Berens to Newcastle
Hudson's Bay House
4 January 1861
In reference to the interviews I had the honour of having with your Grace on the 28th ult. I now beg to bring under your Grace's notice several matters in connection with the proceedings of Governor Douglas by which the interests of this Company are materially, and, as I believe, unjustly prejudiced.
The first ground of complaint to which I would take leave to call your Grace's attention arises from the system recently adopted by the Governor to the effect that every partner in a trading firm must make a quarterlypaymentManuscript image payment of 5 Dollars for a Trading License.
The Governor has taken upon himself to decide that there were 10 partners in this Company subject to the License and it is understood that it is intended to increase this number.
Any report about this from the Govr?
No. The Proclamation under which the tax is levied is annexed in
10782.
Upon this subject I venture to submit that it is perfectly clear that in a Corporation established as this Company is by Royal Charter there can be no individual responsibility and that therefore the Company are liable, if at all, to pay for one license only; and indeed if it were otherwise the only parties who could be considered as partners in the Company wouldbeManuscript image be the Shareholders, whereas, as far as I understand it, the Governor is taking upon himself to treat as partners all those Servants of the Company whose remuneration is governed by the amount of profits made but who are in no case subject to loss. I consider however that it is quite clear that in a Corporate body no notice can be taken of the individuals composing it, and I trust that Your Grace will have no difficulty in giving such instructions to the Governor as may prevent the recurrence or continuation of this extortion.
The most material matter however to which I have to call YourGrace'sManuscript image Grace's attention is the course pursued by Governor Douglas in reference to the lands in British Columbia which have for some time been in the occupation of the Company, upon some parts of which they have erected Forts and other buildings and as for other parts of which they are used for agricultural and other purposes connected with the Company's trade.
Your Grace is well aware that the extent of the rights of this Company in reference to these lands has for some time past been a subject of serious discussion between the Company and Her Majesty's Government.
UnderManuscript image
Under date the 14th September 1859 Mr Under Secretary Merivale transmitted to me, by your Grace's direction, the Copy of a Despatch which had been received from the Governor of British Columbia on the subject of these very claims; and in that Despatch the Governor, so far as he was concerned, recognized to a great extent the claims set up by the Company. Your Grace did not however entirely assent to the view which the Governor took of the rights of this Company; but Mr Under Secretary Merivale in the letter to which I have referred distinctly stated that your Grace considered the Company entitled to be indemnified from all lossoccasionedManuscript image occasioned to them (other than mere dispossession from an Ownership which your Grace did not recognize) through the Governments resuming possession of land which this Company had improved or on which their Capital had been in any way expended; and he added that: the Company might be assured that it was your Grace's wish to see that indemnity carried into execution in a liberal manner whether in the form of Land to which a title should be given or in any other shape that might be agreed upon.
Mr Under Secretary Merivale went on to state that it was your Grace's intention to direct the Governor todisallowManuscript image disallow claims of that character except for the actual sites of existing buildings although your Grace could be willing to allow compensation for losses such as those above described and was willing to allow considerable latitude in effecting such compensation by Grants of Country Lands in lieu of what might be thus resumed.
The Governor in his despatch after giving in detail a statement of the various claims of this Company and their different characters concluded by stating that until Her Majesty's Government arrived at a decision upon the matter he would respect the Lands claimed by the Hudson's Bay CompanyandManuscript image and would not make any sale or transfer within their limits and suggested therefore that an immediate settlement should be effected as well upon that account as for the preservation of the difficulties and complaints which otherwise would be of constant recurrence.
The communication from Mr Under Secretary Merivale was answered by a letter from myself of the 6th October 1859 suggesting a mode of settling the matters in dispute. This was followed by some further communications, and in the result it was arranged that the rights of the Company should be the subject of a decision before the Judicial CommitteeofManuscript image of the Privy Council.
I very much regret that so much delay has already occurred, and is likely to occur in obtaining any such decisions, and I should cheerfully cooperate in any measures which might lead to a speedy settlement of these matters without the delay of bringing them under the consideration of the Judicial Committee who probably will not be able to decide upon the rights of this Company without further information as to the particular nature of them than is at present forthcoming.
In Mr Under Secretary Merivale's letter of the 14th September 1859 it was suggested that this Company shouldnameManuscript image name some one to co-operate with Colonel Moody in making the necessary investigation as to the actual position of this Company in regard to the lands under discussion and it perhaps would even now be of use if such a course were adopted without pledging either party as to the decision to be come to when the report should be obtained, but the possession of which would probably enable both parties to come to some settlement.
My immediate object, however, in now referring to this matter is to bring to your Lordships notice the course which has recently been pursued by Governor Douglas inspiteManuscript image spite of the clear understanding that until the rights of this Company to the lands claimed by them had been in some way determined those rights should be respected. The Governor has actually put up for sale not only the lands which he had himself staked out in 1858 as belonging to the Company but actually some of the Buildings upon them; and the Company have been called upon to remove those Buildings with a threat that if they did not do so the Buildings would be pulled down.
Have we any report or explanation from the Governor on this?
No but videMr Dallas' statement in the Enclosure to Gov
Douglas Despch 7725.
This line of conduct is so extraordinary, and, as I conceive, so unwarranted, and so completely atvarianceManuscript image variance with the understanding which had been come to with Her Majesty's Government that all the lands claimed by the Company should remain untouched until their rights to them had been settled one way or the other that I do trust Your Grace will lose no time in directing the Governor to suspend proceedings of this description and not to interfere in any way with the lands claimed by the Company and which he had himself described as being in the possession of the Company until it is settled whether they are entitled to hold them or not.
I cannot avoid in conclusionexpressingManuscript image expressing my great desire that an amicable adjustment of these matters should if possible be come to at an early period, as while the Governor pursues the course he has recently taken it is obvious that an amicable settlement will become more and more difficult.
On the occasion of my interview with Your Grace I also took the opportunity to call your Grace's attention to the subject of the Customs duties levied upon goods imported from Victoria into British Columbia, but having since been favoured with a letter from Mr Elliot transmitting a Copy of a report of Governor Douglas on thesubjectManuscript image subject of these duties, I feel it will be unnecessary on the present occasion to trouble your Grace further than to say that in the course of a few days I shall have the honour to answer that letter, and I will then submit a few observations in answer to Governor Douglas's report.
I have etc.
H.H. Berens
Govr
Minutes by CO staff
Manuscript image
Sir F. Rogers
Upon the subject of the first complaint I must refer you to the annexed Proclamation No 6 of 1859 under the authority of which "Every person carrying on any other trade" is liable to a quarterly payment to the Govt of £1. It seems that the Governor is treating certain servants of the H.B.Co which is a Corporation as so many partners & levying the above tax accordingly on them. To me, who am unlearned in the Law, it appears that the Governor is wrong; yet he would scarcely have ventured on suchManuscript image a proceeding without previously ascertaining from the Attorney General, Mr Cary, that he was right in his view of the Law. An instruction from the Duke of Newcastle will doubtless suffice to put the Governor right, if he is wrong; but might not the Servants of the Co, who have been taxed, have refused to pay the claim, when they would have been sued in the Courts of Law in the Colony & the case legally adjudicated. As a Court of Justice has been established I do not see why the H.B.Co should not resort to it if they suppose themselves aggrieved in Law, instead of always having recourse to Downing Street which invests them in the eyes of the Settlement with an apparent prestige & weight as against the Local Authorities to which they are not more entitled than other persons.
With respect to the 2d complaint that the Governor is interfering with the alleged landed property of the H.B.Co in B. Columbia I wd suggest that we refer it, in the first instance, to the Land Board which always advises us in these cases. See however 7725/60.
ABd 14/1/61
As to the first question it appears to me very inconvenient to bring de facto statements upon the S. of St. and expect him to give a decision upon them. I shdManuscript image answer that if these gentlemen considered themselves overtaxed they should have sent their complaint to the S. of State thro' the Governor in which case it wd have reached the Col Office accompanied by such explanatory statements as the Govr mt think necessary. But in the absence of such explanatory statement it is impossible for the D of N to express any opinion on the subject, but that, if the company desires it this part of their letter shall be forwarded to Govr Douglas for his report. But that at first sight it appears to H.G. that the proper remedy of the H.B. officers was by an appeal not to the Executive but to a Court of Law.
As the the 2nd point refer to Land Board as suggested by Mr Blackwood.
FR 14/1
I agree. But I don't think the Land Bd. can add anything to what we know from Govr Douglas' desp. 7725 reported on by Mr Murdoch. I wd at all events send this letter to the Governor—without delay—by next mail, and call for report upon every part of it.
CF 15
Other documents included in the file
Manuscript image
Draft, Rogers to Berens, 21 January 1861, declining to comment pending a report from the governor.
Manuscript image
Draft, Rogers to Emigration Commissioners, 23 January 1861, forwarding extract of the company letter for consideration and report.
Manuscript image
Draft reply, Newcastle to Douglas, January 1861. Cancelled.
Berens, Henry Hulse to Pelham-Clinton, Henry Pelham Fiennes 4 January 1861, CO 60:12, no. 177, 101. 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/B615MI01.html.

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