Colvile to Lytton

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 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 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 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 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 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 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 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 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 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 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 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.