be referred to the Judicial Committee of the Privy Council, in accordance with the opinion of the Law Officers of the Crown, given so long ago as July 1857, as the only tribunal to which ought to be delegated the construction of a Charter emanating from the Sovereign of Great Britain. This opinion your Grace will find at page 404 of the Report from the Select Committee on the Hudson's Bay Company, ordered, by the House of Commons, to be printed the 31st July and 11th August 1857. COPY of a LETTER from T. Frederick Elliot, Esq., to the Right Hon. Sir Sir, Downing-street, 18 January 1868. I AM directed by the Duke of Buckingham and Chandos to transmit to you, No. 2. T. F. Elliot, 18 January 1868. for the information of the Committee of the Hudson's Bay Company, a copy of a No. 107, 21 Dec. Despatch which has been received from the Governor General of Canada, 1867, page 1. accompanied by a copy of the Address to Her Majesty from the Senate and Commons of Canada, praying that steps may be taken for uniting Rupert's Land and the North West Territory with the Dominion of Canada. I have, &c. (signed) T. Frederick Elliot. COPY of a LETTER from T. Frederick Elliot, Esq., to the Right Hon. Sir Sir, I have, &c. (signed) T. Frederick Elliot. COPY of a LETTER from the Right Honourable Sir E. Head, Bart., K.C.B., to His Grace the Duke of Buckingham and Chandos. My Lord Duke, Hudson's Bay House, London, No. 4. Right Hon. Sir E. Head, Bart., K.C.B., to His Grace the Duke of Buckingham and Chandos. I HAVE the honour to acknowledge Mr. Elliot's Letter, of the 18th instant, 25 January 1868. enclosing a copy of Address to the Queen, forwarded by the Governor General of Canada, and to thank your Grace for communicating these papers to the Hudson's Bay Company. On this Address I beg to request your Grace's attention to the following observations on behalf of myself as Governor, and the Committee of the Company. 1. It seems necessary, in the first place, to distinguish the two classes of rights 440. C Report of 1857, rights conferred on the Company by the Charter. Some of these are, no doubt, of a public or political character, such as belong to a proprietary Government; but others are practically of a private nature, such as might have been vested in any individual subject, or any private corporation, clothed with no public functions of any kind. Of these latter, it is only necessary at present to refer to the right of private property in the soil, and in the mines and minerals. Appendix, p. 404, Charter, ill-defined, and of doubtful expediency at any time. paragraph 2. Sir E. Head to Sir 2. It may be that the public or political rights of the Company, are, in the It may be, too, as the Law Officers in their letter of 1857 appear to hint, that for any effectual exercise they require the aid of the right of private property, as vested in the Company by the same instrument. 3. The Committee need scarcely remind your Grace that so far from opposing a resumption by the Crown of the political powers of the Company, almost the first important step taken by them in 1863, was the adoption of the following resolution F. Rogers, 28 Aug. it is expedient that the authority, executive and judicial, over the Red River 1863. Mr. C. Fortescue to Sir E. Head, 11 March 1864. Page 68 of this See post, para graph 9. Letter of the Law Officers to Mr. Merivale, Appendix to Report, 1857, p. 404, last paragraph, Resolved, that the time has come when, in the opinion of this Committee, Settlement, and the south-western portion of Rupert's Land, should be vested in officers deriving such authority directly from the Crown, and exercising it in the name of Her Majesty. "That the Governor be empowered to communicate this Resolution to his Grace the Duke of Newcastle, and to discuss the subject with him, or with the Under Secretary of State for the Colonies; reporting from time to time to this Committee thereon." 4. In the correspondence which ensued with the Colonial Office, it appears to be implied on the part of his Grace the Duke of Newcastle, that the fact of the right of private property in the soil being no longer possessed by the Crown, was one of the chief obstacles to a compliance with the suggestion made in the above Resolution. If this be so, the very fact of making this objection involves an admission in favour of the Company. Most assuredly, if the Crown had alienated its right of property in the soil and minerals of the Hudson's Bay Territory, it had granted it to no other party than the Hudson's Bay Company, and by no instrument other than the Charter of Charles II. 5. In Mr. Fortescue's letter of 11th March 1864, an offer of a contingent money payment, as the consideration for the cession of the territorial rights of the Company, was distinctly made by the Secretary of State. The proviso inserted in the postscript to that letter will be adverted to afterwards, and had reference only to the supposed rights of Canada. 6. It is unnecessary for the Committee to refer to the undisputed enjoyment of these rights, at any rate since the time of the Treaty of Utrecht. 7. In addition to all this, it remains to quote the express words of the Law Officers, in their letter of 1857, already referred to. They say, They say, "In our opinion the Crown could not now, with justice, raise the question of the general validity of the Charter; but that on every legal principle the Company's territorial ownership of the lands granted, and the rights necessarily incidental thereto, ought to be deemed to be valid." Moreover, in a passage alluded to above, the Law Officers imply indirectly their belief in the validity of this right of private property, when they say that rights of Government, taxation, exclusive administration of justice, or exclusive trade, otherwise than as a consequence of the right of ownership of the land, could not legally be insisted on by the Company." What other opinions of the Law Officers of the Crown may be found in the records of the Colonial Office it Answers to Qu es- is not for us to say, but the evidence given by the Right Honourable Edward tions 5823. Ellice before the Committee of 1857, as to the opinions taken by him both for and against the Company, is well worth referring to. 8. One other point is a mere technicality, no doubt, but it may be worth observing that the title of the Company to their land is an English title, since it is granted "to be holden as of the manor of East Greenwich, in our county of Kent, in free and common soccage.' 9. The Committee do not intend to impute to the Parliament or the Ministry of of Canada, any deliberate intention of violating such rights of the Hudson's Bay Company as they admit to exist, but it must be remembered that a theory has been started, and is referred to in the debate on this Address, by which the admissions of the English Government, and the opinion of the English Law Officers, as to the right of ownership in the soil, are directly negatived. It has been supposed, we believe, that France was in possession of these territories, See postscript to fore within the exception which that Charter contains with regard to territories tescue to Sir E. or a large portion of them, when the Charter was granted; that they were there- letter, Mr. Forgood, and was transferred to the English Crown, with Canada, at the final cession 5 April 1864. belonging to any other Christian prince; and that this French title remained of that Province by France. Head, 11 March 1864, and letter, Pages 68 and 72 10. This is not the place for entering on a discussion of the facts and law involved in this argument—an argument, as we have said, inconsistent with the of this Paper. continued recognition of the Company's rights in various ways by the English Government, and their legal advisers, for a long series of years; but if this objection to the Company's title shall be presented in a tangible form before a proper tribunal, the Hudson's Bay Company will be quite ready to meet it, and demonstrate its futility. 11. The very existence, however, of such a theory in the minds of the Canadian Ministers, or the Canadian people, is a sufficient reason why, in justice to the Company, it should be set aside, or its truth or falsehood should be conclusively tested, before their rights of property, under the Great Seal of England, and, in fact, their future existence, are placed under the legislation and the absolute control of Canada. 12. The Committee cannot but feel that the Company has already had great reason to complain of the course pursued during the last few years. In 1865 the Canadian delegates sent to this country to promote the scheme of confederation solemnly "undertoook" with Mr. Cardwell to negotiate with the Hudson's well to Lord Monck, 17 June 1865. Bay Company. The answer given by the Committee was, that they would be Despatch of Mr. Cardin a subsequent letter as a reason why no other step should be taken. No nego- Letter of Mr. Forster ready to consider any proposal. The fact of this undertaking was recited again tiation, however, was opened, and in 1866 the Canadian Council resolved that such negotiation must devolve on the Government of the confederation when to Sir E. Head, 20 February 1866. Minute, 22 June 1866. constituted, rather than on the Government of Canada. This was confirmed by Letter from Sir F. 31 July 1866. the resolutions of the delegates in England of 3rd April 1867. After all, when he had to the Confederation is formed, and Parliament met, resolutions are Mr. Elliot to Sir E. passed, and an Address to the Queen is adopted, praying that the powers of Head, 15 April 1867. legislation and Government over the Hudson's Bay Territory, and the North Western Territory, may be conveyed to Canada first, and that the judicial decisions or negotiations as to the Company's rights should take place afterwards. 13. We desire in the first place to remark, that this inversion of the order of proceeding is entirely contrary to the expectation raised by the acts of the delegates, and by the communications from the Colonial Office to us. We may have erred in thinking so, but certainly we conceived that the negotiations, which the delegates in 1865 undertook to initiate, were intended under the Act of last Session to form the preliminary step for transferring the supreme control to Canada-not to follow after such transfer, with all the disadvantages to the Company which must thus ensue from the change of the relative position of the parties. It would appear, too, from a passage in a speech of the Honourable Mr. Holton in the Canadian Parliament, as reported in the "Canadian News," as per extract herewith, that the Committee were not the only parties who supposed this to be the intention of Government. The Committee moreover thought that it was expressly in anticipation of this original undertaking to negotiate being thus carried out, that the Secretary of State for the Colonies intimated his wish in the following terms, that the Company should abstain from any other arrangements likely to interfere with the views then entertained. Extract, No. 1, enclosed. Mr. Elliot to Sir "It is of course for the Hudson's Bay Company to consider for themselves E. Head, 23 Jan. what course is most proper and conducive to their own interests. But it appears 1867. to Lord Carnarvon that any effective negotiation being for the moment impossi ble, it is for the interest of both parties that the question should remain open arrangement so soon as an authority exists capable of dealing with it on the Page 76 of this for C 2 part Paper. 440. 30 & 31 Vict. c. 8, 8. 146. part of the Colony or Colonies interested. He would therefore regret to learn that the Company contemplate any immediate action which was calculated to embarrass the negotiations, which would then become possible, and which in the opinion of the executive council it would be the duty of the Confederate Government to open. 14. The Committee felt no anxiety respecting the wide powers of transfer conferred on the Crown by the Act of last Session, because they did not believe that their rights of ownership in the soil and mineraals could be affected by it; and because after the undertaking to negotiate formally communicated to them, and the correspondence relating to it, they relied, as they continue to rely, on the honour and good faith of the English Government. 15. But the case assumes a very different aspect, if the plan of giving to the Canadian Parliament and Government legislative and administrative control over these territories, without defining and providing for the rights and interests of the Company as a condition precedent, should be carried out. So far as we now see, no security of any kind would exist against such a use of this control in taxation and other matters as might be thought best fitted for compelling the Company to accept any terms, however disadvantageous. No specific guarantee, it seems, is proposed to be given as to the legislation which might take place before these claims were finally disposed of, or as to the impartiality and competency of the courts before which the Company, if aggrieved, would have to seek redress. At any rate the relative position of the two parties to any such suit or discussion respecting these rights would, after the transfer of the legislative and administrative control, be one which must leave the Company, as defendant, more or less at the mercy of the plaintiff, and would, to say the least, taint the voluntary character of any agreement to be subsequently arrived at. The only reliance of the Company would be on the honesty and the considerate disinterestedness of the Canadian Parliament and people. The Committee, moreover, venture to think that their apprehensions on this score are reasonably increased, rather than diminished, by all that is reported Extract from "Ca- to have passed in the debates, and especially by the extract of the accompany. nadian News" (enclosed), 2. 30 & 31 Vict. c. 3, s. 146. ing report of the speech of Sir John A. Macdonald, K.C. B., the Canadian Premier. The report is taken from the "Canadian News." It is probably condensed, and as a matter of course it may be more or less inaccurate. 16. The Act of last Session provides that the incorporation of Rupert's Land and the North Western Territory with Canada may be made by the Queen "on such terms and conditions in each case as are in the Addresses expressed, and as the Queen thinks fit to approve, subject to the provisions of this Act; and the provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland." Now, looking to the previous correspondence between the Hudson's Bay Company and the Colonial Office, it is not unreasonable to suppose that so far as regards the territory of the Company, the Act contemplated the insertion of certain terms and conditions in any Address relating to the transfer of such territory. But the Address, a copy of which your Grace has had the goodness to transmit to us, contains no "terms and conditions" whatever, except a vague assurance "that the Parliament of Canada will be ready to provide that the legal rights of any corporation, company, or individual within the same shall be respected, and placed under the protection of courts of competent jurisdiction.' Such an assurance is of little value when the party making it disputes the very existence of the rights in question, and at any rate it amounts to no more that a statement, that British subjects on British soil shall be entitled to the protection of a court of law of some kind, hereafter to be established by the act of one of the parties. It might be presumed that redress before a competent tribunal would be the right of any one who was wronged; and such an assurance can hardly be deemed a "term term" or "condition" of the kind, which the Statute intended to be set out specifically in the Address from the Legislature. 17. The Committee trust it may not for one moment be supposed that they arrogate to themselves any right, or entertain the smallest desire to impede, or or even comment on the general policy of transferring the government of the North Western Territory, and of the Hudson's Bay territory, to the Confederate Government of Canada. In this, as in everything else, they would bow with submission to the authority of the Crown, and rejoice in any measure which was really calculated to strengthen loyalty, and promote union in British North America. 18. What is asked for as a matter of justice to a proprietary, consisting of upwards of 1,700 shareholders, who have paid a very large sum on the faith of our Charter, and of the protection of their rights of property in the soil by English law, is the adoption by Her Majesty's Government of one of the following alternatives: 1st. That some conclusive agreement as to the extent, value, and compensation to be made for the claims of the Company, as owners of the soil and minerals of the Hudson's Bay Territory, and some arrangement by which burthens assumed by them in their political capacity, such as the endowment of the bishopric, may, when that capacity ceases, be transferred to others, should be completed before, not after, the transfer of the government of the North Western Territory, or Hudson's Bay Territory, to Canada. 2nd. That before any incorporation of Rupert's Land, or the North Western Territory with Canada, the rights of private property vested in the Company, and the exact limits of such rights, should be ascertained, acknowledged, and efficiently protected by law, in a manner binding on any Colonial Government, so that they should not be at any time hereafter impeached or violated without proper compensation. EXTRACT from a SPEECH of the Honourable Mr. Holton, in the Canadian Parliament, as Encl. 1, in No. 4. reported in the "Canadian News," 2nd January 1868, page 7. "IT struck him, too, that what was in contemplation in the Union Act was, that the Address to Her Majesty should follow the negotiations, and that the Address should set forth, clearly and distinctly, the terms on which we were prepared to unite that territory with Canada." Enclosure 2, in No. 4. EXTRACT from a SPEECH of Sir John A. Macdonald, K. C. B., in the Canadian Parliament, Encl. 2,'in No. 4. reported as above. "IT had been said, by the Member for West Durham, that this was a worse proposition than the proposition of 1865. It was precisely the same; it was simply that we wished to take possession of this territory, and would undertake to legislate for it and to govern it, leaving the Hudson's Bay Company no right except the right of asserting their title in the best way they could in courts of competent jurisdiction. And what would their title be worth the moment it was known that the country belonged to Canada, and that the Canadian Government and Canadian Courts had jurisdiction there, and that the chief protection of the Hudson's Bay Company, and the value of their property, namely, their exclusive right of trading in those regions, were gone for ever? The Company would only be too glad that the country should be handed over to Canada, and would be ready to enter into any reasonable arrangement. "The value of the Company's interest would be determined by the value of their stock; and what would that be worth when the whole country belonged to Canada?” |