No. 16
Downing Street
2 September 1858
Sir,
In addition to what is contained in my despatch 1 transmitting you the Order in Council for the Government of British Columbia, your Commission and Instructions, and the instrument revoking the exclusive license of the Hudson's BayManuscript image Company in British Columbia, I wish to address you a few words on the legal position which you now fill and the nature of your immediate duties.
Your first duty will be to proclaim the Act of Parliament under which British Columbia was to be governed. This Act has already been sent you, and without any express directions as to the manner and time of making it known. Probably you have already made it public. ButIManuscript image I apprehend that no legal proclamation of it, so as to give it's provisions effect, could take place until you were yourself Commissioned as Governor. The formal proclamation of it must therefore be made as early as possible.
According to the opinion of lawyers in general, the colonists of a Territory circumstanced like British Columbia carry with them the law of England so far as it is applicable to their circumstances.ActsManuscript image Acts therefore done in accordance with the law of England will be substantially legal, although done before any regular authority was constituted there. But your own special authority to make regulations, or enforce them, for the preservation of peace and order, could only be created by the Act of the Crown, and cannot commence until you receive their Commission. You will therefore have doubtless been compelled by the necessity of the case to perform many acts, in accordance with the spirit ofyourManuscript image your instructions from myself, and my predecessors in this Department, but for which strict legal authority was wanting. It will be necessary to cover these by a Proclamation, having force of law under the powers with which you are invested, to indemnify yourself and those who have acted under your authority from legal proceedings.
You are therefore authorized to issue two Proclamations, of the same date with your assumption of the Government.
The one, which is rather matter of solemn form than ofabsoluteManuscript image absolute necessity, to declare the law of England prevalent throughout the Colony; subject, of course, to your own power of modifying it by law enacted by yourself when absolute necessity requires.
The other, to indemnify yourself and your subordinate Officers in manner aforesaid.
I send you by the present mail forms of both these Proclamations, 2 which you will be able to adapt to suit the exigencies of the case, if any change is required.
Almost the first point to which your attention will be directed will be the establishment of a Court or Courts of Justice, with the necessary machinery for the maintenance of law and order.
Her Majesty has issued a Commission to Mr Begbie, who will proceed by this or nextPacketManuscript image packet, as Judge of British Columbia.
His title, and duties, have not been more particularly specified, because they must be defined by yourself, after consultation with him, by such law as you may enact providing for the administration of justice.
It will also be essential that you should constitute juries. But as this is done by law in Vancouver's Island, you have a precedent ready at hand, and no further instructions are necessary for me.
Mr Manuscript image
Mr Begbie has been fully instructed that although invested with the very important Office of Judge, he will nevertheless have the kindness for the present at least to lend you his general aid for the compilation of the necessary laws and other legal business. This is the more proper duty of an Attorney General, and, should the Colony advance as seems at present probable, the services of such an Officer will no doubt be urgently required. But I have not yet thought myself authorized to advise the Crown to appoint one, until I hear from yourself as to the civil functionariesbestManuscript image best adapted to the present requirements of the Colony. I trust to receive your suggestions by the first opportunity.
From such intelligence as has reached me of the state of things in California, I have been led to believe that it would be of great service if the rights of miners could be briefly established and defined beforehand by law, instead of being left to grow up by mere custom or accident. But this is not a subject on which I have the means of assisting you.
Possibly you may find that such a body of regulations might be drawn up with the aid of a few intelligent persons selected fromamongManuscript image among the miners themselves, and in whom that body would have confidence.
With these few observations, I leave with confidence in your hands the powers entrusted to you by Her Majesty's Government. These powers are indeed of very serious and unusual extent. But Her Majesty's Government fully rely on your moderation and discretion in the use of them. You are aware that they have only been granted in so unusual a form on account of the very unusual circumstances which have called into being the Colony committedtoManuscript image to your charge, and which may for some time continue to characterize it. To use them except for the most necessary purposes, would be in truth to abuse them greatly. They are required for the maintenance of British law and British habits of order, and for regulating the special questions to which the condition and employment of the population may give birth. But the Office of legislation, in the higher and more general sense, should be left for the legislature which may be hereafter constituted, and which Her Majesty's GovernmenthopeManuscript image hope will be constituted at the first time consistent with the general interests of the Colony. And you will above all remember that the ordinary rights and privileges of British Subjects and of those foreigners who dwell under British protection must be sedulously maintained, and that no innovation contrary to the principles of our law can be justified except for purposes of absolute, and temporary necessity.
I will only add that although it has been judged prudent not to make the revocation of the Hudson's Bay Company'slicenseManuscript image license take effect until proclaimed by yourself, it is the particular instruction of Her Majesty's Government that you proclaim it with the least practicable delay, so that no questions, like those which have already arisen as to the extent and nature of the Company's rights can possibly occur.
I have the honor to be
Sir,
Your most obedient
humble Servant,
E B Lytton
Documents enclosed with the main document (not transcribed)
3
Manuscript image
Draft, Proclamation Having the Force of Law to Declare that English Law is in Force in British Columbia.
Manuscript image
Draft, Proclamation Having the Force of Law to Indemnify the Governor and Other Officers for Acts Done Before the Establishment of any Legitimate Authority in British Columbia. .
Documents enclosed with the main document (transcribed)
Manuscript image
Proclamation having the force of law to declare that English Law is in force in British Columbia.

Whereas by an Act of Parliament passed in the Session held in the 21st and 22nd years of Her Majesty Queen Victoria it was enacted that the territories therein described should be comprised within the Colony thereby created of British Columbia and it was further enacted that on theManuscript image proclamation of the said Act in British Columbia certain Acts which were passed in the 43rd year of His late Majesty King George the third and in the 2nd year of his late Majesty George the fourth and by which the law of Upper Canada was extended to certain parts of America therein mentioned should cease to have force in the said Colony of British Columbia or to be applicable thereto.
And whereas such proclamation of the said first mentioned Act was duly made on the [blank] day of the [blank] last.
And whereas by a Commission under the Great Seal of the United Kingdom of Great Britain and Ireland Her Majesty was pleased to appoint James Douglas to be Governor of British Columbia and to authorize the said James DouglasManuscript image by proclamation issued under the Great Seal of the said Colony to make Laws, Institutions and Ordinances for the peace order and good government thereof.
It is therefore hereby enacted and proclaimed by the Governor of British Columbia that the Civil and Criminal Laws of England as the same existed at the date of the said proclamation of the said Act and so far as they are not from local circumstances inapplicable to the Colony of British Columbia are and will remain in full force within the said Colony till such time as they shall be altered by Her said Majesty in Her Privy Council or by me the said Governor or by such other Legislative Authority as may hereafter be legally constituted in the said Colony and that such Laws shall be administered andManuscript image enforced by all proper authorities against all persons infringing and in favor of all persons claiming protection of the same Laws.
Manuscript image
Proclamation having the force of Law to indemnify the Governor and other Officers for acts done before the establishment of any legitimate authority in British Columbia.

Whereas large numbers of Her Majesty's subjects and others have resorted to and settled on the territory now comprised within the limits of this Colony before the establishment of any settled form of Government therein and it has been necessary to take steps for the establishment and maintenance of peace order and good government and for the protection of the rights of Her Majesty and forManuscript image the collection of a revenue from lands belonging to Her Majesty, some of which steps may not have been fully authorized in point of Law—and whereas by a Commission under the Great Seal of the United Kingdom of Great Britain and Ireland I James Douglas Governor of the Colony of British Columbia have been authorized by a proclamation issued under the Great Seal of the Colony to make Laws, Institutions and Ordinances for the peace order and good government of the same.
Be it therefore known to all whom it may concern that I the said James Douglas Governor of British Columbia do hereby in virtue of the Authority aforesaid enact and proclaim that every act matter or thing bonâ fide done and performed for any of the purposes aforesaid before the date of this proclamationManuscript image by me the said James Douglas or by any other person or persons acting under my authority or direction shall be deemed to be and to have been valid in Law and that I the said James Douglas and the said other persons shall be and hereby are severally and jointly indemnified freed and discharged from and against all actions, suits, prosecutions and penalties whatever in respect of any such Act, matter, or thing and that the same shall not be questioned in any of Her Majesty's Courts of Civil or Criminal Jurisdiction in this Colony.
And I do further enact and proclaim that any declaration in writing under the hand of the Governor or Officer administrating the Government of British Columbia to the effect that any Act matter orManuscript image thing specified therein was done or performed for any of such purposes or under any such direction or authority as aforesaid shall for the purposes of this proclamation be conclusive evidence of the matters stated therein and shall be a sufficient discharge and indemnity to all persons mentioned in the said declaration in respect of the act matter or thing specified therein.
Footnotes
  1. See Lytton to Douglas, No. 1, 2 September 1858, CO 398/1, p. 53 ; Lytton to Douglas, No. 2, 2 September 1858, CO 398/1, p. 54 ; and Lytton to Douglas, No. 3, 2 September 1858, CO 398/1, p. 55 .
  2. Drafts of these proclamations appear in CO 398/1, p. 80. Check page ref
  3. Note that the following enclosures did not appear in the RG7G8C/6 collection, so these link to the letter-book copies in the 398/1 collection.
People in this document

Begbie, Matthew Baillie

Douglas, James

Lytton, Edward George Earle Bulwer

Victoria, Alexandrina

Places in this document

British Columbia

Vancouver Island

Lytton, Edward George Earle Bulwer to Douglas, James 2 September 1858, LAC RG7:G8C/6, 143. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871, Edition 2.2, ed. James Hendrickson and the Colonial Despatches project. Victoria, B.C.: University of Victoria. https://bcgenesis.uvic.ca/B587016.html.

Last modified: 2020-12-02 13:40:34 -0800 (Wed, 02 Dec 2020) (SVN revision: 5008)