Colonial Despatches

Sir F. Rogers
Happily the Officers of the H.B.Co can have no more opportunities of influencing the Assembly of V.C. Island in legalizing the sale of spirits to the Indians: and a United Legislature will, it is to be hoped, set to work to repress vigorously this scandalous traffic. As I have mentioned in my minute on 3817 B.C. the Law in that Colony is prohibitory enough. Perhaps it may now be extended to V.C.I. Any how Governor Seymour's attention shd be earnestly directed to the subject by a desph from Home?

Copy to Sir E. Head?

The existing law of V.C.I. of which a copy is one of the enclosures (not numbered) to this dph imposes a fine of (maximum) 100£ on persons selling liquor to Indians, or keeping Liquor in the vicinity of an Indian encampment. It is so [severe?] (I doubt not quite rightly) as to be called by the C.J. repugnant to natural justice. The truth therefore is I imagine that the law is well enough if there were police & other force to execute it. Attempted alterations of the law can I shd think do little good & only serve, to divert attention from the real defect—wh is in the police.

I should be entirely against the authorizing licenced sale to the Indians unless some stringent rules were applied to the licencees wh is not proposed. But I do not think Gov. K. in his dph quite does justice to his opponents. They say—prohibitory measures having failed (wh they have) try a system of licence. I dare say either system wd do—i.e. either prohibition with a vigorous, moving (& very expensive) police—or a licence system with power to the Govr to choose his licencees and make them responsible in an arbitrary way (i.e. on very loose presumption of delinquency) for the occurrence of abuses among the Indians.

The advantage of the license (sale at quantum) wd be that the licencees wd form a natural police in protection of their own interests.

As to the extent of the mischief vide the description given by the Bp of what he saw. I have turned down the enclosure as I have the V.C.I. liquor orde.

I have also turned down a description of Metlahkatlock (Mr Duncan's settlement) wh follows a letter from Mr Duncan. Anything he says shd be at least considered to. And anything that could be done to help him on shd be attempted. Vide Dr Helmcken's notice of him while inveighing agst Missionaries (also turned down).

I do not see that anything is to be done. The papers will form a useful item as an indictment agst the defunct Assembly—if such an indictment is [ever?] necessary.

Write to the Govr of the United Colony when it is united pressing the subject on his attention. It is of incalculable importance evidently & send copy of desph to Sir E. Head.

Send out copy at once to Govr Seymour & to Sir E. Head.

Printed copy of a bill entitled, "An Act to Amend the Indian Liquor Act, 1860," intended to suppress the sale of liquor to Indians, passed by the legislative council, 20 February 1866.

Copy of the bill as noted above, extensively edited with handwritten notations and text, resulting in a promotion for legalizing the sale of spirits to Indians, passed by the legislative assembly, no date.

Printed copy of "An Act for Better Prohibiting the Sale or Gift of Intoxicating Liquors to Indians," signed by Douglas, 2 November 1860.

Petition to the Legislative Council asking that the sale of liquor to Indians be legalized under a form of licencing, signed by Alfred Waddington, John M. Wark "and 191 others."

Minute by Kennedy on the above petition, noting that a large number of the signatures were "persons directly and indirectly connected with the sale of liquors—or employees of the Hudson's Bay Company."

Petition to the Legislative Council denouncing the proposed bill to legalize the sale of liquor to Indians, signed by the Bishop of Columbia "and 123 others."

G. F. Foster, Acting Gold Commissioner, to Colonial Secretary, 15 September 1865, forwarding documents relating to the trial of George Campbell, charged with selling whisky to an Indian at Sooke Harbour, such documents being forwarded to the attorney general by Young on 18 September 1865 on the authority of the governor.

Memorandum by Thomas L. Wood, Acting Attorney General, 21 September 1865, advising that "Judgment was given by the Court this afternoon in favour of the Prisoner who is now at large."

Newspaper clipping, Daily Chronicle, 21 September 1865, detailing the supreme court trial of George Campbell, resulting in his complete discharge.

Memorandum by Kennedy, 22 September 1865, citing the decision in favour of Campbell and expressing doubt that any conviction could be obtained under the outdated Indian Law of 1860 as noted above, and asking for the opinion of the attorney general on the subject.

Memorandum by Wood, 25 September 1865, discussing the laws relating to the sale of liquor to Indians currently in effect in the colony.

Newspaper clipping, Daily Chronicle, 28 April 1866, reporting the conviction of two men charged with selling whisky to Indians.

Numerous newspaper clippings from the Victoria British Colonist, Daily Chronicle, New Westminster British Columbian, Nanaimo Gazette and Nanaimo Tribune, reporting debates in the Legislative Assembly on the bill and other aspects of the issue.

Extract of letter from Roman Catholic Priest, Fort Rupert Mission, 8 August 1864, asking the government on behalf of the natives "to appoint an officer with authority to seize upon all liquors brought here by schooners and canoes coming from Victoria."

Extract of letter from Robert Brown, Commander of 1864 Exploring Expedition, 1 June 1865, advising that the origin of virtually every quarrel between whites and Indians was due to "1. White men taking liberties with their women; 2. White men taking familiarities with the men and resenting the same on their own part; 3. Whiskey."

Extract of a Sermon by the Bishop of Columbia, 17 June 1866, describing the evils attending the sale of liquor to the Indians and denouncing the bill introduced into the Assembly.

Extract from a Sermon preached by the Bishop of Columbia, 24 June 1866, urging a strengthening of the laws against the sale of liquor to natives who cannot resist "the evil influences at work amongst them instigated by the unprincipled white man's lust for gain."

That your Petitioners have learned with considerable surprise that within the past few days a Petition has been circulated praying your Honorable Body to oppose the Bill recently passed by the House of Assembly legalizing the Sale of Liquor to Indians.

Your Petitioners need scarcely state that they feel deep interest in thewelfare welfare of the Indian race and deprecate in the strongest manner the evil effects arising from the abuse of strong drinks by savages at the same time they also know that the prohibitory Law has been a signal failure in these Colonies, that the Indians have at all times been able to procure all the Liquor they wished to pay for, but owing to the prohibitory Law having placed the trade in hands of the lowest class of men the quality of Liquor supplied to them has been in too many cases little short of poison.

Your Petitioners are of the opinion that by throwing open the trade to all Liquor Dealers and thereby allowing the Indian to get the bestvalue value for his money he will (being more intelligent that he receives credit for by many) buy a better glass of Liquor and above all get it when he wants it and thereby prevent, Tribe, Village or Company drunkeness, the great evil under the present system.

It has been found impossible under the present prohibitory Law to prevent the Indian getting drunk by Tribes, if the Law was made more stringent would it still not be more difficult to put in force—and although Your Petitioners are willing to admit that money should have but little consideration where morality is concerned yet they feel that the cost of trying to put such a Law in force isentirely entirely beyond the present means of the Colony.

In the provinces of Nova Scotia, New Brunswick, and others of the British American provinces the Indian buys Liquor on the same terms as the white man notwithstanding the contrary is asserted by those favoring the prohibitory Law.

If the Bill legalizing the sale of liquor to Indians becomes Law the Police will have much time to devote to the peace of the City which is now spent in laying traps to catch illicit Indian Whiskey Sellers.

In view of the fact that the prohibitory Law has proved ineffectual that the Revenue of the Colony wouldbe be insufficient to carry out a prohibitory Law which would be effectual, that the present law places a money making monopoly in the hands of the most unscrupulous and lowest class of humanity, that it is the opinion of many able men who have been long in the Colony and intimately acquainted with the Indian character, that the Bill legalizing the sale of Liquors to Indians is a wise measure calculated to promote the welfare of the Indians or at least to prevent the worst features of the trade. In view of all these facts Your Petitioners humbly pray that Your Honorable Body will support the Bill now before you legalizing the Sale of Liquor toIndians Indians.

And Your Petitioners as in duty bound will ever pray

A large proportion of this number are persons directly and
indirectly connected with the Sale of Liquor—or employees of the Hudsons Bay Company.

That your Petitioners view with extreme regret and unfeigned alarm the Bill to legalize the sale of intoxicating Liquor to the Indians now before your Honorable Body.

Before allowing this Bill to become Law your petitioners humbly beg your Honorable Body to weigh the following considerations—

1. Such a measure as thatcontemplated contemplated in the Bill in question is opposed to the history and experience of the British American Provinces as well as of the United States of America.

During the period of barbarism of native races it has been found both expedient and necessary to prohibit the Sale of intoxicants to the Aborigines.

2. The effect of Strong drink upon the Indians is vastly different from its effect upon the whites.

The Indians drink by tribes, villages or companies, and almost invariably to excess whilst the supply lasts. When drunk they exhibit the wildest recklessness and indifference to human life, any weapon which comes to hand is then used withdeadly deadly fury and fatal consequences. There is no public opinion, no censure of society to restrain the unlettered savages in the use of this to them most dangerous beverage.

3. The partial failure in operation of the present prohibitory law does not prove either its injustice or the wisdom of its repeal. It has yet to be shewn that any sustained well organized and systematic effort has been made to enforce the Law.

It is humbly urged by your Petitioners that there are no officers detailed for this special duty; and that scenes daily enacted on the Indian Reserve at Victoria could not possibly have occurred if there hadbeen been any proper system of Police Supervision to carry out the law.

4. The special attractions said to be imparted to intoxicating liquors by the prohibition of its use, might with equal force be urged in favor of the repeal of all prohibitory enactments, while the argument drawn from the infringement of the liberty of the subject so often alleged in this question falls to the ground when it is remembered that the Indians are wards of Government, considered unfit to be entrusted with the management of their own lands, or to be admitted to the full privileges of British subjects. Hence it does not appear to your Petitioners to be consistent withsound sound reason and true philanthropy to place in the hands of the Natives a drink, admitted by all to be injurious and destructive to them, while they are confessedly still unqualified to exercise the rights of men and citizens in many matters of a much more harmless character.

5. The inefficient execution of the prohibitory Law has given sad proof that the natives will barter their finest Furs for liquor in preference to any other medium of exchange. Their thirst for strong drink thus deprives them of those articles which would minister at once to their commercial advantage and their progress in civilization. This isthe the opinion of your Petitioners claims not the repeal of the prohibitory law but its more rigid enforcement.

6. In the opinion of your Petitioners it is the sacred duty of the Government to protect the Natives as well from their own desperate and destructive vices as from the cupidity and lust of lawless whites, and That therefore while every private effort for their amelioration ought to be warmly supported, a well digested scheme of Indian improvement should be adopted by the Crown and vigorously carried out.

7. But in the opinion of your Petitioners the licensed sale of intoxicating liquors would provemost most disastrous to such a scheme.

In view therefore of the experience of all other British American Colonies of the peculiar and destructive effects of intoxicating liquors upon the Indians, of the slight and inadequate efforts hitherto made to enforce the prohibitory law, of the infallible loss and ruin which would result to the Indians from the barter of their articles of commerce for liquor instead of those things which minister to material progress, of the solemn duty of the Government to protect and elevate the Natives, and of the great difficulties which the sale of intoxicating liquors would place in the way of such elevation;

Your Petitioners humbly pray your Honorable Body to reject the Bill authorizing the sale of intoxicating liquor to Indians now under your consideration.

And Your Petitioners as in duty bound will ever pray &c &c

In reviewing the judgment ofthe the Honble The Chief Justice in this case, I may premise that since giving such judgment His Honor has referred me by way of authority for the decision arrived at, to 1 Burn's Justice, Title "Conviction" pp 558 et seq.

Viewed with reference to the law as there enunciated the decision in question may be looked upon as supported by some show of authority, and not wholly erroneous though the leading positions taken in the Judgment cannot in my opinion be supported.

It is however matter of notoriety that His Honor has always heldthat that what are called "Jervis's Acts" apply to this Colony, and I may add that I have heard the Chief Justice so decide in all cases which I have conducted or at which I have been present as a spectator, and it was also so treated by His Honor in this particular case, and admitted in argument between my opponent and myself. The law as amended by Jervis' Acts which were passed with the express view of sweeping away objections to convictions on technical grounds is so completely at variancewith with the law as propounded by older treatises and with His Honor's Judgment that I cannot conceive by what process of reasoning His Honor can have arrived at the Judgment in question and it would be useless for me to criticize it at any length, when it is obvious that the whole is founded on a complete misapprehension of the law.

In answering that part of His Excellency's memorandum which requires me to pass an opinion on the "manner" of the Judgment I fear it would be looked uponas as disrespectful were I to express my candid opinion as the character of the judgment independent of its legal value. I should however remark that His Honor could not have doubted from the authorities cited, and the whole course of my address, that I relied on Jervis's Acts in connection with the form of the conviction as fully entitling the convicting Magistrate to a favorable decision and that it could not be supposed for a moment that my argument was based on the state of the law as existing independently of Jervis'sActs Acts. The objections also to the conviction as appearing on the Judgment were many of them such as were never raised by my opponent in argument and are due only to His Honor's peculiar views propounded for the first time in the Judgment, and such as I had no conception would ever be raised or made the foundation of his decision. Having had experience of previous instances of His Honor's decision in matters of a similar kind I had thought it not unlikely that a decision favorable to the prisoner wouldhave have been given, but I had no idea it would have been supported on grounds so wholly untenable.

The result of the decision is much to be lamented. No one of ordinary experience in the law relating to Magistrates, as understood to prevail in this Colony, can read it with respect or acknowledge its cogency. The language in which His Honor may be said to have inveigled against the "Indian Liquor Act of 1860" is much to be regretted, and the general and most favorable impression leftupon upon my mind is that he has allowed a strong bias and prejudice against the policy of the Act in question to cloud his judgment, and prompt him to give a decision at once erroneous and mischievous, seriously impeding and obstructing Magistrates in the exercise of their duties, lowering the tribunals of the Colony and rendering very difficult of application an Act of the Legislature which in my judgment ought to be supported by every man of humanity andChristian Christian feeling who knows the fearful evils attendant upon the consumption of spirits by the Indian population.

As to our village here it is quiet enough as long as the Indians do not get whiskey; but the moment it is brought to the Fort, all is trouble and confusion. The majority of the Indians say they would like never to see it, but at the same time the very sight of itis is a temptation they cannot resist. They therefore ask the Government to appoint an officer with authority to seize upon all liquors brought here by schooners and canoes coming from Victoria.

Draft reply, Carnarvon to Seymour, No. 23, 16 November 1866.