Berens to Newcastle
Hudson's Bay House
26 June 1860
I have the honor to acknowledge the receipt of Mr Under-Secretary Fortescue's Letter of the 7th instant accompanying copies of two Despatches from Governor Douglas of the 16th February and 28th March last having reference to the claim of this Company to the land and Government Buildings erected upon it near Fort Victoria in the Island of Vancouver.
I have now caused reference to be made to the correspondence which passed in the year 1851 at the time when the Despatch referred to in Governor Douglas's communication of the 28th March was sent to Governor Blanchard [Blanshard].
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A Copy of that Despatch was under the same date forwarded to Mr Douglas who was then the Representative of this Company. Your Grace will observe that that Despatch contemplated the purchase by this Company, and the Puget's Sound Company, of considerable tracts of Land near Fort Victoria and it was at that time contemplated that the Buildings intended for the Government should be erected either on a portion of the Land so to be purchased or upon Land not then disposed of and therefore belonging to the Colony; but it afterwards turned out that, under the directions of Mr Douglas certain Buildings for the Government had already been commenced upon Land previously in the possession of this CompanyManuscript imageCompany, that Land being in fact a part of the District claimed by this Company and their right to which is now to be the subject of discussion before the Privy Council.
I think it desirable that Your Grace should be put in possession of everything which has occurred in regard to this subject.
In the letter to Mr Douglas of the 1st January 1851, which accompanied the Copy of the Despatch to Governor Blanshard of that date, instructions to the following effect were given to him— In the case of the Fur Trade the extent and boundaries of the Land occupied by that concern, previous to the date of the Boundary Treaty, must be accurately marked out and agreed with Governor Blanshard and the Council. For this portion of Land noManuscript imageno price will have to be paid. But for any future quantity that may ultimately, after proper surveys are made, be taken by that concern the same price of 20s/- per acre, as paid by other Settlers, will have to be paid over to the Hudson's Bay Company.
Before, however, this communication reached Mr Douglas, he had, under date the 29th January 1851, addressed a Letter to the Secretary of this Company, in which the following paragraph occurs: The house and premises erected at this place for the residence of Governor Blanshard have cost 1548 Dollars 55 Cents in labor and material and the Governor is now making an addition to the house which will come to severalManuscript imageseveral hundred dollars more. I have not charged that sum to the Colony as the site on which it stands belongs to the Fur Trade, and I was proposing that the house and premises should remain a Fur Trade possession, and that the Colony should be charged an annual rent of 10 per cent on the original outlay. I beg to be informed of the Committee's pleasure on that subject.
From this Letter Your Grace will observe that Mr Douglas contemplated, not only that the Government buildings should be erected on land then claimed by this Company as their own, but that the Government should pay a rent for the occupation of the land and buildings at the rate of 10 per cent upon the outlay.
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This proposition was not approved of, and Mr Douglas was so apprized in a Letter from the Secretary under date the 23rd May 1851 and in a Letter of the same date to Mr Douglas from the then Governor, Sir J.H. Pelly, Mr Douglas was informed that the Fur trade might retain the Building he had referred to as having been constructed for the residence of the Government on paying the expense of erecting it and that another house might be built for the Governor on a different site but adding that in all cases of Reserves of Land it must be understood that if any part was required for public purposes it must be resumed upon repaying
Not "re-paying". The HBCo never paid for this land.
the price and any improvements that might have been madeManuscript imagemade upon it.
It appears, however, that the Government retained possession of the Buildings which had already been erected on land claimed by the Fur Trade establishment of this Company and the cost of these buildings has, I find, been included in the account of expenditure rendered to the Government by this Company, and those buildings are therefore, without doubt, the property of the Government, although I find that the cost of other public buildings on the same land, such as the Custom House and Post Office have not yet been so charged, but assuming that the Title of the Company to the land in their possession, prior to the Treaty of Oregon, should be established, then, I apprehend, there can be no question but that the land upon which those buildings were erected would be their property, and that the proceeds arising from any sale of it would belong to them.
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I will now revert to the communications which passed with Mr Douglas consequent upon the instructions conveyed to him in the letter of the 1st January to ascertain the extent and boundaries of the Land occupied by the Fur Trade prior to the Oregon Treaty. Mr Douglas answered that communication under date the 16th April 1851, as follows: In reference to the Fur Trade Reserve, the boundaries determined on when I made choice of thisManuscript imagethis spot for the Company's establishment, in the year 1841, long previous to the date of the Treaty, includes an area of rather over 20 square miles. The extent, however, actually occupied by tillage and enclosures, does not exceed two square miles, while the Cattle ranged over an additional space of about 4 square miles, occupied by enclosures and for a Cattle Range. I beg to be informed by return of post if it is the Committee's wish to confirm to the Fur Trade, without payment, the whole area of 20 square miles according to the original limits, previous to the Treaty, which were not actually marked out, or to confine their grantManuscript imagegrant to the 6 square miles occupied by enclosures and as a Stock Range.
In reply to this communication the Secretary of this Company addressed Mr Douglas, under date the 16th July 1851, as follows: In reference to the 4th paragraph of your letter of the 16th April I am to state that the utmost extent of land that the Hudson's Bay Company will allow the Fur Trade Branch to occupy, without paying for the same, will be the two square miles actually occupied by tillage and enclosed, and 4 square miles, together 6 square miles, occupied by enclosures and as a Cattle range, prior to the Treaty with the United States.
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The Fur Trade may have as much more of the Reserve of 20 miles as they may choose to purchase at the fixed price.
An actual survey was afterwards made of the 6 square miles of land, herein referred to, and it was found to contain 3084 Acres, which were accordingly entered on the Land Register, as belonging to the Company.
Trusting that this explanation will sufficiently shew the position of the land with which Governor Douglas has been dealing as if belonging to the Crown.
I have etc.
H.H. Berens
Minutes by CO staff
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Mr Elliot
See 6351.
ABd 27/6
As Mr H. Irving in the earlier stages of this correspondence drew attention to the question about the Govt Buildings, I have requested him to furnish a minute which you will find annexed.
TFE 29 June
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Mr Elliot
This letter from the Hudsons Bay Company presents a new phase in this affair.
The Company now admit that the Buildings which have been sold belonged to the Colonial Government and not as hitherto supposed, and as stated by Governor Douglas and Mr Pemberton, (vide 6511), to the Fur Trade Coy.
The only question therfore is as to the site.
The present letter appears completely to destroy the claim put forward by Governor Douglas, in his despatch 4820, on behalf of the Government to this land on the score of it's being a Government Reserve.
The matter is therefore reduced to the question of the validity of the Company's title to lands occupied by them prior to the grant of the Island.
As however the affair does not yetManuscript imageyet appear to be thoroughly sifted, it may be well to continue the correspondence during the reference of the main question to the Judicial Committee of Privy Council.
I would therefore suggest that the present letter should be sent to the Governor, pointing out that the Company admit the Buildings to be the property of the government & asking him whether so much of the produce of the sale as represented the price of the Houses has been carried to the credit of the Col. Government. His attention might also be called to the answer of the Company to his claim to regard the land as a govt reserve & he might be informed that the question of the Company's title will be settled by the reference to the Privy Council.
HT Irving 29 June
Mr Fortescue
This seems right? (See also [/us?] 6351).
TFE 29 June
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Duke of Newcastle
If you will look at my minutes on 3603 & 4820, you will see, I think, that this letter confirms the view taken there. I must say, in spite of Govr Douglas's strong language, I think the H.B.Co have the best of the argument, supposing them to be confirmed by the Judicial Committee in the possession of the "Fur Trade Reserve", of which this piece of land forms part. Manuscript imageGovr Douglas is very anxious to prove the land to be Government property (or at all events to appear to be confident of it)—because, if it is not so, the money produced by its sale was simply an advance made to the Governor by the Co, at a time when the one party had no authority to make or the other to accept such an advance. The Govr lays great stress upon the terms of the Co.'s letter of 1 Jany 1851, but he slurs Manuscript imageover the fact that the buildings wh., as there directed, came to be held in trust for the Colony, "with the Lands that may be appropriated with them", were never built. On the contrary, the Govt has ever since had the use of the H.B.Co.'s buildings within the Fort—and the only Govt building
? vide page 7 of the Cos letter.
upon this land is the Govnr's house, wh. had been built for Govr Blanshard before the Co.'s letter of 1 Jan. 1851 was written, and which, Manuscript imagewith a garden attached, is treated as Govt property, and was included in the accounts of expenditure rendered by the Co.
This letter may be sent to Govr Douglas, as proposed by Mr Irving, and simply ackged to the H.B.Co.?
CF 6
Other documents included in the file
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Draft reply, Fortescue to Douglas, No. 32, 24 August 1860.
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Draft, Fortescue to Berens, 29 August 1860, acknowledging receipt of his letter.