No. 74
14th September 1864
I have the honor to transmit the copy of a letter addressed to the Acting Colonial Secretary by Mr Thomas L. Wood, Acting Attorney General, of this Colony which explains itself.
It does not appear necessary that I should at this time discuss the questions raised by Mr Wood as to the duties properly belongingtoManuscript image to the Office of Attorney General or the mode and scale of remuneration for those services. I will only add that I have on a former occasion stated my opinion that it is in every point of view advisable that appointments to the offices of Chief Justice and Attorney General should be made from England, and daily experience confirms me in that opinion—any other course will but increase the complications which at present exist.
In considering this questionitManuscript image it may assist you to know that the late Attorney General, Mr Cary, informed me that he was in receipt of an income of £1,600 a year from his professional practice in this Colony, a statement of which I do not doubt the accuracy.
I have the honor to be,
Your very obedient Servant
A.E. Kennedy
Minutes by CO staff
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Mr Elliot
I think that this despatch had better be added to the communications lately recd from V.C. Island respecting the duties & emoluments of the Office of Attorney Genl of the Colony—on which subject we are instituting enquiries in the Office.
ABd 29 Oct.
Mr Blackwood
Sir F. Rogers has already seen the original of Mr Woods letter. Keep for his guidance, with the rest of the papers on the same subject.
TFE 29/10
6013, 9628, 9779, 9942 Victa V.C.I.
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The facts of the case are as follows—
Mr Cary was Atty Genl for B. Columbia with a salary of 400£ and private practice—which included payment for all Suits & prosecutions wh he conducted for Govt. He accepted also the Atty Generalship for V.C.I. on similar terms as to practice in the first place witht salary, but subsequently with a salary of 300£.
In this state of things a Solicitors bill was taxed and the fees paid to Mr Cary, in a Govt case, were reduced by the Taxing Master.
On this the Govr refused to allow Mr C. to retain more than the reduced amount of fees, and started the doubt whether a salaried officer ought to receive fees at all for doing Govt work.
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Mr Cary, I collect, paid into the Treasury the amount in dispute—& subsequently, on grounds unconnected with the dispute, but wh do not appear very creditable to him resigned the Atty Genship.
As to the particular sum in question Mr Cary says that he is entitled to be paid for work done for Govt—and that if paid at all, he shd be paid at the same rate as any other Lawyer. I think he is right. The amount of salary (300£) is plainly no remuneration for doing all that Govr Ky call on him to do, & it is plain from Mr Woods letter (9942 V.C.I.) uncontradicted by the Governor, that it was not supposed to be so. AndManuscript image in the absence of any agreement to the contrary I think he is entitled to the usual fees. If therefore it is true in point of fact that his charges are the usual charges in such cases, wh there cannot be any difficulty in ascertaining, he shd receive them. If in the contrary the assessment of the taxing master is to be considered as a decision on this point (i.e. if it is a taxation, not as between Suitors, but as between attorney & client) then the Govt shd keep the money which Mr Cary has refunded.
I should so write to the Governor.
Prospectively the question arises what agreement shall be made with theManuscript image new Atty Genl & who shall be appointed.
Mr Kennedy says appoint from home & I dare say he is right. But it is impossible to appoint till the Govr & Legislre settle what salary the A.G. is to receive, & determine whether that salary shall be large enough to cover all that may be required of him for Govt. I think the best arrangement wd be that he should have such a Salary as will pay him for all Govt work—with liberty to engage in private practice. This is a temptation to scamp or shirk work, as the fee system is a temptation to make work: and I am inclined to think with the Govr the latter evil the greatest. Mr C's decision shd be communicated to the Gov.. Vide 9779, 9942, Vica.
EC 5 Dec
Vancr Island. Attorney General's fees & Salary
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Sir F. Rogers
Ought not some answer to be returned to Mr Wood's application with Govr 9942—See your note at the conclusion of annexed despatch No. 66—17 Decr.
EBP 23/12/64
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Draft despatch with refce to despatch respg Mr Woods that Mr Cardwell is unable to come to any definite conclusion respg the apptmt of a Atty G. until the Assy has voted a salary for that office—but that as at present advised it is his intention to make the appointment from this country.
Documents enclosed with the main document (not transcribed)
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Thomas L. Wood, Acting Attorney General, to Acting Colonial Secretary, 12 September 1864, advising that he recently sent a letter to the Secretary of State without passing it first through the governor, and including a copy of the prior correspondence within his letter.
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Wood to Cardwell, 31 August 1864, formally applying for permanent status as Attorney General and commenting at length upon current uncertainties regarding the salary for the position (this letter included in the body of the letter as noted above).
Other documents included in the file
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Draft reply, Cardwell to Kennedy, No. 2, 7 January 1865, informing Kennedy that Cardwell cannot come to a definite conclusion respecting the appointment of an Attorney General.