Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Public Offices document
Rogers, Baron Blachford Frederic to Merivale, Herman 5 October 1857, CO 305:8, no. 9208, 301.
Abstract
Public Offices document.
Minutes (5), Other documents (4).
Rogers writes to Merivale with his analysis of the “Rules of Court framed by the Chief Justice of Vancouvers Island.” Among his concerns are a jurisdictional debate over executive powers to alter rules;
the “imperfect” status of the provision to summon juries; and the authority of the
inferior court.
The minutes discuss a salary for the Chief Justice and the amendments to the “Rules.”
Enclosed is a draft amendment of the “Rules of Practice of the Supreme Court of Vancouvers Island;” a draft of “an Act to establish a Court of Summary Jurisdiction in Van Couver’s Island[sic];” a “Schedule of clauses in the Act of Parliament 9 and 10 Victoria Cap 95;” and “Amendment of Rules of Practice for Inferior Courts.”
Rogers to Merivale (Permanent Under-Secretary)
Emigration Office
5th October 1857
Sir
I have to acknowledge your Letter of the 19th ultimo, directing
me to report my opinion on certain Rules of Court framed by the Chief
Justice of Vancouvers Island.
2. The Order in Council of April 4 1856 established a Supreme
Court in that Colony declaringthat
that Juries should consist of persons so
qualified and in such number as the Court by rule might direct (the
verdict however being unanimous) and authorizing the Court generally to
make rules respecting the time and manner of holding the Court—the
manner of proceeding—the examination of witnesses out of the
jurisdiction on de bene esse—the proceedings of ministerial
officers—execution—the summoning &c of Jurors—the admission of
Barristers andSolicitors
Solicitors—the payment of fees—the granting of
probate—the duties and control of Executors—Administrators—Guardians
and Committees and other things "necessary for the proper conduct and
despatch of business"—these rules were to be framed "as far as the
circumstances of the Colony might permit . . . with reference to the
corresponding rules and forms in Her Majesty's Supreme Courts of Law and
Equity at Westminster"—and after being approved by the Governor in
Council were to be transmittedto
to Her Majesty in Council through
the Secretary of State for her final approbation or disallowance. They
are to take effect three months after publication in the Colony.
that Juries should consist of persons so
qualified and in such number as the Court by rule might direct (the
verdict however being unanimous) and authorizing the Court generally to
make rules respecting the time and manner of holding the Court—the
manner of proceeding—the examination of witnesses out of the
jurisdiction on de bene esse—the proceedings of ministerial
officers—execution—the summoning &c of Jurors—the admission of
Barristers andSolicitors
Solicitors—the payment of fees—the granting of
probate—the duties and control of Executors—Administrators—Guardians
and Committees and other things "necessary for the proper conduct and
despatch of business"—these rules were to be framed "as far as the
circumstances of the Colony might permit . . . with reference to the
corresponding rules and forms in Her Majesty's Supreme Courts of Law and
Equity at Westminster"—and after being approved by the Governor in
Council were to be transmittedto
to Her Majesty in Council through
the Secretary of State for her final approbation or disallowance. They
are to take effect three months after publication in the Colony.
3. The Governor now transmits two codes of rules (1) those for the
Supreme Court acting in the exercise of its ordinary Jurisdiction—and
(2) those for the same Court acting as an Inferior or Summary Court of
Justice.
4. The rules of the Supreme Court are evidently drawn "withreference"
reference" to the practice of the English Courts as much so (at the
least) I do not doubt as the circumstances of the Colony admit. But
they will require as it appears to me one or two slight amendments.
reference" to the practice of the English Courts as much so (at the
least) I do not doubt as the circumstances of the Colony admit. But
they will require as it appears to me one or two slight amendments.
5. The rules 108 and 109 authorize the substitution of an
affirmation for an oath and declare that a false affirmation shall be
punishable as perjury. These provisions appear to me not mere matters
of procedure but alterations of the Law of evidence and of the Criminal
Law which,therefore,
therefore, should have been provided for by an Act of the
Legislature and not a rule of Court. Till this objection is removed I
do not think that the body of rules now forwarded can properly receive
the sanction of Her Majesty in Council. And when this amendment is made
the opportunity might be taken for removing two other defects in them.
therefore, should have been provided for by an Act of the
Legislature and not a rule of Court. Till this objection is removed I
do not think that the body of rules now forwarded can properly receive
the sanction of Her Majesty in Council. And when this amendment is made
the opportunity might be taken for removing two other defects in them.
6. The provisions respecting appeals to Her Majesty in Council
(sections 119-125) are a mere transcript of similar provisions in the
Order in Council except that in Rule 122 line 5the
the words "for
prosecuting the appeal and" are omitted I suppose by a clerical error.
They are therefore unobjectionable. But the right of Her Majesty to
vary these rules should I think be expressly saved.
the words "for
prosecuting the appeal and" are omitted I suppose by a clerical error.
They are therefore unobjectionable. But the right of Her Majesty to
vary these rules should I think be expressly saved.
7. The provisions respecting the summoning of Juries (sections
57-58) appear very imperfect. The Sheriff is to summon "a sufficient
number" of "Jurors" and "special Jurors" for each Session of the Court,
but no qualification is prescribed for either class. I can only
conjecture that all adult males of Europeanorigin
origin are to be summoned in
turn for common Juries and that the Sheriff is to select a certain
number to act as Special Jurors. But whatever the intended rule is, it
should be laid down and should embrace some means of excluding persons
who were notoriously unfit to act. The distinction itself between
special and common Juries seems at first sight to be inapplicable to so
small a population.
origin are to be summoned in
turn for common Juries and that the Sheriff is to select a certain
number to act as Special Jurors. But whatever the intended rule is, it
should be laid down and should embrace some means of excluding persons
who were notoriously unfit to act. The distinction itself between
special and common Juries seems at first sight to be inapplicable to so
small a population.
8. The rules for the Inferior Court are open to a more fundamental
objection.
9. It is of course foundthat
that a mode of procedure modelled in that
of Her Majesty's "Superior Courts of Law and Equity at Westminster" is
too cumbrous for trifling cases which require prompt decision. And, to
meet this practical difficulty, the Chief Justice has declared, by Rule
of Court, that the County Courts Act (9 and 10 Vic cap 95) shall be
adopted by the Supreme Court of VanCouvers Island as the rule of its
procedure on occasion of certain monthly sittings, and that the Court
when acting under this Act shall be called "The Inferior or Summary
Court ofCivil
Civil Justice". The Chief Justice then promulgates as the
rules of the Inferior Court (mutatis mutandis) the rules framed by
proper authority for the procedure of the County Courts in England.
that a mode of procedure modelled in that
of Her Majesty's "Superior Courts of Law and Equity at Westminster" is
too cumbrous for trifling cases which require prompt decision. And, to
meet this practical difficulty, the Chief Justice has declared, by Rule
of Court, that the County Courts Act (9 and 10 Vic cap 95) shall be
adopted by the Supreme Court of VanCouvers Island as the rule of its
procedure on occasion of certain monthly sittings, and that the Court
when acting under this Act shall be called "The Inferior or Summary
Court ofCivil
Civil Justice". The Chief Justice then promulgates as the
rules of the Inferior Court (mutatis mutandis) the rules framed by
proper authority for the procedure of the County Courts in England.
10. It appears to me that in this course of proceeding the
Chief Justice—though doubtless with the best intentions has
entirely exceeded his authority. The Supreme Court has
authority over
Inferior Courts, but it is not itself such a Court (as is shewn
by the provision that its rules are to be analogous to thoseof
of the
Superior Courts of Law at Westminster) in the preceding lines, so left
it out nor has it the power to constitute an Inferior Court of Law. I
should incline, therefore, to think that the broad application of the
County Court Rules to its proceedings is inconsistent with the terms on
which it has received the power of making Rules.
of the
Superior Courts of Law at Westminster) in the preceding lines, so left
it out nor has it the power to constitute an Inferior Court of Law. I
should incline, therefore, to think that the broad application of the
County Court Rules to its proceedings is inconsistent with the terms on
which it has received the power of making Rules.
11. But on looking at the Imperial Act 9 and 10 Vic cap 95 I can
have no doubt that the adoption of "so much of that Act as is suitable
to the circumstancesof
of the Colony" is quite beyond the power of a Court of Justice.
of the Colony" is quite beyond the power of a Court of Justice.
12. The Act provides interalia that Miners may sue for
wages (section 64)—that parties to a suit may be examined (section
73)—that certain property and none other shall be protected from
execution (section 96)—and that a Landlord shall have certain rights
against goods taken in execution (section 107). It regulates the power
of committal for contempt (section 113)—imposes penalties on Officers
(sections 116-117)—and provides for their protection (section 139).
All these things are subjects ofLegislation
Legislation not modes of procedure to
be determined by a Rule of Court, and I can hardly doubt that a closer
scrutiny of the Act would elicit further reasons against its adoption by
a mere rule of Court.
Legislation not modes of procedure to
be determined by a Rule of Court, and I can hardly doubt that a closer
scrutiny of the Act would elicit further reasons against its adoption by
a mere rule of Court.
13. Observing how very much of the Act is either plainly
inapplicable to the circumstances of the Colony or (what is worse)
capable of a kind of perverse application to those circumstances, I
think it would be much better that the Legislature (within whose
province it falls) should eitherconstitute
constitute by a distinct enactment an
Inferior Court of Justice to be presided over by the Chief Justice under
rules and conditions explicitly laid down by them or him or (if it is
thought best to adapt the English Law subject to the usual and somewhat
perplexing qualification) should expressly specify those sections of the
Imperial Act which it is intended to apply (of course as far as
circumstances admit) to the Inferior Court of Justice of Van Couvers
Island. The power of making rules would of course be vested inthe
the
Chief Justice subject to the approval of the Legislature or of the
Governor in Council.
constitute by a distinct enactment an
Inferior Court of Justice to be presided over by the Chief Justice under
rules and conditions explicitly laid down by them or him or (if it is
thought best to adapt the English Law subject to the usual and somewhat
perplexing qualification) should expressly specify those sections of the
Imperial Act which it is intended to apply (of course as far as
circumstances admit) to the Inferior Court of Justice of Van Couvers
Island. The power of making rules would of course be vested inthe
the
Chief Justice subject to the approval of the Legislature or of the
Governor in Council.
14. When this is done (as it may be under the act 12 & 13 Vict cap
48) there will be no further reason why the Chief Justice should not
adapt to the Inferior Court of Van Couvers Island the Rules framed for
the English County Courts.
Herman Merivale Esq.
&c &c &c
&c &c &c
Minutes by CO staff
Mr Merivale
Perhaps you will also consider the question of salary to the Chief Justice, which the Governor raises in his desph 8557. The Legislature of V.C. Island is not very ready at raising taxes (see 8655).
Perhaps you will also consider the question of salary to the Chief Justice, which the Governor raises in his desph 8557. The Legislature of V.C. Island is not very ready at raising taxes (see 8655).
ABd
6 Oct
Mr Labouchere
As to salary to the Ch. Justice, I have nothing more to say: It was already minuted by Mr Blackwood on 8557 to refer this to the H.B.C. If they do not think it incumbent on them to make provision, we cannot, unless Parliament chooses to vote the money. But the whole question of Vanc. Id government has now to be considered.
As to salary to the Ch. Justice, I have nothing more to say: It was already minuted by Mr Blackwood on 8557 to refer this to the H.B.C. If they do not think it incumbent on them to make provision, we cannot, unless Parliament chooses to vote the money. But the whole question of Vanc. Id government has now to be considered.
As to these Rules, I think Sir F. Rogers would confer a great
kindness on a legislature so ignorant (professionally) if he would draft
or rather sketch in the simplest way the provisions which he thinks it
advisable they should Exact. I quite concur in his main objection.
HM
O 8
Yes—we must soon give a formal notice to the H.B. Company that we
mean to disconnect Van Couvers Island with them & the whole question of
its establishmt will have to be considered.
HL
O 10
Other documents included in the file
"Draft amendment of the Rules of Practice of the Supreme
Court of Vancouvers Island," no date.
Minutes by CO staff
Mr Merivale
I annex
I annex
1. A draft of such amendments as are, I conceive, wanted in the
Rules of the Supreme Courts; wh rules seemed to me to be to be
defective in one point (Juries) & to exceed or have some appearance of
exceedg the powers of the Court in some others (Executions, Evidence,
Appeals).
2. A draft of An Act adopting the English County Courts Act, wh
the C.J. attempted (illegally I conceive) to do by Rule of Court. The
draft gives retrospective validity to the C.J.'s rules.
3. Notices of two or three points on wh the Rulesof
of the Summary Court seem to require amendment.
of the Summary Court seem to require amendment.
The Govt will I suppose be informed that these drafts are meant
to assist the C.J. in effecting legally what he desires; but that he
shd still satisfy himself that they will have that effect, & make any
modifications wh the practice or circumstances of V.C.I. may require.
FR
7/12
Mr Labouchere
I should propose sending out these drafts, which Sir F Rogers has had the kindness to prepare, with a short covering despatch. See 9208 & minutes.
I should propose sending out these drafts, which Sir F Rogers has had the kindness to prepare, with a short covering despatch. See 9208 & minutes.
Other documents included in the file
*
"Draft of an Act to establish a Court of Summary Jurisdiction in
Van Couver's Island," no date.
"Schedule of clauses in the Act of Parliament 9 and 10 Victoria Cap
95 which are extended by this Act to the Colony of Van Couvers Island,"
no date.
"Amendments of Rules of Practice for Inferior Courts," no date.