No. 66
31st August 1864
Sir
I have the honor to submit the accompanying correspondence for your decision, having failed to satisfy either of the officers concerned. Mr Pemberton, the Surveyor General, complains of a breach of faith on the part of the Government, and Mr Pearse his Assistant thinks injustice has been done to him.
That there has been someirregularityManuscript image irregularity and some misunderstanding is very apparent, and these ought to have been cleared up before my Predecessor and the Colonial Secretary left the Colony.
I have the honor to be
Sir
Your very obedient Servant
A.E. Kennedy
Governor
Minutes by CO staff
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Mr Elliot
In 63 The Surveyor Genl (Mr Pemberton) proposed in the "interests of the Colony" to come to England to superintend the construction of a dredging machine for Victoria Harbor & offered to pay his journey, & undertook to return to the Colony in 6 months time. The Govr granted the necessary leave of absence. The S. State sanctioned the same stipulating that Mr P. "not be allowed to draw full salary for a greater period than 6 months after his departure from the Colony on the 3d April."
In July (63) Mr Pemberton represented that the business on which he was engaged demanded longer time & he asked for more leave. 3 additional months were given him. I observe that in his application he states that his salary "runs on as usual," he paying his travelling & personal expenses. Whether he referred to full or 1/2 salary is not stated, nor, in our ansr, did we touch on that point. He was subsequently granted 2 months extension, & got back to V.C.I. by the 25 March/64. It now seems that Mr Pemberton considers himself entitled to full salary for the whole period of his absence & he has applied to the Govr for it. In my opinion the Govr has refused rightly: first because of the S. States desph which restricted Mr P. to full salary for 6 months; secondly because of the rule which, nothing being said to the contrary, allows an absent officer 1/2 pay when away from his duties.
Next Mr Pearse, who acted for Mr Pemberton, asks for extra pay during the first 6 months of that gentleman's absence. The ansr to him should, I think, be that as the whole of the salary of the Office of Surveyor G. was for 6 monthsManuscript image appropriated to Mr Pemberton there are no means of remunerating Mr Pearse, & that as according to the statement of the Col: Treasurer Mr Pearse has recd 1/2 salary for such time as there was anything to pay him with he can have no more?
ABd 22 Octr
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Mr Cardwell
After having enjoyed himself in England on leave of absence for 15 months, from Janry 1861 to March 1862, Mr Pemberton to our surprise found means to come home again in April 1863. He persuaded Governor Douglas that he would be very useful in superintending the purchase of some machinery, but undertook that his absence from the Colony should not exceed six months. As he proposed this scheme with an offer to pay all his own personal and travelling expenses, he was sent home with full pay. I do not myself believe that he was of any particular use at all, and I do not doubt that the Crown Agents (who after all did the principal work) would have done the whole business perfectly well. In fact they have officially reported that Mr Pemberton's mission was unnecessary. He continuedManuscript image however to get an extension, 1st of 3 months and next of 2 months, and afterwards had the countenance to ask for a third extension of a month or 6 weeks, but this last he was forced to abandon.
Within the space of 3 years he was absent from the Colony 2 years & more than 2 months.
It now appears that he claims full salary, not merely for the first period of 6 months, to which he undertook to confine his absence, but for the long additional period which he managed to obtain leave to spend in England.
Now I am bound to say that I find a want of completeness and caution in one part of our official correspondence. We immediately answered Governor Douglas that Mr Pemberton's full pay must be limited to the six months for which he had (withsuchManuscript image such apparent liberty) offered to make himself useful in England, but we did not say the same to Mr Pemberton himself who in the meanwhile had come home. On the other hand however this was a mere neglect of a precaution to prevent any erroneous claim afterwards. Mr Pemberton had distinctly received his leave for six months only, at the time when he was promised full pay. When he afterwards asked for and obtained extensions of leave, nothing was said on one side or the other about the rate of pay. But the well known general rule of the Colonial Service is that an Officer on leave draws only half pay, and in the rare exceptional cases where some of them get home upon full pay, it is the common practice to reduce them to half pay if they outstay the periodManuscript image for which full pay has been conceded.
Seeing therefore that Mr Pemberton has enjoyed such exorbitant periods of absence, I strongly recommend that Governor Kennedy's decision be confirmed and that we refuse to let him draw full pay for more than the term of six months for which he obtained leave. I the more anxiously recommend this course, because it seems to me important to the character of the public service, and to the maintenance of respect for the authority of the Secretary of State, that officers should be taught that nothing is to be gained by anything like shuffling (I really cannot find another word to describe what I mean) and by endeavouring to practiseonManuscript image on the easiness of the Secretary of State, or to entrap him into concessions which are not really intended.
On the other hand, I think that the case of Mr Pearse should be viewed with the consideration due to a man who was not enjoying himself in London, but was toiling at the duty of another in the Colony. According to the Colonial Regulations he is entitled to half the salary of his Principal, but owing to Mr Pemberton's good management in obtaining full salary for the first six months, Mr Pearse has as yet been unable to draw more than his own full salary for that period. I think we may inform the GovernorManuscript image that he will be at liberty to endeavour to obtain the grant for that period of the money necessary in order to make good to Mr Pearse the difference which he would have received if he had drawn according to general rule half of each of the two salaries instead of only the whole salary of the smaller appointment.
TFE 28 Octr
The Letter of Mr Pemberton dated 25 July 1863 distinctly asks for Leave on the terms of his "Salary running on as usual," & the reply of 1st August appears to concede all that is asked. The Despatch of 2 Augt to Governor Douglas does so too, & appears to override his former limitation to 6 months.
In Mr Blackwood's Minute on Mr P's Letter of 26 Oct he writes that the extension was on 1/2 Salary. But this seems to me to be at variance with the correspce between the C.O. & Mr P or the Governor.Manuscript image On the other hand Governor Douglas acting on the first Despatch has allotted the half Salary after the expiration of Six Months to Mr Pearse.
The fact seems to be that the Crown Agents would have done the work just as well without Mr Pemberton's assistance as with it; & Mr Pearse therefore has a much stronger claim irrespectively of the written engagements than Mr Pemberton, & he has as good claim upon the documents.
It is impossible therefore to reclaim from Mr Pearse money which he has properly received in order to pay it to Mr Pemberton.
The inconvenience which has thus arisen is a strong illustration of the importance of mechanical accuracy: departure from which has placed this Department in a very disagreeable position.
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I think Governor Kennedy should be informed that it was the intention of S. State to limit the full Salary to Six months as stated in the original Despatch to Governor Douglas: & that Governor Douglas in assigning the half salary from the expiration of that time to Mr Pearse was carrying into effect the real intention of this Department: but that it does not appear in the face of the Corresponde that this intention was expressed to Mr Pemberton when his leave was reviewed in August—& that this inadvertence would prevent this Department from objecting to the double payment if from any funds legally disposable for the purpose the Governor should be able to give Mr Pemberton the benefit of this oversight.
EC 31 Oct.
Documents enclosed with the main document (not transcribed)
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B.W. Pearse to H. Wakeford, Acting Colonial Secretary, 16 July 1864, asking for additional pay to cover the first six months of Pemberton's leave, with explanation.
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Memorandum from Kennedy, 16 July 1864, instructing the Treasurer to provide information regarding salaries paid to both Pemberton and Pearse during the period in question, forwarded by Wakeford.
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Alexander Watson, Treasurer, to Kennedy, 18 July 1864, providing information as requested above.
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Authorization from the Governor to pay Pearse half salary from 4 October until the return of Pemberton, signed by W.A.G. Young, Colonial Secretary, 3 November 1863.
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Authorization from the Governor to pay Pemberton full salary from 3 April to 3 October 1863, signed by Young, 28 September 1863.
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Pemberton to Wakeford, 19 July 1864, asserting his claim to full salary for the duration of his leave in the absence of any instructions to the contrary.
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Wakeford to Pemberton, 28 July 1864, advising that the Governor upholds the decision of Douglas to pay Pemberton half salary following the expiration of his original six month leave, and to pay Pearse half salary from that date.
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Pearse to Wakeford, 3 August 1864, referring to the rule stipulating that "a subordinate officer doing duty for his superior, was intitled to half the difference of their respective salaries," and claiming additional pay for the first six months of Pemberton's leave.
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Wakeford to Pearse, 4 August 1864, advising that the Governor must stand by his previous decision but, if desired, the matter could be referred to the Secretary of State for his decision.
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Pearse to Wakeford, 20 August 1864, asking that the question be submitted to the Secretary of State.
Other documents included in the file
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Draft reply, Cardwell to Kennedy, No. 65, 5 December 1864, ending extensively altered.
Minutes by CO staff
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Mr Cardwell
This is the revised draft on Mr Pemberton, for your consideration.
TFE 14/11
Kennedy, Arthur to Cardwell, Edward 31 August 1864, CO 305:23, no. 9630, 186. 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/V64166.html.

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