Berens to Newcastle
6 October 1859
My Lord Duke,
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 LyttonManuscript imageLytton 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
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.
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 thatManuscript imagethat 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 ofManuscript imageof the 12th October 1858, they should be arranged upon the footing suggested by Mr Under Secretary Merivale's letter of the 14th ulto.
I have etc.
H.H. Berens
Minutes by CO staff
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ABd 2 Oct
Mr Blackwood
Will you obtain privately from the For. Office a copy of the opinion here referred to, which seems important.
HM O 12
ABd 18 Oct
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Duke of Newcastle
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.
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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 Manuscript imagethe 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
See my Minute on 10380. The "opinion" is a difficulty in the way of a fair settlement I fear.
N 25
Other documents included in the file
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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
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Draft, Merivale to Berens, 30 December 1859, fair copy of the draft as noted above. [This document stands alone on CO 60/6, p. 71.]