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 26 June 1860, CO 305:15, no. 6405, 488.
Abstract
Berens, Henry Hulse to Pelham-Clinton, 5th Duke of Newcastle Henry Pelham Fiennes 26 June 1860, CO 305:15, no. 6405, 488.
Public Offices document.
Minutes (5), Other documents (2), Marginalia (2).
Berens to Newcastle
26 June 1860
I have the honor to acknowledge the receipt of Mr Under-Secretary
Fortescue's Letter of the 7th instant accompanying copies of two
Despatches from Governor Douglas of the 16th February and 28th
March last having reference to the claim of this Company to the land
and Government Buildings erected upon it near Fort Victoria in the
Island of Vancouver.
I have now caused reference to be made to the correspondence which
passed in the year 1851 at the time when the Despatch referred to in
Governor Douglas's communication of the 28th March was sent to
Governor Blanchard [Blanshard].
A
A Copy of that Despatch was under the same date forwarded to Mr
Douglas who was then the Representative of this Company. Your Grace
will observe that that Despatch contemplated the purchase by this
Company, and the Puget's Sound Company, of considerable tracts of
Land near Fort Victoria and it was at that time contemplated that the
Buildings intended for the Government should be erected either on a
portion of the Land so to be purchased or upon Land not then disposed
of and therefore belonging to the Colony; but it afterwards turned
out that, under the directions of Mr Douglas certain Buildings for
the Government had already been commenced upon Land previously in the
possession of this Company
Company, that Land being in fact a part of the
District claimed by this Company and their right to which is now to
be the subject of discussion before the Privy Council.
Company, that Land being in fact a part of the
District claimed by this Company and their right to which is now to
be the subject of discussion before the Privy Council.
I think it desirable that Your Grace should be put in possession of
everything which has occurred in regard to this subject.
In the letter to Mr Douglas of the 1st January 1851, which
accompanied the Copy of the Despatch to Governor Blanshard of that
date, instructions to the following effect were given to him—
In the case of the Fur Trade the extent and boundaries of the Land
occupied by that concern, previous to the date of the Boundary
Treaty, must be accurately marked out and agreed with Governor Blanshard and the Council. For this portion of Land no
no price will
have to be paid. But for any future quantity that may ultimately,
after proper surveys are made, be taken by that concern the same
price of 20s/- per acre, as paid by other Settlers, will have to
be paid over to the Hudson's Bay Company.
no price will
have to be paid. But for any future quantity that may ultimately,
after proper surveys are made, be taken by that concern the same
price of 20s/- per acre, as paid by other Settlers, will have to
be paid over to the Hudson's Bay Company.
Before, however, this communication reached Mr Douglas, he had,
under date the 29th January 1851, addressed a Letter to the
Secretary of this Company, in which the following paragraph occurs:
The house and premises erected at this place for the residence of
Governor Blanshard have cost 1548 Dollars 55 Cents in labor and
material and the Governor is now making an addition to the house
which will come to several
several hundred dollars more. I have not charged
that sum to the Colony as the site on which it stands belongs to the
Fur Trade, and I was proposing that the house and premises should
remain a Fur Trade possession, and that the Colony should be charged
an annual rent of 10 per cent on the original outlay. I beg to be
informed of the Committee's pleasure on that subject.
several hundred dollars more. I have not charged
that sum to the Colony as the site on which it stands belongs to the
Fur Trade, and I was proposing that the house and premises should
remain a Fur Trade possession, and that the Colony should be charged
an annual rent of 10 per cent on the original outlay. I beg to be
informed of the Committee's pleasure on that subject.
From this Letter Your Grace will observe that Mr Douglas
contemplated, not only that the Government buildings should be
erected on land then claimed by this Company as their own, but that
the Government should pay a rent for the occupation of the land and
buildings at the rate of 10 per cent upon the outlay.
This
This proposition was not approved of, and Mr Douglas was so apprized
in a Letter from the Secretary under date the 23rd May 1851 and in a
Letter of the same date to Mr Douglas from the then Governor, Sir
J.H. Pelly, Mr Douglas was informed that the Fur trade might retain
the Building he had referred to as having been constructed for the
residence of the Government on paying the expense of erecting it and
that another house might be built for the Governor on a different
site but adding that in all cases of Reserves of Land it must be
understood that if any part was required for public purposes it must
be resumed upon repaying
the price and any improvements that might have been made
made upon it.
Not
"re-paying". The HBCo never paid for this land.
made upon it.
It appears, however, that the Government retained possession of the
Buildings which had already been erected on land claimed by the Fur
Trade establishment of this Company and the cost of these buildings
has, I find, been included in the account of expenditure rendered to
the Government by this Company, and those buildings are therefore,
without doubt, the property of the Government, although I find that
the cost of other public buildings on the same land, such as the
Custom House and Post Office have not yet been so charged, but
assuming that the Title of the Company to the land in their
possession, prior to the Treaty of Oregon, should be established,
then, I apprehend, there can be no question but that the land upon
which those buildings were erected would be their property, and that
the proceeds arising from any sale of it would belong to them.
I
I will now revert to the communications which passed with Mr Douglas
consequent upon the instructions conveyed to him in the letter of the
1st January to ascertain the extent and boundaries of the Land
occupied by the Fur Trade prior to the Oregon Treaty. Mr Douglas
answered that communication under date the 16th April 1851, as
follows:
In reference to the Fur Trade Reserve, the boundaries determined
on when I made choice of this
this spot for the Company's establishment,
in the year 1841, long previous to the date of the Treaty, includes
an area of rather over 20 square miles. The extent, however,
actually occupied by tillage and enclosures, does not exceed two
square miles, while the Cattle ranged over an additional space of
about 4 square miles, occupied by enclosures and for a Cattle Range.
I beg to be informed by return of post if it is the Committee's wish
to confirm to the Fur Trade, without payment, the whole area of 20
square miles according to the original limits, previous to the
Treaty, which were not actually marked out, or to confine their grant
grant
to the 6 square miles occupied by enclosures and as a Stock Range.
this spot for the Company's establishment,
in the year 1841, long previous to the date of the Treaty, includes
an area of rather over 20 square miles. The extent, however,
actually occupied by tillage and enclosures, does not exceed two
square miles, while the Cattle ranged over an additional space of
about 4 square miles, occupied by enclosures and for a Cattle Range.
I beg to be informed by return of post if it is the Committee's wish
to confirm to the Fur Trade, without payment, the whole area of 20
square miles according to the original limits, previous to the
Treaty, which were not actually marked out, or to confine their grant
grant
to the 6 square miles occupied by enclosures and as a Stock Range.
In reply to this communication the Secretary of this Company
addressed Mr Douglas, under date the 16th July 1851, as follows:
In reference to the 4th paragraph of your letter of the 16th April
I am to state that the utmost extent of land that the Hudson's Bay
Company will allow the Fur Trade Branch to occupy, without paying for
the same, will be the two square miles actually occupied by tillage
and enclosed, and 4 square miles, together 6 square miles, occupied
by enclosures and as a Cattle range, prior to the Treaty with the
United States.
"The
The Fur Trade may have as much more of the Reserve of 20 miles as
they may choose to purchase at the fixed price.
An actual survey was afterwards made of the 6 square miles of land,
herein referred to, and it was found to contain 3084 Acres, which
were accordingly entered on the Land Register, as belonging to the
Company.
Trusting that this explanation will sufficiently shew the position of
the land with which Governor Douglas has been dealing as if belonging
to the Crown.
Minutes by CO staff
As Mr H. Irving in the earlier stages of this correspondence drew
attention to the question about the Govt Buildings, I have requested
him to furnish a minute which you will find annexed.
TFE
29 June
Mr Elliot
This letter from the Hudsons Bay Company presents a new phase in this affair.
This letter from the Hudsons Bay Company presents a new phase in this affair.
The Company now admit that the Buildings which have been sold
belonged to the Colonial Government and not as hitherto supposed, and
as stated by Governor Douglas and Mr Pemberton, (vide 6511), to the
Fur Trade Coy.
The only question therfore is as to the site.
The present letter appears completely to destroy the claim put
forward by Governor Douglas, in his despatch 4820, on behalf of the
Government to this land on the score of it's being a Government
Reserve.
The matter is therefore reduced to the question of the validity of
the Company's title to lands occupied by them prior to the grant of
the Island.
As however the affair does not yet
yet appear to be thoroughly sifted, it
may be well to continue the correspondence during the reference of
the main question to the Judicial Committee of Privy Council.
yet appear to be thoroughly sifted, it
may be well to continue the correspondence during the reference of
the main question to the Judicial Committee of Privy Council.
I would therefore suggest that the present letter should be sent to
the Governor, pointing out that the Company admit the Buildings to be
the property of the government & asking him whether so much of the
produce of the sale as represented the price of the Houses has been
carried to the credit of the Col. Government. His attention might
also be called to the answer of the Company to his claim to regard the
land as a govt reserve & he might be informed that the question of
the Company's title will be settled by the reference to the Privy
Council.
HT Irving
29 June
Mr Fortescue
This seems right? (See also [/us?] 6351).
This seems right? (See also [/us?] 6351).
TFE
29 June
Duke of Newcastle
If you will look at my minutes on 3603 & 4820, you will see, I think, that this letter confirms the view taken there. I must say, in spite of Govr Douglas's strong language, I think the H.B.Co have the best of the argument, supposing them to be confirmed by the Judicial Committee in the possession of the "Fur Trade Reserve", of which this piece of land forms part.
Govr Douglas is very anxious to prove the
land to be Government property (or at all events to appear to be
confident of it)—because, if it is
not so, the money produced by its sale was simply an advance
made to the Governor by the Co, at a time when the one party had no
authority to make or the other to accept such an advance.
The Govr lays great stress upon the terms of the Co.'s letter of 1 Jany 1851, but he slurs 
over the fact that the buildings wh., as
there directed, came to be held in trust for the Colony, "with the
Lands that may be appropriated with them",
were never built. On the contrary, the Govt has ever since had
the use of the H.B.Co.'s buildings within the Fort—and the only
Govt building
upon this land
is the Govnr's house, wh. had been built for Govr Blanshard before
the Co.'s letter of 1 Jan. 1851 was written, and which, 
with a garden
attached, is treated as Govt property, and was included in the
accounts of expenditure rendered by the Co.
If you will look at my minutes on 3603 & 4820, you will see, I think, that this letter confirms the view taken there. I must say, in spite of Govr Douglas's strong language, I think the H.B.Co have the best of the argument, supposing them to be confirmed by the Judicial Committee in the possession of the "Fur Trade Reserve", of which this piece of land forms part.
Govr Douglas is very anxious to prove the
land to be Government property (or at all events to appear to be
confident of it)—because, if it is
not so, the money produced by its sale was simply an advance
made to the Governor by the Co, at a time when the one party had no
authority to make or the other to accept such an advance.
The Govr lays great stress upon the terms of the Co.'s letter of 1 Jany 1851, but he slurs 
over the fact that the buildings wh., as
there directed, came to be held in trust for the Colony, "with the
Lands that may be appropriated with them",
were never built. On the contrary, the Govt has ever since had
the use of the H.B.Co.'s buildings within the Fort—and the only
Govt building
? vide page 7 of the Cos letter.
with a garden
attached, is treated as Govt property, and was included in the
accounts of expenditure rendered by the Co.
This letter may be sent to Govr Douglas, as proposed by Mr Irving,
and simply ackged to the H.B.Co.?
CF
6
