Cockburn and Bethell to Merivale (Permanent Under-Secretary)
Temple
Feby 19th 1856
Sir
We were favored with Your Letter of the 12th April 1855 in which You stated that You were directed by the Secretary of State for the Colonies to submit to us the annexed Draft of an Order in Council to establish a Supreme Court of Civil Justice in Vancouvers Island, and to request that We would favor him with our opinion whether the same might be submitted to Her Majesty in Council for approval.  
That You was to refer us to our letter of the 28th Decr 1854, in which We reported that an Act passed by the Governor and Council of the Island (of which you annexed copy) for establishing a Supreme Court of Civil Justice was invalid, the Governor and Council not possessing, in our opinion the legal power to make laws for the Islands.  
That under these circumstances, the Secretary of State proposed to have recourse to the power given to the Crown by the Act of Parliament 12th & 13 Vict Cap 49 "to provide for the administration of Justice in Vancouvers Island," and to cause an Order in Council to be made constituting a Supreme Court of Civil Justice with provisions as nearly answering to those of the invalid Act as circumstances would admit, and adding clauses to regulate appeals from its decision to the Queen in Council.  
That it had not been thought advisable at present to give the Court Criminal Jurisdiction, because sufficient Information had not been received as to the provisions which would be required: but the Governor had been directed to furnish the requisite information so that such provisions might be embodied, if necessary in a supplementary Order in Council. You was to observe that it had been usual, in establishing Supreme Courts in Colonies, to do so by Charter, not by Order in Council (although there were instances of the latter). But it had been thought better subject to our opinion, to adopt the form of an Order in Council in the present case: the object being rather to supply a defect arising from the imperfect constitution of the Legislative Body, which would by section 2 of the Act, when properly constituted have power to amend and alter the provisions made by the Crown: and also because under Sect. 3, it was necessary that the appeal should be established by Order in Council, which must have been done separated had the form of a Charter been adopted.  
In obedience to Your request We have considered the question submitted to us and have to report.  
That we concur in the reasons stated in Your Letter for adopting an Order in Council for establishing a Supreme Court of Justice in Vancouvers' Island.  
We have read and considered the proposed Order and have noted in the margin of the Copy signed with our Initials such observations as have occurred to us, and the Chief of which we will now shortly advert to.  
If an Order in Council is adopted, nothing can be done which does not fall within the compass of the powers given by the 1st section of the 12th & 13th Vict. Cap 48. But such powers do not enable the Crown to change or depart from any fundamental rule in the administration of Justice, as observed in the Courts of Law in the United Kingdom. We do not think therefore that it would be competent in the Crown (acting under the Statutory power) to dispense with the rule requiring Juries to be unanimous.  
In the next place, We think it desirable that Jurisdiction, equivalent to the Jurisdiction now exercised by the High Court of Chancery in matters of Equity, and by the Ecclesiastical Courts in matters of Testacy and Intestacy, and also in matters relating to Marriage and Divorce, should be conferred on the Supreme Court; and that clauses, such as are commonly inserted in Charters establishing Colonial Courts of Judicature, be inserted for that purpose.  
The next subject is that part of the Order by which it is proposed to give an appeal from the Supreme Court to the Governor in Council.  
If the proceeding be by Order under the 12 & 13 Vict. C 48, we think it very doubtful whether there is power to establish any such intermediate Court of Appeal. The Act expressly declares (see Sect 3) that all Judgments given in any Civil Suit in the said Island shall be subject to appeal to Her Majesty in Council.  
The proposed intermediate Court of Appeal can hardly be so constituted as to be a competent and satisfactory Tribunal.  
We recommend therefore that this provision be omitted.  
Subject to these observations and to the marginal remarks made in the Draft, We think the Order in Council is proper to be submitted to Her Majesty in Council for approval.  
We are Sir
Your Obedient Servants,
A.E. Cockburn
Richard Bethell

H. Merivale Esqre
Minutes by CO staff
Mr Merivale
 
ABd
20 F
Returned to me, probably by mistake, this day.
 
ABd
14/3
Other documents included in the file
  • Draft, Colonial Office to Lord President of the Council, 5 March 1856, requesting that the order be submitted "for the approval of Her Majesty in Council."  
 
Public Offices document:
Cockburn and Bethell to Merivale (Permanent Under-Secretary), 19 February 1856, National Archives of the UK, 1652, CO 305/7. 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=V565LW01.scx. Accessed 21 November 2017. 

Last modified: 16:04:57, 2/4/2015