Bethell and Atherton to Newcastle
Lincolns Inn
19 March 1860
My Lord Duke,
We were honoured with Your Grace's commands, signified in Mr Merivale's letter of the 6th of February ultimo, stating that he was directed by Your Grace to request that we would take into consideration the annexed letter from the Governor of the Hudson's Bay Company to Your Grace with the statement of the "Claims of the Company to Lands in Columbia" thereunto annexed, and advise Your
Grace
Grace as to the best course to be adopted, under the following circumstances, viz—  
The correspondence between the Hudson's Bay Company and the Colonial Office ending with the letter from the Colonial Office of the 30th December last would shew that it was desired to obtain a decision from the Judicial Committee of the question, whether the Company had, or had not, any right of property in lands situate within the Colony of British Columbia, of which it had obtained no grant from the Crown, nor any Title from private owners,
but
but which it alleged itself to have occupied, for purposes connected with the Fur Trade, which it was incorporated to carry on.  
Mr Merivale was pleased to favor us with an explanatory statement of the claims of the Hudson's Bay Company to the lands in question, and of the Title of the Crown thereto.  
Mr Merivale was further pleased to add that he was directed by Your Grace to request our Joint opinion on the following questions:  
1. Had Her Majestys Government so far as the facts before us disclosed, sufficient
grounds
grounds for contesting the claim of the company to ownership in fee simple, or in any other form of property known to the Law, of the lands specified in the accompanying statement, and occupied or used by them before the Treaty of Oregon?  
2. If Her Majesty's Government was warranted in resisting this claim, what were the steps now necessary in order to bring the question before the Judicial Committee of the Privy Council by consent of both parties?  
Mr Merivale was also further pleased to ask whether, before proceedings were
entered
entered into before the Judicial Committee, there were any additional facts which occurred to us as advisable that Her Majesty's Government should be enabled to prove, (if proof be attainable,) or any points in the accompanying statement which should not in our opinion be admitted without further investigation.  
In obedience to Your Grace's commands, we have carefully considered the several papers submitted to us for our opinion, and have the honor to Report  
That it is necessary in the first place to correct
the
the inference drawn by the Hudson's Bay Company from the terms of the Oregon Treaty, and the construction put upon those terms, by the Law Officers in their former report.  
At the time of the Oregon Treaty, the Hudsons Bay Company could not have claimed against the Crown the absolute property of the Lands they occupied in the Territory then ceded to the United States; but it was competent to the Crown to confirm their Title, and to recognize them as the owners thereof; and the Crown did so by stipulating with the United States that their possessory
rights
rights should be permanently secured to them. The Company is indebted to these words in the Treaty, and not to any right of ownership as between them and the Crown, for their position as Land Owners in the ceded Territory.  
Adverting now to the questions submitted to us in Mr Merivale's letter, we are of opinion that there are not any grounds on which the Company is entitled to claim against the Crown the absolute ownership of any of the Lands, occupied or used in British Columbia before the Treaty of Oregon.  
The utmost right
that
that could have been claimed by the Company in the Lands so held by them, was a Title to occupy the Lands, as necessary for the full enjoyment of the license granted to them, during the continuance of that license. That license expired in May 1859, and there are no legal grounds on which the Company can claim, as of right, any Ownership in the Lands specified in the Statement now before us.  
We are therefore of opinion that Her Majesty's Government is warranted in resisting this claim, and we cannot discover why it should
have
have consented to refer a subject of this nature to the Judicial Committee of the Privy Council.  
But if that step has been agreed on, the proper course of procedure will, in our opinion, be, that the Company should present a Petition to Her Majesty stating the grounds of claim and praying specifically the relief to which it conceives that it is entitled. The course to be adopted by the Crown as to proofs or admissions must depend, mainly, on the allegations made by the Company.  
We have etc.
Richard Bethell
William Atherton
Minutes by CO staff
Mr Fortescue
The Law Advisers think the Company have no claim nor the shadow of a claim to the land in Brit. Columbia, and are surprised that so plain a question was ever referred to the Judicial Committee. To do so was, in truth, a great concession. But having been made it must of course be adhered to. The next step seems to me to be, to put this formally in train for early decision by the Judl Comm. together with the Vanc. I. question.  
I annex, therefore, draft letters to the Company, founded on the Law Advisers' recommendation.  
HM
Mh 21
CF
22
N
23
Other documents included in the file
  • Merivale to H.H. Berens, Hudson's Bay Company, 23 March 1860, suggesting that the company should present a petition to the Queen setting forth specifically its land claims in British Columbia and Vancouver Island. [Note: This draft is filed with Vancouver Island documents in CO 305/15, p. 415.]  
 
Public Offices document:
Bethell and Atherton to Newcastle, 19 March 1860, National Archives of the UK, 309l, CO 60/9. 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=B605LW01.scx. Accessed 21 November 2017. 

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