CO885-(10-11) — Page 609

11034.

PUBLIC RECORD OFFICE

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Reference :--

MMMMC.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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MY LORD DUKE,

No. 482.

(BRITISH COLUMBIA.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, November 11, 1867. We are honoured with your Grace's commands, signified in Mr. Elliot's letter of the 18th ultimo, stating that he was directed by your Grace to bring under our notice certain questions which have arisen respecting the relative positions of the Judge of British Columbia and the Chief Justice of Vancouver's Island, and to request that we would take the matter into our consideration.

Mr. Elliot was also pleased to state that the first section of the Act 12 & 13 Vict. c. 48. enabled the Crown to establish Courts of Justice in Vancouver's Island, and the second section declared that as soon as a local Legislature should be established in that Colony it should be lawful for such Legislature to alter the constitution and jurisdic-

tion of these courts.

That by Order in Council dated 4th April 1856 the Queen established the Supreme Court of Civil Justice of the Colony of Vancouver's Island, consisting of a Chief Justice.

That by a Commission dated 16th May 1851 the Governor was empowered to summon an Assembly, and with the advice of a Council and Assembly to make laws. And that thereupon a local Legislature on this footing was constituted.

That subsequently to the establishment of the Colony of Vancouver's Island the Colony of British Columbia was established, a Legislature and Supreme Court were constituted, and a judge appointed with the expectation of receiving the title of Chief Justice.

Mr. Elliot was pleased to annex a copy of the Order in Council constituting the Legislature of British Columbia, and further to state that by the Act 28 & 29 Vict. c. 63. 8. 5, it was enacted that every Colonial Legislature should have full power within its jurisdiction to establish courts of judicature and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the adminis- tration of justice therein.

That by the British Columbia Act, 1866–29 & 30 Vict. o. 67.--the Governor of British Columbia was authorised by proclamation to unite the Colony of Vancouver's Island with the Colony of British Columbia, which was eventually done. That by the fourth section of the same Act it was declared that on the union the authority of the Executive Government of British Columbia should extend to Vancouver's Island, and by the fifth that after and notwithstanding the union, the laws in force in British Columbia and Vancouver's Island should, with a single exception there specified, remain in force till otherwise provided by lawful authority, as if that Act had not been passed.

That when the union took effect the judges, as will be seen by the annexed corres- pondence, disagreed between themselves and with the Governor with regard to the positions which they ought respectively to occupy in the united Colony; and as the best mode of satisfying their claims it was decided by your Grace that so long as they both retained their office each should be Chief Justice of that part of the Colony to which their jurisdiction had theretofore extended, but that the Chief Justice of Van- couver's Island should be legally competent to act (virtually) as Puisno in British Columbia, and vice versa. That on a vacancy this anomalous arrangement is to cease, and there is to be one Supreme Court, composed of a Chief Justice and Puisne.

That with this the Judges are not satisfied.

That it will be seen by the Governor's Despatch, No. 86 of 10th July 1867, that the Governor and his Attorney General, notwithstanding the fifth section of the British Columbia Act, 1866, are of opinion that the Order in Council of 1856 which consti- tuted the Supreme Court of Vancouver's Island is repealed by some unspecified part of that Aot, and therefore that the Supreme Court of Vancouver's Island no longer exists.

That, on the other hand, the Chief Justice of Vancouver's Island, notwithstanding the second section of 13 & 14 Vict. c. 48., notwithstanding the general powers of logislation in the Legislature of British Columbia, recognised by the sixth section of

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