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 8 November 1861, CO 305:18, no. 9935, 270.
Abstract
Berens, Henry Hulse to Pelham-Clinton, 5th Duke of Newcastle Henry Pelham Fiennes 8 November 1861, CO 305:18, no. 9935, 270.
Public Offices document.
Minutes (4), Other documents (2).
Berens to Newcastle
Hudson's Bay House
8 November 1861
I have the honour to acknowledge the receipt of a letter addressed to
me by Mr Elliot, under date the 5th instant, enclosing a Copy of a
despatch from the Governor of Vancouver's Island, and a report of the
proceedings which took place before the Supreme Court of the Colony
upon an application made on behalf of the local Government for an
injunction to restrain the Hudson's Bay Company from selling portions
of the 3084 acres of land claimed by them under apossessory
possessory title
prior to the Crown Grant of the Island to the Company.
possessory title
prior to the Crown Grant of the Island to the Company.
Mr Elliot after remarking that the injunction was refused on the
ground that the subject matter of the suit in litigation was before
the Judicial Committee of the Privy Council, whose decision will
ultimately dispose of the question, adds that as some-time must
elapse before that decision can be obtained, and as there are evils
pointed out in the Governor's letter which demand a more prompt
remedy, Your Grace is desirous to know whether the Company will at
once send out instructions to their Officers to desist from any
further dealings with the lands in disputeuntil
until the question of
title be settled.
until the question of
title be settled.
In reply I beg to inform Your Grace that we have already issued
directions to the Company's Officers in Vancouver's Island to suspend
the sale of those lands. On the 23rd May last to Sir Frederic Rogers,
in allusion to a water frontage which was to have been sold, but
which Governor Douglas claimed as a public landing place, addressed
me a letter of which the following is an Extract.
I am directed by the Duke of Newcastle to inform you that unless you
can assure His Grace that instructions will be sent to the Agent of
the Company, by the most rapid opportunity, to suspend the sales of
the land in question, theGovernor
Governor will be instructed to issue a
notice in the Colony that Her Majesty's Government deny the right of
the Company to sell those lands.
On the following day—the 24th May—I replied:
I hasten to inform Your Grace that in compliance with the suggestion
thrown out in to Sir Frederic Rogers' letter I have directed that
specific instructions shall be sent by this day's Post to the Agent
of this Company at Victoria to suspend the sales of the land in
question as referred to in the correspondence between Governor
Douglas and Mr Dallas.
Governor will be instructed to issue a
notice in the Colony that Her Majesty's Government deny the right of
the Company to sell those lands.
On the following day—the 24th May—I replied:
I hasten to inform Your Grace that in compliance with the suggestion
thrown out in to Sir Frederic Rogers' letter I have directed that
specific instructions shall be sent by this day's Post to the Agent
of this Company at Victoria to suspend the sales of the land in
question as referred to in the correspondence between Governor
Douglas and Mr Dallas.
On the 25th May a Copy of the correspondence was transmitted toMr
Mr
Mactavish now the Company's principal Agent at Victoria with distinct
instructions to suspend the sale of the Company's lands till the
questions between Her Majesty's Government and the Company were
decided. And in acknowledging the receipt of that letter, under date
the 14th July, Mr Mactavish says:
In accordance with your instructions we shall sell no portion of the
3084 acres of land on this Island until further instructed.
Mr
Mactavish now the Company's principal Agent at Victoria with distinct
instructions to suspend the sale of the Company's lands till the
questions between Her Majesty's Government and the Company were
decided. And in acknowledging the receipt of that letter, under date
the 14th July, Mr Mactavish says:
In accordance with your instructions we shall sell no portion of the
3084 acres of land on this Island until further instructed.
Your Grace will thus observe that as far as the Company is concerned
the most distinct instructions were given for the carrying out ofyour
your Grace's wishes in the matter. And I have no reason to believe
that those instructions have in any single case been departed from by
our Officers, inasmuch as we have no knowledge of any Sales of Land
having taken place subsequent to that period. In order, however, to
satisfy Your Grace, a copy of the present correspondence will be
transmitted by the first post and attention will be again drawn to
the instructions already given.
your Grace's wishes in the matter. And I have no reason to believe
that those instructions have in any single case been departed from by
our Officers, inasmuch as we have no knowledge of any Sales of Land
having taken place subsequent to that period. In order, however, to
satisfy Your Grace, a copy of the present correspondence will be
transmitted by the first post and attention will be again drawn to
the instructions already given.
There are several other points alluded to by Mr Elliot on which I
would request Your Grace to suspend your judgment until the arrival
of Mr Dallas who is shortlyexpected
expected from Edinburgh, and was the
Company's principal representative at Victoria at the period of the
transactions in question. I allude particularly to the alleged sale
by the Company of the Park reserved for the Public at Victoria, of the
Springs which supply the Colonists with Water, and of the Ornamental
Trees in the neighbourhood of the Town—the real nature of which
transactions Mr Dallas will, I believe, be able to explain to the
satisfaction of Your Grace. Mr Dallas is expected to arrive here
about the end of next week and as soon afterwards as possible I shall
have the honour of addressing Your Grace on this subject as well as
upon the proposal as to theassent
assent of the Governor being given, in
writing, previous to the sale of any particular portion of the land
in question.
expected from Edinburgh, and was the
Company's principal representative at Victoria at the period of the
transactions in question. I allude particularly to the alleged sale
by the Company of the Park reserved for the Public at Victoria, of the
Springs which supply the Colonists with Water, and of the Ornamental
Trees in the neighbourhood of the Town—the real nature of which
transactions Mr Dallas will, I believe, be able to explain to the
satisfaction of Your Grace. Mr Dallas is expected to arrive here
about the end of next week and as soon afterwards as possible I shall
have the honour of addressing Your Grace on this subject as well as
upon the proposal as to theassent
assent of the Governor being given, in
writing, previous to the sale of any particular portion of the land
in question.
Minutes by CO staff
Mr Elliot
There has been a misunderstanding in this matter, but it appears to be the fault of the Company & their Agent that it has arisen.
There has been a misunderstanding in this matter, but it appears to be the fault of the Company & their Agent that it has arisen.
The letter from this Dt of 23rd May last (which is here quoted)
had reference solely to the piece of land forming part of the
water
frontage of Victoria, and it was naturally concluded both by this
Department & the Land Board that the instructions to the Agent in the
Colony to suspend sales of "the land in question" referred to the
water frontage only & not to the 3084 acres of which it forms a part.
water
frontage of Victoria, and it was naturally concluded both by this
Department & the Land Board that the instructions to the Agent in the
Colony to suspend sales of "the land in question" referred to the
water frontage only & not to the 3084 acres of which it forms a part.
It now appears however that the instructions were intended to apply
to the whole of the 3084 acres & have been so regarded by the Coy's
agent in his acknowledgment of them dated 24th July last.
The Agent (either purposely or because he concluded the Govr had
received similar instructions) did not communicate his orders to the
Governor, who being therefore in ignorance of what had been done
has
made the application contained in his despatch of 8 Augt.
has
made the application contained in his despatch of 8 Augt.
Had the company given a more precise description in their letter of
24th May of the scope of their orders than that they extended to the
Land
in question, or had the agent communicated with the Governor,
the mistake wd not have occurred.
It will probably be thought right now in reply to the Company to
point out how the misapprehension of the nature of their previous
instructions arose, expressing satisfaction at what has been done,
and adding that the Duke of Newcastle will be happy to receive from Mr Dallas the explanation which he is able to give about the Park,
Public Springs &c.
Write also to the Governor to explain the circes.
HT Irving
12 Nov
I quite agree. I should make the answer very civil and should begin
by expressing regret that a misapprehension had arisen and should
then proceed to point out it's origin.
TFE
12 Nov
Yes—but I would explain very briefly that the Sec. of State & the
Govr had not understood that the Co's Instructions to suspend the
sale of Land extended beyond the Water frontages immediately in
question, & included the whole of the unsold portion of the Lands
claimed by the Co under a title prior to the grant of the Island,
which H[is] G[race] is happy to learn was the case.
Sir F. Rogers should see this—in relation to the proceedings before
the Judicial Committee.
CF
18
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