Extract from APPENDICES TO THE REPORT FROM THE SELECT COMMITTEE ON THE HUDSON'S BAY COMPANY, 1857.
LETTER RICHARD BETHELL AND HENRY S. KEATING TO THE RT. HON. H. LABOUCHERE, M.P.
Lincoln's Inn, July 1857.
WE are favoured with Mr. Merivale's letter of the 9th of June ultimo, in which he stated that he was directed by you to transmit to us copies of two despatches from the Governor of Canada, enclosing the copy of a minute of his Executive Council, and extract from another minute of the same, in reference to the questions respecting the affairs of the Hudson's Bay Company, then under investigation by a Committee of the House of Commons.
We were also requested to observe from the former of those minutes that the Executive Council suggest, on the part of Canada, a territorial claim over a considerable extent of country, which is also claimed by the Hudson's Bay Company, as owners of the soil, and with rights of government and exclusive trade under their charter.
We were also requested to observe, by the annexed Parliamentary Papers of 12th July 1850, that the “ Statement ” of the Hudson's Bay Company's rights as to territory, trade, taxation, and government, made by them to Earl Grey, as Secretary for the Colonies, on the 13th September 1849, was submitted to the then law officers of the Crown, who reported that they were of opinion that the rights so claimed by the Company, properly belonged to them ; but suggested, at the same time, a mode of testing those claims by petition to Her Majesty, which might he referred to the Judicial Committee.
Mr. Merivale was further to annex a Parliamentary Return made in 1842, containing the charter of the Company, and documents relating thereto ; and another of 23rd April 1849, containing amongst other papers, an Act of 2d William and Mary, " for confirming to the Governor and Company trading to Hudson's Bay their privileges and trade."
The rights so claimed by the Company had been repeatedly questioned since 1850, by private persons in correspondence with the Secretary of State, and were then questioned to a certain extent, as appears by those despatches, by the present local government of Canada.
Mr. Merivale was also to request that we would take those papers into our consideration, and report,—
Whether we thought the Crown could lawfully and constitutionally raise, for legal decision, all or either of the following questions :
The validity, at the present day, of the charter itself.
The validity of the several claims of territorial right of government, exclusive trade, and taxation insisted on by the Company.
The geographical extent of this territorial claim (supposing it to be well founded, to any extent).
And if we were of opinion that the Crown could do so, we were requested further to state the proper steps to be taken, in our opinion, by the Crown, and the proper tribunal to be resorted to ; and whether the Crown should act on behalf of the local government of Canada, as exercising a delegated share of the Royal authority, or in any other way.
And, lastly, if we should be of opinion that the Crown could not properly so act, whether we saw any objection to the questions being raised by the local government of Canada, acting independently of the Crown, or whether they could be raised by some private party in the manner suggested by the law officers in 1850, the Crown undertaking to bear the expense of the proceedings.
In obedience to your request we have taken the papers into our consideration, and have the honour to report,—
That the questions of the validity and construction of the Hudson's Bay Company's charter cannot be considered apart from the enjoyment that has been had under it during nearly two centuries, and the recognition made of the rights of the Company in various acts, both of the Government and the Legislature.
Nothing could be more unjust, or more opposed to the spirit of our law, than to try this charter as a thing of yesterday, upon principles which might be deemed applicable to it, if it had been granted within the last 10 or 20 years.
These observations, however, must be considered as limited in their application to the territorial rights of the Company under the charter, and to the necessary incidents or consequences of that territorial owner-ship. They do not extend to the monopoly of trade (save as territorial ownership justifies the exclusion of intruders), or to the right of an exclusive administration of justice.
But we do not understand the Hudson's Bay Company as claiming anything beyond the territorial ownership of the country they are in possession of, and the right, as incident to such ownership, of excluding persons who would compete with them in the fur trade carried on with the Indians resorting to their districts.
With these preliminary remarks we beg leave to state, in answer to the questions submitted to us, that 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 (as, for example, the right of excluding from their territory persons acting in violation of their regulations), ought to be deemed to be valid.
But with respect to any rights of government, taxation, exclusive administration of justice, or exclusive trade. otherwise than as a con-sequence of the 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.
This remark, however, requires some explanation.
The Company has, under the charter, power to make ordinances (which would be in the nature of bye-laws) for the government of the persons employed by them, and also power to exercise jurisdiction in all matters, civil and criminal ; but no ordinance would be valid that was contrary to the common law, nor could the Company insist on its right to administer justice as against the Crown's prerogative right to establish courts of civil and criminal justice within the territory.
We do not think, therefore, that the charter should be treated as invalid, because it professes to confer these powers upon the Company ; for to a certain extent they may be lawfully used, and for an abuse of them the Company would be amenable to law.
The remaining subject of consideration is the question of the geographical extent of the territory granted by the charter, and whether its boundaries can in any way and what manner be ascertained. In the case of grants of considerable age, such as this charter, when the words, as is often the case, are indefinite or ambiguous, the rule is, that they are construed by usage and enjoyment, including in these latter terms the assertion of ownership by the Company on important public occasions, such as the Treaties of Ryswick and Utrecht, and again in 1750.
To these elements of consideration upon this question must be added the inquiry (as suggested by the following words of the charter, viz. “ not possessed by the subjects of an other Christian prince or state ”), whether, at the time of the charter, any part of the territory now claimed by the Hudson's Bay Company could have been rightfully claimed by the French, as falling within the boundaries of Canada, or Nouvelle France, and also the effect of the Acts of Parliament passed in 1774 and 1791.
Under these circumstances, we cannot but feel that the important question of the boundaries of the territory of the Hudson's Bay Company, might with great utility, as between the Company and Canada, be made the subject of a quasi–judicial inquiry.
But this cannot be done except by the consent of both parties, namely, Canada and the Hudson's Bay Company, nor would the decision of a Committee of the Privy Council have any effect as a binding judicial determination.
But if the Hudson's Bay Company agreed to the proposal of the Chief Justice of Canada, that the question of boundaries should be referred to the Privy Council, it being further understood by both parties, that the determination of the Council shall be carried into effect by a declaratory Act of Parliament, we think the proceeding would be
the best mode of determining that which is, or ought to be, the only real subject of controversy.
The form of procedure might be a petition to the Queen by Chief Justice Draper, describing himself as acting under the direction of the Executive Council of Canada ; unless, which would be the more solemn mode, an address were presented to Her Majesty by the Canadian Parliament.
Counsel would be heard on behalf of Canada and of the Company.
We are, &c.
The Right Honourable Henry S. Keating.
H. LABOUCHERE, M.P., &c. &c.