A progression of judges : a history of the Supreme Court of British Columbia 0774802936

Citation preview

p 1 A

a a

n '

.5 n 5 -

S':m o

trs

s1 fe

A PROGRESSION OF JUDGES

A Progression of Judges tells the story of the Supreme Court of British Colum­ bia, focusing on its often colourful and sometimes controversial judges. At the same time it chronicles the metamorphosis of the two young colonies—the Colony of Vancouver Island and the Colony of British Columbia—from a rough frontier to a sophisticated province as reflected in the maturing of the judicial system and growth of the legal profession. By tracing the history of the court through the lives of its judges and certain major cases in which they were involved, David R. Verchere shows how the court was shaped by those who served on it to become the vibrant, social institu­ tion it is today. As chief justices followed one another and the size of the court grew (it now has over thirty members), the kind of questions the court had to grapple with changed in nature from lengthy debates about its jurisdiction in divorce cases to labour disputes to a growing number of appeals from lower courts. Backed by the Law Society and owing to the congested state of business in the Supreme Court—partly a result of Chief Justice Hunter’s problem with alcohol and his epic battle with Mr. Justice Martin—the Court of Appeal Act 1907 was proclaimed in 1909, and the powers of the full court were transferred to this new court. No change was made to its name, but the Supreme Court of British Columbia ceased to be supreme. It nevertheless continued to play an important role in the province. As a historical record of British Columbia’s most important judicial institu­ tion, this book provides fascinating reading for anyone interested in the history of the province. For those in the legal profession it is a “ must.” r . v e r c h e r e retired from the Supreme Court of British Columbia in 1981 after having served as a judge for close to 22 years.

d a v id

•S’/P S '

t h e roy al c o a t o f a rm s. In 1965, after years of discussion, the judges of British Columbia and the Departments of the AttorneyGeneral and of Public Works accepted the view expressed by the Col­ lege of Heralds in 1907 that the Royal Coat of Arms could be dis­ played high above the judge’s dais in all of the provincial courtrooms, including, of course, that of the Supreme Court of British Columbia. Its presence is intended to symbolize the participation of the Sover­ eign in the day-by-day administration of justice by the judges, and to mark their judicial independence from the federal or provincial ad­ ministrations.

OKANAGAN COLLEGE LIBRARY BRITISH COLUMBIA

A PROGRESSION OF JUDGES A HISTORY OF THE SUPREME COURT OF BRITISH COLUMBIA

Hon. David R . Verchere

87649

UNIVERSITY OF BRITISH COLUMBIA PRESS VANCOUVER 1988

© The University of British Columbia Press 1988 All rights reserved This book has been published with the help of grants from the Law Foundation of British Columbia and the Canada Council. C anadian Cataloguing in Publication Data Verchere, David R. (David Robertson), 1906A progression of judges : a history of the Supreme Court of British Columbia Includes bibliographical references and index ISBN 0-7748-0293-6 I . British Columbia. I. Title KEB535.4.V47 1988

Supreme Court — History. 347.711'035'09

C88-091147-6

International Standard Book Number 0-7748-0293-6 Printed in Canada

Dedicated with respect and affection to the men and women with whom / was privileged to serve on the Supreme Court o f British Columbia

Contents Acknowledgments ONE TWO

THREE

FOUR FIVE SIX SEVEN EIGHT NINE TEN

ELEVEN TWELVE THIRTEEN FOURTEEN FIFTEEN

ix

Introduction The Supreme Court of Civil Justice of the Colony of Vancouver Island The Supreme Court of the Colony of British Columbia The Road to Colonial Union The Union of the Courts Confederation and After Divorce, Circuits, and Other Matters Lions Under the Throne The Old Order Changes Q.C.’s, Wigs, and Salaries: Some Peripheral Matters of the Court The First Quarter of the Twentieth Century The Unseemly Affair Concerning Hunter and Martin A Court of Appeal and a World War The Quarter Century from Morrison to Lett From Lett to McEachern

103 114 127 141 153 165

Appendix A Appendix B Notes Bibliography Index

175 176 179 189 191

1 12

20

26 35 47 57 72 87

Acknowledgments The idea for a history of the Supreme Court of British Columbia was, as far as 1 know, conceived by the Chief Justice, the Honourable Allan McEachern. He suggested it to me some years ago as a retirement project and although 1 was without experience as a writer of anything other than the judgments of varying lengths that judges seem obliged to produce, when he indicated that the Law Foundation of British Columbia was willing to contribute financially to the cost of producing such a work, I agreed to undertake the task. Now, having com­ pleted it in my fashion, I have to express the hope that with the publication of A Progression of Judges: A History of the Supreme Court of British Columbia I shall not have dimmed the lustre of the Chief Justice’s idea or wasted the generosity of the Law Foundation. While working on the book, 1 had the good fortune to seek help from Delloyd Guth, then professor of legal history in the Faculty of Law at U.B.C. He showed an immediate interest in the project, reading and criticizing the two drafts that I gave him and by his comments giving me the assurance that I needed to continue with it through publication. I am grateful to him and my thanks go also to Gordon Turriff, a lawyer and formerly Registrar of the Court at Vancouver. He read the manuscript as submitted to the publisher and helped and strengthened me consid­ erably with his comments. The staff of the Secretary of the Law Society of British Columbia, of the Pro­ vincial Archives in Victoria, of the Northwest Room of the Vancouver Public Li­ brary, of the Special Collections Branch of the Law Library at the University of British Columbia, of the Vancouver City Archives, and last, but not least, of the Judges Library in the Law Courts at Vancouver were all most helpful and I am obliged to everyone with whom I dealt for the courtesy shown to me by them. Mrs. Sherwood Lett kindly made available to me the photograph of her late husband that is contained in the book and Barbara McLennon helped me in the selection of those that were obtained from the Provincial Archives. As for the other photographs used, I am glad to be able to say that the photographers con­ cerned were always co-operative and helpful. So also were Susan Dedenus and Judy Gibbins, who typed the manuscript except for the index; me dear wife did that. The published and unpublished works that I consulted are listed in the bibliog­ raphy, but I particularly want to thank David R. Williams, Q.C., for having writ­ ten .. . The Man for a New Country: Sir Matthew Baillie Begbie. I relied heavily on it to form my views of that remarkable man and his times.

Introduction

When Sir Francis Drake ventured into the northern Pacific Ocean in 1579, he may well have seen at least some part of the land we now know as British Columbia. But there is no evidence to support the early assertions that he anchored in the Strait of Juan de Fuca.1 The first documented voyage of discovery to what became known, until 1860 or thereabouts, as Vancouver’s Island (despite Spanish assertions to the con­ trary) is that of Captain James Cook, who landed in March 1778 at Hope Bay on Nootka Sound. But he cannot have the distinction of being the founder of this province either. Those origins take one into the compara­ tively unadventurous legal proceedings between Spain and Great Britain that followed the former’s attempt to enforce its claimed sovereignty over the Pacific coast and the resulting Nootka Convention of 1790 signed at Madrid on 11 January 1794. In it, Spain acknowledged the rights of Brit­ ish subjects to fish, trade, and settle in parts of the Pacific coast not al­ ready occupied. Without much delay, the coastal area between northern Mexico and the southern limit of Russian penetration (about latitude 54° 40' North) opened to traders and adventurers who came, looking for gain, first from Great Britain and then, with slight delay after the Louisiana Purchase in 1803, from her seceded American colonies. The contribution by explorers coming by land must be also recognized. In the north, Alexander Mackenzie (later Sir) left Lake Athabasca on the second of his great journeys and traversed the vast region lying west of

2

A P R O G R E S S IO N O F J UD G E S

the Rocky Mountains to reach the Pacific coast near Cape Menzies (about latitude 52° N) in July 1793. His success was one that his sponsor the North West Company, was quick to exploit. Outstripping its older and better known rival, the Hudson’s Bay Company, its fur traders estab­ lished forts in the northern area that, true to their heritage, they named New Caledonia; from there they proceeded to trace the two great river systems of the Pacific slope, the Fraser and the Columbia, from their common birthplace in the Rocky Mountains to their outlets on the coast. From the south, two officers of the United States Army left St. Louis in May 1804 with a considerable party to explore the west. After crossing the Rocky Mountains, they followed the Columbia River to the sea and wintered there before returning to the east in the following year. Fur traders soon followed the flag, and by 1811, the Pacific Fur Company un­ der John Jacob Astor had founded Astoria as a trading post at the mouth of the Columbia and added minor posts on the Willamette, Spokane, and Oregon rivers. With the war of 1812 imminent, Astor displayed good mercantile cau­ tion and sold his posts to the North West Company. This move by no means signalled an end to American claims to the Oregon Territory, as much of the area between 42° N and 54° 40' N latitude had by this time generally become known. With peace and the signing of the Washington Convention in 1818, Astoria perforce was returned to its founder, and only a scheme for joint occupation of the Territory and joint navigation of the Columbia River saved the North West Company’s operations there. The amalgamation in 1821 of the two great Canadian trading com­ panies into a single entity under the name of the Hudson’s Bay Company meant that for the next twenty years the life of the Oregon Territory would be wrapped up with the Company’s operations there. Doctor John McLoughlin, the Company’s governor, ruled autocratically but benevo­ lently. One of his early achievements was to establish Fort Vancouver on the northern bank of the Columbia River in 1824-25. With access to the sea, that fort soon became a great entrepot for the Company’s western fur-trading operations. In comparison with the northerly forts, such as Fort McLeod or Fort St. James in New Caledonia and even Fort Langley on the Fraser River or Fort Kamloops on the Thompson River, it was a salubrious and civilized place. By 1841 the continuing influx of settlers from the United States into the southerly part of the Oregon Territory had created a serious decline in the number of the fur-bearing animals there. In addition, it had provoked de­ mands for a type of civil government not particularly welcome to the Company. These factors, coupled with a general feeling of uncertainty about the area’s future, persuaded Sir George Simpson, then governor of

IN T R O D U C TIO N

3

the Hudson’s Bay Company, that it was desirable to replace the depot at Fort Vancouver with a station situated farther north. With little delay Camosack (or Camosun) at the southern end of Vancouver Island was selected as the site, and on 13 March 1843, James Douglas, the Com­ pany’s chief factor at Fort Vancouver for the previous eight years, arrived on the Company’s little trading vessel Beaver with men, supplies, and tools (mainly axes) to start construction of Fort Victoria. The work was pressed with such energy during the rain-free months that by 5 December, a fort had been constructed with two dwelling-houses and a large store­ house, and several acres of land, obtained from the Indians by treaty, had been seeded to wheat. On Christmas Day a splendid dinner was enjoyed by all, illuminated by rockets fired from the Company’s two coasting ves­ sels, the Cadboro and the Beaver, in the harbour.2 In the view of the Company’s officers, there was good reason for the hard-driving enthusiasm that Douglas brought to his task. In the Great Immigration, as the Americans termed it, settlers were pouring into the Territory from the United States, and they were making strong demands for its inclusion in the Republic, with its northern boundary at 54° 40' N. Douglas’s concern about these demands are expressed in a letter to his friend, Chief Factor Charles Ross: “ the country will soon be overrun with—people of a class, hostile to British interests. What is our Govern­ ment about? When will the boundary be settled; it must be soon if we wish to keep the Colum bia.” 2 But even as he wrote, Fort Vancouver had recognized the provisional government which the settlers had established in the Willamette Valley and permitted its authorities to collect taxes on the Company’s business. In 1845, an incident occurred at Fort Victoria which has been re­ counted by several British Columbians in an effort to explain why Great Britain did not insist on making the Columbia River the boundary when the long-drawn-out dispute over sovereignty of the Oregon Territory was being settled. There were good reasons, of course, but the story is another matter.4 In 1845, Roderick Finlayson, in charge of Fort Victoria at the time, was visited for two weeks by Captain the Honourable John Gordon, in command of H.M .S. America and brother of Lord Aberdeen, the secre­ tary of state for foreign affairs. He had been sent to obtain information re­ garding the coastal waters and their littoral that might assist Her Majesty’s government in settling the boundary question. As the visitor was reputed to be a great deerstalker in Scotland and an enthusiastic fisherman, Finlayson took him in pursuit of the Island deer first and then of the local salmon. But Gordon was not pleased; according to Finlayson the sport the captain saw was a disappointment:

4

A PR O G R E SSIO N O F JUDGES

We met a band of deer and had a chase after them on horseback. The deer ran for a thicket into which the horses with their riders could not penetrate and of course no deer were had. The captain felt much dis­ appointed and was anything but happy. I said to him I was sorry we had missed the deer, etc. and also remarked how beautiful the coun­ try looked. He said in reply: “ Finlayson, I would not give the most barren hills in the Highlands of Scotland for all I see around m e.” . . . In the morning we had a nice salmon for breakfast. The Captain seemed somewhat surprised and asked where the salmon was had. Oh, we have plenty of salmon was the reply. Have you got flies and rods said the Captain. We have lines and bait was the answer and sometimes the Indians take them with the net, etc. No fly, no fly re­ sponded our guest. So after breakfast we went to fish with the line from a dingey [sic]. When we came back we had four fine salmon but he thought it was an awful manner in which to catch salmon.5 Douglas came up from Fort Vancouver to greet the distinguished visi­ tor and met a similar attitude. In writing privately to Simpson about Gor­ don, Douglas said: He does not think this country worth five straws and is surprised that the government should take any trouble about i t . . . he did not appear at all friendly to the Hudson’s Bay Company and told me plainly that we could not expect to hold the entire country.6 What effect that opinion had on persons in high places is not known, but if Captain Gordon was correctly quoted, he fortunately changed his mind insofar as Vancouver Island was concerned. Lieutenant William Peel, a member of H.M .S. America s staff and the British prime mini­ ster’s son, was sent post-haste to report to both the Admiralty and the ministry in London. He told them that, in his own and his captain’s opin­ ion, if the 49th parallel was agreed on as the boundary, the southerly part of Vancouver Island with its fine harbour and command of the Strait of Juan de Fuca should be retained. This question was soon settled by the Oregon Boundary Treaty, signed on 5 June 1846. Although the extension of U.S. sovereignty to 54° 40' N had been avoided and Vancouver Island was to remain British, American claims to all the territory lying south of the 49th parallel had been recognized. The Hudson’s Bay Company accepted the decision with resignation. Many of its officers felt far from sure that American penetration into the area north of the 49th parallel and into Vancouver Island could be preven­ ted unless some form of colonial government was speedily established.

IN T RO D U C TIO N

5

London was apparently of the same mind, and Vancouver Island was con­ sidered particularly vulnerable because of its proximity to American settlements. The London government was advised by its law officers that the Hudson’s Bay Company could legally acquire and hold territory where it had previously held only trading rights, and Lord Grey, the sec­ retary of state for the colonies, advanced the view that the Company’s presence in the area and its financial position made it suitable for employ­ ment as the sponsor of a private colonization scheme on Vancouver Is­ land. The government agreed, and on 13 January 1849, in spite of forceful opposition to granting proprietary territorial rights to a private corpora­ tion, letters patent were issued to the Company by Her Majesty. It was made known to any and everyone concerned that Vancouver Island had been granted to the Hudson’s Bay Company in “ the intent that th e . . . Company shall establish upon the said Island a settlement or settlements of resident colonists, emigrants from our United Kingdom of Great Brit­ ain and Ireland. . . or from our other Dominions and shall dispose of the land there as may be necessary for the purposes of colonization.” 7 For reasons not readily apparent, no provision was made in the letters patent or elsewhere for the administration of justice on Vancouver Island except,of course, for mention in the preamble of two existing statutes. The first was 43 Geo. Ill, cap. 130, with its purpose explained by its title: An Act for Extending the Jurisdiction of the Courts of Justice in the Prov­ inces of Lower and Upper Canada to the Trial and Punishment of Persons Guilty of Crimes and Offences within Certain Parts of North America Ad­ joining the Said Provinces. The other was the statute of 1 & 2 Geo. IV, cap. 66, with a similarly broad title: An Act for Regulating the Fur Trade and Establishing a Criminal and Civil Jurisdiction Within Certain Parts of North America, with provision, among other things, for the appointment of justices of the peace at the Company’s various posts. Apparently, no such appointments were ever made; instead, the local factor dealt extrajudicially with most wrongdoers and sent only the most serious offenders to Upper or Lower Canada for trial.8 During its discussions with the colo­ nial office concerning the royal grant the Company proposed that it be granted the power to nominate justices of the peace for appointment in the new colony and followed its proposal by submitting to the secretary of state for the colonies the names of fourteen men “ well qualified to hold commissions of the peace under the Act of 1 & 2 George IV, Cap. 66. ” 9 But it seems that none of those appointments were ever made. In addition to including several traders and factors connected with the Company’s operations, the list named the Reverend R. J. Staines, who was even then preparing to set out with his wife for Fort Victoria to take up appointment

6

A P R O G R E SSIO N O F J U D G E S

as chaplain to the Company. Perhaps those men later received their com­ missions; we lack evidence, however, that Staines or the others on the Company’s list ever had any judicial authority at Victoria. Despite its lapse, the imperial government soon provided for the ad­ ministration of justice on Vancouver Island. On 28 July 1849, the Queen assented to a statute entitled An Act to Provide for the Administration of Justice in Vancouver’s Island.10 When it was proclaimed, it would super­ sede the statutes passed in the reigns of George III and George IV, and Her Majesty would be empowered “ to make Provision for the Adminis­ tration of Justice on the said Island and for that Purpose to constitute such Court or Courts of Record or other Courts with such jurisdiction in Mat­ ters Civil and Criminal, and of such equitable and ecclesiastical jurisdic­ tion, subject to such limitations and provisions. . . and to appoint . . . such judges as Her Majesty shall think fit and direct.” 11 Two provisos were added: first, “ so soon as a local Legislature has been established in Vancouver’s Island, it shall be lawful for it. . . to make such alterations as to such Legislature may seem meet in the Constitution or Jurisdiction of the Courts which may be established in the said Island, and to make all such other provisions as to such local Legislature may seem meet for and concerning the administration of justice in the said Island” ; and second, “ all Judgments given in any Civil Suit in the said Island shall be subject to appeal to Her M ajesty-in-Council.” 12 On 10 March 1850, Richard Blanshard, newly commissioned as the colony’s first governor, arrived at Victoria. He found all power there firmly in the hands of Chief Factor Douglas, who had moved with his family from Fort Vancouver in 1949 to superintend what was by now the principal business depot in the west for the Hudson’s Bay Company. Governor Blanshard made only one judicial appointment: Dr. John Sebastian Helmcken, the Company’s newly arrived medical officer, was named magistrate at Fort Rupert, situated in the northeast comer of the Is­ land. Apparently, the usual good conduct of the area’s coal-miners had been affected by news of the gold discoveries in California and, in addi­ tion, by trouble with the native people over the murder of three sailors who had deserted from the Beaver. Helmcken acted bravely and well in that incident, but he resigned soon afterwards. Ostensibly, he feared he would find difficulties in acting impartially where the Company’s inter­ ests were concerned; more likely, however, he could see that even greater difficulties lay ahead in reconciling his judicial duties in so remote a fort with those he had to face as “ the leading [medical] practitioner from San Francisco to the North Pole and from Asia to the Red River of the N orth.” 13 On 18 November, Governor Blanshard asked for his recall, and when a

IN T R O D U C TIO N

7

letter accepting his resignation finally arrived in August 1851, he left at once for England. A provisional council that he had named—consisting of Douglas, John Tod, and Captain James Cooper—took over responsi­ bility for government of the colony until, in November 1851, a commis­ sion for Douglas arrived. It confirmed his appointment as governor in succession to Blanshard and, among other things, fixed his salary at £800 per annum in addition to his pay as chief factor at Victoria of the Hud­ son’s Bay Com pany.14 He retained the council created by Blanshard and, to fill his own vacancy, appointed Roderick Finlayson, by now chief trader at the fort. Development of the colony continued slowly and without much friction until early 1853 when the governor, in a search for revenue, required his council to license vendors of liquor in the colony and forbid any of its members to enter that trade. Captain Cooper, for one, was particularly in­ censed by this step; following his appointment to the council, he had en­ tered into the very trade that was now to be closed to him. When he finally capitulated and gave consent to the bill, he thereby offended James Yates, the keeper of the colony’s single saloon and, even worse, its habi­ tues. Those opposed to the bill were highly vocal, and their chorus of dis­ pleasure, led by Staines, was soon increased when Douglas introduced a bill to license timber-cutting on public land and to impose a duty on such timber. Constitutional grounds were advanced, and the cry of “ no taxa­ tion without representation” was raised. The independent settlers, as well as some of Douglas’s old friends and associates, signed a petition to the Colonial Office. Its aim was to revoke the Company’s grant upon the forthcoming termination of its first five-year period and to obtain the right to elect a Legislative Assembly by popular vote in order to bring a sem­ blance of democracy into the colony’s government. Governor Douglas could not have been entirely oblivious to the discon­ tent voiced about him; it may have been what persuaded him to invoke the Administration of Justice Act of 1849 to bring about the establishment of some suitable judicial system for the colonists. On the other hand, he may have been influenced by the need in that busy year of 1853 to ease some of the many pressures on him. For example, in January he had had to as­ semble a little flotilla of ships with 130 seamen and marines to travel first to Cowichan and then Nanaimo to apprehend and promptly hang two In­ dians. Upon their capture, they had confessed to having shot and killed Peter Brown, a shepherd employed at the Company’s sheep farm at Lake Hill, and so their trial was a brief formality, for which Douglas neverthe­ less saw fit to convene a ju ry .15 On 29 March 1853, Douglas submitted a plan to his council for the ap­ pointment of four justices of the peace who would be able to hold periodic

8

A P R O G R E S S IO N O F JUD G E S

sittings as courts of both Petty Sessions and General Sessions.16 With it, he put forward the names of the four men whom he would like to see ap­ pointed to the new positions: Captain Edward E. Langford and Messrs. Thomas J. Skinner, Kenneth McKenzie, and Thomas Blinkhom. As farm managers (Langford was called a superintendent), they were all promi­ nent in the business and social life of the community. The council adopted the recommendation, and the four appointments were speedily made. In a dispatch to the secretary of state for the colonies dated 11 April 1853, Governor Douglas described the terms and condi­ tions of the newly created offices: Pending Her Majesty’s approval of those appointments, I have issued to each of those gentlemen severally an acting commission as Magis­ trate and Justice of the Peace, under which they will exercise the powers belonging to that office until a regular commission of the Peace is received from England. Your Grace will observe by the ac­ companying minutes that we have decided on dispensing in the ap­ pointment of the Justices of the Peace with the qualification as to state required by the Act of Parliament and that we have also authorized the said Magistrates to make a charge for their services in all civil cases only at the rate of twenty shillings a day to be paid by the par­ ties at issue as part of the costs of suit: the reason in both cases for doing so being the absence of a wealthy class who might afford to devote their time gratuitously to the public service.17 One might well think that those appointments would meet the needs for which they were created. The population of the colony at this time num­ bered only about 450 Europeans: 300 at Victoria, 125 at Nanaimo and 25 at Fort R upert.18 But in Victoria itself, the rough and simple society of the fur traders was giving way to one of gardens blooming with English flowers. According to Dr. Helmcken, the fort was “ as civilized as any re­ spectable village in England, with the very few upper ten leading. . . ‘what we were in England or Scotland was burnished and made the most of!!!’ ” 19 The simple judicial system contemplated by Governor Douglas did not suffice for long in that atmosphere. In spite of their relatively im­ portant positions in the community and their good social background, the men he had chosen for justices soon proved to be incompetent. In one case, a certain Mr. Webster, described by Douglas in a despatch to Earl Grey as “ a crafty American adventurer who was striving to secure a monopoly of the timber exports from Sooke District,” 20 had managed in June 1853 to procure the arrest of two ships then loading spars at Sooke. In addition, he obtained an order forbidding their masters, in the Queen’s

IN T RO D U C TIO N

9

name, from taking any more timber on board. Those masters appealed at once to the governor for relief, and he ordered the release of their vessels. But Webster was undaunted. He brought an action for damages against the lumbermen concerned, namely, several members of a family of erst­ while Scottish miners named Muir who had worked at Fort Rupert and then at the Nanaimo coal mines before acquiring Captain Grant’s farm at Sooke.21 Webster was awarded damages in the substantial sum of $2,313 with costs, and again the governor had to step in to prevent an injustice being inflicted upon several of his independent colonists by one of his magistrates. By intervening as he did, Douglas had not interfered with the indepen­ dence of his appointed judges. In the absence of a local legislature, which the Administration of Justice Act 1849 had clearly contemplated, all functions of government—executive, legislative, military, and judicial— still resided in him as governor. It was, therefore within his competence and duty to act as the court of last resort within the colony. But years of experience in administering justice as a chief factor of the Company had made such intervention little to his liking. The Muir case persuaded him that a colony without a superior court was an anomaly of sorts; there was a need for limits on the jurisdiction of his justices, especially in civil mat­ ters. While deliberating, he turned for help to his brother-in-law, David Cameron, a former cloth merchant and sugar plantation manager, who had, with his wife, recently arrived in the Colony to take a clerical post in Nanaimo. He impressed Douglas favourably with his firmness and inte­ grity, and because men with these qualities were undoubtedly few, Douglas appointed him a justice of the peace, charging him especially to see that all proceedings in the colony’s courts were properly conducted. That done he continued to draft his plan to improve the administration of justice in his Colony, and when it was completed, he sent it without delay to his Legislative Council with a recommendation that a high court of civil justice be established forthwith with Cameron as its acting judge un­ til a suitable legally trained person could be found. The essence of the plan developed by Douglas was that the new court should be made superior to all other courts in the colony and have enough authority to ensure that the proceedings in those other courts were prop­ erly conducted. It was, as Farr has pointed out,22 an idea that was crucial for the administration of justice on Vancouver Island and, a few years later, in the new mainland colony of British Columbia as well. When the two colonies were united, Douglas’s plan would lead to the emergence of the vigorous and vibrant institution that we know as the Supreme Court of British Columbia, with its function of taking justice throughout the length and breadth of the province and ensuring, by virtue of the old prerogative

10

A PR O G R E SSIO N O F J UD G E S

writs which came into its jurisdiction from the common law of England and have since become part of the province’s statute law,23 that all quasi­ judicial bodies and the lower courts conduct their proceedings with both due process and the principles of natural justice firmly in mind. For as long as Vancouver Island was a separate colony, none of its gov­ ernors saw fit to proclaim the law, either civil or criminal, which pre­ vailed there. It was, of course, the law of England, except as altered from time to time by the authority of her Majesty, by the colony’s governors, or, when finally established, by its Legislative Assembly. As all its lands had been granted to the Hudson’s Bay Company and its governor was an appointee of the Crown, proclamation was probably considered unneces­ sary. But although foreigners and aliens were welcome (they came in droves in 1858 and the ensuing years), they were not allowed to bring their own laws and ways of settling disputes with them. Legitimate sover­ eign authority existed, and violence was not tolerated. No such colonizing agent existed in the colony of British Columbia when it came hurriedly into existence five years later, and for the most part, the inhabitants who arrived with the gold rush were a boisterous lot. So one of the first acts of Douglas as the new governor of the mainland was to have it proclaimed that English law was in force in British Colum­ bia (see Appendix A, p. 175), to ensure that the rule of law would be ob­ served on the mainland as well as on the island, especially as a court sys­ tem able to enforce it in both territories would soon be in place. And the words of his proclamation would continue to run long after he was gone: first, by virtue of an ordinance24 passed when Vancouver Island and the mainland were united, and second, by a statute of the provincial legisla­ ture passed with Confederation that still endures.25 The scope of this work is to trace the establishment of high courts of civil and criminal justice in two remote British colonies, and with their union into a single entity known as the Supreme Court of British Colum­ bia, to follow the life of that institution over the relatively brief period (about 125 years) of its existence. I have not attempted to write a compre­ hensive account of any specific item, but I hope that a discussion of the problems that the present day court faces in its search for an organization that enables it to serve the needs of the province best will, nevertheless, be assisted by this book. Basically, the theme of this treatise is renewal—it is, after all, the his­ tory of an institution endowed with a corporate identity, one that can be expected to continue in perpetuity, renewing and refreshing itself as and whenever necessary by the appointment of new judges to sit on its Bench. A chronological recitation of its history and of its relationship with the

IN T R O D U C TIO N

II

government of the province whose political servant it is, requires at least a look at and sometimes an examination of its judges. Some of the judgments of those judges will, of course, have to be looked at, but no case-by-case analysis of the innumerable decisions which comprised their daily work will be offered. Quite apart from the drudgery involved in such a task and its dubious value to a history of the court, there is good reason for such a course. Although the court had an appellate function for many years, in the ex­ ercise of which three judges sat in banc as the full court and still had the review function already referred to, its judges were judges of first instance—of primary jurisdiction. As such, they have sought only to de­ clare and apply the law as it existed, being harsh or merciful or neither ac­ cording to their view of the facts of each case as they perceived them. In the tradition of their English predecessors, they adhered to the principle that only Parliament or the local legislature can make or change the law, and in spite of assertions to the contrary, the provisions of the Constitu­ tion Act 1981 with its Charter of Rights and Freedoms do not seem to have much changed that view. Hence the inclusion in this history of the court of a brief outline of the early history of the vast territory over which it has jurisdiction. The purpose is to outline the source from which that jurisdiction has come, before turning to the separate origins of the two courts from which came the Supreme Court of British Columbia.

TWO

The Supreme Court of Civil Justice of the Colony of Vancouver Island

On 23 September 1853. the Legislative Council of the colony of Vancouver Island acted on the governor’s request that it establish a high, court of justice for the colony. It resolved that a CQUflU2£jCpnimon Pleas he established with the juriScfiction and authority Douglas had asked for, and it agreed without hesitation with his suggestion that CanierjQnJje named the new court’s judge. On 2 December, the council passed an act to implement its resolution. It also gave the new court a more illustrious sounding name than Common Pleas; it became the Supreme Court of Civi| Justice of the Colony of Vancouver Island, the name tTwould be k n o w n ^ ^ u n n g the Island’s existence as a separate colony. On 7 January 1854, .Douglas reported at length on what had been done and, perhaps realizing a problem had been created by his choice of his hrnfhpr-ip-law as tjie colony’s high court judge, set out at TeriglTff'wreSsons for appointing Cameroridin'd Cameron's reasons for accepting. The governor referred, with the Muir case in mind, to “ certain irregularities in the practice of the Justices’ court arising from the inexperience of the magistrates” and went on to say that he had decided, and his council had resolved, to limit the jurisdiction of the justices’ court to “ simple matters as our justices are competent to deal with” and to establish the Supreme Court of Civil Justice with jurisdiction throughout the colony in all mat­ ters where the amount in dispute was £50 or more. And then he added; An Act to that effect, containing the rules and Forms of pleading to be used in said court, was passed in Council on 2nd day of December

T H E C O L O N Y O F V A N C O U V E R ISLAND

13

last, and David Cameron, Esq., was appointed Judge for the time be­ ing with a yearly salary of £100 sterling and a sum was appropriated out of the Proceeds, of the Duties on Licensed Ale-Houses to meet that outlay. A copy of the Act in question is herewith transmitted for your Grace’s information, and I beg that it may be submitted to a law of­ ficer of the Crown for revision, as acting Judge Cameron, by whom ;..andaccepted my request, until a law ofAcer fa r the co lflflf c fr

The appointment of Cameron raised a furore in the colony such as Douglas had never experienced before. Fears began to be voiced about the creation of a “ family-company” compact, and the Reverend Staines circulated a petition of protest, to be laid at the foot of the Throne, that eminent persons such as Justice Langford and council member Cooper would sign. Cam eron's appointment was vigorously protested for several reasons: he was not a lawyer by profession, possessed an “ improperly close connection with the Governor,” and showed “ notorious and gross partiality, acrimony, malice and indecision” in office.2 In February 1854, Douglas dismissed Staines from his post as school­ master, and feeling victimized, Staines took his petition to London. But the lumber ship on which he sailed foundered in a storm off Cape Flat­ tery, and he drowned. It was left to Langford and others to take up the dampened torch and forward the colonists’ complaints to London. In December 1854, Douglas sent off to London a long argument fa­ vouring the retention of his appointee with a supporting petition signed by about fifty employees of the Hudson’s Bay Company, who represented nearly all the landed interests in the colony. He also included an autobiographical note from Cameron himself, detailing and seeking to ex­ plain events of his earlier career being raised against him, most notably his failure in business in Scotland and his move to the West Indies. But by then the Crimean War had broken out and distracted Britain from her colonial affairs. Without the Reverend Staines to keep the fire of controversy blazing, little occurred that concerned administration of jus­ tice in the colony until peace was declared on 30 March 1856. When the affairs of Vancouver Island again received attention in London, the result was eminently satisfactory for the governor and his brother-in-law. On 4 AaaLl&56. a u h e cauH of.Queen Victoria in puckinghanxPalace, aruarder-in-conncil established the Supreme Court of Civil Justice of the Colony oj’ Vancouver Island.3 It was a coLuTorrecoi^fKattTn tKe words of the order,*?^aTnre'fioTden before a Chief Justice and the said Chief Jus­ tice shall be called and known by the name and style of the Chief Justice

14

A PR O G R E SSIO N O F JUDGES

of the Colony of Vancouver Island,” with precedence before everyone in the Colony except the governor and the commander-in-chief of Her Maj­ esty’s forces. The order was dispatched to Governor Douglas on_26 Appil 1856. and in the accompanying letter the formal appointment of Cameron

2 Mr. Cameron will be appointed Chief Justice and the warrant for that purpose will be transmitted to you with as little delay as possible. 3 Criminal jurisdiction has not been included. Your dispatch, num­ ber 11 of the 25th July last, shows you have not felt any difficulty as yet on this score, and as soon as you have assembled the lawful legis­ lature of the Colony as directed by my dispatch no. 5 of the 28th Feb­ ruary last, you will be able to make such further provision for the pur­ pose as you may consider advisable.” 4 On 5 May, Cameron’s appointment was confirmed by warrant. The order-in-council of 4 April 1856 authorized the court to make rules “ touching the forms and manner of proceedings to be heard in the said court,” provided “ the same shall be framed to promote, as far as may be, economy and expedition in the dispatch of the business of the court.” Cameron took on the task. The first rules of the court were made by him on 12 February 1857 and were officially passed by council five days later.7 In addition to controlling court proceedings, they governed the_admission of lawyers to practise in the colony and set the rules for an in­ ferior court for the recovery of small claims. When arranged and pub­ lished in 1858, they comprised the first book printed on Vancouver Is­ land.6 The book went through two more editions: in 1860 the fee schedule was revised, and in 1865 the regulations pertaining to barristers were amended.7 In his own quiet way, the chief justice had apparently made a good job of his first attempt at rule-making for his Supreme Court of Civil Justice of Vancouver Island. In spite of these events, Captain Langford increased his hostility to­ wards the chief justice, and when that erstwhile justice of the peace left the colony for London in June 1861, Governor Douglas felt the need to respond. The nature of Langford’s attacks and the governor’s responses are well illustrated in the draft of an undated letter, in Douglas’s hand­ writing, addressed to the colonial secretary, the Duke of Newcastle.8 It states: Referring to that part of your dispatch of the 2nd June 1862, inst., which particularly relates to Mr. Cameron, the Chief Justice of this

T H E C O L O N Y O F V A N CO U V ER ISLA ND

15

Colony and his antecedents as brought to your Grace’s notice by Mr. E. E. Langford, herewith copy of a communication from Mr. Cam­ eron detailing matters connected with his early history and rebutting Mr. Langford’s representations that he was an undischarged bankrupt prior to his coming to Vancouver Island. After suggesting that Langford was unworthy of credence, the gov­ ernor’s letter indicated that he would have said no more were it not for the duke’s expressed view that “ the time is approaching when it will be nec­ essary that Vancouver Island should require the services of a professional judge.” Douglas then proceeded to review the circumstances under which Cameron had become chief justice: In my dispatch of 7th January 1854, No. 2 forwarding copy of the minutes of the Council, I represented to Yr. Grace that in the circum­ stances of the inexperience of the magistrates and certain irregulari­ ties in their court it was found requisite to limit their jurisdiction in civil cases and to establish a Supreme Court of Civil Justice, I se­ lected to be the judge of that court Mr. David Cameron who was un­ doubtedly the most fitting person I could obtain, being a man of good business habits, of liberal education, some legal knowledge and pos­ sessed of a large amount of discretion and common sense. I would beg Yr. Grace to note Mr. Langford was then the Senior Magistrate and therefore Mr. Cameron’s election [sic) may I think be traced to Mr. Langford’s animosity. . . and 1 selected Mr. Cameron in prefer­ ence to Mr. Langford because an experience of nearly three years had shown me that Mr. Langford was singularly [lacking] in judgment, temper and discretion and because he was inferior both in legal and general knowledge to Mr. Cameron. And after denying knowledge that Cameron had failed in business twice, Douglas continued: My knowledge of him extended to the fact that he had given up the management of a large sugar estate in Demerara to accept an appoint­ ment on Vancouver Island. . . principally induced thereto by the op­ portunity it afforded him to seek a more temperate climate to benefit the failing health of his wife. There seems little reason to doubt that the letter was sent, but even if it was not, the draft eloquently indicates that, in spite of detractors, the gov­ ernor maintained a high regard for his chief justice. There is also evidence

16

A P R O G R E SSIO N OF JUD G E S

that this feeling spread to others as the years went by. When Cameron died after seven years of retired leisure at his pleasant and hospitable home in Esquimalt on 14 May 1872, the editor of the British Colonist wrote the following eulogy: With the death of Mr. Cameron another of our pioneers has passed away. He was a man respected by all who knew him, a man without an enemy and who may be considered one of the founders of the prosperity of the Province. Although not a lawyer, Mr. Cameron’s legal knowledge was extensive and under his able hand the present rules of court were framed. To offer an assessment of Chief Justice Cameron’s place in history as a judge of the court is difficult: there is little evidence available to base a judgment on. There is, however, the criticism that surrounded his ap­ pointment to the Court and him personally when, only two years after the order-in-council formally constituting the court had been presented to the public, lawyers began to appear before him. Cameron’s greatest disability was his lack of legal training or any advanced academic education to help him confront his opponents. Moreover, his business career before coming to Vancouver Island had ended in bankruptcy, and whether he was still undischarged when he came to Vancouver Island (as Langford alleged) is still a moot question. So when the fear that his appointment would signal the development of a Company-family compact was voiced, his enemies had a fair amount of ammunition ready. And when the legal profession emerged in Victoria, lawyers took advantage of his ignorance of the niceties of practice that had become their stock-in-trade: indecorous be­ haviour in court, for which he had to accept the blame, became far too frequent. But Cameron always had a firm friend and staunch supporter in his brother-in-law, and it is unwise to disregard the opinions of a man of such great commonsense and ability. In August 1862, nearly nine years after Cameron had come to the colony, Douglas would tell the colonial secre­ tary that “ Mr. Cameron performs his duties with much ability and his de­ cisions give general satisfaction,” and a year later he would say that Cameron was “ possessed of a more than ordinary amount of discretion and commonsense.” 9 As long as Douglas remained in office, Cameron had all the support he needed. Perhaps in seeking to judge the judge, it should be enough to remember him for the difficult role he played in the Court’s earliest history, when the discretion and commonsense he ex­ hibited were probably as valuable as they are today. Although much happened in the colony during the first twelve years of

TH E C O L O N Y OF V A N C O U V ER ISLAND

17

Cameron’s office, the first few years were uneventful (except for the per­ sistent criticism of his appointment, which he seems to have ignored). By then news of the outbreak of the Crimean War had finally reached Fort Victoria, and although that war waged thousands of miles away meant little to him personally or to the court, it seemed to present a potential danger. The possibility of attacks by predatory vessels acting under letters of marque was considered very real, and when the Hudson’s Bay Com­ pany’s ship Otter arrived, her crew was promptly added to the small band of defenders for the colony.10 Fortunately their services were never re­ quired; the Company and its northern competitor, the Russian-American Fur Company, never molested each other’s trading posts because of a secret agreement between them. The war stimulated the local economy in various ways. Following an unsuccbssful Anglo-French attack by sea on the Russian fortress at Petropavlosk on the Kamchatka Peninsula in early 1855, the commander-in­ chief Pacific Station at Valparaiso, Chile, suggested establishing a naval supply depot and hospital at Esquimalt. Governor Douglas promptly complied. Some economic benefit was conferred on the colony by work done, and although the hospital was never required (the renewed attack later that year found the fortress abandoned and resulted in only one casualty) some seven years later the buildings would become a part of the major British naval base constructed there. Other works undertaken at that time included a court house, for which £500 was appropriated, and the period marked completion of the road to Sooke. By now, with a church and a school at Victoria, the fort was becoming an anachronism. In the summer of 1855, however, when about two thou­ sand members of the Haida Nation assembled in the area, apparently seeking food, its presence was welcome. The existence of the fort may also have made a police force of only “ four active m en” acceptable as a sufficient precaution until the Haidas departed. The warlike situation that existed in the neighbouring territory of Washington was attributed by the Island colonists to mismanagement of the natives by the local authorities there, and being able to avoid such a problem in their own territory, they saw little need for defensive precautions. Thus in November 1855, the governor could report truthfully to London “-that p eacean d quietness reigns within its 1the.colony’s) limits, and that an abundant harvest had yielded a bountiful supply of food for the consumption of the white popu­ lation.” 11 4n-additi«ft-to-the changes in the system fnr arlm inj^ripg j y ^ j ^ th» political system in the colony, a N o j ^ g m ^ ^ Early in 1856, after legal bpm ion'K adurged correction of the governor-in-council’s lack of legislative power, instructions came from the colonial secretary ordering

18

A P R O G R E S S IO N O F J UD G E S

p o u glas to create an elected assembly for making laws within the col­ o n y .12 TJicgovernorprotested, noting his lack of both knowledge of and r-orpppfpnt assistance for the task. Nevertheless, Douglas promptly set about it. The franchise would be restricted to resident landowners-holding tyvAutyriicres or more of freehold property valued above £300. According to Begg, this restriction made the number of electors so few that, except in Victoria, the returns were little more than nominations. The members elected for Victoria were J. D. Pemberton, James Yates, and E. E. Lang­ ford; the other members of the assembly were returned by acclamation: namely, Dr. J. F. Kennedy for Nanaimo, Thomas Skinner and J. S. Helmcken for Esquimalt, and John Muir for Sooke.12 QaJ2-AugutiL 1.836, Vancouver Island’s lirst House of Assembly came together in a “ smokey” room at the fort, probably Bachelors' Hall in for­ mer times. Proceedings opened with an eloquent address delivered in im­ pressively Governor Douglas fashion. He then called on the chief justice to administer the members’ oaths of allegiance and to examine their quali­ fications. Dr. Helmcken was elected Speaker, the House got down to business, and, ironically, the first item was a dispute over Langford’s qualifications. It resulted in his resignation and the choice of J. W. Mackay, a Company officer, as his successor. Within a few years Lang­ ford left the colony for England. There was little independent action the assembly could take except to criticize the governor. Its, only source of revenue was from liquor licences. for it had no power to borrow. The Company, on the other hand, had large revenues from its trading activities, and the governor himself controlled a substantial trust fund into which were paid proceeds from land sales in the colony and the royalties obtained on coal production at Nanaimo. The assembly, not unreasonably, thought that the cost of postal service and road construction should be a charge on that fund, and in 1857 it refused the governor supply for those purposes. Hampered by lack of any legal advice, the new body’s activities concerning the administra­ tion of justice could not encompass anything more than the study and val­ idation of Cameron’s rules of court. It is significant, however, that the rule-making power of the court was, even then, subject to the approval of the government. At this time, the European population of the colony was about one thousand persons, scattered among settlements at the southern end of Vancouver Island and the community at Fort Colville (Nanaimo) where a number of Scottish and English miners had arrived in November 1854. There was, of course, some fear among them of the approximately thirty thousand Natives who surrounded them, especially when the Haidas had “ attacked and nearly destroyed a native Cowegin village situated about

TH E C O L O N Y O F V A N C O U V ER ISLA ND

19

fifty miles north of this place.” 14 Happily, a similar attack never material­ ized, but its threat served to bind the settlers together. Moreover, occa­ sional social activities, particularly in the south, added to the people’s sense of community. The governor made a point of appearing in full uni­ form with his fashionably dressed wife and daughters at the receptions and dinners given by the visiting ships of the Royal Navy and dined fre­ quently with the ships’ officers and others at the fort, thereby doing as much as he could to provide everyone with a feeling of “ occasion” that must have been lacking for the new settlers. Disputes, of course, were seemingly endless; many of the colonists did not consider Douglas fit for his role as representative of Her Majesty. But a sense of solidarity still prevailed among the colonists. Their numbers had grown steadily, and in addition to the growth in general farming, there had been developments in the basic industries of lumbering, min­ ing, and fishing. The audience could only have listened with feelings of pride when, at the opening of the first meeting of the Assembly in August 1856, Douglas said of his island colony: 1‘^df^Jttpportm g^ad defraying .alLtherexpense oLits^own poveroyigat^Jt presents.a.^trilfjqgcontrast, to every other colony in the British Empire, and like the native pines of its storm beaten promontories, it has .acquired a slow butnardy growth.

T H RE E

The Supreme Court of the Colony of British Columbia

During the years after the grant of Vancouver Island to the Company in 1849, the area lying between the Rocky Mountains and the coast remained remote and mysterious. Victoria sheltered its fur trade from the approach of traders by sea, and Fort Langley on the Fraser River had succeeded in preventing even British vessels from using the river for trading or fishing within the three-mile limit. But the winds of change had begun to blow. Gold and rumours of gold brought seekers into the Kootenays in 1856 and to the rocky banks of the Thompson River by mid1857. And the arrival of four hundred ounces of gold dust found on the Fraser River at the San Francisco mint in early 1858 caused a rush that would bring a second colony, British Columbia, into existence. The gold-seekers followed various routes into the territory, but most of those from California came by way of Victoria. The vanguard arrived there on 25 April 1858. The astounded residents saw the American steamer Commodore berth with her decks crowded with about 450 pas­ sengers, some British, some American, but for the most part German and Italian. All were well behaved. A few chose to remain in Victoria, but the greater number refused to be intimidated by the dangers of crossing the gulf and moving up the Fraser River. Using all means available, they pressed on past Fort Langley, and, when news of the returns yielded from the sandbars between Fort Hope and Fort Yale got out, other fortuneseekers soon followed. By year’s end an estimated twenty-five thousand eager miners had arrived on the Fraser to search for gold.

T H E C O L O N Y O F BRIT ISH C O L U M B IA

21

The number of newcomers who remained in Victoria to take advantage of trading opportunities also began to grow, and it soon became substan­ tial. New buildings sprang up, giving Victoria all the appearance of a boom town. In a few years, the town grew to a population of about six thousand. And the population was no longer mainly British: it included French, German, Italian, Chinese, and native-born Americans; it even in­ cluded a small contingent of blacks from the United States, who pro­ ceeded to form, with the governor’s approval, a volunteer militia unit known as the Victoria Pioneer Rifle C orps.1 The reaction of Governor Douglas to the situation was decisive and quick. On 8 May 1858, he reported the state of affairs to the colonial sec­ retary in London, concluding with his intentions: For the time being, all my efforts will be directed towards maintain­ ing the peace in the gold districts, to supporting the Hudson’s Bay Company, and infusing a British element into the population.2 The actions that followed suited his words. In a proclamation made on the same day (but later disallowed), all vessels entering the Fraser River for trade without a licence from the Company were made liable to forfei­ ture, and an appeal for forces to assist in maintaining the Queen’s author­ ity was sent to the commander-in-chief, Pacific Squadron, at Valparaiso. In October the formidable H.M .S. Ganges, under command of RearAdmiral Baynes arrived at Esquimalt; she was frequently in the North Pacific in the years that followed, and her commander was later to restrain Douglas’s impetuosity in the dispute over sovereignty of the San Juan Islands that nearly pushed Great Britain and the United States into war—the result of an American settler on the island rashly shooting a pig belonging to the Company. A man of action, Douglas decided to go to the gold-fields. Taking the Company’s ship Otter, he joined the Royal Navy’s H .M .S. Satellite at the mouth of the Fraser and proceeded up river to see the operations for himself. On returning to Victoria, be appointed salaried officials at Fort I .angley—Fort Yale, flnij ILyttorii toi enforce, his rev er^ n elaw F ^ rl'J’f^tCes of the peace,(magistrates) at Fort Yale and Hills Bar. In addition, he entered into an agreement with about five hundred volunteer road-makers for the construction of the Harrison-Lillooet Trail and the establishment of Fort Douglas at the head of Harrison Lake. Although that route to the Interior was supplanted within a few years by the more famous and in­ finitely more expensive Cariboo Road, it served the useful purpose of opening the upper reaches of the Fraser. Douglas, of course, was doing what he did best, motivated both by his

22

A PROGRESSION OF JUDGES

concern for the interests of the Company and his determination that_Vancpuyer Island and the mainland north of the 49th parallel should remain jgrjjjgt). The new secretary or state for trie colonies Slr M w ^ a BulwerLytton, a celebrated novelist and dramatist of romantic temperament, un­ doubtedly found the reports of the gold rush appealing. In July 1858, he decided to procure cancellation of the exclusive trading rights held on the m a in la n d hv the Hudson’s Bay Company in order to create a new Crown colony , apd to that end promptly had such a bill introduced in Parliament. On the same day he wrote Douglas reprimanding him for his 8 May pro­ clamation but nevertheless offering him, in addition to his post on Van­ couver Island, the governorship of the new colony of British Columbia on the condition that he sever his connection with the Company that he had served so long and so well. Douglas did not hesitate. He replied promptly in the affirmative and agreed not only to resign as chief factor of the Com­ pany but also to sell his shares in its associate, the Puget Sound Agricul­ tural Company. Bulwer-Lytton had apparently not been in any doubt about the reply he would receive; on 2 September he sent Douglas his commission as governor of the newly created colony. On 2 August. 1858. when royal assent was giy.ea,tqLytton's bill, it be­ ca m e law under the title “ An Act to Provide for the Government of Britkh Cnl|im bia.” 3 Thus, the colony oFBritish Columbia came into exis­ tence, with its boundaries defined and provision made for the future in­ corporation into it of the colony of Vancouver Island. The act also re­ pealed, as "the act of 28 July 1849 had done earlier for the colony of Van­ couver Island, the acts of 43 Geo. Ill, cap. 138 and 1 & 2 Geo. IV, cap. 66, by which, inter alia, the jurisdiction of the courts of Upper Canada had been extended to the new colony. For the time being, at least, the de­ velopment of law and order there would not be subject to the directions of Eastern Canada. A month later the Crown revoked its grant of 30 May 1838 which had given the Hudson’s Bay Company exclusive rights to trade with Indians throughout the region west of the Rocky Mountains, except for the por­ tion claimed by Russia. Douglas had, of course, relied on that grant to support his 8 May proclamation, and the reprimand he received could only have been prompted by political plans of which he was unaware; it would not seem to have been a reflection on his judgment. A civil list for the colony was an urgent requirement for the secretary of i'F h l'H g * at West­ minster for help in finding someone suitable, the name ot Matthew Baillie Begbie was given to him. After several interviews, that gentleman’s ap­ pointment was decided upon and on 4 September 1858, an order-in­ council authorized his commission as judge in British Columbia.

THE COLONY OF BRITISH COLUMBIA

23

Begbie left England just a week later on the Cunard liner Niagara bound for New York. From there he took another ship to Panama with a rail crossing of the isthmus to follow, and then a voyage from there by sea to San Francisco, where he enjoyed a brief stay before proceeding to Vic­ toria. He brought with him his own commission as well as the commis­ sion issued to Governor Douglas; in addition, he carried several procla­ mations designed to bring the act of 2 August 1858 into force in British Columbia, to revoke the Hudson’s Bay Company twenty-year old exclu­ sive trading licence with the natives, and to declare that the law of En­ gland as it existed on the date of the proclamation (with some exceptions) was henceforth to be the law in force in the colony. He was among the last of the many who came to Victoria on their way to the mainland in that auspicious year of 1858, but he was certainly far from the least. Upon Begbie’s arrival with both commissions and proclamations, the government lost little time. On the following day, a party comprised of GovettittutittUglas (newly appointed a Companion of the Order of the Bath), J R e a * Aflmir^.nPalvn£^ - :|nd the adya^.nlyty ofjhg..fifiyfl),, Engineers which Lord Bulwer-Lytton had promised would be sent out to the nevTcolony, left Victoria on the H.M .S. Satellite for Point Roberts. From there, on 18 November, the party transferred to the Otter and the Beaver to complete their journey to Fort Langley. On the following day, with much ceremony and before an audience of about one hundred, Governor Douglas read Judge Begbie’s commission and administered his oath of office. The new judge then read the Queen’s commission appointing James Douglas the governor of the new colony and the proclamations. On the next day, after the formal salute to the governor, the party returned to Victoria. By any standards of his or our day, Begbie was a remarkable man. Born in 1819, he had been a financially assisted and competent scholar at Cambridge, and after his call to the bar in November 1844, he practised as a Chancery barrister in London where, in addition, he was employed by The Times as a law reporter to make notes of cases for publication. He was not quite forty years old when he came to British Columbia. Tall and very strong, with a fondness for travel that had already taken him to Europe and parts of Asia Minor, Begbie was also a considerable linguist, a good athlete, and intellectually interested in mathematics, map-making, chess and the classics. He was also musically inclined and a singer with a pleasing voice, qualifications which made him president of the Victoria Philharmonic Society very soon after his arrival and ensured that he was always an indefatigable member of church choirs. And, like Governor Douglas, he was determined that the rule of law should prevail in British Columbia.

24

A PROGRESSION OF JUDGES

Two incidents were notable demonstrations of the need for a high court judge in British Columbia and of the excellence with which Begbie’s ap­ pointment filled that need. The first was the outbreak in August 1858 of a serious conflict between the natives and miners not far above Yale, the resuit ot antipathy felt by the former for 'Boston men. In the course or the conflict, well over one. hundred. persons on both sides had been killed. Governor Douglas promptly set off with a party of officials in t^Sa ietT ite and, after an on-the-spot investigation at Fort Hope, ifs