Selwyn and [Kaulabe?] to Buckingham

We are honored with Your Grace's commands, signified in Mr
Elliot's letter of the 18th ultimo, stating that he was directed
by Your Grace to bring under our notice certain questions which have
arisen respecting the relative positions of the Judge of British
Columbia and the Chief Justice of Vancouver's Island, and to request
that we would take the matter into our consideration.

Mr Elliot was also pleased to state that the 1st section
of the Act 12 & 13 Vic: cap: 48 enabled the Crown to establish
Courts of Justice in Vancouver's Island, and the second section
declared that as soon as a Local Legislature should be established
in that Colony it should be lawful for such Legislature to alter
the constitution and jurisdiction of these courts.

That by Order in Council dated 4th April 1856 the Queen
established the Supreme Court of Civil Justice of the Colony of
Vancouver's Island consisting of a Chief Justice.

That by a Commission dated 16th May 1851 the Governor was
empowered to summon an Assembly and with the advice of a Council and
Assembly to make Laws. And that thereupon a Local Legislature on
this footing was constituted.

That subsequently to the establishment of the Colony of
Vancouver Island the Colony of British Columbia was established,
a Legislature and Supreme Court were constituted, and a judge
appointed with the expectation of receiving the title of Chief Justice.

Mr Elliot was pleased to annex a Copy of the Order in Council
constituting the Legislature of British Columbia, and further to
 state that by the Act 28 and 29 Vic: cap: 63, SS 5, it was enacted
that every Colonial Legislature should have full power within its
jurisdiction to establish Courts of Judicature and to abolish
and reconstitute the same and to alter the constitution thereof
and to make provision for the administration of Justice therein.

That by the British Columbia Act 1866, 29 and 30 Vic: Cap: 67
the Governor of British Columbia was authorized by proclamation
to unite the Colony of Vancouver's Island with the Colony of
British Columbia which was eventually done. That by the 4th
Section of the same Act it was declared that on the Union the
authority of the Executive Government of British Columbia should
extend to Vancouver's Island, and by the 5th that after and
notwithstanding the Union the laws in force in British Columbia
and Vancouver's Island should with a single exception there specified
remain in force until otherwise provided by lawful authority as if
that act had not been passed.

That when the Union took effect the Judges, as will be seen
by the annexed correspondence, disagreed between themselves and with
the Governor, with regard to the positions which they ought
respectively to occupy in the United Colony and as the best mode of
satisfying their claims it was decided by Your Grace that so long
as they both retained their office, each should be Chief Justice
of that part of the Colony to which their jurisdiction had
theretofore extended, but that the Chief Justice of Vancouver's
Island should be legally competant to act (virtually) as Puisne in
British Columbia and vice versâ. That on a vacancy this
anomalous arrangement is to cease and there is to be one Supreme
Court composed of a Chief Justice and Puisne.

That with this the Judges are not satisfied.

That it will be seen by the Governor's despatch No 86 of
10th July 1867 that the Governor and his Attorney General,
notwithstanding the 5th section of the British Columbia Act
1866 are of opinion that the Order in Council of 1856 which
constituted the Supreme Court of Vancouver's Island is repealed
by some unspecified part of that Act, and therefore that the
Supreme Court of Vancouver's Island no longer exists.

That on the other hand the Chief Justice of Vancouver's
 Island, notwithstanding the 2nd section of 13 and 14 Vic: cap: 48,
notwithstanding the general powers of Legislation in the Legislature
of British Columbia recognized by the 6th Section of 29 and 30 Vic:
 cap: 67 and perhaps in ignorance of the Act 28 and 29 Vic: Cap: 63
maintains (vide enclosure No 2 to despatch No 80) that no
power is vested in the Legislative body of British Columbia to
alter or touch the constitution of his Court in Vancouver's Island.

Lastly That the Judge of British Columbia raises a variety of
questions of detail respecting the mode in which the proposal
of Your Grace is to be carried into effect.

Mr Elliot was further pleased to state that under these
cicumstances he was directed to request our opinion:

1. Whether the Supreme Court of Civil Justice of the Colony
of Vancouver's Island continues to exist notwithstanding the passing
of the British Columbia Act 1866.

2. Whether there is any doubt respecting the power of the
Legislature of British Columbia to make laws abolishing,
reconstituting or altering the constitution of the last mentioned
Court.

3. Whether the annexed draft Ordinance will if passed by the
Legislature of British Columbia give effect to the intention of
Your Grace and whether it is open to objection on any of the grounds
indicated by Mr Begbie or on any other grounds.

In obedience to Your Grace's commands, we have taken this matter
into consideration, and have the honor to Report

That we are of opinion 1st That, although the question is
not entirely free from doubt, the Supreme Court of Civil Justice of
the Colony of Vancouver's Island continued to exist notwithstanding
the passing of the British Columbia Act 1866.

2. We do not entertain any doubt respecting the power of the
Legislature of British Columbia to make laws abolishing reconstituting
or altering the constitution of the last mentioned Court.

3. We think that the accompanying draft Ordinance will, if
passed by the legislature of British Columbia, give effect to the
intention of Your Grace, and that it is not open to objection on any
of the grounds indicated by Mr Begbie or on any other grounds.

We would suggest that provision should be made by the same
Ordinance or by some other Ordinance to be passed as soon as possible,
for the payment of the Salaries of the Judges and for making the
same charges upon the revenues of the new Colony, and for any
alterations in the Seals of the two Courts, the forms of process
&c which may become necessary by reason of the Union of the two
Colonies.

A clerical error exists in clause 4 to which we have drawn
attention in the margin.