Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Despatch to London
Douglas, Sir James to Pelham-Clinton, 5th Duke of Newcastle Henry Pelham Fiennes 8 August 1861, CO 305:17, no. 8771, 298.
Abstract
Douglas, Sir James to Pelham-Clinton, 5th Duke of Newcastle Henry Pelham Fiennes 8 August 1861, CO 305:17, no. 8771, 298.
Despatch to London.
Minutes (1), Enclosures (transcribed) (0), Enclosures (untranscribed) (13), Other
documents (2).
No. 50
8 August 1861
I have the honor to forward to you herewith correspondence and
Documents, as described in an accompanying Schedule, in connection
with a recent application made on behalf of this Government to the
Supreme Court of Civil Justice of Vancouver's Island, for an
injunction to restrain the HudsonsBay
Bay Company from further dealing
with the land claimed by them under a possessory title prior to the
Charter of Grant.
Bay Company from further dealing
with the land claimed by them under a possessory title prior to the
Charter of Grant.
2. The Documents very clearly exhibit the nature of the case but it
may be desirable that I should glance at the different heads and
explain the reasons which induced the application to the Local Court.
3. As your Grace is aware from previous correspondence the Hudsons
Bay Company claim certain sections of land in Vancouver's Island,
amounting in the whole to about 3084 Acres, as being their privateproperty
property by occupation prior to the grant to them of the Island under
the Charter of the 13th January 1849. Her Majesty's Government
reject this claim, and do not recognize any title to land in
Vancouver's Island other than that conveyed under the Charter. The
case has been referred to the Judicial Committee of the Privy Council
for decision.
property by occupation prior to the grant to them of the Island under
the Charter of the 13th January 1849. Her Majesty's Government
reject this claim, and do not recognize any title to land in
Vancouver's Island other than that conveyed under the Charter. The
case has been referred to the Judicial Committee of the Privy Council
for decision.
4. On the 27th April last the Surveyor General addressed me a
letter representing that notwithstanding [that] the claim of the
Hudson's Bay Company to the land in question was admittedly in
dispute, the Company were still dealing with the land
in all respects
as if it were indisputably their private property; and not only so,
but that they were carrying these dealings to such an extent as to
involve a breach of faith both towards former purchasers for value,
and the Public, as well as towards the Government, inasmuch as the
map under which they had originally laid out and sold the Town Site
and which had become the Official Map of the Town, having been
accepted and registered in the Land Office, was disregarded by the
Company, portions of land laid off on that Map as Streets and Public
Reserves, and even aportion
portion of the Government Reserve upon which
stand the Government Offices, having been recently sold by private
Contract; and further that the Company were daily disposing by
private contract of the different unsold portions of the
beforementioned land.
in all respects
as if it were indisputably their private property; and not only so,
but that they were carrying these dealings to such an extent as to
involve a breach of faith both towards former purchasers for value,
and the Public, as well as towards the Government, inasmuch as the
map under which they had originally laid out and sold the Town Site
and which had become the Official Map of the Town, having been
accepted and registered in the Land Office, was disregarded by the
Company, portions of land laid off on that Map as Streets and Public
Reserves, and even aportion
portion of the Government Reserve upon which
stand the Government Offices, having been recently sold by private
Contract; and further that the Company were daily disposing by
private contract of the different unsold portions of the
beforementioned land.
5. I forwarded the Surveyor Generals Letter for the opinion of the
Attorney General. That functionary reported that if the case were as
represented, the necessary steps could at once be taken towards
putting a stop to such proceedings.
6. Upon consultation with the Attorney General, and understandingthe
the caution conveyed to me in Your Graces Despatch No 1 of the 2nd
Jan. 1860, respecting the non-recognition by Her Majesty's Government
of the claim made by the Company as intended to point out my course
of action, did circumstances require it; and considering that these
circumstances did require from this Government some interference to
protect the best interests of the Colony, and to maintain the credit
of the Government, by preventing the further private alienation of
land, some of which was actually required by the Colony, and all of
which was of exceeding value to the Colony, and by protecting the
Publicin
in what they understood was guaranteed to them upon the faith
of the Government, the Town having been laid out and the Reserves
made prior to the expiry of the Charter of Grant, and when the
control of all land was exercised by the Company, and they were
viewed by the general Public as identical with the Government, I
caused a letter to be addressed to the Attorney General authorizing
him to take such proceedings as the case I put before him might seem
to call for and justify.
the caution conveyed to me in Your Graces Despatch No 1 of the 2nd
Jan. 1860, respecting the non-recognition by Her Majesty's Government
of the claim made by the Company as intended to point out my course
of action, did circumstances require it; and considering that these
circumstances did require from this Government some interference to
protect the best interests of the Colony, and to maintain the credit
of the Government, by preventing the further private alienation of
land, some of which was actually required by the Colony, and all of
which was of exceeding value to the Colony, and by protecting the
Publicin
in what they understood was guaranteed to them upon the faith
of the Government, the Town having been laid out and the Reserves
made prior to the expiry of the Charter of Grant, and when the
control of all land was exercised by the Company, and they were
viewed by the general Public as identical with the Government, I
caused a letter to be addressed to the Attorney General authorizing
him to take such proceedings as the case I put before him might seem
to call for and justify.
7. The Attorney General accordingly filed an informationpraying
praying for
an injunction as before stated. The information was supported by
full and complete affidavits. No evidence was filed on behalf of the
Hudsons Bay Company. The Court however held that it could not grant
the injunction sought upon the ground that the subject matter of the
suit was in litigation in another and Superior Court, and that any
action of the Court here might be construed into an attempt
to forestal the action of the Court above.
praying for
an injunction as before stated. The information was supported by
full and complete affidavits. No evidence was filed on behalf of the
Hudsons Bay Company. The Court however held that it could not grant
the injunction sought upon the ground that the subject matter of the
suit was in litigation in another and Superior Court, and that any
action of the Court here might be construed into an attempt
to forestal the action of the Court above.
8. I have therefore to report these circumstances to Your Grace, and
to forward to youall
all the Documents in connection therewith, in order
that, should Your Grace think fit, the same may be laid before the
Judicial Committee of the Privy Council.
all the Documents in connection therewith, in order
that, should Your Grace think fit, the same may be laid before the
Judicial Committee of the Privy Council.
9. It will be perceived that by the action of this Government no
interference was attempted with any portion of the land forming the
actual sites of the Company's Establishments at Victoria. To this it
was considered the Company could probably obtain a good title upon
payment of the fixed price of £1 per Acre, Her Majesty's Government
having declinedto
to purchase such Establishments upon the expiry of
the Grant. The injunction was intended only to apply to the other
portions of the 3084 Acres, to which no such equitable and consistent
claim could be advanced.
to purchase such Establishments upon the expiry of
the Grant. The injunction was intended only to apply to the other
portions of the 3084 Acres, to which no such equitable and consistent
claim could be advanced.
10. I trust that what has been done herein may be in accordance with
the views of Your Grace under the circumstances detailed, and
requesting instructions as to any further steps which it may be
considered advisable to take.
Minutes by CO staff
Documents enclosed with the main document (not transcribed)
Schedule of enclosures transmitted with the despatch.
Surveyor General J.D. Pemberton to Douglas, 27 April 1861,
asking to be empowered to apply for an injunction to stop further sales
of town land by the Hudson's Bay Company.
Acting Attorney General George Hunter Cary to Acting Colonial
Secretary W.A.G. Young, 27 April 1861, advising that the application
could at once be complied with, provided the title to the lands in
question was indeed "at issue in the Privy Council."
Young to J. Despard Pemberton, 30 April 1861, inquiring whether he had taken
steps in 1858 to reserve land containing the source of Victoria's
water supply, the springs having recently been sold by the Hudson's
Bay Company to a private individual.
Series of sketch maps showing disputed lots in the vicinity of
James Bay, no dates.
Three copies of the official map of Victoria, 1861, by J.D. Pemberton, one of which bears the notation "Colored to correspond with District Map. See note
written upon it."
Statement signed by Chief Justice David Cameron, 31 July 1861,
certifying that the annexed documents are true copies.
Copies of information, affidavits and judgment relative to the
injunction, pp. 322-387 on microfilm, as follows: Folio 1
Information; 17 Subpoena; 21 Affidavit of W.A.G. Young and exhibits
therein referred to; 45 Affidavit of W.A.G. Young and exhibits
therein referred to; 65 Affidavit of J.D. Pemberton and exhibits
therein referred to; 93 Affidavit of B.W. Pearse and exhibits therein
referred to; 97 Affidavit of H. Tiedemann and exhibits therein
referred to; 101 Affidavit of J.J. Cochrane and exhibits therein
referred to; 117 Judgment of Chief Justice David Cameron.
Three drafts of indentures made between the Hudson's Bay Company and the Fur Trade
Reserve, no dates, including three maps (five pages).
Other documents included in the file
Rogers to Emigration Commissioners, 5 October 1861, forwarding
copy of the despatch and the enclosures in original for their
observations.
Documents enclosed with the main document (transcribed)
Government Emigration Board
Park St, Westminister
18 Jany 1862
Park St, Westminister
Dear Sir
Would you be kind enough to lend me the Papers relating to the
Injunction Suit instituted in Vancouver's Island against the Hudson's
Bay Company. They were sent home in the Governor's Despatch of the
8th August last, and reported on by me on the 18th of October last.
A. Blackwood Esq.