Berens to Lytton
Hudson's Bay House
London,
8th February 1859
Sir,
With reference to my letter of the 2nd Instant, I have now the honor to inform you that I have this day laid before the Board of Directors of the Hudson’s Bay Company the letter addressed to me by Lord Carnarvon on the 28th ulto: His Lordship by your directions therein informs me that Her Majesty’s Government “are not prepared to grant to the Company a renewal of the License under the Act of 172nd Geo: 4th Cass:66 but regard being had to the expiration of the present license in May next and the injury to the public interests in the regions comprised in the License which might in the present state of things arise from its termination at that date,
Her
Her Majesty’s Government are willing to grant to the Hudson’s Bay Company a fresh License for one year to commence from the expiry of the present license.”
 
The Board direct me respectfully to decline that offer. The acceptance on their part of the License for any period of shorter duration than that which has been usually granted since the passing of the Act above mentioned would, in their opinion, only further increase the inconvenience resulting from the state of suspense in which the question has been kept for the last two years. So far from strengthening it would paralyze their authority even within their own territory, from the impression it would create of the approaching termination of that authority. They do not require and never have applied for the license for the purposes of their
Trade
Trade. The Act passed at their suggestion in 1821 was intended for the preservation and maintenance of Peace and order in the whole of the Indian Territories. These had been grievously compromised by conflicts of the servants of rival Traders whose interests were about that time united. No means are provided in the Act for the enforcement of its provisions so as to give additional protection to the Trade. The intelligence of the renewal of the License for a year would not even reach a large portion of the posts of the Company before that period had expired.  
The Board beg respectfully again to bring under your review, the whole of the correspondence and proceedings which have had reference to this subject since their first application dated December
22nd
22nd 1856
for a renewal of the License.  
In consequence of that application and of the approaching period of the expiration of the existing License, the late Secretary of State for the Colonies, Mr. Labouchere, referred the matter to the consideration of a Committee of the House of Commons. Much evidence was taken before that Committee. The Board, through the medium of their late Chairman, Mr. Shepherd, communicated fully their opinions and intentions with respect to the past and future interests of the Hudson’s Bay Company in a letter to Mr. Labouchere dated the 18th July 1857 which was laid before that Committee. For fear that that letter may have escaped your recollection they think it essential, at this moment, to transmit a copy of it for your information. No change has taken place in the situation of the Company nor in any circumstances
connected
connected with their affairs to induce the Directors to change, in any respect the course which they then announced to Her Majesty’s Government it was their intention to pursue. Nor have they at any time, in any subsequent communication departed or intended in any respect to depart from the principles on which they then intended, and still intend to act.  
The Board were then as much aware as they are now of the unpopularity attaching to the existence of the monopoly. That consideration made it more essential that they should weigh with the greatest caution every step in their proceedings which might entail further personal responsibility upon them. No monopoly can be upheld on any ground short of a conviction of its necessity as the best, if not the only means of accomplishing
some
some exceptional object. The Board have therefore entreated that the Government might, in the first instance decide the question of the maintenance or abolition of the monopoly, either for the present or for any future purposes, for which it may be required. If better means can be devised for maintaining order and peace in the Indian Country and for the protection of the Indian Tribes from the evils which have hitherto been found inseparable from competition in the Trade, as well as for the Colonization and Agricultural Improvement of the Territory, the question of the abolition of the Hudson’s Bay Company should only be one of just indemnity to the Shareholders for their legal rights and interests.  
If on the other hand it should be found impossible to devise better means for the Government of the
Country
Country, the hands of the Directors should be strengthened to enable them to fulfil the public purposes for which their services have been considered efficient and satisfactory for the last 40 years. Any diminution of the confidence and support they have hitherto received from the Government, or even any appearance of it would weaken their power both with Indians and Settlers in the Country. The above course would not be inconsistent with any extension of Colonisation or Settlement which either Her Majesty’s Government of the Government of Canada can have in view in that part of Her Majesty’s dominions now possessed or occupied by the Company, or with the accomplishment of all the objects recommended in the Report of the Committee of the House of Commons.  
The Board lamented to see
and
and have hitherto abstained from adverting to some expressions in your letter of the 3rd November last imputing to them unreasonable conduct in not accepting some terms of compromise which it is alleged had been offered to them. In that letter it is stated “that you entertain an anxious desire to come to some equitable and conciliatory arrangement by which all equitable claims of the Hudson’s Bay Company should be fairly considered in reference to the privileges they may be required to surrender.”  
Only two propositions have been made to the Board. The first in a letter from Mr. Merivale, under date the 20th January 1858, by which it was proposed to refer the question of the Company’s boundaries to the Judicial
Committee
Committee of the Privy Council, but distinctly stating that Her Majesty’s Government on public grounds did not consider themselves authorized to raise the question on the validity of the Charter itself, and that if any parties in Canada proposed to take measures for that purpose, Her Majesty’s Government must leave them to take that course on their own responsibility. To that proposition the Board gave their unhesitating consent. The other proposition to this Company, which was conveyed by your letter of the 3rd September 1858 and subsequently by that of the 3rd November following, was to the effect that this Company should voluntarily concur in some enquiry, having for its object to raise the question of the validity of their Charter, and should give facilities for that
purpose
purpose; thus altogether repudiating the proposition previously received from Her Majesty’s Government, and seeking to do the very thing to which, on public grounds, the Government had previously declined to be a party. This latter proposition therefore, the directors could not, in justice to their constituents, for one moment entertain and they confidently appeal to all their previous communications with her Majesty’s Government as justifying that refusal.  
Both the present Directors and their predecessors in the management of the affairs of the Company have been advised by Lawyers of the first eminence and authority that the grant of their land and territories by the Crown was indisputable and inviolable. As Trustees they should feel as little justified in consenting to a
reference
reference of the proprietary rights of their Shareholders as in gratuitously disposing of their property. The conviction of the Directors of the firm position on which they stand has not been shaken by the opinions of the late Attorney and solicitors General laid before the Committee. The Board have heard of no other propositions and certainly of no “conciliatory arrangement by which the equitable claims of the Hudson’s Bay Company may be fairly considered in reference to the privileges they may be required to surrender.”  
But the Hudson’s Bay Company have invariably expressed their readiness to comply with the conditions on which the Committee of the House of Commons recommended the renewal of the License. They are most
willing
willing to cede immediately or gradually, as they may be wanted for the purpose of actual Settlement portions of their territories on the Red River or Saskatchewan, which may be available for cultivation and Settlement on “equitable principles.” They are ready to leave those principles to the decision of Commissioners to be indifferently appointed. They are willing, if it is considered desirable, to remain in temporary possession of those parts of the Territories until adequate arrangements shall be made for their Settlement and administration by some toner authority, and to concede in the mean time lands to Settlers on such terms as may be recommended by Her Majesty’s Secretary of State, and in any other way to assist Her Majesty’s Government in such ulterior views as they may entertain whether for the purpose of establishing
those
those territories as an independent Colony or of placing them under the Government of Canada.  
The Hudson’s Bay Company have done what was in their power to promote Settlement in such parts of their land as appeared to them most suitable for agricultural improvement. They have been careful at the same time not to involve the Capital of the Shareholders in hopeless speculations of this description. Their principal object has certainly been the Fair Trade of the Country. They made a grant to Lord Selkirk, who established the Agricultural Settlement of the Red River, and made arrangements with the Puget Sound Company for the same purpose on the Territories beyond the Rocky Mountains.  
When
When the disorders and troubles broke out in the Red River Country, which led to the union of the North West, and Hudson’s Bay Companies, and to the passing of the Act under which the License of Trade was granted it was thought better to put an end to separate interests so that the administration both of Colony and trade might be conducted under one authority. The Hudson’s Bay Company then re-purchased the Red River Settlement, and have since endeavoured to encourage and protect Settlers in it. But owing to the circumstances of the Country, the inclemency of the Climate, the remoteness of Markets and the difficulty of communication, they acknowledge that their efforts have been attended with but little success.  
After the notice given to them in your letter of the 3rd November
of
of the intention wholly to withdraw the license the Board had taken measures to adapt the administration of their affairs to the altered circumstances in which they would then be placed. They had decided to diminish their establishments in Canada, and to bring their expenditure within the strict limits required by their trade. Further arrangements of this description will become necessary if the Colony on the Red River is no longer to be dependent on their Ships, and means of conveyance for supplies.  
If however the Secretary of State sees fit to reconsider his decision to withdraw the License, the Board will willingly endeavour to concur in any measures by which the hands of the Government may remain unfettered, with respect to any policy which changes
in
in America might hereafter recommend, and the credit and authority of the Company might at the same time be maintained.  
For fear of further misunderstanding on that point, they think it right to protect themselves in a suggestion they would respectfully make to Her Majesty’s Government, from any supposition that they still desired the renewal of the License for the purposes of their trade. It is certainly very essential that there should be no interval between the cessation of their authority and the substitution of some other to prevent or regulate in as far as that may be possible the interference of strangers with the Indian Tribes, and the renewal of the disorders for the prevention of which the Act of 1 & 2 Geo: 4th Cass 66 was passed. The suggestion they would submit to your consideration is that the License might be renewed to the Hudson’s Bay Company for the usual period of 21
years
years with a reservation of power to the Crown to withdraw it at any time on a notice of two years. They make this suggestion to shew their disposition to assist the Government in the difficulties which they are fully aware beset this question. But the Board direct me to repeat that they cannot undertake the responsibility of remaining charged with the care of order and peace in the Indian Country under the temporary Grant of a License which would almost carry with it an acknowledgement of the doubts which have been thrown upon their rights, and convey an impression of the weakness and willing submission of the Board to the clamour by which their administration has so unjustly been assailed.  
I have the honour to be
> Sir,
Your very obedient Servant,
H H Berens
Governor
The RightHonble
Sir E. B. Lytton, Bart.
Minutes by CO staff
Lord Carnarvon
The H. B. Co. refuse the license for a year. They propose to accept a license for 21 years revocable at 2 years’ notice. They also renew their offer to cooperate for giving up the Red River & Saskatchewan to settlement.
The letter requires serious consideration. For my own part, I should accept their proposal: which is, substantially, to take a license for two years. 
HM
F 9
Mr Merivale
This letter of Sir F Head’s states his [...] & to fix the 1st of May for that answer. [...] a letter & a despatch [...] must it not be accompanied by copies of correspondence with H. B. C. & stating the reasons why the delay of Canada has [...] the offer of extending the license for a year or two. 
EBL
[...]
Other documents included in the file
  • Draft reply from Merivale to Berens
 
Public Offices document:
Berens to Lytton, 8 February 1859, National Archives of the UK, 1395, CO 6/30. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871. Ed. James Hendrickson and the Colonial Despatches project. Victoria: University of Victoria. http://bcgenesis.uvic.ca/getDoc.htm?id=B595MI04_A.scx. Accessed 24 September 2018. 

Last modified: 14:45:45, 28/2/2018