Colonial Despatches

I have to acknowledge your Despatch of the 3rd of August 1868, respecting the reservation of laws for the signification of Her Majesty's pleasure.

A misapprehension has evidently existed in consequence of the use in the rule of Council No. 43 of the term reserve which was sanctioned by the Secretary of State by Despatch of the 3rd of July 1865, No. 37.

The subject will be conveniently explained by reference to the two Colonies with which you are most familiar, British Columbia, and British Honduras.

In no Colony can laws be made except by the authority which is legally empowered to make them.

The sole instrument which in British Columbia gives the power to make laws is the Order in Council of 11th June 1863, and the only authority to which such power is given is the Governor with the advice and consent of the Council. No share in that power is given to the Queen who can only disallow Laws but is not under any circumstances enabled to take part in making them.

In British Honduras the Instrument which gives power to make Laws is the Local Act 16 Vict: Cap 4. It gives that power to the Governor and the Legislative Body, i.e. in British Honduras the Assembly, and is so far like the British Columbia Order in Council. But like the laws of Australia and Canada, it adds a qualification not contained in the Order in Council of June 11th 1863. For it authorizes the Governor under certain circumstances to do what is technically described as "reserving a Bill for the signification of Her Majesty's pleasure."

The effect of thus reserving a bill, as you doubtless remember and will see by reference to the Act, is to enable the Governor instead of assenting himself to a Bill to transfer the power of assenting to her Majesty in person.

Thus you see that the power of transferring to Her Majesty the power of taking a part in Legislation is unequivocally given to the governor in one Colony and unequivocally withheld from him in the other.

The Governor therefore may exercise the power in British Honduras where it is given, he may not exercise it in British Columbia where it is withheld.

I now come to the consideration of the 10th clause of the Order in Council of 1863, and the 43rd Rule of Council cited erroneously as 42nd Clause in Confidential Despatch of 3rd August made under Authority of that Clause and to which you refer as giving what the Order in Council itself does not give. On this I first observe that the power given to the Council of making rules for their own proceedings in British Columbia does not include the power of investing Her Majesty with the power not otherwise given her of assenting to Bills in England. The assent of the Queen in England forms no part of the proceedings of the Legislative Council in British Columbia.

You will further see on reading the 43rd Rule that the Council have not in fact attempted thus to exceed their powers.

It is true that they have used the word "reserve" in the sense of deferring or referring, but they had not used the technical phrase "reserve for the signification at Her Majesty's pleasure." The rule does not therefore like the British Honduras Loco, empower you to transfer to Her Majesty the function of assenting to a Bill, but only established or recognized your right to consult the Home government before assenting to the Bill yourself. This of course you can do and could have done whether the Council had authorized you to do it or not.

You have therefore two courses open to you in case a Bill of doubtful propriety is presented to you.

1. To require the insertion of a suspending Clause and to assent to it on the insertion of that Clause.

2. To refer the Bill home for Her Majesty's consideration and to postpone your own assent to the Bill till you have received instructions.

There is one point to which it may be well I should draw your attention and which is suggested by the language of the 5th paragraph of your Despatch viz. the extreme danger of supposing that any power and especially any technical power is "inherent" in you as Governor which you cannot shew to be expressly or implicitly given by your Commission and Instructions or by Imperial or local laws.

I have no doubt that this explanation will prevent any future misapprehension.

But as it is evident that the word reserve has received a different interpretation in the Colony from that which was here understood to be evidently its real meaning I think it would be advisable to take any convenient opportunity to substitute the word "refer" for the somewhat misleading word "reserve" in the 43rd Rule of Council.