Separate

I have just had the honor to receive your despatch No.
13 of 3rd March, suggesting serious doubts ("to say the
least") of the legality of the appointments I have made to
the Legislative Council of this Colony. The importance of
the subject compels me to address you without a moments
delay and send an express to Esquimalt to meet a Steamer
which may be expected tomorrow.

2. Permit me first to say that I have had no previous
experience of the working of a Legislative Constitution such
as this Colony now possesses. The late Secretary of State,
who honored me by special instructions as to my Administration
of Affairs, informed me, that his desire to confer
representative institutions upon the people was only kept in
check by the difficulties of the case. His Grace expressed the
wish that I should do what lay in my power to prepare the people
for that system of self Government which must ultimately come
and which, he observed, would facilitate the absorption of
Vancouver Island into the Government of British Columbia. I
need not say that I promised faithfully to carry out His Grace's
commands, but at the same time I ventured to say, that by
giving a liberal interpretation to the Order in Council
constituting the present Legislature, I should be able to
prevent for some time any further clamour for representation
or responsible Government.

3. My words have been fully verified. During the late
protracted Session, neither in the Council nor without, by
press or people, was there an expression uttered against the
present constitution. So far from that of Vancouver Island
being now the model, the Legislature of that Colony have
expressed, in their anxiety for a union with British Columbia,
a willingness to adopt our Legislative arrangements. The
theoretically imperfect constitution has been found practically
more useful than the one held out to us for imitation.

4. Pray understand that I am not losing sight of the
expediency of bringing our Institutions into harmony with
those of the older Colonies beyond the Rocky Mountains, nor
am I closing my eyes to the fact that the usefulness of the
work done in the late Session, in no way affects the question
of the Legality of the appointment of the Councillors who did it.

5. I was of opinion that the Order in Council and the
Royal Instructions allowed me to make two distinct Legislative
bodies of the Governor, and the remainder of the Legislative Council.
The former having the power to prorogue and dissolve the latter.

*

Your despatch No. 31 of 16th
August 1864, tacitly admits the right first assumed; that, to which I
have now the honor to reply, questions the second.

6. I cite first in support of the view I adopted, the
Duke of Newcastle's Separate despatch to Governor Douglas
of the 15th June 1863. His Grace writes; "I also leave
it to you to determine the period for which (subject to Her
Majesty's pleasure, which involves a practical power

**

of dissolution) the Councillors should be appointed."

7. The 5th Section of the Order in Council likewise
says that all appointments, other than those of Public
Officers nominated by the Crown, shall be "provisional only,
until the same shall have been approved by Her Majesty through
one of Her Principal Secretaries of State." None of the
appointments made by Sir James Douglas appear to have been
approved by Her Majesty.

8. You impress upon me the necessity of "acting with
great care and in any doubtful case, with the advice of Counsel,
in matters where the legal validity of my proceedings is
liable to be impeached." I can assure you that I did not
act without care or consideration in dissolving the Council,
and I observe that the Instrument under which I believed
myself to have performed that operation is in the hand writing
of the Attorney General. The Order in Council of the 11th
of 1863, you will find printed in the Legislative proceedings
of the first Session of 1864. It was therefore in the hands
of every member of the Council; and, though there are now
four barristers, the Attorney General, Mr Elliot, Mr Walkem
and Mr Cornwall, in the present Council, not a doubt was
suggested as to the legality of the dissolution, by means
of which the people had been permitted to present the two
latter gentlemen to represent them in Council. Our only
Judge, Mr Begbie, was good enough to call on me more than
once with exceptions to the Standing Rules I had drawn up.
He thought I could not legally enforce the fine for non
attendance. We discussed some other points which do not at
once recur to my memory, but very certainly he did not express
a doubt as to the validity of the appointment of the Councillors.

9. If the legality of the dissolution be established,
I have no fear of your opinion as to the propriety of the
step. Had I imagined I possessed no power to dissolve,
there were but three courses open to me. To allow the Council
to expire unused on the 31st of December, and throw all
the heterogeneous mass of Supplementary Accounts—the old
promises made, the old debts contracted, but not provided
for by my predecessor, into the January Session and prevent
my starting on the first real Legislative work I have
undertaken untrammeled by embarrassments not of my own creation.
In this case, the work of the Session would have been, even
with the extraordinarily prolonged winter of this year, cut
short or mutilated by the departure of the majority of the
Council for the interior. Or I might have reappointed the
old Council on the 1st of January; but the Duke of Newcastle
directed me to appoint men who had the public confidence. I
should have virtually disobeyed orders had I adopted this
second alternative. Three out of the five popular members
were rejected at the new elections. But His Grace wished
also that all important interests should be represented.
How could the most important district in the Colony—that
containing the Kootenay and Columbia Gold Mines—find a
voice in the House if I adhered to the arrangements by which
the 52 miles between Yale and Lytton continued to be
represented by two men? Mr Sanders but spoke for a small
town on the Fraser, Mr Haynes made known the wishes of the
miners from the Rocky Mountains to the Cascade Range. Mr
Nind had been debarred, (under what authority I know not)
by Sir James Douglas, who appointed him, from attending the Council.

10. Lastly, I might have got over the December Session
with one Council, that of January with another. This sounds
plausible, but it is practically impossible. The Upper
Country is almost deserted in the winter. The Miners have
left the Colony. The communications are closed. There would
have been a cry of indignation in the spring at the sham
elections. But had I been able satisfactorily to get the
new Members, the expense would have been enormus. There would
have been four unofficial members for Cariboo. Their Travelling
allowance in 1864 was one hundred and fifty pounds (£150) a head.
Mr O'Reilly received last year four hundred and fourteen
pounds (£414) for the expenses of his return, only, from the Session.
Other Members kept the same proportions. My double staff
of selected and appointed Members would have been a terrible
weight on the Colonial resources even had the avalanches
and snow drifts on the main line of road enabled the Second
Council to reach New Westminster at all.

11. And now what is to be done if the proceedings of
the Council are a nullity, and that body has no legal existence?
I deeply regret to say that the assistance in the way of
advice you are good enough to give me fails to meet the
case. The Council has been prorogued. Mr O'Reilly is at
the Kootenay Mines, five hundred miles off. Mr Ball is in
Cariboo, the same distance from the seat of Government. Mr
Elliot is at Lillooet several hundred miles away. Mr Haynes
watching the American frontier with his staff of Constables
and Customs Officers at Osoyoos, half way to the Kootenay.
The expense of recalling these Gentlemen would be enormous.
Their absence, from the posts assigned to them, during the
height of the Mining Season would entirely dislocate the
machinery of the Government.

Of the elected members, Mr
Walkem is at Cariboo, Mr Cornwall at the Kootenay, they
would both send me in their resignations should I summon them
to town. I know of no central spot where the Council could meet and
the Government Officers be brought up to it from New Westminster.

12. If you should arrive at the definite conclusion
that our late proceedings, which have given so much satisfaction
to the Colony, are illegal, I know of but two courses to be
pursued. Possibly you might legalize by a short Act of
Parliament the appointment of the Councillors; as the error,
if it be one, was mainly the result of the meaning attributed
to your predecessor's words.

***

Or else, the whole matter might
be kept quiet until the Autumn; the present Council then
receive fresh appointments, and an Ordinance passed, as
suggested by you, "Establishing retrospectively the validity
of all acts and proceedings taken before their re-appointment."

****

13. Had your instructions reached me earlier there would
not have been the least difficulty in carrying out the course
you prescribe. No one member would have hesitated to ratify
the policy and the acts of the House.

14. Possibly you might be able to communicate with me by
telegraph through Newfoundland or New York in such a manner
by a reference to the paragraphs of your despatch or of mine,
as would not be comprehended on the Line.

15. I beg that you will extend every indulgence to this
communication written with the utmost haste.