counsel both on behalf of the petitioners and the Hudson's Bay Company, who opposed the petition as it interferes with their Charter. The petitioners insisted on two general things: that the Company's Charter was either void in its original creation, or became forfeited by the Company's conduct under it; that the petitioners have, by their late attempts to discover the North-West passage and navigation in those parts, merited the favour petitioned for. As to the first, the petitioners endeavoured to show that the grant of the country and territories included in the Company's Charter was void for the uncertainty of its extent, being bounded by no limits of mountains, rivers, seas, latitude or longtitude; and that the grant of the exclusive trade within such limits as these were, was a monopoly, and void on that account. With respect to both these, considering how long the Company have enjoyed and acted under this Charter without interruption or encroachment, we cannot think it advisable for his Majesty to make any express or implied declaration against the validity of it until there has been some judgment of a Court of Justice to warrant it; and the rather because, if the Charter is void in either respect, there is nothing to hinder the petitioners from exercising the same trade which the Company now carries on. And the petitioners' own grant, if obtained, will itself be liable in a great degree to the same objection. As to the supposed forfeiture of the Company's Charter by nonuser or abuser, the charge upon that head is of several sorts, viz., that they have not discovered, nor sufficiently attempted to discover, the northwest passage into the South Seas or Western Ocean; that they have not extended their settlements through the limits of their Charter; that they have designedly confined their trade to a very narrow compass, and have for that purpose abused the Indians, neglected their own forts, ill-treated their own servants, and encouraged the French. But in consideration of all the evidence laid before us by many affidavits on both sides (herewith inclosed), we think these charges are either not sufficiently supported in point of fact, or in a great measure accounted for from the nature and circumstances of the case. As to the petitioners' merit, it consists in the late attempts made to discover the same passage, which, however as yet unsuccessful in the main point, may probably be of use hereafter in that discovery if it should ever be made, or in opening some trade or other if any should hereafter be found practicable, and have certainly cost the petitioners considerable sums of money. But, as the grant proposed is not necessary in order to prosecute any further attempt of the like kind, and the Charter of the Hudson's Bay Company does not prohibit the petitioners from the use of any of the ports, rivers, or seas included in their Charter, or deprive them of the protection of the present settlements there, we humbly submit to your Lordship's consideration whether it will be proper at present to grant a Charter to the petitioners, which must necessarily break in upon that of the Hudson's Bay Company, and may occasion great confusion by the interfering interests of two Companies setting up the same trade against each other in the same parts under the like exclusive Charters. All which is humbly submitted to your Lordship's consideration. August 10th, 1748. D. RYDER. W. MURRAY. OPINION OF EDWARD BEARCROFT, ESQ.* Q. 1st. Whether the King, without the co-operation of the other Legislative powers, can grant to any company an exclusive trade for ever, together with a right of seizing the person and goods of a fellow-subject, without legal process; and if not, whether his having illegally granted such advantages and power, does not annul the charter? A. I am of opinion that the King, without the assent of Parliament, cannot legally grant to any company, or to any individual, an exclusive trade for ever, together with a right to seize the person and goods of subjects, without process of law; and that such a grant, if made, is illegal, void, and without effect. Q. 2nd. If this Charter is not valid [void ?] upon the principle above stated, whether it is not voidable by the Company's neglecting to fulfil the views the King had when he granted it? * Occurrences in the Indian Countries of North America. Montreal, 1818. App., p. 11. A. If such a Charter could be considered legal and valid in its commencement, yet it will be voidable by Sci. Fa. if the grantees neglect to endeavour, by reasonable and adequate means, to carry the purpose of it into effect. Q. 3rd. Whether the grant to them, of the right of fishing, is exclusive, or whether the Greenland fishermen, who have a right to fish at Greenland and the seas adjacent, have not a right to fish at Hudson's Bay? A. The Charter in question, as to so much of it as affects to grant an exclusive trade and inflict penalties and forfeitures, being, as I conceive, illegal and void, I am of opinion that the Greenland fishermen, who have a right to fish there, have also a right to fish in Hudson's Bay. Q. 4th. If an individual invades the Charter, by fishing or trading in any of the places granted to the Company, and they seize his people, ship or goods, whether they have any and what remedy? A. If the Hudson's Bay Company, or those acting under their authority, shall venture to seize the person, ship, or goods of a British subject fishing there, the action is by action of trespass against the Company, or against the persons who do the act complained of, which action may be brought in any of the courts of Westminster Hall. Q. 5th. If you should be of opinion that the Charter is in its present form illegal, which is the best way of attacking it—by invading the patent, and permitting them to seize or bring an action, and complaining or defending, according to the circumstances, or by applying to Parliament ? 4. It is obvious that the safest way of attacking the Charter is by applying to Parliament or by Sci. Fa., though in case of seizure, I cannot help thinking an action of trespass by the party injured would be successful. Q. 6th. And generally to advise the parties proposing the present case, who wish to fish and trade in and near Hudson's Bay (and have sent out a ship which means to winter there, unless cut off by the Company's engines, and only wait for your opinion whether to send several more), for the best. A. Upon the whole of this case, I am strongly inclined to think that the parties interested, if it is an object of importance to them, may venture to carry on the proposed trade immediately. The case of the East India Company and Sandys, determined at such a time, and by such Judges as it was, I cannot take to be law; and as to the length the said Charter has been granted and enjoyed, it is a clear and a well-known maxim of law, that which is not valid in the beginning cannot become so by lapse of time. EDWARD BEarcroft. OPINION OF SIR V. GIBBS,† 1804. 1st. Such a charter may certainly be good in some cases, but I am of opinion that the Charter in question was originally void, because it purports to confer on the Company exclusive privileges of trading which, I think, the Crown could not grant without the authority of Parliament. In Sandys against the East India Company, Skinn. 132, 165, 197, 223, the arguments used against their Charter, which was not then confirmed by Act of Parliament, appear to me decisive upon the subject; and although both J. Jefferies and the other judges of the King's Bench decided in favour of the Charter, I have understood that their judgment was afterwards reversed in Parliament. Adam Smith, in his Wealth of Nations, treats it as an admitted point, that the Charter granted to the Hudson's Bay Company, and others of the like sort, not being confirmed by Parliament, are void, which I mention, not as a legal authority, but only to show how the question has been generally understood. 2nd. A Charter may be forfeited on this ground. 3rd. I should doubt whether they had by this acquiescence forfeited their exclusive privilege, if it ever existed; but this question is immaterial after my answer to the first. * Occurrences in the Indian Countries of North America. App., p. 13. + Afterwards Chief Justice of the Common Pleas. 4th. If the former were legal, this would be so likewise. I think them both legal, on the ground of my answer to the first query. 5th. Probably they might prosecute the captain; but if this question were material, it would be necessary that I should see a copy or abstract of the Charter before I could answer it. 6th. He might, if there were any legal cause of prosecution. 7th. I hardly think that they would be held to fall within this Act, nor does it signify whether they do or not. If my opinion is well founded, the North-West Company may navigate Hudson's Bay and carry on their trade as they please, without any fear of legal molestation in consequence of the monopoly claimed by the Hudson's Bay Company under their Charter, and I think they may act as if no such Charter existed. V. GIBBS. Lincoln's Inn, Jan. 7th, 1804. OPINION OF SIR ARTHUR PIGOTT, MR. SPANKIE, AND MR BROUGHAM, 1816.* IN THE MATTER OF THE HUDSON'S BAY COMPANY'S CHARTER AND THEIR GRANT TO LORD SELKIRK. 1st. Whether the exclusive trade, territories, powers and privileges granted by the Charter of Charles the Second, confirmed by the expired Act of King William, is a legal grant, and such as the Crown was warranted in making; and if it was, whether it entitles the Company to exclude the Canadian traders from entering their territory to trade with the Indians, and authorises the Governors and other officers appointed by the Company to seize and confiscate the goods of the persons so trading without the license of the Company? 7 State Trials, 493; 10 State' Trials. new ed. 371, Skinner, 132, 167, 197, 223. In 4, Ba con's Abr. Monopoly, 74, it is laid down in the p. text as Law, that the King cannot by Charter grant The prerogative of the Crown to grant an exclusive trade was formerly very much agitated in the great case of "The East India Company versus Sandys." The Court of King's Bench, in which Lord Jefferies then presided, held and decided that such a grant was legal. We are not aware that there has since been any decision expressly on this question in the Courts of Law, and most of the Charters for exclusive trade and exclusive privileges to Companies or Associations, have, since the Revolution, received such a degree of legislative sanction or recognition, as perhaps to preclude the necessity of any judicial decision on it. Much more moderate opinions were, however, entertained concerning the extent of the prerogative, after the Revolution, than prevailed in the latter part of the reign of Charles the Second, and in the reign of James the Second, and to those is to be attributed the frequent recourse which, after the Revolution, was had to legislative authority on such cases, and particularly in the very case of this Company, evidenced by the temporary Act of the 2nd of William and Mary, "for confirming to the Governor and Company trading to Hudson's Bay their privileges and trade;" a confirmation the duration of which the Legislature expressly limited to seven years and the end of the next session of Parliament and no longer: and part of the preamble of that Act is, in effect, a legislative declaration of the insufficiency and inadequacy of the Charter for the purposes professed in it, without the aid and authority of the Legislature; which legislative aid and authority entirely ceased soon after the expiration of seven years after that Act passed. an exclusive trade. See also 6 Com. Dig. Preroga tive, D. 2, &c. Trade, D. 1, 4, etc. In 1745, indeed, the 18th Geo. II., cap. 17, for granting a reward for the discovery of a North-West Passage through Hudson's Straits, enacts, "that nothing therein contained shall any ways extend, or be construed to take away or prejudice any of the estate, rights, or privileges of or belonging to the Governor and Company of Adventurers of Eng land trading into Hudson's Bay ; but this provision gives no validity whatever to the * Occurrences in the Indian Countries of North America. App., p. 16. Charter, and only leaves its effect and authority as they stood before that Act, and entirely unaffected by it. These parliamentary proceedings may at least justify the inference that the extent of the prerogative in this matter was considered as a subject which admitted of great doubt, in times when the independence of the judges insured a more temperate and impartial consideration of it. They may, however, be perhaps considered as too equivocal to afford any certain and conclusive authority on the strict question of law. Such rights, therefore, as the Hudson's Bay Company can derive from the Crown alone, under this extraordinary Charter, such as it is, may not be affected by these proceedings or declarations, and they may now rest entirely upon and stand or fall by, the Common Law Prerogative of the Crown to make such a grant. The Upon the general question of the right of the Crown to make such a Grant, perhaps it may not be necessary for the present purpose that we should give any opinion. right of the Crown merely to erect a company for trading by charter, and make a grant of territory in King Charles the Second's reign, may not be disputable; Horne. Ivy 1; and on the other hand, besides that this Charter seems to create, or attempt Siderfin, 441; Nightingale v. to create, a Joint Stock Company, and to grant an exclusive right of trading, Bridges,Show there are various clauses in the Charter, particularly those empowering er, 135, and the cases in Viner, the Company to impose fines and penalties, to seize or confiscate goods and abi supra, ad- ships, and seize or arrest the persons of interlopers, and compel them to give mitted by Lord Jefferies, Ch.J. security in £1,000, &c., &c., which are altogether illegal, and were always in the East In- so admitted to be, and among other times [things?] even, at the time when the dia Company, extent of the Prerogative in this matter was maintained at its height, to 2. Sandys, ubi supra, p. 519. grant an exclusive right to trade abroad; and even if, by virtue of their These clauses Charter, they could maintain an exclusive right to trade, we are clearly seem to be of of opinion that they and their officers, agents, or servants, could not justify any seizure of goods, imposition of fine or penalty, or arrest or imprisonment of the persons of any of His Majesty's subjects. Probably the Company would have some difficulty in finding a legal mode of proceeding against any of those who infringe their alleged exclusive rights of trad ing, or violate their claimed territory; for we hold it to be clear that the methods pointed out by the Charter would be illegal, and could similar description to a those in the case consi- not be supported. But we think that the Hudson's Bay Company and their grantee, Lord Selkirk, have extended their territorial claims much farther than the Charter or any sound construction of it will warrant. Supposing it free from all the objections to which we apprehend it may, in other respects be liable, the words of the Grant, pursuing the recital of the petition of the grantees, with a very trifling variation, and with none that can affect the construction of the instrument, are of "the sole trade and commerce of all those seas, straits, bays, rivers, lakes, creeks, and sounds, in whatever latitude they shall be, that lie WITHIN the entrance of the Straits, commonly called Hudson's Straits, together with the lands and territories UPON the countries, coasts, and confines of the seas, bays, lakes, rivers, creeks, and sounds aforesaid:" that is, within the Straits and these limits are frequently referred to in the subsequent parts of the Charter, and always referred to throughout the Charter as limits aforesaid." "the There is, indeed (p. 10), an extension of the right of trade, and His Majesty grants that the Company "shall for ever hereafter have, use, and enjoy not only the whole entire and only liberty of trade and traffic, and the whole entire and only liberty, use and privilege of trading and traffic to and from the territories, limits, and places aforesaid, but also the whole and entire trade and traffic to and from all havens, bays, creeks, rivers, lakes, and seas into which they may find entrance or passage by water or land, out of the territories, limits, and places aforesaid, and to and with all the natives and people, inhabitant, or which shall inhabit WITHIN the territories, limits, and places aforesaid, and to and with all other nations inhabiting any of the coasts adjacent to the said territories, limits, and places aforesaid, which are not already possessed as aforesaid." It is plain, therefore, that the Territorial Grant was not intended to comprehend all the lands and territories that might be approached through Hudson's Straits, by land or water. The Territorial Grant then appears to be limited by the relation and proximity of the territories to Hudson's Straits. The general description applying to the whole, is the seas, etc., that lie WITHIN Hudson's Straits, and the land, etc., upon the countries, coasts, and confines, of the seas, etc., that is Reddendo Singula Singulis, the lands upon the countries, coasts and confines of each of the seas, rivers, etc., naturally including such a portion of territory as might be reasonably necessary for the objects in view; but it is not a grant of all the lands and territories in which the seas, rivers, etc., lie, or are situated, or which surround them to any indefinite extent or distance from them. Still less is it a grant of all the lands and territories lying between the seas, straits, rivers, etc., though many hundred or thousand miles or leagues of land and territories might lie between one sea, strait, river, lake, etc., and another sea, strait, river, lake, etc., and though the quantity of land comprised in this interior situation, and far distant from any coast or confine of the specified waters, might exceed in dimensions the extent of many existing powerful kingdoms or states. Within the Straits, must mean such a proximity to the Straits as would give the lands spoken of a sort of affinity or relation to Hudson's Straits, and not such lands as, from their immense distance (in this case the nearest point to Hudson's Bay being 700 miles, and from thence extending to a distance of 1,500 miles from it), have no such geographical affinity or relation to the Straits, but which are not even approached by the Canadians through or by the Straits in question. The whole Grant contemplates the Straits as the access to the lands and territories therein referred to; and, as there is no boundary specified, except by the description of the coasts and confines of the places mentioned, that is the coasts and confines of the seas, &c., within the Straits, such a boundary must be implied as is consistent with that view, and with the professed objects of a trading company intending, not to found Kingdoms and establish States, but to carry on fisheries in those waters, and to trade and traffic for the acquisition of skins and peltries, and the other articles mentioned in the Charter; and in such a long tract of time as nearly 150 years now elapsed since the grant of the Charter, it must now be, and must indeed long since have been, fully ascertained by the actual occupation of the Hudson's Bay Company, what portion or portions of lands and territories in the vicinity, and on the coasts and confines of the waters mentioned and described as within the Straits, they have found necessary for their purposes, and for forts, factories, towns, villages, settlements or such other estab lishments in such vicinity, and on such coasts and confines, as pertain and belong to a Company instituted for the purposes mentioned in their Charter; and necessary, useful, or convenient to them within the prescribed limits for the prosecution of those purposes. The enormous extensions of land and territory now claimed appears therefore to us not to be warranted by any sound construction of the Charter; if it could be so, we do not know where the land and territory of the Hudson's Bay Company, granted by this Charter, terminate, nor what are the parts of that vast Continent, on which they have taken upon them to grant 116,000 miles of territory, exempted from their proprietorship under their Charter. Indeed, there may be sufficient reason to suppose that the territories in question, or part of them, had been then visited, traded in, and in a certain degree occupied by the French settlers or traders in Canada, and their Beaver Company, erected in 1630, whose trade in peltries was considerable prior to the date of the Charter. These territories, therefore, would be expressly excepted out of the Grant; and the right of British subjects in general to visit and trade in these regions would follow the national rights acquired by the King, by the conquest and cession of Canada, and as enjoyed by the French Canadians previous to that conquest and cession. No territorial right, therefore, can be claimed in the districts in question; and the exclusive trade there cannot be set up by virtue of the Charter, these districts being remote from any geographical relation to Hudson's Bay and to the Straits, and not being in any sense within the Straits, and not being approached by the Canadian traders, or other alleged interlopers, through the interdicted regions. Of course no violence to or interruption of trade could be justified there under these territorial claims. 2nd. Whether the Hudson's Bay Company were warranted in making a Grant to Lord Selkirk, as one of their own body, of the immense district of territory described in Governor M'Donell's Proclamation, notwithstanding the opposition of part of the Proprietors of Stock; and after making such Grant, has the Company any right to exercise their jurisdiction in appointing Governors and other officers over that district; or can they grant or transfer such |