No. 8, Judicial
13th March 1854
My Lord Duke
I beg to inform your Grace that I have been lately engaged with an investigation into the causes, which led to the wreck of the Brig "William", bound from San Francisco to this Port, and to the death of the Master John McIntosh, who was drowned in attempting to land from the wreck while the mate and all the seamen landed in safety.
That disaster is said to have occurred near Barclay Sound, on the west coast of Vancouver's Island, in the night of the first of January last.
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2. The investigation occupied several days, and after a patient enquiry into all the circumstances, from the commencement of the voyage, to its ill fated termination, in the loss of the vessel, and death of the Master, we could not discover any grounds of complaint against the seamen; as the fact but too evidently appeared, that the Master was a person of intemperate habits and that the ship had been lost entirely through his misconduct.
The evidence proves that he was often unconscious from intoxication, that he was in that state when the vessel ran ashore, on Vancouver's Island, and his death in attempting to land from the wreck, appears to have been the effect of the same cause. A report of this case will be forwarded as soon as I have time to get it drawn up.
3. I would not have troubled your Grace with any remarks on this case at present had it not been for the extraordinary conduct of Mr Robert Swanston, the Consignee of the Brig "William"Manuscript image William, who showed a disposition to set Her Majesty's authorities at naught, and to treat the Vice Admiralty Court of this Colony, with contempt, as I will proceed to show.
4. On the wreck of the Brig "William," the crew travelled under the direction of the natives, towards this place and after much privation and hardship arrived here in a state of great distress.
5. I relieved their immediate wants and addressed a note to Mr Swanston on behalf of the crew, advising him that payment of the wages, due for the time they had served on board the "William" should be made to them, on the part of the owners. That note produced no effect, as he refused to pay the wages due, and there being no proof that he was a party interested in the ownership of the vessel I could not advise the seamen to have recourse to legal proceedings for the recovery of their claims.
6. On the 23rd January IreceivedManuscript image received a letter from Mr Swanston applying for an enquiry into the causes which led to the wreck of the William, and to the death of Captain McIntosh, and the reason given, as the grounds of that application, was to use his own words; "as he had heard rumours which led him to imagine that there may have been foul play," and moreover mentioning that the crew of the "William" were on the point of leaving the Colony.
7. I immediately thereupon proceeded to organize a Vice Admiralty Court, appointed David Cameron acting Judge, and two Master Mariners, William H. McNeill, and Charles Dodd acting Members of Court.
Mr Swanston was informed of those arrangements, through my private Secretary Mr Golledge, on the 25th January, and that the Court would proceed with the proposed investigation as soon, as he produced the information referred to in his letter.
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8. A note in reply was received from Mr Swanston, declining to appear unless I addressed him under my own signature, and not through a secretary.
9. The court was nevertheless opened on the 26th of January last, as before appointed, and proceeded to examine the mate and seamen of the Brig "William", as hereinbefore mentioned in the commencement of this letter.
Mr Swanston did not however appear when called upon for his evidence; a Writ was therefore issued, on the same day requiring his appearance before the Court. He still failing to appear I caused a writ of attachment, to issue on the 28th of January and he was taken into custody on the 30th, and committed to Jail, until the Court met in the afternoon of the same day, when he was found in contempt, and sentenced to pay a fine of 50 with costs, or in default of payment to be imprisoned as the Law directs. The fine was immediately paid, andtheManuscript image the young man was discharged from custody on easier terms than I should think it proper to grant on any similar occasion hereafter, when parties either through folly or disaffection, attempt to oppose the Executive authorities in the lawful discharge of their duties.
10. I was sorry to observe that the Revd Mr Staines, chaplain to the Honble Hudson's Bay Company, openly took part with Mr Swanston,
Mr Staines has been an opponent of the Company before.
and appeared to act as his legal adviser, but the young man, was so clearly in fault that very little could be said in his defence.
At the close of the proceedings Mr Swanston entered a viva vocé protest against them, in presence of the Court, which I should probably have considered, and treated as a fresh contempt, but not being quite certain about the propriety of that course, I took no further proceedings, and adjourned the Court.
11. This I am happy to say is the only instance, wherein the authority of Her Majesty's Government, has been openly resisted, since the Colony wasfoundedManuscript image founded. The offender is not a Colonist, and has no real property in the Colony, being merely agent for a mercantile House in San Francisco, from whence his imports are exclusively received, and to which his returns are remitted. He therefore enjoys the protection of the Laws, without contributing in any manner to the expenses of Government or to the improvement of the Colony, and like many others of the same class, is a good citizen of the United States, in California, though he assumes the garb of a British Subject in Vancouver's Island.
12. Having no military force at my disposal and there being only a single Constable at this place, such persons suppose they may insult the Government with impunity.
I have the honor to be
My Lord Duke
Your Grace's most obedient humble Servant
James Douglas
Governor Vancouver's Island

His Grace The Right Honble The Duke of Newcastle
Her Majesty's principal Secretary of State
For the Colonial Department
Minutes by CO staff
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Mr Merivale
Acke.
Governor Douglas does not exhibit any want of determination, when he has made up his mind to a course of proceeding.
ABd 9 June
Mr Smith
Does Gov. Douglas's Commission give him any power to create a Vice Admiralty Court?
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The Governor is empowered by his Commission to appoint Judges and Commissioners of Oyer and Terminer.
No Governor is authorised to appoint a Vice Admiralty Court.
At the same time the Governor of Vancouver's island is a Vice Admiral; that is, although a Civilian, he holds a Commission as Vice Admiral fromManuscript image the High Court of Admiralty, and that Commission invests him with very extensive duties and powers.
I annex an old Commission of a Vice Admiral which will better explain those duties and powers.
I remember a case which is exactly similar to the present one.Manuscript image Some year or two after St Helena was made over to the Crown, that is about 1837, Major General Middlemore the Governor being at a loss how to dispose of some shipping cases, was advised that he might establish a Vice Admiralty Court. Having acted upon that advice, a question arose as to theManuscript image legality of his proceeding. Jenner, Queen's Advocate, would not say that the proceeding was illegal; but measures were immediately taken for establishing a Court of Vice Admiralty.
Such a Court can only be created by virtue of an Order in Council, for which the Admiralty apply to the Council officeManuscript image upon the recommendation of the Secretary of State. But as the Admiralty would not, perhaps, provide a salary for the Judge, the Secretary of State would, before he made such a recommendation, have to consider whether there is any properly qualified Colonial functionary, to whom the duties of a Judge might be entrusted.
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This minute would not be complete, if I omitted to state that I perfectly remember a letter which the late Lord Stowell wrote to Lord Liverpool more than forty years ago, warning him that certain Vice Admiralty Courts which a Governor had estd in the West Indies were illegal, and that if theManuscript image proceedings of those courts should be brought under his (Lord Stowell's notice, nothing could save the Govr from the pains and penalties which he had incurred.
PS 12 June
Mr Peel
I am inclined to think that if the Govr of Vanc. I. possesses an admiralty commission similar to that annexed by Mr Smith, the words opposite to which I have marked 3 crosses in pencil will warrant the proceeding he has taken in this case.
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He might however, if he had been acquainted with the law, have proceeded in a much simpler way, as the stat. 12 & 13 Vict. c. 96 would have enabled him to treat this as matter for the cognizance of the ordinary court of the colony.
I can see no reason why Vice Admy courts should not be established in every colony, Vancouver's Island inclusive: and believe that it would be better, on the whole, that the Governor himself should be the Judge of such Court, than that there should be none.
There is now before us a Vanc. Id ordinance "for establishing a civil court." In the covering dispatch the Govr earnestly requests that a civil judge should be sent out to him—a "professional lawyer." This seems to meManuscript image hopeless. In the first place there is no regular legislature in Vanc. Id at all: everything is as yet provisional: in the next place it would be impossible to provide an adequate salary.
I therefore believe it would be best to apply to the Admiralty for the establisht of a Court with the Governor as Judge. This however must wait for the decision of the other pending legal questions regarding the Island: and in the mean time, Govr Douglas should be informed to the best of our ability of his present legal powers in this respect.
HM June 12
FP 13
GG 15
Other documents included in the file
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Draft reply, Grey to Douglas, No. 1, 19 June 1854, applauding Douglas’s investigation into the wreck of the William.
Minutes by CO staff
Send a copy of the Act.
Other documents included in the file
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Draft, Colonial Office to A. Colvile, Hudson's Bay Company, 28 July 1854, asking for an opinion as to the suitability of David Cameron for the office of judge of the supreme court, and enclosing extracts of a memorial protesting his appointment.
Minutes by CO staff
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This draft is resubmitted with the addition desired by Sir G. Grey. Sir George is, I suppose, aware that this draft was intended only for the Governor of the Company in London & that we proposed writing to the Governor in the colony on the points on which we are now asking for infn from Mr Colville [Colvile].
I think more specific information shd be asked for with reference to some of the statements in the memorial.
Douglas, James to Pelham-Clinton, Henry Pelham Fiennes 13 March 1854, CO 305:5, no. 4928, 38. 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/V54008.html.

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