No. 40
22nd December 1869
My Lord,
In Your Lordship's Despatch No 82 of the 9th of August, acknowledging Mr Seymour's Despatch No 58 of the 24th March, forwarding a Petition addressed to the Queen by the Legislative Council praying her Majesty to removetheManuscript image the present unsatisfactory condition of the Courts of Justice of British Columbia, Your Lordship observes in reply that if the Ordinance No 8 of 1869 is likely to cause some of the inconveniences apprehended by the Legislative Council it is unfortunate that the Council did not act upon the invitation made by the Duke of Buckingham in his Despatch of the 26th June 1868 No 40 and modify the Draft Ordinance sent from EnglandsoManuscript image so as to remove or mitigate these inconveniences.
2. I think it right to acquaint Your Lordship that not only was the Duke of Buckingham's invitation contained in that Despatch never communicated to the Legislative Council, but that the Executive Council were also without any knowledge of the permission which it conveyed. I naturally laid before the Executive Council Your Lordship's last Despatch andtheManuscript image the greatest surprise was expressed; the Attorney General, the Chief Commissioner of Lands and Works, the Collector of Customs, the Members of the Board at the time of the passage of the Bill, with the exception of Mr Young late Colonial Secretary who has now left the Colony, requested to be allowed to place a Memorandum on the Minutes of the Council, of which I enclose a Copy; from whichitManuscript image it is obvious that the Bill was passed by the Votes of the Official Members only, and by those members under the impression that it was the expressed desire of the Secretary of State that the Draft Bill sent out should be so passed without modification of any importance.
3. I very unwillingly trouble Your Lordship upon a subject which hasalreadyManuscript image already occasioned much correspondence, but I know that Your Lordship's reply to their Memorial cannot be communicated to the Legislature under the circumstances which I mention, without causing much discussion and irritation; and I should regard myself as failing in my duty if I withheld from Your Lordship my knowledge of the greatdissatisfactionManuscript image dissatisfaction which prevails upon the subject of the duplex judicial system, and the feeling which has been excited by the manner in which it is supposed that the Act of 1869 has been forced by Her Majesty's Government upon the acceptance of the community against its will.
4. I enclose Copies of two Memorials presented to me almost immediatelyuponManuscript image upon my arrival—one signed by nearly all the men of business in the Colony, and the other by nearly all the Members of the legal profession—both urging strongly the objections entertained to the division of the Colony by the separate action of two Courts. It is certainly a significant fact within my own knowledge that the Chief Justice of theMainlandManuscript image Mainland has been in the practice at times for the convenience of suitors, of sitting in Victoria Vancouver's Island to hear applications and make orders, in respect of the Courts of the Mainland. It is not for me to decide upon the legality of such a proceeding, though I admit that I regard it as open to doubt, but I mention the fact as illustrating the practicaldifficultyManuscript image difficulty which exists in separating the legal business of the Mainland from the Commercial requirements of Victoria which is the Mercantile focus of the whole Colony. It is exceedingly expensive and troublesome to the Mercantile body in Victoria to be obliged to send up to New Westminster nearly 100 miles distant by Sea to take proceedings before the Court there in respect oftheirManuscript image their dealings with parties on the Mainland.
5. The object in view is that concurrent jurisdiction should be established, or in other words that the two Courts should be made one or branches of the same, giving the two Judges coordinate authority, and enabling them to sit together in bench when necessary as a Court of Appeal for the reconsideration of the decisionsofManuscript image of either. At present although the Ordinance of 1869 provides for the sitting together of the two Judges it is only at the request of either of them for the assistance of the other, and not as a matter of right or option with suitors. I enclose for your Lordship's information a Copy of the Report of a select Committee of the Legislative Council made during the last Session which I believe has nothithertoManuscript image hitherto been submitted to you.
6. I am not ignorant of the one great defect which may be urged in respect of the latter portion of this proposed arrangement but it is not necessarily inseparable from the concurrence of jurisdiction. The chief objection is that in the event of difference of opinion between the two Chief Justices there wouldbeManuscript image be no Umpire. In reply it is urged that such cases would probably be rare, as compared with the whole legal business of the Court; and that the fact of the decision of either single Judge being liable to revision by his colleague in conjunction with himself, would tend to induce more careful and mature deliberation in the first instance; while in the rare case of decided disagreementitManuscript image it would be open to the parties to appeal to the Judicial Committee of the Privy Council; the position of suitors being at all events even in these cases rendered no worse than at present, when they are without the means of obtaining any local revision of the decision of a single Judge. And it is said that in many cases there must be great advantage in the opportunity beingaffordedManuscript image afforded to any single Judge for consultation with a Co-adjutor upon difficult questions.
7. There can be little doubt that much advantage might be so derived where two Judges work harmoniously together. But if it should be thought that risk of irreconcileable opinion is too great to be encountered, it is quite possible to establish coordinatejurisdictionManuscript image jurisdiction for both branches of the Court over the whole area of the Colony without provision for the sitting together of the Judges, simply leaving it to suitors to determine in which section of the Colony and before which Judge they prefer to bring their suits or to take proceedings.
8. In such a measure as I venture respectfully to suggest to Your Lordship itdoesManuscript image does not appear that the status or emoluments of the two Chief Justices need in any way be touched. They would remain the Chief Justices of Vancouver Island and the Mainland respectively, and precedence may be given to the one in Vancouver Island and to the other on the Mainland as is provided in the Ordinance of 1869 for cases where they might sit together byprivateManuscript image private arrangement. But they would, in fact, become Judges of the same Court which would have uniform jurisdiction throughout the limits of the Colony; separate writs and double legal proceedings would no longer be necessary in respect of business between Victoria and the Mainland; and a great cause of discontent would be removed so far as it appears possible to lessenorManuscript image or remove it during the incumbency of the Gentlemen who now hold the Office of Judge in the two sections of the Colony.
9. If Your Lordship does not disapprove of what has been suggested and will permit a Bill to be introduced for giving effect to this arrangement I am sure that it will be received with satisfaction both by the LegislativeCouncilManuscript image Council and the Community. In this case it would enable me to save much time if Your Lordship would kindly convey your sanction by telegraph.
I have the honor to be,
My Lord,
Your most obedient
humble Servant
A. Musgrave
Minutes by CO staff
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Mr Holland
See also from Governor Confidential 1394—& telegrams 1293 & 1395.
In writing to Govr Musgrave on the 9th Aug, Lord Granville, when confirming the Ordinance No 8 of 1869—the Supreme Courts Ordinance—added "it is unfortunate the Council did not act upon the invitation made by the D. of Buckingham in his despatch No. 40 of 24 June 1868 & modify &c" the draft.
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It now appears that that despatch was never communicated either to the Executive or Legislative Council or in fact to any one—& that not only was the Ordinance No 8 passed in ignorance of that despatch, but was forced thro' by the Official Votes—& those votes given agst their opinions.
This most blameable—tho' perhaps not unaccountable—neglect of duty by the late Govr might have led to great complications—& has to someManuscript image ill feeling.
However Mr Needham's acceptance of the Chief Justiceship of Trinidad—see telegram 1392—which must be known by this time in the Colony—will soften down what ill feeling there has been done & relieves both the Home & the Colonial Govt from a difficulty.
The Salary of the Puisne Judge under Ordinance 8 is £1000—our telegram told Govr Musgrave a man would be sent from here—but in tel: 1395 he expresses a hope that Mr CreaseManuscript image will be appointed.
The Salary of the Att: General is £500, & as you know there is a question about his Fees—see 174. If Mr Crease is to be Judge might not the Att. Genl have a fixed Salary say £800 & no fees?
CC 5/2
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Sir F. Rogers
It is satisfactory to know that all difficulties have been removed by the removal of Mr Needham to Trinidad.
This fact disposes of all the points raised in the Despatch & enclosures, except as to the Court of Appeal. But should not an expression of regret be conveyed that Govr Seymour withheld from the Executive & Legislative Councils the Despatch of the 26 June/68?
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Certainly & make sure that it is presented now.
Sent on herewith.
As to the court of Appeal. The Supreme Courts Ordinance No 8 of 1869 does not provide for a Court of Appeal, but there can be no difficultyManuscript image in arranging for an appeal to the full Court from the decision or ruling of a single Judge. If this is not considered sufficient, the Legislation of B. Columbia can—as pointed out by the Law Officers—constitute a new Court of Appeal.
I would only add that whoever takes the office of Attorney General (should Mr Crease be promoted to the Bench as desired by Mr Musgrave, 1395/70 BC) should take it subject to any arrangement which may be made as to reduction or abolition of fees.
HTH 5.2.70
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I agree.
FR 5/2
WM 5/2
G 10/2
Documents enclosed with the main document (not transcribed)
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Memorandum from members of Executive Council, no date, explaining that the forced passage of the Supreme Courts Ordinance 1869 was done in ignorance of the Duke of Buckingham's despatch No. 40 of 26 June 1868.
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Petition, Inhabitants of British Columbia to Musgrave, no date, expressing dissatisfaction with dual court system (original said to have borne 155 signatures).
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Petition, Members of Legal Profession of British Columbia to Musgrave, no date, expressing dissatisfaction with court system (bears names of the 12 who signed the original petition).
Other documents included in the file
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Draft reply, Granville to Musgrave, No. 22, 8 March 1870.
Minutes by CO staff
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The Confl despatch 1394 may I presume be marked off as disposed of.
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I should think so.
Musgrave, Anthony to Leveson-Gower, Granville George 22 December 1869, CO 60:36, no. 1382, 537. 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/B69240.html.

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