Selwyn and [Kaulabe?] to Buckingham
Temple
11th November 1867
My Lord Duke,
We are honored with Your Grace's commands, signified in Mr Elliot's letter of the 18th ultimo, stating that he was directed by Your Grace to bring under our notice certain questions which have arisen respecting the relative positions of the Judge of British Columbia and the Chief Justice of Vancouver's Island, and to request that we would take the matter into our consideration.
MrManuscript image
Mr Elliot was also pleased to state that the 1st section of the Act 12 & 13 Vic: cap: 48 enabled the Crown to establish Courts of Justice in Vancouver's Island, and the second section declared that as soon as a Local Legislature should be established in that Colony it should be lawful for such Legislature to alter the constitution and jurisdiction of these courts.
That by Order in Council dated 4th April 1856 the Queen established the Supreme Court of Civil Justice of the Colony of Vancouver's Island consisting of a Chief Justice.
That by a Commission dated16thManuscript image 16th May 1851 the Governor was empowered to summon an Assembly and with the advice of a Council and Assembly to make Laws. And that thereupon a Local Legislature on this footing was constituted.
That subsequently to the establishment of the Colony of Vancouver Island the Colony of British Columbia was established, a Legislature and Supreme Court were constituted, and a judge appointed with the expectation of receiving the title of Chief Justice.
Mr Elliot was pleased to annex a Copy of the Order in Council constituting the Legislature of BritishColumbiaManuscript image Columbia, and further to state that by the Act 28 and 29 Vic: cap: 63, SS 5, it was enacted that every Colonial Legislature should have full power within its jurisdiction to establish Courts of Judicature and to abolish and reconstitute the same and to alter the constitution thereof and to make provision for the administration of Justice therein.
That by the British Columbia Act 1866, 29 and 30 Vic: Cap: 67 the Governor of British Columbia was authorized by proclamation to unite the Colony of Vancouver's Island with the Colony of British Columbia which was eventually done. That by the4thManuscript image 4th Section of the same Act it was declared that on the Union the authority of the Executive Government of British Columbia should extend to Vancouver's Island, and by the 5th that after and notwithstanding the Union the laws in force in British Columbia and Vancouver's Island should with a single exception there specified remain in force until otherwise provided by lawful authority as if that act had not been passed.
That when the Union took effect the Judges, as will be seen by the annexed correspondence, disagreed between themselves and with theGovernorManuscript image Governor, with regard to the positions which they ought respectively to occupy in the United Colony and as the best mode of satisfying their claims it was decided by Your Grace that so long as they both retained their office, each should be Chief Justice of that part of the Colony to which their jurisdiction had theretofore extended, but that the Chief Justice of Vancouver's Island should be legally competant to act (virtually) as Puisne in British Columbia and vice versâ. That on a vacancy this anomalous arrangement is to cease and there is to be one Supreme Court composed of a ChiefJusticeManuscript image Justice and Puisne.
That with this the Judges are not satisfied.
That it will be seen by the Governor's despatch No 86 of 10th July 1867 that the Governor and his Attorney General, notwithstanding the 5th section of the British Columbia Act 1866 are of opinion that the Order in Council of 1856 which constituted the Supreme Court of Vancouver's Island is repealed by some unspecified part of that Act, and therefore that the Supreme Court of Vancouver's Island no longer exists.
That on the other hand the ChiefChiefManuscript image Justice of Vancouver's Island, notwithstanding the 2nd section of 13 and 14 Vic: cap: 48, notwithstanding the general powers of Legislation in the Legislature of British Columbia recognized by the 6th Section of 29 and 30 Vic: cap: 67 and perhaps in ignorance of the Act 28 and 29 Vic: Cap: 63 maintains (vide enclosure No 2 to despatch No 80) that no power is vested in the Legislative body of British Columbia to alter or touch the constitution of his Court in Vancouver's Island.
Lastly That the Judge of British Columbia raises a variety of questions of detail respecting themodeManuscript image mode in which the proposal of Your Grace is to be carried into effect.
Mr Elliot was further pleased to state that under these cicumstances he was directed to request our opinion:
1. Whether the Supreme Court of Civil Justice of the Colony of Vancouver's Island continues to exist notwithstanding the passing of the British Columbia Act 1866.
2. Whether there is any doubt respecting the power of the Legislature of British Columbia to make laws abolishing, reconstituting or altering the constitution of the last mentionedCourtManuscript image Court.
3. Whether the annexed draft Ordinance will if passed by the Legislature of British Columbia give effect to the intention of Your Grace and whether it is open to objection on any of the grounds indicated by Mr Begbie or on any other grounds.
In obedience to Your Grace's commands, we have taken this matter into consideration, and have the honor to Report
That we are of opinion 1st That, although the question is not entirely free from doubt, the Supreme Court of Civil Justice of the Colony of Vancouver's Island continued toexistManuscript image exist notwithstanding the passing of the British Columbia Act 1866.
2. We do not entertain any doubt respecting the power of the Legislature of British Columbia to make laws abolishing reconstituting or altering the constitution of the last mentioned Court.
3. We think that the accompanying draft Ordinance will, if passed by the legislature of British Columbia, give effect to the intention of Your Grace, and that it is not open to objection on any of the grounds indicated by Mr Begbie or on any other grounds.
We would suggest thatprovisionManuscript image provision should be made by the same Ordinance or by some other Ordinance to be passed as soon as possible, for the payment of the Salaries of the Judges and for making the same charges upon the revenues of the new Colony, and for any alterations in the Seals of the two Courts, the forms of process &c which may become necessary by reason of the Union of the two Colonies.
A clerical error exists in clause 4 to which we have drawn attention in the margin.
We have the honor to be,
My Lord Duke,
Your Grace's most obedient
humble Servants
John B. [Kaulabe?]
C.J. Selwyn
Minutes by CO staff
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CC 12 Nov
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Sir F. Rogers
This opinion of the L. Officers is entirely satisfactory. Proceed now, as you suggested (8561), & send out the draft Ordinance (statg I suppose that it has been settled by the L. Officers) & leave the Govr to pass it. Would it not also be well to state that a short ordinanceManuscript image should be passed or a clause added to this draft ordinance explaining the phrase which has been adopted in the recent ordinance "Supreme Court of Civil Justice of B. Columbia" & declaring which Court in each case is to be taken as referred to.
There is a mail on the 16th, & I have to save time drafted for consideration.
HTH 12/11
Documents enclosed with the main document (not transcribed)
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"Sketch of Ordinance for regulating the Supreme Courts of Justice of British Columbia."
Other documents included in the file
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Draft reply, Buckingham to Seymour, No. 81, 13 November 1867 informing Seymour of the Law Officers’ answers to the legal questions surrounding the union of Vancouver Island and British Columbia and two chief justices existing in the same colony and transmitting a proposed ordinance for settling the judicial issues resulting from uniting the colonies.
Selwyn, C. J. and Kaulabe, John B. to Grenville, Richard 11 November 1867, CO 60:30, no. 11034, 238. 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/B675LW01.html.

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