No. 86
10th July 1867
My Lord Duke,
I have had the honor to receive Your Grace's despatch No. 5 of the 14th March, on the subject of the Judiciary arrangements to be made in consequence of the Union ofVancouverManuscript image Vancouver Island with British Columbia.
2. Your Grace states that the Act of Parliament under which these Colonies were united was not intended to touch titles, jurisdiction, powers and position of the Judges and that it appears to Your Grace not to have touched them. Therefore Mr Needham is still Chief Justice of Vancouver Island with all the same powers and authority that he had before the Act passed.3. ButManuscript image
3. But since doubts have arisen as to Mr Needham's position, and as, on the mainland, so meritorious a Public Servant as Mr Begbie should not suffer any loss of importance by the amalgamation of the Colonies, Your Grace directs me to apply for Legislative aid to settle the positions of the two Judges. Both are to have the title of Chief Justice. The one having precedence on the mainland. The other on the Island. ShouldaManuscript image a vacancy occur, the remaining Judge to have the title of "Chief Justice of British Columbia" and a Puisne Judge to be appointed under him for the whole Colony. Jurisdiction to be given to each Chief Justice over every part of the Colony of British Columbia as now constituted.
4. I need not say how anxious I am to carry Your Grace's instructions into effect, but I meet with difficulty at every step and Judges are notofficersManuscript image officers I should wish to coerce.
5. Being at New Westminster at the time of the receipt of Your Graces's despatch I sent first for Mr Justice Begbie. He professed his willingness to assist me in every way in obeying Your Grace's orders. He was ready, though reluctant, to accept a title which though conferring a higher rank seemed to him to diminish the jurisdiction of his Court. He did not see how, if the OrderinManuscript image in Council of 1856 were still in existence, he could be appointed a Judge under it without a Warrant under the Royal Sign Manual and a Commission under the Public Seal of the extinct Colony of Vancouver Island. Further, that if the Orders in Council of 1856 were still in force, the "Supreme Court of the Colony of Vancouver Island" now subsists in entire independence of the existing Legislature and Executive. But I will allow Mr Begbie to speakforManuscript image for himself in the Extracts from a Minute by him which I enclose.
6. I then spoke to Mr Needham. He seemed pleased that Your Grace was of opinion that his powers and position were unchanged by the Act of Union. But if he was expected to act as a Puisne Judge under Mr Begbie, he would not do it. He would receive no further Commission from me. He would stand upon the Orders in Council of 1856. He repudiated the Authority of the Local LegislaturetoManuscript image to make Laws to effect his Court. I annex a judgement recently given by Mr Needham to the above effect. With one Judge, anxious to conciliate yet adverse to accept the distinction of title offered, who held the opinion that if the Court of Vancouver Island exists at all, he could not be appointed a Puisne Judge of it without the Sign Manual and the revival of an apparently extinct Seal and who further was persuadedthatManuscript image that in the above supposed case the Local Legislature could not give me the aid suggested by Your Grace, I began to hesitate in applying to the Council for assistance. But when I found that the other Judge would accept of no compromise and distinctly repudiated the Authority of the Local Legislature to interfere, I felt that I must, though with great reluctance, fall back upon Your Grace for further instructions.7. ItManuscript image
7. It may perhaps under the circumstances be immaterial to state that the Legislative Council is not now in session.
8. Before troubling Your Grace, however, I referred for the advice of the Attorney General. I enclose the report with which he has furnished me. He also thinks a local settlement of the question impossible. [He] Prays for the opinion of the Law Officers of the Crown and forcibly points out the dangers of the presentstateManuscript image state of uncertainty with the prospect ahead of all the sectional bitterness of this divided Colony breaking forth in the next Session of the Legislature. I beg to call Your Grace's particular attention to this letter.
9. As for myself I stand as much aloof from the whole matter as I can. The burdened Colony still bears the expense of two separate Supreme Courts. Both JudgesproceedManuscript image proceed according to their own judgement without any interference, and both are by Courtesy called Chief Justice, though Mr Begbie has not accepted the appointment of Chief Justice of the Mainland, and though I cannot free my mind of the doubt as to whether the Proclamation of Union did not sweep away Mr Needham and his Court.
I have the honor to be,
My Lord Duke,
YourManuscript image Your most obedient
humble Servant
Frederick Seymour
Minutes by CO staff
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Mr Holland
See also 8563.
CC 2d Septr
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Sir F. Rogers
Mr Needham, Mr Begbie (the 2 Judges) & the Attorney General oppose the scheme proposed in the Despatch to the Governor of the 14th March (1949). Not one of these gentlemen, however, takes notice of the Colonial Laws Validity Act (28 & 29 V. c. 63)Manuscript image by which a Colonial Legislature is empowered to abolish & re-constitute Courts, & make provision for the administration of justice.
It appears to me that the scheme proposed was perfectly fair & met the difficulties of the case; & that it can be worked out by the Colonial Legislature under the powers of the Imperial Act.
I have sketched out, & send on for your consideration a draft ordinance to carry out that scheme.
Looking, however, to the doubts raised in the Colony as to the effect of the British Columbia Act 1866 upon the "Supreme Court of the Colony of Vancouver Island" (upon which question the opinion of the Law Officers is desired) I am inclined to think that the provisions of the 1st section of the draft Ordinance had better be carried out by an Imperial Act.
I wd suggest that the draft Ordinance should be sent out to the Governor, not necessarily to be passed in its present shape, as improvements may be suggested by those who have a practical knowledge of the working of these Courts & of local requirements, but as a sketchManuscript image of what His Grace desires to see carried out, and the Governor might be informed that though H.G. retains the view which he has before expressed, as to the effect of the British Columbia Act, he is prepared to have all doubts upon this point set at rest by Imperial Legislation.
HTH 9/9
Documents enclosed with the main document (not transcribed)
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Memorandum, M.B. Begbie, 29 May 1867, advising of the difficulty of complying with imperial instructions regarding disposition of the chief justiceship in the colony.
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Newspaper clipping, unnamed, 10 July 1867, describing a case before the Supreme Court in which Needham repudiated the effect of the union upon his court.
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Memorandum, H.P.P. Crease, Attorney General, to Seymour, 24 June 1867, expressing his views on the judiciary of British Columbia
Other documents included in the file
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Sketch of ordinance for regulating the Supreme Courts of Justice of British Columbia, 9 September 1867.
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Colonial Office to Attorney General and Solicitor General, 18 October 1867, calling attention to certain questions with regard to the courts of British Columbia.
Minutes by CO staff
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Mr Holland
What do you say to this. Fortified with the opinion of the L.O. I would send out to the Gov. your draft Ordce and leave the Gov. & others to pass it (wh of course he can if he chooses) or to find his own way thro' the difficulty.
FR 16/9
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I detained this expecting to be able to solve the difficulty by withdrawing Mr Needham to another colony, but not having been able yet to decide—proceed as drafted.