Walcott to Elliot (Assistant Under-Secretary)

I have the honor to acknowledge your Letter of the 29th ultimo, with
copies of two Despatches from the Governor of Van Couvers Island and
of a Letter from Mr Richards the Hydrographer to the Admiralty, on
the subject of the ownership of Fisgard Island on which stands the
Lighthouse at the entrance of Esquimalt Harbor.

2. It appears that there are no records in the Light House Board or
in the Colonial Secretary's Office of the Ownership of Fisguard

Island, or of its purchase by the Government; but Mr Richards in his
Letter states that previous to the transfer of Van Couvers Island
from the Hudsons Bay Company to the Crown, the whole or nearly the
whole of the shores of Esquimalt Harbor with the numerous small
Islands in it were owned by the Puget Sound Company, or by private
individuals—and that Fisgard Island (a rock in the Harbor of between
100 and 200 yards in extent) formed part of a property called Belmont
belonging to Mrs Young before her marriage, or to her Father. From the
other papers it appears that on the 20th December 1829 the Surveyor
General, by order of the Colonial Secretary Mr Young, paid to him Mr Young £150 as the purchase money of the Island, but that no deed of
conveyance was then executed of the property. The attention of
Governor Kennedy having recently been drawn to the subject, enquiries
were set on foot, but beyond the fact of payment of the purchase
money, none of the Officers of the Government through whom such a
transaction would in the ordinary course have passed, knew anything
at all about it. Eventually however the purchase deed executed by Mr
& Mrs Young, before they left the Colony, to Mr Pemberton in his
capacity of Surveyor General of the Colony was discovered in the
hands of a Solicitor unconnected with the Government, who delivered
it up to the Attorney General on the 17th of June last. This deed
is dated the 14th of May last, and although purporting to be made
between Mr & Mrs Young on the one part, and Mr Pemberton as Surveyor
General of the Colony on the other part, is executed by Mr & Mrs
Young only. In consequence of the absence of Mr Pembertons
signature the Governor raises a question as to the validity of the
Deed. On this point Mr Cardwell is desirous of having our report, as
well as whether any and what communication on the subject should be
made to Mr Young who is now in this Country.

3. The mere circumstances that the Deed was not signed by the
Grantee Mr Pemberton, would not affect its validity as regards the
Grantors. Mr & Mrs Young are equally bound by their execution of
the Deed. If therefore no other question arose on the Instrument, it
would not be necessary to call on them for a fresh conveyance.
Another important question however does arise on the face of the
Deed. It conveys the property to Mr Pemberton in his official
capacity as Surveyor General
"and his successors in office." But as the office of Surveyor
General is not a corporate one, the Conveyance does not I apprehend
carry the legal estate in fee as is the intention—but by reason of
the particular terms used, operates as a conveyance to Mr Pemberton
for his life only. I think therefore that Mr Young and his wife
should at once be called upon, under his covenant for further
assurance, to execute a fresh conveyance so as to vest the fee simple
of the Island in some official body in the Colony having a corporate
capacity to be held in trust for the public—such for instance as
the Lighthouse Board, if it be a corporation. As Mr Young is now in
England, Mr Cardwell will I presume desire to have this Deed prepared
by the Solicitor of the Treasury on behalf of the Crown.

4. I would further submit that Mr Young should at the same time be
afforded an opportunity of clearing up what appears to have been a
great irregularity in the conduct of public business—and what,
looking at the official position he held at the time, certainly needs
explanation. The whole transaction seems to have centered in him.
It does not appear how the purchase originated—who sanctioned it,
what means were taken to ascertain that he and his wife had a good
title to the property they sold—or who approved of the purchase deed
on behalf of the Crown. 
5. The Governor thinks that the intrinsic value
of the rock is merely nominal. Mr Richards on the other hand thinks
that the price paid was not under the circumstances unreasonable. On
this point it would probably not now be deemed advisable to raise any
question, if the rest of the transaction is unimpeachable.

6. As the most convenient mode of showing the nature of the
communication which I would suggest should be addressed to Mr Young I
annex the draft of a Letter to him for the consideration of Mr Cardwell.