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Berens, Henry Hulse to Pelham-Clinton, 5th Duke of Newcastle Henry Pelham Fiennes 14 February 1860, CO 305:15, no. 1579, 393.

Abstract
Berens, Henry Hulse to Pelham-Clinton, 5th Duke of Newcastle Henry Pelham Fiennes 14 February 1860, CO 305:15, no. 1579, 393.
Public Offices document. Minutes (6), Other documents (1), Marginalia (3).
Berens to Newcastle
Hudson's Bay House
London
14 February 1860
I have the honor to acknowledge the receipt of Mr Under Secretary Merivale's letter of the 7th instant in reference to the lands in Vancouver's Island claimed by this Company as having been possessed by them prior to the Grant of 1849, and I assume that the only question now to be considered is whether the recognition by Lord Grey of the Company's claim to that land extended to the possession by this Company of an absolute property in theManuscript imagethe land in question, or only to their right to possess it during the continuance of the Grant made to them of the entire Island.
I think I shall have no difficulty in satisfying your Grace that the claim of this Company which was brought under the consideration of the Colonial Office, first in 1846, and afterwards more particularly in the year 1852, referred solely to an absolute right to the property in question, and that no other right was ever contemplated on the part of this Company or understood by the Colonial Secretary.
The land in question was originally taken possession of by this CompanyManuscript imageCompany for the purposes of the Fur Trade, and your Grace will not fail to observe that in the letter from Sir John Henry Pelly to the Colonial Secretary, of the 14th January 1852, he mentions that Mr Pemberton, the Colonial Surveyor, had sent home surveys of the Land which the Fur Trade of this Company had proposed to take, but that he had omitted to distinguish what they possessed previous to the Boundary Treaty (that is to the year 1846) from the whole quantity, and he goes on to State that the former will be made over to the company, without purchase and that for any addition thereto they would have to pay 20/- per acre as all other Settlers do.
Now Manuscript image
Now it is quite clear that by the payment of 20s/- per acre, the party paying it acquired the absolute fee-simple of the land conveyed, and it is equally clear that Sir J.H. Pelly in his letter, treated the title of the Company as the same in both cases, only that in the one case the purchase money was to be paid, but in the other no purchase money was required, as the company's title was founded upon a previous possession—a title which had been already recognized as giving the right to the fee-simple in the case of the land occupied in the Oregon Territory prior toManuscript imageto the Boundary Treaty.
Sir J.H. Pelly's letter of the 4th February in the same year in reply to one from Mr Under Secretary Peel of the 2nd of that month, is equally clear upon this point, as he there states distinctly that the Company claimed these lands as theirs without purchase, and he pointedly refers to the lands at Fort Victoria, in Vancouver's Island, where an establishment was formed in the year 1843.
Your Grace will observe that no suggestion whatever is offered that the title put forward on behalf of this Company had any connection with the terminationManuscript imagetermination of the Grant of the Island; but on the contrary it is clearly referred to as conveying the same rights as would have been acquired by absolute purchase, and indeed, if the title of this Company to these Lands had not been so unequivocally admitted by Lord Grey in the correspondence in question, this Company would at that period have paid the purchase money for the Land they then held, rather than have sacrificed the large outlay they had already made upon it. Besides this, Your Grace will also find that in a letter addressed to Sir John Pakington on the 24th of November 1852, notManuscript imagenot only is an intimation given that the Company were in possession of this Land under the sanction of Her Majesty's Government (referring to the previous correspondence with Lord Grey), but it is distinctly stated that they had actually sold portions of it to some of their retired servants who had settled upon it. Of course any such sale could only be a sale of the absolute fee simple, but to put the matter beyond all doubt, this Company are registered as the Owners of this Land, precisely in the same manner as they and all others are, of land acquired by purchase since the date of the Grant and they have fromManuscript imagefrom time to time disposed of portions of it to parties who are now registered as the Owners.
I would venture again to call your Grace's attention to the letter from the Secretary of this Company to the Secretary of the Government Emigration Board of the date of the 21st January 1859 which really seems to me to remove all doubt upon the subject.
I trust therefore that there will now be no hesitation on the part of the Government in recognizing the right of this CompanyManuscript imageCompany to this Land, without any reference to the Judicial Committee.
I have etc.
H.H. Berens
Govr
Minutes by CO staff
Manuscript image
Mr Fortescue
I can see no reason in this reply for departing from the decision already taken. Answer that the Secy of State is unable to alter the view which he has already communicated to the Co. on the subject of this claim, but repeats his offer of a reference to the Judl Committee?
The servants of the Co. and others to whom the Co. sold part of Manuscript imagethis land, are safe so far as I can see. The Company had a right to "sell" all the land. The only question in their case is, whether the Company made a proper use of the purchase money in treating it as their own: a question with which they, the purchasers, have nothing to do.
HM F 15
Duke of Newcastle
The sale from time to time of portions of their Reserves, and retention of the purchase money by the H.B.Co. proves at all events that this claim of private property in the Reserves is not an after-thought, but was believed in by the Co. during the period of the Grant, and, I suppose, not disputed by the authorities.
I confess—altho' I differ with great hesitation from Mr Merivale & yourself—that I am disposed to think that the Co are right in this matter—that the Lands referred to in Sir J. Pelly's letter of Feb. 4. 1852, and Lord Grey's answer of Feb. 13. must be now treated upon the same Manuscript imagefooting as Lands bought by the Co. subsequently to the Grant of the Island—with the condition laid down by Lord Grey as to the actual occupation & use.
If we maintain the contrary, observe the result. There will be three classes of Land in the Island—1. The ordinary land, settled or unsettled (the latter reverting to the Crown). 2. The Land bought by the H.B.Co. wh. remains their private property. 3. The land now in discussion, wh. if not their private property, must revert to the Crown, upon payment of the value of all improvements, stock &c upon it.
I cannot see that such payment as this is consistent with the principle, now acquiesced in on all sides that payment is to be made to the Co, not as private traders & landlords, but only as owners & Governors of the whole Country, and for expenditure of a public nature.
It is true that the whole island is by the Grant made re-purchasable by the Crown. But that, it seems, is consistent with the Co retaining lands acquired by purchase, and, remembering the correspondence between Lord Grey & Sir J. Pelly, I do not see Manuscript imagewhy it sh. not be consistent with their retaining lands acquired by previous occupation.
As to their apparent admission in 1858 (see Mr M's minute on 533) it must be remembered that the statement of accts wh. contained it was their first claim, wh. included private property—Farms, Mills &c—as well as public. I may be wrong, but these points are, I think, worth considering before a peremptory reply is given to Mr Berens.
CF 17
Mr Merivale
The above Minute of Mr Fortescue's is important. I think the remark in the first paragraph exonerates the Cy from the charge which their mode of proceeding at first gave a colour to—but as regards the latter observations I am unfortunately just now too much occupied to Manuscript imagetest them by the former correspondence. As it is desirable not to let this matter be suspended longer than can be avoided will you be good enough to look at it again with Mr Fortescue and let me know the result.
N 19
Mr Fortescue
Since looking at the question with you I have applied my mind to it farther, & I cannot reconcile it to my own view of the case to propose any other answer than that suggested in the annexed draft letter to Mr Berens. We are now aware—since consulting Mr Pemberton the surveyor—that the real question so delicately Manuscript imageveiled by the Company, is, whether they are to be the ground landlord of the whole City of Victoria—a place destined, in reasonable probability, to a very great & very speedy advance to opulence. It is of no use regretting now the want of foresight which prevented us, in Lord Grey's time, from seeing to what end an apparently slight concession might lead. Nor is it of any use to complain of the systematic suppression of what was really material by the Company (naturally & in their own interest) and by the Governor, who unluckily was the Company's man. The question is, whether, on account of some expression of Ld Grey to which you attach rather greater force than I do, we are to abandon, as trustees for the public, this most important property. I own I cannot think so. But having said this much, I leave the question in your hands, to act on your views if you still differ.
HM F 25
Manuscript image
Duke of Newcastle
I have looked again into this matter, and cannot see it as Mr Merivale does. Speaking with all humility, as one unlearned in the law, I cannot but think that the Co wd. make their title good. But if there were every reason for thinking that such is not the case, in point of law, I still think that we could not, after all that has passed, fairly use our legal rights agst them—except for the purpose of bringing them into terms for the protection of public interests at Victoria, such as the setting apart of public parks, or any object of that kind.
It may assist you in coming to a decision on this case to have before you in one view all the statements made to us by the Co. from time to time as to these Reserves, and all the admissions we have made to them as to their tenure, and I will therefore extract them here from the Papers.
Govr Blanshard writes on the 28th April 1851 complaining of a proposed expenditure by the HB Co. of £4000 on public buildings, which, he says, "will then be surrounded by their reserves, wh. they are neither prepared to use or sell. The large tract of land called their reserves, of about 30 square miles Manuscript imagein extent, includes the only part of the Island, in the Straits of Fuca, in any way adapted for the first settlement &c."
This desp. was sent to the HB Co. for explanations, wh. Sir J. Pelly furnishes in his letter to Ld Grey of the 10th Sepbr 1857. He says it had been thought that "the Fur Trade branch of the Co wd. require a considerable quantity of land in addition to that wh. they possessed before the conclusion of the Boundary Treaty of 1846 &c" that the Puget Sound Co. had also intended to buy "a tract of land near the Fur Trade Reserve." But that it was found that "the land occupied by the Fur Trade at Fort Victoria previous to 1846" was enough, and they wd. not buy any more then. Upon this there is a minute of Sir B. Hawes, wh. is worth noticing. He writes "As to the buildings being placed in the midst of the Co's reserves, I think it objectionable, unless very clear provision be made for a free access to them in the event of the surrender of the Charter," and again "I suppose therefore the proposed outlay is wholly on the Co's land, which I think objectionable."
MrB. Hawes evidently understood the Co's Reserves Manuscript imageto be their private property, wh. wd. remain so, after the surrender of the Charter.
Mr Merivale and Lord Grey say, in their minutes, that if the Co reserve land for their private purposes, they ought to pay for it, like other settlers.
In July 1851 Admiral Moresby writes "Large tracts of land surrounding Victoria and Esquimalt are reserved by the Co &c." This is referred to Sir J. Pelly, who writes, Novbr 7. 1851 referring to his former letter and saying that "the land reserved for the Fur Trade" is 6 square miles & not 20—that it was "in the Co's possession" before the Boundary Treaty—and that "should any addition to the quantity be required, the Co. will pay for it, as other settlers do." Another letter follows from Sir J. Pelly—Jan. 14. 1852—repeating more fully the same statement as to the Fur Trade Reserves—wh. is quoted by Mr Berens in his recent letter.
Lord Grey, by a letter of the 2nd Feb asks for "some further explanation as to the distinction between the lands wh. the H.B.Co. possessed before the Boundary Treaty and others" wh. Sir J. Pelly Manuscript imagegives in a letter of the 4th Feb. He says "These lands they claim as theirs without purchase and the possessory rights thus acquired in the territory S. of the 49th parr. have been guaranteed to them by the Boundary Treaty. Among the lands occupied by the Co. N. of the 49th par. is that situated at Fort Victoria in V. Island where they formed an establishment in 1843 &c."
"Its exact extent has not yet been ascertained by the Co's Surveyor—but, whatever that may be, the Co. consider that they have a right to hold that land without paying for it, while for any additional quantity &c."
Mr Merivale's minute on this—"of course it could not be intended that land actually occupied by the H.B.Co in Van. Id at the date of their agreement with Govt sh. be charged for & paid for like other land. The only question that can arise will be as to the amount of such land."
The words of Lord Grey's answer & decision (13 Feb. 1852) are—"His Lordship having considered this explanation directs me to state that he is not disposed to question the right of the Co. to land actually occupied by them previously to the arrangement for constituting Van. Id a Colony."
Manuscript image
The letter calls for an accurate description of their lands & ends thus "I am directed to add that his Lordship understands the claim you prefer to be strictly confined to land actually occupied & made use of, beyond which he conceives that it ought not on any account to be extended."
This correspondence was sent to Govr Douglas, with directions to furnish any information in his power as to the extent & description of the lands in question. This he does by his letter of 25th June 1852, accompanied by a sketch map of the Co. reserves in the District of Victoria. One remark of his is worth quoting—"With the exception" he says "of the farm at Fort Victoria, wh. is advantageously situated on Victoria Harbour, & will become valuable as the Colony improves, the Co's farms possess no exclusive advantage."
In July 1852 Sir J. Pakington asked the Co. for information as to the progress of the Island—wh. was furnished by them on the 24th Novbr in a letter stating the quantity of land sold &c—& containing the following passage—"The Fur-Trade branch of the H.B.Co. are in possession, under the sanction of H.M.'s Govt of 3084 acres of land, wh. were Manuscript imageoccupied by them previous to the date of the Boundary Treaty. They have sold portions of this land to some of their retired servants who have settled themselves upon it."
In 1853 the Co. caused these lands to be registered in the office of the Registrar of Deeds in Van. Id—in their name—as land occupied by them previous to the Treaty of 1846—Lot 24—being "in the neighbourhood of Victoria."
In Feb. 1858, at the request of Mr Labouchere, the Co. sent in their Claim No. 1. comprising a statement of the value of their property of every kind. This contained an item "Land £3084" explained then by a note—"This Land, comprising 3084 acres having been possessed by the H.B.Co. as Fur Trade Reserves previous to the Grant of the Island in 1849, it will have to be considered whether the price to be paid shall not be the current value of the land instead of the fixed price of £1 per acre."
[Truly?] therefore, [telling?] in my [view?] that government had [a] right to take [it] back—only [three words illegible].
HM
[One word off file] private property—under first claim?
CF
In Augt 1858 the Co. accepted the decison of the Govt, founded on the opinion of the Law Officers, that the Govt was only bound to compensate them Manuscript imagefor the value of the property connected with their ownership of the Island under the Grant and on the 2nd Novbr they sent in an amended account, "drawn up in strict conformity with the principle laid down by Lord Carnarvon &c" from which the "Fur Trade Reserves" were of course omitted, as private property.
The question of the true character of these lands has since arisen, out of the correspondence as to the sale of the old Govt buildings at Victoria, and the advance of a sum of money by Mr Dallas, the Co's Agent to Govr Douglas, in consequence of such sale. In the course of these proceedings the Govr informed the Assembly that those buildings were "the property of the H.B.Co." and Mr Pemberton, the Surveyor General, told them that he & the Govr "had at first believed them (buildings & site) to belong to the Govt—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 Manuscript imageowners of the aforesaid property" (in 12465). As a matter of fact, the Co. has treated these lands all along as their private property—and since the site acquired, by the Gold discovery, a greater & earlier value than Mr Douglas could have anticipated, when he wrote his letter of June 1852, they have sold portions of it as building ground in the Town of Victoria, to the amount, as Mr Pemberton told Mr M. & myself, of some £30,000. Sales wh. of course were notorious, but the proceeds of wh. they did not carry, nor were ever asked, nor, as far as appears, expected to carry, to the public acct. of the Island.
But Mr Pemberton said [cut off file] he had expressed his opinion that the balance was [cut off file] either [one word off file]—Clearly [showing?] that in [the?] island the right was regarded as doubtful.
[HM]
After all this—can we now interpret Lord Grey's concession as meaning nothing but a permission to use these lands during the continuance of the Grant, with an implied condition that on its termination they sh. revert to the Crown, without purchase or Compensation? It is true that the language of the Co. in stating Manuscript imageits claims to this office was not as plain & straightforward as it ought to have been. Still it amounted, I think, to much more than a mere claim of usufruct during the continuance of the Grant—and must have been so understood here & in Van. Id. The fact of the Co. turning out, by good luck, to be the "ground landlords of the whole City of Victoria," naturally startles one, & has roused Mr Merivale to battle in behalf of the Public. I fear myself it is too late at all events, before we insist on our rights so far as to require the Co. to go before the Judicial Committee. I would suggest that the case sh. be laid before a fresh mind—and a legal one. Indeed I would consult the Law Officers upon the point.
CF 29 F
I have read very carefully the above Minute, and whilst I admit that there is much to shake my Manuscript imageconfidence in the result of an appeal to the Jud: Comee of Privy Council I do not think there is enough to make it possible for me as the guardian of the rights of the Colony to yield the claims of the Company without being strengthened by a legal opinion. I should have had no objection to Mr Fortescue's proposal to consult the Law Officers if time were not of importance. At this season the Law Officers could not attend to such a case and send us a report for some weeks and my own belief is that we should then have to fall back upon a Court of Law. Upon the whole therefore I approve Manuscript imageMr Merivale's draft and will renew the proposal of reference to the Judicial Committee. A similar reference in another case pending between this Office and the company originated with the latter and was agreed to by us, and I confess the hesitation of the Company in the present instance looks as if they were not very confident of the strength of their claims.
N 7-3
Other documents included in the file
Manuscript image
Draft, Merivale to Berens, 12 March 1860, advising that their former position still stood and again proposing referral of the matter to the judicial committee, with explanation.
Berens, Henry Hulse to Pelham-Clinton, 5th Duke of Newcastle Henry Pelham Fiennes 14 February 1860, CO 305:15, no. 1579, 393. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871, Edition 2.0, ed. James Hendrickson and the Colonial Despatches project. Victoria, B.C.: University of Victoria. https://bcgenesis.uvic.ca/V605MI05.html.

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