Berens to Lytton

I have the honour to acknowledge the receipt of
Mr Elliott's letter of the 6th
Instant

transmitting the copy of a letter from the Foreign Office, suggesting
that this Company should prepare

a full statement of the grounds in which they consider the claim to
navigate the Columbia River after the expiration of their trading
monopoly is to be maintained, and after the cession to the United States
of their possessory rights, if any arrangement for such cession should be
made.

With regard to the first part of the question I beg to state that
this Company cannot discover any connection between the right reserved to
them by the Oregon Treaty to navigate the Columbia River and the
expiration of their trading monopoly, because the right to navigate the
Columbia River is reserved to them and to all parties trading with them
quite irrespective of the exclusive licence granted to them by the Crown.

This company traded in that part of the Oregon Territory which has
since been ceded to the United States long before they had any exclusive
License from the Crown; and therefore should they continue to hold their
property in that portion of the Oregon Territory for the purpose of Trade
after the expiration of the License it is perfectly clear that for the
purpose of such trade the right to navigate the river would be preserved
both to themselves and to any British Subjects trading with them. The
Article of the Treaty which reserves the right to this Company refers in
no way whatever to the exclusive License. In fact there is nothing to
lead to the supposition that the Government of the United States had any
knowledge of any such License. It had always been supposed that the
Territory in question belonged to Great Britain, and it was under that
assumption that this Company had been in the habit of trading there,
and in connection with that trade had erected forts and acquired other
rights and property, and it was for the purposes of their trade generally
that the reservation on the Treaty was introduced that the navigation of
the Great Northern Branch of the Columbia River should be free and open
to them and to those trading with them.

It appears obvious upon the face of the Treaty that the provisions
in those Articles which concern this Company were considered to be of a
permanent character, and not determinable at the expiration of the few
years when the License would expire.

I may mention that the suggestion that the right of this Company to
navigate the Columbia River had any connection with their exclusive
privilege in the Territory in question is altogether new to them, and
they are quite in the dark as to the grounds upon which such a suggestion
can have been brought forward.

The other part of the question proposed in the letter from the
Foreign Office appears to assume that this Company contend that, should
they cede to the United States the Possessory Rights which are preserved
to them by the 3rd Article of the Treaty, they would still be entitled
to navigate the Columbia River under the provisions of the 2nd
Article.

I beg to state that this view of the subject has never been taken on
the part of this Company, but on the contrary, they have always
considered that while the 2nd Article secured to them the navigation
of the Columbia River for the purposes of their trade, that Article would
become of no effect should they cede to the United States the Possessory
Rights secured to them by the 3rd Article. Those Possessory Rights in
point of fact represented the means by which the Hudson's Bay Company
carried on their trade in this Territory, and as they have always
considered that the navigation of the Columbia River had reference only
to the purposes of the trade they so carried on, the surrender of the
means of carrying on that trade would necessarily carry with it the right
to the navigation of the River, which was reserved to them solely in
connection with that Trade.

The correspondence which passed upon this subject in the year
1852

appears to have been overlooked. At that period a Treaty was in
negotiation for the transfer by the Company to the United States of the
Possessory rights secured to them by the Oregon Treaty, and, under date
the 1st September 1852, Captain Shepherd, on behalf of this Company,
transmitted to Lord Malmesbury a Memorandum upon the Subject, to which it
may be convenient that you should refer, and I have now the honour to
send herewith a copy of Captain Shepherd's letter and of the accompanying
statement.

At that period the only difficulty which appeared to arise in
carrying out the cession to the United States had reference to their
requiring a surrender in terms of the right to navigate the Columbia
River, as a consequence of the cession to them of the possessory rights
reserved to this Company. This Company considered that the United States
were clearly entitled to have those terms introduced into the Convention,
and Captn Shepherd's Letter of the 1st September had for its object
to support the view taken by the United States, and with the same
view Mr Colvile, the then Governor of the Company, addressed
a further letter to Lord Malmesbury, under date 28th October 1852,
of which I also send a copy herewith.

In reply to these communications Lord Stanley, the then Under
Secretary for Foreign Affairs, addressed to Mr Colvile a letter dated
6th November 1852, in which he fully recognized the conclusion come to
by this Company that the surrender of the possessory rights would have
the effect of putting an end to the right of navigating the Columbia
River, but he treated the insertion of any provision in the proposed
Convention to that effect as being superfluous, and as being calculated
to give the impression that the British Government were conceding
something, when in fact they conceded nothing, inasmuch as the right to
navigate the River would, in the view of all parties, come to an end with
the cession of the Possessory rights of this Company.

I send you with this a copy of the letter received from Lord Stanley
on this occasion, which you will find entirely bears out the view which
the Company take as to the effect of the cession of their rights. Should
the United States still desire that in the proposed Convention for
surrendering to them the Possessory rights of this Company a provision
should be introduced distinctly disclaiming any rights to the future
navigation of the Columbia River under the provisions of the Oregon
Treaty, I trust that it will be felt that there can be no objection to
the introduction of such a provision, as it would be very much to be
regretted that the present negociation should fall to the ground from a
refusal to consent to what is on all hands felt to be a matter of form,
and not of substance.