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In the Supreme Court of British Columbia. The Queen vs. Allan McLean, Archibald McLean, Charles McLean,… British Columbia. Supreme Court 1880

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tried for
JUNE 26th, 1880.
McMillan & son, job printers, port street.
4      O     9S>       «-"
Indicted, found guilty, and sentenced to death for the murder of John Ussher.
From the Notes of the Judges,
1880.  PREFACE
On the 6th December, 1879, a warrant for the arrest of the
four prisoners, charged with horse-stealing, was issued by Mr.
Edwards, a Magistrate at Kamloops, in the district of Yale; on
information dulv lodged.
The warrant was placed m the hands of Mr. John Ussher,
the Government agent and constable at Kamloops, to be executed In consequence of the reported lawless character and
conduct of the prisoners, he took with him for that purpose,
three special constables, He overtook the prisoners on the
Nicola Mountain, notified them of his object, and called upon
them to surrender. They immediately fired upon him and his
assistants, killed Mr. Ussher, and wounded two of the special
The prisoners were subsequently, by a large posse, under
Senator Cornwall and Mr. Edwards, surrounded, overcome and
taken prisoners; and afterwards lodged in the gaol at New
Westminster, and brought to trial at a Court held at New Westminster on the 13th March; found guilty, and sentenced to
On the report of the trial to the Secretary of State, as required by Statute, the Dominion Government ordered an argument before the full Court, to test the validity of the trial and
The following Report gives the arguments of counsel and
judgments of the Court seriatim.
H. P. P. C.
Begiria v. Allan McLean,  Charles McLean, Archibald1 McLean,
Alexander Hare.
Before the Honorable the Chief Justice, Hon. Mr.  Justice
Crease, and Hon. Mr. Justice Gray.
Judgment—Sir M B. Begbie, C. J.
These cases come before us upon the argument of a rule nisi
for a habeas corpus, to bring up the bodies of .certain prisoners 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 no'n judice. A
rule nisi having been obtained for the issuing of the writ, cause
was shewn against its issuing by Counsel for the Crown. Prisoners' 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 advanced, and the importance of the case itself, which will probably be taken elsewhere on appeal.
We therefore thought it in every way desirable to state our
views as accurately as possible.
The circumstances 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 be considered is
dated 15th *Dec. last. It is an alleged commitment by C. F.
Cornwall, Esquire, one of Her Majesty's Justices of the Peace
for the District of Yale ; (the keeper of the gaol has not
return, d to us the originals, but only rhe "tenor" of the
Warrants), dated at Kamloops, headed "District of Yale,"
and addressed to the Clinton constable and the keeper of
the common goal for the said. i. e. the Yale district, commanding in the common form, the said constable to convey the body
of the prisoner 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 operative part si'ems to follow very accur >tely the form in the
Schedule, to the 20 Vic. c. 30, (which has always been in force
here, being identical with Jervis's Act, 11 and 12 Vic. c. 42, imported into  British Columbia at the   original creation of the 2 Judgment—Regina v. McLeans and Hare.
Colony in 1858, and now extended to the whole Dominion.)
The Schedule is not expressly declared to be part of the Act;
but the substance of that form," it is in the body of the Act declared, must be followed by the committing magistrate.
By virtue of the above commitment, and warrant alone, apparently, the sufficiency of which has not been at any time called
in question, the prisoner was taken and safely handed over to
the keeper of the common gaol at New Westminster, and by
him safely kept until, on the 15, 16, 17, 18, and 19th days of
March, he was brought to an alleged trial, the validity of which
it is now sought to impeach.
In the meantime and on the 16th Feb., 1880, Counsel for the
Crown applied to this Court, sitting in Banco at Victoria, for an
order fixing New Westminster as the place of trial of the prisoners. We refused to entertain the application or to make any
order, as it did not appear that there was any case before us,
We asked to see the commitments in order to see whether we
had any jurisdiction, but the commitments were not produced.
Without entertaining the application at all, an extrajudicial
opinion was expressed that, subject to objections (if any)
by the prisoners, New Westminster appeared to be the most
proper place of trial under all the circumstances, but that the
time and place of holding assizes were always appointed by the
Executive alone.
The tenor of the commitment has been now produced, and it
appears, as has been said, to be in conformity (at least in thi*.
operative part) with the form in the Schedule T. (s. 56 of the 29
Vic. c. 30) i. e. under it the prisoner is to be held until delivered "in due course of law," which means tried and acquitted
or sentenced by the proper Court.
What Court is by the Statute contemplated as the proper
Court is sufficiently shown by the Statute itself in the forms
of recognizance of bail, Schedule S., of the same Statute, showing the Court at which the prisoner is bound to appear
and plead, and forms O in the same schedule, stating the
Court (the same Court) at which the witnesses are bound to
appear and prosecute—forms which must be substantially followed by the committing magistrate, otherwise probably the
criminal would be irregularly committed. These forms conclusively show the Court at which the prisoner is to be tried.
The trial (since there are in British Columbia no Quarter
Sessions) is to be at the next Court of Oyer and Terminer and
general gaol delivery for the district. It is into this last mentioned Court, says Coke (4 Inst. 168, 1,) that Justices
of the Peace must. return their indictments.        They  could Judgment—Regina v. McLeans and Hare. 3
not in British Columbia return them in any other Court;
in particular, they could not in England return them into
the Queen's Bench, nor here into the Supreme Court, nor
bincbover the witnesses, to appear there. The Justice of the
Peace must commit to the Court indicated by the Statute.
Whether the Queen's Bench in England or the Supreme Court
here will afterwards take up any criminal proceedings originally
launched before Justices of the Peace is entirely for their own
consideration, on | proper application being made, as will presently be shown at length.
Immediately after the application of the 16th Feb., and in
accordance with the invariable practice in the Province, it was
officially announced in the British Columbia Gazette of the
17th Feb., 1879, and following numbers, that " a Court of As-
" size, nisi prius, oyer and terminer, and general gaol delivery
" would be held at New Westminster on Saturday, 13th March
" next"; and on Monday, the 8th March, in anticipation of the
Court announced for the 13th, a commission of oyer and terminer and gaol delivery was issued, also in accordance with the
invariable practice whenever a former commission had determined, or was intended to be determined. This commission was
dated 9th March.
I do not undertake to state exactly the number of these
commissions issued during the last few months, but they have
been very numerous. One was issued about the 1st August to
myself alone, a general commission for the whole Colony.
Another, I was informed by Mr. Robertson, (acting as Crown
Prosecutor), was received by him to be delivered to me at the
New Westminster Assizes in October last, but it was never
Another, about tbe middle of Nov. last, was issued to the
three Judges preparatory to tlie Victoria Assizes. This undoubtedly revoked the previous commission or commissions to
myself alone. (4 Inst. 16-i.) It was notonly addressed to three
Commissioners iustead of one only, but it was made returnable
at Victoria instead of Ottawa, as had hitherto been invariably
the case siuce Confederation.
Another ^perhaps the same amended,) was issued on the
19th ,Nov. remedying this alteration and reverting to the old
form. Under this last commission, which I think revoked all
former commissions, the Victoria Assizes were taken, and concluded early in January last, when the Assizes were closed.
The latest commission was, as has been stated, issued on
the  8th March,   (dated  9th March J.      When  brought to the 4 Judgment—Regina v. McLeans and Hare.
attention of the Judges, it appeared to contain a renewal of the
alteration so recently abandoned. It was expressed to be returnable, not to the Governor-Generol at Ottawa, but to the
Lieutenant-Governor at Victoria. I do not know whether the
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 issuing of the commission of the 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 conclusions.)
All the Judges, without expressing, and without having
formed, any clear opinion' as to the result of the alteration, remonstrated against the imprudence of introducing any change
into a formal act of extreme antiquity without any opportunity
of deliberating as to what the effect of such a change, might be.
The answer was, an identic note to the three Judges delivered on- the night of the 11th March, informing them that the
Lieutenant-Governor had cancelled the commission of the
8-9th March altogether, being advised that no commission of
oyer and terminer at all, in that or any other form, was necessary.
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, indefinite
delay and expense were certain to be incurred while testing the
soundness of the new advice on which this alteration had been
Uncertain whether, in the last moment, the Executive might
not enter a nolle prosequi and revert to the accustomed routine,
or perhaps proceed by certiorari, and having procured for the
Executive several days' opportunity for considering their position after the return of the Attorney-General from Ottawa, Mr.
Justice Crease, after repeated protests, at last, on the 19th
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 to juries, etc.,
exactly as if an ordinary commission of oyer and terminer had
existed as usual, and had been read as usual at the opening of
the Court.
The only question before us, the only ground on which the
rule nisi was obtained, is, whether under these circumstances
Mr. Justice Crease had jurisdiction to hold that Court, or then
and there in that manner and form to hold any Court; and we
are all of opinion that he had not. Judgment—Regina v. McLeans and Hare. 5
The contention of the Crown in support of the late proceedings endeavored to establish that the Court so held was a
legal Court for the trial of the prisoners Under whatever name.
Looking at it 1st as a Court of oyer and terminer they maintained (a) that a Judge of the Supreme Court might lawfully
hold such a Court without a commission : but if not then (b)
that the commission of the 19th Nov., 1879, was not exhausted,
nor determined ; and that that was a sufficient authorization.
But if that contention failed, and if we should be of opinion
that a Court of oyer and terminer could not be held without a
commission, then they maintained that 2dly in the alternative,
it was to be upholden as a lawful sitting of the Court of Supreme Court, held before a competent Judge (since a single
Judge has the power of the full Court) and within the jurisdiction
since this Court has the fullest jurisdiction " in all cases civil
as well as criminal", (Ordinance 5th June, 1859.) To which
last contention the simple reply is, that to give the Supreme
Court jurisdiction in any case, civil or criminal, the Statute
alone does not suffice. Every such case must properly i. e. by
some proceeding, be brought before the Supreme Court; whereas these cases were never before the Supreme Court at all.
And the Supreme Court in trying cases properly laid before it,
must follow the legal and accustomed procedure ; which was
not followed here.
The present Supreme Court is the heir of the former Supreme Court of Civil Justice on the Mainland. By an ordinance 5th June 1850, (Con. Stat. No 51) that Court was to have
' 'complete cognizance of all pleas and jurisdiction in all cases civil
"as well as criminal arising within the Colony." There was a
former ordinance which as to criminal matters expressly conferred by name all the criminal authority of the Court of Queen's
Bench in England. But as no copy of that ordinance can be
found, I do not rely on it. By the Proclamation of 19th Nov,
1858, (for Mainland alone) and by the ordinance of 1867 (Con.
Stat. c. 103.) the civil and criminal laws of England as they
stood on the 19th Nov. 1858, are now in force in the whole of
British Columbia, save where they are from local causes inapplicable, or have been altered since 1867 by competent legislation. This includes Statute as well as Common law, and
practice as well as doctrine.
There has been nothing, so far as I am. aware, to diminish
or affect the universality of the criminal jurisdiction conferred
by the ordinance of 1859, except that by a subsequent local act
(i.872, Consol. Stat. No. 56) the Court may be held before any
one of the Judges thereof.    Indeed- it is not contended that any 6 Judgment—Regina v. McLeans and Hare.
other alteration was made or intended up to the 1st Jan., 1875.
At that date (the argument was most clearly formulated by
my brother Gray) an important Dominion Act, the 37 Vic, c.
42, came into operation as to criminal matters. By the first
section of that Act certain Dominion statutes passed in 1867,
1868, 1869 and 1870, before the admission of British Columbia,
are expressly extended to this Province. Of these statutes it is
only important to consider certain statutes of the 29th of the
Queen, viz., c. 20, 1869, "An Act respecting offences against
''the person"; c. 29 of 1869, "An Act respecting procedure in
"criminal cases"; and c. 30, "Respecting the duties of Justices
"of the Peace out of Sessions, indictable offences." The two
first of these Acts are mentioned in the schedule as having been
amended by subsequent Dominion legislation : it may be a
question whether these amendments are imported into British
Columbia: but they do not relate to this case, and this question is quite immaterial. By section 5 of the 37 Vic, c 42,
it is declared that the Supreme Court of British Columbia shall
have power to hear, try and determine in due course of law, all
felonies, etc., mentioned in any of the said Acts, (murder being
one mentioned in 32-33 Vic, c 20). And by sec. 7 of the same
Act it is declared that any local law inconsistent with or repugnant to any enactment or provision in any of the scheduled
Acts is to be repealed. And sec. 4 enacts that' all procedure
on the trial of any offence, though committed before 1st January, 1875, yet if tried afterwards, " shall be had under the provisions of the said Act."
Grammatically, this section is by no means clear : but the
Act last referred to must,  I suppose,  be the Procedure Act,
1869, c. 29.
This section (4) only applies in terms to offences committed before 1st January, 1875, and therefore does not directly
affect the present ease ; but it may be properly referred to, as
indicating the desire of the Legislature to make procedure uniform throughout the Dominion : though I believe the rule is a
general rule of law without express enactment.
The argument then continued, 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 Legislature thereby intended to lay down, from point to point, what
should be the one uniform procedure throughout the Dominion;
and that any procedure beyond what is expressly made necessary by that Act is in fact inconsistent with or repugnant to the
Acts and repealed by s. 7 of 37 Vic, c. 42.
I Judgment—Regina v. McLeans and Hare. 7
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. Langlor's and other cases were referred to. We have
not, and never had, any doubt upon this point. We have repeatedly undertaken new jurisdiction cast upon us by the Dominion 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 prisoners 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 Columbia 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. The Procedure Act (1869, c 29,) by s. 7
expressly refers to and ratifies the Justices of the Peace Act
(1869, c 30,) and that Act authorizes, and enjoins, the'committing Justices to send the prisoner for trial before the next Court
of Oyer and Terminer, and no other Court, (there being in British Columbia no Court of Quarter Sessions as already remarked). 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 connection with s. 5 of the 37 Vic, c 42,) expressly says : "Nothing
| in this Act shall alter, 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 jurors, 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, ever been hinted at.
Those powers 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—Regina v. McLeans and Hare.
cited in which a Judge of the Queen's Bench had sat and tried
without commission, and without removal by certiorari or otherwise, 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 mm case was produced from the Ontario Courts,
•Whelan v. The Queen, in which an attempt was made
to impeach such a trial unsuccessfully. The trial was actually
impeached, although an extant enactment by a competent Legislature had expressly declared that a Court of oyer and terminer 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 the result would have been in the absence of such a Statute. And
there is no such Statute in force here. It is true the Ontario
provision has been copied into a local Act here, but being matter of criminal procedure, it is extra vires of the Local Legislature ; and moreover it only purports to come into force from a
day not yet named. All these Acts of Parliament are in effect
so many statutory declarations that by the law of England and
the Provinces these commissions are necessary to confer jurisdiction, and that nothing less than an act of Parliament can render them unnecessary. The whole argument upon this; point,
based upon Whelan v. The Queen, which was referred to at
great length by Counsel for the Crown, is almost decisive in
favor of the prisoners.
The authors from whom we can gather the method of appointment, and the authorities and powers, of Justices of oyer
and terminer and gaol delivery, are Lord Coke in his 4th Inst.,
Hawkins, and Chief Justice Hale in their treatises on pleas of
the Crown. They generally use almost the same words, and
the whole is comprised in a very few pages of each author. I
shall generally confine myself to Lord Coke for my authority,
and I shall take the liberty of stating what seems to be the history 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 epithet
must be in the limited sense, to signify that they are of great
assistance to the Queen's Bench in discharging the criminal business of the^country ; which the Court of Queen's Bench could
never undertake single handed.    Blackstone says of the Courts Judgment—Regina v. McLeans and Hare. 9
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 sense in which (e. g.) the
Rolls Court and Vice Chancellor's Court were auxiliary or assistant to the Lord Chancellor. These were more properly subsidiary 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 Courts whose Judgments it had to review.
The Court 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
Court of gaol delivery was for the determination of criminal
charges there; both Courts dating from Edward I. But Commissioners of oyer and terminer in England return their records,
not into the Queen's Bench, but into the Court of Exchequer,
(4 Inst. 165, 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, Common 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 Court is not thereby brought to an end : nor is there a new
creation of a Court, when a new commission issues to new Commissioners. If by any accident all the three Judges of this
Supreme Court were to be swept away simultaneously, that
would not annihilate this Court, nor affect its existence; although
of course no sitting could take place until a new appointment,
of Judges. Wilson, J. in Begina v. Amer, finds it necessary td 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 10 Judgment—Regina v. McLeans and Hare.
Edward VI, c 7 cited with approbation by Lord Coke, by which
it is provided "that no process or suit before Justices of oyer
"and terminer, etc., shall be discontinued by the making or
"publishing of a new commission or altering the names, etc.,
I but that the new commissions might proceed in that behalf as
"if the old commissions had remained unaltered." Which
Statute, I venture to add, proves two things ; first, that a new
commission, abolishes a former one; secondly, that the new
commission finds, and leaves, the existence of the Court quite
These Courts, then, with the mode of appointment of Commissioners, and the method of procedure under them, were imported into the Colony of British Columbia at its birth,
being part of the English law, eivil and criminal, as it stood
on the 19th Nov., 1858; and into these Courts the Justices
of the Peace return their informations and indictments.
There may or may not be at the time of such return, or at the
time appointed for holding the Court, any person inesse authorized
to hold it. The indictments and charges are in that Court, and
can be tried only in that Court, unless some other Court of
competent jurisdiction takes seisin of them. There is always
such a Court at hand. It is the Court of Queen's Bench in
England and the Supreme Court here ; a cl in a case of any difficulty 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 another tribunal { 4
Inst, p 73.) So that even if there be, by accident or design, a
temporary suspension of the sittings of the Court of oyer and
terminer and gaol delivery, there need not be any delay, far
less any denial of justice, in the investigation and final decision,
for want of a competent Court. But our Supreme. Court can no
more decide 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 tbe 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 bi
every case, is an exercise of the prerogative of the Crown. But
that prerogative is hedged round by custom, which is the privilege of the prisoner. The very first conclusion laid clown by
Coke (4 Inst. 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" i. e. the Justices in Eyre,  who in dignity came next to the dignity of the Judgment—-Regina v. McLeans and Hare. 11
King's Bench, and above the Common Bench, and Exchequer,
(C. 4 Inst. p. 163, first conclusion, see also 4 Inst. p. 185.) To
what end does Lord Coke draw this "conclusion" if no commission at all were necessary ? And the prerogative must be
exercised by commission (4 Inst. p. 162). Where it is exercised by writ, though addressed to the same persons who ought
to be named in a commission, and conferring the same powers
as are lawfully inserted in a commission "everything that was
"done under color of that writ was damned," (Co. 4 Inst. p.
163).     That 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 condemnation, of a Judge of the Queen's Bench assuming to hold
a Court of oyer and terminer without any authority at all,
whether by writ or commission. But every text writer on the
subject says that the authority to hold such a Court is wholly
and solely by commission, (Co.4Inst. 163,168,185,2 Hales P. C.
c 1 p. 56). And it is to be observed that the only communities mentioned in argument as having abrogated the necessity of commissions (namely in Ontario adequately, and in British Columbia tentatively) it has always sought to be authorized by Statute, and in British Columbia so late as the last session of the
Assembly. To what end is such a Statute, if the commissions
be already unnecessary ?
This was without doubt the state of the law down to the
1st Jan., 1875, and I think I have shewn that neither the Statute 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 "unless
" by express words.".
But then it was urged that if a commission of oyer and
terminer were 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 4Inst., p. 164,
may have had upon it, it was, in my opinion, put completely to
an end by issuing and notifying to the Judges the new commission of the 8-9th March, (ibid. 10th conclusion). As to
this, Coke does not say that the commission is to be different, 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—Regina v. McLeans and Hare.
return to the Lieut. Governor here, instead of, as invariably heretofore, 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 the Executive apparently, upon repeated consideration (for they had previously attempted it in
November) so important as to be indispensable.
If the new commission had been exactly in the very same
words from end to end (except the date) as the former commission, perhaps, notwithstanding Coke's words that would not be.
considered a new commission determining the former commission. That was my view in October last, when I was made aware
by the Counsel for the Crown of the subsequent identic commission which had been sent after me on circuit in such headlong haste. It was never shewn to me at all, but Mr. Robertson
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 determined, and I think that I was right under the circumstances.
The commission of the 19th Nov., however, 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 intended 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 suspended the commission of the 19th Nov., and the 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. 163, 165; and see particularly IE. 6 c. 7, from which-it would appear that Coke's dictum is more accurate than Hawkins', who gives no authority
(except, of course his own, which is very great) for the variation he introduces.
And in its turn, the commission ofthe 8-9th March was absolutely 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 maintained that the trial was lawfully held before the Supreme
Court ?   I apprehend that it cannot. 1
Judgment—Regina v. McLeans and Hare. 13
In the first place, the case was not in the Supreme Court at
all. The charge and indictment were sent up by the committing J. P. into the only Court into which he could send them,
viz., the Court of Oyer and Terminer. The objection which
was taken by the Court on the 16th February on the preliminary application concerning the venue, viz., that the case was
not before us—not in the Supreme Court at all-—arose again at
the trial with much greater force. The case might have been
brought into the Supreme 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. Prima facie the trial of a criminal so removed takes place .
at bar, in term time, before the full Court, with a special jury.
By A. 11, G. 4, and 1 W. 4, c 70, however, the Court has
power on a proper application to fix a day out of term for the
trial; but no such application was made to the Court, nor indeed could be, until removed; and the trial took place out of
teim time. The local Ordinances, fCons. Stats., Nos. 51, 53,
56,J render a full Court unnecessary. But the jury was a
common jury. Moreover, the mode of reviewing the judgment
after a trial at bar is different from the mode of reviewing a
trial at Oyer and Terminer, which was the Court held out and
promised to the prisoners. ('Chit. Stat. Crim. Law, 54.) See too
R. v. Lloyd, 4 B., and Act 135, and 11 G. 4, and 1 W. 4, c 70,
s. q.^ The tribunal of Crown cases reserved is not open to
prisoners tried at bar. The differences 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 by certiorari, either to send it to be tried in the
Central Criminal Coiu*t, or at Nisi Prius: sometimes in the
county or vicinage where the alleged offence was committed,
sometimes elsewhere.
The older and graver authorities say that the Queen's
Bench having once obtained seisin may not send a case back to
the Court whence it has been removed, to be tried there.
Co. 73. But this was altered long ago by 6 H. 8, c 6., and
subsequent statutes. See especially 19 Vic, c 16, (Imperial
Statutes, 1856,) -by which the Queen's Bench, after 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 removed into the Queen's Bench, the Court has to exercise its discretion as to the time, and place and Court where the issues
between Our Lady the Queen and - the prisoners shall be tried. 14 Judgment—Regina v. McLeans and Hare.
And those issues cannot be lawfully tried otherwise, or elsewhere, than as directed by the Court. But here the Court has
never had an opportunity 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 view to
obtaining a habeas corpus; nor could the Crown, having adopted
the commitments, and announced to the prisoners in the most
formal way that they were to be tried at a Court of oyer and
terminer, substitute in lieu thereof another Court for the trial,
without any notice, or agreement, or leave obtained. fAll this
is set out in the text books 4 Steph. B.C. 327-389: and at some
length in K, B. Pract. 393, et seq. See also R. v. Lloyd, 4 B.
and Ad. 135.)
The original jurisdiction of the Queen's Bench as a Court
of oyer and terminer of the first instance seems never to have
been exercised except at wha' was called grand inquests. These
were taken in term time and with divers other peculiarities
which were very properly pointed out by the Counsel for the
prisoners: and none of which were observed in the present instance. It is sufficient to remark, that it is not and cannot be
alleged that the proceedings at New Westminster were in the
nature of a grand inquest. That method of proceeding has
been for centuries obsolete in England : so obsolete that it had
probably ceased to be part of the law of England in 1858,
and , so has never been imported into this Colony at all.
It is described in the text books as an interesting matter of
archaeology, throwing light on the constitution and early practice of the Court of Queen's Bench, which for many generations
has never taken original cognizance of such matters, but only
dealt with them when brought before it by certiorari, hal-eas
corpus, or some similar proceeding which, according to the present practice, is always considered necessary before undertaking jurisdiction.
Nothing in the nature of a grand inquest has ever been attempted to be held in British Columbia. Stress was. laid on
the circumstance that the Province never having been divided
into counties, the jurisdiction of the Supreme Court is as complete 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 'o
Judgment—Regina v. McLeans and Hare. 15
to preside in a Court of oyer and terminer. No person, whether
Judge of this Court or otherwise, can do that without a commission. The Judges of the Supreme Court ought always to be
named in such commission; but other persons may be joined
with them, and the Court may (if the commission warrant it) be
held before the other Commissioner or Commissioners. Looking 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
non judi'-e, and that the proceedings are bad. And if it be contemplated as a sitting of the Supreme Court, I am equally of
opinion that the proceedings were bad, for that 1st. the prisoners had been informed that they were to be tried before a
different Court,"where the procedure and Judge and jury and
court of review may be different, 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 or otherwise. 3dly. The trial did not
proce d at times fixed by the Court, nor in the manner prescribed by law for the trial of such issues before the Supreme Court.
Being of opinion that the Judge had no jurisdiction, was
not in fact a Judge of that Court, it is quite immaterial to consider the subsequent points taken by prisoners' Counsel as to
the mode of summoning juries, etc. Those points it was very
necessary to take in argument, for prisoners' Counsel could not
be sure that we should agree with him in his first conclusion :
but agreeing as we do in that conclusion, that there was no legal
Judge of a legal Court there at all, it becomes unnecessary to
examine, and therefore 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 jurisdiction to administer an oath on the trial of the issues between the Queen and the prisoners.
It re'mains to notice the arguments which were advanced
by the Crown. That which was advanced at the greatest length
was, that the Lieut. Governor of the Province has no authority
to issue these commissions at all. 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 11th 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 beino- ultra vires, but as being unnecessary. That is express-
m 16 Judgment—Regina v. McLeans and Hare.
ly alleged as the sole ground for the cancellation.. If the commission'of the 8th March had been indeed ultra vires, and so a
mere nullity, then any cancellation would have beei unnecessary and perhaps in strictness itself xdtra vires. If the Lieut.
Governor has indeed no power to issue what professes to be
such a commission, it would seem at least arguable that neither
has he any power to caicel what professes to be such a commission. Indeed the power to cancel seems to be of a higher
nature and implies a more complete control than a mere power
to issue. However, the cancellation was not put upon any such
ground until long after the close of this trial—but the commission was expressly cancelled on the ground that it was unnecessary.
lt may be a very interesting question to discuss the power
of the Lieut. Governor to issue these commissions from time to
time. But it appears to me that the question is entirely irreve-
lanthere ; not even incidentally relevant. The question here is,
can a Judge of the Supreme Court preside in a Court of oyer
and terminer without a commission from any executive authority'? The Crown replies, " the Lieut. Governor has no power
to issue such a commission." That is evidently, taken alone, no
answer at all, even if it be well founded. The authority m y
1)3 vested in some other gre it officer, e.g. in the Governor
General. In Beg. v. Amer, under the Ontario Statutes and
commissions, which are I believe different from our's, one Judge
held that there was a concurrent power in each of them, the
Governor General and the Lieut. Governor ; another Judge
gave no opinion as to the power of the Lieut. Governor, but
held that the Governor General undoubtedly had the power.
The question is however incapable of being decided by us
in this case ; for it is, in my opinio , not material for the decision of the real point before us.
The prisoner says "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
I issue lhe proper commission.   You must find somebody else
' then who can.   If you cannot 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
I 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 unimportant as an answer to his argument to say that the prosecu- Judgment—Regina v. McLeans and Hare. 17
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 imaginary, and that the Lieut. Governor has ample power. Nobody seems to have ever been of any other opinion until some
time after the 11th 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 occasion. 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 terminer held at New Westminster at all.
The only 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, and 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
I oyer and terminer here. They never could have intended
| prisoners committed by the Justices of the Peace to remain
I untried indefinitely, and therefore, by implication, they must
" be taken to have intended that such Courts should be held
" by the Judges of the Supreme Court without commission."
It might thus be material, incidentally, 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 what it may be suggested (outside the Statute itself) to have had in view, or to
have intended to say or to imply. And in this very Act itself,
and in the subsequent Act of 1876, amending one of the scheduled Acts, the Dominion Legislature appear to have been by no
means well informed (e g.) as to the existence of Courts of General or Quarter Sessions. 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 ofthe  Act had never seen the 18 Judgment—Regina 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 inconvenience assumed by Mr. Robertson actually existed, neither
this Court nor the Judges of it, are justified in assuming a jurisdiction merely because they think it would be convenient.
"It is not," says Lord Chief Justice Cockburn in the Queen v.
Lords of Treasury, L. R. 7, Q. B. 394, "it is not because other
" remedies are inconvenient, or tedious, or even quite futile,
" that we are 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 £100. What would he havesaid
if four lives had been at 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 Martin v. Maclionodvie (2 L. R. Q. B. Div. v. p.
749, 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 incapacitate this Court from trying all offences, just as it may try all
civil issues; only as has been said, they must be brought into
this Court. We cannot try either a civil or a criminal issue,
although most clearly the subject matter is within our jurisdiction, 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 11th March last, entertained the least
doubt as to their capacity to issue a commission, the bare allegation of such a doubt would have been very strong ground for
obtaining a certiorari to remove the 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 England previous to which some such application is not made.
And in 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 Judgment—Regina v. McLeans and Hare. 19
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 in support of the validity of the late sittings at oyer and terminer,
was, I venture to think, as peculiar, and as irrelevant, as the
last. It was, that ever since Confederation,—I believe it was
said, ever since the foundation of the Colony in 1858,—the
Courts of oyer and terminer und gaol delivery have, in the great
majority of instances, been held by the Judges of the Supreme
Court without anv 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 admitted that at least one, issued within the last eight or nine
months, namely, that issued for myself alone previous to the
last Cassiar circuit, (August 1879) had escaped, attention I
had not the curiosity to enquire whether other omissions existed. On the face of the affidavit itself however, it appears
that there are in the Executive offices memoranda of thirty-six
such commissions having been issued in 21 years, since 1858..
As each commission authorizes the Courts of an entire circuit,
as there have never, I think, been more than two circuits in
any year : and in some years only one circuit, the list of commissions would probably authorize ill the Courts th it have
been held. The use to be made of the affidavit was, to prove
the practice, and so, the law of the constitution of the Court.
If Courts had been habitually held without a commission, that
practice of the Courts would be evidence that a commission
was at least deemed unnecessary, and an indication that it actually was unnecessary.
Accordingly it was attempted by two of the Counsel for
the Crown (in justice to whom it is to be said that they rarely
attend assizes) to persuade the Judges, against the evidence of
their senses, that for 96 Courts of oyer and terminer 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 Mitchell v. Henry the present Master of. the Rolls
makes some lemarks, in exceedingly plain English, on what he
calls an attempt to persuade 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 hitherto tacitly considered these commissions
unnecessary, and had generally acted on that opinion—which is
the exact opposite of tbe truth—the commission would be evidence of their extra-judicial opinion only, and would not bind 20 Judgment—Regina 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
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 altogether irrelevant. What we have to consider is, not whether
96 Courts have been held irregularly, but 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 responsible for all the consequences of a failure of justice—if failure of
justice there is to be. But this allegation does not commend
itself to the 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 Executive to the Judiciary. It cannot be the Judiciary who disturbed 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 notwithstanding. 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 passes 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 reason or of truth, which we do not feel that it has.
It remains to be considered what order is to be made on Judgment—Regina 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 inflexible to refuse to take any step which might even temporarily
enlarge the prisoners until they have been legally tried and acquitted 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 fit; either to go free, or to be remanded back to custody. And it is scarcely prejudging matters 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 'bly be, in any case, an unnecessary expense and trouble to issue the writ, much more to bring up
before us the bodies of the prisoners. But what we find .'is
this :—The gaoler alleges two causes of detention, one the sentence of Mr. Justice Crease, the other a warrant of commitment by Mr. Senator Cornwall, J. P. The rule nisi was
obtained on the sole ground of the invalidity of the sentence,
and the various informalities at the late alleged trial. With
these objections we agree, and we consider that the prisoners
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 impeached. I think therefore, the proper order is to remand
the prisoners to be held in custody according to the exigence
and tenor of such last mentioned warrant.
Crease, J.
This was a rule nisi for a habeas 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 prisoners, 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, iin-
" stant, why a writ of habeas corpus should not issue to the
I Gaol-keeper requiring 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
I the Court without the writ actually issuing or the personal
" attendance of the prisoners in Court."
It came on for argument before the full Court, consisting of
the Honorable Chief Justice, Sir M. B. Begbie, the Honorable 22 Judgment—Regina v. McLeans and Hare.
Mr. Justice 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. Rocke Robertson, Q. C, appeared for the
Crown against the rule, and Mr. Theodore Davie, and Mr. W.
N. Bole, for the prisoners, in support.
The circumstances which led up 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 time 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
supporting authorities, that concurring as we do generally in his
views thereon, it is unnecessary to dwell upon them again at
any length.
For convenience sake I have inserted the authorities on
which the following observations are made at the end of the
Judgment—the 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 other trial and sentence at the late
New Westminster assize, but of every trial and sentence passed
for every crime, from murder downwards, which has been had
for several years subsequent to Confederation, throughout British Columbia.
The Attorney General, (Mr. Walkem, Q. C.,) stated
that the Crown made no objection to the issue of the rule although in a position to do so, as it was the wish of the Dominion and Local Governments to ascertain through the Court
the question, whether any commissions of oyer and terminer
are necessary 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
said that we do not claim that the prisoners could go without a
trial, but merely that this was no trial. Judgment—Regina a. McLens and Hvare. 23
The Chief Justice—There is no need to labor on that point.
The Registrar read the return of the gaoler at New Westminster (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 Columbia. 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 Legislature 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 prisoners having been tried by a Judge of the Supreme Court, convicted and sentenced, it is a good sentence and conviction.
2. If such commissions be necessary, then the Lieut. Governor cannot issue them as the right of doing so belongs exclusively to the Governor General.
The Chief Justice—Does this apply to the point ?
Attorney General—I am looking at it ah inconvenienti.
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 proposition, cites the proclamation of Sir
James Douglas of 8th June, 1859. Consol. Stats., c 31, s. 5.
contending that more extensive powers cannot be found than
are in this 5th section.
By the local statute or proclamation of 1858, the Common
law of England was introduced, but not (he contended) the prerogative 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 powers 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 separate 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 the English Courts at Westmin- 24 Judgment—Regina v. McLeans and Hare.
ster or the Ontario Courts at Toronto. The Court could sit
anywhere in British Columbia, and has always done so, first by
one Judge, then by two, now by three.
The.Chief Justice—There is an old Act, about December,
1858, or early in 1859, in British 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 traced 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 Richfield, between
June and October or November ; at Yale, Lytton, Williams
Lake, Beaver Lake, Quesnelle Forks, and Clinton ; principally
at Richfield, three or four months in a year.
It had exercised jurisdiction in common law, equity, bankruptcy, lunacy, probate, divorce, county court appeals, appeals
from Gold Commissioners' courts, by virtue of its inherent powers, and without commission. By sec. 18 of the Gold Commissioners' Proclamation, an old statute of 31st August, 1859, a
prisoner might appeal to the next assizes. That, 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 as identical with assizes, which
he conceived was a statutory declaration that they are equivalent terms. Sec. 17 of No. 90, Revised 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—thaf criminals could be brought before the Court  by indictment.
The Attorney General contended, the commissions were
mere surplusage. That the Supreme Court exercised most ample powers in Court or in Chambers from 1860 to 1869, and
down to 1880. That all civil cases were tried without commissions 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 Secretary, 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,  ln 1875, 22 Assizes and no commission.   In 1877 Judgment—Regina v, McLeans and Hare. 25
13 were held without commission. In 1878, three without commission, and in 1879 twelve Assizes were held without aommis-
sion. He argued respecting it that each Court of Assize held at
each town exhausted the commission, and that the next one required a new commission; and that all the Assizes held without
a new commission for each Assize town was an Assize held loith-
out 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
were 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 commission) 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 were, I contend, defunct, and though read, Assizes held under them, mean, as I construe it, Assizes held " 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, 96 have, been held without commissions.
That is my broad proposition, whether I am 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 Lordships, is
approximate only, both as to assizes and commissions. Yet I
do think it approximate. I can only give what I get from the
records. Valeant quantum. There were a certain number of
commissions, and a certain number of assizes held, as we contend. The Attorney General then drew the distinction between
the different 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 England the circuits and the times in each year are prescribed by
Statute.    Here by our local circuit Act, he contended, a similar 26 Judgment—Regina 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 contended therefrom that the issue of the same commission to the
same persons in March 1880 would not supersede the commission 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 otherwise provided or inapplicable. The English practice calls for
The Attorney General contended for a distinction between
jurisdiction and prerogative, and cited the case of Morris, in
one of the Islands (St. Christopher) tried by Governor's commission of oyer and terminer, in an unorganized part
of an organized territory where a Court had been established, and in operation in an organized part of the same
territory; where it was held that the trial, under such commission, was good. From which he concluded that criminal law
prevailed, but the mode of exercising it did not import the prerogative. He then continued the history of Canada. Prior to
1791 all Canada was called Quebec, ln 1791 it was divided
into Upper and Lower Canada with separate laws and Government. In 1838 Canada again became one. Into Upper Canada English law was imported much as in British Columbia.
The learned Counsel then read the various Upper Canada consolidated 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 commission
" 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
The Chief Justice—Who is responsible then for the advertise- Judgment—Regina v. McLeans and Hare. 27
ment of 17th Feb., 1880, signed by the Provincial Secretary,
in the Official Government Gazette, that there 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 newspaper. He cited, in continuation of his argument, Blackstone,
'6, 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 Richfield; for there is no local venue in criminal matters in British
Columbia. The venue in all indictments is "British Columbia," not New Westminster, Yale or any other place. He then
contended that the whole country of British Columbia must be
treated 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 the Supreme Court on circuit. He continued that under 13 E. I, and Stat. West. 2, the
Nisi Prius Court has jurisdiction in criminal matters. Cites
Consolidated Statute, 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
sect. 2 of the Act, and therefore, he says, includes Circuit
Crease, J.—That Circuit Courts Act was a hasty, ill-considered Act, passed under a misapprehension; 1st, 2nd and 3rd
readings, by suspension of Standing Orders, in a few minutes,
ere the ink was dry.
Attorney General—It was necessary to enable the Executive 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 by the printers, not by us ; probably from our M. S. S. sent on "unaltered by the Colonial Secretary to the printers. The test is this : they wanted to charge
us for one 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 Executive.    That test fixed the right exclusively in the Crown.
Mr. Walkem—Then it was taking a liberty with the Judges'
names. But to continue. In 1873, terms were first appointed; after Mr. Justice Gray came to the Province. A great manv of the assizes 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 first day of Term for motions for new trials, and to enter
judgment non obstante veredicto.
Per Cur.—The making of those rules was to accommodate,
not harrass, the public and suitors. It was not to limit,
but expand 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 arbitration, etc.
The Attorney General stated that he had gone through the
practice for twenty years, and found if to be a variable practice.
If we applie done part of the rule he had cited for determining commissions, 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 inapplca—
ble to the Colony in 1858.
The Attorney General— We cannot draw comparisons between England and British Columbia ; the countries are too
Mr. Theodore Davie here read the affidavi of J. C. Prevost, which was put in and some commissions annexed, which
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 referred 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—Regina v. McLeans and Hare. 29
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 asfar as he could find out. He also gave copy
of the order of the Executive Council of 14th Nov., 1879. This
was the first 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 "auxiliary 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 Justice—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
The Attorney 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 jurisdiction ; also pages 142, 144^ 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 ol oyer and terminer is ever given
for Middlesex. Here, in British Columbia, in one commission \
there are two commissions, gaol delivery, and oyer/md terminer (p. 148). The learned Counsel then read extracts from the
Judges- memorandum, suggestions and comments on the Judicature Bill, and Act of 1879. and their correspondence with the
Attorney General and the Local Government on the same subject ; particularly their passing suggestion on one clause in favor of legislation that assizes might be held without commission, and incidentally stating the parctice to be "that the Government name the assizes which the Judges virtute officii hold.
This, he alleged to be confirmatory of his present position.
The Chief Justice—That observation you have misinterpreted ; and it was in the next note withdrawn as interfering
with criminal procedure, which belongs exclusively to the Dominion, not the local Legislature ; and we said this would  im- 30 Judgment—Regina v. McLeans and Hare.
peril the Act. I do, and did think, that if properly done by
Statute of the Dominion, Courts of oyer and terminer might
be allowed to sit without a commission.
The Attorney General—This Cour.t now sitting is not sitting as a Court of Appeal; but only to obtain an opinion by
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.
The Attorney General had studied the Chief Justice's Report 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 37 Vic, c 42, s. 5.
The Chief Justice;—We give the Circuit Act as much in
your favor as we can by considering it a nullity. There are no
districts to which it applies, and without districts, even if otherwise practicable, it could not be worked.
The Attorney General cited sec. 5, Dom. Act, 37 Vic. c 42,
1874, in force in British Columbia since 1875, as to the probable unconstitutionality of sec. 14 of Judicature Act, and gave his
opinion that the no commission clause was constitutional 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 Justices 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 try all felonies, and condemn to death ;
what record or other authority was there to bring the prisoners
before me as Judge of the Supreme Court?
The Attorney General—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 British Columbia Judicature Act 1879, he considered the section
constitutional, because granting commissions is a matter of prerogative, not of procedure.
The Chief Justice— How do you summon the jury except Judgment—Regina v. McLeans and Hare. 31
by writ of venire facias juratores, under authority from the commission ?
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. 565.
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, as to his II Proposition, as to who may
issue such Courts in B. Columbia, says: If a commission be necessary, none but the Governor General can issue it. 27 Hen. 8,
c 24. Chitty'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. 113, 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 Beg. v. Amer, 42, U. C. Rep. Q. B. There Sir W. Richards 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. Chalmer's Opinions,
(Governor) Forsyth, do. The powers of a Governor are prerogative rights to a certain extent. He instanced Governor Seymour, who had power to issue commissions of oyer and terminer, but only by permisson of the Queen. So also 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. Itis s. 146 which treats of the admission of other Colonies, at the end of the Act. Page 53, | the provisions of this
Act," cites sec. 10 of the Order of the Queen in Council sanctioning 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. 32 Judgment—Regina v. McLeans and Hare.
1879, as made after Mr. Blake's and Lord Carnarvon's correspondence 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 •
boundaries of Ontario, at the time of the B. N. A. Act, 1867.
Cites Lenoir v. Bitchie 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 the
idea that the Governor General had specially conferred upon the Iroutenant Governor the power of issuing any
commissions at all, in contradistinction, to the powers conferred
on the Governor General, except such as the Lieut. Governor
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 has power
only as he is commissioned to execute the special powers with
which his commission clothes him. Fabricas v. Mostyn, Smith's
leading cases. Hawkins, vol. 2, cap. 5, sec 1, commissions
belong to the Crown.
As to Proposition III., affirming the validity ol the commission 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; and to the
Order in Council approved on the 11th March, which cancelled
the commission only of the 8th-9th March, but leaves the commission of the 14th November, 1879, untouched. There was
no animus revocandi when making that General Order in Council.    That was evidently intended to last.
Per. Cur.—Why then did the Lieut. Governor in Council
issue another commission on 8th March ? With your contention it is difficult to see why they should issue another commission. ■
The Chief Justice—The commission of the 8th March was
different from that of November. The difference between returning it to Victoria and Ottawa, to which the Executive attached so much importance. [He then gave the history of the
commission as contained in his report to the Minister of Justice.] That isa different commission. A new commission
brought to our notice, and annulling the old one.
Crease, J.—I offered to go even under the commission of Judgment—Regina v. McLeans and Hare. 33
the 8th March, if they would not hold me responsible for any
failure of justice which might arise from such a change in the
words of the commission.
The Chief Justice—As to assizes having been held without
commission, the contrary is the fact. The records of the Provincial Secretary's Office are no records at at all. Look at the
Cassiar commission, it is forgotten altogether, though issued
only a few months before.
[The Chief Justice gives the history of the commission and
the chase after him to New Westminster and Yale, to supply
him with a commission identical with a commission he was supposed to have accidentally left behind.]
Crease, J.—I wish again to fix your attention on my former
query: What was there to bring the prisoners for trial before a
Judge of the Supreme Court ?
The Attorney General—The 37 Vic, cap. 42, sec. 5. As to
Orders in Council, I have not mentioned it, but there are
38 Orders in Council for,assizes. I conclude no commission is
necessary, because the commission of 14th November was still
subsisting. This commission of 8th March may be considered
to hiive been still born. Where subsequent commissions have
been missingin the Supreme Court, old commissions have been
used. I have, I think, a sort of a recollection that once in
Richfield in the absence of a special commission-an old one was
so used. One signed by the same Governor to the same Judge
during the same Administration. This commission of the 14th
November being therefore, as I contend, subsisting and present
and good? the trial and conviction are also good.
Mr. McCreight, Q. C, following the Attorney General
against the rule Nisi, read Governor Frederick Seymour's commission, and the power therein given to him by the Queen to
appoint Judges and Commissioners of_Oyer and Terminer, etc.,
for the administration of the law. Me then read Lieut. Governor Richards' commission, which contained no such express
power ; and argued he had no power to make any commission
besides those of Justices of the Peace which he had only acquired by, a particular Statute. A prerogative power had not
been given to him by the words of the Queen's commission.
He contended that the Lieut. Governor's powers are defined by
the B. N. A. Act, 1867. That sec. 12, thereof gives all his
powers, authorities, and functions to the Governor General; and
that  this  section, taken in conjunction with section 64,   as to 34 Judgment—Regina v. McLeans and Hare.
Nova Scotia and New Brunswick, and 65, Ontario and Quebec,
go to shew that British Columbia is in the same position with
these latter two Provinces ; and he believed Mr. Blake is reported to have said as much.
Gray, J.—Those are provisions for Ontario and Quebec
alone.    Look at the whole Act.
The Chief Justice—Sections 64 and 65 do not apply to
British Columbia, because the Terms in section 10, between
British Columbia and the Dominion affect the construction.
Mr. McCreight agreed with the Attorney General that the
Lieut. Governor's commission of oyer and terminer was not necessary, was useless, and even dangerous. That the Governor
General's commission is not necessary ; and that the Dominion
Act, 37 Vic. c 42, sec. 5, gave the power to the Supreme Court,
and this trial properly took place under that Act; and that all
those assizes which purport to be held under Lieut. Governors'
commissions are dangerous. No member of the profession will
advise without a distinct declaration of the Court whether a
commission is necessary or not. He was not quite clear there
would be another chance of a fresh trial, if this one should be
declared null. Suppose the prisoners tried at Kamloops under
the Lieut. Governor's commission, it is difficult-to say what a
final Court of Appeal would decide as to the validity of a trial
so held. He confessed that his argument was embarrassed by
No. 10 of the Terms. Under section 65, if British Columbfa
were the same as Ontario and Quebec, the Lieut. Governor
would have all the power of the former Governor here. Mr.
Blake, he had been told, thinks sec. 65 applies to British Columbia
Has the Lieut. Governor any statutory power to grant such
a commission ? The expression oyer and terminer is not found
in any British Columbia statute. Cites cap. 103, Consol. Stat.
Sec. 2, (English Law Ordinance 1867) suggested (but no
more) that under that was introduced the prerogative of holding Courts of oyer and terminer. Governor Seymour's commission, with a special power of issuing commissions of oyer
and terminer, etc., showed that section did not divest the Governor of the prerogative, which was not introduced by special
The Chief Justice referred to the Insolvency Appeal case
before the Privy Council, showing that the words "the Judg-
" ment shall be final," did not shut out the prerogative of the
Mr. McCreight cites Beg. v. Amer, 42 U. C. Q. B., where
Harrison, C. J., says,  "The administration of justice belongs Judgment—Regina v. McLeans and Hare. 35
'to the Crown." Therefore he argues that the Lieut. Governor has no power by statute to direct Courts to beheld. That
the tenor of legislation in the Colony confirmed it. For laws
had been passed to appoint Justices of the Peace and other
powers and commissions—Coroners, Policemen, etc. Therefore the Lieut. Governor has no prerogative power. Therefore
no power to issue a commission of oyer and terminer, etc.
In Ontario an Act of the Legislature made before Union,
empowered the Lieut. Governor to make Courts of oyer and
terminer. If it were existent before Union, non constat, that it
was handed down after Union, and could be exercised by him,
(p. 403). Clarke had doubt about it, because by sec. 12 it
came to the Governor General. Harrison, C. J., said, (p. 407),
I It may be questionable if the Legislature had any power of
I dealing with commissions of oyer and terminer, as applied to
" an unorganized district."
The Chief Justice.—Your argument would make us appear
to be an unorganized district.
Mr. McCreight—I am not sure that British Columbia is
not an unorganized district, for it is not divided into counties.
A Court of oyer and terminer cannot be held here owing to the
absence of districts. The only suggestion left, if the Lieut.
Governor has no statutory power, and no prerogative power,
would be the force of practice. The evidence, I contend,
proves that the practice has been to do that which is not
legal and cannot be made law. The mere circumstance of
Judges having acted on Lieut. Governors' commissions of
oyer and terminer for a succession of years, could not give the
Lieut. Governor, by construction or implication, a statutory
power 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 corroborative proof of what the law is.
Mr. McCreight—Besides, according to an affidavit read
here by the Attorney General, the Judges have held 96 out of
132 assizes without commissions.
Gray, J.—That statement, Mr. McCreight, is incorrect.
From my own personal knowledge of all the assizes held before
me a commission has always been read.
Mr. McCreight—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. Buledo  shews 36 Judgment—RegiNa v. McLeans and Hare.
how much Lieut. Governors' powers are restricted. Practice
is no proof of the law. lt is coextensive with the probability of
a practice being challenged. Cites sec 14 B. N. A. Act, 1B67,
contending that under that Act the Governor General might
have been able to delegate the power of issuing commissions of
oyer and terminer to the Lieut. Governor. But no such instructions were given. It is easy enough to account for the existing
misconception having continued for so many years unchallenged.
Judges and prisoners and practitioners seeing this 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 years, the practice
never having been challenged. But the acquiescence of all parties 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 facto, prerogative power of the kind, nor any authority derived
through practice as evidence of the powrer. The fact is that all
this time it drifted out of the minds of Judges, prisoners, and
Counsel altogether to enquire 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 required authority.
Waterloio v. Dobson, 27, L. C, Q. B., p. 65, dealing with the
County Courts Acts, is in point, if your Lordships will refer
to it.
The Chief Justice—The words are very strong, as applied
Mr. McCreight—Courts of oyer and terminer are not applicable 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,
while 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—Regina v. McLeans and Hare. 37
the other at Nisi Prius under the same roof.
Mr. McCreight—The commission of oyer and terminer presupposes 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 inapplicability of a commission of oyer and terminer to British
Columbia m 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
t as lawful jurymen in oyer and terminer.
Per Cur.—They are called "legates homines." Here there
is a law which makes them all '"legates.."
Mr. McCreight—But they are to be "de ballivis."
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 Columbia. The very words of the Act, sec. 5, negative the idea of a
Court of oyer and terminer.    He next endeavored to  support ]|l
his views by reference to the Circuit Courts Act of 1872, contending 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 Columbia 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. 164. Justices of Oier and Terminer, as to offences
prohibited 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
anglice, 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. 35, 38 Judgment—Regina v. McLeans and Hare.
to the effect that the trial imports the sentence There sentence
was passed out of Term time, overruling the obiter dictum 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. 161, "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 would
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,
(6 Viner's Abridg., p. 555,) and only in latter years a stationary Court. Here the Supreme Court had always moved wherever it thought fit, and had not yet been made stationary, but
could run over the whole Province. It coulcl consequently as a
Supreme Court, under section 5, try any felony when and wherever 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.
Mr. 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 March and subsequent days, a Judge of the
Supreme Court of British Columbia at New Westminster without commission tried the prisoners. They were found guilty
of murder, and sentence of death was pronounced. Did he
possess the power inherent as Judge of the Supreme Court virtu-
te officii so to sit and pass sentence ? In considering the authority 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 and criminal. The Statute does not make a
fixed Court. If it had. the question would have 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 ot criminal jurisdiction, but also a latent prerogative power, in the Governor of
the then Colony, to issue commissions of oyer and terminer.
This was actually exercised in 1864, when it was a Grown Colony, for in that year Mr. Justice Crease,   then H. M. Attorney Judgment—Regina v, McLeans and Hare. 39
General, upon a sudden and pressing emergency, when the
Chief Justice was away in Cariboo, was appointed a Commissioner of oyer and terminer, etc., and sat as such, under Governor 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 terminer, 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
20th July 1867, the date of Confederation, when British Columbia ceased to be a Colony and to have a Governor with
these prerogative powers. In exchange a Lieut. Governor was
appointed under the B. N. A. Act, 1867. The learned Counsel
contended that the only Court left existing then was the Supreme Court, the only Court kept alive by the B. N. A. Act.
He then read section, 129, B. N. A. Act, 1867, continuing com.
missions, etc., and argued that theie was no continuing commission 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 Valine. Langlois, 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 constitutional Act, for 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 several judgments in
the case of Chief Justice Ritchie, and. the Puisne Judges, Henry, Taschereau, Gwynne and Gait, the learned Counsel contended that tbe Canadian Legislature had taken upon itself to
say, if it likes, that it will forbid all Provincial Courts from exercising 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.
ditional jurisdiction on the Provincial Courts.    He also cited
Plum v. Hughes, p. 272, same report, to the same effect.
Per Cur.—You need not labor on that point, Mr. Robertson. We are all agreed that the Dominion Legislature has
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 several 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, either 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 Vic, c 42,) they
have excluded certain .Courts, and rendered it unnecessary to
do anything else, or employ any other authority, except* the
Court which is there denned and laid down. Ergo, that hy saying nothing of Courts of oyer and terminer, general gaol delivery, etc., these are excluded and unnecessary. That when the
Dominion Legislature says a certain Court now existent shall
deal with certain matters, the Act would be inoperative if it
could noi; create the process by which to cany 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 Columbia, its Acts and necessities and legislation, imd its geographical peculiarities which the learned Counsel for the Crown presupposed in them when framing sec 5. In one Act they give
appeal from magistrates to the Quarter Sessions. When informed there are no Quarter Sessions in British Columbia, they
make a new law, repeating the same mistake. Jervis's Acts
were 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 Confederation, to make Dominion law current in British Columbia
—that is before we were represented in that Parliament—
•and similar things which it would be unnecessary and invidious
to mention. Judgment—Regina v. McLeans and Hare. 41
The forms in these Jervis's Acts and the Dominion Criminal Procedure, recognize Courts of Oyer and Terminer, though
these forms are not imperative, as existing alter Confederation.
These forms are identical with the same forms in Jervis's Acts.
Mr. Robertson contends that assuming that to be the position, still practice does not make law; it would require a special
Per Cur.—The Jervis Acts have been in incessant practice-
here in British Columbia ever since 1858. There were laws as
to libel lately introduced into Canada, which are old laws here,
and always law here. These forms have been alwavs recogniz-
mg 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 effect.
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 you .read sec. 42 of the Procedure
Act ? That saves the forms existing in British Columbia at its
Confederation with the Dominion.
Mr. Robertson—Chapter 94 of Revised Statutes has altered the Jury Law, formerly in force, done away with many difficulties, and 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 terminer 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 Court 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 virtute officii as commissioners 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 Ontario. But there it was by statute. 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—Regina v. McLeans and Hare.
the Criminal Court of the Province for the trial of all felonies.
Begina v. Whelan, 29, U. C. Q. B., p. 1. Plum v. Hughes, 29,
U. 0. Com. Pleas, 261, and having full power to create and apply process to carry out its own jurisdiction, had properly sat
and applied the process at its command in the trial of the present 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 Crown. First, Had the Judge at
New Westminster any power to hold that Court without a commission 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 British Columbia, 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, XXXVIII, 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. 73, Gude's
Crown Practice 5. Blackslone IV, p. 265. Stephens' Com.
IV, 387. Hawkins, P.O. 2. King's Bench summoned two Grand
Juries in a year for trial of indictments. In Term time, quoting 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 record from King's
Bench to Nisi Prius. Scotland and Grady's Crown Practice,
pp. 43 and 50, lays down the mode of triaf.
Per Cur.—The question is whether the Court which sat at
New Westminster was the Supreme Court sitting as Queen's
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 necessary for the Court at New Westminster, that there should be a
commission, whether of Governor General or Lieut. Governor.
He considered a commission was necessary, 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 commission by holding an assize without adjournment, from p. 26-.
And that any offence may be proceeded with in any Court of oyer Judgment—Regina v, McLeans and Hare. 43
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, 34, 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, 23, 31, 39; also
Coke's 4 Inst., 161, 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)showing 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 was 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 those commissions into British Columbio.
Gray, J.—Re-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 commissions that had been granted for holding assizes. From its
meagreness of details, and inaccuracy of statement, which had
been already sufficiently shown, those affidavits and their annexes 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, however, is that it introduces a revolution in the practice by abolishing Courts of oyer and terminer. If so that ought to be specifically mentioned. But, he conceived, that in order to enable
Judges of the Supreme Court eo nomine to exercise all the powers of the commission of oyer and terminer, etc. as accustomed,
special and express words in the Act of Parliament were absolutely 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 44 Judgment—Regina v. McLeans and Hare.
due course of law in that section he limited to the existing practice.
Per Cur.—The due course of law is to punish crimes as
laid down by these Acts, But in all these Acts there is not one
seintilla which affects the issue of commissions.
Mr. Bole—I take it that it is settled law that the Crown is
not bound by an Act of Parliament unless specially named therein. Even the operative words "Her Majesty by and with, etc.,
enacts, etc.," being mere ordinary and formal words and not
the subject of an Act, would not enure to take away her prerogative. 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 declared; because on the day
that Act. (sec. 5, 37 Vic, c. 42) was passed, the only direct
mode of trying criminals was by virtue of a commission. Sec.
1 neither varied, added to, nor took away any prerogative or
practice existing at that time. So that there was an absolute
necessity for a commission in order to enable the Judge who
presided at New Westminster to try and condemn the prisoners. After calling attention to Stat. 57, Geo, III, c 9, Assize
and Nisi Prius, and 2 Geo. IV, (1822) (which repealed 57 Geo.
Ill, c 9,) the Governor may issue special commissions of oyer
and terminer, etc., he left the decision in the hands of the
Mr. Robertson introduced the Criminal Calendars signed
by the Judges, all headed in type "In the Supreme Court of
■British Columbia," to' shew that in all these cases 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
postponement the papers are intituled "In the Supreme Court."
Mr. Theodore Davie—Yes, but in the Calendar the controlling words beneath, in leading type, are the special heading
"General Assize," which shews the Judges sat in Assizes.
Mr. Robertson—I contend the Judges did not sit as Commissioners of oyer and terminer. That requires a precept. In
no instance was the sheriff commanded, by precept to summon
juries, but only by Statutory authority, under Consol.- Stat. 94,
not by a precept under the hands 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 fit the circumstances of the Colony, and adapted to the Court
of oyer and terminer, etc. There is another point on which it
is  interesting, though irrelevant, to enquire as to the  relative Judgment—Regina v. McLeans and Hare. 45
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 process. He admitted Mr. Robertson's authority, but denied his deduction. Justices of gaol delivery may summon juries without writ. Therefore he should contend this is a Court
of oyer and terminer and gaol delivery.
Mr. Theoeore Davie, 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 the 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 delivery, as such tribunals have power to try prisoners only when authorized by
commission, and there was no commission.
2. A leg d trial before the Supreme Court, the only tribunal which could take cognizance of the alleged offence, has not
been had, because such Court can only exercise its functions
under the same 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 presentment was made, the Court had not cognizance of the alleged
offence, as the prisoners were never brought before the Court
by warrant, habeas corpus, venire facias, certiorari, or otherwise.
3. Granting the prisoners were properly before the Supreme Court, no jury 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
5. Although no direction or order according to the terms
ofthe Statute 2 Geo. IV, and 1 Wil. IV, 1 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 taken 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—Regina v. McLeans and Hare.
arising within British Columbia, and the 37 Vic, c. 42, sec 5
Dominion Act, the trial and conviction were good and valid.
The 5th section of the latter Act declares that "the Supreme
1 Court of British Columbia, and any Court to be hereafter con-
1 stitutedby the Legislature of the the said Province, and having
"the powers then exercised by the said Court, shall have power
■' to hear and determine all treasons, felonies and indictable
| offences whatsoever mentioned in any of the said 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 are empowered without any supplementary authority or commission, whether of Governor or Lieutenant-Governor,
to hear and determine all 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 Commission issued in November, 1879, and still
in force.
Now first on behalf of the prisoners, I must say here, 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 taking advantage of points of practice, and in procuring a
decision hereon, in view of calling Assizes, and trying prisoners,
with a possible risk in the distance, if there be no ruling of
this Court, of an executive pardon.
I came prepared to meet the point had it been seriously
advanced, but it is unnecessary.
He further argued that it was also immaterial to his contention whether the commission should be the Governor-General's or a Lieutenant-Governor's, for if a commission be necessary—but a Lieutenant-Governor's is illegal. Then if it be
illegal to hold this Court with a Lieutenant-Governor's commission, a fortiori, it will be illegal to hold it without any commission 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 yourselves in all other instances.     That I say on behalf of thepris- Judgment—Regina v. McLeans and Hare. 47
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 commission :
Journals of Senate of Canada, vol. XIH, 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. Act certain powers, authorities and functions were
" declared to be vested in the Governor-General."
Reciting the desire of making effectual and permanent provision for the office of Governor-General, adds these words:
" And 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 ofthe 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 Lome 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 Governor-General can
delegate that power or any of his powers to any person subject
to any limitation or directions given by the Queen.
By the above commission and sec. 14 of the B. N. A. Act,
the learned counsel contended the Governor-General had full
power to deputize and authorize the Lieutenant-Governor to
issue commissions, and the Judges were bound to consider
that he  had done so.
It is sufficiently apparent that at the time of issuing
the various commissions of oyer and terminer the Judges not
being otherwise informed, were bound to consider on the
principle of omnia rite acta presumuntur, that they were duly
authorized—for in B. v. Amer, 42 V.C.A.B. Beport 408, Chief
Justice Harrison decides that in the absence of evidence to the
contrary, all parties concerned were bound to believe that the
Queen had authorized the appointment of the Deputy Governor,
and that he was duly appointed.
r- 48 Judgment—Regina v. McLeans and Hare.
Now the Judges here had had no evidence to the contrary.
They had supposed the Lieutenant-Governor to have been fully
authorized, and had no right to question it. By the act of the
authorities, they were led to believe that the Lieutenant-
Governor had authority to issue these commissions.
The affidavit, of the Lieutenant-Governor for the first time
makes known the startling proposition, as is now contended by
the authorities, that his commission for want of " instructions,"
does not give him the power. All this time the Judges must
have considered that the LieutenantGovemor had "instructions"
which allowed the issuing of commissions if instructions were
necessary. The Judges were to presume prima facie from the
action of the authorities, that if the commission did not, there
were "instructions" which did give the power. From p. 43
(same case) the practice is for the Judges tu proceed without enquiring whether the Governor did decline to issue a commission.
The fact of the Judge sitting without a commission devolves the
responsibility on those who should, if necessary, have provided
it. The Judges do not carry about commissions. The
authorities have to provide all the machinery necessary for the
administration of justice.
The question to which I now desire to confine the attention
of the Court is: Whether in this case the Court had power to
try the prisoners.
Now in considering this I claim on behalf of the prisoner s
that a strict construction should be given in favor rather than
against them.
On this head the learned Counsel referred to and read the
dictum of Lord Chief Justice Cockburn in Martin v. Machon-
ochie, Law Reports, 3 Q.B. Div. 775 and 776. All proceedings
inpamam are strictissimum jus, even if in favor of a criminal
taken red-handed.
The Chief Justice—The language is very strong, but it cuts
both ways. A red-handed criminal must not expect to have
more than strictissimum jus.
Mr. Theodore Davie—That is all we claim.
The manner in which the Courts of oyer and terminer
originally acquired jurisdiction to try prisoners is found generally in Stephens'Commentaries, vol. 3, 433.
The first tribunal of which we hear the " Wittenegamote "
(assembly of wisemen) exercised at one and the same
time two kinds of power—deliberative and judicial. William
the Conqueror appointed a Chief Justiciar to lead the judicial
power of that Assembly.
King John severed both these powers—appointed West- Judgment—Regina v. McLeans and Hare. 49
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 Regis.)
Then by a fiction of the law arose with much public benefit
the Exchequer Court.
The Statute of Northampton, 22 Hen. Ill, established Justices in Eyre, for civil and criminal pleas in every county.
These were, abolished by the Stat. Westminster 2, 13 Ed. I, c
oO. The Judges then appointed, says Hallam in his Middle
Ages p. 318, had no.power to try pleas of the Crown without
permission of the Crown. They could only try cases by virtue
of their commission. Stephens' Com. vol. 3, give the four authorities, four Commissions under which the Judges in England
have ever since sat. They are 1st, of the Peace, 2nd, Oyer and
Terminer, 3rd. General Gaol Delivery, 4th, Assize and Nisi
Prius. These Judges are entirely dependent on their commissions. That was made manifest by the authorities cited by my
learned friend Mr. Bole and the Att. General. In Chalmer's Opinions, p. 472, Attorney General Murray, (afterwards Lord Mansfield) 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 the 13 Ed. I, c 30. That is very important, as it
shews that an Assistant Judge, like the Judges of the Supreme
Court of British Columbia, had no right to try prisoners
without a commission. In matters of procedure probably a
Judge, had plenary powers.
Per Cur.—It was an opinion of the Law Officers of the
Crown in refusing the local Act, "The Gaol Delivery Act 1860,"
that by refusing assent to that Act, they had definitely and conclusively prevented any Court of oyer and terminer being held
in British Columbia without a commission.
Mr. T. Davie—Smith v. The Queen is an authority that
the Judge who presided at this alleged-trial had no power to
try the prisoners. True, as Judge of the Supreme Court he
has always been, and is a Justice of the Peace without any commission to that 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 Supreme 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 the advertisement in the Gazette of 28th Feb. 1880) "to be holden at New
Hi ■(
50 Judgment—Regina v. McLeans and Hare.
" Westminster on Saturday, the 13th March," and continued
this until the prisoners had been tried, convicted, and sentenced to death.
It is inconsistent and contradictory to hold a Court of Assize on that day and suddenly turn round and say '' It was not
1 a Court of Assize, it is another Court." It is not competent
for the Executive to appoint one Court, and when that is attacked, 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 be
supported by-saying "Oh, but we have competent powers on
another ground." Chalmers's Opinions, p. 782, is conclusive
on that point. That a Court assuming to sit as one Court cannot be considered as sitting as another Court. By vol. 1, p. 339,
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 and Hawkins
shews that the tribunal was not a Court of oyer and terminer,
nisi piius, or general gaol delivery. There was no Court of assize. 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 Supreme
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 correspondence between
the Judges and the local a uthorities, on the holding of assizes
without commissions, and the interpretation put by the Government 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 the conclusions of
the Attorney General. Mr. Robertson objected'to them as irrelevant.
Per Cur.—You have a right to answer any objection which
has been advanced on the other side.
Mr. Theodore Davie put in correspondence on no commission and on the Judicature Act. [For correspondence etc.,
see Appendix.]    He read sec. 6 of Judicature Act as originally Judgment—Regina v,- McLeans and Hare. 51
framed, and the Judges memorandum and comments thereon,
also the letter containing their immediate withdrawal of suggestion to abolish the issue of commissions.
Crease, J.—The Executive have always from the first exclusively declared the assizes, and the Judges are designated by
Statute as the ipersons who should receive the commission which
is to set that Court in motion. They are the persons to hold
this commission virtute 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 Statute, which last part they immediately withdrew as probably interfering with criminal procedure.
Gray, J.—It must be remembered too that in England more
persons than the Judges are in the commission. The same seldom twice running. Besides, the fact that pointing out the desirability 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 dispensed 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 lam under great
embarrassment. The Crown has shifted its ground no less than
four times; and each of the positions assumed by the Crown
affords^almost a conclusive answer to the other of them.
First say they: There's no Court of oyer and terminer and
no commission. The Lieutenant-Governor can't give a commission.    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 and 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 necessary for my argument to produce the Judges'
correspondence with the Government.
Mr. Robertson objects, but on being pressed withdraws
the objection that the qnestion is the question raised on this
application, and on that correspondence can have no effect.
Gray J.—He has a right to use the correspondence if he
chooses.    The Judges don't want it.
The Chief Justice—If you abandon the right of the Government to place any weight on the Judges passing opinion on
the no commission clause, it need^not be put in. 52 Judgment—Regina v. McLeans and Habe.
Mr. Robertson—I have no right to abandon it, but must
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 advisable and
the counsel for the prisoners were refused the right of commenting on them.
Mr. Robertson then immediately assented to its going 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 oyer 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 place, 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 Constitution, the Act constituting the Court, 8th Jun<-, 1859, Con. Stat. c. 51 (Reads it,)
the Supreme Court has jurisdiction in all cases civil and
criminal as a Court of Queen's Bench. The learned counsel considered it has not only this, but inherent original jurisdiction
as well as derivative jurisdiction, i. 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 he 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. 0. 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 precedure.
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 the
Crown, p. 76, to shew that even our Kings without Parliament Judgment—Regina v. McLeans and Habe. 53
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 dissimilar 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 Crown 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 Exchequer 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 introducing terms. The mention ot vacation fixes it. In Blackstone, terms have come in as long as the christian religion has
existed here as the names imply, Hilary, Easter, Trinity and
Mr. McCreigM—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, neglectful 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 out of term. The long
vacation has always been the same here as in England. Here
there are more geographical reasons for terms, from the scattered country, great distances, difficult communications, and
the like, which call for legal divisions of the year. Besides
they have been recognized, though not constituted, in British
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 54 Judgment—Regina v. McLeans and Hare.
first hear of them—in the time of Alfred the Great.
Gray, 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
terms. In looking 'at the order of Court dealing with
terms, we must remember the distinction between recognizing
and organizing. The order of Court organized them so as to
adapt the terms to fit into the times of going circuit.
The Chief Justice—We acted under the protection of sec,
Mr. Theodore Davie—As to the difference between the
constitution and recognition of terms, the learned counsel said
in Ontario there was no special statute creating terms.
Gray, J.—It came in under the Act of 1802, or whenever
it was in Ontario last the common law was adopted.
Mr. Theodore Davie—1 find 22 Vic. c 18, recognizing
terms in the Ontario Statutes. There is an express recognition
of terms in the Judicature Act, 1879, by abolishing them.
The Common Law Procedure Act is one of the laws colonists bring with them. -
Cited Chalmer's Opinions. If not applicable, it rests on
the party attacking these to shew they are not applicable.
That they have not done. The Queen's Bench practice in
England is in force here.
Mr. Theodore Davie then proceeded to shew what practice
should have been followed here if the matter was to have been
heard before the Supreme Court as a Court of Queen's Bench.
As to the validity of his second proposition that the prisoners were never presented by a Grand Jury forthcoming according to law, counsel remarked: The jury differs according
to the Court. In grand inquests, which have long been obsolete, two Grand Juries were returned every term, according to
Scotland and Grady's Crown Prac, 43.
Only cases of misdemeanor are brought before the Queen's
Bench now. To bring the prisoners before the Court to answer the indictment, the usual way is by warrant obtained at
Judge's chambers.
The same author in page 50, says: 'Another mode is by
''. venire facias juvatores ''
I A Judge's warrant may be applied for instead of '' venire
The strict practice is by " venire facias." Archbold's
Crown Practice, says the usual way is by warrant from a Judge.
Distringas (used to compel jurors' attendance) is a sort of civil Judgment—Regina v. McLeans and Hare. 55
capture. To non estinveatus 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 habeas corpus in term time. By
Scotland and Grady's Crown Practice, page 182, prosecutor
may obtain a writ of • habeas corpus. After the defendant has
pleaded, and the case is at issue, then (Hawkins, sec. 2) a
nisi prius warrant issues. Nisi prius record is then taken upj
The mode of trying prisoners in the King's Bench is laid down
by Lawrence, J., in R. 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, at 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 in British Columbia no process was awarded by the Courts
trying criminals; but that is not so. When the trial is in the Court
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 warrant was granted (in this case)
was the strongest proof, Mr. Davie contended, that it was 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. According 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
them, a venire may be awarded and dated after the issue. The
form of Queen's Bench record carries that out.
Reads the form from Archbold's Crown Prac 71 et. seq.:
Where the Sheriff is "commanded to array a jury," &c
| Therefore let a jury come," &c
Mr. Theodore Davie then contended that jury process 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
I this Act takes effect [1 January, 1875,] or any practice or
"form in regard to trials by jury, jury process, juries, or jurors,
'' except onlyxin cases where such power or authority is ex-
" pressly altered by or is inconsistent with the provisions  of 56 Judgment—Regina v. McLeans and Hare.
"this Act." Now there is nothing in the Queen's Bench jury
process, &c, either expressly altered by, or inconsistent with
that Act, so that it still remans in full force. It is as strict
now as ever.
The Chief Justice—The case of R. v. Connor, shews how
a jury is to be summoned. The Nanaimo riot case was a case
in point. There a delay of two days was given to give time to
summon the jury properly.
Mr. Theodore Davie—Beg. v. Perrin shews how closely
that strictness is observed. There, in the venire facias the
words used were " therefore the sheriff, etc. 'caused' to come
12 men, etc.," held an error because the word "caused"
had been used instead of the word "cause."
Per Cur.—How much of the English Jury Laws is abolished bv the British Columbia Jury Act?
\J * C\ TT
Mr. T. Davie—In this case your Lordships mean? Here
the jurymen were good jurymen enough ; the sheriff might be
good enough ; but the question is, was he properly authorized
and set in motion ? That necessity is not changed by the Brit,
ish Columbia Jury Law. He then cited 6 Rule of Court, Hil.
Term, 1844, made by the Chief Justice and Judges of the
Queen's Bench, pursuant to 6 Vic, c 20, which prescribes the
jury process in Queen's Bench cases. Archbold Crown Prac,
XLlV, first part of book, and that the writ of venire facias jura-
tores is made returnable on a clay certain in Term. In the jury
-process distringas is made returnable in Term, also venire fw-ias.
The learned Counsel then contended that from a consideration
of the jury process necessary, this was not a legal trial. Conceding the Sheriff to be a proper officer, he must be properly
authorized; and the mode in which juries had been hitherto summoned 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, because 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 was 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 pretended 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 jury process seemed to him to have come too late.    There Judgment—Regina v. McLeans and Hare. 57
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, who prosecuted for the Crown, demurred and
his demurrer was sustained.
Mr. Robertson—There is no record made up, no proper
evidence of any ofthese things alleged was produced. The
Rule was granted on one point, and now Mr. Davie brings up
several objections for the first 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 Beg. 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. Davie—The fallacy of Mr. Robertson's argument is
that this Act does not touch the authority which is necessary
for the Sheriff to summon juries.
Mr. Robertson—The practice of the Court must have
weight. After 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 commission. It was only on the 11th March, at 8 p. m., that we heard
that no commission was necessary for the Supreme Court
Judges to try the prisoners at New Westminster.
Mr. T. Davie resumed the argument, citing the Queen v.
Castro, L. R., Q. B., Coke's 1st Inst., 2d book, sec. 20, note 9,
Chitty's General Practice H, pp. 362 and 363, on the jurisdiction 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 down in Term time into a county,
it superseded all other Courts, 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 Judgment—Regina v. McLeans and Hare.
The difficulty which occurred in this case need never have
happened ; for had an order been obtained in the usual way
under the Statute 2 G. 4 and 1W. 4, to allow the Court to sit in Vacation, the whole question would have been avoided altogether.
That is apparent from Whelan v. Tlie Queen already cited, and
Beg. v. Eyre, L. R. 3 Q. B. pp. 487 and 494, which prescribes
the return of Justices of the Peace, unless otherwise directed
by Statute, to the Judges of oyer and terminer, and shews that
the Court of Queen's Bench is not the Court in which ordinarily to try criminals, unless authorized by particular Statute, or
derivatively through some record, or other legal authority. As
to the last point of the Crown Counsel that the previous commission of Nov. 19 was in force, and in existence, and at New
Westminster. Queen v. Eyre 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 accordance with the Statute he had cited. Besides, he argued,
by Burns s Justice, p. 339, vol I, and Hale P. C. vol. II, (title
Justices), marginal page 25, a special commission cancels a
general one pro tanto. He argued also that a commission is exhausted from sitting under it, as was done with this one, in
November at Victoria; citing in support, Hale's P. C. as to determination of commissions of oyer and terminer, p. 35. He
does not say that new commissions must be to other persons to
supercede a previous commission. Hawkins said other persons;
but the only one who does so, and Hale is the latest, therefore
he considered the November commission valueless.
Mr. McCreight handed in Valin v. Langlois, 3 Supreme
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-
pelted m the interests of the prisoners, to occupy so much of
the time of the Court.
Per Cur.—Not^one word has been superfluous-. Curia ad-
visari voluit.
On the 26th June,  the Court having taken time to consider, the Chief Justice, Sir Matthew B. Begbie, Having rendered
judgment as already given— .
Crease, J.
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—Regina v. McLeans and Hare. 59
try and carry out by sentence and execution capital felonies.
Whether the trial was lawfully held, in a Court properly
constituted and before a Judge duly authorized, and a jury
lawfully capable of entertaining capital cases and conducting
the trial of them to sentence and execution.
A chain is no stronger than its weakest link; and if either
of these indispensable requisites be wanting, no trial has been
had, and then (under Stat. Henry VHI c 6; Coke 4 Inst. K. B.
cap. 7,) the prisoners will have to be remanded for trial in custody as before, until delivered by due course of law/
In order to determine with any certainty these necessary
points we have to enquire :
1st. The mode prescribed by law of administering
criminal justice in Vancouver Island and British Columbia
as separate Colonies, and from thence on to the union of the
two Colonies. From the Union down to Confederation : and
from Confederation down to the present time ; and see
how far the present trial has fulfilled the conditions required
by the criminal law as it now stands, in order to make it valid.
It is not amiss to state that in British Columbia "union" generally means the union of Columbia with Vancouver Island, and
"Confederation" the union of British Columbia with the Dominion .
Up to 1849, for the purposes of the administration of criminal law, Vancouver Island and the Mainland of British Columbia, being parts of America not within the limits of either
of the Provinces of Lower or Upper Canada, ( see 14 George
HI, c 83 J or of any civil government of the United States of
America, were all included as part of the Indian Territories.
Under 43, George III, c 138, the Governor of Lower Canada was authorized to create and empower Justices in the Indian Territories to commit offenders till conveyed to Lower,
for, in certain casesj to Upper Canada to be tried ("if British
subjects) for capital offences committed in the Indian Territories by the Courts of Lower (or Upper) Canada, and be punished
The Imperial Act, 1 George IV,c. 66, empowered His Majesty to create and appoint, by commission under the Great
Seal, Judges and Courts of Record in the Hudson's Bay Company's Lands as well as the Indian Territories (which last _ included British Columbia and Vancouver Island) with limited
criminal jurisdiction, transferring all capital offences committed
within these territories to be tried in the Courts of Upper Canada. 1  _
The  12 and 13 Vic, c 48, fon 28th July,  1849) repealed 60 Judgment—Regina v. McLeans and Hare.
the above Acts of George III and George IV, so far as related
to Vancouver Island, leaving the Mainland of British Columbia,
as to criminal justice, just as it was before For Vancouver
Island, then being colonized by settlers, it gave Her Majesty
power to make (from time to time) provision for the administration of justice in the said Island, and for that purpose to
constitute such Court or Courts with such jurisdiction in matters civil and criminal and such equitable and ecclesiastical jurisdiction, subject to such conditions and restrictions, and to
appoint and remove, etc., such Judges and such ministerial and other officers for the administration and execution of
justice in the said Island as Her Majesty should think fit and
It contained another clause to empower a Local Legislature,
when one should be appointed bylaw to make, under the Imperial
conditions and restrictions usual for Colonial legislation,   such
'/"j?alterations, etc,  as it should think fit,  in the constitution and
j* jurisdiction of these Vancouver Island Courts.   But as the Van-
4 vouver Island Legislature, wh^°__Jf ^as, cTigidfTpd_to have been
j created, did not effect any alteration in the cr iminal law-extant in
that Island, and especially the trial of capital cases, and possi-
s 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 with 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 Criminals under the four commissions of Justice of the Peace, oyer
and terminer, assize, and general gaol delivery, usual in England. This continued until the union of Vancouver Island with
British Columbia on 19th Nov., 1866.
British Columbia or the mainland had a legislative birthday,
namely the 19th November, 1858, the day of the proclamation
by Governor Douglas, at Langley, of the Imperial statute 21
and 22 Vic. c. 99 (2 Aug 1858) enacted to provide for the Government of British Columbia. That Statute after reciting and
repealing the 43 George III, c 138, and 1 and 2, George IV,
c. 66, enacted:—
" That it should  be lawful  for Her Majesty by Order in !_
Judgment—Regina v. McLeans and Hare. 61
I Council, &c, to make, ordain and establish and (subject to
"such restrictions and conditions as to Her should seem meet,)
I to authorize and empower such officer as she should from time
I to time appoint as Governor of British Columbia to make pro-
I vision for the_ administration of justice therein, and generally
I to make, ordain and establish all such laws, institutions and
"ordinances as might be necessary for the peace, order and
"good_ government of Her Majesty's subjects and others
"therein." Adding a provision for laying these laws before
both Houses of Parliament.
By another 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, &c,
" as to Her Majesty might seem expedient."
This Constitutional Act was to be set in force by Proclamation; which was duly made on 19th November, 1858.
The 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, praying for incorporation of that Island with British Columbia by Order [in
Council] to annex the Island to British Columbia; subject to
such conditions and regulations as 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 apply to Vancouver Island. Under this Act Sir James
Douglas was appointed 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 government 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 ihey were
" not from local circumstances inapplicable to the Colony of
I British Columbia, were and should remain in full force within
"the said Colony, till such times as they should be altered by
"Her said Majesty in Her Privy Council, or by him the paid
"Governor, or by such other legislative authority as might
1 thereafter be legally constituted in the said Colony; and that 62 Judgment—Regina v. McLeans and Hare.
" such laws should be administered and enforced by all proper
'' authorities against all persons infringing, and in favor of all
"persons claiming protection of the same laws."
Under another local Statute, dated 8th_ June. 1859,.
reciting that by a commission under the Royal Signet and Sign
Manual, dated 2nd Sept., 1858, Matthew Baillie_Begbie had
been appointed to be a Judge in the said Colony with 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 said
And that it Avas expedient to declare the constitution of
the Court of Justice of British Columbia, and to make provisions with regard thereto, enacted: " That the Court held be-
"fore the said Matthew 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,
' j shall have complete cognizance of all pleas whatsoever, and
" shall have jurisdiction in all cases, civil as well as criminal,
I arising within the said Colony of British Columbia."
Under these various authorities the Governor always appointed 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 Imperial Act, 29
and 30, Vic. c 671 repealing 21 and 22 Vic c 99, and 26 and
27 Vic. c. 83, the Colony of Vancouver Island was united
with the Colony of British Columbia, and became the Colony
of British Columbia, with a saving of existing Vancouver Island laws, until altered by competent authority.
The 6th section preserved intact the power of the British
Columbia Legislature to make laws for the united Colony.
The Consolidated Statutes, c 52, (the Courts Declaratory Ordinance, 1868,) Con. Stat, c 53. (The Supreme Courts' Ordinance, 1869). Con. Statutes, c. 54 (The Courts' Merger
Ordinance, 1870). Con. Statutes, c. 56. (The Puisne Judge
Appointment Act, 1872), effected the merger of the Supreme
Courts of Civil Justice of British Columbia and Vancouver
Island, and the Judges thereof, and the transmission of all their
civil and   criminal jurisdiction   and   authority   intact   to the Judgment—Regina v, McLeans and Hare. 63
present Supreme Court, and the three Judges thereof in whom
and in each of whom, it is now all concentrated. Con. Stat, c 56,
sec. 1. (The Puisne Judge Appointment Act of 1872J, enacted
that the Supreme Court of British Columbia may be held before 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 all criminal as well as civil cases.
The Court thus constituted has also, by an early Proclamation 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 with 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, &c. eo nomine, but the same 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 Supreme Court, until called into active exercise from
time to time by commissions from the Governor under authority
of the powers given him by the Imperial Act constituting the
Government of the country and the Queen's commission to him
addressed. These commissions were for various periods, some
for six months only—some were for an indefinite period, no
time being specified. First to a single Judge of the Supreme
Court, then to the two Judges; but subsequently and generally
they ran to the three judges by name jointly and severally,
to enquire, &c, into felonies wheresoever and whatsoever in the Province, by the "oaths, &c, and to hear and
"otherwise determine the said treasons and other the premises
" in our Province of British Columbia, according to the laws
" of this our Province for the time being in force. And also
'' from time to time to deliver the gaols, and every the gaol
'' within this our Province of British Columbia of the prisoners
"therein being, according to the said laws of this our Province
"for the time being in force, and also with power and authority
" &c, &c," (the other usual full powers,) concluding with the
words: " And whatsoever you or either of you shall do in and
I about the premises, you shall from time to time with all convenient speed return to us" (before Confederation at New Judgment—Regina v. McLeans and Hare.
Westminster or Victoria, whichever for the time being happened to be the capital of the particular or united Colony—
after Confederation) "at Ottawa, the capital of our Dominion of
" Canada."
The English form of commissions of oyer and terminer and
gaol delivery, Gude's Crown Practice, vol. 2, p. 373, as I shall
shortly more fully shew, contains similar words and powers ;
but it names the specific counties to which the Commissioners
enquiries are to be confined, and to hear and determine
all criminal cases and matters " at certain days and
"places which they, or any two of them, should appoint
" for that purpose." And no Return is directed or required of what should be done. This difference in the wording
is to be noted because according to the tenor of the commission, so is the duration of the power of the Commissioner.
It is not necessary here to determine the point, but the application of the English practice to British Columbia, must, of
course, be affected in point of law by the difference I have described, so as to make commissions which order gaol deliveries
"from time to time" thereunder, not terminable except by revocation, the issue of another and different commission, or cancellation.
If the commission were to expire with each gaol delivery
at each town, as contended for by the learned Attorney General, as many new commissions would have been required for
each circuit as there were towns. A practice which it is notorious in all the circuits in the Mainland has never been adopted, and where, with every Attorney General in the Province,
including the present, it is well known it has been customary to
issue only one commission for the whole Mainland circuit,
though embracing New Westminster, Yale, Lytton, Clinton,
Bates's, Quesnelle and Cariboo.
In this view nothing could be more inaccurate, or unworthy
the name of a record, than what was put forward as evidence
by the Crown of the particular assizes held here since Confederation, as affecting to illustrate that they were held without
It becomes, in the face of the facts which came out in
Court, as prisoners' Counsel not unfairly described it " a certificate of no record," properly so called. It only
purported to give what the makers of the affidavits to which
they were annexed, were able to collect or found in their possession. Only one or two commissions in Lieut. Governor
Trutch's time were endorsed "recorded" on such a day. Some
I have some recollection of not even alluded to in  this list. 1
Judgment—Regina v. McLeans and Hare. 65
No care was taken of them. I think I have some recollection
of some being lost or mislaid. One of only a few months back
was entirely omitted from this collection. Another inserted in
it, one of the last, was never used at all; and another, and different one, even of later date, which was used at the last Assizes, was not even alluded to. And if this be the case with the
most recent ones, it does not require any intimate familiarity, which all old officials possess, with the state of these so-
called e rly records to imagine how unreliable the rest of the
list must be. That was very soon made clear from the fact
which came out in argument, that in many cases the direct
statement "no commission" opposite Assize after Assize was
meant as an "inference of law;" although contained in what on
the surface bore the innocent appearance of an attestation to a
fact. " No commission" opposite a particular Assize did not
mean that no commission was opened and read at that particular place and time, but that the commission which was then
opened and read was not a legal one, that legally it was no commission. The fact being that the document as a whole is as
untrustworthy as it is inaccurate.
Continuous practice of using commissions, though it can
never make law, is still an indication of what the law has been
considered to be by all the parties using it for a long series of
years, and more or less responsible for its being in accordance
with the law.
And the practice has invariably been the same throughout
the period when Vancouver Island was a separate colony, when
the mainland of British Columbia was a separate colony—down
through the existence of the united colonies of British Columbia, at least to the date of Confederation, 20th of July, 1871—
and indeed since the union with Canada down to the present
I stated during the argument, and each of the Judges bore
similar testimony—after enquiry into his own experience of all
circuits held by him in the Province—that duriug nine years
that I occupied'the position of H. M. Attorney-General for this
Colony ^separate and united J and ten years since as Supreme
Court Judge, I have never known of a single case, until this
recent one, and one of the accidental delay of a day, of a Court
of oyer and terminer having been held without a commission
from the Governor or Lieutenant-Governor, in Her Majesty's
name, purporting to be a commission of oyer and terminer and
general gaol delivery, Assize and nisi prius, having been first
read. . .
That at least shows what the constant practice in British 66
Judgment—Regina v. McLeans and Hare.
Columbia has been ever since its commencement, and that it has
always been thought necessary by those who were responsible,
under every Government which has existed in this Province,
long before and since Confederation, for the correct administration of justice, to require a commission from the Governor
or Lieutenant-Governor to enable Judges of oyer and terminer
to try criminal cases.
In searching my notes of " Assizes," a word often synonymous with I circuits," held before me, I continually find recurring Assize after Assize, rhe phrase | Commission opened,"
" Commission opened and read," or words of like import.
The forms of the commissions before and after Confederation, may be usefully studied.
11th Jan. , 27 Vic., by Letters Patent, under the Great Seal
oe England. By warrant under the Royal Sign Manual,
the Queen appointed Frederick Seymour—
" During Our pleasure Our Governor and Commander-in-
: Chief in and over Our Colony of British Columbia and its
: dependencies, and in and over all forts, &c, * * *
And we do hereby command you to do and execute all things
in due manner which shall belong to your said command, and
the trust We have reposed in you, according to the several
powers and directions granted to or appointed for you, by
this Our present Commission, and by the Instructions
under Our Sign Manual and Signet accompanying the same,
and by the above recited Order in Council. (Dated 11th
June, 1863. Except so far as the same relates to Our said first
mentioned Instructions of the 2nd day of September, 1858, and
according to such further powers and authorities as shall at
any time hereafter be granted, We appoint you under Our
Sign Manual and Signet, or by Our Order in Our Privy
Council, or by Us through one of our principal Secretaries of
State and according to such laws and ordinances as may from
time to time be in force in Our said Colony. * * *
And we do hereby authorize you to constitute and appoint
Judges, and in cases requisite, Commissioners of Oyer and
Terminer, Justices of the Peace, and other necessary officers
and ministers in Our said Colony, and to administer or cause
to be administered unto them such oath or oaths as are usual-
* Governor Douglas's, Governor Kennedy's and Governor Musgrave's Commissions, were
m form similar to Governor Seymour's. Judgment—Regina v. McLeans and Hare. 67
| ly given for the due execution and performance of offices and
"places, and for the clearing of truth in judicial matters.
I And. We do hereby authorize, &c, [as to remitting fines,
"pardons,  etc.'] *        *        *        By Warrant   under  Our
I Sign Manual.
" (Signed) " C. Romilly. "
(In British Columbia Gazette, of 29th July, 1876.)
The Governor-General appointed the present Lieut.-Governor to be Lieutenant-Governor in and over the Province of
British Columbia, during the pleasure of the Governor-General,
on and after the 20th July, 1876.
The Commission "authorizes, empowers, requires and
| commands the Lieutenant-Governor in due manner to do and
" execute all things that shall belong to his said command, and
" the trust reposed in him.
"According to the several powers and directions granted
" or appointed him by virtue of the present Commission, and
'' of the British North j America Act, 1867, and according to
"such instructions as were therewith given to him, or which
" might from time to time be given to him, in respect of the
" said Province of British Columbia, under the Sign Manual
" of the Governor-General of Canada, or by Order of the Privy
'' Council of Canada, and according to such laws as were or
" should be in force within the Province of British Columbia.
| Given at Ottawa, &c, under the Great Seal of Canada,
"27 June, 1876."
Here I may say incidentally, that the legal effect of this
Commission appears to be: That it conveys to the Lieutenant-
Governor the prerogative power of summoning the local Legislature, issuing all necessary commissions, &c, under the British North America Act, and according to the Governor-General's instructions. There are no instructions that I am aware
of, for any of these things, or for the issue of the numerous
Lieutenant-Governor's commissions which have passed the
Seal, or for the mode in which he has been exercising many
other powers since 1876, on all sorts of subjects; yet no one
has ever doubted that he lawfully does possess and has lawfully
exercised such powers.
* Lieutenant-Governor Trutch's Commission was in a similar form. 68 Judgment—Regina v. McLeans and Hare.
I have looked over such instructions of Governor and Lieut.
Governors of British Columbia, as I could procure, and can find
no grant of prerogative powers therein; merely instructions as to
the mode of exercising their respective powers. It is to the
commission itself we have consequently to look : and, as I shall
subsequently shew, those of the Governor General and Lieut.
Governor both refer to the provisions of the B. N. A. Act for
their respective authorities and powers. To that Act therefore,
we must refer for their respective Dominional and Provincial
powers ; which in their several spheres they wield. But of this,
more anon.    To resume :
The Court of oyer and terminer and general gaol delivery
introduced into British Columbia by the English Law was
not, it is conceived, an " auxiliary " Court to the Supreme
Court, in the sense apparently used by the Attorney-General.
It is true it rendered assistance (auxilium) to the Supreme
Court, by relieving it of much criminal work; but in other
respects certainly not as a Branch of the Supreme Court sitting
as a Court of Queen's Bench.
It was always a distinct and separate Court of Record, existing at all times, and being put into active use from time to
time, pro re nata, by virtue of the Queen's commission. Until
the commission was issued it would not even have been known
(had it not been for the local Statutes of 1858 and 1859, et seq.
which expressly designated the Judge, afterwards the Judges,
ofthe Supreme Court, as the proper persons to hold such commissions,) who were to be the Commissioners of oyer and terminer to call the Court, not into life (for if the view I have taken ofthe authorities be correct, it was always alive,) but into
active service. Had the Court of oyer and terminer been an
integral part of the Supreme Court, there would have been no
necessity for the difference of process and proceedings (already
detailed by the Chief Justice, and described during the argument) in bringing prisoners before that Court, as compared
with those then in use in the Queen's Bench. The proceedings
in the Court of oyer and terminer would ipso facto have been in
the Queen's Bench, and vice versa ; and no record would have
been necessary to take a case up, or bring it down, from one
Court to the other. And this continued existence of the Court
of oyer and terminer, and general gaol delivery was evidently
accepted as undoubted law by Chief Justice Harrison, in his
Judgment in Beg. v. Amer, et al, p. 402. Treating of commissions of Justices of the Peace he says" I think it cannot be
" said that either commission established Courts of oyer and
" terminer and general gaol delivery. These Courts were already Judgment—Regina v. McLeans and Hare. 69
' established  in and throughout the  Province; and  all  that
' these commissions have done was to nominate persons to take
| and hold such Courts."    This exactly applies to British Columbia.
Moreover, all the authorities from the first, including Hawkins, Hale, and Coke, down to Blackstone, agree, that the powers of those Courts could not be called into lawful exercise, nor
could any prisoners be legally tried and sentenced before them,
without a commission to appoint the Commissioners who were
to carry them out; and it stands to reason and common sense,
that every man going to be tried for his life, knowing that
everyone hitherto has been tried under the Queen's commission
would like to see and hear some commission, statute, or visible
authority from the Government of the country read, especially
in a new country, that he may feel sure that he is not to be
the victim of the arbitrary will of a Judge, or a minister of
State; but that the Queen, whose name is synonymous with
justice, will see that justice shall be done to him.
That was undoubtedly, from the authorities cited, the law
in England; and as has been shewn, that was the law and practice here, from the commencement of the Province at least to
Nor do Counsel for the Crown contend otherwise; but on
the contrary, affirm that to have been the law here up to Confederation. It is part of their case, on their main contention,
that there was no commission; and that none was necessary.
It is singular that on more than one occasion, by argument,
inference, analogy, authority, and every other mode of deducing co'ielusion from premiss, they have been obliged, in support of their various propositions, to advance arguments which
are actually in favor of the prisoners. They argue, the law was
entirely altered at Confederation. It is true, say they, we continued the old practice of calling Courts of oyer and terminer
and general gaol delivery, and granting commissions, naming
commissioners, and prisoners were tried and hung under them;
but they were all wrong and Superfluous, and every Attorney-
General and every Governor in the Province since Confederation has been doing what was unnecessary, superfluous, and
contrary to law. The Supreme Court as a Court of Queen's
Bench, or as the Supreme Court eo nomine, under sec. 5, c 42,
of 37 Vic, since 1 Jan., 1875, its date of operation, had direct
Statutory power to try all felonies; and as the Court had power
inherent in it of framing the process necessary to carry out its
jurisdiction, and it had done so, however unconsciously, in the
present case.
J 70 Judgment—Regina v. McLeans and Hare.
The local Statutes of 1858 and 1859, and Supreme Court Acts
(they add), gave the Court and the presiding Judge—even when
sitting alone—power as the Court to try and sentence the prisoners. The trial was duly conducted by the lawful procedure,
therefore the trial itself is valid, and the men should be  hung.
The Lieutenant-Governor himself, they argue, has since
Confederation, no power to grant such commissions of oyer
and terminer at all. That all that part of the prerogative having been by the British North America Act, 1867, sec. 12, vested
in the Governor-General exclusively, he alone, they contended,
had the power under sec. 14, to delegate his authority to the'
Lieutenant-Governor who, in his commission from his Excellency is referred to Instructions. These powers Lieutenant-
Governor Richards by his own affidavit proves he has never
by express words in commission or instructions received, and
therefore his counsel contend he was not entitled to exercise
them. This reasoning if correct would, according to the wording of that commission, apply to deprive him of the exercise of
the whole of the prerogative a Lieutenant-Governor is entitled
to, and actually does exercise, without any such express words
in his commission or instructions at all.
But did Confederation really produce this effect? or rather
what effect had Confederation on the old powers of the local
Governor of the Colony to issue these commissions, &c, and
on their transmission to the Lieutenant-Governor of the Province ?
The principal Statutes which specially affect the administration of justice in British Columbia, in this respect, upon and
after its Confederation with Canada, are: The Imperial British North America Act, 1867. The Terms of Union with
British Columbia in the Order of the Queen in Council of 16
May, 1871, under the British North America Act. Dominion
Statutes, 32 and 33 Vic, c. 29! The Criminal Procedure Act.
The 32 and 33 Vic, c 30 and 31. Proceedings before Justices,
and 37 Vic, c 42, extending the Canada Criminal Law, and
procedure to British Columbia.
By sec. 10 of the B.C. Terms of Union, which came into force
on the 20th July, 1871, " the provisions of the British North
" America Act, 1867, except those parts which were in terms
"made, or by reasonable intendment may be held to be
"especially applicable to, and only effect one and not the
" whole of the Provinces now comprising the Dominion, and
" (except so far as the same were varied by those terms), made
"applicable to British Columbia in the same way and to the
I like  extent as they apply to the otlvr Provinces of the Do- -Judgment—Regina v, McLeans and Hare. 71
1 minion,  and as if the Colony of British Columbia had been
I one of the Provinces originally united by the said Act."
By sec 12 of the B.N.A. Act, 1867, all the powers and
authorities and functions vested in the Lieutenant-Governor of
British Columbia at the time of its Confederation, and capable
of being exercised after the Union in relation to the Government
of Canada were vested in and exercisable by the Governor-.
General with the advice of his constitutional advisers, or by
himself individually as the case should require, subject (as
therein mentioned) to be abolished or altered by the Parliament of Canada.
These words " in relation to the Government of Canada,"
imply that the kinds of powers and authorities intended to be
thereby transmitted, were those relating to subjects and matters exclusively reserved by the B.N.A. Act to the Dominion,
and extending over the whole Dominion under the Government of Canada, including British Columbia.
Section 64, has no reference to British Columbia whatever,
except that Nova Scotia and New Brunswick being at the time
of < onfederation, old Provinces, were in somewhat similar
case to British Columbia in preserving their rights at the
union in statu quo., and in contrast with Ontario and Quebec,
which were newly defined  and newly created into Provinces.
Sec. 65, therefore, in which it was sought on the part of
the Crown to consider British Columbia included, appears
clearly confined to Ontario and Quebec; whose powers, privileges and rights as Provinces newly created by that Act, had
to be newly and distinctly defined, and specially preserved;
while older and established Provinces, as Nova Scotia and New
Brunswick could effect the same object and preserve their
rights and powers existing at Confederation under sec 129.
Sec. 65 therefore being a provision which does not apply to all
the Provinces, under the 10th term does not apply to British
By sec. 129, made part of the terms by term 10, " except as
n otherwise provided by the B.N.A. Act, all Acts in force in
"British Columbia, and all Courts of civil and criminal juris-
" diction, and all legal commissions, powers and authorities,^ and
" all officers, judicial, administrative and ministerial, existing
"therein at the union (Confederation), shall continue in British
' ■ Columbia as if the union had not been made, subject neverthe-
i' less (as therein mentioned) to be repealed, abolished or altered by competent authority."
Now among the Courts of criminal jurisdiction existing in
British Columbia at Confederation were, as has been seen, the 72 Judgment—Regina v. McLeans and Hare.
Supreme Court as a Court of Queen's Bench, &c, and the
Court of oyer and terminer, general gaol delivery, &c, and
among the " commissions" and "powers " in full life at that
date, was the authority of the Governor of the Colony to issue
commissions of oyer and terminer and gaol delivery, &c. That
was a' power existing at that time, and the words are sufficiently
general to include the Lieutenant-Governor and hand down the
power in the way it has already been exercised ever since-1871;
and this especially, as British Columbia, although included in
the spirit of sec. 64, is not mentioned in it, and clearly not
sec 65. Unless this be the construction, British Columbia and every future Province of the Dominion would have to
be considered a casus omissus on the part of the Legislature.
This is scarcely credible in the passing of a Constitutional
Act, which was for all time thereafter to form the very groundwork of a new Dominion and comprise half a Continent. It
must not be forgo:ten that the early Confederation of British
Columbia was then contemplated, for owing to a resolution of
the Legislative Council of that Crown Colony, of which I was
then Attorney-General, and while the B.N.A. Act was passing
through the House, sec 146 was altered expressly to include
British Columbia whenever she should wish to enter the Confederation.
It is true that-by section 12 of the B. N. A. Act, Avhich
contains very strong words, all poAvers, authorities and functions, which under Imperial or local Statutory authority were,
at the Confederation of a Colony with Canada, vested in the
Lieut. Governor individually or in conjunction with other officers should, as far as the same continued in existence and capable of being exercised after the Union in relation to the
Government of Canada, be vested in, or exercisable by,
the Governor General, either individually, or by the advice
of other officers, as the case required, subject (except _ as therein mentioned) to be abolished or alter, d by the
Parliament of Canada.
Now among these powers, authorities, and functions, was
the power of issing commissions, so that (except as otherwise
provided by the Act) this section would seem to give the Governor General the power, (inter alia) to issue commissions of all
kinds in relation to the government of Canada, throughout all
Canada, including British Columbia; for this provision
was made notwithstanding the Governor General's commission^ which always included the power of issuing
commissions of oyer and terminer, etc., was at the same time
presumably revocable. Judgment—Regina v. McLeans and Hare. 73
As to the above exception, it is not "otherwise provided
by the Act" for there is no other section which contradicts it.
I think therefore, that there is reason ■ to be assured of the Governor General's having that power,
and of his ability (ii allowed by the Queen) to depute it to the Lieut. Governor, if the latter had it not otherwise, during pleasure. But if he had it otherwise, it was unnecessary to depute it. And looking to the spirit and intention
of the whole Act, I think it clear the Lieut. Governor had it.
The contention that the Lieut. Governor possesses the power
concurrently with the Governor General, is not a provision in
opposition to the transmission of this prerogative power concurrently to the Governor General; if it were it would only
strengthen the conclusion which, I must say, has forced
itself on me, that the Lieut. Governor has the power.
And then the construction would be. the Governor General has this prerogative power reserved to him over all Canada,
and the   Lieut.   Governor over his own  Province.
I use the word ' 'reserved" because the very ground work and
pith of the Constitution Act is, the Dominion is Dominus. Everything the Colony could give up consistently with its Imperial allegiance was vested absolutely in Canada, and redistributed or re-
serevd to Dominion and Province respectively by the provisions of
the B. N. A. Act, so that the prerogative still came to the
Lieut. Governor, in connection with the Courts in British Columbia, among others the Court of oyer and terminer, and not
the less so that it vested as a reservation in, and not as
an exception out of, the grant. And this is a principle of construction, the development of which may lead to great issues
hereafter, but need not now be further considered.
Moreover if section 12 of this Act could transmit power of
issuing commissions vested in the Governor General at the time
of Confederation, by a commission which was revocable, and
probably was afterwards revoked, to make way for a new commission, to a new Governor General, or any future Governor
not then even contemplated, it could, by a parity of reasoning,
transmit the same authority vested in the Governor of a Colony
to his successor, the Lieut. Governor of the same, as a Province
although such Governor also held it under a revocable commis-
The words of sec. 129, are quite as full, though not as specific as the words of sec. 12, and it may be readily conceived
that only general words such as these would be used where the
legal position of the Provinces yet to be brought under Confed-
ration was not yet fully known or determined ; just as  I  have 74 Judgment—Regina v. McLeans and Hare.
observed in numerous English Colonies created by settlement,
the laws of England are introduced by general words, very similar to those in our British Columbia English Laws Act, as
being the best suited to meet unf orseen cases as they may arise
where the future position of the law and the coming requirements, and circumstances of the future Province cannot be ascertained beforehand. The Governor General can also depute
any ot his powers to the Lieut Governor, or any other person.
By sec. 14, B. N. A. Act, "The Governor General, with the
" sanction of, and at the will of the Queen can at his discretion.
" delegate any of his powers, authorities, and functions during
I his pleasure to any person, without affecting the exercise by
" himself of any power, authority, or function."
This shews that the same power may exist concurrently under the Constitution in the Governor General and a Lieut.
Governor, and, pro tanto,. is an argument in favor of the construction that by sec. 129, the Lieut. Governor has always had
vested in him that prerogative right of issuing such commissions to set those criminal Courts in motion. The especial use
of the clause, (Beg. v. Amer), was to create a Deputy Governor
General, as was clone. Semble, the general spirit of the
whole Act is that the Governor General should have the power
to discharge all the Dominional functions over the whole Do-
inion, and'the Lieut. Governor his over the Province.
However, though a deeply interesting enquiry, it is not
necessary for the Court, nor can it determine authoritatively
now, whether, if a commission be necessary, it should be a
Governor-General's or a Lieutenant-Governor's commission.
That is not the issue before us; and being irrelevant even a
decision upon it would not bind; though I am clear on the
point that the Lieutenant-Governor has full power to grant
these commissions of oyer and terminer, &c, to the three
Judges jointly and severally, to try all criminal cases everywhere in the Province. That, after long and full argument, is
my conviction, although of course it is immaterial tu the decision
of the point now at issue; for if a commission be necessary, and
it is illegal, as the Crown contend, to hold the Court even with,
a Lieutenant-Governor's commission, a fortiori it would be
illegal to hold it without any commission at all.
It is admitted as well as shewn that up to Confederation
the prerogative of the Queen, by herself or her duly
authorized deputy to issue commissions of oyer and terminer
and gaol delivery, was in active exercise, and the evidence
before the Court shews that all the Governors of Vancouver
Island and British Columbia, separate and united, continually Judgment—Regina v. McLeans and Hare. 75
exercised that prerogative up to Confederation. B. v. Amer,
U.C.Q.B., 407 and 408, confirms the position that after Confederation the prerogative power of the Queen still exists in
British Columbia, as a part of Canada: for the B.N.A. Act, sec
6, enacts, that the Executive Government and authority, of and
over Canada is thereby declared to continue and be vested in
the Queen. The power being a prerogative one (I refer still
from the same case), can only be exercised by the Queen oilier representative. The Governor-General of Canada is the
only executive officer provided for by the Act, who answers
this description; and he has granted the Queen's Commission ■
to the Lieutenant-Governor.
The issue of commissions of oyer and terminer and g'eneral
gaol delivery, both general and special, still proceed from the
Crown, subject only to such restraints as the Legislature may
have imposed on the exercises of the prerogative. Chitty's
Prerog., 77, Hawkins' P.O., 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 Confederation has
handed down this among the other prerogatives. The prerogatives of the Crown are not to be deemed as abridged or restricted by mere general words of legislation. The language
must be express and free from ambiguity. If the language
used be consistent with the existence of the prerogative, it
must be held that the prerogative is not affected.
That may therefore be construed as an authority in the direction of the existence of concurrent powers of granting commissions of oyer and terminer and gaol delivery vested in the
Governor General and Lieut.-Governor.
This much is, however, established, that the authority to
grant commissions of oyer and terminer and gaol delivery survives in some person or other, either alone or concurrently; and
the 129th section, in the manner I have described perpetuates
this among the authorities existing at the time of Confederation
in the Governor of the Colony.
Adam Wilson, J. in Beg. v. Whelan, 28 Upper Canada
Queen's Beuch 39; in the same direction, says, The statement
of Hawkins, which is contained in numberless other books and
divisio-s, is no doubt, settled law, "That the King being
| the Supreme Magistrate of the Kingdom and intrusted with
" the whole Executive power of the law, no Court whatsoever
'• can have any jurisdiction unless it, in some way or other de-
" rive it from the Crown."
Hawkins P.   C.   Bk. 2, sections 1 and 9, says,   "That  all 76 Judgment—Regina v. McLeans and Hare.
" Judges must derive their authority from the Crown by  some
. " commission warranted by law."
He adds that if the commission under which the Court is
held, be not set out in the record, the proceedings will be erroneous ; because they would appear to be without_ jurisdiction.
So that a commission is necessary to give jurisdiction to the
Judge over the case brought before him;
And here, be it observed, there is not, as in Ontario, any
Statute dispensing with commissions, and indeed, it is more
than doubtful whether since the B. N. A. Act, the power of legislating on these commissions of oyer and terminer, etc., is not
entirely gone out of the hands of the British Columbia Legislature, and vested in the Dominion Legislature,
as a matter of criminal procedure, the Court itself having
been for years created and organized, and requiring only commission to enable it to proceed. And where there is no Statute
binding on the Crown, dispensing with commissions, the commission must 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 express words dispensing with these commissions, the 37  Vic, c
42, sec. 5, by necessary intendment does.
In this conclusion none of us can agree
The Court of oyer and terminer and gaol delivery, being
old Courts of Record set in motion by Royal prerogative, and
with which it is so intimately connected, could not be abolished
except by express legislation of the most distinct kind. Instead of this, in section 5, the reverse is observable. The
Supreme Court of British Columbia and any Court
to be hereafter constituted by the "Legislature of
"this Province having the powers now exercised by the said
" Court, shall have power to hear, try and determine in due
" course of Law all treasons, felonies, and indictable offences
" whatsoever mentioned in any of the said Acts which may be
I committed in any part of the said province."
Here are no express words of abolition, but rather words
of adoption. When 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 full exercise of all its Queen's
Bench criminal functions and jurisdictions. The only operation it
could have on these was to enable them to take cognziance of
and try out any new felonies and indictable offences (if any)
'which had been created since Confederation, and scheduled in Judgment—Regina v. McLeans and Hare. 77
that Act.    A power which as criminal Courts they already possessed.
The "due course of law" which Coke describes as proceeding by information, hearing and committal for trial at the
next Court of oyer and terminer and gaol delivery in which they
were to try these offences was already prescribed in Jervis's
Imperial Acts, 11 and 12 Vic. c 43, and of which the Dominion Statutes, 32 and 33 Vic, c. 30, was mutatis mutandis almost a literal' transcript. 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 present case were committed by the
Magistrate in the regular way by information on oath and evidence taken in the presence of the prisoners, and they were
then sent to the common gaol, until they should be delivered
"in due course of law." That, Coke describes as the next
Court of oyer and terminer and gaol delivery for the district,
unless otherwise disposed of, after being brought by certiorari
or otherwise into the Queen's Bench (Supreme Court.) The
witnesses and recognizances were all bound over for this particular case, to appear and give evidence in the matter before
the next Court 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
oyer and terminer and gaol delivery, and giving the Supreme
Court, eo nomine, exclusive jurisdiction in criminal matters, in
my judgment, merely confirmed the existing Court and procedure, and contemplated other similar criminal Courts, and is
consequently a declaratory Act.
And this is the more manifest from the consideration of
sec. 42 of the 32 and 33 Vic, I 29, which enacted that "nothing in this Act shall abridge or affect any power or authority
which any Court or Judge hath when this Act takes effect, or
any practice or form in regard to trials by jury, jury'process,
juries or jurors, except only in cases where such power and
authority is expressly alteied or is inconsistent with the provisions of this Act."
The continued existence of a Court of oyer and terminer
has not been "expressly altered," and cannot be called "inconsistent" with sec. 5, which treats not only of the Supreme
Court, but even contemplates another criminal Court of similar
jurisdiction. There is no doubt, therefore, I think, that whether as to Court of oyer and terminer, etc, or procedure, _ no
alteration has been made, in either existence, jurisdiction,
judges, form, or in procedure, or any other matter, by  sec. 5, 78 Judgment—Regina v. McLeans and Hare.
of 37 Vic, c. 42, but that the same were confirmed as they had
existed clown to Jan., 1875, and thence to the present, time.
We have seen in the Judgment of the Chief Justice in
which, generally we concur, that by the proceedings in the magistrates' Courts, in due course of law, the prisoners could only,
in ordinary course, be tried in a Court of oyer and terminer. &c,
which in turn could only be set in motion by commission,
unless removed by special process into the Supreme Court as a
Court of Queen's Bench.
There was not even a pretence at this trial that the case
was brought before the Supreme Court as a Court of Queen's
Bench. With the exception of the commission it proceeded
throughout as a Court of oyer and terminer, and the calendar
was made up in the form usual at Assizes in British
Columbia, and headed "General Assize." The prisoners were not committed by the magistrate direct for
trial in the Supreme Court as the Queen's Bench, but under
the ordinary procedure of justices out of session. The forms
in Jervis'Acts repeated in Dominion Act, 32 and 33 Vic, c.
30, forms A, B, 0 and T, indicated distinctly the then next
Court of oyer and terminer, and no other, as the Court in
which this trial should take place; the witnesses were bound
over to it, the Covernment proclamation of a Court of oyer
and terminer continued in each issue of the Government
Gazette until after the trial, called for a Court of oyer and terminer, general gaol delivery and Assize, and nisi prius. The
prisoners were duly advised of it. The witnesses at vast toil,
no little danger and considerable expense, were all in attendance, but the Crown say no Court of oyer and terminer was in
existence, was possible or was held. No commission from the
Crown was produced, and Hawkins, Coke and Blackbourne
say, without the reading of such commission, which would be
either from the Lieutenant-Governor or the Governor-General,
or under some Statute dispensing with it, no Court of oyer and
terminer can be held; as there was no commission, and no
Statute dispensing with it, no such Court was held, consequently in that view, the trial had before the Supreme Court Judge
was no trial at all.
Neither was it a trial before the Supreme Court as a Court
of Queen's Bench, by its derivative process from another Court.
We have seen that the prisoners were not, il even had it been
the law and practice to do so, committed direct for trial before
the Supreme Court as the Queen's Bench and Sovereign Court of
oyer and terminer. They were not brought before it in any of
the ways which were described as necessary and indispensable, Judgment—Regina v. McLeans and Hare. 79
and^ one of which it was contended must apply. There was no
certiorari or record to give the Queen's Bench seizin of the
case, no application for trial at Bar in term, or for order for
trial out of term, or to send it down to nisi prius for trial, nor
indeed in any of the ways adopted which were laid down by the
learned counsel for the prisoners as available for bringing the
prisoners before the Supreme Court as a Court of Queen's
Bench; nor was there any attempt on the part of the Crown to
carry out in practice, their present theory, and by some process
invented for the occasion, to give the Supreme Court eo nomine
under sec. 5 of 37 Vic. direct seizin of a case which the records
of the Magistrates' < 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 incident to its jurisdiction, why was there no process for a
jury from such new Court. The old process clearly indicated in
its forms and spirit the old Courts. Surely criminal process in
a matter of life and death can scarcely be adopted by a silent
inference 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 adapted to another Court, and which has successfully stood the test of centuries.
The other branch of the argument for the Crown is in direct
opposition, and if true, entirely destructive of their main contention. They had hitherto been contending, one after the
other, with an earnestness that was unmistakable, and
to a certain extent impressive, and supported their contention
with a long array of authorities: That there was not, and for
years had not been, a Court of oyer and terminer. 2. That the
Lieutenant-Governor had no power whatever to issue the commission for it. In fact they sustained their contention with
such persistency and effect, that it required an effort to induce
the Court to consider their next argument, advanced quite in
the opposite direction, and from an entirely different pointy of
view. Now, however, they once more exchange positions with
the prisoners' counsel, and argue on the basis that the Court of
oyer and terminer is, was then, and always was, in existence,
and the commission from the Lieutenant-Governor necessary to
set it in motion, was still in existence; and that the trial was good
because such commission of the 19th November last, to all and
singular the Judges, exercisable " from time to time," and returnable at Ottawa, one which had been used at the previous
Victoria Assize, in November, was still valid and subsisting, 80 Judgment—Regina v. McLeans and Hare.
because made permanent by the Order in Council produced in
evidence. Had there been no other subsequent and new commission affecting its validity, and it had been read at the opening of the Court, or if unavoidably delayed afterwards with the
certificate of the Judge to the Secretary of State, recording and
explaining the delay, the contention might probably have been
sustained. In fact, if there had been no other or new commission, and I am not sure even that I should have insisted on its
being read, treating that Statute as directory merely, I should
probably have used that without hesitation, with every confidence that in doing so, I should have been perfectly correct.
Unfortunately, however, the commission of the 8-9th March to
the same persons with the powers for the same time over the
whole Province was made returnable to a different place, altered
■materially the character of the document. It clashed with sec.
1 of the 36 Vic, c 3, which compelled a return on this case,
to Ottawa, where the reports of all cases of application 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 commission for use at the published New Westminster Assze, to
the notice of the three Judges, it cancelled the November commission. The correspondence hereto annexed, produced on
the argument, to all which reference is made, contradicts this
theory. It proves that the commission of the 8-9th March was
not made and cancelled uno ftatu and therefore to be considered non avenu, or as the Attorney-General described it, stillborn. The difference in its tenor, the long discussions it
underwent, its scope covering the same ground, the distinctness with which it was brought to the notice of the Judges,
shew that such a contention is not now arguable. Had it been
a mere supersedeas it could have been revived by a writ of
procedendo, which was never applied for. It was not however,
a supersedeas, but a positive constructive revocation. It shews
to what shifts the counsel for the Crown were put when they
had to fall back upon such an argument as this: .That a commission which they consider they had proved to have been exhausted, which had been cancelled by the issue of a subse-.
quent commission, which was not read or produced at the trial,
and not mentioned to the Judge, and not in his possession but
sleeping in a departmental pocket, should be relied on as a
sufficient authority whereon to ground proceedings which were
to doom four men to death.
The theory of exhaustion advanced by the learned attorney
viz.: that the British Columbia commissions were " exhausted" Judgment—Regina v, McLeans and Hare. 81
by being once used, is, I think, conclusively answered by a
comparison of the text of the English commissions and our
own.» The difference will then be seen at a glance. The old
English authorities are of course writing of the old forms familiar to them, and indeed in use in England now. Here, while
the principle and power is exactly the same, a difference by the
amalgamation of four commissions into one, and a variation in
the wording a^ to time and place, makes a proportionate difference in the application of the principle which is identical
in both cases. The English Commission, (Gude's Crown
Practice, vol. 2, forms) runs thus:—
Victoria, &c, To our beloved, &c, (naming all the Judges
and if dispatch of business calls for it, other persons); Know
ye: That We have assigned you and any two of you, of whom
one of you, &c, shall be one of Our Justices, to enquire more
fully the truth by the oath &c, of good and lawful men of our
said counties of, &c, (naming the particular counties which compose one of the 8 Statute English Circuit districts) and by every
other way, &c, by which you may better know,by whom the truth
of the matter may be better known and enquired into, of all the
treasons, felonies, dec, and all other evil doings, and also the
accessories of them, &c, within the counties aforesaid, or any of
them, &c, and the said treasons and other the premises according to th > laws and customs of England for this time, to
"hear and determine. " And therefore We command you at
" certain days and places which you, or any two of you, &c,
" shall appoint for this purpose, you make diligent enquiries
" about the premises and hear and determine (oyer and ter-
" miner) all and singular, the premises, &c, &c For we have
"commanded Our Sheriffs of our counties of &c, aforesaid
" that at such days and places they cause to come (faciant venire)
" &c, good and lawful (legales) men, &c„ by whose the truth
" of the premises may be, and enquired into."
The wording of the other three commissions, general gaol
delivery,   &c, is  exactly  in harmony  with  this, and  equally
specific and limited in place, duration end circuit.
The British Columbia Commission runs thus :
Victoria, by the Grace of God, Queen, etc.
To The Honorable Sir Matthew B. Begbie, Knight, The Honorable Henry P. Pellew Crease,   and The Honorable  John
H. Gray, Justices of Our Lady the Queen, Greeting.
We, reposing especial trust in your learning, integrity and
ability, do hereby assign and commission you, the said, [names
of  all  the Judges for the time being] jointly and each of you
severally to inquire by the oaths of  good  and  lawful  men of
I 82 Judgment—Regina v. McLeans and Hare.
this Our Dominion of Canada, by whom the truth of the
matter may be better known, and by other ways and means
whereby you, or either of you, can, or may the better know more
fully, the truth of all treasons, misprisions of treasons, felonies,
misdemeanors, misdeeds, offences, and injuries whatsoever ;
and also the accessories of the same so far as they are crimi,
nally liable, by whomsoever and howsoever done, perpetrated-
or committed, and by whom, to whom, when, how, and in what
manner ; and of all articles and circumstances in the premises,
and every or any of them howsoever, concerning and to hear
and otherwise determine the said treasons and other the premises in Our Province of British Colum'ia,- according to the laws
of this Our Province for the time being in force ; and also from
time to time to deliver the gaols and every the gaol within this.
Our Provi ce of British 'Jolumbia, of the prisoners therein being according to the said laws of this Our Province for the time
being in force. And also with power and authority to hold
Courts of Judicature, and to summon, or cause to be summoned
before you and each of you in such manner and by such form
as you or either of you may think proper, all persons by means
of whom it may be deemed that the truth of the matters aforesaid may be fully disclosed and made known :
And also to order the production of all books and documents which could be produced or examined in any Court of
Law; and also to commit to the custody of thekeeper of any of
Our gaols in this our Province of British Columbia, any person
or persons who shall, in any way, presume to refuse or neglect
to obey any of your lawful commands in the premises, and
whatsoever you or either of you shall do in or about the premises you shall from time to time, with all convenient speed, return
to Us at Ottawa, the Capital of our 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. Governor 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 Reig |
By Command,
[name]    Provincial 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 differences are, the
operation and, the venue in criminal cases of the
one are confined to certain counties only; in the other extends Judgment—Regina v. McLeans and Hare. 83
over the whole Province. The duration of the one is "for
this time" only, and is exhausted by each use. That of the
other '^from time to time" until determined by cancellation,
revocation, or another commission, but not exhausted by user.
It may be continued, in use for years, or be cancelled the same
day. The comparaiive duration of the Governor General's two commissions, which vide, shews that if the commission be. clearly in existence, notwithstanding the Statute
directing it to be read, I doubt whether it is not in full vigor
and force, and all that is done under it valid, without its being
read ; considering that Aet as directory merely. They contain
the same powers ' 'to hear and determine" (oyer and terminer)
to deliver all and every the gaols, (general gaol delivery) in Assize and Nisi Prius substituting "to hold Courts of Judicature,"
thus following the exact wording of the Judges' Commission under Her Majesty's own hand, repeated in the Proclamation (8th
June, 1859) constituting the Supreme Court, and in subsequent
legislation. The practice at Assizes under this has always been,
to deal with all criminal matters (unless, of course, removed) in
the Court of oyer and terminer, etc., and civil matters separately in whatsoever branch of the Court they may come up :
Probate, Insolvency, Common Law, Equity, County Court, and
other appeals, and so forth, as the case may require. A simpler, more ready, more effective, and convenient mode of administering Justice, or one more adapted to a new country, it
is impossible to conceive. British Columbia, in this respect,
is far ahead of any other Province.
In the English commissions there is no Return. The Statute makes the return to . the Secretary of State in Downing
street. Here the return is to the pardoning power at Ottawa,
where returns in capital cases have also to be made by Statute
37 Vic. No return however, is necessary in the commission; for the Dominion Statutes call for returns to Ottawa
in certain criminal matters, and the B.N.A Act if not directly,
by intendment or implication places the ultimate authority
over criminals under the eye and supervision of the
Dominion. Another point raised also demands attention.
The Attorney-General lays great weight on the Con.
Statute, c 57. (The Circuit Courts Act, 1872), in' connection with section 5, of 37 Vic, c, 42, and relies on the
effect of this combination for the validity of the' trial. The
moment, however, this proposition is analysed, it falls to
pieces. " The general commissions, he says, issued under the
" Circuits Court Act, 1872." But the fact is it was a priori
impossible.     There is no such thing as a Circuit Court in the 84 Judgment—Regina v. McLeans and Hare.
Province; none was ever created. Assuming the Act to have
been anything more than a nullity, and the Court to exist, the
country has never been divided into districts. Therefore the
commissions could not have been made under that Act, for, if
valid, the Circuits Court Act would have required it to contain
the times and places for holding Assizes, but the commission
specifies neither one nor the other, so could not have been
issued under that Act.
A still stronger reason is that no such Court has ever been
created or exists in the Province. Such a Court was created
in the Colony of Victoria by the 15 Vic. No. 1. sec. 17; (1852.)
Adamson's Acts of Council published by authority in Melbourne, of a part of which Act the present Act is a mutilation.
The text of that section, which I append hereto, will repay
perusal, (Wide appendix.) In that Act the Circuit Court was
created by name, as a Court of Record with all the powers of a
Court of Nisi prius, Assize, oyer and terminer and general gaol
delivery, necessary to try all cases civil and criminal arising in
the Province. Had it been intended to have introduced a similar Court here, the Legislature ought to have clone what was
done in the Colony of Victoria, create the Court by Statute
before saying " it should be holden, &c" This was not done,
and there is no such Court. Here also I observe, it required a
Statute to dispense with commissions of oyer and terminer, &c
The correspondence between the Judges and the Government I had not proposed to notice, or do more at
the present time than append it to my judgment, leaving the self-contradictory-positions assumed in it by the executive, to speak for, and neutralize themselves; but that, underneath it lie legal and constitutional questions of sufficient importance 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 point which strikes one is, that the whole of the
present difficulty took its rise solely from those who claim to
be responsible for the administration of justice; and was forced
on the Judges, who have to administer it according to law, in
spite of their most respectful but repeated warnings of the
danger of breaking in suddenly, with a startling innovation,
upon a well considered and long-settled practice in the administration 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 Judgment—Regina v. McLeans and Hare. 85
are correlative; yours the responsibility since yours also the
power. The Judges time after time solemnly protest, and
warn you of the danger possibly resulting from so sudden and
radical a change, where life is concerned, in an old established
practice, in full accordance with the law. At first from the 7th
of March to the 11th, the sole point of difference was whether the
return, at the end of the commission, was to be made as a Dominion matter, as of old accustomed, to Ottawa, or as a provincial matter (the new innovation) to Victoria. Nothing else was
mooted. Suddenly and most unexpectedly the Judges each
obtained an answer late in the evening of the 11th March, by
an identic letter; the steamer starting at 8 a.m. the next
day, and the commission day having been fixed for the morning of the 13th. They were told in effect: The authorities are
advised (not that the. Lieutenant-Governor has no power to grant
commissions, the first suispicion of that we get, nearly a month
afterwards, from the Attorney-General's letter of the 8th April
—but,) that no commission is necessary. The Supreme Court
Judges have already authority without it, to take and determine
the issues of life and death now pending at New Westminster.
This, with the Assiz js fixed for the 13th, was in effect to say:
Tour duty is to go, and go at once. The responsibility is ours.
And on this last advice, they add: The Lieutenant-Governor 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 change J even under that
commission, though it clashed with the Dominion Act, 36 Vic.
c. 3. The old commission is then, as I have since learned,
privately taken up to New Westminster, but not used outproduced. This new position is so suddenly sprung on the Judges
that no time of even the most casual conference and consultation of the three is allowed, or possible. The nearest approach
to that is a hurried midnight visit to a neighboring brother
pruisne who concurs, that as duty calls, a Judge must go, and
comply asfar 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, having prayed them to await the return of the Attorney 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 Westminster, he makes the necessary time, and gives the necessary opportunity. The trial is not to begin until the 16th, at 10, a. m.
On the morning of the 14th, the Attorney General returns,   re- 86 Judgment—Regina v. McLeans and Hare.
sumes the reins of power, and the personal responsibility of the
position in ample time to set everything right. He makes no
response to the opportunity afforded ; and, under, protest,
the trial goes on. The Assizes had been opened without commission. Prisoners' Counsel, deeming, no doubt, that all was
right, make no objection, beyond a challenge to the array,
which is overruled. The Judge, kept ignorant of the sudden
and vital change, for neither case nor opinion has been shewn,
(and a legal opinion depends on the case put) can
raise no objection. Constitutional duty shuts his mouth.
Without even a notion of the reasons, long subsequently advanced, for the advice, even if he had the right, the Judge,
as pointed out in Beg. 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 responsibility had he not gone on. He naturally considered, that possibly, some latent authority might at any
moment have been produced of which he knew nothing, commissions 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 days 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 elates of the
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, with all
respect, consider an imaginary exclusive prerogative of His
Honor the Lieut. Governor, to act in the administration of justice without his constitutional advisers, who are responsible
for his actions right or wrong, so long as they continue in office; had that honorable and learned gentleman, on the personal resumption of the duties and responsibilities of his office on
the Mth March last, 48 hours before this trial, which attracted
so much attention, had commenced, and five clays before its
termination; possessing, as he did, a full knowledge of the objections which had been raised, felt himself justified in applying 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 considered, and very probably favorably entertained, the application.
Or had he, by telegraph, then, before, and  after, in good Judgment—Regina v. McLeans and Hare. 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 trifling expence, and the whole present difficulty and question
would have been saved ; and everything have gone right; instead of risking so dangerous an experiment at so grave a moment, with so many lives at stake.
But to resume. The Statutory report of the presiding
Judge to His Excellency the Governor General, through the
Honoiable 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 Beg. 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 Judges 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; a eupheuism probably 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 Covemment,
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
I his office solely," namely the issue of commissions of oyer and
terminer had determined on certain advice, that he had no
power to issue these commissions at all; but the learned Attorney-General in the same breath takes to the executive exclusively the responsibility which, if the position he had just declared, were correct would " solely " Jhave 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 the change, should
have tried in the dark, the question whether they could hold
the Court without commission or not; and so have become advocates and Judges in a matter not judicially before them, and'
so to speak, in their own case. Then—That the Judge 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 unusual a function.
One position taken in the argument by the Attorney-General
was: That the commission of the 8-9th March was made solely
for New Westminster, and therefore did not determine the
general commission of November over all the. Province. But
assuming, for the sake of argument, that it was confined to New
Westminster, the authorities all say that a subsequent special
commission over part .of a general one, varies the general one
pro tanto; consequently, as far as New Westminster w s concerned 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 Westminster Assize without commission, and made the trial no trial
at all. It would take me too long to do more than touch on
the suggestion in the Attorney-General's letter of the 8th April
that the executive were supported in that view, that no commission was required, by the opinion of the Judges on the no-
commission clause (sec. 6) of the British Columbia Judicature
Bill, 1879. The Judges were requested by the Attorney-General 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 clays 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 circumstances in the English Act, they were " more disposed to declare
"the abolitipji-of re-iterated  commissions,   adding  that  the
* 1 Government already had the power to fix the Circuits and
" Assizes, which when fixed, the Judges of the Supreme Court
" virtute officii hold," which simply meant that * they are the
persons virtute 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—Regina v. McLeans and Hare. 89
pended to this. Had its meaning even been otherwise, it was
recalled a few days later by the letter which . is appended; the
Judges fearing lest it should be declared ultra vires, and would
imperil the useful part of the Bill, which, though so hurriedly,
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 language to carry with them
their own refutation from their manifest unconstitutionality.
The Judges' suggestion having thus again fallen thrqngh, the
question was referred, as requested, to Ottawa, and the answer
of the Minister of Justice is that the Cabinet, ^sharing, it is
fair' to assume, the Judge's' doubt) refer 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 the
expense of counsel 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 judgment of his Lordship the Chief Justice as the judgment of the
The authorities on "which our conclusions are based are
cited in the appendix.
Gkay,. J.    .
This case has been most fully and ably argued by the
learned Counsel on both sides; and after the elaborate Judgments of my learned brethren on the Bench, it maybe 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
left.     Post prandium ossa.
It is a pure question uf Law ; but important as 'involving
the Constitution and legal rights of this Province. It will turn
mainly, in my opinion, on the construction of the B.N.A. Act,
1867; the Imperial bond of union between the General Government of Canada, and the several Provinces forming its .constituent parts, by which all alike have to be bound, and to which
each and all must look as a guarantee from the highest authority in the Empire, that there 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 English Act of Parliament, the Supreme Court of Civil Justice in
British Columbia was established by Proclamation in June,
1859. By the 5th paragraph of the Proclamation it was declared "the Supreme Court of Civil Justice of British  Colum- 90 Judgment—Regina v. McLeans and Hare.
" bia shall have complete cognizance 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. 99, (2nd Aug., 1858) the Imperial Act referred to, authorized the Queen to make provision
for the Administration of Justice in the Colony, and
generally to make, ordain and establish all necessary
laws, institutions and ordinances; and at the same
time, and by the same Act, provision was made for the ultimate
incorporation of Vancouver Island with the Mainland. By a
previous Act in 1849. 12 and 13 Vic, c 48, similar powers had
been given for a similar purpose for the Island.
The Governors, as appears by the commission to Mr. Seymour, produced and read in Court were authorized to issue
commissions, and take all steps necessary for the administration
of Justice in accordance with the powers given by Parliament
to the Queen.
By an Ordinance of the British Columbia Government, No.
70, March 1867, passed after the incorporation of 'he Island
with the Mainland, a pre-existing Proclamation, dated 19th
Nov., 1858, declaring English Law in force in British Columbia, for local reasons, arising from the incorporation was repealed ; and it was enacted by the Government of British Columbia, then composed of both Colonies, and retaining the
designation of British Columbia, with the advice ' and consent of the Legislative Council, that from ■■ nd after the passing
of that Ordinance, No. 70, "The Civil and Criminal Laws of
" England, as the same existed on the 19th of November, 1858,
" and so far as the same 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 ample jurisdiction to hear and determine all crimes,
with a Criminal Law, and a defined mode of Practice and Procedure, pointed out and adopted by its own Legislature, viz.,
the English Law and Practice.
What then was that English Law.and Practice?
By the English law, as clearly and indisputably shewn by
the learned Chief Justice, with his accumulation of authorities, the Court of Queen's Bench in England, which by the Constitution Avas originally charged with the trial and punishment
of criminals, had cognizance of all crimes and offences. And
by the 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 Record sat, before Judgment—Regina v. McLeans and Hare. 91
the full Court, and seisin was given of the case by certiorari,
or other particular process, to bring the case and the prisoner
before the Court. Thus, though the Court had ample jurisdiction, it only exercised its jurisdiction in that particular 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 assize 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
activity, like machinery from steam, from the commissions
which the Statutes directed should be issued, when their usefulness Avas required ; commissions addressed to certain persons, of whom one or two were Justices of the Queen's Bench.
Bracton, Coke, Hale, Hawkins, Blackstone, Stephens—every
writer on English laAv from the first to the latest, lays down this
principle, and so indisputably has it been recognized, that they
are never held Avithout 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 2nd. Of general gaol delivery, to clear the
gaol of all persons in actual custody. The 3rd. Of Assize,
originally having reference to disputes, relating to unlawful possession of lands, now more readily disposed of by ejectment.
The 4th. Of nisi prius, relative to civil cases. Of these
four, the two latter—Assize and nisi prius—relating as shown
to civil matters, owing to. the 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 introduced into British Columbia at all; more particularly as the
old distringas jurat-ores in the award of which the proviso of
nisi prius had to be inserted was actually abolished by the
104th sec. of that Act. With reference to any criminal jurisdiction exercised by the Court of nisi prius, 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
Bench by certiorari warrant or otherwise, and that Court being
thereby in seisin of the case, sent it down to the nisi prius to
have, the issues in fact determined, and it was only 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—Regina v. McLeans-and Hare.
afterwards to be entered on the Record of the Court above.)
Reg. v. Lloyd et al 4 Barn and Adol., 135. Nor can I learn of a
single instance in British Columbia where a criminal has been
tried, or assumed to have been tried, at nisi prius.
Stephens' Ed. of 1858, 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 this Province.
" The Judges upon their circuits now sit by virtue 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 conse-
" 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 prius 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 connected with a
" proviso at nisi prius; but the trial is allowed to take place,
" without the use of any such words in the process'of the
" Court, and as a matter of course before the Judges sent
"under the commission into the several counties." Though
the " Court of Assize" thus practically ceased, and 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, was the poAver to put them in motion
by commission, or that the authority to hold them was by commission, ever questioned, and the practice though with some
irregularity as to the time limit of the commissions was almost
unexceptionally followed, and Courts held under them either as
pre-existing, continuing and general, or neAV and special, for
the particular occasion, doAvn 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 receivedby me the next Judgment—Regina v. McLeans and Hare. 93
day, I had a commission in fact at the opening of the Court,
and as far as I can recollect, it was always read. Of these
commissions, three now in my possession, are not only not
limited, but are giving authority from "time to time" to
deliver the gaols; thus shewing a continuing power, until revoked or otherwise determined by law. The meaning of the
expression from "time to time " is Avell illustrated by reference
to the 24th, 67th, 77th, 82nd, 1st sub sec. 92nd and 4th sub
sec. of 93rd, 101st, 131st, 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 Avords the commission or power thereby
conveyed determined on one user or exercise thereof. Moreover, in these commissions there is not one word of reference to
a "Couit of Assize and nisi prius," nor any grant of power eo
nomine,   the Executive itself  thus recognizing the  distinction
1 • »1 ..-1 *-* "
between the civil and criminal characters of those- Courts, and
the use of the latter only, leaving the civil matters to be dealt
with under the Common Law Procedure Act, and other laws
relating to civil matters, without regard to Courts, which, even
in England, 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 divided into Counties or Ridings, as are the
other Provinces of the Dominion. The commissions therefore,
being in general terms, covered, and were used for holding, the
Courts wherever the Government by proclamatwn directed, from
New Westminster to Cariboo; including Yale, Lytton, Kamloops, 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 prisoners or the Crown. This practice, well-
known throughout the country and at the Bar, has been followed with every Judge during the seven years 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 was gravely urged by the Counsel for the Crown that
out 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
uniform  practice of  the  Provincial  Secretary's   Department 94 Judgment—Regina v. McLeans and Hare.
itself, and of the Courts; could anything be 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 Government, and two of them Attorneys-General, charged with the
criminal administration, it must not go abroad uncontradicted
that they have been during that period hanging and punishing
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,
By the 129th section of that Act it is provided: " That
' except as otherwise provided by that Act, all laAvs in force at
' the union in the several Provinces, and all Courts of civil and
' criminal jurisdiction, and all legal commissions, powers and
' authorities, and all officers, judicial, administrative and minis-
' terial, existing therein at the union shall continue in the Pro-
' vinces respectively, as if the union had not been made. Sub-
' ject nevertheless (except with r. spect to such as are enacted
'' or exist under Acts of Parliament of Great Britain, or of the
' Parliament of the United Kingdom of Great Britain and
' Ireland) to be repealed, abolished or altered by the Parlia-
' ment of Canada, or by the Legislature of the respective Pro-
' vinces according to the authority of Parliament or the Legis-
' lature under this Act."
Now at this time it will be borne in mind, that power and
authority existed in British Columbia to hoLl Courts of oyer
and terminer and general gaol delivery, Avhich, under Imperial
sanction had been introduced into the Province by its own
Legislature, and that, for that purpose, a d as requisite to the
administration of justice in that Province, the Government
under like Imperial authority had power to issue commissions.
With this fact and the plain language of the 129th section,
could anything be more clear than that they were " continued "
until altered by competent legislation ?
This power, however, it is contended by the counsel for
the Crown, must be considered as taken away by the 12th sec.
of the B.N.A. Act, 1867, which declares "that all powers,
| authorities and functions exerciseable by the Governors or
"Lieutenant-Governors of the Provinces with the advice of
" their Executive Councils, or individually, shall, asfar as the
i same continue in existence, and capable of being exercised
I after the union,  in relation to the  Government of  Canada, Judgment—Regina v. McLeans and Hare. 95
"be  vested  in  and   exercised  by  the   Governor-General."
The terms Governors and Lieutenant-Governors in the
12th sec. were used, because in the Provinces originally forming the Confederation such as New Brunswick and Nova Scotia,
&c, the Governors, though holding their appointments directly
from the Crown, and exercising distinct authority and control,
and direct communication with the Imperial Government as to
all Provincial matters, even to tariffs, and separate Provincial
acquiescence in Imperial negotiations with foreign nations, for
instance, the Washington Treaty, as to the Fisheries and
Reciprocity of Trade with the United States, independently. of
the Governor-General of Canada, were nevertheless subordinate
to the Governor-General, and were superseded by him when he
entered those Provinces, and .hence were called Lieutenant-
Governors; whereas with reference to nome of the Colonies,
which at the time of the Confederation it was contemplated
should be'afterwards brought in, such as British Columbia, &c,
the Governors were not subordinate to the Governor-General
of Canada, nor in any way supersedable by him, and therefore
held and retained the title of Governors. Hence, for the sake
of more complete comprehension in the Government of the
whole Avhen united, both terms, Governors and Lieutenant-
Governors! were used in this section.
This distinction is mentioned, not as bearing upon the immediate point in controversy, but to shew the extreme care
Avith which the Act was drawn, and thus negative any prima facie  inference of inconsistency in its several parts.
As to the contention, however, apart from the fact that the
129th section as part of a well fitting structure, is put in long after
the 12th, and therefore with a full knowledge and recognition
of Avhat it meant; and consequently cannot be really inconsistent, it will be observed, that the governing words of the
12th 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 what has the issuing of a commission for a Court
of oyer and terminer, or of general gaol delivery, in British Columbia to carry on the customary and ordinary administration
of Justice in the Province, Avith the government of  Can
ada 9
It is simply a matter of local administration under sub-section 14 of section 92, and sec 129 of B.N.A. Act, and of the
10th and 14th Terms and Conditions of Union of British Columbia with Canada, peculiarly belonging to the
Province.    How, then, can it be said that the issuing of such a 96 ' Judgment—-Regina v. McLeans and Hare.
commission, under such circumstances, is a power, or authority, or function exercisable by the Governor General in relation
to the government of Canada; and therefore taken away by section 12 ?
It has no more to do with the government of Canada, than
the well being of a part has to do with the Avell being of the
whole, and is one of the necessary subdivisions of duties and
labors pertaining to the several sections of a large Confederation, and assigned, as are the other ordinary duties of local
government, to be carried on by the government
of the section, for the section, in contradistinction
to the duties and labors to be carried on by the government of
the general Confederation for the benefit of the Avhole.
There were .certain powers, authorities, and functions,
Avhich, previous to the Confederation, the Governors and Lieut.
GoA'ernors of the Provinces possessed and exercised, which are,
since the Union peculiarly pertinent to the government of Canada, and therelore verv properly taken away; for instance, the
power of making appointments in the Militia, Custom House,
Post Office, negotiations between the Provinces as to conjoint
action on Tariffs, inter-ProAancial works, or with foreign countries, acquiescence in foreign trade negotiations, and not to be
forgotten the power of pardon or mercy by the Lieut. GoA^ernor
as the personal representative of the Crown.
The exercise of such poAvers by the Lieut. Governors of
the Provinces after the B.N.A. Act would clearly conflict with
the government of Canada, and are capable of being exercised
for the government of Canada by the Governor General ; but
the administration of Justice in the Province is pertinent to the
Province itself ; and therefore such powers as, at the time of
Union, for that purpose, existed in the Governors or Lieut.
Governors by and with the advice of their Council or Avithout,
still are preserved to them by the 129di sectiou. Otherwise
from the date of Union in 1871 until 1st of January 1875, when
the Canadian Criminal Law and Procedure were introduced into
the Province, British Columbia would have been without the
means of holding a Court of oyer and terminer, or general gaol
delivery, or of trying criminals, otherwise than by trial at Bar,
with its cumbrous, tedious, and expensive machinery, at the
same time with the English law and Practice in full force, and
no power in the Local Legislature to alter it as bearing on criminal procedure.
The case of the Queen v. Whelan, 28 U.C.Q.B. Rep., p. 1,
so fully commented on at the Bar, to my mind, conclusively recognizes the law that in the absence of any statutory  provision Judgment—Regina v. McLeans and Hare. 97
to that effect, a Court of oyer and terminer and general gaol
delivery cannot be held without commission ; and it is from the
same authority . qually clear that, notwithstanding the 12th sec.
of the B.N.A. Act, the Lieut. Governor of Ontario had still the
power to issue commissions for Courts of oyer and terminer
and gaol delivery, if he deemed it expedient,  (page 72).
The issuing or non-issuing of commissions in that Province
Avas optional, and that could not be, if the power of so doing
was taken away by the 12th sec, for whether in Ontario he held
the power, by virtue of the original adoption of the English/
law and constitutional authority, or by virtue of the specific
statute on that subject in force in Ontario, though passed before the union, when Ontario formed a part of old Canada,
makes no difference. It was a power possessed by the Lieutenant-Governor before the union, and if, as contended, such
power be taken away from British Columbia by the 12th sec,
it must equally have been taken away from the Lieutenant-
Governors elsewhere. Yet such a position was not even hinted
at, though the trial and argument in Whelan's case were after
Confederation. • On the contrary, the error assigned was not
that the Lieutenant-Governor had no such power, but that in
order to make the alternative under the Statute of holding the
Court Avithout his commission legal, it should have been shewn
upon the Record that he had dispensed with it, in the language
of Mr. Cameron, " that the commission which otherwise would
" have been necessary, and which is not shewn to have been
" issued* Avas dispensed with by the Governor."    (Page 18.)
Thus it is plain that the power of issuing commissions for
holding Courts of oyer and terminer, &c, was not by the Court
in Ontario, on that occasion, held as coming within the power
capable of being exercised by the Governor-General of Canada
in relation to the Government of Canada, and therefore taken
away from the Lieutenant-Governor by the 12th sec.
'In the still later case of the Queen v. Amer et al. 42 U.C.
Q.B. 391, where the point more directly came up, it was held
that while the Governor-General -as representing the Queen,
had the prerogative right to issue commissions of oyer and terminer, yet the right was also in the Lieutenant-Governor, and
fin the opinion of Wilson, J) was confirmed by the 65th sec. of
the B.N.A. Act.
The 65th sec. was not intended to confer on Ontario and
Quebec any privileges not equally conferred upon the other
Provinces, but for those two, that section was exceptionally
necessary, because in consequence of the separate individuality
to be given to each,   when the  Act  came into  operation, but 98 Judgment—Regina v, McLeans and Hare.
which at the time of the passing of the Act did not exist, the
new constitutions of their Executive Councils had to be defined;
(see the 65th sec.) whereas with reference to New Brunswick
and Nova Scotia, such was not the case, as will be seen by
reference to the 64th—-Ontario and Quebec at the time of the
framing of the Act were one Government under the name of
Canada, having previously been two under the names of Upper
and Lower Canada, and thus arose the necessity of asserting
with so much particularity in the 65th, the appertainment of
the old existing powers and functions of i hose three separate
Governments, to the new Executives of those two new Provinces.
For this same reason, and ex abunbante cautela, the almost superfluous 82nd sec, giving to the Lieutenant-Governors
of those two new Provinces the power of summoning the Legislative Assemblies may be said to have been introduced.
The terms used in the 65th sec. were intended, it must be
assumed, to prevent the possible inference of the exclusion of
any function or authority which might have appertained to the
Government of Upper Canada, or Lower Canada, or United
Canada, essential perhaps to one or the other, or both, or all,
from origin of race, historical events, or other divergent or
local causes, but which did not exist M the other Provinces.
It will be observed that by the preceding section, the 64th,
the 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 by simple continuance, carried all the authority and powers they then possessed, 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 the 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 application
to particular Provinces, shall apply to British Columbia to the
same extent as if it had been one of the Provinces originally
united by the Act. That Province, then, on coming into Confederation, retained equally with New Brunswick and Nova
Scotia, her executive powers, authorities and functions, within
the scope of the 12th sec, Avhich were again guaranteed to her
by the 129th.
By what Act, then, of the Canadian Parliament, or of her
own Legislature, has she divested herself, or been divested of
the power of holding Courts of oyer and terminer, and general Judgment—Regina v. McLeans and Hare. 99
gaol delivery, and 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 63rd, 64th and 65th sections it must
be remembere i, that while the case of the Queen v. Amer, etal.
recognised the 65th as confirmatory of the right of Ontario, it
no where lays down a single position from which it can be
inferred that such right was taken away from any of the other
Provinces where it had been exercised before.
It may also here be further observed that in New Brunswick, where the old English Procedure- and Practice in Civil
matters prevailed 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 purpose of trying criminals and
holding Courts of oyer and terminer was 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 be deemed necessary or desirable) haviug been questioned
in that Province.
Todd in his late valuable work on Parliamentary Government in the Colonies, at page 398, relative to the distribution of
powers, says:—" The Lieut.-Governors who are sworn to fulfil
" the duties of their station, by oaths ' similar to those taken by
" the Governor-General,' are Avi hin the limits of their respective
I Governments, and subject to the Supreme authority of the
" Governor-General expressly authorised by the Imperial
"Statute to exercise, all powers, authorities and functions
'' previously vested in or exercisable by the respective Gov-
" ernors or Lieutenant-Governors of those Provinces prior to
I Confederation, so far as the same are capable of being exer-
" cised, after the union, in relation to the particular Provinces.
" This constitutes and empowers the Lieutenant-Governors to
" be the appropriate channels to represent and administer the
" authority of the Crown in their several Provinces and to con-
" vey through subordinate functionaries, that authority in all
" matters wherein it is necessary for the Crown to act through
" the Provincial Executive."
The whole argument, therefore, about issuing such commissions being a prerogative right, and consequently not exercisable since the union with Canada, though exceedingly interesting, is untenable and falls to the ground.
Todd, at   page 400,   disposes of it very curtly:     "The 100 Judgment—Regina v. McLeans and Hare.
" position claimed for the Lieutenant-Governors of the Provinces in Canada, that as being the Chief Executive officers
" in the local Governments, they do represent the CroAvn in
" clivers, weighty and important public functions, both legis-
" iative and administrative, has been repeatedly acknoAvledged
"and sustained by decisions of the Courts, and by legislative
" enactments, Avherein the right and duty of a Lientenant-
" Governor to administer such portions of the Boyal Prerogative
" as are essential to the conduct of a Government founded
" upon a monarchical basis, have been unequivocally asserted."
This right denied to British Columbia by her own Crown
officers did not spring from any Provincial Statute, but was a
concession to British Columbia by one Imperial Statute ratified
and confirmed by another, to both of wdiich the Queen Avas a
Nor is the decision of the Supreme Court of Canada in
Lenoir v. Bitchie any authority to the contrary. That Avas as to
the exercise of the prerogative for conferring honors in no way
necessary for the administration of justice in a Province, and
though in the older Provinces, previous to Confederation
exercised by the Lieutenant-Governors, when they were the
direct representatives of the Crown with its assent, was by the
B.N.A. Act, and the censeqnent change of theii position,
resumed by the Crown, and became exercisable by the Governor-General alone as its representative. This ought to be
understood, for the only Queen's Counsel in British Columbia,
the three gentlemen Avithin the Bar, hold their patents from the
Governor-General and have received them since the union.
As to the main question—to repeat: The Queen by
authority of an Act of Parli ment for the Government of British
Columbia, and by her commission issued thereunder, clothed
the Executive of British Columbia with ample poAver to establish Courts and Institutions in the Province for the administration of justice, and subsequently by the B.N.A. Act 1867,
passed by the same Imperial Parliament continued and guaranteed that power until it should be taken away by competent
I cannot, therefore, until such legislation takes place, or a
higher tribunal has so decided, admit that the Lieutenant-
Governor has by A'irtue of the 12th sec. been deprived of any
powers he before possessed for the benefit of British Columbia
except such as are capable of being exercised by the Governor-
General in relation to the Government of Canada as a Avhole,
in contradistinction to the Government of a particular Province.
It  would be disastrous to   say that the  Lieutenant-Governor Judgment—Regina v. McLeans and Hare. 101
could not even with the advice of his Council, issue a commission for the local 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 Columbia, or as an admission that she had none.
We now come to the 1st of January, 1875.
ln 1874, by chap. 42, 37 Vic, the Parliament of Canada
passed an Act, to extend to the Province of British Columbia
certain of the criminal laws, in force in the other Provinces of
the Dominion, lt set forth, in distinct schedules, the laws to
be extended, and among others, the law punishing the offence of
murder, with, and for'which, the prisoners were charged, tried,
and found guilty, and sentenced to death. And also the "Act
' respecting Procedure in Criminal cases, and other matters re-
I lating to Criminal Law." (Chap. 29 32 and 33, Vic. 1869,
as amended by 36 Vic, cs. 3 and 51.)
This extending Act was to go into force, and did go into
force on the 1st Jan., 1875.
By the 5tli sect, of this Act it Avas enacted that ," The Su-
" preme Court of British Columbia shall have power to try and
" determine in due course of law, all treasons, felonies, and in-
" dictable offences whatsoever, mentioned in any of the said
" Acts which may be committed in any part of the Province."
The Supreme Court'of British Columbia has always held
that the Parliament of Canada constitutionally had power to
utilize the existing Courts of this Province for the purpose of
enforcing Canadian laAvs enacted by that Parliament within the
scope oi the Legislative power given to that Parliament by the
B.N.A. Act, 1867. Not, however, it must be admitted, without
some -anxiety, owi g to the conflict of opinion on this subject
in the other Provinces : but whatever doubt may have hitherto
existed has been completely r moved by th.e clear and vigorous
judgment of the Supreme Court of Canada in the case of Valin
v. Langlois, directly upon that point.
The Supreme Court of British Columbia had the power mentioned in the 5th section before, and it only therefore becomes important from the expression "in due course of laAv," as indicating that that course Avas to be in accordance with existing law
(whatever that might be,) and the Acts in the schedules mentioned. A vieAv confirmed by the 7th section which repeals all laws
■ in force in British Columbia inconsistent with or repugnant to,
or making provision 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.
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 procedure against a prisoner from the time of the charge or information first laid 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 all
the Courts of oyer and terminer and general gaol delivery at
which prisoners have been arraigned and tried; and in no instance has any difficulty arisen from any inconsistencies or repugnances such as are referred to in the 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 Avith the machinery over which,
the Parliament of Canada has direct control. They are Courts
and powers latent in the Province under the English Statutes
'and laws introduced into British Columbia as before mentioned,
requiring only the Executive authority by commission to out
them in motion. By the 129th sec, "all Courts of civil and
1 criminal jurisdiction, and all authorities and powers existing
" at the Union shall continue as if the Union had not been made,
" until abolished, or altered by the Parliament of Canada or by
I the Legislature ofthe  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 Mth sub-section of sec. 92, the
Local Legislature had power so to do, where not conflicting with
criminal proceduie, even to the extent of "organizing," had
it been deemed advisable. The inference, therefore, is irresistible, 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 referred to, as part of the ordinaiy machinery for carrying out
the administration of criminal justice; and the forms of the recognizances for witnesses and bail given on the preliminary investigations, bind over to appear at the next Court of oyer and
terminer and general gaol delivery, and the 66th sec. of c 21
32 and 33, Vic, respecting the duties of Magistrates in relation
to persons charged with indictable offences, declares that the
1 forms in the schedule to this Act contained, or forms to the
I like effect,   shall  be   good,   valid  and efficient in law."    All Judgment—Regina v. McLeans and Hare. 103
these are introduced into British Columbia by c 45. 42 Vic.
1874. J
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 that which British Columbia already possessed, and that it authorizes the Supreme Court to sit eo nomine, and hear and determine, simply following the Criminal
Procedure Act, and having the parties charged brought before
it, as in Ontario, or New 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 tof
that Courr was called. On the contrary, the Counsel for the
prisoners produces the official Gazette 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 purposes the Lieut. Governor 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 Crown, that the Supreme Court of British Columbia had criminal jurisdiction, that by statute one Judge could
sit as a full Court, that one Judge did sit, and therefore all was
secundum legem. Not so; the mere personal presence of a
Judge Avill not constitute a Court, unless the Court is assembled pursuant to law, statute, or proper constitutional authority; 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 also produced the record of the calendar of criminal
trials kept by the Registrar, and signed by the Judges under
the head of " General Assizes," as indicating that that was a
recognized title of the Supreme Court, and that consequently
it was before the Supreme Court, 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 simply 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
peculiar jurisdiction, exactly as the terms, Supreme Court 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.
Thus  we  find in  the  Imperial   Supreme  Court  of   Judica- 104 Judgment—Regina v. McLeans and Hare.
ture Act, of 1873, after the 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
capable of being exercised by said High Court, &cj and in the
Judicature Act, 1875, sec. 23': " Her Majesty may at any time
" after the passing of this Act, and from time to time, by order
" in Council provide in such manner and 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, &c, &c
"2. For the appointment of the place or places at which
I Assizes are to be holden on any Circuit.
" 3. For altering by such authority and in such manner as
" may be specified in the Order the clay appointed for holding
" the Assizes, at 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 Westminster Court, but the term that Avas used was " a
I Court of Assize," clearly different in meaning, object, and
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 order the sittings
of Courts, and 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. Apart
from the fact that that Act has never been carried 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 section creating the " Circuit Court " by that name, and giving it
jurisdiction, it is to be remembered that the Proclamation
called no such Court, and no Assize or sitting of the " Supreme
" Court on Circuit." An official proclamation in the Government Gazette can not be treated (in the language of the Attorney-General) as "mere newspaper advertisement." It is the
executive order of the Government of the country, and has to be Judgment—Regina v. McLeans and Hare. 105
obeyed by all officers judicial and ministerial, and all persons
m authority as far as the law permits. It is not the idle language of irresponsible parties, but the grave announcement of
public duty, from those clothed with power.
It is impossible, therefore, in Wm to assume any such
forced construction. It is as great a delusion as to suppose,
that calling a woman a man, Avould make or give her the attributes of a man. The Court has no pOAver to twist and turn a
Statute to accomplish ends in direct defiance of its ordinary
The painful position of the counsel for the Crown is, that
to hold any footing, they have to repudiate the Acts and
language of the Crovvn—pervert the English language itself,—
and contend that the words used by the Legislature, the Crown
lawyers and the Provincial Secretary, did not mean A\hat Avas
intended, or carry the import which in legal and ordinary
language they convey.
There is but one other legal position to examine, and that
is, whether at the time of holding the Court there Avas any commission of oyer and terminer or general gaol delivery extant,
under which it could be held, and on this point I fully agree
with my learned brethren that there Avas no such commission
legally extant, the previous commissions having been determined by the issue and transmission to the Judges of the last
—and the last having been cancelled by the Government
before the holding of the Court.
Thus in the administration of criminal justice in the Province there is a well defined laAv, and an equally Avell defined
practice. In the case of the prisoners both have been departed
from, in forcing their trials at a Court not constituted according to that law.
With rights conferred by one Act of the Imperial Parliament at the time of the settlement of the Colony, and continued and confirmed, so far as Avas necessary for the internal
Government of the Province by another, at the time of its becoming a portion of Canada; with a practice and law adopted
by the local Legislature of its own accord, well known throughout every portion of the Dominion, and carried on in this Province without objection for twenty years; with no Act or any
law directing a change as to the constitution of the Courts, or
affecting pre-existing rights or practice in this respect fsave as
to the procedure under the Canadian Statute of bringing a
party to trial and conviction), ihe Avhole course is suddenly
changed. The English and Canadian and Provincial law and
practice are all  departed from.     The English law, and by its 106 Judgment—Regina v. McLeans and Hare.
adoption the British Columbia hiA\r, absolutely . requires that
Courts of oyer and terminer and geueral gaol delivery should
be set in motion by commission, and without such commissions
unless exceptionally permitted by Statute, they caunot be held.
In British Columbia, there is no such Statute.
According to the decision in The Queen v. Amer, and
others, the Dominion Government can also issue such commissions. That it has such power for Dominion purposes cannot
be questioned, but prerogatives of the Crown may be limited
by legislation, and how far such a right may exist with reference to matters under the B.N.A. Act, 1867, assigned and pertaining to purely local Provincial administration, is a question
not yet judicially determined, and one on which I desire most
carefully to avoid any expression of opinion or of assent. It
cannot, however, here arise, for in this case the Dominion Government or the Governor-General, (constitutionally as to poAver
the terms are almost  convertible) issued no commission at all.
Such commissions 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 Province by the local Government since the union Avith Canada, though, not necessary, a
return has been directed in the commission to be made to Ot-
taAva, it is supposed, because the pardonieg power rested there,
and as far back as May 1873 by 36 Vic, c. 3, it is by the Canadian Parliament enacted that in every case of a seutence of
death, "The Judge before Avhom the prisoner h s been con-
" victed shall forthwith make a report of the case to the Secre-
" tary of State of Canada, for the information of the Governor
" General, and the day to be appointed for carrying the seh-
" 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, inasmuch as
that Government has not-power under the Constitution to alter,
remit, condone, or in any way affect 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 Westmmster on the 12th, to try the prison;
ers, a return was ordered to be made to Victoria, (the Proclamation having been published in the Gazette on the 17th of February .)_
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—Regina v. McLeans and Hare. 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 abandoned, and the old form resumed. In reply to this remonstrance in M.rch the Judges are briefly informed "that no
I commission from the Lieut. Governor is necessary to entitle
I 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" atNew Westminster was nevertheless not withdrawn. No other Court was
called, and the so called Court of oyer and terminer at New
Westminster sat under and according to that Proclamation.
Thus say the prisoners : "You departed from law. You had a
" Court which you could have used, Avhich could have been
" held without any commission, and Avhere 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." Such is the language of the prisoners—it is comprehensible.
When the Judicature Act Avas 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 Avith them, whether such legislation might not perhaps be considered as affecting criminal
procedure, and therefore "ultra vires," the suggestion was withdrawn. Nothing, however, could more clearly demonstrate
that under existing law in British Columbia commissions for
Courts of oyer and terminer and general gaol delivery were
leg Jly requisite, than the suggestion that legislation was necessary 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 offics 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 108 Judgment—Regina v, McLeans and Hare.
Judges, if they thought it wrong, they should have declined to
hold the Court and then he, the Attorney-General, would have
consulted the Crown officers at Ottawa.
Surely more unconstitutional doctrine never fell by accident from an Attorney-General.
In the first place the issuing such commissions for holding
Courts to try criminals pertains peculiarly to the administration
of justice; and the department of which the Attorney-General
is the head, by Avhose advice the Lieutenant-Governor acts
when he performs the manual duty of affixing his signature, and
for which his ministry are responsible whether he takes their
advice or refuses it. No responsibility rests with the Lieut. -
Governor, and the doctrine that that matter appertained to him
solely would hardly be advanced in any other Province of the
Secondly. The practice of Ontario, ash as been shewn, was
no authority for the conclusion arrived at, for there an express
statute rendered the issue of such commissions optional or not,
whereas in British Columbia there is no such Statute. The
Court cannot be held Avithout commission, and the B.N.A.
Act, 1867, expressly reserved to British Columbia all the preexisting powers and functions (not capable of being exercised
by the Governor-General for the Government of Canada) pertaining to the office of Lieutenant-Governor in Bri ish Columbia, of which for the purposes of the administration of justice
that was one.
Thirdly.    The assembling of Courts in British Columbia,
_/ O WBfi
for the trial of criminals, is by the authority and direction of
the Lieutenant-Governor in Council at the times and places he
designates, and it is the duty of the Judges if possible to carry
out the Proclamation for that purpose. If the prec utions they
suggest are disregarded, the duty still remains, and whatever
they may think ofthe course pursued, they can decide no point
not brought before them judicially; they are not the advisers of
the Lieutenant-Governor, or responsible for his acts, but simply
in their official capacities, the Judicial exponents of the law.
The Attorney-General says, had the Judges declined, he
would then have obtained the opinion of the law officers of the
Crown at Ottawa. He has done so, for in the conclusion of his
letter he says, (and this was on the 8th of April) : "In view of
" the doubts now entertained by the learned Judges, Avith respect
I to this matter, 1 shall be glad if they will report them, and
I the reasons on which they are based, to the Honorable the
" Minister of Justice, and I shall at the same' time take the opportunity of communicating to him the views of the Govern- Judgment—Regina v. McLeans and Hare. 109
| ment on the subject." The reply of the Minister of Justice,
the first 1 aw officer of the Crown,' at Ottawa, has been what
every constitutional lawyer knew it must be: ' 'The Cabinet think
" that question of validity of trial should be decided by Court
"on habeas corpus or otherwise." The law officers of the
Crown at - OttaAvt cannot be expected to give an opinion on
questions affecting'the lives of prisoners in custody in British
Columbia, for local offences, where there is a proper constitutional tribunal for determning such questions, and where those
questions had not received any judicial hearing or decision.
Moreover such an opinion would not be binding on a Court, or
carry the weight resulting from a judgment formed after able
argument on both sides, from which judgment there is also an
appeal to a still higher and more learned Court.
If there be a failure of justice in this case, some other
cause must be sought, for placing the responsibility of that
failure on the Judges collectively, or personally, on the learned
Judge who presided. Responsible Government is too well
understood in Canada to admit of any such attempt.
It is inconceivable, for Avhat reason, on the very eve of
one of the most important trials that could be held in the
country, this sudden revolution in practice should have been
adopted, notwithstanding the earnest and united representations
of the Judges. And it is to be observed that tbe reason, and
the only reason, then assigned, that commissions were not necessary, is not the reason now relied on, that the Lieutenant-Governor has no power to issue them.
In the mildest language it was a mistake. The prisoners,
however, are entitled to the benefit of it. In Martin v.Machono-
chie, A. D. 1878, Law R. 3rd Q.B. div. 775, it is said by Lord
Chief Justice Cockburn, referring to matters of form and procedure : "It seems to me I must say a strange argument in a
| Court of Justice to say that when, as the law stands, formal
I proceedings are in strict hiw required, yet if no substantial
" injustice has been done by dealing summarily with a defend-
1 dant, the proceedings should be upheld. In a Court of Law
" such an argument, a convenienti, is surely inadmissible. In
1 a criminal proceeding the question is not alone whether sub-
" stantial justice has been clone, but whether justice has been
I done according to haw, all proceedings in pcenam are, it need
I scarcely be observed, strittissimi juris. Nor should it be for-
" gotten that the formalities of law, though here and there they
| may lead to the escape of an offender, are intended, on the
" whole to ensure the safe administration of justice and the
" protection  of innocence.    And, it must be observed, a party Judgment—Regina v. McLeans and Hare.
accused has the right to insist on them as a matter of right,
of which he cannot be deprived against his will; and the
Judge must see that they are followed. He cannot set himself
above the law which he has to administer, or make, or mould
it to suit exigencies of a particular occasion. Though a murderer should be taken reclhanded in the act, if there is a flaw
in the indictment the criminal must have the benefit of it. If
the law is imperfect it is for the Legislature to amend it. The
Judge must administer it as he finds it, and the procedure
by which an offender is to be tried, though but auxiliary to
the application of the substantive hiAv, and to the ends of justice, is as much a part of the law as the sal stantive law itself.
I cannot, therefore concur in the view that because the defendant might have defended himself on this summary proceeding, or if a formal suit had been instituted against him,
must upon the facts necessarily have been condemned, therefore the proceeding in question was valid, and ought to be
upheld. Such reasoning has, and can have, no place in an
English Court of Justice." These words should be writ; en
on the footsill of every Court, so that when the vilest
criminal crosses the threshold of the Temple of Justice, he
may read there the majesty of his rights, and know that the decision which is to affect his fate, will not be i fluenced by fear
or favor, expediency or prejudice. This is law—it is the will
of the nation—and must be obeyed in every portion of the
British Empire.
It is better, perhaps, before concluding, briefly to summarise the positions in this case.
1. The Government, responsible under the constitution for the administration of justice, by Proclamation under the hand of its ' duly authorised officer,
the Provincial Secretary, in the Official Gazette notifies "the holding of a Court of assize, nisi prius, oyer
" and terminer, and general gaol delivery at New Westminster"
on a particular day for the trial of prisoners accused of atrocious 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, contends in the most urgent manner, not only that the Government
had no power to call such a Court, but that no such Court existed in the Province.
2. They prove by the production of the local Act establishing a Supreme Court, and defining its constitution, and further
by an Act of the Dominion Parliament directly confirming such
power if it did not exist before, that there w is in the Province, Judgment—Regina v. McLeans and Hare. Ill
even  by their own admission, a Court with ample power  to try
the prisoners which they did not call.
3. They repudiate and deny the existence of the constitutional authority in the Lieut. Governor to put the Courts of
oyer and terminer, and general gaol delivery in motion by commission—issue a commission and cancel it—and then contend
that a Court which had no existence, could be held by virtue of
a previous commission which the Lieut. Governor had no power
to issue.
4. The Government claiming responsibility for the administration ot justice on the eve of a most important trial, suddenly deviates from the well established practice, and after attention is called to the deviation in the most earnest manner by
the Judges, neither amend or recall the Proclamation lohich if
their contention be true was erroneous, or even pursue the old
accustomed course, but ignoiing the responsibility before
claimed, assert that the Judge ought not to have held the Court
they ordered, thus asking him to take the resposibility, and to
decide a question not judicially before him, but which would
have to be raised in favorem vitoz, though at that period there
was ample time and opportunity to remove all difficulty.
On the other hand, the prisoners, by their counsel say, you
did call a proper Court, you had full power to call it, it was in
accordance with old and established practice, but after you called
it you refused to do what by law was necessary to give it authority
to act; and you did not call or proceed in accordance with the
practice of that other Court, which you say did exist in the
Province, and had power to try us; consequently We were not
tried before any legally constituted Court, or according to law.
It is useless to say more, though taken red-handed in the
act, the prisoners must have the fair play of British justice.
The Rule must be made in the terms already mentioned
by the Chief Justice, the prisoners remaining in custody until
delivered in due course of law. APPENDIX  A.
Correspondence between the Judges and the Executive on
the trial of Megina v. McLeans and Hare, without a
The Provincial Secretary to Mr. Justice Crease, and each of the
other Judges, with triplicate commission.
Victokia, B. C, March 9th, 1880.
Note .—This and the commission were actually delivered on the 8th March
to the Chief Justice, I and Gray, J., absent.—Henky P. P. Grease.
Sik,—I am instructed by the Hon. the Provincial Secretary to forward you
the enclosed commissions, signed by His Honor the Lieutenant-Governor thisday.
I have the honor to be, sir, j-onr obedient servant,
Deputy Provincial Secretary.
The Hon, Mr. Justice Grease.
The Chief Justice to Provincial Secretary.
March 9 th, 1880.
Sib,—I have to acknowledge the receipt of your letter of this date with
accompanying commission.
I observe that it is couched in unusual terms, in that it is made returnable
at Victoria.
This novelty was, I believe, first suggested a fe%v months ago, and immediately abandoned without discussion as soon as pointed out by the Judges.
There can be little doubt but that it is erroneous, the printed form itself
shows that the variation is quite a recent suggestion, and I am not aware what
advantage is proposed to be obtained from it, or on what grounds it is now revived at the last moment before holding the New Westminster assize
I am not prepared to say at this moment what the effect of the innovation
may be.
It cannot affect the statutory obligation to make returns to the Secretary of
State at Ottawa.
It may invalidate the commission. All the expense of the assize will be
thrown away, and the prisoners would have to be tried over again. This would
have to be decided on writ of error, and as four lives are at stake, it would probably be taken to the Judicial Committee, involving great expense and delay. 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 be considered at leisure. I am, &c,
T. El wyn, Esq., Deputy Provincial Secretary. Appendix—Regina v. McLeans and Hare.; 113
Mr. Justice Crease to Provincial Secretary.
Supreme Court, B. C, March 9th, 1880.
Sik,—I have the honor to acknowledge the receipt of a commission of oyer
and terminer returnable at Victoria, in lieu of whi^h I respectfully request that
his Honor the Lieutenant-Governor may be pleased to issue a commission of
oyer and terminer to the Judges returnable at Ottawa, as aforetime accustomed,
all the Judges having such grave, doubts of the effect the proposed innovation
may have on the validity of the first named commission, that where men's lives
are, as at this moment, immediately at stoke, they cannot conceal a sincere and conscientious anxiety that no change may be made in the form of commission hitherto used until, at least, the conclusion of the impending assize at New Westminster and the return of the Hon. Attorney General shall have given time for a full
consideration of so important a subject.
I have the honor to be, sir, your obedient servant,
The Hon. the Provincial Secretary.
Mr. Justice Crease to Provincial Secretary.
Supreme 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 any failure of, or impediment to, justice should
be attributed to the absence or inaction of any of the Supreme Court Judges, I
shall be prepared, as either .of my brother Judges, if necessary, would have been,
to proceed on Friday next to hold the assize at New Westminster.
Retaining however, 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 the retention of the old form as th*5 only
safe course for the Executive, especially where life is concerned, should any
check in the administration of justice arise from acting under the new commission, I shall deem myself absolved from all responsibility whatever in respect to it.
I have the honor to be, sir. your obedient servant,
Mr. Justice Gray to Deputy Provincial Secretary.
Victoria, B. C. March 10, 1880. |
Sir,—I have the 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 alteration 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 Judges will be prepared to hold the New Westminster assizes,,
and Mr. Justice Crease had actually embarked for that purpose, and will doubtless go.
The responsibility of any failure of justice arising from such cause must,
however, rest with those who make the change, and until the Attorney General,
the constitutional adviser of the Crown,  returns and has an opportunity of con- 114 Appendix—Regina v. McLeans and Hare.
sidering it,  it would perhaps be better stare super antiguas vias, 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. GRAY,
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
I Supreme Court to hold a court for the trial of prisoners at New Westminster."
I am to add that the Lieut. Governor in Council has in consequence cancelled the commission bearing date the 9th March, 1880.
I have the honor to be, sir, your obedient servant,
Provincial Secretary.
The Hon. Sir Matthew B. Begbie, Chief Justice.
The Chief Justice to Provincial Secretary,  (after Mr. Justice
Crease had left Victoria on Circuit.)
Court House, 12th March, 1880.
Sir,—I beg to acknowledge the receipt of your's of yesterday date.
I believe Mr. Justice Crease, unprovided with any commission of assize, or
of oyer and terminer, or of gaol delivery, left this morning to hold the assizes at
New Westminster. [Of course you are prepared for the contingency that the
whole of the criminal trials, should any take place, will probably be questioned
and possibly be held irregular and valueless.]
I wish to recall or expunge an expression in my letter to Mr. Elwyn of the
9th inst.. viz.: "There can be little doubt but that it (sic) [the innovation] is
" erroneous."
This expression of opinion will be seen to be contrary to the gist of the whole
letter, and was merely due to my overhaste in answering on the moment Mr.
Elwyn's letter of the 9th inst., .Mr. Justice Crease being about to depart early on
the (9th) 10th inst.
It escaped my attention until pointed out yesterday as being contradictory of
the subsequent paragraph in the same letter, viz: "I am not at this moment pre-
I 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 Gray in his letter of yesterday's date
(in which he refers to mine of the 9th instant), wishes to adhere.
I have the honor to be, sir, your obedient servant,
Mr. Justice Crease to Acting-Attorney-General.
New Westminster. B. C, March 12th, 1880.
Dear Sir,—I have come to this place in accordance with the terms of the
hon. Provincial Secretary's letter of the 11th of March, which informs me that
the Committee of the 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! and further, that the Lieut-Gov-
ernor-in-Council has,  in consequence, cancelled the  commissions bearing date I
Appendix—Regina v. McLeans and Hare. 115
the 8-9th March, 1880, which required the Judges to report to Victoria B.C., and
without expressing an opinion as the soundness of the advice on which the Provincial Government requires me to act, or assuming any responsibility resulting
therefrom. I beg to state that rather than cause any obstruction to the administration of justice, I am prepared to carry on the Assize according to the arrangements of the Provincial Government, as indicated in the letter of the 11th inst.
I am, dear Sir, yours truly,
Note.—This was delivered personally to  Mr. Eli Harrison, ir.—H. P  P
Mr. Justice Crease to Actiug-Attorney-General.
Colonial Hotel, N. W., 14th March, 1880.
Sib,— I have just received the fresh indictment, Regina vs. Frank Gamon,
—stealing in a dwelling house, and will alter my programme of indictments by
the addition.
As the Government, by the Secretary's letter of the 11th inst, referred to in
my note to you of the 12th inst, have relieved me Of, and assumed to themselves
the whole responsibility as tc the conduct of this Assize without any special
commission of the Lieut.-Governor, I take this opportunity before plunging in
medias res to-morrow, to remind you of it, and prevent the possibility of misconstruction in case any point should be raised on that score by the defense.
I have no intention myself of raising an impediment to the Government
doing as they please in the matter, but wis to guard myself beforehand from all
responsibility respec ing it, should any such arise.
If you have any other indictment, say of Excise re Graham, I ought to have
it as soon as possible.
Yours obediently,
Mr. Justice Crease to Acting Attorney-General.
Colonial Hotel, N. W:, 15th March, 1880.
Sib,—Is Graham s indictment ready ?     Let me have a line by bearer to say
whether you received my notes of 12th and last night to the effect that Government, taking all the responsibility of proceeding without commission could do
as they pleased, were safely delivered by my messenger.
I am, <fcc,
Mr. Eli Harrison, Jr., to Mr. Justice Crease.
New Westminster, loth March, 1880.
Sib, - I have the honor to state that the letters written  by you relative to
holding the Assize at New Westminster without a commission, were received by
me on the 12th and 14th insts., respectively.
I have the honor to be, etc.,
Mr. Justice Crease to the Attorney-General.
Supbeme Coubt, 29th March, 1880.
Begina vs. the three McLeans and Alex. Hare.
gIB> T have the honor to inform you that under the 36 Vic. c. 3, s. 1, I am
ordered'as the presiding Judge to report upon the trial of the above four prisoners now lying in New Westminster gaol under the sentence of death for the
murder of John Ussher. .
This report cannot be completed without entering into the question of tne. 116 Appendix—Regina v. McLeans and Hare.
validity of an Assize held as this has been, without commission, of oyer and terminer, gaol delivery and nisi prius
The Judges still retain that doubt already so strongly but respectfully expressed beforehand to the Government, and the Assize was held under protest.
The doubt has not been removed, or any attempt made to remove it, although sufficient opportunity and time have been allowed for the purpose.
Nor are the Judges made acquainted with the reasons which, over-ruling
their objection, influenced the Executive to decide on the 11th inst. that there
was no necessity for a commission of oyer and terminer, gaol delivery and nisi
prius, to entitle a Supreme Court Judge to try the prisoners at New- Westminster.
With so many witnesses brought down at great expense, and an unprecedented number of jurors attending on the 13th, the Victoria steamer leaving for
■New Westminster on the 12th, time was too pressing for either debate or delay;
and the circumstances too urgent to allow the presiding Judg" to do more than
comply with the wishes of the Government to hold the Assize, and leave the
question of the validity of the Assize to come up in the usual way. The point
was not, however, raised at all.
It has become, therefore, a matter of duty in the Judges of the Supreme
Court where life is at stake, to afford an opportunity to all parties to argue the
matter in full Court, that, if possible, the doubt may be removed, and the validity
of the trial, should such be the decision, established or otherwise as maj' be; and
also to enable the argument and views on both sides, with any opinion which
may be elicited from the Court to be transmitted as a necessary part of the
presiding Judge's report to the Secretary of State for the information of his
Excellency the Governor-General, particularly as the whole matter took place
during the absence of the hon. the Attorney-General.
I therefore, in pursuance of the above duty, now write to you and the
counsel for the prisoners,' to afford an opportunity to have the point brought up
and discussed, in the full Court at an early day, in the shape of a motion for a
rule nisi for a habeas corpus.
That form will enable the Court to dispense with the risk and expense of the
attendance of the prisoners, at all events during the early 'stage of the proceedings.
I have written briefly to both counsel for the prisoners to the above effect by
the same post.
I have the houor to be, etc.,
Duplicate sent to Mr. Theodore Davie for Hare;
Do do     Mr. Norman Bole for McLeans.
Supreme Court, March 29, 1880.
Begina vs. the McLeans and Hare.
Sib,—A doubt-having arisen as to the validity of the recent trial and sentences herein, and the Judges having agreed to hear any application for.a rule
nisi for a habeas corpus which may be made before the full Court at an early day,
upon the question of the necessity or reverse of a commission of oyer and terminer and gaol delivery and nisi prius to the validity of the recent New Westminster Assize.
I write to acquaint you that I have ,so arranged that this additional opportunity for resolving any -uch doubt may be thereby afforded the hon. the Attorney-General and the two counsel for the prisoners, should they, or any of them,
be advised to take advantage of it.
I am, Sir, your obedient servant,
HENRY P. PELLEW CREASE. Appendix—Regina v. McLeans and Hare. 117
Mr. Theodore Davie to Mr. Justice Crease.
Langley Street, Victoria, April 7th, 1880.
Hon. Mr. Justice Crease:   Begina vs. the McLeans and Hare.
Sib,—I have to apologize for not having sooner answered your communication herein of the 29th ult.
I am not instructed to take any proceedings on behalf of any of the prisoners.
Apart from this consideration, I cannot see that any practical good could result
in event of success in the suggested application.
It is_ hardly necessary for me to express the desire that the objection raised
at the trial as to the vicinity from which the jurors were returned, as also the
difficulty now present to the minds of the Judges, and mentioned in your letter,
may be fully represented to the Minister of Justice.
I am, Sir, your obedient servant,
Mr. Bole to Mr. Justice Crease.
New Westminsteb, B.C., 31st March, 1880.
Begina vs. the McLeans and Hare.
Sib,—I have the honor to acknowledge the receipt of your letter of the 29th
March, inst.
I should deem it a very great favor if sufficient notice of such an application
by the hon. the Attorney-General were ordered by the Court to be given me, that
I might, if so advised, attend on such motion.
I have the honor to be, Sir, etc,,
Mr. Justice Crease to Attorney-General Walkem.
Supbeme Coubt, 7th April, 1880.
Begina vs. the McLeans and Hare.
Sib,—I have just received the enclosed from Mr.Theodore Davie, counsel for
Hare, which you will see still leaves the doubt unanswered.
Your obedient servant,
Supreme Court, 2nd April, 1880.
Sir,—In order that you may be fully informed I enclose a copy of the letter
I sent to Mr. Bole, which is also a copy of the letter I sent to Mr.  Theodore
Davie, the counsel for the prisoners.   And I add a copy of Mr. Bole's reply.
Your obedient servant,
The Attorney-General to Mr. Justice Crease.
Attorney-General's Depabtment, 8th April, 1880.
Begina vs. the McLeans and Hare.
Sir.—I have the honor to acknowledge the receipt of your letter of the 29th
ult., which expresses, as I understand it, the views of the learned Judges of the
Supreme Court collectively.
According to the correspondence it would appear that two difficulties arose
before the trial took place, i. e.: I
1st. As to where the commission to hold the Assize should be made returnable; and .   .
2nd.    As to the necessity for a commission.
Discussion upon the first point led his honor the Lieutenant-Governor to
consider the question whether he had any authority in the absence of direct
statutory power to give commissions at all. -As this was a matter pertaining to
^ 118 Appendix—Regina v. McLeans and Hare.
the fnnctions of his office solely, his honor gave it the most serious consideration,
and during my absence availed himself of such advice as my Department could
obtain and place before the Government.
After ascertaining the practice of Ontario, and receiving the advice tendered,
his honor felt that he had no power to issue a commission to the Judges. He
had, therefore, no alternative but to decline to do so. The responsibility of determining this matter was, and is, one which the Government must necessarily and
exclusively assume.
This conclusion Avas communicated to your honor and the other Judges by
letter from the Provincial Secretary on the ilth ult., before you left Victoria for
New Westminster, the venue of the trials.
It then became, as I respectfully submit, a question for the consideration of
the learned Judges exclusively, as to whether any one of them would hold a Court-
without a commission. If they had concluded that a Court could not be legally
held and had consequently declined to try the prisoners, the Government would
have accepted their decision with all proper respect, and have taken steps to
obtain the opinion of the law officers of the Crown at Ottawa upon the subject.
The learned Judges, however, seem to have decided that one of their number
should preside; and the proposed Assize was held accordingly by your honor.
In reply to the observation in your honor's letter of the 29th ult, that "the
Assize was held under protest," I beg most respectfully to remind you that the
Government has not in any way sought to influence or move the Judges to take
any step Avhich they might consider illegal or improper. On the contrary,
whilst assuming the full responsibility of deciding that the Lieutenant-Governor could not legally issue a commission, it remained beyond doubt for the
Judges to decide for themselves as to what they could, or could not, legally do in
the premises.
Whilst, therefore, acknowledging in the fullest manner the courteous intentions of the learned Judges to comply with the desire of the Government that a
Court should be held at New Westminster, I beg. on behalf of the Government,
to most respectfully disclaim any responsibility for your honor's act in trying
and sentencing the prisoners, if these preceedings were illegal. In making this
disclaimer, it is perhaps unnecessary to observe that the Government does not
share the doubt which the learned Judges entertain as to the validity of the trial.
As you honor observes, the question which presses so much upon the learned
Judges, was not raised by the prisoners' counsel at the trial, or as appears by a
copy of his letter of yesterday addressed to your honor, and with which I have
been favored, does he intend to present it to the Court.
Indeed, it appears that the question was not deemed by your honor, at the
time of the trial, one of sufficient gravity to justify you in withholding sentence
and reserving the point, although in the case of Gamon, convicted of a misdemeanor, at the samefiAssize, a much less important point was reserved, and sentence deferred.
With great deference I submit that the trial having been concluded without the
point being raised or reserved, though the prisoners were defended by counsel;
and the sentence having been passed, the case can now only be dealt with by his
Excellency the Governor-General in Council.
I much regret that any doubt should be felt by the learned Judges as to the
legality of the trial, but taking the views of the whole matter which I have had
the honor to express, I cannot willingly concur in any steps aimed at by the impeachment of its validity; and especially so. as these views seem strongly fortified
by the written opinions of the learned Judges on the Judicature Act, 1879, wherein they express themselves satisfied, that the Lieutenant-Governor in Council
having fixed the time and place of an Assize, any Judge of the Supreme Court
has power, without a commission, and virtute officii to hold the court.
In view, however, of the doubts now entertained by the learned Judges with
respect to this matter, I shall be glad if they will report them and the reasons
upon which they are based, to the honorable the Minister of Justice, and I shall Appendix—Regina v. McLeans and Hare. 119
at the same time take the opportunity of communicating to him the views of the
Government upon the subject.
I have the honor to be, etc.,
Mr. Justice Crease to the Attorney-General.
Chambebs Supbeme Coubt, Monday, 12th April, 1880.
Sib,—I have the honor to inform you that vour letter of the 8th was  delivered here on Friday afternoon (9th.)
I observe that you now, on behalf of the Executive, allege a totally different
ground for the non-issuing of a commission from that which was stated  in the
letter of the Provincial Secretary of the 11th March to each of the three Judges.
I cannot admit the accuracy of your recollection of facts, and entirely fail to
perceive the cogency of your argument.
I have the honor to be, etc ,
Judge of the Supreme Court.
In Regina vs. McLeans and Hare, between the Judges of the
Supreme Court and the Hon. the Attorney-General on the
Draft B. C. JudicatureBell, 1879, submitted by him for
their opinion.
Memorandum, 7th March, 1879.
lo the Hon. Attorney-General:
It is of course impossible even at some days' notice to give any exact or exhaustive opinion, as to what parts or sections, with or without alterations to meet
local exigencies, of the very voluminous English Judicature Acts, might, or might
not, be usefully applied here.
The whole circumstances of the composition and operation of the various
Courts in England, inducing the recent changes there, have always been extremely different from the circumstances here. The first thing to be done, therefore,
is to set aside as inapplicable or unnecessary, all the clauses and expressions in
those Acts, which are intended solely to meet a state of things not to be found in
British Columbia.
Two great evils were complained of in England, which at last, after various
efforts by the most experienced Judges, wit many alterations and changes of
intention, were attempted to be remedied by .the Judicature Acts of 1873, 1875
and 1876.
1 The first of these evils was the anomalous conflict, and the equally anomalous concurrence of jurisdictions, among several independent Courts, each maintaining a plurality of Judges. There was a concurrence of jurisdiction between
the three independent Courts of Common Law, viz.: The Courts of Queen's
Bench, the Exchequer .nd the Common Pleas; which were not at all bound by
each others' decisions, though preserving the same principles of right. There
was occasional conflict of juri-dictiou, between these and the Courts of Chancery,
Bankruptcy, &c. and the Ecclesiastical Courts, all of which were governed by
principles of right and equity, differing in many respects among themselves, and
differing also from those which were observed in the Courts of Common Law.
There were also different Courts of Appeal. These circumstances.^ it was said,
exposed the Courts to the risk of conflict, and the suitors to the risk of being
baffled, and it was now resolved to attempt a remedy.
2. The second evil alleged, was the delay in hearing causes, resulting in
continually augmented arrears, which the Judges, sitting, often four or five together 120 Appendix—Regina v. McLeans and Hare.
in Banco, or even eight or nine together in the Exchequer Chamber, were unable
to keep down.
To remedy these two evils, then, all the various Superior Courts of Westminster, and all their various jurisdictions, were gathered into a single Court,
denominated the High Court of Justice; and then all the various heads of jurisdiction were immediately re-distributed back again to "Divisions" of the High
Court, presided over by the same Judges, distinguished by the same names, and
having the same separate jurisdictions, as the extinct Courts previous to amalgamation; only called, and in fact being "Divisions" instead of Courts Queen's
Bench Division, Exchequer Division, &c, instead of Queen's Bench Court, Exchequer Court, &e. They are no longer separate, independent Courts, but
separate Divisions of one High Court,
Further, there was constituted by those Acts, one Common Court of Appeal.
And to prevent the alleged waste of judicial power (in the re-hearings appeals,
&c, in Banco and in the Exchequer Chamber) appeals and re-hearings were to
be taken before one. two or three Judges, instead of from four to eight or nine;
which of course would set at liberty a considerable number to act as Judges in
the first instance, at nisi prius, &c.
In the Supreme Court of British Columbia there has, of course, never existed
any conflict or concurrence of jurisdiction, such as caused the complaints in
England, During the first twelve years of the existence of the Court any such
conflict or concurrence was physically impossible, for the Court was composed
of a single Judge; and although since 1872 there have been three Judges, the
three, and each of them, have, and always had, precisely the same jurisdiction
as in that year; being neither less nor more than that which the sole Judge possessed alone in 1858 (except as to in Bankruptcy, which was taken away in 187^>.)
Neither has there been any delay of Suitors. Instead of hundreds of cases remaining unheard, though ready to be heard, at the end of each sitting, there has
never been the postponement of a single case over a single sitting, (save for the
convenience and at the request of parties.) Every case has generally been heard
as soon as it was set down.
Everything, therefore, in the English Acts which refers solely to either of
these two objects viz.: the abrogation of conflicting or concurrent jurisdictions,
and the acceleration of the decision of causes ready to be heard, is unnecessary
to be considered. And it is important to reiterate this, because the existence
hereof several conflicting jurisdictions was prominently, and indeed alone,
mentioned as the cause of the introduction of the present measure, and because
some such notion appears to have induced the insertion or retention of many
clauses and phrases in the present Hill, which are in fact unnecessary or mischievous.
There are indeed many various heads of jurisdiction entertained in the Supreme Court of British Columbia, but these do not occasion any conflict. There
is hardly any Court from the highest to the lowest, which has not various heads
of jurisdiction. Justices of the Peace have more than can be well enumerated.
The County Courts in England have more various jurisdictions than the Supreme
Court here; but nobody ever called that a conflict of jurisdiction. The House of
Lords has appellate jurisdiction in Scotch cases, and in Irish cases, in Chancery
and Common Law, in Criminal and in Bankruptcy matters. But although there
have been many proposals for simplifying and improving appeals in that Court,
no law reformer has hitherto suggested that there should be a Scotch side, an
Irish side, a Chancery side and a Common Law side.
Any arrangement of that sort would impede and embarrass both the suitors
and the Court; and in our opinion, so it would here, and would moreover tend to
introduce a real conflict of jurisdiction, if what might probably occur, each "side"
were ordinarily presided over by the same Judge. This notion of "sides" seems
to have been suggested by the various _"Di visions" created by the English Acts,
without a due consi.leration of the entirely opposite condition of affairs here.
And between the various "Divisions" in England there have in fact arisen considerable differences of opinion as to their respective jurisdictions, and the only Appendix—Regina v. McLeans and Hare. 121
probable result of creating "sides" in the Supreme Court here would seem to be
to open the door for the like differences here. In England the "Divisions" are
a, step towards the amalgamation of independent Courts. In British Columbia
the sides would be a step towards the disintegration of the Court, which has
hitherto been whole and entire.
The English Judicature Acts, however, not only attempted this amalgama-
"°n of tne Oourts, (an amalgamation, which the reports shew to have been
effected rather in theory than in practice) and the economy of the time of the
Judges (iii which the Acts have perhaps been rather more successful), but taking
noticf of the two most frequented branches of jurisdiction, namely those previously administered in the Courts of Common Law and the Court of Chancery,
it is provided as the let of 1873, says incidentally that whenever the rules in
these two (extinct) Courts differed, the rule of the former Court of Chancery
shall prevail in the n !w High Court (see 25 sub. sec. 11) and in every other
Court in England having jurisdiction in the like matters.     (sec. 89).
We have had occasion from time to time to re *ret, that provision has not
been hitherto made in British Cola nbia to the like effect; and we think that so
much of the various clauses in the English, Acts as are directed to this end may
be usefully adopted here.
In fact, the last sub section of section 25, and section 89 of the English Act
of 1873, declare all that is essential.   The rest is merely ancillary,
In the following p irt of this me noranduoi we have endeavored, as far as
our time will allow, to point out how, in onr opiniou, this adoption may most
safely be mad<i.
MATT. B. BEGBIE, C. J. ) Judges of the
HENRY P. PELLEW CREASE, J.   f     Supreme
J. HAMILTON GRAY, J. )   Court, B. C.
Victoria, 7th, March, 1879.
Extract Draft Judicature Bill, before referred to.
6. The Lieutenant-Governor, by Commission of Assize, or by any other
Commission, either general or special, may assign to any Judge or Judges of the
Supreme Court the duty of trying and determining, at any place or places specially
named in commission, any causes or matters, or any questions or issues of
fact, or of 1 iw. or partly of fact and partly of law; in any cause or matter pending
in the said Supreme Court, or the exercise of any civil or criminal jurisdiction
capable of being exercised by the said Court; and any commission so granted
shall t>e of the same validity as if it were enacted in the body of this Act;_and any
Judge or Judges appointed Commissioner or Commissioners in pursuance of
this section shall, when engaged in the exercise of any jurisdiction assigned to
him or them in pursuance of this Act, be deemed to constitute a Court of the-
said Supreme Court.    .
The Judges' observations thereon.
Part 2. Sec. 6. This is apparently taken fromthe English Act, which enables
the Courts to appnut additional Commissioners 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 Acts to remedy, viz.: arrears in the trial of
issues. The clause is 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 circuits and Assizes,  which when fixed,  the Judges of the Supreme Court virtute
officii hold. . . .       u    T   ,      , ,.
'     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 K
122 Appendix—Regina v. McLeans and Hare.
unnecessary to throw any doubt on the legality of a sitting held by more than
one Judge.
The provisions and subsequent portions of the Draft Bill
and observations included in this memorandum, although important comments on the Act, are too long to be inserted here,
except the following, as to—
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 regulating the vacations to be observed by the Court and in the offices
(2.) For regulating the pleading, practice, and procedure in the said Supreme 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 the evidence whenever it may be expedient or desirable to do so:
(3.) Generally for regulating any matters relating to the practice and procedure of the said Court, or to the duties of the officers thereof, or to
tbe costs of proceedings 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, the issuing and hearing
of summonses, and generally for the efficient dispatch of Chamber
(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 prescribing, 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 and 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 ease may be, to the jurisdiction of the said Court as a
Court of Equity, of Common Law, of Probate, of Divorce and Matrimonial 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, 11876) 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—Regina v. McLeans and Hare. 123
British Columbia, shall be the Rules and Orders in force in the Supreme Court
after the commencement of this Act.
All such Rules may be altered and modified and revoked, and all new Rules .
shall be made by the three Judges of the Supreme Court, and all such Rules of
Court, alterations and modifications as aforesaid shall be laid before the House
of Assembly within one week next after the making thereof, if the House be then
sitting, or if not, within seven days after the commencement ofthe then next
ensuing session. And if an address be presented to the Lieutenant-Governor in
Council by the House of Assembly within the next subsequent forty days, praying that any such Rule or Order may be annulled, the Lieutenant-Governor in
Council may thereupon, by Order in Council, annul the same. And everv Rule
or Order so annulled, shall thenceforth become void and of no effect, but without
prejudice to the validity of any proceeding which may in the meantime have been
taken under the same
To the Hon. Attorney-General.
Supreme Court, Tuesday, 18th March, 1879.
Sir.—We beg to acknowledge the receipt of a copy of the Judicature Act as
amended in committee after the second reading, ami at the same lime we recognize the frank readiness with which you have from time to time procured from
the House of Assembly the adoption of all our suggestions (except two, which
we shall shortly refer to.)
We are happy to observe that, except as above, not one word has been replaced which we struck out, not one word altered, which we have inserted in the
original Bill, although these changes involved the abandonment of the greater
part of the measure.
We acknowledge with satisfaction, that certain proposed additions to the
original Bill, not emanating from ourselves, have at our suggestion, been at once
abandoned in the same spirit.
We observe, however, that one new clause has been added (sec. 12 in the
amended Bill) apparently based upon a suggestion for some such new clause
contained in onr memorandum of the 7th inst.. which suggestion upou further
consideration we should wish to withdraw, and can only plead the extreme haste
with which our consi ltatien was necessarily conducted.
We therefore now recommend  the omission of kcc. 12 of the amended Bill.
We beg you again to press on the House, the adoption of our addition to
clause 6 of amended Bill,   16 of original Bill.    It is a very simple matter.
The only clause in which we fail to observe complete adoption of every suggestion of ours is section 17. (Section 25 of original Bill) placing the making
of all rules and orders of the Court in the hands, not of the Judges, but of the
Cabinet, a political body, 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 sufficiently obvious, that the whole of
the omissions and alterations recommended by us are based upon the assumption of the misconception of the whole subject on the part of the framers of
the original Bill, and of the persons who advised the paragraph in the opening
speech leading to the Bill j
The original Bill shows that the framers had entirely misconstrued—
(a)DThe constitution of the Courts;
(5) The objects; and
(cl The effect of the Judicature Acts;
(d) The constitution of the Supreme Court;
(e) The effect here of the proposed measure as it originally stood.
We pointed out these misconceptions, as well as the pressure of time would
permit and 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—Regina v. McLeans and Hare.
Not a word that we have objected to, except as above, has been defended for
a moment, until we come to this clause, sec. 25, now sec. 17, concerning the making of rules and orders, not, be it observed, confined to the carrying out of the
present Act, but embracing in its minutest details the practice of the Judges, following them almost into private life, which it is proposed to refer to the discretion of the Executive, to be guided, it may be conjectured, 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 first touch of
the Judges' observations, and the adoption of every word of their amendments,
prefaced and supported as those alterations were by a statement of the utterly
erroneous views shewn in that Bill, amount to the clearest admission by the
framers that the misapprehension alleged by the Judges actually existed.
It is a clear confession,that up to the time of the receipt of that memorandum
the framers of the Bill utterly misconceived even the plainest features and most
general outlines of the case with whch they sought to deal.
Now it is to be observed, that although legislative and executive bodies are
often found capable of forming very accurate and judicious notions concerning
the general scope and effect of measures of this sort, they have never been deemed to be the proper authority for directing the forms and instruments, the times
and methods, by which the Judges shall put the legislative 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, as the
present. kll^
Far less does it seem judicious to place this discretion in the hands of a body
who have just confessed in the most unaffected way their entire misapprehension
of even the general features of the case, and who may possibly shortly, certainly
sooner or later, be succeeded by another body of men who may not shew themT
selves so quickly amenable to reason, or so ready to ndopt the suggestions of experience.
It is far safer to follow the, it is believed, unbroken series of precedents
which place these matters in the hands of the Judges, snbject of course to the
veto of the legislature. It is not well that the Executive should have any voice
in the matter. On the other hand, the Supreme Court of British Columbia and
its predecessors, the Supreme Court of the Mainland, anrl the Supreme Court of
Civil Justice of British Columbia, have subsisted for upwards of twenty years;
during all of which time, there has not been one serious complaint that any actor neglect of a Judge has caused a miscarriage 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 Judges at all.
We are in hopes that if you will ivad this tetter.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 so. otherwise we shall feel it to be our duty to
send the whole correspondence in the matter of this Bill to the Minister of jus-
tic with a view to the disallowance of the Act, and thus lose a whole year, which
we shall much regret, as the delay will, in our opinion, be prejudicial to the
public interests.
We have the honor to be, &c,
(Signed) MATTHEW B. BEGBIE, C. J.        ) Judges of the
(Signed) HENRY P. PELLEW CREASE, J. [     Supreme
(Signed) JOHN HAMILTON GRAY, J. Court, B.C. Appendix—Regina v, McLeans and Hare. 125
Adamson's Acts, No. 10
15 Vic] Circuit Courts. [6 Jan., 1852.
An Act to make Provision for the better Administration of Justice in the Colony of Victoria.    (Australia.)
" Sec. 17. It shall be lawful for the Governor of the said Colony, by any
orders to be by him, with the advice of theExecutive Council thereof, from time
to time made aud proclaimed, to define the limits of Districts within, and the
times at which Circuit Courts shall be holden in the said Colony, and the said
limits and timps to alter and vary, as he shall, with the advice aforesaid, deem
" And to direct that Circuit Courts shall be holden at such towns and places
within those limits, as he sh'dl. with the advice aforesaid, think fit to appoint.
•' And every such Circuit Court shall be holden in and for such District by
one or more Judge or Judges of the said Court, and shall be a Court of Record,
and shall have power to punish for contempt, and shall have the same power,
authority and jurisdiction to hear and determinr all civil issues to be tried
within the limits of the Cirquit District in which the same is held, and all treasons, felonies, misdemeanors and offences whatsoever committed, as Courts of
nisi prius. Assize, oyer and tebmineb and general gaol delivery in England
" And also to enquire into and assess damages in any action at law" commenced in the said Supreme Court" (of the Colony of Victoria.)
" And every such Circuit Court shall stand in the same relation to the said
Supremo Court with respect to civil issues, as the Court of nisi prius in England stands with respect to the Superior Court, from which the nisi prius
is sent.
'■ Provided, however, it shall not be necessary to issue any special commis-
mission to any Judge or Judges of the said Supreme Court to empower him or
them to hold any such Circuit Court."
Authorities cited in the Judgment of Mr. Justice Crease.
13 Ed. I. c 30. 27 Ed. I, 28, Ed. I, e. 65.
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, c. 25.
11 Geo. IV and 1 Wm. IV, c. 70. s. 9-3 and 4 Wm. IV.
Archbold Prac. Crown Off. XXXVIII. 58.
Gude's Crcwn ' rae. I and II 43, 70, 73 et, al.
Blackstone's Com. Ill and IV, 265.
Stephens' Com. Ill and IV.
Hawkins' P. C. II, 2. 17, 18, 20, 21, sees. 7 and 8, page 20, 41, 26, 28,
29, 34.   Cap. 5. sec. 2, cap. 11, c. 42, p. 561, 164, &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. 53, s. 11,
c. 54, c. 56   [1872-]  c.   113; c. 57,   c. 91, c. 92, c.   94, c. 113   [1877] c. 101
British Columbia Sta.. [3 Aug.] sees. 18, 19, 20.
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. 3 and 4; 2 Rule 4. cap.
'4. 22. 23, 24, 31, 39, p. 2, 3, 4 and 5, 158, c. 20.
Dp. Canada Con. Statutes.
Chalmers' Opinions, 472, 484, 782. 1
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 Aet, 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 Columbia  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.
Waterlowv. 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.
Plum 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.
Rooney v. Rooney, 29, D.C, 349.
Scotland & Grady's Crown Practice, 50, 182.
R. v. McLeod. 2 East, Q. B., 202.
4 Hardwicke's State Trials, 505, 506.
R. v. Perrin, 2 Sannd., 393-R. v. Connor.
Reg. Gen. Hil. Term, 1844.
Page 7. line 4. for "Langlor's." read "Langlo: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 3, for "2 Geo. f.V." read "11 Geo. IV. "
Page 47, line 41, for "42 V.C.A.B.." lege "42 U.C.Q.B."
Page 48, line 31, for '\*trwmsirnimyus.'' read ''striciiMmni juris."
Page 53, line 34, for "neglectful issue," read "neglect of issue."
Page 54, line 16, for "last" lege "that."
Page 66. line 12, after  "ofthe," insert  "Provincial Governors' and Lieut.
Page 75, line 7. for "refer," read "quote."
Page 80. line 25, after "theory." add "of the Crown "
Page 83, line 7, for "that if," read "that.    If."
Page 86, line 7, after "of the," add "reason of the."    


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