Rogers to Merivale (Permanent Under-Secretary)
Emigration Office
5th October 1857
I have to acknowledge your Letter of the 19th ultimo, directing me to report my opinion on certain Rules of Court framed by the Chief Justice of Vancouvers Island.
2. The Order in Council of April 4 1856 established a Supreme Court in that Colony declaringthatManuscript image that Juries should consist of persons so qualified and in such number as the Court by rule might direct (the verdict however being unanimous) and authorizing the Court generally to make rules respecting the time and manner of holding the Court—the manner of proceeding—the examination of witnesses out of the jurisdiction on de bene esse—the proceedings of ministerial officers—execution—the summoning &c of Jurors—the admission of Barristers andSolicitorsManuscript image Solicitors—the payment of fees—the granting of probate—the duties and control of Executors—Administrators—Guardians and Committees and other things "necessary for the proper conduct and despatch of business"—these rules were to be framed "as far as the circumstances of the Colony might permit . . . with reference to the corresponding rules and forms in Her Majesty's Supreme Courts of Law and Equity at Westminster"—and after being approved by the Governor in Council were to be transmittedtoManuscript image to Her Majesty in Council through the Secretary of State for her final approbation or disallowance. They are to take effect three months after publication in the Colony.
3. The Governor now transmits two codes of rules (1) those for the Supreme Court acting in the exercise of its ordinary Jurisdiction—and (2) those for the same Court acting as an Inferior or Summary Court of Justice.
4. The rules of the Supreme Court are evidently drawn "withreference"Manuscript image reference" to the practice of the English Courts as much so (at the least) I do not doubt as the circumstances of the Colony admit. But they will require as it appears to me one or two slight amendments.
5. The rules 108 and 109 authorize the substitution of an affirmation for an oath and declare that a false affirmation shall be punishable as perjury. These provisions appear to me not mere matters of procedure but alterations of the Law of evidence and of the Criminal Law which,therefore,Manuscript image therefore, should have been provided for by an Act of the Legislature and not a rule of Court. Till this objection is removed I do not think that the body of rules now forwarded can properly receive the sanction of Her Majesty in Council. And when this amendment is made the opportunity might be taken for removing two other defects in them.
6. The provisions respecting appeals to Her Majesty in Council (sections 119-125) are a mere transcript of similar provisions in the Order in Council except that in Rule 122 line 5theManuscript image the words "for prosecuting the appeal and" are omitted I suppose by a clerical error. They are therefore unobjectionable. But the right of Her Majesty to vary these rules should I think be expressly saved.
7. The provisions respecting the summoning of Juries (sections 57-58) appear very imperfect. The Sheriff is to summon "a sufficient number" of "Jurors" and "special Jurors" for each Session of the Court, but no qualification is prescribed for either class. I can only conjecture that all adult males of EuropeanoriginManuscript image origin are to be summoned in turn for common Juries and that the Sheriff is to select a certain number to act as Special Jurors. But whatever the intended rule is, it should be laid down and should embrace some means of excluding persons who were notoriously unfit to act. The distinction itself between special and common Juries seems at first sight to be inapplicable to so small a population.
8. The rules for the Inferior Court are open to a more fundamental objection.
9. It is of course foundthatManuscript image that a mode of procedure modelled in that of Her Majesty's "Superior Courts of Law and Equity at Westminster" is too cumbrous for trifling cases which require prompt decision. And, to meet this practical difficulty, the Chief Justice has declared, by Rule of Court, that the County Courts Act (9 and 10 Vic cap 95) shall be adopted by the Supreme Court of VanCouvers Island as the rule of its procedure on occasion of certain monthly sittings, and that the Court when acting under this Act shall be called "The Inferior or Summary Court ofCivilManuscript image Civil Justice". The Chief Justice then promulgates as the rules of the Inferior Court (mutatis mutandis) the rules framed by proper authority for the procedure of the County Courts in England.
10. It appears to me that in this course of proceeding the Chief Justice—though doubtless with the best intentions has entirely exceeded his authority. The Supreme Court has authority over Inferior Courts, but it is not itself such a Court (as is shewn by the provision that its rules are to be analogous to thoseofManuscript image of the Superior Courts of Law at Westminster) in the preceding lines, so left it out nor has it the power to constitute an Inferior Court of Law. I should incline, therefore, to think that the broad application of the County Court Rules to its proceedings is inconsistent with the terms on which it has received the power of making Rules.
11. But on looking at the Imperial Act 9 and 10 Vic cap 95 I can have no doubt that the adoption of "so much of that Act as is suitable to the circumstancesofManuscript image of the Colony" is quite beyond the power of a Court of Justice.
12. The Act provides interalia that Miners may sue for wages (section 64)—that parties to a suit may be examined (section 73)—that certain property and none other shall be protected from execution (section 96)—and that a Landlord shall have certain rights against goods taken in execution (section 107). It regulates the power of committal for contempt (section 113)—imposes penalties on Officers (sections 116-117)—and provides for their protection (section 139). All these things are subjects ofLegislationManuscript image Legislation not modes of procedure to be determined by a Rule of Court, and I can hardly doubt that a closer scrutiny of the Act would elicit further reasons against its adoption by a mere rule of Court.
13. Observing how very much of the Act is either plainly inapplicable to the circumstances of the Colony or (what is worse) capable of a kind of perverse application to those circumstances, I think it would be much better that the Legislature (within whose province it falls) should eitherconstituteManuscript image constitute by a distinct enactment an Inferior Court of Justice to be presided over by the Chief Justice under rules and conditions explicitly laid down by them or him or (if it is thought best to adapt the English Law subject to the usual and somewhat perplexing qualification) should expressly specify those sections of the Imperial Act which it is intended to apply (of course as far as circumstances admit) to the Inferior Court of Justice of Van Couvers Island. The power of making rules would of course be vested intheManuscript image the Chief Justice subject to the approval of the Legislature or of the Governor in Council.
14. When this is done (as it may be under the act 12 & 13 Vict cap 48) there will be no further reason why the Chief Justice should not adapt to the Inferior Court of Van Couvers Island the Rules framed for the English County Courts.
I have the honor to be Sir,
Your obedient Humble Servant
Frederic Rogers

Herman Merivale Esq.
&c &c &c
Minutes by CO staff
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Mr Merivale
Perhaps you will also consider the question of salary to the Chief Justice, which the Governor raises in his desph 8557. The Legislature of V.C. Island is not very ready at raising taxes (see 8655).
ABd 6 Oct
Mr Labouchere
As to salary to the Ch. Justice, I have nothing more to say: It was already minuted by Mr Blackwood on 8557 to refer this to the H.B.C. If they do not think it incumbent on them to make provision, we cannot, unless Parliament chooses to vote the money. But the whole question of Vanc. Id government has now to be considered.
As to these Rules, I think Sir F. Rogers would confer a great kindness on a legislature so ignorant (professionally) if he would draft or rather sketch in the simplest way the provisions which he thinks it advisable they should Exact. I quite concur in his main objection.
HM O 8
Yes—we must soon give a formal notice to the H.B. Company that we mean to disconnect Van Couvers Island with them & the whole question of its establishmt will have to be considered.
HL O 10
Other documents included in the file
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"Draft amendment of the Rules of Practice of the Supreme Court of Vancouvers Island," no date.
Minutes by CO staff
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Mr Merivale
I annex
1. A draft of such amendments as are, I conceive, wanted in the Rules of the Supreme Courts; wh rules seemed to me to be to be defective in one point (Juries) & to exceed or have some appearance of exceedg the powers of the Court in some others (Executions, Evidence, Appeals).
2. A draft of An Act adopting the English County Courts Act, wh the C.J. attempted (illegally I conceive) to do by Rule of Court. The draft gives retrospective validity to the C.J.'s rules.
3. Notices of two or three points on wh the RulesofManuscript image of the Summary Court seem to require amendment.
The Govt will I suppose be informed that these drafts are meant to assist the C.J. in effecting legally what he desires; but that he shd still satisfy himself that they will have that effect, & make any modifications wh the practice or circumstances of V.C.I. may require.
FR 7/12
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Mr Labouchere
I should propose sending out these drafts, which Sir F Rogers has had the kindness to prepare, with a short covering despatch. See 9208 & minutes.
HM D 22
HL 24
Other documents included in the file
Manuscript image
"Draft of an Act to establish a Court of Summary Jurisdiction in Van Couver's Island," no date.
Manuscript image
"Schedule of clauses in the Act of Parliament 9 and 10 Victoria Cap 95 which are extended by this Act to the Colony of Van Couvers Island," no date.
Manuscript image
"Amendments of Rules of Practice for Inferior Courts," no date.
People in this document

Blackwood, Arthur Johnstone

Labouchere, Henry

Merivale, Herman

Rogers, Frederic

Organizations in this document

Hudson's Bay Company

Places in this document

Vancouver Island