Helps to Under-Secretary of State
Council Office, Whitehall
12 June 1863
I am directed by the Lord President of the Council to transmit to you the enclosed Order of Her Majesty in Council of the 11th instant, empowering the Governor of British Columbia to provide for the administration of Justice & constituting a Legislative Council in the said Colony; and I am to request that you will be pleased to lay the same before the Secretary of State for the Colonial Department.
I am,
Sir,
Your most obedient Servant,
Arthur Helps
Minutes by CO staff
Manuscript image
Sir F. Rogers
Transmit the Order in Council out to the Governor with the approved despatch?
AA 13/6/63
The "approved" despatch is I conclude the one you have recast, & propose to submit to the Duke of Newcastle.
ABd 13/June
Wait to see whether the dph is approved. I shd like to see both together.
Send out.
[AA]
Other documents included in the file
Manuscript image
Draft reply, Newcastle to Douglas, Separate, 26 May 1863 (clean copy).
Manuscript image
Rogers to The Lord President of the Council, 10 June 1863, transmitting draft Order in Council for submission to the Queen in Council for approval.
Minutes by CO staff
Sir F. Rogers
I understand you to say that the B. Columbia Order in Council would proceed in its present form. I have the necessary copies ready for the Council Office, and I suppose that it may now proceed.
Documents enclosed with the main document (transcribed)
Manuscript image
3
Draft of an Order of the Queen in Council empowering the Governor of British Columbia to provide for the Administration of Justice and constituting a Legislative Council in the Said Colony.

(Heading on the original Order sent out: At the Court of Windsor The 11th day of June 1863; Present: The Queen's Most Excellent Majesty, Lord President Earl Russell, Lord privy Seal Mr Milner Gibson.)

Whereas by an Act passed in the Twenty Second year of the Reign of Her Majesty, entitled "An Act to provide for the Government of British Columbia", it was declared lawful forHerManuscript image Her Majesty by Order in Council to authorize and empower such Officer as She might from time to time appoint to administer the Government of British Columbia, to make provision for the Administration of Justice therein, and generally to make, ordain, and establish all such Laws, Institutions, and Ordinances as might be necessary for the peace, order,andManuscript image and good government of Her Majesty's Subjects and Others therein; provided that it should be lawful for Her Majesty, so soon as She might deem it convenient, by any Such Order in Council as aforesaid, to constitute, or to authorise and empower Such Officer to constitute a Legislature to make Laws for the peace, order, and goodGovernmentManuscript image Government of British Columbia; such Legislature to consist, of the Governor or Officer Administering the Government of the Colony, and a Council or Council and Assembly to be composed of Such and so many Persons and to be appointed or elected in such manner, and for such periods, and subject to such regulations, as to HerMajestyManuscript image Majesty might seem expedient. And Whereas by an Order in Council bearing date on the 2nd day of September in the year 1858, Her Majesty was pleased to authorise, such Governor or Officer as aforesaid to make provision for the Administration of Justice, and as therein mentioned to make Laws and Ordinances for the peace, order, and good Government ofHerManuscript image Her Majesty's Subjects and Others in the said Colony. And Whereas it is expedient to revoke the said Order in Council, and to constitute a Legislature for the said Colony consisting of the Governor or Officer Administering the Government thereof and the Legislative Council hereinafter established.
1. It is hereby ordered by Her Majesty, by andwithManuscript image with the advice of Her Privy Council, and in pursuance and exercise of the Powers vested in Her Majesty by the said Act of Parliament, or otherwise in that behalf, that the said recited Order in Council shall be and the same is hereby revoked. Provided always that nothinghereinManuscript image herein contained shall be to invalidate any Act or Thing done, or any Appointment made in pursuance or under authority of the Said Order in Council, but that every such Act, Thing, and Appointment shall remain of the same force and effect as if the said Order in Council were still in operation.
And it is hereby furtherorderedManuscript image ordered as follows that is to say:
2. In this order in Council the term Governor shall mean the Officer for the time being lawfully administering the Government of the Colony of British Columbia.
3. There shall be in the Said Colony a Legislative Council constituted as hereinafter mentioned.
4. ItManuscript image
4. It shall be lawful for the Governor with the advice and consent of the said Legislative Council to make Laws for the peace, order, and good government of the Said Colony.
5. The Said Council shall consist of such Public Officers within the Said Colony as shall from time to time be designated and of such personsasManuscript image as shall from time to time be named by or in pursuance of any Instructions or Warrant under the Royal Sign Manual and Signet, and of such other Persons as may from time to time be appointed by the Governor by Instruments to be passed under the Public Seal of the said Colony. Provided that every such last mentioned appointment shallbeManuscript image be provisional only until the same shall have been approved by Her Majesty through one of Her Principal Secretaries of State, and may be made to determine at a period named in the Instrument making the same, and that the total number of Councillors shall not by any such appointment, be raised above the number of Fifteen.ProvidedManuscript image Provided also that every Member of the Said Council shall hold office during Her Majesty's pleasure only.
6. The Precedence of the Members of the said Council may be from time to time determined by any such Instructions as aforesaid. In the absence of such determination the Members shall take rank accordingtoManuscript image to the order of their appointment, or if appointed by the same Instrument according to the order in which they are named therein.
7. The Governor, or in his absence any Member of the Council appointed by him in writing, or in default of such appointment, the Member present who shall standfirstManuscript image first in order of precedence, shall preside at every meeting of the said Council. All questions brought before the Council shall be decided by the Majority of the Votes given, and the Governor or presiding Member shall have an original Vote on all such questions, and also a casting Vote if the Votes shall be equally divided.
8. No business (except that of adjournment)shallManuscript image shall be transacted unless there shall be present Four Members of Council besides the Governor or Presiding Member.
9. The Council shall, in the transaction of business and passing of Laws, conform as nearly as may be, to the directions conveyed in that behalf to the Governor of British Columbia in certain InstructionsunderManuscript image under the Sign Manual and Signet bearing date the 2nd day of September 1858, until otherwise provided by Us, and to such further Instructions under the said Sign Manual and Signet as may hereafter be addressed to the Governor in that behalf.
10. Subject to such instructions the Council may make standing Rules and Orders for the regulationofManuscript image of their own proceedings.
11. No Law shall take effect until the Governor shall have assented to the same on behalf of Her Majesty, and shall have signed the same in token of such assent.
12. Her Majesty may by Order in Council, or through one of the principal Secretaries of State, disallow any Law passed by the saidGovernorManuscript image Governor and Council at any time within two years after such Law shall have been received by the Secretary of State, and every Law so disallowed shall become null and void so soon as the disallowance thereof shall be published in the Colony by authority of the Governor.
13. If any Councillor shall become Bankrupt or Insolvent, or shall be convicted of any Criminal offence, orshallManuscript image shall absent himself from British Columbia for more than Three months without leave from the Governor, the Governor may declare in writing that his Seat at the Council is vacant, and immediately on the publication of such declaration he shall cease to be Member of the Council.
14. The Governor may by writing under his Hand and Seal suspend any Legislative Councillor from the exerciseofManuscript image of his office, proceeding therein in such manner as may from time to time be enjoined by any such Instructions as aforesaid, and until otherwise ordered, according to such directions respecting the suspension of Public Officers as are contained in the above mentioned Instructions bearing date the second day of September 1858.
Conclusion of Order sent to B.C.
And the Most Noble the Duke of Newcastle one of Her Majesty's Principal Secretaries of State is to give the necessary directions herein accordingly.
Other documents included in the file
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Draft reply, Newcastle to Douglas, Separate, 15 June 1863 (clean copy).
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Draft reply, Newcastle to Douglas, unnumbered, no date (cancelled).
Minutes by CO staff
This draft is cancelled. Another has been written in substitution for it.
ABd 16 June
Mr Fortescue
I have endeavoured to embody in this dph the result of the minutes of the D. of Newcastle on British Columbia & V.C.Id, so far as they regard the constitution of B. Columbia.
It is not easy to treat this question witht coming across the question of Civil List—nor that again witht touching on the Land Revenue question. I have suggested a decision on this point. IfManuscript image the Duke of Newcastle does not approve it, it can be easily struck out.
Herewith is the Order in Council establishing the Legislative Council.
If the decision as to the Land Revenue is approved a copy of the dph shd be communicated to the V.C.I. Govt—i.e. I suppose Govr Douglas shd be authorized to lay it before the Legislature.
I have assumed that the change will be made during Douglas' Governorship. It wd be desirable that the O. in C. shd reach B. Columbia before the period at wh. he (Mr Douglas) will supposeManuscript image the Act of 22 Vict to have expired.
FR 11/5
Minutes by CO staff
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I have gone very carefully through the Papers which relate to the "grievances" of these two Colonies and ask for Representative Institutions in the former case and a Reform of Institutions in the latter.
I have purposely postponed the consideration of the future Constitution of the Govt of British Columbia till the present time, but in putting by from time to time the papers as they came in it unfortunately escaped my notice that they were thus left unacknowledged and I find that three Memorials are thus neglected. I am sorry for what has thus not unnaturally attracted the unfavorable notice of the Colonists,Manuscript image but it cannot now be helped.
Before considering what concessions shall be made to the Memorialists in either Colony it is necessary to consider whether the present system of governing them both by different Institutions under one Governor shall be continued. I think there are manifest objections to this plan in theory, and practice has proved to be in conformity with theory. I wish I could unite the two under one Governor and one system of Political Institutions. I have no doubt that the future progress and prosperity of the Colonies would be much promoted by such a Union, but unluckily the jealousies—I might almost say, hatreds—between the two have become so great and suchManuscript image opposition of interests have been allowed to grow up that I believe it would be almost as hopeless to attempt to amalgamate the two as it would be to rejoin the Confederate with the Federal States and the act of forcing them into a union would probably retard the time for a willing and hearty junction on grounds of mutual interests and a juster perception of the strength and safety to which it would conduce. If then the attempt at complete fusion is at present impossible, it is only keeping open the existing rankling feuds to continue the form (without any substance) of a half-union by means of having the same Governor. If I could establish a Legislative union IManuscript image should feel that I was accomplishing a good, but failing that I see nothing but evil in continuing an Executive union—either in whole or in part.
On the other hand I would studiously avoid any act which should introduce fresh obstacles to the union. If I cannot give as yet the same Institutions to British Columbia as Vancouvers Island possesses I would give nothing at variance with them but on the contrary such as may easily be developed into the same when the progress of the Colony fits its population for them. I would also name one of the Officers "Governor in Chief" and the other "Lieutt Governor"Manuscript image pointing out to each Colony that this is in accordance with the present practice in the Eastern States of British North America and will not entail subordination in Administrative Affairs, but will be found most conducive to joint safety in all matters in which communication with Naval Officers may be requisite or in any difference with Foreign Powers such as lately occurred in reference to the Island of San Juan. Whether the "Governor in Chief" should be the senior or be always the Governor of the larger Colony I am not quite clear. Of course two salaries will be requisite, and they cannot be less than £3000 each, but IManuscript image have no doubt they will be readily granted by each Colony in return for the boon of separate Governors, and British Columbia must also provide a Governor's house of moderate dimensions.
The Act for providing for the Govt of British Columbia expires at the end of the present Session of Parliament. It is therefore necessary to consider in connection with the question of the future Constitution of the Colony whether fresh Legislation is necessary, and if so what should be its provisions. 1. It might be renewed. 2. It might enact the details of a new form of Govt. 3. It might give power to The Queen to provide those details. The first I think very unadvisable.Manuscript image The second would be liable to the objection of being unimprovable in cases of early necessity and upon further information except by another Act. The third seems to me the best, if indeed any Act is at present necessary. The present Act seems to me to give all the requisite powers to the Queen, and if we are prepared to pass an Order in Council before the end of the Session I incline to think that legislation may be dispensed with. On this point however I should be glad of the opinion of Sir F. Rogers.
I have not come to the conclusion that it is unadvisable to give to B. Columbia similar Representative Institutions toManuscript image those enjoyed by Vancouvers Island without some hesitation. The contrast is an evil in itself. I do not think however that the fixed population is large enough to form a sufficient and sound basis of Representation whilst the migratory element greatly exceeds the fixed, and the Indian element far outnumbers both together. Of landed proprietors there are next to none, and gold is the only produce of the Colony. Legislation cannot with safety be entrusted to Men who have no vested interest in the Colony and those who have a stake in it as yet have but a small one and are so few that they could not alone form a Constituency. The numberManuscript image of Men fit to be Representatives is proportionably smaller. To commit the Legislation of the Colony to such men would be to make the future prosperity of the Colony subordinate to the local and personal interests of a few Tradesmen in the Towns—or rather Villages, for I believe no aggregate of houses except at New Westminster exceeds the number of 50 or 60—and even these Tradesmen in many instances having little of the character of fixture in the Country. The result would be frightful jobbing in that great essential for the Colony—road-making—and the present impatience of taxation which is seen throughout the Memorials and complaints wouldManuscript image develope itself in the form of resorting to Loans for every purpose of Public Expenditure. "Responsible Government" for which the Memorial asks is simply ridiculous, and without it the Govt would fall into the hands of a Clique whose rule would soon be felt by the Colony more obnoxious than that of any Governor who could be selected. Every preparation for a Representative form of Govt should however be made, and I should wish to see Municipal Institutions which have been successfully given to New Westminster extended to Yale, Hope, Lytton, Cayoosh, Douglas, and Alexandria.
The Question then is whatManuscript image is to be the changes to be effected at once? I would begin where we are now ending in Vancouver's Island. I would establish an Executive Council consisting of the 5 or 6 principal Officials of the Colony who must reside at New Westminster. All Acts of Govt would then be done by the Governor in Council. I would further constitute a Legislative Council in which there should be an infusion of the Representative Element. It should not consist of more than 15 Members, of whom 5 or 6 would be the same as the Executive Council, 4 or 5 Magistrates from Cariboo and other remote portions of the Colony, andManuscript image 5 elected by the Towns, one of them by New Westminster, & the others by a united Constituency of 2 or 3 of the other Towns. Before long other Towns will spring up and will ask for Representatives. I hope they will be given and thus increase the proportion of Elected Members. When the population of fixed character has sufficiently increased I should then hope that the Legislative Council might be separated into two—the nominated members remaining as the Upper House or Legislative Council, the Elected Members with further addition to their Numbers constituting the LowerManuscript image House or Legislative Assembly.
The Constitution of the two Colonies would then be assimilated, and nothing would be wanting to their Union but their own good will and an adjustment of the difficulty of Victoria being a Free Port and Customs duties being levied at New Westminster.
The Governor must lay before the Legislative Council full statements of Expenditure and must initiate in it all money votes.
I would at once make known that this Body is constituted as a preliminary to the introduction of regular Representative Institutions, andManuscript image am rather inclined to name some number of inhabited house holders as requisite for that further change with a view to the prevention of an immediate revival of agitation.
If the Engineers were not about to be withdrawn, thus leaving the Colony without any Imperial Soldiers, I would at once introduce a stipulation that Military Expenditure should be borne wholly by the Colony, but as matters now stand perhaps it will be better not to touch the subject until Troops are asked for.
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I have but little to add respecting Vancouvers Island. I have suspended for a short time the Supplementary Commission for constituting an Executive Council. It may now proceed, as part of the changes about to be made.
In a paper which I subjoin from Mr Maclure who lately called upon me with a long Catalogue of the "grievances" of the Island, four new Members are asked for for the Town of Victoria. It is no doubt inadequately represented so far as Population alone is considered, but I have noManuscript image doubt it supplies many of the Members for the Country Districts though he says they are mainly in the hands of the Old Servants of the Hudson's Bay Company. Within the last few days a despatch has been received saying that two more Members have been allotted to Victoria. I think the Secy of State ought not to interfere in increasing the numbers of the Legislative Assembly and would leave this question—especially now that it has been increased—to local legislation, but his remarks about the Legislative Council should be referred to the New Governor.
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I may here remark that I trust that both in Vancouvers Island and by and bye in British Columbia the fatal mistake of paying Members will be avoided.
—————
I think the present opportunity should be taken to annex Stickeen to the Colony of British Columbia. I see no other way of adequately providing for its Government without making it a separate Govt at the expense of the Mother Country, which must be avoided.
—————
As regards the various grievancesManuscript image contained in the Memorial other than those of want of Popular Institutions, they mostly resolve themselves into a demand for a New Governor. Such are the complaints of want of Surveys, the expensive and inefficient Roads, the management of the Lands, &c &c. I think these must be left to be dealt with by a new Governor.
—————
I wrote privately to Mr Douglas by the last Mail telling him that I should soon deal with the subjects treated of in this Minute,Manuscript image and that I should when my plans were complete relieve him of both Govts. I made this as little unpleasant to him as I could, and told him that when I wrote to him Officially I would take every care to prevent his enemies having a triumph over him.
—————
I circulate this to Mr Blackwood, Mr Elliot, Sir F. Rogers, and Mr Fortescue, and court the fullest criticism from all and each on the principle and details. It is an important question andManuscript image I shall be gratified for any suggestions.
N 27/3/63
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Mr Elliot
The Duke of Newcastle has so exhausted this subject that I really have nothing to add to the outline His Grace has sketched, with which, if I may be permitted to say it, I most completely concur. The only question that remains, as it seems to me, is whether An Act of Parliament be necessary, or an Order of the Queen in Council shall suffice for giving British Columbia this proposed Constitution. And on that point specially the opinion of Sir F. Rogers is invited. As the Stickeen Country is to be annexed to the Govt of British Columbia perhaps it might be better to effect that annexion by the means of the same Act ofManuscript image Parliament which gives a Constitution to the larger part of the Territory.
ABd 30/March/63
Sir F. Rogers
The Division of the territories appearing to be inevitable—not merely from rivalries and animosities on the spot, but probably also from the necessity of more or less of distinction between their institutions for some time to come—I have no remark which is worth adding to what has already been better said on the details of the Constitution. I have placed in your hands some former printed reports on Constitutions, on the chance of their being of any service to you—but in truth they are by-gone & not applicable to present times.
TFE 1 April
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1;1. Annexation of B. Columbia to Vancouver Island
On this point I have no observations to make. If the Duke of Newcastle adheres to his present opinion that amalgamation is impossible (for which certainly there appear to be conclusive grounds) nothing seems to remain except to direct Mr Gairdner to pass on at once the Letters Patent constituting the Executive Council.
1;2.££Stekeen Territory
There can I suppose by little doubt that this territory should be annexed to B. Columbia. But for this an Act of Parliament will be necessary. The existing Act for the government of British Columbia defines expressly the boundaries of that Colony and I apprehend those boundaries cannot be enlarged without another Act of Parliament.
1;3. Constitution of British Columbia
I will say at once that my own inclination is in favour of theoldManuscript image old fashioned Legislative Council, with one modification.
I would in the first instance have a council say one half of officials and half nominees—the nominees being distinctly informed that they were only nominated for a fixed period—say one or two years.
These nominees (as in Ceylon) should be so chosen as to represent interests or localities, and the Council should be in the first instance much short of its full number, so that the Governor should have the power of putting in fresh men, as different interests and localities appeared to require a voice in the Legislature.
I think after a very short experience of this mode of Government the Governor would be able to see more clearly than we can now, how a satisfactory Legislature could be composed—whatManuscript imagewhat towns or districts should be represented—how the Gold Fields should be represented—and how the interests of Indians, Chinese, and season miners could be best protected.
Then and not till then I should be disposed to adopt in form and letter, a partially elective Legislative body as proposed by the Duke of Newcastle—with the further view (as proposed by His Grace) of proceeding onward to the normal two Houses.
My reason for this tentative method is the difficulty of at once constructing such a Legislature as can be relied on.
I find it difficult to obtain much detailed information respecting the mode in which population is scattered over the country. But the following supposition may at any rate serve to illustrate our difficulty.
The unrepresented populationareManuscript image are not I imagine less than as follows:—
Scattered Indians—————say 10,000
Chinese——————————say 5,000
Miners (500 miles from N. West) 5000
(350 miles from N. West) 500 5,500
20,500
The resident population which will comprize somewhat more than the represented population is probably short of 2000 persons scattered along the 500 miles between New Westminster and Cariboo and along the 350 miles between New Westminster and Rock Creek, and occupying, besides New Westminster and the Diggings, some half-dozen intermediate villages along these two lines.
A find of Gold here or there may at any time change the relative importance of these different clusters of residents, so that any distribution of the franchise as between electoral districtsManuscript image must be provisional. And the coincidences or conflicts of interests which may exist between residents and non-residents and between different classes of residents has not yet been tested by any political action. Therefore the assignment of qualifications with a view to secure the representation of interests must also be more or less provisional. Yet any grant of a franchise once given can hardly be recalled, and so may prove exceedingly embarrassing a very few years hence.
Those few years will make a great difference. The progress of the Country is very fast, and the next Governor will I suppose go out with the distinct function of feeling his way towards constitutional or quasi-constitutional government. If he chooses representative men for unofficial members of his Council, and takes trouble to inform himself about the wishes & habits of the population he ought soon to be in a position to submit a definite and workmanlike scheme of representation.
It may be some little reason for adopting this course, that a mere LegislativeCouncilManuscript image Council could be established at once under the present Act, and the instrument could be sent out in time to reach B. Columbia before the end of the present Session of Parliament when the present British Columbia Act expires.
But it would be I should think quite impossible, before that Act of Parliament expires, to set afloat a Constitution involving an electoral machinery. A Constitution therefore would involve the passing of an Act to continue the present Act, and a consequent Parliamentary discussion. However this may be raised even by the Stekeen Act, or without it.
If the immediate adoption of an elective system is decided on, it appears to me
1. that in some way or other the gold fields ought to be represented (they are so in Australia) [marginal note: I annex a recent N. Zealand Act].
2. that there would be some difficulty in bringing the Magistrates away from their duties to sit in Council, unless (which is very possible) Legislation were always to be carried on in winter when there is comparativelylittleManuscript image little white population in the Colony.
My own disposition therefore would be without delay to pass an Order in Council under authority of 21 & 22 Vic. c. 99 S.S. 3—constituting a Legislative Council to be composed of such persons as the Queen, or Governor (provisionally) might appoint. Such council not to consist of more than 15 persons.
To send this out to the Governor telling him that the Council is in the first instance to be composed of 5 office holders and 5 persons so chosen as to represent the different interests and feelings of the Colony and Colonists; and that he will be at liberty, if he shall think fit, to accept as such representative any person suggested to him by a Municipal Corporation or even a public meeting called at his desire and manifestly representing the desires of any important locality—that the persons so nominated must be considered as holding Office only for a year (unless Her Majesty should otherwise think fit) and that the whole arrangement is to be viewed as provisionalandManuscript image and preparatory. I would state the reasons for this tentative mode of proceeding in a manner calculated to make it acceptable to the Colonists—the tenor of the communication being to assure them that the object of the delay was not to refuse representation, but to secure that the representation should be just and effective.
It is to be observed—and I think is not a disadvantage—that when Her Majesty has once exercised the power of giving a Legislature it cannot be re-exercised without passing a fresh Act of Parliament. This Circumstance will operate as a gentle drag on the progress of Free Institutions, which I should think desirable, considering that every year diminishes the objections to the introduction of those institutions in B. Columbia.
But N.B. The Governor should either know before the beginning of August whether the existing Act will be continued, or should be invested with fresh powers of government by Order in Council.
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Duke of Newcastle
The only point upon which I need give an opinion is that of the Constitution of the Legislative Council of B. Columbia. Upon that point I agree with Sir F. Rogers, and would prefer to see a beginning made in the way sketched out by him, (which is also Capt. Gossett's view), by nomination upon the Ceylon plan, rather than by the introduction at once of an electoral system, with respect to the requirements & possibilities of wh. we are much in the dark. If we had a resident Governor of B. Columbia to refer to, whom we couldManuscript image trust, & who was trusted by the Colonists, such a man's advice & information might enable the Sec. of State even now to frame Representative Institutions for the Colony. But this is far from being the case at present—while we may hope that a well-selected Governor, with the aid of his Ex. & Legislative Councils, will soon prepare the way for them, and throw ample light on the subject.
CF 15 April
I have considered very carefully Sir F.Rs Minute. I am not much afraid of the consequences of at once introducing the veryManuscript image limited amount of Representation proposed by my Minute, but there is the doubt that the more we can make sure each step we take (provided it is not too slow) the better, and there is nothing in Sir F.Rs plan which will prevent the early further step to mine.
I consider it also an advantage to avoid any application to Parliament before a new Governor has had an opportunity of getting the business of the Colony into regular working order.
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Will Sir F. Rogers therefore be good enough to put in hand the preparation of an Order in Council constituting a Legislative Council on the model of that of Ceylon, and of a Despatch to the Colony explaining its objects and stating that it is but a preparation for more liberal Institutions.
N 20
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Mr Elliot
The Duke of Newcastle has desired to be furnished "with a Memorandum shewing what has heretofore passed respecting the Crown Lands" in Vancouver Island.
This subject, having reference to the exchange of the Crown Lands for a Civil List, has in point of fact, been mooted by Governor Douglas only. This Office, feeling that the time had not arrived for indicating its views or intentions has hitherto remained silent whenever Governor Douglas broached the subject. But the decision of the Duke of Newcastle to place Vancouver Island and British Columbia under separate Governors, and carry out a system of regular constitutionalManuscript image Government in each of them necessarily imposes on this Office the duty of investigating the materials we possess in order to arrive at some definite conclusion as to the wishes of the Inhabitants of Vancouver Island for the acquisition of the Crown lands—as to the present and prospective value of that Estate and as to the amount of the Civil List which the Crown would on its surrender be justified in requiring.
It appears that up to the beginning of 1859 Governor Douglas had been in the habit of drawing on the Hudson's Bay Company for such funds as were necessary for carrying on the Government of Vancouver Island; but that, when a certain progress had been made towards the repurchase of that Island by the Crown, the Company declined to make any furtheradvancesManuscript image advances. Under those circumstances Governor Douglas having applied for instructions, and having been informed that he must provide for the expenses of the Colony out of local resources announced various measures—such as an extension of the franchise & an enlargement of the House of Assembly—preparatory to an application to the House to make the necessary provision. He reported that the Legislature would doubtless make an urgent appeal for the control and entire disposal of all monies arising from the sale of Crown Lands and other sources of revenue; and begged to know, as soon as convenient, whether H.M.'s Government would sanction such an arrangement, the Colonial Legislature undertaking to defray the expense of a Civil List. No answer was returned to this request: but in the Session of1860Manuscript image 1860 an Act was passed appropriating salaries to the Governor, Chief Justice, Colonial Secretary, Treasurer, Surveyor General and Attorney General in which a proviso was introduced that the salaries aforesaid shall not be paid out of, or charged upon the revenue aforesaid (i.e. the general revenue) until the entire revenue of the Colony of Vancouver Island and its dependencies, and the control of the public lands situate within the said Colony shall have been placed under the control of the Legislature.
A similar provision was also inserted in the Appropriation Act for defraying the expenses of the public departments.
The Session of 1861 produced appropriation Acts similar in amount, and with the same provisos as were contained in the Acts of 1860. TheGovernorManuscript image Governor wrote as follows with regard to the Acts of 1861.
The sum of £3200 was voted to meet the Civil List Salaries, namely,
The Governor .............. £800
Chief Justice ............. 800
Colonial Secretary ........ 500
Treasurer ................. 400
Surveyor General .......... 400
Attorney General .......... 300
subject to the proviso that the entire revenue of the Colony, whether derived from taxation, or sales of Crown lands, shall be placed at the disposal of the Colonial Legislature. That sum is however, admittedly inadequate to maintain the Chief Officers of an important Colony in a respectable position, and would not fairly represent the relative importance and responsibility of theManuscript image Offices they hold.
The House would not I believe, have objected to a more liberal Civil List, had I been in a different position, but I did not think it expedient to ask for a larger sum on behalf of Vancouver Island than is allowed by H.M.'s Government for the support of the Civil Establishment in British Columbia: and another motive for exercising the most rigid economy, which had great weight with the House, was the fear of imposing a burden upon the Colony greater than it is at present capable of supporting; a reason which ought to have its proper influence and consideration; but I would nevertheless submit that there should be no formal surrender of the Crown Revenues to the ColonialLegislatureManuscript image Legislature until it has made a sufficient provision for defraying the cost of Her Majesty's Civil Establishment according to another scale which I propose to bring forward at the next Session.
The sum of £3207 was voted for defraying Departmental Expenses, with the same restrictive proviso as to the payment of the amount out of the general revenue of the Colony.
The appropriation Act for the service of 1862 contained the same provisos as were inserted in the Acts of 1860 and 1861.
No notice has been taken by this Department of the provisos in the above mentioned Acts. It has doubtless been understood in the Colony that the Crown was not in a condition to enter uponanyManuscript image any discussion relative to a surrender of its Lands in exchange for a Civil List until the negotiations with the Hudson's Bay Company had been completed: and the Colony has probably been willing to wait the convenience of H.M. Government. Enough, however, has been elicited from the successive stipulations in the Appropriation Acts to prove that the wishes of the inhabitants of Vancouver Island, as expressed by their chosen representatives, are unmistakeably in favor of having the Crown Lands made over to them, in exchange for a Civil List. As that point is ascertained it will not be necessary for me to touch upon the expediency of complying with their wishes. The experience of the past, and the sentiments which, I believe, I am not incorrect in ascribing to the Duke of Newcastle on this subject, lead me to the assumption that His Grace viewswithManuscript image with favor the proposed exchange. If I am right it becomes only a question of what is the value of the Crown Lands the Government has to surrender—what shall be the amount of the Civil List which should be asked for in exchange—and when is the fitting time for the negotiation.
As to the present value of the Crown Lands I find that in 1860 the sales produced £4576. In 1861 and 1862 we have received no definite information from the Governor on the point.
As to the prospective value of this property it is impossible to predicate what it will reach. It has been calculated that in an area of 12 million acres in V.C.I. there are about one million acres of cultivable land;andManuscript image and about 100,000 acres either purchased or pre-empted. It is not to be supposed that the price of Crown Lands will remain very long at the present rate of 4s/2d an acre. The rapid material advance of Victoria, arising from its propinquity to a gold producing Colony—the existence of a free port—the Naval Harbor of Esquimalt and head quarters there of the Naval Squadron—the possibility of telegraphic and postal communication with Vancouver Island, via the continent of British North America, are strongly in favor of the supposition that this Colony will become a favorite one for settlers, and that land will much increase in price. If therefore in 1860 the revenue derived from Crown Lands reached upwards of £4500, I think we may venture to assume that this year it will have produced 5 or £6000
N.B. In an enclosure to the Govrs desph of the 4 March/63 The Crown Land Sales are estimated at nearly £5000. The amount netted it £4500.
ABd 8 Apl/64
Manuscript image and that in a few years time it will arrive at a much larger figure. But we have so little data for forming an opinion on this point that it would seem to be unavoidable for this Office still to postpone a final settlement on the subject until a new Governor shall, after enquiry on the spot, have procured the requisite complete information.
I should suppose, therefore, that at a suitable moment the new Governor would be empowered to announce that H.M's Government will agree to exchange the Crown Revenues in return for a reasonable, but sufficient Civil List, which should be settled either for a term of years or for a permanent period. It should be insisted upon that the right of initiating Money Votes should be vested in the Government. ThisrestrictionManuscript image restriction affords some security against the improvidence and jobbery which too frequently occur in Colonies. When Mr Merivale was considering in 1860 the question of surrendering the Crown Revenue in Vancouver Island in exchange for a Civil List he expressed his views in a Minute which I cannot do better than transcribe:
My inclination on the whole would be to transfer the property on the following conditions.
Defraying all the Civil Establishment.
And certain Military expenses, to be fairly settled beforehand.
Provision that H.M's Vessels and Military Departments should have at all times ensured to them a supply of coal free of cost (or under advantageous terms to be settled by the Governor).
PerhapsManuscript image
Perhaps, reservation of any discovery which may be made of Gold deposits? though I do not see much use in this.
The terms sketched by Mr Merivale would appear to be reasonable enough but if the Colony should be called upon to defray a portion of the Military expenditure it will complain unless British Columbia is also made to contribute: Vancouver Island will truly say that British Columbia will benefit as much as she does by the protection of the Military. For the present I should think it would be sufficient to require that the Colony keep up such barracks as may be necessary for the exigencies of the service. I suppose it would not be fair nor possible to ask the Colony to erect barracks.
AsManuscript image
As for the reservation of Gold or other Mines I think that to insist on the Crown's retention of them will only lead to future disputes with the Legislature.
ABd 9 May/63
Mr Blackwood has been good enough to send this on it's way to the Duke of Newcastle. The following are the only remarks which occur to me.
In Mr Merivale's list of conditions to be attached to the surrender of the Crown Lands, he says "defraying all the Civil Establishment." This must mean, I apprehend, providing what is commonly called a Civil List for the Chief Officers—Vancouver Island does already defray all it's Civil Expenditure, and has done so for several years.
Mr Merivale also contemplates a supply of coal to H.M.'s Vessels free of cost or else on advantageous terms. I do not understand how we could possibly require that the Queen's Ships should receive coal without payment: there is no precedent for it in any part of the World that I am aware of.
At page 5 Mr Blackwood has furnished a copy of the existing Civil List which appears evidently toosmall.Manuscript image small. The following scheme occures to me as one for consideration:
Governor ...............£3000
Chief Justice .......... 1000
Colonial Secretary ...... 800
Treasurer ............... 700
Surveyor General ........ 600
Attorney General ........ 300
£6400
TFE 16 May
Duke of Newcastle
I presume no decision should be taken on this matter, until a new Govr shall have reported upon it.
CF 19
Manuscript image
It is unnecessary to furnish any minute account of the Constitution conferred upon British Columbia by the Act of Parliament passed in 1858
Act 21 and 22 Vict. C. 99 annexed.
[ABd]
because it is well known. The Governor and Council, or Council and Assembly were made the Legislature. As no Council has been created nor Assembly summoned the Governor has hitherto issued Proclamations which, on being confirmedbyManuscript image by the Queen, have the force of law. The expiry of the Act of Parliament having rendered it necessary to legislate afresh, opportunity is taken to make alterations in the Constitution of British Columbia some changes having been urgently prayed for by parties in the Colony. The discoveries of gold—confirmed by careful research—have at once elevated British Columbia into a Colony of great value and importance and have attracted a numerous, though not a settledpopulationManuscript image population.
Gov. D. says 2/April/61/ that the population of B.C. is about 10,000 persons. The native Indians number about 20,000.
[ABd]
As a revenue, which amounts to upwards of £100,000 per annum, is now raised in the Colony, it is natural to give to a country which promised so well and performed so largely, a more liberal form of Government.
Gov. D. reports in despt. 10/April/63/ that the yield of gold in B.C. (in /62, I presume,) is roundly estimated at five million dollars or £1,041,666.
[ABd]
It being however considered impossible at this moment to unite the two Colonies into one it has been decided to make the following arrangement.
Instead of having one Governor presiding over Vancouver Island andBritishManuscript image British Columbia, the two Colonies are to have separate Governors, with separate Civil Establishments.
A Legislative Council not exceeding 15 in number is created,
See annexed despatch of 15 instant.
[ABd]
which council is to consist of 1/3rd of Public Officers, 1/3rd of Magistrates from different parts of the Colony, and 1/3rd of persons elected by the residents of different electoral districts. It is left to the Governor to determine the period for which (subject to H.M's pleasure which involvesaManuscript image a practical power of dissolution) the Councillors should be appointed. By this simple machinery a system of virtual tho' imperfect representation is introduced which will pave the way to a more complete representative Government.
ABd 18/6
Other documents included in the file
Manuscript image
"Victoria Cap XLVIII. An Act to provide for the Administration of Justice in Vancouver's Island," 28 July 1849.
Manuscript image
"Victoria Cap XCIX. An Act to provide for the Government of British Columbia," 2 August 1858.
Manuscript image
Draft reply, Newcastle to Douglas, Separate, 15 June 1863, extensive revisions. [Note: This is the first writing of the draft reply of the same date listed above.]
Minutes by CO staff
Mr Elliot
In consequence of some suggestions made to me by MrBlackwood I had recast most of this draft. Would you look at it generally, & particularly at the salaries wh Mr Blackwood proposes, & if you agree write them in in ink & pass on the draft to Mr Fortescue with any obsns which may occur to you.
It wd go out with the Order in Council.
FR 9/6
I have read the draft, & inserted the salaries which I would suggest.
TFE 12/6
Other documents included in the file
Manuscript image
Draft reply, Newcastle to Douglas, Separate, 26 May 1863, extensive revisions. [Note: This is the first writing of the draft reply of the same date listed above.]
Minutes by CO staff
Mr Fortescue
This is submitted on the assumption that the Duke of Newcastle approves the draft Act of Parlt & draft Order in Council & the draft desph covering the Order in Council which I have successively submitted for H.G's consn.
Also on the supposition that Gov. Douglas will plan to set the plan afloat. This is not very desirable—but it seems to me unavoidable. For a newManuscript image Governor cannot be appointed till a Civil List is fixed. And a Civil List cannot be fixed (I imagine) till the Council is convened.
But on this latter point I am somewhat in the dark. It may be that the matter is in a more forward state (through private communications or otherwise) than I suppose.
FR 15/5
Helps, Arthur to Fortescue, Chichester 12 June 1863, CO 60:17, no. 5704, 143. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871, Edition 2.2, ed. James Hendrickson and the Colonial Despatches project. Victoria, B.C.: University of Victoria. https://bcgenesis.uvic.ca/B635CO01.html.

Last modified: 2020-12-02 13:40:34 -0800 (Wed, 02 Dec 2020) (SVN revision: 5008)