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REPORT Of the Commissioner appointed to enquire into certain charges against Isaac H. Hallett, Esq.,… British Columbia. Legislative Assembly 1892

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 55 Vict. Enquiry re Stipendiary Magistrate, Vancouver. 691
REPORT
Of the Commissioner appointed to   enquire   into  certain charges  against   Isaac   H.
Hallett, Esq., a Stipendiary Magistrate for the County of Westminster.
By Command.
THEODORE DAVIE,
Attorney-General's Office, Attorney-General.
25th March, 1892.
The Law Courts,
Victoria, 14th March, 1892.
To His Honour the Lieutenant-Governor
of British Columbia, &c , die, &c.
Sir,—In compliance with the Royal Commission to me directed I have the honour to
report :—
That after several postponements, to enable all necessary witnesses to be present at the
opening of the Commission, I proceeded to the City of Vancouver, and on Tuesday, the 16th
of February, commenced the enquiry in the commodious Court House there, which had been
placed at my disposal.
The Commission was read by the secretary, Mr. Raymond Punnett.
It detailed the two specific charges which formed the subject of the enquiry into the
conduct of Mr. Isaac Hoyt Hallett, as Stipendiary Magistrate for the County of Westminster,
in the Province of British Columbia.
That he had, as Stipendiary Magistrate, received  the  following  fees not warranted by
law, and therefore illegal :
lstly. A fee of twelve dollars, paid to him by the Municipality of Richmond, in
December, 1890, for adjudicating in the case of Ah Fook, a Chinaman, charged with a felony
(larceny) ;
2ndly. Fees amounting to forty-eight dollars paid to him by the captain of the Canadian
ship Hamburg, in December, 1890, in the matter of the conviction of eight seamen of that ship
charged with desertion.
Mr. Hallett was present throughout the investigation. Mr. J. J. Blake conducted the
proceedings on the part of the Crown.
Every facility was afforded to Mr. Hallett to bring forward any evidence he might wish
to adduce; and, further to aid him during the enquiry, able counsel was assigned for his
assistance ; and the Commission itself was adjourned to enable Mr. L. G. McPhillips to appear
on his behalf.
No step was omitted which appeared calculated to render the enquiry fair and impartial,
and its conclusions satisfactory and complete.
For a correct appreciation of the special as well as general objects of the enquiry, it will
be necessary to give an outline of the duty imposed by law on Mr. Hallett, as a Stipendiary
Magistrate, with reference to each of these charges, and then to ascertain the manner in which
that has been discharged.
In the eye of the law a Stipendiary Magistrate ranks next in importance and precedence
to a County Court Judge, and has the power and authority of one or more Justices of the
Peace, his decision as S. M. being equivalent to that of two Justices of the Peace.
And, as powers and duties are reciprocal, a proportionate knowledge of and attention to
the requirements of his office are expected of him.
Mr. Hallett, being then a practising lawyer, on the 1st April, 1890, was appointed the
Police Magistrate of the City of Vancouver, at a salary of $1,500 a year, and the privilege of
practising as a conveyancer, and nothing else.
The City Council finding that, with so much shipping as must necessarily come to the
Pacific terminus of the C. P. Railway, there must occasionally arise shipping cases to be dealt
with  pn the spot, requested (without his solicitation) that Mr, Hallett should be appointed a 692 Enquiry re Stipendiary Magistrate, Vancouver. 1S92
Stipendiary Magistrate for the County of Westminster, which was accordingly done.
But no stipend was attached to the appointment beyond the $1,500 a year, which he received
as Police Magistrate for the City.
Such was his status at the time of the occurrences out of which the present enquiry arose.
It was under these circumstances that he was called on to decide the matters of Ah Fook
and the desertion of the eight sailors of the Hamburg.
The former was dealt with under the " Magistrate's Act, 1877," Cap. 78 of the "B.C.
Consolidated Statutes, 1888."
The latter, under Cap. 74, Revised Statutes of Canada, " The Seamen's Act," and the
Dominion Statute, 53 Vict., Cap. 45, which prescribed the fees " and no others," which were to
be taken by Magistrates and their clerks, in summary convictions, such as these seamen's cases.
On receiving his appointment as Stipendiary Magistrate, on the 8th May, 1890, the oath
of office, which forms part of the Provincial Act, was duly administered to and subscribed by
him, in which, among other things, he swore " that he would take nothing for his office of
Stipendiary Magistrate to be done but of the Queen, and fees accustomed and costs limited by
statute."
The 18th section presses home this obligation, for it enacts that:
"This Act shall not authorize any claim being made by the J ustices aforesaid (Stipendiary
Magistrates, Police Magistrates, and Justices of the Peace) for fees of any description connected with cases above the degree of misdemeanour."
Larceny, being a felony, is " above the degree of misdemeanour." Therefore, under the
18th section, no fee whatever can lawfully be taken in a case of larceny.
By another, the 21st section of the same Act, all fees which are received by the Stipendiary Magistrate (save those otherwise applied by statute) "shall be paid monthly into the
Public Treasury " under the penalty prescribed by the Act ($200 and costs of suit in each case.)
The same penalty ($200 and costs) is incurred if the Stipendiary Magistrate " wilfully
receives a larger amount of fees than by law he is authorized to receive."
After a statement of the law governing the two cases, a full and patient investigation
was held, the details of which are contained in the notes of the Commission, which I have the
honour to enclose herewith.
The result of the investigation on the first charge was, that it was clearly established
that, in contravention of the law which I have quoted, Mr. Hallett, in the Ah Fook larceny
case, asked of and was paid by the Municipality of Richmond (who sent the case to him) the
sum of twelve dollars ; ten dollars of which he applied to his own use and benefit, paying two
dollars to the City of Vancouver for the prisoner's board.
Had he been allowed by law to charge a fee in that case, it could only have been one
dollar for the hearing, and that would have belonged to the Treasury.
In the second case, that of the eight seamen who deserted from the Canadian ship "The
Hamburg," it was also clearly proved that he received and was paid by the captain of that
ship forty-eight dollars to his own use and benefit for two hours' work, in trying in a summary
way these eight sailors for desertion.
No one but Mr. Blake seemed to have considered the injury inflicted on these men by
the proceedings of the Magistrate.
They were severally tried, convicted, and sentenced to be imprisoned with hard labour, for
eight weeks each, and each to forfeit fifteen dollars from the wages he had  earned on the ship.
Ten dollars per man of this money was paid to the constable who arrested them (eighty
dollars in all), and forty-eight dollars to the Stipendiary Magistrate.
The only fees I can find payable by them, under cap. 45 of 53 Vict., already referred to,
were: information 50c, hearing 50c, commitment $25, one " Delivery Order" as it was
termed 50c, not two dollars apiece.
And the constable's fees, into which I did not feel called upon to enquire, were made by
the Act proportionately small.
Looking carefully at the " Seamen's Act," it is not straining the construction to conclude
that the whole of the above large sum would eventually come out of the wages of the men,
and probably consume a large portion of their pay earned during a winter voyage of exposure,
danger, and toil, such as few landsmen can conceive of, to be carried back as criminals to
their ship to learn—if ever they attain the knowledge—that a material portion of their hard-
earned wages had gone illegally into the pockets of the Magistrate who condemned them. I
am afraid it would give them but an indifferent idea of the manner in which justice is
administered to sailors in one of the chief ports of British Columbia. 55 Vict. Enquiry re Stipendiary Magistrate, Vancouver. 693
The law is strict, and righteously so, against desertion, by which not only a vast amount of
property, but even lives may be indirectly at stake ; but the law is equally explicit that the
severity of its punishments and fines, especially where poor and ignorant men are concerned,
shall not be aggravated by any excess of its provisions on the part of the committing Magistrate, and a fortiori for his own pecuniary benefit. The low rate of fees prescribed by the
Dominion Law sufficiently indicates that conclusion. This view of the case, judging from the
evidence before me, does not seem to have even occurred to Mr. Hallett.
That its gravity and importance was properly appreciated by the Government and its
chief law officer, notwithstanding the smallness of the sums involved, is abundantly manifest
from the tenor of the Commission which, passing over several other charges against the
gentleman whose official conduct is now impugned, as, possibly, only errors in judgment, to
which all persons in judicial positions are liable, concentrates its attention on two charges
which involve the consideration of one of the most serious principles known to the law. That
he who administers the law touching liberty, character, property, and perhaps life, shall have
no pecuniary or personal interest in the result. Duty and interest shall not be allowed to
conflict.
If a Magistrate, with whom all criminal matters commence, can be allowed to charge
what he likes for adjudicating upon them, and make the person accused pay it, for his own
personal use, no man in the country will be safe, and magisterial decisions would gradually
become as much a matter of bargain and sale as any other commodity. The ill example
would spread as silently, but effectively, as an epidemic, and the administration of criminal
law in the Magistrate's Court, often the turning point of a whole case, would be a mockery, a
delusion, and a snare.
In the present instance, the Magistrate's counsel, with good judgment, said all that could be
suggested in explanation of the conduct of his client, and that it was the first case of the kind
that came before him. The payment by the Municipality was as if it were to a Magistrate of
their own. That at Moodyville there were no books to refer to ; and as there was no "wilful "
breach of the law, there was no "offence." That he was a Stipendiary Magistrate without a
stipend, and considered he was entitled to "remuneration;" reasons, if such they may be
termed, which, on behalf of a lawyer traiired, who confessed with much naivete that he had
not read the Acts or looked at the schedules of fees, which he had solemnly promised to
observe, were merely pleas ad miser-icordiam and a confession of a negligence almost criminal,
calculated, in his exercise of judicial functions, to bring the administration of justice into
disrepute, set an ill example to other justices in a less prominent position than himself, and
injure a rising seaport in the eyes of all seafaring men.
Personally, it was impossible not to pay tribute to the complete frankness and simplicity,
not only of matter, but of manner,  with which he delivered his evidence.
There was not the slightest effort at equivocation or concealment, and although his
testimony must have made it transparently evident to all who heard him, that he was peculiarly ill-adapted to fill a responsible position which he never sought, and which was, apparently,
from the first distasteful to him, he is, nevertheless, not a man who could be induced knowingly to give utterance to an untruth.
One conclusion from all these considerations, in the public interest, it is my duty to lay
before your Honour—to wit, the clanger which is caused to the satisfactory administration of
justice by having in the employ of your Honour's Government the anomaly of a Stipendiary
Magistrate without a stipend, or, rather, to put the point more correctly, in retaining in the
hands of the person from whom the stipend has been withdrawn, the cumulative powers of two
Justices of the Peace, which almost necessarily supposes an income which shall prevent the
constant temptation and danger of its abuse.    A single line of an Act would effect this.
In now tendering to your Honour my final report and the Commission, with the execution
of which I have been honoured, I hope, as a further practical result, that its issue may have
been the means of drawing the attention of all Justices of the Peace to the necessity of using
particular care to avoid the danger of deviating from the strict terms of the statutes specially
enacted for the regulation of the fines and fees of office.
AH of which is respectfully submitted by Your Honour's obedient servant,
Henry P. Pellew Crease,
Commissioner, 694 Enquiry re Stipendiary Magistrate, Vancouver. 1892
COMMISSION.
[l.s.] HUGH NELSON.
Province op British Columbia.
VICTORIA,  by the Grace of God, of the United Kingdom of Great Britain and Ireland, and
of the Colonies and Dependencies thereof, Queen, Defender of the Faith, &c, &c, &c.
To the Honourable Henry Bering Pellew Crease, one of the Judges of the Supreme Court
of British Columbia :
Whereas, by an Order in Council approved on the 4th clay of November, 1891, it was
directed that a Commissioner be appointed to enquire into the following charges against 1. H.
Hallett, Esq., Stipendiary Magistrate of the Province, living at Vancouver, viz.:
That for exercising the duties of his office as Stipendiary Magistrate he illegally received
fees not warranted by law, viz.:
1. A fee of twelve dollars paid to him by the Municipality of Richmond in December,
1890, for adjudicating in the case of Ah Fook, a Chinaman, charged with larceny.
2 Fees amounting to forty-eight dollars paid to him in December, D90, by the captain
of the ship " Hamburg," in the matter of the conviction of certain sailors charged with
desertion.
And whereas, by an Order in Council of even date it was directed that a Commissioner be
appointed to enquire into certain complaints against Arthur Louis Belyea, Esq., a Justice of the
Peace for the County of Victoria, in relation to his office as such Justice, which complaints are
contained in a declaration of one August May, attached to this Commission, together with the
answer of the said Arthur Louis Belyea.
And whereas by an Order in Council of even date, it was directed that the Honourable
Henry Bering Pellew Crease, Judge of the Supreme Court of British Columbia, be appointed
a Commissioner to enquire into the complaints and charges in both cases.
NOW KNOW YE, that reposing especial trust in your loyalty, integrity, and ability, We
do hereby confer upon you, the said Henry Pering Pellew Crease, the power of making enquiry
into all and every of the matters aforesaid, together with the power of summoning before you
any party or witnesses and of requiring them to give evidence on oath, orally or in writing, or on
solemn affirmation (if they be parties entitled to affirm in civil matters), and to produce such
documents and things as you may deem requisite to the full investigation of the matters
aforesaid, and We empower and direct you the said Commissioner to report the facts found by
you in writing to Our Lieutenant-Governor of Our said Province of British Columbia, immediately, or as soon as conveniently may be after you shall have concluded such enquiry, and that
you do and perform all those matters and things in and about the taking of the said enquiry as
by law in that behalf you are authorized to do.
In testimony whereof, We have caused these Our letters to be made patent, and
the Great Seal of the Province of British Columbia to be hereunto affixed :
Witness the Honourable Hugh Nelson, Lieutenant-Governor of Our said
Province of British Columbia, in Our said City of Victoria, this fourth day
of November, in the year of Our Lord one thousand eight hundred and
ninety-one, and in the fifty-fifth year of Our reign.
By Command,
JNO. ROBSON,
Provincial Secretary. Vict. Enquiry re Stipendiary Magistrate, Vancouver. 695
MINUTES AND EVIDENCE.
Court House, Vancouver, 16th February,  1892.
On the opening of the enquiry, the Secretary, Mr. Raymond Punnett, read the Commission,
which detailed the charges into which the Commission was to enquire, as to the conduct of
Mr. Isaac H. Hallett, as Stipendiary Magistrate for the County of Westminster, in the
Province of British Columbia.
These were two in number:—That he illegally received fees as Stipendiary Magistrate not
warranted by law, viz.:—
1st. A fee of twelve dollars paid to him by the Municipality of Richmond, in December,
1890, for adjudicating in the case of Ah Fook, a Chinaman, charged with larceny (a felony).
2nd. Fees amounting to forty-eight dollars, paid to him in December, 1890, by the captain
of the ship "Hamburg," in the matter of the conviction of certain sailors charged with desertion.
Mr. Hallett, being called up by the Court, appeared, and was informed by the Commissioner
that the proceedings were not to be conducted as in a criminal trial, but were simply as an
enquiry, for the information of the Government, into the charges mentioned in the Commission,
for them to take such action thereupon, if any, as to them should seem meet.
He was prepared, therefore, to give every facility, fairly and impartially, to any one wdio
should represent Mr. Hallett, or the Crown.
Mr. J. J. Blake appeared for the Crown.
Mr. Hallett stated that Mr. McPhillips, the counsel whom he wished to represent him in
the investigation, could not be present, as he was in New Westminster, engaged on the
Pritchard trial.
The Commissioner stated that, expressly for Mr. Hallett's convenience, he had allowed
him every latitude in postponing from time to time the investigation ; and such delays were
prejudicial to the interests of many suitors ; and especially so in view of the limited number of
Supreme Court Judges available and the steadily increasing volume of work rolling in upon
them.
Mr. Hallett stated he fully appreciated the position of the Commissioner, but would plead
for a further adjournment under the circumstances. Mr. Sexsmith, an important witness in
his behalf, was absent in the east.
The Commissioner, judging from the depositions, did not think Mr. Sexsmith's presence
was necessary, as all he could testify could be given by his brother-irr-law, the Clerk to the
Municipality, who had all the minutes and muniments of the Municipality of Richmond at his
disposition, and was indeed the sole legal custodian of them, and was now present in Court.
Mr. Blake stated there were only two charges, one of which depended on cap. 28, sec 18,
of the Consolidated Statutes of British Columbia, and it seemed to him that the matter of the
facts, which were indeed practically admitted, could be gone into at once, and the legal aspect
of the question could be argued at a later date.
The Commissioner declined to proceed without the presence of counsel on behalf of Mr.
Hallett; and directed Mr. Blake to telephone to New Westminster to ascertain when Mr.
McPhillips would be able to attend this investigation.
The Commissioner wished it to be understood that there was a great principle underlying
this Commission, namely, that the Government of the Province, and the public generally,
should be able to have perfect confidence that justice should be clearly and faithfully administered in accordance with the great principle enunciated as far back as Runnymede ; that justice
and right shall not, in even the case of the poorest man, be denied, hindered, or purchased, as
in the two instances now before the Commission it was alleged had been done.
Without such confidence the administration of justice would at the least be greatly
impeded.
An adjournment till two p. m. was ordered.
At the afternoon session it was announced that Mr. McPhillips could not be in the city
until late in the afternoon, which made a further adjournment necessary. 696 Enquiry re Stipendiary Magistrate, Vancouver. 1892
Mr. Hallett pleaded for a further postponement for a fortnight, to enable Mr. Sexsmith
to be present; but the Commissioner determined to proceed with the enquiry at 10 a. m. of the
following day.
If during the progress of the enquiry it should be found that Mr. Sexsmith's presence
was necessary, he could deal with that matter when it came up.
Wednesday, 17th February, at 10 a. m.
The investigation into the charges against Stipendiary Magistrate Hallett was resumed
before the Commissioner.
Mr. Hallett was represented by Mr. L. G. McPhillips.
Before the proceedings opened, Mr. McPhillips asked that a letter from Mr. Sexsmith, the
Reeve of Richmond, sent to Mr. Hallett, containing all the testimony which the latter gentleman wished to offer through Mr. Sexsmith, be admitted in evidence.
The Commissioner said he should come to no conclusion until Mr. Sexsmith's evidence was
given, if it should be of importance.
Mr. Blake (for the Crown) had no objection to its being put in evidence, if that would
satisfy Mr. Hallett, or expedite the proceedings.
The Commissioner, having read the letter, agreed to its admission at the proper stage in
the proceedings.
Mr. Blake, in opening the case, said that as the Commissioner had already declared the
scope and extent of the present enquiry, it would only be necessary for him to proceed to the
examination of the particulars of the two charges affecting Mr. Hallett in his capacity of
Stipendiary Magistrate, the first in order of which was :—
(1st.) That he illegally received, as Stipendiary Magistrate, a fee not warranted by law,
namely: A fee of twelve dollars paid to him by the Municipality of Richmond, in December,
1890, for adjudicating in the case of Ah Fook, a Chinaman charged with larceny (a felony).
Before calling evidence, Mr. Blake referred to the Statute bearing on the offence charged,
to wit: Cap. 78, sections 17 and 18—the latter of which reads as follows :—
"This Act shall not authorize any claim being made by the Justices aforesaid
(Stipendiary Magistrates, Police Magistrates, and Justices of the Peace) for
fees of any description connected with cases above the degree of misdemeanour."
Regina v. Ah Fook was a charge of felony ; consequently, taking a fee of twelve dollars
in that case was in direct contravention of the Statute quoted ; and this fee Mr. Hallett had
taken.
Mr. Blake then proceeded with the evidence on the part of the Crown.
Orison D. Sweet, being duly sworn, deposed—
I am a Justice of the Peace, and was Clerk and Collector of the Municipality of Richmond
at the time alluded to in the charge. I remember the case of Ah Fook. I took the information
in that case. I will not swear I took the information in that case, as it is beyond my memory.
I think it was the first case after my appointment. I did not feel confident to act, and gave
it to Mr. Hallett. 1 believe Mr. Hallett did hear the case, but don't know of my own knowledge.    I have here the book of the Minutes of the Municipality.    (Book produced.)
Me. B.—Turn to the entries of this particular case.
A.—Yes, I will. There were no entries in November, but I see an entry among
"Communications," of December 6:—"Received from Mr. I. H. Hallett, with enclosed
account, for hearing a case of Ah Ley against Ah Fook." It was dated 1st December, 1890,
and addressed to 0. D. Sweet, Secretary of the Richmond Municipaliiy. I could not find the
account; I searched for it diligently, but was unable to find it. But 1 can swear to the purport
of it. The charge was—for hearing the case, $10.00 ; for keep of prisoner, the City of Vancouver's charge for it, $2.00.
On January 3rd, 1891, there is the entry of a resolution which was read by Mr. Secretary
Punnett. " Moved by Councillor Errington, seconded by Councillor Blair, and resolved, ' That
the aforesaid accounts be paid.'"    That refers to the twelve dollars, and several other accounts.
Mr. B.—What was done afterwards?
Wit.—After the resolution that they should be paid, a cheque of the Municipality of
Richmond was drawn for the amount and was forwarded to Mr. Hallett—$12. I have the
cheque (cheque produced).    That's the endorsement of Mr. Hallett, 55 Vict. Enquiry re Stipendiary Magistrate, Vancouver. 697
"No. 29497.     Bank of B. Columbia, New Westminster, B. C.    January 3, 1891.
" Pay to I. H. Hallett, Police. Magistrate, or order, Twelve dollars—Ah Ley v. Ah Fook."
(Signed)        J. W. Sexsmith, Reeve.
"$12.00. O. D. Sweet, C. M. C.
"Endorsed—Pay I. H. Hallett, or order,  (Sigrred) Rounsefeld & Oo."
That was the payment for the ten dollars; and to the City of Vancouver,   for board,  two
dollars—in all, twelve dollars.    As to Mr. Sexsmith's letter, I had heard of it, but don't know
its contents.
Mr. McPhillips declined to cross-examine.
(2nd.) Mr. Blake then addressed himself to the second charge, namely:—"That Mr.
Hallett had illegally received, as Stipendiary Magistrate, fees not warranted by law, amounting
to forty-eight dollars, paid to him in December, 1890, by the captain of the ship 'Hamburg,'
in the matter of certain sailors charged with desertion;" and putting in the whole of Chapter
78 of the British Columbia Consolidated Statutes, 1888, called the Commissioner's attention to
the first schedule to the Act, which contains the oath of office taken by Mr. Hallett, which
was as follows :—
"I, Isaac H. Hallett, swear, that as a Stipendiary Magistrate for the County of West-
" minster, in the Province of British Columbia, in all articles in the Queen's Commission to me
" directed, I will do equal right to the poor and to the rich, after my cunning, wit and power,
" and after the laws and customs of the Realm, and Statutes thereof made. And that I will
" take nothing of my office of Stipendiary Magistrate to be done, but of the Queen, and fees
" accustomed, and costs limited by statute.    So help me God.
(Signed)        "Isaac H.  Hallett.
" Sworn and subscribed by the said 1. H. Hallett, )
before me at Vancouver, this 12th day of May, A. D. >
1890. Thomas Dunn, J P."     j
Mr. Blake also called attention to the second schedule of the Act, and then entered upon
the evidence.
George Albert Calbick sworn, said—
I am a Provincial Constable. I live in Moodyville. Remember the ship " Hamburg "
being there in October, 1890 ; eight sailors of the crew deserted. I was sent for by the captain
and requested to get the sailors. I arrested them, and there was a trial or investigation before
Mr. Hallett. Arrested on the 16th October, 1890, they were tried on the 17th. Brought
before Mr. Hallett, in Moodyville.
Q. — Where is the record ?
A.—I had it in a small book. The conviction is in New Westminster. I was present at
the trial in my official capacity.
Q.—Did Mr. Hallett make any order, and what was it 1    What fees did he	
Mr. McPhillips asked was the record of the fees in the conviction itself? I object to the
question as to the contents of the order.     Produce it.
(Objection sustained.)
Mr. Blake then asked what did Mr. Hallett announce to each one of these men as the
result of his investigation of their case ?
Mr. McPhillips objected.     Was the decision in writing?
Witness—Yes
The Commissioner sustained the objection, on the ground that the writing superseded the
verbal account of what occurred.
To Mr. Blake.—Yes I saw money paid to Mr. Hallett by the captain of the ship
" Hamburg."
Q.—How much did he pay him ?
A.—Forty-eight dollars.
Q.—What conversation (if any) took place between them respecting that sum ?
A.—That it was five dollars each for trying the sailors, forty dollars ; and one dollar
apiece for making out each commitment, eight dollars ; in all forty-eight dollars. I took the
sailors to New Westminster.
Q.—What did you do with the commitments 1
A.—I gave them to the gaoler. I don't think Mr. Moresby was present. I think Armstrong.    I delivered the prisoners at the gaol. 698 Enquiry re Stipendiary Magistrate, Vancouver. 1892
As these documents were absolutely necessary to shew the record of the fees paid to Mr.
Hallett,
The Commission was adjourned at 11.30 a. m. until 3 p. m.
An order was made out by the Commissioner upon the gaoler and the Registrar of the
Supreme Court at New Westminster, for the delivery of the commitments and papers in the
case to Officer Calbick, who was dispatched to New Westminster for the purpose.
After the adjournment the Court re-assembled at 3 o'clock.
Officer Calbick recalled, deposed:—
I went to New Westminster under the written Judge's order I received, and got the
documents. (Documents handed to the Secretary.) I got them out of Mr. Moresby's custody.
The Registrar had none.    Mr. Moresby was the gaoler in charge of the prisoners.
Q.—Were these all the documents you brought—that were delivered to you ?
A.—Yes.
The prisoners were arrested by order of the captain, without a warrant.
Mr. Blake explained that a warrant was not necessary. Under Section 94 of Chapter 74,
Revised Statutes of Canada, the master of a Canadian ship, as the "Hamburg" was, had power
to arrest seamen who were deserting, without a warrant, and instruct police officers to assist in
their arrest.
The eight warrants of commitment which (except the names of the eight men) were all
identical in all respects, were then produced and read. I give extracts from one—that in the
case of Pat Mahoney—as a sample of each of the others, especially the words which define the
imprisonment and fine,  as most directly bearing on the present case.
Warrant of Commitment.
Regina v.   Pat Mahoney.
"Canada. 1 I. H. Hallett,
" Province of British Columbia,   V Stipendiary Magistrate for the County of New
&c.        &c. J Westminster.
" To all or any of the Constables, or other Peace Officers, &c, &c.
Whereas Pat Mahoney, an able seaman, was on this day duly convicted before the undersigned, a Stipendiary Magistrate in and for the County of Westminster, aforesaid, of the offence
of unlawful desertion, &c, &c. :
"And it was thereby adjudged that the said Mahoney, for the said offence, should be confined in the common gaol of the City of New Westminster, in the said Province, there to be
kept to hard labour for the space of eight weeks, and should forfeit the sum of $15 (fifteen)
from the wages he has earned in the said ship.
"These are, therefore, to command you," &c, &c    (Usual conclusion.)
Witness.—I received this from Mr. Hallett, and took it to New Westminster and
delivered it, with the prisoner, to the governor of the gaol there. I had identical warrants
of commitment for each of the prisoners; the only difference being the insertion of a different
name in each. Each was committed for eight weeks, and each had to forfeit fifteen dollars
from the wages he had earned on board ; and each of these commitments, together with the
prisoner mentioned in it, I delivered to the governor of the gaol there—eight in all. The
names of the seven other men were, Corkhill, Edward Hitsen, Whidden, Sloan (a Swede), Gus
Paulen, Attorsen, and one more.
Q.—Do you know what became of the fifteen dollars ?
A.—Yes, I do know. It was paid thus by the captain : I received in each of the eight
cases ten dollars ; there was five dollars of it paid in each case by the captain to Mr. Hallett,
making forty dollars. Mr. Hallett did receive this money in connection with these cases; he
also received one dollar per man. He charged one dollar each for these commitments, i. e., for
eight, eight dollars more, making in all the forty-eight dollars.
Q.—Was any information laid in each of these cases ?
A.—I think one was laid by the captain, after the arrest of the men.
Q.—Any summons, or warrant, or process issued before the information by  Mr.   Hallett 1
A.—Not that I know of; nor any document placed in my hands for execution when I
arrested the men.
Q.—Did you see the money paid, and if so, where 1 55 Vict. Enquiry re Stipendiary Magistrate, Vancouver. 699
A.—Yes, I saw it. It was counted out and paid over in my presence, the forty-eight
dollars, by the captain of the ship; I forget his name ; yes, it was Andy Caldwell, captain of
the ship " Hamburg," to Mr. Hallett; he paid it for these sailors, forty-eight dollars. He met
me on the street and requested me to go with him to Hallett's office to settle up with regard to
the sailors. I went with him. I don't remember the exact conversation which took place
with regard to the money.    I remember seeing the money paid.
Q.—Do you know what the money was paid for ?
A.—It was paid in the case of these eight seamen. It was paid to be distributed in the
way I have already told you.     It was paid at one time, counted out on the table.
Cross-examined by Mr. McPhillips: —
I am a Provincial Constable. I arrested them on the verbal instructions of the captain.
Have done so before. When a Magistrate was required I went with Mr. Hallett. They were
tried in Moodyville on the 18th October, about three in the afternoon.. There were no books
there. When the question of costs came up Mr. Hallett had some trouble in his own mind.
He appeared not to know the costs.
Q.—Did he not ask you ?
A.—Possibly he might have.    I do not remember.
Q.—Had Mr. Hallett tried any cases there (Moodyville) before?
A.—No.    No cases of that kind.
Q.—As to this extra dollar ?
A.—I understood at the time it was for making out the commitments. I don't think it
was for the other order—the order to bring them back to the ship ; no, it was irot at all for
that. When the captain wished to settle up the bill, Mr. Hallett said it was one dollar extra
for each of the commitments.
Q.—Was it not for something to be done in the future?
A.—No; it was for something that had been done in the past. I don't know who
returned the men to the ship. I was present when the information was laid by the captain.
1 ain't certain that an information was laid for each man.
Q.—Did you help Mr. Hallett to write one while he wrote another ?
A.—I don't remember.
Q.—Where are they?
A.—The commitments are at New Westminster. Yes, I am paid a salary from the
Provincial Government.    The fees I got in this case were extra.
Q.—Where are the informations ?
A.— The informations are all kept by the Magistrate. These other documents are as to
what happened in the court, what time they have to be imprisoned, and what they have to
pay.    The same as were then made out in court.
Q.—How many delivery orders are there to take the men out of prison and take them on
board ship ?
A.—I can't say, but I think one order. The, books of authorities were not further off
than Vancouver City, across the water. As to authorities, I usually brought the cases over to
Vancouver City to be tried.
[One delivery order for all the prisoners was here produced and identified.]
No, I don't know whether Mr. Hallett was occupying any other position at the same
time.
Mr. Blake then produced the edition of the British Columbia Gazette containing and
proving the appointment of Mr. Hallett as Stipendiary Magistrate, on the 8th May, 1890.
John Alexander McLean, sworn, deposed :—
To Mr. Blake :—I am, and for six years have been, a Justice of the Peace, and was so on
and after 8th May, 1890. I know Mr. Hallett and remember his taking the position of
Police Magistrate of Vancouver City. Do not remember his appointment as Stipendiary
Magistrate.
Q-—Do you recognize that schedule (schedule 1 to cap. 78, B. C. Stats.) in connection
with Mr  Hallett's taking the oath ?
A —I do. I remember administering that oath to Mr. Hallett on or about the last day
of March, 1890, I think.
[Mr. Hallett interposes;    I took my seat on the 1st April, 1890, as Police Magistrate.]
As far as I can remember it was to him, as Police Magistrate, that I administered the
path, 700 Enquiry re Stipendiary Magistrate, Vancouver. 1892
[Afterwards it appeared that the oath of office was administered to Mr. Hallett as
Stipendiary Magistrate by Mr. Dunn, J. P., in words which I have extracted and written in
the early part of these notes.]
Mr. Blake calls attention to the Chap. 45, Dominion Statutes of 1889, as shewing the tariff
there fixed for charges coming under Dominion Statutes.
This Hamburg case was under the Dominion Statutes as a Canadian ship, and the tariff
for it could only be set out under this Act. This Statute is really an Act prescribing the fees
to be taken by Justices of the Peace, though called "An Act to amend the Summary Convictions Act."
Chap. 74, sec. 94, Revised Statutes of Canada, is the Act which gives authority to the
master of a ship to give instructions to arrest a deserting seaman without a warrant.
So, in such a case as the present, there was no necessity for an information or warrant to
arrest the men.
Chap 32, 49 Vict., British Columbia Acts, since repealed, shows what were, at the time
this case arose, the governing powers of a Police Magistrate in the City of Vancouver, his
duties, powers and responsibilities.
It seems Hallett was made a Stipendiary Magistrate so as to have jurisdiction over sailors
out of the City.
Section 96 of chap 74, Dominion Statutes, is the section which authorizes the retaining
men in prison and then sending them on board whenever the Magistrate may wish.
In England, Parliament has done away with that clause. It was considered too
barbarous.
This was called the " delivery order."    There was only one delivery order in this case.
Mr. McPhillips had but few observations to make. The points for the defence would be
made out in the evidence.
The first witness called for the defence was Baker VVallis Heywood, who being duly
sworn, deposed :—
I am Sergeant of Police of Vancouver City. I remember the case of the eight sailor's of
the Hamburg, Port Moody. Was over at Moodyville when the case was tried. I didn't hear
anything said.
Q.—What about fees ?
A.—There was some talk about the fees between Calbick and Mr. Hallett. I think
Calbick said five dollars a day was the customary fee. At first there were no books. We
got some afterwards in the mill office.    I don't know what books they were.
Q.—Then you and Mr. Calbick settled the fees instead of the Magistrate ?
A.—No.     We didn't know what the fees was.
Mr. McPhillips then put in the letter of Mr. Sexsmith. Mr. Sweet said it was Mr.
Sexsmith's handwriting, but he had heard Mr. Sexsmith was sending a letter to Mr. Hallett on
the subject of Mr. Hallett's bill for twelve dollars to the Municipality of Richmond for trying
the case of felony.
It was to the same purpose as Mr. Sweet's evidence, with this addition, that as the Reeve
and Council knew that Mr. Hallett was paid nothing for the duties of a Stipendiary Magistrate
he was well entitled to the twelve dollars, ten dollars for himself and two dollars to Vancouver City for the board of prisoners.
As this was not a criminal trial the Commissioner admitted the letter, which was read,
and was to the above effect.
Mr. McPhillips said he had only one other witness, Mr. Hallett, and he did not know
whether he would call him. It would only prolong the Commission, but might throw enlight-
ment on the matter.
The Commissioner said he had no desire one way or the other, and if thought necessary
he could take Mr. Hallett's evidence.
Mr. McPhillips then decided to call Mr. Hallett.
Isaac Hoyt Hallett, being duly sworn, deposed :—
First Case.
I first heard of it from the Constable, Sweet's son, who brought to the City Hall a
prisoner, a Chinaman ; also the information before Mr. Sweet,    Mr. Sweet wished me to hear 55 Vict. Enquiry ee Stipendiary Magistrate, Vancouver. 701
the case.    As the informant was not ready to go on,   adjourned the case till the following
afternoon.     I tried the case.    Prisoner was discharged.
It came from Richmond Municipality. As to the fees, why were they charged ? Well,
my time was taken up. As Stipendiary Magistrate I received no stipend. My time was
taken up. It was unfair to have my time taken without any remuneration, so I enclosed a
small bill to the Municipality. I met the Reeve about it and talked it over with him. That
I should receive fees from the Municipality. He agreed with me it was only fair I should
receive something from the Municipality. I received ten dollars from the Municipality for
myself and two dollars for keep of prisoners.
[ received a letter from Mr. Sexsmith. It has been put in. I don't know whose hand
writing it is.
I saw him before and wished him to be here, as it was important, and I hoped he would
be enabled to come ; if not, if he would write a letter detailing the circumstances. I received
one from Anderson, not from the post.
The Hamburg Case.
On Saturday afternoon the caretaker at the lock-up wanted me at Moodyville. I asked
for what? He was unable to tell me. I at once ran to the boat. Going across I learned that
sailors were held in Moodyville who had deserted from the ship lying there.
On arriving at the Provincial Lock-up I found no books there. No " Summary Convictions Act" or " Merchant Shipping Act," under which to hear the charges. Calbick was
anxious to have the matter disposed of that afternoon. Went to the office of the Mill Company. Tried to telephone to the City; telephone out of order. The Manager of the
Company had no Statutes ; he had a " Merchant Shipping Act." From that I drew the
informations to dispose of the matter that afternoon, and return by the boat to the City.
The information was sworn before me by the captain—eight defendants charged with
desertion. The punishment was imprisonment for eight weeks in gaol, and forfeit fifteen
dollars from their wages. This was the punishment of each. Subsequently, on my return to
the City, I made out the warrants of  commitment for each.
I made out the order to return the seamen to the ship. At the close something was said
about fees. I could not make them out—had no books. Never tried such a case before. I
think it was stated by Officer Calbick that five dollars was the usual fee. I said, if so, all
right.
Do you remember under which " Merchant Shipping Act"  you prepared the documents ?
No.    The fifteen dollars mentioned in these commitments was forfeited money from wages.
I have made up the fees since, according to the Provincial scale. I cannot now say what
they amount to, from memory. I think it was : one dollar, information; one dollar, conviction ; one dollar, hearing, and fifty cents, warrant.
Do you know what difference between that scale, and what you did charge 1
No.
Anything more you would like to say ?
No.
Cross-examined by Mr. Blake. —I was Police Magistrate of the City of Vancouver from
September, 1890, until some time in October, 1891. That covered the time of these charges
complained of. As Police Magistrate I received a stipend of $1,500 a year—$125 a month.
While Police Magistrate I was appointed a Stipendiary Magistrate, as I understood, at the
request of the Council, not at my request.
Was not one of the conditions that you should do nothing else but attend to the duties of
the office ?
No, that was not the understanding. The condition was I should not practice in the
courts.    I had the right to give advice and draw deeds.
How were you sworn in ?
I believe sworn in on 1st April as Police Magistrate by Mr. McLean. The document I
signed is in the hands of the Clerk of the Council. I was sworn in as Stipendiary Magistrate
by Mr. Dunn, J. P. That document would be in Victoria. I copied that form in the Statute,
swore to and signed it before Mr. Dunn. That oath included the promise to take nothing of
my office but fees accustomed and costs limited by Statute. Yes, I did see the schedule of
fees on the other side.
As a judge, ought you not to see what you were entitled to? 702 Enquiry re Stipendiary Magistrate, Vancouver. 1892
I did not put anything for the Magistrate, as Police Magistrate.
Did you read section 18, which forbade the taking of fees of any description in cases
above misdemeanours 1
I can't say I did.    I was called on hurriedly to take the oath.
Mr. Blake.—I not speaking of that.
I did not look at that when the case of Ah Fook came up.
What was the offence Ah Fook was charged with ?
Mr. McPhillips.—Produce the record, the documents will show.
[These state larceny (a felony) when produced.]
The information was before Mr. Sweet. I can't say if it was amended in any way. I
took it as it was given me. I tried the case. I charged two dollars for the City, ten dollars
for myself, to the Municipality.
I went to Moodyville about 2 or 3 p. m. on Saturday.
How long there ?
I was there about two hours.
Then your first charge, forty dollars, was for two hours' work ? Did it not strike you
that you had better look at the Statute ?
No. I did not make a separate charge. I made an entry in the log book, which was
what the other eight dollars was charged for. I gave an order for the delivery of eight men.
I was going to make out eight separate ones. Three dollars for making this paper and
making entries in the books.
No, I did not look at the Provincial Statutes or Dominion Statutes. They, or some one
told me that was the customary fee.
What are the usual costs, if costs are added in the Police Court besides a fine ?
If I fined a person five dollars it would be five dollars. But if the person fined would
clean up the yards, I let them off with a dollar and a half.
Was not three dollars the costs of a case in the Police Court where costs are imposed?
I can't say from memory.
Are not the fees under the Provincial Act double those under the Dominion ?
I don't know. The Provincial fees, I think, were : information, one dollar; hearing, one
dollar ; conviction, one dollar ; warrants of commitment, fifty cents ; on remand, fifty cents ;
subsequent orders, per order, fifty cents ; total, four dollars and fifty cents.
Do you not know that the fees you were entitled to under the Dominion Act were about
one dollar 1
I was not aware of it. Thsee fees I did not charge at that time. I had not, up to that
time, looked to see what the fees were.
Why?
Well, I was not paid by the Government for being Stipendiary Magistrate. The Municipality have power to appoint a Stipendiary Magistrate. I had the privilege of doing any work
except practising in the Courts. I did not know I could not take any money for a charge of
felony. I did not charge any hearing fee. It was a matter of remuneration to myself by
the Municipality for work done for them. The oath as Stipendiary Magistrate was taken by
me before Mr. Dunn, and when sigrred was sent down to Victoria, and probably is  there now.
Mr. McPhillips :
We don't contend he had a right to accept a fee, but we stood in the same position as a
Police Magistrate paid by the Municipality of Richmond, in the same way as Hallett was paid
by the City, whether the amount be large or small; paid by the Municipality or any other
person, which was quite right.
As to the other case, we don't argue that the charges were correct, but were made without any books at hand and, therefore, he could not have intended wilfully to charge more
than he had a right to charge. It's not easy, under the " Merchant Shipping Act," to settle
what to charge. It does not say what costs are to go to the Province and what to the Dominion.
He admits this charge, but at a moment's notice it is difficult to know what to charge. If not
" charged wilfully " we are not liable under the Act. (R. v. Badger, L. J. 35, N. S. Mag.,
Cases, p. 81)—wilful extortion means wilfully, intentionally, knowingly, and fraudulently so
doing; wilfully denoting evil intention. We did not do a wrong, so there is no offence committed. Judges make mistakes, therefore, I don't see why Mr. Hallett should be removed
from the Commission. Only two charges out of many are the subject of the enquiry, which
speaks well for him, so I don't think any punishment should fall upon him, 55 Vict. Enquiry re Stipendiary Magistrate, Vancouver. 70S
Mr. Blake :
That kind of argument would utterly subvert the old maxim, hitherto universally received,
that ignorance of the law excuses no one, and comes badly from a Magistrate's mouth, whose
particular duty it is to know it.
What we complain of, was that Mr. Hallett, occupying a certain position as a Stipendiary
Magistrate, and having taken an oath not to exact any fees or costs which the law does not
allow him to take (sec 18, " Magistrate's Act ") in violation of the oath and his duty, has
taken illegal fees from eight sailors, and the Richmond Municipality. In the latter, for trying
a felony, contrary to the law, which forbids it. In that case, if the fees had been allowed, it
could only have been one dollar for the hearing; not twelve dollars. In the face of sec. 17
he has not orrly received fees in excess of his right, but has collected, even under the
Provincial scale, twenty-eight dollars from the wages of the men in excess of what the Provincial scale, which is higher than the Dominion scale, would have allowed.
These things the Government could not pass without enquiry, and when proved, as here,
without very serious comment, because of the example to the other Magistrates.
The reason why the other serious charges were not made the subject of enquiry was that
the Attorney-General said they might be errors of judgment to which every one might be
subject.
The Commission thanked the Counsel for their assistance and  adjourned  the  Commission
to Victoria to obtain the document containing Mr. Hallett's oath of office.
VICTORIA, B.C.:
Printed by Richard Wolfenden, Printer to the Queen's Most Excellent Majesty

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