N America
1749 Vancouver Isl

Copy

57. Coleman Street.
31st August 1848.
Dear Sir,
We have considered the question proposed by you as to the best and most efficient manner of appointing Justices of the Peace to Act within the Territory newly granted to the Hudson's Bay Company, and other Territories belonging to them, and we are of opinion that application should be made to Her Majesty for that purpose, as it appears to us that Her Majesty has not only an undoubted right to appoint such Justices, but can moreoverManuscript image moreover confer upon them an extensive Civil and Criminal Jurisdiction which, if appointed in any other manner, they would not possess.
The question depends on the construction of the Acts of 43rd Geo. 3. Ch. 138 and 1st & 2nd Geo: 4 ch 66. taken in connexion with the charters granted to the Company.—
By the first of these Acts, being "An Act for extending the Jurisdiction of the Courts of Justice in the Provinces of Lower and Upper Canada" &c, it was provided that all Crimes and offences committed in the Indian Territories, and other parts of America not within the limits of Lower or Upper Canada, should be tried as if committed within theProvincesManuscript image Provinces of Lower or Upper Canada, and the Governor or Lieutenant Governor of Lower Canada was empowered by his Commission to nominate Justices of the Peace for the Indian Territories not within the Provinces, but such Justices to act for the purpose only of hearing crimes and offences and committing the offenders to safe custody in order to their being conveyed to Lower Canada to be dealt with according to law, and such offences were to be tried in the Province of Lower Canada or, under certain circumstances, in the Court of the Province of Upper Canada.—
At a subsequent period, doubts appear to have arisen whether the provisions of the Act of 43rd Geo. 3.chManuscript image ch 138. extended to the Territories of the Hudson's Bay Company, and these doubts were at length removed by the 1st & 2nd Geo: 4 ch 66, "An Act for regulating the Fur Trade and establishing a Criminal and Civil Jurisdiction within certain parts of N. America."— The last mentioned Act expressly declared that the clauses of the 43rd Geo 3. Ch. 138 should apply to the Territories of the Hudson's Bay Company — The Governor or Lieutenant Governor of Lower Canada was not deprived of his power to appoint Justices of the Peace possessing the limited Jurisdiction before mentioned — This power remained unrepealed, but certain powers of a much more extensive nature were granted to HisMajestyManuscript image Majesty.— By the 10th Section of the Act 1 & 2 Geo 4. ch 66. His Majesty was empowered to issue his Commission from time to time to any persons to act as Justices of the Peace within any of the Territories before mentioned, and and by the by the 11th Section he was further empowered by Commission under the Great Seal to authorize the persons so appointed by him Justices of the Peace, to hold Courts of Record for the trial of Criminal Offences and misdemeanours, and also of Civil causes, and by the 12th Section, it was provided that such Courts should be constituted as to the number of Justices and as to the places within which they were to have Jurisdiction, as His Majesty shouldfromManuscript image from time to time direct, the only restriction imposed being that they should not interfere in Capital cases, nor in any Civil Case where the amount in issue exceeded £200. The Justices of the Peace appointed by the Crown under this Act have also certain important duties assigned them for facilitating the administration of Justice, which those appointed by the Governor of Lower Canada would not be competent to discharge.—
The powers which the last mentioned Act conferred on the Crown, are not, as it seems to us, in any manner affected by the recent Grant of Van Couvers Island to the Hudson's Bay Company — That Grant expressly recitesbothManuscript image both the Acts of Parliament, and thereby virtually continues them with respect to the new Grant — We are of opinion, however, that even if there had been no such recitals, all the powers given to the Crown by the Act of 1st and 2nd Geo: 4. ch 66, would have still continued in full force and operation and that nothing but most express and unambiguous words to that effect could prevent their being exercised.—
It is not necessary therefore to apply to the Governor of Lower Canada to appoint Justices of the Peace, and it would not be desirable to do so, as their powers would be of a very limited character.— We would recommendanManuscript image an application to the Government at Home for the nomination of such Justices and for a Commission or Commissions under the Great Seal empowering them to hold Courts, according to the terms of the 10th 11th and 12th sections of the above mentioned Act of 1st & 2nd Geo 4. Ch 66.—
We are &c
(Signed) Crowder & Maynard

1Sir J. H. Pelly Bart
&c &c &c
Minutes by CO staff
Manuscript image
2 Copy of a letter to Sir J.H. Pelly. Registered by my direction
Manuscript image
6/9.
Mr Hawes
I agree with Messs Crowder & Maynard. Short commissions to one or more Justices of the Peace empowering them to act as such pursuant to the provisions of 1 & 2 Geo: 4. c. 66. are all that is wanted for this purpose. But I do not think it will be possible long to conduct the affairs of the settlt if any is established without an Act of Parlt At present — by the same act, in every case of a capital or transportable offence the offender must be sent to Upper Canada.
HM. Sept. 7.
Sep 7 BH
Under the powers of the intended Commissn the local Legislature will be summoned & provide for such cases.—
G. 9
Footnotes
  1. This addressee information appears toward the bottom left of the first page of the despatch.
  2. This minute entry appears toward the top left of the first page of the despatch.
People in this document

Blackwood, Arthur Johnstone

Crowder

Grey, Henry George

Hawes, Benjamin

Maynard, Joseph

Merivale, Herman

Pelly, John Henry

Organizations in this document

Hudson's Bay Company

Places in this document

Vancouver Island

[Sender not known.] to Pelly, John Henry 31 August 1848, CO 305:1, no. 1749, 241. 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/V485HB10.html.

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