No. 64
31st August 1864
Referring to your Despatch No 19, 11th July 1864 relative to the payment of certain fees to the Attorney General of this Colony I have the honor to enclose the copy of a letter addressed by the Acting Colonial Secretary to the Attorney General and his reply thereto.
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2. I applied to the Chief Justice personally to know whether he could afford me information on the subject. His Honor informed me that he always considered the charges under consideration irregular and unauthorized, and that he had on one occasion stated his opinion to this effect in open Court.
3. In the interval since my Despatch No 25 dated 13th May 1864 was written, this question has acquired additional importance. The facts are as follow—
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4. On or about the 23rd July 1864 Bills of Costs were sent in by Mr Drake a Solicitor in the cases of The Attorney General v The Hudson's Bay Company and Trimble v Pemberton (Surveyor General) amounting to a considerable sum.
5. Having no guide or standard whereby to judge the accuracy or propriety of this charge, I consulted the Attorney General and finally sent the Bills to the proper Officer of the Court to be taxed.
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6. These Bills included fees to the Attorney General amounting to $170 dollars which were reduced by the taxing officer to eleven pounds three shillings sterling.
7. Mr Drake applied to me in writing, and subsequently called upon me to remonstrate against this large deduction from sums he was actually out of pocket, and produced the Attorney General's receipt for the amount of fees charged in his Bills $170, andwhichManuscript image which amount he informed me Mr Cary, the Attorney General, had himself fixed and demanded contrary to Mr Drake's expressed opinion that the fees were excessive.
8. While this matter was under consideration, and before I made any reference to the Attorney General, he addressed the Colonial Secretary in the letter dated August 6th 1864, which was followed by the letters named in the margin.
Acting Colonial Secretary/6th August 1864.
Attorney General/8th August 1864.
Acting Colonial Secretary/11th August 1864.
9. Since this branch of the question was concluded the Attorney GeneralhasManuscript image has sent in a further Bill dated 5th August 1864 ($355) a copy of which I enclose. This account I have held over pending your decision.
10. I will only remark in conclusion that this system holds out a direct inducement to the Attorney General and the solicitors he may please to employ, to involve the Government in litigation with a view to their own gain and frequently to the detriment of the public service.
11. I find on reference to theTreasurer'sManuscript image Treasurer's accounts that from the 1st January 1864 to the 9th August 1864 fees to Crown Prosecutor and Solicitor have been paid to the amount of $1621 dollars and there is an additional sum of about $500 dollars now unpaid and pending your decison, all being in addition to the Attorney General's fixed salary.
I have the honor to be,
Your very obedient Servant,
A.E. Kennedy
Minutes by CO staff
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ABd 20 Oct
TFE 20/10
Mr Blackwood
This is a question which requires departmental enquiry as to matter of practice.
Can you tell me or ascertain whether as a general rule the Law Officers of the Crown in the Colonies are expected to perform gratuitious all the Law work of Govt. Mr Cary's view is that he is to give advice gratuitously & be paid like any other counsel for work done. In a Colony where there is much to do it wd be unreasonable to expect more for 300£ a year.
Is that his salary?
If in any other Colony it is known that Law Offrs are (as I conceive to be the case) expected to do the Law work gratuitously—are not there cases in which the L.O. is prohibited from taking private practice and receives a high salary instead. Is there anything in the terms of Mr Cary's appointment or in the correspondence with him wh throws light on the subject?
FR 21/10
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Sir F. Rogers
With respect to the Office of Attorney General in B. Columbia & Vancouver Island see Mr Ebden's Minute annexed.
The North American Provinces under the present system of responsible Govt are scarcely I think cases in point. The Office of Attorney General is a political one, and the tenure very uncertain & precarious. The Attorney General is always a leading Member, & not unfrequently the Prime Minister of the Administration of the day.
The Salaries are borne on the Civil Lists and areManuscript image as follows
Canada £1050
N. Scotia 400
N. Brunsk 600
Newfdland 500 No fees or other emoluments are returned, and it is therefore to be presumed that they receive nothing beyond the Salary.
We have no information as to the conditions on which the office is held, or whether they retain the right to practice as Barristers during their tenure of the office of Attorney General.
See the Minutes on 9779 & 9942.
VJ 12 Novr
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Mr Cox
See Sir F. Rogers' enquiry on this Desp: 9628 Van Couver Island.
The Australian Colonies, with the exception of Wn Australia, are very much in the same position with the North American Colonies—enjoying Representative Institutions with Responsible Government. The information contained in the Statistical returns sent home from these Colonies in place of the Blue Book does not enable me to state with any certainty that the Attorney General receives no fees for work performed for the Government though I have no doubt that he does not.
In Victoria the salary is £1500 per annum
In N.S. Wales . . . . . . £1500
In S. Australia . . . . . £1000
In Tasmania . . . . . . . £ 900
In Queensland . . . . . . £ 850
Manuscript image In New Zealand . . . . . £ 600 The Salary of the Attorney General in Wn Australia is £400 per annum. He receives no fees.
WD 14th Novr
I have this day forwarded a despatch from S. Leone, respecting claim of the Queen Advocate for Fees under similar circumstances, with previous papers which show that his claim ought not to be entertained.
Memo, Sir F. Rogers
You will find this S. Leone case waiting for you, for there seems room for some doubt, as to cases tried in Court.
TFE 19/11
In Ceylon there is no Attorney Genl but there is a Queens Advocate whose duties are analagous to those of the Attorney Genl in England. His Salary is £1500 & he is allowed private practise. His duty is to conduct & assist in all Govt legal matters.
In Hong Kong the Attorney General receivesManuscript image a £1000 a year, is allowed Private practise, & receives a special allowance of £350 per annum for services rendered to the Superintendancy of Trade & Consular Establishments in China. For this remuneration he is expected to do whatever legal business may be on hand so far as regards the Consulates. The Attorney Genl of Hong Kong is not however, in the absence of any special understanding either express or implied, bound to perform gratis the Law Work which may be placed in his hands by a Dt of the Imperial Govt.
WR 15 Novr 69
West Indian Division
The Attorney Generals in the West IndianManuscript image Colonies are returned in the Blue Books as receiving no fees. They are allowed private practice.
The Salaries of the Attorney Generals of the principal W.I. Colonies are as follows:
Jamaica £ 740
B. Guiana £1100
Trinidad £ 800
Barbados £ 500
Antigua £ 400
Bahamas £ 400
HCN 16 Novr
Mauritius. The Pro: General receives Salary of £1500. Also £400 p. an. as standing counsel for the Govt Railway Dt & receives fees as a Barrister, when employed as Counsel for the War & Admiralty Depts. The Sub: Pro: General has £800 & is allowed Private practice as a Barrister.
SJB 17 Novr
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Memo on office of Attorney General in British Columbia and in Vancouver Island:
B Columbia—The Emoluments were £400 salary with private practice and are £500 salary with private practice. There has also been an allowance of £200 for a clerk &c. Fees were never proposed as part of the Emoluments nor does the Att Gen. appear to have ever received any. When the office was created in 1859 it was intimated that the Salary should be increased whenever private practice was found incompatible with public duty.
Vancouver IMr Cary was the first Att. Gen. In 1861 he was strongly recommended by the Governor for the office, the duties of which [he] had been performing gratuitously whilst Att: Gen: ofManuscript image B. Columbia. There was no correspondence about the emoluments or conditions of the office. In the proposed civil list £300 salary with private practice are assigned to the Attorney General. The following Extracts from the Returns of Rev. & Exp. exhibit Mr Careys [Cary's] receipts from 1 January 1862 to 30 June 1863
Salaries‹‹ Contingencies‹‹Total
Fixed‹ Prov & Tempy
Year 1862 £300 £200‹‹ £27.5.6‹‹‹£527.5.6
1st Quarter 1863 $242.50 $166.66‹‹ $409.16
2nd Quarter do $242.50 $249.99‹‹ $60‹‹‹‹ $552.49
In the Blue Book for 1863 the Emoluments are put down as £300 Salary, £98.7 fees received in 1863, private practice: whilst in the Expenditure for 1863 £506.97.9 fixed, 22.17.9 contingent, 529.15.8 total is put down on account of the attorney generals dt a total almost the same with that of 1862. InManuscript image the appropriation act for 1863 $1000 about $200, or more, is provided for the Attorney Generals Clerk.
From which I should infer that Fees are not included under the head
In other words the personal remuneration of the Att. Gen. appears in practice to have been £300 Salary, private practice, and Fees.
"Salary provisional & temporary" and contingencies which probably relate to office expenses such as clerk &c.
RE Novr 1864
Documents enclosed with the main document (not transcribed)
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"Schedule of Enclosures in Despatch No 64, 31st August 1864," eight entries.
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Henry Wakeford, Acting Colonial Secretary, to G.H. Cary, Attorney General, 9 August 1864, returning an account of charges sent to the government for $355 and asking for clarification of the amount and the authority under which it was submitted.
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Cary to Wakeford, 9 August 1864, providing a detailed explanation of the reasons why his charges should stand.
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Bill of Costs for the Supreme Court of Civil Justice in the case of the Attorney General versus the Hudson's Bay Company, signed by Richard Woods, Acting Registrar, 23 July 1864.
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Bill of Costs for the Supreme Court of Civil Justice in the case of Pemberton versus Trimble, signed by Richard Woods, Acting Registrar, 23 July 1864.
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Cary to Wakeford, 6 August 1864, discussing the question of his fees in relation to the Trimble case, and advising that he would no longer be able to act "for the Crown, in cases where Counsel are required."
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Wakeford to Cary, 6 August 1864, advising that the Governor had taken his letter of the same date to be notice of his resignation of the office of Attorney General.
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Cary to Wakeford, 8 August 1864, explaining his earlier statements and advising that he did not intend to resign his position as Attorney General.
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Wakeford to Cary, 11 August 1864, accepting his offer to repay the sums in dispute.
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Authorization of the Governor to pay Cary $355.00 for services rendered, issued by the Colonial Secretary, 5 August 1864.
Other documents included in the file
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Draft reply, Cardwell to Kennedy, No. 66, 17 December 1864.
Minutes by CO staff
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Sir F. Rogers
I do not know whether it is intended to say anything at present to the Govr on the subject of the proposed alteration in the salary &c of the Attorney Genl.
EBP 12/12/64
Mr Fortescue
The first question is whether Mr C will appoint somebody at once, at the existing salary but subject to the obligation of receiving an adequate fixed salary in lieu of fees, when the Col. Legr shall deem fit: or whether you shall wish to say that you cannot appoint officers till the Legre will settle what they are to receive.
The next question is whether you will appoint Mr Woods or somebody from home.
I shd be disposed to appoint at once if (wh is impossible) a pretty good man wd accept the office on these terms—else I wd write to the Colony that you wait to see what they will do.
I wd not appoint Mr W.
FR 12/12