Reeve to Fortescue (Parliamentary Under-Secretary)

1. I have laid before the Lord President of the Council
your letter of the 6th instant enclosing a communication
from Mr Hamilton which states the views of the Lords
Commissioners of Her Majesty's Treasury on the subject of the
reference of the Petitions of the Hudson's Bay Company, to
the Judicial Committee of the Privy Council and I am
commanded by His Lordship to make the following observations
on this subject.

2. The Lord President entirely concurs in the opinion
of His Grace the Duke of Newcastle, expressed in your previous
letter of the 31st July 1860, that the question to be
referred to the Judicial Committee ought only to be that of
title; and that the subsequent question of the amount of
indemnity to be paid to the Company in the event of the
decision of the Judicial Committee being in their favor, may
more properly be settled afterwards between the Company and
the Executive Government.

3. But it is evident that a decision of the legal
question of title by the Privy Council in favor of the
Company would fairly be taken to establish the claim of the
Company to some indemnity; and indeed that is the prayer
of their Petition to her Majesty and the sole object of
the contemplated proceeding.

4. It does not appear however to the Lord President
that the Lords Commissoners of the Treasury in the letter
of their Secretary of the 20th February 1861 have taken
this view of the case.

5. Mr Hamilton says that if the proposed reference to the Judicial Committee comprehends merely the question of
title to the lands in question, the Lords Commissioners of
the Treasury are of opinion that they are not called upon
to become parties to the Reference; but if
any question relating to compensation to be awarded to the Hudson's
Bay Company in respect of such lands is involved in the reference,
then, before their Lordships can give their
consent to the proposed proceeding, they require further
information from the Secretary of State.

6. This reply appears to the Lord President to
withhold rather than to give the required assent of the
Lords Commissoners of the Treasury.

7. No advantage could arise (as far as the Lord
President is aware) from a discussion of the title to the
lands as an abstract question; nor would such a title
(if established) be of any value to the Company, except
in as much as it involves the principle of compensation,
or of restitution, by replacing the Company in possession
of the lands which are alleged to have been improperly
taken from them. But the prayer of the Petitions is
not for restitution but for payment of the value of lands
&c taken by the Officers of Her Majesty's Government.

8. In any case it would be highly inconvenient that
such a question should be debated at the Bar of the Privy
Council on one side only, and the Lord President apprehends
that it must be the intention of His Grace the Duke of
Newcastle or of the Lords Commissoners of the Treasury
to cause the Law Officers of the Crown to be instructed
to argue the case and examine the evidence on behalf of
the Crown. His Lordship therefore conceives that the
expression "the Lords of the Treasury are not called upon
to become parties to the Reference" cannot be taken to
mean that the Lords of the Treasury would not think it
necessary to take any share in the proceedings.

For the reasons before alleged it appears to the
Lord President that it is not expedient to impose on the
parties the expense of a hearing before the Privy Council,
or to impose on the Lords of the Judicial Committee the
duty of adjudicating upon this legal title, unless it be
upon a distinct intimation from the Lords Commissioners
of the Treasury that in the event of the decision being in
favor of the title of the Company to these lands, their
Lordships will consider such title to be established, as
the principle of the compensation prayed for by the
Company, and will therefore recognize that principle,
leaving the amount of the indemnity to be adjusted
hereafter between the Company and the Executive Government.

The Lord President therefore directs me to add that
as it appears to his Lordship that Mr Hamilton's
letter of the 20th February last does not contain any such
distinct intimation, but, on the contrary, asks for further
information before the Lords Commissoners of the Treasury
can give their consent to the proceeding, involving, as it
undoubtedly does, the question (though not the amount)
of compensation, his Lordship is of opinion that the reference
of the Petitions must be deferred until the Lords
Commissoners of the Treasury have favored his Lordship
with a more explicit declaration of their consent to abide
by the decision of the Judicial committee as to the principle
of compensation arising out of the legal title to the lands.