Walcott to Elliot (Assistant Under-Secretary)
Emigration Office
8th September 1864
I have the honor to acknowledge your Letter of the 29th ultimo, with copies of two Despatches from the Governor of Van Couvers Island and of a Letter from Mr Richards the Hydrographer to the Admiralty, on the subject of the ownership of Fisgard Island on which stands the Lighthouse at the entrance of Esquimalt Harbor.
2. It appears that there are no records in the Light House BoardorManuscript image or in the Colonial Secretary's Office of the Ownership of Fisguard Island, or of its purchase by the Government; but Mr Richards in his Letter states that previous to the transfer of Van Couvers Island from the Hudsons Bay Company to the Crown, the whole or nearly the whole of the shores of Esquimalt Harbor with the numerous small Islands in it were owned by the Puget Sound Company, or by private individuals—and that Fisgard Island (a rock in the Harbor of between 100 and 200 yards in extent) formed part of a property called Belmont belonging to Mrs Young before her marriage, or to her Father. From the other papersitManuscript image it appears that on the 20th December 1829 the Surveyor General, by order of the Colonial Secretary Mr Young, paid to him Mr Young £150 as the purchase money of the Island, but that no deed of conveyance was then executed of the property. The attention of Governor Kennedy having recently been drawn to the subject, enquiries were set on foot, but beyond the fact of payment of the purchase money, none of the Officers of the Government through whom such a transaction would in the ordinary course have passed, knew anything at all about it. Eventually however the purchase deed executed by Mr & Mrs Young, before they left the Colony, to Mr Pemberton in his capacity ofSurveyorManuscript image Surveyor General of the Colony was discovered in the hands of a Solicitor unconnected with the Government, who delivered it up to the Attorney General on the 17th of June last. This deed is dated the 14th of May last, and although purporting to be made between Mr & Mrs Young on the one part, and Mr Pemberton as Surveyor General of the Colony on the other part, is executed by Mr & Mrs Young only. In consequence of the absence of Mr Pembertons signature the Governor raises a question as to the validity of the Deed. On this point Mr Cardwell is desirous of having our report, as well as whether any and what communication on thesubjectManuscript image subject should be made to Mr Young who is now in this Country.
3. The mere circumstances that the Deed was not signed by the Grantee Mr Pemberton, would not affect its validity as regards the Grantors. Mr & Mrs Young are equally bound by their execution of the Deed. If therefore no other question arose on the Instrument, it would not be necessary to call on them for a fresh conveyance. Another important question however does arise on the face of the Deed. It conveys the property to Mr Pemberton in his official capacity as Surveyor General "and his successors in office." But as the office of Surveyor General is not a corporate one, the Conveyance doesnotManuscript image not I apprehend carry the legal estate in fee as is the intention—but by reason of the particular terms used, operates as a conveyance to Mr Pemberton for his life only. I think therefore that Mr Young and his wife should at once be called upon, under his covenant for further assurance, to execute a fresh conveyance so as to vest the fee simple of the Island in some official body in the Colony having a corporate capacity to be held in trust for the public—such for instance as the Lighthouse Board, if it be a corporation. As Mr Young is now in England, Mr Cardwell will I presume desire to have this Deed prepared by the SolicitorofManuscript image of the Treasury on behalf of the Crown.
4. I would further submit that Mr Young should at the same time be afforded an opportunity of clearing up what appears to have been a great irregularity in the conduct of public business—and what, looking at the official position he held at the time, certainly needs explanation. The whole transaction seems to have centered in him. It does not appear how the purchase originated—who sanctioned it, what means were taken to ascertain that he and his wife had a good title to the property they sold—or who approved of the purchase deed on behalf of the Crown.TheManuscript image
5. The Governor thinks that the intrinsic value of the rock is merely nominal. Mr Richards on the other hand thinks that the price paid was not under the circumstances unreasonable. On this point it would probably not now be deemed advisable to raise any question, if the rest of the transaction is unimpeachable.
6. As the most convenient mode of showing the nature of the communication which I would suggest should be addressed to Mr Young I annex the draft of a Letter to him for the consideration of Mr Cardwell.
I have the honor to be
Your obedient
humble Servant,
S. Walcott
Minutes by CO staff
Manuscript image
Mr Elliot
Adopt this draft, though I expect that the Colonial Secy will be able to return a good answer?
ABd 10 Sepr
Follow Mr Walcott's advice, and adopt his draft of a letter to Mr Young?
TFE 17 Sept
EC 19
Other documents included in the file
Manuscript image
Rogers to W.A.G. Young, 21 September 1864, explaining the problem with his conveyance of Fisgard Island and asking for an explanation of the circumstances surrounding the sale and conveyance of the property in question.