Colonial Despatches

Mr Elliot
1. The Duke of Newcastle, and Lord Clarendon will probably determine whether the present be an opportune moment for inviting the American Govt to join in the settlement of a fresh Boundary question. But down to this time no disputes or misunderstandings have arisen between the two Countries on the subject of the Sovereignty of the Islands in the "Canal de Arro." The Governor however states (3851) that he has asserted the British ownership. The Queen's Advocate is of opinion that he has acted properly. It may therefore be sufficient to approve. But some instruction is required.

2. Instruct the Governor on the fishing and trading questions according to the report of the Queens Advocate.

3. As there is neither Legislative Council nor L. Assembly in VanCouver's Island I imagine the Governor can only issue a Proclamation or some Regulation, founded perhaps on the fishery regulations of B.N. America, to prevent Foreigners fishing in improper places, and trafficking with the Indians.

Mr Peel
Vide separate Minute.

Mr Peel
The questions raised in this and the previous letter from the Foreign Office of the 14 June appear to me of sufficient National importance to deserve some care in the treatment. It may not be superfluous therefore to present you with a short account of the former papers to which I have looked back for the purpose.

Two questions you will observe are raised; 1st Should any Communication be addressed to the American Government with a view to settling the Boundary in the straits which separate VanCouvers Island from the Main-land? 2dy What instructions should be given to the Governor about American Citizens who fish within three miles of VanCouvers Island?

Now I find that with respect to this Boundary, the whole of the existing correspondence commences with a letter from the Foreign Office dated the 11 of of June 1847 which enclosed a Memo from Colonel Escourt upon the several Modes which might be adopted for defining the yet unsurveyed portions of the Boundary Line between the possessions of Great Britain in N. America and the United States. By this Memo it appeared that from the Atlantic to the Head of Cape Huron the frontier was determined by the labours of Colonel Escourt and his colleague; and from the head of Lake Huron to the Head of Lake Superior, and from thence again to the Lake of the Woods, the frontier might for the present be considered to be quite sufficiently ascertained by the verbal description agreed on in Lord Ashburton's treaty of Washington; that from thence to the Pacific the Boundary consists of the 49th parallel of Latitude which can be ascertained astronomically whenever wanted, but which cannot at present requirerequire to be defined across that vast breadth of desert country. From the Atlantic therefore to the Pacific the Frontier might for the present be deemed to be sufficiently settled. But the case was very different when once the line struck the shores of the Pacific, for there it entered into the immediate vicinity of American Settlers on the one hand and of British Settlers on Vancouvers Island on the other, and not being very well defined an early settlement of the question was desirable in order to obviate disputes.

Lord Palmerston and Lord Grey agreed in opinion that a proposal should be made to the American Govt.

Accordingly on the 10th of February 1848 the Foreign Office enclosed a Despatch (of much ability it appears to me) in which the British Minister at Washington proposed a joint commission of survey to the American Government. After a considerable delaydelay they agreed in 1849 to lay the Papers before Congress; but nothing more has ever been heard from them on the subject.

These are the circumstances under which Lord Clarendon asks in the present letter of the 14th of June whether it is necessary to add this to the numerous other questions now pending with the same Government, and not likely soon to be arranged.

Now I must observe that the subject at the present time has been moved exclusively by a brief Despatch from the Governor (3851 annexed) in which he—in very short and general terms; says that a question had arisen about the sovereignty of the Islands in the Canal de Arro to which some American Citizens laid claim as belonging to the United States. He promises another Despatch but none has come.

The same reasons which were adduced in 1847 and 1848 for wishing to define this Boundary remain now of equal or even greater force, and if I were asked which party is most likely to lose by delay I should say that it was Great Britain, because American Citizens being in greater numbers than British Subjects in those parts may be expected more rapidly to overrun any doubtful territory, and thereby to render it more practically difficult hereafter to establish a British Claim.

But these are considerations of general policy which were just as good last year as this. If then we are only now to consider the narrower question whether any thing fresh has occurred to lead us to urge the movement of a question which the Foreign Minister evidently considers inconvenient at this moment, I must say that I do not think that the Casual statements in the Govrs despatch of the 19th of Decr are sufficient for the purpose. I should be inclined therefore to answer the Foreign office thatthat whilst on general grounds it would be very desirable that the Boundary Line between Great Britain and the United State in the Gulf of Georgia and Fuca's Straits should be defined as soon as practicable, in order to prevent Encroachments and obviate further subjects of dispute, the Duke of Newcastle does not consider that there is anything in the recent Despatch from the Govr of Vancouvers Island which wd render it necessary to accelerate any fresh proposals to the American Govt on this subject if Lord Clarendon should not consider the present a favorable time for the purpose.

II. This is the answer which occurs to me on the question of Boundary. As to instructions to be given for preventing encroachment by fishing within 3 miles of the Island, I confess myself rather at a loss what to recommend. It seems to me that a Governor whohas has no force worth mentioning, either Civil or Military, at his disposal, can do little more than occasionally protest against such fishing on the part of Foreigners, and warn them that their title to it is not admitted, in order to keep up the British right. But the Queen's Advocate goes further, and suggests that some advantage might be derived from supplying the Governor of V.C. Island with the regulations on this subject of some of the British N. American Colonies, a suggestion which Mr Blackwood recommends to adoption. If Mr Blackwood knows any such regulations which would be suited to the circumstances of Vancouvers Island, he will be able to supply you with them. I admit that I can hardly suppose, myself, that the regulations made by the Governors of populous and wealthy Provinces with a due array of public Functionaries, will be found veryapplicable applicable to the circumstances of an Island chiefly tenanted by Red Indians and wild animals.

It appears from 10199/52 that the Islands forming the Arro
Archipelago are very numerous, many of them being laid down on Arrowsmith's Map as an integral portion of VanCouver's Island. The Govr should in my opinion be called upon to explain the steps taken by the Americans to set up their claim to these Islands, and the Manner in which they had received his assertion of the sovereignty of this country over all the Islands East of the usual Ship Channel into the Gulf of Georgia and I should not write to the F.O. on this point till the Govrs reply was received. As regards the Encroachments of the Americans in the way of fishing, they are clearly unlawful and if there is no vessel of war to repel them, the Govr must for the present Content himself with protesting against them.

But there is a third point which Mr Elliot has not noticed, although it was Exclusively with a View to its elucidation that our letter to the F.O. of the 22 July was written. Have the Americans a Right to trade with the Indians. The Govr seemed to raise the question as involving a Violation of British territor. 3851/53. The Americans could not traffick without landing and without therefore trespassing on British Territory. No notice of this objection of the Govr has been taken, but the traffick is Declared to be illegal on Another ground viz as at variance with the Monopoly of trade with Indians in the hands of the Co. And the Queen's Advocate states (notwithstanding the Govrs assertion that "the traffick was not hurtful to any Existing British Interests" 3851/53) that no persons whether British or foreign should trade with the Indians. I was under the impression that the Colonists in Vancouver's island were not prevented from trading by the Co's Exclusive Rights, but if the opinion of the Queen's Advocate is to prevail there can be no trade upon the Island, Except such as is Sanctioned by the Company.

Former experience of similar questions between the two Countries would lead to a conclusion that the interests of posterity would be prejudiced by leaving this dispute about boundary open. I do not however think it is quite ripe for any renewed action on the part of the F.O. The Governor has protested & promised further reports. I should only inform him that till he had done the latter & told us the result of the former no fresh negociations could be opened.

The Admiralty has lately sent two Vessels of War to the coasts of Vancouver's Island. We do not yet know whether they may have been called upon by the Govr to stop the illegal fishery & if so whether they have succeeded. Upon this point also I should call for information.

As regards the traffick with the Indians—I am almost certain that in the discussions in 1848-9 about the Colonization of V.I. it was stated by Mr Hawes that no monopoly of trade would be given to the H.B.C. & I suspect that if the amended Charter of 1849 is examined it will be found to be at variance with the Queen's Advocate's opinion.

Mr Jadis
With reference to these Vanc. I. papers, I have it strongly in my recollection, that whatever the right of the case may be, the H.B.C. have declared several times in their correspondence with us that they had made trade in Vanc. I. perfectly free. I think this was also held out in their proclamation to settlers. Will you have the kindess to look to this.

Mr Peel
I annex the enclosed "extracts" with reference to the last part of the D. of Newcastle's minute. There is I believe no doubt of the legal monopoly of the HBC remaining in force in Vanc. Id as no steps were taken to put an end to it when the Island was granted. Legally, the Crown can revoke the exclusive license as regards VanCouvers' Island if it pleases, see the clauseat the end of that license, p. 11 of printed papers of 1842 annexed. And the quinquennial visitation to which Vanc. I. is subject may afford an opportunity. The Company at the same time always assert, as the extracts will shew, that trade in V.I. is absolutely free, with the exception of the fur trade only.

The Clause Mr Merivale refers to was in my recollection when I made my remarks on 8610. It is clear that if the whole of VanCouver's Island Island is comprised within the Colony, the Crown has the power at any time to revoke the Co's licence for Exclusive trading with the Indians in so far as it affects that Island.

I had supposed that such revocation had taken place simultaneously with the Creation of the Colony. but it appears from the preceding minute that this was not the case.

I am not prepared to say that it wd be prudent to revoke the licence over the whole Island but I would propose that freedom of trade with the Indians be Authorized within the Settled parts of the Colony, so that any colonist or visitor have full liberty to barter with the Indians, resorting to those parts, for furs or anything else, subject to certain restrictions as to sale of spirituous liquors &c.

The Co. might be informed that this would be done at the expiration of the five years from the date of the Grant of Jan 1849, i.e. in January next.

The Co have certainly used ambiguous & Misleading language in their communications to this office, judging from the specimens in the extracts which are Annexed.

The other directions in 8610 may be attended to at once.

I approve of such a notice being given to the Cy. It will elicit an answer from them which may be important as guiding our future steps in this matter. The greatest care however must be taken to prohibit any trade with the Natives in spirits.

"Extract of a letter from the Hudson's Bay Company to H. Merivale Esqe dated 7th November 1851."

I may however observe that there is a market price there (Vancouver's Island) as every where else, and that Admiral Moresby's remark "that the interest of a Company with exclusive right of Trade is incompatible with the free and liberal reception of an emigrant community" is not applicable to the Hudson's Bay Company, inasmuch as that Company neither possesses, nor exercises any exclusive right of trade in Vancouvers Island."

"Extracts of a letter from the Hudson's Bay Compy to Earl Grey dated 14th Jany 1852."

I have already stated to your Lordship that the Hudson's Bay Company neither claim nor exercise any monopoly whatever in Vancouver's Island. But it appears to have been represented to your Lordship that the Company exercise a virtual monopoly with respect to Settlers and Visitors.

Whether the opinion stated by the Admiral in a former Despatch and here repeated "that the attempt to Colonize Vancouver's Island by a Company with exclusive rights of trade is incompatible with the free and liberal reception of an emigrant Community," be correct or not I will not take upon me to say. I can only repeat that it is not applicable to the case of Vancouver's Island, inasmuch as the Hudson's Bay Company neither claim nor exercise such right in that Island.

Extract

"Extract of a letter from the Hudson's Bay Company to Earl Grey dated 27th January 1852." There is no restriction whatever either on the importation or Sale of British goods.

The Trade in furs, secured by Charter [marginal note. by Licence] is the only exclusive trade carried on by the Company and it is one of the conditions under which land has been granted to Settlers that they shall not interfere in the Fur Trade with Indians.

J.D. Harding, Queen's Advocate, to Lord Clarendon, 12 August 1853, stating his opinion on the propriety of Douglas's actions in regard to the sovereignty of the channel islands and the legality of foreigners fishing or trading on Vancouver Island. Extensive minutes. Transcribed below.

I am honored with yr [???] command dignified in Mr Addignton's letter of 26; [???] stating that that he was directed to transmit to me the accompanying papers to the subject of the eight of the Hudson’s Bay Comy and on the pretension of American Citizens to Islands in the Canal de Arro, & to the right of fishing on NoWest Coast of Vancouver’s Island; his request first I would take the enclosed papers into consideration & report to gn [???] my opinion thereupon.

My obedience gn dr Lord Clarendone CommandsCommands, these the honor to state that pursuant to Lord Wodehouse’s letter of the E Matsat I have had an interview with Mr. Barkley the Ledr of the Hudson’s ^Bay Compy & that I am of opinion that the course proposed to be adopted by Governor Douglas with respect to the Island in the Canal de Arro appears to me to be right therefore, but that from the peculiar situation & the number of these Islands it is to be apprehended that serious difficulties may arise on this subject unless either the Boundary line through the “Canal de Arro” (the middle of the Channel which separates the continent from Vancouver’s Island Island) should be clearly settled & the particular islands therein which are British, conclusively ascertained & identified or unless (feeling this) [???] distinct & amicable arrangt (this was of compromise) can be made with the the United States on the subject.

As regards fishing; no foreigners are legally entitled to fish if on or within three miles of the coast & they may be interrupted & compelled to depart, if they persist in fishing, as regards traffic with the Indians, the Hudson’s Bay Comp are legally entitled to this traffic exclusively of all other persons whether British or foregin; & I am not aware that that there is any existing ground or claim on, or by virtue of which American Citizens can pretend to interfere within this traffic.

From the coast (as I am informed by the Led. of the Comp) of my local law or ordinance or of any actual legislature assembly or authority to grant local laws in Vancouver’s Island there may be some difficulty in legally punishing those foreigners who may be found either fishing or engaging in such traffic & I would venture to suggest the necessity of some plan. Local legislative enactment to these subjects - the fishery nets of some of the British NorthNorth American Colonies might perhaps mutatis mutandis form useful precedent for such enactment.