Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Despatch to London
Douglas, Sir James to
Russell, Lord John
25 July 1855, CO 305:6, no. 8991, 86.
Abstract
Despatch to London.
Minutes (10), Other documents (5), Marginalia (1).
Douglas writes to Russell to acknowledge receipt of Grey’s “confidential” despatch, which reports the Attorney and Solicitor General’s advice
that no Vancouver Island laws be enacted unless by “General assembly.” Douglas reports that he will not “make any further attempt at Legislation” until the receipt
of further instructions from Grey.
The minutes discuss at length the complex “legal question” embedded in Douglas’s despatch, and Labouchere asks that a confidential despatch be sent to Douglas, which authorizes Douglas to prorogue “the Assembly” and rely on “his Council,” should circumstances warrant.
The five documents included in the file discuss legal and governance matters applicable
to the same on Vancouver Island.
No. 11
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 anot
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.
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 inrespect
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.
I may also observe that whatever regulations you may please to establish, will not
I apprehend interfere with existing arrangements.
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 shall be guided by the instructions in reference to theseveral
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.
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.
The Right Honble Lord John Russel [Russell]
Her Majesty's principal Secretary of State
For the Colonial Department.
Her Majesty's principal Secretary of State
For the Colonial Department.
Minutes by CO staff
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?
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.
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.
I forward these again, in order to remind you in case you should find time to speak to me about them.
Mr Merivale
Secy. Let a Despatch be prepared to the Governor of Vancouvers Island to the following effect.
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.
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.
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.
Minutes by CO staff
The first oppy for sending this desph is by the mail of the 1 proximo.
Mr Ball
Mr Labouchere proposes also to send these to Mr Ellise [Ellice]: but, I conclude, with a private letter?
Mr Labouchere proposes also to send these to Mr Ellise [Ellice]: but, I conclude, with a private letter?
Other documents included in the file
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 [...]."
Minutes by CO staff
Other documents included in the file
Minutes by CO staff
(I suppose the "confidential" should be included.)