Selwyn and [Kaulabe?] to Buckingham
Temple
December 31st 1867
Lord Duke,
We are honored with Your Grace's Commands signified in Sir Frederic Rogers's letter of the 22d day of November ultimo, stating that he was directed by Your Grace, to transmit to us a Copy of an Ordinance passed by the Legislature of British Columbia entitled "An Ordinance respecting Harbour and Tonnage dues and to regulate the Licenses on the Vessels engaged in the Coasting and Inland Navigation Trade" and to call attention to the provisions of Sectn 5 by which the Governor in Council is authorized under special circumstances to license foreign bottoms for the coasting Trade of British Columbia.
And that he was also directed to call our attention to Sectns 163, 190 and 320ofManuscript image of the Customs Consolidated Act 16 & 17 Victa C. 107 and also to Sectn 15 of 20 & 21 Victa c 62, and to request that we would favour Your Grace with our opinion whether the Colonial Legislature have power, under Sectn 15 of the last mentioned Act to admit by local Ordinance foreign bottoms to the Coasting Trade, or whether it is necessary for them to proceed in the manner pointed out by Sectn 328 of the former Act and whether this part of the Ordinance is or is not repugnant to the imperial Act.
Sir Frederic Rogers was pleased further to state that the Ordinance had been under the consideration of the Board of Trade and that it would be seen from the Letter, of which a Copy was enclosed, that they entertain considerable doubts as to the legal effect of those several Clauses.
Sir Frederic Rogers was also pleased to transmit to us the Copy of another letter lately received from theManuscript image Board of Trade, and to request that we would inform Your Grace whether we perceive any objection to the proposed repeal of the 163rd and 328 Clauses of 16 and 17 Victoria C 107.
In Obedience to Your Grace's Commands we have considered the questions submitted to us and have the honour to Report
That in our opinion the Colonial Legislature have not power under Sectn 15 of the 20 and 21 Victoria c 62 to admit by local Ordinance foreign bottoms to the Colonial Coasting Trade, and that this part of the Ordinance is repugnant to the Imperial Act. We think that the Colonial Legislature should proceed in the manner pointed out by Sectn 328 of the Imperial Act—Sec 15 is no doubt extremely ambiguous, but we think having regard to the preamble and apparent object of the Sectn, that the interpretationweManuscript image we have put upon it, is the correct one.
There appears to be grounds of policy rendering it expedient to repeal Sections 163 and 328 of the Act 16 & 17 Victa cap 107 and we see no objection in point of law to such repeal.
We have the honor to be
My Lord Duke
Your Grace's
most obedt Hble Servts
John B. [Kaulabe?]
C.J. Selwyn
Minutes by CO staff
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CC 2/1
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Sir F. Rogers
The L Officers report that sect. 5 of this Ordinance is repugnant to Imperial Legislation.
Inform the Govr that HG is advised that sect 5 is repugnant to the Imperial Act 16 & 17 Vict C 107, and that the Colonial Legislature have not power under sect. 15 of 20 & 21 Vict c 62 to admit foreign bottoms to the Colonial Coasting Trade; but that proceedings must be taken under sect. 328 of the former Act. That this 5th section of the Ordinance though unobjectionable in point of policy (vide B of T letter)Manuscript image must therefore be repealed before HG can advise HM to confirm the Ordinance.
The Governor might also be informed that it is probable that measures will be taken in the next session of Parliament to repeal the 163rd & 328th sections of the Imperial Act 16 & 17 Vict c 107, & to dispense with the formalities required by that Act and authorize the Legislatures of B. possessions to regulate the Coasting Trade of such possessions respectively by local Act or ordinance.
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I shd be disposed to omit this paragraph.
Also send a copy of the L. Officers opinion to the B. of Trade with reference to their 2 letters of the 13 November & inform the Board that HG sees no objection to the repeal of the 163rd & 328th sections of 16 & 17 V. c. 107, but that he thinks it unnecessary, (since the necessity of sanctioning acts by Orders in Council, except in certain cases, has been done away with),
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I wd omit this. The reason wd only apply to Acts, whereas the conclusion has to be applied to Ordces., and as the premiss does not cover the conclusion I wd let it alone.
that local acts or ordinances, relating to the coasting trade should (as suggested) be subject to the approval of the Queen in Council.
HTH 2/1/68
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So long as they remain subject to disallowance by HM in the ordinary way.
I agree subject to the margl notes.
FR 7/1
CBA 8/1
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I approve generally but on second point unless we are prepared to compel the Colonies to open coasting & internal trade I do not see any object to be gained by repealing the 2 clauses in question—as the law stands if the colony wishes it, it can be done.
B&C 9/1
Other documents included in the file
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Draft reply, Buckingham to Seymour, No. 7, 5 January 1868 informing Seymour of the law officer’s decision regarding British Columbia’s ordinance related to admitting foreign vessels into colonial waters and that the ordinance is suspended until further correspondence from Seymour.
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Rogers to Louis Mallet, Board of Trade, 15 January 1866, forwarding report of the Law Officers, with explanation.
Minutes by CO staff
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Sir F. Rogers
I understand from HG's minutes that though he does not entirely agree with the view of the B of Trade, yet that he assents generally to it.
It is, in truth, a B of Trade question & as the restriction was one imposed in deference to the then existing Imperial Policy, now that that policy has changed, the B of Trade naturally desire to give facilities to the Colonies to carry out a like policy.
HTH 10/1
FR 10/1
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Why blot B.C. Legn to correspond with a blot left in ours—& then obliterate ours? & would not repealing our Sections at once allow theirs to remain.
Other documents included in the file
*
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Rogers to Mallet, 6 February 1868, final copy of the draft as noted above.
Minutes by CO staff
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This draft is substituted for the January draft.
Selwyn, C. J. and Kaulabe, John B. to Grenville, Richard 31 December 1867, CO 60:30, no. 42, 281. 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/B675LW03.html.

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