Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Public Offices document
Murdoch, Thomas William Clinton to Merivale, Herman 29 August 1859, CO 60:5, no. 8634, 530.
Abstract
Murdoch, Thomas William Clinton to Merivale, Herman 29 August 1859, CO 60:5, no. 8634, 530.
Public Offices document.
Minutes (4), Other documents (1), Marginalia (1).
Murdoch to Merivale (Permanent Under-Secretary)
Emigration Office
29 August 1859
Sir,
I have to acknowledge your letter of 15th inst,
enclosing Copies of a correspondence with the Hudson's
Bay Company and the Governor of British Columbia, on the
subject of the claims of the Company to Land in that Colony.
2. The Hudson's Bay Company, before the discovery
of Gold in British Columbia, occupied considerable tracts
of Land in the Country
Country which now forms that Colony, for
their Trading Posts and for the support of the Cattle and
Horses necessary for carrying on their Trade. To this
Land they had no formal title, nor was there any definition
of their boundaries. So long as the Country was uninhabited
no inconvenience could be thereby created, but when the Gold
discoveries attracted large numbers of Settlers it became
important that their claims should be ascertained and placed
on a more precise and satisfactory footing. The Company
accordingly brought the
the matter under Sir E.B. Lytton's
consideration and requested that the Governor might be
directed to define their Land, taking a liberal view of
their claims with reference to the Land occupied and
pastured by their Cattle before the influx of Miners.
Sir E.B. Lytton in consequence directed Governor Douglas
to enquire into the Company's claims. He added that H.M. Government
were desirous of taking a liberal view of those
claims, consistently with public interests, but that a
considerable distinction must be drawn between Land on
which Capital had been expended, and that which
which had been
only temporarily occupied.
Country which now forms that Colony, for
their Trading Posts and for the support of the Cattle and
Horses necessary for carrying on their Trade. To this
Land they had no formal title, nor was there any definition
of their boundaries. So long as the Country was uninhabited
no inconvenience could be thereby created, but when the Gold
discoveries attracted large numbers of Settlers it became
important that their claims should be ascertained and placed
on a more precise and satisfactory footing. The Company
accordingly brought the
the matter under Sir E.B. Lytton's
consideration and requested that the Governor might be
directed to define their Land, taking a liberal view of
their claims with reference to the Land occupied and
pastured by their Cattle before the influx of Miners.
Sir E.B. Lytton in consequence directed Governor Douglas
to enquire into the Company's claims. He added that H.M. Government
were desirous of taking a liberal view of those
claims, consistently with public interests, but that a
considerable distinction must be drawn between Land on
which Capital had been expended, and that which
which had been
only temporarily occupied.
3. Governor Douglas' Despatch of 31st May last
contains the Report thus called for. It appears that the
Land claimed by the Company amounts in all to upwards of
98,000 Acres, that of this 10 Acres is in the Town of Old
Fort Langley, 6,400 Acres or 10 Square Miles in its
immediate vicinity, and 640 Acres at the Town of Fort
Hope. A Table is annexed to the Despatch from which
(if I understand it rightly) it is intended to be
inferred, that the whole of the Land has involved
involved
outlay that blocks containing upwards of 80,000 Acres
have been brought into partial cultivation and are
necessary for the maintenance of existing Stock, and
that none has served only for occasional pasture.
The Company claim in addition the whole of the cleared
land at Old Langley, including what has been sold
under protest from their Agent to Settlers and a compensation
of 5000 dollars for making Roads and for Land between
Fort Hope and Thompsons River not occupied but improved
by the sowing of Grass Seed.
involved
outlay that blocks containing upwards of 80,000 Acres
have been brought into partial cultivation and are
necessary for the maintenance of existing Stock, and
that none has served only for occasional pasture.
The Company claim in addition the whole of the cleared
land at Old Langley, including what has been sold
under protest from their Agent to Settlers and a compensation
of 5000 dollars for making Roads and for Land between
Fort Hope and Thompsons River not occupied but improved
by the sowing of Grass Seed.
4. Governor Douglas wages strongly the claim of the
Hudsons Bay Company to liberal consideration on the
the
ground of their services in securing the Country
West of the Rocky Mountains for Great Britain, and the
loss they have incurred by the premature revocation
of their Trading License. He also lays stress on the
alleged recognition of the Company's rights in the
Oregon Treaty of 1846. But that Treaty only promises
that the "Possessory rights of the Hudsons Bay Co
and of all British Subjects who may be already in the
occupation of Land or other property lawfully acquired
shall be respected." He adds that the Lands claimed
by the Company have no connexion with the Gold Fields,
are not known to be auriferous are not except the Posts
on the Lower part of Frazers River of any extraordinary
value for purposes of
of settlement, and are so remote
from the Sea that years will probably elapse before
they can be settled. Colonel Moody, whom the Governor
consulted, agreed with him on the general principle,
but recommended that the claim at Fort Langley & Fort Hope should be admitted to a limited extent only &
compensation be provided by the Grant of Land
elsewhere. At Fort Hope he observed, the claim, if
rigidly followed out, would embrace Town Lots in
respect of which the Crown is already pledged to others.
the
ground of their services in securing the Country
West of the Rocky Mountains for Great Britain, and the
loss they have incurred by the premature revocation
of their Trading License. He also lays stress on the
alleged recognition of the Company's rights in the
Oregon Treaty of 1846. But that Treaty only promises
that the "Possessory rights of the Hudsons Bay Co
and of all British Subjects who may be already in the
occupation of Land or other property lawfully acquired
shall be respected." He adds that the Lands claimed
by the Company have no connexion with the Gold Fields,
are not known to be auriferous are not except the Posts
on the Lower part of Frazers River of any extraordinary
value for purposes of
of settlement, and are so remote
from the Sea that years will probably elapse before
they can be settled. Colonel Moody, whom the Governor
consulted, agreed with him on the general principle,
but recommended that the claim at Fort Langley & Fort Hope should be admitted to a limited extent only &
compensation be provided by the Grant of Land
elsewhere. At Fort Hope he observed, the claim, if
rigidly followed out, would embrace Town Lots in
respect of which the Crown is already pledged to others.
5. The nature & extent of the political claims of
the Hudson's Bay
Bay Company on the Crown can be best
appreciated by the Secretary of State. We have no
means at this Office (even if it were within our
province to do so) of forming an opinion upon them.
But there can be no disposition on the part of H.M.
Government to deal with the Company in an illiberal
Spirit. The real question is how far their claims
can be admitted without injustice to other residents
in the Colony, and without the risk of obstructing
its future settlement.
Bay Company on the Crown can be best
appreciated by the Secretary of State. We have no
means at this Office (even if it were within our
province to do so) of forming an opinion upon them.
But there can be no disposition on the part of H.M.
Government to deal with the Company in an illiberal
Spirit. The real question is how far their claims
can be admitted without injustice to other residents
in the Colony, and without the risk of obstructing
its future settlement.
6. Upon this point it is extremely difficult
to form any conclusion from Governor Douglas'
Douglas' Despatch.
Sir E.B. Lytton had indicated the principle which
should guide the decision, by stating that he was
prepared to draw a considerable distinction between
land which had been cultivated or had involved outlay
or was necessary for existing Stock, and that which had
served only for occasional pasturage. But Governor
Douglas has placed the whole of the Company's claim in
the former category, although it is very difficult to
believe that 98,000 Acres spread in blocks varying
from a few Acres to 100 Square Miles over several
hundred
hundred Miles of Country should all be properly entitled
to be so considered. The explanation may possibly be,
that a great portion of the Land has Cattle upon it
belonging to the Company, and may, therefore, be considered
as falling within the description of being necessary
"to the maintenance of their existing Stock or Establishment."
The result, however, is that some more specific principle
must be adopted for determining the extent to which the
claims of the Company should be recognized by H.M. Government.
Colonel
Douglas' Despatch.
Sir E.B. Lytton had indicated the principle which
should guide the decision, by stating that he was
prepared to draw a considerable distinction between
land which had been cultivated or had involved outlay
or was necessary for existing Stock, and that which had
served only for occasional pasturage. But Governor
Douglas has placed the whole of the Company's claim in
the former category, although it is very difficult to
believe that 98,000 Acres spread in blocks varying
from a few Acres to 100 Square Miles over several
hundred
hundred Miles of Country should all be properly entitled
to be so considered. The explanation may possibly be,
that a great portion of the Land has Cattle upon it
belonging to the Company, and may, therefore, be considered
as falling within the description of being necessary
"to the maintenance of their existing Stock or Establishment."
The result, however, is that some more specific principle
must be adopted for determining the extent to which the
claims of the Company should be recognized by H.M. Government.
7. Colonel Moody has observed, with reference to
their claims at Fort Langley and Fort Hope, that their
admission to the full extent would provoke very hostile
criticism and protests on the part of the public, and
might eventually lead to the Company obtaining less than
justice. Considering that the claim at Fort Langley,
as has been stated, is, in its full extent, for the whole
of the Town, and even in its reduced form, for 10 acres or
60 lots in the Town, and for 6,400 Acres in its immediate
vicinity and that such lots were sold last
last year at upwards
of £42 a Lot, it is impossible to question the correctness
of this opinion. To recognize this claim, even in its less
extended form, would place the future progress of Fort
Langley in the hands of the Hudsons Bay Company, and the same
result would follow if the claim of the Company to 640 Acres
at Fort Hope were admitted. Indeed as the Posts of the
Company were naturally placed at the most convenient spots
for communication between the interior and the Fort, and
as such spots
spots would, in the ordinary course of events, become
the most probable centres of population, the grant to
the Company of the Land claimed as having been occupied by
them would make them to a great extent Masters of the future
progress of the Colony, that it would provoke discontent and
complaint among the immigrant population can hardly admit of doubt.
last year at upwards
of £42 a Lot, it is impossible to question the correctness
of this opinion. To recognize this claim, even in its less
extended form, would place the future progress of Fort
Langley in the hands of the Hudsons Bay Company, and the same
result would follow if the claim of the Company to 640 Acres
at Fort Hope were admitted. Indeed as the Posts of the
Company were naturally placed at the most convenient spots
for communication between the interior and the Fort, and
as such spots
spots would, in the ordinary course of events, become
the most probable centres of population, the grant to
the Company of the Land claimed as having been occupied by
them would make them to a great extent Masters of the future
progress of the Colony, that it would provoke discontent and
complaint among the immigrant population can hardly admit of doubt.
8. But while it seems quite clear that the claims of the
Company must be very much reduced from their present amount
amount
before they can be entertained, it is almost impossible to
determine, except on the spot, what ought to be rejected.
As a general rule I would submit, that claims to Land in
Towns or in spots likely to become the sites of Towns should
be admitted with great reserve, and only on proof of a
substantial expenditure of capital upon them, either in the
preparation of the Land or in the actual erection
of buildings, that tracts of Country Land, not auriferous,
which
which have been actually brought under cultivation should
be granted to the Company with such a reasonable extension
of area as may be necessary to turn the Land to good account,
but in respect to the large tracts occupied by the Companys
Stock, that they should receive only a License of occupation
at a small yearly rent, subject, however, to be terminated
at the end of each year if the Land should be required for
Sale or Settlement. If these principles should be approved
the application of them must still
still be left to the Governor
on the spot, but with the means of information at his
command he could have no great difficulty in carrying
them into effect. It may, however, save time if when the
principles to be observed have been decided on a communication
were made to the Company in this Country before final
instructions are sent to Governor Douglas.
amount
before they can be entertained, it is almost impossible to
determine, except on the spot, what ought to be rejected.
As a general rule I would submit, that claims to Land in
Towns or in spots likely to become the sites of Towns should
be admitted with great reserve, and only on proof of a
substantial expenditure of capital upon them, either in the
preparation of the Land or in the actual erection
Is mere clearing to be considered as just outlay?
which have been actually brought under cultivation should
be granted to the Company with such a reasonable extension
of area as may be necessary to turn the Land to good account,
but in respect to the large tracts occupied by the Companys
Stock, that they should receive only a License of occupation
at a small yearly rent, subject, however, to be terminated
at the end of each year if the Land should be required for
Sale or Settlement. If these principles should be approved
the application of them must still
still be left to the Governor
on the spot, but with the means of information at his
command he could have no great difficulty in carrying
them into effect. It may, however, save time if when the
principles to be observed have been decided on a communication
were made to the Company in this Country before final
instructions are sent to Governor Douglas.
Under any circumstances Governor Douglas should, I think,
be instructed to furnish hereafter a full report of the steps
which he may take in the matter with an
an explanation of the
nature of the claim of the Company to the several tracts of
Land which he may propose to concede to them, and that his
report should be accompanied, if possible, by a Chart showing
the position of the Land claimed and of that conceded.
an explanation of the
nature of the claim of the Company to the several tracts of
Land which he may propose to concede to them, and that his
report should be accompanied, if possible, by a Chart showing
the position of the Land claimed and of that conceded.
Minutes by CO staff
Mr Merivale
So far as regards tracts of Country land which may have been either cultivated or used for pasture by the Company, the principles laid down in par 8 of this report would seem to be equitable. But may it not be a question whether proof of the expenditure of capital in the cultivation of land should be allowed to
establish the claim of the company to such
land, in the case of sites of towns. For instance, if the land that has
been occupied by the Company at Langley and Fort Hope has been brought
into cultivation by them, shd they be allowed to retain it now that
it has been converted into Town Lots? I should think it might lead to
serious results to admit that such expenditure of Capital confers on the
Company a title to the Lands on which the towns are being built, and
that it might be more advisable to grant the Company compensation for
improvements & an equivalent in land elsewhere in the Colony?
So far as regards tracts of Country land which may have been either cultivated or used for pasture by the Company, the principles laid down in par 8 of this report would seem to be equitable. But may it not be a question whether proof of the expenditure of capital in the cultivation of land should be allowed to
establish the claim of the company to such
land, in the case of sites of towns. For instance, if the land that has
been occupied by the Company at Langley and Fort Hope has been brought
into cultivation by them, shd they be allowed to retain it now that
it has been converted into Town Lots? I should think it might lead to
serious results to admit that such expenditure of Capital confers on the
Company a title to the Lands on which the towns are being built, and
that it might be more advisable to grant the Company compensation for
improvements & an equivalent in land elsewhere in the Colony?
When the principles to be observed are decided on—write to the
Company as suggested by the Commrs in par 9, before instructing
Gov Douglas.
HT Irving
31 Augt
Other documents included in the file
Draft, Merivale to H. Berens, Hudson's Bay Company, 14 September
1859, forwarding copy of a despatch from Douglas concerning the
claims of the company to land in British Columbia, and further
discussing the subject.
Minutes by CO staff
Duke of Newcastle
This seems to me to raise some questions of great difficulty; but a decision must apparently be arrived at without delay.
This seems to me to raise some questions of great difficulty; but a decision must apparently be arrived at without delay.
The H.B.C. never had or asked for any title from the Crown to the
parcels of land which they have occupied in the N.W. territories. What
semblance of title they may have derived from Indians, does not appear.
Legally speaking I take it they are mere squatters.
But doubtless squatters under such peculiar circumstances
do acquire equitable claims which it is difficult to disregard.
And I think they have ingeniously drawn an additional
argument from the Oregon Treaty of 1846, which it is not very
easy to meet. That treaty secured to them their
"possessory rights" south of 49o. The meaning of the words
per se is not very clear; but, they allege, with truth
I believe that we have contended against the Amn Government
in their behalf that these words secure their rights as landlords:
and, they say, it would be very inconsistent to contend that
they are landlords south of 49o and not landlords
north of 49o under precisely similar circumstances.
I believe that we have contended against the Amn Government
in their behalf that these words secure their rights as landlords:
and, they say, it would be very inconsistent to contend that
they are landlords south of 49o and not landlords
north of 49o under precisely similar circumstances.
But the misfortune is this: the spots of land claimed by
the Co. lie round their old Forts: and these Forts occupied
(naturally) precisely those points on the navigable rivers &
at the meeting of valleys where settlements would first
be established & which therefore acquire value as "town lots."
They claim the site of Langley, of Fort Hope, & of many more
places which will certainly, however slowly, become seats
of population & industry. Their claims therefore, in the
first place, involve considerable gains to themselves at
the expense of the public, from the increased value of
land for which they 
gave nothing: in the next place, stand
in the way of public disposal of the land & check improvement.
gave nothing: in the next place, stand
in the way of public disposal of the land & check improvement.
Col. Moody suggests measures which might palliate to some extent
the evil as to Langley & Yale: but they lie rather in negociation than
in principle: & the same evil will certainly recur as to other points
claimed, unless measures are taken beforehand.
It seems to me that a large portion of these claims
rest solely on the fact that the Company have cleared
the land: which they call an "expenditure of capital."
I hardly think this is such an expenditure as Ld
Carnarvon contemplated. It should be, as the Commissioners
term it, "substantial."
But the main question is, whether under all the
circumstances we are or are not entitled to take a bolder
tone, & to say that we will compensate 
the Co. for actual
outlay if they choose, offer them fair terms of exhange if
they choose, but that we will not consent to any arrangement
which shall leave them in possession of town lots
except such as are actually occupied by their buildings
& cultivated land.
the Co. for actual
outlay if they choose, offer them fair terms of exhange if
they choose, but that we will not consent to any arrangement
which shall leave them in possession of town lots
except such as are actually occupied by their buildings
& cultivated land.
An opinion from the Law Advisers
might be serviceable
on this point—but I almost fear recommending it.
Lastly, the limits must ultimately be settled
in the Colony itself: & who is to act for Government?
We cannot trust the Governor. But I think we may trust Col. Moody.
HM
S 2
I have marked the points where the lands are
situate in the map contained in the annexed Blue book.
Writing from recollection only of the Oregon Treaty,
I think the reservation of the interests of the Hudson's
Bay Company went no 
further than this—that whatever rights
they possessed in the Country as British Subjects should not
be forfeited in respect of that portion of the Country held
under Charter or License which was by the Treaty ceded to the
United States. They can hardly plead as against Gt
Britain any diplomatic efforts which have been made to protect
them against repudiation of their claims by the U.S.,
but if they do we might with as much justice and consistency
plead the refusal hitherto to recognize those claims.
further than this—that whatever rights
they possessed in the Country as British Subjects should not
be forfeited in respect of that portion of the Country held
under Charter or License which was by the Treaty ceded to the
United States. They can hardly plead as against Gt
Britain any diplomatic efforts which have been made to protect
them against repudiation of their claims by the U.S.,
but if they do we might with as much justice and consistency
plead the refusal hitherto to recognize those claims.
Whatever may be the case under the
Charter I cannot conceive
how the Company can claim any rights as Landlords under the
License unless they can shew, beyond the powers
of the License, either a grant by the Crown or a purchase
by themselves of the lands in question. To compensation
for any expenditure—either in erecting 
buildings or
bringing land into cultivation they are entitled, though
even then with abatement for the time during which they
have derived profit from such expenditure without
the payment of any acknowledgement to the Crown. The
peculiar circumstances and position of the Company entitle
them to a liberal construction of their claims but not
to a recognition of rights which primâ facie do not exist.
buildings or
bringing land into cultivation they are entitled, though
even then with abatement for the time during which they
have derived profit from such expenditure without
the payment of any acknowledgement to the Crown. The
peculiar circumstances and position of the Company entitle
them to a liberal construction of their claims but not
to a recognition of rights which primâ facie do not exist.
If they could shew a title, or even an equitable
claim, to these lands I should deplore the public mischief
which Mr Merivale points out in respect to the Town
Lots and sites of Forts but I should see no remedy without
violation of private property short of buying out the
Company at the present enhanced 
value, but title they
clearly cannot produce and equitable claim has not so far
as I know been yet advanced.
value, but title they
clearly cannot produce and equitable claim has not so far
as I know been yet advanced.
A fair compromise is the only way of settling such a case.
The Town Lots & Forts (except the actual sites of existing
buildings) cannot be conceded to the Company. If, as seems
improbable, they can prove expenditure of Capital in substantial
improvements of the large tracts they claim they may either
be allowed to retain them with a title now conferred or receive
fair compensation for their surrender. The principle of exchange
might also enter into the arrangement if desired. License
of occupation, as proposed by the Commrs in par: 8
might possibly (though I am 
inclined to doubt it) be found
in some cases an equitable arrangement.
inclined to doubt it) be found
in some cases an equitable arrangement.
It is obvious that the anomalous position of Govr
Douglas precludes his being employed in this matter, & I
do not doubt he would deprecate undertaking such a duty.
Coll Moody is an obvious and fit person to employ on behalf
of the Public, but before sending any instructions it will
be necessary to ascertain from the Company how far they will
accede to these principles of settlement and whether they
will instruct any Person to act on their behalf.
N
3
People in this document
Lytton, Sir Edward George Earle Bulwer
Moody, Colonel Richard Clement