No. 79
15 May 1861
I have received your despatch No. 11 of the 6th of February 1861 last, enclosing authenticated copies of four Proclamations issued by you in March, April and May 1860.
I have in the first place to observe that these Proclamations ought to haveManuscript image been forwarded at a much earlier period. And I should wish you on future occasions to transmit authenticated copies of all Loans if possible by the first opportunity after they have been passed. They are also without any marginal abstract; one of them has no title, and though I am quite aware that the same accuracy is not attainable in legislating for an unformed society as in laws framed and interpreted by practised Lawyers in an old Country,yetManuscript image yet I am of opinion that some of the laws now forwarded are more loosely drawn than is warranted by the circumstances of British Columbia.
It may be very proper that the Jurors Act (No. 1) should repeal all property qualification for Jurors, and that in case of necessity the Sheriff should be at liberty to summon persons not being British Subjects. But I think that some provision should have been made for forming a JurylistManuscript image list and for requiring the Sheriff to summon the persons on that list according to some fixed rule. Unless this is done the community has no security the Juries are fairly chosen.
Again I think it would probably have been desirable to make it requisite that every Juryman should be able to read and should not be known to have been convicted of treason, felony or any infamous crime.
If there is any difficulty in procuring a sufficient number of Jurors, I see noreasonManuscript image reason for retaining in any case the the British number of 12. I think the number of an ordinary Jury might very properly be reduced to nine, and under special circumstances even to seven. And it might be further provided that if after a certain period of deliberation (say four hours) any Jury is unable to agree the Judge may receive the verdict of six Jurors in a Jury of 9 or Five Jurors in a Jury of seven.
I see no objection totheManuscript image the Sheriffs Act No. 2.
No. 3 described by you as passed to facilitate the Trial of Criminals (but which has in fact no title) empowers the Judge to try where he pleases any person charged with any offence "whether in custody or not" upon such notice of trial as he (the Judge) shall in each case think fit.
The strict explanation of this Law given by the Attorney General is quite insufficient to explain its alarming laxity. It appears to enable the Court to try any alleged offender,inManuscript image in his absence, in a place to which that offender cannot without the greatest inconvenience resort, and with such notice as may virtually amount to no notice whatever. Under such a law, if I rightly interpret it, no man would be safe from being tried and condemned, without the possibility of defending himself, by a precipitate or hostile Judge. I fully recognize the advantage of expedition in the administration of criminal justice, and am much indisposed to insist on any technical rule whichwouldManuscript image would cause delay; but I have been unable to advise Her Majesty to leave in operation a law which would place her subjects so completely at the mercy of a Tribunal acting in this respect without fixed rules. Her Majesty has been pleased on this account to disallow this proclamation. You will publish this dis-allowance in the usual and most authentic manner.
You will not re-enact the law without providing adequate security, first that no accused person shall beputManuscript image put on trial in any place to which it is manifestly inconvenient to him to resort, secondly, that no accused person shall be put on his trial in his absence unless he has actually been in custody and has been released on a written engagement to appear or take his trial, and thirdly that no person shall in his absence be sentenced to more than a certain limited penalty.
I have not thought it necessary to advise the dis-allowance of the "Town Lot Releases Act" under thepeculiarManuscript image peculiar circumstances under which it has been passed. But it will require material amendment. Under this Proclamation a person claiming any land within the districts there mentioned may bring his claim before the Supreme Court with an account of the transactions regular or irregular, through which he derives his title. If on examination the court affirms that title, the claimant is to receive a conveyance of (s4) of the Land from the Crown. And the order on whichthisManuscript image this conveyance if founded will (as I understand) be a complete bar to any action against the grantee (s7) in respect to the land so conveyed to him. The rights therefore of all counterclaimants are absolutely extinguished. If due provision could be made that all such counterclaimants whether resident or absentee should have knowledge of this intended conveyance and an opportunity of opposing its issue the above enactments would be unobjectionable. But the provisions for this purpose are mostManuscript image imperfect. They are as follows:
1. Notice is to be served on every person named in the petition as having at any time claimed title to the land in question, and having a known residence in the Colony.
2. No provision at all is made respecting claimants resident in the Colony who are not named in the petition, and then
3. Persons having formerly so claimed title to the lands and not having a known residence in the Colony aretoManuscript image to have "such substituted notice of the said petition as the Court in each instance shall deem sufficient."
The second class of persons therefore will find their interests extinguished without having had any notice whatever of the proceedings which have led to that result. And the persons in the third class (residents perhaps in England or Canada) will find themselves in the same situation having only had such "substituted notice" (which may or may not be sufficient for itsManuscript image purpose) as the Judge may have been content to order.
The protection given to all these classes of persons is I think insufficient and should be increased.
A Conveyance issued under this Proclamation may perhaps not improperly be held conclusive against all persons who have had actual notice of the petition on which each conveyance is founded by the grantee, in time to have asserted their rights before the Court if they had chosen to do so.ButManuscript image But twenty one days notice is manifestly insufficient for that purpose. Three months at least should intervene between the service of the notice and the issue of the conveyance and during all that period the persons interested in the land should remain at liberty to oppose the issue of the conveyance.
This object might be effected either by a Rule of Court or by adding a proviso to the 4th clause of the Ordinance.
I think in order as far as possible to meet the caseofManuscript image of claimants of the second class, that is to say of persons resident in the Colony but not named in the petition, every such petition should be advertized two or three times in the Colonial Newspaper in which it is most likely to attract notice and registered in some book known to contain all such petitions and accessible to the public.
And in order to meet the case (especially) of counter claimants of the third class, I think that such claimants as cannot be shown to havereceivedManuscript image received actual and timely notice of the petition, should retain their rights against the Land for two years after the issue of the Conveyance, and should retain a personal claim upon the grantee for the value of the land for (say) six years from the same date. Thus the owner of the land will be able to make a good title to it (which is the object in which the public interest is concerned) two years at latest after the Conveyance is issued.
Some provision ofthisManuscript image this kind appears to me most calculated to combine the two somewhat inconsistent objects of facilitating the transfer and settlement of land, and of affording due protection to latent interests.
Finally I think the Proclamation should be limited in its duration. I have no objection to this stringent mode of legislation as a mode of clearing the ground in order to establish an effective Registration of Titles. It is an exceptional law rising out of an accidentalandManuscript image and temporary necessity. But if it is allowed to become part of the law of the Colony, it will encourage the very irregularity which it is intended to remedy. Confusion and uncertainty of titles can only be prevented in the long run by making it for the interest of individuals to take care that their titles are clear and regular. And this again can only be accomplished by allowing those who are irregular to suffer for their irregularity.
ThoseManuscript image
Those therefore who do not take advantage of the Proclamation before a fixed period say April 1862, should be excluded from its benefit, and every possible means should be adopted after establishing an accessible system of Registry, to impress upon the Colonists the conviction that they must avail themselves of that system, and will not again be rescued from the consequences of their neglect by any exceptional legislation.
I have only to addthatManuscript image that I shall communicate to you Her Majesty's confirmation of the Jurrors Act and the Sheriffs Act after they have been laid before Parliament for the usual time. Her Majesty's decision on the Town Lot Leases Relief Act will be suspended till the alterations which I have indicated are made.
I have the honor to be,
Sir,
Your most obedient
humble servant,
Newcastle
People in this document

Douglas, James

Pelham-Clinton, Henry Pelham Fiennes

Places in this document

British Columbia

Pelham-Clinton, Henry Pelham Fiennes to Douglas, James 15 May 1861, LAC RG7:G8C/9, 459. 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/B617079.html.

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