No. 64
17 December 1859
I have the honor of Enclosing herewith the copy of a communication from Mr Pemberton, the Colonial Surveyor, recommending that certain tracts of land, situated within the limits of the Surveyed Districts of Vancouvers Island, be thrown open to the public for occupation without purchaseManuscript imagepurchase, and that Settlers occupying and improving those tracts should enjoy a preemption right enabling them lawfully to acquire and possess the land, at whatever may be the minimum Government price, when the land is divided into allotments.
2. The object of that measure is to remove the disqualifications which, at present, hinder settlers from entering upon the possession of land, without first making a money payment as required by the existing land regulations, a system which it is feared will indefinitely postpone the occupation of the land referred to in Mr Pemberton's letter, which consists of spots of fertile land, interspersed among rocks, forest, or Swamps, not admitting of Continuous cultivation, and which in consequence, has not been SoldManuscript imageSold, though repeatedly put up for sale at the low price of 4s/2d an acre.
3. I concur with the opinion expressed in Mr Pemberton's letter as to the Expediency of the measure, and its beneficial effect in promoting the early occupation of the tracts of land in question, which may otherwise for years to come remain an unproductive wilderness.
4. It is further necessary for me to state for Your Grace's information, that the proposed preemption measure is not intended for general application, and will be restricted in its operation exclusively to Surveyed Districts of the Colony, after the valuable land of such Districts has been all sold on the usual Manuscript imageterms of £1 Sterling an acre, and when the residual of the land cannot be sold on any terms.
5. Such being the object and character of the proposed measure, involving no conflict with existing rights, and likely to be productive of much good to the Colony, I have not hesitated in authorizing the Colonial Surveyor, as a provisional arrangement, to permit settlers to occupy the land in question without making an immediate payment in money, and with the condition that they will be allowed hereafter to acquire and possess the land, under a legal title, and hope your Grace may approveManuscript imageapprove of this proceeding.
I have etc.
Minutes by CO staff
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Mr Merivale
This will I presume be sent to the E. Comrs in usual course. But as the correspondence has from unavoidable causes become somewhat intricate I annex a memo: shewing it's course and present state.
TFE 16 Feby
Documents enclosed with the main document (not transcribed)
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Joseph D. Pemberton to Douglas, 12 December 1859, suggesting that portions of surveyed land which remain unsold, even at a reduced price, be opened to preemptive settlement.
Minutes by CO staff
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Mr Merivale
In a report of the 6h of Octr the Emigration Comrs gave their opinion on the question generally and recommended that the price should be reduced to 10/- an acre. The Duke of Newcastle intimated an opinion that probably it ought to be reduced further, but suspended any final decision until His Grace should receive some more information. At a later date you wrote a very full minute, which is placed amongst these papers. The result was to postpone giving any directions about the disposal of the public land in Vancouver's Island until we should ascertain from the Law Officers whether, on being purchased from the Hudson's Bay Company, it would pass under the control of the Crown and not of the Legislature. The Law officers reported onManuscript imageon the 24h of January that the land would pass under the control of the Crown. This report has been sent to the Emign Comrs for their information; but another obstacle exists which has prevented the issuing of any instructions to the Governor. We have not yet concluded an agreement with the Hudson's Bay Company, although one is far advanced, enabling the Crown to confer titles to land in Vancouver's Island. Whenever that object is effected I presume that instructions will be given to the Governor both as to price and as to any other matters in the disposal of the land which it may be thought fit to settle by directions from this Country.
In the meantime the Governor reported in No 25 of the 19h of July that heManuscript imagehe would put up some inferior lands to sale at 4s/2d an acre (which course was acquiesced in) and in his present despatch No 64 of the 17h of Decr he reports that even at this price scarcely any land was sold, and that he intends to throw open some tracts for occupation without purchase with a right of preemption on the part of the settlers when the lands shall be surveyed and divided into allotments.
TFE 16 Feby
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Mr Fortescue
This whole matter now presses so very greatly, that I think it may be better to pass over the Emn Coms for once, & I suggest the disposal of it by the annexed drafts. If it were possible, I think the despatches to the Governor should go by the next mail (in a fortnight).
HM F 18
Duke of Newcastle
The Govr in this desp. still talks of keeping up the £1 an acre as the ordinary price of land in V. Island. I cannot think that this is advisable, or even possible.
CF 20
I do not believe that any sum above 5/ per acre can be maintained. I approve the drafts.
N 20
[The following is the "very full minute" (written previously by
Merivale) that Elliot refers to in his minute of 16 February]
Dec 6/59
Other documents included in the file
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Draft, Merivale to H.H. Berens, Hudson's Bay Company, 23 February 1860, forwarding copy of the despatch and discussing the best means of resolving the legal difficulty surrounding the land settlement issue between the company and the crown.
Minutes by CO staff
The Duke minuted on 871, that he would see Mr Berens on this subject. But I think this is hardly necessary: though if Mr B. calls on the general subject of the Charter, this might be settled also.
Other documents included in the file
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Draft reply, Newcastle to Douglas, No. 10, 21 February 1860.
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Elliot to Emigration Commissioners, 30 April 1860, forwarding copy of the despatch and draft reply.
Minutes by CO staff
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Duke of Newcastle
I will assume for the purpose of this paper that it is thought necessary to lay aside the ordinary (and very cogent) arguments employed by Mr Murdoch & Mr Elliot: and that the proximity of the US is held a sufficient reason for admitting deviation from the better practice, both as to price of land, & the occupation of land before surveys.
And indeed the same proximity has so completely regulated the land system of our other Nh Amn Colonies—in which the utmost facility is given for the acquisition of land at prices from 1s 9d to 7s per acre—& this with little regard apparently to the progress of surveys—that we can hardly expect these Northwestern Colonies to maintain a stricter system, unless under greater Manuscript imagepressure than we can administer.
1. Vancr Id. Here we are met by the difficulty that the land is still the Company's: who have a fixed price of £1 per acre. The island has not yet been "repurchased" from them: we are still discussing the terms.
In the mean time applications are made on all hands to us by land speculators: and Govr Douglas writes to us in 8944 as if we had the absolute authority to do as we pleased.
It seems to me the first step is to send 8944 officially to the H.B.Co. But as it is really essential that we should come to a right understanding, I submit a private letter to Mr Berens as a measure for bringing this about.
Supposing this difficulty resolved & the land fairly ours:
I should then be of opinion that Manuscript imagethe best course to be taken, in this small island, would be to make over the land at once to the small local legislature.
Indeed I am not at all clear that we can do otherwise. I have explained my doubts on this head in a draft letter to the Law Advisers which I annex for approval.
The only objections that I can see to an absolute surrender of this small revenue to the Legislature are, the embarrassment which might be occasioned if too strong an American influence were to prevail—but I do not see how we can help this—and, the difficulty of maintaining a separate rule for British Columbia.
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Here the case is simpler: the Governor having absolute power.
At present lands are sold (in general) at upset price 1£ per acre, but only after survey. The conveyance does not carry gold mines.
The Governor asks to be allowed to grant licenses of occupation over unsurveyed land with preemption rights.
I think (as far as the grant of licenses goes) this should be conceded.
Whether with preemption rights is another question. I do not profess to have myself any decided opinion on the subject. I see that in Canada they have abandoned the system of preemption rights: and it may be that an allowance for improvements, at the end of the license, would be better, if it can be guarded from abuse.
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I should be inclined to believe that the imposition of some trifling "settlement duties" as in Canada & the States, would also be desirable. The practical effect of this requirement in the States I have understood chiefly to be, that a speculator purchases land with the prospect of having to alienate from time to time in order to pay his duties until the land is taken off his hands. But on this point the Governor must I apprehend be left considerable latitude.
I think I would send the Governor Captn Clarkes' paper, for information & assistance. Many of the suggestions read at least like those of a practical man, familiar with a country resembling B. Columbia in some leading circumstances.
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Perhaps the most important part of Captn Clarkes' paper relates to the question, Should the conveyance of the soil carry the (unworked) riches? At present in B. Columbia it does not. Capt. Clarke thinks it should: and I am inclined to agree with him. But one would like to know the California usage.
As to the influx of Americans—If this is to be prevented, I certainly have no other mode to suggest, except that of maintaining the existing stringent regulation as to selling surveyed land only. The law in BC (and also I fancy in VI) admits aliens to hold land for 3 years, after which they must become naturalized: a restriction of little Manuscript imageimportance, even if maintained, which is improbable.
With a view of counteracting this evil however, and with that view only, the projects of land companies seem worth considering, subject as they are to many great disadvantages. But I do not think them likely to ripen into anything: and for this reason among others: in Vanc. I. almost immediately in B. Columbia proximately, the land will doubtless be under the control of some local legislature. It would be necessary to give full & emphatic warning of this contingency to the proposed Companies, otherwise they will have a grievance against the British Exchequer.
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You will observe that Mr Bridges is perfectly aware of this (see 9946) and that he asks to bind the Crown "not to sell land in Vanc. I. under a pound an acre" while the operations of his Company continue. This or any similar proposal I hold to be entirely out of the question: & if so, I think Mr Cairds' scheme will probably come to nothing, as well as that of Mr Bridges.
HM D 6
I am much obliged to Mr Merivale for the consideration he has given to these papers which I placed in his hands.
I feel convinced, notwithstanding a strong reluctance to act in Manuscript imageopposition to the experience of Mr Elliot and Mr Murdoch, that the price of land in Vancouvers Island and in B: Columbia must be reduced to 5s per acre and that occupation before surveys are completed must in some form be sanctioned.
As regards the latter alteration I have already expressed as leaning to Captn Clarke's plans in preference to a right of preemption, but I believe the best way will be to release the Colonies from the present restrictions so far as the C.O. is concerned & consult them as to the best mode of putting the new regulations into form. I think the more nearly, Manuscript image[cativis parribus?], these regulations for our Western American Possessions are assimilated to those of the Eastern the better.
1. Vancouvers Island. I agree to the two letters drafted by Mr Merivale as necessary to clear the way before any other step is taken.
2. British Columbia. I received yesterday from Mr Caird a private letter abandoning any intention on his own part to form a Company, and I have no doubt the great difficulties which attend the scheme will prevent any others from going further than Mr Bridges present position. Captn Clarke's letter Manuscript imageand drafts may be sent to the Governor for consideration with much advantage and I see no reason why this should not be done before we are in a position to issue any final Instructions.
N 11
Douglas, James to Pelham-Clinton, Henry Pelham Fiennes 17 December 1859, CO 305:11, no. 1545, 387. 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.

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