Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Public Offices document
Collier and Attorney General to
Cardwell, Edward 21 October 1864, CO 305:24, no. 9762, 149.
Abstract
Collier and Attorney General to
Cardwell, Edward 21 October 1864, CO 305:24, no. 9762, 149.
Public Offices document.
Minutes (2), Other documents (1).
Collier and Attorney General to Cardwell
Lincolns Inn
October 21st 1864
Sir,
We are honored with Your commands, signified in Sir Frederic Rogers's
letter of the 5th of October, instant, stating that he was directed
by you to transmit to us the accompanying copy of a Despatch from
the Governor of VancouverIsland
Island, enclosing a correspondence relative
to the power of the Government of the Colony to collect arrears of
the Tax on Real Estate in the Colony under the Act passed by the
Legislature in December 1862, entitled "An Act to amend the Real
Estate Tax Act 1860."
Island, enclosing a correspondence relative
to the power of the Government of the Colony to collect arrears of
the Tax on Real Estate in the Colony under the Act passed by the
Legislature in December 1862, entitled "An Act to amend the Real
Estate Tax Act 1860."
Sir Frederic Rogers was also pleased to state that he was desired to
call our attention to the 42nd, 45th, 47th, and 53rd Sections
of this Act, and to the opinion expressed in the letter from the
Chief Justice dated the 26th of July,1864
1864, to the effect that the
Legislature of Vancouver Island had not authority to make Real
Property in the Colony alienable for a charge which is only a
personal one in this Country.
1864, to the effect that the
Legislature of Vancouver Island had not authority to make Real
Property in the Colony alienable for a charge which is only a
personal one in this Country.
Sir Frederic Rogers was further pleased to enclose copy of an
Imperial Act passed 28th of July 1849 "To provide for the
administration of Justice in Vancouver Island," and also an extract
from the Commission appointing James Douglas Esquire to be Governor
and Commander in Chief ofVancouver
Vancouver Island, and empowering the
Legislature of the Colony to make Laws; and to request that we would
take these papers into our consideration, and inform you whether we
consider that there is any reason for doubting the validity of the
above cited clauses of the "Act to amend the Real Estate Tax Act
1860."
Vancouver Island, and empowering the
Legislature of the Colony to make Laws; and to request that we would
take these papers into our consideration, and inform you whether we
consider that there is any reason for doubting the validity of the
above cited clauses of the "Act to amend the Real Estate Tax Act
1860."
In obedience to Your commands we have taken this matter into
consideration, and have the honor to
Report
That we are of opinion that it was competent to the Legislature
of the Colony topass
pass the "Act to amend the real Estate Act 1860" in
its present shape; and that having been assented to by the Governor,
and not disallowed by Her Majesty that Act ought to be enforced.
Whatever may have been the opinion of the Chief Justice on the
subject of its policy he would be highly culpable if he were to allow
that opinion to influence him in the discharge of the plain duty now
cast upon him to give effect to its provisions in any case which may
come before him: and if he conceives that, (as a matter of law), this
Actis
is "repugnant," and not "as near as may be agreeable" to the Law
and Statutes of the United Kingdom in the sense of the words of
limitation contained in the Governor's Commission of the 16th May
1851, we are but repeating (in a much clearer case) what we have
already advised upon similar questions arising in the Australian
Colonies, when we express our very decided dissent from such a view.
pass the "Act to amend the real Estate Act 1860" in
its present shape; and that having been assented to by the Governor,
and not disallowed by Her Majesty that Act ought to be enforced.
Whatever may have been the opinion of the Chief Justice on the
subject of its policy he would be highly culpable if he were to allow
that opinion to influence him in the discharge of the plain duty now
cast upon him to give effect to its provisions in any case which may
come before him: and if he conceives that, (as a matter of law), this
Actis
is "repugnant," and not "as near as may be agreeable" to the Law
and Statutes of the United Kingdom in the sense of the words of
limitation contained in the Governor's Commission of the 16th May
1851, we are but repeating (in a much clearer case) what we have
already advised upon similar questions arising in the Australian
Colonies, when we express our very decided dissent from such a view.
We have the honor to be
Sir,
Your most obedient
humble Servants
R.P. Collier
(For the Attorney General & myself)
Sir,
Your most obedient
humble Servants
R.P. Collier
(For the Attorney General & myself)
Minutes by CO staff
Send this to the Colony observing that although the opinion of the L.
Offrs of the Crown is not binding upon the judgment of the C.
Justice Mr C. cannot [doubt that] a gentleman who has himself
had no professional education will probably attach much weight to the
decided opinion on a purely legal point to two so eminent lawyers as
Sir R. Palmer & Sir R.P. Collier
and therefore authe the Gov.
to shew this dph and the opinion to Mr Cameron privately.
and therefore authe the Gov.
to shew this dph and the opinion to Mr Cameron privately.
Also enclose for the Gov. & for Mr Cameron two copies of the
Boothly Parly Papers.
And inform the Govr that he is not to make any public use of the
L. Offrs opinion.
(I think it wd be better not to make it public unless it appears
that Mr Cameron is obstinate & mischievous wh may not prove the
case.)
Other documents included in the file
Draft, Cardwell to Kennedy, Confidential, 27 October 1864, transmitting Collier's opinion on an Act passed by the Vancouver Island legislature and two copies of a parliamentary paper "containing the opinion referred
to by the Law officer".