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affairs of Government in the course of trade, ignorant as we are, in this rude and distant country, of the political views of nations.

We are convinced that the inestimable advantages arising from the endeavours of your Government to establish a more peaceful course of trade in this part of the territory belonging to the United States, are not acquired through the mere liberality of a nation, and are ready to contribute towards the expense necessarily attending them. We are not averse to pay the common duties established by law, and shall ever be ready to conform ourselves to all rules and regulations of trade that may be established, according to common justice.

I beg leave to be allowed to say that we have reason to hope that every measure will be adopted to secure and facilitate the trade with the Indians, and these hopes seem to be confirmed beyond the smallest idea of doubt, when we see a man sent among us who, instead of private consideration to pecuniary views, prefers the honour, dignity, and lenity of his Government, and whose transactions are in every respect so conformable to equity.

When we behold an armed force ready to chastise or protect, as necessity or policy may direct, we know not how to express our gratitude to that people whose only view seems to be to promote the happiness of all,―the savages that rove over the wild confines of their domain, not excepted.

It is to you, Sir, we feel ourselves most greatly indebted, whose claim to honour, esteem, and respect will ever be held in high estimation by myself and associates. The dangers and hardships by your fortitude vanquished and by your perseverance overcome, are signal, and will ever be preserved in the annals of the North-West Company. Were it solely from the consideration of those who have exposed their lives in a long and perilous march, through a country where they had every distress to suffer, and many dangers to expect (and this with a view to establish peace in a savage country), we should think ourselves under the most strict obligations to assist them; but we know we are in a country where hospitality and gratitude are to be esteemed above every other virtue, and therefore have offered for their relief what our poor means can allow.

And, Sir, permit me to embrace the opportunity to testify that I feel myself highly honoured by your acceptance of such accommodations as my humble roof could afford. With great consideration and high respect for the Government of the United States, allow me to express my esteem and regard for you.

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OPINION OF SIR D. RYDER AND SIR W. MURRAY, 1748.*

JOINT OPINION of the Attorney and Solicitor-General, SIR DUDLEY RYDER and SIR WILLIAM MURRAY, on a Petition which had been referred to the Privy Council, praying that the Petitioners might be incorporated, and that the Crown would grant to them the Property of all the Lands they should discover, settle, and plant in North America, adjoining to Hudson's Bay, not already occupied and settled by the Hudson's Bay Company, with the like Privileges and Royalties as were granted to that Company, with the Right of exclusive Trade. 1748.

We have taken the same (petition) into consideration, and have been attended by

* Forsyth's "Constitutional Law," p. 432.

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 ?

A. 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?

132, 167, 197,

con's Abr.

Monopoly:

p.

74, it is laid down in the text as Law,

that the King cannot by Charter grant

The prerogative of the Crown to grant an exclusive trade was formerly 7 State Trials, very much agitated in the great case of "The East India Company versus 493; 10 State' Sandys." The Court of King's Bench, in which Lord Jefferies then presided, Trials, new ed. held and decided that such a grant was legal. We are not aware that there 371, Skinner, has since been any decision expressly on this question in the Courts of Law, 223. In 4, Ba- 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 or 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.

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. The right of the Crown merely to erect a company for trading by charter, and make a Horn . Ivy, 1, grant of territory in King Charles the Second's reign, may not be disputable; Siderfin, 441; and on the other hand, besides that this Charter seems to create, or attempt 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 ubi 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 v. 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 similar description to any seizure of goods, imposition of fine or penalty, or arrest or imprisonthose in the ment of the persons of any of His Majesty's subjects. Probably the ComEast India pany would have some difficulty in finding a legal mode of proceeding Company's Charter in that against any of those who infringe their alleged exclusive rights of trading, 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

case considered.

a

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 the limits aforesaid."

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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

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