Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Despatch to London
Musgrave, Anthony to Leveson-Gower, Granville George 22 December 1869, CO 60:36, no. 1382, 537.
Abstract
Musgrave, Anthony to Leveson-Gower, Granville George 22 December 1869, CO 60:36, no. 1382, 537.
Despatch to London.
Minutes (5), Enclosures (untranscribed) (3), Other documents (1), Marginalia (1).
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 removethe
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 Englandso
so as to remove or mitigate these
inconveniences.
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 Englandso
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 andthe
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 whichit
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.
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 whichit
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 hasalready
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 greatdissatisfaction
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.
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 greatdissatisfaction
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
immediatelyupon
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 theMainland
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 practicaldifficulty
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 oftheir
their
dealings with parties on the Mainland.
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 theMainland
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 practicaldifficulty
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 oftheir
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 decisionsof
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 nothitherto
hitherto been submitted to you.
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 nothitherto
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 wouldbe
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 disagreementit
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 beingafforded
afforded to any single Judge for
consultation with a Co-adjutor upon difficult questions.
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 disagreementit
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 beingafforded
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
coordinatejurisdiction
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.
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 itdoes
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
byprivate
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
lessenor
or remove it during the incumbency of the Gentlemen who
now hold the Office of Judge in the two sections of the Colony.
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
byprivate
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
lessenor
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 LegislativeCouncil
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.
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.
Minutes by CO staff
Mr Holland
See also from Governor Confidential 1394—& telegrams 1293 & 1395.
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.
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 some
ill feeling.
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 Crease
will be appointed.
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
Sir F. Rogers
It is satisfactory to know that all difficulties have been removed by the removal of Mr Needham to Trinidad.
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?
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 difficulty
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.
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
Documents enclosed with the main document (not transcribed)
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.
Petition, Inhabitants of British Columbia to Musgrave,
no date, expressing dissatisfaction with dual court
system (original said to have borne 155 signatures).
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).
