No. 2
6th March 1855
Sir
I have the honor to acknowledge the receipt of your Despatch No 6 of the 18th December 1854, transmitting copy of a Memorial from Mr Robert Swanston, complaining of the conduct of the Collector of Customs at Fort Victoria, in refusing to grant a permit for his vessel the "William Allen" toproceedManuscript image proceed to other Harbours of the Island, for the purpose of collecting native Produce, and you direct me to furnish you with a report, on the allegations contained in it, and at the same time to explain any reasons, which may have induced me to withhold the transmission of certain Memorials addressed to the Secretary of State, by the same individual, and I will now proceed to give you the desired information.
I declined transmitting the first representation made by Mr Robert Swanston to the Secretary of State,
i.e. about the Brig "William."
and returned it to him, to be transmitted on his own responsibility, for two important reasons, in the first place because it was an imperfect and garbled statement, of a proceeding in the Law Courts, where I thenpresidedManuscript image presided, and the substance of which I had reported to Her Majesty's Government in my Despatch No 8, of the 13th March 1854, and secondly because I was not aware that the transmission of such Documents, was a necessary part of my duty.
Duplicate annexed. The original is not within my Dt. It is, I apprehend, in circulation.
A copy of the second Memorial,
i.e. the case of the "William Allen."
is in my possession having been left in my absence at this office, and I neither then saw, nor have since seen Mr Swanston, who to the best of my belief, has not been in the Colony since that time.
The grievance complained of was of a nature such as might have been arranged here, without trouble or expense by an application to me for redress, and therefore I did not think it matter of sufficient importance to require its transmission toManuscript image you, until Mr Swanston had communicated personally with me.
His interest did not suffer by that delay, as I may state on the authority of Collector Sangster, that the "William Allen," did, without let or hindrance from him, proceed on her intended voyage, to the west coast of Vancouvers Island, notwithstanding his refusal to grant a clearance, for that particular part of the Coast.
I shall hereafter, should such be your wish, transmit any Document of that Kind, which may be presented to me, though it may not always be in my power to forward a report at the same time;
The report may follow.
as from the number and variety of the duties which devolve on me, and the total want of assistance, I cannot always find leisure for the preparationofManuscript image of such reports. I beg however to observe that much time and trouble in the settlement of disputes, would be spared if the Colonists were advised to appeal in the first instance to the resident Governor, for redress, and should his decision not prove satisfactory to refer their grievances the Secretary of State, as directed in Rules 3, 5 & 6 Chapter 5th
Chap 6. S. 5.
of the Book of Colonial Regulations.
I handed Mr Swanston's memorial to Mr Sangster Her Majesty's Collector of the Customs for Vancouver's Island, whose verbal report is to the following effect. That he refused to clear the "William Allen" coastwise, on the grounds that she was not a British ship, being registered at Port San Francisco, California United StatesandManuscript image and commanded by Thomas S. Atkins, an American citizen she therefore could not lawfully be employed in carrying Goods, from one part of any British Possession to another part of the same, as provided by the Act Victoria 8 & 9, for the Encouragement of British shipping and navigation cap 88, 10 and 13.
I am further requested by Collector Sangster to state to you in reply to Mr Swanston's allegations.
1st That he has always acted with perfect impartiality in the discharge of his duty as Collector of the Customs, and to the best of his knowledge according to the provisions of the Law.
2ndy That he has in no instance granted clearances to Foreign vessels employed by the Hudson's Bay Company, to proceed to anyPortManuscript image Port of the Colony, but such as the Law directs, and that no vessel except the "Otter," when despatched by this Government, to the aid of the ship wrecked seamen of the "Lord Western," owned or chartered by the Hudson's Bay Company, have been cleared for the West Coast of Vancouver's Island; the Hudson's Bay Company having no trade on that part of the Island.
3rdly That he has in no instance permitted vessels owned and employed by and representing the interests of non-residents, and Foreigners to take cargoes to any Port not authorised by Law, nor granted any privileges to other parties which were withheld from Mr Swanston.
4thly Beaver Harbour at the north east extremity of Vancouver's Island being a Port of Entry, and the residence of a Deputy Collector, Foreign vessels may lawfully enterandManuscript image and clear from thence without calling at the Custom House at Victoria.
5th That he does not Know of any settlements whatever in the proper sense of the Term, on the west coast of Vancouver's Island; the records of the Land Office, proving that none of the land on that part of Vancouver's Island, has been sold.
He knows that there are white settlements at "Beaver Harbour," because the Hudson's Bay Company, have for many years past had an Establishment there; and at "Nanaimo" "Soke," "Victoria," and "Esquimalt," because there have been large sales of land at each of those places, which are occupied by a white population, but he is not aware of any other regular settlements on Vancouver's Island. If as Mr Swanston declares, he has formed settlements on the west coast of theIslandManuscript image Island, he has done so, without authority, and without the purchase of Land, and must be therefore considered as a trespasser on the public lands, and not a legitimate settler.
6th That in Mr Sangster's letter to Mr Swanston, appended to his Memorial he merely stated the opinion given to him by the Governor, but did not mean to imply that he was bound or required to act on that opinion.
I will now proceed to make a few remarks explanatory of the general system pursued by the Collector of the Customs, in this Colony.
The declared Free Ports, for the entry of all British and foreign ships are as follows
Port Victoria
Port Esquimalt
Beaver Harbour
To Manuscript image
To facilitate the operations of trade and to save expense the Collector of the Customs has authority from the Governor and Council to grant special permits whereby British Ships may proceed from any of the said Ports of Entry, to any other Port of Vancouver's Island, and to foreign vessels, whereby they may in like manner, proceed to discharge or take in cargoes at such other Ports of the Colony, where there is a resident population of British Colonists.
Foreign ships are thus debarred from engaging in the coasting business of the Island, except to the extent before mentioned, and they are altogether excluded from such Ports of the Colony, as are inhabited by the native Indian Tribes alone, and I will here proceed to state for your information the reasons which have induced us to enforce to the utmost of our power,theManuscript image the Provisions of the Laws of the Customs touching the coasting Trade of Her Majesty's Possessions abroad, in the case of the unsettled Ports of the Island.
1st There being no Magistrates nor any constituted authorities, among the native Tribes, offenders against the Laws, can neither be apprehended nor brought to trial, nor protection given to life and property.
2ndly Crimes and offences are consequently committed by the crews of foreign vessels, which we have no means of punishing or restraining the parties, being neither resident Colonists, nor having any tangible property in the Colony.
3rdly Such vessels violate the Law in other respects, bybarteringManuscript image bartering ardent spirits with the native Tribes, and selling them Fire arms, and ammunition, such traffic being at once the cause of demoralization among the natives, and a source of danger to the Colony.
4thly Foreigners and non-residents are not entitled to equal privileges, with the resident Colonist, who invests the profits of his business in the Colony, and not in a foreign country.
They are surely entitled to such privileges as the laws allow them, & that for the benefit of the community, not their own. I do not see the drift of this passage.
Such has been the Law and usage in this Colony, since the appointment of Mr Sangster as Collector of the Customs.
I beg further to observe that it does not appear to me that Mr Swanston has any reasonable excuse of complaint having been treated with perfect fairness, according to the LawandManuscript image and usage of the Colony.
He declares himself to be a British subject but is not at present a resident Colonist, and to the best of my information has no property whatever in the settlements. If he be desirous of opening a trade on the west coast of Vancouver's Island, he should take proper and regular steps for that purpose, by the purchase of land, and he ought also to form a settlement capable of protecting itself, against the violence of the natives, otherwise his first proceeding will probably be a demand on this Government, for a force to protect his people and property and I will not disguise the fact from you, that such protection will be indispensably necessary, otherwise the natives, who are very numerous may rob andmurderManuscript image murder his people, a crime which could not be suffered to pass with impunity, and which might consequently involve us in serious difficulties with the native Indian Tribes.
The general views entertained by Her Majesty's Government on the question of the protection to be afforded to British subjects against the violence of the native Indian Tribes, as explained in Lord Grey's Despatch of the 20th March 1851, No 1 Military, appear to anticipate, and [are] calculated to discourage the tendency of British Colonists to form weak and detached settlements in countries inhabited by a numerous and warlike aboriginal population.
The passage of that Despatch addressed to Governor Blanshard, more particularlyalludedManuscript image alluded to, is to the following effect. And at all events it is necessary that I should state for your guidance on future occasions that her Majesty's Government, cannot undertake to protect or attempt to punish injuries committed upon British Subjects who voluntarily expose themselves to the violence or treachery of the Native Tribes, at a distance from the settlements.
Those instructions have been made known generally throughout the Settlements, and have had a Salutary effect in Keeping the restless spirits of the Colony within bounds. I am most anxious to accomplish the settlement of the West coast of Vancouver's Island, but am of opinion that object should be accomplished by the resident Colonists alone, who will apply the profits of tradetowardsManuscript image towards the improvement and settlement of the country.
It does not appear necessary that I should offer any further remarks on the subject of Mr Swanston's Memorial. He has not I believe been subjected to any injustice on the part of Collector Sangster, who has on all occasions acted with lenity and discretion, in the discharge of his public duties.
I have the honor to be Sir
Your most obedient humble Servant
James Douglas
Governor

The Right Honble Sir George Grey Bart
Her Majesty's principal Secretary of State
For the Colonial Department.
Minutes by CO staff
Manuscript image
Mr Merivale
If you do not feel satisfied with this explanation of the Governor in the case of the "William Allen," which is very much a case of complaint as to the conduct of the Custom House Officer, you might think it desirable to ask the opinion (thro' the T-y) of the Commissioners of Customs who are familiar with such complaints asManuscript image this.
The Governor says that the reason why he would not transmit the complaint of Mr Swanston on a former occasion (i.e. the Brig "William" affair) was because the complainants Story was imperfect & garbled. Do you consider that reason sufficient?
ABd 1 June
Mr Ball
I have kept this some time with other Vanc Id papers. I think with Mr Blackwood it might be referred to the Commr of Customs, asking for any advice their experience may suggest for the guidance of the Collector at this distant place.
The real dispute however it is not so easy to settle. Mr Swanston's real complaint (barring exaggeration) is that steps were taken against him by a pretended Court of Vice Admiralty. Now in the anomalous legal state of the settlement—which neither Parlt nor the Crown have thought proper to provide withManuscript image a legal government—it is impossible to say beforehand what judgment a Court of Law might pass on the acts of Govr Douglas in his supposed capacity of Vice Admy Judge.
X
Manuscript image
He has been warned of his danger since these proceedings took place. In cases like this, I believe the safest course is, to examine whether there appears to have been substantial injustice in the matter: & if the conduct complained of does not appear questionable on the score of justice but only on that of legality, to leave the party to his legal remedy. Probably this will be the course here, but wait for the customs' report, which they should be asked not to delay.
On one point I am inclined to think the Governor shews good cause against us. We are accustomed to admonish Governors about their non observance of the rule No 5 (p 49) of Col. Regns which requires them to transmit to the Secy of State allManuscript image Memorials: & we permit the systematic violation by private persons of rule 3 which requires that complaints should first be addressed to the local Government. I think both rules are valuable when they are taken together, but that the practice now prevailing is somewhat unjust to Governors as well as inconvenient to ourselves. Possibly a Circular on this subject might be of service. A Governor who refuses to transmit a memorial has no right to say (as they often do) that he had a right to refuse because the complaints are disrespectful, or unimportant, or false. But he ought to have a right to refuse, if it was not first addressed to himself, theManuscript image alleged wrong being within his competency to redress.
In the present instance for Mr Swanston to have applied to the Governor for redress would have been a mere form, being only an appeal from Mr Douglas as Judge to Mr Douglas as Governor: & the Governor need not therefore have stood on such a punctilio: still, as matter of form, he is in the right.
HM June 25
I concur as to this case. I think a circular wd be desirable as many cases occur in which Governors for some supposed objection refuse or delay to forward documents intended for the Secy of State, but I am inclined to doubt whether the right to address the Secy of State should be at all limited by regulation. It should of course be known that the Col. Office will not entertain complaints in cases where theManuscript image parties have not in the first place sought redress from the local authorities & a Governor in forwarding a complaint should state whether that Course had or not been adopted, but while on the one hand we refuse to receive or act upon any representation not coming through the Governor we should I think give an absolute right to all persons to make what statements they please to the Secy of State through that authorized channel.
JB 26 June
I agree with Mr Ball. Parties should always be told that unless they go to the Govr in the first instance there must be a loss of time.
Vancouver's Island seems to be left in an anomalous state. Before next Session of Parlt this question should be considered, as the position is one of importance.
JR 26
I understand the result to be that the rule may be left practically as it is. The subject therefore to be reconsidered whenever there is a formal review of the Col. Regulations.
Mr Jadis Refer therefore to the Customs. Annex draft.
HM J 27
Shewn to Sir George Barrow 17 Sept/55.
Other documents included in the file
Manuscript image
Draft, Colonial Office to Charles Trevelyan, Treasury, 3 July 1855, forwarding copy of the memorial and despatch for consideration.
Manuscript image
Draft reply, Molesworth to Douglas, No. 3, 5 September 1855.
Douglas, James to Grey, George 6 March 1855, CO 305:6, no. 5020, 31. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871, Edition 2.2, ed. James Hendrickson and the Colonial Despatches project. Victoria, B.C.: University of Victoria. https://bcgenesis.uvic.ca/V55102.html.

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