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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1989-04-25] British Columbia. Supreme Court Apr 25, 1989

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 16137  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 Vancouver, B.C.  2 April 25th, 1989.  3  4 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  5  6 THE REGISTRAR:  In the Supreme Court of British Columbia.  7 Vancouver, this Tuesday, April 25, 1989.  Calling the  8 matter of Delgamuukw versus Her Majesty the Queen at  9 bar.  10 I caution the witness, you're still under oath.  11 THE COURT:  Ms. Mandell.  12 MS. MANDELL:  My lord, we were at tab 16, and it's just been  13 marked as an exhibit, and I have some questions here  14 for the witness.  15 THE COURT:  Yes.  Thank you.  16 MS. MANDELL:  Thank you.  17  18 JAMES MORRISON, Resumed:  19  2 0 EXAMINATION IN CHIEF BY MS. MANDELL CONTINUED:  21 Q   Mr. Morrison, what was, in your view, the mischief  22 which the Proclamation against settling at tab 16 was  23 intended to address?  24 MR. GOLDIE:  My lord, I object to that.  Your lordship referred  25 yesterday to the legislation and the rule with respect  26 to the construction of an act of parliament, and that  27 is what -- I think it's the rule in the Haydens case.  28 THE COURT:  Is that the golden rule?  29 MR. GOLDIE:  Beg pardon, my lord?  30 THE COURT:  Is that what they call the golden rule?  31 MR. GOLDIE:  It was a golden rule with respect to the  32 construction of an act of parliament.  33 THE COURT:  Yes.  34 MR. GOLDIE:  The construction of a document does not fall within  35 that category.  The construction of a document,  36 especially one in respect of which there is no patent  37 or latent ambiguity, is for the court alone, and the  38 mischief that is referred to is one that relates to  39 the legislative history of an act of parliament.  And  40 I object to this witness being asked what is the  41 mischief that it is entitled -- that it is about to  42 correct.  The mischief so far as it is relevant to  43 this case, and I'm not sure that it is relevant, is  44 apparent from the recital of the document itself.  45 THE COURT:  What does it say?  I can hardly read it.  "By the  46 Honorable William Johnson".  47 MR. GOLDIE:  Well, are we looking at — 1613?  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 THE COURT:  Tab — oh.  2 MR. GOLDIE:  16, my lord.  3 THE COURT:  I'm at 15.  4 MS. MANDELL:  My lord, if my friend's excited about the word  5 mischief I can ask the witness with respect to the  6 background of the document.  7 THE COURT:  Well, I think you can ask a researcher, subject to  8 what your learned friends say, what was the historical  9 setting in which this document was -- was promulgated.  10 At least, I would think you could, and --  11 MR. GOLDIE:  If your lordship wishes the assistance of Mr.  12 Morrison in setting this in a general history of the  13 time.  14 THE COURT:  Yes.  15 MR. GOLDIE:  Then I don't have an objection to that.  16 THE COURT:  No.  I think —  17 MS. MANDELL:  I can ask the question along those lines.  18 THE COURT:  I think that's what we're all agreed you do, Ms.  19 Mandell.  2 0 MS. MANDELL:  Thank you.  21 Q   Mr. Morrison, what was the historical setting in which  22 this document was promulgated?  23 A  Well, the excerpts which just precede the Proclamation  24 are pretty well explanatory of it.  Colonel Bouquet  25 was the military commander at Fort Pitt effectively of  26 the Ohio country, which was part of the area that the  27 French had been defeated.  I mentioned yesterday as  28 well about the Ohio Company of Virginia having  29 received various land grants in the region of the Ohio  30 Valley.  And what had happened was that the Treaty of  31 Easton with the Six Nations and Delawares, et cetera,  32 in 1858 the series of Easton treaties, Pennsylvania  33 had agreed, and some of the other colonies had agreed,  34 not to settle beyond the Allegany Mountains, but  35 Virginia and Maryland didn't recognize the treaty and  36 were allowing people to settle in the Ohio Valley who  37 were taking up lands under the Ohio Company grants.  38 And various Virginia land speculators, among them  39 George Washington, were involved in this land  40 settlement process.  And Bouquet was, as he states in  41 the letter, just preceding of 12th of September, 1760  42 that as far as he was concerned, you know, Virginia  43 and Maryland were bound by the Easton treaty.  And so  44 this Proclamation is designed to, you know, forbid any  45 of His Majesty's subjects from settling west of the  46 Allegany Mountains on any pretense.  And it's directed  47 at Virginia and Maryland in particular. 16139  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 Q   And at this time, to your knowledge, is this the first  2 time that the prohibition settlement west of the  3 Alleganys is declared by a Crown's representative?  4 A   This is the first specific instance.  It had been a  5 matter of discussion at the Treaty of Easton among the  6 Indians and the various representatives, but this idea  7 of restraining settlement is becoming more and more to  8 the fore.  9 Q   Thank you.  Could I ask you then to turn to the next  10 document.  This is a letter to Cadwallader Colden.  11 Who is Mr. Colden?  12 A   He's president of the Council of New York.  He's the  13 acting governor.  He's about to become the lieutenant  14 governor, but at the moment that Sir William Johnson  15 is writing to him he's the acting governor of the  16 State of New York -- sorry, Colony of New York.  17 Q   And is there any significance in your mind to the fact  18 that Sir William Johnson is writing to Colden at this  19 date and at this place?  20 A  Well, what he's outlining in the letter are a series  21 of problems between the Indians and settlers taking up  22 lands in New York which -- Johnson's writing from Fort  23 Johnson.  He's got headquarters in the Mohawk Valley,  24 and these are difficulties over land which are in that  25 region.  And he in the very first bit of his letter to  26 Colden he -- he speaks of seeing justice done to the  27 Indians.  This is in the fourth line down.  It is  28 concerning the sale of their lands, and --  29 MR. GOLDIE:  Fourth line in what paragraph?  30 MS. MANDELL:  This is the first paragraph.  31 A  Very first paragraph of the letter of 20th of  32 February, 1761.  Perhaps they're out of order.  33 MR. GOLDIE:  It's not under ours.  34 A  At tab 17.  35 MS. MANDELL:  You're in tab 18.  It's under 17.  36 MR. GOLDIE:  Thank you.  37 A  And then further down he says after referring to His  38 Majesty's instructions to his governor:  39  40 "As there has been and still are abuses and  41 unfair means used with them."  42  43 That is the Indians.  44  45 "For obtaining deeds for their lands."  46  47 THE COURT:  Where is that, please? 16140  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 A   Oh, that's about half way down the first full  2 paragraph in that letter of 20th February where he  3 says:  4  5 "There has been and still are abuses and  6 unfair means."  7  8 THE COURT:  I'm sorry.  I can't find that.  9 MS. MANDELL:  It begins with the line "adhered to by you", and  10 it's about seven lines up from the bottom there.  11 THE COURT:  Oh, yes.  Yes.  12 A  13 "Used with them for obtaining Deeds for  14 their Lands, which may not, indeed cannot be  15 well cognisable to a Governor, I think it my  16 Duty to give you a hint of it, and endeavor  17 all in my power to prevent their being  18 defrauded, as I am fully sensible that  19 nothing can tend more to alienate their  20 affection and attachment from His Majesty's  21 Interest, than the pressing them to dispose  22 of their Lands, and that often by very  23 unwarrantable means."  24  25 And he refers to meeting with the Indians, and  26 that the Indians had asked Johnson to write to the  27 governor, or to the government of New York to entreat  28 them "not to pass Patents for any Lands."  This is the  29 fourth line down on page 339.  30  31 "For any Lands that were not given or sold  32 with the consent of their whole Castle, as  33 they say that their Bretheren the white  34 People, often make a few of their foolish  35 People drunk, then get them to sign Deeds,  36 while the rest, and those, even whose  37 property it is, know nothing at all of the  38 affair."  39  40 And he says that this is contrary to His Majesty's  41 intentions.  And then he details various of the land  42 complaints, which I don't propose to read, but they're  43 set out various of these problems between settlers and  44 the local Indians in New York.  And then on page 340,  45 seven lines up from the bottom, he says again after  46 saying that he's managed to calm the Indians down:  47 16141  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 "But I fear if they are not done Justice to  2 soon, and their grievances redressed, it may  3 turn out a more serious affair than we are  4 apprehensive of."  5  6 MS. MANDELL:  All right.  7 THE COURT:  Is the war over at this time?  8 A   Yes.  9 MS. MANDELL:  Yes.  10 MR. GOLDIE:  Well —  11 A   In a sense.  12 MR. GOLDIE:  Yeah, that's better.  13 A   I mean, the French have --  14 THE COURT:  The fighting's over?  15 A   The French have capitulated at Montreal effectively  16 ending the --  17 MR. GOLDIE:  Well, but —  18 A   The treaty is not yet signed.  19 MR. GOLDIE:  The treaty has not yet been signed and there was  20 still a prospect of fighting with respect to some of  21 the outlying areas.  22 THE COURT:  What was the date of the capitulation in Montreal?  23 A   September -- I forget the exact date, but 1760.  24 THE COURT:  And the peace treaty wasn't signed until '63?  25 A   '63.  26 MR. GOLDIE:  There were abortive peace negotiations in 1761, my  27 lord.  And I'm sure the witness will come to that.  2 8 THE COURT:  All right.  29 MS. MANDELL:  Yes.  I'd like to have that letter then marked as  30 the next exhibit.  31 THE REGISTRAR:  1026-17.  32  33 (EXHIBIT 1026-17:  Feb. 20, 1761 letter to C. Colden  34 from Sir W. Johnson)  35  36 MS. MANDELL:  37 Q   The next letter is another letter to the governor or  38 Acting Governor Colden, and this is also by William  39 Johnson.  Could you explain what -- what is the  40 significance of this letter?  41 A   It's the same discussion that was in the previous  42 letter setting out these problems involving the  43 Indians and settlers and the way in which land grants  44 were being taken up in New York, and that it's  45 referring specifically, among other things, to certain  46 lands being taken up on the west side of the Hudsons  47 River near Lake George and Lake Champlain.  And on 16142  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 page 410 he refers to the -- about the 8th line  2 down -- what the French had been telling the Indians  3 which is that the -- the English intend to make slaves  4 of them.  Here's the line:  5  6 "In danger of being made slaves, and having  7 their lands ..."  8  9 There's a number one in the margin, but at the  10 bottom the original apparently had the word lands in  11 it.  12  13 "Taken from them at..."  14  15 And I'm not sure what that word is supposed to be.  16 At pleasure probably.  17  18 "Which they added, would confirm what the  19 French have often told the Six Nations."  20  21 That the French particularly had been, partially  22 because the French themselves were not interested, of  23 course, in acquiring lands from the Indians, they were  24 not settlers, unlike the English colonists, and the  25 French dealt with the Indians through the military and  26 were, of course, interested in trading with the  27 Indians.  And it was very -- the most important  28 economic activity of New France, the fur trade, but  29 they constantly tried to win the Indians to their  30 side, of course, by pointing out the intentions of the  31 English colonists to take away their land and deprive  32 them of their possessions.  33 And at the very bottom of page 410 --  34 MR. GOLDIE:  I think, my lord, the following is important given  35 the context of this discussion, and bears on the  36 question your lordship asked a few minutes ago.  Sir  37 William Johnson goes on to say:  38  39 "Should our Bretheren begin with us in that  40 manner, who have at the risk of everything  41 joined them in defending their and our  42 Country, and now thought to set down in  43 peace."  44  45 That, my lord, I think refers to the apparent  46 cessation of the fighting between the French and the  47 English. 16143  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 THE COURT:  M'hm.  All right.  Thank you.  2 MS. MANDELL:  3 Q   Anyways, go ahead.  4 A   The end of page 410 when he says:  5  6 "I cannot Sir consistent with the duty I owe  7 His Majesty and the good of the Service I am  8 by him employed in avoid acquainting you, I  9 am very apprehensive that pressing the  10 Indians so much to dispose of their Lands  11 and that in such great Quantities contrary  12 to their Inclinations at present, will give  13 them great umbrage and alarm all the  14 Nations, and probably produce consequences  15 which may be very prejudicial to His  16 Majesty's Interest, and stop the settling of  17 the Country, both which are now in a  18 prosperous..."  19  2 0 And the omitted word is way.  21  22 "And may, by a proper conduct towards them".  23  24 And then on top of 411,  25  26 "Be continued so, but should it unhappily  27 fall out otherwise, I am certain it will not  28 be in my power or that of any other (without  29 violent measures which I believe any man of  30 reason would be avoiding if possible) to  31 bring them back to so good a state."  32  33 MS. MANDELL:  May that be marked as the next exhibit.  34 THE COURT:  Yes.  18.  35 THE REGISTRAR:  Thank you.  36  37 (EXHIBIT 1026-18:  June 18, 1761 Letter to C. Colden  38 from Sir W. Johnson)  39  4 0 MS. MANDELL:  41 Q   Now, if you turn, please, to tab 19.  This is a letter  42 of December 2nd, 1761 from the Lords of Trade to the  43 King, and it contains some draft instructions.  Could  44 you first advise us to whom were these draft  45 instructions being prepared?  By -- to whom were they  46 being prepared?  47 A  As it states in the opening paragraph of the Lords of 16144  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 Trade's submission, they're directing these to those  2 of the colonies upon the Continent of North America,  3 "As are under your Majesty's immediate government",  4 and continuing, "And where the property of the soil is  5 in your Majesty."  6 Q   And those would be the proprietary colonies?  7 A   No, those are not the proprietary colonies.  These are  8 the Royal colonies, the ones just as they say that are  9 under His Majesty's immediate government.  And the  10 next page, page 478, you can see which colonies that  11 these are -- that they mean.  Pennsylvania, for  12 example, was not included.  It was a proprietary  13 colony.  And Massachusetts Bay was also a proprietary  14 colony, it's not included.  But here Nova Scotia, New  15 Hampshire, Virginia, the Carolinas and Georgia are all  16 Royal colonies.  17 Q   All right.  And why, in your view, was the  18 instructions being sent to the Royal colonies at this  19 time?  20 A  Well, one, they were the most directly amenable to  21 imperial control.  And, two, Pennsylvania, for  22 example, one of the proprietary colonies had actually  23 in comparison to the other colonies was behaving quite  24 well with regard to these problems of unwarranted  25 settlement on Indian lands, and various Easton  26 treaties had been worked out with Pennsylvania in  27 particular.  28 Q   If you could then turn to the draft instructions and  29 advise with respect to the nature then of what was  30 being instructed of the governors?  31 A   The -- on page 478 it makes reference to lands  32 which -- this is about one, two, about ten or 11 lines  33 down, you know, complaining that settlements have been  34 made and possession taken of lands, the property of  35 which the Indians have by treaties reserved to  36 themselves, and makes reference to persons claiming  37 the said lands under pretense of deeds of sale and  38 conveyance illegally, fraudulently and surreptitiously  39 obtained of the said Indians.  40 THE COURT:  Where is that on page 479?  41 A   478.  42 MS. MANDELL:  Inside the instructions.  43 A   Inside the instructions about -- beginning about ten  44 lines down.  4 5    THE COURT:  Yes.  46 A   It's reciting why it is there -- these instructions  47 are being drafted.  And a few lines further after 16145  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 setting out these complaints:  2 "We therefore taking this matter into Our  3 Royal Consideration, as also the fatal  4 Effects which would attend a discontent  5 amongst the Indians in the present situation  6 of affairs, and being determined upon all  7 occasions to support and protect the said  8 Indians in their just Rights and Possessions  9 and to keep inviolable the Treaties and  10 Compacts which have been entered into with  11 them".  12  13 And then it enjoins and commands these governors  14 and other officials:  15  16 "Upon any pretense whatever upon pain of Our  17 Highest Displeasure and being forthwith  18 removed from your or his office, pass any  19 Grant or Grants to any persons whatever of  20 any lands within or adjacent to the  21 Territories possessed or occupied by the  22 said Indians or the Property Possession of  23 which has at any time been reserved to or  24 claimed by them."  25  26 And then it requires these, the governors, et  27 cetera, to publish a Proclamation:  28  29 "Strictly enjoining and requiring all  30 persons whatever who may either willfully or  31 inadvertently have ceded themselves on any  32 land so reserved to or claimed by the said  33 Indians without any lawful authority for so  34 doing forthwith to remove therefrom."  35  36 And it continues in the same vein.  37 Q   All right.  And were these instructions passed by the  38 King and sent to the governors as said?  39 A   Yes, they were officially issued.  The last part of  40 the document consists of the excerpt from the  41 published acts of the privy council.  42 Q   And that would be on December 3rd?  43 A   Yes, 1761.  Approving two drafts of instructions, and  44 the first is the one just referred to.  45 Q   All right.  46 A   It would be on page 500.  47 THE COURT:  What page? 16146  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  MANDELL:  It's 1761, my lord.  There's two inserts in this  tab, the one is the privy council minute and the other  is the draft.  Could then both of those documents be  marked as one exhibit.  GOLDIE: I think, my lord, that the whole of the document  that I sent you, of which this is a part, should be  marked. This is part of the order in council which  approves, and it's only a part of it, my lord.  MANDELL: Well, I've got no objection to filing the whole  thing, but --  GOLDIE:  Well, I sent you the whole thing.  MANDELL:  Well, we also had the document.  We only want this  particular bit of it.  COURT:  You're talking now this document starts "Acts of the  Privy Council of England"?  MANDELL:  This is just the registrar of the various orders  of council that get passed.  We just isolated it with  respect to this one instruction that we were  interested in.  I've got nothing to hide with respect  to the rest.  COURT:  Well, then I will just make a note the whole of the  document is to be included.  MANDELL:  That's fine.  COURT:  All right.  Thank you.  And where on this page does  it —  MANDELL:  My lord, if you'll —  COURT:  I see, on December 3rd.  MANDELL:  December 3rd, that's right.  COURT:  Reported two drafts of instructions were approved.  Yes, all right.  REGISTRAR:  1026-19.  COURT:  Yes.  (EXHIBIT 1026-19:  Dec 2, 1761 Letter to King from  Lords of Trade with Order in Council)  MANDELL:  Q   Now --  GOLDIE:  You see, my lord, there are actually documents from  two separate sources under this one tab, and that's  what I'm concerned about.  COURT:  Yes.  GOLDIE:  The facing page is not the source of the order in  council.  MANDELL:  No.  The order in council -- I put the source page  in.  It's the -- it's the acts of the privy council.  There are two source pages identified in the tab.  1  MS.  2  3  4  5  MR.  6  7  8  9  MS.  10  11  MR.  12  MS.  13  14  THE  15  16  MS.  17  18  19  20  21  THE  22  23  MS.  24  THE  25  26  MS.  27  THE  28  MS.  29  THE  30  31  THE  32  THE  33  34  35  36  37  MS.  38  39  MR.  40  41  42  THE  43  MR.  44  45  MS.  46  47 16147  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  Submissions by Counsel  1 MR. GOLDIE:  Yes.  I agree with that.  2 THE COURT:  All right.  Thank you.  3 MS. MANDELL:  All right.  4 MR. GOLDIE:  But, as I say, the complete order in council, which  5 is important, is not there, and I object to that.  6 THE COURT:  All right.  7 MS. MANDELL:  All right.  8 Q   Mr. Morrison, before we get into the next batch of  9 documents which deal with the enacting of the  10 Proclamation as considered by the Lords of Trade and  11 the King I'd like you to turn your mind to the period  12 that we've just canvassed, which is approximately 1742  13 to January 1763, and I ask you, in your opinion, was  14 there a pressing problem raised by the Indian nations  15 which was of concern to the Crown during this period?  16 MR. GOLDIE:  Well, I object to that, my lord.  It's perfectly  17 clear from the documents what the nature of the  18 problem was, it's perfectly clear what we're leading  19 up to, and presumably we are going to be getting to  20 Pontiac's conspiracy and outbreak of Indian war which  21 took place on the boundaries of these colonies and  22 which immediately preceded the Royal Proclamation.  23 But I take exception, my lord, and I say that this  24 witness is not qualified to summarize documents which  25 in themselves tell the story.  It is a matter of  26 argument to link these together and to submit to your  27 lordship the nature of the problem and its relevance  28 to the Royal Proclamation.  The factual circumstances,  29 the matrix of facts are all here.  30 THE COURT:  Well, that's the only thing I have any concern with.  31 It would seem to me, Mr. Goldie, that what you're  32 saying would be -- would be correct if the opinion  33 sought is based only on these documents that I have  34 seen, but we are all the product of everything we  35 experience, and I'm pursuing a line of enquiry in my  36 mind at the moment as to whether this is just a case  37 of wrapping up what we already know in a nice package  38 and tying a bow on it, or whether the opinion sought  39 is one that depends not just on what we've seen, but  40 on everything that -- everything else that the witness  41 knows from his historical research.  42 MR. GOLDIE:  Well, my lord, if the witness knows anything more  43 the documents have to be produced.  As a matter of  44 fact, this is largely a paraphrase of chapter six of  45 Professor Slattery's thesis.  As far as I'm aware most  46 of the documents are there referred to.  47 MS. MANDELL:  Most of them aren't. 16148  J. Morrison (for Plaintiffs)  Submissions by Counsel  In chief by Ms. Mandell  1 MR. GOLDIE:  Well, I'm not so sure about that.  I'm making a  2 search now of the origin of the documents from one to  3 17, and some of them are referred to in Mr. Morrison's  4 summary, others are from our disclosed list of  5 documents which Mr. Morrison acknowledges in his  6 summary was his source, others as far as I can make  7 out come from Professor Slattery.  My point is this;  8 dealing, as we are, with a matter in which there is no  9 competent witness in respect of events as firsthand  10 witnesses we must have the sources of opinions.  Now,  11 my first submission is Mr. Morrison is not qualified  12 to express an opinion on these documents.  My second  13 submission is that it's not required.  My third  14 submission is that if he's going to express any  15 opinion which is not based on these documents the  16 documents must be disclosed.  17 THE COURT:  Well, perhaps, Ms. Mandell, you can explore the  18 matter further with the witness and find out for me  19 if -- if the opinion you're asking the witness for is  20 based upon the documents that are before me or --  21 MS. MANDELL:  Right.  22 THE COURT:  Or them and something else.  23 MS. MANDELL:  I'll explore that.  I might advise, my lord — all  24 right.  I'll do that.  25 MS. MANDELL:  26 Q   In reviewing the period between 1742 to 1763 did you  27 make reference to Jack Stagg, Anglo-Indian Relations  28 in North America, a thesis published by him in 1980?  29 A   Yes.  Among other works, certainly.  30 Q   And did you also with respect to this period read and  31 make reference to Brian Slattery's thesis, The Land  32 Rights of Indigenous Canadian People as Affected by  33 the Crown's Acquisition of Their Territory, doctoral  34 thesis of 1979?  35 A   Yes.  36 Q   And did you also review the sources referred to by  37 Jack Stagg and Dr. Slattery?  38 A   Yes, I did, and have.  And there, of course, are a  39 number of other historical works and documentary  40 sources that I canvassed as well.  41 Q   Did you also refer to Frances Jennings' work, The  42 Ambiguous Iroquois, published in 1984?  43 A   The Ambiguous Iroquois Empire, yes.  44 Q   And did you also refer to Frances Jennings' The  45 History and Culture of the Iroquois Diplomacy, his  46 book published in 1985?  47 A  Well, he edited that book, and an excerpt from it I 16149  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  Submissions by Counsel  1 referred to yesterday in an article by Professor  2 Fenton and glossary of terms from Treaty Diplomacy.  3 Q   And did you also refer to Dr. Hurley's work Children  4 or Bretheren Aboriginal Rights and Colonial Iroquois,  5 a doctoral thesis of 1985?  6 A   Iroquoia, yes.  7 Q   And did all of the authors whom I've just referred to  8 write about and deal with the subject matter which is  9 being testified to before this court involving the  10 period between 1742 and 1763?  11 A   Yes, in part.  I mean, that wasn't the only period  12 that they dealed with.  13 Q   And apart from those major sources did you consult any  14 other general references with respect to this period?  15 A  Well, the -- certainly the standard historical works  16 on the period and topic.  I could mention, for  17 example, Jack M. Sosin, White Hall in the Wilderness,  18 which is a well-known and acknowledged work on this  19 period and a history of some of this period and  20 setting.  21 Q   And were the documents which we've already referred to  22 from tab 1 to 19 a selection of documents which --  23 which was done by you with respect to some of the  24 major issues of this period as you understood them?  25 A   Yes, it's a selection from among -- there are an  26 enormous number of historical documents from the  27 period and I selected ones which I felt were  2 8 important.  There are many, many documents.  I mean,  29 the William Johnson papers alone run to some 15, 16  30 volumes of printed versions that are, you know, many  31 manuscript sources and many other printed collections  32 of documents.  It's obviously a selecting process has  33 to go on.  34 THE COURT:  Well, I think we now have ourself into a position  35 where I think I have to deal with Mr. Goldie's  36 objection that the sources having been disclosed, the  37 witness' role as a researcher does not permit him to  38 go on and express an opinion on the period under  39 consideration.  Does that fairly state your position,  40 Mr. Goldie?  41 MR. GOLDIE:  Yes, my lord.  It's a matter of argument.  Stagg,  42 Slattery, Jennings all write about this thing.  In my  43 submission, your lordship can weigh what they have to  44 say from the treatises that they have published.  The  45 opinion of Mr. Morrison one step removed from Mr.  46 Stagg or Professor Slattery is of no assistance to  47 your lordship, or should not be, if I may put it that 16150  J. Morrison (for Plaintiffs)  Submission by Counsel  1 way.  It is a question of whether -- I don't propose  2 to cross-examine Professor Slattery at second-hand  3 through Mr. Morrison, because Mr. Morrison expresses a  4 point of view based upon Mr. Slattery.  And by Mr.  5 Slattery I refer to all of the secondary sources that  6 he speaks of.  It's not that those sources can't be  7 referred to, it is simply that it is not a fit subject  8 for sworn evidence.  I'm, of course, directing this  9 argument to the qualifications which, in my  10 submission, Mr. Morrison possesses.  11 THE COURT:  Well, what I'm troubled by, Ms. Mandell, is the test  12 for expert testimony which I deferred to state,  13 amongst others, in the Mazur case.  I don't see these  14 authorities cited in Sengbusch, which I think preceded  15 Mazur, but it doesn't seem to be in this collection  16 that somebody handed me earlier in this trial.  Let me  17 see if -- no, it's not here.  The question that  18 troubles me is the authorities that are cited in  19 Mazur, and no doubt other cases, where it was said  20 that expert testimony would only be received if the  21 court required their assistance to understand the  22 evidence.  I don't understand why I can't find what  23 I'm looking for.  This may not be a complete report.  24 There were a number of authorities, Supreme Court of  25 Canada, now I think I -- Anderson is here which is one  26 of them.  I cited all the authorities in Mazur and --  27 well, you can never find what you're looking for.  My  28 recollection simply is if I can figure out what the  29 evidence means I can't have a witness tell me what it  30 means.  31 Now, if this material is all laid out before me,  32 as the witness has laid it out before me, and if it's  33 all in the learned publications of these other people  34 and it doesn't require scientific training and skill  35 and knowledge why do I need an expert to tell me what  36 the situation was as disclosed by all these documents?  37 MS. MANDELL:  Well, I've got two things, my lord, if this could  38 have -- if this could assist you.  The first is that  39 your lordship is probably aware the volume of material  40 which has been written with respect to this period.  41 Taking one source alone, take Mr. Stagg's work is  42 approximately three or 400 pages of thesis much of  43 which is dedicated to the period before your lordship.  44 Brian Slattery is another large thesis, Jennings there  45 is two volumes, Hurley writes much of this -- much of  46 this pertains to this area, some of it does, some of  47 it doesn't. 16151  J. Morrison (for Plaintiffs)  Submission by Counsel  1 The first point I wanted to say is I doubt very  2 much that your lordship is going, nor should counsel,  3 in our view, ask your lordship to attempt the same  4 volume of reading which would be done by an historian  5 or somebody expert in a particular area to comb  6 through the various sources of historical works  7 assembled with respect to a particular time period.  8 And this, I say, is the value of an historian.  And  9 certainly if my friend wishes to comb through the same  10 sources with the aid of their expert and put to Mr.  11 Morrison countervailing themes which may also appear  12 in this reference material then it's up to him, and he  13 can do that.  But it saves your lordship, I say, an  14 impossible task of doing the same scope of reading as  15 somebody who's involved in the period and will read  16 what is written as and when it is and stays on top of  17 the debate that is pertaining to these years.  18 THE COURT:  Why can't this be done by a summary?  Why is it  19 necessary to relive every moment in history, and why  20 is it necessary to turn over every historical stone.  21 The problem that existed in the 1742 to 1763 period  22 can probably be summarized by a person in a paragraph.  23 Why is it necessary to -- to go as far as you're  24 suggesting, that if you can't give -- can't have this  25 summary to me I've got to read all these documents.  26 Is that -- is that a non sequitur?  27 MS. MANDELL:  Well, I hoped it wasn't.  I was trying to address  28 your lordship's problem of why can't you do it.  2 9    THE COURT:  Why can't you in the material before me and in an  30 argument say the situation in the years 1761 and years  31 prior to Proclamation was simply -- the situation was  32 simply this, that the Indians had been -- had been  33 treated by both sides in the war, and the French and  34 the English, and there the arrangements were made at  35 these conferences which had the knowledge going before  36 him give assurances to Indians, and when the war was  37 over some of the colonies, Virginia and Maryland in  38 particular, were encroaching upon the Ohio Valley and  39 it had to be stopped.  It can be summarized quite  40 succinctly.  I don't have to write a history text to  41 decide the issues in this case, you know.  Does it go  42 beyond what I have said?  I mean, you fill it in, of  43 course.  44 MS. MANDELL:  With respect to the first question I was about to  45 ask I think that there's summary which can be done,  46 but the -- but the position which I think your  47 lordship is close to denying to the court is the 16152  J. Morrison (for Plaintiffs)  Submission by Counsel  1 advantage of having an historian who has dedicated a  2 great deal of life -- of his life to understanding a  3 period and can bring to your lordship his considered  4 view.  He's an ethno historian.  5 THE COURT:  It's my view that has to count, not his.  6 MS. MANDELL:  Well, it's true that your view in the end is what  7 has to count, but in considering the questions before  8 your lordship it's particularly because your lordship  9 will recall that for the first document that you were  10 introduced to, I don't believe that it is the kind of  11 document, as many others aren't, which can be read on  12 its face.  It requires a form of decoding which the  13 witness was capable of taking your lordship into, and  14 I believe that especially with respect to these old  15 documents as we get closer to the modern period this  16 problem is not as prevalent, but there are quite a  17 number of instances where in order to actually read  18 what was going on in that period it requires something  19 other than an untrained person, in this case an  20 Iroquoia, to understand exactly what it is that  21 appears on the face of the document.  And I say it's  22 those two features, one, there's this body of material  23 there that your lordship isn't going to read and an  24 historian does, and secondly, some of that material is  25 readable to somebody uniquely trained to do that which  26 makes valuable the opinion which might be developed  27 from that, and it's for that reason I say that Mr.  28 Morrison should be entitled to form his opinion and  29 your lordship can take of it what you will.  30 THE COURT:  Is there anything that he can say that you can't say  31 in argument?  Surely his evidence is based upon these  32 documents.  Why can't you say to me when the time  33 comes what you want him to say now.  You can read from  34 his -- his summary if you want, but it seems to me we  35 are at risk here of turning a trial into an historical  36 search for perfect exposure of every historical  37 moment, and we don't need that.  38 MS. MANDELL:  Well, I —  39 THE COURT:  All I need to know is what was the factual  40 underpinning of the Proclamation of 1763, if even  41 that's an issue in the case.  42 MS. MANDELL:  Yes, it is.  43 THE COURT:  Mr. Goldie says it isn't and you say it is.  It may?  44 It has to be one or the other.  I think when you're  45 talking about technical matters that judges are not  46 trained to understand there's more scope for an  47 expert, but when you're talking about reconstructing a 16153  J. Morrison (for Plaintiffs)  Submission by Counsel  1 period from documents I'm not sure an historian is any  2 better than a judge is once the historian has laid the  3 documents before a judge, and I have in mind if I let  4 you do it I've got to let him do it, or her.  5 MS. MANDELL:  The only advantage to your ruling here -- I see --  6 see the advantage that it works both ways --  7 THE COURT:  Sure it does.  8 MS. MANDELL:  — But I do want to say that I think that it's  9 dangerous as a general rule to state the proposition  10 as boldly as Mr. Goldie has done, and that is that  11 none of these opinions -- opinions about none of this  12 material is within the scope or for the benefit of the  13 court or within the expertise of the witness.  I think  14 that certainly with respect to what Crown policy was  15 at various points your lordship will not have the body  16 of material which would allow you to assess, in our  17 view, what Crown policy is, and that this policy is  18 going to be an opinion woven together by the volume of  19 material which has been written historically, and how  20 the witness chooses to illustrate it to the best of  21 his ability to your lordship, and I think that  22 certainly certain of the questions may be of a general  23 nature and I can do it in argument and others, in my  24 view, especially issues with respect to Crown policy,  25 are ones which, in our view, we would press strongly  26 that an opinion is required.  27 Now, the question I asked is one where I agree  28 with your lordship if push comes to shove we could put  29 it into -- I think it's been illustrated and I pull  30 back on to it I can go on to the next one, but the  31 next one doesn't involve a question of Crown policy,  32 and it's my view that those kinds of questions are  33 required to have an opinion formed by an historian,  34 and that it's not enough.  We're not trained, in my  35 view, to understand what a policy is.  One woven  36 together by a whole matrix of facts and documents,  37 that they have been applied, and it's not, in our  38 view -- my view, an expedient way to get this  39 information before your lordship to try and create  4 0 that web through a document book.  41 THE COURT:  Well, I must say that I think I already have a very  42 clear picture of what happened in 1742 to 1763.  That  43 may be an unpardonable conceit, but, you know, the  44 picture's pretty clear to me.  I don't think it takes  45 an historian to look at just the samplings I've got  46 unless there's information to the contrary, which in  47 due course Mr. Goldie will show me if it exists, but 16154  J. Morrison (for Plaintiffs)  Submission by Counsel  1 on the basis of the sampling I've received it doesn't  2 take an expert to tell me what was happening in 1763,  3 or up to 1763.  4 I haven't heard from Ms. Koenigsberg.  5 MS. KOENIGSBERG:  Well, your lordship has heard from me on this  6 subject before.  Your lordship was looking for the  7 Mazur case which isn't here, but I do think you do set  8 out the authorities in the Sengbusch case.  9 THE COURT:  Where?  10 MS. KOENIGSBERG:  It's tab 6.  There are not all the authorities  11 here, but I think that the very matter that your  12 lordship is concerned with is covered here.  The --  13 it's covered generally in the Kelliher and Smith  14 citation on page 39 of Sengbusch.  15  16 "To justify the admission of expert  17 testimony two elements must co-exist:  18  19 The subject matter of the enquiry must be  20 such that oridinary people are unlikely to  21 form a correct judgment about it, if  22 unassisted by persons with special  23 knowledge."  24  25 Two, and that's an and:  26  27 "The witness offering expert evidence must  28 have gained his special knowledge by a  29 course of study or previous habit which  30 secures the habitual familiarity with the  31 matter at hand."  32  33 My lord, I think with this witness, and I think  34 perhaps distinct from at least parts of the other  35 expert witnesses who have been proffered to you, and  36 you have heard similar objections from defence counsel  37 with regard to them, but with regard to this witness  38 essentially as I understand it he is being proffered  39 to provide your lordship with an historical context to  40 interpret a document, the Royal Proclamation.  Your  41 lordship, in my submission, is extremely well equipped  42 by your training and your function to interpret that  43 document from the documents which form that matrix of  44 facts, if I can use that quotation.  We are clearly  45 into argument.  There is nothing that precludes my  46 friend, and I venture to say there will be nothing to  47 preclude my friend at the end of this case, to argue 16155  J. Morrison (for Plaintiffs)  Submission by Counsel  Ruling by the Court  1 the evidence of this witness.  It is valuable.  In  2 fact it is perhaps expedient to bring forward a  3 witness like this and present to your lordship a body  4 of documents, the product of an educated search.  But  5 the way in which these documents support the position  6 put forward in my submission is the essence of legal  7 argument.  And it is legal argument, and the function  8 of the judiciary to determine what the Royal  9 Proclamation means and to where and what it applied  10 from the documents.  And, in my submission, it isn't a  11 matter that your lordship requires expert assistance  12 in the interpretation of.  And the two issues slide  13 into one and another, in my submission.  That is that  14 this witness does not have the competence specifically  15 to draw those conclusions, but it is essentially  16 because it is legal argument.  17 Those are all my submissions.  18 THE COURT:  All right.  Thank you.  You wish to make any reply  19 to Ms. Koenigsberg, Ms. Mandell?  2 0 MS. MANDELL:  No.  21 THE COURT:  Mr. Goldie?  22 MR. GOLDIE:  I have nothing further.  23 THE COURT:  Thank you.  Well, I'm persuaded that I should not  24 have the witness summarize his conclusions based upon  25 this documentary material.  I do not base that ruling  26 on any lack of qualifications on the part of the  27 witness.  I don't think you have to have a PhD in  28 history as opposed to years of experience in research  29 to express an historical opinion in proper  30 circumstances, but what I have here is a situation  31 that our American friends have grappled with and have  32 solved the problem for their purposes by the Brandeis  33 brief.  If they have a problem of this kind they pack  34 all the background together and they dignify it by the  35 name of a brief, and it's given to the judge and he  36 can look at it or he can refer to it while counsel  37 make their submissions based upon matters of learning  38 which are not in dispute.  And sometimes it happens  39 that you have two briefs and the matters may still be  40 in dispute and the judge has to do the best he can,  41 but I do not think the judicial process is designed or  42 expected or intended to have collections of material  43 placed before it which are readily understandable  44 after having the assistance of counsel and then to add  45 to that the wrap-up opinion of someone who based upon  46 the same information has the chief -- will give his  47 views on what it all means.  I think the courts have 16156  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  J. Morrison (for Plaintiffs)  Ruling by the Court  In chief by Ms. Mandell  gotten along very well with the underlying facts and  the submissions of counsel, and I think that that's as  far as we need to go.  When counsel come to argue I'm  aware from experiences they often phrase their  arguments in the terms of the expert advice they  receive, and that's a perfectly proper way to put the  argument, but it isn't necessary that that argument be  previously sworn viva voce or otherwise during the  evidentiary part of the trial.  I think that without  purporting to plagiarize the American experience, if  counsel want to give me the Brandeis brief -- I once  referred to it as reading the Brandeis briefly -- I  would be glad to have whatever other historical  material counsel think I should have on which they  want to make their argument.  I think I've almost got  it from the litany of references that I have been  referred to such as Stagg, Slattery, Jennings, Hurley,  et cetera, but I do not endeavor for the reasons I  deferred to state in Sengbusch and Mazur, and Justice  Bruce Macdonald stated in the Emil Anderson case, that  it is necessary or permissible to have these matters  summarized.  I think the role of the experts should be  confined as the English Court of Appeal did in R v.  Turner (1975) Q.B. 834 to matters where the evidence  is of a scientific character which is likely to be  outside the experience and knowledge of a judge or  jury.  They went on to say that if on the proven facts  a judge or a jury can form their own conclusions  without help then the opinion of the expert is  unnecessary.  I think that's the situation.  Thank  you.  MS. MANDELL:  Okay.  Q   If we could then turn to tab 20.  This is a letter  from the Earl of Egremont to Jeffrey Amherst.  Could  you explain at this date who the Earl of Egremont  is -- was?  A   The Earl of Egremont is a privy councillor, the  secretary of state for the Southern Department, and  he's writing to Jeffrey Amherst who's the commander in  chief of His Majesty's forces in North America.  THE COURT:  I'm sorry.  Now, Egremont is?  A   Secretary of state for the Southern Department.  THE COURT:  Southern part of what?  A   Southern Department.  There were two secretaries of  state charged with foreign relations, and the Southern  Department referred originally to the southern part of  Europe really, and/or in the main, but it came to 16157  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  A  MS.  MR.  THE COURT  MS  THE COURT  A  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  include North America, the colonies in North America  as part of its purview, and the Northern Department  dealt with northern countries of Europe.  All right.  Now, the letter is to whom?  It's to Jeffrey Amherst, who's the commander in chief  of the military forces in North America.  MANDELL:  Q   And could you explain the significance of the letter  as you see it with respect to the Royal Proclamation  as it's evolving?  GOLDIE:  Well, I object to any suggestion the Royal  Proclamation is evolving.  That's pure argument, my  lord.  I think in view of my ruling you should ask the  witness, Ms. Mandell, what parts of the letter he  thinks I should pay particular attention to.  MANDELL:  All right.  I'll ask the question as it's just  been asked by you.  And give an explanation of anything that isn't  patent on the face of it.  The first letter refers in part to what follows, which  is a separate letter from the Earl of Egremont to  Thomas Fitch, who's the governor of Virginia, and what  the —  I'm sorry.  Governor Fitch is who?  Thomas Fitch down below.  He's the governor of  Virginia.  And in the second letter, which is dated  the same day, there's reference made to, and it  explains what is set out in the covering letter to  Amherst, explains that some people from Connecticut  have been under pretended purchases from the Indians,  that is making -- have been settling in the  neighbourhood of the Susquehannah and Delaware Rivers,  which settlements -- this is in the letter from  Egremont to Fitch -- which settlements appeared to be  contrary to the Indians, and such settlement threatens  Indian war.  In the covering letter --  What does that last line say in that letter, you  seem sensible --  Sensible that a controversy.  Controversy?  Yes.  Controversy with the --  The last line has been cut off, but I don't propose to  rely on it --  Yes.  -- In any way.  But in that letter from Egremont to  THE  COURT  A  THE COURT  THE  THE  THE  A  COURT  A  COURT  A  COURT  A 1615?  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1  2  3  4  5  6  7  8  9  10  THE  COURT  11  A  12  13  14  THE  COURT  15  A  16  17  THE  COURT  18  A  19  THE  COURT  20  A  21  THE  COURT  22  23  A  24  25  26  27  28  THE  COURT  29  A  30  31  32  33  34  THE  COURT  35  A  36  THE  COURT  37  A  38  THE  COURT  39  A  40  41  42  THE  COURT  43  A  44  45  46  47  Fitch on the second page of it he refers in the  beginning first full paragraph on that second page  that His Majesty has received certain information that  these people are persisting in the project of making  the said settlement, although the Indians appear as  much averse to it as ever, and the King has commanded  Lord Egremont to express to Governor Fitch, "His  surprise at this behavior as well as His Displeasure  to find."  :  Does the letter say where this settlement is?  Yes.  It's on the -- it says in the neighbourhood of  the Susquehannah and Delaware Rivers, in that sort of  triangle of land.  :  Where does it say that?  In the letter of Egremont to Fitch about the fourth --  third and fourth lines down under pretended.  :  Oh, I see.  Making settlements in the neighbourhood.  :  I see.  Yes.  So the river is running inland from --  :  And where is the confluence of the Susquehannah and  Delaware?  They flow up into what's now -- like the big bays on  the east coast of the United States.  There is  Chesapeake Bay and Delaware Bay, and the rivers that  flow out of these bays flow inland into -- well,  Susquehannah flows up into Pennsylvania.  :  Actually, they flow down.  What am I saying?  Flow down.  You can float up the  river and flow down.  The drainage areas of the two  rivers encompassed Virginia, Delaware, Pennsylvania,  Maryland, all the colonies on the eastern seaboard or  that part of the eastern seaboard.  :  There is no confluence of the two rivers then?  I'd have to look at a map to see.  :  They both flow into Atlantic bays, do they?  Yes.  Chesapeake Bay and Delaware Bay respectively.  :  It isn't likely there's a confluence?  Further inland.  I'm not sure where the head waters  are.  They perhaps take their rise in the same place.  I would have to consult a --  :  Thank you.  But on the -- continuing with the letter of Egremont  to Fitch, he's referring to what may flow, the  consequences of such an undertaking, and he's, of  course, alludes to, among other things, the horrors  and calamities of an Indian war.  And then he goes on, 16159  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 and I quote -- this is about half way, two-thirds of  2 the way down in that first full paragraph on the  3 second page.  4  5 "Just at the Time, that His Majesty has  6 actually under consideration such  7 Precautions as may most effectually prevent  8 so great an evil."  9  10 THE COURT:  Yes.  11 A  And then he orders Fitch to:  12  13 "Exert every legal Authority over the People  14 in your Government, and employ your utmost  15 Influence to prevent the Prosecution of any  16 such Settlement."  17  18 THE COURT:  None of this would be east of the Alleganys?  19 A   This is east of the Alleganys.  20 THE COURT:  East of the Alleganys?  21 A   I believe.  And in the first letter from Egremont to  22 Amherst, two-thirds of the way down, Amherst as  23 Commander in Chief, the statement begins:  24  25 "The King trusts, that you will, at least,  26 be able to prevail with the People concerned  27 in this pretended Purchase, to suspend, for  28 the present. . . "  29  30 This particular settlement until the King has been  31 informed about what's going on.  And then it  32 continues.  In order that His Majesty can form an  33 opinion as to:  34  35 "What farther Orders it may be expedient to  36 prevent effectually any Hazard of an Indian  37 War."  38  39 And it continues:  40  41 "His Majesty having it much at heart to  42 conciliate the Affection of the Indian  43 Nations, by every Act of strict Justice, and  44 by affording them His Royal Protection from  45 any encroachment on the Lands they have  46 reserved to themselves, for their hunting  47 Grounds, and for their own Support and 16160  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 Habitation..."  2  3 And here, again, he informs Amherst that a plan  4 for this is desirable and is actually under  5 consideration.  6 THE COURT:  All right.  1026-20.  7 THE REGISTRAR:  Yes, my lord.  8  9 (EXHIBIT 1026-20:  January 27, 1763 Letter to J.  10 Amherst from Earl of Egremont)  11  12 MS. MANDELL:  13 Q   All right.  If I could ask you to turn to the next  14 tab.  This is a document which has been entitled  15 "Hints".  I'm wondering if you could advise what the  16 view is of who prepared this document and for viewing  17 by whom?  18 A   In the previous document there was reference to a plan  19 of some sort being under consideration, and the -- of  20 this next document the one entitled "Hints relative to  21 the Division and Government of the conquered and newly  22 acquired Countries in America", it's generally  23 accepted that the author of this document was Henry  24 Ellis who was at that time, this was early 1763, the  25 governor designate.  He hasn't gone out yet to take up  26 the office of Nova Scotia, and had been, or was a  27 previous governor of the Colony of Georgia in the  28 south.  And in this document, as the title is quite  29 self-explanatory, he is suggesting what should be done  30 with the conquered and newly acquired countries of  31 America.  And the first suggestion he makes because --  32 this is in the first full paragraph -- of the hints,  33 the country called Canada is of such vast extent, and  34 he's suggesting dividing it into two Provinces, and he  35 makes a number of other suggestions for dealing with  36 the French inhabitants and for the Government of those  37 parts of what had been French territory.  And then on  38 page 371, the last full paragraph on the page  39 beginning:  40  41 "It might also be necessary to fix upon some  42 Line for a Western Boundary to our ancient  43 provinces, beyond which our People should  44 not at present be permitted to settle."  45  46 And he goes on to suggest that instead that they  47 would emigrate to Nova Scotia, which is soon to become 16161  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 Ellis' area of jurisdiction, or to the provinces on  2 the southern frontier, namely Georgia, for example,  3 and the colonies in the south.  And he alludes here to  4 an ongoing debate in British colonial policy, and that  5 was what the role of colonies was to be in the  6 imperial order.  That is one scheme of thought held,  7 that the colonies should be confined to the coasts,  8 because if they planted themselves, as Ellis states  9 here, in the heart of America out of the great  10 difficulty of procuring European commodities they  11 would be compelled to commence manufacturers, and the  12 one view of the economy of the -- of the imperial  13 order that colonists existed to consume European  14 manufacturers and they didn't want them setting up on  15 their own.  16 MR. GOLDIE:  I wonder if the witness can tell us the date of  17 this, my lord.  18 A   It's early 1763.  I don't believe that it has been  19 officially dated, partly because the authorship has  20 been, you know, determined by a number of historians  21 looking into the circumstances of the production of  22 the document.  The first couple of months of 1763 I  23 believe is the generally accepted time in which it was  24 produced.  25 THE COURT:  1026-21.  26 MS. MANDELL:  My lord, there's another passage.  27 A   One more line I meant to refer to.  That's at the very  28 bottom of page 371 just after that reference to  29 mercantilism as an economic thought.  30  31 "All the country to the Westward of this  32 Boundary may be put..."  33  34 And the missing words are:  35  36 "Under the immediate Protection and Care of  37 the Officers commanding at the distant  38 posts."  39  40 And that goes onto page 372.  And he goes on to  41 say that as many of the King's subjects will  42 necessarily have occasion to go beyond this line for  43 trade and other purposes, and he suggests that in  44 cases of disputes among themselves or with the Indians  45 that such differences be cognizable by law in the  46 neighbouring provinces.  47 MS. MANDELL:  Okay. 16162  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 THE COURT:  All right.  2 MS. MANDELL:  If that could be marked then.  3 THE COURT:  Yes.  Thank you.  4 THE REGISTRAR:  1026-21.  5  6 (EXHIBIT 1026-21:  "Hints Relevant to Division and  7 Government")  8  9    THE COURT:  All right.  10    THE REGISTRAR:  Order in court.  Court will recess.  11  12 (PROCEEDINGS ADJOURNED)  13  14 I hereby certify the foregoing to be  15 a true and accurate transcript of the  16 proceedings herein to the best of my  17 skill and ability.  18  19  2 0    21 Peri McHale, Official Reporter  22 UNITED REPORTING SERVICE LTD.  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 16163  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 (PROCEEDINGS RESUMED AT 11:33 a.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Miss Mandell.  5  6 EXAMINATION IN CHIEF BY MS. MANDELL:   (Continued)  7 Q   Thank you.  If we could turn to tab 22, please.  Could  8 you explain to the court the context of the document  9 which is contained here in tab 22?  10 A   This is a submission from Egremont, the Secretary of  11 State, to the Lords of Trade, to the Board of Trade,  12 and it is dated May 5 of 1763, and it refers to -- in  13 the very opening line that the Treaty of Peace has  14 been with France and Spain, has been brought to a  15 happy conclusion and that it goes on to recommend  16 fixing his Majesty's attention on what is to follow  17 from the peace.  And on page 94, the second page of  18 the document, after the second very brief paragraph:  19  20 "By what Regulations, the most extensive Commercial  21 Advantages may be derived from those Cessions..."  22  23 which are the cessions made by France and Spain, New  24 France, proportion of Louisiana, east of the  25 Mississippi and Spanish Florida now falling under  26 British dominion.  And then further down, the  27 questions relating to North America in general to be  28 considered are, which new governments, what military  29 establishment and towards the very bottom of the page  30 with regards to the Security of North America, the  31 first is -- and this is in the end of the second line:  32  33 "The first is, the Security of the whole..."  34  35 that is of North America:  36  37 "...against any European Power.  The next is the  38 Preservation of the internal Peace and Tranquility  39 of the Country against any Indian Disturbances.  40 Of those Two Objects, the latter appears to call  41 more immediately for such Regulations and  42 Precautions as Your Lordships shall think proper  43 to suggest."  44  45 And then Egremont goes on to suggest that:  46  47 "It may become necessary to erect some forts in the 16164  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 Indian Country, with their Consent, yet his  2 Majesty's Justice and Moderation inclines Him to  3 adopt the more eligible Method of conciliating the  4 Minds of the Indians by the Mildness of His  5 Government."  6  7 And then the top of page 95:  8  9 "...by protecting their Persons and Property and  10 securing to them all the Possessions, Rights and  11 Privileges they have hitherto enjoyed and are  12 entitled to, most cautiously, guarding against any  13 Invasion or Occupation of their Hunting Lands, the  14 Possession of which is to be acquired by fair  15 Purchase only."  16  17 And he always -- he goes on to allude to King's  18 Commands in this regard which have already been sent  19 to, in particular, the royal provinces of Virginia,  20 two Carolinas and Georgia, and then Fisheries by  21 making certain recommendations for particularly the  22 fishery in Newfoundland and for the organization of  23 Florida.  24 MS. MANDELL:  Could that then be marked as the next exhibit?  25 THE COURT:  Yes, 1026-22.  26 THE REGISTRAR:  Yes, my lord.  27  28 (EXHIBIT 1026-22 - MAY 5, 1763 LETTER TO LORDS OF  2 9 TRADE FROM EGREMONT)  30  31 MR. GOLDIE:  My lord, it is probably not necessary but just so  32 that it's in the record at this point, having regard  33 to some of the marginal notes, I think the source of  34 this document ought to be given so that there is no  35 misunderstanding about the relationship or the  36 marginal notes to the text that is being there.  37 THE WITNESS:  This document is taken from constitutional  38 documents respecting the history of Canada.  I forget  39 the exact word for word title but edited by Messrs.  40 Shortt and Doughty, and the footnoting at the bottom  41 of the pages are by Shortt and Doughty and the  42 marginal notes, some appear to be taken from the  43 original but the source of comments, for example, that  44 certain documents are missing, are those of the  45 editors, of course.  4 6 MS. MANDELL:  47 Q   All right, thank you.  Could you then turn to tab 23. 16165  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 This is a document which is marked Appendix, and I  2 wonder whether you could explain the general opinion  3 as to what this document is, its source, and who wrote  4 it?  5 A   The -- and part of it is explained in the footnote  6 number 2 at the bottom of the first page, but this is  7 what is sometimes known as Mr. Pownall's sketch of a  8 report or simply the sketch, and it was found --  9 THE COURT:  P-o-w-n-e-1-1?  10 THE WITNESS:  Yes, P-o-w-n-a-1-1.  And that's a reference to  11 John Pownall, who was the secretary to the Board of  12 Trade, and I suppose an analogous position in modern  13 parlance would be like Deputy Minister.  He was the  14 secretary to the Board and sort of chief bureaucrat I  15 guess you would say connected with the Board, and his  16 brother Thomas Pownall had been Governor of  17 Massachusetts.  John Pownall was considered to be very  18 familiar with North American matters.  And this  19 particular manuscript had been found among the  20 Shelburne papers and it's a draft which is couched in  21 the words by their constant references to "we" as if  22 it were to be presented by the Board of Trade.  It was  23 never so presented but it represents what appear to be  24 Mr. Pownall's suggestions for what to do with the  25 recent cessions.  And he includes the discussion of  26 those cessions in Africa as well as in America.  And  27 on page 259, the second page of Pownall's sketch, he,  28 in the first full paragraph beginning:  29  30 "The first consideration necessary to be attended  31 to..."  32  33 and this is regarding what to do with the new  34 acquisitions:  35  36 "...is, the true interest and policy of this  37 kingdom, in reference to its colonies, either as  38 that interest and policy arises from their nature  39 and situation in general, or relatively to our  40 commerce and political connections with the  41 various nations and tribes of Indians now under  42 your Majesty's dominion and protection."  43  44 And this is a reference to both formerly hostile  45 Indians who had been in alliance with France or those  46 who inhabited territories which the French and the  47 Spanish had ceded to Britain by the treaty. 16166  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1  2 "Both which cases do, in the present object, by  3 a happy coincidence of circumstances meet together  4 in the same point, and form an exact union of  5 system.  For as in the one case the permitting the  6 colonies, for the present at least, to extend  7 their settlements beyond the heads and sources of  8 those rivers and waters which do directly  9 discharge themselves into the Atlantic Ocean or  10 Gulf of Mexico."  11  12 And then goes on to make this standard mercantilist  13 argument about this would involve these remote  14 settlements of engaging in the production and  15 manufacture which they shouldn't, which should be  16 manufactured in the mother country.  And then, as  17 well:  18  19 "Such settlements would not be made or colonizing  20 allowed without a manifest breach of our general  21 engagements with the Indians which would naturally  22 excite in them jealousy and disgust which might  23 prove a fatal consequence."  24  25 And then he goes on that he doesn't want to continue,  26 you know, elaborating the various principles upon  27 which this policy is founded but then he alludes to,  28 it has been -- this is in the fourth line down:  29  30 "It has been fully proved in the case of the  31 Indians by the many opinions which have been  32 reported to your Majesty and your royal  33 predecessor by this board; by the orders given in  34 consequence of such reports; by the effect of  35 those orders; by the stipulations of various  36 treaties held at Easton and Lancaster in the years  37 1756 and 1760, and at the Detroit in 1762."  38  39 And the last is a reference to Sir William Johnson's  40 various councils with the Indians of really the lower  41 Great Lakes at Detroit.  42  43 "And lastly by the representation, made by Sir  44 William Johnson, of what passed at these meetings,  45 and of the present temper and disposition of the  46 Indians in general, which reports treaties and  47 representations have already been laid before your 16167  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 Majesty."  2  3 And summarizing these various -- as the imperial  4 government had taken over more direct control of  5 Indian affairs in North America.  And at the very  6 bottom of the page, the declaring it to be in actual  7 fact Pownall's opinion, what to do about the old  8 colonies:  9  10 "In so far as that consideration applies itself to  11 extension of settlements and Indian interests, the  12 limits of their settlements and jurisdictions  13 should not, for the present, extend beyond the  14 sources of those rivers and waters which  15 discharge..."  16  17 This is at the top of 260:  18  19 "...discharge themselves directly into the Atlantic  20 Ocean on the one side, and the Gulf of Mexico on  21 the other; and that all the country lying between  22 the ridge of the Apalachian mountains and the  23 river Mississippi as low down to the Gulf of  24 Mexico as the settlements and claims of the  25 Indians extend, as also all the country lying  26 around the Great Lakes as far as the heads of  27 every river or water that falls into them, should  28 be considered as lands belonging to the Indians,  29 the dominion of which to be protected for them by  30 forts and military establishments in proper  31 places, and with full liberty to all your  32 Majesty's subjects in general to trade with the  33 said Indians upon some general plan and under  34 proper regulation and restrictions."  35  36 And he is here linking this proposed Indian country  37 with the provision for trade with those very same  38 Indians under, of course, proper regulation.  And his  39 reference to the -- ascribing the river Mississippi in  40 respect a western boundary by the Treaty of Peace, the  41 Mississippi River had become the international  42 boundary between British possessions and what had been  43 French Louisiana but was now Spanish Louisiana.  44 France had secretly ceded to Spain in the course of  45 negotiations.  46 MR. GOLDIE:  Well, excuse me, my lord, the witness says in the  47 course of negotiations.  I think he should acknowledge 1616?  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 that that was not known to the negotiators at the  2 time.  3 MS. MANDELL:  Well, I will lead the witness with respect to the  4 area between the capitulation Montreal and the Treaty  5 of Paris if I choose, my lord.  6 THE COURT:  I am sorry, if you choose?  7 MS. MANDELL:  Yes.  If it is going to be an area for evidence,  8 then we will direct it as we do.  9 MR. GOLDIE:  You say it will be an area of evidence?  10 MS. MANDELL:  I say if it is.  11 MR. GOLDIE:  I assumed it was not and that's why I thought the  12 witness would be glad to acknowledge the point as we  13 went along but if -- I will leave it as it is.  14 THE COURT:  I have just had two trains go by me in difference  15 directions and I am not sure what it was all about.  16 MS. MANDELL:  I thought Mr. Goldie was asking the witness to  17 comment upon an area of history that I haven't led him  18 into at this point and, if I do, I say that we should  19 do it according to how we choose to do it and not here  20 and according to questions which I may or may not  21 direct.  22 MR. GOLDIE:  I quite agree with that.  I did not understand.  I  23 thought the witness made an observation in passing  24 about the Treaty of Paris.  25 THE COURT:  He said that Mississippi was the international  26 boundary by the Treaty of Paris.  27 MR. GOLDIE:  That's right.  And then the witness went on to say  28 that France had secretly ceded the Louisiana -- what  29 was then Louisiana to Spain.  That fact was not known  30 so far as I am instructed at the time the Treaty of  31 Paris was signed.  It took place as I understand it  32 during the negotiations as the witness stated but it  33 was not known to the British at that time.  34 THE WITNESS:  Oh, I quite agree.  It wasn't—  35 MR. GOLDIE:  That's all that I wanted clarified.  Thank you.  3 6 THE COURT:  Thank you.  37 THE WITNESS:  So after making this suggestion again on page 260,  38 the author Mr. Pownall refers to although this is a  39 general rule about setting up this in effect boundary  40 line between Indian country and the areas zoned for  41 settlement that there are particular exceptions and,  42 in the next paragraph, he mentions a number of them,  43 that, for example, the -- some of the southern tribes,  44 the Creeks and Cherokees, among them have claims on  45 this side, ie, the Atlantic side of the mountains:  46  47 "And the Six Nations also upon the Susquehanna 16169  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  which it would be unjust to violate, so on the  other hand some settlements have actually been  made under the Government of Virginia; beyond the  great mountains in the forks of the Ohio."  And this is of course referring to the Ohio company  settlements in the Ohio Valley.  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  "...which do not yet interfere with any claims of  the Indians and which it would be equally unjust  and impolitic to break up and destroy."  And then he says that these are, he believes, the only  cases so far as an exception to the general rule.  And then he goes on to talk about the claims and  pretensions of Nova Scotia, New York, and New England  colonies to what will become the boundaries of Canada.  And the -- goes on with a lengthy discussion of what  the boundaries of Canada should be, and then continues  with Florida and what should be done with the  Floridas, and on page 263 in the second full paragraph  beginning:  "We have now laid before your Majesty..."  And it refers to again the topic of discussion in this  paper, and then:  "...and humbly beg leave to refer your Majesty to  the annexed chart of North America on which we  have marked the limits..."  THE COURT:  I am sorry, where is this?  THE WITNESS:  This is in the second full paragraph on page 263,  paragraph beginning --  THE COURT:  Thank you.  THE WITNESS:  And he is referring to annexed chart of North  America:  "... on which we have marked the limits of the new  colonies and what we propose should remain as  Indian lands agreeable to the verbal description  of them in our report, so that by comparing one  with the other, your Majesty will be enabled..."  to deduce from these various propisitions.  The -- so  far as anyone has been able to determine, there was no 16170  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 annexed chart with the document in the Shelburne  2 papers and no one is exactly sure what map was  3 referred to by Mr. Pownall in connection with this  4 report at least.  But it appears that he either  5 prepared one or was about to prepare one.  6 THE COURT:  Thank you.  7 MS. MANDELL:  Thank you.  Could that be marked then as the next  8 exhibit?  9 THE COURT:  Yes, 1026-23.  10    THE REGISTRAR:  Thank you.  11  12 (EXHIBIT 1026-23- "APPENDIX" FROM SHELBURNE PAPERS)  13  14 MS. MANDELL:  15 Q   If you could turn to the next tab, could you advise  16 the court with respect to this document, its  17 background, and what it is?  18 A   This is the actual -- actual enclosure from the Lords  19 of Trade to the Secretary of State, Lord Egremont.  20 The preceding document, although drafted in such a  21 form, appeared to have been authored by the secretary  22 of the board, this is the one that was -- or a report  23 in response to Egremont's May 5th letter which was  24 filed with Egremont and dealing with the various  25 topics of what to do with the newly acquired  26 territories, and after setting out a number of items  27 including again items as various as fisheries in  28 Newfoundland and the boundaries of Nova Scotia.  At  29 the very bottom of page the 99, the very, very bottom:  30  31 "The next obvious Benefit acquired by the Cessions  32 made to your Majesty is the Fur and Skin Trade of  33 all the Indians in North America.  The first of  34 these Articles before the present Cession was  35 enjoyed by the French almost entirely.  The only  36 part left in the hands of your Majesty's Subjects,  37 being that carried on by the Exclusive Company of  38 Hudson's Bay and a very inconsiderable Quantity  39 through the Province of New York."  40  41 And he alludes or the board alludes here to the French  42 having taken possession contrary to the Treaty of  43 Utrecht which was in 1713, of all the lakes in North  44 America, communicating with the River Saint Lawrence  45 and the board refers to the various territorial claims  46 of the Six Nations of Indians acknowledged by the  47 French to be your Majesty's subjects in that treaty. 16171  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 And then a little further on after referring to  2 navigation in those lakes:  3  4 "But this Trade which the French with the utmost  5 Industry had carried to the greatest Extent, by  6 means of numerous well chosen Posts and Forts  7 sufficient, as well to overawe as to supply all  8 the Indians upon that immense Continent, is now  9 fallen entirely and exclusively into the Hands of  10 your Majesty's Subjects and may be secured and  11 communicated to all your Majesty's Colonies  12 according to the Industry of each, by means of  13 those Posts and Forts with proper Regulations for  14 the Trade with the Indians, under the Protection  15 of such a Military Force as may preserve their  16 Tranquility, not only against Indian Incursions  17 but be ready for their Defence against any  18 European Attack."  19  20 And then the next paragraph, it refers to:  21  22 "Another obvious Advantage of the Cession, will be  23 the supplying of all the Indian Tribes upon the  24 Continent of North America with European  25 Commodities immediately through the Hands of  26 English Traders."  27  28 And this is alluding of course to the Indian status as  29 consumers.  Just like the colonists themselves, the  30 Indians were consumers of European manufacturers.  And  31 then the next paragraph down:  32  33 "Another Advantage attending the late Treaty is the  34 secure settling of the whole Coast of North  35 America, as its produce may invite, or Convenience  36 for Settlement may offer, from the Mouth of the  37 Mississippi to the Boundaries of the Hudson's Bay  38 Settlements, with the whole Variety of Produce  39 which is capable of being raised in that immense  40 Tract of Sea Coast, either by the Industry of  41 Emigrants from Europe, or from the Overflowing of  42 your Majesty's ancient Colonies."  43  44 And on page 101 again after outlining more provisions  45 with respect to trade and fisheries of the -- begin  46 the discussion at the bottom of 101 of the  47 establishment of regular governments in the ceded 16172  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 territories, and the securing the old inhabitants, ie,  2 former French and Spanish inhabitants and the  3 enjoyment of the rights and privileges reserved to  4 them by the Treaty.  And on page 102, about a third of  5 the way down, after recommending that -- or referring  6 to Senegal in Africa:  7  8 "And such we apprehend will be the Case of that  9 territory in North America which in your Majesty's  10 Justice and Humanity as well as sound Policy is  11 proposed to be left under your Majesty's immediate  12 Protection, to the Indian tribes for their hunting  13 Grounds; where no Settlement by planting is  14 intend, immediately at least, to be attempted; and  15 consequently where no particular form of Civil  16 Government can be established.  In such Territory  17 we should propose, that a free Trade with the  18 Indian Tribes should be granted to all your  19 Majesty's Colonies and Subjects under such  20 Regulations as shall be judged most proper for  21 that End, and under the protection of such  22 Military Force, to be kept up in the different  23 Posts and Forts in the Indian Country as may be  24 judged necessary, as well for the Protection of  25 Trade and the good Treatment of the Indians as the  26 Maintenance of your Majesty's Sovereignty and the  27 general defence of North America."  28  29 And like the earlier documents it's linking this  30 Indian hunting territory, Indian country, with the  31 proposal for a free trade.  And then the next  32 paragraph, the further details will await reports from  33 the commander in chief and the Indian agents in  34 America.  They continue, though, about half-way down  35 that paragraph there is no particular inconvenience in  36 delaying:  37  38 "...since, if your Majesty shall be pleased to  39 adopt the general proposition of leaving a large  40 Tract of Country around the Great Lakes as an  41 Indian Country, open to Trade, but not to Grants  42 and Settlements, the Limits of such Territory will  43 be sufficiently ascertained by the Bounds to be  44 given to the Governors of Canada and Florida on  45 the North and South, and the Mississippi on the  46 West."  47 16173  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 And he is referring or they are referring here to the  2 Mississippi of course and to the eastern limits of  3 this Indian territory being bounded by the proposed  4 new boundaries of Quebec -- of Canada and the  5 Floridas.  And by the -- it continues:  6  7 "And by the strict Directions to be given to your  8 Majesty's several Governors of Your ancient  9 Colonies for preventing their making any  10 new Grants of Lands beyond certain fixed Limits to  11 be laid down in the Instructions for that  12 purpose."  13  14 And the stage they are still proposing implementing a  15 number of these measures by way of instructions to the  16 governors.  And in the last paragraph on page 102,  17 with regard to this important point of the Indian  18 country they suggest that immediate orders be sent to  19 the commander in chief and the agents for Indian  20 Affairs who of course report to the commander in chief  21 for various information.  And on page 103:  22  23 "Canada as possessed and claimed by the French  24 consisted an of immense Tract of Country including  25 as well the whole Lands to the westward  26 indefinitely which was the Subject of their Indian  27 Trade."  28  29 And this is a reference to the French trade out into  30 what's now the Prairie provinces of Canada which have  31 been carried on before the conquest and, depending on  32 which historians or documents one consults, may have  33 extended as far as the foothills of the Rocky  34 Mountains.  35  36 "...as all that Country from the Southern Bank of  37 the River Saint Lawrence where they carried on  38 their Encroachments."  39  4 0 And then they continue:  41  42 "It is needless to state with any degree of  43 precision the Bounds and Limits of this extensive  44 Country, for We should humbly propose to Your  45 Majesty that the new Government of Canada should  46 be restricted, so as to leave on the one hand, all  47 the Lands lying about the great Lakes and beyond 16174  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 the Sources of the Rivers which fall into the  2 River Saint Lawrence from the North, to be thrown  3 into the Indian Country."  4  5 And on the other hand they are referring to the areas  6 bordering on New England.  And they then propose  7 certain boundaries, quite limited boundaries, for  8 Canada, extending among other places to Lake Nipissin  9 on the Ottawa River, and then the next paragraph down,  10 they state:  11  12 "In order however that Your Majesty may judge with  13 the greater precision of the Limits of Canada as  14 above described and also of those We shall propose  15 for Florida, and of the Country we think right to  16 be left as Indian Territory, we humbly beg leave  17 to refer to the annexed Chart in which those  18 limits are particularly delineated, and of which  19 Your Majesty will have a clearer Conception than  20 can be conveyed by descriptive words alone."  21  22 And as the footnote notes, the report had been  23 accompanied by a printed map of North America by  24 Emanuel Bowen, and certainly Mr. Brian Slattery and  25 Dr. Jack Stagg in their works on this period agree  26 that a particular Bowen map was the so-called annexed  27 chart found in the colonial office records in London.  28 Q   If I could ask you to turn to the map that's been  29 placed here, can you identify the map that's on the  30 board?  31 A   The —  32 MR. GOLDIE:  Excuse me, what is this map?  33 THE WITNESS:  The Bowen map.  34 MR. GOLDIE:  I know what it says but where did this document  35 come from?  36 THE WITNESS:  This is a copy of the map that is in the colonial  37 office records in London.  38 MR. GOLDIE:  Well, it's coloured, isn't it?  39 THE WITNESS:  It is — well, this is a black and white version  40 of the -- this is not a colour reproduction of the  41 original map.  42 MR. GOLDIE:  And it is not that scale, is it?  43 THE WITNESS:  I believe it is or close to it, yes.  44 MR. GOLDIE:  I am sorry, my lord, I want to understand --  45 THE WITNESS:  But —  46 MR. GOLDIE:  -- what this document is because my instructions  47 are -- is that it is a coloured map. 16175  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 THE WITNESS:  Yes, this is a black and white reproduction of a  2 coloured map.  3 MS. MANDELL:  4 Q   A colour-coded map?  5 A   Yes, and --  6 MR. GOLDIE:  I take it, if I may just finish —  7 THE WITNSSS:  Sure.  8 MR. GOLDIE:  -- the witness did not obtain this from the  9 colonial office?  10 THE WITNESS:  No, no.  I have not been to the colonial office  11 directly.  I have consulted records on microfilm in  12 Ottawa, but both Professor Slattery and Dr. Stagg  13 consulted those records and, you know, determined the  14 origin of that particular map.  15 MR. GOLDIE:  Well, I take it then that the witness' belief and  16 understanding --  17 THE WITNESS:  It is my belief that this is the map.  It is  18 entitled An Accurate Map of North America describing  19 and distinguishing the British, Spanish and French  20 Dominions on this Great Continent according to the  21 definitive treaty concluded at the Paris, 10 February,  22 1763, and it is ascribed to Emanuel Bowen, geographer  23 to His Majesty.  24 MS. MANDELL:  25 Q   All right.  26 A  And on the map as well, although it is not as well  27 picked up by the black and white reproduction, there  28 are some heavy lines which correspond to colouring as  29 I understand it on the original map.  30 Q   All right.  Could you first identify the place where  31 the map would indicate that the colonies would end?  32 A   The map has a line and it is again difficult to  33 distinguish exactly but you can see that it runs  34 from -- they have marked out what is proposed to be  35 and what ended up being the colony of East Florida,  36 basically the panhandle, and then they have also  37 marked out what ended up being the colony of West  38 Florida, the Gulf Coast of what's now Florida and  39 Alabama over to the mouth of the Mississippi with a  40 line several miles inland extending across to the  41 Mississippi, and then they have also drawn a line  42 following the various ridges of mountains up the east  43 coast up through the country of the Six Nations  44 Indians.  You note that they have Tuscaroraes on the  45 one side and United marked on the other.  And then  46 they have marked the proposed boundaries for the  47 colony of Canada extending up the Ottawa River 16176  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 stopping at Lake Nipissin and then continuing up into  2 the north shore of the Saint Lawrence and also taking  3 in the Gas Bay Peninsula, and these corresponded more  4 or less to the boundaries or boundary of Quebec as set  5 out in the Royal Proclamation later that year.  6 Q   Is there a western boundary indicated?  7 A   The -- not as such, but the reference in the document  8 to the Mississippi River which runs -- which in its  9 lower stretches runs north-south and it sort of curves  10 upwards, and they have got -- on the map Mr. Bowen has  11 marked what appears to be Lake of the Woods which is  12 now in the northwest of Ontario and its connections by  13 water going back down to Lake Superior, and on the map  14 as well is marked the southern boundary of Hudson's  15 Bay Company territories settled by commissaries after  16 the Treaty of Utrecht which is a bit of a misnomer  17 historically because, although there were discussions  18 among the commissaries that boundaries between France  19 and England, the boundaries were never settled as such  20 and the both sides, both the French and English,  21 continue to proffer certain claims where the  22 boundaries of the charter company, the Hudson's Bay  23 Company, descended.  24 Q   Is there a northwest boundary indicated?  25 A  Well, on this map and on -- I should say on a number  26 of other contemporary maps, and certainly ones after  27 the proclamation of 1763, the reference was made in a  28 report to the French trade extending indefinitely  29 westward and there are contemporary historical maps  30 showing certain vague ideas of the geography of the  31 internal parts of the continent but this map sort of  32 cuts off at the reference.  In the top left-hand  33 corner there is a sort of map of Hudson Bay itself, a  34 smaller map, and then up at the top it says "parts  35 unknown" under the -- above the southern boundary of  36 Hudson's Bay Company.  So on this map --  37 THE COURT:  Above —  38 THE WITNESS:  Yes, above the southern boundary.  Now, this —  39 the other insert map refers only to the immediate  40 environs of Hudson Bay, particular map of that and the  41 Hudson's Bay, so it is including a part which is  42 above -- would be above the top part of the map.  43 THE COURT:  What does that say?  44 THE WITNESS:  This is —  45 THE COURT:  The insert?  46 THE WITNESS:  It says the lake is from 20 to 60 fathoms deep,  47 and is up off Baffin Bay and way up by the Arctic 16177  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 Circle or the --  2 THE COURT:  Lac De —  3 THE WITNESS:  Fonte.  4 THE COURT:  F-o-n-t-e?  5 THE WITNESS:  And this is a reference to the alleged discoveries  6 made by the admiral DeFonte and who apparently -- or  7 at least according to one theory had also discovered  8 the northwest passage between the Arctic and the  9 Pacific Coast and his alleged discoveries which of  10 course turned out to be geographically untrue are  11 shown on a number of contemporary maps as well.  12 THE COURT:  Not meant to be Lake Athabaska or anything like  13 that?  14 THE WITNESS:  Well, have to consult it.  15 THE COURT:  All right.  16 THE WITNESS:  I should say as a final remark on the map that on  17 the Bowen map, the one comment is written in at the  18 head of the Mississippi River because at that time  19 they -- no one particularly knew where the Mississippi  20 River had its source and it says that the Mississippi  21 River, its head very uncertain, situated according to  22 the Indians in a very marshy country about the 50th  23 degree of latitude which would be above where the sort  24 of source of the Mississippi is marked on the map so  25 there is actually a marginalia written in suggesting  26 that it took its source about the 50th degree of  27 latitude.  28 MS. MANDELL:  All right.  My lord, I propose that the letter of  29 June 8 be marked as the next exhibit and that the  30 Bowen map be marked as the exhibit which I have it  31 identified to be marked in our tab 27, and so perhaps  32 out of maintaining the order of things, if it could be  33 given the number exhibit -27, it will keep the  34 sequence of the exhibits.  35 MR. GOLDIE:  My lord, the index to my friend's volume states  36 date 8 June 1763.  I wonder if the witness could  37 identify -- find for us that date on the exhibit.  38 MS. MANDELL:  39 Q   Well, I might -- if he does, it's it would be sheer  40 luck.  It was our office that added the date and I did  41 it only because it was attached to the June 8th  42 letter, so perhaps it could be amended.  I don't know  43 if there is a June 8 date on it.  44 A   I don't believe there is a June 8th date on it.  45 MR. GOLDIE:  No, I was going to say I'd be surprised but I  46 prepared to be surprised, so I think it ought to be  47 marked said to be the map that accompanied the letter 1617?  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 of June 8th.  2 THE COURT:  All right.  3 MR. GOLDIE:  And by said to be, I am referring to the witness'  4 evidence.  5 THE COURT:  Yes, all right.  The map then can be Exhibit  6 1026-27.  7 THE REGISTRAR:  Yes.  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  (EXHIBIT 1026-24  (EXHIBIT 1026-27  ENCLOSURE TO EGREMONT FROM LORDS OF  TRADE DATED JUNE 8, 17 63)  MAP ACCOMPANIES JUNE  BOWEN'S N. AMERICA)  LETTER  MS. MANDELL:  Q   If we could turn to tab 25.  This is a letter from Sir  William Johnson to Lords of Trade on July 1, 1763.  Would you explain the background in the points in this  letter which you started to your lordship?  A   This is the -- Johnson is communicating to the Lords  of Trade really the first concrete reports of troubles  in the Interior which came to be known as the Pontiac  Rebellion, and he refers in his first paragraph to,  "as acts of hostility", this is the fourth line down:  "...have actually been commenced by the Ottawa  Indians inhabiting the environs of Lake Erie with  which you will doubtless be acquainted before the  Receipt hereof."  He goes on to mention why in his view he thinks the  Indians are upset.  The next paragraph, he refers to  the insinuations of French missionaries and others who  had persuaded them, that is the Indians, that we  propose their entire Extirpation, to which they in a  great measure give credit from our occupying some old  posts, that is old French posts, and erecting new ones  throughout their country, the necessity of which they  could not discover since the reduction of Canada  unless they were to promote the design which they  suspected was in agitation.  Of course at about this  time the Indians in actual fact had captured most of  those interior posts, although it would appear that  the Lords of Trade and the imperial authorities were  not yet aware of it.  MR. GOLDIE:  My lord, I take exception to that.  The document  itself says, "acts of hostility with which you will 16179  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 doubtless be acquainted".  Unless the witness is going  2 to direct us to some other source, I don't think it is  3 competent for him to offer that speculation.  4 THE COURT:  It says, "which you will be acquainted before the  5 receipt hereof."  6 MR. GOLDIE:  Yes.  7 MS. MANDELL:  8 Q   That's right.  9 A   It would appear and, again, here I would -- Dr. Stagg  10 in his book on -- or his thesis on the topic refers in  11 some detail to when it was that the imperial officials  12 began to be made aware of the capture of the interior  13 posts and at least according to Dr. Stagg it was not  14 until August that they were fully apprised that some  15 of these posts had actually been captured by the  16 Indians here.  Certainly they were aware that  17 hostilities had started.  And the -- Johnson refers to  18 measures that he had taken to try to disabuse the  19 Indians of these notions when he met with them at  20 Detroit on Lake Erie and he, on the next page, page  21 526, the -- he refers to the attempts made by the  22 Misisagas and Chipewaghs have lately attempted to  23 surprise Detroit and how blockade the same.  And they  24 have likely likewise totally defeated the detachment  25 of a hundred men were on their way from Niagara for  26 that place and Sandousky on Lake Erie which is  27 southeast of Detroit, it is on the south -- it is a  28 peninsula sticking up on the south side of Lake Erie,  29 has likewise been taken and destroyed.  And then he  30 refers to some Delawares on Ohio have infested the  31 communication Fort Pitt, now Pittsburgh, Pennsylvania,  32 destroyed several settlements, murdered many traders  33 and others, spreading an universal panic throughout  34 the Frontiers.  And he goes on to refer to what Sir  35 Jeffrey Amherst has been attempting to do to deal with  36 this situation.  And he warns about potential -- this  37 is in the last full paragraph on page 526, fearing  38 that the inhabitants in Frontier settlements which  39 must be entirely cut off to the great detriment to the  40 several provinces in case of a defection of the Six  41 Nations who has yet remain attached to us and have  42 sent to acquaint me that they rejected the invitation  43 made them by the Western Indians, and this is a  44 reference to the Ottawas and various other -- the  45 Chipewaghs, Misisagas, the various others he's  46 referred to, and the -- talks about, you know, prudent  47 management with the Indians in order to maintain them 16180  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 on the British side.  And he refers again on page 527  2 at the end to the steps -- this is the first full  3 paragraph on page 527:  4  5 "The steps which the Mohocks have taken to preserve  6 the peace."  7  8 And of course the Mohocks are the eastern most of the  9 Six Nations and historically the most loyal in that  10 sense to the British.  William Johnson himself lives  11 in Mohock territory in Fort Johnson and has very, very  12 close connections by this point by marriage as well  13 with the Mohocks, but as reference is made clear, he  14 says:  15  16 "The Onondagas likewise discover a great attachment  17 to us."  18  19 But his previous references suggest that the more  20 westerly of the Six Nations including the Seneca are  21 in real danger of going over to the Indian rebellion.  22 MS. MANDELL:  All right.  Could that then be marked, my lord, as  23 the next exhibit.  2 4    THE COURT:  Yes.  25    THE REGISTRAR:  1026-25.  26  27 (EXHIBIT 1026-25 - JULY 1, 1763 LETTER TO LORDS OF  2 8 TRADE FROM JOHNSON)  29  30 MS. MANDELL:  31 Q   And could you identify then the next one?  32 A   This is a submission from Lord Egremont, the Secretary  33 of State to the Lords of Trade dated July 14, 1763,  34 and he is answering their report of June 8 and stating  35 that the report has been laid before the King and that  36 the King approves of erecting the three new  37 governments in North America, namely Canada, East  38 Florida and West Florida, and then it refers to --  39 with regard to the limits of these governments as  40 described in the report and marked out in the chart  41 there unto annexed and that's a reference, I believe,  42 to the Bowen map with its markings.  43  44 "Although his Majesty entirely concurs in your  45 Lordship's idea of not permitting any grant of  4 6 lands..."  47 16181  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 THE COURT:  I am sorry, where are you reading from?  2 THE WITNESS:  At the bottom of page 147, the last two lines on  3 the page.  4 THE COURT:  Yes.  5 THE WITNESS:  6 "...of not permitting any grant of lands or  7 new settlements to be made for the present, beyond  8 the Bounds proposed by your Lordships."  9  10 And then goes on to suggest some difficulties that  11 might arise if the tract beyond those bounds was left  12 without being subject to the civil jurisdiction of  13 some governor, and suggests as one of the reasons for  14 want of such civil jurisdiction, it might be difficult  15 to bring justice, criminals and fugitives who might  16 take refuge in that country.  The King therefore is of  17 opinion, and this is further down on the opening part  18 of page 148:  19  20 "...that, in the Commission for the Governor of  21 Canada, all the lakes, viz, Ontario, Erie, Huron,  22 Michigan, and Superior, should be included, with  23 all the country as far North and West as the  24 limits of the Hudson's Bay Company and the  25 Mississippi; and also that all lands whatsoever  26 ceded by the late Treaty, and which are not  27 already included within the limits of His  28 Majesty's ancient Colonies, or intended to form  29 the Governments of East and West Florida, as  30 described in your Lordship's Report, be assigned  31 to the Government of Canada."  32  33 And here they are, of course, proposing a very much  34 larger boundary for the province of Canada than the  35 narrow boundary marked on the map which had been  36 attached and describe in the Lord of Trades report.  37 And then further down in the next paragraph, after  38 discussing the extent of new governments, Lord  39 Egremont repeats, this is the third line:  40  41 "That His Majesty entirely concurs in your  42 Lordships Idea, of not permitting, for the  43 present, any Grant of Lands, or New Settlements,  44 beyond the bounds proposed in your Report; and  45 that all the Countries, beyond such Bounds, be  46 also, for the present, left unsettled, for the  47 Indian Tribes to hunt in; but open to a free Trade 16182  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  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  for all the Colonies.  And the King would have the  Instructions to the Three New Governors in North  America, formed so, as to contain the strongest  Injunctions and Restrictions for this Purpose."  And at this stage of course they are still  considering promulgating these measures by way of  commission and instructions to the colonial  governments or governors, rather.  And on page 149,  now with regard to the ancient colonies, the older  British colonies, the king approves extending Georgia  and making additions to Nova Scotia and these two are  done by way of instructions to governors.  But in that  first full paragraph on page 149, the instructions are  for these ancient colonies, their governors:  "...for preventing their making any New Grants of  Lands beyond certain fixed limits to be therein  laid down for that purpose."  And then the next full paragraph:  "His Majesty thinks it highly proper, that the  Agents for Indians Affairs should correspond with  Your lordships in regard to the Indian Country,  and should transmit such Information on this  Subject, as your Lordships shall require from  them."  And suggests acquiring further information and about  the necessary military force and Garrisons, the bottom  of that paragraph, necessary to be kept up:  "...for the security of the Indian Trade."  MS. MANDELL:  My lord, if that could be marked as the next  exhibit.  THE COURT:  Yes, 1026-26.  THE REGISTRAR:  Yes.  (EXHIBIT 1026-26  JULY 14, 1763 LETTER TO LORDS OF  TRADE FROM EGREMONT)  THE COURT:  Shall we adjourn until two o'clock?  Thank you. 16183  Proceedings  1 THE REGISTRAR:  Order in court.  This court will adjourn until  2 two.  3  4  5 (PROCEEDINGS ADJOURNED AT 12:32 p.m.)  6  7  8  9 I hereby certify the foregoing to be  10 a true and accurate transcript of the  11 proceedings herein, transcribed to the  12 best of my skill and ability.  13  14  15  16  17  18 TANNIS DEFOE, Official Reporter  19 United Reporting Service Ltd.  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 16184  Proceedings  In chief by Ms. Mandell  1 (PROCEEDINGS RESUMED PURSUANT TO LUNCHEON RECESS)  2  3 THE COURT:  I understand you're all anxious to sit until 5:00  4 o'clock tonight.  5 MS. MANDELL:  I think the word anxious overstates it.  6 THE COURT:  Does madam reporter —  7 MS. MANDELL:  She is right.  8 THE COURT:  You will let your staff know, will you, madam  9 reporter, so somebody won't get stuck for two hours in  10 a row.  11 MR. GOLDIE:  I'm going to be asked to be excused at quarter to  12 five as I have a telephone call from the east, but Ms.  13 Sigurdson will be here.  14 THE COURT:  I can tell counsel I can sit even longer tomorrow  15 night.  I can only sit to 5:00 o'clock on Thursday  16 night.  If counsel want to do that, make those  17 arrangements, I'll be happy to oblige, particularly if  18 that might save us sitting Saturday.  I can sit  19 Saturday if necessary.  I should tell counsel I can't  20 sit next week.  21 MS. MANDELL:  No.  22 THE COURT:  Even to finish a witness.  23 MS. MANDELL:  No.  Good.  24 THE COURT:  Not so good, I'm in the Court of Appeal, so — but I  25 have to be somewhere.  All right.  26 MS. MANDELL:  Thank you.  My lord, tab 28 is out of order  27 sequentially so I'd ask that the witness turn to tab  28 29.  29 Q   Could you identify.  There is two letters in this tab.  30 Actually, there is several letters in this particular  31 tab and I wonder if you could first --  32 THE COURT:  In tab 29?  33 MS. MANDELL:  Yes.  34 THE COURT:  Oh, yes.  All right.  35 MS. MANDELL:  36 Q   If you could first deal with the letter of August 5th  37 which is contained in the first page there on.  38 A   Yes.  The first in this series of correspondence is a  39 representation of the Lords of Trade enclosed in this  40 letter of August 5th, 1763 to the secretary of state,  41 Lord Egremont, and it's in reference to the discussion  42 about including various countries within the  43 Government of Canada.  And beginning on page 151 is  44 the actual representation, again also dated August  45 5th, 1763, and it states at the beginning in reference  46 to -- referring back to Egremont's communication of  47 the 14th of July with reference to: 16185  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 "The large tract of Country bounded by the  2 Mississippi and the Limits of the Hudson Bay  3 Company on the one hand and on the other by  4 the Limits of Canada, East and West Florida  5 and His Majesty's ancient Colonies, should  6 for the present be made subject to no grants  7 of Lands nor to any Settlements."  8  9 And then referring to the discussion of whether or  10 not it should be under some civil jurisdiction they  11 say that they have taken this subject into their  12 consideration, and they agree with His Majesty, that  13 propriety of putting this country under a particular  14 government.  Second full paragraph on page 151, "By a  15 commission under Your Great Seal".  So they're still  16 discussing doing this by way of commission.  17  18 "With a most precise Description of its  19 Boundaries, in Order to ascertain the actual  20 possession of its property, and with such  21 Powers as may be necessary, as well to  22 maintain and secure the free Exercise of the  23 Indian Trade..."  24  25 And they make further reference to that, and then  26 they list a number of objections against annexing the  27 above referred to country to any particular  28 government, especially to that of Canada.  And the  29 first ground they give is that they mention the --  30 that they're apprehensive that on some future occasion  31 it might be supposed that His Majesty's title to the  32 area had arisen solely from the cessions made by  33 France.  And here they refer to the claim of the Six  34 Nations Indians to the lakes and circumjacent  35 territory, and they say that this rests on a more  36 solid, even a more equitable foundation.  And they  37 refer to the minds of the Indians where if they  38 thought themselves under the Government of Canada.  39 Then, second, they refer to that if the area  40 became subject of the laws of a particular government  41 or province that province might have an advantage in  42 respect of the whole of the Indian trade which is to  43 be left as open as possible to all subjects.  44 And in the third, that the powers of such  45 government could not be carried properly in an  46 execution unless by means of the garrisons at the  47 different posts and forts in that country, and that 16186  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 consequently the Governor of Canada would be virtually  2 commander in chief and there would be a lot of  3 conflict between him and the actual commander in  4 chief.  5 And so then they propose that a commission under  6 the great seal for the government of this country in  7 question be given to the commander in chief of His  8 Majesty's troops for the time being adapted to the  9 protection of the Indians and the fur trade, excuse  10 me, of your Majesty's subjects.  And they suggest  11 that, you know, whether any inconveniences would arise  12 there which would not equally arise from a like  13 commission to any other governor.  And then they  14 suggest delaying the issuing of such commission and  15 instructions, particularly because they require a  16 great deal of information with respect to the  17 management of the Indian tribes and trade which can  18 only be had from the commander in chief and from the  19 agents of Indian Affairs.  20 And further down in that paragraph they say:  21  22 "And we flatter Ourselves..."  23  24 This is in reference to delaying.  25  26 "That no such delay will produce any bad  27 Consequences, either in Respect to this  28 Country's being considered as derelict,  29 while Your Majesty's Troops are in the  30 actual possession of every Post and Fort  31 formerly enjoyed by the French, or in  32 respect of Criminals or Fugitives, taking  33 refuge in this Country with impunity, and as  34 this may be easily prevented by an  35 instruction to the present commander in  36 Chief."  37  38 What's interesting about this particular passage  39 is that as of August 5th, 1763 the board of trade  40 don't seem to be aware that all of the posts in the  41 interior country, except Detroit, have been captured  42 by the Indians as of about early July, that the  43 Michelamac (phonetic) and Fort Charlotte and the  44 various posts on the Illinois River have all been  45 taken by the Indians.  4 6 And then they continue:  47 16187  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 "In the meantime We humbly propose that a  2 Proclamation be immediately issued by Your  3 Majesty as well on Account of the late  4 complaints of the Indians, and the actual  5 Disturbances in Consequence, as of Your  6 Majesty's fixed Determination to permit no  7 grant of Lands nor any settlements to be  8 made within certain fixed Bounds, under  9 pretense of Purchase or any other Pretext  10 whatever, leaving all that territory within  11 it free for the Hunting Grounds of those  12 Indian Nations Subjects of Your Majesty, and  13 for the free trade of all your Subjects, to  14 prohibit strictly all Infringements or  15 Settlements to be made on such Grounds, and  16 at the same time to declare Your Majesty's  17 Intentions to encourage all such Persons who  18 shall be interested to commence new  19 Settlements from Your old Colonies."  20  21 And they continue with a list of the amount of  22 land to be granted to such people.  23 And the next letter which is from -- dated  24 September 19, 1763 and begins at the bottom of that  25 page and it's from the Earl of Halifax to the Lords of  26 Trade, and the Earl of Egremont who was secretary of  27 state for the Southern Department died at the end of  28 August and Halifax has replaced him, and so he is  29 picking up the thread of the discussion and referring  30 the matter back to the Lords of Trade.  And I believe,  31 at least in my copy, that these pages are duplicated.  32 There are two pages that may only be in my copy.  33 Q   That's correct.  It's duplicated throughout.  Perhaps  34 you could just pull out the second of the key pages.  35 A   Halifax informs the Lords of Trade that the King has  36 basically dropped the idea of:  37  38 "Including within the Government of Canada,  39 or any established Colony, the Lands which  40 are to be reserved, for the present, for the  41 Use of the Indians."  42  43 And that the definition of Canada, which is to be  44 stated in a commission to James Murray who's about to  45 become the governor, or will become the governor of  46 the new colony of Canada be exactly as marked out in  47 the report of the 8th of June, which is the narrowly 161?  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 circumscribed boundary for the Province of Canada.  2 And then the first full paragraph on that page:  3  4 "His Majesty approves Your Lordship's  5 Proposition of issuing immediately a  6 Proclamation, to prohibit for the present  7 any Grant or Settlement within the Bounds of  8 the Countries intended to be reserved for  9 the Use of the Indians."  10  11 And mentioning Royal bounty in terms of land to  12 reduced officers and soldiers.  And then here you get  13 the suggestion that a number of other items might be  14 provided for at the same time.  That this proposed  15 Proclamation might include some other topics, so that,  16 for example, the speedy settlement of the new colonies  17 might be promoted, the friendship of the Indians more  18 speedly and effectually reconciliated, and provisions  19 be made for preventing any inconveniences which might  20 otherwise arise from the want of civil jurisdiction in  21 the interior and reserved countries.  And then they  22 suggest extending the Proclamation to make known the  23 limits of the new colonies and the additions to be  24 made to old ones, to declare the constitution of the  25 new governments and the powers the governors will have  26 of granting lands, to prohibit private purchases of  27 lands from Indians, to declare a free trade for all  28 His Majesty's subjects with all the Indians under  29 license, security and proper regulations, and to  30 empower all military officers and agents for Indian  31 Affairs within the reserved lands to seize criminals  32 and fugitives who might take refuge there and to send  33 them back to be tried in the old colonies.  34 And Then Halifax asks their lordships to prepare  35 and transmit to him the draft of such a Proclamation  36 as may cover these various points mentioned.  And they  37 also -- he also suggests right towards the very end,  38 second to last paragraph, that he refers to:  39  40 "The General Plan, upon which His Majesty's  41 Subjects are to carry on a free Trade with  42 all the Indians of North America, should be  43 established as soon as possible."  44  45 And suggests that they avail themselves of  46 information, and that they create a system of  47 regulations. 16189  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  THE  COURT  18  A  19  THE  COURT  20  21  A  22  THE  COURT  23  A  24  25  26  THE  COURT  27  A  28  29  30  THE  COURT  31  A  32  THE  COURT  33  A  34  35  36  THE  COURT  37  A  38  39  40  THE  COURT  41  A  42  THE  COURT  43  A  44  THE  COURT  45  MS.  MANDE  46  47  THE  COURT  The next page of the document is a reply of the  Lords of Trade to Lord Halifax dated October 4th,  1763.  And they have prepared and transmit to Halifax  the draft of a Proclamation conformable to the  directions mentioned.  And they state that merely that  in order to save time they fix the limits of East  Florida.  And just after that there's an excerpt from the  proceedings in the privy council for the 5th day of  October in which they discuss this draft of a  Proclamation, and it's approved, and it's ordered to  be prepared -- this is on page 158, ordered to be  prepared for His Majesty's signature, and as it notes  in the margin that Proclamation was signed, this is on  page 158, top left-hand corner, the Proclamation was  signed by His Majesty and dated the 7th of October.  :  I'm sorry.  This is what date, the 5th?  This is the 5th, yes.  :  I see, and then on the 5th they said it would be  signed?  Be prepared for His Majesty's signature.  :  Signature.  And the margin notes indicates that, as indeed  happened, it was actually signed by his Majesty on the  7th, two days later.  :  Yes.  And at the same time draft commissions for the  governors of the three new provinces were prepared and  approved.  :  The three new provinces are?  Quebec.  :  Quebec.  East Florida and West Florida.  East Florida being the  Panhandle.  These are all on the North American  continent.  :  It's not Canada, it's Quebec?  It's now called Quebec, yes, that's one of the changes  which has been made.  The new colony out of what had  been Canada is to be called Quebec rather than Canada.  :  Yes.  All right.  And it's a colony, is it?  A province.  A new province.  :  Province of Canada.  Oh.  It is to be the Province of Quebec.  :  Okay.  All right.  jL:  My lord, I ask that those bundle of letters be  marked tab 29.  :  Yes.  1026-27. 16190  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 THE REGISTRAR:  29, my lord.  2 THE COURT:  Oh, 29.  3  4 (EXHIBIT 1026-29:  Aug. 5, 1763 Lords of Trade to  5 Egremont)  6  7 MS. MANDELL:  27 is the map and 28 I'm going to turn to now.  8 THE COURT:  I am — I'm sorry, I'm not with you.  What is the  9 number?  10 MS. MANDELL:  We would just hopefully have marked tab 29.  11 THE COURT:  Yes.  All right.  12 MS. MANDELL:  13 Q   If you could turn to tab 28, and for the sake of  14 continuity of that could you identify that document?  15 A   It's a printed version of -- it's, in effect, minutes  16 of the privy counsel or of the committee of the privy  17 council which was meeting to consider the report of  18 the board of trade and the draft Proclamation for the  19 idea of issuing a Proclamation, and it's at the  20 Lodgings at St. James'.  It's the Court of St. James.  21 16 September 1763, and various privy counsellors  22 present are listed.  23 And on page 318, the second page of the document,  24 Lord Halifax reads the report from the board of trade,  25 which we've just discussed, relative to putting the  26 Indian country not included in any of the other  27 provinces under the Government of Canada, and the  28 various objections which are raised to doing so.  And  29 that report of the board of trade is approved and then  30 the notes, and these are taken from a manuscript of  31 the Grenville papers, some objections were made to  32 this.  33 MR. GOLDIE:  Excuse me.  As I understand it, the minutes of the  34 privy council do not include what the witness is about  35 to read.  36 A   I believe that's correct, yes.  These objections are  37 from Grenville himself who was, if I remember  38 correctly, secretary of state for the Northern  39 Department, and that these -- this is a printed  40 version of material which comes from his own private  41 manuscripts, and so that what appears in brackets is  42 from Grenville himself making notes of what occurred,  43 but the actual privy council minutes do not include  44 this section.  But that according to Grenville:  45  46 "Some objections were made to this plan of  47 not including all the territory ceded by the 16191  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 late Treaty to Great Britain in some of the  2 governments and likewise to the line beyond  3 which the lands for the present are reserved  4 to the Indians which is to be declared by  5 Proclamation issued here but as these doubts  6 were raised by Mr. Grenville only and  7 against Lord Halifax's opinion as well as  8 that of the other Lords they were no further  9 insisted upon."  10  11 THE COURT:  All right.  12 MS. MANDELL:  Could that then be marked as the next exhibit.  13 THE COURT:  Yes.  14 MR. GOLDIE:  If it's tendered, my lord, as the minutes of the  15 privy council meeting of 16 September '63 what is in  16 brackets should be removed.  If it's tendered as an  17 historical document with Lord Grenville's addition I  18 have no objection.  19 MS. MANDELL:  Yes, as the second.  20 THE COURT:  The latter.  All right.  1026-28.  21 THE REGISTRAR:  Yes, my lord.  22  23 (EXHIBIT 1026-28:  Sept. 16, 1763 Minutes of Privy  24 Council)  25  26 MS. MANDELL:  If you could turn to tab 29.  My lord, there's two  27 documents in this tab.  The first is a handwritten  28 document, and the second -- both of them are  29 handwritten.  One is signed by Mr. Yorke and the other  30 is entitled "By the King".  31 THE COURT:  Are you sure about that?  32 MS. MANDELL:  I'm sorry.  It's tab 30.  33 THE COURT:  Tab 30.  Thank you.  34 MS. MANDELL:  35 Q   I'd like to deal with the first document first, and  36 could you identify for the court that document and its  37 context?  38 A   The draft Proclamation had been referred by the board  39 of trade to the law officers of the Crown, and Yorke  40 who signs this document dated October 3rd, 1763 is, I  41 believe, the solicitor general.  The law officers  42 being the attorney general and solicitor general.  And  43 he simply states that he has passed and considered the  44 enclosed draft of a Proclamation and he's of the  45 opinion that it contains nothing contrary to law and  46 that it's properly prepared in form.  47 Q   All right. 16192  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 A  And what follows is the draft of the Proclamation.  2 Q   If I could turn you in that draft to page 188.  The  3 numbers, I might add, are not the numbers of the draft  4 for the purposes of our accessing them, we just  5 chronologically added numbers to the top of the  6 page --  7 THE COURT:  Yes.  8 MS. MANDELL:  — To try and make sure that we could — that we  9 may -- we still find we have some problems, but the  10 numbers on the -- the numbers have been added and too  11 late to draft.  12 MR. GOLDIE:  Well, if we are talking about the addition of  13 numbers, my lord, the number 1216 on the right-hand  14 corner of the top page indicates that it's a document  15 disclosed by the Province.  16 THE COURT:  I see.  All right.  Well, you're looking at the red  17 188, are you?  18 MS. MANDELL:  Yes.  19 THE COURT:  Yes, I have that.  Thank you.  2 0 MS. MANDELL:  21 Q   This is to deal -- this is dealing with the paragraph  22 describing the unsurrendered lands.  Could you  23 indicate the correction which has -- is indicated here  24 in the draft?  25 A   In the draft it originally read that with reference to  26 the several nations or tribes of Indians, et cetera,  27 should not be molested or disturbed in the possession  28 of such parts of our dominions and territories as, and  29 it originally read as "or occupied by or reserved to  30 them as their hunting grounds", and in the margin that  31 section has been changed to read as in quotes, "not  32 having been ceded to or purchased by us."  33 THE COURT:  Is that yet or is that crossed out?  34 A   Not having been -- yes, I believe the "yet" has been  35 crossed out.  "Not having been ceded to or purchased  36 by us are reserved to them or any of them."  37 MS. MANDELL:  All right.  38 THE COURT:  I'm sorry.  Not having been ceded to?  39 A   Ceded to or purchased by us.  4 0 THE COURT:  Ceded to by us.  41 A  Are reserved to them or any of them.  42 THE COURT:  Of them as their hunting ground.  43 A   Then it goes back into the text as their hunting  44 ground.  45 MS. MANDELL:  46 Q   And if you could turn over the next page and describe  47 the -- 16193  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  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  A  THE COURT  MS  A   The section then again which had forbid governors or  commanders in chief in any of the colonies of Quebec,  East Florida or West Florida from -- forbiding them  from passing patents or warrants or granting warrants  of survey beyond the bounds.  Then it also -- as also  that no governor or commander in chief of any other  colonies or plantations in America, you presume, and  then before it continues with the words "grant,  warrants of survey" the margin has been added "for the  present", and it originally said "as aforesaid", which  is crossed out, and then it says, "and until our  further pleasure is known."  So those words have been  added with respect to the prohibition on granting  these warrants of survey or passing guns for land.  And further down in the same paragraph.  That's until, is it?  Until our further pleasure be known.  It's spelled  with two L's in the style of the time.  Yes.  All right.  MANDELL:  And —  A  And the end of that paragraph had originally said,  "After extending that prohibition to lands beyond the  heads or sources of any of the rivers which fall into  the Atlantic Ocean from the west and northwest", it  continued, "or upon any lands whatever", and then this  part had been removed, "which are occupied by or  reserved to any of the Indians in alliance with us or  any of our colonies and which have not yet been sold  or ceded to us by them or any of them, and all of that  has been removed and in the right hand margin the  additions have been made, namely, "Not having been  ceded to or purchased by us as aforesaid are reserved  to the said Indians or any of them."  MANDELL:  Q   I was going to ask you, as Mr. Goldie raises it now  too, do you know anything about the asterisk and the  circled 2?  No, it's not my handwriting.  I don't know what it is  referring to.  Down the page was that amendment?  Further down, yes.  This is where it's leading into  the section where a described territory is to be  reserved and -- for the Indians, and right after the  words where it says "to reserve" have been added the  words "for the present as aforesaid."  Then it goes on  "for the use of the said Indians all the lands and  territories", this is on page 190, "not included  MS.  A  THE COURT  A 16194  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1  2  3  4  5  6  7  8  9  10  THE  11  12  13  THE  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  THE  32  MS.  33  34  35  36  MR.  37  38  THE  39  MS.  40  THE  41  42  MS.  43  44  45  46  47  THE  COURT:  A  COURT:  A  within these limits, but that reserve is to be for the  present as aforesaid".  And then right at the end of  that paragraph when it forbids, this is on page 190 as  pencilled in, where it forbids all the loving subjects  from making any purchases or settlements whatever or  taking possession of any of the lands above reserved  in the margin has been added the words, "without our  especial leave and license for that purpose first  obtained."  That comes at the end, does it?  Oh, yes.  There's a little asterisk where it's to come after the  statement.  Yes.  All right.  What do you understand that all  these amendments were made before the solicitor  general gave his opinion or afterwards?  It's -- as the document at tab 31 is simply -- I'm  just explaining by way of explanation, is a historical  article about the drafting of the Proclamation by, I  forget his first name, Humphries, and it establishes  that the -- these changes to the draft, John Pownall,  secretary to the board, was the author of them.  That  appears at page 254 of the article.  And all that's --  that Mr. Humphries seems to establish is not entirely  clear whether Pownall was going over the draft at the  same time, but whether his additions were made after,  and it is the Attorney General, not the solicitor  general, I apologize, Charles Yorke, we've proven, or  whether they were done before is not entirely clear,  but it does indicate that it was Pownall that made  these various insertions.  Okay.  MANDELL:  Q   All right.  What's the historical background of the  assertion made "for the present and until our further  pleasure be known" on page 198?  GOLDIE:  I take it my friend is asking for the documents  that provide that?  COURT:  Well, are you Ms. Mandell?  MANDELL:  No.  COURT:  Well, is there historical material which either  answers or bears on that question?  MANDELL:  Well, you've been referred to some of it, my lord,  and I think that we'll be referring to some more of  it, but at this point, in my view, it's a proper  question to understand why that phrase is being  inserted now.  COURT:  Well, what you're asking the witness to explain is  COURT: 16195  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 why those phrases were added?  2 MS. MANDELL:  Yes.  3 THE COURT:  Does -- will the witness say that his source of his  4 information is other documents he looked at?  5 MS. MANDELL:  He — yes.  But not — you'll have some of those  6 documents placed before you now and tomorrow, so it's  7 not as if your lordship, it's true, can't see it  8 yourself, but I think there is an historical reason  9 why those phrases are being put in at this time, and  10 the witness will know it.  11 MR. GOLDIE:  Well, my lord, if the witness knows it's so and  12 it's historical it must be in a document.  The witness  13 wasn't there.  14 THE COURT:  I don't think he was there.  15 MR. GOLDIE:  Not as far as I'm aware.  16 A   Not as far as I'm aware.  17 MR. GOLDIE:  So we might as well have the sources of the  18 information.  19 THE COURT:  I'd be much more comfortable in dealing with the  20 objection if I knew how complete or incomplete these  21 sources are.  22 MS. MANDELL:  That you have.  23 THE COURT:  No, the totality of them.  You say I've got some and  24 I will have some others -- I'm going to get some more.  25 MS. MANDELL:  Yes, you'll get some more tomorrow.  26 THE COURT:  Are you going to ask that question after we've done  27 that and I can deal with -- deal on a more certain  28 basis with Mr. Goldie's objection.  2 9 MS. MANDELL:  All right.  Yes.  3 0 THE COURT:  Thank you.  31 MS. MANDELL:  All right.  I'd ask that the tab 30, both  32 documents, be marked as one tab.  33 THE COURT:  Yes.  All right.  That's tab 30, isn't it?  34 THE REGISTRAR:  Yes.  35 THE COURT:  That will be — those documents will be Exhibit  36 1026-30.  37  38 (EXHIBIT 1026-30:  Oct. 3, 1763 Letter of C. Yorke and  39 Proclamation)  40  41 MS. MANDELL:  And tab 31, I'd also ask that that be marked.  42 MR. GOLDIE:  Well, what's the basis of that?  Are we now marking  43 parts of the Brandeis brief?  I know this is an old  44 story, my lord.  4 5 THE COURT:  Yes.  46 MR. GOLDIE:  But some of these things have been marked as purely  47 on the basis of this is what the witness has referred 16196  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 to.  2 THE COURT:  Yes.  3 MR. GOLDIE:  This is one of his references.  I draw a  4 distinction between anything that is preceded and a  5 witness who is testifying as to history, and unless  6 the -- this is a document that is argument.  He's  7 speculating, he's doing everything that historians do,  8 but he's not before your lordship.  9 MS. MANDELL:  Is Mr. —  10 THE COURT:  The problem we have here is that up to now the  11 witness has not been giving historical opinions, he's  12 been -- he's been describing source information.  If  13 this document is to be marked in keeping with what  14 we've been doing in the past it would be to identify a  15 document he relied upon in supporting his opinion.  16 He's not giving an opinion here yet.  I dare say we  17 are going to have some more discussion about this.  I  18 think for the moment I'd just like to mark this as an  19 exhibit for identification, and we'll drag these  20 things out at the end.  21 MS. MANDELL:  Perhaps I should ask a few more questions about it  22 then just to establish what it is.  23 THE COURT:  Yes.  All right.  24 MS. MANDELL:  25 Q   Where is this document taken from?  26 A   It's, I guess you'd say, one of the first articles  27 which dealt with the subject of the Royal Proclamation  28 of 1763.  And, as I say, I apologize because I can't  2 9 remember Mr. Humphries first name.  I believe he's  30 long dead.  And it deals with the genesis of the Royal  31 Proclamation, and my only purpose here for referring  32 to it is to identify John Pownall as the author of the  33 changes in the draft of the Proclamation which are in  34 the margins.  35 MS. MANDELL:  All right.  I've got no further questions and  36 we'll leave it marked for identification.  37 THE COURT:  Identification then.  38 THE REGISTRAR:  1026-31.  39 THE COURT:  Identification.  40  41 (EXHIBIT 1026-31 FOR IDENTIFICATION:  "Lord Shelburne  42 and the Proclamation of 1763")  43  44 MS. MANDELL:  45 Q   Could you turn to the next document found at tab 32.  46 Can you identify this document?  47 A   This is another representation from the Lords of Trade 16197  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 to His Majesty through the Earl of Shelburne, who is  2 now secretary of state, and it's from five years  3 after -- about five years after the Proclamation.  4 It's dated March 7th, 1768.  And it deals at length  5 with a number of issues which have arisen in the  6 intervening time in that five year period, and the --  7 it's -- my main purpose here that I intended to refer  8 to is what happens to the boundary line established by  9 the Proclamation, but I would propose to refer to  10 several topics which are discussed in this  11 representation.  It's summarizing five years of  12 historical events in North America after the  13 promulgation of the Royal Proclamation of 1763.  14 THE COURT:  Well, Ms. Mandell, it seems to me that it would be  15 useful to have the witness point out the things that  16 are significant.  17 MS. MANDELL:  Yes.  18 THE COURT:  And I'm happy to have him go that far.  I think if  19 it's a summary of five years of historical events I  20 don't need an expert.  21 MS. MANDELL:  I'm not going to give you the full five years.  22 THE COURT:  I'd be glad to have indications or references to the  23 important passages.  24 A   On internal page 186 there's the second full paragraph  25 beginning:  26  27 "To maintain a good Correspondence with the  28 Indians is undoubtedly an Object of great  29 Importance: and upon a careful Examination  30 into the State of Indian Affairs after the  31 Conclusion of Peace, it appears, that the  32 two principal Causes of the Discontent, that  33 still rankled in the Minds of the Indians  34 and influenced their Conduct, were the  35 Encroachments made upon Lands which they  36 claimed at their Property, and the Abuses  37 committed by Indian Traders and their  38 Servants.  The Necessity which appeared in  39 the then state of our Interest with the  40 Indians of making some immediate provisions  41 against these Two Causes of their  42 Discontent, induced the Proclamation of  43 October 1763, which very prudently  44 restrained all persons from Trading with the  45 Indians without License; and forbid, by  46 strongest prohibitions, all Settlement  47 beyond the Limits therein described as the 1619?  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 Boundary of Indian hunting Ground, putting  2 both their Commerce and Property under the  3 protection of Officers here acting under  4 Your Majesty's immediate Authority, and  5 making their Intervention necessary in every  6 Transaction with those Indians."  7 And then he continues -- or the board of trade  8 continues.  9  10 "These however being, as we have before  11 observed, mere provisional Arrangements,  12 adapted to the Exigence of the time, it is  13 become now necessary to consider, what may  14 be more..."  15  16 And then he goes on about a more permanent  17 measures to deal with these matters they have just  18 discussed.  And then on page 187:  19  20 "The giving all possible redress to the  21 Complaints of the Indians in respect to  22 Encroachments on their Lands, and a steady  23 and uniform Attention to a faithful  24 execution of whatever shall be agreed upon  25 for that salutary purpose, is a  26 consideration of very great Importance:  It  27 is a Service of a general Nature, in which  28 Your Majesty's Interest, as Lord of the Soil  29 of all ungranted Lands which the Indians may  30 be inclined to give up, is deeply and  31 immediately concerned, and with which the  32 general Security of Your Majesty's  33 Possessions there is in some Measure  34 connected."  35  36 And they go on to state that this is not something  37 quote three lines later:  38  39 "To which the separate Authority and  40 Jurisdiction of the respective Colonies is  41 not competent, and it depends upon  42 Negotiation, which has always been carried  43 on between Indians and Officers acting under  44 Your Majesty's immediate Authority, and has  45 reference to Matters, which the Indians  46 would not submit to the Discussion of  47 particular Colonies." 16199  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1  2 And then they state that for those reasons the  3 board is of the opinion that:  4  5 "The execution of all Measures and Services  6 respecting the Complaints of the Indians  7 touching their Lands, should be continued to  8 be entrusted to the Superintendents who are  9 acting under Commission from the Crown..."  10  11 And then it -- reserving to the particular  12 colonies a right to interpose their advice and making  13 their concurrence necessary to the ratification of  14 every compact that shall be provisionally made until  15 Your Majesty's pleasure shall be known upon it.  16 And it makes reference to what became known as the  17 plan for future management of Indian Affairs of 1764  18 which though it was never officially adopted was used  19 by Sir William Johnson and the commander in chief, the  20 Indian superintendents as a guide for regulating  21 Indian Affairs, and one of the things that plan had  22 spoken of was establishing a boundary line, that is  23 negotiating a boundary line.  And beginning on page  24 188 their lordships make reference to several treaties  25 which had been made after the Proclamation with  26 various Indian nations and tribes, both in the south  27 and in the north, respecting the alteration of the  28 boundary line as it had been laid down in the Royal  29 Proclamation at 1763.  And they refer to an appendix  30 to their report which, this is on page 188:  31  32 "Contains a description of the several Lines  33 as agreed upon in the Negotiations to which  34 we refer."  35  36 And the -- in reference to the middle colonies,  37 this is the bottom of page 188, that the middle  38 colonies now have room to spread.  39  40 And that upon the whole one uniform and  41 complete line will be formed between the  42 Indians and those ancient Colonies, whose  43 Limits not being confined to the Westward  44 have occasioned that extensive Settlement,  45 which, being made without the Consent of the  46 Indians, and before any line was settled,  47 produced the Evil complained of." 16200  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  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  A  THE COURT  A  THE COURT  A  THE COURT  A  THE COURT  THE COURT  A  And on page 189, the second page -- they're  discussing the treaty which has been made with the Six  Nations, which is actually the treaty known as the  Treaty of Fort Stanwicks.  And they described its  bounds which extend over to various portions of the  Ohio River, and beyond the boundary line set out in  the 1763 Proclamation.  And then they suggest -- this  is page 189, second paragraph --  :  Before you go there.  Yes, sir.  :  What do you say are the middle colonies?  Oh, the middle colonies are the Pennsylvania, New  York.  The southern colonies are, you know, Virginia,  the Carolinas and Georgia.  The ones between New  England and the  :  Would you put Maryland in the middle colonies?  Maryland I believe is in the middle colonies.  Pennsylvania, and what would become Delaware later,  and New York.  :  And Delaware?  I'm not even sure if Delaware was in existence at this  time, but --  :  All right.  Thank you.  :  And 189 you say?  And 189, the second paragraph, they state:  "That it will be greatly for Your Majesty's  Interest as well as for the Peace, Security  and Advantage of the Colonies, that this  Boundary line should be as speedly as  possible, be ratified by Your Majesty's  Authority, and that the Superintendents  should be instructed and empowered to make  Treaties in Your Majesty's Name with the  Indians for that purpose."  And then they also say that when doing this, this  is in the same paragraph at the end:  "That the Agreement for a Boundary line be  left open to such Alterations, as, by the  common Consent, and for the mutual Interests  of both Parties, may hereafter be found  necessary and expedient."  And they suggest: 16201  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1  2 "That the Colonies should be required to  3 give every Sanction to the measure in their  4 power, and to provide by proper Laws for the  5 punishment of all Persons, who shall  6 endanger the public peace of the Community,  7 by extending Settlements or occupying Lands  8 beyond such Line."  9  10 And on page 190 while still discussing the proper  11 duties of the Indian superintendents, the officers  12 charged with that responsibility, they list some other  13 duties which they think should fall to those  14 individuals.  Among them, about half way through that  15 first full paragraph:  16  17 "These are ones which cannot be provided for  18 by Provincial laws; Such are the renewal of  19 ancient Compacts or Covenant-Chains made  20 between the Crown and the principal Tribes  21 of Savages in that country; the reconciling  22 Differences and Disputes between one body of  23 Indians and another; the agreeing with them  24 for the sale or Surrender of Lands for  25 public purposes not lying within the limits  26 of any particular Colony; and the holding  27 Interviews with them for these and a variety  28 of other general Purposes, which are merely  29 Objects of Negotiation between Your Majesty  30 and the Indians."  31  32 And they summarize that these are duties for the  33 Indian superintendents and their subordinate officers.  34 Then on page 191 they go into discussing the  35 various measures which had been proposed in 1764 and  36 adopted by the superintendents regarding the Indian  37 trade, and --  38 THE COURT:  I'm sorry.  What page?  39 A   This is at page 191.  40 THE COURT:  Oh, 191.  Oh, fine.  Thank you.  41 A  And the bottom of page 191 they point out that as far  42 as they have been able to determine there are varying  43 Indian interests involved, and then they state,  44 secondly, and the 1764 plan had confined trade to  45 certain posts and places in the interior country, so  46 they say with this regard, that while -- this is on  47 page 192 while this actually worked in respect to the 16202  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 southern Indians, that is those inhabiting the back  2 parts of the Southern colonies, it is doubtful with  3 respect to those Indians more particularly connected  4 with New York and Pennsylvania, and they go on:  5  6 That it is evidently disadvantageous,  7 inconvenient, and even dangerous with  8 respect to the much larger body of Indians,  9 who possess the country to the Westward, and  10 with whom Your Majesty's Subjects in Quebec  11 in particular do carry on so extensive a  12 commerce."  13  14 And this is a reference to the trade which by now  15 the fur traders from Quebec are carrying out with  16 Indians who had during the French period been trading  17 with the French as far away as Western Canada.  18 And they proposed -- the Lords of Trade proposed  19 that the regulation of the trade, however, be  20 entrusted with colonies again both as a way of saving  21 money, and they claim that the new regulations which  22 have been put in effect have stopped these abuses.  23 And on page 194 at the bottom they mention that in  24 "The northern District...", this is North America:  25  26 "The principal Indians formed themselves  27 into two great Confederacies; the one  28 composed of the Six Nations and their Allies  29 and Dependants, the other, called the  30 Western Confederacy, composed of a great  31 Variety of powerful Tribes, occupying that  32 extensive Country, which lies about the  33 Lakes Huron, Michigan and Superior, and to  34 the West and North West."  35  36 And I believe the context of the reference here,  37 the northwest when they had previously mentioned  38 the -- this is in reference to the Indians with whom  39 the Quebec traders in particular are trading.  Now,  40 through the lakes and rivers leading northwest from  41 Lake Superior.  42 And page 198 they again return to the subject  43 of -- they're dealing with this -- the subject of  44 confining settlements to the sea coasts, and the  45 various problems and advantages connected with that.  46 And I note at the bottom of page 198 that:  47 16203  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 "This motive, though operating in a less  2 degree, and applying to fewer objects, did,  3 as we humbly conceive, induce the forming  4 the Colonies of Georgia, East Florida and  5 West Florida to the South; and making those  6 provisional Arrangements in the Proclamation  7 in 1763, by which the interior Country was  8 left to the possession of the Indians."  9  10 And the page -- they go on to discuss the progress  11 of settlement throughout the colonies.  And on page  12 210 they set out -- there is a debate going on about  13 colonizing in the interior.  The counter argument, of  14 course, is the one that had always been advanced that  15 settlement should be confined to the coast, but they  16 here list the basic arguments which have been made by  17 the proponents of interior settlement, and there were  18 a very large number of them lobbying extensively in  19 London with imperial officials.  And that, among other  20 things, you know, interior colonies would actually  21 promote population and increase the demands for and  22 consumption of British manufacturers, and that they  23 would, among other things, they would be a defence and  24 protection to the old colonies against the Indians.  25 And they, the Lords of Trade, at the bottom, suggest  26 an orderly process of opening up areas for settlement.  27 At the bottom of page 201, that in order:  28  29 "To prevent Manufacturers, it is necessary  30 and proper to open an Extent of Territory  31 for Colonization proportioned to the  32 Increase of People..."  33  34 And then they say, of course, because if people  35 are cooped up within narrow limits they will be  36 compelled to their convert their attention and  37 industry to manufacturers.  38 And they go on basically to disagree with the  39 proposal for interior settlement, but they mention  40 part way down page 202 that there are "extensive Tract  41 of Sea Coast hitherto unoccupied", then they say:  42  43 "Which, together with the Liberty that the  44 Inhabitants of the middle Colonies will have  45 (in consequence of the proposed boundary  46 Line with the Indians) of gradually  47 extending themselves, backwards, will more 16204  J. Morrison (for Plaintiffs)  In chief by Mr. Mandell  1 effectually and beneficially answer the  2 Object of encouraging Population and  3 Consumption, than the Erection of new  4 Governments.  Such gradual Extension, might,  5 through the medium of a continued  6 Population, upon even the same Extent of  7 Territory, preserve a Communication of  8 mutual Commercial Benefits between its  9 extremist Parts and Great Britain."  10  11 And they go on -- they go on to discuss and  12 basically reject some of the other proposals which  13 have been made for settling in the interior.  14 THE COURT:  Could we take the afternoon adjournment now,  15 Ms. Mandell?  16 MS. MANDELL:  Yes.  Thank you.  17 THE REGISTRAR:  Order in court.  This court will recess.  18  19 (PROCEEDINGS ADJOURNED)  20  21 I hereby certify the foregoing to be  22 a true and accurate transcript of the  23 proceedings herein to the best of my  24 skill and ability.  25  26  27 Peri McHale, Official Reporter  2 8 UNITED REPORTING SERVICE LTD.  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 16205  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 (PROCEEDINGS RESUMED AT 3:20 p.m.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Miss Mandell.  5 MS. MANDELL:  Thank you.  I'd like to have tab 32 marked as the  6 next document and then to move on to tab 33.  7 THE COURT:  All right, thank you, 1026-32.  8 THE REGISTRAR:  Yes.  9  10 (EXHIBIT 1026-32 - MARCH 7, 1768 - LORDS OF TRADE ON  11 STATE OF INDIAN AFFAIRS)  12  13 THE WITNESS:  The document at tab 33 is known more popularly as  14 the treaty of Fort Stanwix and --  15 THE COURT:  How do you spell that, please?  S-t-a-n —  16 THE WITNESS:  — w-i-x.  It is in western New York state.  It is  17 about where Rome, New York now is.  18 THE COURT:  Where?  19 THE WITNESS:  Rome, New York, in the Six Nations country.  And  20 it's one of the agreements involving the boundary line  21 which occurred after the Proclamation and a number of  22 which are referred to in the preceding document by the  23 Lords of Trade, and in the recital in the Treaty of  24 Fort Stanwix, after naming the various nations who are  25 involved and have been convened by Sir William  26 Johnson.  In the fifth line down, it states that:  27  28 "Whereas his Majesty was gracioulsy pleased to  29 propose to us in the year 1765 that a Boundary  30 Line should be fixed between the English and us to  31 ascertain and establish our Limits and prevent  32 those intrusions and encroachments of which we had  33 so long and loudly complained and to put a stop to  34 the many fraudulent advantages which had been so  35 often taken of us in Land affairs which Boundary  36 appearing to us a wise and good measure we did  37 then agree to a part of a Line and promise to  38 settle the whole finally when soever Sir William  39 Johnson should be fully empowered to treat with us  40 for that purpose."  41  42 And it goes on to state that William Johnson has  43 received orders to complete the said boundary line and  44 that he's convened the chiefs and warriors of our  45 respective nations,  46  47 "...who are the true and absolute Proprietors of 16206  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 lands in question and who are here now to a very  2 considerable Number."  3  4 And it refers to various apprehensions that the line  5 might not be strictly observed on the part of the  6 English, and that they have now come together to agree  7 before -- this is further down:  8  9 "Before Sir William Johnson and in the presence of  10 His Excellency, the Governor of New Jersey, the  11 Commissioners from the Provinces of Virginia and  12 Pennsylvania and sundry other Gentlemen by which  13 lines so agreed upon a considerable Tract of  14 Country along several Provinces is by us ceded to  15 His said Majesty which we are induced to and do  16 hereby ratify and confirm to His said Majesty."  17  18 And it continues in the same vein and then defines a  19 boundary, and on page 136 about eight lines down  20 states that:  Now therefore know ye that we the  21 Sachems and Chiefs aforementioned Native Indians and  22 proprietors of the lands herein after described for  23 and in behalf of ourselves and the whole of our  24 confederacy for various considerations do acknowledge  25 and various words confirm and grant, bargain, sell,  26 release, et cetera, all that tract of land situate in  27 North America at the back of the British settlements  2 8 bounded by a line which we have now agreed upon and do  29 hereby establish as the boundary between us and the  30 British colonies in America, and a description follows  31 and it takes in lands going over as far as the Ohio  32 River.  And then further down extending eastward from  33 every part of the said line as far as the lands  34 formerly purchased so as to comprehend the whole of  35 the lands between the said line and the purchased  36 lands or settlements.  And the rest of the wording  37 continues in standard legal form and, on page 137, the  38 signatures of the Six Nations Indians are attached to  39 the deed.  40 MS. MANDELL:  Could that be marked then as the next exhibit.  41 THE REGISTRAR:  1026 —  42 THE COURT:  1026-33 and the date is the 5th of November, 1768.  43  44 (EXHIBIT 1026-33 - DEED - BOUNDARY LINE BETWEEN WHITES  45 AND INDIANS)  46  47    MS. MANDELL:  And at that time tab 34 — 16207  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 THE COURT:  Is it possible to summarize the demise premises?  2 What is the area that's --  3 THE WITNESS:  The area itself is in the — I confess it is a  4 secondary source at tab 35 which is from an article by  5 Kenneth M. Narvey and the reason I had intended to  6 refer to this is that he includes a series of maps  7 beginning at page 144 which -- this is the map at page  8 144, is the map which had accompanied the  9 representation of the Lords of Trade in 1768 which was  10 at tab 32.  And on it, the subsequent pages, Mr.  11 Narvey has marked the boundary lines discussed in that  12 representation showing where it's cut inwards and on  13 page 158 --  14 THE COURT:  I am sorry, it runs more or less up the Mississippi  15 to the north boundary of North Carolina?  16 THE WITNESS:  On page 144, he hasn't added any boundaries as  17 such but the boundaries that the Lords of Trade have  18 mentioned, yes, runs up the back of the British  19 settlements above sort of cutting through Virginia and  20 over to the Mississippi.  It's been added and --  21 THE COURT:  Skirts around the easterly end of —  22 THE WITNESS:  Yes.  23 THE COURT:  — Lake Erie and Lake Ontario?  24 THE WITNESS:  The — on page 144, it goes up there, yes.  It's  25 not entirely clearly marked.  2 6 THE COURT:  Yes, all right.  27 THE WITNESS:  But on page 158, this shows the boundary of the —  28 the boundary agreed upon at Fort Stanwix in November  29 of 1768 and Lake Ontario is at the top and Lake Erie  30 is just below it, and the boundary runs more or less  31 from northeast to southwest down along the Ohio River,  32 and you can see the Alleganys Mountain chain which had  33 been the Proclamation line of 1763 is sort of in the  34 middle and the boundary has extended over that and  35 down the Ohio River in a southwesterly direction so  36 that that has now become the boundary, and then on  37 page 159, the same boundary is shown eastward as it  38 comes down into Pennsylvania and as it crosses the  39 mountains.  4 0 THE COURT:  What is that word?  41 THE WITNESS:  Which?  42 THE COURT:  Looks like Allegany, is that mountain?  43 THE WITNESS:  Yes.  44 THE COURT:  All right.  45 THE WITNESS:  And basically that the Indians had agreed to  46 extend -- to surrender lands in a more or less  47 southwesterly direction from the mountain chain down 1620?  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 the Ohio River.  2 THE COURT:  And then down the Mississippi?  3 THE WITNESS:  And not — and then down the Mississippi later but  4 at this stage --  5 THE COURT:  Not at this time?  6 THE WITNESS:  Not at this time.  7 THE COURT:  All right, thank you.  8 MS. MANDELL:  9 Q   Thank you.  If we could turn to tab 34 and just  10 complete this part of the evidence?  11 A   This is a series of excerpts from the published acts  12 of the privy council on colonial series, and it deals  13 with subject of Vandalia which was a proposal made in  14 the late 1760s for establishing a colony in the  15 interior of America and, on page 202, left-hand column  16 part way down under the heading 4th August which would  17 be 1769, there is reference there to a petition --  18 this is at page 202, a petition which had come to the  19 Board of Trade from Thomas Walpole and others for a  20 grant of 2,400,000 acres of land at the back of  21 Virginia sold by the Six Nations and other Indians to  22 His Majesty.  And the conflict going on -- this is a  23 historical background at the time again about whether  24 settlement should be allowed in the interior of  25 America.  There were imperial officials among them,  26 Lord Hillsborough who was variously president of the  27 Board of Trade and secretary for the southern  28 department who was adamantly opposed to interior  29 settlements partly because he was a very large land  30 owner in Ireland and he didn't want Ireland  31 depopulated to --  32 MR. GOLDIE:  Well, my lord, I think that this is going -- we are  33 after the date of the Royal Proclamation anyway.  I am  34 not sure what relevance this has but the background of  35 this is quite apparent from the documents itself and  36 my friend -- the witness talked about a debate before  37 the adjournment.  Well, the other name for that is the  38 American Revolution.  39 THE WITNESS:  Well, what all I am establishing here is that in  40 this instance and, if you follow through these  41 excerpts dealing with this proposal for a grant of  42 this Vandalia colony on lands purchased from the Six  43 Nations Indians, that the -- there was a great deal of  44 debate but that -- and this is on internal page 208,  45 the Privy Council in 1772, this is 14th August,  46 approved making this settlement because it states in  47 the left-hand side orders for carrying into execution 16209  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 the proposals of the committee report at 1st July and  2 for apprising the Indians of the intention to form a  3 settlement on the lands purchased from them in 1768.  4 And that as I suggested, because there was this debate  5 that, in this instance, the Crown officials did  6 approve one of these interior settlements.  7 MS. MANDELL:  8 Q   This is the land which was in -- at page -- internal  9 page 208, the land referred to there is referring to  10 the land that was ceded with the Treaty of Fort  11 Stanwix?  12 A   In part, yes.  And it is referred to on page 202.  It  13 is among the lands purchased from the Six Nations  14 Indians but it is in the interior below the Ohio River  15 in the back of Virginia.  16 MR. GOLDIE:  I assume my friend is going to draw to the court's  17 attention the fact that this colony never got off the  18 ground because of the American Revolution.  19 THE COURT:  I don't recall it in the last time I heard the  20 roll-call of the states.  21 THE WITNESS:  No, it is quite true, it was never carried through  22 but my only point in raising it is it was approved and  23 that other events intervened of course and the area  24 was of course eventually settled as one of the states  25 of the United States of America after the Revolution.  26 THE COURT:  Which state would that be?  27 THE WITNESS:  It is in Tennessee — Kentucky.  Tennessee,  28 Kentucky or both.  29 MS. MANDELL:  My lord, I propose then to mark tab 34 as the next  30 exhibit.  31 THE COURT:  Yes, 34.  32 THE REGISTRAR:  Thank you.  33  34 (EXHIBIT 1026-34 - ACTS OF PRIVY COUNCIL OF ENGLAND  35 - EXCERPTS)  36  37 MS. MANDELL:  And I suspect that tab 35 will attract the same  38 argument as the Shelburne documents so we can either  39 mark at this stage just the maps or the whole tab for  40 the -- just the maps as an exhibit or my preference is  41 to mark the whole tab for identification and we will  42 argue it all out another day.  43 THE COURT:  All right.  It will be 1026-35 for Identification.  44 THE REGISTRAR:  Thank you.  45  46 (EXHIBIT 1026-35 FOR ID. - ROYAL PROCLAMATION OCT. 7,  47 1763) 16210  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  COURT:  Where was this article published?  MANDELL:  It was published in Saskatchewan Law Review.  I  can get you the --  COURT:  That's fine, thank you.  MANDELL:  It is probably in the index.  COURT:  Thank you.  MANDELL:  My lord, I am going to distribute another volume.  REGISTRAR:  Volume 3.  MANDELL:  Yes, I'd like it to be given the next exhibit  number.  COURT:  We don't have volume 2.  MANDELL:  Volume 2, we may excise because of the time  problems -- excise from, sorry.  REGISTRAR:  I have volume 2 here.  COURT:  Is this volume 2 or volume 3 then?  MANDELL:  You should have volume 3.  REGISTRAR:  Yours is 3.  COURT:  Yes, all right.  MANDELL:  The first question which we'll be addressing with  respect to these documents at the beginning of this  volume, my lord, is the territory which the British  Crown got by the Treaty of Paris in 1763, and if I  could turn you to the first tab.  REGISTRAR:  Do you want to give it a number?  MANDELL:  Perhaps this could be given the next exhibit  number as well.  COURT:  1027.  REGISTRAR:  1027.  (EXHIBIT 1027 - PLAINTIFF BOOK 3 - DOCUMENTS JAMES  MORRISON)  COURT:  Yes.  WITNESS:  This is the English translation of the Treaty of  Paris, 10th February 1763, between Britain, France,  Spain and with the addition of Portugal.  And the --  by Article 4 at page 115, His Most Christian Majesty,  this is the King of France, renounces his pretensions  to Nova Scotia or Acadia and then the fourth line  down:  "Moreover, His Most Christian Majesty cedes and  guarantees to his said Britannick Majesty, in full  right, Canada, with all its dependancies."  MANDELL:  Q   All right.  1  THE  2  MS.  3  4  THE  5  MS.  6  THE  7  MS.  8  THE  9  MS.  10  11  THE  12  MS.  13  14  THE  15  THE  16  MS.  17  THE  18  THE  19  MS.  20  21  22  23  24  THE  25  MS.  26  27  THE  28  THE  29  30  31  32  33  THE  34  THE  35  36  37  38  39  40  41  42  43  44  45  46  MS.  47 16211  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 A  And at page 116 by Article 7, it states that:  2  3 In order to re-establish peace and to remove  4 forever all subject of dispute with regard to  5 limits of the British and French territories on  6 the continent of America, it is agreed that, for  7 the future, the confines between the dominions of  8 his Britannick Majesty and those of His Most  9 Christian Majesty in that part of the world shall  10 be fixed irrevocably by a line drawn along the  11 middle of the River Mississippi, from its source  12 to the River Iberville."  13  14 And it continues with various rights to the River  15 Mississippi and Mobile, and what's now Alabama.  16 MS. MANDELL:  And what in tab 7 is the subject of dispute which  17 is herein referred to?  18 MR. GOLDIE:  Well —  19 THE COURT:  I understand it was The Seven Year War, wasn't it?  20 MR. GOLDIE:  Well, surely that's a matter of —  21 THE WITNESS:  Well, I mean obviously the overall question is the  22 Seven Years War.  Some of the specifics, though, I  23 believe, related to the fact that in the lengthy  24 negotiations that went on, the French officials,  25 including the Duke Desoiseau (phonetic) kept trying to  26 establish to the great shock, horror and dismay --  27 MR. GOLDIE:  Well, excuse me, my lord, that's purely the  28 witness' characterization.  What he is talking about  29 is the unsuccessful peace negotiations of 1761, all of  30 which were documented.  31 MS. MANDELL:  My lord, this is historical context.  I think that  32 the witness can give his view of it and, if my friend  33 has other evidence to tender or cross, he can do that.  34 MR. GOLDIE:  No, no, I am sorry.  I am entitled to know the  35 facts upon which an expert relies, and if he is going  36 to make any statement, I am entitled to know the  37 documents upon which he founds that opinion.  38 THE COURT:  Well, I'll be happy to have him tell you what  39 documents he founds his opinion on.  I frankly am  40 curious enough to want to know about what he is going  41 to tell me.  But what is it that the French caused so  42 much consternation about, by trying to establish what?  43 THE WITNESS:  They were trying to establish that what was not  44 Canada was Louisiana, and they were attempting to  45 argue that Louisiana had extended as far as -- well,  46 really the area of northeastern Ontario where I  47 presently live but certainly a long way away from any 16212  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 area that had ever remotely been considered part of  2 Louisiana and because Canada was being ceded by the  3 French, that, as I say, the French were --  4 THE COURT:  I see.  What's the source of it?  5 THE WITNESS:  I can name any number of secondary sources;  6 particularly, W.J. Eccles' book on France in America  7 or Jack M. Sosin's book, Whitehall in the Wilderness.  8 These negotiations are set out in --  9 THE COURT:  They describe all these negotiations?  10 THE WITNESS:  Yes.  They describe all these negotiations and the  11 historical facts, I am attempting to use a background.  12 THE COURT:  All right, thank you.  13 MS. MANDELL:  If you could turn then — if that could be  14 marked -- Treaty of Paris marked as the next exhibit.  15 THE COURT:  1027-1.  16 THE REGISTRAR:  Thank you.  17  18 (EXHIBIT 1027-1 - THE TREATY OF PARIS DATED FEBRUARY  19 10, 1763)  20  21 MS. MANDELL:  22 Q   If you could turn then to tab 2?  23 A   These are just a couple of excerpts from a secondary  24 source, namely, the Dictionary of Canadian Biography  25 Volume 1, and they deal with geographical knowledge of  26 North America, and I note on the first page it is a  27 biography, short biography of Francis Drake,  28 suggesting that he may have been the first British  29 subject to sight the coast of -- the Pacific Coast of  30 what's now Canada; that he at least seemed to have  31 been up above San Francisco and this just sets out the  32 historical facts on which Mr. Lamb's short biography  33 is based.  34 Q   All right.  If that can be marked as the next exhibit?  35 A  And the second one is the famous Bartholomew DeFonte,  36 and on the Bowen map which was looked at earlier,  37 there was the reference to the Lac DeFonte, and  38 DeFonte was a nonexistent person but his apocryphal  39 account of the Geography of North America had  40 considerable influence and had appeared on several  41 18th century maps including -- a small portion of it  42 appears on the Bowen map, these lakes and interior  43 areas which didn't exist.  44 MS. MANDELL:  If that could be marked as the next exhibit.  4 5 THE COURT:  Yes.  46  47 (EXHIBIT 1027-2 - DICTIONARY OF CANADIAN BIOGRAPHY) 16213  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  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  MS. MANDELL:  Q   At tab 3?  A   Tab 3 is just an excerpt from various papers and  historical documents which were filed in the extensive  discussions respecting the northern and western  boundaries of Ontario in the 1870s and continued into  the 1880s but I am noting here just a sort of  catalogue of what the French considered Canada to have  consisted of and the -- there are several references  on page 53; for example, they quote from History of  New France, and this is from a 1617 edition, by  L'Escarbot and the translation reads -- it is about  the middle of the paragraph:  "Thus our New France has for our limits..."  THE COURT:  I am sorry?  THE WITNESS:  This is the middle paragraph:  "... on the western side the lands as far as the sea  called the Pacific, on this side the Tropic of  Cancer; on the south, The Islands of the Atlantic  Sea; in the direction of Cuba and the Island of  Hispaniola; on the east by the Northern Sea which  bathes New France; and on the north that land  called Unknown, towards the icy sea as far as the  Arctic Pole."  And it refers here to a map engraved in 1757  purporting to show New France extending as far as the  Pacific Ocean.  And it refers of course to various  expeditions which have been sent out by New France to  Western Canada and the -- on page -- after going  through again various of these listings, on page 55 --  THE COURT:  Where does the quotation end?  As I see they have  reference here to the Columbia River.  THE WITNESS:  This appears to be an editorial, you know,  explanation because of course in Mr. de la Verendrye's  accounts of his explorations he doesn't refer  specifically to the Pacific Ocean and the Columbia,  although he does refer to the western sea, La Mer du  la West, and the river of the west.  THE COURT:  All right.  THE WITNESS: And that's I believe an editorial comment and what  was meant by those statements. And on page 55, at the  bottom there is a reference from 1761 volume by Thomas  Jefferys, a well-known cartographer, and the volume 16214  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 had been titled A Description of New France or the  2 French Dominions in North America.  And it states:  3  4 "Canada, according to the English accounts, is  5 bounded on the North by the Highlands which  6 separates it from the country about Hudson's Bay,  7 Labrador, or New Britain, and the country of the  8 Eskimeaux, and the Christinaux; on the East, by  9 the River St. Lawrence; and on the South, by the  10 Ontawai River, the country of the Six Nations, and  11 Louisiana; its limits towards the West, extending  12 over countries and nations hitherto undiscovered."  13  14 And the European powers of course were in the habit of  15 claiming enormous --  16 MR. GOLDIE:  Well, my lord, I am reluctant to get to my feet  17 once again but we are now reading from something  18 characterized as Unofficial Descriptions of the  19 Boundaries, and this is in most cases, not all, but in  20 most cases after the Royal Proclamation but, whether  21 before or after, is it relevant because the boundary  22 hasn't been fixed?  23 THE COURT:  I think we are about to go on to something else.  24 MR. GOLDIE:  I hope so.  25 MS. MANDELL:  I wonder if that could be marked as the next  26 exhibit.  27 MR. GOLDIE:  I am expressing a formal objection to Unofficial  28 Descriptions of the Boundaries because of the word  29 "unofficial".  30 THE COURT:  These are statutes, documents and papers regarding  31 northern boundaries of the province of Ontario, are  32 they?  Are you pressing for this, Miss Mandell?  33 MS. MANDELL:  Well, I do think that it does form a part of the  34 argument which we make and I don't think that there is  35 anything inaccurate about the fact that the government  36 hasn't made a part of what today would look like the  37 King's printer; it is a collection in the most  38 reputable source compiling this information describing  3 9 at that time what was known.  40 THE COURT:  Well, if we are going to have an argument on this, I  41 think we will mark it for identification and we will  42 deal with it at some other time until I hear something  43 further on it.  44  45 (EXHIBIT 1027-3 FOR ID. - STATUTES, DOCUMENTS AND  4 6 PAPERS - NORTHERN AND WESTERN BOUNDARIES)  47 16215  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 MS. MANDELL:  2 Q   Before we pass, I think I should establish more  3 information then in respect to this document.  What if  4 anything further do you know as to the manner in which  5 the descriptions were compiled in the places where  6 you've referred us to?  7 A   Simply this -- you mean the document at tab 3?  8 Q   Yes.  9 A   It is from a published compilation which was used -- I  10 mean a similar one was when the dispute over the  11 Labrador boundary, various historical documents were  12 collected and bound together and printed as an aid  13 when the -- in this case, this particular discussion  14 went all the way to the privy council or the Judicial  15 Committee of the Privy Council, and a number of these  16 historical documents and et cetera were bound together  17 as material used in those cases and it was a -- it  18 involved Canada, Ontario, Manitoba, in particular.  19 Q   This was the Labrador boundary?  20 A   No.  This one right here, the northern and western  21 boundary of Ontario involved the Ontario boundary  22 where the Ontario boundary was in relation to Manitoba  23 and --  24 MR. GOLDIE:  These were boundary commissions, and my submission  25 was that these were collected for the purpose of  26 settling a boundary which was unsettled.  We are  27 dealing with a boundary that is settled by the  28 document in question.  29 THE COURT:  Well, I marked it for identification.  30 MS. MANDELL:  31 Q   Thank you.  All right.  If you could turn to tab 4?  32 A   Tab 4 is one of the documents on which the French base  33 their claims to North America or large portions of  34 North America and the first two pages of it are the  35 English translation and the last three is actually the  36 original from the French archives.  37 THE COURT:  Is this where they were claiming the extended  38 boundaries of Louisiana?  39 THE WITNESS:  No.  This is where — this is from 1671, and it's  40 quite apparent on its face, it's the Sieur de Saint  41 Lusson, S-a-i-n-t-L-u-s-s-o-n two words, had been  42 delegated by the intendants of New France, second in  43 command of the French colony on the Saint Lawrence  44 River to search for the copper mine in the countries,  45 and then names various Indian nations, discovered and  46 to be discovered in North America near Lake Superior  47 or the Fresh Sea.  And that's a reference of course to 16216  J. Morrison (for Plaintiffs)  In chief by Ms. Mandell  1 the Lake Superior, and it takes place at Sault Ste.  2 Marie, which is both in Ontario and the state of  3 Michigan, the Rapids, the Saint Marie's River between  4 Lake Superior and Lake Huron, and a large number of  5 Indian tribes are there and, according to the French  6 account on page 804, the French thereby in a variety  7 of ways the text states after reading out the name of  8 King Louie the XIV about nine lines down, it states:  9 We take possession of the said place of, in English,  10 Saint Mary of the Falls, actually it is still known as  11 Sault Ste. Marie, as well as of Lakes Huron and  12 Superior, the island of -- and this is Manatoulin  13 Island (phonetic) and Lake Huron, and then -- and of  14 all other countries, rivers, lakes and tributaries  15 contiguous and adjacent thereunto, as well discovered  16 as to be discovered, which are bounded on the one side  17 by the northern and western seas, and on the other  18 side by the south sea, including all its length and  19 breadth, or breadth, excuse me.  And three lines  20 further on, the declaration makes it apparent that,  21 according to the document the various Indian Nations,  22 were dependent on his Majesty subject to be controlled  23 by his laws and to follow his customs, and then in  24 return his Majesty promises them, "All protection and  25 succor on his part against the incursion or invasion  26 of their enemies.  And then it declares unto all other  27 powers that they cannot or ought not seize on or  28 settle in any place in said country, and it's dated 14  29 June 1671.  30 Q   And therein what is the reference to the South Sea?  31 A   The reference to the South Sea is to the Pacific  32 Ocean, the rest --  33 MR. GOLDIE:  My lord, if this isn't tendered for the truth of  34 the matter stated therein, why are we concerned about  35 it?  36 THE COURT:  Well, what is its relevance, Miss Mandell?  37 MS. MANDELL:  Well, my lord, the issue in law which you will  38 hear about in the year is in part what is the  39 territory which was claimed by the French and by the  40 British, and then your lordship will then interpret  41 the scope of the Treaty of Paris as to what the  42 British got when they began to deal with their new  43 acquisitions and you have heard now much about how  44 they have considered that --  45 THE COURT:  But isn't that subtle and conclusive when you term  46 it?  47 MS. MANDELL:  That they got everything the French had or 16217  Discussion  1 claimed, yes, but the question --  2 THE COURT:  Mississippi.  3 MS. MANDELL:  No, that's not conclusively settled.  You are  4 referring to Article 6, the one -- there is two  5 articles that you were referred to, my lord.  One is  6 Article 4.  7 THE COURT:  Treaty of Paris.  8 MS. MANDELL:  By the Treaty of Paris.  One is Article 4, where  9 the French cedes virtually everything that they have  10 to the British and then Article 6 is a more particular  11 article with respect to the area -- I am sorry, it is  12 7 with respect to the area which is now going to be  13 defined between the Mississippi and eastwards, and  14 there will be an argument made to you that the -- by  15 both sides debating on it, I am sure, as to what the  16 scope of the Treaty of Paris is, and with respect to  17 your final judgment as to what Article 4 means, that  18 is what all did the French cede, what did they have to  19 cede and what did the British and the French both  20 believe they received by the Treaty of Paris, you're  21 going to have to have evidence before you as to what  22 each of them claimed to have because, in the end,  23 Britain got everything France claimed and France  24 relinquished her claims to everything that she did so  25 it is going to be part of the argument with respect to  26 the breach of that treaty.  27 THE COURT:  All right.  Well, I am not sure that I follow all  2 8 that and I am not sure that I have to but maybe I  29 will, and I really don't think that there is going to  30 be much difficulty or prejudice with the document and  31 I think a course of caution will be to mark it for  32 whatever purpose it later turns out to have which at  33 the moment is a matter some uncertainty but we will  34 see in due course.  Should we take a short  35 adjournment?  36 MS. MANDELL:  All right.  37  38 (EXHIBIT 1027-4 - NEW YORK COLONIAL MANUSCRIPTS -  3 9 EXTRACTS)  40  41 THE REGISTRAR:  Order in court.  42  43 (PROCEEDINGS ADJOURNED AT 4:03 p.m.)  44 (PROCEEDINGS RESUMED AT 4:15 p.m.)  45  46 THE REGISTRAR:  Order in court.  47 THE COURT:  Ms. Mandell. 1621?  Discussion  1 MR. GOLDIE:  My lord, before my friend starts, in order to save  2 a little time, if my friend is prepared to state that  3 the documents that she's now dealing with are  4 documents which she wishes to have available to her to  5 support the argument that she described to your  6 lordship, then I will state very briefly that I have  7 an objection and then we won't have to have any  8 interruptions with the rest of them but, if my friend  9 can state what the purpose is, then I can -- of the  10 documents in this volume, as it appears to me from a  11 quick review that they are all related to the question  12 of that she described, I don't want to characterize  13 her argument, but as I understood it she said there is  14 an ambiguity or something akin to that in the Treaty  15 of Paris and I will be making a submission and I want  16 to have these documents.  I can agree to their  17 authenticity, that's not a problem; I object to their  18 being entered as exhibits in this case on the grounds  19 that they are irrelevant and that they are argument  20 disguised -- they are disguised as argument.  The  21 opinion -- I should say, disguise -- argument  22 disguised as opinion, but as to the -- if that's what  23 they are in for, then that's my objection.  They can  24 be all marked without any further adieu.  25 THE COURT:  Well, all right.  Are you able to state what —  26 firstly, do they all fall in the same category?  27 MS. MANDELL:  No.  I mean not with respect to the problem is it  28 a Treaty of Paris.  The documents that relate to the  29 specific point as to what it is that the British got  30 with the Treaty of Paris and what there is to be said  31 further about that end at tab 9, and then the rest are  32 dealing with a further point as to the intention of  33 the found with respect to its application of the Royal  34 Proclamation.  35 THE COURT:  All right.  Well, let's deal with the first set, tab  36 4 to 8 inclusive, are these documents ones that you  37 wish to have in evidence so as to support an argument  38 regarding the proper construction to be placed upon  39 some -- upon an ambiguous provision in the Treaty of  40 Paris?  41 MS. MANDELL:  Yes.  That's 1 to 9, yes.  42 THE COURT:  Well then, if your friend says that he has no  43 objection of it being marked as exhibits, it will be  44 available to you for that purpose.  We can go with  45 that.  46 MS. MANDELL:  Go at least to tab 9.  47 THE COURT:  Well, let's deal with that then so we will say 16219  Discussion  1  2  3  4  MR.  5  6  THE  7  8  MS.  9  THE  10  MS.  11  THE  12  13  MS.  14  THE  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  THE  32  33  34  MS.  35  MR.  36  37  38  THE  39  MS.  40  THE  41  42  43  MS.  44  45  46  47  Exhibit 1027, tabs 4 to 8 inclusive, are admitted as  authentic and available for argument on ambiguity,  Treaty of Paris.  GOLDIE:  Of course I don't admit there is ambiguity but  that's what they are there for.  COURT:  If any, if any.  From the Treaty of Paris, all  right.  Now, what about tabs 9 on?  MANDELL:  Tabs 10 onwards.  COURT:  10 onwards or 9 onwards?  MANDELL:  Tab 9 is with respect to the first.  COURT:  4 to 9 inclusive, all right.  Those tabs may be  marked 1027 and the appropriate tab number.  MANDELL:  And tab 10, I am sorry.  COURT:  And 10, all right.  1027, 4 to 10 inclusive.  All  right.  (EXHIBIT 1027-5 - A VIEW OF HISTORY POLITICS 1763)  (EXHIBIT 1027-6 - SECOND CHARTER OF VIRGINIA 1609)  (EXHIBIT 1027-7 - NATIVE RIGHTS - K. McNEIL)  (EXHIBIT 1027-  ORDERS IN COUNCIL RE HUDSON'S BAY  CO. )  (EXHIBIT 1027-9 - TREATY OF UTRECHT 1713)  (EXHIBIT 1027-10  WHITEHALL AND THE WILDERNESS J.M.  SOSIN)  COURT:  Now, from tab 11 on, they are for the purpose of  showing the Crown's intention with respect to the  operation of the Royal Proclamation?  MANDELL:  That's right.  GOLDIE:  Well, on what principle is my friend tendering  those and on what principle is my friend relying on  tendering it on that basis?  COURT:  You are advancing to prove the intention?  MANDELL:  Yes, and prove — that's right.  COURT:  Are they capable of proving that intention?  I  haven't read any of them.  Never seen any of them  before.  MANDELL:  I hope you will agree with us that they are.  This  is -- your lordship is going to be asked to interpret  the phrase, the Indians with whom we are connected and  to live under our protection, and that phrase is one  which, in our submission, in interpreting that phrase 16220  Discussion  1 you are going to be drawn to how the Crown interpreted  2 it themselves in their dealings with the Indian  3 Nations subsequent to 1763 and, in our view, when you  4 do interpret that phrase in light of the documents  5 which you're going to have presented to you, you are  6 going to be urged into a view as to the territorial  7 reach of the Proclamation.  8 THE COURT:  Does it go any further than the category that we  9 just dealt with; that is, that you want these  10 documents in a classification or status where you can  11 use them to support an argument?  12 MS. MANDELL:  Yes.  I would use them to support an argument.  13 But, you know, my lord, I also say that a great many  14 of these documents must in our submission be seen in  15 their historical context.  It is not the document  16 simply on its face that we intend to rely.  17 THE COURT:  Well, that doesn't trouble me because I have the  18 view that counsel are just as competent to give me the  19 historical context as the witness is even if the  20 counsel is reading from a historical opinion.  I mean,  21 there is nothing magic about having these words  22 mouthed in the witness box if they don't come from the  23 personal and unique knowledge of the witness, unless  24 they fall within that category of scientific matters  25 that a mind of a judge can't understand, and I think I  26 can be as convinced by counsel as I can by a witness  27 of what the documents mean and I think that every road  28 should be paved for the ease of counsel in having the  29 documents available from which to make the argument,  30 but I must confess to some serious temptations to  31 short-circuit the need for viva voce evidence to  32 establish what I think counsel can do on their own.  I  33 mean, what is the advantage that you, for which you  34 contend in having the witness who obviously has made  35 the selection of documents for you, in having him  36 describe them and you argue from them again using the  37 same descriptions?  He selected them; he's put you in  38 a position to put them before me and if I somehow  39 either mark them as exhibits for this purpose or I  40 give you leave to put them in a separate brief that  41 can be used in argument, what's then lacking in the  42 presentation of your case?  43 MS. MANDELL:  Well, my lord, there is connection to be made  44 between the documents which in my submission somebody,  45 especially when we get into the documents which we are  46 going to get into now, which deal with the operation  47 of the fur trade in America.  I mean, you say that 16221  Discussion  1 counsel is in a position to be able to give what a  2 historian could do with respect to the context.  I say  3 that maybe or maybe not, but the connections there are  4 there to be made by somebody who's seeped their life  5 in the history of the fur trade.  6 THE COURT:  Why can't that expert, that consultant, tell you  7 what that connection is and you tell me?  8 MS. MANDELL:  Well —  9 THE COURT:  Why do we have to do it twice?  10 MS. MANDELL:  I don't believe we are going to do it twice in  11 that sense.  I think we are going to get from the  12 expert the background that he brings to the discussion  13 in light of the document, and from counsel you're  14 going to get how or in what way that document may fit  15 into a matrix of legal argument framed on one legal  16 point or another, and I don't believe that they are  17 identically the same thing.  If I did, then there  18 would be no purpose in calling an expert with respect  19 to any of the historical matters.  I mean, if your  20 lordship's view is that all history could be done by  21 lawyers, then I say that in my view at least we are  22 cutting the line in a way that is probably way too far  23 into presuming knowledge that lawyers have or can know  24 for the —  25 THE COURT:  When you are dealing with the question of history  26 there is no limit to how much history there is.  27 MS. MANDELL:  Well —  28 THE COURT:  If counsel have the facility to rely on the  29 documents to support an argument, and that problem is  30 cleared away, it seems to me there is no advantage to  31 having the witness go through them seriatim  32 laboriously.  For example, if I marked all these  33 exhibits for the purpose of being used for argument  34 and I say, all right, I want written argument, you  35 could have the witness write the argument and you  36 write the opening sentence and the last sentence, and  37 we have accomplished a whole -- as much as we can hope  38 to accomplish I think.  39 MS. MANDELL:  Well, my lord, I think that there is two separate  40 issues:  One is what the historical context is within  41 which the Proclamation was applied by the Crown, and  42 that is something that was -- this witness is in a  43 position to give.  The second argument is an opinion  44 as to what that tells us regarding Crown policy.  I  45 have hoped that that would also come from the witness.  46 And the third argument is once that Crown policy is  47 understood, what effect, if any, does it have with 16222  Discussion  1 respect to the way that the law is to be interpreted  2 to the Indian people of British Columbia?  And that  3 area I agree is going to be completely a matter of  4 legal argument but I say that the -- perhaps the  5 secondary is one that will have to be left to counsel  6 although I don't at this stage agree that it is  7 appropriate and the first area, that is the historical  8 context within which these events played themselves  9 out in my mind is, and I submit is a matter for -- it  10 could be if your lordship -- if your lordship sees the  11 historical period as simply a chain of documents, then  12 I understand that we may end up having to refer to  13 them in legal argument alone but, in my view, the  14 historical period is taken from the documents, they  15 both state them, and they also can explain it, and  16 that's what we are here to advance to your lordship.  17 THE COURT:  Miss Mandell, you are much too young to be so set in  18 your ways.  Surely we have to, in a case like this,  19 find a way to deal with these things other than by the  20 witness going over documents in this way.  We just  21 have to find a better way to do these things.  And it  22 seems to me that this is in a matter of history.  If  23 we were talking about physics or chemistry, which I  24 don't understand and can't expect to understand even  25 by the written word, I would say that it would have to  26 be explained by a witness, but history is far too  27 vast, far too unspecific and far too unmanageable to  28 have it explained in the witness box.  It has to be  29 proven by documents and it has -- or by -- in the case  30 of an oral history by those who remember it, and  31 explained by counsel, and I see no harm to anyone by  32 taking that easier route.  33 I am not going to foreclose the matter.  I'd like  34 to hear whether Ms. Koenigsberg has anything to  35 suggest in this area.  36 MS. KOENIGSBERG:  I don't know that I can be of really further  37 assistance, my lord.  I fail to see the value,  38 particularly when it is, in my submission, a matter of  39 appropriate legal argument to have the witness read  4 0 out the documents.  There have been from time to time  41 some editorial comment which I suppose I would have to  42 say thankfully has been brief, and there is an issue I  43 suppose about its admissibilities, but essentially  44 what we are engaged here and have been engaged in for  45 a day and a half is a collection of documents from  46 which the witness is reading and then saying this was  47 significant and this one goes with that one and, in my 16223  Discussion  1 submission, my friend is not only entitled but  2 undoubtedly will do the same in argument, and I do  3 fail to see how their can be anything lacking, any  4 evidence before your lordship if it were to be dealt  5 with other than through the witness in this matter.  6 THE COURT:  Thank you.  Mr. Goldie, anything else you want to  7 say?  8 MR. GOLDIE:  Nothing further, my lord.  9 THE COURT:  All right.  Miss Mandell, you have heard what Ms.  10 Koenigsberg says and you heard what Mr. Goldie doesn't  11 say.  Have you anything else you want to say?  12 MS. MANDELL:  My lord, I want to, if I could ask your lordship  13 to summarize the proposition more clearly.  I hope  14 that I have -- I understand it but I may not.  15 THE COURT:  Well, when you have a situation where you have a  16 body of knowledge which counsel wish to place before  17 the court and it is something that a -- a mind  18 untrained in that discipline cannot be expected to  19 understand it, then it becomes necessary to have  20 opinion evidence and technical assistance.  When you  21 are dealing with a matter of history where the  22 evidence flows from documents and which the witness  23 does not have personal knowledge of but is merely  24 using his intellectual advantages to make the  25 selection and explain the significance of them, then  26 it seems to me that the sensible course to follow is  27 to give counsel opportunity to ensure that the right  28 documents are identified, either by being marked as  29 exhibits or by being collected together in some way  30 and identified in that way, and for the significance  31 and the connection between them to be explained by  32 counsel in argument, keeping in mind that counsel in  33 such circumstances is at liberty to read from a  34 briefing paper or opinion of an expert.  There is no  35 advantage to be gained as I presently see it in having  36 the person who collects the documents explain them to  37 me when it is going -- when it is inevitably going to  38 be done again by counsel in argument.  39 Now, I confess that there is some advantage in  40 having myself exposed to what the witness says about  41 them; for example, where he was able to say that Lord  42 somebody was the Secretary of State for the southern  43 department and he will explain what that was and who  44 somebody's brother was and where Lord Grenville came  45 from because he hadn't appeared until poor old, not  4 6 Egmont but --  47    THE WITNESS:  Egremont. 16224  Discussion  1 MR. GOLDIE:  Egremont.  2 THE COURT:  Egremont died, but it seems to me those things can  3 also be given to me by counsel who would have at the  4 time of an argument probably the expert with them  5 anyway, and it can be given to me by counsel and,  6 therefore, my conclusion is that I don't see any  7 advantage in the witness going through the documents  8 seriatim and having them laboriously identified and  9 marked the way we have been going, interesting as it  10 has been, when I know full well it is all going to be  11 done by counsel again in argument.  12 My conclusion, therefore, to which I have driven  13 myself is that I should only be concerned at this  14 stage in ensuring that the documents are in some  15 suitable way made available for you in argument and  16 that is, as I say, that's what I am driven to.  I  17 think however that having regard to the time of day,  18 that it might be useful if, having stated what I have  19 just said, we were to adjourn and resume this tomorrow  20 morning because counsel will have a chance to think  21 about it and to perhaps approach it differently and  22 persuade me that what I am posing is an impermissible  23 shortcut.  Will that be a reasonable way to perceive  24 it?  25 MS. MANDELL:  I think so.  26 THE COURT:  I will be glad to hear you further on it in the  27 morning.  Ten o'clock then.  Thank you.  28 THE REGISTRAR:  Order in court.  Court will adjourn until 10:00  29 a.m.  30  31 (PROCEEDINGS ADJOURNED AT 4:40 p.m. TO APRIL 26, 1989  32 at 10:00 a.m.)  33  34 I hereby certify the foregoing to be  35 a true and accurate transcript of the  36 proceedings herein, transcribed to the  37 best of my skill and ability.  38  39  40  41  42  43 TANNIS DEFOE, Official Reporter  44 United Reporting Service Ltd.  45  46  47

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