Rogers to Merivale (Permanent Under-Secretary)

I have to acknowledge your Letter of the 19th ultimo, directing
me to report my opinion on certain Rules of Court framed by the Chief
Justice of Vancouvers Island.

2. The Order in Council of April 4 1856 established a Supreme
Court in that Colony declaring 
that Juries should consist of persons so
qualified and in such number as the Court by rule might direct (the
verdict however being unanimous) and authorizing the Court generally to
make rules respecting the time and manner of holding the Court—the
manner of proceeding—the examination of witnesses out of the
jurisdiction on de bene esse—the proceedings of ministerial

officers—execution—the summoning &c of Jurors—the admission of
Barristers and 
Solicitors—the payment of fees—the granting of
probate—the duties and control of Executors—Administrators—Guardians
and Committees and other things "necessary for the proper conduct and
despatch of business"—these rules were to be framed "as far as the
circumstances of the Colony might permit . . . with reference to the
corresponding rules and forms in Her Majesty's Supreme Courts of Law and
Equity at Westminster"—and after being approved by the Governor in
Council were to be transmitted 
to Her Majesty in Council through
the Secretary of State for her final approbation or disallowance. They
are to take effect three months after publication in the Colony.

3. The Governor now transmits two codes of rules (1) those for the
Supreme Court acting in the exercise of its ordinary Jurisdiction—and
(2) those for the same Court acting as an Inferior or Summary Court of
Justice.

4. The rules of the Supreme Court are evidently drawn "with
reference" to the practice of the English Courts as much so (at the
least) I do not doubt as the circumstances of the Colony admit. But
they will require as it appears to me one or two slight amendments.

5. The rules 108 and 109 authorize the substitution of an
affirmation for an oath and declare that a false affirmation shall be
punishable as perjury. These provisions appear to me not mere matters
of procedure but alterations of the Law of evidence and of the Criminal
Law which, 
therefore, should have been provided for by an Act of the
Legislature and not a rule of Court. Till this objection is removed I
do not think that the body of rules now forwarded can properly receive
the sanction of Her Majesty in Council. And when this amendment is made
the opportunity might be taken for removing two other defects in them.

6. The provisions respecting appeals to Her Majesty in Council
(sections 119-125) are a mere transcript of similar provisions in the
Order in Council except that in Rule 122 line 5 
the words "for
prosecuting the appeal and" are omitted I suppose by a clerical error.
They are therefore unobjectionable. But the right of Her Majesty to
vary these rules should I think be expressly saved.

7. The provisions respecting the summoning of Juries (sections
57-58) appear very imperfect. The Sheriff is to summon "a sufficient
number" of "Jurors" and "special Jurors" for each Session of the Court,
but no qualification is prescribed for either class. I can only
conjecture that all adult males of European 
origin are to be summoned in
turn for common Juries and that the Sheriff is to select a certain
number to act as Special Jurors. But whatever the intended rule is, it
should be laid down and should embrace some means of excluding persons
who were notoriously unfit to act. The distinction itself between
special and common Juries seems at first sight to be inapplicable to so
small a population.

8. The rules for the Inferior Court are open to a more fundamental
objection.

9. It is of course found 
that a mode of procedure modelled in that
of Her Majesty's "Superior Courts of Law and Equity at Westminster" is
too cumbrous for trifling cases which require prompt decision. And, to
meet this practical difficulty, the Chief Justice has declared, by Rule
of Court, that the County Courts Act (9 and 10 Vic cap 95) shall be
adopted by the Supreme Court of VanCouvers Island as the rule of its
procedure on occasion of certain monthly sittings, and that the Court
when acting under this Act shall be called "The Inferior or Summary
Court of 
Civil Justice". The Chief Justice then promulgates as the
rules of the Inferior Court (mutatis mutandis) the rules framed by
proper authority for the procedure of the County Courts in England.

10. It appears to me that in this course of proceeding the
Chief Justice—though doubtless with the best intentions has
entirely exceeded his authority. The Supreme Court has
authority over
Inferior Courts, but it is not itself such a Court (as is shewn
by the provision that its rules are to be analogous to those 
of the
Superior Courts of Law at Westminster) in the preceding lines, so left
it out nor has it the power to constitute an Inferior Court of Law. I
should incline, therefore, to think that the broad application of the
County Court Rules to its proceedings is inconsistent with the terms on
which it has received the power of making Rules.

11. But on looking at the Imperial Act 9 and 10 Vic cap 95 I can
have no doubt that the adoption of "so much of that Act as is suitable
to the circumstances 
of the Colony" is quite beyond the power of a Court of Justice.

12. The Act provides interalia that Miners may sue for
wages (section 64)—that parties to a suit may be examined (section
73)—that certain property and none other shall be protected from
execution (section 96)—and that a Landlord shall have certain rights
against goods taken in execution (section 107). It regulates the power
of committal for contempt (section 113)—imposes penalties on Officers
(sections 116-117)—and provides for their protection (section 139).
All these things are subjects of Legislation not modes of procedure to
be determined by a Rule of Court, and I can hardly doubt that a closer
scrutiny of the Act would elicit further reasons against its adoption by
a mere rule of Court.

13. Observing how very much of the Act is either plainly
inapplicable to the circumstances of the Colony or (what is worse)
capable of a kind of perverse application to those circumstances, I
think it would be much better that the Legislature (within whose
province it falls) should either constitute by a distinct enactment an
Inferior Court of Justice to be presided over by the Chief Justice under
rules and conditions explicitly laid down by them or him or (if it is
thought best to adapt the English Law subject to the usual and somewhat
perplexing qualification) should expressly specify those sections of the
Imperial Act which it is intended to apply (of course as far as
circumstances admit) to the Inferior Court of Justice of Van Couvers
Island. The power of making rules would of course be vested in 
the
Chief Justice subject to the approval of the Legislature or of the
Governor in Council.

14. When this is done (as it may be under the act 12 & 13 Vict cap
48) there will be no further reason why the Chief Justice should not
adapt to the Inferior Court of Van Couvers Island the Rules framed for
the English County Courts.