Colonial Despatches

Mr Elliot
This is a subject on which Sir F. Rogers felt some legal difficulty. I think the case may be reserved for Sir F. Rogers' return to London without, in the meanwhile, troubling Mr Cardwell with the Papers.

Reserved for Sir F. Rogers.

Mr Cardwell
The Duke of Newcastle was extremely anxious to establish representative institutions in British Columbia, but it was impossible to do so formally, because we did not know enough of the Colony to define a Constituency, and because its circumstances were so shifting, and population so anomalous that it was impossible to say what was good now would be good three yearshence hence.

The result was the establishment (as a temporary step in the desired direction) of a Legislature which was in form a Crown Council, but (reversing the Augustan policy) was by manipulation to be made representative. The anomaly of B.C. is that the Legre is a Crown Council but that the Crown does not retain the power of Legislation by Order in Council.

It is the universal rule that the Members of such a Crown Council hold Office till the Crown dismisses them in the manner prescribed by usage or by the instrument under which they hold their Offices.

A Representative Legislative body on the contraryis is by the Governor's Commission or other adequate authority usually made subject to dissolution. Usually because some Legislative Councills [sic] which coexist with an Assembly are not so.

The Columbian Council being virtually (though not technically) in part representative Mr Seymour without any express authority in his Commission or otherwise took on himself to apply to it the process of dissolution. This may not have been very unnatural in a Governor who viewed things politically & had never governed a Crown Colony.

His error and its possible consequences in invalidating the nomination and proceedings of his Legislature were pointed out to him. But he and his Attorney General will notown own themselves wrong, and go on arguing the case, confusing as I should say, arguments of expediency with arguments of law, and the practical effect of the Duke of Newcastle's measures, with the legal effect of the Order in Council—which are ex hypothesi extremely different.

It appears to me that when the error was discovered the proper course was to let things go on for a time as if the blot had not been hit; But at some convenient opportunity afterthe the 31st of December 1864, when the old Council unquestionably expired from efflux of time, to reappoint the new Council and then to get them to pass a Law removing doubts respecting the validity of all that they had previously done. This I think should be done still.

But Mr Crease seems to me (whether I am in all respects right or not) so much abroad in his notions of a Governor's power that I should think it wise to give him a little treatise, and with this object would write somethingto to the following effect.

State that Mr Cardwell is by no means desirous of forcing upon the Government of British Columbia any step which in their opinion is likely to produce confusion. At the same time that he fears 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.

If the question arises before a Court of Justice whether a particular Governorhas has the power of pardoning a Criminal, of suspending a delinquent Officer, of proroguing or dissolving or convening a representative Assembly, of assenting to a Law or of performing any other act which is intended to have a legal effect, 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 Act of Parliament or a Local Law (or in some cases by an Order in Council)or 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 we find that an Act of Parliament 21 and 22 Vict: Cap 99 enabled Her Majesty to constitute a Legislature for British Columbia and that by an Order in Council dated 11 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 contraryestablishes 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—in fact in 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 their appointments. The British Columbian Order in Councilis is no exception to the general rule. It certainly contains no express power of dissolution, and its structure it corresponds with that of other instruments which have never been intended or supposed to imply any such power.

That the Order in Council was thus understood by the Duke of Newcastle is clearly shown by the passage which is quoted by Mr Crease, in proof of the contrary supposition. Circumstanceshad 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 inhabs of 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 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 mt be the meaning of the D of N's words they could not alter the effect of the Order in Council. The phrase "unless previously determined" used in Sir J Douglas' proclamation of 28 Dec 1863, wh I shd imagine he considered by a Court of Law to refer to the mode of determination provided by Law—viz determination by the expression of HM's pleasure, and not to create an anomolous power of disposition 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 functionaries holding during pleasure may be usuallydismissed 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 thro' the Secretary of State.

It would seem therefore at least very unsafeto to rely on Mr Seymour's proceeding as either a valid dissolution or a valid expression of Her Majesty's pleasure—and although it may be improbable that the point should ever be raised, it would seem safest, to reappoint the existing Councillors which certainly can be done under the existing law and pass a validating Act.

At the same time this ought to be done on some occasion when there was no fear of the Council's refusing to proceed to the requisite legislation.

The minute of Sir F. Rogers seems to me very good. I have no especial consideration for the obstinacy of the A.G. who seems to me to misunderstand the whole subject from the beginning to the end.

Upon the practical question involved, vizt the dissatisfaction which may be excited by stirring up doubts as to the Constitution of the Council, Sir F.R. proposes to leave Governor Seymour all the latitude of which the case itself admits.

H.P.P. Crease, Attorney General, to Seymour, 7 June 1865, responding to the doubts expressed on the legality of the dissolution of the Legislative Council established by Douglas with the conclusion that "such dissolution was in accordance with the Law."

Draft reply, Cardwell to Seymour, Separate, 7 October 1865.