At a later date, however, recognition of such grants was forthcoming in the most formal manner possible. In the official "Red River Settlement Register, B," (b) now lying in the Company's vault at Winnipeg, full particulars will be found of the " Acres granted by Lord Selkirk,” placed in a separate column, and carefully distinguished from the " Acres granted by Hon. H. B. Co.," which are entered in another column, so that there shall be no confusion. This of itself is a sufficient recognition, for every legal purpose, of the titles of the settlers prior to the Company's occupation, so it is unnecessary to give further illustrations to the same effect, which might be easily adduced.

Now as to the recognition by Canada of the titles of both earl and Company.

It has been seen (c) that No. 15 of the "terms and conditions" under which Canada acquired Rupert's Land was that "all titles to land up to the eighth day of March, 1869, conferred by the Company, are to be confirmed." There is no mention of titles conferred by Lord Selkirk, nor is it necessary that there should be, for the earl's title itself was conferred by the Company," and this greater grant would include the lesser grants made by him under it.

The following provisions of the Manitoba Act, 33 Vic. cap. 3, assented to May 12, 1870, show the way in which Canada confirmed the titles of the Company:

Sec. 32. For the quieting of titles, and assuring to the settlers in the province the peaceable possession of the lands now held by them, it is enacted as follows:

1. All grants of land in freehold made by the Hudson's Bay Company up to the eighth day of March, in the year 1869, shall, if required by the owner, be confirmed by grant from the Crown.

2. All grants of estates less than freehold in land made by the Hudson's Bay Company up to the eighth day of March aforesaid shall, if required by the owner, be converted into an estate in freehold by grant from the Crown.

(b) Particulars of this and other registers will be found on a later page. (c) Pp. 19, 20.

3. All titles by occupancy with the sanction and under the licence and authority of the Hudson's Bay Company up to the eighth day of March aforesaid, of land in that part of the province in which the Indian Title has been extinguished, shall, if required by the owner, be converted into an estate in freehold by grant from the Crown.

4. All persons in peaceable possession of tracts of land at the time of the transfer to Canada, in those parts of the province in which the Indian Title has not been extinguished, shall have the right of pre-emption of the same, on such terms and conditions as may be determined by Governor in Council.

5. The Lieutenant-Governor is hereby authorized, under regulations to be made from time to time by the Governor-General in Council, to make all such provisions for ascertaining and adjusting on fair and equitable terms, the rights of common, and rights of cutting hay held and enjoyed by the settlers in the province, and for the commutation of the same by grants of land from the Crown.

The scope of the third and fourth sub-sections was enlarged by 38 Vic. cap. 52 (1875), which repealed a similar enactment of the prior year, 37 Vic. cap. 20, as follows:

3. Whereas it is expedient to afford facilities to parties claiming land under the third and fourth sub-sections of the thirty-second section of the Act thirty-third Victoria, chapter three, to obtain Letters Patent for the same :

Be it enacted, that persons satisfactorily establishing occupancy of any lands within the province prior to, and being by themselves or their servants, tenants, or agents, or those through whom they claim, in actual peaceable possession thereof, on the fifteenth day of July, 1870, shall be entitled to receive Letters Patent therefor, granting the same absolutely to them respectively in fee simple.

Chapter 48 of the Revised Statutes of Canada embodies the results of these enactments; but there is a proviso in the third clause of the chapter to the effect that all claimants for letters patent for estates in fee by reason of "undisturbed occupancy," or "actual peaceable possession," must make application before May 1, 1886, otherwise their rights shall cease, and determine. This proviso is on the face of it illegal, but in any event neither the Department of the Interior nor the Dominion Lands Commission has ever attempted to enforce it, regarding it, properly, as a dead letter.

Sub-section 1 of section 32 expressly recognizes that there had been "grants of land in freehold " made by the Company, but for some reason this proper view was not acted upon. How it arose, unless from the expressions of Sir George Simpson and Mr. McTavish, who ought to have known better, it is impossible to say; but the fact remains, from whatever cause, that the Department of the Interior became imbued with the idea that all the estates granted by the Company were leaseholds, and, acting on this assumption, for years granted patents to the personal representatives of the deceased owner instead of to his heir-at-law, who, primogeniture being in force in Manitoba until the passing of the Intestacy Act on May 3, 1871, was solely entitled, save dower to the widow.

The Deputy Minister of the Interior, Mr. A. M. Burgess, was peculiarly wedded to this fallacy, and it was mainly owing to his misdirected exertions that this illegal policy was persisted in. In a letter written by him on January 4, 1888, to the Secretary of the Interior, he maintains that it was not the practice of the Company to grant other than leaseholds, therefore the lands, or rather the leasehold interest in them, must be dealt with by the Government as personalty.

As no one seemed willing to take the trouble to really investigate the matter, this idea gained ground until the Manitoba bar came to look upon it as right, and as did even certain of the bench to such an extent that, so late as 1892, in a case (d) in which the writer was engaged, he heard the announcement of counsel that there were estates of freehold in Assiniboia, received with incredulity by the presiding judge, who later had to admit the fact to be as stated. What makes it more surprising is that the late Chief Justice Wood, of Manitoba, a man of very great ability, held so early as 1873, as might have been expected, the proper view of the

(d) Templeton v. Stewart, 3 Western Law Times Reports, 189. Vide Appendix N.

question; this may be seen by referring to his finding, or report (e), as commissioner under the Manitoba Act, on certain conflicting claims to Lots 164 and 165 in the parish of Baie St. Paul. This is what the Chief Justice says:

It will be observed that John Tait left him surviving a widow, Isabelle Hallet, and children, Christina, James, Elizabeth, Barbara, and Andrew. If John Tait died before the passing of the Manitoba Act, James would probably take the land, subject to the dower of his mother, which, in the case of this land, would be worth next to nothing. If John Tait died subsequent to the passing of the Manitoba Intestacy Act, the 3rd of May, 1871, the land would go, one-third to the widow, and the remaining two-thirds would be equally divided among the remaining five children.

Nor is there wanting a judicial finding as to the fact of there having been estates in fee simple in Assiniboia. In Hilary Term, 1875, in the case of McKenny v. Spence, Man. temp. Wood, 11, the then Full Court of Queen's Bench for Manitoba, Wood, C.J., presiding, found (page 16) that Stephen Green was, on May 20, 1860, "seized of an absolute estate in fee simple in possession in and to Lots 241 and 242 according to the Hudson's Bay Company's survey," situate on Point Douglas, now part of the city of Winnipeg. This seems plain enough, but as has been seen, Mr. Burgess, fifteen years after, still maintained a contrary and erroneous opinion. officials of the Land Titles Office at Winnipeg, where the Torrens Act is in force, were naturally of the prevalent opinion, until recently, that the estates held by the old settlers were leaseholds. But there was this difference between their conduct and that of the Deputy Minister of the Interior, they could see no reason why there should not have been estates in fee simple in Assiniboia, and readily abandoned the idea that there were only leaseholds in face of facts to the contrary. Not long after the Torrens Act was introduced in Manitoba, in 1885, they had held that the

The

(e) Quoted in letter from Dominion Lands Commissioner to Secretary of Interior, dated Nov. 19, 1891.

Sub-section 1 of section 32 expressly recognizes that there had been "grants of land in freehold " made by the Company, but for some reason this proper view was not acted upon. How it arose, unless from the expressions of Sir George Simpson and Mr. McTavish, who ought to have known better, it is impossible to say; but the fact remains, from whatever cause, that the Department of the Interior became imbued with the idea that all the estates granted by the Company were leaseholds, and, acting on this assumption, for years granted patents to the personal representatives of the deceased owner instead of to his heir-at-law, who, primogeniture being in force in Manitoba until the passing of the Intestacy Act on May 3, 1871, was solely entitled, save dower to the widow.

The Deputy Minister of the Interior, Mr. A. M. Burgess, was peculiarly wedded to this fallacy, and it was mainly owing to his misdirected exertions that this illegal policy was persisted in. In a letter written by him on January 4, 1888, to the Secretary of the Interior, he maintains that it was not the practice of the Company to grant other than leaseholds, therefore the lands, or rather the leasehold interest in them, must be dealt with by the Government as personalty.

As no one seemed willing to take the trouble to really investigate the matter, this idea gained ground until the Manitoba bar came to look upon it as right, and as did even certain of the bench to such an extent that, so late as 1892, in a case (d) in which the writer was engaged, he heard the announcement of counsel that there were estates of freehold in Assiniboia, received with incredulity by the presiding judge, who later had to admit the fact to be as stated. What makes it more surprising is that the late Chief Justice Wood, of Manitoba, a man of very great ability, held so early as 1873, as might have been expected, the proper view of the

(d) Templeton v. Stewart, 3 Western Law Times Reports, 189. Vide Appendix N.