Begbie to Lytton
40 Chancery Lane
17 Augt. 1858.
Since the interview in wch you did me the honor to signify your intention of recommending me to Her Majesty to be appointed Judge in British Columbia, I have examined the Act just passed for regulating the Colony: and on comparing it with the course wch as I am informed is intended to be followed in working out the Act, the following difficulty has presented itself.
Sect. 4 after reciting the acts of 43 G III. & 2 G. IV. by wch in effect the jurisdiction and the laws of Upper Canada were extended over and established in the territory now called British Columbia, repeals those acts utterly, as from the day on wch this Act shall be proclaimed in the Colony; thereby I suppose (but this is one point upon wch I wish to refer to you for instructions) rendering the whole system Manuscript imageof legislation and jurisdiction within the Colony a tabula rosa, upon wch the new system is to be erected.
Sects. 2. & 3. provide how that new system is to be raised. Sect. 2 enacts apparently that Her Majesty in Council may make ordain & establish; and may (subjt &c.) authorize the governor to make ordain & establish all such laws &c. as may be necessary &c. Sectn 3 enables Her Majesty by order in Council to constitute, or to empower the governor to constitute a legislature to make laws &c.
I am informed that this act has already been sent out to the Colony to be proclaimed there. This will have the effect I apprehend of repealing and annulling all the existing laws & jurisdiction. But I am further informed that no new laws &c. have been sent out to the Colony, or made & established by Her Majesty under the first alternative of Sect. 2; but that Manuscript imageit is intended that such new laws shall be made & established by the local authorities under Sect.s. 2 & 3.
This is now of no importance. Put by. HM O 9.
I am apprehensive that in this manner an interval of time may elapse betwn. the proclaiming of the act, and the promulgating of new laws. I have not of course as yet seen the Commission with wch Her Majesty may be pleased to authorize me; but it appears to me, that if any such interval shall occur, it may be objected that I have no jurisdiction to try offences committed (if offences can be then committed) or to determine the rights of parties under contracts entered into during such interval.
Also it appears that (on the same hypothesis) considerable doubt may be felt as to the law wch is to be applied (assuming that I shall have jurisdiction) in trying and determining such offences and contracts.
I shall be happy to be informed that these doubts are ill founded, or on the other hand, what course I am to adopt under Manuscript imagethe circumstances.
I have the honor to be Sir
Your most obedt. Servant
Matt. B. Begbie.
To the Rt. Hon. Sir E. B. Lytton Bart.
&c &c &c
14 Downing Street.
Minutes by CO staff
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ABd. 19 August.
Lord Carnarvon
I have put into the form of a draft the answer I think most advisable?
HM Augt 20
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Sir E. Lytton
I had drafted an answer to Mr Begbie, but I find he has gone to Edinburgh, and am inclined to think personal communication more advisable, so I have asked him to call on me when he returns. I do not think his difficulties are of a serious kind, although the unfortunate delay occasioned by the Queen's absence leaves us of course in considerable apprehension of what may happen in the absence of legal powers, but this cannot be helped.
But indirectly this raises a curious question. You, I think, wished that this gentleman's Commission should be prepared at once, which Manuscript imagewould have obvious advantages in case of his early arrival at the colony.
But I question whether we can legally do it.
The colony of British Columbia is already created by the Act.
But it cannot be governed, except by order in Council.
Would a Commission to a Judge anterior to the constituent order in Council (if I may so call it) be valid?
I cannot say I feel sure—probably it would be valid—but would not give legal powers.
I believe the safest way will be to appoint him by Commission Manuscript image(or warrant) dated the same day with the order in Council. If he is ready & anxious to go out first, he might take with him a simple Commission as a magistrate, which would in my opinion be certainly valid, & wait for his further powers.
The difference between appointing a judge or other officer by Commission, or warrant, is simply one of stamp duties. These, on a Queen's Commission, are heavy. Therefore the option has long been practised, by which the Queen issues only a warrant, directing the Governor to issue a Commission; which follows Manuscript imageas a matter of course; & which is free from Imperial stamp duties.
If it is thought that there would be any more importance or significance in giving this gentleman a Queen's Commission—which seems to me not a matter of consequence—then I think, in justice to him and as his salary is small, the stamp duties should be remitted (that is, this office should pay them).
HM Augt 21.
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This is a question of Law & precedent on which I do not feel competent to decide. I can only say politically, 1st that it is desirable he should go as soon as possible, 2dly that he should be armed with indisputable powers to the exercise of which, no grumbling American immigrant should object on the ground of legal validity. He had better have the Queens Commission which [right?] him with the Governor's & act as he best & [legally?] can in the short interval.
EBL Aug 24