Berens to Lytton
Hudson's Bay House
22 November 1858
Sir
I have the honour to acknowledge the receipt of Mr Elliott's letter of the 6th Instant 1 transmitting the copy of a letter from the Foreign Office, suggesting that this Company should prepare a full statement of the grounds in which they consider the claim to navigate the Columbia River after the expiration of their trading monopoly is to be maintained, and after the cession to the United States of their possessory rights, if any arrangement for such cession should be made.
With regard to thefirstManuscript image first part of the question I beg to state that this Company cannot discover any connection between the right reserved to them by the Oregon Treaty to navigate the Columbia River and the expiration of their trading monopoly, because the right to navigate the Columbia River is reserved to them and to all parties trading with them quite irrespective of the exclusive licence granted to them by the Crown.
This company traded in that part of the Oregon Territory which has since been ceded to the United States long before they had any exclusive License from the Crown; and therefore should they continue to hold their property in that portion of the Oregon Territory for the purpose of Trade after the expiration of the License it isManuscript image perfectly clear that for the purpose of such trade the right to navigate the river would be preserved both to themselves and to any British Subjects trading with them. The Article of the Treaty which reserves the right to this Company refers in no way whatever to the exclusive License. In fact there is nothing to lead to the supposition that the Government of the United States had any knowledge of any such License. It had always been supposed that the Territory in question belonged to Great Britain, and it was under that assumption that this Company had been in the habit of trading there, and in connection with that trade had erected forts and acquired other rights and property, and it was for the purposes of their trade generally that the reservation on the Treaty was introduced that theManuscript image navigation of the Great Northern Branch of the Columbia River should be free and open to them and to those trading with them.
It appears obvious upon the face of the Treaty that the provisions in those Articles which concern this Company were considered to be of a permanent character, and not determinable at the expiration of the few years when the License would expire.
I may mention that the suggestion that the right of this Company to navigate the Columbia River had any connection with their exclusive privilege in the Territory in question is altogether new to them, and they are quite in the dark as to the grounds upon which such a suggestion can have been brought forward.
The other part of the question proposed in the letter fromtheManuscript image the Foreign Office appears to assume that this Company contend that, should they cede to the United States the Possessory Rights which are preserved to them by the 3rd Article of the Treaty, they would still be entitled to navigate the Columbia River under the provisions of the 2nd Article.
I beg to state that this view of the subject has never been taken on the part of this Company, but on the contrary, they have always considered that while the 2nd Article secured to them the navigation of the Columbia River for the purposes of their trade, that Article would become of no effect should they cede to the United States the Possessory Rights secured to them by the 3rd Article. Those Possessory Rights in point of fact represented the means by which the Hudson's Bay Company carried on their trade in this Territory, and as they have alwaysManuscript image considered that the navigation of the Columbia River had reference only to the purposes of the trade they so carried on, the surrender of the means of carrying on that trade would necessarily carry with it the right to the navigation of the River, which was reserved to them solely in connection with that Trade.
The correspondence which passed upon this subject in the year 1852 2 appears to have been overlooked. At that period a Treaty was in negotiation for the transfer by the Company to the United States of the Possessory rights secured to them by the Oregon Treaty, and, under date the 1st September 1852, Captain Shepherd, on behalf of this Company, transmitted to Lord Malmesbury a Memorandum upon the Subject, to which it may be convenient that you should refer, and I have now the honourManuscript image to send herewith a copy of Captain Shepherd's letter and of the accompanying statement.
At that period the only difficulty which appeared to arise in carrying out the cession to the United States had reference to their requiring a surrender in terms of the right to navigate the Columbia River, as a consequence of the cession to them of the possessory rights reserved to this Company. This Company considered that the United States were clearly entitled to have those terms introduced into the Convention, and Captn Shepherd's Letter of the 1st September had for its object to support the view taken by the United States, and with the same view Mr Colvile, the then Governor of the Company, addressed a further letter to Lord Malmesbury, under date 28th October 1852, of which I also send a copy herewith.
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In reply to these communications Lord Stanley, the then Under Secretary for Foreign Affairs, addressed to Mr Colvile a letter dated 6th November 1852, in which he fully recognized the conclusion come to by this Company that the surrender of the possessory rights would have the effect of putting an end to the right of navigating the Columbia River, but he treated the insertion of any provision in the proposed Convention to that effect as being superfluous, and as being calculated to give the impression that the British Government were conceding something, when in fact they conceded nothing, inasmuch as the right to navigate the River would, in the view of all parties, come to an end with the cession of the Possessory rights of this Company.
I send you with this a copy of the letter received from LordManuscript image Stanley on this occasion, which you will find entirely bears out the view which the Company take as to the effect of the cession of their rights. Should the United States still desire that in the proposed Convention for surrendering to them the Possessory rights of this Company a provision should be introduced distinctly disclaiming any rights to the future navigation of the Columbia River under the provisions of the Oregon Treaty, I trust that it will be felt that there can be no objection to the introduction of such a provision, as it would be very much to be regretted that the present negociation should fall to the ground from a refusal to consent to what is on all hands felt to be a matter of form, and not of substance.
I have etc.
H.H. Berens
Governor
Minutes by CO staff
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Mr Elliot
Transmit copy to the Foreign Office at whose instance the Company were requested to furnish information on the question of the Navigation of the River Columbia?
VJ 23 N
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It appears to me from the mem. enclosed and the previous correspondence in 1852 that the H.B.C. view is the correct and indeed the reasonable one. I do not think that it will be necessary to do more than to forward these papers to the F.O. The difficulty has been one of their own creation and in evident forgetfulness of what passed in 1852.
C Decr 4
Copy to F.O. which knows as much about H.B.C. as it does about the state of the alphabet before the time of Cadmus. 3
EBL Decr 13
Other documents included in the file
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Draft, Carnarvon to E. Hammond, Foreign Office, 23 December 1858, forwarding copy of the letter from Berens.
Documents enclosed with the main document (not transcribed)
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Draft, John Shepherd to Malmesbury, Foreign Office, 1 September 1852, enclosing memorandum regarding proposed sale of the possessory rights of the Hudson's Bay Company in Oregon to the United States.
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Memorandum, Hudson's Bay House, 1 September 1858, observations on the sale of possessory rights of the company to the United States.
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Extract, A. Colvile to Malmesbury, 28 October 1852, concerning navigation rights on the Columbia River.
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Lord Stanley, Foreign Office, to Colvile, 6 November 1852, discussing the questions of possessory rights and navigation rights on the Columbia River.
Footnotes
  1. A draft of this letter appears in Colvile to Lytton, 23 September 1858, 9790, CO 60/2, p. 143.
  2. = corr between HBC & FO re HBC rights Ref to previous correspondence included in this file. OMIT??
  3. Cadmus, an ancient Greek (or possibly a Phoenician) was credited by ancient authorities as being the author of the Greek alphabet.
People in this document

Berens, Henry Hulse

Carnarvon, Earl

Colvile, Eden

Elliot, Thomas Frederick

Hammond, Edmund

Jadis, Vane

Lytton, Edward George Earle Bulwer

Malmesbury, James, Howard

Shepherd, John

Stanley, Edward Henry

Organizations in this document

Foreign Office

Hudson's Bay Company

Places in this document

Columbia River

Oregon Territory, or Columbia District

Berens, Henry Hulse to Lytton, Edward George Earle Bulwer 22 November 1858, CO 60:2, no. 12037, 189. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871, Edition 2.2, ed. James Hendrickson and the Colonial Despatches project. Victoria, B.C.: University of Victoria. https://bcgenesis.uvic.ca/B585MI15.html.

Last modified: 2020-12-02 13:40:34 -0800 (Wed, 02 Dec 2020) (SVN revision: 5008)