Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Despatch to London
Douglas, Sir James to
Grey, Right Honorable, Second Baronet, Sir George
6 March 1855, CO 305:6, no. 5020, 31.
Abstract
Despatch to London.
Minutes (7), Other documents (2), Marginalia (6).
Douglas writes to Grey to provide a report on, as requested by Grey, the "Collector of Customs" conflict at “Fort Victoria.”
The extensive minutes agree that Swanston’s complaint, and Douglas’s response to the same, illuminates inconsistencies and shortfalls in the nascent
Colonial judicial system, particularly in the process of legal redress.
The first of the two documents included in the file is a draft letter from the Colonial
Office to Trevelyan, which forwards a copy of Swanston’s second memorial; the second is a draft reply from Molesworth to Douglas, which forwards to Douglas a copy of a report on the customs-conflict between Swanston and Sangster.
No. 2
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" toproceed
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.
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,
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 thenpresided
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.
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,
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.
i.e. the case of the "William Allen."
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 to
you, until Mr Swanston had
communicated personally with me.
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;
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
preparationof
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
of the Book of Colonial Regulations.
The report may follow.
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.
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 Statesand
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.
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 anyPort
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.
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 enterand
and clear from thence
without calling at the Custom House at Victoria.
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 theIsland
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.
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
Port Victoria
Port Esquimalt
Beaver Harbour
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,the
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.
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, bybartering
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.
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 Lawand
and usage of the Colony.
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 andmurder
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.
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 particularlyalluded
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.
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 tradetowards
towards the improvement and
settlement of the country.
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.
The Right Honble Sir George Grey Bart
Her Majesty's principal Secretary of State
For the Colonial Department.
Her Majesty's principal Secretary of State
For the Colonial Department.
Minutes by CO staff
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 as
this.
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 as
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.
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 with
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.
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
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 all
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,
the
alleged wrong being within his competency to redress.
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,
the
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 the
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.
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
Draft, Colonial Office to Charles Trevelyan, Treasury, 3 July 1855, forwarding copy of the memorial and despatch for consideration.
