No. 86

I have had the honor to receive Your Grace's despatch No. 5
of the 14th March, on the subject of the Judiciary arrangements
to be made in consequence of the Union of Vancouver Island with
British Columbia.

2. Your Grace states that the Act of Parliament under which
these Colonies were united was not intended to touch titles,
jurisdiction, powers and position of the Judges and that it appears
to Your Grace not to have touched them. Therefore Mr Needham
is still Chief Justice of Vancouver Island with all the same powers
and authority that he had before the Act passed.

3. But since doubts have arisen as to Mr Needham's position,
and as, on the mainland, so meritorious a Public Servant as Mr
Begbie should not suffer any loss of importance by the amalgamation
of the Colonies, Your Grace directs me to apply for Legislative
aid to settle the positions of the two Judges. Both are to have the
title of Chief Justice. The one having precedence on the mainland.
The other on the Island. Should a vacancy occur, the remaining Judge
to have the title of "Chief Justice of British Columbia" and a Puisne
Judge to be appointed under him for the whole Colony. Jurisdiction
to be given to each Chief Justice over every part of the Colony of
British Columbia as now constituted.

4. I need not say how anxious I am to carry Your Grace's
instructions into effect, but I meet with difficulty at every step
and Judges are not officers I should wish to coerce.

5. Being at New Westminster at the time of the receipt of
Your Graces's despatch I sent first for Mr Justice Begbie. He
professed his willingness to assist me in every way in obeying
Your Grace's orders. He was ready, though reluctant, to accept a
title which though conferring a higher rank seemed to him to
diminish the jurisdiction of his Court. He did not see how, if
the Order in Council of 1856 were still in existence, he could be
appointed a Judge under it without a Warrant under the Royal Sign
Manual and a Commission under the Public Seal of the extinct
Colony of Vancouver Island. Further, that if the Orders in
Council of 1856 were still in force, the "Supreme Court of the
Colony of Vancouver Island" now subsists in entire independence
of the existing Legislature and Executive. But I will allow Mr
Begbie to speak for himself in the Extracts from a Minute by him
which I enclose.

6. I then spoke to Mr Needham. He seemed pleased that
Your Grace was of opinion that his powers and position were
unchanged by the Act of Union. But if he was expected to act as
a Puisne Judge under Mr Begbie, he would not do it. He would
receive no further Commission from me. He would stand upon the
Orders in Council of 1856. He repudiated the Authority of the
Local Legislature to make Laws to effect his Court. I annex a
judgement recently given by Mr Needham to the above effect.
With one Judge, anxious to conciliate yet adverse to accept the
distinction of title offered, who held the opinion that if the
Court of Vancouver Island exists at all, he could not be appointed
a Puisne Judge of it without the Sign Manual and the revival of
an apparently extinct Seal and who further was persuaded that in
the above supposed case the Local Legislature could not give me the
aid suggested by Your Grace, I began to hesitate in applying to
the Council for assistance. But when I found that the other Judge
would accept of no compromise and distinctly repudiated the
Authority of the Local Legislature to interfere, I felt that I must,
though with great reluctance, fall back upon Your Grace for further
instructions.

7. It may perhaps under the circumstances be immaterial
to state that the Legislative Council is not now in session.

8. Before troubling Your Grace, however, I referred for
the advice of the Attorney General. I enclose the report with
which he has furnished me. He also thinks a local settlement of
the question impossible. [He] Prays for the opinion of the Law
Officers of the Crown and forcibly points out the dangers of the
present state of uncertainty with the prospect ahead of all the
sectional bitterness of this divided Colony breaking forth in the
next Session of the Legislature. I beg to call Your Grace's
particular attention to this letter.

9. As for myself I stand as much aloof from the whole
matter as I can. The burdened Colony still bears the expense of
two separate Supreme Courts. Both Judges proceed according to
their own judgement without any interference, and both are by
Courtesy called Chief Justice, though Mr Begbie has not
accepted the appointment of Chief Justice of the Mainland, and
though I cannot free my mind of the doubt as to whether the
Proclamation of Union did not sweep away Mr Needham and his Court.