No. 11
Victoria Vancouver's Island
25th July 1855
My Lord
I have the honor to acknowledge the receipt of Sir George Grey's Despatch of the 5th of April last, marked "confidential," transmitting an opinion received by the Colonial Department from the Attorney and Solicitor General, in which those officers deny altogether the power of legislation, under the authority of my Commission from the Crown, and advise the Secretary of State that no Laws can be passed in Vancouver's Island, except with the concurrence of a General assembly.  
Having before entertained a
not
not very dissimilar impression in respect to the Legislative Powers vested in the Governor & Council, by my Commission from the Crown; I have been most cautious in all my proceedings, and have enacted no Laws excepting such as circumstances rendered indespensable for the preservation of life and property.  
I now have a full and distinct idea of my legal position, and shall be careful not to exceed the Powers vested in me.  
Until we receive the order in Council, embracing the important provisions of the act, establishing a Supreme civil Court, we shall continue to conduct the legal civil business of the Colony, as heretofore, reserving any serious cases for future adjustment.  
I beg leave to observe in reference to the second order in Council, which is to include Criminal Jurisdiction, that we have always considered the Law of England for all criminal, and all important civil purposes, as in force in the Colony, and have therefore not found it necessary to legislate in
respect
respect to the prevention or punishment of crimes, or in respect to any other class of offences except such as have a mere local application, as for example the Law prohibiting the sale of spirits to Indians, to which the Law of England has no reference. I have not sufficient confidence in my knowledge of the Criminal Law of England, to venture on giving an opinion on the manner in which a Criminal Court should be constituted, except to observe that it would perhaps be advisable to dispense, for a time, until the white Population increases in number and intelligence, with the attendance of grand and petit Jurors, and to substitute a given number of assessors, as I believe is the practice in some of the Colonies in Australia, who with the presiding Judge may decide, by majority of votes, on all cases brought before them.
This he cannot do.  
I may also observe that whatever regulations you may please to establish, will not I apprehend interfere with existing arrangements.  
I shall be guided by the instructions in reference to the
several
several matters discussed in Sir George Grey's Despatch, and as instructed shall not make any further attempt at Legislation or exert the Powers vested in me, for any other purpose than the preservation of the Peace of the Colony, until I am favoured with further instructions from you.  
I have the honor to be
Your Lordships most obedient humble Servant
James Douglas
Governor

The Right Honble Lord John Russel [Russell]
Her Majesty's principal Secretary of State
For the Colonial Department.
Minutes by CO staff
Mr Elliot
The former Papers on this subject are with Mr Ball.  
VJ
25 Sepr
It will be seen that the reference of the Order in Council to the Law Advisers has remained 5 months unanswered. They must be reminded I think?  
HM
S 25
WM
S 26
Mr Ball
I do not like delaying any longer to bring the subject of this island before Mr Labouchere.  
As to 8991. We have not yet received the draft order in Council back from the Law Advisers. I hope we shortly shall, having recently been in private correspce with Sir R. Bethell about it. Nothing more can be done on the legal question until it arrives.  
But the general question of the future government of the island is independent of this, & must receive consideration. I find an unfinished minute on 5599 shewing that Sir W.M. had begun to give his attention to it, but had been interrupted by illness.  
HM
D 8
Mr Labouchere
I do not think that I can add anything at present & therefore pass these papers referring to my previous remarks.  
JB
10 Dec
Mr Labouchere
I forward these again, in order to remind you in case you should find time to speak to me about them.  
HM
Mr Merivale
Secy. Let a Despatch be prepared to the Governor of Vancouvers Island to the following effect.  
Calling his attention to the Instructions which were given to his Predecessor when the Colony was established, stating, that I entertain no doubt from the tenor of these instructions as well as from the information which I have been able to obtain of what took place at the time when they were given that it was intended that an assembly should have been called together of the Settlers at the earliest opportunity however few in number & that a system of Gment having powers of legislation should have been instituted by their authority.  
That it appears to me that this should now be done with as little delay as possible, adding to the directions then given with regard to adaptation?.  
That I leave it to the local knowledge & the discretion of the Governor to suggest to the Assembly thus convened the Course which they should pursue to provide Legislative powers in the manner most in accordance with the wants & circumstances of the Colony but that it seems to me that it would be expedient that these functions should be entrusted to a Council of very limited numbers at least until the year 1859 when the whole condition of VanCouver's Island must come under consideration. The precedents of the Virgin Islands & Turks Island may be referred to.  
I would then refer to the reasons why practical inconvenience has not been the consequence of the invalidity of ordinances already passed, but add that this was no reason that all power of Legislation should be suspended longer than was necessary.  
I think a confidential despatch should also be sent to the Governor, in which he should be told that if he found (contrary to my expectation) that any grave inconvenience or danger arise from the action of the Assembly when met together in the great critical circumstances of the Colony with an Indian war raging in the neighborhood, that I authorized him to prorogue the Assembly at once, and to conduct the Executive business of the Colony by the aid of his Council as he has of late been doing. I would also desire that accurate particulars of the expenditure of the H. Bay Company in the Island may be regularly transmitted to us.  
HL
Feb 9/56
Other documents included in the file
  • Draft, Colonial Office to Attorney General and Solicitor General, 1 October 1855, prompting action on their joint report on the establishment of a supreme court of civil justice in Vancouver Island.  
  • Draft reply, Labouchere to Douglas, No. 5, 28 February 1856, on "General Assemblies" and legal matters applicable to the governance of Vancouver Island.  
  • The first oppy for sending this desph is by the mail of the 1 proximo.  
    ABd
    Mr Ball
    Mr Labouchere proposes also to send these to Mr Ellise [Ellice]: but, I conclude, with a private letter?  
    HM
    (Another copy to be made & sent with a note from Ld Sandon).  
    [HM]
    Virgin Islands ActNo 214
    (I should propose sending him a copy of the Virgin Islands ordinance, which is most to the purpose.)  
    HM
  • Draft reply, Labouchere to Douglas, No. 6, 28 February 1856, on the "present state of affairs between Her Majesty's Goverment and the Husdon's Bay Company on Vancouver's Island."  
  • Draft reply, Labouchere to Douglas, Confidential, 28 February 1856, on the need for "calculated" governance on Vancouver Island, in light of "the disturbed state of the relations between Indian and American Settlers in Oregon and the North West generally [...]."  
  • We have the information now in authentic shape.  
    [HM]
  • Draft, Merivale to Governor, Hudson's Bay Company, 18 February 1856, forwarding copies of three despatches they propose to send to Douglas on the subject.  
  • (I suppose the "confidential" should be included.)  
    HM
     
    Despatch to London:
    Douglas to Russell, 25 July 1855, National Archives of the UK, 8991, CO 305/6. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871. Ed. James Hendrickson and the Colonial Despatches project. Victoria: University of Victoria. http://bcgenesis.uvic.ca/getDoc.htm?id=V55111.scx. Accessed 17 November 2018. 

    Last modified: 14:09:31, 16/2/2015