Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Public Offices document
Berens, Henry Hulse to Pelham-Clinton, Henry Pelham Fiennes 6 October 1859, CO 60:6, no. 10076, 65.
Abstract
Public Offices document.
Minutes (6), Other documents (2), Marginalia (2).
Berens responds to a copy of Douglas's despatch, and Newcastle's
viewson HBC land claims in the British Columbia colony. Within Merivale's minutes, which summarize HBC and Crown land-claim arguments, he observes that
The Company succeeded in getting words put into a treaty which, when construed by lawyers, made them landowners.
Berens to Newcastle
I have the honor to acknowledge the receipt of Mr
Under Secretary Merivale's letter of the 14th ulto:
conveying a Copy of a despatch from the Governor of
British Columbia on the subject of the claims of this Company to land in that Colony and detailing
your Lordship's
views as to the rights of this Company in respect of that Land.
I am quite willing to admit that, limiting your
Lordship's suggestions to the land acquired for comparatively
temporary purposes subsequent to the Treaty of Oregon
and which was more particularly referred to in my letter
to Sir EdwdBulwer Lytton
Lytton of the 12th October 1858,
this Company would be prepared to assent to your Grace's
views in respect of those rights; but I beg leave
respectfully to suggest that they have no application
to those lands in the District in question which were possessed
by this Company prior to the Treaty of Oregon and their
rights in regard to which were in all respects precisely
similar to those lands the rights in which were reserved to
them by the 3rd Article of the Oregon Treaty.
Lytton of the 12th October 1858,
this Company would be prepared to assent to your Grace's
views in respect of those rights; but I beg leave
respectfully to suggest that they have no application
to those lands in the District in question which were possessed
by this Company prior to the Treaty of Oregon and their
rights in regard to which were in all respects precisely
similar to those lands the rights in which were reserved to
them by the 3rd Article of the Oregon Treaty.
I take leave on this subject to call your Lordship's
attention to a communication received by this Company from
the Foreign Office under date the 24th June 1854
transmitting to this Company a Report made by the Law Officers
of the Crown to the Earl of Clarendon the then Foreign
Secretary which goes at great length and with great care into
the nature of rights of this character, and I am persuaded
that
that I need not anticipate from Her Majesty's Government a
less favorable consideration of the rights this Company have
acquired in that part of British Columbia which was ceded to
Her Majesty's Government than was secured to them through
the intervention of Her Majesty's Government, in those portions
of the Territories in question which were held to belong to
the United States; and I have therefore no difficulty in
saying that this Company will be satisfied that their rights
in the lands claimed by them under titles acquired prior to
the Treaty of Oregon should be dealt with on the principle
laid down by Her Majesty's Law Officers, and that as to those
which have been acquired since that Treaty and which were
alluded to more in detail in my communication to Sir Edw[ard]
Bulwer Lytton of
of the 12th October 1858, they should be
arranged upon the footing suggested by Mr Under Secretary
Merivale's letter of the 14th ulto.
We are not in possession of this document. Ask the Co for it?
See subsequent letter from Lds Advocate 10392 containing
a copy of this opinion.
that I need not anticipate from Her Majesty's Government a
less favorable consideration of the rights this Company have
acquired in that part of British Columbia which was ceded to
Her Majesty's Government than was secured to them through
the intervention of Her Majesty's Government, in those portions
of the Territories in question which were held to belong to
the United States; and I have therefore no difficulty in
saying that this Company will be satisfied that their rights
in the lands claimed by them under titles acquired prior to
the Treaty of Oregon should be dealt with on the principle
laid down by Her Majesty's Law Officers, and that as to those
which have been acquired since that Treaty and which were
alluded to more in detail in my communication to Sir Edw[ard]
Bulwer Lytton of
of the 12th October 1858, they should be
arranged upon the footing suggested by Mr Under Secretary
Merivale's letter of the 14th ulto.
Minutes by CO staff
Mr Blackwood
Will you obtain privately from the For. Office a copy of the opinion here referred to, which seems important.
Will you obtain privately from the For. Office a copy of the opinion here referred to, which seems important.
HM
O 12
Annexed.
ABd
18 Oct
Duke of Newcastle
See now 10392, annexed, covering the missing opinion. I have marked, in pencil, the important part of that opinion.
See now 10392, annexed, covering the missing opinion. I have marked, in pencil, the important part of that opinion.
The point is a curious one, and The Company have made
the best of it, as I thought they would.
The case stands shortly thus. The Company claims to
be regarded as proprietors of such lands, in Brit.
Columbia, as they may be fairly shewn to occupy. We
say, You shew no title to these lands: they are Crowns:
you are squatters only, tenants at will, entitled it may
be to equitable consideration, but not landowners. They
say, But by the Ashburton Treaty we were recognised as
proprietors of all we occupied in American Oregon: our
title there was neither better, nor worse, than in British
Columbia: Government cannot with justice term us squatters
as against themselves, land owner as against the Americans.
The opinion now sent elucidates this claim. The words
of the Treaty secure to The Company their "possessory rights."
The Law Advisers say, these words, in international language,
mean those of possession: "possession and absolute
property are identical."
It is plain enough that in law this argument of The Company
would amount to nothing, it is, in fact, a fallacy.
The Company succeeded in getting words put into
a treaty which, when construed by lawyers, made them
landowners: and the Americans acquiesced: what then?
The Americans might for the sake of peace have thought better
so to treat them: it does not follow that HM Govt are to
treat them in the same way when no purpose is to be gained thereby.
Suppose that, when the [debatable?]
land was divided some years ago between 
the State of Maine & Colony of
New Brunswick, each side had agreed (I do not know how
the fact was) to recognize squatters as land owners. Would
it follow that all squatters in Maine; and all squatters in
New Brunswick, became land owners by the avowal of
the respective governments? Yet this would be only
pushing a little further the argument used by The Company.
the State of Maine & Colony of
New Brunswick, each side had agreed (I do not know how
the fact was) to recognize squatters as land owners. Would
it follow that all squatters in Maine; and all squatters in
New Brunswick, became land owners by the avowal of
the respective governments? Yet this would be only
pushing a little further the argument used by The Company.
Nevertheless there is so much of plausibility in it as
will require very cautious dealing, if we persist in our
resolution to refuse the land claims.
HM
O 18
Other documents included in the file
Draft, Colonial Office to [Berens], no date, discussing the
company's land claims and the possibility of submitting the question
to the Judicial Committee of the Privy Council (extensive revisions).
[Note: This document is filed with Vancouver Island material and
appears on CO 305/13, p. 164.]
Minutes by CO staff
Copy to Mr Merivale 19 December 1859.
Other documents included in the file
Footnotes
- See also minute on Berens to Newcastle, 15 October 1859, 10380, CO 305/13, p. 139.