Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Public Offices document
Berens, Henry Hulse to Pelham-Clinton, 5th Duke of Newcastle Henry Pelham Fiennes 4 January 1861, CO 60:12, no. 177, 101.
Abstract
Public Offices document.
Minutes (3), Other documents (3), Marginalia (2).
Berens writes to Newcastle to complain about Douglas's apparently “unjustly prejudiced” actions towards the HBC. The first complaint is
on trade licences; the second involves Douglas's sale of HBC lands, some of it his own, and the buildings upon them—a process considered
withheld until such time as the issue of HBC land-claims in British Columbia is settled definitively by the Privy Council.
In the extensive minutes, Blackwood speculates that Douglas is treating HBC servants as Company partners, and therefore taxing them incorrectly;
regardless, Blackwood, as well as Rogers question why the aggrieved parties do not take up the matter of unfair taxation in
“the Courts of Law in the Colony.” On the complaint of HBC land-claims, all agree
to refer to the Land Board for advice, and Fortescue closes with a call for Douglas to be sent Berens's letter, and to “report upon every part of it.”
The first of the three documents included in the file is a draft letter from Rogers to Berens, which declines to comment upon Berens's complaints until receipt of a response from Douglas; the second is a draft letter from Rogers to Emigration Commissioners, which forwards an extract of Berens's letter for consideration and report; the third is a cancelled draft reply from
Newcastle to Douglas, which forwards a copy of Berens's letter for consideration and report.
Berens to Newcastle
Hudson's Bay House
4 January 1861
In reference to the interviews I had the honour of having
with your Grace on the 28th ult. I now beg to bring under
your Grace's notice several matters in connection with the
proceedings of Governor Douglas by which the interests of this
Company are materially, and, as I believe, unjustly prejudiced.
The first ground of complaint to which I would take leave
to call your Grace's attention arises from the system recently
adopted by the Governor to the effect that every partner in a trading
firm must make a quarterlypayment
payment of 5 Dollars for a Trading License.
payment of 5 Dollars for a Trading License.
The Governor has taken upon himself to decide that there
were 10 partners in this Company subject to the License and it
is understood that it is intended to increase this number.
Upon this subject I venture to submit that it is perfectly
clear that in a Corporation established as this Company is by
Royal Charter there can be no individual responsibility and that
therefore the Company are liable, if at all, to pay for one
license only; and indeed if it were otherwise the only parties
who could be considered as partners in the Company wouldbe
be
the Shareholders, whereas, as far as I understand it, the
Governor is taking upon himself to treat as partners all those
Servants of the Company whose remuneration is governed by the
amount of profits made but who are in no case subject to
loss. I consider however that it is quite clear that in a
Corporate body no notice can be taken of the individuals
composing it, and I trust that Your Grace will have no
difficulty in giving such instructions to the Governor as may
prevent the recurrence or continuation of this extortion.
be
the Shareholders, whereas, as far as I understand it, the
Governor is taking upon himself to treat as partners all those
Servants of the Company whose remuneration is governed by the
amount of profits made but who are in no case subject to
loss. I consider however that it is quite clear that in a
Corporate body no notice can be taken of the individuals
composing it, and I trust that Your Grace will have no
difficulty in giving such instructions to the Governor as may
prevent the recurrence or continuation of this extortion.
The most material matter however to which I have to
call YourGrace's
Grace's attention is the course pursued by Governor Douglas in reference to the lands in British Columbia which have
for some time been in the occupation of the Company, upon some
parts of which they have erected Forts and other buildings
and as for other parts of which they are used for agricultural
and other purposes connected with the Company's trade.
Grace's attention is the course pursued by Governor Douglas in reference to the lands in British Columbia which have
for some time been in the occupation of the Company, upon some
parts of which they have erected Forts and other buildings
and as for other parts of which they are used for agricultural
and other purposes connected with the Company's trade.
Your Grace is well aware that the extent of the rights of
this Company in reference to these lands has for some time past
been a subject of serious discussion between the Company and
Her Majesty's Government.
Under
Under date the 14th September 1859 Mr Under Secretary
Merivale transmitted to me, by your Grace's direction, the Copy
of a Despatch which had been received from the Governor of British Columbia on the subject of these very claims; and in that
Despatch the Governor, so far as he was concerned, recognized to
a great extent the claims set up by the Company. Your Grace did
not however entirely assent to the view which the Governor took
of the rights of this Company; but Mr Under Secretary Merivale
in the letter to which I have referred distinctly stated that
your Grace considered the Company entitled to be indemnified from
all lossoccasioned
occasioned to them (other than mere dispossession from
an Ownership which your Grace did not recognize) through the
Governments resuming possession of land which this Company
had improved or on which their Capital had been in any way
expended; and he added that:
the Company might be assured that it was your Grace's wish
to see that indemnity carried into execution in a liberal
manner whether in the form of Land to which a title should
be given or in any other shape that might be agreed upon.
occasioned to them (other than mere dispossession from
an Ownership which your Grace did not recognize) through the
Governments resuming possession of land which this Company
had improved or on which their Capital had been in any way
expended; and he added that:
the Company might be assured that it was your Grace's wish
to see that indemnity carried into execution in a liberal
manner whether in the form of Land to which a title should
be given or in any other shape that might be agreed upon.
Mr Under Secretary Merivale went on to state that
it was your Grace's intention to direct the Governor todisallow
disallow
claims of that character
except for the actual sites of existing buildings although
your Grace could be willing to allow compensation for losses
such as those above described and was willing to allow
considerable latitude in effecting such compensation by Grants
of Country Lands in lieu of what might be thus resumed.
disallow
claims of that character
except for the actual sites of existing buildings although
your Grace could be willing to allow compensation for losses
such as those above described and was willing to allow
considerable latitude in effecting such compensation by Grants
of Country Lands in lieu of what might be thus resumed.
The Governor in his despatch after giving in detail a
statement of the various claims of this Company and their
different characters concluded by stating that until Her
Majesty's Government arrived at a decision upon the matter
he would respect the Lands claimed by the Hudson's Bay
Companyand
and would not make any sale or transfer within their
limits and suggested therefore that an immediate settlement
should be effected as well upon that account as for the
preservation of the difficulties and complaints which otherwise
would be of constant recurrence.
and would not make any sale or transfer within their
limits and suggested therefore that an immediate settlement
should be effected as well upon that account as for the
preservation of the difficulties and complaints which otherwise
would be of constant recurrence.
The communication from Mr Under Secretary Merivale
was answered by a letter from myself of the 6th October
1859 suggesting a mode of settling the matters in dispute.
This was followed by some further communications, and in
the result it was arranged that the rights of the Company
should be the subject of a decision before the Judicial Committeeof
of the Privy Council.
of the Privy Council.
I very much regret that so much delay has already
occurred, and is likely to occur in obtaining any such
decisions, and I should cheerfully cooperate in any measures
which might lead to a speedy settlement of these matters
without the delay of bringing them under the consideration of
the Judicial Committee who probably will not be able to decide
upon the rights of this Company without further information
as to the particular nature of them than is at present forthcoming.
In Mr Under Secretary Merivale's letter of the 14th
September 1859 it was suggested that this Company shouldname
name
some one to co-operate with Colonel Moody in making the necessary
investigation as to the actual position of this Company in
regard to the lands under discussion and it perhaps would
even now be of use if such a course were adopted without
pledging either party as to the decision to be come to when
the report should be obtained, but the possession of which
would probably enable both parties to come to some settlement.
name
some one to co-operate with Colonel Moody in making the necessary
investigation as to the actual position of this Company in
regard to the lands under discussion and it perhaps would
even now be of use if such a course were adopted without
pledging either party as to the decision to be come to when
the report should be obtained, but the possession of which
would probably enable both parties to come to some settlement.
My immediate object, however, in now referring to this
matter is to bring to your Lordships notice the course which
has recently been pursued by Governor Douglas inspite
spite of the clear understanding that until the rights of this Company
to the lands claimed by them had been in some way determined
those rights should be respected. The Governor has actually
put up for sale not only the lands which he had himself staked
out in 1858 as belonging to the Company but actually some of
the Buildings upon them; and the Company have been called
upon to remove those Buildings with a threat that if they did
not do so the Buildings would be pulled down.
spite of the clear understanding that until the rights of this Company
to the lands claimed by them had been in some way determined
those rights should be respected. The Governor has actually
put up for sale not only the lands which he had himself staked
out in 1858 as belonging to the Company but actually some of
the Buildings upon them; and the Company have been called
upon to remove those Buildings with a threat that if they did
not do so the Buildings would be pulled down.
This line of conduct is so extraordinary, and, as I
conceive, so unwarranted, and so completely atvariance
variance
with the understanding which had been come to with Her Majesty's
Government that all the lands claimed by the Company should
remain untouched until their rights to them had been settled
one way or the other that I do trust Your Grace will lose no
time in directing the Governor to suspend proceedings of this
description and not to interfere in any way with the lands
claimed by the Company and which he had himself described as
being in the possession of the Company until it is settled
whether they are entitled to hold them or not.
variance
with the understanding which had been come to with Her Majesty's
Government that all the lands claimed by the Company should
remain untouched until their rights to them had been settled
one way or the other that I do trust Your Grace will lose no
time in directing the Governor to suspend proceedings of this
description and not to interfere in any way with the lands
claimed by the Company and which he had himself described as
being in the possession of the Company until it is settled
whether they are entitled to hold them or not.
I cannot avoid in conclusionexpressing
expressing my great desire that an amicable adjustment of these matters should if
possible be come to at an early period, as while the
Governor pursues the course he has recently taken it is
obvious that an amicable settlement will become more and more difficult.
expressing my great desire that an amicable adjustment of these matters should if
possible be come to at an early period, as while the
Governor pursues the course he has recently taken it is
obvious that an amicable settlement will become more and more difficult.
On the occasion of my interview with Your Grace I also
took the opportunity to call your Grace's attention to the
subject of the Customs duties levied upon goods imported from
Victoria into British Columbia, but having since been favoured
with a letter from Mr Elliot transmitting a Copy of a
report of Governor Douglas on thesubject
subject of these duties,
I feel it will be unnecessary on the present occasion to trouble
your Grace further than to say that in the course of a few
days I shall have the honour to answer that letter, and I will
then submit a few observations in answer to Governor Douglas's report.
subject of these duties,
I feel it will be unnecessary on the present occasion to trouble
your Grace further than to say that in the course of a few
days I shall have the honour to answer that letter, and I will
then submit a few observations in answer to Governor Douglas's report.
Minutes by CO staff
Sir F. Rogers
Upon the subject of the first complaint I must refer you to the annexed Proclamation No 6 of 1859 under the authority of which "Every person carrying on any other trade" is liable to a quarterly payment to the Govt of £1. It seems that the Governor is treating certain servants of the H.B.Co which is a Corporation as so many partners & levying the above tax accordingly on them. To me, who am unlearned in the Law, it appears that the Governor is wrong; yet he would scarcely have ventured on such
a proceeding without previously ascertaining
from the Attorney General, Mr Cary, that he was right
in his view of the Law. An instruction from the Duke
of Newcastle will doubtless suffice to put the Governor
right, if he is wrong; but might not the Servants of
the Co, who have been taxed, have refused to pay
the claim, when they would have been sued in the Courts
of Law in the Colony & the case legally adjudicated.
As a Court of Justice has been established I do not see
why the H.B.Co should not resort to it if they
suppose themselves aggrieved in Law, instead of always
having recourse to Downing Street which invests them in the
eyes of the Settlement with an apparent prestige & weight
as against the Local Authorities to which they are not
more entitled than other persons.
Upon the subject of the first complaint I must refer you to the annexed Proclamation No 6 of 1859 under the authority of which "Every person carrying on any other trade" is liable to a quarterly payment to the Govt of £1. It seems that the Governor is treating certain servants of the H.B.Co which is a Corporation as so many partners & levying the above tax accordingly on them. To me, who am unlearned in the Law, it appears that the Governor is wrong; yet he would scarcely have ventured on such
a proceeding without previously ascertaining
from the Attorney General, Mr Cary, that he was right
in his view of the Law. An instruction from the Duke
of Newcastle will doubtless suffice to put the Governor
right, if he is wrong; but might not the Servants of
the Co, who have been taxed, have refused to pay
the claim, when they would have been sued in the Courts
of Law in the Colony & the case legally adjudicated.
As a Court of Justice has been established I do not see
why the H.B.Co should not resort to it if they
suppose themselves aggrieved in Law, instead of always
having recourse to Downing Street which invests them in the
eyes of the Settlement with an apparent prestige & weight
as against the Local Authorities to which they are not
more entitled than other persons.
With respect to the 2d complaint that the Governor
is interfering with the alleged landed property of the H.B.Co
in B. Columbia I wd suggest that we refer it, in the
first instance, to the Land Board which always advises us
in these cases. See however 7725/60.
ABd
14/1/61
As to the first question it appears to me very inconvenient
to bring de facto statements upon the S. of St.
and expect him to give a decision upon them. I shd
answer that if these gentlemen considered themselves
overtaxed they should have sent their complaint to the
S. of State thro' the Governor in which case it wd have
reached the Col Office accompanied by such explanatory
statements as the Govr mt think necessary. But
in the absence of such explanatory statement it is
impossible for the D of N to express any opinion on the subject,
but that, if the company desires it this part of their
letter shall be forwarded to Govr Douglas for his report.
But that at first sight it appears to H.G. that the
proper remedy of the H.B. officers was by an appeal not
to the Executive but to a Court of Law.
answer that if these gentlemen considered themselves
overtaxed they should have sent their complaint to the
S. of State thro' the Governor in which case it wd have
reached the Col Office accompanied by such explanatory
statements as the Govr mt think necessary. But
in the absence of such explanatory statement it is
impossible for the D of N to express any opinion on the subject,
but that, if the company desires it this part of their
letter shall be forwarded to Govr Douglas for his report.
But that at first sight it appears to H.G. that the
proper remedy of the H.B. officers was by an appeal not
to the Executive but to a Court of Law.
As the the 2nd point refer to Land Board as suggested
by Mr Blackwood.
FR
14/1
I agree. But I don't think the Land Bd. can add anything
to what we know from Govr Douglas' desp. 7725 reported
on by Mr Murdoch. I wd at all events send this letter
to the Governor—without delay—by next mail, and call for
report upon every part of it.
CF
15
Other documents included in the file
Draft, Rogers to Emigration Commissioners, 23 January 1861,
forwarding extract of the company letter for consideration and report.
