Colonial Despatches

Mr Elliot
On the 28 ulto this Office announced the proposed Suit to the Treasury. The Treasury have not directly ansd our Letter, but on the 4th inst their Solicitor wrote here for instructions for his guidance. The Council Office now say that the matter in debate involving a money question must have the expressed concurrence of the Treasury before the Judicial Committee can entertain the subject. I presume we must accy write to the Treasury in the sense pointed out in this Letter; but to enable the Treasury to judge fully the point submitted to their consideration I think we must borrow from the Council Office the Petitions lodged there by the Hudsons's Bay Co, in elucidation of their claims & send them to the T-y.

Mr Fortescue
I should doubt whether it is necessary for us to obtain copies of the Hudson Bay Company's Petitions for the purpose of sending them to the Treasury, inasmuch as their substance is stated in the present letter. What is wanted seems to me something more material and more difficult to supply. The Council desire to be informed whether the Treasury will be ready to give effect to any recommendations of the Judicial Committee for a pecuniary indemnity from the Government. In order to enable the Treasury to determine that point it would seem as if they would be entitled to expect from us some statement of the nature of the questions at issue with the Company, and of the kind and possible extent, so far as can now be perceived, of the pecuniary claims that might be established against the Government if the Company's views prevail. This would entail the preparation of a well drawn and careful letter from this Office to the Treasury.

Mr Murdoch
Will you let me have your opinion upon this, as soon as possible. As I understand the matter, no pecuniary question is raised by the reference to the Judicial Committee, but only one of title.

Mr Fortescue
I apprehend that a pecuniary question, as well as a question of title is raised by the reference of the H.B. Cos claim to the Judl Comme. By Govr Douglas' Despatch of 31 May 1859 No 161 you will see that a considerable portion of the Land claimed by the H.B.Co had been sold to settlers in B. Columbia, and more had been promised. If therefore the Co make out their title to more Land, they must be indemnified or the purchasers ousted. I apprehend that the latter will be impossible.

I am afraid it will be very difficult to give the Treasury even an approximate Estimate of the amount of indemnity that might be required. But possibly Mr Pemberton the Surveyor Genl if still in this Country might help you.

Mr Robinson
Sir F. Rogers should see this.

For Mr Murdoch

Mr Fortescue
I send you Drafts of letters to the Council Office & Treasury. I see on reading the Petitions of the H.B.Co. parts of which only Mr Reeve read to me the other day—that they do not raise the question of the repurchase of Vancouvers Island, as I had supposed. I enclose the Copies of the Petitions, as they may probably be useful at the Coll Office.

Mr Fortescue
I was unable to see Mr Reeve today till after you had gone to the House of Commons.

He pointed out that the Petitions of the Hudson's Bay Co raise not only the question of Title but the question of their claim to pecuniary indemnity in Vancouver Island for their general expenditure and in British Columbia for their Land sold by the Governor—that the letter from the Colonial Office of 4th July being in general terms involved the reference of the whole of these questions to the Judicial Committee—but that the Secretary of State may limit that reference to the single question of Title, if he desires to do so. The best course would probably be to explain, in answer to the letter of 9th instant, that it was not the intention of the Duke of Newcastle to refer to the Judicial Committee any question as to the amount of compensation to be awarded under certain circumstances to the Hudsons Bay Company, but only the question whether the Company could make out such a Title to be considered the owners of the Lands which they claim—as would entitle them either to be left in possession of those Lands or, if dispossessed, to be indemnified for the loss. I understood Mr Reeve that the Judicial Committee would willingly avoid any question of compensation.

But as the decision of Title if adverse to the Crown would necessarily involve the question of compensation Mr Reeve suggested that a Communication on the subject should be made to the Treasury. This I suppose there would be no difficulty in doing, although the amount of possible compensation cannot be precisely stated.

Mr Reeve further said that the case cannot be heard before the Judicial Committee till December at the earliest but that it would be desirable to have the reference made at the Council to be held before the Queen goes to Scotland. He is to send me copies of the Company's Petitions and if it would be a convenience to you I would, as I am probably more familiar with the case than anyone in the North American Department, draft the letters for your consideration.

I may observe in conclusion that the petition respecting Van Van Couvers Island Couvers Island reopens the whole question of the amount to be repaid on the repurchase of the Island by the Crown, which the Colonial Office refused last year to refer to Sir J. Coleridge. I suppose no part of the compensation the Company had agreed to accept has been paid to them, & hence the question reappears in a new form.

Mr Murdoch
On the contrary (as to your last sentence) £25000 has just been paid to the H.B.Co. on account of the repurchase of V. Id. I had not seen the Petition & had no idea of that question being re-opened, wh. was never intended.

I shall be much obliged, if you will draft the letters, as you propose.

Draft, Rogers to G.A. Hamilton, Treasury, 31 July 1860, concerning Hudson's Bay Company claims to land in the two colonies.

Draft, Fortescue to Reeve, 31 July 1860, reporting Newcastle's agreement to refer the question of title only to the Judicial Committee.

Draft, Reeve to Blackwood, Private, 11 February 1861, concerning compensation to the Hudson's Bay Company.

Draft, Murdoch to Blackwood, 11 February 1861, on payment of the indemnity to the Hudson's Bay Company.

Draft, Elliot to Hamilton, 15 February 1861, requesting reaction before the matter was referred to the Judicial Committee.