MHS Transactions, Series 3, Number 25, 1968-69 season
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"Our west never went through a riotous youth; it has few memories to be forgotten. From the first, life has been held sacred and respect has been paid to the law as rigidly as in the East ..."
These words were spoken by Sir Robert Falconer, in 1917, in an address on the theme "The Quality of Canadian Life". [1]
That he could speak them, with truth, of the far west, the west beyond the mountains, was due in large measure to the work of one man-Sir Matthew Baillie Begbie, a Judge of the Colony, and later of the Province, of British Columbia for 36 years.
In 1857 gold was discovered on the Fraser River. Miners, their camp followers, and parasites of both sexes, who had followed the trail of '48 to the California gold strikes stampeded northward to the new gold fields. Thousands swarmed into the territory soon to become the colony of British Columbia where for generations the only white settlers had been a handful of fur traders in the service of Hudson's Bay Company. In 1848, in California, under the impact of gold-hungry hordes, the administration of justice had broken down completely. Organized mobs preyed on law-abiding citizens. The law was deliberately and openly flouted by men who carried the only authority they acknowledged on their hips. That this same unhappy situation did not prevail ten years later in British Columbia was due largely to the courage, determination and strength of character of Matthew Baillie Begbie, who was appointed the first judge of the colony of British Columbia as soon as the seriousness of the situation on the West Coast became known in London. He came out from England, at the age of 39, and took the oath of his office in the Hudson's Bay Company's fort at Fort Langley, on November 19, 1858. Immediately, he set himself to the task of establishing the rule of law in the vast territory over which he had been given jurisdiction. He faced this task single-handed but soon proved himself equal to it. In one of his first cases he convicted an American ruffian on a charge of stabbing. In sentencing him to three years in prison, he made it known that the Queen's writ ran in British Columbia. "I am glad to find," he said, "that your case has drawn so many of your compatriots into the Court. I am given to understand that the mining class of the Western states think that they have liberty to defy the law of the land and govern it to suit themselves by the bowie knife and the Colt's pistol. You, prisoner, are a good representative of that class, and I am told that there are a good many of your type within the sound of my voice. Now, I have been appointed a Judge to interpret and administer the law in this country. We have a law which prohibits the carrying and use of offensive weapons, and under the British flag there is no necessity for them amongst citizens. Let me tell those who are in court as well as those outside that any who carry such weapons will be dealt with to the full limit of the law." [2]
When Judge Begbie made it clear that he meant business, that, in his ample and dignified person, British law had come to British Columbia, that punishment would certainly be visited on the lawbreaker, many of the lawless element left the colony, without ceremony, for climates more congenial to their wayward natures; others put away their bowie knives and Colt's pistols; and the colony of British Columbia, after a normal period of adjustment, settled down to an orderly way of life.
There is some doubt as to where Matthew Baillie Begbie was born. His birthplace is generally given as Edinburgh. But in a lecture which he gave on September 12, 1863, on the topic "Reminiscences of European Travel," he himself stated that he had been born in the Tropics. [3] He did not specify in what part of the tropics, but it must have been in some part of the British Empire where British troops were stationed. The year of his birth was 1819. On both sides of his house, he came from military stock. He was a son of Colonel Thomas Stirling Begbie, who had served under Wellington during the Peninsular Wars. His maternal grandfather was General Baillie, another veteran of the campaigns against Napoleon.
His childhood was an unsettled one. He once said that he could not remember a time, during his early years, when he was not travelling. His first recollection, he recalled, was of his being on a Dutch ship bound for Antwerp. [4] His first teacher was a sergeant in his father's regiment. A bright student, he soon outgrew his teacher. At about this time, Colonel Begbie inherited an estate in Guernsey and his family was then able to enjoy a more settled way of life. Begbie showed an aptitude for mathematics and studied under a senior wrangler from Cambridge. At Guernsey College, he won a scholarship for St. Peter's College at Cambridge. His ambition at this stage was to win a life fellowship. He failed in this ambition because he did not concentrate on his studies. He had many irons in the fire during his university career. He indulged in sports, drama and music. He was, as Sydney G. Pettit declares, a "bon vivant who became the life of many a charmed circle." [5] He belonged to a great number of clubs, one of which he founded himself. To become a member of this club an applicant had to be taller than Begbie, and as he stood six feet five inches in height, the membership must have been limited.
Begbie received the degree of B.A. in 1841. Three years later he took his M.A. and, in the same year, was called to the bar at Lincoln's Inn. He did not make great headway at the bar. At Cambridge, he had studied shorthand, and when briefs did not come to him, he became a reporter for the Law Times. Later he was employed as special shorthand clerk to the Lord Chancellor. When he was in the middle course of his life, the offer of a judgeship, in a distant colony, at £800 a year, came to him. It was a position which he accepted gladly; and as he said, in later years, he never regretted doing so. [6]
When gold was discovered on the Fraser River, James (later Sir James) Douglas was Governor of the Colony of Vancouver Island. He represented both the British Crown and Hudson's Bay Company. His jurisdiction extended only to Vancouver Island, but lack of jurisdiction did not deter him from keeping a watchful eye over the affairs of the mainland and it was well that he did. When he saw trouble coming on the mainland, he sent worried dispatches to Sir Edward Bulwer Lytton, the novelist turned politician, who was then Secretary for the Colonies. Sir Edward responded immediately. In August, 1858, he introduced a bill in Parliament, constituting the Colony of British Columbia. He then looked about for a suitable man to appoint as the Colony's first judge. No mere legal scholar, no fashionable barrister who charmed sophisticated juries with his eloquence would do. He needed a man of a different stamp, a man of hard metal - one, in his own words, "who could, if necessary, truss a murderer up and hang him from the nearest tree." [7] In his search for this man, he consulted Sir Hugh Cairns, the SolicitorGeneral. Sir Hugh told him of Begbie, who had been his fellow student at Lincoln's Inn. Begbie was given an interview. His imposing appearance, his military bearing. and direct forceful manner, were qualities which insured him the position. He was given a patent from the Queen appointing him "a Judge in our Colony of British Columbia." [8]
A true son of Empire, Begbie was imbued with the virtues usually associated, in Victorian times, with the English public schools-a sense of mission, a dedication to the task to be done, a determination to keep a stiff upper-lip though the heavens fall, and never to let the side down, cost what it might. These old-fashioned virtues are today the subject of mirth and merriment. But one fact is clear, without them, Begbie would not have been able to accomplish what he did. They sustained him, en his solitary way, through many a dangerous and difficult situation.
He was expected to do more than sit as a judge. Writing to Douglas, Lytton remarked: "Although invested with the very important office of judge, (Begbie) will nevertheless have the kindness, for the present at least, to lend you his general aid for the compilation of the necessary laws." [9] Douglas and Begbie were men of the same stamp, autocratic, impatient of delays and scornful of subtleties, not too enamoured of the laborious processes of government, prepared to cut through red tape to get things done. The governor was well pleased with the judge. He wrote to the Earl of Newcastle on January 26, 1860: "The day after the arrival of Mr. Begbie, the judge, he accompanied me to British Columbia, and after his return to Victoria, he was of the greatest assistance to me in discharging the functions of attorney-general, which office he kindly fulfilled with the concurrence of her majesty's government. Since the arrival at Victoria of the attorney-general, Mr. Begbie has passed long periods in and has been on circuit over the greater portion of British Columbia, and his personal communications to me upon his return have been most valuable, and have assisted me materially in framing laws, and in adapting the general system of government to the actual requirements of the people." [10]
From these words of Douglas, it is evident that, in British Columbia's infancy, there was no nonsense about keeping the powers of the judiciary separate from those of the executive. This suited well with Begbie's general outlook. He did not have an unqualified enthusiasm for democracy. Harold Begbie, the novelist and political journalist who sometimes wrote under the pseudonym "the Gentleman with the Duster," who was of the same family, once said that he believed in the trained, cultured and incorruptible gentleman as statesman. Begbie was of the same belief. The danger, as he saw it, which confronted the democratic way of life, might be summed up in these words of Harold Begbie's: "More and more the professional politician, the narrow man, the man of the loud voice and the one idea, the man who has few instincts of honesty in his mind and no movement of high and disinterested patriotism in his soul, will press himself upon the attention of democracy and, by intimidating his leaders and brow-beating his opponents, force his way onward to office." [11]
After his swearing in as a judge, Begbie's first official act was to promulgate rules of court. A person who had been called to the bar or admitted as a solicitor in the United Kingdom, or who had taken the degree of Doctor of Laws from a British University, or who had studied as a barrister or solicitor in British Columbia or Vancouver Island, could have audience in his court. On this rule only one person had the necessary qualifications. So a modification was soon introduced, granting permission to persons of good repute, who had been called as barristers or admitted as solicitors in any other part of the British Dominions, or in any of the United States of America, to practise in the Court until June 30, 1859. [12]
In a letter to Douglas dated December 15, 1858, Begbie deplored the fact that there was not a sufficient supply of counsel which made it necessary for him to play several roles in the conduct of a trial. [13] Frequently, when an accused was not represented, Begbie would take over the cross-examination of crown witnesses. In one such case, an accused appeared before him on a charge of burglary. Begbie cautioned him to keep his mouth shut and from the bench conducted his defence. A police constable, in giving evidence, said that he had seen the accused leaving the house which had been broken into. Forgetting the Judge's advice the accused shouted, "You didn't, for I'd left the house before you came in sight." Turning to the accused the Judge said, "There, did I not tell you to hold your tongue." [14] Such occurrences as this were all in the day's work for Judge Begbie.
A few dates, a few facts and figures, may be helpful as a background against which to set Begbie's career as a judge.
The colony of Vancouver Island was formed in 1849. James Douglas became its governor in 1851. The colony of British Columbia was formed in 1858, with James Douglas as its first governor. He took his oath of office on the same day on which Begbie was sworn in as a judge. The two crown colonies of Vancouver Island and the Mainland British Columbia were united in 1866 under the name "British Columbia." At the time of union, Hon. Joseph Needham was Chief Justice of Vancouver Island, and Begbie was the only judge on the Mainland. There was some controversy as to whether Needham or Begbie should become Chief Justice of the United Colonies. Begbie wrote a memorandum to the Earl of Carnarvon, on December 28, 1866, on the subject, which shows him in a most favourable light. "I shall venture to say," he wrote, "that no English judge has perhaps ever been placed so utterly and 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 ... 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 pre-eminence over me except in the accident of nomenclature." [15] Under the Supreme Courts Ordinance, 1869, two courts were continued-the Supreme Court of Vancouver Island and the Supreme Court of the Mainland of British Columbia. Needham presided over one Court as Chief Justice and Begbie over the other in the same capacity. Provision was made for the merging of the two courts into one court to be called "The Supreme Court of British Columbia," upon the death or resignation of either of the sitting judges. Chief Justice Needham resigned on March 29, 1870. On the same date Hon. Matthew Baillie Begbie vas sworn in as the first Chief Justice of British Columbia. On July 20, 1871, the Colony of British Columbia entered the Canadian Confederation and became the Province of British Columbia. Begbie continued as Chief Justice of the Province until his death in June, 1894. He was given a Knighthood on November 26, 1874. [16] Until 1871, the only appeal from his decisions was to the Privy Council, which could be reached by direct communication, only by a long and tiresome journey around Cape Horn. [17]
The historian Bancroft-not George Bancroft, but the lesser light, Hubert Howe Bancroft, who operated a 'history-factory' above his bookstore in San Francisco and who fathered thirty-nine thick volumes met Judge Begbie when the Judge was travelling on circuit, taking a rough-and-ready justice to the people who inhabited the scanty settlements, or who dwelt in the hinterlands, of his vast judicial domain - a domain estimated by Bancroft to measure 500 miles in either direction. Perhaps no one has paid Begbie greater tribute than Bancroft. Here are his words: "Probably more than to any one person the commonwealth of British Columbia owes obligation to Mr. Begbie for its healthful ordinances, for the wise and liberal provisions of its government, and for the almost unbroken reign of peace and order during his long term of office. More than any person I have met in my long historical pilgrimage from Darien to Alaska, he was the incarnation of justice, the embodiment of that restraining influence which society is so strangely forced to place upon its members, a man most truly sans peoir et sans reproche. Setting aside his early training, his education, which gave him great advantage over his associates, and placing him upon the plane on inherent manhood, there was none to match him. Physically as fearless as Tod, McTavish, or Yale, in that highest attribute of humanity, moral courage, he far surpassed Douglas." [18]
This was the man, as seen through the eyes of Hubert Howe Bancroft, who established law and authority in British Columbia, travelling thousands of miles, in all weathers and seasons, over trails, as he once wrote to Douglas, that were "impassible for any animal except a goat or a dog - or a man." [19]
When he presided over a court, Judge Begbie never lowered the barriers of form. He expected, and he was generally given, the respect due to his position. In an interesting account of Begbie's life and career, Selwyn Banwell makes this point: "It has been remarked," he wrote, "by more than one eye-witness that though Judge Begbie had sometimes to sit in strange circumstances, at unusual times and in incongruous surroundings (he frequently held Court in a log shack or in the open air, in a clearing in the forest, sitting in his saddle as upon a bench of justice), nevertheless the serene dignity and formal air of an English High Court of Justice seemed to pervade the whole proceedings. [20]
Though he was a Scotsman, Begbie had been reared in England, and had acquired the middle-class Englishman's love of good form. He was the sort of man who would wear a wing collar and a black tie to dinner on a desert island. He never held court without wearing his robes of office. The outer trappings meant much to him. The Western Law Times contains a suggestion that, at one stage, at his insistence, barristers wore wigs, when they appeared in the Courts of British Columbia. [21]
Many legends still persist about Begbie. It is alleged that, when he arrived in a new district, he would take a walk around the area, looking for trees suitable to serve as gallow-trees. He is alleged to have hanged one prisoner by his own hand. A man was convicted of murder. The sheriff was not available to act as hangman. The Judge made it known that the hanging would proceed according to schedule. On the day appointed, at ten o'clock in the morning, Begbie entered the prisoner's cell, led him to the gallows, and performed the sheriff's task. [22]
Frankly, I do not believe this story. It is not in character. Begbie was not a cruel man. Sydney G. Pettit claims that Begbie did not follow his father's calling as a soldier because of his deep reverence for human life. [23]
Judge Begbie came to be known in certain circles as the hanging judge. Though he never deserved this name, there can be no doubt that he deliberately set out to build up an image for himself. He wanted to strike fear into those who might be inclined to treat the law lightly, particularly if they thought they could get away with it. His remarks from the bench in the Gilchrist case can be interpreted in no other light.
Gilchrist was an American desperado. On September 23, 1862, he was enjoying a poker game with some friends in a saloon at Williams Lake. Two miners were sitting close to the gaming table. An Irishman came upon the scene and began to play against Gilchrist. They quarrelled and the Irishman went for his gun. Gilchrist was faster on the draw. He got his gun out first and shot, not the Irishman, but one of the miners. There was a suggestion that the whole incident had been staged. Gilchrist wanted to shoot one of the miners, with whom he had an old grudge, and wanted to make the thing look like an accident. [24]
At Gilchrist's trial on a charge of murder, Judge Begbie summed up for a conviction. In the circumstances, he told the jury that the only verdict which it could return was one of murder. The jury contained several of Gilchrist's cronies. It brought in a verdict of manslaughter, whereupon, the judge launched forth in these words: "Prisoner: it is far from a pleasant duty for me to have to sentence you only to imprisonment for life ... Your crime was unmitigated, diabolical murder. You deserve to be hanged! Had the jury performed their duty I might now have the painful satisfaction of condemning you to death, and you, gentlemen of the jury, you are a pack of Dallas horse thieves, and permit me to say, it would give me great pleasure to see you hanged, each and every one of you, for declaring a murderer guilty only of manslaughter." [25]
These words were hardly appropriate to the occasion. And Judge Begbie well knew it. In an account of the trial, which he sent to Douglas, Judge Begbie wrote: "This wo(ul)d have been of course "death by misadventure" in California - in England Gilchrist wo(ul)d probably have been hung - in British Columbia it is not perhaps an altogether unsatisfactory result that Gilchrist was convicted of manslaughter and sentenced to penal servitude for life, while his "friends" (who are well known to the police, and to me) have left the Colony and are not, I think, likely to return." [26]
Begbie's tirade was not directed primarily at the prisoner, or the jury, but at the rougher element of the community, the undesirables, whom Begbie hoped to persuade to take the road back from whence they came.
Many stories used to circulate about Begbie's disapproval of the verdicts brought in by juries. In one case, an accused was charged with sandbagging an inoffensive citizen. In the teeth of strong evidence of his guilt, the jury returned a verdict of "not guilty." In discharging the accused, Bebgie told him that he would be doing a public service if he sandbagged every member of the jury for bringing in a perverse verdict. [27]
On one occasion he was able to hold a jury in line. After finishing his sittings at the spring assizes in Barkerville, he asked the clerk of the hotel at which he was staying for his account. The clerk spoke to the proprietor of the hotel and Begbie overheard the proprietor say "Sock it to him." At the next assizes in Barkerville, the hotel proprietor was foreman of the jury. In his charge to the jury, Begbie turned a fierce eye on the foreman and said: "If, gentlemen, you have a reasonable doubt as to the prisoner's guilt, give him the benefit of it, but if the circumstances you have heard related permit of only one solution - that the prisoner is the guilty man - then, Sock it to him, Sock it to him." The foreman got the message and held out until the other members of the jury agreed to a verdict of guilty. He was heard to say after the case: "He meant it for me, and must have heard what I said when he was up here last time." [28]
His outspokenness from the bench did not endear Begbie to all manner of men. He frequently received threatening letters telling him that his life would be forfeited if he dared to sentence some popular desperado to prison. He would read such letters from the bench and invited his correspondent to make good his threat. On one occasion, he was seated on the second storey of a hotel veranda and overhead a group of ruffians making plans to shoot him as he left town. He listened for a while, then went into the hotel and obtained a pail of dirty water, and returning with it, he emptied it over the heads of the conspirators. [29]
A man named Lowmaster lost a suit before Begbie. He was so satisfied that an injustice had been done to him that he went to Victoria to try to have the judge dismissed from the bench. He received short shift in Victoria and returned home. Some time later he came upon Begbie who was fishing on the banks of a small stream. "Good morning, Mr. Lowmaster," said the judge.
"Good morning, Judge," replied Lowmaster.
"How is it that I have not seen you about lately?" enquired Begbie. "You don't seem inclined to speak to me. How is it?"
"Well, sir," was the answer, "as I tried to get you removed from the Bench, I thought that you might have hard feelings towards me."
"Nonsense," said the Judge, "You know I am fond of fishing, and when I throw the line, sometimes while holding the rod I find a mosquito light on my hand; I brush it away, and then another comes, and I let it alone; I say never mind, he wants a dig at the old Judge." [30]
The Judge had many experiences as he travelled about the country which made him aware that he did not enjoy a universal popularity. One night, he got caught in a rainstorm. A miner's cabin stood close at hand. He stopped to borrow a coat. The miner, a deserter from the Southern army, handed him a Confederate greatcoat, with these words of caution: "I'll lend it to you, stranger, but be careful. That old fool Begbie is at Richfield, and if he catches you with the coat you will get six months." [31]
Reminiscing, in 1946, on the topic "Judges of Ye Olden Time," Hon. Denis Murphy had this to say about Judge Begbie, 'the most colorful of all the early judges:' "Readers ... have presumably heard of his verbal castigations of juries, civil and criminal, who brought in verdicts not in accordance with his views of the evidence; of his clashes with learned counsel arguing before him: of his encounters with newspaper editors and politicians. He jailed, for contempt, an editor who afterwards became premier of the province (Mr. John Robson of the British Columbian). He disbarred, but immediately reinstated an ex-premier and subsequently a judge (Hon. John Foster McCreight). He delayed for some years the call to the bar of another future premier and judge (Hon. George Anthony Walkem). All lawyers know there are two sides to every question. Sir Matthew could, doubtless, put up a strong case for himself in reference to these occurrences." [32]
John Robson was a crusading editor. He set himself up as the watchdog of civil liberties in the Colony of British Columbia. To him, Begbie was 'the tyrant judge.' He advocated for many years the establishment of a Court of Appeal so that Begbie's judicial acts could be reviewed. He collided head-on with the Judge over the Cottonwood Scandal.
Speculation in land in the Colony of British Columbia offered an easy road to riches. If one had inside information, as to where a new settlement was to be located, he could buy up building lots and hold them until they increased in value. Governor Douglas held strong views against public officials speculating in land. A rumor was circulated that Judge Begbie had an interest in a mining claim in the Caribou District. Douglas caused a letter to be written to him enquiring as to whether this rumor had any substance. Begbie was indignant ... "I entirely deny the right of any man." he replied. "(except in a suit properly instituted) to have any answers from me at all concerning my own private property - either in or out of this colony - and I reserve to myself the entire right of answering or refusing to answer any questions of the above character for the future." [33] He then stated categorically that he had no interest in a mining claim anywhere in the Colony. Douglas accepted this assurance from the Judge. But the rumors persisted. On November 26, 1862, an anonymous letter appeared in the British Columbian claiming that Begbie had accepted a gift of 20 acres of land at Cottonwood from Dud Moreland as a quid pro quo for issuing an injunction which enabled Moreland to obtain a certificate of improvement on a substantial tract of land in the area. The writer of the letter was identified as Rev. Arthur Browning. a man who suffered from an excess of self-righteousness. At the next session of his court, Judge Begbie summoned John Robson, the editor of the British Columbian, before him to show cause why he should not be committed to prison for contempt. Robson told the Judge that the writer of the letter was not available for consultation, that he himself knew nothing of the facts, but 'if' they were not true he regretted publishing the letter.
Judge Begbie held that the use of the word 'if' aggravated the contempt and he committed Robson to prison.
A public meeting was called to protest the Judge's action. Resolutions were passed and sent to the Secretary of State in London, requesting Begbie's removal from the bench.
From his prison cell, Robson wrote an editorial entitled "A Voice from the Dungeon." "Fellow colonists," it began, "We greet you from our dungeon. Startled by the wild shrieks of a dying maniac on the one hand, and the clanking of the murderer's chains on the other, while the foul and scant atmosphere of a cell, loaded with noxious effluvia from the filthy dens occupied by lunatics, renders life almost intolerable, our readers will overlook any incoherency or want of connected thought in our writings ... The press of British Columbia is virtually enslaved. There are two ways of being enslaved - that of Spartacus and that of Epictetus. The one breaks his chains; the other shows his soul. When the fettered writer cannot have recourse to the first method, the second remains for him ..."
Commenting on this editorial, Sydney G. Pettit points out that it appeared on the front page of Robson's paper, but that if a reader had turned to page 3 of the same issue, he might have read these words: "Liberated. Since writing the article on our first page we have been discharged from custody ..." [34]
This is what had happened. After suffering imprisonment for five days, Robson asked to be taken before Judge Begbie, to whom he read a prepared statement in which he offered the Judge an apology, not an unqualified apology, but in the words of F. W. Howay, "one of those casuistical apologies, so frequent in libel actions." [35]
Judge Howay was not clear in his own mind as to the exact nature of the transaction in which Judge Begbie was involved. He suggested that the Judge's hands might not be too clean. Professor Pettit who has made a full analysis of the events which came to be known as the Cottonwood Scandal has these final words to say: "On the whole, it seems that the evidence for (Judge Begbie) is stronger than that brought against him. But when circumstantial evidence is involved and important data is not available, there is in this case, as in all others, a certain residue of uncertainty." [36]
The rule in a court of law is that he who asserts an affirmative must prove it. No one ever affirmatively proved that Judge Begbie's honor was involved in the events at Cottonwood. He did acquire 20 acres of land in that area for which he paid the current purchase price. The logical explanation for his purchase is that he intended to build himself a house so that he could enjoy more comfort while travelling on circuit.
In writing of his travels in the Cariboo, he once said: "The climate in the Cariboo is at times exceedingly wet, as in all high mountainous regions - and it is not unusual to have torrents of rain for a week together almost without intermission." He went on to say that he lived and worked in a tent ("a single tent 15 ell size, of the Hudson's Bay Co.") which could not long resist the rain so that his papers, his books and his wearing apparel could not be kept dry. It is small wonder that he wanted to provide himself with better living and working conditions in the Cariboo. [37]
What about his committal of Robson? In law he was on sound ground. Sir John Fox opens his book on Contempt of Court with this sentence: "Rules for preserving discipline, essential to the administration of justice, came into existence with the law itself, and Contempt of Court has been a recognized phrase in English law from the twelfth century to the present time." But there was a wider aspect in Beggbie's quarrel with Robson than the strictly legal one. Sometimes a Judge does well to heed the advice of the London bargee who, when asked why he let his wife beat him without striking her back, said: "It pleases she, and it don't hurt me." Though Robson may have been guilty of the form of contempt known as "scandalising a Court or a Judge," by proceeding as he did Begbie lost more than he gained.
In his brush with John Foster McCreight, Begbie showed himself in a poor light. It occurred during, the hearing of the second Crawford case in New Westminster, in December 1862, [38] as Robert Crawford was a trucker and trader from San Francisco. He had a brother John P. Crawford, also engaged in similar pursuits. Robert Crawford entered into a contract with a freighter of goods named G. B. Wright. The contract was in these unambiguous words and was written by Wright: "Agreed with R. Crawford Jr. to carry goods for him from Douglas to Lillooet at nine cents, per pound, to wait sixty days after delivery at Lillooet for pay. If freights fall, to come down in price."
Wright fell down on his deliveries and Crawford could not pay the contract price. Wright applied in the County Court at Lillooet for a writ for the arrest of both Crawfords for debt. Robert Crawford was arrested on September 8 and was held in custody for 84 days. His brother was arrested on September 27 and remained in custody for 66 days. The Crawfords engaged the services of George Anthony Walkem, a member of the bars of both Upper and Lower Canada, but not then a member of the British Columbia bar. Walkem's passage-at-arms with Judge Begbie will be related later.
Wright's case came on for trial before Judge Begbie on October 15 and 16, 1862.
The defence raised in answer to Wright's claim was twofold. First, it was sought to establish that John P. Crawford was not a party to the contract. Wright was asked to produce his contract. He had added in different coloured ink the words "&- brother" and made other changes in the contract to make it appear that he had been dealing with both Crawfords. The Judge examined the contract, noted the changes, said they were of little consequence and that Wright could no doubt offer a good explanation for having made them. Wright admitted having made the changes and Judge Begbie told the jury that this admission reflected to Wright's credit.
The second allegation of the defence was that Robert Crawford had a claim against Wright for lost and damaged goods larger than the amount in dispute before the court.
In his charge to the jury, Judge Begbie did not state the issues clearly. Indeed, there were delicate points of law involved in the case which he did not, or he could not, explain. John Robson was not silent in the matter. On his editorial page, he declared that the Judge had shown a decided bias in favour of the plaintiff. Sydney G. Pettit, who has made a careful study of the records, gives this opinion: "What laid Judge Begbie open to criticism was not partiality so much as a lack of experience and knowledge." [39]
The jury gave Wright a verdict of $9,500 against both brothers. Judge Begbie committed them to prison until they paid the judgment, or proved themselves to be bankrupt. Debtors enjoyed no favours in the law in those days.
Thus ended the first Crawford case. They made an application for their release from custody, contending that the process under which they had been arrested was illegal. It would be difficult to find in the records of any court a more illegal proceeding. First, Wright's affidavit, on which the writ of arrest was based was false. Second, the procedure invoked, that of an arrest for debt, was available only when there was reason for suspecting that the alleged debtor would flee the jurisdiction of the court. And third, the official who issued the writ did not have legal authority to do so.
Judge Begbie overruled all these points and held the arrest and imprisonment of the Crawfords to be lawful.
When they launched proceedings against Wright for breach of contract, the Crawfords were released from custody. Professor Pettit states that Judge Begbie "informed them that their arrest and imprisonment had been a mistake." [40]
The second round of the Crawford affair opened on December 6 and continued for eleven days. The Crawfords were represented by David Babington Ring and John Foster McCreight; Wright by Hopson Pinckney Walker and George Hunter Cary. Junior Counsel opened the case for the plaintiffs. He suggested that Wright's conduct left much to be desired. The Judge stopped him, stating with deliberate emphasis that his imputations were disgraceful. McCreight stood his ground, replying that he did not need Begbie to teach him his duty. The Judge appealed to Ring, asking him to take over the case from his junior. Ring told him that he associated himself completely with his junior's remarks. Begbie let the incident drop.
Judge Begbie must have had several off-days during the second Crawford trial. Certainly, he had left his judicial manners at home. He forgot himself to the extent of saying to Ring, when he disputed a legal point with Walker: "Sit down, Mr. Ring. Mr. Walker has forgot more than you ever knew." [41] Such judicial impropriety provided powerful ammunition for the editor of the British Columbian.
When the plaintiff's case had been put in, Judge Begbie declared that he was granting a non-suit, which meant, in effect, he held that the Crawfords had not made out a case for Wright to answer. Ring was on his feet in a flash and, in mighty encounter of legal wits, he emerged triumphant. At one stage, Begbie is reported to have said: "Really, Mr. Ring, I do not know how to stop you, unless I order you to be removed from Court."
Begbie finally offered an apology to Ring in open court. Ring refused to accept this apology unless his junior was included in it. "McCreight, however," reports Professor Pettit, "was not prepared to accept an apology. He jumped to his feet and declared that he had never in his whole life had to endure so many insults, and that he found it inexpressibly irksome to have anything to do in a court where the Judge presided. The Judge would not dare to use the language outside the court that he used inside it." [42]
When the court had heard Wright's evidence in answer to the Crawfords' case, Judge Begbie charged the jury. He was very brief.
The jury was out for twenty-eight hours in the endeavour to reach a verdict. Finally, the foreman reported that they could not come to an agreement. Ring then asked the Judge to charge the jury on the law and to clear up for them any point on which they might be in doubt. Begbie refused this request. He dismissed the jury and the Crawfords were left to pay costs of £1,810.
At the conclusion of the case. Ring asked the Registrar of the Supreme Court if he had the rolls of the Count in his possession. When the Registrar replied that he had. Ring requested him to strike his name off the rolls. McCreight joined him in this request. [43] Thus it came about, as Hon. Denis Murphy recalled, that an ex-premier and later a judge forfeited his right to practise at the Bar of British Columbia.
After their second case. the Crawfords were returned to jail. They were given their freedom «-hen they decided to launch a suit against Wright in the Supreme Court of Vancouver Island, a court over which Judge Begbie had no control. This suit never came to trial. The Daily British Colonist reported, on April 15, 1863, that it had been settled amicably.
Let us now return to Hon. George Anthony Walkem.
Judge Begbie had a decided preference for lawyers trained in England. As Margaret A. Ormsby points out, "During his first year in the Gold Colony, he permitted American lawyers to appear in court to defend American miners, but he refused until 1863 to admit to the bar lawyers trained in British Colonies." [44] Already a member of two bars, Walkem sought to take his call to the bar of British Columbia, by petition dated September 30, 1862. Judge Begbie turned him down. In October, Walkem undertook to appear for the Crawford brothers in their first legal battle with Wright. When the trial opened, he took his place at the table reserved for Counsel. Begbie ordered him to find another seat.
Walkem was one of those rough and ready men with a passion for elbow-room, who prefer life on the frontier to life in a settled community. He did not take kindly to Judge Begbie's order and an angry scene took place in the courtroom. All through the trial, Walkem was handicapped in his handling of the case by the Judge's uncompromising attitude to him. Wymond W. Walkem, in a book, which he published in 1914, maintained that Judge Begbie deliberately delayed his brother's call to the bar because George Anthony Walkem had challenged his authority in the Crawford case. [45] Begbie did not like to have his authority challenged but he had other reasons for disliking Walkem. Begbie was not constellated, in Charles Lamb's phrase, "under Aquarius, that watery sign." His bottle was not dry; but he hated excess, and he felt that Walkem carried his convivial habits too far.
In February, 1863, a petition was sent to Governor Douglas, praying for Walkem's call to the bar. John Robson took up his cause and thundered against Begbie "as a tyrant, an incompetent, and as a man who deliberately excluded Canadian barristers from practice in order that a clique of English lawyers might grow rich at the expense of the public." [46]
Douglas forwarded the petition to the Secretary of State for the Colonies. In reply the Secretary suggested that Walkem be called to the bar. Begbie still demurred, claiming that, under the existing regulations, he did not have legal authority to call Walkem. By the Legal Professions Act, which was passed by the Government of British Columbia, in June, 1863, the law was amended to make it clear that lawyers trained in Canada were qualified to join the B.C. bar. Five months later, on November 20 Walkem was given his call. On the same day. Begbie received a letter from the Secretary of State for the Colonies, requesting information as to what progress had been made in the Walkem matter. It is an open question as to whether this letter was the deciding factor in prompting Begbie to call Walkem to the bar. [47]
But Begbie was not always a judicial autocrat. He had his mellower moods. Two brothers once appeared before him as litigants. Their father had died leaving them a farm of 160 acres which they were to divide equally between themselves. They could not agree on a division. As the dispute unfolded before him, one brother struck the judge as being the more unreasonable of the two. He disliked family quarrels. "Now," he said, "I will decide the matter in a minute." Handing a sketch of the farm to the aggressive brother, he said: "You shall draw a line on the map before us dividing the land into two parts, and then your brother shall have his choice." "Very good, sir, I will do it," was the reply, and the man set about the task. He made slow progress and finally perspiration dropped from his forehead onto the map. "What are you crying for?" asked the judge. "I am not crying, but I'll be jiggered if I know where to draw the line." The Judge kept him at the task and eventually he divided the farm into two parts. His brother made his choice in five seconds - and the case was over. [48]
Hon. Denis Murphy recalled a case which came before Begbie in his later years in which the amount in dispute was five dollars. The litigants were not represented by Counsel. The trial developed into a free-for-all, with the plaintiff and defendant challenging each other to physical combat. Finally, Begbie called for an end to the verbal wrangling. He suggested that the parties decide their suit by tossing a coin. He said that if this suggestion was not followed he was going to pay the five dollars out of his own pocket. This ended the matter. At the Judge's insistence the parties shook hands with each other and left the court apparently quite satisfied with the day's proceedings. [49]
Much has been written about Begbie's lack of legal knowledge. For example, Bruce Hutchison offers this observation which borders on the ridiculous: "In profession he (Begbie) was supposed to be a lawyer, though he knew little law." [50]
Even Professor Pettit seems to entertain some doubt as to Begbie's professional qualifications. "It seems that he never cared for the law," asserts the Professor. "His aptitude and preference was for mathematics, a discipline that called for abstract speculation and analysis. Law, on the other hand, was founded on statutes and precedents. It teemed with quids and quiddities that seemed to Begbie to be little more than a hopeless jumble of nonsense. He always insisted that it was a waste of time to read statutes and precedents, as they were both confusing and confused. He may, of course. have been rationalizing his own personal distaste for the subject." [51]
Proof that Begbie did know considerable law, that he did cite precedents in his judgments, that he did show himself to be familiar with statute law, is to be found in the first three volumes of the British Columbia Law Reports.
Circumstances forced Begbie to play a lone hand for many years. During this time he fell into bad habits as a judge and he never succeeded completely in correcting these habits. As Archer Martin wrote at the time of the Chief Justice's death: "Coming to British Columbia as he did at an early period, about forty years ago, he found himself somewhat in the position of a dictator, and this fact mitigated somewhat against his administration of justice at a later and more formal period." [52] In other words, Begbie had worn Caesar's laurel crown for too long. But this is not to say that he was but little versed in the law.
No man of good sense would ascribe unlimited virtue to any human institution, least of all to an institution as necessary and practical as the law. And yet the law does have its points. Large sections of it are nothing but ordinary commonsense - crystallized common sense, as the lawyers of a more complacent era were wont to say. These sections of the law made a great appeal to Chief Justice Begbie. As a judge, he dealt with fundamentals, not refinements. His decisions were based on broad general principles, not on thorny technical points.
But when I say this, let me make myself clear. When a lawyer wants to say something nice about a judge, and he finds it difficult, without doing violence to his conscience, he will invariably play some variation of this ancient theme: "Judge So-and-So might not know much law, but he is a man of sturdy commonsense." When a layman hears words such as these, he may take it that the judge to whom reference is being made is not a judge of the first, or even of the second, order.
He is a judge of the order of the politician to whom Dr. Johnson referred as one who filled out a chair adequately. When I said that the commonsense of the law made a great appeal to Chief Justice Begbie, I did not mean to put him into this category. So much nonsense has been written about his legal attainments that I want to make myself absolutely clear on this point. My reading of his reported judgments has convinced me that he was a man of some stature as a lawyer. He had delved into the books to some depth. His commonsense was underpinned by an adequate acquaintance with the law.
All writing, as Joseph Conrad contended, is a form of spiritual autobiography. This statement is particularly true of the judgments of a judge. The man always stands behind the pen of the judge. If you would know a judge, read his judgments. In his written pages, he can find no hiding place. He stands revealed for what he is - a giant, or a dwarf, or a man of ordinary size.
Chief Justice Begbie stands revealed in his judgments. Let me, therefore, discuss a half-a-dozen of them. I do not intend to refer to any case that bristles with difficult legal points.
Here is the first case. A child was dismissed from school by her teacher. Her father sought an order of the court compelling the teacher to re-instate the child. The legal point decided by the court was this: "Mandamus does not lie to force a teacher, against his judgment formed bona fide and on reasonable grounds, to keep a pupil at his school, but the Court will, if necessary, compel him to hold a proper inquiry." This decision recognizes that people cannot rush to the court with their every problem. There are areas in human relations into which the court must not trespass. In delivering his judgment, Chief Justice Begbie said these words: "If the teacher does not give satisfaction to the trustees, they will relieve her of her duties. If the trustees do not give satisfaction to their constituents they will in their turn be removed. Speaking generally, if the teacher behaves unjustifiably to a pupil or the trustees to a teacher, the remedy is, I think, in damages. The Court will not interfere by mandamus to compel a teacher against his real opinion to retain any particular pupil or the trustees to retain any particular teacher whom they have grounds for disapproving and do disapprove any more than it will compel examiners to pass any particular candidate with whose attainments they are really dissatisfied. To interfere as prayed would be to destroy all discipline." [53]
Here is case No. 2. In 1888, in Victoria, a Chinese sought a license to do business as a pawnbroker. The City Council issued an order that no paw broking licenses were to be issued to Chinese. The matter was taken to court. It was argued for the City that the business of pawnbroking was not a suitable business for Chinese. Chief Justice Begbie said, in effect, to the Corporation of Victoria, "Give the man his license."
"It is not uninteresting to note," he wrote in his judgment, "the uniformity with which the same events result from the same principles, although in very different parts of the world. Victoria does not possess a monopoly of race jealousy. In the French colony of Cayenne, the Town Council recently handicapped the superior capacities of the Chinaman by imposing on merchants of that empire an extra tax of $300 per annum, deeming it also expedient to handicap English and German traders by a surtax of $200 on them. But on an appeal to the Courts at Paris, all these impositions were declared null on the very same principles as those on which the Courts (here) insisted ... viz., as being infringements at once of personal liberty, and of the equality of all men before the law, and also negation of international rights." [54]
Please remember that these words, which have a modern ring, were spoken in a British Columbia Court in 1888.
I pass to the third case. In this case, a man named Hoste sued the Victoria Times Publishing Company for a defamatory statement which appeared in its columns. This statement asserted that the plaintiff's wife was about to divorce him. It contained no grain of truth. The defendant sought to relieve itself of liability by offering to publish an apology. This is not good enough, said Chief Justice Begbie. In his judgment, he commented thus: "That is surely not sufficient. It is not the offer nor even the publication of an apology at all, but an offer to offer an apology. And even in terms, it seems to reserve to the defendant a right of judging whether the plaintiff is reasonable in demanding any particular form, e.g., it offers to make such an apology as the defendant thinks fit. Such an apology as merely "beg your pardon," or ''sorry for it," is not sufficient in a case of libel. The defendant should admit that the charge was unfounded, that it was made without proper information, under an entire misapprehension of the real facts, etc., and that he regrets that it was published in his paper. Merely to say you are sorry, may mean that you are sorry because you have laid yourself open to an action, not that you repent having inflicted an unmerited wrong. A libel is an injury as well as an insult. The most proper apology cannot undo the irretrievable publication and dissemination of the slander, nor be regarded as a complete restitution, though it may properly be considered in damages." [55]
At the turn of this century, it was said that the ultimate test of a lawyer's enlightenment was his attitude towards labour unions. There are still lawyers, both at the bar and on the bench, who cannot be given high marks in such a test today. Here is what Chief Justice Begbie said in the case of Hugo v. Todd which he decided in 1889: "Nobody denies the right of men to strike. In a free country every man has a right to decide on the terms as to wages and other wise on which he will sell his labour. Labour must be free, or it is the labour of slaves. But just as the striker is at perfect liberty to judge of the terms on which he will not work, so is the non-striker at the same liberty to judge the terms on which he will accept employment. The liberty of the striker is based upon and exactly identical with the liberty of the non-striker. It is a great pity that in these disputes opprobrious epithets are introduced which stimulate the passions, and sometimes lead to deplorable crimes. And these epithets and abuse are greatly inflamed and augmented by being published in a sensational manner in print."
The facts of this case were as follows: Hugo was engaged in repairing the ventilation passages in a mine. The defendant was the proprietor of the Nanaimo Morning Courier. He published a letter in which the plaintiff was referred to as a "blackleg." The Chief Justice characterized this term as the most opprobrious and damaging epithet in the miners' vocabulary. "It is therefore," he contended, "a false as well as a cruel libel." There was no evidence that the plaintiff had suffered pecuniary loss by reason of the libel. The Chief Justice awarded him a judgment of $50.00 damages and costs. [56]
In the fifth case a man sought compensation for his horse which was electrocuted. A fire-alarm wire broke and, coming into contact with another wire, became charged with a voltage powerful enough to kill the horse when it fell upon him. The maintenance of the fire-alarm system was the responsibility of the City of Victoria. The Chief Justice held the City liable and awarded the plaintiff a verdict of $100.00 and costs. "Without doubt," he said, in delivering judgment, "where a public duty is cast upon anybody by statute, that same statute must contemplate that the duty will be performed, and that any inevitable damage arising therefrom to a third party is not actionable. But the damage must be inevitable; it must not arise from any negligence in the performance of the duty; and I do not think that any greater effect can be given to the decisions on this subject, at the most, than to say that they shift the onus of proof of negligence; perhaps they displace the ordinary rule, that the mere occurrence is prima facie proof of negligence. But if the injured party can show improper activity, or passive omission of proper precautions, then the public body, though performing a public duty, will be held liable." [57]
In the sixth and final case an enterprising debt-collector tried a new way of collecting old debts. He caused to be printed a large yellow placard containing the names of some 38 well-known residents of Victoria. Opposite each name was an item such as "due per druggist's bill," or "due per grocer's bill," and an amount. The placard, which was sent to the persons whom it named, announced that the accounts would be advertised and sold by auction unless they were paid by a certain date. The plaintiff's name appeared in the placard. It was alleged that he owed a drug account of $9.67. He sued for an injunction to restrain publication of the placard and for damages.
Chief Justice Begbie made plain his severe disapproval of the defendant's methods of debt-collecting. "It was argued," he said, "that it is not libellous to state that another man owes you money; that it is perfectly lawful to sell and assign any debt, and that there is no law to prevent the announcing of any intention to sell. The combination, however, of these three circumstances might lead to a breach of the peace. But there is in this yellow list, and the circumstances attending its threatened publication, matter amounting to a good deal more than this. It would, I think, be naturally taken to imply the very clear innuendo that the sums mentioned were justly due and were not disputed, but that the alleged debtors were not in the opinion of the alleged (unnamed) creditors, worth powder and shot, i.e., that ordinary litigation would probably be merely throwing good money after bad. But surely it is libellous to publish of a man anything clearly insinuating that he is dishonest and insolvent. If a libel be justly defined as anything written which tends to bring a man into dislike, or discredit, or contempt, the publication of this list seems libellous."
Continuing with his judgment, the Chief Justice indulged in a mild flash of humour: "It is at the best a demand of somebody, under the mask of the defendant, for the payment of a sum certain, under threat of what many would dread more than personal violence. This is not the method prescribed by law for collecting debts. Courts are maintained at the public expense, in which the justice of a claim and its amount are first to be established. Not even then, in any civilized country, is the creditor entitled to go and satisfy himself by his own methods. Satisfaction is taken through an appointed officer and by methods sanctioned by the Legislature. I believe in some societies, in another plane of civilization, a creditor, either in person or by his attorney, takes up a position before his debtor's house. on the door-step, and starves him into submission. That would, perhaps, not be permitted here - it is at any rate not likely to acquire much vogue among the legal practitioners." [58]
Is any fault to be found with the manner in which Chief Justice Begbie handled these six cases - all of which he approached from a broad commonsense point-of-view: and, since they were not needed, without resorting to legal "quids and quiddities?"
In 1893, a Royal Commission was established to enquire into the Liquor Traffic as it related to the Provinces of Manitoba, the North-West Territories and British Columbia. Chief Justice Begbie appeared as a witness before this Commission. [59] His evidence throws an interesting side-light on his character.
Asked if he had had any experience of prohibition, he replied that he had spent two days in the North-West Territories, where he had been pestered, from all sides, to drink raw spirits. "They seemed to think," he explained, "it was the duty of a man to drink all the whisky he could." This pursuit was not to his taste, he was a beer and wine drinker, who did not consume more than three glasses of spirits in a year.
Hindsight is always better than foresight. But Begbie clearly foresaw the evils of prohibition. To the question, "would they be likely to drink if liquor was permitted to come in by law," he replied, "they would drink whether the law permitted them or not; they would obtain liquor in any case." The noble experiment of prohibition proved the truth of his words.
When taken in hand by a clergyman member of the commission, Begbie made the categorical statement that "the superior races of men are greatly given to liquor."
Pressed further on this point, he said that in his opinion that a man who drinks is "superior morally, intellectually and physically" to a man who does not drink.
To the question, "You think he is a stronger and better man?" he gave the reply, "A stronger and better man, who is carrying out the law of the Bible."
Asked if he objected to prohibition on principle, or because of its impracticability, he replied, "On both grounds. I think it would be inexpedient if it were possible, and it is impossible if it were expedient."
After giving his evidence, he must have done some thinking. He thought perhaps that he had failed to make his position unequivocally clear. To make assurance doubly sure, he addressed a letter to the Acting Secretary of the Commission, under date of November 23, 1893, from which I quote two brief passages: "I also stated," he wrote, "that I had never met a total abstainer who impressed me as possessed of extraordinary excellence, morally, intellectually or physically. On the contrary the best men I have known in every line have used stimulants."
This second passage from the Chief Justice's letter suggests that the good Chief Justice suffered from a mild infection of racism, a disease of which the world knows more today than it did in his day. Begbie might, perhaps, today be called a wasp. "I am as far from suggesting," he wrote, "that Christianity is founded on alcohol as that Mohammedism is based on water. All I contend for is that the use of alcohol is compatible with great improvement all along the line, and that water drinking does not preserve a nation from every sort of degradation. There is probably one subtile influence or instinct at work which impels one race to Christianity, freedom, civilization and the juice of the grape, and another race to Mohammedism, coffee and an indolent barbaric despotism." [60]
One may hazard the guess that the Chief Justice's evidence and the letter by which he confirmed it, did not endear him to the growing numbers who were at that time climbing aboard the prohibition bandwagon.
As a report in the Toronto Mail for December 2, 1891, makes evident, Begbie never lost the habit of getting himself into hot water. This report, a column in length, concerns the trial of Samuel Greer and its aftermath. Samuel Greer was an old-time resident of British Columbia. He acquired considerable land holdings and his methods of acquisition were brought into question. He was charged with forgery of title. A jury, over which the Chief Justice presided, acquitted him. Several years later, an order of eviction was obtained against him and a party of Sheriff's officers were called upon to execute this order. Greer barricaded himself in his house. When the Sheriff's officers endeavoured to take the house by storm, Greer's revolver went off. A bullet passed through a door and severely wounded an officer. Greer was brought to trial on a charge of assault. His counsel made a strong defence to the charge, claiming that the shooting was accidental. In its verdict the jury implied that it accepted this defence. When the Chief Justice heard the verdict, he roared at the jurors, called them uncomplimentary names, and hustled them back into the jury room, telling them to bring in a verdict of guilty or not guilty, of assault.
After reconsidering its verdict, the jury found the accused guilty as charged, with a strong recommendation to mercy.
In sentencing Greer, the chief Justice indulged in a long tirade. Here is a sample of what he said: "Your career has been one of crime from the time that I first met you, and it will be necessary to put a stop to such a course. It would have been well for you if, at Chilliwack, you had been locked up and prevented from pursuing such a career of crime as you have led. The full punishment of the statute is three years' imprisonment. In consideration of the recommendation of the jury, I will knock off nine months, but for 27 months you must be in the penitentiary and cease from troubling, and there I hope your mind will turn to the consideration of better things. In your life and conduct hitherto, I have not seen a particle of common sense. Remove the prisoner."
Following Greer's trial, a protest meeting was held which was addressed by all the leading clergymen. One of the speakers, W. Shannon, said, among other things, that the judge was evidently reaching second childhood. "The judge's partisans and the partisans of Greer," concludes the Mail's report, "are now at it hammer and tongs and meanwhile a new trial has been asked for."
If Chief Justice Begbie did not always act judiciously while on the bench, at the least, it can be said of him that his merits as a judge were as obvious as his defects. When we pass from his official to his private life, there is a different story to be told. Here the entries are all on the credit side of the ledger.
The Chief Justice was convivial and hospitable; his affections were social and generous, his sympathies broad and comprehensive. He was designed by nature to be exactly what he always aspired to be in his personal relationships - a cultured gentleman, in the old sense of that word, interested in the arts, in the life of the mind, and in good living, in recognizing the claims of the inner man; and in sharing these delights with others.
He never married but kept a bachelor's hall, first in New Westminster, and later in Victoria. A delightful host, invitations to his dinner parties, and evenings at home, were eagerly accepted. And he was sought as a guest with equal eagerness by discerning hosts and hostesses.
He had a good tenor voice and, for many years, sang in the choir of Christ Church Cathedral in Victoria. He was a moving spirit in the Victoria Philharmonic Society.
A man of wide reading, his literary gods were the old, established masters. He was not one to rush to his booksellers for the latest book to be puffed by the publishers, and endorsed by the critics, as a new masterpiece. Rather, he inclined to Hazlitt's habit of re-reading an old book, when a new one appeared.
He was a keen sportsman, proficient with rod and gun, and a worthy opponent on the tennis court. He cut rather a good figure in tennis flannels. In his later years, his Tuesday tennis parties became something of an institution in Victoria.
Though he was sometimes at odds with the preachers for his outspoken comments, he was a man of deep religious feeling. He attended church service regularly and was frequently called upon to read the lesson. It has been said that "he read beautifully, without accent or affectation." [61]
Never a man of great wealth, he shared his bounty with the less fortunate. As he went his way, he did many little nameless, unremembered acts of kindness. Many a needy person received a helping hand from him without ever knowing who was his benefactor. His Will makes evident the kindness of his heart and the extent of his charity.
Chief Justice Begbie's last will is a remarkable document, characteristic of the man. It affords us a clear insight into his kindly, thoughtful nature. It bears the date March 14, 1894, and appoints as executors and trustees William Curtis Ward, a bank manager, Dennis Reginald Harris, a real estate agent, and Charles Edward Pooley, a lawyer.
Various gifts of money are bequeathed by the will, including gifts to his housekeeper and gardener. Various trusts are set up, including one in favour of the widow of a brother judge, Mr. Justice Gray.
Three days before he died, the Chief Justice drew a codicil to his will, explaining that he must make certain revocations as his general estate fell considerably short of his expectations. In the presence of death, he was still thinking thoughtfully of his friends. To each of three clergymen, who were his frequent guests at dinner, he left one case (three dozen) claret or sauterne at their choice.
To Peter O'Reilly, he left two cases of claret or sauterne at his choice. His law books and manuscripts were given to Charles Edward Pooley. Several portfolios of foreign photographs were given to Mrs. Edgar Dewdney, Mrs. P. O'Reilly and Mrs. P. A. E. Irving, "to be divided as they please or the whole to be tossed up for." To Mrs. Crease and Mrs. Drake were left a dozen potted plants and a dozen roses at their choice.
Instructions for the Chief Justice's funeral were contained in his will. "It is my desire," he declared, "to be buried at the cemetery nearest to where I may die and that my funeral expenses shall not exceed two hundred dollars." The codicil made these instructions more explicit. "I desire that no other monument," it provided, "than a wooden cross be erected on my grave that there be no flowers and no description but my name, dates of birth and death and 'Lord be merciful to me a sinner.'"
Begbie's health broke down as he approached his seventy-fifth year. It became so precarious that he had to leave Victoria on sick leave. He returned to the bench on January 25, 1894. His return was made the occasion of a pleasant ceremony. When it was known that he was back in harness, nearly every member of the bar in Victoria attended the opening of Court in his robes. The Attorney-General, Hon. Theodore Davie, asked leave to address the court. "Your Lordship's absence, and the cause of it," he said, "have been the occasion of many anxious moments to all; and I cannot sufficiently express the gratification which we feel at your presence again amongst us, to continue that unflinching and impartial administration of justice, which this country has enjoyed at your hands for the last thirty-four years." [62]
In reply to this tribute, the Chief Justice said: "My chief anxiety during my absence has been the inconvenience which it must necessarily have caused the bar ... I do not know whether I am acting prudently in being here at the present time, although I feel fit to continue my work, excepting that occasional attacks of physical pain make it difficult to give my whole attention to the work that I am engaged in."
Commenting on the Chief Justice's return to the bench, Robert Cassidy said that the Chief "has preserved the activity of youth to an age when most men have retired to the chimney corner, or, at best, ceased to be capable of such recreations as shooting and lawn tennis." He expressed the hope that Begbie would take better care of himself in the future. But the sands were running out for the Chief Justice. He sat for the last time to enquire, with Mr. Justice Burbridge of the Exchequer Court, as Royal Commissioners, into a matter placed before them by Premier Theodore Davie, who was attorney-general in his own government. The government assisted a private company, with generous guarantees, to build a railway into the rich Kootenay mining area. The opposition charged that this arrangement amounted to the government saying to the directors of the company, in effect, "Here go ahead and build a railway with the people's money and when you have built it it will be yours." The Royal Commission was appointed in the attempt to clear the air of the innuendo of corruption. It served this purpose, but was not as successful as it might have been for the opposition refused to appear before it.
"The chief interest, which attaches to the commission," reported the Western Law Times, "is that probably it will be the last time the Chief Justice will occupy a seat on the bench of British Columbia, for his health is now in a condition which may be styled alarming ..." [63]
In its next issue, the Western Law Times reported the Chief Justice's death. [64] He had succumbed to the disease which held him in its grip - cancer - on June 11, 1894. He had refused all treatment and would not take drugs to relieve the agony of his pain. He would rather endure pain, he explained, than have his faculties dulled by drugs. On the night before his death, he said to an old friend: "You must leave me alone tonight, O'Reilly. I must make my peace with God." [65] When the summons came, he was ready. He discharged the demands of nature, cheerfully, as a willing debtor.
Chief Justice Sir Matthew Baillie Begbie was not a judge in the great tradition. He fell short of greatness as a judge because of a mixture of temperamental frailties which he was not always able to hold in strict control. But he was a good, workmanlike judge: and, he was certainly, as Alfred Watts, Q.C., once said "undoubtedly ... the right man in the right place at the right time." [66] When the American eagle was casting an eager eye in the direction of Canada's vast North-West, by establishing the rule of British law in that area, he helped to keep British Columbia Canadian. He has left behind him a permanent furrow in the history of his province.
1. Builders of the Canadian Commonwealth, by George H. Locke, (1923), p. 269.
2. Cited by Selwyn Banwell, in "A Frontier Judge", Canadian Bar Review, vol. 16, (1938), p. 559.
3. In preparing this paper I have leaned heavily upon Professor Sydney G. Pettit's valuable contributions on Begbie's life and career to British Columbia Historical Quarterly. This reference is found in the first of a series of four interesting and informative articles, in vol. XI, at p. 5. In addition to these four articles Professor Pettit contributed a fifth to the B.C.H.Q., in which he recounts how he solved the mystery of Begbie's shorthand, vol. 12, p. 293.
4. Pettit, B.C.H.Q., XI, p. 5.
7. Cited by Pettit, op. cit., p. 4.
8. British Columbia, vol. 2, (1914), by F. W. Howay, p. 659.
9. Cited in History of British Columbia by Hubert Howe Bancroft, (1890), p. 424.
11. The Mirrors of Downing Street, (1920), p. 165.
14. Cited in "Sir Matthew Baillie Begbie, Knight", by Edward Nicolls, Canadian Magazine, vol. 11, (1898), p. 202.
15. Cited by Alfred Watts, Q.C., The Advocate, vol. 24, part 5, Sept.-Oct., (1966), p. 164.
16. See "Chart of the Judges etc.", prepared by Hon. Archer Martin, published in The Advocate, vol. 4, part 2, April, (1946), p. 49.
17. "Judges of Ye Olden Time", The Advocate, vol. 4, part 2, February, (1946), p. 13.
18. Bancroft, op. cit., p. 423.
19. Banwell, op. cit., p. 558.
24. Pettit, British Columbia: A Centennial Anthology, p. 458.
27. "A Famous Frontier Judge", by R. C. MacBeth, Canadian Magazine, vol. 52, (1918), p. 661.
28. Nicolls, op. cit., p. 201.
30. Nicolls, op. cit., p. 200.
31. D. A. McGregor, in Canadian Portraits, edited by R. G. Riddell, (1940), p. 91.
32. The Advocate, vol. 4, part 2, (1946), p. 14.
44. British Columbia - a History (1958), p. 171. Professor Pettit points out that Begbie did make one exception to this rule. He permitted J. G. Barnston, a barrister from Upper Canada, to practise in his court. op. cit., p. 132.
48. Nicolls, op. cit., p. 201.
49. The Advocate, vol. 4, part 2, April (1946), p. 51.
50. The Fraser (1950), p. 116.
52. Western Law Times, vol. 5, (1894), p. 62.
53. Phelps et al v. Williams et al, 1, B.C.R., 257.
54. Regina v. Corporation of Victoria, 1, B.C.R., 331.
55. Hoste v. Victoria Times Publishing Company, 1, B.C.R., 365.
56. Hugo v. Todd, 1, B.C.R., 369.
57. Earle v. The Corporation of the City of Victoria, 2, B.C.R., 156.
58. Wolfenden v. Giles, 2, B.C.R., 279.
59. Royal Commission on the Liquor Traffic, Minutes of Evidence, vol. III (1894), p. 494 et seq.
62. B.C. Law Notes, vol. 1, Parts 1 & 2, (1894), p. 5 et seq.
Author's Note: I have tried to keep footnotes - those irritating voices that bark from the basement at the general reader - at a minimum. Professor Pettit's articles, which are fully documented, are available for the serious student of Chief Justice Begbie's career.
Page revised: 22 May 2010
