Berens to Newcastle
Hudson's Bay House
8 November 1861
I have the honour to acknowledge the receipt of a letter addressed to me by Mr Elliot, under date the 5th instant, enclosing a Copy of a despatch from the Governor of Vancouver's Island, and a report of the proceedings which took place before the Supreme Court of the Colony upon an application made on behalf of the local Government for an injunction to restrain the Hudson's Bay Company from selling portions of the 3084 acres of land claimed by them under apossessoryManuscript image possessory title prior to the Crown Grant of the Island to the Company.
Mr Elliot after remarking that the injunction was refused on the ground that the subject matter of the suit in litigation was before the Judicial Committee of the Privy Council, whose decision will ultimately dispose of the question, adds that as some-time must elapse before that decision can be obtained, and as there are evils pointed out in the Governor's letter which demand a more prompt remedy, Your Grace is desirous to know whether the Company will at once send out instructions to their Officers to desist from any further dealings with the lands in disputeuntilManuscript image until the question of title be settled.
In reply I beg to inform Your Grace that we have already issued directions to the Company's Officers in Vancouver's Island to suspend the sale of those lands. On the 23rd May last to Sir Frederic Rogers, in allusion to a water frontage which was to have been sold, but which Governor Douglas claimed as a public landing place, addressed me a letter of which the following is an Extract: I am directed by the Duke of Newcastle to inform you that unless you can assure His Grace that instructions will be sent to the Agent of the Company, by the most rapid opportunity, to suspend the sales of the land in question, theGovernorManuscript image Governor will be instructed to issue a notice in the Colony that Her Majesty's Government deny the right of the Company to sell those lands. On the following day—the 24th May—I replied: I hasten to inform Your Grace that in compliance with the suggestion thrown out in to Sir Frederic Rogers' letter I have directed that specific instructions shall be sent by this day's Post to the Agent of this Company at Victoria to suspend the sales of the land in question as referred to in the correspondence between Governor Douglas and Mr Dallas.
On the 25th May a Copy of the correspondence was transmitted toMrManuscript image Mr Mactavish now the Company's principal Agent at Victoria with distinct instructions to suspend the sale of the Company's lands till the questions between Her Majesty's Government and the Company were decided. And in acknowledging the receipt of that letter, under date the 14th July, Mr Mactavish says: In accordance with your instructions we shall sell no portion of the 3084 acres of land on this Island until further instructed.
Your Grace will thus observe that as far as the Company is concerned the most distinct instructions were given for the carrying out ofyourManuscript image your Grace's wishes in the matter. And I have no reason to believe that those instructions have in any single case been departed from by our Officers, inasmuch as we have no knowledge of any Sales of Land having taken place subsequent to that period. In order, however, to satisfy Your Grace, a copy of the present correspondence will be transmitted by the first post and attention will be again drawn to the instructions already given.
There are several other points alluded to by Mr Elliot on which I would request Your Grace to suspend your judgment until the arrival of Mr Dallas who is shortlyexpectedManuscript image expected from Edinburgh, and was the Company's principal representative at Victoria at the period of the transactions in question. I allude particularly to the alleged sale by the Company of the Park reserved for the Public at Victoria, of the Springs which supply the Colonists with Water, and of the Ornamental Trees in the neighbourhood of the Town—the real nature of which transactions Mr Dallas will, I believe, be able to explain to the satisfaction of Your Grace. Mr Dallas is expected to arrive here about the end of next week and as soon afterwards as possible I shall have the honour of addressing Your Grace on this subject as well as upon the proposal as to theassentManuscript image assent of the Governor being given, in writing, previous to the sale of any particular portion of the land in question.
I have etc.
H.H. Berens
Minutes by CO staff
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Mr Elliot
There has been a misunderstanding in this matter, but it appears to be the fault of the Company & their Agent that it has arisen.
The letter from this Dt of 23rd May last (which is here quoted) had reference solely to the piece of land forming part of theManuscript image water frontage of Victoria, and it was naturally concluded both by this Department & the Land Board that the instructions to the Agent in the Colony to suspend sales of "the land in question" referred to the water frontage only & not to the 3084 acres of which it forms a part.
It now appears however that the instructions were intended to apply to the whole of the 3084 acres & have been so regarded by the Coy's agent in his acknowledgment of them dated 24th July last.
The Agent (either purposely or because he concluded the Govr had received similar instructions) did not communicate his orders to the Governor, who being therefore in ignorance of what had been doneManuscript image has made the application contained in his despatch of 8 Augt.
Had the company given a more precise description in their letter of 24th May of the scope of their orders than that they extended to the Land in question, or had the agent communicated with the Governor, the mistake wd not have occurred.
It will probably be thought right now in reply to the Company to point out how the misapprehension of the nature of their previous instructions arose, expressing satisfaction at what has been done, and adding that the Duke of Newcastle will be happy to receive from Mr Dallas the explanation which he is able to give about the Park, Public Springs &c.
Write also to the Governor to explain the circes.
HT Irving 12 Nov
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I quite agree. I should make the answer very civil and should begin by expressing regret that a misapprehension had arisen and should then proceed to point out it's origin.
TFE 12 Nov
Yes—but I would explain very briefly that the Sec. of State & the Govr had not understood that the Co's Instructions to suspend the sale of Land extended beyond the Water frontages immediately in question, & included the whole of the unsold portion of the Lands claimed by the Co under a title prior to the grant of the Island, which H[is] G[race] is happy to learn was the case.
Sir F. Rogers should see this—in relation to the proceedings before the Judicial Committee.
CF 18
FR 22/11
N 23
Other documents included in the file
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Fortescue to Berens, 4 December 1861, explaining how the misunderstanding in respect to the instructions had arisen, and expressing satisfaction with their actual effect.
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Draft reply, Newcastle to Douglas, No. 79, 4 December 1861, informing him of recent developments in the dispute between the HBC and the colony of Vancouver Island regarding land near Victoria.