Murdoch and Rogers to Merivale (Permanent Under-Secretary)
Emigration Office
7 May 1859
We have to acknowledge your letter of 28th ultimo, enclosing a further letter from the Hudson's Bay Company on the subject of their claim to be reimbursed the expenses incurred in searching for Coal at Fort Rupert in Vancouvers Island.
2. In our Report of 26th March last we pointed out, that this claim must depend upon the question whether, if this mine had succeeded, it was the intention of theManuscript imagethe Company to sell or Lease it to themselves, or in any way to hold or work it for their own advantage—or whether the proceeds would have been carried to the public Revenue, the Company receiving no more than the percentage allowed them by the Grant of 19th January 1849. This question having been put to the Company they reply, that they cannot bring evidence of an intention to carry the proceeds of the mine to the public account because as no proceeds were ever accrued the question never arose, nor do they explicitly state that any such intention existed. But they allege that the searchManuscript imagesearch for coal was undertaken as a means of promoting Colonization—that it had the effect of adding a number of Miners and other Emigrants to the population—and, therefore, that if they have no strictly legal right, they have an equitable claim to the liberal consideration of H.M. Government. They add that the Coal Mine at Nanaimo has hitherto been unremunerative.
3. The claim then being abandoned as a matter of right it only remains to be considered whether there are sufficient grounds in equity to require or justify its admission. This as it appears to us, must depend on the question whetherManuscript imagewhether the Company were bound in their capacity of owners and Governors of the Colony to find employment for Emigrants after their arrival in the Colony, and whether it was judicious to send out a class of Laborers for whom employment at their own occupation could be found only upon works undertaken by the Company. It appears to us that the answer to this question must be in the negative. The object of the Crown in handing over the colonization of Van Couvers Island to the Company was that it should be settled by a self supporting population, and the Company acting for the Crown were boundManuscript imagebound to regulate their selection of immigrants with reference to that object. If, as appears to have been the case, they introduced immigrants of a particular class and fitted only for a special description of labor, which they alone could provide, it must be inferred that they did so with a view to their operations as a Commerical Company, not to their obligations as Colonizers and owners of the Island. And considering that they had already an unremunerative Coal Mine at Nanaimo and that there was no reasonable prospect of any immediate increase in theManuscript imagethe demand for Coal we can hardly think that the introduction of so large a number of Miners was judicious.
4. Upon the whole, therefore, we are compelled to express our opinion that the Hudsons Bay Company are not entitled in equity to be repaid the amount claimed on account of the works at Fort Rupert.
Minutes by CO staff
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TFE 13 May
Mr Merivale
This paper was kept back whilst you were abroad as I was anxious to have Manuscript imageyour opinion before any decision sd be come to on it. Will you consider it.
C June 8
Lord Carnarvon
It is rather a nice point in my opinion: if to be decided by us, I should agree with the Commissioners. The only question which occurs to me as one of justice is, whether it would not be fair to the Company to submit this difference (which lies within a very [landed?] compass) to the arbitration of any man of business who might be fixed on. I should think that Ld Wensleydale, Sir John Coleridge, or any other retired judge, would undertake this as a little piece of public duty.
HM June 10
I quite agree in this suggestion wh considering the present relations of this Office to the H.B.C. will be I think Manuscript imagethe most satisfactory method of dealing with the case as regards all parties. If necessary I can see Lord Wensleydale—who wd be a very good arbiter—& propose the task to him. It need not give much trouble.
C June 10
Ld Carnarvon
The first step I think would be to ascertain whether Ld Wensleydale—Sir J Pattison if in town—or Sir J Coleridge, who is in town—all excellent arbitrators on such a subject—would have the kindness to take it in hand: premising that the public instruments and correspondence only will be submitted to the arbiter, unless he should call for more information himself.
If either of them [kindly?] agrees, then write officially to the H B Co. proposing this solution.
If Ld W. perhaps you will see him or write to him. If Sir J.C. I would undertake it if you wish.
HM June 11
Perhaps under present circumstances the question sd stand over for the decision of our Successor.
C June 13
My own opinion concurs with that of the Emn Comrs but I think Mr Merivale's suggestion (especially in existing circumstances) a very fair one and entirely approve of its adoption.
[One sentence cut off file].
Other documents included in the file
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Judicial Committee
June 24, 1859
My dear Merivale
I have left a letter I wrote to you at home. I will only say now shortly, that if I can be of any use, I shall be very glad to do what I can—only remember the Sanctity of the Long Vacation & don't force me up to London lightly during it—especially as when John & family leave London, I shall have no home to resort to.
I do not think the Judicial Committee can interfere with me in this matter, as I need not sit if it ever came here.
Yours very truly
J.T. Coleridge
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Draft, Fortescue to H. Behrens [Berens], Hudson's Bay Company, 1 July 1859, suggesting the company's claim in respect of the Fort Rupert coal mine might be submitted to an "impartial adviser."
[Sender not known.] to Merivale, Herman 7 May 1859, CO 305:12, no. 4720, 123. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871, Edition 2.2, ed. James Hendrickson and the Colonial Despatches project. Victoria, B.C.: University of Victoria. https://bcgenesis.uvic.ca/V595LN04.html.

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