Cockburn and Bethell to Grey

We were honoured with Mr Peel's Letter of the 7th September
last in which He stated that he was directed to transmit to us
copy of an Act passed by the Governor and Council of Vancouvers
Island intituled "an Act to establish a supreme Court of Civil
Justice in the Colony of Vancouvers Island and its dependencies"
and to request that We would favor you with our opinion on the
following questions.

That Vancouvers Island was situated on the North West Coast of
America, was part of the Indian Territories or parts of America
not within the limits of lower or upper Canada within the words
of the Act 43 Geo 3 Cap 138 and was recognized as a portion of
Her Majesty's Dominions by the Treaty with the United States of
15th 
June 1846:

That Vancouver's Island was erected into a separate Colony in
1849 under circumstances which would be collected from the
annexed Charter or Grant of the Island to the Hudson's Bay
Company the printed correspondence between the Colonial Office
and the Hudsons Bay Company thereon the Governor's Commission
and Instructions and the Act 12 and 13 Vict C 48 "to provide for
the administration of Justice in Vancouvers Island":

That it was presumed (subject to our opinion on the point) that
Vancouvers Island was a Colony by occupation not by conquest:

That the Commission granted to the Governor power, with the
advice of the persons designated in the Instructions to
constitute a Council to make and enact such laws and Ordinances
as might from time to time be required for the peace 
Order and
good Government of the Colony. It also gave power to the
Governor, with the advice and consent of the Council to call
together a General Assembly of freeholders qualified as therein
specified, and with the advice and consent of the Council and
Assembly to make laws and Ordinances &c:

That the Council had been constituted agreeably to the
Commission and Instructions:

That no General Assembly had, as yet, been summoned and it might
be assumed for the purpose of this case (although Her Majesty's
Government had not distinct evidence on the subject before them)
that the number of qualified freeholders in the Island was as
yet extremely small, so as to render the summoning [of] such an
Assembly a matter of much difficulty:

That the question on 
which He (Mr Peel) was desired to request
our opinion was, whether the Ordinance now submitted to us,
passed by the Governor and Council alone could be legally
assented to by the Crown and would have the force of law.

In obedience to Your request, We have taken the said Ordinance
in our consideration, and have the honor to Report:

That the Act in question professes to be enacted by the Governor
with the advice and consent of the Members of the Council and by
the authority of the same. But the power of Legislation though
expressed by the Letters Patent to be given to the Governor and
Council is thereby directed to be exercised according to the
Instructions under the sign Manual accompanying the Patent; and
by those Instructions the power of Legislation is vested (as by
Law it must be) in the Governor Council and General Assembly.
We do not think therefore that the Ordinance or Act in question
can be properly assented to by the Crown or that it would have
the force of Law.