Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Despatch to London
Douglas, James to Pelham-Clinton, Henry Pelham Fiennes 6 February 1861, CO 60:10, no. 3008, 64.
Abstract
Despatch to London.
Minutes (4), Enclosures (untranscribed) (2), Other documents (2), Marginalia (1).
Douglas forwards Newcastle copies of four proclamations from
British Columbia: No 1.
Jurors Act 1860; No 2.
Sheriffs Act 1860; No 3.
An Act to facilitate the Trial of Criminals; No 4.
The Town Lot Leases Relief Act 1860.He includes a report from the colony's attorney general which
further [explains] the character and object of those Acts.Rogers provides a lengthy critique of the proclamations in the minutes, paying particular attention to
An Act to facilitate the Trial of Criminals,which, he argues, if approved, would mean that
no man could be saved from being tried & condemned behind his back by a precipitate or hostile judge.The minutes show that this proclamation would be disallowed.
No. 11
6 February 1861
I have the honour to transmit herewith, Copies of the
following four Proclamations entitled as under, and numbered
from 1 to 4, namely:
No 1
No 1. "Jurors Act 1860."
No 2. "Sheriffs Act 1860."
No 3. "An Act to facilitate the Trial of Criminals."
No 4. "The Town Lot Leases Relief Act 1860."
These acts are registered.
No 1. "Jurors Act 1860."
No 2. "Sheriffs Act 1860."
No 3. "An Act to facilitate the Trial of Criminals."
No 4. "The Town Lot Leases Relief Act 1860."
2. The three first of those Acts have been found requisite
in the present condition of the Colony of British Columbia for
the due and regular administration of Criminal Justice; and
the other Act, No 4, is intended forthe
the relief of many holders
of Building Lots in the Towns of Hope, Yale, Douglas, and Lytton,
from the effects of certain legal informalities in the conveyance
of those estates, which, notwithstanding their having been
honestly acquired, put it out of the power of Government to
complete the Titles of the present holders.
the relief of many holders
of Building Lots in the Towns of Hope, Yale, Douglas, and Lytton,
from the effects of certain legal informalities in the conveyance
of those estates, which, notwithstanding their having been
honestly acquired, put it out of the power of Government to
complete the Titles of the present holders.
3. The accompanying Report from the Attorney General will
further explainthe
the character and object of those Acts, and I
trust they will meet the approval of Her Majesty's Government.
the character and object of those Acts, and I
trust they will meet the approval of Her Majesty's Government.
Minutes by CO staff
Mr Fortescue
It is not to be expected in a country circumstanced like B. Columbia that matters can or need be conducted with the regularity wh is necessary & practicable in a large & settled community. The Laws therefore passed in that Colony are not to be scanned very critically. But on some points I think that more precision wd be attainable, & it wd therefore be well, while approving the Proclamations in general terms to notice points in which they appear to require amendment.
It is not to be expected in a country circumstanced like B. Columbia that matters can or need be conducted with the regularity wh is necessary & practicable in a large & settled community. The Laws therefore passed in that Colony are not to be scanned very critically. But on some points I think that more precision wd be attainable, & it wd therefore be well, while approving the Proclamations in general terms to notice points in which they appear to require amendment.
1. No 25. The Jurors Act. It may be very proper to
remove the qualifn of property and to allow the Sheriff
to summon at his discretion persons not being British
subjects to serve upon juries. But I think some provision
should be made if possible for forming a Jury list—and for
requiring the Sheriff
to summon Jurors (being British subjects)
according to some fixed rule.
to summon Jurors (being British subjects)
according to some fixed rule.
It is for the consn of the Govr whether it mt
not be desirable to make it necessary that a juryman should be
able to read and shd not be known to have been convicted of
felony or any infamous crime.
The Govr mt be authorised if he thought fit to
reduce the number of persons composing a jury to nine and to
provide that after deliberation of four hours the verdict in
which six jurors concurred should be received.
No 26. Judge (if necessary) may appoint persons to act as
Sherriff pro re ratâ.
High Sheriffs to hold Office during Govrs pleasure—No observation.
No 27. Empower the Judge to try when he pleases, any
person charged with any offense
whether in custody or not—upon such
notice of Trial as he shall in such case deem expedient.
whether in custody or not—upon such
notice of Trial as he shall in such case deem expedient.
With every possible desire to deal liberally with experimental
Legislation it is I think impossible to avoid the disallowance of
a Proclamation which wd enable a judge "on such notice as he mt"
(not "by any general rule prescribe" but) "in such case
deem expedient"—to try any alleged offender in any place and
in his absence.
Under such a law no man could be saved from being tried
& condemned behind his back by a precipitate or hostile judge.
I think that the carelessness wh whh this Law has been
framed deserves notice.
No 28. This is intended to give validity—or rather to
enable the Court to give validity to certain irregular transfers of
real property wh have taken place in B. Columbia, as they
will
of course take place in every country wh is occupied in the same irregular way.
will
of course take place in every country wh is occupied in the same irregular way.
I think the Proclamation may be allowed to remain in
force—I would say however that though the D. of N. did not
think it necessary to disallow it under the peculiar circumstances under
which it was passed, he felt serious doubts whether it afforded
sufficient protection to the interests of persons having claims
on the property wh did not appear on the affidavit of the
claimant or wh for any other reason was not sufficiently before
the court and that H.G. wd feel obliged to advise the
disallowance of the Proclamation unless it were so modified as
to remove this objection either by an absolute saving of all such
rights or by some other equitable method—also that the Procln
ought to be accompanied by a further Law providing some easy
mode of Registering Transactions affecting Land wh would remove
the temptation to such irregular modes of proceeding hereafter.
The present law will afford that temptation to perjury wh
the Statute of Frauds (wh it supersedes) was passed to remove.
Documents enclosed with the main document (not transcribed)
List of documents enclosed with Douglas's despatch. [Documents do not appear in file.]
Other documents included in the file
Draft reply, Newcastle to Douglas, No. 79, 15 May 1861,
complaining that copies of proclamations which Douglas had signed between March and May 1860
should have been sent to the Colonial Office sooner, and been sent with abstracts. This draft offers
Douglas a lengthy critique of the laws he has submitted for approval, and disallows
An Act to facilitate the Trial of Criminals,which is described as having been crafted with
alarming laxity.
Minutes by CO staff
This is rather long but I think the legal department in B.
Columbia wants a little admonition and a law likely to introduce
confusion in titles or to confiscate property is a serious matter.
1st Is the Juror's Act to be Confirmed?
2ly The Trial of Criminals Act is to [be] disallowed.
Should it be laid before Parlt, as well as Acts which are allowed?
