Colonial Despatches

I transmit to you copy of an opinion received by this Department from the Attorney and Solicitor General, in which, as you will perceive, those Officers deny altogether the power of legislation assumed by you with the advice of Your Council under your Commission, and advise the Secretary of State that no laws can be passed in Vancouver's Island except with the concurrence of a General Assembly.

2. Although the opinion even of legal functionaries of this eminence cannot, of itself, invalidate what had been done, and amounts only to the expression of a serious doubt of its legality, yet it becomes necessary that great caution should be used, and that no additional steps should be taken which may be subject to the like doubt.

3. Her Majesty's Government have it in contemplation to give you as soon as possible definite instructions suited to this emergency. But the matter is one of considerable difficulty: and, in the meantime, I am desirous that you should not be ignorant of your legal position, and should be able, as far as possible, to guide yourself under it.

4. As far as the (invalid) Act submitted to the Law Advisors is concerned (that establishing a Supreme Civil Court) there will be no permanent difficulty, inasmuch as the Act "to provide for the administration of Justice in Vancouver's Island" 12th & 13th Vict: ch: 48, reserves powers to the Crown to take all necessary steps for the administration of Justice. I have therefore directed the preparation of an Order in Council, embracing the important provisions of the invalid Act, and giving power to the Court to make the necessary rules and regulations for it's own conduct. I apprehend that you will be able to conduct the legal civil business of the Island under this Order in Council until a local Legislature is constituted.

5. I have not thought it advisable to include Criminal Jurisdiction in the same Order, not being fully aware how this could be done without interfering with existing arrangements. But I wish you to transmit to me without delay a report as to the manner in which a Criminal Court should in your opinion be constituted, in order that a second Order in Council may be passed for that purpose.

6. The only other Act of the Governor & Council which has yet reached me, that for prohibiting the gift or sale of intoxicating liquors to Indians, is, of course, for the same reasons invalid in the opinion of the Law Advisors. I can only advise you to continue to act in this respect in the same manner as you did before the passing of that Act, not under the force of a legislative Enactment which cannot be at present framed, but under the general powers vested in you for the preservation of the peace of the Colony.

7. You cannot impose any tax or duty on the inhabitants of the Island. But the grants of licences for the sale of liquors & for other purposes may for the present be persevered in, as a Police regulation which is within your power to enforce.

8. The revenue derivable from sale of land, from Licences to cut timber, and in other ways from the produce of Crown land, is also, I presume, legally raised, as the land and its proceeds are vested in the Hudson's Bay Company by the Grant.

9. The Law of England for all Criminal and all important Civil purposes is without doubt in force in the Island, in the absence of local legislation, and may be enforced by the proper tribunals.

10. I regret to be obliged to convey to you such imperfect instructions for the time on a subject of so much consequence, and must rely mainly on your judgment and Discretion in carrying them into execution for the present.

11. I have made this Despatch "Confidential", in order that you may use your own discretion as to the mode and time of making public the serious doubts of the legality of existing measures which it conveys. But you must take care that there is no further attempt at Legislation by a body which there is so much reason to consider devoid of the power to make laws.