No. 70
24th November 1864
Sir,
My predecessor appointed a Legislative Council to last for one year; from the 1st of January to the 31st of December 1864. The Indian rebellion and many other causes have compelled me to depart considerably in the expenditure of the Revenue from the Appropriation made by Ordinance in the beginning of the year. I purposecallingManuscript image calling the Legislature together in December to pass the Supplementary Estimates and an Auxiliary Appropriation Act. I found myself therefore in the dilemma of having the December Session carried on by a Council which would be replaced in January unless I reappointed the Board as constituted by Sir James Douglas. The Council I found in existence did not I believe command the full confidence of the people, I therefore relieved myself of all further embarrassment by dissolving it.
2. I have made the following appointments, subject to your pleasure.TheManuscript image
The Colonial Secretary
The Treasurer
The Attorney General
The Collector of Customs I should have added, The Acting Surveyor General, but that Captain Holmes has departed for Honduras. The Office is now in abeyance.
3. I have appointed the undermentioned Magistrates
Mr Chartres Brew of New Westminster
Mr Peter O'Reilly of Cariboo
Mr Henry Maynard Ball of Lytton to represent the interests of the People on the Yale-Lytton line of road. I have chosen Mr Andrew Charles Elliott, of Lillooet, intheManuscript image the place of Mr Nind of Douglas, as Official representative of the Douglas-Lillooet District. Mr Nind so little satisfied my predecessor that he was ordered to remain at his post during the last Session. Mr Elliott is a lawyer of considerable acquirements and, I believe, will be an acquisition to the New Council. He is at present personally unknown to me. The management of the new Gold mines recently discovered near the Kootenay River in the Rocky Mountains and the facilitating of access to them will be among the mostimportantManuscript image important measures which I shall bring before the Council in January. I have, therefore, gladly availed myself of the Services in the Council of Mr John Carmichael Haynes, who, you will observe in Mr Birch's report enclosed in my despatch No. 71 of the 25th instant, has managed admirably in the establishment of law and order among the miners. Mr Haynes supersedes Mr Sanders of Yale. The last named Gentleman is an excellent public Officer, but the interests of Yale and Lytton are so nearly identical that theycanManuscript image can safely be left to the management of Mr Ball. Mr Haynes is, like Mr Elliott, at present unknown to me.
4. The people of New Westminster have recommended me to reappoint Mr Joshua Attwood Reynolds Homer, and Douglas and Lillooet, by a large majority replace Mr Henry Holbrook's name before me. The district of Cariboo East, has chosen Mr George Anthony Walkem, a Canadian Barrister, to represent them in the place of Mr Orr. Yale and Lytton have selected Mr Clement Francis Cornwall, an English barrister, in the place of Mr Smith. These four Gentlemen recommended by the people
How?
have been appointed by me.
5. InManuscript image
5. In Cariboo West, Mr Walter Moberley has been chosen in preference to the former Member of Council, Dr Black, but the latter Gentleman has just sent me in a petition, praying that I will not appoint Mr Moberley on the ground of his having been adjudicated a Bankrupt in Vancouver Island in 1863. The matter is under my consideration. I have asked for information respecting Mr Moberley's bankruptcy, but if, as I believe, he was an honest but unfortunate speculator, in a Country where all speculate, I shall appoint him during your pleasure.
6. The Appointments I havemadeManuscript image made are to continue in force, unless disallowed by the Secretary of State, until the 1st of May 1866.
7. I have summoned the Council to meet on the 12th of December for the despatch of business.
I have the honor to be,
Sir,
Your most obedient
humble Servant
Frederick Seymour
Minutes by CO staff
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Mr Elliot
Under the authority of the 5th clause of the Order of the Queen in Council of 11 June 1863 the apptment of the Members of the L.C. of B.C. "may be made to determine at a period named in the instrument making the same" and it is added "every Member of the said Council shall hold Office during H.M's pleasure only."
I presume that in the Instrument of apptment Sir J. Douglas, when he nominated the Board for the first time, fixed its duration for one year. Such fact however hasManuscript image not been before reported to this Office, nor was I otherwise aware of it. Under these circes Mr Seymour has had to reestablish the Board & has profited by the occasion to make some alterations in its composition.
I see no objection to the selections now made, if Sir F. Rogers has none to offer on the score of legality.
ABd 14 Feby
Sir F. Rogers
You will observe that Govr Seymour says in his opening sentence that his Predecessor appointed his Council for one year vizt the year 1864.
TFE 15 Feb
I am afraid Mr Seymour may have got himself into a scrape. Dissolution is a mode of proceeding applicable to a representative Legislature—but the B Columbia Council is legally a mere Crown Council to which the operation of dissolution is not naturally applicable & is not in fact applied by the Order in Council wh establishes the B Columbia Legislature.
The only mode by which a CouncillorManuscript image can be got rid of is, I apprehend, first by the Expression of H.M's pleasure under clause 5 of the Order in Council, & secondly by his seat being declared vacant by the Govr upon his bankruptcy &c under clause 13. Thirdly by his suspension by the Governor on some definite charge under clause 14 of the Order in Council and 23 of the Governor's Instructions.
I think this shd be explained to Mr Seymour, that he shd be informed that serious doubts (to say the least) may be entertained whether the Councillors are not unlawfully appointed, as having been appointed before their predecessors term of office had expired & that he should be recommended to reappoint the gentleman whom he has appointed and as soon as they are reappointed to pass a law establishing retrospectively the validity of all acts & proceedings taken before their reappointments.
FR 17/2
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I think also that he should be admonished as to the necessity of carefully considering the instruments under which his power as Governor are conferred upon him before he proceeds to the exercise of these powers.
FR 17/2
CF 18
EC 20
Other documents included in the file
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Draft reply, Cardwell to Seymour, No. 13, 3 March 1865.
Seymour, Frederick to Cardwell, Edward 24 November 1864, CO 60:19, no. 1375, 395. 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/B64270.html.

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