No. 40
5th April 1871
My Lord,
I have the honor to forward to Your Lordship the usual copies of four Acts passed by the Legislative Council entitled respectively—AnManuscript image An Act to amend the Law as to the Qualification of Electors, and of Elective Members for the Legislature, and to provide for the Registration of Persons entitled to Vote at Elections of such Members, 1871.
An Act to regulate Elections of Members of the Legislature of this Colony, 1871.AnManuscript image
An Act to prevent Bribery, Treating, and undue influence at Elections of Members of the Legislature, 1871.
and
An Act to make provision for enquiring into Controverted Elections and Disputed Returns of Members to serve in the Legislature, 1871.
2. I enclose the ReportofManuscript image of the Attorney General, and it is not necessary for me to add much to the explanations therein contained. The first three measures do not differ in principle from others which have been commonly adopted elsewhere; and the principle of the Controverted Elections Act, although I forward to YourLordshipManuscript image Lordship a protest against it from the Judges of the Supreme Court, I regard as very important in any Colony, but specially so in this one under the arrangements which it is proposed to establish.
3. Your Lordship will observe that the first Act of the series providing for theRegistrationManuscript image Registration of Voters also requires a qualification in respect of Electors. In my Despatch No 136 of the 17th October last, I have my reasons for not attempting to impose any condition of this kind at the Elections for the present Council. I still doubt whether the qualifications which are now required willcmuchManuscript image much affect the result of any election; but I found a strong opinion prevailing among our official members of the Legislature that it would be undesirable to formally establish manhood suffrage by an Act of the Legislature; for in this case it would be practically impossible at any subsequenttimeManuscript image time to withdraw it; while it will always be open to the Legislature to relax a restriction and more easy to modify the provisions in any direction if the principle is now asserted that some qualification for the elective franchise is necessary. Still it has not been found practicable to do more thanrequireManuscript image require what is at best but a very slight qualification. The chief value of the Act is that whatever may confer the elective franchise the right to exercise it must be registered, and after this year must have been possessed for three months before registration. These and other auxiliary regulations will IthinkManuscript image think effectively restrict the elective power to settled residents who have some substantial interest in the Colony.
4. With regard to the Controverted Elections Act, Your Lordship will consider the objections urged by the Judges of the Supreme Court. As I have assented to theActManuscript image Act subject to Her Majesty's confirmation, it is scarcely necessary to say that I do not concur in the views of Mr Begbie and Mr Crease, but some explanation of my reasons is desirable. If the Judges had had the same experience in the working of Colonial Representative Constitutions as both theAttorneyManuscript image Attorney General and myself have acquired in other places, I do not think they would hold the opinion they now entertain. It would not require experiment now to teach me what to expect from the action of Colonial Election Committees, but in fact I am informed that experiencehereManuscript image here during the existence of the separate Vancouver Island Legislature fully justifies the conclusion at which I have arrived. I believe that every reason which induced the disregard of the Judges objections in England would apply in this Colony with greater force. Almost alltheManuscript image the arguments which have been used against the jurisdiction in Controverted Elections being given to the Supreme Court are more closely applicable to its being left to the Assembly, which will be a political body liable to be swayed by political motives. Whereas in fact bytheManuscript image the operation of the Registration of Voters Act it will scarcely be possible that any Election should be controverted except on the ground of Bribery and other corrupt practices which will be offences against the Law, and as such properly cognizable by a legal Court. I do not regard a ColonialLegislatureManuscript image Legislature as a natural tribunal to adjudicate upon matters of that kind nor think it at all desirable that they should be so constituted; even though Colonial public opinion might be satisfied by such a tribunal; for in any case great consumption of the time of the Legislative bodyisManuscript image is caused by the trial by them of disputed Elections. But, the great merit of the measure in my estimation is that it will operate to prevent Controverted Elections. Let them be referred to the Court, to treat infractions of the Election Laws as common offences, and there will probably not be one reference to the CourtinManuscript image in ten general elections. Allow the Assembly to deal with them and there will be Petitions on almost every occasion, political jobbery, corruption, and pretences to Parliamentary supremacy over ordinary law to which in fact a Colonial Legislature has no title though the claim to it has causedmuchManuscript image much mischief in other places.
5. I do not share the dread of the Judges either that "supreme political power" would be placed in their hands, or that their independence would be destroyed, which Mr Begbie alleges to be the main grounds for his objection to the jurisdiction. I have no fear that the fate ofanyManuscript image any administration would ever depend upon a Judges decision, nor on the other hand would be in any case, under Confederation or not, be removable by the local government, and his Salary is provided for by Act; and this places him at once above any unworthy influences andmakesManuscript image makes him an impartial referee much more so, indeed, than in many cases which might come before him, such as I have known, in which the Acts both of the Government and the Legislature have been arraigned.
6. Mr Crease succinctly objects to the measure, as"unnecessary,Manuscript image "unnecessary, inexpedient, ineffective and dangerous." I differ from him on all these grounds. I think it not "unnecessary" because the history of the Assembly of Vancouver Island exhibited the same tendencies here which have been observed elsewhere; and the present Legislature knowingthisManuscript image this have willingly adopted the principle under discussion by a unanimous vote. I think its "expediency" even greater here than in England, because of the lack of a high standard of public opinion in small communities. It will be at least as "effective" as a matter of convenience, because if theLegislatureManuscript image Legislature should try Election petitions, all such Petitions must be brought to Victoria for hearing, while if the Court adjudicates the question can be brought before the Court on circuit, and if necessary a special Court can be held in a convenient place. I cannot regard it as in any sense"dangerous"Manuscript image "dangerous" to the free administration of the Law, even to so great an extent as it would be for the Court to decide upon any point of Constitutional Law, in which the local Government might be concerned, upon which a legal judgment should be required. And I look upon anyregulationsManuscript image regulations as valuable and important at this particular juncture in public affairs which will assist to assert the principle that even Colonial Legislatures, Responsible Governments, and popular majorities must discharge their functions according to Law. I do not like to suppose,thatManuscript image that any such consideration affects the view taken by the Judges; but the only objection that I can see is that this Act will in some slight degree add to their duties and responsibilities.
I have the honor to be,
My Lord,
Your most obedient
Humble Servant
A. Musgrave
Minutes by CO staff
Manuscript image
Mr Holland
4 B. Columbia Election Acts.
No 12 Qualification of Electors & Members & Registration of Voters.
CC 10 May
No 13 Act to regulate Elections of Members.
No 14 Act to prevent Bribery (based upon 17 & 18 Vict c. 102).
No 23 Act to provide for inquiry into Controverted Elections.
I think all these Acts may be sanctioned. The Attorney General has reported so fully upon them that I have little to add. With the exception of the Sections relating to qualifications of Members all 4 Acts were passed unanimously by the Council.
The last Act is taken from the Imperial Act 31 & 32 Vict c. 125, and the Judges have protested against it.
I think the answer to their protest afforded by the Governor in his Despatch is quite satisfactory.
? In sanctioning the Acts state that Ld K has carefully considered the arguments urged by the Judges against the Act, but that he sees no reason to anticipate that this mode ofManuscript image trial of controverted Elections which has worked satisfactorily in England should fail in the Colony, or should tend to lessen the authority or independence of the Judges.
HTH 11/5
I think there is much force in some of Chief Justice Begbie's objections, especially as the Judges hold office "during the pleasures of the executive" (page 21). But it is a matter of which the Leg. Council shd be able to judge for themselves, and as they have unanimously passed the law, [Lt?] Govr Musgrave approves, and there is the recent English precedent, I think we may answer as above.
EHKH 12/5/71
What is the exact position which a Judge holds in the Dominion? Can he be dismissed at the mere will of the Executive?
K May 12/71
There is no Court of the Dominion, but the Judges of the Supreme Court of each of the Provinces hold "during good behavior." In B. Columbia during pleasure.Manuscript image As regards modes of removal of Judges see page 4 as marked of Parl Pap[er] June 1870.
CC 13/5
I think on the whole this Act may be assented to though the objections of the Judges are not without weight.
K May 14/71
Documents enclosed with the main document (not transcribed)
Printed copies of acts not on microfilm.
Manuscript image
George Phillippo, Attorney General, to Musgrave, 1 April 1871, reporting on the four acts as per despatch.
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M.B. Begbie and H.P.P. Crease to Musgrave, 31 March 1871, detailing their objections to "The Trial of Controverted Elections Act, 1871" (twenty pages).
Other documents included in the file
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Draft reply, Kimberley to Musgrave, No. 47, 17 May 1871.
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Draft reply, Kimberley to Musgrave, No. 48, 18 May 1871.
Musgrave, Anthony to Wodehouse, John 5 April 1871, CO 60:43, no. 4540, 358. 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/B71040.html.

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