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 14 February 1860, CO 305:15, no. 1579, 393.
Abstract
Public Offices document.
Minutes (6), Other documents (1), Marginalia (3).
Berens sends Newcastle a detailed argument explaining why the HBC
believes that the land it claims near Victoria is owned in fee simple. The Colonial Office
debates the merits of the case in the lengthy minutes.
Berens to Newcastle
14 February 1860
I have the honor to acknowledge the receipt of Mr Under Secretary
Merivale's letter of the 7th instant in reference to the lands in
Vancouver's Island claimed by this Company as having been possessed
by them prior to the Grant of 1849, and I assume that the only
question now to be considered is whether the recognition by Lord Grey
of the Company's claim to that land extended to the possession by
this Company of an absolute property in the
the land in question, or only
to their right to possess it during the continuance of the Grant made
to them of the entire Island.
the land in question, or only
to their right to possess it during the continuance of the Grant made
to them of the entire Island.
I think I shall have no difficulty in satisfying your Grace that the
claim of this Company which was brought under the consideration of the
Colonial Office, first in 1846, and afterwards more particularly in
the year 1852, referred solely to an absolute right to the property
in question, and that no other right was ever contemplated on the
part of this Company or understood by the Colonial Secretary.
The land in question was originally taken possession of by this
Company
Company for the purposes of the Fur Trade, and your Grace will not
fail to observe that in the letter from Sir John Henry Pelly to the
Colonial Secretary, of the 14th January 1852, he mentions that Mr
Pemberton, the Colonial Surveyor, had sent home surveys of the Land
which the Fur Trade of this Company had proposed to take, but that he
had omitted to distinguish what they possessed previous to the
Boundary Treaty (that is to the year 1846) from the whole quantity,
and he goes on to State that the former will be made over to the
company,
without purchase and that for any addition thereto they would
have to pay 20/- per acre as all other Settlers do.
Now
Company for the purposes of the Fur Trade, and your Grace will not
fail to observe that in the letter from Sir John Henry Pelly to the
Colonial Secretary, of the 14th January 1852, he mentions that Mr
Pemberton, the Colonial Surveyor, had sent home surveys of the Land
which the Fur Trade of this Company had proposed to take, but that he
had omitted to distinguish what they possessed previous to the
Boundary Treaty (that is to the year 1846) from the whole quantity,
and he goes on to State that the former will be made over to the
company,
without purchase and that for any addition thereto they would
have to pay 20/- per acre as all other Settlers do.
Now it is quite clear that by the payment of 20s/- per acre, the
party paying it acquired the absolute fee-simple of the land
conveyed, and it is equally clear that Sir J.H. Pelly in his letter,
treated the title of the Company as the same in both cases, only that
in the one case the purchase money was to be paid, but in the other
no purchase money was required, as the company's title was founded
upon a previous possession—a title which had been already recognized
as giving the right to the fee-simple in the case of the land
occupied in the Oregon Territory prior to
to the Boundary Treaty.
to the Boundary Treaty.
Sir J.H. Pelly's letter of the 4th February in the same year in
reply to one from Mr Under Secretary Peel of the 2nd of that month,
is equally clear upon this point, as he there states distinctly that
the Company claimed these lands as theirs without purchase, and he
pointedly refers to the lands at Fort Victoria, in Vancouver's
Island, where an establishment was formed in the year 1843.
Your Grace will observe that no suggestion whatever is offered that
the title put forward on behalf of this Company had any connection
with the termination
termination of the Grant of the Island; but on the contrary
it is clearly referred to as conveying the same rights as would have
been acquired by absolute purchase, and indeed, if the title of this
Company to these Lands had not been so unequivocally admitted by Lord
Grey in the correspondence in question, this Company would at that
period have paid the purchase money for the Land they then held,
rather than have sacrificed the large outlay they had already made
upon it. Besides this, Your Grace will also find that in a letter
addressed to Sir John Pakington on the 24th of November 1852, not
not
only is an intimation given that the Company were in possession of
this Land under the sanction of Her Majesty's Government (referring
to the previous correspondence with Lord Grey), but it is distinctly
stated that they had actually sold portions of it to some of their
retired servants who had settled upon it. Of course any such sale
could only be a sale of the absolute fee simple, but to put the
matter beyond all doubt, this Company are registered as the Owners of
this Land, precisely in the same manner as they and all others are,
of land acquired by purchase since the date of the Grant and they
have from
from time to time disposed of portions of it to parties who are
now registered as the Owners.
termination of the Grant of the Island; but on the contrary
it is clearly referred to as conveying the same rights as would have
been acquired by absolute purchase, and indeed, if the title of this
Company to these Lands had not been so unequivocally admitted by Lord
Grey in the correspondence in question, this Company would at that
period have paid the purchase money for the Land they then held,
rather than have sacrificed the large outlay they had already made
upon it. Besides this, Your Grace will also find that in a letter
addressed to Sir John Pakington on the 24th of November 1852, not
not
only is an intimation given that the Company were in possession of
this Land under the sanction of Her Majesty's Government (referring
to the previous correspondence with Lord Grey), but it is distinctly
stated that they had actually sold portions of it to some of their
retired servants who had settled upon it. Of course any such sale
could only be a sale of the absolute fee simple, but to put the
matter beyond all doubt, this Company are registered as the Owners of
this Land, precisely in the same manner as they and all others are,
of land acquired by purchase since the date of the Grant and they
have from
from time to time disposed of portions of it to parties who are
now registered as the Owners.
I would venture again to call your Grace's attention to the letter
from the Secretary of this Company to the Secretary of the Government
Emigration Board of the date of the 21st January 1859 which really
seems to me to remove all doubt upon the subject.
I trust therefore that there will now be no hesitation on the part of
the Government in recognizing the right of this Company
Company to this Land,
without any reference to the Judicial Committee.
Company to this Land,
without any reference to the Judicial Committee.
Minutes by CO staff
Mr Fortescue
I can see no reason in this reply for departing from the decision already taken. Answer that the Secy of State is unable to alter the view which he has already communicated to the Co. on the subject of this claim, but repeats his offer of a reference to the Judl Committee?
I can see no reason in this reply for departing from the decision already taken. Answer that the Secy of State is unable to alter the view which he has already communicated to the Co. on the subject of this claim, but repeats his offer of a reference to the Judl Committee?
The servants of the Co. and others to whom the Co. sold part of 
this
land, are safe so far as I can see. The Company had a right to
"sell" all the land. The only question in their case is, whether the
Company made a proper use of the purchase money in treating it as
their own: a question with which they, the purchasers, have nothing
to do.
this
land, are safe so far as I can see. The Company had a right to
"sell" all the land. The only question in their case is, whether the
Company made a proper use of the purchase money in treating it as
their own: a question with which they, the purchasers, have nothing
to do.
HM
F 15
Duke of Newcastle
The sale from time to time of portions of their Reserves, and retention of the purchase money by the H.B.Co. proves at all events that this claim of private property in the Reserves is not an after-thought, but was believed in by the Co. during the period of the Grant, and, I suppose, not disputed by the authorities.
The sale from time to time of portions of their Reserves, and retention of the purchase money by the H.B.Co. proves at all events that this claim of private property in the Reserves is not an after-thought, but was believed in by the Co. during the period of the Grant, and, I suppose, not disputed by the authorities.
I confess—altho' I differ with great hesitation from Mr Merivale &
yourself—that I am disposed to think that the Co are right in this
matter—that the Lands referred to in Sir J. Pelly's letter of Feb.
4. 1852, and Lord Grey's answer of Feb. 13. must be now treated upon
the same 
footing as Lands bought by the Co. subsequently to the Grant
of the Island—with the condition laid down by Lord Grey as to the
actual occupation & use.
footing as Lands bought by the Co. subsequently to the Grant
of the Island—with the condition laid down by Lord Grey as to the
actual occupation & use.
If we maintain the contrary, observe the result. There will be three
classes of Land in the Island—1. The ordinary land, settled or
unsettled (the latter reverting to the Crown). 2. The Land bought
by the H.B.Co. wh. remains their private property. 3. The land now
in discussion, wh. if
not their private property, must revert to the Crown, upon
payment of the value of all improvements, stock &c upon it.
I cannot see that such payment as this is consistent with the
principle, now acquiesced in on all sides that payment is to be made
to the Co, not as private traders & landlords, but only as owners &
Governors of the whole Country, and for expenditure of a public
nature.
It is true that the whole island is by the Grant made re-purchasable
by the Crown. But that, it seems, is consistent with the Co
retaining lands acquired by purchase, and, remembering the
correspondence between Lord Grey & Sir J. Pelly, I do not see 
why it
sh. not be consistent with their retaining lands acquired by previous
occupation.
why it
sh. not be consistent with their retaining lands acquired by previous
occupation.
As to their apparent admission in 1858 (see Mr M's minute on 533) it
must be remembered that the statement of accts wh. contained it was
their
first claim, wh. included private property—Farms, Mills &c—as
well as public. I may be wrong, but these points are, I think, worth
considering before a peremptory reply is given to Mr Berens.
CF
17
Mr Merivale
The above Minute of Mr Fortescue's is important. I think the remark in the first paragraph exonerates the Cy from the charge which their mode of proceeding at first gave a colour to—but as regards the latter observations I am unfortunately just now too much occupied to
test them by the former correspondence. As it is desirable not to
let this matter be suspended longer than can be avoided will you be
good enough to look at it again with Mr Fortescue and let me know
the result.
The above Minute of Mr Fortescue's is important. I think the remark in the first paragraph exonerates the Cy from the charge which their mode of proceeding at first gave a colour to—but as regards the latter observations I am unfortunately just now too much occupied to
test them by the former correspondence. As it is desirable not to
let this matter be suspended longer than can be avoided will you be
good enough to look at it again with Mr Fortescue and let me know
the result.
N
19
Mr Fortescue
Since looking at the question with you I have applied my mind to it farther, & I cannot reconcile it to my own view of the case to propose any other answer than that suggested in the annexed draft letter to Mr Berens. We are now aware—since consulting Mr Pemberton the surveyor—that the real question so delicately
veiled
by the Company, is, whether they are to be the ground landlord of
the whole City of Victoria—a place destined, in reasonable
probability, to a very great & very speedy advance to opulence. It
is of no use regretting now the want of foresight which prevented
us, in Lord Grey's time, from seeing to what end an apparently slight
concession might lead. Nor is it of any use to complain of the
systematic suppression of what was really material by
the Company (naturally & in their own interest) and by the Governor,
who unluckily was the Company's man. The question is, whether, on
account of some expression of Ld Grey to which you attach rather
greater force than I do, we are to abandon, as trustees for the
public, this most important property. I own I cannot think so. But
having said this much, I leave the question in your hands, to act on
your views if you still differ.
Since looking at the question with you I have applied my mind to it farther, & I cannot reconcile it to my own view of the case to propose any other answer than that suggested in the annexed draft letter to Mr Berens. We are now aware—since consulting Mr Pemberton the surveyor—that the real question so delicately
veiled
by the Company, is, whether they are to be the ground landlord of
the whole City of Victoria—a place destined, in reasonable
probability, to a very great & very speedy advance to opulence. It
is of no use regretting now the want of foresight which prevented
us, in Lord Grey's time, from seeing to what end an apparently slight
concession might lead. Nor is it of any use to complain of the
systematic suppression of what was really material by
the Company (naturally & in their own interest) and by the Governor,
who unluckily was the Company's man. The question is, whether, on
account of some expression of Ld Grey to which you attach rather
greater force than I do, we are to abandon, as trustees for the
public, this most important property. I own I cannot think so. But
having said this much, I leave the question in your hands, to act on
your views if you still differ.
HM
F 25
Duke of Newcastle
I have looked again into this matter, and cannot see it as Mr Merivale does. Speaking with all humility, as one unlearned in the law, I cannot but think that the Co wd. make their title good. But if there were every reason for thinking that such is not the case, in point of law, I still think that we could not, after all that has passed, fairly use our legal rights agst them—except for the purpose of bringing them into terms for the protection of public interests at Victoria, such as the setting apart of public parks, or any object of that kind.
I have looked again into this matter, and cannot see it as Mr Merivale does. Speaking with all humility, as one unlearned in the law, I cannot but think that the Co wd. make their title good. But if there were every reason for thinking that such is not the case, in point of law, I still think that we could not, after all that has passed, fairly use our legal rights agst them—except for the purpose of bringing them into terms for the protection of public interests at Victoria, such as the setting apart of public parks, or any object of that kind.
It may assist you in coming to a decision on this case to have
before you in one view all the statements made to us by the Co. from
time to time as to these Reserves, and all the admissions we have
made to them as to their tenure, and I will therefore extract them
here from the Papers.
Govr Blanshard writes on the 28th April 1851 complaining of a
proposed expenditure by the HB Co. of £4000 on public buildings,
which, he says, "will then be surrounded by their reserves, wh.
they are neither prepared to use or sell. The large tract of land
called their reserves, of about 30 square miles 
in extent, includes
the only part of the Island, in the Straits of Fuca, in any way
adapted for the first settlement &c."
in extent, includes
the only part of the Island, in the Straits of Fuca, in any way
adapted for the first settlement &c."
This desp. was sent to the HB Co. for explanations, wh. Sir J. Pelly
furnishes in his letter to Ld Grey of the 10th Sepbr 1857. He
says it had been thought that "the Fur Trade branch of the Co wd.
require a considerable quantity of land
in addition to that wh. they possessed before the conclusion
of the Boundary Treaty of 1846 &c" that the Puget Sound Co. had also
intended to buy "a tract of land
near the Fur Trade Reserve." But that it was found that "the
land occupied by the Fur Trade at Fort Victoria previous to 1846" was
enough, and they wd. not buy any more then. Upon this there is a
minute of Sir B. Hawes, wh. is worth noticing. He writes
"As to the buildings being placed in the midst of
the Co's reserves, I think it objectionable, unless very clear
provision be made for a
free access to them in the event of the surrender of the
Charter," and again "I suppose therefore the proposed outlay is
wholly on the Co's land, which I think objectionable."
MrB. Hawes evidently understood the Co's Reserves 
to be their
private property, wh. wd. remain so, after the surrender of the
Charter.
to be their
private property, wh. wd. remain so, after the surrender of the
Charter.
Mr Merivale and Lord Grey say, in their minutes, that if the Co
reserve land for their private purposes, they ought to pay for it,
like other settlers.
In July 1851 Admiral Moresby writes "Large tracts of land
surrounding Victoria and Esquimalt are reserved by the Co &c."
This is referred to Sir J. Pelly, who writes, Novbr 7. 1851
referring to his former letter and saying that "the land reserved for
the Fur Trade" is 6 square miles & not 20—that it was "in the Co's
possession" before the Boundary Treaty—and that "should any addition
to the quantity be required, the Co. will pay for it, as other
settlers do." Another letter follows from Sir J. Pelly—Jan. 14.
1852—repeating more fully the same statement as to the Fur Trade
Reserves—wh. is quoted by Mr Berens in his recent letter.
Lord Grey, by a letter of the 2nd Feb asks for "some further
explanation as to the distinction between the lands wh. the H.B.Co.
possessed before the Boundary Treaty and others" wh. Sir J. Pelly
gives in a letter of the 4th Feb. He says "These lands they
claim as theirs without purchase and the possessory rights thus
acquired in the territory S. of the 49th parr. have been guaranteed
to them by the Boundary Treaty. Among the lands occupied by the Co.
N. of the 49th par. is that situated
at Fort Victoria in V. Island where they formed an establishment
in 1843 &c."
gives in a letter of the 4th Feb. He says "These lands they
claim as theirs without purchase and the possessory rights thus
acquired in the territory S. of the 49th parr. have been guaranteed
to them by the Boundary Treaty. Among the lands occupied by the Co.
N. of the 49th par. is that situated
at Fort Victoria in V. Island where they formed an establishment
in 1843 &c."
"Its exact extent has not yet been ascertained by the Co's
Surveyor—but, whatever that may be, the Co. consider that they have a
right to hold that land without paying for it, while for any
additional quantity &c."
Mr Merivale's minute on this—"of course
it could not be intended that land actually occupied by the
H.B.Co in Van. Id at the date of their agreement with Govt sh. be
charged for & paid for like other land.
The only question that can arise will be as to the amount of
such land."
The words of Lord Grey's answer & decision (13 Feb. 1852) are—"His
Lordship having considered this explanation directs me to state that
he is not disposed to question the right of the Co. to land
actually occupied by them previously to the arrangement for
constituting Van. Id a Colony."
The letter calls for an accurate description of their lands & ends
thus "I am directed to add that his Lordship understands the claim you
prefer to be strictly confined to land actually occupied & made use
of, beyond which he conceives that it ought not on any account to be
extended."
This correspondence was sent to Govr Douglas, with directions to
furnish any information in his power as to the extent & description
of the lands in question. This he does by his letter of 25th June
1852, accompanied by a sketch map of the Co. reserves in the District
of Victoria. One remark of his is worth quoting—"With the
exception" he says "of the farm
at Fort Victoria, wh. is advantageously situated on Victoria
Harbour, & will become valuable as the Colony improves, the Co's
farms possess no exclusive advantage."
In July 1852 Sir J. Pakington asked the Co. for information as to the
progress of the Island—wh. was furnished by them on the 24th Novbr
in a letter stating the quantity of land sold &c—& containing the
following passage—"The
Fur-Trade branch of the H.B.Co. are in possession, under the
sanction of H.M.'s Govt of 3084 acres of land, wh. were 
occupied by
them previous to the date of the Boundary Treaty. They have
sold portions of this land to some of their retired servants
who have settled themselves upon it."
occupied by
them previous to the date of the Boundary Treaty. They have
sold portions of this land to some of their retired servants
who have settled themselves upon it."
In 1853 the Co. caused these lands to be registered in the office of
the Registrar of Deeds in Van. Id—in their name—as land occupied
by them previous to the Treaty of 1846—Lot 24—being "in the
neighbourhood of Victoria."
In Feb. 1858, at the request of Mr Labouchere, the Co. sent in their
Claim No. 1. comprising a statement of the value of their property
of every kind. This contained an item "Land £3084" explained
then by a note—"This Land, comprising 3084 acres having been possessed
by the H.B.Co. as Fur Trade Reserves previous to the Grant of the
Island in 1849, it will have to be considered whether the price to be
paid shall not be the current value of the land instead of the fixed
price of £1 per acre."
[Truly?] therefore, [telling?] in my [view?] that government had [a]
right to take [it] back—only [three words illegible].
[One word off file] private property—under first claim?
In Augt 1858 the Co. accepted the decison of the Govt, founded on
the opinion of the Law Officers, that the Govt was only bound to
compensate them 
for the value of the property
connected with their ownership of the Island under the Grant
and on the 2nd Novbr they sent in an amended account, "drawn up in
strict conformity with the principle laid down by Lord Carnarvon &c"
from which the "Fur Trade Reserves" were of course omitted, as
private property.
for the value of the property
connected with their ownership of the Island under the Grant
and on the 2nd Novbr they sent in an amended account, "drawn up in
strict conformity with the principle laid down by Lord Carnarvon &c"
from which the "Fur Trade Reserves" were of course omitted, as
private property.
The question of the true character of these lands has since arisen,
out of the correspondence as to the sale of the old Govt buildings at
Victoria, and the advance of a sum of money by Mr Dallas, the Co's
Agent to Govr Douglas, in consequence of such sale. In the course
of these proceedings the Govr informed the Assembly that those
buildings were "the property of the H.B.Co." and Mr Pemberton, the
Surveyor General, told them that he & the Govr "had at first
believed them (buildings & site) to belong to the Govt—but upon
the return of the Agent of the Fur Trade Co, they had been convinced,
after taking legal advice upon the matter, that the Fur
Traders were the rightful 
owners of the aforesaid property" (in
12465). As a matter of fact, the Co. has treated these lands all
along as their private property—and since the site acquired, by the
Gold discovery, a greater & earlier value than Mr Douglas could have
anticipated, when he wrote his letter of June 1852, they have sold
portions of it as building ground in the Town of Victoria, to the
amount, as Mr Pemberton told Mr M. & myself, of some £30,000.
Sales wh. of course were notorious, but the proceeds of wh. they did
not carry, nor were ever asked, nor, as far as appears, expected to
carry, to the public acct. of the Island.
owners of the aforesaid property" (in
12465). As a matter of fact, the Co. has treated these lands all
along as their private property—and since the site acquired, by the
Gold discovery, a greater & earlier value than Mr Douglas could have
anticipated, when he wrote his letter of June 1852, they have sold
portions of it as building ground in the Town of Victoria, to the
amount, as Mr Pemberton told Mr M. & myself, of some £30,000.
Sales wh. of course were notorious, but the proceeds of wh. they did
not carry, nor were ever asked, nor, as far as appears, expected to
carry, to the public acct. of the Island.
But Mr Pemberton said [cut off file] he had expressed his
opinion that the balance was [cut off file]
either [one word off file]—Clearly [showing?] that in
[the?] island the right was regarded as doubtful.
After all this—can we now interpret Lord Grey's concession as
meaning nothing but a permission to
use these lands during the continuance of the Grant, with an
implied condition that on its termination they sh. revert to the
Crown, without purchase or Compensation? It is true that the
language of the Co. in stating 
its claims to this office was not as
plain & straightforward as it ought to have been. Still it amounted,
I think, to much more than a mere claim of usufruct during the
continuance of the Grant—and must have been so understood here & in
Van. Id. The fact of the Co. turning out, by good luck, to be the
"ground landlords of the whole City of Victoria," naturally startles
one, & has roused Mr Merivale to battle in behalf of the Public. I
fear myself it is too late at all events, before we insist on our
rights so far as to require the Co. to go before the Judicial
Committee. I would suggest that the case sh. be laid before a fresh
mind—and a legal one. Indeed I would consult the Law Officers upon
the point.
its claims to this office was not as
plain & straightforward as it ought to have been. Still it amounted,
I think, to much more than a mere claim of usufruct during the
continuance of the Grant—and must have been so understood here & in
Van. Id. The fact of the Co. turning out, by good luck, to be the
"ground landlords of the whole City of Victoria," naturally startles
one, & has roused Mr Merivale to battle in behalf of the Public. I
fear myself it is too late at all events, before we insist on our
rights so far as to require the Co. to go before the Judicial
Committee. I would suggest that the case sh. be laid before a fresh
mind—and a legal one. Indeed I would consult the Law Officers upon
the point.
CF
29 F
I have read very carefully the above Minute, and whilst I admit that
there is much to shake my 
confidence in the result of an appeal to
the Jud: Comee of Privy Council I do not think there is enough
to make it possible for me as the guardian of the rights of the Colony
to yield the claims of the Company without being strengthened by a
legal opinion. I should have had no objection to Mr Fortescue's
proposal to consult the Law Officers if time were not of importance.
At this season the Law Officers could not attend to such a case and
send us a report for some weeks and my own belief is that we should
then have to fall back upon a Court of Law. Upon the whole therefore
I approve 
Mr Merivale's draft and will renew the proposal of
reference to the Judicial Committee. A similar reference in another
case pending between this Office and the company originated with the
latter and was agreed to by us, and I confess the hesitation of the
Company in the present instance looks as if they were not very
confident of the strength of their claims.
confidence in the result of an appeal to
the Jud: Comee of Privy Council I do not think there is enough
to make it possible for me as the guardian of the rights of the Colony
to yield the claims of the Company without being strengthened by a
legal opinion. I should have had no objection to Mr Fortescue's
proposal to consult the Law Officers if time were not of importance.
At this season the Law Officers could not attend to such a case and
send us a report for some weeks and my own belief is that we should
then have to fall back upon a Court of Law. Upon the whole therefore
I approve 
Mr Merivale's draft and will renew the proposal of
reference to the Judicial Committee. A similar reference in another
case pending between this Office and the company originated with the
latter and was agreed to by us, and I confess the hesitation of the
Company in the present instance looks as if they were not very
confident of the strength of their claims.
N
7-3
