Colonial Despatches

Mr Blackwood
The Despatch referred to is with the Printers: but I expect it back hourly.

Mr Elliot
The Proclamation which is impugned is doubtless No 3—dated 2 June/59. You will find it with 10782/59—which is annexed. The proviso of the 4 Sect. is what the H.B.Co complain of.

The first Customs Proclamn you will find at P. 41 in the 2d series of the B.C. Parly papers.

I think we can scarcely move in this case without a report from the Govr.

Sir F. Rogers
This you will see is a question on a customs law. For Frasers River there is now a local port in British Columbia. For places North of Fraser's River, Vessels are still to call and to pay their duties at Victoria in Vancouver Island. I believe that in all Customs arrangements, the principle of Vessels being obliged to call at some convenient Port of Entry instead of at every place on the coast they may desire to visit is recognized from the necessity of the case. But certainly to require payment in one colony of duties of Import for another Colony appears a strong measure. And independently of this the grievance assigned of having to pay on the whole cargo, when only part is intended for the Colony is primâ facie a just ground of complaint.

P.S. But then since I wrote this, Mr Irving has pointed out that the calling at Fort Victoria for places North of Fraser River is only optional: this makes a great difference; it renders it an accommodation afforded to shipping, instead of a burthen.

Whether lawful to tax one Colony for another is a different question.

It would not, I apprehend be positively illegal for the Legre of Vancouvers Island to impose an export duty on goods exported to B. Columbia on the understanding that the proceeds of that duty shd be paid over to the Govt of B. Columbia. The arguments of the H.B.C. agst the policy & fairness of such a law appear very strong but they would have to obey it.

But the law actually passed, as far as I see, they could not have been compelled to obey, if they had chosen to resist it. Certainly a law passed by the Legre of B.C. (i.e. the Governor) could not compel any one to ackne the authority of Custom H. Offrs in Vancouvers Island—or, (except by a circuitous process wh has not been adopted)—subject them to penalties for setting it at defiance.

I should hope however that those who have over paid in V.C.I. duties wh, though exacted without any [real?] authority [there?], really became due when the goods on which they were paid were landed in B.C. wd not be at liberty to reclaim the money thus paid. The H.B.C. do not make any such claim.

I should think it wd be prudent to inform the Govr of B.C. that the authy wh he possesses of making laws for B.C. does not extend beyond the limits of that Colony and the sea within 3 miles of these limits—that all laws which he may pass professing to extend beyond these limits will be simply inoperative—(except perhaps in certain doubtful cases wh it is unnecesary to refer to)—& therefore that he must make provision for collecting within the own limits all duties payable to the Govt of B. Columbia.

This as Mr Elliot remarks is already done with regard to Frasers river. Procln No 3 of 1850 [1859], section 4. But it is not done as to ports N. of Fraser's river; and I rather doubt whether, practically, the claim gives the option which by its language it seems to do. Vessels it says "may" clear at Fort Victoria for those ports; but if they do clear, must "pay ... full duties" &c.

I may perhaps be allowed to point out that the Proclamation in wh this provision occurs is of a class wh is referred as a matter of course & without comment by this Office to the Bd of Trade & Treasy, on whose examination of them the C.O. relies.

Sir F. Rogers
(Perhaps you wd. be good enough to look at this again.)

The case seems to stand in this way. By Proclamation of Decber 3 1858, Customs Duties were imposed on goods imported into B. Columbia, which were to be "ascertained, raised, levied, paid & recovered at Victoria". (B.C. Parly Papers Part 2. p. 42, 43). This Proclamation was approved of by Sir E.B. Lytton by desp. of March 19, 1859 (Parl. Papers p. 82), and continued in force (in this respect) until the 15th June 1859, when it was modified by Proclamation No. 3 of 2nd June 1859, acc. to which Queensborough (New Westminster) became the Port of entry for Fraser River & "the ports of B. Columbia adjacent to Fraser River"—and it was made optional, and wd. appear to me, for vessels proceeding to any "other ports of B. Columbia", or "any port in B. Columbia north of Fraser River" (wh. expressions must necessarily mean the same thing), to clear either at New Westminster or Victoria—the latter provision seeming to be intended rather as a convenience than a restriction. It is strange that neither we nor the H.B.Co. have discovered the illegality of these Proclamations until now—when for nearly a year that illegality has, at all events, been reduced to a much smaller compass than that of the original Proclamation of Decber/58. (It will be observed that the "Labouchere" was proceeding to ports north of Fraser River.)

I sh. be disposed to answer by stating to the Co the nature of these Proclamations, admitting that their illegal character had escaped the notice of this Office, as well as that of the Treasury & Bd. of Trade, but drawing attention particularly to the 4th clause of the Proclamation of June/59, by wh. the payment of B. Columbia duties at Victoria wd. seem to be optional, saying at the same time, that the Govr wd. be called on for a Report, & instructed as proposed by Sir F. Rogers.

Mr Fortescue
I can hardly account for my own oversight in reading the 4th clause of the Proclamation No 3. I had overlooked the second sentence in it.

It is consequently clear that the power of clearing at Victoria is optional and this is very material.

I should be inclined to answer the H.B.C. somewhat more shortly than you propose—stating that their letter would be communicated to the Govr with special reference to their allegation that they were compelled to pay duty on goods not imported for Consumption in B. Columbia and drawing their attention to the 4th clause of the Procln No 3 by which the payment of duties at Fort Victoria had been discontinued as to one class of shipping & made optional as to the rest.

And to write to the Governor drawing his attention to the alleged effect of the Proclamation 1st in as much as it is said to be injurious to the honest trade because it is incapable of being enforced agst the smuggler—& 2nd because it is said to compel the H.B.C. to pay duty on goods not intended for consumption in B. Columbia.

And pointing out clearly to him the limits of his legislative power as Govr of B. Columbia.

Write as above. This is a curious series of over-sights by so many Departments. I suspect however the grievance is more theoretic than practical.

Draft reply, Newcastle to Douglas, No. 33 (British Columbia), 15 June 1860 (extensive revisions).

Extract, Sir George Simpson, Governor-in-Chief of Rupert's Land, to Thomas Fraser, 2 March 1860, reporting the amount of duty paid on the cargo of the Labouchere on her last trip to the coast.