Cockburn and Bethell to Grey
Temple
December 28th 1854
Sir
We were honoured with Mr Peel's Letter of the 7th September last in which He stated that he was directed to transmit to us copy of an Act passed by the Governor and Council of Vancouvers Island intituled "an Act to establish a supreme Court of Civil Justice in the Colony of Vancouvers Island and its dependencies" and to request that We would favor you with our opinion on the following questions.  
That Vancouvers Island was situated on the North West Coast of America, was part of the Indian Territories or parts of America not within the limits of lower or upper Canada within the words of the Act 43 Geo 3 Cap 138 and was recognized as a portion of Her Majesty's Dominions by the Treaty with the United States of 15th June 1846:  
That Vancouver's Island was erected into a separate Colony in 1849 under circumstances which would be collected from the annexed Charter or Grant of the Island to the Hudson's Bay Company the printed correspondence between the Colonial Office and the Hudsons Bay Company thereon the Governor's Commission and Instructions and the Act 12 and 13 Vict C 48 "to provide for the administration of Justice in Vancouvers Island":  
That it was presumed (subject to our opinion on the point) that Vancouvers Island was a Colony by occupation not by conquest:  
That the Commission granted to the Governor power, with the advice of the persons designated in the Instructions to constitute a Council to make and enact such laws and Ordinances as might from time to time be required for the peace Order and good Government of the Colony. It also gave power to the Governor, with the advice and consent of the Council to call together a General Assembly of freeholders qualified as therein specified, and with the advice and consent of the Council and Assembly to make laws and Ordinances &c:  
That the Council had been constituted agreeably to the Commission and Instructions:  
That no General Assembly had, as yet, been summoned and it might be assumed for the purpose of this case (although Her Majesty's Government had not distinct evidence on the subject before them) that the number of qualified freeholders in the Island was as yet extremely small, so as to render the summoning [of] such an Assembly a matter of much difficulty:  
That the question on which He (Mr Peel) was desired to request our opinion was, whether the Ordinance now submitted to us, passed by the Governor and Council alone could be legally assented to by the Crown and would have the force of law.  
In obedience to Your request, We have taken the said Ordinance in our consideration, and have the honor to Report:  
That the Act in question professes to be enacted by the Governor with the advice and consent of the Members of the Council and by the authority of the same. But the power of Legislation though expressed by the Letters Patent to be given to the Governor and Council is thereby directed to be exercised according to the Instructions under the sign Manual accompanying the Patent; and by those Instructions the power of Legislation is vested (as by Law it must be) in the Governor Council and General Assembly. We do not think therefore that the Ordinance or Act in question can be properly assented to by the Crown or that it would have the force of Law.  
We have the honor to be Sir
Your Most Obedient Humble Servants
A.E. Cockburn
Richard Bethell

The Right Honble Sir George Grey Bart. M.P.
Minutes by CO staff
Mr Merivale
Only two Acts have as yet been passed by the Govr viz—the one now reported on "to establish a Supreme Court of Civil Justice," and one to "prohibit the Sale of intoxicating Liquors." See 10117 Van Couver's Island.  
VJ
1 Jan/55
Mr Peel
As far as the ordinance to establish a supreme court is concerned, see my minute on 5295, which suggests a way of solving the difficulty. *
*
By charter & OC.]  
 
But the general question remains. It is hardly safe to allow a community so remote, however small in number, to live on without any power of legislation. Duties also have been raised by authority of the Council: how far this may be justified by necessity I know not.  
The same difficulty seems to have occurred in New South Wales: at least the Act 599.3. C 114 indemnifying the Governor for raising duties, seems to proceed on some such defect of legislative authority. **
**
Not a loose copy in the office.  
 
The same course might & perhaps must ultimately be pursued here: but in the mean time, must not the Governor be warned of the present illegality, and directed to call together an Assembly, be his materials what they may; unless Parliament is asked to provide otherwise?  
Asking Parliament involves a discussion of the whole H.B. Company question. That question now stands thus: In 1859 their license to trade with Indians West of the Rocky Mountains will expire, and the question of renewing it (if they ask for it) will necessarily arise. ***
***
After 13/Jan/54 grant resumable  
/C
In the meantime the grant of the island is now resumable by the Crown, (since 13 Jan. 1854) ****
****
License expires 1859.  
"if it be certified to the Crown, by any person appointed to enquire into the condition of the island, that a settlement has not been established." I think it very doubtful whether a settlement can in reason be said to have been established, when after 6 years no attempt has been made to call the people together to manage their own affairs, though this may be no fault of the Company's. It is also worth considering whether it is desirable the present state of things should longer continue, with Russia on one side of the little settlement & the U.S. on the other. But on the other hand, to depose the H.B.Co. will unavoidably entail some expense on the Home Government, for the place can hardly be in a situation to maintain itself.  
In connexion with this subject I forward a private letter placed confidentially in my hands.  
HM
Jan 8
I see no objection to the Crown using the power given it by 12 & 13 Vict c. 48. s 1. and in the way proposed by Mr Merivale.  
As regards power of legislation, I suppose from the language of this Report that the objection made by the law officers to this ordinance would not be removed by the issue of new Instructions under the Sign Manual, not at variance as the present ones are with the Govs Commission. I think it would be scarcely worth while to pass an Act of Parliament to provide a legislature for the Island, unless we resume the grant of it to the Company. We have power to resume at any moment that it can be shewn that there is not a Settlement of resident Colonists, Emigrants from the Queen's dominions: and unless the Company will Surrender the grants themselves (which is not improbable) I would advise that the Captain of one of the Queens Ships on the Pacific Station be at once directed to enquire into the condition of the Island, and to report upon the particular subject of a Resident Body of Colonists being or not established.  
If this course be not taken, nor Any steps adopted by the Crown for the better Govt of the Island until 1859 when the license to trade on the Continent Expires, I would recommend that a Representative Assembly be summoned without delay. But as I believe that a Council & Assembly are far too complicated & numerous a legislature for such an Insignificant place, I much prefer that the Island being first resumed by the Crown, a legislature should be Constituted by Act of Parliament Comprising Nominated & elected Members sitting together in one house.  
FP
12
As to the Ordinance constituting a supreme Court act on Mr Merivale's minute on 5295. As to the general question I agree with Mr Peel that it would be inexpedient to propose a Bill to Parlt for constituting a legislative body under present circumstances. I think too that the course he proposes of an enquiry by a Naval Officer on the Station is a right one to take. But considerable delay must intervene before such an enquiry could be completed & any action take place here upon it. In the absolute want of all legislative power it seems to me therefore that the Gov shd be informed of the difficulty wh has arisen & that he shd be directed immediately to constitute a temporary legislature by summoning an assembly.  
GG
13
I have written the above in the supposition that there is an urgent & immediate necessity for some local legislative body. If I am mistaken in this I shd prefer waiting the result of the enquiry. But the Govr must in any case be informed of the present illegality.  
GG
Sir George Grey
The only revenue raised in Vanc. Id so far as appears to be known here, is by a duty on public house, &c licences. See 6979. It occurred to me that such a measure though illegal as taxation might be legal as a police regulation. But we have not as yet given the Governor any instructions about it.  
The (assumed) Legislature has also passed an Act prohibiting the sale of intoxicating liquor to Indians (10,117). This again has waited for the general opinion respecting the power of the Legislature.  
I cannot help suspecting also that some customs duties are levied, though I have not been able to find proof of this.  
It is certain therefore that some risk is incurred by allowing this provisional & illegal state of things to exist. Any man fined for selling spirits to an Indian has his legal remedy, if the Law under which he has been fined has no authority.  
Perhaps with these considerations before you, you will decide (see minute on the other side) whether it is best to continue for a while to run this risk, or to direct the summoning an assembly at all hazard. Unless indeed you think that if the H.B.C will surrender their grant we can apply to Parlt.  
HM
Jan 22
See separate sheet.  
FP
23
As far as the collection of revenue is concerned, there is not in my opinion any urgent necessity for the summoning of a Legislature. The Company are able to collect a royalty upon the exports of Coal & timber, and to sell land at 20/ an acre. One of the Governor's despatches stated that upwards of 16,000 acres had been sold, and that there were considerable exports both of timber & coal. There are besides the Company's own resources. No customs duties that I know of are attempted to be levied. As the condition of the grant to the Company is that they shall defray the whole civil & military expenses of the Island, it is their business if they want to tax the Settlers to apply to the Govt on the subject of convening an elective Assembly.  
Other necessities of Govt can well afford to wait a little longer, before being legislated upon. As regards the sale of spirits to the Indians, it may be that the ordinance passed to prohibit it is ultra vires. But as the Company have within the Island an exclusive Right of trade with the natives, that Right not having been Revoked by the Crown, they can impose what prohibitions they please, and enforce them by such penalties as may be within their power. At the same time the Company has disclaimed more than once any exclusive privileges in respect to Indian trade within the Island.  
I also think a Council & Assembly for so small a place would be too Cumbrous a legislature: and that to wait for an Act of Parliament based upon a Report of a Commission of Enquiry would involve no very considerable delay.  
What I would propose is to appt one of the Naval officers as Commissioner, and to postpone the Introduction of any measure to next year. I would inform the Company that a Commission is about to be issued, under the Revocation Clause in their Charter: and also enquire whether having regard to the slow progress of the Settlement, they are disposed to surrender their grant at once.  
FP
23
Reserved by Sir George Grey for Mr S. Herbert.  
HM
Copy of so much of a Minute by Mr Sidney Herbert on a Despatch from Sir Geo: Clark, dated 30th Novr 1854 (1191 Cape) as relates to "6 Vancouver's Island."  
The same applies to the Vancouver's Island Papers which I herewith return. I[t] appears to me but prudent in addition to the steps recommended by Mr Peel to direct the summoning of an Assembly with a view retrospectively to legalize the informal Ordinances on which they have been hitherto acting; but the resumption of the territory, or the proposal to the Hudson's Bay Company to do so, ought to be decided for or against by my Successor.  
(Signed)
S.H.
Feb 24th '55
Other documents included in the file
  • Draft reply, Palmerston to Douglas, Confidential, 5 April 1855, discussing the legal invalidity of Douglas's act to establish a supreme court on Vancouver Island.  
  • Draft, Palmerston to Governor of the Hudson's Bay Company, 5 April 1855, forwarding copy of the letter and asking if the Company would consider abandoning the grant at the present time rather than in 1859 when it would normally expire.  
  • Draft, Colonial Office to Attorney General and Solicitor General, 12 April 1855, forwarding a draft Order in Council to establish a Supreme Court in the Colony and asking whether it might be submitted to Her Majesty in Council, in view of the opinion expressed in their letter.  
  • Lord Palmerston
    See Minutes on 3205 and 5295.  
    The "opinion" of the Law Advisers is not forwarded with these Papers: it was however simply to the effect that Laws cannot be made in Vancouver's Island without an Assembly: which makes it necessary to pass an Order in Council.  
    Query. Some Mistake here? The Form of order in Council is to be adopted.  
    P
    6/4-55
    It was a clerical error.  
    HM
Documents enclosed with the main document (not transcribed)
  • Draft "Order in Council for establishing a Supreme Court of Civil Justice in Vancouver's Island," no date (61 pages).  
  • Draft as approved attached to Council Office letter 312 of 56.  
 
Public Offices document:
Cockburn and Bethell to Grey, 28 December 1854, National Archives of the UK, 6, CO 305/5. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871. Ed. James Hendrickson and the Colonial Despatches project. Victoria: University of Victoria. http://bcgenesis.uvic.ca/getDoc.htm?id=V545LW01.scx. Accessed 18 September 2018. 

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