   And can you give us an indication please of --  4 A   Yes, I can list the important common ministers.  First  5 Minister Grenville of the -- at the time of the  6 Proclamation --  7 Q   Yes.  8 A   -- had been Northern Secretary at the time of the  9 negotiations with France; Halifax.  10 THE COURT:  I'm sorry, you're going to give me a list --  11 THE WITNESS:   Yes.  12 THE COURT:  — of the important players?  13 THE WITNESS:   Important players then and now, or then and  14 slightly after.  15 THE COURT:  All right.  16 THE WITNESS:   But I started off by citing them as of the  17 Proclamation date.  If you wish me to alter that I can  18 do it.  19 MR. GOLDIE:  These are people who are common to the two  20 cabinets, my lord.  21 THE COURT:  Yes.  So it was Grenville?  22 THE WITNESS:   Grenville who was First Minister at the time of  23 the Proclamation and had been a secretary, a Northern  24 Secretary, at the time of the Treaty of Paris  25 negotiations; Halifax, who was Southern Secretary at  26 the time the Proclamation issued had been First Lord  27 of the Admiralty and later Northern Secretary during  28 the negotiations of the Treaty of Paris; Southern  29 Secretary Egremont had been Southern Secretary  30 throughout until his death in August 1763; the Duke of  31 Bedford, as Lord Privy Seal, had been involved in the  32 early negotiations and had been British  33 Plenipotentiary in Paris from September '62.  As Lord  34 President of the Council, Privy Council that is, he  35 attended the Cabinet meeting held on 16 September,  36 1763, which ratified the Board of Trade's August 5th  37 report recommending a Proclamation.  Bute, of course,  38 was an important player in the Treaty of Paris  39 negotiations, a very important player, but he was no  40 longer in office at the time of the formulation of the  41 Proclamation's policies.  However, Shelburne was a  42 protege of Bute and he, of course, was president of  43 the Board of Trade.  44 Now, that was not a Cabinet position, my lord, one  45 could call it a quasi-Cabinet position because the  46 presidents were asked to the Cabinet at meetings  47 dealing with the colonies, but only then. 20602  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 Finally, Lord Chancellor Henley, H-e-n-1-e-y,  2 later Lord Northington, attended the Cabinet of 8th of  3 July and he was the one, of course, who affixed the  4 Great Seal to the Royal Proclamation.  He had been in  5 office since well before 1762.  6 Q   And the information that you rely upon, is that what  7 is under tab 295?  8 A   Partly, but there's a source I haven't cited there.  9 It's "The Oxford History of England" for the period.  10 I think it's Steven Watson, with a "v".  It's the  11 reign of George the III, and he has a list of all the  12 Cabinet members in an appendix, but there are other  13 secondary sources as well.  14 Q   That's a treatises, is it?  15 A   Yes.  16 MR. RUSH:  I'm sorry, it was unclear to me whether Shelburne was  17 in the Cabinet during the Treaty of Paris.  18 THE WITNESS:   No, he was not, and in fact he wasn't in the  19 Cabinet during the Royal Proclamation formulation  20 because he had only quasi-Cabinet status.  He was  21 asked only to meetings dealing with the colonies, but  22 he was a protege of Lord Bute so there is a kind of  23 carryover from Lord Bute.  24 MR. GOLDIE:  25 Q   And you had regard to, in this context, to Lord  2 6 Egremont's documents?  27 A   Yes.  2 8 Q   And the —  29 A   Tab 63.  3 0 Q   63 in Volume 1?  31 A   Yes, and then 62.  32 Q   All right.  Well, and finally you had regard to the  33 Board of Trade's report itself?  34 A   Both reports.  Tab 58.  35 Q   Yes.  36 A  And the supplementary report which is tab 67, 5 August  37 '63, both reports.  38 Q   Right.  And I think you have pointed out some of the  39 language that you relied upon or had regard to?  40 A   Yes.  41 Q   And you also had regard in this context to the maps of  42 Popple and Mitchell, and for what reason do you  43 particularly refer to them in this context?  44 A  Well, they were what we might call preferred maps of  45 the Board of Trade in the sense that both had been  46 commissioned by the Board of Trade, and Popple's map  47 was their preferred map until Mitchell's map took over 20603  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 after 1755, and both of them showed the Mississippi  2 rising at about 50 degrees north latitude.  3 Q   The Popple map --  4 A   Either showed or indicated in a note.  5 Q   You have under tab 300 I'll call it the concentrated  6 Popple map and you have regard to the language in the  7 lower right-hand corner referring to Mr. Popple  8 undertaking the map with the approbation of the Right  9 Honourable the Lords Commissioners of Trade and  10 Plantations?  11 A   Yes.  This is the summary map we're referring to here?  12 Q   Yes.  13 A   Yes.  That at the very bottom right indicates that it  14 was commissioned by the Board of Trade.  The date of  15 the map, Dr. Farley of course would know more about  16 this map than I, but 1732 or '33.  17 MR. RUSH:  I think it's 1733, my lord.  It's been referred to by  18 Dr. Farley, map number 9.  19 MR. GOLDIE:  20 Q   It's 1149, Exhibit 1149-9.  And Dr. Greenwood, under  21 tab 301 you have another extract from the material  22 prepared for -- prepared by Ontario?  23 A   Yes.  24 Q   And this particular piece begins at page 135 and you  25 refer there to note 50?  26 A   58 I think it is.  27 Q   Yes.  28 A   Yes.  29 Q   And what is referred to there?  30 A   The Ontario government said that on the Popple map the  31 source of the Mississippi is on the parallel of 50  32 degrees and in about long 105, as I read it, with the  33 inscription "the head of the Mississippi in about the  34 50th degree north latitude and in a very boggy  35 country" so --  36 Q   My lord -- I'm sorry?  37 A   That quotation appears in the description of the map  38 by the Ontario government in number 58, and the note  39 itself appears in this segment of the larger map at  40 the left.  41 Q   This, a slightly scaled -- not scaled down, but a  42 slightly smaller reproduction of that was filed with  43 Dr. Farley's evidence?  44 A   Yes.  45 Q   And I'll get your lordship the exhibit number in a  46 minute.  It may have been marked as a variation on  47 1149-9.  You refer to the dedication of the Mitchell 20604  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 map, which we have seen, and you refer to the printed  2 note which indicates that it was undertaken with the  3 approbation and request of the Lords Commissioners for  4 Trade and Plantations.  That's -- and there is a note  5 on that map, is there, that is signed by Mr. Pownall?  6 A   Yes.  That the map is undertaken with the approbation  7 and that's a request of the Board of Trade.  8 Q   Yes.  And you have compared the signature that you  9 found on that map with other documents that he signed?  10 A   Yes.  11 Q   And what conclusion did you reach from that?  12 A   That the signature -- the writing on the map is the  13 same as the signature of Pownall in other documents.  14 Q   Right.  And a reference under footnote 303 indicates  15 that that statement is made elsewhere?  16 A   Yes.  17 MR. RUSH:  My lord, so there's no mistake, for the record, it's  18 the 1755 Mitchell map that's being referred to here.  19 THE WITNESS:   Yes.  The statement in the source referred to in  20 303 was not as to the handwriting, it was simply as to  21 the fact that Pownall had signed that map.  22 MR. GOLDIE:  23 Q   Yes.  That's what I meant.  Thank you.  And you have  24 determined from another source that the -- it would  25 appear that the Board of Trade opened its map archive  26 to Mitchell and sent him copies -- and sent copies of  27 the finished product to the governors of the North  28 American colonies?  29 A   Yes.  30 Q   And that's -- the source for that is at your footnote  31 304?  32 A   Yes.  33 Q   And is a copy of the Mitchell map found in the  34 personal papers of one of the framers?  35 A   Yes, it is.  It's found in the Egremont papers.  This  36 statement is based on a visit by me to the Historical  37 Manuscripts Commission, Quality Court, London, which  38 is the central index or catalogue if you wish for all  39 the papers in the United Kingdom, including the County  40 Archives, and in the Historical Manuscripts Commission  41 materials I discovered the index to the Egremont  42 papers in Petworth House Archives, P-e-t-w-o-r-t-h,  43 House Archives County Record Office, Chitchester, and  44 it indicates that there was a Mitchell map of 1755 in  45 those papers.  I did not visit Chitchester.  4 6 Q   And do you have some indication that the Mitchell map  47 was in the collection of King George the III? 20605  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 A   Yes. I found a book, to give it a short title,  2 catalogue of maps, et cetera, attached to the library  3 of his late Majesty King George the III which was  4 published in London in 1829.  I found a copy in the  5 British Library, and at page 8 it indicated that there  6 were three copies of Mitchell's 1755 map in that  7 collection.  That's nine years of course after George  8 the III died.  9 MR. RUSH:  Do we have that catalogue?  10 MR. GOLDIE:  11 Q   No.  It's just referred to in the -- well, I shouldn't  12 say we don't have it.  I'll endeavour to see if we  13 have a copy of the relevant page.  14 And is there some evidence that Halifax, who had  15 been President of the Board, was known to Mitchell?  16 A   Yes, there is.  Apparently in 1755 when the map was  17 commissioned and Halifax was President of the Board of  18 Trade, and for some years afterwards Halifax was a  19 close friend of Mitchell's.  20 Q   That is -- the source of your information on that is  21 the treatise referred to at footnote 306 or if not a  22 treatise what is it?  23 A   It's a treatise.  It's a book on Mitchell.  Yes.  24 Q   Thank you.  And you finally note that the book that  25 has been referred to by Mitchell, namely, "The Contest  26 in America" appears from at least one source to have  27 been commissioned by the Board?  28 A   Yes.  29 Q   That source is referred to at footnote 309?  30 A   Yes.  31 Q   And the -- is there evidence which suggests that the  32 framers of the Royal Proclamation had used more than  33 one map?  I suppose that's evident because of the  34 Bowen map which accompanied their report?  35 A   Yes, there is.  36 Q   But I'm referring to other evidence.  37 A   Yes, there is other evidence.  Yes.  38 Q   Thank you.  And is that the course of that information  39 set out at 308 or at least a source of that  40 information?  41 A   Yes.  42 Q   And then you pay particular attention to the Bowen  43 map?  44 A   Yes.  45 Q   And you've already referred to the colours?  46 A   Yes.  47 Q   And you've -- you have referred to the statement in 20606  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 the report which makes reference to the chart?  2 A   Yes.  3 Q   And in the footnote 311 you refer to those scholars  4 and others who have accepted the Bowen coloured map as  5 being the annexed chart, but you say without offering  6 proof of that?  7 A   Yes.  8 Q   You, I understand, have come to the conclusion that  9 the Bowen coloured map is in fact the map that was  10 attached to the report and laid before the king?  11 A   Yes.  12 Q   Would you indicate to his lordship please the basis  13 upon which you reached that conclusion?  14 A   Yes.  Well, I examined the original and the -- in the  15 public record office in Kew Gardens in the map  16 division.  I studied it for things like stitching  17 holes.  I found there were holes consistent with  18 stitching.  I checked the archival certificate on it,  19 which I asked the photographer to photograph.  It's at  20 the top left, and it reads in part as follows "This  21 document was removed from C05/65/f78v".  So I went to  22 the Colonial Office 5 Series, which is on the  23 colonies, Volume 65, at pages 59 to 78, and there is  24 found the original of the Board of Trade's report of 8  2 5 June.  26 And I wanted to make sure it was the original and  27 it's the original because on the first page there is  28 the red seal of the Board of Trade and it has  29 Britannia and the Thames with a lot of great  30 commercial activity going on.  And at the last page  31 there are the signatures of Shelburne and the Board  32 members.  They're all in different hands so that a  33 clerk, you know, did not do them.  So it is an  34 original.  35 And at page 70 of that original, which includes  36 the paragraph referring to the 'annex'd Chart',  37 there's another certificate which informs the  38 researcher that a "Map of North America shewing", with  39 an 'e', "British, Spanish & French possessions, being  40 an enclosure to C05/65/f78v, has been removed to M.R.  41 26." M.R. is map reference, 26 means it's been removed  42 to the map reference room, so that as of 1926 August  43 the 30th the two documents were in physical  44 contiguity, and so that was the starting point.  45 The second way of proving this was to date the  46 actual coloured version, the only one in existence  47 other than copies, and the dating is essentially 20607  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 between -- or it's based on the cartouche, which  2 refers to the Treaty of Paris which is 10 February,  3 1763, so that's the earliest date it can be.  And it  4 is not after the Proclamation because the boundaries  5 are not consistent with the Proclamation's boundaries.  6 For example, the northern line of Quebec in the  7 Proclamation is a straight line sometimes rendered as  8 two straight lines, but a straight line, whereas on  9 this map it's a wavy line following the heights of  10 land.  And there are similar aspects of the boundaries  11 that are not consistent with the Proclamation, so it's  12 pre-Proclamation.  13 If you look at the sketch and its boundary  14 recommendations, and we only have those really for  15 Canada because the Florida boundaries are missing by a  16 clerk's error in the 18th century, if you look at  17 those and especially the report of 8th of June, 1763,  18 the boundary provisions are consistent with this  19 particular coloured map, the Bowen coloured map.  So  20 my conclusion was that it was being prepared while the  21 sketch was being prepared.  It was touched up very  22 slightly, you can see it in orange in the Lake  23 Nipissing area because there's a very slight  24 difference between the sketch and the report of 8 June  25 on the Lake Nipissing area, and it was sent to the  26 king.  So the Board of Trade's report remarks that the  27 boundaries are particularly delineated.  28 I conclude that this is the map with the pink  29 lines that was sent to the king.  It is theoretically  30 conceivable, and I want to say this for obvious  31 reasons, it is theoretically conceivable that the  32 colours other than the pink boundaries, other than the  33 pink boundaries, were added later.  It depends on your  34 interpretation of the word delineated, and so on, but  35 in my professional judgment, it was the map that was  36 physically sent to the king and was placed in his  37 hands and was annexed either by ribbon or thread to  38 the original of the 8 of June report.  39 Q   You mentioned thread and earlier you mentioned  40 stitching?  41 A   Yes.  42 Q   Do those two items have any significance in the  43 conclusion you reached?  44 A  Well, I was trying to establish that the two documents  45 had been physically contiguous since June 8 '63, other  46 than sort of taking them apart and looking at them,  47 and I naturally looked for stitching holes and I found 2060?  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 holes that were consistent with stitching holes.  I  2 didn't find them on the June 8th report, but the last  3 page, which would be the endorsement page, is missing.  4 Q   But you found such stitching holes on the Bowen map?  5 A   Yes.  6 Q   Yes.  Thank you.  7 A   But it was also common to annex them by ribbon as well  8 so —  9 Q   Yes.  10 A  And may I add something to that just briefly?  11 Q   Yes, please.  12 A   That this is the chart -- well, the same chart that  13 was mentioned in the 8 June report is mentioned in the  14 letter of Egremont of the 14th July and in Halifax's  15 letter of the 19th of September, 1763.  So that the  16 chart is used, you know, at least down to that point.  17 Q   Thank you.  Then you also had regard, did you, to the  18 Quebec Act in this context I mean?  19 A   Yes.  20 Q   And what documents do you wish to refer his lordship  21 to in this context?  22 A  Well, there is first of all the anonymous document  23 which is cited I believe in footnote 314.  24 Q   Yes.  25 A  Which is taken from the Dartmouth papers.  These are  26 originals in the National Archives of Canada, circa  27 1774, and it was a paper collected by Dartmouth and it  28 is found in tab 314.  29 Q   Is there any particular part of that that you wish to  30 show us?  31 A   Yes, I would, page 2205.  32 MR. GOLDIE: The printed numbers, my lord, are --  33 THE COURT:  Yes.  Thank you.  34 MR. GOLDIE:  Some are good and some are bad, but 2205 is in fact  35 the sixth page in.  36 MR. RUSH:  What does it start with "seventh line"?  37 MR. GOLDIE:  38 Q   Yes, that's correct.  39 A   If you would like, my lord, seven lines down,  40 beginning with the word "until", to the end of --  41 well, down about ten lines to "Mississippi", that is a  42 southern boundary being prescribed for the new to be  43 extended province of Quebec, and the only point that  44 need be known now is that it would end, that southern  45 boundary, at the confluence of the Ohio and the  46 Mississippi.  47 Then the author of this paper goes on to describe 20609  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 a northern boundary for Quebec, and it would start in  2 the Esquimaux River and to be bounded on the north,  3 this is Quebec, "by a line", I'm quoting here at the  4 bottom of the page:  5  6 "...a line drawn due west from the mouth of the  7 said River to the southern limits of the  8 territory granted to the Hudson's Bay Company  9 and to follow the course of the said limits..."  10  11 That's the southern limit of Rupert's Land.  12  13 " far as the river Mississippi..."  14  15 So he was saying the northern boundary should go along  16 the southern boundary of Rupert's Land as far as the  17 river Mississippi:  18  19 "...the said River to be the Boundary on the  20 West from the point where it is intersected by  21 the Southern Limits of the territory granted to  22 the Hudson's Bay Company as aforesaid as low  23 down as the Mouth of the River Ohio."  24  25 Now, this was collected by Dartmouth, who was the  26 Colonial Secretary.  And Shortt and Doughty states  27 that it had an influence on the third draft of the  28 Quebec Bill.  29 Q   And that reference is, the Shortt and Doughty  30 reference, is instanced at what footnote, is it, 315,  31 page 221?  32 A   Yes.  33 Q   All right.  And Shortt and Doughty, who are the  34 authors or compilers of the constitutional or the  35 collection referred to you as constitutional  3 6 documents?  37 A   Yes.  38 Q   It was -- they had a view with respect to this and is  39 that found under tab 316?  40 A   It should be, yes.  41 Q   And this is where they discuss the first, second, and  42 third drafts of the Quebec Bill; is that correct?  43 A   Yes.  Yes.  44 MR. RUSH:  Well, they provide the first, second, and third in  45 that tab, my lord.  46 MR. GOLDIE:  Yes.  47 MR. RUSH:  316 contains those documents. 20610  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 MR. GOLDIE:  2 Q   Yes.  Thank you.  And with respect to the third draft?  3 A   Yes.  4 Q   Is there any language in there that you wish his  5 lordship to have regard to?  6 A   Yes.  The third draft annexed to Quebec all  7 territories previously part of Canada:  8  9 "...extending Southward to the banks of the  10 River Ohio, Westward to the banks of the  11 Mississippi and northward to the Southern  12 Boundary of the Territory granted to the  13 Merchants Adventurers of England trading to  14 Hudson's Bay."  15  16 And these boundaries were found in the bill that  17 went into Parliament.  The bill was introduced by Lord  18 Dartmouth in the House of Lords on May 2nd, 1774.  19 Q   And that is under tab 317A, is it not, the Quebec Bill  2 0 as returned from the Commons?  21 A   Yes.  22 Q   And then introduced in the House of Lords?  23 A   Yes.  24 Q   And the language that you have referred to is found on  25 page 391?  26 A   Yes.  27 MR. GOLDIE:  About two-thirds of the way down the page, my  28 lord —  2 9    THE COURT:  "Along the western boundary"?  30 MR. GOLDIE:  31 Q   -- there is:  32  33 "Westward, to the Banks of the Mississippi and  34 Northward to the Southern Boundary of the  35 Territory granted to the Merchants Adventurers  36 of England trading to Hudson's Bay."  37  38 A   Then there's the boundary provision in the Quebec Act  39 itself which we've --  40 Q   Yes.  41 A   I can quote from that if you wish.  42 Q   Yes.  Thank you.  Well, that's -- well, yes, go ahead,  43 please?  44 A   This is a found in the Quebec Act itself. This is the  45 boundary provision for Quebec in part, and the  46 boundaries of the province in the south-west west and  47 north-west appear in the first section and read in 20611  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 part as follows:  2  3 "and thence along by the Eastern and South  4 Eastern Bank of Lake Erie, following the said  5 Bank, until the same shall be intersected by  6 the Northern Boundary, granted by the Charter  7 of the Province of Pennsylvania, in case the  8 same shall be so intersected; and thence from  9 along the said Northern and Western Boundaries  10 of said Province...", that's Pennsylvania,  11 "...until the said Western Boundary strike the  12 Ohio:  But in case the said Bank of the said  13 Lake shall not be found to be so intersected,  14 then following the said Bank, until it shall  15 arrive at that Point of the said Bank which  16 shall be nearest to the North Western Angle of  17 the said Province of Pennsylvania; and thence  18 by a right Line to the said North Western Angle  19 of the said Province;"  20  21 So we're now in Western Pennsylvania.  22  23 "and thence along the Western Boundary of the  24 said Province, until it strikes the River Ohio  25 (and along the Bank of the said River)  26 Westward, to the Banks of Mississippi, and  27 Northward to the Southern Boundary of the  28 Territory granted to the Merchants Adventurers  29 of England trading to Hudson's Bay."  30  31 Q   Thank you.  And there is a secondary source referred  32 to in tab or footnote 318, and by second resource I  33 mean documents prepared by an editor?  34 A   Yes.  35 Q   Which provide some indication of the amendments made  36 to the Quebec Act as it passed through Parliament?  37 A   Yes.  38 Q   Now, that description which you've given --  39 A   Yes.  40 Q   -- was later the subject matter of some controversy?  41 A   Yes, it was.  Different opinions and -- differing  42 opinions and serious controversy, yes.  43 Q   And what were the two differing opinions with respect  44 to the meaning of the -- well, first point out to his  45 lordship what it is that gives rise to the  46 controversy?  47 A  Well, the ambiguity is found in the last few lines of 20612  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 what I quoted, and here we're again -- I'll go back to  2 Western Pennsylvania and the line is going west.  3  4 "Until it strike the River Ohio, (and along the  5 Bank of the said River) Westward, to the Banks  6 of Mississippi..."  7  8 And here's where the ambiguity comes in:  9  10 "...and Northward to the Southern Boundary of  11 the Territory granted to the Merchants  12 Adventurers of England trading to Hudson's  13 Bay."  14  15 So that the northward to the southern boundary of  16 Rupert's Land northward could be a due north line,  17 even though they've used right line before to express  18 a straight line, but it could mean due north.  It also  19 could mean along the banks, eastern banks of the  20 Mississippi, until the Mississippi enters, as you're  21 going north, Rupert's Land.  22 Q   So that the issue, to put it another way, is is it a  23 straight line?  24 A   Is it a straight line from the confluence up or does  25 it follow the banks of the Mississippi.  26 Q   In a northward trend, trending northward?  27 A   Trending northward along the banks of the Mississippi  28 or due north in a straight line.  29 Q   All right.  And you have earlier referred to the  30 evidence in de Reinhard's case?  31 A   Yes.  32 Q   And that issue was debated there as well?  33 A   Yes, it was, and the Chief Justice Jonathan Sewell,  34 S-e-w-e-1-1, and his colleagues on the Court of King's  35 Bench District of Quebec, assumed that due north was  36 the proper meaning. There were many documents which  37 might have been put before them that weren't, but this  38 is what they decided.  39 Q   Yes.  40 A  And that's at internal page 226, 27, at the end of the  41 case, the asterisk.  The asterisk --  42 Q   And that extract we've seen earlier?  43 A   Yes, we have.  It's an earlier tab.  44 Q   Yes.  Now, you've indicated that where the draftsmen  45 of the Quebec Act had wished to indicate a straight  46 line, the wording chosen was by a right line?  47 A   Yes.  By a right line, yes. 20613  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 MR. GOLDIE:   Is there any other reason that you wish to bring  2 to his lordship's attention that suggests that the due  3 north or straight line would have been inappropriate?  4 MR. RUSH:  Well, my lord, I think the witness should be directed  5 to the documents, and if the documents suggests this  6 or that then it will emerge from the document.  I  7 certainly think that the reference to de Reinhard's  8 case and what might have been in any one of the  9 justice's minds at that time is inappropriate, unless  10 he's referring to the evidence.  11 MR. GOLDIE:  12 Q   Well, that's all that he was referring to, my lord.  13 It's -- the debate over due north and northward is  14 clear from the evidence and the judge's charge, both  15 of which are found in the source document.  But I'm  16 now talking about is there anything, as a matter of  17 fact, that you wish to bring to his lordship's  18 attention that bears on the question of the choice of  19 which it is?  20 A  Well, in the preamble to the Quebec Act there's  21 reference to providing civil jurisdiction for the  22 Canadian or I believe they're called French there, but  23 Canadian settlers in villages in what was the Indian  24 reserve who had of course no civil jurisdiction up to  25 that point.  There is also the letter I think we've  26 quoted Dartmouth to Hillsborough saying that it's very  27 important to provide jurisdiction for these people.  28 If you drew a line due north from the confluence, you  29 would exclude any number of villages west of that due  30 north line such as the village of Old Fort Chartres,  31 which is now East St. Louis, Missouri, just to take  32 one example.  33 Q   Which would have been included if the line followed  34 the banks of the Mississippi?  35 A   That's correct.  36 Q   All right.  Thank you.  And now you make reference to  37 the fact that in the Historical Atlas of Canada that's  38 not the current --  39 A   No.  40 Q   -- document of the same name?  Both of these versions  41 are given and the reference to that is footnote 319.  42 A   Yes.  43 Q   Footnote 319 simply says 319, 32.  Is that page 32?  44 A   Page 32 of D.G.G. Kerr, Kerr's volume called "A  45 Historical Atlas of Canada", circa 1959.  46 Q   With respect to the exclusion of certain villages or  47 settlements, if the line north of the confluence of 20614  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 the Ohio and the Mississippi had been drawn due north,  2 is there any other indication that those settlements  3 were intended to be covered by the Quebec Act?  4 A  Well, as the instructions to Carleton.  5 Q   Well, can it -- perhaps I withdraw the word intention.  6 Is there any document to which you wish to draw his  7 lordship's attention which would indicate the  8 jurisdictional intention?  9 A   Yes, I'd refer to tab 263 which are the instructions  10 issued in January 1775.  11 MR. GOLDIE: Yes.  12 THE COURT:  263?  13 THE WITNESS:   263.  To Governor Carleton.  That's January 1775,  14 tab 263, which -- particularly paragraphs numbered 15  15 and especially 31, 15 and 31.  16 MR. GOLDIE:  17 Q   Thank you.  18 A   These instructions -- do you --  19 Q   Well, 15 is a long one, but --  20 A   Yes.  May I summarize?  21 Q   Well, is there language in it that you can just direct  22 our attention to?  23 A   I have to -- okay, 263 -- I'll have to have the other  24 volume.  At 263 article 15, bottom of page 323, there  25 is an instruction to set up courts criminal and civil  26 and the instructions read, second last line:  27  28 "That besides the foregoing Courts of Criminal  29 and Civil Jurisdiction for the Province at  30 large, there be also an Inferior Court of  31 Criminal and Civil Jurisdiction in each of the  32 Districts of the Illinois, St. Vincenne,  33 Detroit, Missilimakinac, and Gaspee, by the  34 Names of the Court of King's Bench for such  35 district."  36  37 Q   Right.  Thank you.  3 8 A  And then 31.  39 Q   Yes.  40 A   31 refers to, beginning at the beginning of the  41 article:  42  43 "The institution of inferior Judicatures with  44 limited Jurisdiction in Criminal and Civil  45 Matters for the Illinois, Poste St. Vincenne,  46 the Detroit, Missilimakinac, and Gaspee, has  47 been already pointed out, and the Appointment 20615  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 of a Superintendant at each of these posts is  2 all, that is further necessary for their Civil  3 concerns; But..."  4  5 Obviously they're dealing with that area beyond the  6 straight line as if they -- as if it came within the  7 jurisdiction of Quebec.  8 Q   That's particularly comprehended in the word Illinois?  9 A   Yes, Illinois country.  10 Q   Thank you.  And you make reference to, at tab 324, to  11 a map identified as Pownall's map of the British  12 provinces, North America 1775?  13 A   Yes.  14 Q   And under 324B to the page in the Ontario compilation?  15 A   Yes.  16 Q   Identified as page 136dd?  17 A   Yes.  18 Q   What are the references there to?  19 A  Well, beginning with the Ontario compilation at page  20 136dd, map number 145, a note by the compilers states  21 that:  22  23 "This map shews the Province of Quebec, as  24 constituted in 1774.  It will be observed, that  25 north of the point of confluence of the Ohio  26 and Mississippi, the western boundary is along  27 the latter river.  And not by a line drawn due  28 north from that point of confluence."  29  30 That's the compiler's opinion, and there is  31 reference that this map, the original of this map, was  32 held by the U.S. Department of State.  33 Now, I have not seen the original in the time  34 available.  I was not able to find it in catalogues to  35 the Library of Congress and other places, but I found  36 the map being referred to by the Ontario government in  37 that note and it's found in -- and it's produced, the  38 map.  It's found in David Mills, his book called "A  39 Report on the Boundaries of Ontario, Toronto, 1873",  40 and it's his map 6 in the appendix.  This report was  41 prepared for the Ontario government as part of their  42 ongoing case with Manitoba and the Federal.  Mills  43 uses the map to make the point in his text that the  44 boundary of Quebec did not go in a due north line, but  45 went along the banks of the Mississippi.  And the  46 colouring, you know, would indicate that, but I must  47 introduce two caveats here. 20616  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 First of all, if you'll notice the title --  2 Q   We're looking at the map under tab 324A?  3 A   Yes.  4 Q   Yes.  5 A   The colouring is my rendition of the colouring found  6 on the Mills map in his report.  Right.  Now, you will  7 notice the title there "Pownall's Map of the British  8 Provinces in North America A.D. 1775".  To me that  9 doesn't -- that suggests it's not one produced by  10 Pownall.  It could be organized by Mills and, as I  11 say, I haven't been able to see the original.  Mills  12 does not mention -- doesn't go into detail about these  13 colours.  I've reproduced them as best I can and  14 probably not very well, but they appear essentially  15 the same way in Mills' book.  I will add this:  That  16 I've written and published on Mills and he was a man  17 of rather amazing integrity, and the chances of him  18 actually lying or trying to mislead the judicial  19 committee or any other court is really remote from  20 reality.  21 MR. GOLDIE:   All right.  22 THE COURT:  Is it convenient to take an adjournment, Mr. Goldie?  23 MR. GOLDIE:  Yes, that will be fine.  24 THE COURT:  We're half-way to four o'clock.  25 THE REGISTRAR: Order in court. Court stands adjourned for a  26 short recess.  27  2 8 (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)  29  3 0 (PROCEEDINGS RECONVENED PURSUANT TO ADJOURNMENT)  31  32 THE REGISTRAR: Order in court.  33 THE COURT:  Goldie.  34 MR. GOLDIE:  35 Q   Thank you, my lord.  Dr. Greenwood, you had just  36 finished commenting on the map which may or may not  37 have been entitled by Mr. Mills?  38 A   Yes.  39 Q   As the Pownall map of 1775?  40 A   Yes.  41 MR. GOLDIE:   And that's 324?  42 THE COURT: A.  43 MR. GOLDIE:  44 Q   324A.  Now, this particular Pownall is who?  45 A   Former Governor of Massachusetts, who was the brother  46 of John Pownall, the Secretary of the Board of Trade,  47 and he had written a book called "The Administration 20617  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 of the Colonies", "The Administration of the Colonies  2 in 1764".  He was a member of Parliament for Tregony,  3 T-r-e-g-o-n-y, and had participated in the debates in  4 the Commons on the Quebec Bill's boundary provisions.  5 Q   And your -- the sources of your references or the  6 sources for your statements are found in footnotes 325  7 and 326 on page 226?  8 A   Yes.  9 Q   And you also refer to Governor Carleton's commission  10 that we have spoken about earlier?  11 A   Yes.  His commission of December 27th, 1774.  His  12 commission as Governor of Quebec now under the Quebec  13 Act.  14 Q   All right.  And there is -- under tab 327 there is an  15 extract from a publication entitled "Acts of the Privy  16 Council of England, Colonial Series"?  17 A   Yes.  18 Q   We've seen extracts of that before?  19 A   Yes.  20 Q   What -- to what do you refer here?  21 A   Page 559 —  22 Q   Yes —  23 A   -- gives the details of the drafting of the  24 commission.  25 Q   Yes.  26 A   To Governor Carleton, and this would be under the date  27 at the left-hand side following the date on the  28 left-hand side:  29  30 "1774, Guy Carleton, 9 December; 19 December; 19  31 December Commission.  On 10 December the draft  32 was referred by the Committee to the Attorney  33 and Solicitor General.  Changes in pursuance of  34 the Quebec Act."  35  36 In other words, it was being drafted to comply  37 with the new Act.  38 Q   And the identity of the Solicitor-General and the  39 Attorney-General?  40 A   That is Edward Thurlow was the Attorney-General, later  41 Lord Chancellor, and Alexander Wedderburn, who had  42 helped draft the Quebec Bill, was the  43 Solicitor-General.  44 Q   And you say Wedderburn had helped draft the bill?  45 A   Yes.  46 Q   Did Thurlow have any prior acquaintance, to your  47 knowledge, with the Quebec Act? 2061?  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 A   Yes.  I have no evidence of his partaking in the  2 drafting, but he submitted a report in 1772 or '73, I  3 can't remember which, on the laws to be granted, you  4 know, criminal and civil laws to be granted to the new  5 province of Quebec.  6 Q   Right.  And the authority for that is referred to  7 under footnote 327?  Well, I'm sorry, no, that --  8 A   Partly.  9 Q   That is the source of the document under tab 327A, and  10 then the Order in Council approving the Board of  11 Trade's draft commission is that 327B -- no, I  12 don't -- yes.  Yes, is that what 327B is?  13 A   Yes.  14 MR. RUSH:  What was the answer?  15 MR. GOLDIE:  16 Q   Yes.  And the source of your information with respect  17 to Wedderburn and Thurlow, is that the footnote under  18 tab — footnote 328?  19 A   In part.  Also I think 340.  2 0 Q   And 32 9?  21 A   Yes.  22 Q   Thank you.  Now, we've referred to the Carleton's  23 commission on a number of occasions, but is there  24 language that relates to this question of the boundary  25 that you wish to refer to?  26 A   Yes, I do.  We've been referring mostly I think to the  27 instructions while the commission's been mentioned  28 several times.  29 Q   Yes.  30 A   But I was unable to locate the original of his 1774  31 commission.  I searched with archival assistance in  32 Ottawa and I uncovered a number of different  33 commissions and the one I've chosen to file here,  34 these are listed in footnote 331.  35 Q   Yes.  36 A   This is the most reliable I could find, and it's in  37 record group 68, Volume 92, and it's titled "Liber B".  38 L-i-b-e-r, "Imperial Commissions".  This was a copy  39 that was used for official record.  It was made  40 directly from the original by the Provincial  41 Secretary.  When the Governor turned up he would give  42 his commission to the Provincial Secretary and a copy  43 would be made.  This is the copy.  The original  44 probably was destroyed by Carleton's wife who burned  45 his papers at his order after his death.  46 If you would turn to page 2, internal page 2.  47 Q   Under tab 331? 20619  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 A   Under tab 331.  2 Q   Yes.  3 A   This is the most reliable commission I could find.  4 This portion of the commission was dealing with the  5 south-western and western boundaries of Quebec and it  6 read in part as follows:  You'll see it's seven  7 lines -- eight lines from the bottom beginning in the  8 middle of the line, eight lines from the bottom, page  9 2.  10 Q   And the words after "Northwestern Angle of the said  11 Province and thence along..."?  12 A   Yes, but starting with the word "and".  13 Q   Yes.  14 A  15  16 "...and thence along the western boundary of the  17 said Province..."  18  19 Which is referring to Pennsylvania there.  20  21 "...and thence along the western boundary of the  22 said Province until it strikes the River Ohio  23 and along the Bank of the said River Westward  24 to the Banks of Mississippi (sic) and Northward  25 along the Eastern Bank of the said River to the  26 Southern boundary of the Territory granted to  27 the Merchants Adventurers of England trading to  28 Hudson's Bay..."  29  30 Q   Thank you.  Now, finally, and again you have made  31 reference to the dispute between Ontario and Manitoba,  32 Manitoba supported by the Dominion?  33 A   Yes.  34 Q   On the western and northern boundaries of Ontario?  35 A   Yes.  36 Q   And do I understand it that Manitoba's case was that  37 the -- well, perhaps you should state what Manitoba's  38 case was?  39 A  Well, Manitoba's federal case was that the -- in part  40 was that the line from the confluence of the Ohio and  41 Mississippi should be drawn in a due north direction  42 as Judge Sewell had done.  43 Q   Yes.  44 A   In 1818.  That was their contention.  Ontario  45 contended that now Mills had written about this at  46 great length in his report, it should be drawn along  47 the eastern bank of the Mississippi northward to the 20620  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 putative junction with the Hudson's Bay Company  2 territory.  3 Q   All right.  And the sources for your statements there  4 amongst other sources would be found in footnotes 333  5 and 334?  6 A   Yes, 332 as well.  7 Q   332, 3 and 4?  8 A   Yes.  9 Q   Thank you.  And you have earlier stated that Ontario  10 won the arbitration award?  11 A   Yes.  12 Q   Which set the westernmost point of the province of  13 Ontario at the north-west angle of the Lake of the  14 Woods?  15 A   Yes.  16 Q   Now, you refer there to footnote 335, but we don't  17 have that in the book of documents, and I'll examine  18 that.  And that was consistent with the Ontario  19 interpretation?  20 A   Yes.  And yes, it was not consistent with the Manitoba  21 interpretation, consistent only with the Ontario  22 interpretation.  23 Q   Under tab 337 you have part of the submission or  24 argument before the judicial committee --  25 A   Yes.  26 Q   -- to which the arbitration award was referred?  27 A   Yes.  28 Q   And the proceedings before the committee runs  29 something over 400 pages?  30 A   Yes.  31 Q   And you have not included that --  32 A   No.  33 Q   -- in your volume before his lordship?  And you've  34 stated earlier that the Board, without giving reasons,  35 upheld the arbitration award?  36 A   That's correct.  37 MR. GOLDIE:   And we're going to provide my friend with the  38 reference to that.  39 MR. RUSH:  My lord, I have to object to that.  Including this  40 portion, it sounds like it was quite a contested  41 argument and one would assume that various points of  42 view were reflected throughout, as in most arguments,  43 and it might have been enlightening to see all of it,  44 but in not being able to see all of it, I don't think  45 we should see any of it.  46 MR. GOLDIE:   Well, I was going to get only that portion  47 which -- and the Order in Council which upheld the 20621  F.M Greenwood (for Province)  In chief by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  arbitration award.  There were no reasons for  judgment, as we understand them, and if my friend  wishes to have the -- a copy of the entire argument,  I'm happy to provide him if he hasn't already been  provided with it.  MR. RUSH:  I don't think any of its relevant, my lord.  THE COURT:  Well, I'm not sure that it is.  I certainly think  that the award and the upholding of the award are  historical facts.  MR. RUSH:  I agree with that.  THE COURT:  But I'm not sure that one should be too strict in  determining what might be admissible as an underlying  historical fact.  A position taken by one side or the  other might be admissible as a historical fact, even  if taken in argument, when it might not be admissible  in the sense of debates in Parliament being admissible  to explain the statutes.  I'm just not sure that I'm  able to capture or express the precise terms of  admissibility of underlying historical facts, and I  think for the moment, subject to objection, I would be  disposed to allow Mr. Goldie to refer to those parts  of the argument that he -- I'm sorry, not to refer to,  but to at this stage put into evidence those parts of  the argument that he wants to rely upon in argument  which of course entitles you, Mr. Rush, to put in  whatever other parts you think are needed for the  purpose of balancing or neutralizing or answering  those parts, or to support the contrary argument that  you might wish to make at a later date.  I say this all in the most indefinitive way  because, as I said before, I haven't defined in my own  mind the limits of historical fact, but I certainly  have your objection in mind and I'd be glad to hear  from you later if Mr. Goldie does advance an argument  based upon argument.  MR. RUSH:  My lord, just succinctly put, is that I cannot see  how an argument recorded in a presiding case can  itself constitute a historical fact.  They're  submissions, and they don't stand for the proof of the  truth of any statement.  THE COURT:  That's so, but they might also be some -- they might  include some statements of fact.  MR. RUSH:  They might.  THE COURT:  Yes.  MR. RUSH:  But said in argument they're worthless.  MR. GOLDIE:  Well, I think my friend is a little too dogmatic on  this . 20622  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 THE COURT:  Well, he's firm anyway.  2 MR. GOLDIE:  Yes.  The fact is that argument is often looked at,  3 if for no other reason, than to determine what was  4 before the court, what assertions were made before the  5 court, did the court have the advantage of knowledge.  6 Taken to its extreme, argument has been looked at in  7 determining whether a judgment is per incuriam, but  8 that's not really the -- I don't think that's the  9 point your lordship is directing your mind to.  10 THE COURT:  No.  11 MR. GOLDIE:  The question of fact which is indicated in the  12 argument is the thoroughness of the examination of the  13 sources of information about the questions that were  14 before the court at that time.  I would rely upon the  15 fact that there were a hundred and thirty-five maps.  16 I would rely upon the fact that -- the description of  17 those maps in relation to some of the argument that  18 will be put before your lordship about the issues that  19 have been touched on in the evidence so far.  But that  2 0 is probably open to me on argument without the  21 necessity of putting this in evidence.  22 THE COURT:  I'm not going to make any definitive ruling on  23 either the point you just made or the one I mentioned  24 earlier at this time.  Mr. Rush can certainly  25 supplement this in any way he thinks is necessary for  26 his purposes.  27 MR. GOLDIE:  28 Q   In any event, Dr. Greenwood, is the reference at  29 footnote 338, is that the reference to the Order in  30 Council which confirmed the arbitration award?  31 A   That's a statute.  32 THE COURT:  Footnote —  33 MR. GOLDIE:  34 Q   I'm sorry, yes, 338 is the statute which embodied  35 the -- or definitively settled the boundary?  36 A   Yes.  37 Q   Yes.  All right.  And in accordance with what?  38 A   In accordance with an Order in Council drafted on 11  39 August 1884, and the terms appear in the statute.  And  40 of course the Order in Council was based on the award  41 which is in tab 337, although I'm not sure if I should  42 refer to it.  43 Q   Where do you see the award under tab 337?  44 A   First page, after the middle, Lord Chancellor, and  45 then the final reference on that page by the Lord  46 Chancellor:  47 20623  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 "Their Lordships are of opinion that you may  2 assume the southern boundary, and the western  3 to a point north of the Lake of the Woods."  4  5 And then he elaborates on that at the bottom of the  6 page.  7 Q   I'm sorry, I don't see this.  It's on page --  8 A   403.  Internal page 403.  9 Q   Yes.  Yes.  Thank you.  10 A  After the middle of the page.  11 Q   Yes.  12 A   There is Lord Chancellor to Mr. Mowat.  13 Q   Yes.  Thank you.  I've got it.  14 A  All right.  And at 405 at the very end the Lord  15 Chancellor states that they will not be giving reasons  16 because that was the usual practise in those kinds of  17 cases.  18 Q   All right.  Thank you.  And under tab 339 there's  19 another extract from the proceedings before the  20 committee?  21 A   Yes.  22 Q   And with respect to the assumption reflected in Sir  23 Guy Carleton's 1775 commission, namely the  24 intersection of the Mississippi with the southern  25 boundary of the lands granted to the Hudson's Bay  26 company, did that -- did that reoccur or can you give  27 any examples of its continuing existence?  28 A   Yes.  The commission is 1774, December 27th.  29 Q   That's Carleton's commission?  30 A   Commission, yes, it's 1774.  31 Q   Yes.  Yes.  All right.  32 A  At the bottom of page 182.  33 MR. RUSH:  Which tab?  34 THE WITNESS:   Lord Aberdare.  35 MR. GOLDIE:  36 Q   Well, no, are you referring to -- I'm not now  37 referring to the -- I'm referring to further examples  38 of the official documents.  39 A   Yes, there's several examples of the later commissions  40 of Carleton and Haldimand, the Jay's Treaty 1794.  41 Q   Now, the first of those --  42 A  Would be tab 342.  43 Q   Is that -- that's a commission to?  4 4 A   Haldimand.  45 Q   Haldimand.  When he became Governor of Quebec?  46 A   Yes.  47 Q   And what year was that? Q  Yes  A  Yes  Q  Yes  20624  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 A   1777.  2 Q   Yes.  And can you identify for us the language?  3 A   Yes.  At the bottom of the first page.  4  5  6  7 "...and from thence along the said Northern and  8 Western Boundaries of the said Province until  9 the said Western Boundary strikes the Ohio, but  10 in case the said Bank of the said Ohio shall  11 not be found to be so intersected, then  12 following the said Banks until it shall arrive  13 at that point of the said Bank which shall be  14 nearest to the North Western Angle of the said  15 Province of Pennsylvania and thence by a right  16 line to the said North Western Angle of the  17 said province..."  18  19 And going on to the next page:  20  21 "...and thence along the Western Boundary of the  22 said Province until it strikes the River Ohio  23 and along the Bank of the said River Westward  24 to the Banks of the Mississippi and Northward  25 along the Eastern Bank of the said River to the  26 Southern boundary of the Territory granted to  27 the Merchants Adventurers of England trading to  28 Hudson's Bay."  29  30 Q   Yes.  All right.  And then you make reference to the  31 Treaty of Paris?  32 A   Yes.  33 Q   Of 1783?  34 A   Yes.  35 Q   That is under tab 343?  36 A   Yes.  37 Q   And to what do you refer us to?  38 A   That of course is the treaty that brought an end to  39 the American revolutionary war.  And at page 268 --  40 Q   Yes.  41 A   -- eight lines down, the boundary between British and  42 American territory reads in part as follows:  43  44 "Thence through the middle of said Long Lake,  45 and the water communication between it and the  46 Lake of the Woods, to the said Lake of the  47 Woods; thence through the said lake to the most 20625  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 northwestern point thereof."  2  3 So we're at the northwestern point of the Lake of the  4 Woods.  5 Q   Yes.  6 A  7  8 "And from thence on a due west course to the  9 river Mississippi;"  10  11 Q   Right.  About what parallel are we at when the --  12 we're directed to go due west on a due west course to  13 the Mississippi?  14 A   Just slightly above the 49th I believe.  15 Q   All right.  And that was intended to define the  16 boundary between the United States and what was  17 then —  18 A   British North America.  19 Q   -- British North America?  And, in particular, that  2 0 would be Rupert's Land?  21 A   Yes.  22 MR. RUSH:  Not misleading —  23 MR. GOLDIE:  Well, is there any other — I'll ask the witness.  24 MR. RUSH:  Well, British North America can't be Rupert's Land.  25 MR. GOLDIE:  26 Q   Well, I was thinking of a more general appellation of  27 British North America, but to get myself and my friend  28 out of this, perhaps Dr. Greenwood you'd tell us?  29 A  What is the question again?  30 Q   What is being separated or what is between -- between  31 what political entities are we looking at with respect  32 to that boundary?  33 A   Essentially it's Rupert's Land.  After the Lake of the  34 Woods it's essentially Rupert's Land and the United  35 States of America.  East of the Lake of the Woods it  36 would be Quebec.  37 Q   Right.  Now, and you have reference to other  38 commissions that were granted subsequently?  39 A   Yes.  40 Q   Or not subsequently, but two commissions?  41 A   Yes, Lord Dorchester's commission of 1786 for Quebec.  42 Q   Yes.  43 A  And in 1791 as Governor-in-Chief of the two Canadas.  44 Q   And the first of those is on page 18 of this  45 particular document?  4 6 A   Yes.  Towards the end of the quote in the middle.  47 "Thence through the said lake", towards the end of it, 20626  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 "thence through the said lake to the most  2 north-western point thereof", that's the Lake of the  3 Woods, "and from thence on a due west course to the  4 River Mississippi."  5 Q   Right.  Thank you.  And the second one of those?  6 A   Is on page 21.  7 Q   Yes.  8 A   Third full paragraph at the bottom simply says that  9 Upper Canada will include the territories in the west  10 of the old province of Quebec, so it's essentially  11 repeating the boundary provision, although of course  12 the old colony's divided into two Canadas at that  13 time.  14 Q   And finally you make reference to the Treaty of 1814,  15 and the reference that you give us is to the  16 proceedings before the judicial committee, but --  17 A   Yes, it's the -- it's the Jay's Treaty between Great  18 Britain and the United States settling a number of  19 outstanding issues in 1794, and for convenience I've  20 taken it from the judicial committee's hearing, and on  21 page 322 there's article 4 of the Jay's treaty, and it  22 begins with these words:  23  24 "Whereas it is uncertain whether the River  25 Mississippi extends so far to the northward as  26 to be intersected by a line to be drawn due  27 west from the Lake of the Woods in the manner  28 mentioned in the Treaty of Peace between His  29 Majesty and the United States."  30  31 And then there's to be a commission to establish  32 the fact, which never met however.  33 MR. GOLDIE: You proceeded in the right chronological order.  I  34 was going to refer you to the Treaty of 1814 which  35 purports to settle a boundary and ask you how it got  36 there, but you've done that.  37 Now I wish to refer to certain footnote references  38 for other authorities that I haven't already done, my  39 lord, and that is footnote 299, 302, 303.  You have  40 referred to footnotes 304, 5, 6, and 7, you have  41 referred to footnote 308, 9, 11, and you referred to  42 what is spoken to in footnote 313, 315, the  43 authorities referred to in 316, and in 317.  We have  44 referred to 318, we've referred to 319, and 320.  And  45 I also refer -- I may wish to refer to the secondary  46 authorities referred to in 321.  You've referred to  47 325, to 326, to 328 and 329 and to 330.  I wish to 20627  F.M Greenwood (for Province)  In chief by Mr. Goldie  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47  THE COURT  MR. RUSH:  THE COURT  make use of the reference in 340 and 341.  My lord, I tender as Exhibit 1167, Volume 6,  consisting of footnotes starting with -- consisting of  tabs starting with 293 and extending to 345 as  indicated on the index at the front of the volume,  with some question as to the inclusion of all of them,  but at the present time I tender it on that basis.  :  All right.  Mr. Rush has made his -- some of his  comments known and perhaps there are others.  I think the ones that I voiced are sufficient.  :  Yes.  All right.  Thank you.  116  116  116  116  116  (EXHIBIT 116  (EXHIBIT 116  (EXHBIT 1167  (EXHIBIT 116  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  the Limits o  (EXHIBIT 116  (EXHIBIT  Commons)  (EXHIBIT  (eds.)  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  commissions)  (EXHIBIT 116  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  (EXHIBIT  7-293: Draft instructions to Bedford)  7-294: Bedford's comments)  -295: Tomlinson, John)  7-300:  Henry Popple - Map)  7-301: Notes on Maps)  7-311: Bowen coloured map)  7-312: Bowen maps of North America)  7-314: "Paper relative to the extension of  f Quebec")  7-316: Quebec bill - drafts)  7-317A:  Quebec Bill returned from  1167-317B: Simmons, R.C. & Thomas, P.D.G.  116  116  116  116  116  116  116  116  116  116  116  7-322A: Dartmouth to Cramahe)  7-323: Instructions to Carleton)  7-324A,B: Pownall, Sir Thomas)  7-327A: Commission to Carleton - drafting)  7-327B: Order In Council, appproving draft  7-331: Carleton's commission)  7-337: Special Case)  7-339: Special Case)  7-342: Commission to Haldimand)  7-343: Treaty of Paris)  7-344A:  Lord Dorchester's Commissions)  7-345: Jay's Treaty, Article 4)  MR. GOLDIE:  My lord, I would ask that the witness not be placed  under cross-examination today.  If my friend is  anxious to utilize the time, I've got some documents I  wish to read in.  I have two reasons for making that  request.  Firstly --  MR. RUSH:  My friend needn't go into that.  I'm not opposed to  that. 2062?  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 THE COURT:  All right.  All right.  Subject to that you're  2 finished, are you?  3 MR. GOLDIE:  Yes, my lord, I have -- one of the things which is  4 open is the manner in which I place before your  5 lordship the footnote references.  6 THE COURT:  Yes.  All right.  Is it your suggestion then that we  7 adjourn until Thursday morning at 9:30?  8 MR. GOLDIE:  At 9:30 to do some matters.  I would be happy, my  9 lord, to complete reading in Volume 4 of the papers  10 related to the province of British Columbia.  11 THE COURT:  You mean now?  12 MR. GOLDIE:  Yes.  13 THE COURT:  Oh, all right.  If that's convenient to the other  14 counsel.  15 MR. RUSH:  It's not convenient particularly, my lord.  I don't  16 happen to have that volume here -- maybe I do.  17 THE COURT:  I hope you don't.  18 MR. RUSH:  My lord, it seems to me that there isn't any pressing  19 need to read this in, unless my friend feels that he'd  20 like to.  21 THE COURT:  Well, I think —  22 MS. RUSSELL: My lord, I'm on Mr. Rush's side.  23 THE COURT:  Well, I think it's convenient to read myself and  24 counsel can follow it and I think we'll forbear the  25 pleasure of hearing you read those today, Mr. Goldie.  26 MR. GOLDIE:  Thank you, my lord.  27 THE COURT:  I guess we're where, the length of the  28 cross-examination then behind schedule then, are we?  29 I think you had planned to finish this witness?  30 MR. GOLDIE:  Yes.  In my original time-table I had expected to  31 finish this witness this week, my lord.  32 THE COURT:  Yes.  Any idea how long you'll be, Mr. Rush?  33 MR. RUSH:  It's a hard one to call, my lord, but I'm aiming to  34 complete in a day.  35 THE COURT:  Yes.  All right.  Well, I don't know that we can  36 pursue the matter much further except we were already  37 scheduled to sit next Saturday anyway, were we not,  38 and so by sitting next Saturday won't enhance the  39 catch-up which we might like to be engaged, but we'll  4 0 pursue that course anyway and maybe somewhere along  41 the way we will catch up.  You didn't suggest that we  42 sit any evening this week did you Mr. Goldie?  43 MR. GOLDIE:  I had made one suggestion but the -- what has  44 removed some of my concern is Canada's desire to start  45 on the 8th of November which provides me with a bit of  46 a relief valve, and so if there is any problem I think  47 it's going to manifest itself after Saturday the 21st, 20629  F.M Greenwood (for Province)  In chief by Mr. Goldie  1 and in which case we have some time in the following  2 week, acknowledging that your lordship is sitting in  3 the week of the 30th.  4 THE COURT:  I'm in the Court of Appeal for three days that week.  5 MR. GOLDIE:  Yes.  6 THE COURT:  I think perhaps four, but three days on one case and  7 I can be replaced on the fourth day if necessary.  All  8 right.  We'll adjourn then until Thursday morning.  9 Have a pleasant week-end.  Thank you.  10 THE REGISTRAR: Order in court. Court stands adjourned until 9:30  11 on Thursday.  12  13 (PROCEEDINGS ADJOURNED TO THURSDAY, OCTOBER 12, 1989  14 AT 9:30)  15  16 I hereby certify the foregoing to  17 be a true and accurate transcript  18 of the proceedings herein to the  19 best of my skill and ability.  20  21  22 Tanita S. French  23 Official Reporter  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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