Colonial Despatches

Mr Holland

Sir F. Rogers
It may be assumed that it would have been better, had there been no existing Courts & vested interests in the way, to have had one Supreme Court for the whole Colony. But the question was how best to deal with the state of things existing after the Act of Union had passed; and this question has been considerably complicated by the fact of the Governor, Attorney General & Judge Begbie holding that the Supreme Court of V. Island had been swept away by the Act. This view was pointed out to be incorrect, but they adhered to it, and opposed the scheme which was suggested to them, on the ground (amongst others) that local legislation on the subject was impossible, thus overlooking (as it appeared to me) the Colonial Laws Validity Act 28 & 29 Vict c. 63.

The Law Officers were consulted, and decided in favor of the views taken by the Home Govt; & a draft ordinance was sent out, not necessarily to be passed en bloc, but embodying the scheme in general terms, & leaving any special details to be introduced in the Colony.

Further objections are now raised, but it appears to me that most of them might be met by clauses in the Ordinance, if the Attorney General & Judges would but make up their minds what is wanted & cordially get to work to make the best of what is avowedly only a temporary arrangement. A Bill based upon the Draft Ordinance has been introduced, but I doubt very much from the tone of the A. General's reports, which are annexed to this & to the Confidential Despatch, whether there will be any real attempt on his part to grapple with & remedy the objections to the measure.

The working of the 2 Courts has not been rendered more difficult by the Union but, on the contrary, greater facilities are now afforded of making it more useful.

I suspect that the opposition to the proposed measures is to be traced to the strong, though erroneous, view originally entertained as to the the effect of the Imperial Act of Union.

I would reply to the Governor somewhat as follows:

The draft ordinance, which was settled by the Law Officers of the Crown, was sent out to guide & assist the Colonial Legislature in carrying out a measure, which, with reference to the terms of the Imperial Act of Union & the existing interests in the Colony, appeared to HG to be best calculated to meet the difficulties of the case. That measure is admittedly open to some objections, but HG had hoped that by the cordial co-operation of the Judges & Attorney General those objections would substantially have been removed by the introduction of clauses into the Ordinance during its progress through the Legislature. HG cannot help observing that many of the difficulties now raised by the AG could readily be met by Legislation. The fact of the Union has not made the working of the 2 Supreme Courts more difficult, but, on the contrary, has given facilities for rendering it more harmonious & useful. Then, to mention one instance, it has given facilities for constituting a Court of Appeal which did not exist before.

HG still entertains a hope that when the Ordinance is sent over he shall find that steps have been taken to remedy difficulties pointed out by the A.G. & Judges, which had not escaped the attention of HG but which he is assured may to a great extent be obviated by Legislation.

I think the Govr & his A.G. shew a [determination] to make the arrangement fail & charge the failure on the Home Govt wh has endeavoured to help them. I would therefore add that though HG does not find in the papers before him any reason to doubt that the principle of the draft ordinance is capable of being worked with perfect ease by intelligent officers whose desire is that public affairs shall be properly conducted, yet that Mr Seymour must observe that it is by no means HG's desire to preclude the Govr & Legre from adopting any other mode of dealing with the existing anomalies wh witht injustice to existing officers seems to them to promise a more satisfactory practical result.

Sir F. Rogers
I should think it very desirable to send out these Despatches by the Mail of the 27th as they may then get out before the Ordinance is passed and therefore in time to shew the Govr that HG adheres to the measures proposed & will serve as a spur to the Govr and A.G. to do the best they can.

Mr Holland thinks it very desirable that this dph should go out by the Mail of the 27th.

Chief Justice Needham, no date, remarking upon various clauses in the Supreme Courts Ordinance 1868.

H.P.P. Crease, Attorney General, to Seymour, 14 March 1868, stating his objections to the ordinance.

Crease, no date, commenting on the remarks made by Needham as noted above.

Draft reply, Buckingham to Seymour, No. 40, 26 June 1868.