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The Governor- General to the Colonial Secretary.*

Government House,

Ottawa, Canada, January 1, 1868.

My Lord Duke, — Referring to my despatch No. 107, of 21st December, 1867, 1
have the honour to transmit to your Grace an approved Minute of the Privy Council of

♦ Sesfc Papers, Can., 1867-8, VoL 1, No. 69.

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PROPOSED TRANSFER OF RUPERT'S LAND TO CANADA, 1868. 131



Oftoada, together with the Itesolutions of both Houses, and the proceedings upon them
nqpecting the proposed annexation of Prince Rupert's Land and the North- West Terri-
tory to the Dominion of Canada.

I desire especially to call your Grace's attention to the eighth resolution adopted by
both Houses, and which was not incorporated in the Address to Her Majesty.

If Her Majesty's €k>vemment should approve of the proposed incorporation with
CWda of this Territory, on the terms contained in the Address to the Queen and these
Resolutions, it would be of great advantage to my Groyemment if I could be informed of
the decision by telegraph, in order that all necessary steps may be taken for carrying the
arrangement into effect.

I have, etc.,

MONOK.

His Qrace the Duke of Buckingham and Chandos,
etc., etc., etc.



The Colonial Secretary to the Govbenor General.*

Downing Street,

18th January, 1868.

My Lord, — I have received your despatch. No. 107, of the 2l8t December, accom-
panied by an Address to Her Majesty from both Houses of the Canadian Parliament, pro-
poging the annexation of Prince flupert's Land and the North- West Territory to the
Dominion of Canada. I have also received your Lordship's subsequent despatch, No. 1,
(tf the Ist January, enclosing Resolutions adopted by the two Houses on the same sub-
ject, and an approved Minute of the Privy Council.

These proceedings will receive the early and serious attention of Her Majesty's con-
fidential advisers.

Hie decision of Her Majesty's Government will be communicated to you as early as
possible j but the consideration by them of so important a subject will necessarily occupy
some short time.

I have, etc.,

Buckingham &Ohandos.

(Governor the Bight Honourable Viscount Monck,

etc., etc., etc. •



The Governor of the Hudson's Bay Compant to the Colonial SECRETARV.-f*

Hudson's Bay House, London,
^^ 15th January, 1868.

My Lord Duke, — In addressing this letter to your Grace on behalf of the Com-
mittee of the Hudson's Bay Company, I think that some apology is necessary for
anticipating the official communication ^m the Colonial Office, of the Resolutions passed
in the Parliament of Canada, as well as the Address to be founded upon them ; but as
from the tone of the debate in the Canadian Parliament, and from the terms of the
Resolutions passed there, it is manifestly the object of that Parliament to have the
power to establish in the Dominion of Canada, including the Territory of Rupert's Land,
Courts which shall have jurisdiction in all matters arising in any part of British North
America, and thus to give power to the tribunals so constituted to determine upon the
rights claimed by this Company under their Charter, a course of proceeding which this



* SeBS. Papers, Can., 1867-8, VoL 1, No. 69.
t JomnalB, Gomi., Can., 1867-8, p. 368.



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132 POSITION OF H. B. CO. ON PROPOSED TRANSFER TO CANADA, 1868.



Oommittee consider to be so injurious to the interests of the Hudson's Bay Company,
they are desirous to bring the matter before your Grace, and to submit their views upon
the subject to Her Majesty's Government, before any assent is given or determination
come to in reference to Her Majesty's approval of the proposed admission of Rupert's
Land into the Union of British North America.

I beg to remind your Grace that the rights of this Company, under their Charter,
have at various times been brought under the consideration of the Government, and that
the result of those discussions has been a clear and distinct recognition on the part of the
Orown that the general validity of the Charter cannot now be ^Jled in question, and, in
particular, that the territorial ownership of the lands granted by the Charter and the
rights necessarily incidental thereto, must now be considered as vaiid.

It is true that questions have from time to time been raised in Canada as to the
extent of the territory claimed by this Company under their Charter, and in some respects
as to other rights which the Charter confers ; but while Her Majesty's Government have
at all times declined to be any party to proceedings on the 'subject, the opportunity has
always been afforded to the authorities of Canada to bring any questions for adjudication
before Her Majesty in Council — a course to which this Compny have always been pre-
pared to accede, and which appears to be the only legitimate mode of deciding their rights,
if they are to be called in question.

The Canadians have altogether abstained from availing themselves of the opportu-
nity thus afforded them ; but it is now obviously the object of the Canadian LegiEdature
to secure to tribunals of their own nomination tiie decision of those rights.

I may here stat^ that, so far as the mere political powers granted by the Charter are
<toncerned, such as the rights of government, taxation, and exclusive administration of
justice, the Company have long since expressed their willingness that these powers should
be vested in officers deriving their authority directly from the Crown ; but before any
such powers can with justice be transferred to the Colonial Government^ I submit that the
extent of the territorial rights dl the Company should either be fully recognized, or that
if the Canadian Government are desirous of procuring those rights for the benefit of
Canada in general, they should in the first instance arrange with the Hudson's Bay
Company the terms upon which they should be so acquired.

But should the Canadian Legislature still desire that any judicial investigation into
the territorial rights of the Company should take place, such inquiry should 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, ordei^ by the House of Commons to
be printed, the dlst July and 11th August, 1857.

I have, etc.,

Edmund Head,

Oovemor,
His Grace the Duke of Buckingham and Chandos,

etc., etc., etc.



The UNDKR-SBoanABT to the Govsbkob of the Hudsoit's Bay Compaitt.*

DowKiNG Street,

18th January, 1868.

Jf^-^iR, — I am directed by the Duke of Buckingham and Chandos to aeknowledge the
receipt of your letter of the 15th instant, relative to the proceedings of the Canadian

* Joomalfl, Corns., Can., 1807-8, VoL 1, p. 368.

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POSITION OF H. B. CO. ON PROPOSED TRANSFEE TO CANADA, 1868. 13S



Parliament on the subject of the Hudson's Bay Company. I am desired to state that the
subject of this letter will not fail to receive the careful consideration of Her Majesty's
Goyernment.

I am, 8ir,

Your obedient servant,

T. F. Elliot,
The Eight Honourable

Sir E. Head, Bart, K.C.B.



Thb Ukdbb-Sbcrbtabt to the Gk>VBBN0B OF THB Hudbon's Bay Company.*

Downing Street,

18th January, 1868.

Sir, — I am directed by the Duke of Buckingham and Chandos, to transmit to you,
for the information of the Committee of the Hudson's Bay Company, a copy of a despatch
▼hich has been received from the Governor-General of Canada, 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 Bupert's Land and the North- West Territory with the
Dominion of Canada.

I have, etc.,

T. F. Elliot.
The Bight Honourable

Sir E. Head, Bart., KC.B.



The Gk>vBRNOR of the Hudson's Bay Company to the Colonial Secretary.*

I Hudson's Bay House, London,

25th January, 1868.

My Lord Duke, — ^I have the honour to acknowledge Mr. Elliot's letter, of the
18th instant, 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 con-
ferred 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 j)roperty in the soil and in the
mines and minerals.

Benort f iftR7 A ^* ^^ ^^^ ^ *^* *^® public or political rights of the Company,

P^S^.°404, pkraTk ^^^ ^^ *^® Charter ill-defined and of doubtful expediency at any time.

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 Tested in the Company by the same instrument.

3. The Committee n^ed scarcely remind your Grace that, so far from opposing a

* Jounudfl, Coms., Can., 1867-8, Vol. 1, p. 370.

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134 POSITION OF H. B. CO, ON PROPOSED TRANSFER TO CANADA, 1868.

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 :—
a* E HMd u 81 P Ram " Resolved that the time has come when, in the opinion of

^ ' 28th Aug., isia^"* ^^ Committee it is expedient that the authority, executive and
judicial, over the Red River Settlement and the south-weetem
portion of Rupert's Land, should be vested in ofiicers deriving such authority directly
from the Crown, and exercising it in the name of Her Mi^esty.

" 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."
M r IT rfeftiuM f q* F 4. In the correspondence which ensued with the Colonial

Head, liiS*Mitt^h, iW ^^^t i* 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 com-
pliance 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. On Mr. Fortescue's letter of March 11, 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
See Fo8t, para. 9. inserted in the postcript to that letter will be adverted to after-

wards, 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.

T 4^ < XI. T r^A 7. In addition to all this, it remains to quote the express

to M^! MerivSr, Ap^" ^^"^ ^^ ^^^ I^^ Officers in their letter of 1857, already referred

dix to Report, 1857, page to. They say, " In our opinion the Crown could not now, with

404, last paragraph. 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 co 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 is.not for us to say,

que«tionri5*&*2 3. ^^* ^^^ evidence given by the Bight Honourable Edward EUice

' ' ' ' 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
hoi den 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
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 Govern-
ment and the opinion of the English Law Officers as to the right of ovmership in the
soil are directly negatived. It has been supposed, we believe, that France was in possession
of these territories, or a large portion of them when the Charter was granted ; that

^. ^ f ^^^7 ^^^ therefore within the exception which that Charter con-

MSJc^'r^rt^cu^S^r tains with regard to other territories belonging to "any other

E. Head, llth March, Christian Prince ;" and that this French title remained good and

l^set^ ^^^^^ ^^"^ ^^^ transferred to the English Crown with Canada at the final

' ' ^^ession of that Province by France.



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POSITION OF H. B. CO. ON PROPOSED TRANSFER TO CANADA, 1868. 136



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 continued recog-
nition 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
^oold 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,
is placed under the legislation and the absolute control of Canada.

w! ..,*«,„ 12. The Committee cannot but feel that the Company has

^?W Mo^. jIM ^I'^y ^^ g^t >^o^ ^ complain of the course pursued during

1865. ' ' the last few years. In 1865 the Canadian Delegates sent to this

^^^ILHmS. ^S*f h^ country to promote the scheme of Confederation solemnly "under-

1^ eao, e ., ^^^^» wittk Mr. Card well, to negotiate with the Hudson's Bay

MmDte.22ndJune, 1866. Company. The answer given by the Committee was that they
L^tt» foomSir^^eni^ ^^^j^ Y^ ^^^^^ ^ consider any proposal. The fact of this under-

Jahr 1866. ' taking was recited again in a subsequent letter, as a reason why

Mr. Hfliot to Sir E. Head, no other step should be taken. No negotiation, however, was

April 15, 1867. opened, and, in 1866, the Canadian Council resolved that such

negotiation must devolve on the Government of the Confederation when constituted,
ra&er than on the Government of Canada. This was confirmed by the resolutions of
the Delegates in England, of April 3rd, 1867. After all, when the Confederation is
formed, and the Parliament has met, resolutions are passed, and an Address to the Queen
is adopted, praying that the powers of 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 after-
wards.

13. We desire in the first place to remark that this inversion of the order of pro-
<:8eding 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,
hot 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
<H8advantages to the Company which must then ensue from the change of the relative
position of the parties. It would appear, too, from a passage in a speech of the Honour-
able Mr. Holton in the Canadian Parliament, as reported in the Canadian N'ewa, as per

Sxtnet No. 1 endoeed. extract herewith, that the Committee were not the only parties

who supposed this to be the intention of the 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 armgements likely to interfere with the views then entertained :

** It is of course for the Hudson's Bay Company to consider for themselves what
course is most proper and conducive to their own interests. But it appears to Lord
Carnarvon that any effective negotiation being for the moment
^'^!Sir^^*'ll67?**^' impossible, it is for the interest of both parties that the question
' ' should remain open for arrangement so soon as an authority

«xist8 capable of dealing with it on the part of the Colony or Colonies interested. He
▼onld therefore regret to learn that the Company contemplates any immediate action
vhich was calculated to embarrass the negotiations, which would then become possible,
*nd which in the opinion of the Executive Council it would be the duty of the Confederate
^vemment to open."

* [See extracts from JeflferTB, pp. 21 and 22, ante.— G. E. L.]

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1S« POSITION OF H. B. CO. ON PROPOSED TRANSFER TO CANADA, 1868.



«A J4MTT* « ^Am ^^' ^® Committee felt no anxiety respecting the wide

J0«iidaVic,o.8,Bec.l46.p^^^^£ 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
minerals 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
preeecknt 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 thou^t
best fitted for compelling the Company to accept any terms, however diMtdvantageoiis.
No specific guarantee it seems is proposed to be given as to the legislation which migbt
take place before these claims were finally disposed of, or as to the impartiality and com-
petency 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 respect-
ing 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 plain-
tifl^ 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.
Brtract from the CarM- sported to have passed in the debates, and especially by the
extract of the accompanying report of the speech of Sir John A
Macdonald, K.C.B., the Canadian Premier. The Eeport is taken from the Caneidian
News, It is probably condensed, and, as a matter of course, it may be more or less
inaocurate.
>* 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
90 and ^^ y^ ^^' * 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 Parliament of the United King-
dom 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 con-
ditions in any Address relating to the transfer of such Territory.

But the Address, a copy of which your Grace had had the goodness to'transmit to os^
contains no *' terms and conditions " whatever, except a vague assurance that the " Par-
liament of Canada will be ready to provide that the legal rights of any corporaticHi,
company, or individual within the same shall be respected and placed under the pro-
tection of courts of competent jurisdiction."

Such an assurance is of Uttle value, when the party making it disputes the very
existence of the rights in question, and at any rate it amounts to no more than a statement
tliat 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 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 even to comment on
the general policy of transferring the government of the North-Westem Territory and of
the Hudson's Bay Territory to the CJonfederate Government of Canada. In this, as in
everything else, liiey would bow with submission to the authority of the Crown, and



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snt JOHN macdonald's proposal respecting the h. b. CO., 1867. 187



rejoice in any measure which was really calculated to strengthen loyalty and promote
imion in British North America.

18. What is asked for as a matter of justice to a proprietary consisting of upwotds^
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 bishoprics, 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
▼ith 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



Online LibraryOntario. Legislative AssemblyCorrespondence, papers and documents, of dates from 1856 to 1882 inclusive, relating to the northerly and westerly boundaries of the province of Ontario → online text (page 25 of 86)