7 October 1865
I have the honor to acknowledge the receipt of your Despatches Separate of the 18th of May, and Confidential of the 12th of June, in reply to my Despatch of the 3rd March on the subject of the late dissolution of the Council.
I am by no means desirous of forcing upon the Government of British Columbia anystepManuscript image step which in their opinion is likely to produce confusion. At the same time I fear that they may involve themselves in great difficulties hereafter if they base their legal proceedings on the views now put forward by the Attorney General, whose opinion is forwarded in the last named of your Despatches.
If the question arises before a Court of Justice whether a particular Governor has the power of pardoning a Criminal, of suspending a delinquent officer or convening a Representative Assembly, of assenting to a Law or of performinganyManuscript imageany other Act which is intended to have a legal affect, that question is generally examined, not on any abstract principles of expediency or analogy, but by enquiring what powers have in fact been conferred upon him by written law such as an Imperial or Local Statute or Order in Council having the form of local Law, or have been delegated to him by Her Majesty through some appropriate and sufficient Instrument.
Examining in this way the powers of the Governor of British Columbia you will observe that an Act of Parliament21Manuscript image 21 and 22 Victoria Cap 99 enabled Her Majesty to constitute a Legislature for British Columbia and that by an Order in Council dated the 11th June 1863, Her Majesty did constitute such a Legislature. The Order in Council does not provide that this Legislature should be in any degree representative, but on the contrary establishes a Council composed of persons nominated by the Governor and holding their offices during the pleasure of The Queen.
Councils of this kind exist in numerous other Colonies,inManuscript image in fact almost all Crown Colonies. In no instance has the power of dissolving them been given to the Governor, and in no instance has it ever been required. If it is necessary to withdraw the powers of such a Council, the Crown can always do so by cancelling the appointments of its Members. The British Columbian Order in Council is no exception to the general rule. It plainly does not contain any express power of dissolution, and its structure corresponds with that of other Instruments which have never been intended or supposed to implyanyManuscript image any such power.
That the Order in Council was thus understood by the Duke of Newcastle is clearly shewn by the passage which is quoted by Mr. Crease, in proof of the contrary supposition. Circumstances had compelled His Grace to have recourse to the expedient of constituting a partially representative body under the form of a nominee Council. He had instructed the Governor that what was legally speaking a Crown Council was to be made practically representative, by placing in it persons informally nominated by the inhabitants oftheManuscript image the Colony, and he wished to indicate that this body which was legally not liable to dissolution could yet be practically dissolved in case of necessity by the cancellation of the Councillors' appointments: this he indicated by the words "subject to Her Majesty's Pleasure, which involves a practical power of dissolution." The words "practical power" implicitly negative the idea of a legal power. It need hardly be observed however that whatever might be the meaning of the Duke of Newcastle's words they could not alter the effect of the Order in Council.
The phrase "unlesspreviouslyManuscript image previously determined" used in Sir J. Douglas' Proclamation of the 28th December 1863, would, I should imagine, be considered by a Court of Law to refer to the mode of determination provided by Law vizt determination by the expression of Her Majesty's Pleasure, and not to create an anomalous power of dissolution not so provided.
But Mr. Crease appears to suppose that when an Officer holds his appointment during the pleasure of the Crown, that pleasure is to be "expressed in the usual way by the Representative of the Crown." He seems to consider that FunctionariesholdingManuscript image holding during pleasure may be usually dismissed by the Governor.
The contrary, however, is the case. In Colonies possessing Responsible Governments the Governor is by his Commission authorized not only to suspend but to dismiss; but in all other classes of Colonies the power of the Governor over Officers holding under any Warrant or Commission, is carefully limited to suspension, the dismissal being effected by confirmation of that suspension through the Secretary of State.
It would therefore be very unsafe to rely on the so calleddissolutionManuscript image dissolution as a valid determination of the powers of the Council, and though it may be unlikely that the objection would ever be raised, I think it will be desirable to take some convenient opportunity of averting all risk of such an inconvenience. This would be effected by reappointing the existing Council, and procuring the Enactment of a short Law declaring the validity of all the Laws which they had previously passed.
I have the honor to be
Your most obedient
humble servant
Edward Cardwell