MEMOIRS AND DOCUMENTS RELATING TO JUDGE BEGBIE.
Edited with an Introduction by W. Kaye Lamb
B.C. Historical Quarterly, April 30, 1941
Few figures stand out more prominently in the early history of British Columbia than that of Sir Matthew Baillie Begbie, whose name is usually linked in the popular imagination with the overly harsh epithet, ” the hanging judge.” Yet there is reason to fear that in the years to come Begbie’s name may slip into ill-deserved obscurity. At present his fame rests to a dangerous degree upon legend and anecdote; and as the pioneers who knew him pass on, Begbie himself tends to fade from the scene. Many of the stories about him have never been recorded, let alone printed, and the number of documents relating to his long career is surprisingly small. It is true that most of his Court note-books have survived, but it would be difficult to paint a full-length portrait of the man without a great deal of help from other sources. Under these circumstances it seems worthwhile to reprint the personal reminiscences of Begbie which follow. To them has been added a number of documents bearing upon the interesting question of his status and jurisdiction after the union of the colonies of Vancouver Island and British Columbia, in 1866.
The earlier of the two articles, published only a few months after Begbie’s death, was signed “A. B.” The initials are almost certainly those of the Rev. Arthur Beanlands, who at the time was canon and rector of Christ Church Cathedral, Victoria.
The second article was written in 1925 by the late A. E. Beck, K.C, who was for many years Registrar of the Supreme Court in Vancouver. They are reprinted by kind permission of Mr.Marshall Beck, son of the late Registrar, and of the Vancouver Province, in which both articles originally appeared.
The almost mellow impression of Begbie given by Canon Beanlands (if he it was) stresses a side of Sir Matthew’s character that was little known to the public. His charitable acts were many, but he kept them hidden from the light of day.
Even D. W. Higgins, one of his harshest critics, stresses this point: ” He gave by stealth. No deserving person who appealed to him for aid was denied. He supported more than one needy relative and gave generously to strangers.”[i]
Similar evidence was given by the late Oscar Bass, formerly Deputy Attorney-General, who was an official reporter when Begbie was on the bench. In that capacity he was in close touch with the Chief Justice, and in later years he recalled how Begbie arranged frequently to have him distribute his anonymous and almost surreptitious charities. Nor was this a trait developed late in life. In 1859, in the course of one of his first visits to Fort Langley, Begbie was called upon to consider the case of a boat and cargo which had been seized because the owners had failed to secure the proper clearances. He arranged to release the craft with the smallest possible penalty, reported the matter to Governor Douglas, explained to him that the maximum loss to the Treasury, due to his leniency, would be $15, and added that ” if you think I am doing very wrong, you may make me repay.”[ii]
Matthew Baillie Begbie was born in 1819, the eldest son of Colonel T. S. Begbie. He graduated from Cambridge University, and was granted the degree of M.A. in 1844, at the age of 25. The same year he was called to the bar at Lincoln’s Inn. It is assumed that he practised his profession for a time, but he was employed chiefly as a law reporter. D. W. Higgins tells the story as follows:
“He was admitted to the Bar early in life, but matters were not prosperous, and he found it difficult to obtain a footing in the profession. In his college days he had acquired a knowledge of shorthand and amused himself on court days by taking down evidence and the judge’s words. He was next employed on the Law Times as a reporter. The Lord Chancellor of the day was in need of a skilled shorthand writer. A sad mess had been made in taking down and transcribing court proceedings by the only available talent, and it was evident that the time had come for a change. In the dilemma Mr. Begbie, whose excellence as a reporter was well known to the government, was appealed to and undertook the work. His reports gave every satisfaction.[iii]
In September 1858, he was appointed “Judge in Our Colony of British Columbia” upon the recommendation of Sir Hugh M. C. (later Lord) Cairns. As the appended notes and documents indicate, he became Chief Justice of the Mainland of British Columbia in 1869, and Chief Justice of British Columbia in 1870. He was knighted in 1874, and died in Victoria on June 11, 1894.
- Kaye Lamb.
University of British Columbia,
[i] D. W. Higgins, ” The Giant Judge,” Victoria Colonist, November 8, 1908.
[ii] F. W. Howay, The Early History of the Fraser River Mines (Memoir VI., Archives of B.C.), Victoria, 1926, p. 45. The documents printed by Judge Howay include (pp. 23-53) a group of Begbie’s letters, covering the period January-March, 1859.
[iii] Higgins, loc. cit. It may be as well to warn the reader that Higgins had a lively imagination, and that little or no foundation in fact has been discovered for the principal episode described in ” The Giant Judge.”
- SIR MATTHEW BEGBIE:
TERROR OF LAWBREAKERS OF B.C. FIFTY YEARS AGO.
By A. E. Beck, K.C.
[Reprinted from the Vancouver Sunday Province, July 5. 1925.]
Among my recollections as a registrar in Vancouver of the Supreme and County Courts for many years, I recall that outstanding historic character, Sir Matthew Baillie Begbie, fearless dispenser of British law and justice in the mining regions in the early days of British Columbia.
The discovery of gold in the interior followed close upon the slowing up of the California gold rush and many human parasites fastened upon the miners in the stampede for the new Eldorado of the North.
Sir Matthew, an English barrister, was appointed a judge by the colonial office and was sent to British Columbia in 1858, where he performed continuously his judicial duties for thirty-six years.
I first met Sir Matthew in 1892 and, having heard many anecdotes of his treatment of the lawless characters which infested this province in the early days of gold mining in the Cariboo, I was curious to obtain a first-hand account of his experiences. One morning, while acting as his clerk, I asked him, a most affable man, if the stories I had heard of him were really true. He replied that some were, but many were greatly exaggerated.
He told me that many years after his experiences with the lawbreakers in Cariboo and when he was enjoying one of his few vacations in the South, a man approached him at Salt Lake City with his hand extended and said, ” How do you do, Judge.”
” At first I thought he was one of those bunco men,” explained the chief justice, ” and replied with some suspicion, ‘ Excuse me, sir, but I have not had the pleasure of your acquaintance.’ “
“‘ Oh, yes, Judge, I know you. I was one of your jury-men up in Cariboo. Don’t you remember the man you hanged at Clinton,’”— giving details of the trial.
This the judge recalled and then the man went on to say that he often wondered how the influence of one man could hold in check the lawless gunmen from the South, where the law-abiding citizens of that time had to resort to vigilance committees and lynching to enforce respect for law and order, concluding with the remark: ” You certainly did some hanging, Judge.”
” Excuse me, my friend, I never hanged any man. I simply swore in good American citizens, like yourself, as jury-men, and it was you that hanged your own fellow-countrymen.”
The judge at this time was the court of last resort, there being then no court of appeal, either for civil or criminal matters. Our law then permitted foreigners to serve on juries. British subjects were in the minority and it would have been difficult to obtain a panel without Americans. From what I later gathered, from the late Mr. Justice Walkem and others who had practiced before Sir Matthew, he was very forceful in charging a jury in criminal cases and would express his resentment on a miscarriage of justice whenever a perverse verdict was returned. On one such occasion where the gallows was cheated he discharged a jury with the curt remark that hanging was too good for any man who was afraid to convict a murderer.
On the acquittal of a holdup man he thus addressed the prisoner:
” The jurymen say you are not guilty, but with which I don’t agree. It is now my duty to set you free and I warn you not to pursue your evil ways, but if you ever again should be so inclined, I hope you select your victim from the men who have acquitted you.”
While he was the inveterate enemy of the criminal classes, to the lesser offenders he was more lenient. He once imposed a penalty on a disorderly klootchman that she must have her hair cut. This was, at that day, a mark of degradation.
British law is very jealous of the liberty of the subject and in preserving all safeguards and rights of an accused person. The crown must prove its case beyond a reasonable doubt. This brings to mind one of the many Begbie stories. A prisoner appeared before him at Victoria, charged with the crime of burglary. Coming from across the line, where it was and still is, customary for some of the states to provide the accused with a counsellor, the accused made a request for a lawyer to Sir Matthew, who said: ” It is not the British custom to assign counsel for the defense in such cases, but I will see that you get a fair trial. The crown must prove its case. You keep your mouth shut.”
Burglary is a felony which must be committed wholly in the night, which according to law commences at 9 o’clock in the evening and concludes at 6 o’clock next morning. As the trial proceeded it was noted that the court was giving every protection to the accused, who appeared to be gratified with the proceedings. The policeman who made the arrest, having testified that on passing an alley he observed the accused breaking and entering a dwelling. Sir Matthew interrupted.
” What time was this—about 9 o’clock? “
The prisoner blurted out, ” No, it wasn’t, judge. It was 10 o’clock.”
” Didn’t I tell you to keep your mouth shut,” exclaimed the court.
When Sir Matthew was on circuit in the Upper Country it is related that once while seated on the upper floor of the verandah of a hotel he overheard a number of lawless members of the community discussing ways and means of getting rid of him. He listened until their plot had fairly developed and then went back to his room. Returning shortly afterwards with a vessel of dirty water, he promptly emptied it upon the crowd below as a mark of his contempt for them.
In a civil action tried at Kamloops he delivered a truly Solomonic judgment. It was what is known as a partition action. Two brothers had invoked the law to determine their respective rights to inheritance.
After the trial had proceeded some length Sir Matthew said:
” Plaintiff, you go and divide the land into two parts and you, defendant, then take your choice.”
One can readily understand that there was an equal division of the property.
I recall a visit on one occasion to the Court House at Victoria, when a Vancouver case was being heard before Sir Matthew, in which Pat Carey was the defendant. Pat was a well-known character in the early days of Vancouver, and proprietor of the Brunswick Hotel, one of the leading hostelries. He had the peculiar business idea that the sheriff’s receipt on a writ of execution was the safest and best evidences of payment of a debt. On entering the Court House, I observed Pat walking up and down the corridor apparently in distress. I asked him what the trouble was, to which he replied that he had just got into court when ” Old Begbie ” threatened to fine him or send him to jail for contempt of court, and he had just stepped outside. He had only sent the judge a telegram. It appeared that Pat’s departure from Vancouver had been delayed and he had sent the following message.
” Judge Begbie, Victoria. I have missed one boat. Hold the court down till I come. Pat Carey.”
The morning following Sir Matthew’s death at Victoria, on the 11th June 1894, I had occasion to enter the law library at the Court House and there met Mr. Justice McCreight, a most devout man, excessively conscientious and a sound lawyer. On advising him of the death of the Chief Justice he expressed his regret and further said:
” Sir Matthew was an arbitrary and obstinate man, but honest and impartial. His strong fearless individuality no doubt exercised a restraining influence over the lawless element of the early days of this province. He was not without natural ability but had little regard for present day text books and law reports,” and with a sweeping gesture toward the book shelves, ” What are these books given to us for but to guide us from precedent to precedent. Sir Matthew rarely consulted any of them but was content with the legal notes of the Times newspaper and his own conception of what was right and wrong.”
Sir Matthew was aged 75 at the time of his death, which was caused I think by pneumonia. He was active up to his last illness. He was a man of commanding presence, over six feet in height, manly, handsome, with a musical high tenor voice, which he occasionally exercised in Anglican church choirs. He never married. His affections seemed to be devoted to the collections of works of art and he told me that his outdoor hobbies were walking and gardening, the latter of which he was very fond. In the late spring of the year of his death he wrote about his garden and after remarking that the season was advancing, at all events on the calendar, requested me to obtain a quantity of bone meal, which had been recommended to him as a fertilizer by the Lieutenant-Governor. This I forwarded, but he never lived to gather the flowers from his garden.
His name will ever be identified with the early growth of this province. The service he rendered to his country was recognized by his Queen, who conferred upon him the honour of knighthood in 1874. He was one of those Britishers who, although born in England, would never refer to Canada as the land of his adoption, but as his country, without any qualification. He regarded himself as one of Her Majesty Queen Victoria’s ambassadors sent to this outpost of her dominions to see that her laws were strictly obeyed and no servant of the crown more conscientiously or successfully discharged his duty. His decisions may have been arbitrary and some possibly erroneous. In the days when his special mission was accomplished there was no Court of Appeal to set him right. Possibly his mistakes were present in his mind when he made his will, for after disposing of his worldly possessions he concluded with the pious invocation, “Lord have mercy upon me a miserable sinner.”
No provision was made in the Act of Union for the merging of the Supreme Court of Vancouver Island and the Supreme Court of British Columbia. As a consequence, great uncertainty arose as to the future status and jurisdiction both of Chief Justice Needham, of Vancouver Island, and of Judge Begbie, Judge of the Supreme Court of British Columbia. Begbie took the view that the old colony of Vancouver Island and all its institutions, including the Supreme Court, had ceased to exist, while Needham contended that, as the abolition of the Court was not specifically provided for in the Act, its existence and authority were in no way impaired. Governor Seymour endeavoured to work out some compromise arrangement, but neither Needham nor Begbie would concede an inch. The documents which follow throw much light upon the resulting impasse, as it existed in the winter of 1866-67.
More than seventeen months passed before the problem was solved partially by the passing of the Courts Declaratory Ordinance of May 1, 1868, which continued the powers and jurisdiction of both Courts. A final settlement was not arrived at until March 1 of the following year, when assent was given to the Supreme Courts Ordinance, 1869. Under its provisions Begbie, hitherto known only as “judge,” was named ” The Chief Justice of the Mainland of British Columbia,” while Needham became “The Chief Justice of Vancouver Island.” Each was to take precedence over the other in his own jurisdiction. It was recognized that it was not desirable that this complicated arrangement should continue indefinitely, and the Act provided for the merging of the Courts when a vacancy occurred “by the death, resignation, or otherwise, of either of the present two Chief Justices.” In March 1870, Chief Justice Needham resigned to become Chief Justice of Trinidad, the Courts were merged, and Begbie became “The Chief Justice of British Columbia”—the position he continued to hold until his death in 1894.
The picture of law and order in British Columbia which Begbie gave in his memorandum to the Earl of Carnarvon was substantially a true one, but in one respect it would have aroused the indignation of many of his contemporaries. It was all very well for Begbie to write that there had “never been a single appeal from any decision” of his; but the fact of the matter was that there was no superior Court in the colony to which an appeal could be carried. In theory a case could be taken to the Privy Council, but actually the costs which would have been involved made such a course quite impracticable. Furthermore, if Begbie meant to imply that his judgments had met with universal approval, his statement was quite contrary to fact. John Robson, editor of the New Westminster British Columbian, the most important journal in the mainland colony, had for years been criticizing him in no uncertain terms. As early as November 26, 1862, a letter appeared in the Columbian which charged Begbie with having received 20 acres of land as a bribe to overrule a local magistrate who had refused to issue a certificate of improvement on land held by one Dud Moreland. The charge was denied but was never satisfactorily disposed of. Less than a month later Begbie aroused a perfect storm of protest when, after a long and expensive trial, he dismissed the jury in the famous case of Cranford vs. Wright, instead of endeavouring to advise or assist them when they failed to agree. The dismissal left the plaintiff saddled with ruinous costs amounting to £1,810, and the conduct of the case was attacked strenuously by Robson. In one of several outspoken editorials he wrote:
“We are, as a Colony, disgraced; our dearest rights are at stake and our property imperilled, because we cannot rely for protection upon a righteously administered law. There is not one of our citizens to-day who, if a difference arose between him and his neighbour upon any matter which required to be taken into our superior court for settlement, would not prefer to waive a large portion of what he considered his just and legal right rather than encounter, what it is only truth to call, the absurd, illegal and unjust decisions and charges of Judge Begbie.[i]
Decisions in later cases were regarded as equally unsatisfactory, and as late as June 13,1866, only six months before Begbie drew up his memorandum, Robson printed a biting leader entitled “The judiciary falling into contempt.” Robson was by no means alone in feeling that the existing state of affairs was far from satisfactory, and it is significant that in 1867 the Gold Mining Ordinance was amended so as to limit appeals to the Supreme Court (in other words, to Judge Begbie) from the decision of a Gold Commissioner to questions of law. The decision of the Commissioner or a jury “upon all matters of fact” was in future to be “final and conclusive.”
The manuscripts (a), (6), and (c) printed herewith are in draft form in a letter-book of Begbie preserved in the Archives of British Columbia. In order to simplify their reproduction, the many abbreviations have been expanded.
(a.) Draft of memorandum prepared by Judge Begbie for submission to the Earl of Carnarvon, Colonial Secretary.
New Westminster. 28 December 1866.
Memorandum for the Right Honourable the Earl of Carnarvon one of Her Majesty’s principal Secretarys of State respecting the Chief Justiceship in the Supreme Court of British Columbia. Submitted by Matthew Baillie Begbie judge in this Court.
On the 2nd September 1858 I received Her Majesty’s Commission appointing me to be during Her Majesty’s pleasure a Judge in the colony of British Columbia. I left England on the 11th September 1858 and arrived in Vancouver Island on the 16th November and assisted on the 19th November 1858 at the proclamation of the colony of British Columbia at Fort Langley being myself sworn in to the office of judge on that occasion. I have ever since that time been the only person, and therefore of course the chief person exercising judicial authority in the supreme Court of this Colony. A copy of my commission is annexed.
- On the 14 August 1858 previous to the date of my commission, but after the appointment had been arranged, the Right Honourable Sir Edward Lytton, then Secretary of State for the Colonies addressed a despatch to the Governor of British Columbia of which the following is an extract “I . . . shall send you also at the earliest moment an officer authorized to act as Judge & who I trust as the Colony increases in importance may be found competent to fill with credit & weight the situation of Chief Justice.” The officer alluded to in this paragraph was myself. I was not aware of the existence of this despatch until I read it in the Blue Book for British Columbia (p. 47, par. 4) published 18 February 1859: received by me probably in April or May 1859. But the prospect of promotion of this description, so as to place me on an equal designation with Mr. Cameron, the sole judge & Chief justice of the supreme Court in the neighbouring Colony of Vancouver Island had been held out to me verbally before leaving England. I forget whether this conversation occurred with Sir Edward Lytton or with some of the gentlemen in the office to whom he referred me. But finding the intention thus early announced to the Governor and published openly, I have never made any application concerning the matter save in one letter to His Excellency Mr. Seymour inquiring whether any steps were likely to be taken for carrying it out: in which letter was indicated the probability of the present difficulty arising.
I do not know why; but when the Colony of Vancouver Island was in 1856 furnished with a Supreme Court of Civil justice,—though the whole colony was a mere Hudson’s Bay Company trading settlement, the white population to be reckoned by scores, the salary for the whole judiciary £100 per annum, and the whole bench represented by a single judge—(not [Chief Justice Needham] the present incumbent)—he received the designation of chief Justice. While in British Columbia, of far greater extent & varied interests, & which sprung at once into existence in 1858 with many thousands of inhabitants—the sole judge of the supreme court has never received a higher designation than simply that of “a Judge.”
On the 19th November ultimo  the Act of Union of the Imperial Parliament (29 & 30 Victe c. 67) was simultaneously proclaimed in both Colonies. By the express terms of that Act, the separate Executive and separate Legislature of the then colony of Vancouver Island were to cease from the date of the proclamation: & the Executive and Legislature of British Columbia (the latter numerically increased) were to extend and exercise authority over the whole territory theretofore forming the colony of Vancouver Island, which was thenceforth to be included in & form part of the colony of British Columbia. It may be observed that the limits of the colony of British Columbia as originally defined by the Imperial Act of 1858 have already been twice enlarged in 1862 & 1863.
There does not appear to be in the Act of Union any express declaration concerning the Supreme Court of Vancouver Island. And I believe the opinion is held by some persons that that court is not abrogated, and that the Chief Justice of that court is still one of Her Majesty’s judges.
I have not heard the arguments on which this opinion is based; except that I have heard it suggested that such a result is the necessary consequence of certain enactments of the local legislature in that colony: and that by the Act of Union itself, although Vancouver Island is to form part of the Colony of British Columbia, yet the former local laws of each geographical division of the new colony are to continue to be in force until changed by the new legislature. The two local acts however to which I have been referred in support of this view do not seem when taken together to support this construction, but rather the reverse. And, if they did support it, that circumstance would only shew that they were no longer in force at all. The Act of Union, when it declares that local laws shall continue in force, must certainly be understood to speak only of such local laws as are not inconsistent with itself. Every law, constitution, or custom, inconsistent with the Union Act, must be deemed to be abrogated by it: else the Union itself would never take effect at all. I do not wish to enter upon any constitutional argument upon this point, which can be perfectly considered at home; but merely to state shortly the view I take; which is this:—The judiciary is merely the mouthpiece of the Executive, the organ by which & by which alone, the executive can constitutionally declare judgments for the decision of all rights, whether of the Executive itself, or of private individuals. When the whole Executive is abrogated, the judiciary must surely expire with it: and when the executive is extended into a new dominion, it carries its own courts of justice along with it. So that in 1866 the writs out of the Supreme Court of British Columbia run for the first time into Vancouver Island as in 1864 for the first time into Stekin &c. when that addition of territory was made. The commission of the Chief Justice of the colony of Vancouver Island was by the terms of the order in Council under which it issued ( ) expressly declared to be only during Her Majesty’s pleasure: & since the consent of the Crown must be taken to have been given to all the natural & logical consequences of the Act of Union, and the Royal pleasure signified thereon, when the Royal Assent was given to the Act itself, the assent to the Act of Union must have determined the commission of the chief Justice of the Supreme Court of Vancouver Island.
According to my view therefore I have still the honor to be, as I have been ever since the 2nd September 1858 or at least since the 19 November 1858 the sole & therefore necessarily the chief judge of the Supreme court in British Columbia, —a jurisdiction which has always included the larger portion and now includes nearly the whole of Her Majesty’s dominions in North America West of the Rocky Mountains.
It is now I believe contemplated to appoint an additional judge in this Court; and to give the new judge precedence over me, within some portions at all events of the Colony. And before this is carried into effect I should wish, with all submission, to be informed of the reasons why, after a delay of 8 years & upwards in reliance on the representations made by the Secretary of State, I am at length to find myself, not promoted, but superseded.
Eight years silence can sufficiently attest my unwillingness to urge what follows: or to seem to plead, as for a favor, or that which I think I might challenge as my right. Yet since I seem put on my defence — since after 8 years of service as Chief Justice in fact, with the published anticipation of being made so in name, the question seems now to be mooted whether I shall not see another placed over me in my own Court. I shall venture to say 1at that no English judge has perhaps ever been placed so utterly & entirely alone, with so many circumstances of physical and moral difficulty and irritation around him, for such a length of time, in the wildest vicissitudes of excitement and ruin.
Secondly that the criminal statistics of the colony appear highly favorable when placed beside those of any other gold producing country. Crimes of violence are extremely rare; highway robberies almost unknown; I think only 4 or 5 cases by white men since my first circuit in 1859. The express has for years travelled constantly over 500 miles of road, chiefly through mountainous or forest country. It carries from $50,000 to $200,000—protected I believe by 2 armed men—I don’t think it has ever once been attacked. Stabbing & pistoling, so common in the adjacent territories are almost unheard of on the British side of the line: although the population is composed of the same ingredients.
I should be sorry to have it supposed that I am vain enough to attribute this most fortunate state of things purely to my self. I know what is due to the executive, in all its branches—particularly to the excellent & invaluable magistrates who, scattered at great intervals, generally with only 2 or 3 constables apiece, enforce the observance of the laws almost entirely by their moral influence. All I claim is, that the criminal statistics of the colony shew no unfitness in me to be a judge here. And I am unfit to be a judge at all, if I am now fit only to be superseded. Thirdly, As to the civil side of the court, I shall only say, that though many cases of very great value have passed through my hands, there has never been a single appeal from any decision of mine. I have not indeed heard of one case in which any counsel has even given an opinion that an appeal could be successful, and I therefore claim that the results on the civil side of the court are as favorable as on the criminal side.
[Precedence in Victoria would be virtually precedence in the Colony. Victoria is in every particular—in excellence of harbour, facility of approach, central situation, amenity of climate, beauty of scenery, fertility of environs—so far beyond comparison with any other point in Her Majesty’s dominions on the Pacific coast for convenience of trade, residence, & agriculture that she would speedily take the lead as a settlement, even if she had it not already. But in point of fact Victoria is the only settled part of the colony: in population about equal to all the rest. It may be said that outside of Victoria and its neighbourhood there is not a trader of any importance, not a family in tolerably easy circumstances (unless an official)—not six houses either of brick or stone. And if Victoria fall, it can only be accompanied by a universal collapse. I therefore regard with very little satisfaction the right of precedence in other parts of British Columbia if I am to be superseded by another judge when sitting there.][ii]
I regard the partial superseding, I mean the proposal of superseding, me in a part only of the Colony, (viz) in Vancouver Island (including of course Victoria) with very little satisfaction. Whatever is to be the future of Victoria there is no doubt but that it will always be one of the most important points on the North Pacific Coast, both for commerce & population. I conceive that I alone have now jurisdiction there & have had sole jurisdiction ever since the 19 November last. I will not say one word to disparage the Gentleman [Chief Justice Needham] whom it is proposed to place over me: but on the other hand I certainly admit no disqualifying inferiority on my part, as I believe he would himself claim no preeminence over me, except in the accident of nomenclature.[iii]
It scarcely seems probable that there was originally in 1858 any intention to mark, by this difference of designation, a superiority of importance in the Vancouver Island Court—especially when it is considered that the Chief Justice in that Court was then Mr. Cameron.[iv]
Still less probable does it seem that that difference of designation was intended to mark a perpetual superiority, even after Vancouver Island should have become extinct as a separate Colony, and in all other respects annexed to British Columbia. I venture to submit that if I had been before the union designated a “Chief Justice “—or if the sole Judge in Vancouver Island had never been termed ” chief justice ” but simply a “judge,” (as in this colony)—no question would ever have been raised by the judge of that Court[v]—but precedence would have been accorded me as a matter of course. I therefore venture further to hope that this accident of designation will not be deemed by Her Majesty’s government an irrefragable reason for now subordinating my office, and mine alone of all the continuing officials of British Columbia to the analogous office in the late Colony of Vancouver Island, by appointing a new Judge in this Court over me—no unfitness being shewn in me but on the contrary, the results of 8 years administration challenging comparison with the results in any other of Her Majesty’s Colonies—and the gentleman whom it is now proposed to appoint for the first time to this Court (whose fitness in himself for such office I do not dispute) being my junior at the English bar, and by many years also on the Colonial Bench.[vi]
I suppose the documentary evidence is easily accessible in the office at Downing Street. The documents & authorities so far as I know (I am very ill supplied with these) are
1st. Imperial Act 21 & 22 Vic. c. 99 (the act creating the Colony of British Columbia.)
2nd. My own Commission (copy sent herewith)
3rd. British Columbia boundary Act A.D. 1863 (26 & 27 Vic. c. 83)
4th. Union Act 1866 29 & 30, Vic. c. 67. and so far as I know in relation to the late supreme court of Vancouver Island
5th. Act 1849 (12 & 13 Vic. c. 48) concerning the Court in Vancouver Island
6th. Order in Council 4 April 1856 in the same matter.
7th. Commissions of Mr. Cameron & Mr. Needham (neither of these documents I have ever seen)
8th. Two local Acts Vancouver Island regulating the salary of the Chief Justice in that Colony.
9th. Chalmers’s colonial opinions (Burlington Edition 1858) p. 433—on the Jamaica Acts 1751.
M B B
(b.) Paragraph from undated and incomplete draft memorandum by Judge Begbie, presumably intended for submission to Governor Seymour.
Because the jurisdiction of this Court is extended over Vancouver Island—& there cannot be 2 supreme courts in one place, I claim jurisdiction by virtue of my commission, which appoints me a judge in British Columbia. I look from year to year to see what British Columbia means: taking for my guide legislative declarations, & judicial declarations made by a Competent Court. In 1858 1862 1866, I have found different parliamentary boundaries & have acted accordingly. I take the Geographical limits of the executive to be those of the judicial jurisdiction—and I find no other person appointed to be either Chief Justice or Judge in the Supreme Court of British Columbia. It would surely be an unexampled inconvenience to have 2 collateral Supreme Courts without any authority (like the House of Lords in England) to keep both to one uniform line.
(c.) Draft of memorandum prepared by Judge Begbie for submission to Governor Seymour.
Memorandum as to the jurisdiction of the Court (Vancouver Island) in a letter to His Excellency (private & confidential)
To His Excellency the Governor.
The circumstances which seem to embarass [sic] the nomination of any puisne or other Judge to the Supreme Court—Vancouver Island or the recognition of that Court as an existing Court are as follows:
On the 19th November 1866 (the day of the proclamation of the Union Act) there was in the then Colony of Vancouver Island a Supreme Court under the Order in Council 1856, “The Supreme Court of the Colony of Vancouver Island”—by the same order directed to be held before a Chief Justice to be called “the Chief Justice of the Colony of Vancouver Island “—who was by the same order directed to be nominated by letters patent under the public seal of the said (late) Colony in pursuance of a warrant or warrants from time to time granted in that behalf under the Sign Manual: the office to be holden during Her Majesty’s pleasure. On the mainland there was at the same date (19/11/66) a Supreme Court intituled according to the British Columbia local proclamation with force of law (8 June 1859) “The Supreme Court of Civil Justice of British Columbia “and on its seal” The seal of the Supreme Court of Civil Justice of British Columbia ” & holden before a judge appointed in that behalf by a communication addressed to him (the judge) under the Sign Manual & privy signet.
By the Union Act, on the proclamation thereof “the form of Government existing in Vancouver Island as a separate Colony shall cease; and the power & authority of the executive government . . . existing in British Columbia shall extend to & over Vancouver Island.”
The Union Act further provides that until the proclamation of such act ” British Columbia ” shall mean— —after the proclamation, ” British Columbia ” shall mean—
There is not in the Union Act any express nor so far as can be seen any implied ratification or continuation of the said Supreme Court of the (late) Colony of Vancouver Island beyond the date of the proclamation of the Act here.
Under the circumstances above stated, it is the opinion of yourself & of both your constitutional advisers that the Supreme Court of the late Colony of Vancouver Island is, since the proclamation, practically extinct. I am not aware that any person, either on the mainland or Island, presumably capable of forming an opinion, is of any other mind: although I believe some persons have expressed doubts whether the jurisdiction of the Supreme Court of British Columbia extends over the Island as it formerly did & still undoubtedly does extend over the mainland. The Solicitor General repeatedly informed me (during his residence at New Westminster in attendance on the late session of the legislature) that Mr. Needham had very clearly expressed his opinion that his court (Supreme Court of Colony of Vancouver Island) was gone—and that he sat & held court merely as a sort of arbitrator, & so long only as his jurisdiction was not objected to. And this is on various grounds (as I have already had the honor of intimating) is my own opinion so far as I may form an opinion upon a point likely to be disputed, without having heard any argument except such as I have been able to supply myself. But after the most careful consideration, on constitutional grounds, by direct proofs, & by indirect (i.e. by arguing ex absurdo and ab inconvenienti) it seems clear that the “Supreme Court of the Colony of Vancouver Island” practically ceased to exist on the 19 November 1866. Whatever authority it now, since that date, possesses, must be derived purely & solely from the Order in Council 1856 and the consequent local Acts (of Vancouver Island) for carrying that order into effect—and in no degree from the existing executive or legislature, or from any executive or legislature by or through which the existing powers derive their right or title. The Supreme Court of Vancouver Island must surely exist, if at all, independent of any authorization, & probably of any control, by any existing legislative or executive in the world. (Under such circumstances, who is to pay the Judge—whose Sheriff is to execute his judgments?)
I understand that by the recent despatches (received last mail) the Governor of British Columbia is instructed to consider the Supreme Court of the (late) Colony of Vancouver Island to be still subsisting as Constituted by the Order in Council 1856, and Mr. Needham, the Chief Justice of the said (late) Colony, to be still in possession, unimpaired, of all the powers & authorities which he possessed before the Union— and is further instructed to appoint (in substance) Mr. Needham to be a puisne Judge on the mainland, & myself a puisne Judge on the island (ought to be “of the Court in which Mr Needham is Chief Justice” i.e. of the Supreme Court of Civil Justice of Vancouver Island)
In carrying out the last line of these instructions, a difficulty arises. I suppose no difficulty would arise in appointing any gentleman to be a puisne Judge in an existing Court of an existing Colony—and therefore Mr. Needham may well be appointed to be a Judge in the Supreme Court of British Columbia. As to the particular form or method of appointment, however, there may be some question. Perhaps the instructions meet the point—perhaps, again, simple instructions are not a sufficient warrant for such an appointment. Evidently the new Judge cannot be invested with the authority I hold, (viz) a commission under the Sign Manual & Privy Signet. And I am not aware of any authority on the present occasion similar to that mentioned in the order in Council 1856 in relation to the appointment of a Chief Justice in Vancouver Island (viz) to appoint from time to time by letters patent under the public seal of the Colony pursuant to a warrant or warrants in that behalf from time to time granted under the Sign Manual and Privy Signet.
But as to the latter clause of the instructions, (viz) concerning the appointment of myself to be a puisne Judge in Vancouver Island—In what Courts under what form & seal is the appointment to be made? and what seal is the new puisne Judge in Vancouver Island to use?—or why am I to be authorized afresh?—I am already commissioned under Her Majesty’s Sign Manual & Privy Signet “to be a judge in British Columbia” and I conceive that in all British Columbia territory I require no further or other authority for my exercise of such jurisdiction. It may even be said that by my oath of office, being sworn to act according to my capacity & understanding, I am bound to act, if called on:—Every man in British Columbia has a right to call on me to act, and I have no right to refuse. I have to exercise my own conscientious judgment as to what is or is not British Columbia territory. For that purpose I have to look to Acts of Parliament or other legislative measures binding on this court: and to judicial decisions duly made in Courts which have authority to bind my judgment. But the question of territorial jurisdiction is one upon which a Judge may be called on to form his own opinion in the first instance and this point (of territorial extent of jurisdiction) has already, long before the Union, been mooted before me. In a case otherwise unimportant I had to consider whether one of the small islands adjacent to the mainland belonged to the then Colony of Vancouver Island, or whether it was or was not included in the territorial boundaries of the Colony of British Columbia as defined by the original Act of 1858 (which is rather vague as to islands)—and it appeared to me to be so included, and the jurisdiction over persons settled there was asserted accordingly. Today, I certainly see Vancouver Island included in the Parliamentary limits of British Columbia. For I take the Geographical limits of the Executive authority to be (in the absence of express words restraining me) the limits also of my jurisdiction. Wherever the executive can send a writ, or a Sheriff, or seize an alleged offender, its own Supreme Court must surely teste [sic] the writ, and superintend execution, & keep due watch over the liberty of the subject (as by habeas Corpus, certificate! &c)
But if this be doubtful, and if I require additional authority to act as a judge within the geographical limits of that part of British Columbia which was formerly the Colony of Vancouver Island—How are you to grant it to me?—I mean, so as to be in conformity with the recent instructions, & with the order in Council 1856, & in face of the existing facts, & of the Union proclaimed? The order in Council has already fixed that there shall be a Supreme Court in Vancouver Island, to be styled by a given name, to be holden before one judge, also with a given name & style, and such judge is to [be] appointed in a fixed manner, (viz) by Letters patent under the public Seal of the late colony. Can this Seal be still used? It would surely be an anachronism to do so, now that the colony has ceased to exist. But how are you to interfere without using it? To use any other Seal, or to use this without a proper warrant, would be to act in direct contravention of the Order in Council—But if the Supreme Court of Vancouver Island is still intact, unimpaired, & unaffected by the recent changes, this order in Council must be also still in full force:—each clause of it as binding as ever—least of all in your present conjuncture can those clauses be disregarded which direct and regulate the very creation of the Court & of the office of the Judge. In point of fact, the Order does nothing except create and formalize the Court. The Court has no basis or foundation of authority, except the order in Council, & matters founded on it. The order & the Court must stand or fall together: separately, they have no living existence. If the Court be abolished, the order in Council becomes an obsolete state paper, interesting only as a precedent. If the order has become insensible, or non-obligatory, the Supreme Court of Vancouver Island is a historical reminiscence.
I understand that it appears to yourself, and to the Attorney general, that these instructions and the order in Council of 1856 are logically irreconcileable with the Union Act. I would suggest that it is improper to attempt to carry out instructions according to the advice of anybody who deems them illogical or impracticable. There is another course, of some delicacy, but which seems the only reasonable plan—(viz) to find out (if possible) some person who agrees with the views taken by the instructions: & obtain his suggestions as to the method of putting them in force. Try Mr. Needham himself—he may have changed the opinion he expressed to the Solicitor General. It is possible indeed that the Solicitor General may have misunderstood expressions simply of doubt, or fears that the Supreme Court of Vancouver Island was swept away, for the expression of a definite opinion.
If Mr. Needham’s opinion be taken, it would of course be proper to place before him all the facts and arguments which have influenced or embarassed [sic] yourself in arriving at a result.
It would not of course be necessary to adopt any course so suggested, unless it recommended itself to your own judgment. But if anybody thinks that the instructions can be carried out, I think you have a right to ask him to propose a plan. If nobody suggests what appears a reasonable plan, you have an easy answer to the Secretary of State.
Lest you should think I have relied too much in the latter part of this memorandum upon difficulties of mere form, I would observe 1st. the difficulties primarily arising under the instructions are on forms merely, and on the very forms here noticed. 2nd. Matters of form very often include and depend upon questions of substance: and the difficulty of clothing a proposition in proper words & shape may often be occasioned (and in this instance I think is occasioned) by an error in the proposition itself. In all legal proceedings, the forms adopted are often pregnant with the principles on which they are founded.
(d.) Dispatch from Governor Seymour to the Colonial Secretary,
11 Jan 1867.
At the request of Mr. Joseph Needham, I have the honor to forward a letter which he has addressed to your Lordship respecting the effect which the Union of the two Western Colonies may have had upon the situation of Chief Justice of the Colony of Vancouver Island to which he was appointed by Governor Kennedy on the requisition of a Royal Warrant. Mr. Needham encloses several letters which have passed between him and me on the subject.
- In connexion with Mr. Needham’s communication I have the honor to forward a memorandum prepared by Mr. Begbie, Judge of the Supreme Court, for your Lordship’s consideration, as to his own position under the altered circumstances.
- I enclose further, copy of a petition very numerously signed, presented to me in Victoria and of my reply.
- These papers will shew first that Mr. Needham is of opinion that the proclamation of the Imperial Act of Parliament has not in any way affected his position—which position I would observe is defined in the Order in Council, two local Acts, H. M.’s Warrant, and Governor Kennedy’s commission “as Chief Justice of the Colony of Vancouver Island.” I need not point out to Your Lordship that no such Colony now exists.
- In the second place will be seen the opinion of Mr. Begbie that the Union proclamation abolished Mr. Needham’s situation. That he, Mr. Begbie, is now sole Judge of British Columbia and best entitled to be created Chief Justice of the Amalgamated Colony.
- Thirdly you will observe that I am of opinion, with Mr. Begbie, that the effect of the proclamation of union was, with the Colony of Vancouver to abolish its Chief Justice. Your Lordship will find however that I endeavoured to deal justly with both these Gentlemen. I proposed to appoint Mr. Needham a Judge of the Supreme Court of British Columbia, with precedence in the Courts of the Island of Vancouver. Mr. Begbie’s position to be unchanged with the precedence secured to him on the Main Land. I regret to say that this proposal does not satisfy either of these Gentlemen.
- Mr. Needham, at the time he wrote to Your Lordship, imagined that he had a grievance against me as to the manner in which I communicated to him my opinion as to the effect of the Act of Parliament.
I believe now that he is satisfied with my conduct to him throughout. I would however explain that as it was not in any way proposed to interfere with Mr. Needham’s duties or emoluments, I wrote to him in a friendly manner to ask assistance in arranging matters so as to carry on the public offices in Victoria until the end of the year notwithstanding that Vancouver Island had been absorbed into British Columbia.
I perhaps wrote a little hurriedly in a press of business while very unwell. If I did so I regret it; but subsequent intercourse has quite undone any feeling of dissatisfaction caused by early communications.
There is one point I regret and that is to see that the commission addressed to Mr. Needham was not drafted according to my instructions. I proposed to appoint him a Judge of the Supreme Court of British Columbia having precedence in the courts held in that portion of the Colony called Vancouver Island.
- The arrangement I proposed to make appeared to me to be just to the two officers concerned as well as advantageous to the Colony and I ventured to submit it for your Lordship’s consideration when I was in England. The distaste with which it is received by both Mr. Needham and Mr. Begbie would have rendered it necessary for me to apply formally to your Lordship for instructions had they not taken the initiative in the appeals I enclose.
- Mr. Needham proceeds quite free from interference to hold his civil courts. Should he however continue to refuse to accept any commission from me either as a Judge or a Justice of the Peace, it will not be without the utmost hesitation that I shall issue to him a commission of Oyez and Terminer. There are three cases of Murder for trial in Victoria.
I have the honor &c. &c.
(Signed) F. Seymour
[i] New Westminster British Columbian, March 11,1863.
[ii] This paragraph was subsequently struck out.
[iii] As noted above, Begbie was only designated a “judge” whereas Needham was ” chief justice.”
[iv] Cameron had had no legal training.
[v] This statement is interesting, as it implies that Needham had claimed precedence over Begbie.
[vi] Begbie was appointed in 1858; Needham in 1865.
[vii] This date is obviously incorrect. Its position in the letter-book would suggest that the year should have been 1867.