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TifESE caseH come before us upon the argument of a rule nisi for a habeas corpus, to bring up the bodies of xJertnin prison- ers now lying under sentence of death at New Westminster, with a view to setting aside the verdict and sentence on the ground that the trial of the prisoners was had coram noU jiidice. A rule nisi having been obtained for the issuing of the writ, cause w;is shewn against its issuing by Counsel for the Crown. Pris- oners' Counsel were heard in reply, and we have reserved our judgment, not so much on account of any doubts which we felt as to the general result of the application, but on account of the wide and deep importance of some of the doctrines ad- vanced, and the importance of the case itself, which will prob- ably be taken elsewhere on appeal. We therefore thought it in every way desirable to state our views as accurately as possible. The circumstinces are as follows : — There are four cases, but all so far as we have to decide are identical, and I shall treat them as one case, generally. The first document of any importance to bo considered is dited 15th Dec. last. It is an dleged commitment by C. F. Cornwall. Esquire, one of Her Majesty's Justices of the Peace for the Distri'it of Yale ; (the keeper of the gaol has not return (1 to us the originals, but only the "tenor" of the AVarrants), (hi.ted at Kamloops, he ided " District of Yale,' and addresseil to the Clinton constable and the keeper of the common goal for the said, /. e. the Yale district, command- ing in the common form, the said constable to convey the body of the ])risoner to the said keeper, and the said keeper to receive and safely keep the prisoner in "the said common gaol," until delivered by due course of law. The commitment in its oper- ative part sri!|)aratory to the Victoria Assizes. This un- doubtedly revoked the previous commission or commissions to myself aloiK;. (4 Inst. 161.) It was notonly i. Idressed to three (Joniniissioners instead of one only, but it was made returnable at Victoria instead of Ottawa, as had hitherto been invariably the case .since ('oufederation. Another (^perhaps the same amended^ was issued on the IDth Nov. remedying this alteration and reverting to the old form. Under this last commission, which I think revoked all former comuiissions, the Victoria Assizes were taken, and con- cluded early in January last, when the Assizes were closed. The latest commission was, as has been stated, issued on the 8tli March, f'dated 9th March). When brought to the Judgment — Regina v. McLeans and Hake. attention of the Judges, it appeared to contain a renewal of the alteration so recently ab indoned. It was expressed to be re- turnable, not to the Governor-Generoi at Ottawa, but to the Lieutenant-Governor at Victoria. I do not know whether th(i alteration is material or not, nor, if material, whether it is an amendment or not. I feel convinced that it was intended as an alteration, and as a correction of the old form; and that the is- suing of the commission of t)io 8-9th March was intended to operate, and did operate, being shown to the Commissioners, as an abrogation of the former commission of the 19th Nov., 1879. (4 Inst. c. 28, 7th and 10th conckisions.) All the Judges, without expressing, and without having formed, any cle.ir opinion as to the result of the alteration, re- monstrated against the imprudence of introducing any change into a formal act of extreme antiquity witliout any opportunity of deliberating as to what the eliect of such a change might be. The answer was, an identic note to the three Judges deliver- ed on 1 he night of the lltli Maich, informing them that the Lieutenant-Governor had cancelled the commission of the 8-9th March altogether, being advised that no commissi' )n of oyer and terminer at all, in that or any other form, was neces- sary. Against this much wider alteration in the procedure the Judges immediately warned the Executive; pointing out that, in the case of a conviction, as four lives were at stake, indetinite delay and exp;nse were certain to be incurred while testing the soundness of the new advice (m which this alteration had been founded. Uncertain whether, in the last moment, the Executive might not enter a nolle prosequi and revert to the accustomed routine, or perhaps proceed by certiovari, and having procured for the Executive several days' opportunity for considering their posi- tion after the return of the AHorney-Creneral from Ottawa, Mr. Justice Crease, after repeated protests, at last, on the I9th March, sentenced the prisoners; having sat throughout the alleged trial merely by virtue of his commission as a Justice of the Supreme Court, but with the procedure as to juries, etc., exactly as if an ordinary commission of oyer and terminer iiad existed as usual, and had been read as usual at the opening of the Court. The only question before us, the only ground, in support of the legality of the late trial, that the Procedure Act said not one word about Commissions of Oyer and Terminer ; that the fair construction of the whole Act, c 29, taken altogether, is, that the Legisla- ture thereby intended to lay down, from point to point, what should be the one uniform procedure throughout the Dominion; and tbat any procedure beyond what is expressly made neces- sary by that Act is in fact inconsistent with or repugnant to the Acts and repealed by s. 7 of 37 Vic, c. 42. Judgment— Regina v. McLeans and Hare. n., 1875. ulated by 7Vic., c. the first in 1867, olumbia, tutcs it is th of the s against Jedure in Justices The two ing been n ij be a > British is ques- , c. 42, >ia shall hiw, all 'r being- he same I' repug- tieduled ocedure it Janu- ;he pro- but the re Act, ^)mmit- lirectly I to, as re uni- ile is a lity of about action )gisla- what inion; leces- fco the It was argued at some length, what we declared to be our opinion from the first, that the Dominion Parliament has a right to cast jurisdiction even in new matters upon this Court ; and Valin V. Langlors and other cases were referred to. We have not, and never had, any doubt upon this point. We have re- peatedly undertaken new jurisdiction cast upon us by the Dom- inion Legislature ; most frequently on appeals in Insolvency. It was on these grounds contended that this Court could virtute officii and without further authorization or ceremony than is afforded by a reference to 37 Vic, c. 42, s. 5., try these prison- ers for this murder. But this argument cannot support this conclusion. It was in the first place omitted to be observed that this s. 5 confers no new jurisdiction, prescribes no new methods. The Supreme Court of British Columbiti without doubt had the fullest power, before as since the 1st January, 1875, to try any person charged with murder. But that trial must, as s. 5 says, be held since as before the 1st Januaiy, 1875, "in due course of law." Nor has that course of law been altered, at least in this respect, by the scheduled Acts. Th.^ Procedure Act (1869, c. 29,) by s. 7 expressly refers to and ratifies the Justices of the Peace Act (1869, c. 30,) and th it Act authorizes, and enjoins, the commit- ting Justices to send the prisoner for trial before the next Court of Oyer and Terminer, and no other Court, (there beihg in Bri- tish Columbia no Court of Quarter Sessions as already remark- ed). And as to the jurisdiction of the Supreme Court, s.42 of the same Procedure Act (which I take it is to be read in connec- tion with s. 5 of the 37 Vic, c. 42,) expressly says : "Nothing " in this Act shall niter, abridge or affect any power or author- ' ' ity which any Court or Judge shall have when this Act takes " effect, or any practice or form in regard to trial by jury, jury " process, juries, or jrrors, except only in cases where such * ' power or authority is expressly altered by or is inconsistent ** with the provisions of this Act." The 1st January, 1875, therefore did not even propose to alter, abridge or affect any jurisdiction which the Court had previous to that day. It declared that it should have, in effect, precisely the same powers and authorities which it had previous to that date, there being no pretence that they are expressly altered by the Procedure Act, 1869, or inconsistent therewith. Nor has any difficulty in the practical working, in all the years since 1874, -^ver been hinted at. Those ). jwers and authorities were and are no other than those possessed by the Queen's Bench in England. It would have been exceedingly important if one English case had been 8 Judgment — Eegina v. McLeans and Hare. cited ill which a Judge of the Queen's Bench had sat and tried without commission, and without removal by certiorari or oth- erwise, a criminal committed by a Justice of the Peace to take his trial at the next Court of oyer and terminer. But no such case was produced from the records of several centuries, and it is believed, none is producible. It is true o :e case was produced from the Ontario Courts, Whclan V. The Qiicen, in which an attempt was niivde to impeach such a trial unsuccessfully. The trial was actually impeached, although an. extant enactment by a competent Leg- islature had expressly declared that a Court of oyer and termi- ner might be presided in by a Judge of the Supreme Court, without commission. It is impossible to read the arguments and judgments upon this point without perceiving what tlie re- sult would have been in the absence of sucli a Statute. And there is no such Statute in force here. It is true the Ontario ])rovision li is been copied into a local Act here, but being mat- ter of criminal procedure, it is exlra vires of the Local Legisla- turti ; and moreover it only purports to come into force from a day not yet named. All these Acts of Parliament are in efi'ect so m;iny statutory declarations that by the law of England and the Provinces these (commissions are necessftry to confer juris- diction, and that nothing less than an act of Parliament can ren- der them unnecessary. The whole argument upon thir. point, based upon Jf'helan v. The Queen, which was referred to at great length by Counsel for the Crown, is almost «lecisive in favor of the prisoners. The authors from whom we can gather the method of a]>- pointment, and the authorities and powers, of Justices of oyer and terminer and gaol deliveiy, are Lord Coke in his 4th Inst., HaAvkins, and Chief Justice Hale in their treatises on pleas of the Crown. They generally use almost the sama words, and the whole is comprised in a very few pages of each author. I shall generally confine myself to Lord ('oke for my authority, and I shall take the liberty of stating Avhat seems to b.' the his- tory and constitution of these Courts, as they seem to have been little understood during the argument. It was much insisted on, that Courts of oyer and terminer and gaol delivery were auxiliary merely to the Queen's Bench ; and that epithet is said to be given to them by Blackstone. I cannot find that he so designates them; but if he do, the ei>ithet must be in the limited sense, to signify that they are of great assistance to the Queen's Bench in discharging the criminal bu- siness of the country ; which the Court of Queen's Bench could never undertake single handed. Blackstone says of the Courts J(IDt}M£NT — ReGINA V. McLeAJJS AND HaBE. 9 fc and tried (iri or oth- ice to take it DO such ies, .'lud it Courts, vas mjule actually iteiit Leff- nil termi- io Court, rp;umonts it tJie ro- te. And 'Ontario 'in*,' mat- Logisla- e from a in effect and and er juris- ' can ren- .'■> point, ^d to at 3isive in 1 of a])- of oyer tJiInst., pleas of Is, and :lior. I thority, the his- A'o been irminer ieneh ; Jne. I epitliet f great 11 a I bu- I could Courts of Assize and nisi prius that they are collateral and auxiliary to the superior Courts of Common Law ; and so Courts of oyer and terminer and gaol delivery may be said to be auxiliary to the Queen's Bench though not in the Sfnse in which (c. g.) the Rolls Court and Vice Chancellor's Court were auxiliary or assist- ant to the Lord Chancellor. These were more properly subsidi- ary than auxiliary. The records there were a part of the records of tne Court of Chancery. A Court of oyer and terminer has a record of its own. The mere fact of there being a record of the Court, argues a continued existence. Although a criminal Court, and although all the Judges of the Queen's Bench, the highest Criminal Court, must be named in the commission, the Court of oyer and terminer is quite collateral with the Court of Queen's Bench, though inferior to it ; somewhat in the same way as the Superior Courts of law were made collateral with the Court of Exchequer Chamber, which reviewed all their Judgments, and although composed of all the Judges of those very ('ourts whose Judgments it had to review. The (^ourt of oyer and terminer was apparently intended in its inception, like the Court of the Justices of Assize, for the investigation of civil issues in the different counties, as the (^)urt of gaol delivery was for the determination of criminal charges there; both Courts dating from Edward I. But Com- missioners of oyer and terminer in England return their records, not into tlie Queen's Bench, but into the Court of Exchequer, (4 Inst. 1(55, 9) as do the Justices of goal delivery (4 Inst. 109, 9) and see Stat. Gloucester c 9 and 4 E. 3 c 2.) However, the Commissions being always issued to Judges of one or other of the four great Courts, Queen'sBench, Com- mon Pleas, Exchequer, and Eyre, criminal jurisdiction was from a very early period thrown upon them. Coke says " by virtue of their commissions and by Statutes." He is speaking only of Justices of gaol delivery; but this is equally exact, if spoken of Courts of oyer and terminer. When the commission is in any manner determined, the (>ourt i.^ not thereby brought to an end ; nor is there a new creation of a Court, when a new commission issues to new Com- missioners. If by any accident all the three Judges of this Supreme Court were to be sAvept away simultaneously, that would not annihilate this Court, nor affect its existence; although of couise no sitting could take place until a new appointment of Judges. Wilson, J. in Regma v. Amer, finds it neces- sary to draw this distinction between a Court which is annulled by the cessation of a commission and one which is merely as it were in a st ite of suspended operation. And see the Statute 1 lu Judgment — Regina v. McLeans and Haue. Edwiii'd VI, c 7 cited with approbation by Lord Coke, by which it is provided "that uo process or suit before Justices of oyer " and terminer, etc., shall bo discontinu(!d by the niakinjj; or " publishing of a new commission or altering the najines, etc., ' but that the new commissions miglit proceed in that behalf as "if the. old commissions had remained unaltered." Which Statute, 1 venture to add, proves two things ; first, that a new commission abolishes a former on(! ; secondly, that the new commission finds, and leaves, the existence of the Court quitch unaffected. These Courts, then, with the mod(i of appointmcmt of Com- missioners, and the method of pi'ocedure under them, wc^re im- |)orted into the Colony of Briiisli Columbia at its birth, being part of the English law, civil and criminal, as it stood on the 19th Nov., 1858; and into those Courts the Justices of the Peace return their informations and indictments. There may or may not be at the time of such return, oi' at the time apj)oin ted for holding the Court, any person ///c.s.^e authorized to hold it. The indictments and charges are in that 'ourt, and can be tried only in that Court, nnless some other Conit of competent juris'Jiction tak(!S seisin of them. There is always such a ('ourt at liand. It is the Court of Queen's ]3encli in I'.iigland and the Supreme Court here ; a d in a case of anydif- ticulty as to jurisdiction the Queen's Bench will not hesitate to command all the proceedings to be brought before itself, and either itself try the matter or relegate it to anoth r tribunal ( -1 Inst, p 78.) So that even if there be, by accidimt or design, a temi)orary suspension of the sittings of the Court of oyer and terminer and gaol delivery, there need not be •.v.iy delay, far less any denial of justice, in the investigation and iinal decision, for want of a competent Court. But our Supreme C'ourt can no more ilecide an issue in a criminal case of which it has no seisin, than it can decide an issue in a civil case without a writ of summons issued or bill filed. How is the person ascertained who is to hold the Court of oyer and terminer ? Nothing can be clearer or more precise than the authorities. See especially 4 Inst, p 163, 168, 2 Hales P. C. c 1. The selection and appointment of the Judge i i every case, is an exercise of the prerogative of the Croxvn. But that prerogative is hedged round by custom, which is the priv- ilege of the prisoner. The very first conclusion laid down by Coke (4 lust. 163) is, that commissions of oyer and terminer "must include the Justices of one Bench or the other {i. e. K. B., C. B., or Exchequer) or the Justices errant" /. e. the Jus- tices in Eyre, who in dignity came next to the dignity of the Judgment— Eegina v. McLeans and Hare. 11 lich But King's Bench, and above the Common Bench, and Exchequer, (C. 4 Insi,. p. IGH, first conclusion, see also 4 Inst. p. 185.) To what end does Lord Coke draw this "conclusion" if no com- mission at all were necessary ? And the prerogative must be exercised by commission (4 List. p. 162). Where it is exer- cised by writ, though addressed to the same persons who ought to be named in a commission, and conferring the same powers iis are lawfully inserted in a commission "everything that was "done under color of that writ was damned," (Co. 4 Inst. p. 163). Th;it precedent must be now more than 500 years old. It is cited with approval by every text writer. Coke, Hale, Hawkins. There is no precedent, and therefore no con- demnation, of a Judge of the Queen's Bench assuming to hold a Court of oyer and terminer without any author "ty at all, whether by writ or commission. But every text writer on the subject says iliat the authority to hold such a Court is wholly and solely by commission, (Co.4Inst. 163, 168, 185,2 HalesP. C. 0.1 p. 56). And it is to be observed that the only communities men- tioned in ar^niment as having abrogated the necessity of com- missions (namely in Ontario adequately, and in British Colum- ])ia tentatively) it has always sought to be authorized by Stat- ute, and in British Columbia so late as the last session of the Assembly. To what end is such a Statute, if the commissions bci already unnecessary? This AvctS without doubt the state of the law down to the 1st Jan ., 1875, and I think I have shewn that neither the Stat- ute of 1874, c. 42, nor any other Statute has altered the law since that date. On the contrary, the Statutes since that date are careful to provide that the powers and authorities of the Courts are neither to be abridged, altered or affected "uidess " by express words." But then it was urged that if a commission of oyer and terminer Avere indeed necessary, there was one extant (namely, the commission of the 19th Nov., 1879.) That commission was however, in my opinion completely dead ; and irrespective of any possible effect which the 7th conclusion of Coke's 4 Inst. , p. 164, may have had upon it, it was, in my opinion, put completely to an end by issuir-^ and notifying to the Judges the new com- mission of the 8-9th March, (ihid. 10th conclusion). As to this, Coke does not say that the commission is to be diffe- rent, or to different persons. Hawkins, it is true, speaks only of a commission to "other persons" as determining the first. The commission of the 8-9th March was addressed to the same persons as the commission of the 19th Nov., but it enjoined the the Commissioners to do a different thing (namely) to make a 12 Judgment — Reqina v. McLeans and Hare. Ii>! !«'■ return to the Lieut. Governor here, instead of, as invariably here- tofore, to the Governor General at Ottawa. What the effect of this alteration would be I do not undertake to say. It is clearly an alteration, deemed by tin* Executive nppareiitly, ui)on rc- Seated consideration (for they had previously attempted it in fovember) so important as to be indispensable. If the new commission had been exactly in the very si me words from end to end (except the date) as the former commis- sion, perhaps, notwithstaiid'ag Coke's words that would not be considered a new commission determining the former commis- sion. That was my view in October last, when I was made aware by the Counsel for the Crown of the subsequent iJentic com- mission which had been sent after me on circuit in such head- long haste. It was nevcn* shewn to me at all, but Mr. Robeitso]i informed me that except as to date it was identical, word for word, with the commission I already held, dated in August last. In the absence of all books and authorities to consult, I considered that the August commission was not thereby deter- mined, and I think that I was right under the circumstances. The commission of the lOtli Nov., hoAvever, in which all three Judges are named certainly abrogated the August and October commissions, which were each addressed to myself alone ; and in my opinion the commission of the 8-9th March being in- tended to be, and probably being different from that of the 19th November on an essential point, abrogated that in its turn. But at all events the commission of the 8-9th March sus- pended the commission of the 19th Nov., and tlie only possible way of reviving the former commission would be by directing a, writ oi procedendo to the Commissioners; (Co. 4 Inst. 163) and no such writ was ever issued. All this appears by Co. 4 Inst. p. 1G3, 165; and see partic- ularly 1 E. 6 c. 7, from which it would appear that Coke's dic- tum is more accurate than Hawkins', Avho gives no authority (except, of course his own, which is very great) for the varia- tion he introduces. And in its turn, the commission of the 8-9tli March avjis ab- solutely determined by the cancellation on the 11th March. Co. 4 Inst. 165 is very clear and firm that a commission once cancelled can by no means be revived, but a fresh commission must issue. The late Court, therefore, at New Westminster, if regarded as a Court of Oyer and Terminer, was not held before a person authorized to sit as a Judge in such a Court. Can it be main- tained that the trial was lawfully held before the Supreme Court ? I apprehend that it cannot. JuDUMEN'r — Regina v. McLeans and Hake. Id ctinf^ a In the liist pliU!(\ the ciise was not in the Supreme Court iit all. The charj^fe and inditjtment were s(nit up by the eoraniit- ting J. P. into the only Court into which he could send them, viz.. tlie Court of Oyer and Terminer. The objection whicii was taken by the Court on the Kitl) February on the prelimin- ary application concerninj^ the venue, viz., that the case \v;is not before us — not in tht; Supreme Court at nil — arose again at tile trial witli much greatt^r force. The case might have been brought into the 8u[)rem(5 Court at any time by the well-known method of certiorari; but that was not adopted. If it had been so removed, the Court would have had to consider the mode of trial. PriiiKi facie the trial of a crimiind so removed takes place at bar, in term tiuit?, before the full Court, with a special jury. By A. 11, (x. -1, and I W. 4, c. 70, however, the Court has power on a ))ro|)er application to tix a day out of term for the trial ; l)ut no such application was made to the Court, nor in- deed could be, until removed; and the trial took place out of teim time. The local Ordinances, (^Cons. Stats., Nos. 51, 53, 5G,j render a full Court unnecessary. But the jury was a common jury. Moreover, tlie mode of reviewing the judgment after a trial at bar is different from th(! mode of reviewing a trial at Oyer and Terminer, whicli was the Court held out and ])romised to the prisoners. fChit. Stat. Crim. Law, 54. j See too R. V. Lloyd, 4 B., a ,d Act loo, .,nd 11 G. 4. and 1 W. 4, c. 70, s. q.j The ti'ibunal of ('rown cases reserved is not open to ])risoners li-ied at bar. The ditlerenciis are fatal. This did not even resemble a trial at bar. Trials at bar being very inconvenient, however, the usual course in England is, when an indictment is removed into the Queen's Bench hy <'er/it>ra:ri, either to send it to be tried in the Central Criminal Court, or at Nisi Prius: sometimes in the county or vicinage where the alleged offence Avas committed, sometinn.'s elsewhere. The older and <:i;raver authorities say that the Queen's Bench having once obtained seisin may not send a case back to th(! t'ourt whence it lias been removed, to be tried there. Co. 7;^. But this was altered long ago by 6 H. 8, c. 6., and subs(^qu(mt statutes. See especially 19 Vic, c. 16, (Imperial Statutes, 1856,) liy which the Queen's Bench, aiter certiorari, at any stage of criminal proceedings may send them to be tried in the Central Criminal Court. That Court does not exist here. But what is important to observe, is, that when a case is remo- ved into the Queen's Bench, the Court has to exercise its dis- cretion as to the time, and place and Court where the issues betwe(m Our Lady the Queen and the prisoners shall be tried . ' 14 Judgment— Reoina v. McLeans and Hare. And those issues cunuot bo lawfully tried otherwise, or else- where, than as directed by the C'ourt. But here tlie Court has never had an oi)portunity of exercising any discretion in the matter — nor has the case ever been brought before this Court at all, until the present proceedings were taken with a vialt with them when brought before it by certiorari, ha> ens corpus, or some similar proceeding which, according to the pre- sent practice, is always considered necessary before undertak- ing jurisdiction. Nothing in the nature of a grand inquest has ever been at- tempted to be held in British Columbia. Stress was laid on the circumstance that th(i Province never having been divided into counties, the jurisdiction of the Supreme Court is as com- plete in every part of the Province as that of the Queen's Bench in Middlesex. That is perfectly true. But what would have made that proposition important would have been, to produce one case in which a Judge of the Queen's Bench in England, or the whole Court of Queen's Bench, had gone and presided, without any commission, in a Court of oyer and terminer in Middlesex. There is no such case ; and neither has this Court, nor any Judge thereof, any authority mera virtute officii i Judgment — Reoina v. McLeans and Hare. 15 to preside in a Court of oyer miicI terminer. No person, whether Judge of this Court or otherwise, can do that without a commis- sion. The Judges of the Supremo Court ought always to be named in such commission; but other persons maybe joined with thom, and the Court may (if the commission warrant it) be hekl before the other Commissioner or Commissioners. Look- ing at the recent trials, therefore, as having been had in a Court of oyer and terminer, I am of opinion that it was held coram uoujudie, and that the proceedings are bad. And if it be con- teinphited as a sitting of the Supreme Court, I am equally of opinion that the proceedings were bad, for that 1st. the pris- oners had been informed that they were to be tried before a diii'erent Court, where the procedure and Judge and jury and court of review may be diifereiit, and had not been informed that they were to be tried in the Supreme Court. 2dly. The Supreme Court had no seizin of the case, it not having been removed by certiorari r • otherwise. 3dly. The trisil did not proce (1 at times fixed by the Court, nor in the manner prescrib- chI by law for tin* trial of such issues before the Supreme Court. Being of opinion that the Judge had no jurisdiction, was not in fai-t i Judge of that Court, it is quite immaterial to con- sider th(! subsequent jioints taken by prisoners' Counsel as to the mode of summoning jui'ies, etc. Those points it was very iiocessarv to take in argument, for prisoners' Counsel could not be sure that w(! should agree with him in his first conclusion : but agreeing as we do in tliat conclusion, that there was no legal Judge of a h^gal Court there at all, it becomes unnecessary to examine, and tlierefon; impossible to give any judicial opinion upon, the ulterior objections as to the jury, etc. There could be no jury — no "sworn men" — if there were no Judge with jur- isdiction to administer an oath on the trial of the issues be- tween the Qu(^en and the ])risoners. It remains to notice the argum<'nts which were advanced by the Crown. That which was advanced at the greatest length was, tliat the Lieut. Governor of the Province has no authority to issue these c(>nimissions at nil. This was for the first time announced to the Judges on the 9th April last, some time after the close of the proceedings at New Westminster. At what stage of their deliberations the advisers of the Crown arrived at this conclusion is not known. Certainly no such opinion seems to have gained credit with them up to the lltli March. In the course of eight months up to the 8th March 3 or 4 or perhaps 5 such commissions had been issued without hesitation; and on the 11th March the last of these commissions is cancelled: not as being tdtra vires, but as being unnecessary. That is express- 16 Judgment— llr.GiNA v. MoLkanh and Hake. ly jille^od its tlio solo ground f(^r tlic cuiurfillatioii. . If the com- mission of tlic. Htli M iich had Ixmmi inchiod ultra inirs, and so a movo nullity, then any cancollation would havo hv.r i unnocos- sarv and p(U'ha|)s in strictin'ss itsiilf uffra rurs. If the Lieut. Governor has indeed no power to issae what protesses to he su(!h a coniniission, it would seem at least arguable that mother has he a:iy power to ca eel what profi'sses to be su(rh a com- mission. Inchiod th(> po\v(^r to cancel seems to be of a higher natun? and inipli(,'s a more complete control than a mere power to issue. FIow(n-er, the cancell.ition was not ]iut upon any such ground until long after the close of this trial — but the commis- sion was (3xpressly cancelUul on the ground that it was unp ces- sary. It may be a very interesting question to discuss the , )wer of the Lieut. Governor t(^ issue thest! commissions from tim(! to time. Hut it appears to nu; that the question is entirely irreve- hint here ; not even incidenially relevant. The question here is, can a Judge of the Supreme Court preside in a Court of oy«u- and tei'ininer without a commission from any ox(!Cutive author- ity':' The Crown replies, "the Lieut. Governor has no p(jw<'r to issue sucli a commission." That is evidently, tak(ni alone, no Muswer at all. even if it be well founded. Tht^ authoiily m y vested in some otlnn- gre it officer, e. before us. The prisoner ays "I am to be tried by a Court of oyer and " terminer. You, not I, selected that Court. You might have " selected another Court. That Court cannot be held without " a commission. You say that the Lieut. Governor cannot " issue ihe proper commission. You must find somebody else "then who can. If you cai mot find anybody able to issue a " commission, that only shows that you have summoned me be- " fore a nonexisting, impossible Court. With that I have " nothing to do. You shall not send me to another tribunal " than you have announced. I insist upon being properly tried " before a legal Judge." And I think he has a right thus to speak. It is utterly un- important as an answer to his argument to say that the prosecu- i Judgment — Regina v. McLeans and Habe. 17 tins cora- .'uul so il »e Lieut. *('s to he t ludther li fi com- a higher re |)()\v('i' iiny such com mi s- nni' ees- 10 , >\ver I 1 tinu! to ly irrevc- Q here is, of oy(M" antlior- lo i)o\vor alone, no li'y m y iTOveriioi" ntes and )ne Jnd^e hem, th(i er Judge rnor. hut le power, ed l)y UK the decis- oyer and iglit have d witliout )r cannot body else 1 issue a h1 rae be- t I have • tribunal )erly tried itterly un- ) prosecu- tion has found an obstacle which they do not choose either to avoid or to overcome. The particular nature of the obstacle is quite unimportant ; though I should be disposed to say, if I could give my opinion at all, that this obstacle is merely ima- ginary, and that the Lieut. Governor has ample power. No- body seems to have ever been of any other opinion until some time after the lltli March last. One thing is clear. If the Lieut. Governor have no power to issue a commission, then there incontestably was none in force on the late oc^easion. The commission of the 19th Nov., on the revival or continued existence of which the Attorney General claimed a right to rely in the last resource, was a mere nullity from first to last, if his more extended argument be valid. And there could have been no Court of oyer and termi- ner held at New Westminster at all. The on y way in which this defect of power in the Lieut. Governor could possibly affect this question of jurisdiction now before us was attempted by Mr. Robertson. He said, "The " Dominion Parliament must be taken to have been, while " preparing the Statute 1874, c, 42, perfectly well informed as " to the exact position of laws and authorities in this Province, " whether judiciary or executive, :ind as to all Courts and their " jurisdictions here. If the Lieut. Governor have no power to " issue commissions, the Dominion Legislature must be taken " to have known and contemplated the inefficiency of Courts of " oyer and terminer here. They never could have intended '• prisoners committed by the Justices of the Peace to remain " untried indefinitely, and therefore, by implication, they must " be taken to have ijitended that such Courts should be held " by the Judges of the Supreme Court without commission." It might thus be material, incident.dly, to enquire whether the Lieut. Governor has this authority. But this line of argument, I think, teems with assumptions. In the first place, perfect accuracy of information is too much to attribute to any man or any body of men. We must look only to what the Legislature says, and not to wliat it may be sug- gested (outside the Statute itself) to have had in view, or to have intended to say oi- to imply. And in thiw very Act itself, and in the s;ibsequent Act of 187t), amending one of the sched- uled Acts, the Dominion Legislature appear to have been by no means well informed (e 7.) ;.s to the existence of Courts of Gen- (^ral or Quarter Sess'oii;^. And as to extreme accuracy of drafting this Act, 37 Vic. c. 42, it might almost be imagined that although there was a general agreement of intention, the person who drafted the body of the Act had never seen the 18 Judgment — Kegina v. McLeans and Hare. Schedule, and the person who compiled the Schedule had no hand in drafting the body of the Act. Various anomalies, not to say contradictions, are visible at a glance. But if the incon- venience assumed by Mr. Robertson actually existed, neither this Court nor the Judges of it, are justified in assumixig a ju- risdiction merely because they think it would be convenient. "It is not," says Lord Chief Justice Cockburn in the Queen v. Lords of Treasury, L. E. 7, Q. 13. 394, "it is not because other " remedies are inconvenient, or tedious, or even quite futile, " that we ;re to undertake a jurisdiction, and provide a sum- ' ' mary remedy. ' ' That was his view taken when the sole question was whether the County Treasury, or the Imperial Exchequer should be charged with the sum of XIOU. What would he havesaid if four lives had been ;it stake ? His views in a penal case (not strictly criminal) are given with great force indeed and what a prosecutor might deem bias, but in language which, I think, does honor both to him and to the law which he administers, in the case of 3Iartiu v. Muchoitodiie (2 L. E,. Q. B. Div. v. p. 7-49, too long to be cited here; see especially v. p. 775.) But in truth there is no foundation at all for this argument, such as it is. The absence of commissions does not at all incapaci- tate this Court from trying all oifences, just as it may try all civil issues; only as has been said, they must be brought into this Court. We Ciinnot try either a civil or a criminal issue, although most clearly the subject matter is within our jurisdic- tion, unless one of the parties in litigation take some step to bring it before us ; by writ, generally, of some description. If the Executive had, on the lltli March last, entertained the least doubt as to their capacity to issue a commission, the bare alle- gation of such a doubt would have been very strong ground for obtiining a certiorari to remove tlie whole proceedings, when we should have been easily able to proceed to trial by any of the well known every day methods, quite legally. Indictments are continually so removed . There is scarcely a circuit in Eng- land previous to which some such application is not made. And i-- 2 Hale, P. C. 37 (c. V. c. 20) the very point arose. There, a prisoner having been committed by a Justice of the Peace for an indictable offence, and there being alleged to be some uncertainty as to the Court which would have authority to try him, the King's Bench at once removed the difficulty by ordering the case into their own Court by certiorari, and then directing the trial to take place as they thought just. They might even remand it back, under 6 Hen. 8 c. 6 (Co. 4 Inst. p. 73). The argument ah inconvenienti therefore, peculiar I i ^ \ JUDGMEN'I' — HeGIxXA V. McLeANS AND HaIIE. 19 had no liies, not he incon- , neither x)g a, ju~ nveiiient. Queen v. use other te futile, B a sum- question xchequer havesaid case (not id what a I think, ninisters, )iv. V. p. '5.) But lit, such incapaci- [j try all ught into lal issue, jurisdic- i step to »tion . If I the least bare alle- ouud for ^s, when y any of lictmenta it in Eng- 3t made, it arose , 36 of the sd to be authority iculty by ertiorari, ght just. 6 (Co. 4 peculiar as it is to urge it in a case of life and death, falls completely to the ground. The topic that was urged at the next greatest length it i sup- port of the validity of the late sittings at oyer and terminer, was, I viiiture to think, as peculiar, and as irrelevant, as the last. It was, that evur since Confederation, — I believe it was said, ever since the foundation of the Colony in 1858, — the Courts of oyer and terminer and gaol delivery have, in the great majority of instances, been held by the Judges of th<' Supreme Court without any commission at all: and affidavits with bulky annexes were produced in support of that proposition. Now in the first place the affidavits did not profess to give a complete list of all the commissions of oyer and terminer. It was ad- mitted that at l(!iist one, issued within the last eight or nine months, namely, that issued for myself alone previous to the last Cassiar circuit, (August 1H79) had escaped attention I had not the curiosity to enquire whether other omissions ex- isted. On the face of the affidavit itself however, it appears tliat there are in the Executive offices memoranda of thirty-six such commissions li.iving been issued in 21 years, since 1858. As each commission authorizes tli(» Courts of an entire circuit, as there have nas atlem])ted by two of the Counsel for the Crown (in justic<' to vhom it is to l)e said that they rarely .•ittend assizes) to persuade the Judges, against the evidence of their senses, that for 1)6 Courts of oyer and termi'ier out of a total of 132, no commission had existed; whereas we have heard them invariably read aloud at the opening of every Court. In the case of Mit< hell v . Hcnrji the present Master of the Rolls makes some leinaiks, ii exceedingly plain English, on what he calls an attempt to })ersnade a Judge by affidavits, against the evidence of his senses, that black is white, and he refused to pay any attention to them. But it is clear besides that even if the Judges had hitheu'to tacitly considered these commissions unnecessary, and had generally acted on that opinion — which is the exact opposite of the truth — 'the commission would be evi- dence of their extra-judicial opinion only, and would not bind 20 Judgment — Regima v. McLeans and Hare. them, nor declare the law, until the matter had been properly raised for their decision, which is now the case for the first time. It is true, on the other hand, that the invariable adherence by the Judges to the practice of causing the commission to be read at the opening of each Court (as directed by the stat. 3 G. 4 c. 10, s.s.l, 2), does not at all conclusively prove the necessity of that observance in British Columbia, although it would be a strong indication of opinion; still it might be adhered to as a merely superfluous ceremony. But in fact the inquiry is alto- gether irrelevant. AVhat we have to consider is, not whether 96 Courts have been held irregularly, bat whether the 97th has been held regularly. It may be that the contention of the Crown is correct, and that all the ostensible commissions issued to us since Confederation, and all former trials, or at all events all trials since the 20th July, 1871, have been invalid. That cannot make the late trials valid. The proposition which the two leading Counsel for the Crown seemed to think next in importance to the arguments just discussed, was, that whether a commission were necessary or not, inasmuch as Mr. Justice Crease undertook to proceed to the trial without a commission he and he alone is responsi- ble for all the consequences of a failure of justice — if failure of justice there is to be. But tliis allegation does not commend itself to thi! common sense of mankind. It is an attempt to make out that a subsequent line of action has been the cause of a prior defect. The stream of authorization flows from the Ex- ecutive to the Judiciary. It cannot be the Judiciary wlio dis- turb(>d it at its source. Not only so; but in this case the Judi- diary gave timely warning that such and such steps would probably disturb the stream. The steps are taken notwith- standing. The Judiciary again protest. "The stream is ' ' muddied ; but we will procure you a delay in which you can " reconsider the case with the Attorney General, and can easily "set matters right." The delay pusses unutilized; and the Judge is told "It is all your fault." I am unable to see how this allegation, even if well founded, bears on the only question before the Court, viz : Has the stream flowed regularly or not ? It might possibly, if addressed to Judges who were accessible to such considerations, influence them wrongly to uphold these proceedings, in order to evade the imputation of responsibility. I hope, however, that we shall be always totally inaccessible to any such influence, even if the imputation had a shadow of rea- son or of truth, which we do not feel that it has. It remains to be considered what order is to be made on properly the first Iherence 3n to be tat.SG. lecessity ulcl be a :1 to as a is alto- Avhether 97th has of the IS issued 11 eventf, I. That for the ^uraents ecessary proceed esponsi- ailure of ommend ;empt to cause of the Ex- vvho dis- he Judi- )s would iiotAvith- ream is you can m easily and the see how juestion or not? cessible Id these sibility. isible to r of rea- lade on Judgment — Eegina v, McLeans and Hare. 21 this rule. In our opinion the proceedings at New Westminster were entirely null and void, and the prisoners have never been tried at all. It is impossible therefore that we can sanction the execution of the sentence. But we should be equally inflex- ible to refuse to take any step which might even temporarily enlarge the prisoners until they have been legally tried and ac- quitted by a jury. If the writ were to go, it would be the usual course to bring their bodies up before us, to submit to such treatment as we might think tit ; either to go free, or to be re- manded back to custody. And it is scarcely prejudging mat- ters to say that after what we have heard, we should certainly, as at present advised, be very unwilling to adopt the former course. It would prob d)ly be, in any case, an unnecessary ex- pense and troubhi to issue the writ, much more to bring up before us the bodies of the prisoners. But whMt we find /is this : — The gaoler alleges two causes of detention, one the sen- tence of Mr. Justice Crease, the other a warrant of commit- ment by Mr. Senator Cornwall, J. P. The rule nisi was obtained on the sole ground of the inv.didity of the sentence, and the various informalities at the late alleged trial. With these objections we agree, and we consider that the ])risoners have never yet been tried at all. But as to the second cause of detention, the warrant of commitment, it has not been at all impeached, and we cannot, at this stage, allow it to be now im- peached. I think therefore, tlu^ proper order is to remand the prisoners to be held in custody according to the iind tenor of such last mentioned warrant. exigence Crease, J. This was a rule j^As/ for a Iiaheas corpus for the discharge of the prisoners herein, which was obtained on the application of Mr. Theodore Davie and W. N. Bole, of Counsel for the pris- oners, at the instance of the Dominion Government. It was made returnable on 31st May, 1880, and was a rule calling upon " the Attorney General and the Keeper of the Common Gaol at " New Westminster, to show cause on Monday, 31st May, iiu- " stant, why a wiit of habeas corpus should not issue to the " Gaol-keeper requii'ing him to produce before the Court the " respective bodies of the prisoners, with the warrant for their " detainer, and why in the event of the rule being made abso- " lute they should not be discharged or further dealt with by " the Court without the writ actually issuing or the personal " attendance of the prisoners in C^ourt. ' It came on for argument before the full Court, consisting of the Honorable Chief Justice, Sir M. B. Begbie, the Honorable 22 Judgment — Eegina v. McLeans and Hare. Mr. Justic(3 Crease, and the Honorable Mr. Justice Gray, on the 4th June, 1880, when the Court reserved its Judgment. The Attorney General (Hon. G. A. Walkem), Mr. J. F. McCreight, Q.C., and Mr. A. liocke RobertsoM, Q. C, appeared for the Crown against the rule, and Mr. Theodore Davie, and Mr. W. N. Bole, for the prisoners, in support. The ciroumstances Avhich led u]) to the application for the present rule, as well as the English law on the constitution and jurisdiction of the Courts of Oyer and Terminer and General Gaol Delivery, Assize and Nisi Prius, and of the Court of King's Bench, from the earliest timi; of which we have authentic record down to the commencement of the history of British Columbia, have been already so fully given by the Chief Justice, with the su])])orting authorities, that concurring as we do generally in his views thereon, it is unnecessary to dwell upon them again ut any length. For convenience sake I have inserted the authorities on which the following obseivations are made at the end of the Judgment — tJie fact being that the original authorities, although very clear, are few in number, and are carried down from year to year in continuous repetition of very nearly the same words. The case is fraught with momentous issues ; for on the power of the Lieut. Governor to grant commissions of oyer and terminer and general gaol delivery may possibly depend not only the validity of every otlier trial and sentence at the late New Westminster assize, but of every trial and sentence passed for every crime, from murder downwards, Avhich has been had for several years subsequent to Confederation, throughout Bri- tisli Columbia. THE ARGUMENT. The Attorney General, (Mi;. Walkem, Q. C.,) stated that the Crown made no objection to the issue of the rule al- though in a position to d(^ so. as it was the wish of the Domin- ion and Local Governments to ascertain through the Court the question, whether any commissions of oyer and terminer are nncessai-y or not in this Province. He therefore took no objection to the Court or rule. The prisoners in any event could not be discharged . They are all committed for another murder and other heinous offences. (Cites Paley 414.) He would take no technical objection. Mr. Theodore Davie interposed — From the first we have .aid that we do not claim that the prisoners could go without a trial, but merely that this was no trial. Judgment — Regina a. McLens andHvabe. 23 ly, on the nt. The 3('reight, .1 for the 1 Mr. W. Q for the ition and General of King's "ic record ohimbia, with the ,llj in his again ;it n'ities on ul of the although rom year le words. or on the oyer and pend not t the late ie passed been had liout Bri- ,) stated ! rule al- 3 Domin- ie Court terminer took no -ny event another U.) He we have vithout a The Chief Justice — There is no need to labor on that point. The Registrar read the return of the gaoler at New West- minster (Wm. Moresby), showing that there were several other criminal charges against all the prisoners, for which they had been committed and were now held for trial. The Attorney General proposed three propositions to the Court. 1. That by virtue of the several local Acts constituting the Supreme Court. It had full cognizance and jurisdiction over all pleas and cases, civil and criminal, in British Colum- bia. That one Judge could sit as the full Supreme Court. That by the Dominion Act 37 Vic, c. 42, s. 5, the Supreme Court, and any Court to be hereafter constituted by the Legis- lature of British Columbia, should have power to hear and determine all cases, civil and criminal in British Columbia, without supplementary authority by commissions of oyer and terminer and general gaol delivery, assize and nisi prius, from the Governor General or Lieut. Governor, and that the prison- ers having been tried by a Judge of the Supreme Court, con- victed and sentenced, it is a good sentence and conviction. 2. If such commissions be necessary, then the Lieut. Gov- ernor cannot issue them as the right of doing so belongs exclu- sively to the Governor General. The Chief Justice — Does this apply to the point ? Attorney General — I am looking at it ah imonvenienti. 3. That if a commission from the Lieut. Governor was necessary and valid, then this conviction is valid by virtue of the general commission issued on 19th November, 1879. As to the first ])roposition, cites the proclamation of Sir James Douglas of 8th June, 1859. Consol. Stats., c. 31, s. 5. contending that more extensive ])owers cannot be found than are in this 5tli section. By the local statute or proclamation of 1858, the Common law of England was introduced, but not (he contended) the pre- rogative rights of the Crown, such as declaring peace or war, issuing commissions, and the like. This, he argued, because Governor Douglas acted under a commission from the Queen, giving him power to issue commissions of oyer and terminer, etc. Also that the Merger Ordniance, cap . 54, clothes the present Supreme Court with all the ])owers formerly held by all or every of the Supreme Courts that have existed in the Province. Also that in cap. 51 there is no central point named for holding the Courts. That caps. 53 and 56 Consol. Statutes of 1877, clothe each sepai'ate Puisne Judge with the powers of the full Court. That formerly the Supreme Court moved from place to place and had no fixed place, as have tlie English Courts at Westmin- 24 Judgment — IIegina v. McLeans and Hare. ster or tlie Ontario Courts at Toronto. The Court could sit an}' ,vlier# in British Columbia, antl has always done so, first by one Judge, then by two, now by throe. The Chief Justice — There is an old Act, about December, 1858, or early in 1859, in Britisli Columbia, which gave the Supreme Court all the powers of the (Queen's Bench, and which was never repealed. Mr. Walkem — I never saw it. The Attorney General then tr iced the history of the Courts in England — King's Bench and Common Pleas — and stated that in 1862 the Court here sat for months in liichfield, between June and October or November ; at Yale, Lytton, Williams Lake, Beaver Lake, Quesnelle Forks, and CJlinton ; principally at llichiie.d, three er four months in a year. It had exercised jurisdiction in common law, equity, bank- ruptcy, lunacy, probate, divorce, county court appeals, appeals from Gold Commissioners' courts, hy virtue of its inherent pow- ers, and without commission. J3v sec. 18 of the Gold Commis- sioners' Proclamation, an okl statute of 31st August, 1859, a prisoner might appeal to the next assi/es. Tiiat, he argued, must mean the next Court, taking the term in its vulgar sense, a "sitting" or "assize." The 19th section, he went on to say. uses the term Supreme Court iis identical with assizes, which he conceived was a statutory d(!claration that they are equiva- lent terms. Sec. 17 of No. 90, lievised Statutes, provided an appeal from the Gold Commissioner to the Supreme Court of British Columbia in cases over $200. The same Court, he contended, used to exercise this jurisdiction. The Chief Justice — Every description of jurisdiction has been exercised by the Court, except this one — that crim- inals could be brought before the Court by indictment. The Attornev General contended, the commissions were mere surplusage. That the Supreme Court exercised most am- ple powers in Court or in Chambers from 1860 to 1869, and down to 1880. That all civil cases were tried without commis- sions of Assize and nisi prius; that none such had been issued, although in England they were issued. He then read from an affidavit of the Hon. T. B. Humphreys, the Provincial Secre- tary, giving all the information he could find in his office, a list of the the Assizes held from Feb., 1860, down to the present time. The Attorney General read the list year by year. That in 1863, there were 13 Assizes and no commission ; that in 1872, there were 13 Assizes and no commission. In 1873, 15 Assizes, and no commission. In 1874, seven Assizes and no commission. In 1875, 22 Assizes and no commission. Li 1877, 4 Judgment— Eegina v, McLeans and Hare. 25 could sit ), first by Bcember, gave the Qtl which le Courts d stated between Williams iucipally ty, bank- appeals ent pow- Commis- 1859, a argued, ir sense, I to say. 3S, which e equiva- vided an :ie Court !Iourt, he 3tion has lat crim- nt. 311B Avere most ara- JG9, and commis- n issued, from an ,1 Secre- office, a 3 present ,r. mission ; In 1873, )s and no In 1877, 13 were held without commission. In 1878, three without com- mission, and in 1879 twelve Assizes were held without •ommis- sion. He argued respecting it that each Court of Assize held at each town exhausted the commission, and that the next one re- (piired a new commission ; and that all the Assizes held without a new commission for each Assize town was an Assize held ivith- oiit commission, and marked on his list as " no commission." When reading his Assize list of 1879 — The Chief Justice remarked — Would you be surprised if I Avere to produce the commission which you say is there absent? That is a commission for me alone at Cassiar and elsewhere in British Columbia. Mr. Robertson, who was prosecuting for the Crown, saw it at Yale. It is left out of this list altogether, although only a few months old. What is the value of such reords as these? Gray, J. — We had this commission (producing another com- mission) and you were Attorney General and prosecuted under it, and made no objection. This commission of 1878, I acted under whether legally right or not. In the commission, is no limit as to time. The Attorney General — I say no commissions, because I mean commissions expired before, and Avere, I contend, de- funct, and though read. Assizes held under them, mean, as I con- strue it, Assizes hold " without commissions." Crease. J. — How can a man swear to an inference of law as a fact? The Attorney General — These are not commissions for life. Out of 132 Assizes, 9(1 have, been held without commissions. That is my broa-.l proposition, Avhether lam right or whether I am wrong in my contention. All the Judges — It is not correct to say that any Assize was held without commission, for no Assize was ever held here without a commission of some sort having been read. The Attorney General — This statement, your Lordshi])s, is approximate only, both as to assizes and commissions. Yet I do think it approximate. I ca" only give what I get from the records. Valcant qurwtiim. There were a certain number of commissio::s, and a certain number of assizes held, as we con- tend. The Attorney Gener d then drew the distinction between the dift'erent kinds ot commissions, general and special ; Hale, P. C. '2 p. 10. Rule 3 c. 4 2 p. 22, and then argued that there could be no adjournment except de die in diem ; only and when they adjourned sine die, the commission determines. In Eng- land the circuits and the times in each year are prescribed by Statute. Here by Hir local circuit Act, he contended, a similar 26 Judgment — Kegina v. McLeans and Hare. power is given. The moment (he argued) the work is done for which the commission was issued, the commission expired. Quotes British Columbia Circuit Courts Act. Consol. Stat. c. 57. The Order in Council which created a general commission of oyer and terminer, assize and nisi prius, etc., for the three Judges, jointly and severally, was made, he alleged, under the Circuit Courts Act. As to the determination of commissions, he cited Hale, P. C. rule 4 Vol. 2 p, 20, sec. 5, 6, etc., and con- tended therefrom that the issue of the same commission to the same persons in March 1880 would not supersede the commis- sion of Nov. 1879. Indeed, the commission of 9th March might be said to have been made and cancelled in one breath, to have died still born. Gray, J. — In British Columbia, the English laws are Act of 1858, and that of 1867, say in the latter that the English laws which were introduced in 1858, are to be carried out, in British Colmmbia according to the English practice where not other- wise provided or inapplicable. The English practice calls for commissions. The Attorney General intended for a distinction between jurisdiction and prerogative, and cited the case of Morris, in one of the Islands (St. Christopher) tried by Governor's com- mission of oyer and terminer, in an unorganized part of an organized territory where a Court had been estab- lished, and in operation in an organized part of the same territory; where it w is held that the trial, under such commis- sion, was good. From which he concluded that criminal law prevailed, but the mode of exercising it did not import the pre- rogative. He then continued the history of Canada. Prior to 1791 all Canada was called Quebec. In 1791 it was divided into Upper and Lower C.inada with separate laws and Govern- ment. In 1838 Canada again became one. Into Upper Can- ada English law was imported much as in British Columbia. The learned Counsel then read the various Upper Canada con- solidated Statutes which effected the introduction of English law into Canada. He stated that Courts were created there by Statute. U. C. Statutes, p. 41, c. 11, which he read in extenso, adding, "these assizes shall be held with or without commissioi " as to the Lieut. Governor may seem best." Gray, J. — Do not these words imply they would have to be held by commission if the Statute did not dispense with it? Attorney General — Certainly. We have no Courts of oyer and terminer and general gaol delivery and nisi prius in this Province. The Chief Justice — Who is responsible then for the advertise- Judgment — Regina v. McLeans and Hare. 27 s done for I expired. )1. Stat. u. )mmissioii the three under the imissions, , and c on- ion to the corainis- irch might ih, to have are Act of glish laws in British not other- ) calls for II between lorris, in lor's com- ized part en estab- the same commis- ninal law rt the pre- Prior to s divided I Govern- >per Can- ^olurabia. nada con- f English 1 there by n extenso, )mmissioi 1 have to with it? ts of oyer s ill this advertise- ment of 17th Feb., 1880, signed by the Provincial Secretary, in the Official Government Gazette, that theie was a Court of oyer and terminer assize and nisi prius to be held at New Westminster ? Mr. Walkem — That is merely an advertisement in a news- paper. He cited, in continuation of his argument, Blackstone, o, c. 4, p. 424 ; and argued that the practice was not the same here as in England, but quite consistent with the constitution of the Courts here. In England there were four commissions. Canada has her own Courts of oyer and terminer. Considered that the sittings at New Westminster were as good as at Eich- field; for there is no local venue in criminal matters in British Columbia. The venue in all indictments is "British Colum- bia," not New Westminster, Yale or jiny other place. He then cont(!nded that the whole country of British Columbia must be ti'e ited as Middlesex at home. Per Cur. — Is that consistent with your argument that there should be a commission for each assize at each place? Mr. Walkem — The British Columbia Circuit Court Act of 1872 bears on this point. There is no Circuit Court strictly speaking ; but I contend it is ilie Supreme Court on cir- <;uit. He continued that under 13 E. I, and Stat. West. 2, the Nisi Pfins Court has jurisdiction in criminal matters. Cites Consolidated Staiute, c 57, sect. 11, (Circuit Courts Act) from the last words of that section contended the Court there must mean the Supreme Court. That Supreme Court is in s{!ct. 2 of the Act, and therefore, he says, includes Circuit Court. Crease, J. — Thai, Circuit Courts Act was a hasty, ill-con- .sid(a'ed Act, passed under a misa])preliension; 1st, 2nd and 3rd readings, by suspension of Standing Orders, in a few minutes, ere the ink was drv. Attorney General — It was necessary to enable the Execu- tive to fix the assizes. The assizes of 1871 were fixed by the Chief Justice and Mr. Justice Crease. Their names are on the advertisement, and the Judges never expostulated. The Chief Justice— We never saw it. We never fixed any assize. That was invariably done by the Executive. In those days they always consulted us, and paid much attention to our representations ; but they alone decided. The names must have been put in bv the printers, not by us ; prob- ably from our M. S. S. sent on unaltered by the Colonial Sec- retary to the printers. The test is this : they wanted to charge ns for oiK^ such advertisement. I refused, as it was not our advertisement, and gave as the reason that we could not and 28 Judgment — Regina v. McLeans and Hare. did not determine the assize That, •we said, was in the Ex- ecutive. That test fixed the right exchisivelj' in the Crown. Mr. Walkuni — Tlien it was taking a liberty with the Judges' names. But to continue. In 1873, terms Avere first appointed; af- ter Mr. Justice Gray came to tlie Province. A great many of the as- sizes heie have been held in Term time. If these Terms be valid, each commission expired with the Term succeeding the trials in New Westminster, as there are vacations between Michaelmas and Easter. . The Judges are sitting now in full Bench, although it is not in Term. Here we do not wait till the tirst day of Term for motions for new trials, and to enter judgment non obstante veredicto. Per Our. — The making of those rules was to accommodate, not harrass, the public and suitors. It was not to limit, but ex])and our powers, and to provide for certain matters which under the English practice, must be moved and attended to in Term time only ; as Rules Nisi for setting aside awards in arbi- tration, etc. The Attorney General stated that he had gone through the practice for twenty years, and found it to be a variable practice. If we applie done part of the rule he had cited for determining com- missions, namely, the portion as to superseding them, we must, he contended, apply all the rule. He also cited Hawkins ed. 1824, vol. 2. pp. 2, 3, 4 and 5, and vol. 2, c. 2, sect, 2, 3 and 6, Constitution of King's Bench. Sovereign jurisdiction in Oyer and Terminer. Also Hale, p. 158, on Grand Inquest. Per Cur. — That fell into desuetude since the Statute of Westminster passed. Grand Inquests were formerly held in every town They were not introduced here because inapi)lca~ ble to the Colony in 1858. The Attorney General — We cannot draw comparisons be- tween England and British Columbia ; the countries are too different. Mr. Theodore Davie here read the affidavi of J. C. Pr^'- vost, which was put in and some commissions annexed, Avliich were taken as read. He also read the affidavit of J. Judson Young, clerk of the Executive Council, as to commissions issued between Feb. 1860, and 21st Sep., 1872. This affidavit states "I cannot find" that any commissions were issued in 1861, 1862, and 1863. The Chief Justice — There is another Act you have not re- ferred to "The Gaol Delivery Act, 1860." The Attorney General — I never saw or heard of it. The Chief Justice — It was nevertheless passed; and possi- ply acted on. The Act was subsequently disapproved and dis- Judgment— Kegina v. McLeans and Hare. 29 I the Ex- Jrown. lie Judges' ointed; uf- V of the iis- Terms be sediiig the 1 between »w in full wait till I to enter immodute, to limit, ters which ded to in Is in arbi- rough the 3 practice. Iningcom- , we must, ivkins ed. 2, 3 and lietioii in uest. statute of y held in inapplca— isons be- s are too 0. Prp- d, which Judson ns issued i'it states i6l, 1862, e not re- nd possi- and dis- i allowed by the Secretary of State, as giving too much authority to the Judge and Governor, and because it was too great an alteration of the Common Law. The learned Counsel read also the affidavit of Thomas B. Humphreys, as Clerk of the Executive Council, shewing the number of assizes as far as he could find out. He also gave copy of the order of the Executive Council of 14th Nov., 1879. This was the lirst local Order in Council about a commission. He then read the Order in Council by which the commission of 8th March was cancelled. He contended that the reasons which urged the Imperial authorities to establish Circuit Courts do not exist here. In those days the delay and expense of taking the King's Courts about the country were so great that the King could not go round. The Attorney General argued that in England the Courts of oyer and terminer and gaol delivery were "auxiliar}' Courts.' The Chief Justice — I never heard that. Surely that must be a mistake. The Attorney General — No, it is so called in Blackstone. The Chief Jiistice— I never heard or saw it so written. Surely it cannot be ; Blackstone must be mistaken. Mr. Theodore Davie thought he had seen the term in Blackstone. The Att(n-ney General — Here there is no central place for holding Courts. The. circuits under that Act are defined by the Lieut. Governor in Council. He then cited Chitty's Criminal Law, vol. 1, p. 126, marginal paging, on King's Bench juris- diction ; idso ]);iges 1-|:2, 141:, and pp. 5, 6, 7 and 8 of vol. 1, as to commissions of oyer and terminer, assize and nisi prius. He alleged that no commission ot oyer ;ind terminer is ever given for Middlesex. Here, in British Columbia, in one commission there are two commissions, gaol delivery, and oyer and termi- ner (p. 148). The learned Counsel then read extracts from the Judges' memorandum, suggestions and comments on the Judi- cature Bill, and Act of 1879. and their correspondence with the Attorney General and the Local Government on the same sub- ject ; ])articularly their passing suggestion on one clause in fa- vor of legislation that assizes might be held without commis- sion, and incidentally stating the parctice to be *'that the Gov- ernment name the assizes which the Judges virtnte officii hold. This, he alleged to be confirmatory of his present position. The Chief Justice — Tint observation you have misinter- preted ; and it was in the next note withdrawn as interfering with criminal procedure, which belongs exclusively to the Do- minion, not the local Legislature ; and we said this would im- 30 Judgment — Regina v. McLeans and Hare. peril the Act. I do, and did tliink, that if properly done by Statute of the Dominion, Courts of oyer and terminer might be allowed to sit without u comraiHsion. The Attorney General — This Court now sitting is not sit- ting as a Court of Appeal ; but only to obtain an opinion by consent. Per Cur. — The motion is properly before us. The Chief Justice handed down his Report on the trial to the Minister of Justice for general use to both sides of the case, with the remark that it was not, and was not to be taken as an opinion ; but merely an enquiry. SATURDAY— BY ADJOURNMENT. The Attorney General had studied the Chief Justice's Re- port to the Minister of Justice, and found many of his own points in it. As to Grand Inquest and Juries; he placed much more reliance on the Circuits Act, 1872, than the Judges seemed to do, especially in connection with 87 Vic, c. 42, s. 5. The Chief Justice — We give the Circuit Act ;is much in your favor as we can by considering it a nullity. There are uo districts to which it applies, and without districts, even if other- wise practicable, it could not be worked. The Attorney General cited sec. 5, Dom. Act, 37 Vic. c. 42, 1874, in force in British Columbia smci' 1875, as to the proba- ble unconstitutionality of sec. 14 of JiKiicature Act, and gave his opinion that the no commission ciause was constitutiouMl as not being a matter of criminal procedure, but of the creation of a Court, which this Legislature could do under the B.N. A. Act. The Act creating Jvistices of the Peace and the Justices' Court in British Columbia, shows the Legislature have the power. Crease, J. — The difficulty which haunts me is this: — On your argument assuming I had full power as a Judge to sit at New Westminster and W all felonies, and condemn to death ; what record or other an thority was there to bring the prisoners before me as Judge of the Supreme Court? The Attorney Gene -al— The 37 Vic. c. 42, s. 5, The Court was duly summoned. The Att'y General to Gray, J. — No, I cannot pretend we can organize a Court by advertisement. As to sec. 14 of Brit- ish Columbia Judicature Act 1879, he considered the section constitutional, because granting commissions is a matter of pre- rogative, not of procedure. The Chief Justice — How do you summon the jury except 'i«ll •< ' by i j mis 1 lac ; car i Co Ah Ac .; iss ce! c. ■ Pe au is ■ to ■ Ci Tl of sp Ci ar G ' N as hi C ti^ m n( : Ol . ai : ai ; 6^ Q p n A ti L Judgment— Regina v. McLeans and Habe. 81 y done by ner might 8 not sit- Dpinion by U' trial to ea of the ) be taken itice's Re- •f his own iced much ;es seemed 5. much in ere are no m if otlier- Vic. c. 42, tlie proba- id ^ave liis iitionMl as eation of a N. A. Act. ces' Court power, this : — On ! to sit at to death ; prisoners rhe Court retend we i of Brit- le section ter of pre- ry exce})t : by writ of venire facias Juratores, under authority from the com- mission ? The Attorney General — If a Judge were appointed without a commission he would have criminal jurisdiction. The Crown can waive any part of its prerogative. It is incidental to every Court to return juries to carry out its own jurisdiction. Bacon s Abridg. vol 1, p. 5()5. The Chief Justice — Then what is the use of the Sheriffs' Act if the Judges had power to summon a jury. The Att'y General, its to his II Proposition, as to who may issue such Courts in B, Columbia, says: If a commission be ne- cessary, none but the Governor General can issue it. 27 Hen. 8, c. 24. Cliitty's Gen. Stat., late ed. p. 940. Justices of the Peace — all commissions are made by Letters Patent. The authority of the Lieut. Governor to create Justices of the Peace is by a surrender by the Crown of its prerogative in assenting to a local Act, the same as in Ontario by express Statute. Cites Ontario Consolidated Statutes, c. 118, Aug. 1877. The Lieut Governor may issue general or special commissions of the peace, and on issue, a general commission supersedes the special one. The Ontario Act was passed after Confederation. Cites Bcfj. V. Amer, 42, U. C. Rep. Q. B. There Sir W. Rich- ards was Deputy Governor General by commission of the Governor General. The Governor General, under sect. 4, B. N. A. Act required special powers to appoint any person to act as his Deputy to administer the Government of the country in his absence. First, as to the Government of Colonies generally. Cites Chitty's Prerog. Crown, p. 77. Chalraer's Opinions, (Governor) Forsyth, do. The powers of a Governor are preroga- tive rights to a certain extent. He instanced Governor Sey- mour, who had power to issue commissions of oyer and termi- ner, but only by permisson of the Queen. So al.so the Govern- ors of Canada. New Brunswick and Nova Scotia. He then argued that all powers in these Governors were transferred to, and vested in, the Governor General. Cites sections 9, 15, 58, 64, 65, and 129 of B. N. A. Act. The Chief Justice — There is a question in that Ontario and Quebec clause sec. 65, just as in the Act of Judicature. Mr. Walkem — I say neither s. 64 nor s. 65 applies to this Province. It is s. 146 which treats of the admission of other Colo- nies, at the end of the Act. Paga 53, " the provisions of this Act," cites sec. 10 of the Order of the Queen in Council sanc- tioning the Terms of Confederation, and considers sec. 129 has given rise to considerable difference of opinion. Reads Lord Lome's commission from the Sessional Papers, No. 14, of Nov. ,|il U m m 32 Judgment — Regina v. McLeans and Hare. 1879, as made after Mr. Blake's and Lord Carnarvon's corres- pondence upon the Governor General's powers. Sec. 3 gives the Governor General power to grant commissions, and express authority is confined to him. Cites Begina v. Amer again, where he contends it was held that the Crown, by prerogative right, could appoint Commissioners of oyer and terminer within the bound iries of Ontario, at the time of the B. N. A. Act, 1867. Cites Lenoir v. Ritdde as to appointment of Queen's Counsel. That is a prerogative right in the Governor General, not in a Lieut . Governor. [Reads the Lieut. Governor's commission.] It is the same as Mr. Trutch's. The B.C. Gazette of 29th July, 1876, shows the Lieutenant Governor had no instructions with his commission. The learned gave this to negative tlie idea that the Governor General had specially confer- red upon the Lieutenant Governor tbi! power of issuing an}' commissions at all, in contradistinction to the po\\ers conferred on the Governor General, except such as the Lieut. Goviu-nor has by statute. Cites Musgrave v. Puledo, 1879, in the Privy Council. There a demurrer was overruled on the ground that a Governor of a Colony is not a quasi Sovereign, but lias ])o\ver only as he is commissioned to execute the special powers with which his commission clothes him. Fahricas v. Mofityn, Smith's leading cases. Hawkins, vol. 2, cap. 5, sec. 1, commissions belong to the Crown. As to Proposition III., affirming the validity ot the com- mission of 14th November, he referred to the peculiar wording of the Order of the Lieut. Governor in Council creating that commission, to show it was intended to endure; anr has no statutory power, and no prerogative power, wc; id L * the force of practice. The evidence, I contend, p o^ ^! ^ hat the practice has been to do that which is not legal :rA cannot be made law. The mere circumstance of Ju'lger Jv'iug acted on Lieut. Governors' commissions of oyer and ierrainer for a succession of years, could not give the Lieut. Governor, by construction or implication, a statutory })0wer of creating Courts of oyer and terminer. Crease, J. — You are perfectly right in that; no one will contest that the Judges cannot by any amount of practice make law. Practice is merely admissible as presumptive or corrobo- ■ . h've proof of what the law is. JNlr. McC^reight— Besides, according to an affidavit read in by the Attorney General, the Judges have held 96 out of 13'i assizes without commissions. Gray, J. — That statement, Mr. McCreight, is incorrect. Fiom my own personal knowledge of all the assizes held before me a commission has always been read. Mr. McCh-eight — I only refer to the affidavit. All the Judges — The list is incorrect. Commissions have always been read at every assize in British Columbia. Mr. McCreight— The Lieut. Governor has no statutory power of granting a commission. Musgrave v. Piiledo shews liiif III 36 Judgment — Regina v. McLeans and Hare. how much Lieut. Governors' powers are restricted. Practice is no pro(>f of the law. It is coextensive with the probability of a practice being challenged. Cites sec. 14 B. N. A. Act, 1867, contending that under that Act the Governor General might have been able to delegate the power of issuing oornrnissions of over and terminer to the Lieut. Governor. But no such instruc- tions were given, tt is easy enough to account for the existing misconception hav^r itinued for so many years unchallenged . Judges and prisoners [practitioners seeing tliis section would think the Lieut. Governor having issued the commission had an authority to do so ; no one would be induced to challenge it. Neither has it been otherwise for nine vears, the practice never having been challenged. But the acquiescence of all par- ties in a Lieut. Governor's commission would really amount to nothing at all. From these reasons it will be apparent, that, as I contend, the Lieut. Governor has no statutory, nor, de fac- to, prerogative power of the kind, nor any authority derived through practice as evidence of the power. The fact is that all this time it drifted out of the minds of Judges, prisoners, and Counsel altogether to onquire about it. Per Cur. — Did it drift out of the minds of the prosecuting Counsel, the Attorney General and the Government, who were the only ones responsible all this time ? The Attorney General — The reason of this contention, that the Lieut. Governor has no power to issue commissions, is, to aid in interpreting 37 Vic. c. 42, s. 5, as the real authority for the trial. Maxwell on Statutes, p. 27 and 28, says "Acts on the same subject are to be taken together." And this Act, with the others quoted, give, we contend, the riiquired authority. Waterlow v. Bohson, 27, L. C, Q. B., p. 65, dealing with the County Courts Acts, is in point, if jour Lordshijjs will refer to it. The Chief Justice — The words are very strong, as jipplied there. Mr. McCreight — Courts of oyer and terminer are not ap- plicable to British Columbia. It is doubtful even, whether the Forms could be carried out in British Columbia. In Coke's 4 Inst., the commission is addressed to a number of persons, Avhile in British Columbia the Court can be held before one Judge. A commission of oyer and terminer presupposes a county. Here there is no such thing . The Chief Justice — Oyer and Terminer commissions here are to three, but generally exercised by one. In England they are to a number of persons, but practically exercised by one. There they generally go in pairs. One sits in the Criminal Court, Judgment — Kegina v, McLeans and Hare. 37 Practice bability of Act, 1^67, 3ra,l might nissions of ch instruc- he existing ihallenged. ition would Lssiou had challenge e practice J of all par- amount to ■ent, that, lor, de fac- tv derived i is that all 3ners, and rosecuting who were ontention, issions, is, thority for Lets on the Act, witli authority. ft/ with the will refer ,s iipplied e not ap- hether the 11 Coke's -4 persons, efore one ipposes a ions here land they by one. lal Court, the other at Nisi Prius under the same roof. Mr. McCreight — The commission of oyer and terminer pre- supposes a county. Here there are no districts or counties. The Chief Justice — Here there is only one circuit for a large number of places, in fact over the Province. Mr. McCreight — I contend also, that there is a cardinal in- applicability of a commission of oyer and terminer to British Columbia in the mode of summoning juries ; citing the British Columbia Jury Laws, Consol. Stat., c. 94, contending that the kind of jurymen that were allowed, was not the kind required as lawful jurymen in oyer and terminer. Per Our. — They are called "legates Jiomines.'" Here there is a law which makes them all "legates." Mr. McCreight — But they are to be "de hallivis.^'' The Chief Justice — But here is an Act which says any one may sit on a jury. Mr. McCreight then argued that the strict requirement of a commission of oyer and terminer would tell the Sheriff to do in British Columbia, that which would be contrary to law ; for oyer and terminer only applies, he contended, to a country where there are counties. The geographical adaptibility of the country, a division into counties, is a condition precedent to the applica- biliy of a commission of oyer and terminer to British Colum- bia. The very words of the Act, sec. 5, negative the idea of a Court of oyer and terminer. He next endeavored to support his viows by reference to the Circuit Courts Act of 1872, con- tending that the framers of section 5 must have had all the British Columbia Acts, and the several provisions thereof, in their minds when preparing section 5. Per Cur. — How could the Parliament of Canada have had the Act in their minds when we see them giving British Colum- bia powers which it had years before ? Crease, J. — There are Jervis's Acts repeated in 32 and 35 Vic, c. 30 and 31. Mr. McCreight contended that the Criminal Procedure Act is inconsistent with a Court of oyer and terminer, citing Coke's 4 Inst. p. 1(51. Justices of Oier and Terminer, as to ojBfences ])rohibited by Statute and no Court named. If a Judge got a Governor General's commission, the learned Counsel was doubtful if he could hold a Court under it, as a commissioner of oyer and terminer, or as a Justice of the Supreme Court. "Due course of law" in section 5 means secundum legem etconsuetudinem cDigUa', 4 Inst. p. 161. As to a supposed difficulty in passing sentence in a case reserved at the late assizes, which had been alluded to, he cited the Queen v. Castro, L. R. 9, Q. B. p. 36, 38 Judgment — Begin a v. McLeans and Haee. to the effect that the trial imports the sentence There sentence was passed out of Term time, overruling the olnfer diftum on that point to the contrary effect. He contended that section 5 does not presuppose a commission, arguing that the mention of Supreme Court shewed as much ; for in 4 Inst. p. 74, it is said "The Judges of this Court have no commission," whereas, he says, in p. 101, "The Judges of oyer and terminer can only sit by commission." From all of which he contended that the Judge who presided at New Westminster could not safely open Court there with the Governor General's commission, and that a commission of oyer and terminer might be useless and woul certainly be dangerous. As to how a Jury could be summoned under sec. 5, he cited Bacon's Abridg., Courts E., concluding that that power was incident to the creation of the Court. The Queen's Bench, the learned Counsel added, was once migratory, (0 Viner's Abridg., p. 555,) and only in latter years a station- ary (yourt. Here the Supreme Court had always moved wher- ever it thought fit, and had not yet been made stationary, but could run over the whole Province. It could consequently as a Supreme Court, under section 5, try any felony when and wher- ever it found it ; and, he contended, it had duly done so in this instance, thereby making the trial good, and the conviction and sentence valid. Mil. A. RoCKE Robertson, Q. C, following the Attorney General and Mr. McCreight on behalf of the Crown, on the constitutionality of sec. 5 of 37 Vic. c. 42, Dom. Stat, observed : That on the 16th Marcii and subsequent days, a Judge of the Supreme Court of British Columbia at New Westminster with- out commission tried the prisoners. They were found guilty of murder, and sentence of death was pronounce^;. Did he possess the power inherent as Judge of the Supreme Court virtu- te offiriiso to sit and pass sentence? In considering the author- ity by which he sat as Judge of the Supreme Court, we turn to the British Columbia Statutes, and find that the Supreme Court was established by the British Columbia Statute of 1859; which was sufficiently comprehensive to give absolute jurisdiction in all matters civil Mud criminal. The Statute does not make a fixed Court. If it had. the question would luive been was New Westminster its centre ? That state of things continued down to Confederation. In addition to that, prior to Confederation, there was not only a power to create a Court ol criminal juris- diction, but also a latent prerogative power, in the Governor of the then Colony, to issue commissions of oyer and terminer. This was actu illy exercised in 1864, when it was a Crown Col- ony, for in that year Mr. Justice Crease, then H. M. Attorney Judgment — Regina v, McLeans and Hare. ^•0 re sentence (iiftum on fc section 5 mention of I:, it is said liereas, he Lin only sit \ that the liafely open I, and that and woul summoned concluding ourt. The migratory, a station- 3ved wher- onary, but uently as a I and wher- B so in this miction and Attorney n, on the observed : ^^e of the nster with- md guilty Did he iourt virtu- he author- rt'e turn to eme Court 359; which diction in ot make a II was New ued down I 'deration, mal juris- overnor of terminer. Irown Col- Attorney General, upon a sudden and pressing emergency, when the Chief Justice was away in Cariboo, was appointed a Commis- sioner of oyer and terminer, etc., and sat as such, under Gov- ernor Seymour, on a capital charge in a criminal case, and the man was, I believe, executed. That power was, therefore, exercised prior to Confederation; therefore, (he argued) there were two modes of trying criminals, 1st, the Statutory Court, the regularly constituted Court, 2nd, the Court of oyer and ter- miner, exceptionally created by commission of the Governor. The second Court was not a continuous Court ; it endured, 1st, as long as the time specified in the commission lasted, or, 2nd, until exhausted by use. That state of things continued until 20tli July 1807, the date of Confederation, when British Co- lumbia ceased to be a Colony and to have a Governor with these prerogative powers. In exchange a Lieut. Governor was ap])ointed under the B. N. A. Act, 18G7. The learned Counsel contended that the only Court left existing then was the Su- ])reme Court, the only Court kept alive by the B. N. A. Act. He then lead section 129, B. N. A. Act, 1867, continuing com. njissions, etc., and argued that theie was no continuing com- mission in force at Confederation, to be continued by the B. N. A. Act ; and that since that union, no person has exercised criminal jurisdiction, except the Judges of the Supreme Court. He then cited Valla v. Lauglois, 3 C. S. C. R., p. 1. That was the case of an Election Petition, and disputed jurisdiction; testing the legality of an election to the House of Commons, and whether the Dominion Government after the B. N. A. Act could impose a new or additional jurisdiction on Provincial Courts ; and whether it was not ultra vires under that constitu- tional Act, foi- the Federal Government to enlarge, contract or affect the jurisdiction of the Supreme Court of a Province. This point was tried in one Appeal Court after another, until at last the Supreme Court of Canada decided that the Dominion Legislature might, under sect 101, either establish a new Court or utilize the existing one. Reading the severid judgments in the case of Chief Justice Ritchie, and the Puisne Judges, Hen- ry, Taschereau, Gwynne and Gait, the learned Counsel con- tended that the Canadian Legislature had taken upon itself to say, if it likes, that it will forbid all Provincial Courts from ex- ercising criminal jurisdiction, and create a Court with exclusive criminal powers. And, he conceived, that the beginning and end of section 91 of that Act pointed to concurrent jurisdiction. That whatever the difference of opinion among the learned Judges on other points in that case, all agreed on the main point; that the Dominion Parliament has power to impose ad- 40 Judgment — Regina v. McLeans and Hare. 1 ditional jurisdiction on the Provincial Courts. He also cited Plum V. Hughes, p. 272, same report, to the same eftect. Per Cur. — You need not labor on that point, Mr. Robert- son. We are all agreed that the Dominion Legislature luis power to impose additional jurisdiction on the Provincial Courts and have from the first acted upon it in numerous cases. Mr. Robertson — Then I will not quote further, except to add that the Judge defines the words in sub -section 14 as not to be construed too literally, and proceeds to show that if so construed it would soon produce a deadlock, in sever.il matters, which the Dominion could not efficiently handle without the power also of carrying out powers expressly reserved to them by that constitutional Act. The legal deduction the learned Counsel sought to draw from this premiss, was, that the Dominion Parliament having the power to legislate on criminal matters, have also the power to create Criminal Courts, eitlier by independent creation or by utilizing existing Provincial Courts. And that they had legislated with full knowledge of the state of the law in British Columbia. That by these words (sec. 5 of 37 Yic, c. 42,) tliey have excluded certain Courts, and rendered it unnecessary to do anything else, or employ any other authority, except the Court which is there defined and laid down. Eri/o, that by say- ing nothing of Courts of oyer and terminer, general gaol deliv- ery, etc., these are excluded and unnecessary. That when the Dominion Legislature says a certain Conrt now existent shall deal with certain matters, the Act would bi- inoperative if it could not create the process by which to carry it out. Per Cur. — The Supreme Court here probably would not deal with the case except by certiorari. The Dominion Acts do not invariably show that intimate knowledge of British Col- umbia, its Acts and necessities and legislation, iind its geogra- phical peculiarities which the learned Counsel for the Crown pre- supposed in them when framing sec. 5. In one Act they give appeal from magistrates to the Quarter Sessions. When in- formed there are no Quarter Sessions in British Columbia, they make a new law, repeating the same mistake. Jervis's Acts Avere in force and acted upon here for many years before the Dominion Parliament introduced them into the Province, as 32 and 33 Vic, cap. 30 and 31, Dominion Stats. There are or were the Insolvency Laws; the Act attempting, before Con- federation, to make Dominion lav; current in British Columbia — that is before we were represented in that Par t men t — and similar things which it would be unnecessary and invidious to mention. Judgment — Regina v. McLeans and Hare. 41 : also cited feet. Ir. Robert- slature has icial Courts ises. ', except to 1 14 as not V that if so imI matters, without the ed to them ht to draw ent having D the power creation or t they had V in British c. 42,) they ecessary to except the •hat by say- gaol deliv- it when the Lstent shall jrative if it would not ion Acts do British Col- its geogra- Crown pre- 3t they give When in- imbia, they srvis's Acts before the rovince, as There are before Con- h Columbia ir iment — id invidious Tlhit saves the forms existing in British Columbia at its The forms in these Jervis's Acts and the Dominion Crimi- nal Procedure, recognize Courts of Oyer and Terminer, though these forms are not imperative, as existing alter Confederation. 5 These forms are identical with the same forms in Jervis's Acts. Mr. Robertson contends that assuming that to be the posi- tion, still practice does not make law ; it would require a special Act. Per Cur. — The Jervis Acts have been in incessant practice here in British Columbia ever since 1858. There were laws as to libi'l lately introduced inio Canada, which are old laws here, anJ always law here. These forms have been always recogniz- ing here Courts of oyer and terminer, etc., and used in them, and nowhere else. Mr. Robertson — According to my contention, the object of the Act is very clear. It contemplates not necessarily those forms, but forms to the like efi'ect. Per Cur. — That is, the expression "forms to the like effect" would be fulfilled where no Court of oyer and terminer exists? How can that be, if von read sec. 42 of the Procedure Act? Confederation witii the Dominion Mr. Robertson— Chapter 94 of Revised Statutes has alter- ed tlie Jury Law, formerly in force, done away with many dif- ficulties, iind there is a power to empanel Juries, incidental to the Supreme Court, eo nomine, as a Criminal Court under sec. 5. As to forms, he contended there was no Court of oyer and ter- miner nominatim, except the Supreme Court as a Court of Queen's Bench. The Court of oyer and terminer in England was a temporary Court. The Judges of the King's Bench there act in assizes and courts of oyer and terminer. If we look to the analogy of the Courts in Ontario, we can get a useful lesson. There there is a statute appointing a Conit of Queen's Bench. It did not include a Court of oyer and terminer. The Judges and others named in a commission from the Lieut. Governor, and made commissioners of oyer and terminer, etc., sat and tried criminal cases. If then there be no commission, then the Judges of the Superior Courts sit virtnte officii as commission- ers of oyer and terminer. The learned Counsel had not been able to find in any other Province examples of a Court of oyer and terminer which could sit without commission, except Onta- rio. But there it was by st itute. In British Columbia, he con- tended, no Court of oyer and terminer was in existence either by statute or otherwise, and therefore that section 5 of 37 Vict, clearly indicating a Criminal Court, can only contemplate the Supreme Court of British Columbia, and that is consequently 42 Judgment — Begin a v. McLeans and Hare. liiii the Criminal Court of the Province for the trial of all felonies. Begina v. Whelan, 29, U. C. Q. B., p. 1. Plum v. Hnyhes, 29, U. C. Com. Pleas, 201, and having full power to create and ap- ply process to carry out its own jurisdiction, had properly sat and applied the process at its command in the trial of the pre- sent case, and consequently he contended the trial was good and valid although held without commission. Mr. Bole in reply on behalf of the prisoners confined his address to two of the three propositions laid down by Counsel in arguing the case for the (h'own. First, Had the Judge at New Westminster any power to hold that Court without a com- mission authorizing him to do so ? Second, Did he sit as a Court of Queen's Bench in British Columbia, exercising powers analagous to those exercised by the Court of Queen's Bench in England? Conceding that the Supreme Court of Britisii Co- lumbia, virtute officii, is a Court of Queen's Bench, he proceeded to give the history and practice of the Court of Queen s Bench in England from the earliest times, quoting Archbold's Prac- tice, Crown Office, XXXVIIl, from which he gathered it had original jurisdiction confined to the county where the Court sits or derivatively over cases moved into it by certiorari or warrant of Attorney General. Citing Coke 4 Inst., p. 78, Gude's Crown Practice 5. Blacksione IV, p. 265. Stephens' Com. IV, 387. Hawkins, P.C. 2. King's Bench summoned two Grand Juries in a year for trial of indictments. In Term time, quot- ing the practice when indictments were subsequently moved into it, and that the concurrence of the Attorney General for the Crown is necessary to send down a recortl from King's Bench to Nisi Prius. Scotland and Grady's Crown Practice, pp. 43 and 50, lays doAvn the mode of trial. Per Cur. — The question is whether the Court which sat at New Westminster was the Supreme Court sitting as Queen's Bench. Mr. Bole — The practice of Queen's Bench is settled. That practice as it existed in England, and adopted here, has not been followed in this case, consequently, he argued, this was not a trial before the Queen's Bench. He called attention to what he considered, the important point. No. 2. Was it neces- sary for the Court at New Westminster, that there should be a commission, whether of Governor General or Lieut. Governor. He considered a commission was npcess«ry, citing Coke's 4 Inst., Hawkins, P. C, vol. 2, pp. 7 and 8, Oyer and Terminer, Judges, etc., p. 20. Argued the determination of the com- mission by holding an assize without adjournment, from p. 26. And that any offence may be proceeded with in any Court of oyer Judgment— Begin A v. McLeans and Hare. 43 11 felonies. !u(fhes, 29, ,te and ap- •operly sat of the pre- was good nfined his y Counsel I Judge at out a cora- e sit as a ng powers 8 Bench in ritish Co- proceeded n s Bench Id's Prac- ■ed it hid Court sits or Avarrant 8, Gnde's ens' Com. two Grand me, quot- tlj moved eneral for )m King's Practice, lich sat at s Queen's led. That has not this was ;tention to LS it neces- lould be a Governor. ; Coke's 4 Terminer, the com- rom p. 26. urt of oyer and terminer, where it is not said by Statute in what Court, p. 28. Also that all commissions must be agreeable to ancient practice, pp. 29, H4, and 37. Then as to J. P's. They also are made by commission, unless the prerogative be superseded by statute ; but they could not hear felonies. Cites also Hale, P. C, 3, 4, 28, 31, 39; also Coke's 4 Inst., IGl, 164, 167, on the authority of Judges of oyer and terminer ; Bacon's Abridg., p. 527 ; Harris's Prin. Crim. Law, 290, 291 ; Whelan's case, 28 U. C. Q. B., p. 1, (17) show- ing among other things that at passing of 18 Vic, c. 82, (U.C.) it was necessary to have a commission. Whelan's case, p. 39, showed that commissions come from the Crown. Formerly these Courts were all held by commission. Until 1837 in Ontario there was no statute authorizing the issue of commissions ; yet they were regularly issued. In 1794 the first Parliament at Newark, English law Avas introduced. Then, if not before, the Court of oyer and terminer was also introduced. He considered the B. C. English Laws Act introduced the power and practice of issuing tliose commissions into British Columbio. Gray, J. — tie-states Mr. Robertson's proposition on the constitutional question, and calls attention to this difference. That the Supreme Court always sat in criminal cases by virtue of a commission ; the Governor having authority of granting commissions in oyer and terminer. These commissions were granted in continuous succession. Much had been said on the affidavits which had been read referring to the number of com- missions that had been granted for holding assizes. From its meagreness of details, and inaccuracy of statement, which had been already sufliciently shown, those affidavits and their an- nexes had been rightly described as * 'a certificate of the absence of record." But even that acknowledges that upwards of 36 commissions, in 21 years, at all events had been issued. Mr Bole continued. That the effectof sec. 5 of 37 Vic. c, 42, (1874) was simply to indicate that the Court there referred to may exercise the powers there mentioned. The contention, how- ever is that it introduces a revolution in the practice by abol- ishing Courts of oyer and terminer. If so that ought to be spe- cifically mentioned. But, he conceived, that in order to enable Judges of the Supreme Court eo nomine to exercise all the pow- ers of the commission of oyer and terminer, etc. as accustomed, special and express words in the Act of Parliament were abso- lutely necessary, especially if intended to bind the Crown. But there were no such express or special words to bind the Crown in section 5, (which the learned Counsel read.) The ] u JUDOMENT — HeGINA V. McLeANH AND HaRE. duo course of law in that section he limited to the existing prac- tice. Per Cur. — The due course of l.iw is to punish crimes as laid down by these Acts, But in all those Acts there is not one scintilla which affects the issue of commissions. Mr. Bole — I take i'c that it is settled law that the Crown is not bound by an Ao.t of Parliament unless specially named there- in. Even the opciative wortis "Her Majesty by and v/ith, etc., enacts, etc.," beinj^ mere ordinary and formal words aud not the subject of an Act, would not enure to take away her prerog- ative. It requires express words in the body of an Act to take away the Queen's prerogative. I limit "due course of law" to the existing; practice as by law dc clared ; because on the day that Act (sec. 5, I57 Vic, c. 42) was passed, the only direct mode of trying criminals was by virtue of a commission. Sec. 5 neither varied, ailded to, nor took away any prerogative or practice existing at that time. So that tliere was an absolute necessity for a commission in order to enable tlio Judge who presided at New Westminster to try and condemn the prison- ers. After calling attention to Stat. 57, (tco, III, c. 9, Assize and Nisi Prius, and 2 Goo. IV, (1822) (which repealed 57 Geo. Ill, c. 9,) the Governor may issue special commissions of oyer !ind terminer, etc., he left the decision in the hands of the Court. FEIDAY, JUNE 11. MiJ. PiOHKitTSON introduced the Criminal Calendars signed by the Judges, all headed in type "In the Supreme Court of Ih'itisli Columbia," to sliew that in all these <»:ises it was the Supreme Court which was sitting. He also called attention to the fact, that in a recent criminal case, on the application for a post])onement the papers are intitided "In the Supreme Court." Mr. Theodore Davie — Yes, but in the Calendar the con- trolling words beneath, in leading type, are the special heading "General Assize," which shews the Judges sat in Assizes. Mr. Eobertson — I contend the Judges did not sit as Com- missioners t)f oyer aud terminer. That requires a precept. In no instance was the slieriff commanded, by precept to summon juries, but only by Statutory authority, under Consol. Stat. 94, not by a precept und^r the ha' ids of the Judge, which would be the case if under a strictly oyer and terminer commission. The Chief Justice — That Jury Act you mention was made to lit the circumstances of the Colony, and adapted to the Court of oyer aud terminer, etc. There is another point on which it is interesting, though irrelevant, to enquire as to the relative 4 1 Judgment — Regina v. McLeans and Haue. 4r. sting prac- crimes as 3 is not one 3 Crown is med there- v,'ith, etc., Is aud not jer prerog- A-ct to take of law" to n the day m\y direct don. Sec. •ogative or 1 absolute fudge who he prison- 9, Assize Bd 57 Geo. ns of oyer nds of the 0,rs signed Court of it was the ;teiition to ation for a ne Court." ■ the con- al heading sizes. it as Com- ecept. In 3 summon . Stat. 94, icli would mission, was made ) the Court 1 which it e relative powers of Lieut. Governors and Governors as in Whelan's case. Mr. Theodore Davie referring to Chitty's Criminal Law, p 505, argued that there was no necessity for a special precept in the Court of oyer and terminer. That Court need issue no jury procpg:i. He admitted Mr. Robertson's authority, but de- nied his deduction. Justices of gaol delivery may summon ju- ries without writ. Therefore he should contend this is a Court of oyer and terminer and gaol delivery. Mr. Theueoue Davil, for the prisoner Hare. — For clearness of order I find it advisable to divide the subject into two main divisions, and to address myself. First, to tlie legal position on which I base my contention. Secondly, while so doing, to meet some of the points advanced by the Crown. My factum naturally arranges itself under five definite subdivisions. 1. That no trial has been had before any Court of Assize, Nisi Prius, oyer and terminer, and gaol deliveiy, as such tri- bunals have power to try prisoners only when authorized by commission, and there was no commission. 2. A leg il trial before the Supreme Court, the only tribu- na] which could take cognizance of the alleged offence, has not been liad, because such Court can only exercise its functions under the sime conditions as could the Court of Queen's Bench in England . And here the Courts never had cognizance of the alleged offence, as the prisoners were never presented by a Grand Jury according to law. Conceding that a proper pre- sentment was made, the Court had not cognizance of the alleged offence, as the prisoners were never brought before the Court by ^^arrilnt, habeas corpus, venire facias, certiorari, or other- wise. 3. Granting the prisoners were properly before the Su- preme Court, no jur}'^ process was awarded, consequently the prisoners were never given in charge of a proper jury. 4. No Nisi Prius warrant was granted by Her Majesty, or the Attorney General ; and yet the prisoners were not tried at Bar, the only way in which a trial could take place without such warrant. 5. Although no direction or order according to the terms of the Statute 2 Geo. IV, and 1 Wil. IV, c. 70, sec. 7, has been obtained, the alleged trial has been throughout held in vacation, not in term, and is consequently void. This is the position ta- ken on behalf of the prisoners. The position of the Crown presents a mixed aspect; for they allege : 1st. That by virtue of the local Acts constituting the Supreme Court, and giving the Judge, or any one Judge thereof as the Court, jurisdiction in all cases civil and criminal 46 Judgment — Eegina y. McLeans and Hare. jirising within British Cohimbia, and the 37 Vic, c. 42, sec. 5 Dominion Act, tlje trial and conviction were j^ood and valid. The 5th section of thehitt r Act deckires that "tlie Supreme "Court of British Columbia, and any Court lobe hereafter con- " stituted by theLej^islature of thetlio said Province, and having "tlie powers then exercised by the said Court, shall have power " to hear and determine all treasons, felonies and indictable " offinices whatsoever ]nentioiied in any of the Siid Acts, which " may be committed in any part of the said Province." They argue that by virtue of these Acts the Supreme Court and Judge aie empowered without any supplementary authori- ty or commission, whether of Governor or Lieutcn.int-Governor, to hear and determine i\\\ civil and criminal cases within the colony, and that the trial and sentence were consequently good. 2. That if commissions be necessary, the Lieutenant- Governor cannot issue them, only the Governor-General since our Confederation. 3. That if a commission from the Lieutenant-Governor were necessary, then this conviction is valid, by virtue of the General ('ommission issued in November, 1879, and still in force. Now first on behalf of the ])i-isoners, I must say liere, that they do not thank the Counsel for the Crown for not raising technical objections to this question being settled by the present application. They frankly acknowledge an interest in not tiking advantage of poiiits of practice, and in procuring a decision hereon, in view of calling Assizes, and trying [)]'isoners, with a possible risk in the dir.tance, if tiiere be no ruling of this Court, of an executive pardon. I came prepared to meet the point liad it been seriously advanced, but it is unnecessary. He further argued that it was also immaterial to his con- tention whether the commission should be the Governor-Gen- eral's or a Lieutenant-Governor's, for if a commission be neces- sary — but a Lieutenant-Governor's is illegal. Then if it be illeg d to hold this Court with a Lieutenant-G(tvernor's com- mission, a fortiori, it will be illegal to hold it without any com- mission at all, as was the case here. It is my duty also in clearing the ground before me, to point out that all references to former trials, whether held rightly or wrongly, is irrelevant and improper — it is in effect saying to the Judges : If we are wrong, you have been wrong too on previous occasions, and have perhaps committed legal murder. If you decide against us now, you will decide against your- selves in all other instances . That I say on behalf of the pris- Judgment — Kegina v. McLeans and Hare. 47 . 42, sec. 5 id valid, le Supreme leal'ter con- and having have power I indictable \.ets, which e." renie Court iry authori- t-Governor, within the lently good. Lieutenant- 3neral since ,t- Govern or rtue of the ', and still y here, that not raising tied by the interest in procuring a g pi'isoners, 10 ruling of ei! seriously to his con- v^ernor-Gen- )n be neces- 'hen if it be L'nor's com- ut any com- me, to point d rightly or 3t saying to •ong too on sgal murder. !;ainst your- l of the pris- oners is not only irrelevant but improper. What we have to do with is the present trial only. We are not here to attack or defend the quorum. The prisoners have nothing to do with other trials. Now let us examine first as to the Governor- General's com- mission : Journals of Senate of Canada, vol. XIII, 1879, p. 33. Extract. Letters Patent to Governor-General (the Marquis of Lome) dated 5 Oct., 1878. Victoria: by the Grace of God, &c. To all to whom &c. Reciting the previous appointments of Earl Dufferin as Governor-General, reciting also that " by the 12th section of the " B. N. A. Acf cert lin powers, authorities and functions were " declared to be vested in the Governor-General." Keciting the desire of making effectual and permanent pro- vision for the office of Governor-Gener;d, adds these words: " x\nd we do hereby authorize and command our Governor- " General to do and execute in due manner all things that shall " belong to his said command, and the trust we have reposed "■ in him according to the several powers and authorities "granted or appointed herein by virtue of the said British " North America Act, 1867, and of these Letters Patent, and by " virtue of such commission." With power &c., to appoint Judges, &c. By Letters Patent of the 8th October, 1878, the Marquis of Lovne is appointed Governor-General of Canada, with all the powers of the above permanent commission from the Crown. By sec. 14 of the B. N. A. Act, the Gover!\jr-General can delegate that yjower or any of his powers to a>risoners rather than md read the v. Macho n- procoedings f a criminal but it cuts )ect to have id terminer ound gener- inted West- minster Hall a central place, and created Chief Justices and Puisne Judges to determine all judicial matters. Then followed the creation of the Common Pleas as a common plea side to the King's Bench. (The Aula Kegis.) Then l)y a fiction of the law arose with much public benefit the Exchequer Court. The Statute of Northampton, 22 Hen. HI, established Jus- tices in Eyre for civil and criminal pleas in every county. These were abolished by the Stat. Westminster 2, 13 Ed. I, c. 30, The Judges then appointed, says Hallam in his Middle Ages p. 318, had no power to try ]ileas of the Crowi) without permission of the Crown. They could only try cases by virtue of their commission. Stephens' Com. vol. 3, give the four au- thorities, four Commissions under which the Judges in England have ever since sat. They are 1st, of the Peace, 2nd, Oyer and Terminer, V)v([. General Gaol Delivery, 4th, Assize and Nisi Prius. These Judges are entirely dependent on their commis- sions. That was made manifest by the authorities cited by my learned friend Mr. Jiole and the Att. General In Clialm^ r's Opin- ions, p. 472, Attorney General Murray, (a! rwards Lord Mans- field) gave an opinion which is of value here. I may premise that the Jamaica Act (it was a Jamaica case) gave the same powers as tiie 13 Ed. I, c. 30. That is very important, as it sh(!ws that an Assistant Judge, like the Judges of the Saprrme Court of British Columbia, had no right to try prisoners without a commission. h\ matters of procedure probably a Judge had ])k.'nar3' powers. Per Cur. — It was an opinion of the Law Officers of the Crown in refusing the local Act, "The Gaol Delivery Act 18G0," that by refusing absent to that Act, they had definitely and con- clusively prevented any Court of oyer and terminer being held in British Columbia Avitliout a commission. Mr. T. Davio — SniUh v. The Queen is an authority that the Judge wJio ])resided at tliis alleged- trial had no power to try the prisoners. True, as Judge of the Sujireme Court he has always l)e('n, and is a Justice of the Peace without any com- mission to tliat (Effect. But that conferred no such power, for Justices of the Peace cannot try felonies. Moreover this Court professed to be a Court of oyer and terminer and gaol delivery. By the proclamation in the Government Gazette on 28th Feb. 1880, the Court which the Executive appointed to sit was not the Supremo Court. They especially proclaim, and give notice to the prisoners of ' 'a Court of Assize, Nisi Prius, Oyer and " Terminer, and General Gaol Delivery" (reads tlu^ advertise- ment in the Gazette of 28th Feb. 1880) "to bo holden at New 50 Judgment — Regina v, McLeans and Hare. " Westminster on Saturday, the 13tli Marcli," and continued this until the prisoners had been tried, convicted, and senten- ced to death. It is inconsistent and contradictory to hold a Court of As- size on that day and suddenly turn round and say ' ' It was not " a Court of Assize, it is another Court." It is not competent for the Executive to a]>point one Court, and when that is at- tacked, because not set going by commission, to turn round and say, "Oh, it was another Court which we were all the time entitled to hold !" It is like an award attacked on one ground, because of defective powers in the arbitrator. It cannot bo supported by saying "Oh, but Ave have competent powers on another ground." Chalmers's Opinions, p. 782, js conclusive on that point. That a Court assuming to sit as one Court can- not be considered as sittiig as another Court. By vol. 1, p. 3o9, Burns' Justice of the Peace, and 3 Geo. IV, c. 10, s. 1 and 2, a commission must be read openly at the commencement of each assize. Such commissions are to be read on the very day, or on the following or succeeding day, to be certified by seal of the Quorum Commissioner, and enrolled in the High Court of Chancery with the cause of delay in reading same. And then the record may be drawn as on first day which is always called "the Commission day." Reference to Hale ;ind Hawkins shews that the tribunal was not a Court of oyer and terminer, nisi piius, or general gaol delivery. There was no Court of as- size. Then was it before any other tribunal competent to try it ? The only tribunal possible was the Supreme Court of British Columbia. But it was not had before the Su]ireme Court, consequently it was before no Court at all. (All the British Columbia Gazette notices were here put in.) As to the second branch of the argument, Mr. Theodore Davie claimed the right of reading the corres])ondence between the Judges and the local a uthorities, on the holding of assizes without commissions, and the interpretation put by the Govern- ment on the remarks of the Judges on the Judicature Bill of 1879, on the ground that as they had been used against the prisoners, he was entitled to read and comment on them in their defence, inasmuch as they did not sustain tlie conclusions of the Attorney General. Mr. Ilobcrtson objected to them as ir- relevant. Per Cur. — You have a right to answer any objection which has been advanced on tlie other side. Mr. Theodore Davie put in correspondence on no commis- sion and on the Judicature Act. [For corresj)ondence etc., see Ai)pendix.] He read sec . (> of Judicature Act as originally Judgment— Begin A v, McLeans and Hare. 51 continued id senteii- >urt of As- It was not competent that is at- urn round ,11 the time ne ground, cannot bo powers on conclusive Court can- :. 1, p. 3;J9, s. 1 and 2, cement of e very day,_ by seal of li Court of And then ays called . Hawkins terminer, ourt of as- npetent to Court of 1 Sujireme . (All the Theodore :^e between ;; of assizes le Govern- ure Bill of gainst the em in their 'Jusions of lem as ir- tion which o commis- enco etc., originally framed, and the Judges memorandum and comments thereon, also the letter containing their immediate withdrawal of sugges- tion to abolish the issue of commissions. Crease, J . — The Executive have always from the first exclu- sively declared the assizes, and the Judges are designated by Statute as the persons who should receive the commission which is to set that Court in motion. They are the persons to hold this commiHfiion virtiUe officii. That is all that observation of the Judges means; they add, they think it desirable that this recurrence of commissions should be dispensed with by Stat- ute, which last part they immediately withdrew as probably in- terfering with criminal procedure. Gray, J. — It must be remembered too that in England more persons than the Judges are in the commission. The same sel- dom twice running, ijesides, the fact that pointing out the de- sirability of abolishing commissions by Statute, shews how much weight was attached by the Judges and Executive to the necessity of commissions to the validity of trials, unless dis- pensed with by Statute. In 1879, they shewed by passing a clause in the Judicature Act, taking power, as they thought to abolish commissions, that nothing but an Act of Parliament could do it, they were so necessary. Mr. Theodore Davie — In considering the latter branches of my argument your Lordships must see that I am under great embarrassment. The Crown has shifted its ground no less than four times; and each of the positions assumed by the Crown atfords'almost a conclusive answer to the other of tliem. First say they : There's no Court of oyer and terminer and no commission. The Lieutenant-Governor can't give a com- mission. It was the Supreme Court eo nomine. Secondly they assume commissions are required but only the Governor-General can grant them. 3rdly, they turn about again ;ind say commissions are necessary, and there is a good one of November last outstanding, notwithstanding the issue and cancellation of one of a subsequent date. It is necessiiry for my argument to produce the Judges' correspondence with the Government. Mr. Robertson objects, but on being pressed withdraws the objection that the question is the question raised on this a]i])lication, and on that correspondence can have no effect. Gra}^ J. — He has a right to use the correspondence if Le chooses. The Judges don't want it. The Chief Justice — If you abandon the right of the Gov- (Miiment to place any weight on the Judges passing opinion on the no commission clause, it need not be put in. 52 Judgment — Eegina t. McLeans and Hare. Mr. Eobertson — I have no right to abandon it, but muRt follow my leader who makes a point of it. Gray J. — ^The matter may go further to appeal, when the appeal Court may say : The Crown used the argument that in the opinions of the Judges no commissions were advisnble and the counsel for the prisoners were refused the right of com- menting on them. Mr* Robertson then immediately assented to its go- ing in. All the correspondence was put in by date and number and parties, including the Judges' correspondence and memorandum on the Judicature Bill and Act. Mr. Theodore Davie resumed, that he had now to deal with the Attorney-General's letter of 8th April, to Mr. Justice Crease. That contained three, if not four, inconsistent propositions: 1. There was no commission and none required. There is no Court of 03'er and terminer; the Supreme Court it was that sat. 2. The Judge is responsible. 3. There was a valid commission in existence in November under which the trial took ]ilace, in a Court of oyer and terminer. He considered he had shewn that no trial took place before a Court of oyer and terminer. The only other way would be a trial before the Supreme Court. Now under the Supreme Court ''onstitution, the Act con- stituting the Court, 8th Jun.-, 1859. Con. Stat. c. 51 (Reads it,) tlie Supreme Court has jurisdiction in all cases civil and criminal as a Court of Queen's Bench. The learned counsel con- sidered it has not only this, but inherent original jurisdiction as well as derivative jurisdiction, /. e. over cases removed into it. Cites Archbold's Crown Practice, to shew the Queen's Bench is only used in its original jurisdiction to try misdemeanors never now for felonies; but he felt ho must concede that the Supreme Court had at the time of the Dominion Act of 1874, c 42, sec. 5, full criminal jurisdiction. The Dominion Act was only declaratory of what the law already was. Section 5 recognizes a due course of law in B. C. as a fact. It is a first principle that a Judge can only administer justice in "due course of law," and therefore it must refer to procedure. Now when the Queen's Bench powers were given to the Supreme Court of British Columbia the practice of the Queen's Bench was also introduced. They were not authorized to exercise these powers in a manner dissimilar to the Court of Queen's Bench in England. The learned counsel then cited Chitty's Prerogative of th(» Crown, p. 76, to shew that even our Kings without Parliament Judgment— Regina v. McLeans and Hare. 53 it, but muBt [il, when the iient that in Ivisable and ght of com- go- to its y date and nidence and to deal with stice Crease, ropositions : There is no v^as that sat. commission k ]ihice, in a [ shewn that iner. IP Supreme he Act con- ( Reads it,) s civil and counsel con- jurisdiction PS removed een's Rench sdemeanors :le that the .ct of 1874, Dominion .s. Section It is a first e in "due ecedure. ;iven to the the Queen's ithorized to he Court of ;ative of tln^ Parliament ••: cannot give jurisdiction to Courts of law, or to exercise it in a manner dissimilar to the practice in England. Under 2, Lord Raymond's Reports, 1344, it is not competent for the Queen to authorize Courts to have any practice dissi- milar to that established by the Statute or common law of the land. Therefore there must be an Act of Parliament to make such a change. The functions of the Queen's Bench and the practice are inseparable. The CroAvn seeking to put a different practice into use is bound to shew that a different practice or state of the law prevails. This — although I directly challenged them, they have not even attempted. They claim an exemption ; the onus is on them to prove that practice inapplicable. In Chalmer's Opinions, 484, Attorney-Generals Ryder and Strange, when asked if the Crown could erect a Court of Ex- cliequer in South Carolina, then a plantation, answered yes; by Letters Patent. The powers then and so given are the same as those of the Court here — the proceedings in such Court being agreeable to the practice here. In the several clauses so introduced terms are recognized. It expressly mentions terms, and the learned counsel contended that he had already shewn that the Queen's Bench could only sit in term. The Chief Justice — There are some things which it is not lawful to do except in term time. The reference to what could only be done in term time would have the greatest effect in in- troducing terms. The mention ol vacation fixes it. In Black- st(nie, terms have come in as long as ihe christian religion has existed here as the names imply, Hilary, Easter, Trinity and Michaelmas. Mi . McCreight — The present division into terms arises from the 3 and 4, William IV. Mr. Theodore Davie cited also sec. 101 C.L.P. Act, 1852, as to Judges not proceeding to trial, negleclful issue, and trial by particular terms. Also the C.L.P. Act, of 1854, sec. 95, as to sittings in Banco, and sittings in and ouc of term. The long vacation has always been the same here as in England. Here there are more geographical reasons for terms, from the scat- tered country, great distances, difficult communications, and tlio like, which call for legal divisions of the year. Besides they have been recognized, though not constituted, in British Columbia. The Chief Justice — The observation which strikes me is the mention oi vacation; that shews terms,, Mr. Theodore Davie — Terms took their rise — or at least we r>i Judgment — Regina v. McLeans and Hare. firi hc:iv of tliem — in tho time of Alfred the Great. Uray, J — What is the practice introduced since June, 1875, by the Canadian Criminal Law ? We had better come to that. Mr. Theodore Davie — Section 5 of 37 Vic. c. 42, is clearly only declaratory of what the law was previously as to terras; In looking at the order of Court dealing with terras, we must remember the distinction between recognizing and organizing. The order of Court oi'ganiz(id them so as to adapt the terms to tit into the times of going circuit. The Chief Justice — We acted under the protection of sec, 101. Mr. Theodore Davie — As to the difterence between tho constitution and recognition of terms, the learned counsel said in Ontario there was no special statute creating terms. Gray, J. — It came in nnder the Act of 1802, or whenever it was in Ontario last the common law was adopted. Mr. Th(3odore Davie — 1 find 22 Vic. c. 18, recognizing terms in the Ontario Statutes. There is an express recognition of reriiis in the Judicature Act, 1879, by abolishing them. 'I he Common Law Procedure Act is on^ of the laws colo- nists bring with them. Cited Chalmer's Opinions. If not applicable, it rests on the party attacking these to shew tliey are not ai)plicn])le. That they have not done. The (Queen's Bench practice in England is i]i force here. Mr. Theodore Davie then proctMvled to shev/ what ])ractice should have been followed here if the matter was to have been heard before the Supreme Court as a Court of QuetMi's Bencli. As to the validity of his second proposition th it the pris- oners were never presented by a Grand Jury forthcoming ac- (jording to law, counsel remarked: The jury differs according to tlie Court. In grand inquests, which have long been obso- lete, two Grand Juries were returned every terra, according to S(;()tland and Grady's Crown Pr.ic, 4.3. Only cases of raisdemeanor ar(> brought before the Quedi's P>eji'^h low. To bring the prisoners Ijofore the Court to ans- .vei the indictment, the usual way is by Avarrant obtained at Judge's chambers. The same author in page 50, says: 'Another mode is by " venire forms juvatores " A Judge's warrant may be applied for instead of ^^ venire J'acias.'" The strict practice is by '^ venire facias.'" Archbold's Crown Practice, says the usual way is by warrant from a Judge. DiMrinijajS (used to compel jurors' attendance) is a sort of civil 1 ca] th( ■5 poi ant he Sc( ma I pl<- 1 ■ins Th bv the \ the * 1 ?5 Cr( % tra: 'f, Ju( \ tha f try: 1 of( 1 Avlu 1 wa.s ■1 Coi not 1 woi % cor ■1 Tri Jud ■; tliei A fori "'■ Wli 4 i< nn 1 ■■J '■i crir % San { Pro '1 1 "p "tl "fc "e: i "1> If' d Judgment — Regina v. McLeans and Hare. 55 ■] le, 1875, to that. 5 clearly ; as to with zing so as to ognizing 1 of sec. :een the isel said dienever ognizing oiriiition ,ws colo- vests on )lic';iblo. tictice in practice ive been J^ench. lio pris- ning ac- x!or(ling en obso- T(ling to Qnedi's to ans- ained at lo is by ' venire chbold's I Judge. ;. of civil capture. To non estinveafus a capias ad respondendum issues, and the sheriff is ordered to keep the prisoner safe. This is the only point of practice relating to felonies and treasons. Same author, p. 50. In all other cases where defendant is in custody he may be brought up by hnheas corpus in term time. By Scotland and Grady's Crown Practice, page 182, prosecutor may obtain a writ of haheas corpus. After the defendant has pleaded, and the case is at issue, then (Hawkins, sec. 2) a nisi prius warrant issues. Nisij^rius record is then taken up. The mode of trying ])risoners in the King's Bench is laid down by Lawrence, J., in II. v. McLeod, 2 vol. East, Q.B., 209, under the original jurisdiction of the Queen's Bench, a warrant of the Attorney-General was requisite to try the case. Hawkins 2, c. 42, nt page 557, says: Where there is a Crown case the Attorney-General's consent is not necessary. A transcript of the record is sent down to the nisi prius. The Judge can send it down without the Attorney-General. The next proceeding is summoning a jury. It was stated that ill British Columbia no process was awarded by the Courts trying criminals ; but that is not so. When the trial is in the v'jourt of oyer and terminer, there is no necessity to give a precept, but when a trial is before the Queen's Bench it must be by special jury. The very fact that no wai-rant was granted (in this cp.se) was the strongest proof, Mr. Davie contended, that it vas a Court of oyer and terminer, which always tried criminals, and not, as argued by the other side, the Supreme Court, as that would certainly have required a precept from the Judge. Ac- (;ording to Chitty's Crim. Practice, vol. 1, 4 Hardwick's State Trial, p. 505, 506: For a trial in the Queen's Bench, the Judges may issue a precept. In a matter not originally before tliem, a venire may be aAvarded and dat'^d after the issue. The form of Queen's Bench record carries that out. Beads the form from Archbold's Crown Prac. 71 et. seq. <&c. Where the Sheriff is ' ' commanded to array a jury, " Therefore let a jury come," &c. Mr. Theodore Davie then contended that juryprocjss in criminal cases requires great strictness. Citing R. v. Perrin, 2 Saunders, 393; Dominion Criminal Law, c. 29, sec. 42; Criminal Procedure Act. "Nothing in this Act shall alter, abridge or affect any " power or authority which any Court or Judge hath when " this Act takes effect [1 January, 1875,] or any practice or "form in regard to trials by jury, jury process, juries, or jurors, ' ' except only in cases where such power or authority is ex- ' ' pressly altered by or is inconsistent with the provisions of 66 Judgment— llEGiNA v. McLeans and Hatie. "tliis Act." Now thoro is nothing in tlio Queen's Ben^h jury pi'0(!t\ss, tfec., either ox]nessly altered by, or inconsistent with tlijit Act, HO tliat it still I'emans in full force. It is ms strict now as (!ver. The Chief Justice — The case of E. v. Connor, shews how a jury is to bo summoned. The Nanaimo riot case was a case in ]ioint. 'J.^here a delay of two days was given to give time to summon the jury proper!};. Mr. Theodore Davie — Ecu. v. Perrln shews how closely that strictness is ol)served. There, in the venire facias tlie words used were " tlierofore th(^ slieriflF, etc. 'caused' to come 12 men, etc.," held to be an error because the word "caused" had been used instead of the word "cause." Per Cur. — How much of the English Jury LaAvs is iibol- ished by the British Columbia Jury Act? Mr. T. Davie — In this case your Lordships mean? Here the jurymen were good jurymen enough ; the sheriff miglit bo good enougli ; l)ut the question is, was he ])roperly authorized and set in motion'? That necessity is not changed by the Brit. ish Columbia Jury Ijaw. He then cited G Rule of Court, Hil. Term, 184:'4, made by the Chief Justice and Judges of tiio Queen's Bench, pursuant to 6 Vic, c. 20, which prescribes the jury ])rocess in Queen's Bench cases. Archbold Crown Prac;., XLIV, first part of book, and that the writ of venire faciafi j tiro - fores is made returnable on a day certain in Term. In the jury process distringas is made returnable in Term, also venire f wins. The learned Counsel then contended tliat from a consideration of the jury process necessary, this was not a legal trial. Con- ceding the Sheriff to be a proper officer, he must be properly authorized; and the mode in which juries had been hitherto sum- moned shewed it was oyer and terminer, not Supreme Court, (Q. B.) jury process which had been followed. It was not a Court of oyer and terminer, becaiise there was no commission. It was not a trial before the Supreme Court, because the jury process of that Court when trying prisoners had not been followed. He contended therefore, confidently, that this Avas no legal trial, because it was not a Court of oyer and terminer ; there was no commission, and no proper jury process. There was no warrant of Attorney General, or other usual record necessary to authorize an ordinary Queen's Bench trial, therefore the trial should have been at Bar, with special jury and in Term time. It is not protended even, that it was a trial at Bar. Therefore it was no trial at all. Mr. Robertson interposed, That the objection on the ground of jurj process seemed to him to have come too late. There J['T)f;MKX'r— llEGiNA V. McLeans and Hare. 57 indli jury tout with } as strict^ | lews how : as a caso | VG time to I \v ch)sely ''acias the . ' to come "caused" 1 is iibol- mV Here might bo mthorized ' the Ih'it. :)urt, Hil. ;es of tlio cribes the vn Prac, iciafijuro- n the jury ire fcvhis. sideratioii al. Con- properly lertosum- le Court, there was lie Court, prisoners uilidently, t of oyer oper jury or other n's Bench bli special it it WHS a he ground l(>. Tliere was no challenge to the panel. This objection to be good should have been made at the time. Crease, .J. — There was a challenge to the whole array. Mr. McCreight, Avho prosecuted for the Crown, demurred and his demurr(*r was sust dned. Mr. Robertson — There; is no record made up, no proper evidence of any oftlnise things alleged was produced. The Ilule was granted on one ])oint, and now Mr. Davie brings up several objections for the lirst time without notice. Still in a case of this kind, of life and death, I shall not press the objection. Crease, J. — The question of jurisdiction may be raised at any time. The prisoners cannot waive the right. Mr. T. Davie continued. If the procedure of the Queen's Bench was necessary to set the Court in motion, then here was a failure in the jury process. This defect in the jury process was called to the attention of the officers of the Crown. The proper mode is all set out in Keij. v. McLeod, 2 East. 505. Per Cur. — The point is who is to summon the jury. Mr. Robertson — Section 1 of the Jurors' Act repeals all other Acts as to jurors down to 1860. The jury was summoned in the usual way, and we contend, the lawful way in this case. The local Act has dispensed with all unnecessary formalities. ^ Mr. D.'tvie — The fallacy of Mr. Robertson's nrgument is that this Act does not touch the authority which is necessary for the Sheriif to summon juries. Mr. Roliertson — The practice of the Court must have weight. x\fter enquiry, in no instance of a criminal trial that he remembered in British Columbia has the Sheriff had such a writ. The Chief Justice-There was never a Court held for the trial of a prisoner in British Columbia, except under color of a commis- sion. It was only on the lltli March, at 8 p. m., that we heard tiiat no Commission was necessary for the Supreme Court Judges to try the prisoners at New Westminster. Mr. T. Da^it! resumed the argument, citing the Queen v. Cadro, L. R., Q. B , Coke's 1st Inst., 2d book, sec. 20. note 9, Chitty's General Practice II, pp. 362 and 363, on the jurisdic- tion of Superior Courts, Court of Queen's Bench; Hale's Pleas of the Crown, vol. II, pp. 3 and 4. which stated that where the Court of Queen's Bench came r'own in Term time into a county, it superseded all other Couics, except the Court of oyer and terminer. He considered that the question of sitting in Term, in criminal matters, involved a question of jurisdiction, not of practice only ; and that out of Term the Queen's Bench has no such jurisdiction. 58 Jl'dgmmnt — liEciNA V. M(,'Lkans and Hai!]:. .11 TIk; (liffieiilty which occurred in tliis ctiso nood never liavo liappoiKul ; for hud ;in order l)eeii ()l)tjiiiied in tlie usual Wiiy uiid(u-tii(> Statute 2 G. land 1 AV. 4, to allow the Court tositin Va- cation, tlu5 whole ([uestion would have been avoided altogether. That is apparent from Whohui v. Tlte Queen already cited, and Re(j. V. Kijre, L. II. 8 Q. 1>. pp. 487 and 494, which prescribes the rt'tuni of Justiccis of th(* Peace, unless otherwise directed by Statute, to the Judg'-s of oytiv and terminer, and shews that the Court of Queen's iiJencli is no( the Court in which ordinar- ily to try criminals, unless authori/ed by particular Statute, or derivatively' tlirough soiikj r(>oord, or other legal authority. As to the ]ast point of tin; (h'own Counsel that the previous com- mission of Nov. 19 was i': force, and in existence, and at New Westminster. (Jueeii v. Ez/re applied to that also ; and shewed it was invalid. Even if that previous commission was in force, he contended, it was of no avail, because it was not read in ac- cordance with the Statute he had cited. Besides, he argued, by Biiri'ss Justice, p. 3r}9, vol I, and Hale P. C. vol. II, (title 'Justices), marginal page 25, a special commission cancels ;i general oxw j.ro tanto. He argued also that a commission is ex- hausted i -om sitting under it, as was done with this one, in November at Victoria; citing in support, Hale's P. C. as to de- termination of commissions of oyer and terminer, p. 35. He does not say that new commissions must be to other persons to supercede aprevious commission . Hawkins said other persons; but the o;dy one Avho does so, and Hale is the latest, therefore he considered the November commission valueless. Mr. McCreight handed in Valin v. Lrni(/lois, 3 Su]n'emo Court Canada Reports, and Viner's Abridg., to shew that Queen's Bench sat out of Term. Mr. T. Davie — But only to receive indictments and issue process for trial in Term. He regretted having been com- pelled in the interests of the prisoners, to occupy .,o much of the time of the Court. Per Cur. — Not/)ne word has been superfluous. Cur in ,fd- visari voluit. On the 2r)th June, the Court having taken time to consid- er, the Chief Justice, Sir Matthew B. Begbie, having rendered judgment as already given — Crease, J. _ In order to adjudicate satisfactorily upon the real point at issue in this case — whether the trial of the McLeans and Hare was a good and valid trial or a nullity — we have to decide whether a Court summoned as this was, sitting as this did, without commission of oyer and terminer, etc., could legally Judgment— Eegina v. McLeans and Hare. 59 3ver liiivo suiil way Kit ill Va- togotlier. tod. and ivescribeH dir(3cted unvs tliat I ordiuav- ;a.t\ito, or rity. Ah 3ns com- id at Nmv d slirwed i ill force, ad ill ac- i aif^ued, II, (title cancels a ion is ex- ! one, ill as to de- 135. He ersons to • persons; tliorefore Sujiremo Lew that Lnd issue Ben com- nincli of Onria xid- () con si d- rendered ?al point 3ans and to decide tins did, d le^ alterations, etc., as it should think fit, in the constitution and f* jurisdiction of these Vancouver Island Courts. But as the Van- vouver Island Legislature, wU eii^ i^ '^'^S rfill Hideref] to have been created, did not effect any alteration in t he cr iminal law^ extant in that island, and especially the trial of capital cases, and possi- ' bly was itself not in legal existence until indirectly confirmed by subsequent Imperial legislation, it is not necessary to do more than note the fact. As the Colonists of this Island carried Avith them so much of the Statute and Common Law of England, and among others the prerogative of the Crown, as were suited to their condition, the mode of trying capital cases was invariably by commission of oyer and terminer etc., to the Chief Justice of Vancouver Island, under the Great Seal of the Colony from the Governor, by virtue of the authority granted to him by the Crown, — first to Chief Justice Cameron — afterwards Chief Justice Needham, who appears on the records of the Court as having tried Crimi- nals under the four commissions of Justice of the Peace, oyer and terminer, assize, and general g.iol delivery, usual in Eng- land. This continued until the ur.ion of Vancouver Island with British Columbio on 19th Nov., 18G6. British Columbia or the mainland had a legislative birthday, namely the IOlIi November, 1858, the day of tlie proclamation by Governor Douglas, at Lan^'ey, of the Imperial statute 21 and 22 Vic. c. 99 (2 Aug ISof'"* lacted to provide for the Gov- ernment of British Coiuinlaa repealing the 43 Georg<^ III, c. 66, enacted: — " That it should be lawful for Her Majesty by Order in Chat Statute after reciting and 188, and 1 and 2, George IV, Judgment— Hegixa v. McLeans and Hare. 61 IS reLated lolumbia, ancoiiver ' Majesty adminis- irpose to I in mat- istical ju- 1, and to ministe- jution of k fit and p;islature, I Imperial on, such ition and ) the Vau- lave been extant in nd possi- ionfirmed ry to do so much ng others ondition, (nmission ancouver iovernor, vn, — first leedham, id Crimi- .ce, oyer in Ener- n land with jirthday, hunation tatute '21 the Gov- iting and Brge IV, Order in " Council, &c., to make, ordain and establish and (subject to "such restrictions and conditions as to Her should seem meet,) " to authorize and empower such officer as she should from time " to time ai)point as Governor of British Columbia to make pro- *• vision for the administration of justice therein, and generally "to make, ordain and establish all such huvs, institutions and "ordinances as miglit be necessary for the peace, order and "good government of Her Majesty's subjects and others " therein." Adding a provision for hiying these laws before both Houses of Parliament. B}' ano'her section, (III,) Her Majesty was empowered by Order in Council to "constitute, authorize and empower such "Officer to constitute a Legislature, to make laws for the peace, " order and good government of British Columbia; such Legis- " lature to consist of a Governor and Council, or Council and "Assembly, to be composed of such and so many persons, (fee, " as to Her Majesty might seem expedient." This Constitution il Act was to be set in force by Procla- mation; M'hich was duly made on 19th November, 1858. TJie colony of Vancouver Island was excepted from its operation, but provision (afterwards carried into effect) was made authorizing Her Majesty by a joint address from the two Houses of Legislature on Vancouver Island, pr.iying for incor- poration of that Island with British Columbia "by Order [in Council] to annex the Island to British Columbia; subject to such conditions and regulations us to Her Majesty should seem expedient; and thereupon and from the date of the publication of such Order on the Island, or such other date as might be fixed in such Order, the provisions of that Act should be held to ay)])ly to Vancouver Island. Under this Act Sir James Douglas was ap]iointed Governor of British Columbia, and authorized by Proclamation under the Public Seal of the Colony, to make laws, &c., for the peace, order and good gov- ernment thereof. Under this Act also a Judge (the present Chief Justice) was sent to British Columbia, and on 19th November, 1858, by a Proclamation having the force of law, it was enacted: — " That " the civil and criminal laws of England as the same existed" [on the 19th day of November. 1858,] and "so far as ihry were " ?m^ from local circumstances inapplicable to the Colony of " British Columbia, were and should remain in full force within "the said Colon}^ till such times as they should be altered by " Her said Majesty in Her Privy Coui'cil, or by him the said " Governor, or by such otlior legislative authority as might " thereafter be legally constituted in the said Colony; and that 02 Judgment — IIegina y. McLeans and Haiie. " siicli laws sliould be fidministored and onforcod by all proper " autlioritios against all persons infringing, and in favor of all "persons claiming protection of the same laws." Under another local Statute, dated 8tli June. 1859, reciting thai by a commission under the Iloyal Signet and Sign Manual, dated 2nd Sept., 1858, Matthew Baillie Begbie had been appointed to be a Judge in the said Colony Avitli full power and authority to hold Courts of Judicature, and to administer justice according to the laws at the date of the said commission in force, or which might thereafter be in force in the s;iid Colony. And that it was expedient to declare the constitution of the Court of Justice of 13ritish Columbia, and to make provis- ions with regard thereto, enacted: " That the Court held be- " fore the said Maithew Baillie Begbie, and his successors in '* office, should be called and known as the Supreme Court of " Civil Justice of British Columbia; and sec. 3: That the 'said Court should be a Court of Record by the name last " aforesaid; sec. 4, giving it a seal." And by sec. 5 it enacted: "The said Supreme Court of Civil Justice of British Columbia, " shall have complete cognizance of all pleas whatsoever, and '' shall have J nrlsdicf ion in all cases, civil as well as vrimiiial, " arising within the said Colony of British Columbia." Under these various authorities the Governor always ap- ])ointed the times and places of holding Assizes, and gave the Judge of the Supreme Court a commission of oyer and terminer &c., and under that he sat in the Court of oyer and terminer, and tried and sentenced all kinds of criminals, up to the union of the two colonies. On the proclamation on the 19th Nov. 1866, of the British Columbia Act, 1866, the Imperi il Act. 29 and 30, Yic. c. 671 repealing 21 and 22 Vic. c. 99, and 26 and 27 Vic. c. 83, the Colony of Va .-couver Island was united with the Colony of l^ritish Cohimbia, and became the Colony of British Columbia, with a saving of existing Vancouv(!r Is- land laws, until altered by com])etent authority. The 6tli section preserved intact the ])ower of the ]5ritisli Columbia Legislature to make laws for the united Colony. The Consolidated Statutes, c. 52, (the Courts Declaratory Ordi- nance, 18()8,) Con. Stat. c. 53. (The Su])rem(! Courts' Ordi- nance, 1869). Con. Statutes, c. 54 (The Courts' Merger Ordinance, 1870). Con. Statutes, c.56. (The Puisne Judge Appointment Act, 1872), eliocted the mergof of the Supreme Courts of Civil Justice of Bi-itish Columbia and Vancouver Island, and the Judg'S thereof, and the transmission of all their civil and criminal jurisdiction and authority intact to the Judgment— ReCtIna y, McLeans and Hare. 03 I proper or of all . 1859, nd Sign bie had II power minister imission the s;iid ation of provis- leld be- issors in Court of 'hut the ine last enacted: )luinbia, •er, and rimiual, vays ap- ave the erminer rminer, to the Dth Nov. Act, 21) 2() and united Colony iivt^r Is- British Colony. ry Orili- Ordi- Merger o Judge hiprenu! ncouver iill tlieir to tlio present Supreme Court, and the three Judges thereof in whom and in eacli of whom, it is now all concentrated. Con. Stat. c. 50, sec. ' (The Puisne Judge Appointment Act of 1872 j, enacted that the Supreme Court of British Columbia may be held be- fore any one or more of the Judges of the said Supreme Court. So that one Judge may constitute the Supreme Court for the hearing of nil criminal as well as civil cases. The Court thus constituted has also, by an early Procla- matioii of Governor Douglas, not now in print nor in any of the collections ot Statutes, nor in the Revised or Consolidated Statutes, but originally published in the Victoria Gazette (as the official Gazette of British Columbia,) probably proclaimed in December, 1858, and not repealed by the English laws Statute of 1858, or the Supreme Court Statute of 1859, or any subsequent Statute, and ever since acted upon by the Supreme Court, and now in force, received confirmation of its criminal jurisdiction, for that Statute purported to clothe the Supreme Court here witli all the criminal jurisdiction in every respect, of the old Court of (Queen's Bench in England; it could not well have more. No local Statute created any Court of oyer and terminer, Arc. eo nomine, but the s ime was introduced into this Colony as a part of the law of England and came in with the common law, and lay dormant as it were, side by side with the Su])remo Court, until called into active exercise from time to time liy commissions from the Governor under authority of the ])()wers given him ])y the Imperial Act constituting the Governnuint of th(> country and the Queen's commission to him aildressed. T]ics(i commissions were for various periods, some for six nnjnths only — some were for an indefinite period, no time being specified. First to a single Judge of the Supreme Court, tluMi to the two Judges; bat subsequently and generally they ran to the three judges by name jointly and severally, to enqui 'c, &c., into felonies Avheresoever and what- soever in the Province, by the " oaths, kc, and to hear and " oth -rwise determine the said treasons and other the premises " in our Province of ]3ritish (^olumbia, according to the laws " of this ouf Piovince for the time being in force. And also "from time to time to delivev the gaols, and every the gaol " within this our Province of British Columbia of the prisoners "therein b(ung, ac^cordiug to the said laws oi tliis our Province " for the time being in force, and also with power and authority " A'c, ttc," (the other usu:d full powers,) concluding with the words: " And whatsoever you or either of you shall do in and " about the pnnnisc^s, you shall /'mm time to time with all con- " veni(Mit s])(H>d return tons" (before Confederation at New 1 f G4 Judgment — IIegina v. McLeans and Hake. Westminster or Victoria, wliioLever for the time being liap- ])('iie{l to bneral iii;d ;i Lieut. Governor, and, pro fonfo, is an argument in favor of tlie con- struction that by sec. 120, the Lieut. Governor has always had vested in him that prerogative right of issuing such commis- sions to set those criminal Courts in motion. The esp.N.A. Act, sec. 0, enacts, that the Executives (loveripuent and authority, of and over Canada is thereby dechired to continue and be vested in tlie (^ueciu. The ])osver liein,^ a preroj^ative one (I refer still from the same case), can onlv be exercised by th(^ (^)ue(!ii or her representative. The Governor-General of Canada is the only executive officer provided for b}- the Act, who answers this description; and he has granted the Queen's Commission to th(> Lieutenant-Ciovernor. The issue of commissions of oyer and terminer and general gaol d(4iveiT, both general and special, still proceed from the Crown, subj(!ct only to such restraints as the Legisl iture may have im])osi'(l on the extn-cises of the prerogative. Chitty's Pi-eiog., 77, Hawkins' P.C, 11, c. 5 sec. 24 to 37, 2 Hale's P.C The Governors of British Columbia have always been invested with this royal authority, and ConfcdiMation has handed down this among the other prerogatives. The prerog- ative's of the Crown are not to be deemed as ;d)ridged or re- strict "d by mere ^.eneral words of legislation. The Lmguage nmsi be ('X[)ress an-.l free from ambiguity. If the Lmguage used be coTisi^t.'ut with the existence of the prerogative, it must be held tliat the prerogative is not affected. That may therefore be construed as an authority in the di- rection of the existence of concurrent powers of granting com- missions of oyer and terminer and gaol delivery vested in the Governor (Jeneral and Lieut. -(lovornor. This much is, however, established, that the authority to gi'ant commissions of oyer and tei'miner and gaol delivery sur- vives in some ])ei'st)n or otl.M', either alone or concurrently; and the 12l)lh s(:ction, in the manner I liave described iier))etua-t(>.s this among the authorities (existing at the time of ("onfeder ition iu the (iovernor of the ^ olony. Adam Wilson, J. in /iVf/. v. Whchnt, 28 Upper Canada Queen's Bench ^S), in the same direction, says. The statement of Hawkins, which is contained ii numl)erless other books and divisio's, is no doubt, settled law, "That the King being " the SupreuKs Magistrate of the Kingdom and intrusted with " the whole Executive ])ower of the law, uo Court whatsoever '• can have any jurisdiction unless it, in some way or otlnu' de- " rive it from the Crown." Hawkins P. G. Bk. 2, sections 1 and D, says, "That all 70 JlUGMEXT — liEGlXA V. McLeANS AX]) HaRE. " Jud^^cs must (Icvivf tlu-ir uutlioritv from tluj (Jrown by sonio " coiuinissioii warrautod 1)}' law." He adds tliat il' the coin mission under wliieli the Court is liold, ])(! not sot oat in the record, the proceedings will be erro- neous ; because tlniv would appear to be without jurisdiction. So that a commission is neccssaiy to give jurisiliction to the Judge ovcu' the case brought before him. And here, be it observed, there is not, as in Ontario, any Statute dispensing Avith commissions, and indeed, it is i^">nvo than dou])tful wht'tlier since the \j. N. A. x\.ct, tiie power of leg- islating on these commissions of oyer and terminer, etc., is not entirely gone out of tlie h .nds of the British Co- lumbia Legislature, and vestcil in the Dominion Legislature, as a matter of criminal procedui-e, the Court itself having been for years created . nd organized, ;nd requiring only com- mission to enable it to jiroceed. And wdiere there is i:o Statute binding on the Crown, dispensing with commissions, the com- missifju juust of necessity be forthcoming at the Assize, and without it there is no Assize. The Crown, however, in this case contends that, though no Dominion Statute; passed since Confederation contains any ex- press words dispensing with these commissions, the '61 Vic, c. 42, sec. 5, by necessary intendment does. In this (;onclusiop none of us can agrei- The Court of oyer and tei-miner and gaol delivery, being old Courts (jf Record set in motion l)y Hoyal prerogatixe, ; nd with w'hich it is so intimately connected, could not be aljolished except by express legislation of the most distinct kind. In- stead of this, in section 5, the reverse is obs rvable. The Supreme Court of liritish Columbia, and (diij Court to he hereafter constituted by the "Legislature of " this Province having the powcirs no\v exercised by the said " Court, shall have power to hear, try and det(>rmine in due " course of Lniv all treasons, felonies, and indictable otienci^s *' Avliatsoever mentioned in any of the said Acts which may be " committed in any part of the said province." Here are no express words of abolition, but rather words of adoption. AYlien this Act passed, it has been shewn that the Court of oyer and terminer was still in full life and vigor, fully created and organized as a permanent Court of Record. The Supreme Court also was in fall exercise of all its (Queen's Bench criminal functions and jurisdictions. The only o|>ei'ation it could have on these w as to enable them to take cognziance of and try out any new felonies and indictable ofiences ( if any ) which had been created since Confederation, and sclnKluled m i i Judgment— Eegina v. McLeans and Hare. 77 :'{ :iul lislied lu- Tho Court i of said in due '('lie OS av bt' that Act. A power wliicli as criminal Courts they already pos- sessed. The " duo course of law" which Coke describes as pro- ceeding by information, hearing and committal for trial at the next Court of oyer and terminer and {^aol delivery in which they were to try these offences was already ])rescribed in Jervis's Imperial Acts, 11 and 12 Vic. c. 43, and of which the Domin- ion Statutes, .32 and 33 Vic, c. 30, was niHfafis niKtandis al- n.ost a literal transcrii)t. These Acts had already been for years in use in British Columbia prior to its Confederation. The 33 Vic, c 30, made no new law. The prisoners in the ])resent case were committed by the Magistrate in the regular way by information on oath and evi- dence taken in the presence of the prisoners, and they were then sent to the common gaol, until they shovdd be delivered •' in dut! course of law.'" Tliat, Coke describes as the next C(nirt of oyer and terminer and gaol delivery for the district, unless otljerwise disposed of, after being brought by certiorari or otherwise into the Queen's Bench (Supreme Court.) The Avitnesses and recognizances were all l30und over for this |)ar- ticnlar case, to ay^pear and giv^' evi(hmce in the matter before tlie next ('ourt of assize and gaol delivery, to be holden in and for the district, etc This section 5, 1 take it. instead of abolishing the Court of oxi'v and terminer and gaoi (leliv(>rv, and giving the Supreme (Jonrt, eo iKniiiiie, exclusive juristliction in criminal matters, in my judgment, merely confirmed Hie existing C'ourt and })roce- dure, and contemplated other similar criminal Courts, and is consequenily a declaratory Act. And this is the more manifest from the consideration of sec. 42 of the 32 and 33 Vic, c. 29, which enactetl that "noth- " ing in this Act sliall abridge or affect any i^owcr or authority " which any Court or Judge hath when this Act takes effect, or " any pr ictice or form in regard to trials by jury, juiy i)rocess, "juries or jurors, excejit only in cases where sucli ])ower and " autliority is expressly alt-'Knl or is inconsistent wilh the pro- " visions of this Act." The eontinui'd existence of a Court of over and (erminer has not been "ex])ressly altered," and cannot he called "in- consistf'ut" with s(>c. 5, wliicli treats not only of tlu^ Su])reme (^ourt, but even cont(Mnplates another eiimi'ial Court of similar jurisdiction, There is no doubt, ther«.'for(>, I think, that whe- ther as to Court of oyer iuid terminer, etc, or procedure, no alteration has been made, in either existence, jurisdiction, judgc^s, form, or in ])ro' r, or ait_r other matter, by sec 5, 7S Judgment — 11e(iina v. M.c;Lkans and Hare. ii%" of 'M Vic, c. 42, l)ut ilmt the siiiiic \vt;r(5 coiitirmod as tlu^y had existed down to Jiin., 1875, and thence to th(! ])rcseiit time. AVe have Keen in tlie Jud<^rnent of the Chief Justice in wliicli, ^•enerally we (soncnr, that by the proceedings in the niaj^is- trates' Coui'ts, in due coui'se of law, the ])risoners couhl (jnly, in oi'dinary coursi;, Ixj iv'ivAi in a (Jourt of oyer and tenninei". \'c., which in turn coulil only be set in motion by commission, unh'ss removed l)y sj)ecial ju'ocess into the Supreme Court as a Coui't t)f Queen's 15ench. Ther'.! was not even a ])retence at this trial that the case; was brought 1»efore th(3 Supremo Court as a Court of (Queen's Bench. With the exception of t\ui commission it proceeded throughout as a. Court of oyt;r and terminer, and the cahMnlar was made uj) in the form usual at Assizes in British Columl)ia, and headed "General Assize." The jiris- oners were not committed by the niiigistrate direct fo)' trial in the Supreme Court as the Queen's Bench, but under tli(^ ordinary [)rocedure of justices out of scission. The forms in Jervis' Acts repeated in l^ominion Act, H2 and 3)3 Vic, c. 80, forms A, B, O and T, indicated distinctly the tlien next Court of (>yer and terminer, and no other, as the Court in Avhicli this trial should take pLice; the witnesses were bound over to it, tlie Covernment proclamation of a Court of oyer and terraiiiir continued in each issut^ ot tlie Government G((ZP.tte until ifter the trial, called for a Court of over and ter- miner, gen ral gaol delivery and Assize, and nisi prixs. The prisoners were duly advised of it. The witnesses :;t vast toil, no little d:inger and considerable expense, were all in attend- ance, but the Crown say no Court of oyer and terminer was in existence, was jiossible or was held. No commission from the Crown was produced, and Hawkins, Coke md Blackbourne say, without the reading of such commission, which would be either from the Lieutenant-Governor or tlie Governor-General, or under some Statute dispensing with it. no Court of 0}'e!' and terminer can be held; as there was no commission, and no Statute dispensing with it, no such Court was held, consequent- ly in that view, the trial had"l)efore the Supreme Court Juilg ■ was no trial at all. Neither was it a trial befote the Supreme Court as a Court of Queen's Bench, by its derivative process from another (Jourt. We have seen that the j)risoners were not, it even had it been the law and practice to do so, committed direct for trial before the Supreme Court as the Queen's Beiicli and Sovereign Court of oyer and terminer. They were not brought befor(>, it in any of the ways which were described as necessary and indispensal)le, jT-nfiMr.XT--]iF,c;TXA V. IMcLk.ws anp H.vr.F. Ill and one of which it w;ts oontended must a])ply. There was no certiorari or record to give the Queen's Bench seizin of the oaso, no applieatiou for trial at JJar in term, or for order for trial, out of trrm. oi to send it down to nisi j)rii(s for trial, nor indeed in any of the ways adopted which were laid down bv the learned counsel for the prisoners as available for bringiii;:^ the ])risoners before^ the Supn-nn' Court as a Court of Queen's UeiK'h; :;or was there any a' tempt on the part of the Crown to eai'ry out in practice, their present theory, and by some process invented for the occasion, to give the Supreme Court eo xomiric under sec. 5 of 37 Vic. direct seizin of a case which the records of the Ma/2;istrates' » ourt shewed had been sent for trial to another, and as they now contend, a non-existent Court. If the Supreme Court as such, was by sec. 5, capable of trying the case as a new criminal Court, and so by the argument on behalf of the Crown, able to summon juries and issue process as inciiltnit to its jurisdiction, why was there no process for a jury from such newCoiTrt. The old yirocess clearly Indicated in its forms and spirit the old Courts. Surely criminal ])rocess m a matter of life and death can scarcely be adopted by a silent i:ifeience as incident to a new criminal Court created by such bald words as those in sec. 5, to set aside a regular system and process specially adajited to another Court, and which hsis suc- cessfully stooil the test of centuries. The other branch of the argument for the Crown is in direct op])osition. and if true, entirely destructive of their main con- tention. They had hitherto b(.^en contending, one after the other, with an earnestness that was unmistakable, and to a certain (.'xtent imjirc^ssiye, and su])ported tluiir contention with a long array of authorities: That there was not, and for years had not been, a ( -ourt of oyer and terminer. 2. That the Lieutenant-(Toyernor had no jiower whatever to issue the com- mission for it. In fact thev sustained their contention with such persistency and elfect, that it required an eiibrt to induce tins Coint to consider their next argument, advanced quite in the opposite direction, and from an entirely ditlerent point of view. Now, however, they once jnore exchange ]>(»sitions with the prisoners' counsel, and ajgue on the basis that the Court of oyei- a,nd terminer is, was then, and always was, in existence, and the commission from th(> Lieutenant-Governor uecesj-^ary to set it in motion, was still in existence; and that the trial was good because such commission of the Wth November last, to all and singular the Judges, exercisabl-e " from time to time," and re- in rnable at Ottawa, one which had been used at the previous Victoria As'^ize, in Noveml'cr was still valid and subsisiiing, 80 Judgment — Regtna v. McLeans and Hare. because made permanent by the Order in Council ])roduced in evidence. Had there been no otlier sul)soquent and new com- mission affecting its validity, and it liail been read at the opeu- inf^ of tlio Court, or if unavoidably dehiyod afterwards with the certificate of the Judge to the Secretary of State, recording and exphiining the dehiy, the contention might probably have been sustained. In fact, if there had been no other or new commis- sion, and I am not sure even tliat I should have insisted on its being read, treating that Statute as directory merely, 1 should probably have usetl tliat without hesitation, with every conti- dence that in doing so, I should have been perfectly correct. Unfortunately^ however, the commission of the (S -Oth Marcli to the same persons with tin; powers for the same time over the whole Province was made returnal)le to a dift'ercnt place, altered materially the character of the document. It clashed with sec. 1 of the 3G Vic, c. 3, which com[)elled a return on this case, to Ottawa, where the ri'])orts of all cases of ;ip[)Iication for pardon, statistical, criminal returns, and all particulars of criminal cases go as of right, so emphatically so, that when such a commission was brought, and insisted on as a new com- mission for use at the ])ublished New Westminster Assze, to the notice of the three Judges, it cancelled the November com- mission. The correspondence^ hcneto annexed, produced on the argument, to all which reference is made, contradicts this theory. It proves that the connnission of theH-Dth March Avas not made and cancelled loio Jlahi and therefore to be consid- ered non avenu,, or as the Attorney-General described it, still- born. The difference in its ttiuor, the long discussions it underwent, its scope covering the same ground, the distinct- ness with whi(^h it was l)rouglit to the- i:otice of the Judges, shew that siich a contention is not now arguable. Had it been a mere si(per>^e(/eas it could have been revived by a writ of prorpdemlo, which was never applied for. It was not liow(n er, a si(j)C)'sedeas, but a positiv*^ eonstructive revocation, it shews to what shifts the counsel for the Crown were put when tliey had to fall back upon such an argument as this: Tluit a com- mission which they consider they luul ]>ioved to hav(^ been ex- hausted, which Iiad been i;ancell(ul ■>y the issue of a subse- quent commission, which was not read or produced at the tri d, and not mciutioned to the Judge, and not in his ]>ossession but sleeping ii; a departmental ]>()(;lv(>t, should be relied on as a sufficient authority whereon to ground ])roceedings wliicli wei-e to doom four men to death. The theory of exhaustion advanced by the learned attorney vi/i. : that the British Columbia commissions were " exhausted" V T( JrD(iMENT— Regina V, McLeans and Hare. 81 by hi'iii^' om-e usod, is, 1 think, coiielusively answered by a coun)iiris()u of the text of the English commissions and uui own. Tlic ditrci'oncc will then be seen at a glance. The old English auth(nities are of (unirse wi'itingof the old forms fami- liar to them, and indeed in use in England now. Here, while the ))iiiici])]e and power is exactly the same, a difl'erence by the amalgam ition of four commissions into one, and a variation in th(s wording a; lo'ime and i)lac(\ mak(^s a proj)ortiouato dif- feri'ncf? in the ap])lication of tlie princi|)le which is identical in both cas s. The English Commission, (Gude's Crown Pr;ictice. vol. 2, forms) runs thus: — Victoria, Arc, To our beloved, (f'c, (naming all the Judges and if dis|);itch of business cills for it, other ])ers()ns); Know ye: That We have assigned you and any two of you, of whom one of you, itc, shall be one of Our Justices, to enquire more fully the truth by the oath Sec, of good and lawful men of oar- said conn ties of, ttc, (naming the particular counties which com- ])ose one of the 8 Statiite English Circuit districts) and by every other way, S^c, by which you may better know, by whom the truth of the mattn- may be better known and encjuirt'd into, of all the treasons, leloni(^s, (f'c, and all other evil doings, and also the accessories of them, &c., ■wif/ihi iJic counties aforesaid, or any of them, ttc, and the said treasons and other the premises ac- cording to th ' laws and custfMus of England t'or this time, to hear and determine. " And therefore We command you at ^'certain days and. peaces which you, or any two of you, &c., " shall ap])oint for this purpose, you make diligent enquiries " about the premises and hear ;ind determine (oyer and ter- " miner) all and singular, th(( premises, etc., &c. For we have "commanded Our Sheriffs of our couities of &c., aforesaid " tliat at stick days a)id places they cause to come { fadant venire) " ttc, good and la\vful (legaks) men, itc,, by whose the truth " of the premises may be, and • iiquired into." The wording of the othei' hree commissions, general gaol delivery, ka., is exactly in h rmouy with this, and equally specific and limited in ])lace, (hn-atiou . nd circuit. The British Columbia Commission runs thus : Victoria, bv the Grace of God, Queen, etc. To The Hoiiorabh^ Sir Matthew B. Begbi.-, Knight, The Hono- rable Henrv P. Pellew Crease, anital of oui* Dominion of Canada. In testimony whereof we have caused the Great Seal of Our said Province to be hereto affixed. Witness the Honorable, [Lieut. Governor's name] Our Lieut. Goyernoi- of Our said Province of British Columbia, at Our Government House, in Our City of Victoria, this 17th day of August, A. D. 1878, and in the forty-second year of Our lieig . By Command, [name] Proyincial Secretary. This commission has stood the ordeal of the Law Officers of England. The scope, powers and objects of the English and British Columbia commissions are identical. The ditt'erences are, the operation and the venue in criminal cases of the one are confined to certain counties only; in the other extends Ut( str wli y>7 S'io in 1)y OVf D( Th Hh\ ne effi mo im .TUDGMENT— RlXilNA V. McLkANH AND HaKE. s;{ over the Avliole Provi nee. The (lurution of tlio ono is "for this time" only, mikI is exliausted by oacli use. Tluit of llio other "from time to time" until determined by cancelhition, revoeiitioM, or anotiier commission, but not exhuusted ])y user. It may be continuiul in use for years, or be cancelkKl the same (lay. The comparaive duration of the (lovernor G(mi- eral's two commissiuns, which vide, shews that if the commis- sion be clearly in existence, notwithstandin<^ the Statute directining read; consideiiiig that Act as directory merely. They contain the same powers "to hear and determin(^" (^oyer and terminer) to deliv(U' all and every thyi>(f^, Assi/.e, oyer and terminer and general gaol delivery, necessarv to try all cases civil and criminal arising in the Province. Had it been intended to have introduced a sim- ilar Court here, the Legislature ought to have done what was done in the Colony of Victoria, create the Court by Statute before saying " it should be holdeii, itc." This was not done, and there is no such Court. Here also I observe, it retjuired a Statute to dispense with commissions of oyer and terminer, &c. The correspondence between the Judges and the Gov- ernnitait I had not proposed to notice, or do more at tlie ])resent time than a})pend it to my judgment, leav- ing the self-contradictory positions assumed in it by the execu- tive, to speak for, and neutralize themselves; but that, under- neath it lie legal and constitutional questions of sufficient im- portance to put other considerations entirely aside and claim a place, though collaterally, to the points at issue in the case, or silence in the face of error might be taken for consent. The first salient ])oint which strikes one is, that the whole of the E resent difficulty took its vise solely from those who claim to e responsible for the administration of justice; and Avas forced on the Judges, avIio have to administer it according to law, in spite of their most respectful but repiated warnings of the danger of breaking in suddenly, Avith a startling innovation, upon a well considered and long-settled practice in the admin- istration of the criminal law. These respectful representations were disregarded. Practically, they say, though not in words, that is our matter, we, not you, are responsible. Then say the Judges — for throughout the voice of one has expressed the voice and concurrence of them all — we confess power and responsibility Oi 4- I JmoMENT— Rkoina V. M(^Leanh and Hare. Hr^ jiro c'.orrelativo; yours tlus rcsponsiltilitv since yours also tlit^ powtu'. Tluj Ju(l}j;os time after tim(^ solemnly protest, and warn you of tlu) (lan}j;er ])ossil)ly resulting from so hu(1(1(mi and radical a (!lian,L,'c, wIkmx^ life is (!oncern(!d, in an old estal)lisli(>d ])rat!tice, in full accordance* with the law. At first from the 7th of March to th(> llth, the sole ])oinl of difference was whether the return, at the end of tlu! commission, was to be made as u Do- minion matter, as of old accustonuul, to Ottawa, or as a provin- cial mutter (the new innovation) to Victoria. Nothing else was mooteil. Suddenly and most unexpectedly the Judges each obtained an answer late in the evening of the llth March, by an identic letter; the steamer starting at 8 a.m. tlu! lu^xt day, and the commission day h iving been fixed for the morn- ing of the Li3th. They were told inetVeet: Tlie authorities are advised (not that the Licutcaant-Governor has no power to grant commissions, the first ;;uspicion of that we get, nearly a month afterwards, from the Attorney-General s letter of the 8th April — l)utj that ui) coniDiinslon is necessary. The Supreme Court Judg(is have already authority without it, to take and determine the issues of life and d(*ath now pending at New Westminster. This, with the Assiz s fixed for the 13tli, was in eflect to say: Y(jur duty is to g(j, and go at once. The responsibility is ours. And on this last advice, they add: The Lieutenant-Gov- tnnor has cancelled the commission of the 8-9th March. This, be it remembered, was after the Judges had offered to go (saving all responsibility from the changej even under tliat <'0!nmission, though it clashed with the Dominion Act, 30 Vic. c. 3. The old commission is then, as I have since learned, ])rivately taken up to New AVestminster, but not used or {pro- duced . This lunv positio'i is so suddenly sprung on the Judges that no time of even- the most casual conference and consulta- tion of the three is allowed, or possible. The nearest ajiproach to that is a hurried midnight visit to a neighboring brother pruisne who concurs, that as duty calls, a Judge must go, and comi)ly as far as may be with the executive wish; is all that can be done. The Chief Justice and all the Judges repeat the anxious warning still, havingprayed them to await the return of the Attor- ney General, away, only four days off, on his return. He had stopped a dangerous innovation in commissions once on the 19th November ; he has the same power, and will surely do so now. A deaf ear is turned ; the Judge proceeds. At New Westmin- ster, he makes the necessary time, and gives the necessary op})or- lunity. The trial is not to begin until the lOf^, at 10, a. m. On the morning of the 14th, the Attorney General returns, re- IMAGE EVALUATION TEST TARGET (MT 3) Ua v.. 1.0 I.I 1.25 IS Ilia iiM 1.8 i2J It I4g 1.4 1.6 Photographic Sciences Corporation \ (V :<\^ v> •% .V \ <> '"^^ 23 WEST MAIN STREET WEBSTER, N.Y. M580 (716) 872-4503 %' €>. ^^ ►> 86 Judgment — Regina v. McLeans and Hare. Slimes the reins of power, and tlie personal responsibility of the position in ample time to set everything right. He makes no response to the opportunity aiforded ; and, under protest, the trial goes on. The Assizes had been opened without com- mission. Prisoners' Counsel, deeming, no doubt, that all was right, make no objection, beyond a cliidlonge to the aiTa}^ Avhicli is overruled. The Judge, kept ignorant of the sudden and vital change, for neither case nor opinion hns been shewn, ( and a legal opinion depends on the case ])ut ) can raise no objection. Constitutional duty shuts his mouth. Without even a notion of the reasons, long subsequently ad- vanced, for the advice, even if he had the right, the Judge, iis pointed out in Reg. v. Amer et al, is bound to consider that all is rightly done by the constitutional authorities ; but on constitutional grounds he may not raise points, and decide them in his own case. Moreover he would have incurred much greater re- sponsibility had he not gone on. He naturally consid- ered, that possibl}', some latent authority might at any moment have been produced of which he knew nothirg, com- missions or Dominion Act, or some authority from Ottawa, or nolle prosequi ; so protesting still, the Judges below protesting too, the trial went on, and in three diys afterwards ended in sentence of death on all the prisoners in the dock. From what I have said it will, I think, be apparent — indeedthe dates of th(^ correspondence shew it — that had the constitutional adviser of the Lieut. Governor instead of pointing, as his letter does, the responsibility in the first instance to what I must, witli all respect, consider an imaginary exclusive prerogative of His Honor the Lieut. Governor, to act in the administration of jus- tice without his constitutional advisers, who are res[)onsiblo for his actions right or wrong, so long as they continu(i in of- fice; had that honorable and learned gentleman, on the perso- nal resumption of the duties and responsibilities of his office on the Idth March last, 48 hours before this trial, which attracted so much attention, had commenced, and five days before its termination; possessing, as he did, a full knowledge of the ob- jections which had been raised, felt himself justified in ap])ly- ing to remove the case into the Supreme Court by certiorari, or otherwise, and for an order to have it heard out of Term time, or at Nisi Prius or otherwise, the Court in its discretion (and one Judge would have been sufficient) would have at once con- sidered, and very probably favorably entertained, the apjili- cation. Or had he, by telegraph, then, before, and after, in good Judgment— Regina v. McLeans and Habe. 87 working order, felt justified in checking the Assize, entered nolle prosequi, and sent up a commission in the old form, or, (if preferred) without any return to any specific place at all, as in the English commissions; the witnesses were there; Judge and jury were there; the whole proceedings could have been recommenced with only the loss of two or three days at a trif- ling expence, and the whole present difficulty and question would have been saved ; and everything have gone right; in- stead of risking so dangerous an experiment at so grave a mo- ment, with so many lives at stake. But to resume. The Statutory report of the presiding Judge to His ExcelLncy the Governor General, through the Houoiable the Secretary of State, on the regularity of the trial, before carrying death sentences into execution, of necessity brings in question the validity of a trial, held without some commission or authority to bring the prisoners legally for trial before the Judge. This brings up the validity of the whole Assize. For the question here raised underlies every case ; and if not brought up in this case, it must have come up in the case of Reg. v. Gamon, reserved by the Judge for the full Court, at request of prisoner's Counsel. The Law requires ; it must be done. The three Judgis then confer, and greatly doubting, suggest a safe and expeditious way of ascertaining the law on the point, and by letter of the 29th March afford the Attorney General and the prisoners' Counsel simultaneously, but separately, another opportunity besides that given at the time of trial, for clearing the matter up. The prisoners' counsel, not instructed; aeupheuism prob- ably for not paid for former or prospective efforts, or thinking perhaps that a successful application would not free their clients, are unable to act. The learned Attorney-General declines; and after a silence from the 29th March to the 9th April, on the latter day sends to the Judges the extraordinary letter of the 8th April which, if the only version which suggests itself be at all correct, violates the first principles of Responsible Government, the A B C of constitutional lore. Translated into ordinary language it was to the effect : That his Honor the Lieutenant- Governor in the exercise of "functions'' which pertained " to *' his office solely, " namely the issue of commissions of oyer and termini r had determined on certain advice, that he had no power to issue these commissions at all; but the learned Attor- ney-General in the same breath takes to the executive exclusi- vely the responsibility which, if the position he had just declar- ed, were correct would " solely " have belonged to the Lieut.- 88 Judgment — Regina v. McLeans and Hare. Governor. The next proposition of the letter is stranger still. It is, when paraphrased, to the effect that the. Judges, totally ignorant as they were of -the reasons of tlie change, should have tried in the dark, the question whether they could hold the Court without commission or not; and so have become advo- cates- and Judges in a matt(!r not judicially before them, and so to speak, in their own c ise. Then — That the Juclge at the trial should have followed the same illegal 'course; when that respect would have been paid to his single representation, which could not be obtained for the respectful repeated written warnings of the three Judges combined. And then that the legal points under consideration, which only a Court could decide, would have been settled by reference to the Minister of Justice at Ottawa, consenting to discharge so unnsuul a function. One position taken in the argument by the Attorney-General was: That the commission of the 8-9th March was mnde solely for New Westminster, and tlierefore did not determine the general commission of November over all tli ■ Province. l>ut assuming, for the s ike of argument, that it wascoMfincd to New Westminster, the r.uthorities all say that a subsequent special commission over part of a general one, varies the gener;d one pro tanto; consequently, as far as New Westminster w s con- cerned the delivery of the special commission to the Judges determined the general one pro tanto; and on that contention, having been itself subsequently cancelled, left New West- minster Assize without commission, and made the trial no trial at all. It woiild take me too long to do more than touch on the suggestion in the Attorn ly-General's letter of the 8th April that the executive were supported in that view, that no com- mission was required, by the opinio'i of the Judges on the no- commission clause (sec. 6) of the British Columbia Judicature Bill, 1879. The Judges were requested by the Attorney -Gen- eral to report suddenly on this Bill, vitally affecting though it did, the whole system of our Judicature. They did so, although having only a few days in which to do it. the mere fair copying occupying much of the time. In lieu of a commission clause, a counterpart of one framed for a very different state of circum- staijces in the English Act, they were " more disposed to declare " the abolitijio-of re-iterated commissions, adding that tlie • " Governraeht already had tji(i power to fix the Circuits and " Assizes, which when fixed, the Judges of the Supreme Court " virtutc officii hold," which simply meant that * they are the persons virtnfc officii to be placed in the commission and hold the Assize. This will be readily perceived from the context of the memorandum and correspondence put in evidence and ap- Judgment — Kegina v. McLeans and Hare. 89 peiulod to this. Had its nuuiiiing evi-ii been otherwise, it was recalled a few days later by the letter which is appended; the Judges fearing lest it should be declared iilfra vires, and would imperil the useful ])art of the Bill, which, though so liurriedly, they had been assisting to make. In fact the contentions of that letter cannot be sustained; they are propositions which need only to be stated in plain Linguage to carry with them their own refutation from their manifest unconstitutionality. The Judges' suggcistion having thus again fallen through, the question was refernul, as reipiested, to Ottawa, and the answer of the Minister of Justice is that the Cabinet, (^sharing, it is fair to assume, the Judges' doubt) refei the matter back to the Court to be tried by habeas corpus or otherwise, in the Courts here, and undertake on behalf of the prisoners to defray tin; expense of ccMinsel in so doing. Hence the present rule. With that rule we have to deal, and in the mode of disposing of that under existing circumstances, I concur with the judg- ment of his Lordshii) the Chief Justice as the judgment of the (\)urt. The authorities on wlii(!h (mr con**lusions are based are cited in the appendix. (;kay, J. This case has been most fully and ably argued by the learned Counsel on both sid 's; and after the elaborate Judg- ments of my learned brethrtai on the Bench, it may be fairly said that all the law and learning in British Columbia on this subject has been gathered to the feast. For myself but little is liift. Post i))rindii(m ossii. It is a pure question of Law ; but important as 'involving tlie Constitution and legal rights of this Province. It will turn mainly, in my opinion, on the construction of the B.N.A. Act, 1807', the Imperial bond of union between the General Govern- ment of Canada, and the several Provinces forming its constit- uent parts, by which all alike have to be bound, and to which each and all must look as a guarantee from the highest author- ity in the Empire, that tiiere shall be no encroachment by the one upon the other. So far as the facts are before the Court, no sympathy can be felt, or ought to be felt, for the prisoners. Under, and by virtue of an authority conferred by an Eng- lish Act of Parliament, the Su])remo Court of Civil Justice in British Columbia was established by Proclamation in June, 1859. By the ;")th paragr iph of the Proclamation it was de- clared "the Supreme Court of (^.ivil Justice of British Colum- 90 JUDGMEN'l' — IIeOINA V. McLeANS AND HaHE. *' bin sliull have comi)lot(3 cognizancu of all Pleas whatsoever, " and shall have jurisdiction in all cases civil as well as crimi- '* nal arising within the said Colony of British Columbia." The 21st and '22nd Vic. c. 91), \2nd Aug., 1858) the Impe- rial Act referred to, authorized the Queen to make })rovision for the Administration of Justice in the Colon v, and generally to m;ike, ordain and establish all necessary laws, institutions and ordinances; and at the same time, and l)y the same Act, [)rovision was made for the ultimate incorporation of Vancouver Island with the Mainland. By a previous Act in 1849. 12 and IIJ Vic, c. 48, similar })owers had been given for a similar purpose for the Island. The Governors, as appears by the commission to Mr. Sey- mour, produced and read in Court were authorized to issue commissions, antl tak(! all steps necessary for the administration of Justice in accordance with the powers given by Parliament to the Queen. By an Ordinance of the Jh'itish Columbia Government, No. 70, March 18G7, passed aftor the incorporation of luj Island with the Mainland, a pre-existing Prochimation, dated 19th Nov., 1858, declaring English Law in force in British Colum- bia, for local reasons, arising from the incorporation was re- pealed ; and it was enacted by the Goverinuent of British Co- lumbia, then composed of both Colonies, and retaining the designation of British Columbia, with the advice and con- sent of the Legislative Council, that from nd after the passing of that Ordinance, No. 70, "The Civil and C'rirainal Laws of " Enghmd, as thesame existed on the 19th of November, 1858, " and so far as the name are not, from local causes inapplicable, " are and shall be in force in all parts of the Colony in British " Columbia." Thus was established in British Columbia, a Supreme Court with amphi jurisdiction to hear and determine all crimes, with a Criminal Law, and a defined mode of Practice and Pro- cedure, pointed out and adopted by its own Legislature, viz., the English Law and Practice. What then was that English LaAv and Practice? By the English law, as clearly and indisputably shewn by the learned ('hief Justice, with his accumul ition of authori- ties, the Court of Queen's Pencil in England, which Wy the Con- stitution was originally charged Avith the trial and punishment of criminals, had cognizance of all crimes and offences. And by 'lie same English law. a certain mode of procedure had to be adopted before that Court, the trials were at Bar, in term time, in Middlesex, where the King's Court of Tiecord sat, before Judgment — Regina v. McLeans and Hare. 91 the full Court, and seisin was given of the oas«i by certioran, or other particular process, to bring the case and the prisoner before tht- Court. Thus, though the Court had ample jurisdic- tion, it only exercised its jurisdiction in that narticular way. To facilitate the administration of justice, both civil and criminal, (it may be said) circuits were established, and Courts of oyer and terminer, and of general gaol delivery, and of as- size and nisi prius, were created by statute. These Courts, according to English law, are latent, until called into operation by virtue of the commissions which put them in motion. They live, though dormant, by virtue of the old English Statutes which created them. They derive their activitv, like machinery from steam, from the commissions which the Statutes directed should be issued, when their use- fulness^ was required ; commissions addressed to certain per- sons, of whom one or two were Justices of the Queen's Bench. Bructon, Coke, Hale, Hawkins, Blackstone, Stephens — every writer on English law from the first to the latest, lays down this principle, and so indisputably has it been recognized, that they are never held without a commission, except in intances where a special Statute is passed to authorize them so to be. There are four of these Courts. 1st. Oyer and terminer (the most important) to hear and determine all treasons and felonies, &c., &c. The I2nd. Of genend gaol delivery, to clear the gaol of all persons in actual custody. The 3rd. Of Assize, originally having reference to disputes, relating to unlawful pos- session of lands, now more readily disposed of by ejectment. Thedth. Of )nsi prius, relative to civil cases. Of these four, the two latter — Assize and nisi prius — relating as shown to civil matters, owing to tln' introduction of ejectment, and the still more simplifying process of the Common Law Procedure Act, 1852, had practically fallen into disuse in England even before 1858, and therefore can hardly be said to have been in- troduced into British Columbia at all; more particularly as the old distriiKjas jitrafores in the award of which the proviso of ruslprins had to be inserted Avas actually abolished by the 104th see. of that Act. With reference to any criminal juris- diction exercised by the Court of nisi pri i.s, it is well known that such jurisdiction was not original or inherent, but was solely — when a case having been brought before the Queen's Be ch by certiorari warrant or otherwise, and that Court being ther.'by i I seisin of the case, sent it down to the nisi prius U) have the issues in fact determined, and it was onlv by virtue of the 11th Geo. IV and I, Wm. IV c 70 sec. 9, that the Court below had power to pronounce judgment, (which, however, had 92 Judgment — Reoina v. McLeans and Hare. B\ afterwards to be entered on the Record of the Court above.) Reg. V. Llojd et al 4 Barn and Adol., 135. Nor can I learn of a single instance in British Columbia wliere a criminal lias been tried, or assumed to have been tried, at nisi pritis. Stephens' Ed. of 185S, 3rd vol. 417 gives in a few simple sentences the English law on the subject as it was at the time of its introduction into tliis Province. '* The Judges upon their circuits now sit by virtu(? of four " several authorities : 1. The commission of the Peace. 2. " A commission of oyer and terminer. 3. A commission of gen- *' eral gaol delivery. 4. That of nisi prius, which is a couse- " quence of the ancient commission of Assize." In a note as to the number, he says, " Blackstone enumer- " ates five (^including the commission of Assize) but the recent " abolition of Assizes and other real actions has thrown the "commission of Assize — as distinguished from the commission " of nisi prills out of force," and later at 418 " and now by the " effect of the Common Law Procedure Act, 1852, the course " of proceeding is no longer even ostensibly coinected with a " proviso at nisi priiis; but the trial is allowed to take ])lace, " without the use of any such words in tlie process of the " Court, and as a matter of course befoie the Judges sent " under the commission into the several counties." Though the " Court of Assize" thus practically ceased, ai.d the nisi prius was, except by name abandoned, the other two — the Court of oyer and terminer, and general gaol delivery — were not considered in British Columbia unnecessary or from local causes inapplicable, nor, though continually held since 1858 until the present moment, ^vas the power to put them in motion by commission, or that the authority to hold them \vas by com- mission, ever questioned, and the practice though with some irregularity as to the time limit of the commissions was almost unexceptionally followed, and Courts held tinder them either as pre-existing, continuing and general, or new and special, for the particular occasion, down to the month of March last, on the occasion of the trial of the prisoners. Thus following the practice of the English law, it must be presumed, under the original proclamation of November, 1858, and the Ordinance No . 70, notwithstanding the broad and comprehensive terms of sec. 5, in the proclamation of June, 1859, establishing the Supreme Court. Of twenty-eight of these Courts of oyer and terminer and general gaol delivery held by myself, lean speak personally. On every occasion except one, when though in my possession it was left behind, but followed and was received by me the next Judgment — Regina v. McLeans and Habe. 98 day, ]ind I hull a commission t/i foJct at the opening of the Court, as far as I can recollect, it was always read. Of these commissions, three now in my possession, are not only not limited, but^jrtie giving authority from "time to time " to deliver^VlftJ gaols; thus shewing a continuing power, until re- vok(*d''or otherwise determined by law. The meaning of the expression from " time to time " is well illustrated by reference to the 24th, 67th, 77th, 82nd, Ist sub sec. 92nd iind 4th sub sec, of 93rd, 101st, iHlst, 134th and 144th sections of the B.N. A. Act, and sees. 2 and 8 of the Common Law Procedure Act, 1854, and is in direct contradiction to the contention that notwithstanding such words the commission or power thereby conveyed determined on one user or exercise thereof. More- over, in these commissions there is not one word of reference to a "Couit of Assize and h/,s/ />n^/.s," nor any grant of power eo nomine, the Executive itself thus recognizing fhe distinction between the civil and criminal characters of those Courts, and the use of the latter only, leaving the civil matters to be dealt with undt^r the Common Law Procedure Act, and other laws relating t( civil matters, without regard to Courts, which, even in Englanil, had gone ou' of use. Nor were these commissions limited to any particular Assize or place. British Columbia, both in civil and criminal proceedings being treated as but one venue and not divitled into Counties or Ridings, as are the other Pjovinces of the Dominion. The commissions therefore, being in general terms, covered, and were used for holding, the Courts ivherever the Government by proclamation directed, from New Westminster to Cariboo; including Yale, Lytton, Kam- loops, Clinton and Quesnelle, though none of these places were particularly specified therein, and no objection has ever been raised to the validity of such commissions, by either the counsel for the ])risoners or the Crown. This practice, well- known throughout the country and at the Bar, has been fol- lowed with every Judgr during the seven yeai's I have been in the Province. One general commission for the entire mainland circuit with its seven Assizes at seven different places in Spring and Autumn when there were two circuits, and also lately when there has been only one. Yet it WIS gravely urged by the Counsel for the Crown that ont of 130 of these Courts, 90 were tried without commissions, and a certificate or affidavit from the Provincial Secretary's office was produced and read to shew no separate commissions were issued for each of these several Assizes, and therefore that they were held without any as a fact. In presence of the u liform practice of the Provincial Secretary's Department '1/ 94 Judgment — Regina v. McLeans and Hare. itself, and of the Courts; could anything bo more worthless as testimony to sustain such an assertion ? In justice to the learned counsel for the Crown, all three of whom have, during that period been members of the Govern- ment, and two of them Attorneys-General, charged with the criminal administration, itmustnotgo abroad uncontradicted that they have been during that period hanging and pjinishing men, without even the semblance of law. Fortunately for their reputations, the Court is unanimous in the conclusion that their present contention is wrong. In 1871, British Columbia entered the Confederation, and became a component part of Canada under the B.N. A. Act, 1867. By the 129th section of that Act it is provided: " That " except .IS otherwise provioint in controversy, but to shew the extreme care with which the Act was drawn, and thus negative any prima fa- cie inference of inconsistency in its several parts. As to the contention, however, apart from the fact that the 12yth setition as part of a well titting structure, is put in long after the 12tli, and therefore with a full knowledge and recognition of wli it it meant ; and consequently cannot be really inconsis- tent, it Avill be observed, that the governing words of the 12tli section as to the character of rights taken away from the Lieut. Governors, are "rights capable of being exercised by " the Governor General in relation to the Government of Cana- " da." Now Avhat has the issuing of a commission for a Court of oyer and terminer, or of general gaol delivery, in British Co- lumbia to carry on the customary and ordinary administration of Justice in th(^ Province, to dt) with the government of Can- ada ? It is sim])ly a matter of local administration under sub-sec- tion 14 of section 92, and sec. 129 of B.N. A. Act, and of the 10th and 14th Terms and Conditions of Union of Brit- isli Columbia with Canada, peculiarly belonging to the Province. How, thei, can it be said thnf the issuing of such a 90 JUDOMKNT — Ri:0\; to the several sections of a larj^e Confedera- tion, and assigned, as are the other (ordinary duties of local government, to be carried on by the the other Provinces. It will be observed that by the preceding S( cHon, the r)4th, tlie constitutions of the Executive authority of Nova Scotia and New Brunswick is preserved as then existing, until altered by virtue of the B.N. A. Act, 1867, and therefore bv simple con- tinuance, carried all the authority and powers tliey then po.s- sesscd, rendering unnecessary the precautions requisite for the new separate creations of Ontario and Quebec. British Columbia, it has been observed, comes in under the 146th sec, on the terms and conditions of ihe Queen's Order in Council to that effect. The tenth paragraph of that Order declares that the provisions of the B.N. A Act, except such as by their terms or intendment are limited in applicatio i to particular Provinces, shall apply to British Columbi i io the same extent as if it had been one of the Provinces originally united by the Act. That Province, then, on coming into Con- federation, retained equally with New Brunswick and Nova Scotia, her executive powers, authorities and functions, within the scope of the 12th sec, which were again guaranteed to her by the 129th. By what Act, then, of the Canadian Parliament, or of hei- own Legislature, has she divested herself, or been divested of the power of holding Courts of oyer and terminer, and general Judgment— Regina y. McLeans and Harf.. 99 gaol delivery, auil of issuing commissions for that purpose, that being one of the powers she possessed at the time the Province entered the union ? What Legislation has so suddenly stayed an authority so long unquestioned ? In connection with the BiJrd, 64th and 65th sections it must be lemembere I, that while the case of the Queen \. Amer, etal. recognised the 65th as confirmatory of the right of Ontario, it no where lavs down a single position from whicii it can be infi'rrud that such right was taken away from any of the other Provinces where it had been exercised before. It may also hcno bo further observed that in New Bruns- wick, where the old English Procedure and Practice in Civil matters ])revailod up to a later date than in any of the other Provinces, and where in criminal matters, Acts, similar to the Jervis Acts, had long been in force, this same power of issuing commissions or not, for the ])urpose of trying criminals and holding Courts of oyer and terminer w;is regulated by Statute long before Confederation (2 vol. revis. Stat., 1854) and I have not heard, since Confederation, of the right to do so (should the same bo deemed necessary or desirable) having been questioned in that Province. To(l ground. Todd, at page 400, disposes of it very curtly: "The 100 Judgment — Regina v. McLeans and Hare. ■;#- I " position claimed for the Lieutenaiit-Govornors of tlie Pro- " viiices in Canada, that as beinj^ the Chief Executive offic(U's *' in the local Goveniments, they do represent the Crown in " divers, wei (Confederation exercised by the Lieutenant-Govern d's, when t1u\v were the dij'ect representatives of the ('rown with its assent, was l)y tlie B.N. A. Act, and the censequent (change of theii position, f'sumed by the Crown, and became exercMsable by tht; (lov- • ■rnor-General alon(s as its r(^])rescntativ(\ This ought to be understood, for the only Quo'^n's Counsel in Ibitish Columbia, tlu! three gentlemen within tin; Bar, hold their ])ati nts from the Governor-General and have received lluMn sincii the union. As to the main qn(>stion — to repeat: The (^ucen by authority of an Acit of Parli mtnit for the Government of Britislt ('olumbii, and by lier commission issiv'd t'li'i'eunder, elotlunl the Executive of British Columbia with ani])le i)!)wer to estal)- lish Courts and Institutions in the Province f )r the adminis- tration of justic(\ and sahsetpicntly l)v the B.N.A. V(>t 18(17, passed by tlie sarat! Imperial Parliament continued and guaran- teed that power until it should he taken away by conqxtteut legislation. I cannot, therefore, until such legislation tak(>s place, or a liigher tribunal has so decudcd, aibnit that the Lieutenant- Governor iias by virtufi of the 12th sec. l)iH! i depriv(Ml of any powers he l)efore possessed for the benelit of Jb-itish Columbia except such as are capable of being i>x(M'('ise(l l)y the (lO.-ernor- General in relation to tlu^ Government of Canada as a \vhol(>, in contradistinction to the Govei'ument of a particular Province. It would b(i disastrous to sav that the Lieutenant-CTOvernor JUiJGMENT — KeGINA V. McLEANS AND HaUE. 101 could not even with the advice of his Council, issue a commis- sion for the locil administration of justice. In fact if the position of the Crown officers could be sustained, it would operate as a complete surrender of the rights of British Col- um'.)i;i, or as an admission that she had none. We now come to the 1st of January, 1875. In 187-1, by chap. 42, 37 Vic, the Parliament of Canada ])assed an Act, to extend to the Province of liritisli Columbia certain of the criminal laws, in force in the other Provinces of the Dominion. It S(!t forth, in distinct schedules, the laws to be extended, and among others, the law punishing the oli'ence of murder, with, and for which, the prisoners were charged, tried, and found guilty, and sentenced to death. And also the "Act " respecting Pr<3cedure in Criminal cases, a id other matters re- flating t()\'rimin;d Law." (Cha]). '29 ;^2 and 33, Vic. 1869, as amended by H6 Vic, cs. 3 and 51.) This extending Act was to go into force, and did go into forc(> on tlic 1st Jan., 1875. By th(^ 5tM Sf'ct. of this Act it was enacted that "The Su- " preme Court of British Columbia shall have power to trj'and " determine in due cours(i of law, all treasons, felonies, and iu- " dic'table oti'cMU'Os whatsoev(!r, mentioned in any of the said " Acts wliich may be committed in any part of the Province." Lhi! Supreme Court of British Columbia has always held (hit the Parliament of Canada constitutionally had power to utilize tlie existing Courts of this Province for the purpose of enforcing ('anadian laws enacted by that Parliament within the scope or tlie Legislative power given to that Parliament by the B.N. A. Act, 18(57. Not, however, it must be admitted, without some anxiety, owi g to the conHict of opinion on this subject in the othei- i^rovin(!es : but whatever doul)t may have hitherto existcid lias been cc^mpletely r moved by the clear and vigorous juilgment of the Supreme Court of Canada in the case of Valin v. Ldiifj/nir,, dirccitly upon that ]H)int. The Sni)rv me Court of J'ritish (.'olumbia had the [)ower men- tioned in thcotli section before, and itonly therefore becomes im- ])ortant from the expression "in due course of law," as indica- ting that tliat course was to be in accordance with existing law (whatever that might be.) and the Acts in the schedules mention- <'d. A view contirmed by the 7tli section which repeals all laws in i'M'ce in BritisJi Columbia inconsistent with or repugnant to, or aaking ])rovision for matters provided for by the Acts in the schedules named. The Parliament of Canada has undoubted control over (criminal Procedure. The Criminal Procedure Act, c 29, in 102 Judgment — Regina v. McLeans and Hare. 1,1 ■t u H connection with c. 31, 32 and 33 Vic, respecting the duties of Justices of the Peace out of Session in relation to persons charged with indictable offences, provides for the whole pro- cedure against a prisoner trom the time of the charge or infor- mation first hiid against him to his final trial and sentence. Those Acts have been steadily acted on in this Province since the 1st January, 1875 ; and have been carried out in ^11 the Courts of oyer and terminer and general gaol delivery at which prisoners have been arraigned and tried; and in no in- stance has any difficulty arisen from any inconsisfeneies or re- pugnances such as are referred to in tlie 7th sec, c 42; and by the 42nd sec, c '29, it is enacted, the Procedure Act, "shall " not alter, abridge, or affect any power or authority which any " Court, or Judge had or possessed when that Act took effect, " except when such power or authority is expressly altered by, " oris inconsistent with the provisions of that Act." The Courts of oyer and terminer and general gaol delivery are thus thoroughly workable with the machinery over which the Parliiraant of Canuia has direct control. They are Courts and powers latent in the Province under the English Stitutes and laws introduced into British Columbia as before mention id, requiring only the Executive authority by commission to Dut them in motion. By the 129th sec, "all Courts of civil and " criminal jurisdiction, and all authorities and powers existing " at; the Union shall continue as it' the Uiih'n had not been made, ''until abolished, or altered by the Parliament of Canada or by " the Legislature of the Province.'''' There is not a word in any Canadian Act, or in any Local Act, abolishing or altering these Courts, and this is the more observable because, under the 14tli sub-section of sec. 92, the Local Legislature had power so to do, where not confiicting with criminal proceduii', even to the extent of "organizing," had it been deemed advisable. The inference, therefore, is irre- sistible, that the Local Legislature did not deem it advisable, but preferred retaining the Courts as they were. They are moreover, recognized by the (Canadian Acts in the schedule re- ferred to, as part of the ordinal y machinery for carrying out the administration of criminal justice; and the forms of the re- cognizances for witnesses and l)ail given on the preliminary in- vestigations, bind over to appear at the next ('Ourt of oyer and terminer and general gaol delivery, and the OGth sec. of c 21 32 and 33, Vic, respecting the duties of Magistrates in relation to persons charged with indietabh> offences, declares that the " forms in the schedule to this Act contained, or forms to the " like effect, shall be good, valid and efficient in hiw." All Judgment— Regina v. McLeans and Hare. 103 these are introduced into British Columbia by c. 45, 42 Vic. 1874. It may be open to contention, as put by Mr. Robertson, that the power under the 5th section, c. 42, is a cumulative power, additional to tliat which British Columbia already pos- sessed, and that it authorizes the Supreme Court to sit eo nom- ine, and hear and determine, simply following the Criminal Procedure Act, and having the parties charged brought before it, as in Ontario, or Ntnv Brunswick, where, in those Provinces, under the statutory power, commissions have not been issued. Had the case rested there, such a contention would have been open to grave consideration, and I will not say at what conclusion the Court might have arrived ; but no sitting of that Conn was called. On the contrary, the Counsel for the l);'is.)ners produces the official Gazrdte and shows that the Court called was "a Court of oyer and terminer, nisi prius, and gene- " ral gaol delivery," Courts, two of which, for criminal purpo- ses the Lieut, (xovernor had undoubted power to call, and which two are recognized by the Criminal Procedure Act itself. None other than one so summoned could therefore possibly assemble. It was also ingeniously put by Mr. Robertson on behalf of the (hown, that tlu; Supreme Court of British Colum- bia had criminal jurisdiction, that by statute one Judge could sit as a full Court, that one Judge did sit, and therefore all was ae-iDtdiun le /cm. Not so; the mere personal presence of a Judge will not constitute ;i, Court, unless the Court is assem- bled pursuant to law, statute, or proper constitutional author- ity; and that could not be said of the so called Court at which the prisoners were tried. At the close of his argument Mr. Robertson ;ilso ])roduced tin; record of the calendar of criminal trials kept by tiie Registrar, and signed by the Judges under the head of " General Assizes," as indicating that that was a recognized titl ■ of the Su])reme Court, and that consequently it was before tlu> Supreme » curt, and not before Courts of oyer and terminer and general gaol delivery, that criminals had been hitherto tried. The term '• Assizes " in that Record kept by the Registrar is sim])ly used in the ordinary sense, as sittings of a Court (see Tomline), and is very different from a " Court of Assize," which has a clear defined legal meaning, expressive of distinctive and pe(;nliar jurisdiction, exactly as the terms, Supreme (^ourt and County Court, mean different Courts with different jurisdictions. By common acceptation the term " Assizes "is used to designate the sittings of a Court competent for the trial of criminals. Tiius we find in the Iin]>erial Supreme Court of Judica- L04 JUDGMENl^ — EeGINA V. McLeANS AND HaRE. 1} M rVl I J •1 14 ture Act, of 1873, after tlie jurisdiction of oyer and terminer and gaol delivery had by sec. 16, been transferred to the new Court, by sec 29, her Majesty by commission of Assize, or by any other commission, may assign to any Judge the duty of trying, &c., and of exercising civil or criminal jurisdiction ca,)able of being exercised by said High Court, &c., and in the Judicature Act, 1875, sec. 23: " Her Majesty may at jjny time " after the passing of this Act, ;ind from time to time, by order " in Council provide in such manner aid subject to such regu- " lations as to her Majesty may seem meet for all or any of the " following matters: "1. For the discontinuance either temporarily or perma- " nently, &c , of any existing Circuit, ttc, &c. " 2. For the appointment of the place or places at which " Assizes are to be holden on any Circuit . " '>. For altering by such authority and in such manner as " may be specitied in the Order the day nppointed for holding " the Assizes, ;it any place or any Circuit, &c., &c. "The expression ' Assizes ' shall in this section be con- " sidered to include sessions under any commission of oyer and "terminer or gaol delivery, or any commission in lieu thereof " issued under the Principal Act," The term "Assizes" was not used in the Proclamation for the New Wi'SUni ister Court, but the term that was used was " a " Court of Assize," clearly different in meaiiing, object, ;.nd character, an essential distinction to the benefit of which the prisoners are entitled Against reasoning so plain, the Attorney-General contends that, notwithstanding all this, the Lieutenant-Governor, under the " Circuit Courts Act, 1872," had power to ordn- the sittings of Courts, ;>nd though there are in the Province no Courts that can properly be designated " Circuit Courts" as mentioned in that Act, yet the Proclamation must be read as the " Supreme " Court on Circuit," and therefore having jurisdiction. A]):!ri from the fact that that Act has never bee i cairied out and is in reality incapable of being carried out for criminal purposes, being a mere graft of one section from an Australian Act, for the holding of Courts without the introduction of the previous sec- tion creating the " Circuit Court " by that name, and giving it jurisdiction, it is to be remembered tliat the Proclamation called no such Court, and no Assize or sitting of the " Supreme " Court on Circuit." An official proclamation in the Govern- ment Gazette can not be treited (in the language of the Attor- ney-General) as "mere newspaper advertisement." It is the executive order of the Government of the country, and has to be I Judgment — Regina v. McLeans and Haue. 105 obeyed by all officers judicial and ministerial, and all persons in authority as far as the law permits. It is not the idle lan- guage of irresponsible parties, but the grave announcement of public duty, from those clothed with power. It is impossible, therefore, in law to assume any sueh forced construction. It is as great a delusion as to sn])pose, that calling a woman a man, would make or give her the attri- butes of a man. The Court has no power to twist and turn a Statute to accomplish ends in direct defiance of its ordinary meaning. The painful position of the counsel for the Crown is, tliat to hold any footing, they have to repudiate the Acts and language of the Crown — pervert the English language itself, — and conti'ud that the words used by the Legislature, the (Uown lawyers and the Provincial Secretary, did not mean what was intended, or carry the import which in legal and ordinary language they convey. There is but one other legal position to cxannMe, and tiiat is, whether at the time of holding the Court there was any com- mission of oyer and terminer or general gaol delivery extant, under which it could be held, and on this ])oint J fully agree with my learniul brethren that there was no such commission legally extant, the ])revions commissions having been (h^ter- mined by the issue and transmission to the .ludgcs of the; last — and the last having been can(?eUed by thi^ (roveniment before the holding of the Court. Tiius in the administration of criminal justic(^ in the l*i'o- vince there is a well defined law, nnd an ecpially well defined ]n'actice. In the case of the prisoners both have hcfii dopaited from, in forcing their trials at a Court not constituted at'{H)rd- ing to that law. With rights conferred by (me Act of the Imperial Par- liament at the time of the settlement of tlus Colony", iiiid con- tinued and c()nfirmed, so far as was necessary for the internal Government of the Prcnince by anotlnn-, at the time of its be- coming a portion of Canada; with a practice and law adopted by the local Legislature of its own acc(n(l, well known through- out every portion of the Dominion, and canied on in this Pro- vince without t)bjection for twenty years; with no Act or ;iny law directing a change as to th<' constitution of the Courts, or affecting pre-existing rigiits or practice in this respect (^save as to the procedure under the Canadian Statute of bringing a party to trial and c(mviction), ihe whoUi course is suddenly changed. The English and ('anadian and Provincial law and practice are all departed from. The English Liw, and by its 1()() Judgment — Keoina v. McLeans and Hare. mt adoption tho British Colurabiii law, abs()lut(;l_v roquires tliat Courts of over and terminer and general gaol delivery should be set in motion by commission, and without such commissions unless exceptionally permitted by Statute, they cannot be hekl. In British Columbia, there is no such Statute. According to the decision in The Queen v. Amer, and others, the J)ominion (fovernment cm also issue suchiiommis- sions. That it has such power for Dominion i)ur|)oses (iannot be questioned, but pr.;rogatives of the Crown may be limited by legislation, and how lur such a right may exist with refer- ence to matters under the B.N. A. Act, 1807, assigned and per- taining to i)urely local Provincial administration, is a question not yet judicially determined, ami one on which I desire most carefully to avoid any expression of opinion or of ass'nt. It cannot, however, here arise, for in this case the Dominion Oov- ernmeut or the Governor-General, (constitutionally as to power the terms are almost convertible) issued no commission at all. Such conmiissions are not like writs, made returnable at any place, and in the English forms no returns are ordered or directed. In those used in this Piovince by the local Govern- ment since the union with Canada, though not necessary, a return has been directed in the commission to be made to Ot- tawa, it is suppo.sed, because the pardoni; g ])owei' rested there, and as far back as May 1878 by 36 Vic, c. ?>, it is by the Ca- nadian Parliament enacted that in every case of a sent(nice of death, "The Judge before whom the prisoner h s l)een con- " victed shall forthwith make a report of the cast; to the Secre- " tary of State of Canada, for the information of the Governor " General, and the day to be appointed for carrying the sen- " tence into execution, shall be such as in the opinion of the " Judge, will allow sufficient time for the signification of " the Governor General's pleasure before such a day," and for the further conclusive reason that the Local Government could do nothing with the return if made to it, inat;much as that Government has not power under the Constitution to alter, remit, condone, or in any Avay atiect a sentence or punishment for crimes. In the commission dated the 9th March, issued for the Court of oyer and terminer and general gaol delivery to be holden at New Westminster on the 12th, to try the prison- ers, a return was ordered to be made to Victoria, (the Procla- mation having been published in the Gazette on the 17tli of Feb- ruary .) This deviation in the return was immediately pointed out to the Government by the Judges to whom the commission was addressed, and attention called to the fact, that in the commis- Judgment — Hegina v. McLeans and Habe. 107 sion for the previous November Court of oyer and terminer and general gaol delivery at Victoria, a similar deviation had been attempted, but on attention being called to it, had been aban- doned, and the old form resumed. In reply to this remon- str.mce in M rch the Judges are briefly informed "that no " commission from the Lieut. Governor is necessary to entitle " a Judge of the Supreme Court to hold Court for the trial of *' prisoners at New Westminster," and the commission for that Court was cancelled. The Proclamation for the * 'Court of assize," "oyer and terminer," and "general gaol delivery" at New West- minster was nevertheless not withdrawn. No other Court was called, and th(3 so called Court of oyer and terminer at New Westminster sat umler and according to that Proclamation. Thus say the prisoners : "You departed from law. You had a " Court which you could have used, which could have been " held without any commission, and where well known forms of " practice provided for bringing criminals before it, but you " would not use it. You called, by Proclamation, a Court of a " different kind, to sit at New Westminster, which could not be " held without a commission, and in which a different form of " practice prev iled. You refused to issue any commission to " hold it, and you tried and condemned us there. That sitting " at New Westminster was no Court, and we have had no legal "trial." Sacli is the Lmguage of the prisoners — it is com- prehensible. When tli<^ Judicature Act was before the Legislature in the session uf 1879, the expediency of Legislation to do away with such commissions was suggested by the Judges, but on a doubt arising with them, whether such legis- lation might not perhaps be considered as affecting criminal procedure, and therefore "ultra vires," the suggestion was with- drawn. Notliing, however, could more clearly demonstrate that under existing law in British Columbia commissions for Courts of oy(n' and terminer and general gaol delivery were leg Uy requisite, than the suggestion that legislation was neces- sary to do away with them, and permit the Court to sit without. In an official letter read during the argument addressed to Mr, Justice Crease, on the 8th April, on this subject, the learned Attorney-General lays down positions which as affecting the administration of justice ought not to pass unnoticed. 1. That the issuing commissions was a matter pertaining to the functions of the office of Lieutenant-Governor, solely. 2. That after ascertaining the practice of Ontario, and on the advice tendered the Lieutenant Governor declined issuing one. 3. That that conclusion having been communicated to the II 108 Judgment— Keoina v, McLeans and Hare. m Judges, if they thought it wrong, thoy sliould liave declined to hold the Court and then he, the Attoriiej-Gencrjil, would liavG consulted the Crown officers at Ottawa. Surely more unconstitutional doctrine never fell by acci- dent from an Attorney-General. In the lirst place the issuing such comniissions for hoimned, thtire- " fore the proceeding in question was valid, and ought to bo " upheld. Such reasoning has, and can have, no place in an " English Court of Justice." TInjse woris should be writen on the footsill of every Court, so that when the vilest criminal crosses the threshohl of the Tt-niple of Justice, he may read there the majesty of his rights, and know that the de- cision which is to affect his fate, will not l)e i fluiuci'd by fear or favor, expedienc}' or prejudict;. This is law — it is the will of the nation — and must be obeyed in ivery portion of the British Empire. It is better, p jrhaps, before concluding, briefly to summa- rise the positions i this case. nment, responsible nnder the consti- dministration of justice, by Proclama- hand of its duly authorised officer, ecretarv, in the Official Gazette noti- ( of a Court of assize, nisi prius, oyer " and terminer, aad general gaoi delivery at New Westminster" on a particular day for the trill of prisoiers accused of atro- cious murders ; and after a so called trial and conviction, by its constitutional adviser, the Attorney General, and the two oldest Queen's Counsel in the Province, on behalf of the Crown, con- tends in the most urgent manner, not only that the Government had no power to call such a Court, but that no such Court ex- isted ill the Province. 2. They prove by the production lay. I would suggest that at present, at least, there being really no time to consider the reasons for or the consequence of the change, a commission be issued in the form invariably adopted hitherto, and that any change in that form be left to bo con- sidereil at leisure. I am, (fee, MATTHEW B. BEGBIE, C. J. T. Ehvyn, Esq., Deputy Provincial Secretary. Appendix — Regina v. McLeans and Hare. 113 Mr. Justice Cn^ase to Provincial Secretary. SuPRKMK Court. B.C., March 9th, 1880. Sir, — I have the honor to acknowledfJte the receipt of a commission of oyer and terminer returnable at Victoria, in lien of whii h I respectfully request that his Honor the Lieutenant-Governor may he pleased to issue a commission of oyer and terminer to the -Judi^es returnable at Ottawa, as aforetime accustomed, all the Judges having such grave doubts of the efft'ct the proposed innovation may have on the validity of the lirst named commission, that where men's lives are, as at this moment, immediately at st dee, they cannot conceal a sincere and con- scientious anxiety that no change may hi' made in th^ form of commission hith- erto used until, at least, the conclusion of the impending assize at New Westmin- ster and the return of the Hon. Attorney (jeu' ral shall liave given time for a full consideration of so important a subject. I have the honor to be, sir, vour obedient servant, HENRY P. PELLEW CREASE. The Hon. the Provincial Secretary. Mr. Justice Crease to Provincial Secretary. SuPREMK Court, March 10, 1880. Sir, — As I have not received a commission of oyer and terminer restored as requested in my letter of yesterday, to its ancient form, "returnable at Ottawa," I write to state that, rather than anj' failure of, or impediment to, justice should be attributed to the absence or inaction of any of the Supreme Court Judges, I shall be prei>ared, as either of my brother Judges, if necessary, would have been, to proceed on Frid ly next to hold the assize at New \V estmiiister. Retaining liowever, as I do, the grave doubts in common with them that I have already had the honor of expressing as to the error in the new commission, but having pointed it out and suggested tlie retention of the old form as th^ only safe course for (he Executive, especially where life is concerned, should any cheek in the administration of justice arise from acting under the new commis- sion, I shall deem myself absolved from all responsibility whatever in respect to it. I have the honor to be, inv. your obedient servant, HENRY P. PELLEW CREASE. Mr. Justice Gray to Deputy Provincial Secretary. Victoria, B. C. March 10, 1880. Sir, —I have tlie honor to acknowledge your letter of the 9th inst., enclosing a commission of oyer and terminer and general gaol delivery differing in form from that hitherto used. The attention of the Attorney General was called to a proposed similar alter- ation in the commission issued to me in November last, for holding the Victoria assizes, which was thereupon abandoned and the old form resumed. I have this morning been shown the views and suggestions made by the Chief Justice in his answer to you on this subject yesterday, in the tendency of which I fully agree. Either of the Jrdges will be prepared to hold the New Westminster assizes,. and Mr. Justice Crease had actually embarked for that purpose, and will doubt- less go. The responsibility of any failure of justice arising from such cause must, however, rest with those who ..ke the change, and until the Attorney General, the constitutional adviser of the Crown, returns and has an opportunity of con- 114 Appendk — Regina v. McLeans and Hare. sidering it, it would perhaps be better stare super aniiquas i:ias, rather than run the risk when human life is at stake. You will please to communicate my answer to the Provincial Secretary. I am, sir, (Signed) J. H. GKAY, Judge Supreme Court. Thos. Elwyn, Esq., Deputy Provincial Secretary. Provincial Secretary to the three Judges. * Victoria. B. C, March 11, 1880. Sir, — I have the honor to acknowledge the receipt of your letter of the 9th inst., relative to the subject of the commission of oyer and terminer. I am to acquaint you that the Committee of Council are advised that "no " commission from the Lieut. Governor is necessary to entitle a Judge of the " Supreme Court to hold a court for the trial of prisoners at New Westminster." 1 am to add that the Lieut. Governor in Council has in consequence cancel- led the commission bearing date the 9th March, 1880. I have the honor to be, sir, your obt dient servant, (Signed) T. B. HUMPHREYS, Provincial Secretary. The Hon. Sir Matthew B. Begbie, Chief Justice. ■i \% The Chief Justice to Provincial Secretary, (after Mr. Justice Crease had left Victoria on Circuit.) Court House, 12th March, 1880. Sir, — I beg to aeknowledgo the receipt of yonr's of yesterday date. I believe Mr. Justice Crease, unprovided with any commission of assize, or of oyer and ternuner, or of gaol delivery, left this morning to liold the assizes at New Westminster. [Of course you are i)repare(l for the contingency that the whole of the criminal trials, should any take place, vv'ill probably be questioned and possibly be held irregular and valneb ss.] I wish to recall or expunge an exjjression in my letter to Mr. Elwyn of the 9th inst.. viz.: "There can be little doubt but th;it it (slv) [the innovation] is " erroneous." This expression of opinion will be sien to be contrary to the gist of the whole letter, and was merely due to my ovtrhaste in answering on the moment Mr. Elwyn's letter of the 'Jth inst., Mr. Justice Crease being about to depart early on the '(9th) lOth inst. It escaped my attention until pointed oui yesterday as being contradictory of the subsequent paragraph in the same letter, viz: "I am not at this moment pre- " pared to say what the effect of the innovation may be," and it is to this last statement that I wish, and that Mr. Justice (Jray in his letter of yesterday's date (in which he refers to mine of tlie 9th instant), wislus to adh' re. I have the honor to be, sir, your obedient servant, MATT. B. BEGBIE, C.J. Mr. Justice Crease to Actin' English .\ets as are directed to this end may l)e usefully ado|)tod her". In fa(ft. the last sal) s"';tion of section 'i'), and section 89 of the English Act of 1873, declare all that is essential. The I'est is merely ancillary. In thi' following p irt of this mi' norindum we have endeavored, as far as our tiiu" will allo>v. to point out how. in our opinion, this adoption may most safely be n id.i. MATT. H. IJE'IBIH. C. .1. HE.>fIlY IV PELLHW CLIEASE, J. J. HAMILTON GIUY, .1. Victoria. 7th. March, 1879. Judges of the Supreme Court, B. C. ExtiMct Dr.ift Jinlicitiire Bill, before referred to. PART II. SITTIN(iS AND DISTRIBUTION OF BUSINESS, 6. The Lieutenant-Uoveruor, by Commission of Assize, or by any other Cominission. either general or special, may assign to any Judge or .Judges of the Supreme Court the duty of trying and deter niniug. at any place or places specially named in su -h commission, any causes or matters, or any questions or issues of fact, or of liw. or partly of fact and p.irtly of law, in any cause or matter pending in the said Supreme Court, or the exercise of any civil or criminal jurisdiction capable of l>em,' ex 'reisrAd by th" said Court; and any commission so granted shall oe of the same validity as if it were enacted in the body of this Act; and any .Fudge or Judges ap[)oint 'd ('/o nmissioner or (Commissioners in pursuance of this section shall, when engaged iu the exorcise of any jurisdiction assigned to him or them in pursuance of this .\ct. bo d vMnod to constitute a Court of the said Supreme Court. The Judges' observations thereon. Part 2. Sec. 6. This is appirently taken from the English Act, which enables the Courts to ipp )iut adlitiouil Co.n uissioners of Assize, besides the Judges, with a view of dispatching the great accumulation of civil and criminal business at Assize or nisi prius. The object of the present clause is not apparent. That of the English Act is very clear. It is directly aimed at the second of the evils which it was the great object of the .icts to remedy, viz. : arrears in the trial of issues. The clause ia nearly useless here, and its legality may be questioned. >Ve should feel more disposed to omit this clause and declare the abolition of the continuous reiterated issue year after year of commissions of Assize, nisi prius, oyer and terminer, &c. The Government already have the power to fix the cir- cuits and Assizes, which when fixed, the Judges of the Supreme Court virtute officii hold. Section 8. ^Not required here. Its object is economizing the Judges' time. By the Puisne Judge Act, 1872, a single Judge may always sit. It is surely 122 Appendix — Regina v. McLeans and Habe. unneceHsary to throw auy doubt on the legality of a sitting held by more than one Judge. v\ The provisions and subsequent portions of the Draft Bill and observations included in this memorandum, although im- portant comments on the Act, are too long to be inserted here, except the following, as to — • RULES. 25. The Lieutenant-Governor may from time to time, after the passing of this Act, by Order or Orders in Council, make rules to be styled "Rules of Court" for carrying this Act into effect, that is to say:— (1 ) For regulating the sittings of the said Supreme Court, as a full Court or otherwise, and of the Judges thereof sitting in Chambers, and for regu- lating the vacations to be observed by the Court and in the offices thereof. (2.) For regulating the pleading, practice, and procedure in the said Su- preme Court, including all matters connected with writs, forms of actions, parties to actions, evidence, and mode and place of trial, and the reporting by a competent short-hand writer of trie evidence when- ever it may be expedient or desirable to do so: (3.) Generally for regulating any matters relating to the practice and pro- cedure of the said Court, or to the duties of the officers thereof, or to the costs of proc(^edings therein, or relating to the conduct of business coming within the cognizance of the said Court, for which provision is not expressly made by this Act : (4.) For regulating the sitting of Judges in Chambers, theissuing and hearing of summonses, aud generally for the efficient dispatch of Chamber business. (5.) For regulating the rehearing before a full Court of all orders, decrees, or judgments of a single Judge, whether made in Court or at Chambers : (6.) For jirescribing, regulating, or doing anything which under this or any other Act may be prescribed, regulated, or done by Rules of Court: (7.) For regulating the sittings of the Judges on Circuits,and the conducting of business thereat, as well as for the Chancery anil Probate or Divorce sides of the Court as for the Common Law side thereof. (8. ) Any such rules may from time to time be rescinded, and new rules in lieu thereof made by the Lieutenant-Governor in Council, and such rules may apply, as the case may be, to the jurisdiction of the said Court as a Court of Equity, of Common Law, of Probate, of Divorce and Matri- monial Causes, of Appeal from the Inferior Courts, or otherwise as possessed by said Court. The Judges' observations thereon. Sec. 25. This clause is probably quite unprecedented in English law, and is very objectionable. The same provision should be made as in the English Acts, Probably the last Act, ; 1876) as containing the most deliberate views of English Reformers of all classes is the best. We suggest a short section as more suitable, we think, to British Columbia, and which will enable the Act to be brought more speedily into operation. Whether the entire Schedules to the English Acts are applicable here, we have as yet had no leisure to enquire. The operation of the Bill will probably be postponed long enough to afford time for examination. The new section we propose in lieu of section 25, is as follows: — That the Rules and Orders in the English High Court of Justice as the same are now in operation, and so far as the same are applicable to the Province of Appendix — Reoina v. McLeans and Haue. 123 as we bly me of Uritish Colninhia, slmll bo the Rules iviul OrdoiH in fort-p in the Snpronie Court after fho coninienecnicnt of this Act. All snch llnlcH amy bo nltiied and niodifiod nnd rcvokod, nnd nil now Rules fihiUl 1)0 made by the throe .Indigos of the Su])rome Court, and all such Rules of Cf)urt, alterations and niodilieations as aforesaid shall bo laid l)ofore the House of Assend)ly within one week next after the niakiu}^ thereof, if the House be then sittinj,'. or if not, within seven days after the eonmieneenient of the then next onsuii.y; session. And if an address be presented to the liieutenant-Governor in Council by th? House of AssiMubly within the next sul)sequont forty days, pray- ing that any such Rule or Order may bo annulled, the Lieutenant-CTOvernor in Cctuneil may thereupon, by Order in (^mncil, annul the same. And every Rule or Order so annnlloil. shall thenceforth become void and of no ofiect, but without prejudice to the validity of any proccediuf,' which may in the meantime have been taken und.-r the same To the Hon. Attorney-General. SiipuEME Court, Tuesday, 18th March, 1879. Sir —Wo beg to acknowledge! the reeei|>t of a coj)y of the Judicature Act as amended in committee after the second reading, an I at the same lime we recog- nize tho frank readiness with which you have from time to time procured from the Hfuse of Assembly the adoption of all oiir suggestions (except two, which we sh.ill shortly refer to.) \V(> are happy U) observe that, oxcojit as above, not one word has been re- placed which we stn.ck out, not one word altered, which we have inserted in the origiiiid Rill, although those changes involved the nbaudouuieut of the greater part of the measure. We acknowledge with satisfaction, that certain ju'oposed additions to the original Rill, not emanating from ourselves, have at our suggestion , bt;en at once abandoned in the same spirit. Wo observe, however, that one new clause lias been added (sec. 12 in the amended Mill) apparently based upon a suggestion for some such new clause contained in our memorandum of the 7th inst. . which suggestion upon further consideration we should wish to withdraw, and can only plead the extreme haste with which our cons: Itatien was necessarily conducted We therefore now recommend the omission of see 12 of the amended Bill. Wo beg you again to press on the House, the adoption of our addition to clause fi of ami nded r.ill, 16 of original Rill. It is a very simple matter. The only clause in which we fail to observe complete adoption of every sug- gestion M ours is section 17. (Section 25 of original Bill) placing the making of all rulis and orders of the Court in f^e hands, not of the Judges, but of the Cabinet, a political boi'y, fluctuating with the waves of opinion upon tariffs or railways or private rivalry. Against this unprecedented innovation we protest. It will not have escaped your observation— indeed, it is expressly alleged in our memorandum of the 7th inst., and it is 8ufifi(!iently obvious, that the whole of the omissions and alterations recommended by us are based upon the assump- tion of the misconception of the whole subject on the part of the framers of the original Bill, nnd of the persons who advised the paragraph in the opening speech leading to the Bill The original Bill shows that the framers had entirely raiseoustrned — (n) The con.stitution of the Courts; (h) The objects; and (c) The eff'ect of the Judicature Acts; (d) The constitution of the Supreme Court; (p) The eff'ect here of the proposed measure as it originally stood. We pointed out these misconceptions, as v.'ell as the pressure of time would permit, nnd altered the Bill extensively, so as to make it fit (as well as we could under the circumstances) the actual facts of the case. Every one of these amendments, with the exception above alluded to, has been adopted. 124 Appendix — Keoina v. McLeans and Hare. Not a word thftt we have objected to, except as above, has been defended for a moment, until we come tothia clauHe, sec. 25, now sec. 17, concerning the mak- ing of rules and orders, not, be it observed, confined to the ciirryinj,' out of th» present Act, but embracing in its minutest details the practice of the JiuIkch, fol- lowing them almost into private life, which it is proposed to rt'fcr to the discre- tion of the Executive, to be guided, it may be conjecturfd. by the same advisers as the framers of the original Bill, in the form in which it first stood. But the abandonment of a large part of that measure, at the firfft touch of the .Judges' observations, and the arity for direetin-^ the ff>rms and instruments, the times and methods, by which the .Judges shall put the le^jislntive will in action. And it is believed, that there is no precedent in English law for any such assumption of authority, entirely beyond the proper executive sphere, ns the present. Far less does it seem judicious to place this discretion in the hands of a body who have just confessed in the most unaffected wuy their entire niisapiJrehcusion of even the general features of the casp. and who may possibly shortly, certainly sooner or later, be succeeded by anoth< r body ^>f men who may not shew them- selves so quickly amenable to reason, or so reaiiy i'- udf>pt the suggestions of ex- perience. It is far safer to follow the, it is beli^vcil. u!iV)rokeii series of precedents which place these matters in the hands of ili'Iulges. subject of course to the veto of the legislature. It is not well that ti;t ji.xecntive should have any voice in the matter. On the other hand, the Sujireiue Court of IJritish Columbia and its predecessors, the Supreme Court of the Miiinland, and the Supreme Court of Civil Justice of British Columliia. have wnbxisted for upwards of twenty years; during all of which time there has not been one serious cou)plaii t that any act or neglect of a Judge has caused a luisearri.ige of justice, or ihe delay of justice, for a single unnecessary hour. If the Judges of that Court are not fit to be intrusted with the making of rules and orders, they are not fit to be J 'dgi s at all. We are in hopes that if yov\ will r'-ad this letter, and our former memorandum in the House of Assembly, you will even yet be abl to persuade them to conform to our suggestion on this point as they have done so readily with every one of our other suggestions. We hope that this may be to. otherwise we shall feel it to be our duty to send the whole correspondence i•^ the matter of this Bill to the Minister of Jus- tic with a view to the disallownii'.'e of the Act. and thus lo.se a whole year, which we shall much regret, as the (b l.iy will, in our opinion, be prejudicial to the public interests. We have the honor to be. A'C, (Signed) (Signed) (Signed) MATTHEW B. BECJBIE. C. J. ) Judges of the HENRY P. PELLEW CREASE, J. - Supreme JOHN HAMILTON GRAY, J. \ Court, B.C. Appendix— Ekoina v. McLeanh and Ha«e. 125 15 APPENDIX C. Adamson's Acts, No, 10 Vic] Circmf Courts. [6 Jan., 1852. An Act to make Provision for tbe better Administration of Jus- tice ill the (^olony of Victoria. (Australia.) " SfC!. 17. It Hhiill lie liuvfiil for tho frovornor of tho Hiiid Colony, by any " orderH to be by him, with the advice of the Excciiti ve Conncil thereof, fromtime " to time mmle and i>rociiiiini(l, to ileftii" the limits of Distriets within, and the *' tiiiH'H at which Circuit Courts shall be holden in the said Colony, and the said " limits and tim' s to alter and vary, as he shall, with the advice aforesaid, deem " necessary. " And to dircc- *iiat Circuit Courts shall be holden at snch towns and places " within those limits, as he shill. with the advice aforesaid, think tit to appoint. •' And every such Circuit Court shall be holden in and for snch District by " one or more Judt,'e or Judges of the said Court, and shall be a Court of Record, " and shall have ]iower to ])unish for contempt, and shall have the same powkr, " authority and junsdictiim to iikau and dkierminu all civil issues to be tried " within the limits of the Circuit District in which the same is held, and all trea- " sons, FKLONiKs, misdemeanors and offences whatsoever committed, as Courts of •' nisi ])rius. Assize, oyku and tkuminku and qknkral qaol )ELIVEBY in England " possess. " And also to enqiiire into and assess dania}j;es in any action at law com- " menced in the said Supreme Court" (of the Colony of Victoria.) " ,\nd every such Circuit Court shall stand in the same relation to the said " Supreme Court with respect to civil issues, as the Court of nisi prius in Eng- " bind stands with respect to the Superior Court, from which the nisi prius " is sint. ' Provided, hcwever, it shall not be necessary to issue any special coramis- " mission to any Jiidijfe or Judges of the said Supreme Court to empower him or " them to hold any such Circuit Court." APPENDIX D. Authorities cited in the Judgment of Mr. Justice Crease. 13 Ed. I. c 30. 2T Ed I, '28, Ed. I. c. 6.5. Stat. Northampton 25 Hen. II. Stat. 2. Ed. III. Stat. Westminster II, 20 Hen. 7, c. 8. 27 Hen. VIII, c. 24, 1 Geo. IV. c. 10, 3 Geo. II, «. 25. 11 Geo. IV and 1 Wm. IV, c, 7n. s. 9-3 and 4 Wm. IV. Archbold Prac. Crown Off. XXXVIII. 58. Gude's Crrwn rac I and II 43, 70, 73 et, al. Blackstone's Com. Ill and IV, 205. Stephens' Com. Ill and IV. " " " - - ~ — ~ -- — 20, 21, sees. 42, p. 561, 7 and 8, 164, &c. Hawkins' P. C. II, 2, 17, 18. 29, 34. Cap. 5, sec. 2, cap. 11, c, The Criminal Law of Canada. Imp. Common Law Procedure Acts of 1852 and 1854, sec. 95. British Columbia Consolidated Stat of 1877, cap. 51, cap. 18, c page 20, 41, 26, 28, 53, s. 56 [1872] c. 113; c. 57, c. 91, c. 92. c. 94, c. 113 [1877] c. 18, 19, 20. c. 54, c c. 161. British Columbia Sta.. [3 Aug.] sees. British Columbia Civil Proc. Act, 18. British Columbia Revised Stat. No. 90, sec. 17 Hale P. C, vol. II, p. 10 and rule 3, cap, 4. 4. 22. 23, 24, 31, 39, p. 2, 3, 4 and 5, 158, c. 20. Up. Canada Con. Statutes. Chalmers' Opinions, 472, 484, 782. 11. 101 3 and 4; 2 Bule 4, cap. 126 Appendix — Regina v. McLeans and Hare. 1 Chitty Crimi. Law, 143 144, pp. 5, 6, 7, 8, 505. Dom, Stat., 37 Vic. c. 42. sec. 5. Chitty's Prerog. Crown, p 77. Chitty Gea. Stat., late Ed., p. 940. Chitty Gen. Prac. II' 362. 363. British North America Act, 1867, (Impl.) sees. 3, 9, 12, 14, 27, 58, 64, 65, 92,101, 103. 129, 146, &c. Order of the Qneen in Council. Terms of Union of British Colnmbia with the Dominion, 1871. » Canada sessional Papers, 14 of No. 8, 1879. B. C. Gazette. 20th July. 1876. Musgrave V. Puledo, (1879). Mostyn v. Fabricas. Smith's L. C. B. C. Order Lieut.-Governor in Council, 11 March, 1880, and 12 Nov., 1879, Wftterlow V. Dobson. 27. L. J.. Q.B., 65. R. V. Castro, L. R.91, Q.B., 358. Coke's 4 Inst. 14, 73, 74, 161, 164, 70, 71, 158, 159, 163, 165, 166, 167. 43, sec. 201. note 9. Plnm V. Hughes. 29, C.P., Up. Canada, 261. R. V. Whelan, 28, U.C, Q.B. 2 Ld. Raymond, 1344-L,R., 3 Q.B. Div., 775, 776. Hallam's Middle Ages, 318. Smith V. Queen, 13, Q.B,. 738. Reg. V. Eyre, 3, Q.B., 487,-Lenoir v. Ritchie. Roonpy v. Roonev, 29, U.C, 349. Scotland & Grady's Crown Practice, 50, 182. R. V, McLeod. 2 East, Q. B.. 202. 4 Hftrdwicke's State Trials. 505, 506. R. V. Perrin. 2 Sannd., 39.3-R. v. Connor. Reg. Gen. Hil. Terra, 1844. ADDENDA ET CORRIGENDA. Page 7. line 4, for "Lnnglov's, " rend "Lanqlo's'." Page 13, line 24, for "Act," read "Ad." Page 26. line 29, dele, "are." Page 32. line — . between "learned" and "gave" add "counsel." Pages 45 and 58, lines 38 and H, for "2 Geo. IV." read "U Geo. IV." Page 47, line 41, for "42 V.C.A.B.," leqe "42 U.C. Q.B." Page 48. line 31, for ''>ilndy>^'n}iHmjUii," read "sMdissinii Jiir;^." Page 53, line 34, for "neglectful issue," read "neglect of issue,'' Page 54, line 16, for "last" le