Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Despatch to London
Kennedy, Arthur to Cardwell, Edward 31 August 1864, CO 305:23, no. 9629, 165.
Abstract
Despatch to London.
Minutes (2), Enclosures (untranscribed) (5), Other documents (1), Marginalia (1).
Kennedy forwards Cary’s opinion and the Chief Justice’s decision on the Corporation Act of
the City of Victoria. Kennedy observes that
these Officers are directly opposed to each other on the construction of a local Act, the practical effect of which has been to paralyse the action of the Corporation altogether.Kennedy also sends the Act along with newspaper clippings.
No. 65
31st August 1864
Sir
I have the honor to transmit a copy of an opinion of Mr Cary, late
Attorney General, and a Judgment of His Honor The Chief Justice in
connection with the Corporation Act of the City of Victoria.
You will observe that theseOfficers
Officers are directly opposed to each
other on the construction of a local Act, the practical effect of
which has been to paralyse the action of the Corporation altogether,
to the great physical and moral detriment of the inhabitants of the
City.
Officers are directly opposed to each
other on the construction of a local Act, the practical effect of
which has been to paralyse the action of the Corporation altogether,
to the great physical and moral detriment of the inhabitants of the
City.
The principle involved in this decision of His Honor is so important
that I would beg for the opinion of the Law Officers of the Crown for
my guidance.
Minutes by CO staff
1. I think that if a Governor requires the Home Govt to assist him
by submitting a case to the L. Offrs of the Crown, he should assist
the H.G. by sending a clear statement of the
questions which he
desires to have asked, and of the facts on which the answer to those
questions depend. What he in fact does is to send us three columns
of a newspaper containing a variety of wide statements made by the
Ch. J. and then to tell us that the principle involved is so
important that he wants the opinion of the L. Offrs.
questions which he
desires to have asked, and of the facts on which the answer to those
questions depend. What he in fact does is to send us three columns
of a newspaper containing a variety of wide statements made by the
Ch. J. and then to tell us that the principle involved is so
important that he wants the opinion of the L. Offrs.
2. However I have drafted a case and in sending out the answer, it
mt, I think, be as well to send out the Boothly
Papers
for instructions sake.
These Papers have already been sent to the Govr. See 9762 & draft.
VJ
25 Novr
3.
And in sending out the opinion I wd also observe that if the
Governor shd at any time hereafter find it advisable to request the
opinion of the L Offe in this country, the request should be
accompanied by a clear & specific statement of the questions to which
he required an answer and of the facts on which that answer depended,
with copies of all material documents (as in this instance of the
Corporation By Law) and that if in this case the information he
received was not exactly what he desired the defect will be due to
the imperfect mode of reference which he has adopted.
And in sending out the opinion I wd also observe that if the
Governor shd at any time hereafter find it advisable to request the
opinion of the L Offe in this country, the request should be
accompanied by a clear & specific statement of the questions to which
he required an answer and of the facts on which that answer depended,
with copies of all material documents (as in this instance of the
Corporation By Law) and that if in this case the information he
received was not exactly what he desired the defect will be due to
the imperfect mode of reference which he has adopted.
4. Add that altho' Mr C. has obtained this [opinion?]
at his request,
the question does not appear to be really a question for the Govt
but for the City Corporation with whom (as far as present appears)
it rests to consider in what manner they can
effectually establish
their own rights. Add that the Govr will of course be aware that
the opinion of the L. Offrs has no legal effect or authority in the
Supreme Court, and that the only mode of reversing in V.C.I. a
decision given by the C.J. of that Colony is by bringing that decision
before the duly constituted Court of Appeal.
effectually establish
their own rights. Add that the Govr will of course be aware that
the opinion of the L. Offrs has no legal effect or authority in the
Supreme Court, and that the only mode of reversing in V.C.I. a
decision given by the C.J. of that Colony is by bringing that decision
before the duly constituted Court of Appeal.
FR
21/10
Documents enclosed with the main document (not transcribed)
"Queries submitted for the opinion of the Honble the Attorney
General, October 1862," citing five questions posed by the Municipal
Council to be considered with regard to the corporation issue.
G.H. Cary, Attorney General, to W.A.G. Young, Colonial
Secretary, 13 October 1862, responding in detail to each of the five
questions as noted above.
Printed copy of the "Act to Incorporate the City of Victoria,"
six pages.
Other documents included in the file
Elliot to Attorney General and Solicitor General, 29 October
1864, forwarding copy of the despatch and enclosures and asking for
an opinion on the question.