extended to the Lake of the Woods and the Mississippi river (a.)

Thus by the action of the Imperial and Provincial Governments, when the new Province of Upper Canada was constituted, the northern limit of Upper Canada was placed at Hudson's Bay, and the western limit at the Lake of the Woods-the boundaries fixed by the Award (b). But the Dominion ignores these prerogative acts of the Imperial Government -which, at the time the acts were performed, had plenary jurisdiction over the subject matter of these boundaries.'

The Dominion despatch of the 27th January, 1882, accepts and approves of the findings of the report of a Committee of the House of Commons, made in 1880, as follows:

'In reference to the award made by the arbitrators on the 3rd August, 1878, a copy of which is appended, your Committee are of opinion that it does not describe the true boundaries of Ontario. It seems to your Committee to be inconsistent with any boundary line ever suggested or proposed subsequent to the Treaty of Utrecht (1713). It makes the Provincial boundaries run into territories granted by Royal charter in 1670, to the Merchant Adventurers of England trading into Hudson Bay; and it cuts through Indian territories which, according to the Act 43 George III., cap. 138, and 1 and 2 George IV., cap. 66, formed no part of the Province of Lower Canada or Upper Canada, or either of them; and it carries the boundaries of Ontario within the limits of the former colony of Assiniboia, which was not a part of Upper Canada.'

(a) Surveyor-General Smith's Upper Canada, 1799, p. 3.

After

(6) The extent of Ontario may be thus stated:- Area of Ontario within the limits claimed by the Dominion viz.: a line drawn due north from the confluence of the Ohio and Mississippi rivers on the west, and the height of land on the north:-100,000 square miles, or 64,000,000 acres. Area of Ontario under the Award of the Arbitrators, 3rd August, 1878-197,000 square miles, or 126,000,000 acres an addition of 62,000,000 acres. the award was published in 1878, Britannicus, a correspondent of the Montreal Gazette, estimated the land value of the disputed territory at $65,000,000. At the Detroit Trade Convention, in 1866, the Hon. James Skead, estimated that there were 60,800 square miles of pine timber in the territory drained into Lakes Huron and Superior; and during a late debate (1882), in the Legislative Assembly of Ontario, Mr. J. C. Miller, M.P. P., estimated the value of the timber within the disputed territory at $125,000,000.

The answers to these allegations are: 1. That the French claimed that the boundaries of Canada or Nouvelle France extended to Hudson's Bay; and it was shown to the arbitrators that the French had built and occupied forts near to the Bay, after the Treaty of Utrecht.

And the award finds in favour of the French suggested or proposed' boundary line.

2. That as a matter of prerogative law, the Crown had the right to extend the civil government of Upper Canada over any territories granted to its subjects, or granted to the Hudson's Bay Company; or had the right to assert the French sovereignty, which it had displaced, as against the Company's claims. The subjects of the Crown in those territories were entitled to the benefits of the Crown's government And a further answer to this report may be found in the opinion given by the Law Officers of the Crown in 1857: 'With respect to any rights of government, taxation, exclusive administration of justice, or exclusive trade otherwise than as a consequence of a right of ownership of the land, such rights could not be legally insisted on by the Hudson's Bay Company, as having been legally granted to them by the Crown' (a).

The award also finds in favour of the Crown's prerogative right to extend the civil government of Upper Canada to the shores of Hudson's Bay.

3. The Act of 43 George III., ch. 138 (1803), was passed in consequence of crimes committed in the Indian territories; and those territories can only be ascertained by reference to the localities where the crimes referred to in the Act had been committed prior to its passing. Lord Selkirk, shortly after the occurrences, gave a detailed account of the crimes, and referring to the Act stated: This vague term, "Indian territories" has been used without any definition to point out the particular territories to which (a) Boundary Documents, p. 201.

the Act is meant to apply. There are, however, extensive tracts of country to which the provisious of the Act unquestionably do apply, viz. those which lie to the north and west of the Hudson's Bay territories, and which are known in Canada by the general name of Athabasca. It was here that the violences which gave occasion to the Act were committed, and these are the only districts in which a total defect of jurisdiction described in the preamble of the Act was to be found' (a).

But the Committee ignores Lord Selkirk's testimony.

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4. The reference to the 'colony of Assiniboia,' illustrates the questionable value of the findings of the Committee. This pseudo colony' was a trading district of the Hudson's Bay Company, originally established by Lord Selkirk (b), under a grant of territory from a squatter company called the North-West Company, which, without any grant or charter from the Crown, had intruded into the western territory previously occupied by French traders prior to the conquest. Lord Selkirk sold his title to the Hudson's Bay Company, and they re-granted to him in 1811. In 1814, Mr. Miles McDonell issued a 'proclamation' setting forth that the Hudson's Bay Company had ceded the territory called Assiniboia to Lord Selkirk, the limits of which he set out-and that he (Miles McDonell) had been duly appointed Governor' (c). In 1839, the Hudson's Bay Company declared the territory to be the 'district of Assiniboia.' Such was the origin of the so-called 'colony,' the

(a) Sketch of the British Fur Trade in North America, pp. 85-6. This statement is confirmed by the evidence of Mr. Mills (p. 27); Mr. D. A. Smith (p. 52); and others before the Committee.

(b) In the proceedings before the Boundary Committee, the following was stated by an exofficer of the Hudson's Bay Company: Q. 326. Did Lord Selkirk get any charter from any power? A. Lord Selkirk was an usurper.'

(c) Report of Boundary Committee, House of Commons, pp. xix, and 48; Boundary Documents, p. 28.

'limits' of which the Committee report have been intruded upon by the award.

This so-called 'proclamation' describing the boundaries of the colony of Assiniboia,' was produced in Toronto, in 1818 (a), at the trial of Brown and others for the murder of 'Governor' Semple, a predecessor of 'Governor' Miles McDonell; and Powell, C. J., facetiously observed as to his title: You may call him, or they may call him, just what you or they will: Landlord, Master, Governor, or Bashaw' (b). Mr. Sherwood in his argument for the prisoners said: "This issuer of proclamations might as legally have issued a proclamation forbidding the people of Yonge Street to come to York Market' (c).

The Committee struggled to get evidence that the Crown had recognized this 'colony'(d). One witness stated

(a) Trial of Brown et al. p. 98. (b) Ibid., p. 80. (c) Ibid. p, 92. (d) This is illustrated by some questions and answers given in the report. One witness was asked:

277. I understand you to say Assiniboia was a Crown colony? Not precisely, except as being under the Crown as delegated to the Hudson's Bay Company.

278. It was fully recognized as a Crown colony? It was recognized as a colony.

Another witness was thus examined: 417. Do you know of the existence of the colony of Assiniboia? Yes; Lord Selkirk's colony.

418. This colony was a regular Crown colony? No; it was not.

419. You do not admit it was? No; it was a local establishment of the Hudson's Bay Company; the Crown had nothing to do with it.

420. It was first Lord Selkirk's colony. In 1838 it was adopted by the Hudson's Bay Company, and then it was treated in some measure as a Crown colony? I must say there no Crown colony established by the Crown in Assiniboia.

was

421. Are you aware it was recognized as a Crown colony, and that Recorders were appointed, having civil and criminal jurisdiction under commissions issued by the Crown in England? Recorders were appointed under commissions issued by the Hudson's Bay Company.

422. Yes; under their charter from the Crown of England, as they claim? The Crown appointed no officers with civil or criminal jurisdiction in Assiniboia.

that it was so recognized because the Duke of Wellington had sent troops there in 1846, so that in view of any trouble in respect of the Oregon question, they might be made available on the other side of the mountains ;' and again, most certainly the Duke of Newcastle recognized as a possible event that the Crown of England might make a crown colony of it. I believe it was a mere accident that it was not done.' On such evidence the Committee report that, 'the colony of Assiniboia was to some extent recognized by the Imperial Goverment,' and that it was never treated as part of the Province of Upper Canada' (a).

To students of Crown law it will appear novel that the Crown's Proclamation of 1791 could be revoked or limited, or affected, by a grant or sale of a squatter's claim, or by a 'proclamation' issued in 1814, by the bailiff of Lord Selkirk, or subordinate of a trading corporation, calling himself 'governor of Assiniboia.' An act of co-ordinate power was performed within the same territory by M. Louis Riel in 1869, when he assumed the equally executive title of 'President;' and under an equally effective assumption of prerogative, issued a proclamation establishing the 'Provisional Government of Assiniboia.' Riel's government displaced the 'governor' who held his position by virtue of his succession to the title inaugurated by Mr. Miles McDonell in 1814. And the Hudson's Bay Company, which had constituted the territory as a 'colony,' and created the office of 'governor,' abandoned its powers of government, and recognized Riel and his confederates as a legal government within the territorial limits of the colony of Assiniboia' (b). The Committee are silent on the analogy

(a) Report of Boundary Committee, House of Com., 1880, pp. xxi, and 96.

(b) Report on the Difficulties in the North West Territories; Journal of the House of Commons, 1874, Appendix, p. 26. Statement of claims consequent upon the insurrection in the North-West Territories.-Canada Sessional Paper, No. 44. 1871, pp. 29-30.

between these two historic acts of coordinate prerogative assumption. But the logic of their finding as to the invasion of the Ontario boundaries on the limits of Assiniboia is that a proclamation by a bailiff of Lord Selkirk or of the Hudson's Bay Company, did limit or interpret the territorial operation of the Crown's Proclamation, of 1791. The converse proposition: whether Lord Selkirk or the Hudson's Bay Company by the so-called 'proclamation had not intruded upon the Crown's limits of Upper Canada, was not considered by the Committee.

The agreement between the two political sovereignties of Canada and Ontario, referring this question of the disputed boundaries of Ontario to arbitration became binding on each government when approved as Orders in Council, by the Representatives of the Crown in the Dominion and Province respectively, and pledged the good faith and honor of the Crown that the agreement would be carried out; and therefore for the purposes of this arbitration, must be treated as subject to all the incidents of a Treaty between two independent states.

In a similar case of an agreement between subordinate governments in India, the English Court of Chancery thus held: It is a case of mutual treaty by persons acting in that instance as states independent of each other; and the circumstances that the East India Company are mere subjects, with relation to this country, has nothing to do with that. That Treaty was entered into with them, not as subjects but as a neighbouring independent state, and is the same as if it was a Treaty between two sovereigns' (a).

It is a rule of International Law that 'where a nation has tacitly or expressly conferred upon its executive department, without reserve, the right of treating with other states, it is considered as having invested it with all

(a) Nabob of Carnatic v. East India Company, 2 Ves., Jun. 60.

the powers necessary to make a valid

contract.

That department is the organ of the nation; and the alienations by it are valid, because they are done by the reputed will of the nation' (a).

Treaties when made by the competent power, and Awards made in pursuance of such Treaties, are, according to the ethics of nations, obligatory and binding on states as private contracts are binding upon individuals. If the Treaty requires an Act of the Legislature to carry it into effect, the Treaty is morally obligatory upon the legislature to pass the law; and to refuse it would be a breach of public faith' (b). No nation can violate public law and public faith without being subjected to the penal consequences of reproach and disgrace' (c).

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In the future of Canada and of the several Provinces, territorial and financial disputes may occur, which may appropriately be referred to tribunals of arbitration. For the safety of their future, and for the faithful observance of the pledged faith and honour of the Crown in their Governments,

(a) Kent's Commentaries, vol. i., p. 167.

(b) Kent's Commentaries, vol. i., p. 166. Treaties have been confirmed by the following Imperial Acts, 22 Geo. III. c. 46; 2 & 3 Vic. c 96; 7 Vic. c. 12; 15 Vic. c. 12; 25 & 26 Vic. c. 63; 31 & 32 Vic. c. 45; 33 & 34 Vic. c. 52; 35 & 36 Vic. c. 45; 38 & 39 Vic. c. 22; 39 & 40 Vic. c. 80.

(c) Kent's Commentaries, vol. i., p. 182.

Ontario cannot afford to waiver in holding firmly and fairly by the Award. In this controversy with the Dominion she stands forth as the representative of all the Provinces, and any abandonment by her of this Award would establish what to other Prov inces might form an inconvenient precedent for a future breach of public faith,' or-repudiation.

The able state paper of the 18th February, 1882, which sets forth Ontario's reply to the Dominion despatch, earnestly and temperately discusses the long and unexplained delay of the Dominion rulers in announcing their repudiation of the Award. It shows the uselessness and delay of a new arbitration and declines it; and then pleads for the sake of the development and settlement of the territory, the maintenance of order, and the due administration of justice therein,' the just course' of obtaining, without further delay, the Parliamentary recognition of the Award as a final adjustment of the boundaries of the Province, adding: the evils already endured are beyond recall; but the continuance or aggravation of them from this time forward is in the hands of your [Dominion] Government' («) -words which will find many an echo throughout Ontario.

THE THE representation of a Greek play on the stage of a Canadian University theatre marks an era in classical culture amongst us deserving of something more than a passing notice. It may, moreover, excite some interest in the approaching performance of the Antigone of Sophocles, the tragedy selected for representation, if we present in popular form a brief outline of the play, with some account of its author and his influence on Greek tragic art.

Sophocles was born at Colonus, a village situate about a mile from Athens, about 500 BC. To be strictly accurate, our poet first saw the light five years after the dawn of the fifth century before the Christian era, and left the upper air' five years before its close. His long life was, therefore, passed in the most momentous and eventful epoch of Grecian history. His early childhood witnessed the heroic struggle of his countrymen against the repeated attacks of the Persian monarchy-a struggle in which public liberty and individual progress were matched against Oriental despotism and slavish subjection, and which, fortunately for the destinies of Europe and the history of mankind, terminated signally in favour of the former. He was scarcely five years old when he saw the return of the victorious Athenians from the glorious field of Marathon. It reads like the exploits of a fairy tale, that on that memorable plain a little band of ten thousand Greeks, with footsteps insupportably advanced,' met and defeated an invading host numbered by hundreds of thousands, the flower of Median chiv

alry. Yet the researches of Dr. Schliemann's spade on Mount Athos have somewhat weakened the sweeping charge of mendacity brought by the the Roman satirist against the Greek historians. But whatever may have been the numbers engaged, it sufficiently illustrates the spirit-stirring patriotism of the age that here the warriors of a single Greek city, aided by a contingent of 800 hoplites from Platæa, fought and won, against overwhelming odds, the most decisive battle of historic times.

The poet Eschylus, the illustrious predecessor of Sophocles on the tragic stage, distinguished himself at Marathon, and, ten years later, from the Grecian lines, saw the destruction of the proud armament of the barbarians off the sea-beat isle of Ajax.' It was in this same year (480 B. C.) that Euripides was born; and so we have the names of the Greek tragic triad associated with the most notable events in their country's history. When the exultant Athenians, after the disastrous overthrow of the invaders at Salamis, were marching in procession to the shrine of Minerva and making the temple-crowned Acropolis ring with shouts of Io Kallinike!' it was the comely son of Sophillus, then only in his sixteenth year, who stept to the front as leader of the garland-bearing train of youths who chanted the song of triumph in celebration of the victory. What an auspicious introduction to Athenian society! Hitherto, he had only given satisfactory evidence of his having profited by the excellent education his father had provided for him by