No. 38, Separate
15th June 1865
1. I have the honor to submit for your consideration the documents named in the accompanying Schedule having reference to the practice and accounts of the Probate Court of this Colony.
2. I send these papers entire to enable you to judge moreaccuratelyManuscript image accurately in a matter where personal as well as official characters, are at stake; and I would especially direct your attention to the dates of the various letters and documents.
Gov. K shd have pointed out specially what was amiss in the dates.
3. You will thus observe that my attention was directed to the administration of intestate estates shortly after I assumed the Government in March 1864. The subsequent correspondence will show that I have vainly endeavoured to bring the inquiry to a conclusionatManuscript image at an earlier period, and that even now, I am obliged to transmit the papers without the comments of the Chief Justice on the final Report of the Board of Inquiry which was submitted to him on the 22nd April 1865, and judging from the delay in replying to former letters may be indefinitely postponed.
4. Mr Williams had vacated the office of Registrar before I assumed the Government of the Colony, and was succeeded byMrManuscript image Mr Richard Woods in the Acting appointment.
5. I have been frequently pressed to make the appointment permanent, but declined to do so pending the conclusion of the inquiry and the expected appointment of a Chief Justice.
6. I enclose a copy of the Rules of Practice of the Supreme Court of Vancouver Island from which you will observe that (pages 17, 18, 19) the Registrar was acting under Rules promulgatedbyManuscript image by Mr Cameron himself, and which I apprehend it was his duty to enforce.
I shd think so. Vide Order in C.
7. The position taken by His Honor at the commencement of the accompanying correspondence in withholding, or directing the Acting Registrar to withhold papers from the Board of Inquiry, I fear invests him with much of the responsibility of the grave irregularities which the final Report of the Board discloses.
8. I am at a loss to understandhowManuscript image how the systematic disregard and violation of the plain and proper Rules laid down, from No 131 to 139 at page 17 of the Rules of Practice of the Supreme Court, could have been overlooked, thus facilitating fraud and embezzlement to an unknown extent, affecting individuals and Crown interests alike.
9. Macdonald's Bank in which moneys appear to have been lodged by the Registrar not only without authority, but in direct violation of the Rules, (136 issued by the Chief Justice himself), was oneofManuscript image of those establishments which are too often found in new countries and closed after a short career of swindling without any assets whatever while there were two respectable joint stock Banks in Victoria.
Did that lead to Wms' absconding?
10. You will observe from the Report of the Board that Mr Williams late Registrar left the Colony without closing or handing over his accounts to anybody, that no personal bond is forthcoming, and that his successor succeeded to the office of Acting Registrar without entering into any bondsasManuscript image as such.
This omission is contemplated by the Rules. But then he shd have given security in each case.
11. You will further observe that the Legislative Assembly called for Returns on this subject so far back as 25th September 1864 and that though Mr Cameron's attention has been called to the subject the Returns have never been supplied, and that the Legislative Assembly has not repeated the demand.
12. I deemed it my duty to submit the Report of the Board of Inquiry to the Acting Attorney General (whose Report I enclose)
Last M.S. enclosure save two.
that you might be in possession of hisopinionManuscript image opinion while considering the case.
13. I will only add in conclusion that this inquiry has caused me great pain in prosecuting it, and that I think the Officers composing the Board have displayed great patience and ability in conducting it.
14. The Report of the Sheriff on the status and solvency of Mr Williams' sureties accompanies the papers I now transmit.
I have the honor to be
Your most obedient Servant
A.E. Kennedy
Minutes by CO staff
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Sir F. Rogers
A further instance of irregularities among the Officials of V.C. Island. The Chief Justice, who is morally if not legally, implicated has got his retirement in good time for himself. The Attorney Genl's report is the last M.S. but two. I am unable to see how any body can be reached to make an example of.
To Law Officers asking them what can be done.
ABd 31 July
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The material points in this matter appear to me as follows.
By the Order in Council of 4 April 1856 the Supreme Court—i.e. the Ch Justice was to have "exclusive jurisdiction in all questions relating to testacy & intestacy" with power "to take over…for the proper custody of the estate & effects of…deceased persons & for delivery of the same to the person entitled thereto."
C. Justice Cameron accordingly made Rules of Court by wh (Rule 131-139 p. 17) the Registrar of the Court was charged with the adminn of intestate Estates & his duties laid down.
About [blank] Mr Williams was appointed Registrar. In [blank] he absconded.
In [blank] Mr Kennedy was appointed Governor.Manuscript image In June 1864 the attention of the Govr was called to the admn of intestate Estates. On the 22nd Sept he appointed a committee of enquiry into it.
On Sept 26 1864 The Assembly asked for various returns respectg the admn of Testate & Intestate Estates from May 1858 to Sept 1864.
The committee appointed by the Govr took evidence and reported that of 24 cases of intestacy wh had been dealt with by the Absconding Registrar only 2 or at most 4 had been wound up—that no rules had been observed—that the property had been allowed to perish from neglect—and large sums of money received & not accounted for, that no residues had been ever paid to the Treasury as required by the law, that unauthorized charges had been made by the Registrar & that no sort of supervision had been exercised by the Court.
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The question then arises whether the C.J. is responsible for the neglect wh he permitted in a department wh is—and wh he throughout claims as being—within his jurisdiction.
The case agst the C.J. is made to appear worse by the fact that he shews no disposition to aid enquiry.
1. The returns called for by the Assy on Sept 26 are not yet made. On the 28 Dec. the C.J. was reminded of them—& replied that he wd cause them to be put in hand.
2. When the Board of Enquiry commenced their work their first step was to ask the Actg Registrar for all papers in his possession. He was instructed by the C.J. to give nothing but legal instruments—to the exclusion of vouchers—such scraps of account as existed & other papers wh shewed the real state of affairs—and by dint of returning dilatory answers orManuscript image no answers at all to letters addressed to him the production of these papers was delayed from the 19h of Octr to the 6h of January when, it wd seem, the Registrar produced them on a direct order from the Governor.
3. The report of the Committee was sent to the C.J. for his remarks on the 22nd of April—his attention was recalled to it on the 11h of May and on the 16h of May he ansd promising further delay. On the 15th of June—the date of the Govrs dph his answer had not come in.
Mr Cameron was appointed provisionally to be C.J. being a layman at a time when it was very difficultManuscript image to provide for it. He has retained the office so long as to have acquired a kind of right not to be merely displaced. But the time has come for replacing him by a professional Judge—and the Colony has passed an Act giving him a pension so soon as a professional Judge shall be appointed.
The real question is whether the above facts wd warrant Mr Cameron's dismissal by the Govr & Executive Council under Burke's Act (subject to an appeal to the Privy Council) or his dismissal by the Queen as an officer holding during pleasure wh wd probably not be subject to such appealManuscript image or whether it wd warrant the repeal (with or without such dismissal) of the Act giving Mr Cameron his pension wh has received the Royal Assent.
The Colonial Atty General seems to think that nothing can be done. If so a dph shd I suppose be written indicating Mr C's opinion as to the negligence of the C.J. and his improper conduct in failing to aid enquiry & enjoining amendment for the future.
If anything can be done the Govr shd be directed to communicate to the C.J. not only the Board's report, but the evidence on wh it is founded, together with some definite charge founded on that report & evidence, to inform him (in terms of the Royal Instructions) that he will be called upon to defendManuscript image himself before the Executive Council.
But the Govr should be instructed whether he is to proceed to "Amoor" him under Burkes Act or to suspend him under his Commission with a view to the confirmation of that suspension by the Queen.
Should the advice of the Law Offrs be taken?
Since this scandal has been exhibited another legal officer the "official assignee"—(who is one of the witnesses before the Court of Enquiry) has absconded.
The documents wh will place you in possession of the case are 1. The report of the Bd of Enquiry, p. 6. and particularly pages 29-33. 2. Report of the Atty Gen. p. 188.
FR 8/8
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I should be very unwilling that this C.J. obtained his Pension; & would take any proper step to prevent it. 1. Is it actually payable to him, as of right, under the Colonial Act?
Yes—when his Resignation is accepted by the Governor.
Or is some step of HE The Governor necessary?
(Open acceptance as above.)
2. If actually payable, can we by any act, short of repealing the act, deprive him of it?
Disallowing the Act wd do the business—but then we shd have two C.J.'s on our hands for he would not resign.
3. I should like a Return of all the officers who have been defaulters in V. Couver Island, in order that I may see both the general state of the Colony in this respect, and also the bearing of the defalcations on this question (if any).
I apprehend that on the foregoing questions 1 and 2, it is probable that some points may arise which cannot be decided without the assistce of the Law Officers: in which case their opinion should be taken.
In reading the Atty General's remarks, it must be borne in mind that that officer (of whom I have received very favourable reports from members of the Bar in England) was placed in a very painful position, and that propriety suggested to him that he should omit nothing which could be stated in extenuation of the conduct of the C.J.
EC 9 Augt
Vide memo annexed.
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Defalcations in Van Couver Is.
1. In 1859, Mr Anderson was dismissed from the Office of Collector of Customs, on account of embezzlement which occurred in his Departt. The Govr stated at the time that it did not appear that Mr Anderson was in any way connected with the supposed frauds, but that his negligence in the conduct & supervision of his Departt was so great & so unpardonable that it wod be impossible to recommend that he shod be re-instated.
In 1861 there were 3 defaulters.
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2. Mr Jordan the Treasurer was charged with embezzlement to the extent of £1,121, & was committed for trial. The amount cod not be recovered from his sureties, & was lost to the public. He escaped from prison before the trial.
3. Mr d'Ewes, Acting Postmaster of Victoria, absconded, leaving considerable debts behind him, & being a defaulter to the Colonial Govnt to the amount of between £300 & £400. This does not seem to have been recovered.
4. Mr Jeremiah Nagle, Acting Harbour Master at Victoria wasManuscript image dismissed in consequence of irregularities in his accounts, & because it was discovered that he had been in the habit of charging & appropriating to his own use fees for services rendered in his official capacity. His defalcations to the amount of $308 were not recovered.
5. In 1864 Mr Cary resigned his appointt of Attorney General. It was subsequently explained by the Govr that this resignation was tendered after some correspondence on the subject of some pecuniary transactions with Mr Culverwell broker & money lender, & uponManuscript image his being informed that a searching investigation wod take place.
FWF 11/8
Now Williams the Admr of Intestate Estates and Culverwell the Official Assignee have absconded.
These two officers were appointed by the Ch Justice—the others by the Governor or Secretary of State.
I annex the Act No 2 of 1864 in 6038 V.C.I.
This Act has never been confirmed by the Q. in Council. But the arrangement wh it embodies has been approved by the dph No 4 12 May 1864 and I do not see how that approval cd be withdrawn, and the act nowManuscript image disallowed, except on such evidence of such misconduct as could warrant dismissal.
The natural course wd be to direct the Govr to bring charges before the Exe Council & call on Mr Cameron for his defence; and to refuse to accept his resignation (such acceptance being a pre-requisite of his receiving a pension) till the charges are disposed of.
But there is this difficulty that the new Ch. Justice can hardly receive any salary till Mr C is got rid of and I learn that the new C.J. leaves England on the 17h of this month; and it is therefore urgent that Mr C. shd clear out.
FR 11/8
We have gone so far that I do not see what we can do now, unless there shd be a suffly clear & strong case to justify the Legislature in repealing the Pension: or the S.S. in dismissing the C.J.
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The latter course is open to the diffty pointed out by Sir F.R.: which is a very serious one. The arrival of the new C.J. is to be the first beginning of order & security in the judicial proceedings of the Colony: & could not be delayed now with any propriety.
Moreover it is highly probable, for the reasons pointed out by the Acting A.G. that an Enquiry would fail to establish the degree of guilt, which would justify dismissal.
I think the proper course will be [to] recognize the services of those, who have taken part in the inquiry, to notice the conduct of the C.J., & to say that the new C.J. leaves immediately for Vancouver.
Governor Kennedy may, at the same time, be told confidentially that in the event of his being enabled to show sufficient reason for it by actual proof of misconduct, it will be a proper question for the Legislature whether the Pension should not be taken away. This, however, could not be done without complete proof of actual misconduct.
EC 14 Augt
Documents enclosed with the main document (not transcribed)
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"Schedule of Enclosures in Despatch No 38 of 15th June 1865," thirty-one entries giving date of enclosure and page reference.
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Complete correspondence as noted above relating to the practice and accounts of the Probate Court of Vancouver Island (101 pages).
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Printed copy of "Order in Council constituting the Supreme Court of Civil Justice of Vancouver Island and Rules of Practice and Forms to be used therein," dated 1865 (51 pages).
Other documents included in the file
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Draft reply, Cardwell to Kennedy, No. 40, 18 August 1865.
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Draft reply, Cardwell to Kennedy, Confidential, 19 August 1865.