18th May 1865
I have just had the honor to receive your despatch No. 13 of 3rd March, suggesting serious doubts ("to say the least") of the legality of the appointments I have madetoManuscript image to the Legislative Council of this Colony. The importance of the subject compels me to address you without a moments delay and send an express to Esquimalt to meet a Steamer which may be expected tomorrow.
2. Permit me first to say that I have had no previous experience of the working of a Legislative Constitution such as this Colony now possesses. The late Secretary of State,whoManuscript image who honored me by special instructions as to my Administration of Affairs, informed me, that his desire to confer representative institutions upon the people was only kept in check by the difficulties of the case. His Grace expressed the wish that I should do what lay in my power to prepare the people for that system of self Government which must ultimately come and which, he observed, would facilitate the absorption ofVancouverManuscript image Vancouver Island into the Government of British Columbia. I need not say that I promised faithfully to carry out His Grace's commands, but at the same time I ventured to say, that by giving a liberal interpretation to the Order in Council constituting the present Legislature, I should be able to prevent for some time any further clamour for representation or responsible Government.
3. My words have beenfullyManuscript image fully verified. During the late protracted Session, neither in the Council nor without, by press or people, was there an expression uttered against the present constitution. So far from that of Vancouver Island being now the model, the Legislature of that Colony have expressed, in their anxiety for a union with British Columbia, a willingness to adopt our Legislative arrangements. The theoretically imperfect constitutionhasManuscript image has been found practically more useful than the one held out to us for imitation.
4. Pray understand that I am not losing sight of the expediency of bringing our Institutions into harmony with those of the older Colonies beyond the Rocky Mountains, nor am I closing my eyes to the fact that the usefulness of the work done in the late Session, in no way affects the questionofManuscript image of the Legality of the appointment of the Councillors who did it.
5. I was of opinion that the Order in Council and the Royal Instructions allowed me to make two distinct Legislative bodies of the Governor, and the remainder of the Legislative Council. The former having the power to prorogue and dissolve the latter.
This is the mistake the Govr has fallen into.
Your despatch No. 31 of 16th August 1864, tacitly admits the right first assumed;thatManuscript image that, to which I have now the honor to reply, questions the second.
6. I cite first in support of the view I adopted, the Duke of Newcastle's Separate despatch to Governor Douglas of the 15th June 1863. His Grace writes; "I also leave it to you to determine the period for which (subject to Her Majesty's pleasure, which involves a practical power
i.e. Not a legal one.
of dissolution)theManuscript image the Councillors should be appointed."
7. The 5th Section of the Order in Council likewise says that all appointments, other than those of Public Officers nominated by the Crown, shall be "provisional only, until the same shall have been approved by Her Majesty through one of Her Principal Secretaries of State." None of the appointments made by Sir James Douglas appeartoManuscript image to have been approved by Her Majesty.
8. You impress upon me the necessity of "acting with great care and in any doubtful case, with the advice of Counsel, in matters where the legal validity of my proceedings is liable to be impeached." I can assure you that I did not act without care or consideration in dissolving the Council, and I observe that the Instrument under which IbelievedManuscript image believed myself to have performed that operation is in the hand writing of the Attorney General. The Order in Council of the 11th of 1863, you will find printed in the Legislative proceedings of the first Session of 1864. It was therefore in the hands of every member of the Council; and, though there are now four barristers, the Attorney General, Mr Elliot, Mr Walkem and Mr Cornwall, in the present Council, notaManuscript image a doubt was suggested as to the legality of the dissolution, by means of which the people had been permitted to present the two latter gentlemen to represent them in Council. Our only Judge, Mr Begbie, was good enough to call on me more than once with exceptions to the Standing Rules I had drawn up. He thought I could not legally enforce the fine for non attendance. We discussed some other points which do notatManuscript image at once recur to my memory, but very certainly he did not express a doubt as to the validity of the appointment of the Councillors.
9. If the legality of the dissolution be established, I have no fear of your opinion as to the propriety of the step. Had I imagined I possessed no power to dissolve, there were but three courses open to me. To allow the Council to expire unused on the 31st ofDecemberManuscript image December, and throw all the heterogeneous mass of Supplementary Accounts—the old promises made, the old debts contracted, but not provided for by my predecessor, into the January Session and prevent my starting on the first real Legislative work I have undertaken untrammeled by embarrassments not of my own creation. In this case, the work of the Session would have been, even with the extraordinarily prolonged winter of this year,cutManuscript image cut short or mutilated by the departure of the majority of the Council for the interior. Or I might have reappointed the old Council on the 1st of January; but the Duke of Newcastle directed me to appoint men who had the public confidence. I should have virtually disobeyed orders had I adopted this second alternative. Three out of the five popular members were rejected at the new elections. But His GracewishedManuscript image wished also that all important interests should be represented. How could the most important district in the Colony—that containing the Kootenay and Columbia Gold Mines—find a voice in the House if I adhered to the arrangements by which the 52 miles between Yale and Lytton continued to be represented by two men? Mr Sanders but spoke for a small town on the Fraser, Mr Haynes made known the wishes of the miners fromtheManuscript image the Rocky Mountains to the Cascade Range. Mr Nind had been debarred, (under what authority I know not) by Sir James Douglas, who appointed him, from attending the Council.
10. Lastly, I might have got over the December Session with one Council, that of January with another. This sounds plausible, but it is practically impossible. The Upper Country is almost deserted in thewinterManuscript image winter. The Miners have left the Colony. The communications are closed. There would have been a cry of indignation in the spring at the sham elections. But had I been able satisfactorily to get the new Members, the expense would have been enormus. There would have been four unofficial members for Cariboo. Their Travelling allowance in 1864 was one hundred and fifty pounds (£150) a head. Mr O'Reilly received last year four hundred and fourteen pounds (£414)forManuscript image for the expenses of his return, only, from the Session. Other Members kept the same proportions. My double staff of selected and appointed Members would have been a terrible weight on the Colonial resources even had the avalanches and snow drifts on the main line of road enabled the Second Council to reach New Westminster at all.
11. And now what is tobeManuscript image be done if the proceedings of the Council are a nullity, and that body has no legal existence? I deeply regret to say that the assistance in the way of advice you are good enough to give me fails to meet the case. The Council has been prorogued. Mr O'Reilly is at the Kootenay Mines, five hundred miles off. Mr Ball is in Cariboo, the same distance from the seat of Government. Mr Elliot is at Lillooet several hundred miles away. Mr HayneswatchingManuscript image watching the American frontier with his staff of Constables and Customs Officers at Osoyoos, half way to the Kootenay. The expense of recalling these Gentlemen would be enormous. Their absence, from the posts assigned to them, during the height of the Mining Season would entirely dislocate the machinery of the Government.
Of the elected members, Mr Walkem is at Cariboo, Mr Cornwall at the Kootenay, they wouldbothManuscript image both send me in their resignations should I summon them to town. I know of no central spot where the Council could meet and the Government Officers be brought up to it from New Westminster.
12. If you should arrive at the definite conclusion that our late proceedings, which have given so much satisfaction to the Colony, are illegal, I know of but two courses to be pursued. Possibly you might legalizebyManuscript image by a short Act of Parliament the appointment of the Councillors; as the error, if it be one, was mainly the result of the meaning attributed to your predecessor's words.
1st alternative.
Or else, the whole matter might be kept quiet until the Autumn; the present Council then receive fresh appointments, and an Ordinance passed, as suggested by you, "Establishing retrospectively the validity of all acts and proceedings takenbeforeManuscript image before their re-appointment."
2nd alternative.
13. Had your instructions reached me earlier there would not have been the least difficulty in carrying out the course you prescribe. No one member would have hesitated to ratify the policy and the acts of the House.
14. Possibly you might be able to communicate with me by telegraph through Newfoundland or New York in such a manner by a reference to the paragraphsofManuscript image of your despatch or of mine, as would not be comprehended on the Line.
15. I beg that you will extend every indulgence to this communication written with the utmost haste.
I have the honor to be,
Your most obedient
humble Servant
Frederick Seymour
P.S. There isManuscript image
P.S. There is another view of the case. If the Council was not legally dissolved, the Colonial Secretary, Attorney General, Treasurer, Collector of Customs, Messrs O'Reilly, Ball, Brew, Homer and Holbrook, continued to be Members of Council with their Commissions renewed from December 1864, to May 1866. Mr Cornwall was also legally appointed on the 12th of January 1865. Mr TrutchwasManuscript image was absent. Thus ten members out of fourteen would appear to have been effective. No measure was carried by a bare majority of the Council. F.S.
Minutes by CO staff
Manuscript image
Mr Elliot
I think that there is no necessity for sending any telegram to Govr Seymour on this subject, and that the consideration of this desph and what steps should be taken to remedy any act of impropriety or illegality which the Govr may have committed may be reserved for Sir F. Rogers. It is too late for an Act of Parlt, if not quite unnecessary, and the Govr cannot get his Councillors together at present. So that if the Councillors are to be reappointed, and an Act of Indemnity passed it can only be done in the Autumn.
ABd 10 July
Sir F. Rogers
There was evidently no opportunity of sending him any useful instructions by telegraph, and I have reserved this for you. Govr Seymour defends himself from the charge of want of consideration, and also explains some practical difficulties which appear forcible.
TFE 17 July
I have no doubt that in substance Mr Seymours proceedings were well considered but unfortunately he took an illegal method (as it appears to me) of effecting his purpose.
I think the proper course is the 2nd of the alternatives proposed by him, wh was in effect suggested by Mr Cardwell's dph.