power to his lordship? If you should be of opinion that the Grant to his lordship is illegal, or unwarranted by the Charter, what measures ought to be taken to set aside the same?

The validity of the Grant to Lord Selkirk may be considered both as it affects the members of the Company and the public at large.

If, contrary to our opinion, the land and territory in question were within the Grant, then the Grant of so large a portion of territory as that of Lord Selkirk, being not less than 116,000 square miles, might perhaps seem an abuse of the Charter, which might justify the interference of the Crown. Because, though the Company might have a right to make Grants of land, such Grants must be for the promotion of, or at least must be consistent with, the object of the Institution. But the Grant to Lord Selkirk tends to an establishment independent of the Company, inconsistent with the purposes of their Institution and its effect; erecting a sub-monopoly in one person, to the detriment both of the Company and of the public. The Company could confer no power upon Lord Selkirk to appoint Governors, Courts of Justice, or exercise any independent authority, nor could they, directly or indirectly, transfer their authority to him, to be exercised by him in his own name. Supposing the Grant of land to be such a Grant as falls within the power of the Company to make, their superior lordship and authority would continue as before, and must be exercised through them.

3rd. Whether the jurisdiction given by the Act of 43rd George III., to the Canadian Courts of Criminal Judicature, extends to the Territories of the Hudson's Bay Company, so as to entitle those Courts to try and punish offences committed within those territories. And whether Governor M'Donell and Mr. Spencer, his Sheriff, can legally be tried before the Canadian Courts for the offence with which they now stand charged?

There seems no reason to doubt that offences actually committed in the territories and districts in dispute, where no Court of Judicature is or ever has been established, might, in point of jurisdiction, legally be tried by the Courts of Canada, under the 43rd Geo. III., Cap. 138; and indeed, unless this district was within the provisions of that Act, we cannot discover what territory was meant to be included in it; but we think that though the jurisdiction might be capable of being supported, the acts done by Messrs. M'Donell and Spencer could not be deemed larceny, and that they, or others acting in similar circumstances, ought not to be indicted or brought to a trial for the crime of larceny. They acted, perhaps erroneously, upon a claim of territorial dominion and of exclusive commercial privilege, and may be liable to be proceeded against as for a trespass or other injury to persons or property; but we think they could not be properly convicted on a charge of felony.

4th. Is it competent to the Governors and other officers already appointed, or that may b appointed by the Hudson's Bay Company, to seize and bring to trial before their Courts of Judi cature, His Majesty's Canadian subjects who may be found trading within the Company's territories, for infringing the Company's monopoly, or for committing any other alleged crime or offence?

Supposing the Charter of the Company valid, and the districts in dispute to be within their limits, we should still doubt whether the Governor and Company have lawful power by the Charter to establish courts for the trial by the laws of England of offences committed therein. That power the Company have never yet attempted to exercise, though nearly 150 years have elapsed since they procured their Charter. But if they should still possess this extraordinary power without further authority, legislative or regal, we should nevertheless think that no Courts there established would have authority to try, and punish as an offence, the act of going there simply; which, if the grant be legal, could amount at the most only to a misdeameanour or contempt of the King's lawful authority to be prosecuted at the suit of His Majesty. But the Charter itself seems to take the offence, as far as the Company are concerned, out of the jurisdiction of the local Courts by (illegally indeed) prescribing certain forfeitures, and declaring (page 12) "that every the said offenders, for their said contempt to suffer such punishment as to us, our heirs and successors, shall seem meet or convenient, and not to be in amprize [anywise ?] delivered until they and every of them shall become bound unto the said Governor for the time

being, in the sum of £1,000 at least, at no time thereafter to trade," &c. A subse quent clause (page 16) authorizes the seizing and sending to England those who come into their territories without authority. It seems, therefore, that the Courts in question would have no power to try as an offence at Common Law the mere coming into the Company's territories contrary to the prohibition in the Letters Patent, which point out other modes of proceeding, and legally confer no other powers applicable to the case.

If the question were merely a question of boundary between two acknowledged adjacent colonies or provinces, it might perhaps be determined by the King in Council, where we apprehend such a jurisdiction is vested, and has been exercised, but that probably would not set at rest the principal points, or prevent interference. The validity of the Grant of an exclusive trade might, we apprehend, be tried directly by Scire Facias, or incidentially in actions of trespass, which, however, might still leave other main points undecided; and the Company might perhaps be capable of retaining some part of what has been granted to them, and might fail as to many others. In these circumstances, it appears that interests and pretensions so opposite, and which may be productive of so much confusion and disorder, and of consequences so dangerous and destructive to the persons and properties of those who, by reason of the failure of the ordinary means of protection afforded by the law, may be said to be peculiarly under the safeguard of Government, can only be effectually and satisfactorily adjusted and reconciled by Government, with the aid and authority of Parliament; and by that authority (after causing such an investigation into them as Government would, in such a case, probably feel it indispensable to make, and are fully possessed, by the law officers of the Crown and otherwise, of all the means of making,) due allowance would be made for such rights of the Company as were deemed legal and well founded, and protection and freedom secured to the Canadians as well as to the rest of the King's subjects, in the prosecution of that commerce which the Canadians have long enjoyed, and which the rest of the King's subjects have frequently, and whenever they thought proper, carried on, and which, it is stated to us, they have never been hitherto attempted to be interrupted in by the Hudson's Bay Company.

OPINION OF SIR RICHARD BETHELL, A. G., AND SIR HENRY S.

KEATING, S. G., 1857.*

LINCOLN'S INN, July, 1857.

SIR, 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, inclosing 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 these 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 the 12th of 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 of 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 be 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,

* Printed with the Report from the Select Committee [of the House of Commons] on the Hudson's Bay Company, etc., 1857, p. 403.

1849, containing, among other papers, an Act of 2nd 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 have 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 should 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 advisers 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 ten or twenty 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 ownership. 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 an 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, 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 consequence 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 by-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.

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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 for consideration is the question of the geographical extent of the territory granted by the Charter, and whether its boundaries can in any 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 enquiry (as suggested by the following words of the Charter, viz, "not possessed by the subjects of any 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 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 agree to the proposal of the Chief Justice of Canada, that the question of the 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.

The Right Honourable

H. Labouchere, M.P., &c.

We are, &c.,

RICHARD BETHELL,

HENRY S. KEATING.

XII.

Judicial Proceedings.

LIMITS OF TADOUSSAC.

ORDINANCE ON THE SUBJECT OF THE BOUNDARIES OF THE KING'S DOMAIN, CALLED THE LIMITS (TRAITE) OF TADOUSSAC, MAY 23RD, 1733.*

GILLES HOCQUART, ETC.†

Reference being had to the request presented to us by M. Pierre Carlier, AdjudicatorGeneral of the united farms of France and of the domain of the West, stipulating for himself and Sieur Cugnet, director of the said Western domain in this country, seeing that for the reasons therein contained, it is our pleasure (reference being had to the decree (arrêt) of the King's Council of State, May 16, 1677, and the decree of the Superior Council of Quebec, of the 19th October, 1658, giving control of the trade of Tadoussac to Sieur Demaure, the ordinance of M. Raudot of the 25th September, 1707, and the ordinance of M. Begon of the 5th April, 1720), to ordain that the said Carlier, his successors, farmers of the said Western domain, their attorneys, deputies, and overseers, continue to enjoy (faire) alone, to the exclusion of all others, the trade (traite), hunting, fishery, in the extent of the King's domain, from the Isle aux Coudres to a point two leagues below the Seven Islands, and in the posts of Tadoussac, Chekoutimy, Lake St. John, Nekoubau, Mistassinoc, Papinachois, Naskapis, River Moisy, the Seven Islands, and the places dependent on them, comprising the lands and Seigneury of Malbaye ;

Consequently all persons, of whatever quality and condition they may be, as well merchants and habitans of the colony, captains and masters of fishing-boats, barques, bateaux, ships, crews, and passengers, and all others whomsoever, are forbidden to trade, hunt, fish, or to carry on any commerce under any pretext, directly or indirectly, by themselves or by sending merchandise, provisions, liquors, or ammunition through friendly Savages, in the country dependent on the said limits (traites) of His Majesty's domain, without the express commission in writing of the said Carlier, the farmers his successors, their attorneys, deputies, overseers, on pain of the confiscation of the arms, products of the hunt (chasse), merchandise intended to be used in trade, furs and other effects obtained in trade, canoes, large boats, barques, fishing-boats, bateaux, and all other vessels whatever, and a fine of two thousand livres, which can neither be remitted nor lessened under any pretext whatever; of which confiscations and fines two-thirds shall belong to the said Carlier, and the other one-third to the informer;

All persons, of whatever quality and condition, who descend the river Saint Lawrence in canoes, large boats, fishing-boats, or other small vessels, are equally forbidden to land on

*Edits, Ordonnances, etc., Quebec, 1855, Vol. II., p. 358.

La Traite de Tadoussac is also referred to in the following official documents, of an earlier date than this, appearing in the same work, viz. :--

Arret of the Superior Council of Quebec, of 4 October, 1663, setting aside a lease of the Limits of Tadoussac made by the former Governor, Sieur Davaugour, to sundry persons in the month of March previous. Vol. II., pp. 7-9.

Arrêt of the King's Council of State, dated at Versailles, 8th April, 1666, confirming the Company of the West Indies in their enjoyment of the Limits of Tadoussac. Vol. I., p. 60.

Mandement of the King, dated 8 April, 1666, relating to the preceding arrêt. Vol. I., p. 61.

Reply of MM. de Tracy, Courcelle and Talon, dated 11 September, 1666, to a petition of the AgentGeneral of the same Company, referring to the terms upon which the Company held, inter al, the privilege of the Limits of Tadoussac. Vol. I., p. 53.

Memorial of the farmer of the Limits of Tadoussac presented to the King; the royal answer to which is dated Saint Germain-en-Laye, 15 April, 1676. Vol. 1., p. 87.

+ Intendant, etc., of Canada.