Collier and Attorney General to Cardwell
Lincolns Inn
October 21st 1864
We are honored with Your commands, signified in Sir Frederic Rogers's letter of the 5th of October, instant, stating that he was directed by you to transmit to us the accompanying copy of a Despatch from the Governor of VancouverIslandManuscript image Island, enclosing a correspondence relative to the power of the Government of the Colony to collect arrears of the Tax on Real Estate in the Colony under the Act passed by the Legislature in December 1862, entitled "An Act to amend the Real Estate Tax Act 1860."
Sir Frederic Rogers was also pleased to state that he was desired to call our attention to the 42nd, 45th, 47th, and 53rd Sections of this Act, and to the opinion expressed in the letter from the Chief Justice dated the 26th of July,1864Manuscript image 1864, to the effect that the Legislature of Vancouver Island had not authority to make Real Property in the Colony alienable for a charge which is only a personal one in this Country.
Sir Frederic Rogers was further pleased to enclose copy of an Imperial Act passed 28th of July 1849 "To provide for the administration of Justice in Vancouver Island," and also an extract from the Commission appointing James Douglas Esquire to be Governor and Commander in Chief ofVancouverManuscript image Vancouver Island, and empowering the Legislature of the Colony to make Laws; and to request that we would take these papers into our consideration, and inform you whether we consider that there is any reason for doubting the validity of the above cited clauses of the "Act to amend the Real Estate Tax Act 1860."
In obedience to Your commands we have taken this matter into consideration, and have the honor to Report
That we are of opinion that it was competent to the Legislature of the Colony topassManuscript image pass the "Act to amend the real Estate Act 1860" in its present shape; and that having been assented to by the Governor, and not disallowed by Her Majesty that Act ought to be enforced. Whatever may have been the opinion of the Chief Justice on the subject of its policy he would be highly culpable if he were to allow that opinion to influence him in the discharge of the plain duty now cast upon him to give effect to its provisions in any case which may come before him: and if he conceives that, (as a matter of law), this ActisManuscript image is "repugnant," and not "as near as may be agreeable" to the Law and Statutes of the United Kingdom in the sense of the words of limitation contained in the Governor's Commission of the 16th May 1851, we are but repeating (in a much clearer case) what we have already advised upon similar questions arising in the Australian Colonies, when we express our very decided dissent from such a view.
We have the honor to be
Your most obedient
humble Servants
R.P. Collier
(For the Attorney General & myself)
Minutes by CO staff
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ABd 22 Oct
Send this to the Colony observing that although the opinion of the L. Offrs of the Crown is not binding upon the judgment of the C. Justice Mr C. cannot [doubt that] a gentleman who has himself had no professional education will probably attach much weight to the decided opinion on a purely legal point to two so eminent lawyers as Sir R. Palmer & Sir R.P. CollierManuscript image and therefore authe the Gov. to shew this dph and the opinion to Mr Cameron privately.
Also enclose for the Gov. & for Mr Cameron two copies of the Boothly Parly Papers.
And inform the Govr that he is not to make any public use of the L. Offrs opinion.
(I think it wd be better not to make it public unless it appears that Mr Cameron is obstinate & mischievous wh may not prove the case.)
FR 22/10
EC 23
Other documents included in the file
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Draft, Cardwell to Kennedy, Confidential, 27 October 1864, transmitting Collier's opinion on an Act passed by the Vancouver Island legislature and two copies of a parliamentary paper "containing the opinion referred to by the Law officer."