Confidential
Victoria
3rd August 1868
My Lord Duke,
I have had the honor of receiving Your Grace's Confidential despatch of 12th May acknowledging the receipt of my despatchofManuscript image of 22nd November, No. 149, covering a Bill for the acquisition of Crown Lands in British Columbia which I reserved for Her Majesty's pleasure.
2. your grace points out that the order in council under which my powers as a Legislator are derived does not enable me to reserve a Bill for the signification of Her Majesty's pleasure nordoesManuscript image does it give Her Majesty the power of assenting to such Bill.
3. I would respectfully beg to observe that the 9th and 10th and 11th sections of the Order in Council of the 11th June 1863 are as follows
IX. The Council shall in the transaction of business and the passing of laws, conform as nearly as may be to the directions conveyedinManuscript image in that behalf to the Governor of British Columbia in certain Instructions under the sign Manual and Signet, bearing date the 2nd day of September 1858 until otherwise provided by Us and such further instructions as may hereafter be addressed to the Governor in that behalf.
X. Subject to such Instructions the Council may make such StandingRulesManuscript image Rules and Orders for the regulation of their own proceedings.
XI. 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.
4. Obeying the Royal Instructions I framed Standing Rules and Orders for the adoption of the LegislativeCouncilManuscript image Council. The 42nd [insertion in text: 43rd] Clause is as follows—
It shall be in the power of the Governor to reserve Bills for Her Majesty's consideration, and to assent to them when so instructed although the Council shall have been prorogued.
Assented to by the Legislature of the Colony I conceived these Orders to have the force of Law. Mr SecretaryCardwellManuscript image Cardwell's despatch No. 37 of the 3rd July 1865, acknowledges the receipt of my despatch transmitting the Standing Orders and adds, "These Rules appear to have been devised with pains and do credit to the consideration which must have been bestowed on the subject, and I hope that they may work to the satisfaction of the Council and the Public."
5. TheManuscript image
5. The 6th Section of the Imperial Act 28 and 29 Victoria Chapter 23, strengthened the belief I entertained. It seems to recognise the power as inherent in a Governor.
6. My error was not pointed out in Your Grace's despatch No. 52 of the 5th of September 1867 which acknowledges the receipt of a reserved Bill andgaveManuscript image gave instructions for its amendment.
7. Under these circumstances imprudently I considered myself justified in acting as I have done, more especially as I exerted the right of reserving bills for Her Majesty's consideration in a Colony—Honduras—with which I was formerly connected.
8. It has always been held here that a formalnotificationManuscript image notification of my assent as Governor to a Bill was necessary to give it the force of law and such assent I have been in the habit of giving in the words, "Assented to in Her Majesty's Name." These words are not in the Land Bill to which Your Grace refers and it is totally inoperative although my Secretary, perhaps imprudently, has put the SealManuscript image of the Colony to the Copy I forwarded to Your Grace and though my signature is attached in evidence of its correctness. The original has no Seal and is unsigned by me. It cannot therefore have the force of Law.
9. Your Grace will observe that I commenced the fifth paragraph of the Speech with which I closed the Session with the words—"I reserve for the significationofManuscript image of Her Majesty's pleasure the proposed Ordinance respecting the disposal of the Crown Lands."
10. The 42nd Clause of the Standing Orders certainly if Law facilitate public business. As it is desirable in an English community to allow the greatest freedom of debate in matters of Legislation, I have abstained from presiding in the Council. The BillsareManuscript image are brought up to me in considerable numbers just about the time when I must send the Magistrates to their respective districts. It was a convenience to me to consider that I could reserve any bill of unusual complexity and assent to it when instructed. I shall however in future send back such bills to have a suspending clause added, although I fear thatinManuscript image in some cases this course will cause the whole question to be reopened.
11. I shall, as Your Grace directs, frequently refer to the letters Patent and other Instruments from which my powers as Governor are derived.
12. I may add that the New Land bill was little liked and that [I] am glad that I have not received Your Grace's instructionstoManuscript image to bring it into operation.
I have the honor to be,
My Lord Duke,
Your Grace's most obedient,
humble Servant.
Frederick Seymour
Minutes by CO staff
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CC 11 Sept
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Mr Elliot
By a confidential Despatch of 12 May (4448) Govr Seymour was informed that he had no power to reserve a Bill.
To this he answers that one of the standing rules of the Council (made under section 10 of the Order in Council of 1863) authorizes the Govr to reserve a Bill, & that these rules were highly approved of by Mr Cardwell in 1865. I think I would reply that though the existence of such a ruleManuscript image affords an ample justification to the Governor for the course he adopted in reserving the Bill, yet that it is not such a rule as the Council were authorized to make under the 10th clause of the Order in Council, as it is clearly not a rule "for the regulation of their own proceedings." That HG desires that for the purpose of avoiding any question in the future, the rule should be at once repealed, and he trusts that the inconvenience which the Govr seems to anticipate will not be found to arise.
HTH 10/9
TFE 11/9
CBA 12/9
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Why is no power of reserving bills given in B. Columbia—and was the point brought before Mr Cardwell when he approved the rules?
B&C 14/9
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Duke of Buckingham
1. The power of reserving is given by Acts to some large Colonies as the Australian, & Canada & one or two others. But it is not usually given, and no inconvenience, that I am aware of, has arisen.
2. We have no further information as to what passed when the rules were submitted to Mr Cardwell than what appears in the papers 6171 which I sent on to YG.
I should infer from the minutes of Mr Blackwood & Mr Elliot that the point escaped observation.
HTH 18/9
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The question seems to me to be whether it is better to take measures to confirm the practice according to the rules or to abandon the reservation. I shd like to know exactly the colonies in which it exists—before deciding, and also to know any reasons which may have influenced the office in granting & withholding it in different cases.
B&C 18/9
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Duke of Buckingham
The power to the Govr to reserve Bills is given by the B.N. America Act 1867 in the case of Canada; & Instructions in the case of P. Edward Island. This last case is probably an oversight as I find no Act authorizing the Govr to reserve.
In Newfoundland & Bermuda there is no power to reserve.
In all the Australian Colonies—except W. Australia—and in New Zealand, power to reserve is given by Act, or, as in the case of Queensland, by the Order in Council (which created the Colony) adopting the N.S. Wales Act.
In Natal, power is given by the Charter of 1856.
In the Cape of Good Hope power is given by the Instructions—which are in conformity with a local ordinance of 1852.
In British Honduras power is given by local Act 16 Vict. c. 4, s. 34.
In the Virgin Islands power was given by the old Constitution, but no such power is given in the new Constitution.
In the existing Instructions for the Leeward Islands power is given to the Govr to reserve; & this is correctly given so far as regards the Virgin Islands, but I find no power to reserve given by local law in the case of Antigua, or in some of the others.
I may observe that all of these Islands have recently modified their constitutions, & no power is now given to the Govrs to reserve bills.
The above are the only Colonies in which the Govr can reserve; & I entertain grave doubt in some of these cases whether he can properly do so, viz where he has been authorized by Instructions onlyManuscript image and not by Imperial Law.
As to the 2nd part of Y. Grace's minute I am unable to give any answer. I have inquired of Mr Merivale, but all he could tell me was that he remembered the subject had been thought over, & that his impression was that it was thought more convenient to have suspending clauses. Perhaps it will be better to wait, therefore, until Sir F. Rogers returns.
HTH 22/9
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Yes.
B&C 23/9
Other documents included in the file
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India Office
Sept 24/68
My dear Holland
One's recollection comes back slowly, when questioned about things of former years. On thinking over your doubt about the practice of "reserving" acts of representative bodies, & not those of Crown Councils, I am inclined to think there is a reason for the distinction, which escaped me when I saw you.
Where there is a representative body, there will of course be differences of opinion between it and the Governor. The Governor's power to reserve Acts is a convenient middle course between acceding to what he does not like, and refusing what they like. It establishes the Home Government as judge between them.
Where there is only a Crown Council, thereManuscript image ought not to be differences of opinion between Council and Governor. There will of course be such differences between individual Councillors and Governor—but the Council, as a body, ought perhaps to have no such standing point. Reservation means, "I think myself in the right & you in the wrong, and I mean to ask the Secy of State to decide." That places the Council in a kind of quasi-independent position which (at least so we used to think) is inappropriate to its nature. When such a Council is desirable, the time for representation is come.
Excuse these hazy speculations and believe me,
Very truly ys
H. Merivale



H. Holland Esqe
Minutes by CO staff
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Mr Robinson
Will you lay this before Sir F. Rogers on his return.
HTH 26/9
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Mr Holland
I am inclined to think that in a colony such as B. Col. the power of reservation may be of use to the Govr and of advantage in the conduct of business—but as there is someManuscript image difference of opinion on the subject, it may be well to await Sir F.Rs return unless you think the question one of urgency.
I presume if my min is acted upon—the courseManuscript image would be to obtain the passing of a local act to confirm the rule already existing?
B&C 25/9
Other documents included in the file
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Draft reply, Buckingham to Seymour, Confidential, 14 November 1868, with revisions.
Minutes by CO staff
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See alterations.
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I am disposed to think that without an explanation of this matter, as clear as the English language—or at least my English—will make it, we shall have further misapprehension. I have taken some pains to adjust the dph to what appears to me Mr Seymour'sManuscript image state of knowledge & ignorance—apprehension & misapprehension. But I am unable to do this without a minute peremptoriness of Explanation, wh I wd have avoided if I could.
FR 9/11
Seymour, Frederick to Grenville, Richard 3 August 1868, CO 60:33, no. 9941, 156. 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/B68081CO.html.

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