Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Despatch to London
Seymour, Frederick to Grenville, Richard 3 August 1868, CO 60:33, no. 9941, 156.
Abstract
Despatch to London.
Minutes (11), Other documents (2).
In response to Buckingham’s despatch from 12 May 1868, in which Buckingham states that Seymour does not have the authority to
reserve a Bill,Seymour describes the orders in council sanctioning Seymour’s authority to
reserve a Billfor the consideration of the British government, and Seymour describes the other instances and procedures in which Seymour used his authority to
reserve a Bill.Minutes by Holland and Buckingham discuss why Seymour was granted this authority and how in British Honduras. Holland’s later minute states in which colonies and dominions governors have the authority to reserve bills. Buckingham’s later minute states that Seymour holding the authority to reserve bills may be useful and should be confirmed through a local act. Rogers’s minute discusses alterations made to the reply to Seymour regarding Seymour’s authority as a governor. The included document describes the intended use of reserving a bill in a colony and under which circumstances this authority was granted to governors of colonies in the British Empire.
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
despatchof
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.
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
nordoes
does it give Her Majesty the power of assenting to such Bill.
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
conveyedin
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.
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
StandingRules
Rules and Orders for the regulation of their own proceedings.
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 LegislativeCouncil
Council. The
42nd [insertion in text: 43rd] Clause is as follows—
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 SecretaryCardwell
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. The
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. 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 andgave
gave instructions for its amendment.
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 formalnotification
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 Seal
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.
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 Seal
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 significationof
of Her Majesty's pleasure the
proposed Ordinance respecting the disposal of the Crown Lands."
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 Billsare
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 thatin
in
some cases this course will cause the whole question to be reopened.
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 thatin
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 instructionsto
to
bring it into operation.
to
bring it into operation.
Minutes by CO staff
Mr Elliot
By a confidential Despatch of 12 May (4448) Govr Seymour was informed that he had no power to reserve a Bill.
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 rule
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.
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.
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
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.
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
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
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.
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 only
and not by Imperial Law.
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
Other documents included in the file
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, there
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.
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,
H. Holland Esqe
Minutes by CO staff
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 some
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 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 some
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 course
would be to obtain
the passing of a
local act to confirm the rule already existing?
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
Draft reply, Buckingham to Seymour, Confidential, 14 November 1868, with revisions, discussing the legal reasons why Seymour could not reserve a bill for the Crown’s judgement in British Columbia and explaining the different legal circumstances existing in British Honduras compared to British Columbia.
Minutes by CO staff
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's
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.
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