"The first Court of Vice-Admiralty to be set up in British Columbia was in existence for nine months before it was aware that the authority under which it was instituted and held pleas was illegal. Its story is part of the history of Vancouver's Island and illustrates once more how the resourceful Douglas was equal to a situation when it arose even if the remedy was extra-constitutional.

Laing, Lionel H.

English

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AN UNAUTHORIZED ADMIRALTY COURT INBRITISH COLUMBIAThe first Court of Vice-Admiralty to be set up in British Co-lumbia was in existence for nine months before it was aware thatthe authority under which it was instituted and held pleas was illegal.Its story is part of the history of Vancouver's Island and illustratesonce more how the resourceful Douglas was equal to a situationwhen it arose even if the remedy was extra-constitutional.When in January, 1854, Governor Douglas received a requestfor an enquiry into the circumstances which led to the death of themaster of the brig William) he immediately set up an admiraly courtby appointing the Chief Justice, David Cameron, as Judge of theVice-Admiralty CourU There are several reasons which might haveled Douglas to presume that he had authority to institute such acourt. In the first place he had received about three years previouslya commission under the seal of the High Court of Admiralty ap-pointing him to be Vice-Admiral of the Island and its dependencies. 2It was natural for him to assume that this conferred upon him thenecessary authority, for such an assumption had been acted uponelsewhere by colonial governors of other days, although it must beadmitted not without some misgivings at times. 3 Although Douglasprobably knew nothing of these precedents, he was at least awareof no disability such as the first Governor of New Brunswick had inassuming office, when he learned from his commission that: 4"... nothing herein contained shall be construed to the en-abling you or any by your Authority to hold plea or have any Jur-isdiction of any Offence, Cause, Matter or Thing committed or doneupon the High Seas ..."That the authorities in England might have inferred thatDouglas .would have established such a court would appear from adespatch in which Douglas requests,5 .H ••• a selection of legal works containing the Forms of Processobserved in the Vice-Admiralty Courts and developing the principleson which these decisions are founded."1 Golledge to Swanston, Jan. 26, 1854, Vancouver Island Miscellaneous Letters,1850-1859. (Unless otherwise indicated letters and despatches cited here are to be foundin the Archives of British Columbia.)2 Vide: An acknowledgement in a despatch Douglas to Gray, Oct. 31, 1851. Van-couver Island Despatches. 1851-1855.3 C/., The action of D'Oyley, the Commander in Chief of Jamaica in the middle ofthe seventeenth century who had an admiralty court functioning which was 110t establishedby the Admiralty Commissioners, and of the legality of which court he could get noopinion from England although he repeatedly requested it. Vide, Cal. State Papers, Col.,Am. & W.I., Addenda, 1574-1674. No. 232.4 The Commission of Thomas Carleton, Public Archives of New Brunswick.5 Douglas to Packington, Mar. 7, 1853, Vancouver Island Despatches, 1851-1855.(10)6 As stated in Douglas' acknowledgement, Douglas to Osborne, March 20, 1854. Van-couver Island Miscellaneous Letters, 1850-1859.7 Ibid. An acknowledgement of a subsequent issue of this proclamation appears insimilar terms in a despatch. Douglas to Osborne, July 20, 1854. Vancouver Island Mis-cellaneous Letters, 1850-1859.8 Douglas to Newcastle, Mar. 13, 1854, Vancouver Island Despatches, 1851-1855.However, the duties of "Mr. Mother-Country," that obscureclerk in the colonial office, did not embrace inferential prognostica-tions. Indeed it is not apparent that there was a very clear idea onthe question for on the 31st of December, 1853, there was issued toDouglas copies of "Her Majesty's Proclamation establishing Regu-lations for the Distribution of Naval Prize money," etc.6 In acknowl-edgment, Douglas stated:7Ii••• the same shall be carried into effect in the Vice-AdmiraltyCourts in this colony."It is small wonder, then, that Douglas presumed that his com-mission clothed him with power to establish such a maritime court.Certainly the condem!J.ation and distribution of prize envisaged anadmiralty court.The original cause which led up to the institution of this unau-thorized court, can best be followed in Douglas' own words, as givenin the following despatch:8"My Lord Duke,... I would not have troubled your Grace with any remarks inthis case at present had it not been for the extraordinary conduct ofMr. Robert Swanston, the Consignee of the brig William whoshowed a disposition to set Her Majesty's authorities at nought, andto treat the Vice Admiralty Court of this Colony with contempt, asI will proceed to show.On the wreck of the brig WilliGJm the crew travelled under the-direction of the natives toward this place and after much privationand hardship arrived here in a state of great distress.I relieved their immediate wants and addressed a note to Mr.Swanston on behalf of the crew, advising that payment of thewages due, for the time they had served on board the William shouldbe made to them, on the part of the owners. That note producedno effect, as he refused to pay the wages due, and there being noproof that he was a party interested in the ownership of the vessel,I could not advise the seamen to have recourse to legal proceedingsfor the recovery of their claims.On the 23rd of January I received a letter from Mr. Swanstonapplying for an enquiry into the causes which led to the wreck ofthe William, and to the death of Captain McIntosh, and the reasongiven as the grounds of the application was to use his own words ashe had heard rumours which led him 'to imagine that there may have11Unauthorized Admiralty Court12 Lionel H. Laingbeen foul play,' and moreover mentioning that the crew of the Wil-liam were on the point of leaving the Colony.I immediately thereupon proceeded to organize a Vice Admir-alty Court and appointed David Carmeron Acting Judge and twoMaster Mariners, William H. McNeill and Charles Dodd, actingMembers of the Court. Mr. Swanston was informed of those ar-rangements, through my private secretary, Mr. Golledge, on the25th of January, and that the Court would proceed with the pro-posed investigation as soon as he produced the information referredto in his letter.A note in reply was received from Mr. Swanston declining toappear unless I addressed him under my own signature, and notthrough a secretary.The court nevertheless opened on the 26th of January last, asbefore appointed and proceeded to examine th,e mate and seamen ofthe brig William as hereinbefore mentioned in the commencementof this letter. Mr. Swanston did not appear when called upon forhis evidence; a Writ was therefore issued on the same day requiringhis appearance before the Court.He still failing to appear I caused a writ of attachment to is-sue, on the 28th of January, and he was taken into custody on the30th and committed to Jail, until the Court met in the afternoonof the same day, when he was found in contempt and sentencedto pay a fine of £ 50 with costs, or in default of payment to be im-prisoned as the Law directs. The fine was immediately paid, andthe young man was discharged from custody, on easier terms thanI should think it proper to grant, on any similar occasion hereafter,when parties either through folly or disaffection attempt to opposethe executive authorities in the lawful discharge of their duties.At the close of the proceedings, Mr. Swanston entered a vivavoce protest against them, in presence of the Court, which I shouldprobably have considered, and treated as a fresh contempt, but notbeing quite certain about the propriety of that course, I took no fur-ther proceedings, and adjourned the Court.This I am happy to say is the only instance wherein the author-ity of Her Majesty's Government, has been openly resisted sincethe Colony was founded.I have the honor to be Your Grace's most obedient HumbleServant,J ames Douglas.Governor of Vancouver's Island.His Grace the Right Honbl.The Duke of NewcastleHer Majesty's Principal Secretary of StateFor the Colonial Departmt.It is rather interesting to note that in this case although Doug-las had appointed Cameron to be the Judge yet Douglas writes, "Icaused a writ of attachment to issue," and concerning the viva voceUnauthorized Admiralty Court 13protest he remarks, "which I should probably have considered, andtreated as a fresh contempt, but not being quite certain about thepropriety of that course, I took no further proceedings and ad-journed the Court."There is. no doubt from the possessive "/" as to whose courtthis was. This is further illustrated by the fact that although Cam-eron was apparently also "Acting Registrar of the Vice AdmiraltyCourt"9 as well as being its judge, yet when Swanston received hisbill of costs in the case, it came from Golledge, the Governor's Pri-vate Secretary, who writes :'0"I am directed by the Governor to inform you ... etc.... andto transmit the Bill of Costs which you requested and the same isaccordingly herewith enclosed."The following was the Bill of Costs:4.1.1010.0.06.0.013.4.2.0.0.1.0.0.7.6."BILL OF COSTS AGAINST ROBT. SWANSTONCommitted for contempt.Judge's Fees estimated at. £ 5.0.0.Registrar's Do" " £ 5.0.0.Attendance of two Members of CourtMarshall's Fees for arrest of R. Swanston ....for release of R. Swanston from arrest.for attendance in Court when sentencewas pronounced .For taking R. Swanston in Execution aftersentence .£20.1.10.This Bill being incomplete the Admiralty Court will in its dis-cretion hereafter order payment of the costs still due on this case.Richd Golledge,Victoria, 9th March, 1854. Private Secretary.This case was tried in January, 1854. In the following Septem-ber Douglas received from Grey an acknowledgment of the receiptof Douglas' letter of March 13, quoted above. In his reply" Greycommends Douglas for his investigation into the causes of thewreck of the William "which you appear to have conducted witha readiness and vigilance very advantageous to the public service."These steps, he continues, would "seem to have been substantially9 Golledg-e to Swanston, Feb. 18, 1854. Vancouver Island Miscellaneous 1850-1856.10 Golledge to Swanston, March 9, 1854. Ibid.11 Grey to Douglas, June 19, 1854, Correspondence, Colonial Office, F.3 (1853-1855).Archives of B. C.14 Lionel H. Laingjustified by the clause in your Commission as Vice Admiral, givingyou cognizance of the view of bodies of persons who came to theirdeaths in the sea or public streams." However, he adds:"But I fear that to organize a Vice Admiralty Court is, strictlyspeaking, beyond your power either as Vice Admiral or under yourCommission as Governor. A special authority from the Lords of theA (d) miralty is required for that purpose. And no such Court has,as yet, been established by their Lordships in Vancouver's Island,in consequence, partly of the difficulty arising from there being noprofessional lawyer to whom a Commission as Judge could issue."This he trusts will be remedied, "but," he continues, "I fear that itwill not be easy to secure you the services of a properly qualifiedperson." In the meantime, he assures Douglas, that, by the pro-visions of 12 & 13 Vic. c. 96, offenses committed on the sea couldbe tried in the ordinary cOUlis of the colony. Summarizing the acthe writes:"It appears to me, therefore, that you are fully empowered,without constituting any Admiralty Court, to enquire into all casesof suspected homicide or personal injury committed on the sea, ifthe persons under suspicion are within the Colony and to bring themto trial if any ground for such proceeding be established, preciselyin the same way as if such offense were alleged to have been com-mitted on land within the Colony."This letter is endorsed as having been "reed. 28 Sept.," "ansd.6 Oct.," but it is not until October 26 that Douglas gives a completereply to Grey's letter.12 After noting with satisfaction that approvalwith which his investigation was regarded and acknowledging hiswant of authority to organize an admiralty court he assures Greythat"The temporary appointments for the Vice Admiralty Court,made by me in this Colony will therefore be immediately suspendedand no further measures taken in reference to the organization ofa Vice Admiralty Court without instructions from the Lords ofAdmiralty."It appears that only one other case had come before the court,namely a claim for wages by the officers and seamen, and a claimfor non-delivery of cargo asserted against the British ship Colinda.These claims having been settled out of court, further prosecutionwas apparently dropped.12 Douglas to Grey, Oct. 26, 1854, Vancouver Island Despatches, 1851-1855.Unauthorized Admiralty Court 15And so was brought to a close this first unauthorized admiraltycourt of which Governor Douglas in passing writes:"These proceedings will I trust be found strictly in accordancewith right and justice, and though a question will arise as to theauthority of the Court granting the Process, there can be no questionin regard to their justice and propriety."Strange to say that it would almost appear that Grey still con-sidered that some sort of an admiralty court was still in existence inthe colony for in acknowledging the receipt of this despatch fromDouglas, he writes :13"For the purpose therefore of adding powers of a Court ofPrize to those already conferred as a Court of Instance it is nowproposed to appoint a Judge Registrar, Advocate and Marshall, andI have to instruct you to transmit to me the names and designationof those persons in the settlement who are in your judgment bestqualified to fill the above offices."To complete the record it might be of interest to add here thatso far as the newly created colony of British Columbia was con-cerned, it received its court of vice-admiralty almost at the outset,for in the same despatch14 in which Douglas is sent his commissionas Vice-Admiral of the mainland colony, there is enclosed Her Ma-jesty's Commission to Mr. Matthew Baillie Begbie, as Judge of theCourt of Vice-Admiralty for the Colony of British Columbia-acourt which the Queen has been pleased to institute. A closing noteto this despatch is a request to Douglas to collect seven pounds,eight shillings and four pence from Judge Begbie, being the fees de-manded by the High Court of Admiralty for the execution of hiscommiSSIOn.LioNEL H. LAING13 Grey to Douglas, April 3, 1855, Correspondence, Colonial Office, F.3 (1853-1855),Archives of B. C.14 Lytton to Douglas, Jan. 6, 1859, Correspondence, Colonial Office, F.ll (1859),Archives of B. C.

An Unauthorized Admiralty Court in British Columbia

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An Unauthorized Admiralty Court in British Columbia

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