No. 68, Separate
3rd September 1866
I have the honor to enclose the copy of a Bill "to amend the law of (Indian) Evidence" which I caused to be introduced by the Acting Attorney General and which after passing the Legislative Council, of which the Chief Justice and Attorney General are Members, was thrown out by the LegislativeAssemblyManuscript image Assembly of this Colony.
The failure of this Bill is to be deeply regretted.
The necessity for such a law has been even during my own administration abundantly shown.
It matters not how intelligent and worthy of belief an Indian may be, (according to the ruling of the late Chief Justice) his evidence is inadmissible, unless he can pass a theological examination before the Bench, and hence the ends of justice are frequently defeated.
TheManuscript image
The following is a case in point. A white man was barbarously murdered by Indians at Barclay Sound shortly before I assumed the Government. After great trouble and some expense, the murderers were traced and arrested, some of the party turning Queen's evidence, and the principal confessing his guilt after being duly warned of the consequence. The approvers pointed out where the murdered man's head (which had been cutoffManuscript image off and concealed to prevent identification of the Body) was subsequently found. The circumstantial evidence was of the clearest description. Ex-chief Justice Cameron ruled that the evidence of the Indians was inadmissible, and the case fell through.
It is obvious therefore that in the present state of the law the conviction of an Indian for murder (in the absence of any but Indian evidence) depends upon the sufficiency of the theologicalknowledgeManuscript image knowledge of those who may have been witnesses to the deed.
So also in whiskey selling cases. One white man may sell any quantity of spirits to any number of Indians, and in the absence of "white man's evidence" he cannot be convicted by any amount of Indian testimony.
I may state that as the matter at present stands, any man, Indian or European, may be arrested, tried, convicted, and executed in British ColumbiawhereManuscript image where a law similar to that I propose exists, on evidence which would be insufficient even to place him upon his trial in Vancouver Island.
I need not comment upon such a mischievous anomaly.
You will observe on reference to Enclosure No 10 of my Despatch No 67 of this date that this Indian Evidence Bill was discussed in the Legislative Assembly together with the Indian Liquor Act and thatitManuscript image it was thus summarily disposed of on the 6th April 1866.
Indian Evidence Bill
"House in Committee on this Bill. Mr Dennes in the Chair.
The Bill was unanimously rejected on the enacting Clause."
Indian Liquor Act
"Dr Helmcken suggested that this Bill might as well follow suit."
Having considered these facts you will probably concur with me in the opinion that no Legislative Assembly which is likely to beelectedManuscript image elected in Vancouver Island will pass either of these measures, and it is therefore necessary that Her Majesty's Government should devise other means of correcting evils which must eventually recoil upon the Imperial Government even more than upon Colonial interests.
In the Colony of Western Australia the evidence of the Natives was by law made admissible in the Courts of Justice without the sanction of an oath and I believewithManuscript image with a highly satisfactory result.
I have the honor to be,
Your most obedient Servant
A.E. Kennedy
Minutes by CO staff
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Sir F. Rogers
It wd not be very easy to sketch in this Country a Bill relating to the Law of Indian Evidence which would be suitable for V.C.I. But we might perhaps collect & send to Govr Seymour copies of any Laws which have been passed either in our Colonies or Indian Territories, and instruct him with the assistance of these examples to frame a measure on the subject & submit it to the deliberation of the Colonial Legre.
ABd 30 Oct
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This seems to me a very proper Bill.Manuscript image I think it wd be enough to ackn & express regret—adding that questions of this class will it is hoped be dealt with in a more effectual manner after the proposed Union of the Colonies.
(Another item in the bill of indictment agst the Assembly & only valuable on that account.)
FR 1/11
CBA 1/11
C 12 Nov
Documents enclosed with the main document (not transcribed)
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Printed copy of a bill entitled "An Act to Amend the Law of Evidence," passed by the legislative council, 16 February 1866.
Other documents included in the file
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Draft reply, Carnarvon to Kennedy, No. 23, 16 November 1866.