Murdoch to Elliot (Assistant Under-Secretary)
Emigration Office
14 March 1861
I have to acknowledge the receipt of to Sir Frederic Rogers' letter of 6th ultimo, enclosing a Despatch from Governor Douglas with various other documents, on the subject of the conflicting claims of the Crown and the Fur Trade Branch of the Hudsons Bay Co to certain land in the Town of Victoria in Vancouvers Island, which has been recently sold by order of the Governor.
ThisManuscript image
This question has arisen out of an arrangement which has been differently represented by Govr Douglas and the Agent for the Hudsons Bay Co. The former stated that being anxious to obtain funds for erecting new Government buildings he resolved on selling the Land on which the old Government Buildings stood, but that being unable, during the existence of the grant to the Hudsons Bay Co of Janry 1849, to give titles to that land, he arranged with the Company's Agent to surrender the land to him on receiving from him the proceedsManuscript image of the sale amounting to $27,000. The Agent of the Company on the other hand represented the $27,000 as an advance made to the Governor on an express stipulation that it should be included in the expenditure to be repaid to the Company on the revocation of their grant. The Governor, however, denied this representation and asserted that the advance was to be covered by the sale of the Land, the proceeds of which had been paid to the Cashier of the Company.
3. So far no question arose as to the ownership of the Land which was asserted by the GovernorManuscript image and not denied by the Company's Agent to be a public Reserve, and the proceeds of the Sale therefore public money. But in a letter from the Governor of the Hudsons Bay Co of the 16th Decr 1859 a new claim was started. Mr Berens there alleged that the land in question was part of the property possessed by the Company before the Grant of 1849—that its sale on Government account had been protested against by the Company's Agent, but was allowed to proceed in order to avoid discrediting the Governor—that the buildingsManuscript image erected upon it had been erected at the expense of the Hudsons Bay Co and that the right of the Company to those Buildings had been asserted by the Governor in his address to the House of Assembly of 7 May 1859 & by the Surveyor General, Mr Pemberton, in a speech in the Assembly on the 17th of the same month.
4. Out of this letter two questions arise. First whether the Company are entitled to the Land in Vancouvers Island which they claim by reason of occupation previous to the grant of 1849, and Secondly if so whether the Land now in question forms a portion of that to whichManuscript image they are so entitled.
5. Upon the first point it is not of course asserted that the Company can show any legal Title—but they rest their equitable claim on the length of their possession on the stipulations of the Oregon Treaty of 1846 in respect to Lands similarly held by them within the Territory of the United States and on the deliberate acquiescence of Lord Grey in their claims when brought under his notice in 1846 and again in 1851-2. Whether these facts would be sufficient to make out claims which areManuscript image likely to have so important a bearing on the future progress of the Colony it is unnecessary here to consider. The Duke of Newcastle has announced to the Company his intention to refer this claim to the Judicial Committee of the Privy Council, in the same way as their similar claim in British Columbia, and they were accordingly requested on 7th Febry 1860, to send in a supplementary statement on the subject. I do not gather from the papers before me whether this has yet been done. If not it would probably be desirable to remind the Company of it.
This has been done. Vide [illegible] & a [illegible] founded on the statement has been sent by the Co to the Judicial Committee.
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6. In respect to the second question vizt whether if the Company are entitled to Land by reason of occupation before 1849 the Land now in dispute forms a part of it, the evidence presented by these papers appears to be as follows.
7. In January 1851 the Hudsons Bay Co directed Governor Blanshard to commence the erection of Government Buildings—adding You and your Council will hold the same with the Lands that may be appropriated with them as Trustees for the Colony. Before this Despatch however reached the Colony, Governor Blanchard [Blanshard]Manuscript image had already commenced the erection of a Government House—with reference to which Mr Douglas, who was then Agent to the Company, wrote under date 29th Janry 1851, as follows. I have not charged that sum (the amount expended by Governor Blanshard) to the Colony as the site on which it (the Govt House) 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. It further appears that on the 7th May 1859 (at the time that is when he wasManuscript image negociating with the Companys Agent for the advance of $27,000) Governor Douglas in a Speech to the Assembly of Vancouvers Island stated that The Building now occupied as a Government office as well as that for the Land office are the property of the Hudsons Bay Co. And on the 17th of the same month Mr Pemberton the Surveyor General stated in the Assembly in explanation of the erroneous information which he officially had given the House in reference to the Old Government Buildings and their site, that the GovernorManuscript image and himself had believed them to belong to the Government, but upon the return of the Agent of the Fur Trade Co they had been convinced after taking legal advice upon the matter, that the Fur traders were the rightful owners of the aforesaid property, and consequently the Government were not, except by purchase.
But the Govr & Mr Pemberton overlooked the fact that the buildings had been paid for by the Colony. Vide [reference number illegible]/60.
8. This would at first sight appear conclusive as to the views of the Governor & Surveyor General up to the commencement of the present correspondence. But on the other hand Govr Douglas in a despatch dated 12th Septr 1859Manuscript image (4 months after his & Mr Pemberton's statements to the Assembly) described the Land as having been "reserved by the Hudsons Bay Co for Govt purposes" and in a despatch dated 28th March 1860 asserted that the Land appropriated to the Government House was always regarded by him (he having succeeded Mr Blanchard as Governor in May 1851) as a Government Reserve, and that the Colonial Surveyor had strict orders from him not to dispose of any of it. In a subsequent despatch of 7th Decr last he alleged, with reference to his proposal before referred toManuscript image to lease the Buildings on this Land to the Government, that as the Company did not approve of that suggestion
[One word illegible]
the cost of the buildings was in consequence borne by the Colony, and the land appropriated to them was retained and set apart as a Government reserve up to the period of its sale.
Now used in what sense? I suppose it was a [illegible] matter of account.
And he calls attention to a letter of instructions addressed to him by the Governor of the Company on his appointment as Governor in which it is stated, inter alia, that it must be understood that if any part of the Company's Reserves is required for public purposesManuscript image it may be resumed upon repaying the price and any improvements that may have been made upon it. The Land in question was, he observes, required for public purposes and was taken possession of by the Government in 1851, but as no price had been paid for it nor any expenditure incurred on it by the Company there was nothing to be repaid on that resumption. He adds that it was not till Septr 1853 that the Compy made a minute that the Land should be registered as belonging to the Company, and not tillManuscript image Janry 1859 that the registration was effected. He likewise transmits an opinion from his Attorney General to the effect that the Company have no claim to the Land.
9. It will be seen from this recapitulation that there is much difficulty in reconciling Governor Douglas' present statement with the views which he originally entertained in respect to this Land and which, if the Surveyor General is correct, he retained up to the month of May 1859. There appears no reason to doubt that the Land in dispute was previousManuscript image to the Grant of 1849 in the possession of the Fur Trade branch of the Hudsons Bay Co and was still in their possession when the Buildings since occupied by the Government were commenced in 1851. Whether the Company had then acquired such a right to it as the Crown is bound to respect is the question to be decided by the Judicial Committee of the Privy Council—but if that decision should be in their favor the subsequent transactions could not invalidate the Company's title. Govr Douglas, as has beenManuscript image stated relies on an instruction from Sir J. Pelly in 1851, authorizing him to resume for public purposes any Land reserved for the Fur Trade or Puget Sound Co. But it cannot be maintained that such a resumption could be effected on the mere authority of a general instruction from the Governor of the Co not relating to this particular land, without any formal Act or record, and without even notice to the previous owners of the intention to resume, by the mere fact of the erection of Government Buildings on the land. The single groundManuscript image as far as I can see, for assuming the Land to be a Government Reserve, is Governor Douglas' assertion that he always so regarded it—but even that assertion is inconsistent with the statement of his views made by Mr Pemberton in the House of Assembly on the 17th May 1859, which was brought under his notice by the Duke of Newcastle's despatch of 2nd Janry 1860, but to which he has never adverted in any of his despatches.
10. The conclusion then to which I come is, that this land stands upon the same footingManuscript image as the other land claimed by the Hudsons Bay Co on the ground of occupation before the grant of 1849. The point is one of importance, because on the decision as to the ownership of the land depends the question as to the source from which the $27000 expended on the new Government Buildings is to be drawn. If the Land belongs to the Crown the money will have been provided from Colonial sources—but if to the Company the money will have been advanced only by them and would have to be repaid, in the first instanceManuscript image at least, from the Imperial Treasury. This, therefore, affords an additional reason for bringing the matter before the Judicial Committee of the Privy Council with as little delay as possible, and I would accordingly submit that in communicating to the Company (as I presume it will be thought right to do) Governor Douglas' last despatch, an opportunity should be taken of recalling to their recollection Mr Merivale's letter of the 7th Febry 1860 and ofManuscript image urging them to send in without delay the necessary statement of their claims to Land in Vancouvers Island for reference to the Judicial Committee.
This is unnecessary—vide p 7.
I have etc.
T.W.C. Murdoch
Minutes by CO staff
Manuscript image
Mr Elliot
Adopt the course of proceeding suggested in this report.
ABd 16 March
TFE 15 March
The result is that this must await the decision of the Judicial Committee, as part of the general question of the Co's right to the "Fur Trade Reserves". And so inform the H.B.Co. in forwarding this desp. and 2038 to them?
CF 16
N 20
Murdoch, Thomas William Clinton to Elliot, Thomas Frederick 14 March 1861, CO 305:18, no. 2297, 120. 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/V615LN01.html.

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