No. 40

In Your Lordship's Despatch No 82 of the 9th of August,
acknowledging Mr Seymour's Despatch No 58 of the 24th March,
forwarding a Petition addressed to the Queen by the Legislative
Council praying her Majesty to remove the present unsatisfactory
condition of the Courts of Justice of British Columbia, Your
Lordship observes in reply that if the Ordinance No 8 of 1869
is likely to cause some of the inconveniences apprehended by the
Legislative Council it is unfortunate that the Council did not
act upon the invitation made by the Duke of Buckingham in his
Despatch of the 26th June 1868 No 40 and modify the Draft
Ordinance sent from England so as to remove or mitigate these
inconveniences.

2. I think it right to acquaint Your Lordship that not only was
the Duke of Buckingham's invitation contained in that Despatch
never communicated to the
Legislative Council, but that the Executive Council
were also without any knowledge of the permission which it
conveyed. I naturally laid before the Executive Council Your
Lordship's last Despatch and the greatest surprise was
expressed; the Attorney General, the Chief Commissioner of Lands
and Works, the Collector of Customs, the Members of the Board at
the time of the passage of the Bill, with the exception of Mr
Young late Colonial Secretary who has now left the Colony,
requested to be allowed to place a Memorandum on the Minutes of
the Council, of which I enclose a Copy; from which it is obvious
that the Bill was passed by the Votes of the Official Members
only, and by those members under the impression that it was the
expressed desire of the Secretary of State that the Draft Bill
sent out should be so passed without modification of any importance.

3. I very unwillingly trouble Your Lordship upon a subject
which has already occasioned much correspondence, but I know
that Your Lordship's reply to their Memorial cannot be
communicated to the Legislature under the circumstances which I
mention, without causing much discussion and irritation; and I
should regard myself as failing in my duty if I withheld from
Your Lordship my knowledge of the great dissatisfaction which
prevails upon the subject of the duplex judicial system, and the
feeling which has been excited by the manner in which it is
supposed that the Act of 1869 has been forced by Her Majesty's
Government upon the acceptance of the community against its will.

4. I enclose Copies of two Memorials presented to me almost
immediately upon my arrival—one signed by nearly all the men of
business in the Colony, and the other by nearly all the Members
of the legal profession—both urging strongly the objections
entertained to the division of the Colony by the separate action
of two Courts. It is certainly a significant fact within my own
knowledge that the Chief Justice of the Mainland has been in the
practice at times for the convenience of suitors, of sitting in
Victoria Vancouver's Island to hear applications and make
orders, in respect of the Courts of the Mainland. It is not for
me to decide upon the legality of such a proceeding, though I
admit that I regard it as open to doubt, but I mention the fact
as illustrating the practical difficulty which exists in
separating the legal business of the Mainland from the
Commercial requirements of Victoria which is the Mercantile
focus of the whole Colony. It is exceedingly expensive and
troublesome to the Mercantile body in Victoria to be obliged to
send up to New Westminster nearly 100 miles distant by Sea to
take proceedings before the Court there in respect of their
dealings with parties on the Mainland.

5. The object in view is that concurrent jurisdiction should be
established, or in other words that the two Courts should be
made one or branches of the same, giving the two Judges
coordinate authority, and enabling them to sit together in bench
when necessary as a Court of Appeal for the reconsideration of
the decisions of either. At present although the Ordinance of
1869 provides for the sitting together of the two Judges it is
only at the request of either of them for the assistance of the
other, and not as a matter of right or option with suitors.
I enclose for your Lordship's information a Copy of the Report
of a select Committee of the Legislative Council made during the
last Session which I believe has not hitherto been submitted to you.

6. I am not ignorant of the one great defect which may be urged
in respect of the latter portion of this proposed arrangement
but it is not necessarily inseparable from the concurrence of
jurisdiction. The chief objection is that in the event of
difference of opinion between the two Chief Justices there would
be no Umpire. In reply it is urged that such cases would
probably be rare, as compared with the whole legal business of
the Court; and that the fact of the decision of either single
Judge being liable to revision by his colleague in conjunction
with himself, would tend to induce more careful and mature
deliberation in the first instance; while in the rare case of
decided disagreement it would be open to the parties to appeal
to the Judicial Committee of the Privy Council; the position of
suitors being at all events even in these cases rendered no
worse than at present, when they are without the means of
obtaining any local revision of the decision of a single Judge.
And it is said that in many cases there must be great advantage
in the opportunity being afforded to any single Judge for
consultation with a Co-adjutor upon difficult questions.

7. There can be little doubt that much advantage might be so
derived where two Judges work harmoniously together. But if it
should be thought that risk of irreconcileable opinion is too
great to be encountered, it is quite possible to establish
coordinate jurisdiction for both branches of the Court over the
whole area of the Colony without provision for the sitting
together of the Judges, simply leaving it to suitors to
determine in which section of the Colony and before which Judge
they prefer to bring their suits or to take proceedings.

8. In such a measure as I venture respectfully to suggest to
Your Lordship it does not appear that the status or emoluments
of the two Chief Justices need in any way be touched. They
would remain the Chief Justices of Vancouver Island and the
Mainland respectively, and precedence may be given to the one in
Vancouver Island and to the other on the Mainland as is provided
in the Ordinance of 1869 for cases where they might sit together
by private arrangement. But they would, in fact, become Judges
of the same Court which would have uniform jurisdiction
throughout the limits of the Colony; separate writs and double
legal proceedings would no longer be necessary in respect of
business between Victoria and the Mainland; and a great cause of
discontent would be removed so far as it appears possible to
lessen or remove it during the incumbency of the Gentlemen who
now hold the Office of Judge in the two sections of the Colony.

9. If Your Lordship does not disapprove of what has been
suggested and will permit a Bill to be introduced for giving
effect to this arrangement I am sure that it will be received
with satisfaction both by the Legislative Council and the
Community. In this case it would enable me to save much time if
Your Lordship would kindly convey your sanction by telegraph.