No. 81

With reference to your Despatch of the 10th July upon the subject
of the judicial arrangements to be made in consequence of the Union of
Vancouver Island with British Columbia, and to the Memorandum of Mr.
Begbie and the report of the Attorney General transmitted therewith, I
must express my regret that you should have met with so much opposition
and difficulty with regard to the scheme proposed in my Despatch of the
14th March, a scheme which though it may be open to some objection on
the ground that it contemplated the existence for a certain time of two
Supreme Courts in the Colony, was, as I still continue to think, well
calculated, under the peculiar circumstances of the case, to remove the
existing difficulties, and to secure the due administration of justice,
while affecting, as little as possible, existing rights and interests.

The question whether such a scheme could be carried out by a local
Ordinance had been duly considered, and no doubt was entertained but
that the Colonial Legislature had the power, if they were so minded, to
pass such an Ordinance under the provisions of the 5th Section of the
Act "to remove doubts as to the validity of Colonial Laws," an Act which
I am inclined to believe must have escaped the attention of both the
Judges and the Attorney General.

Under the circumstances, however, I thought it desirable, when
laying a case before the Law Officers of the Crown for their opinion,
to submit this point also to them, and to lay before them a draft
Ordinance framed to carry into effect the above mentioned scheme, in
case they should be of opinion that such a scheme might be carried out
by a local Ordinance.

I have now to inform you that I am advised by the Law Officers
that, although the question is not entirely free from doubt, the Supreme
Court of Civil Justice of Vancouver Island continued to exist
notwithstanding the passing of the British Columbia Act 1866, that no
doubt can be entertained respecting the power of the legislature of
British Columbia to make Laws abolishing, reconstituting, or altering
the constitution of the last mentioned Court, and that the draft
Ordinance submitted to them will, if passed by the Legislature of
British Columbia, give effect to the intention proposed, and that it is
not open to objection on any of the grounds indicated by Mr. Begbie, or
on any other grounds.

I transmit to you for your information and guidance a Copy of
the draft Ordinance which has been submitted to and approved of by the
Law Officers; and I trust that it may receive the careful
consideration and approval of your Legislature, and thus be the means of
putting an end to the questions which have been raised in the
Colony.

In case this or any similar Ordinance be passed by your
Legislature it will be necessary to add a Clause explaining the term
"Supreme Court of Civil Justice of British Columbia" which has been
adopted in recent Ordinances, and to declare which Court in each case is
to be taken as referred to.

Should any further question arise as to the payment of the
Salaries of the Judges, or as to making the same charges upon the
revenues of the Colony, which however I do not anticipate, I need
hardly point out to you how very desirable it will be that such
questions should, as soon as possible, be set at rest by Legislation;
and this observation applies to any alterations in the seals of the
two Courts, the forms of process and so forth, which may have become
necessary by reason of the Union of the two Colonies.

I am quite unable to understand the difficulty which is supposed to
exist in the temporary establishment of two Supreme Courts in the same
Colony. No difficulty is experienced in this Country from the
co-existence of the Queen's Bench and the Court of Common Pleas, or
from the co-existence of the English and Irish Courts of Justice.