Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Public Offices document
Kelly and Cairns to Lytton, Sir Edward George Earle Bulwer 18 June 1858, CO 6:26, no. 5898, 3.
Abstract
Public Offices document.
Minutes (2), Enclosures (transcribed) (1).
Kelly and Cairns present the Colonial Office with their findings after they had “perused and settled”
the draft of a “Warrant for appointing a Lieutenant Governor over a portion of Her
Majesty’s Territories and Possessions in North America to the West of the Rocky Mountains.”
They note a couple jurisdictional “obstacles” but note that there is nothing preventing
the appointment of a Lieutenant Governor.
The minutes acknowledge that an Act is in “contemplation” and it should get “rid”
of the Canadian courts’ jurisdiction “as suggested.”
Kelly and Cairns to Lytton
Temple
June 18, 1858
Sir,
We were favored with Lord Stanley's Commands signified in Mr Merivale's letter of the 22nd April ultimo in which he stated that he was directed by Lord Stanley to request that we would peruse and settle the annexed Draft of a Warrant for appointing
a Lieutenant Governor over a portion of Her Majesty's Territories and Possessions
in North America to the West of the Rocky Mountains, and
That the territory in question is not a portion of the land claimed by the Hudson's
Bay Company under their Charter but is included in the Crown Grant to the Hudson's
Bay Company of
of exclusive Trade with the Indians of the year 1838 of which a Copy was annexed.
of exclusive Trade with the Indians of the year 1838 of which a Copy was annexed.That the power reserved to the Crown at the close of this grant to form new Colonies
revoking as to such Colonies the concession of exclusive Trade, has not been exercised,
nor is it proposed at present to exercise it, the grant itself being about to expire
on the 30th May 1859.
That the object of the present Commission is (if practicable) to establish a temporary
authority until the Crown shall be at liberty by the expiration of that grant to take
more general measures, that this step was rendered desirable by the circumstance that
the recent discovery of Gold on and near the Columbia and Fraser's River may probably attract settlers to the territory in question.
Mr
Mr Merivale was pleased also to refer us to the Acts of Parliament 1 & 2 Geo. 4 c. 66 "for regulating
the Fur Trade &c" and 43 Geo. 3 c. 138. "for extending the jurisdiction of the Courts
of Justice in the provinces of Lower & Upper Canada &c" and to the 12 & 13 Vic. c.
48, amending the same as regards Vancouver's Island; and to request that we would advise Lord Stanley generally as to the legal steps which might in our opinion be advisable for carrying
into execution the temporary purpose above stated.
In Obedience to his Lordship's Commands we have perused the papers forwarded to us
and have the honor to Report
That
That we have perused and settled the Draft Warrant referred to in Mr Merivale's letter and have appended our initials to the same.
That we think it right to submit to you that inasmuch as the Act 1st & 2 Geo. 4 c. 66 places the territory in question under the jurisdiction of the Courts
of Judicature of Upper Canada for certain judicial purposes some difficulty may hereafter
arise in consequence of the Jurisdiction for Judicial purposes being derived from
a source different from that which confers the executive power.
It would therefore appear to us to be desirable that An Act of Parliament should be
passed at some fitting opportunity which may remove the obstacles we have mentioned
as arising out of the provisions of the Act of 1 & 2 Geo. 4.
This course appears to have been thought necessary in 1849 when the Act 12 & 13 Vic. c 48 "to provide for the administration of Justice in Vancouvers
Vancouver's Island" was passed, and the territory in question is, as we understand in the same position
with respect to Canada as Vancouver's Island was before 1849.
Vancouver's Island" was passed, and the territory in question is, as we understand in the same position
with respect to Canada as Vancouver's Island was before 1849.There is nothing however to prevent the appointment of a Lieutenant Governor of the
district being made, and it may well be that during the temporary arrangement now
contemplated none of the inconveniences to which we have referred may actually occur.
Minutes by CO staff
Lord Carnarvon
You are aware that an Act is now in contemplation. That Act should contain a clause getting rid of the Canadian courts' jurisdiction as suggested?
You are aware that an Act is now in contemplation. That Act should contain a clause getting rid of the Canadian courts' jurisdiction as suggested?
Documents enclosed with the main document (transcribed)
Draft, Warrant for appointing Douglas Lieutenant Governor of the territory west of the Rockies between 49 and 54 degrees north latitude, initialed by Kelly and Cairns.
Draft of a Warrant for appointing James Douglas Esquire, Governor and Commandeer in Chief of Vancouver’s Island and its dependencies, to be Lieutenant Governor of Her majesty’s Territories and
Possessions in North America which are bounded on the North by the 54th Degree of
North Latitude, on the East by the Rocky Mountains and on the South by the 49th Degree of North Latitude.
_______________________________________________________
Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland Queen;
Defender of the Faith: To Our Trusty and Well beloved James Douglas Esquire, Our Governor and Commander in
in and over Our Island of Vancouver and the Islands adjacent between the 49th and 52nd Degrees of North Latitude; Greeting.
in and over Our Island of Vancouver and the Islands adjacent between the 49th and 52nd Degrees of North Latitude; Greeting.We reposing especial Trust and confidence in your Loyalty, Integrity, and Ability,
do by these Presents constitute and appoint you to be our Lieutenant Governor of all
those Territories and Possessions of Our Crown in North America which are
bounded
bounded on the North by the 54th Degree of North Latitude, on the East by the Rocky Mountains, and on the South by the 49th Degree of North Latitude, under the style and title
of the “Fraser’s River Territory,” to have, hold exercise and enjoy, the said Place and Office during Our Pleasure;
with all the rights, profits, privileges and advantages to the same belonging or appertaining.
And We do hereby authorize and
and require you to exercise and perform all such Orders and Instructions as you shall
or may hereafter receive from Us: And We do hereby command all and singular Our Officers,
Ministers, and Loving Subjects in Our said Territories and Possessions, and all others
whom it may concern, to take due notice hereof, and to give their ready obedience
accordingly.
bounded on the North by the 54th Degree of North Latitude, on the East by the Rocky Mountains, and on the South by the 49th Degree of North Latitude, under the style and title
of the “Fraser’s River Territory,” to have, hold exercise and enjoy, the said Place and Office during Our Pleasure;
with all the rights, profits, privileges and advantages to the same belonging or appertaining.
And We do hereby authorize and
and require you to exercise and perform all such Orders and Instructions as you shall
or may hereafter receive from Us: And We do hereby command all and singular Our Officers,
Ministers, and Loving Subjects in Our said Territories and Possessions, and all others
whom it may concern, to take due notice hereof, and to give their ready obedience
accordingly.Given at Our Court at this
day of 1858 in the 21st year of
Our Reign.
day of 1858 in the 21st year of
Our Reign.
By Her Majesty’s Command.