Colvile to Lytton
Hudsons Bay House
London
23 September 1858
Sir,
In the absence of the Deputy Governor, Mr Berens, I have the honour to acknowledge the receipt of the Earl of Carnarvon's letter dated the 10th September, enclosing copies of a Correspondence between the Colonial and Foreign Offices relative to the right of Great Britain to navigate the River Columbia, together with a Report from Her Majestys Advocate General on the same subject, and requesting that the Company would transmit to you any observations they may wish to offer with a view to the opinion of the Law Officers of the Crown being taken as recommended by the Queen's Advocate.  
In compliance with your request, I have now the honour
to
to submit the following observations.  
The question submitted to the Queen's Advocate was raised by Lord Napier in his Despatch of the 30th July 1858, in which his Lordship suggests that "if the trading monopoly of the Hudson's Bay Company be abrogated, it might be contended (by the United States) that the right of Great Britain to navigate the River Columbia, which rises in British Territory, is lost."  
In order to enable the learned gentleman to form his opinion on this question, the only documents, or other information which appear to have been laid before him were Lord Napier's Despatch of the 30th July, and a copy of the Treaty concluded between Great Britain and the United States on the 17th July 1846.  
Now I respectfully venture
to
to express the opinion, that, in order to form a correct judgement on this subject in all its bearings, Her Majesty's Advocate General might not only to have had the state of the property in question presented to him, as it actually stands, but have had his attention drawn to the origin and Earlier history of the "possessory rights" belonging to the Hudson's Bay Company within the Territory of the United States. Had this been done I am inclined to believe that he would hardly have come to the conclusion that the rights of the Company in American Oregon, which rights are reserved by a Treaty between the two Countries, are in any way dependent on the termination of the "Exclusive License of Trade" granted to them within the British Territories of North America.
He
He seems to have proceeded upon the supposition (a supposition in which Lord Napier participates) that by the withdrawal of the "Licence of Exclusive Trade with the Indians," the Hudson's Bay Company will cease to exist, but it is hardly necessary that I should inform you that the Company existed for a Century and a half before it obtained the License of Exclusive Trade, beyond the limits of the Charter, and that it will continue to exist, even if that License were altogether withdrawn.  
Without troubling you with unnecessary details of the early history of the Company's Establishments in the Oregon and Washington Territories, I may be allowed briefly to state that the property in those Districts belonging to the Company, and
which
which has since given rise to so much discussion, was possessed by them for some years before the Crown License of Exclusive Trade with the Indians was granted to them. Those rights were not created by the Treaty of 1846; they were merely confirmed by it. At the period when the Establishments were formed, and for many years afterwards, it was a matter of doubt, whether the districts now called the Washington and Oregon Territories, belonged to Great Britain, or to the United States. The Country was, in a manner without an Owner, the first comers took possession and in this respect, the Hudson's Bay Company had no exclusive privileges, nor any rights which did not equally belong to every British Subject, or American Citizen
who
who chose to "squat" in those remote regions.  
At length a Convention was concluded between Great Britain and the United States and signed at London on the 20th October 1818, the 3rd article of which is to the following effect.  
It is agreed that any Country that may be claimed by Either party on the North West Coast of America, westward of the Stony Mountains, shall, together with its harbours, bays, and creeks, and the navigation of all rivers within the same, be free and open for the term of ten years from the date of the signature of the present convention to the vessels, Citizens and Subjects of the two powers; it being well understood that this agreement is not to be construed to the prejudice of any claim which either of the two high
Contracting
Contracting parties may have to any part of the said Country, nor shall it be taken to affect the claims of any other power, or State, to any part of the said Country; the only object of the high Contracting parties, in that respect, being to prevent disputes and differences among themselves.  
In 1827 when the Convention of 1818 was about to expire, another Convention was Entered into, and signed on the 6th August of that year, by which the provisions of the 3rd Article of the former Treaty were indefinitely extended and continued in force. These two Conventions were the only securities which the subjects of either Country had for any possessions they might acquire within that Territory, and it was on the faith of them that the Hudson's Bay Company (as any other British Subject might
have
have done and, as in fact, some other British Subjects actually did) established posts, erected buildings, cleared ground, cultivated land, and carried on trade with the Natives. But in 1818, the Hudson's Bay Company had no exclusive rights of trade beyond the limits of its Charter, and only became possessed of such exclusive right in the district known as the Indian Territory belonging to Great Britain in 1821, on the 5th December of which Year, they obtained a Crown Grant of exclusive trade with the Indians in certain parts of North America for a limited period.  
But within the limits of what is now American Territory and in which they occupied Lands which were secured to them by the Conventions above referred to, the Hudson's Bay Company, as far as
I
I am aware, never claimed, and certainly never enjoyed any exclusive privileges of trade whatsoever. They continued to hold and improve their property until the date of the Treaty signed at Washington on the 17th July 1846, when the Sovereignty of the whole of the Territory to the South of the 49th parallel of Northern Latitude was made over to the United States, at the same time that the Possessory rights of the Hudson's Bay Company were reserved.  
Among these Possessory rights, an especial clause stipulates for the free navigation of the Northern Branch of the Columbia River, in favour of "the Hudson's Bay Company, and all British Subjects trading with the same," the free and open navigation of that river being in fact necessary for the Company with Reference to its trade, as it possessed then, as it does at the
present
present day, establishments on the Upper Columbia to which it could not otherwise obtain access.  
From this brief sketch of the possessions of the Hudsons Bay Company within the Territory of the United States, I hope it will be clear to you that their Possessory Rights, Stations and trading Establishments, and consequently the right to the free and open navigation of the Columbia River, are antecedent to, and entirely independent of the rights conferred by the Licence of Exclusive trade with the Indians, granted originally in 1821, and which had reference only to Indian Territories within the British dominions not previously belonging to the Company.  
These "Indian Territories" I need hardly remind you are adjacent to, but not included within
the
the possessions held by the Company under the Charter of Charles II, and a main object of the Government in granting the right was to enable the Company to extend the regulations which had been found beneficial as applied to their Chartered Possessions, to the neighbouring districts occupied by the Aboriginal Tribes. I therefore beg respectfully to submit that no right belonging to the Company, and through the Company to Great Britain within the Territories of the United States can be weakened by the withdrawal of the Exclusive License of Trade.  
I have ventured to make these observations in the absence both of my Colleagues in the direction, and of the Solicitor of the Company, because I was unwilling that a case of this importance should be laid before the Law
Advisers
Advisers of the Crown in an imperfect shape.  
Having made them I have merely to add that I have no objection to offer to the course recommended by the Queens Advocate General, vizt that a full "case" or Memorandum on the question should be prepared and submitted to the opinion of the Law Officers of the Crown.  
I have etc.
E. Colvile
Director
Minutes by CO staff
Mr Merivale
Copy to Foreign Office—or should this Office draw up a "case" for reference to the Law Officers of the Crown.  
ABd
25 Sepr
Other documents included in the file
  • Draft, Elliot to H.H. Berens, Hudson's Bay Company, 6 November 1858, transmitting copy of a letter from the Foreign Office, 18 October 1858, and requesting that the required statement be prepared.  
Lord Carnarvon
The HB Company stand aghast, (as well they may) at the very extraordinary positions laid down or suggested by the Q. Advocate. But this is no fault of his. He wrote in absolute ignorance of the facts of the case. No Crown Law Officer will ever go out of his way to examine as to facts for himself. He expects that they should be stated to him, or, at all events, the sources from whence they are to be ascertained pointed out. The practice at the For. Office of merely sending despatches as received to the Q. Adv. and asking his opinion about them, must constantly lead to mere useless results, as in this case.  
Send to the For. Office in answer to 8966. But I am really at a loss to know what occasion there is for submitting any "case" to the Law Advisers at all. I do not see what there is in dispute. I annex a draft for approval.  
HM
S 30
 
Footnotes
  1. September = C-HBC, 10 Sep 58, navigation rights, Columbia FIND?? Car-HBC, 10 Sep 58 re navigation of Columbia
  2. is lost = Napier-? 30 Jul 58, re navigation & HBC rights FIND?? Napier letter, 30 Jul 58 re navigation rights of HBC. The reference to the treaty of 17 July 1846 is probably intended to be the Treaty of Washington, which was signed on 15 June 1846. Cf. p. &V007, above. Additional ref??
  3. October 1818 = Convention of 1818 The Convention of Commerce Between His Majesty and the United States of America, signed at London on 20 October 1818, can be found in Canada, Department of External Affairs, Treaties and Agreements Affecting Canada in Force Between His Majesty and the United States of America, with Subsidiary Documents, 1814-1925 (Ottawa, F.A. Acland, 1927), pp. 15-17. Cf. Douglas to Labouchere, 5 March 1858, 4567, CO 60/1, p. 2.
  4. August of that year, = Convention of 1827. The Convention of Commerce Between His Majesty and the United States of America, signed at London on 6 August 1827, can be found in Treaties and Agreements Affecting Canada, pp. 17-18.
  5. belonging to the Company. = HBC grant 5 Dec 1821. Cf. footnote on Douglas to Stanley, 10 June 1858, 7828, CO 60/1, p. 29.
  6. 8966. Foreign Office to Colonial Office, 2 September 1858, CO 6/26, p. NEED
Public Offices document:
Colvile to Lytton, 23 September 1858, National Archives of the UK, 9790, CO 60/2. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871. Ed. James Hendrickson and the Colonial Despatches project. Victoria: University of Victoria. http://bcgenesis.uvic.ca/getDoc.htm?id=B585MI04.scx. Accessed 20 July 2018. 

Last modified: 14:44:26, 28/2/2018