22nd December 1869
My Lord,
My formal Despatch No 40 of this date will acquaint Your Lordship with what I have ascertained to be the state of feeling and affairs with respect to the Judicial system of the Colony and the manner in which theSupremeManuscript image Supreme Courts Ordinance 1869 was passed through the Council. There is no doubt that it was carried only by the exercise of the arbitrary power of the Government, Official members voting contrary to their own opinions, and in ignorance of the Despatch No 40, and passed, even so, mainly in the confident expectation which the Council had been led to entertain that Her Majesty's Government would intervene toremoveManuscript image remove the difficulty in which the Community is placed, by providing elsewhere for one or other of the two Chief Justices whose conflicting claims have prevented any settlement regarded by the Community as satisfactory.
2. If Your Lordship should be willing, and should have it in your power to do so, there can be no doubt that to remove either Mr Needham or Mr Begbie to some otherappointmentManuscript image appointment would be the readiest mode of disposing of a very disagreeable difficulty which the Community are determined not to consider settled by the Act of 1869. There is much irritation upon the subject, kept alive by the ridicule of our American neighbours. I have been informed upon credible authority that on the occasion of the recent visit to this Colony made by Mr Seward, thelateManuscript image late Secretary of State of the United States, on his way from Alaska, the double judicial system and the existence of two Chief Justices in the same Colony, with a handful of population, was made by him the subject of pointed jest not intended to operate to the praise of British Government or Institutions. Hemmed in on all sides as we are by American territory and intimate as are our intercourse and relations withtheManuscript image the neighbouring settlements feelings of loyalty to the parent State are not fostered by what the Colonists are induced to regard as the exercise of arbitrary power on the part of the Imperial Government regardless of their wishes.
3. In default of the removal of one of the present Judges the desideratum seems to be that they should be constituted Judges of the same Court by merger of the existingseparateManuscript image separate jurisdictions. This appears to have been Mr Seymour's first intention, which he was deterred from carrying into effect by the jealousy and dissension which most improperly prevailed between the two Judges on questions originally arising out of the Union of the Colonies, and the erroneous view of the effect of the British Columbia Act 1866 which was especially maintained by Mr Justice Begbie.
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4. I regret to be obliged to say that the personal variance still continues; and the Community know that it entirely neutralizes the intended effect of the ninth section of the Act of 1869; for these Gentlemen who are not on good terms are not likely voluntarily to seek the assistance of each other in the administration of Justice. But I cannot bring myself to the belief that the private quarrels of any OfficialsshouldManuscript image should be allowed to frustrate arrangements for the public convenience.
5. The only resource appears to be to make it matter of public duty that they should act together. I should hope that in this case English Gentlemen will scarcely allow private pique or personal difference to prevent the honest discharge of their duties. And notwithstanding the objections which may be urgedtoManuscript image to such an arrangement as is proposed I do not think they are of equal weight with the advantages which may be derived from it. Short of a removal of one of the present Judges it seems the nearest approach to obtaining what the Community desires to have—a single jurisdiction for the whole Colony—without which it cannot be denied that much inconvenience and expense is suffered.
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6. It has appeared to me to be my duty to lay the matter before Your Lordship in the aspect which presents itself to me as an impartial observer who had no concern with the misconceptions and complications arising out of the Union of the Colonies. But I should scarcely have thought myself at liberty to reopen a subject apparently settled by the Ordinance of last Session were it not that I have found that that Ordinance was passedinManuscript image in ignorance of the Duke of Buckingham's Despatch No 40 of 1868, while his Grace in the concluding paragraph distinctly stated that it was by no means his desire "to preclude the Government and the Legislature from adopting any other mode of dealing with the existing anomalies which without injustice to existing Officers seems to them to promise more satisfactory practical results."
I haveManuscript image
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 minute on Gov. 1382.
CC 5/1
HTH 5.2.70
FR 5/2
G 10/2