Chapter 3 — property, geography, and british columbia’s courts

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Citation: Tina Loo, Making Law, Order and Authority in British Columbia 1821-1871 (Toronto: University of Toronto Press, 1994), pp. 54-72


The 1858 gold rush diverted the attention of the colonial Office and the inhabitants of Vancouver Island from their internal political wrangling and towards the banks of the Fraser River on the mainland. On 25 April the Commodore deposited the first boatload of fortune-seekers – 400 in all – in Victoria. They were, according to Vancouver Island Governor James Douglas, ‘a specimen of the very worst of the population of San Francisco – the very dregs of society.’ Nevertheless, he admitted, despite the ‘many temptations to excess in the way of drink,’ ‘quiet and order prevailed.’1 These 400 were followed in the same year by an additional 25,000, 10,000 of whom arrived in the six weeks between 1 May and 15 June, thereby precipitating the formation of the separate colony of British Columbia on 2 August, with James Douglas doubling as its governor.2

Despite the quiet and order on the island, it soon became apparent that British dominion over the mainland was tenuous at best, and perhaps only theoretical. For on New Year’s Eve, 1858, just months after British Columbia had become a colony, a man strode into the Fort Yale magistrate’s office with nine of his comrades, forced his way into the lock-up arrested the magistrate and released the prisoners, friends who had been incarcerated for roughing up some ‘darkies’ in a local saloon.3 The posse leader was Californian known as ‘Ubiquitous’ Ned McGowan, who, along with his friends, wanted to put an end to the pompous blusterings of the local magistrate, ‘Captain’ Peter Brunton Whannell. Whannell was an Australian; a man, as Ned recalled, ‘of fine physique, and had been a Captain in a gold guard in Australia.’ ‘His good looks was all he had to recommend him, however, for he was an imperious blatherskite and fool. If you addressed him with your hat on, he would threaten to commit you for contempt.’4 As it turned out, the captain was a simple foot soldier in the infantry who had deserted and run off with another man’s wife.5 He was a dashing cad who loved to exercise his newly minted authority; or, as Ned described it, to ‘go charging and slashing about.’ It was during one of these fits of judicial energy that the captain decided to clean up neighbouring Hill’s bar by closing down all the saloons and gambling-halls.6 In doing so, he incurred the wrath of Ned and his colleagues, with the consequences just outlined.
The captain was quick-marched to Hill’s Bar, a few miles away, and forced to stand trial before Ned and George Perrier, the colonially appointed magistrate, who must have taken some delight in seeing his rival, with whom he had had a longstanding feud over jurisdiction, in the dock. Whannell was charged with contempt of court, tried, and jailed after getting ‘a pretty sharp lecture about his tyrannous and illegal acts.’7
Ned McGowan was no ordinary California gold-seeker. He began his public career as a municipal politician in Pennsylvania, then migrated to California in 1849 to participate in the gold rush. Politics attracted him again, and he was soon elected a judge in San Francisco. The position embroiled him directly in the affairs of the Committee of Vigilance, an informal but powerful tribunal of respected men who were the real political brokers in the city and who meted out rough justice to anyone who got in their way.8 In 1856 McGowan was accused of murdering one of the Vigilantes. But he escaped before he could be lynched, and sparked the longest manhunt in the territory’s short history. ‘Ubiquitous’ was eventually caught, but actually managed to secure a formal trial in 1857. Though he was acquitted, he found California a little too uncomfortable for his tastes and slipped out of Sacramento in July 1858 for the safety of the Fraser River.
Though ‘Ned McGowan’s War,’ as the episode became known, has been described as an opéra bouffe, we should not dismiss it too readily, for it can be read as an allegory, revealing the kind of order British Columbians wanted to achieve through the law and the problems that confronted them.9
One of the most notable things about ‘Ned McGowan’s War’ was that it was not a war at all: thought the colonial government mobilized 25 Royal Engineers and an equal number of Royal Marines for an assault on Hill’s Bar and asked the Colonial Office to dispatch an additional 150 members of the Royal Irish Constabulary to British Columbia, they need not have worried.10 McGowan gave himself up peacefully, was tried and discharged with the judge’s best wishes. He resurfaced soon afterwards in California with some $47,000 from his share in a Fraser River claim.11 Moreover, he was not at all ‘ubiquitous’ in British Columbia. Despite the government’s fears, the level of violence in the colony contrasted favourably with that of the gold fields to the south, and was the subject of comment by seasoned miners. ‘A Returned Digger’ told prospective gold-seekers that ‘no body of men upon the whole could conduct themselves [56] more peaceably than do the miners of British Columbia. All disputes are submitted to the Commissioner.’12 Magistrate Philip Nind agreed, telling Governor Douglas that his six days at Antler Creek hearing mining disputes ‘passed off without any disturbance, and though ‘all were not satisfied, the unsuccessful parties submitted quietly on finding their claims were not supported by law.’13 Even the Americans were impressed: William Downie, an old forty-niner, was astonished at the calm that prevailed in Antler. ‘they told me it [British Columbia] was like California in ‘49,’ he said to Matthew Begbie, the colony’s Supreme Court Judge, ‘Why, [in California] you would have seen all these fellows roaring drunk, and Pistols and bare knives in every hand. I never saw a mining town anything like this.’ The ‘this’ to which Downie referred was, according to Begbie, a collection of ‘some hundreds . . . all sober and quiet. It was a Sunday afternoon, [and] only a few of the claims were worked that day. It was as quiet as Victoria.’14
Observations like those of ‘A Returned Digger’ and William Downie did not mean that those who came to the colony to seek their fortunes were unconcerned about the issue of order – they were. But the order they wanted to create and preserve was an economic one; one that would favour the security of property and its pursuit. Even amidst the exaggerated fears of violence precipitated by Ned McGowan’s War, there were those in the colonial government whose worries over the happenings at Hill’s Bar stemmed from concern over the potentially negative effect of such actions on the colony’s economic development, rather than over the possibility of bloodshed.
In addition to shedding fight on the kind of order British Columbians were concerned with, Ned McGowan’s War highlighted one of the difficulties the colonial government faced in making its authority meaningful. Though British Columbia was an independent colony, its seat of government was in Victoria, on Vancouver Island. This meant that outbreaks of violence on the mainland could not be contained immediately, but had to await the arrival of the island-based administrators and military. Distance proved to be as formidable an obstacle to the effective and efficient governance of the colony as were the ‘clamerous [sic] and politically speaking the most unreasonable People in the world’ who lived within its borders and had their own ideas about how they should be ruled.15
The problems of creating a favourable economic order and overcoming the colony’s great distances were solved through the law. Indeed, he former could not be achieved without accomplishing the latter. Both European British Columbians and those who governed them saw the law as central to economic development. But in the absence of the face-to-face familiarity necessary for a system of paternal control, like that which characterised the fur-trade period, to work, both the colonial government and the colonists moved quickly to formalise [57] and define their relationship, which, given the colony’s origins, was primarily economic. That relationship was constituted through a discourse of laissez-faire liberalism that ascribed to the state the role of creating the conditions necessary for the pursuit of individual self-interest. The colonial government, through the law and the courts, was to protect the property of British Columbians by providing them with a rule-bound arena in which to pursue their economic self-interest with a minimum of interference and to resolve any disputes that arose as a result of it.
Creating the kind of economic order British Columbians wanted – a laissez-faire liberal one – required a strong and interventionist state. A well-functioning capitalist marketplace relied upon the imposition of a set of standardized and certain rules of exchange over great distances; and this was achieved by creating local judicial offices. Though doing so was by no means an innovation – indeed, it was something that had its origins in pre-capitalist medieval England – the centralized power that local justices represented and upheld facilitated economic development by providing regularized ways of dealing. But as Ned McGowan’s War suggested, the colony’s geography could pose a significant obstacle to the effective exercise of state power. The extension of law to create a liberal economic order was hence a spatial and social problem. The mainland colony’s great distances and the localism it spawned were overcome by investing local courts and resident law officers with wide powers. Thus, as will be discussed, if the demands of a market economy provided the colonial courts with their raison d’être, British Columbia’s geography went a long way to defining the ambit of their powers.
When James Douglas issued a proclamation in December 1857 declaring the rights of the Crown with respect to the gold found ‘within the limits of Fraser’s And Thompson’s River Districts’ some nine months before British Columbia came into being, he knowingly overreached his jurisdiction as Governor of Vancouver Island, fearing that the ‘country would become the scene of lawless misrule’ because of the influx of American miners.16 This action set the tone for the Government’s subsequent policy in constructing the colony’s courts. Under the guidance of British Columbia’s new puisne judge, Matthew Baillie Begbie, the government moved quickly to establish formal legal institutions in the gold colony, hoping to forestall the development of a strong tradition of local government that characterized the California gold fields.
A third-class Cambridge graduate and a Lincoln’s Inn-trained barrister, Begbie was recommended for the British Columbia post by Sir Hugh Cairns, his colleague at Lincoln’s Inn and England’s solicitor-general.17 A month after his arrival, Begbie issued an order creating the Court of British Columbia; six [58] months later, the court over which he presided was named ‘the Supreme Court of Civil Justice of British Columbia’ and was given jurisdiction over all civil and criminal cases.18 Proclamations issued in 1860 and 1865 augmented the powers of the Supreme Court by making provision for the speedy trial of prisoners and giving it jurisdiction in bankruptcy.19
Given the Whannell-Perrier fiasco, Begbie also turned his attention to the appointment of the colony’s justices of the peace.20 His remarks on the magistracy reveal his belief that authority spring from social status. Those suitable for the position possessed the carriage and demeanour associated with the English gentry. ‘Great care would require to be exercised in the selection of these gentlemen,’ he informed Governor James Douglas. ‘Probably men upwards of thirty years old, with such common sense and good temper as possible – and a little capital, and with country tastes, would be preferable. Personal appearance and even manner and voice are of considerable effect – an Indian can distinguish an Englishman by his voice.’ Colonial magistrates should also have a legal education, he married, and bring their families with them to their districts. ‘I should hope thus,’ Begbie concluded, ‘to secure to the colony the advantages of both resident English country gentlemen and stipendiary magistrates.’21 Despite Begbie’s desire for educated gentlemen, the colony’s justices were, with one exception, untrained in the law.22 English sentiment remained the overriding prerequisite for the colonial magistracy. Englishmen who lived in California before travelling north to British Columbia were to be avoided. ‘there is usually to be remarked among such persons an alteration in voice, in tone and manner,’ Begbie noted, as well as ‘an accretion of prejudices as to colour and race, which I think render them unfit.’23
Despite their lack of legal education, British Colombia’s justices were called stipendiary magistrates, a term usually reserved for barristers with at least five years of legal standing, and were paid civil servants.24 Most were Anglo-Irish rather than English, and had some previous connection with the military.25 They immigrated to the far reaches of the empire, like so many others from similar backgrounds, to maintain and perhaps increase their social status. Becoming a colonial justice was attractive for just these reasons. When the Langley JP Charles Bedford learned that the office did not confer the status he had hoped for, he resigned. ‘At the time I had the honour to receive from you the appointment of Justice of the Peace . . . I was under the impression that . . . altho’ the salary was extremely low, my position in the colony would be of some standing,’ he wrote to Douglas. ‘I find that Justice of the Peace in this colony occupies an inferior position . . . I therefore beg . . . to resign.’26 Although Bedford did not achieve the social status and political standing he desired, most of British Columbia’s other JPs eventually did, sitting in the colony’s Legislative Council after its creation in 1864.27
[59] In addition to their political involvement, all of the colony’s magistrates held a variety of non-judicial posts concurrent with their judicial offices. The concentration of a variety of administrative functions in the hands of British Columbia’s legal officers was probably a hallmark of frontier societies. The colonial secretary informed the newly appointed JP Peter O’Reilly that
[i]n the early conditions of the Colony before institutions are formed and Departments are organized, it is incumbent upon every officer of the Government to afford his assistance in every way in which it may be needed; and under such circumstances, Officers are frequently called upon to render Services which in a more advanced state of the Colony it would never fall to them to fulfil.28
These services included acting as the district’s land recorder, coroner, postmaster, gold commissioner, Indian agent, and revenue officer, as well as its stipendiary magistrate. Justices of the peace also negotiated the public works contracts for many of the colony’s roads and bridges. As Richard Hicks recalled, it was not a job for the lazy or the faint of heart. ‘I came to Fort Yale when great excitement existed among the Indians, the population amounted to upwards of five thousand and [included] some of the worst California could produce . . . I had to perform every office and work – even to grave digger. My hands were full night and days[.] I worked hard.’29
In addition to the duties associated with these offices, British Columbia’s justices sometimes found themselves saddled with the responsibility for the social welfare of the district. For instance, after the 1868 fire that all but destroyed Barkerville, the magistrate there dispensed what money he could to help those who had lost everything.30 At Lytton, Henry Maynard Ball dealt with ‘a serious and infectious epidemic of “Diphtheria and Diarrhoea” combined’ that spread among the Indian population. ‘Common humanity, as well as a sense of duty dictated to me to undertake upon myself the responsibility for the expense,’ he informed the colonial secretary.31 Later he wrote to New Westminster requesting that ‘an Indian Half Breed destitute and sick with a white swelling on his knee’ be given some money and sent down to the hospital to have his leg amputated.32 Cases of insanity sometimes confronted the magistrates, who locked up the afflicted parties until they could be sent to the jail at New Westminster.33 British Columbia’s magistrates were, as contemporaries noted, virtually the government of their districts.34
The judicial duties of British Columbia’s justices of the peace were defined in part by the gold-rush economy. From the colony’s beginnings, cases arising from commercial transactions comprised the bulk of the legal business in the [60] colony. At Yale, on his first circuit in 1859, Begbie reported that there were ‘heaps of civil causes here, I don’t know how many came rushing at me. Summonses have been issued right & left: and I hear that there will be an equal amount of litigation at Lytton.’35 Even after the initial rush of suits that accompanied the 1858 Fraser rush, Begbie still considered that nisi prius business occupied most of the court’s time.36 ‘It has often happened to me on the mainland,’ he wrote after the completion of his 1866 summer circuit, ‘that while the criminal business was either nothing at all, or at least extremely light, the nisi prius business has extended over several days or even weeks.’37 Most of these causes were actions to recover debts, usually involving sums ‘almost always under £50 and often under £5.’38
By 1959 it was clear that the costly and slow proceedings of the Supreme Court in handling these cases deterred suitors from launching actions. Certainly the forty-five people who petitioned James Douglas in August 1859 thought so. Calling themselves ‘sufferers by there being no Courts of Law in the nature of District or County Courts in the colony of British Columbia to which we can apply . . . to recover Debts of small Amounts due by Miners and others, as well as between miner and miner,’ the petitioners called for the creation of a number of small debts courts with jurisdiction to hear cases involving up to fifty pounds.39 Pointing to the ‘[m]any abuses that had grown out of that state of things, together with a general want of confidence, and an almost entire stoppage of credit transactions,’ James Douglas issued a proclamation creating small debts courts in December 1859.40 Presided over by the colony’s stipendiary magistrates, these courts were given the jurisdiction requested by the petitioners (fifty pounds) but were not confined to acting in particular districts because, according to Attorney-General George Hunter Cary, of the ‘wandering nature’ of the population.41
As the rush proceeded up the Fraser, culminating in the 1862 discoveries in the Cariboo, commercial credit became even more widely extended. Attracted by the possibility of profiting from the influx of miners into the colony’s interior, Victoria and New Westminster merchants scrambled to get their consignments of goods upcountry. This growing web of credit precipitated calls for greater regulation by the courts. ‘Merchants should be protected and assisted by the judiciary of the country,’ wrote one Cariboo trader in 1865. ‘[T]here should be no false delicacy manifested by the Judge to protect the trader, without whom the country never would have been prospected . . . for the moment merchants are prevented from recovering their just debts they will shut down all alike.’42 ‘Pickaxe’ agreed, and observed that the ‘good nature’ of the district’s stipendiary magistrate had inspired some miners to avoid paying their bills and merchants to withdraw credit. As a result of the magistrate’s ‘imprudent’ leniency, [61] he concluded, ‘the poor but honest man is likely to die of starvation, when he might otherwise be profitably employing his time prospecting.’43 These voices and the others that joined them44 struck a sympathetic chord with British Columbia’s Supreme Court judge. ‘Authority might usefully be given to one or more county court judges,’ Begbie suggested, ‘to deal . . . with all matters . . . touching the granting of injunctions, the appointment of Receivers and the giving leave to appear and defend actions on Bills of Exchange and promissory notes.’45 When the county courts were established in April 1866 they were modelled on their English counterparts, but bad jurisdiction in cases involving sums up to £100 ($500), a significant increase over the old limit of £50 ($250) set by the 1859 proclamation.46 Notwithstanding the objections of Attorney-General Crease, the new County Courts Ordinance was, if the Yale grand jury’s presentment was indicative, ‘looked upon as a most desirable improvement.’47
While the small debts and county courts dealt with the general need to regulate credit, more specialized institutions emerged to serve the needs of the mining economy. Created in August 1859, gold commissioner’s or mining courts were modelled on the New Zealand institution of the same name and heard all mining disputes arising within a given district.48 The colonial administration moved quickly to establish formal institutions in the gold fields, hoping to profit from the collection of various licensing fees, but also to prevent the development of a strong tradition of local government of the form that in California centred around miners’ meetings.49 These were informal tribunals consisting of elected miners who regulated conduct in the gold districts, meting out punishment according to local sentiment. In British Columbia, miners’ meetings were replaced by a single assistant gold Commissioner who rendered decisions summarily and was armed with powers of enforcement equal to those of the Supreme Court. Additional rules and amendments were made in the next five years, and proclamations issued in 1864 and 1865 further extended and consolidated the provisions of the various Gold Fields Acts.50 The jurisdiction of the Mining courts remained the same until 1867, when the Gold Fields Act was again amended, this time eliminating appeals to the Supreme Court based on questions of fact.51 As well as sitting in judgment over mining disputes, assistant gold commissioners issued mining licences, collected the various licensing fees, monitored the productivity of the diggings and, presided over locally elected mining boards, which drafted bylaws regulating the operation of the local mines. Like the small debts and later the county courts, British Columbia’s mining boards and courts were expected to ‘foster and encourage mining enterprise in developing our mineral resources.’52
The union of Vancouver Island and British Columbia in November 1866 created a controversy over the Supreme Court, which again underscored the impor-[62]-tance of commerce in the life of the colonies and the role the law played in fostering it. As with the inferior courts, the colonial merchants exerted pressure on the government to ensure the security of property through reform of the Supreme Court. Because the Act of Union made no mention of the status and jurisdiction of the colonial courts, it was unclear how the legal apparatus of the now united colonies would work. British Columbia’s governor, Frederick Seymour, along with Matthew Baillie Begbie and Attorney-General Henry Crease, contended that upon union the Supreme Court of Civil Justice of Vancouver Island ceased to exist, and that the only valid court and chief justice was that of the former mainland colony.53 ‘When the whole executive [of Vancouver Island is abrogated,’ wrote Begbie to the Colonial Office, ‘the judiciary must surely expire with it.’54 While those on the mainland considered the Act of Union less a merging of the colonies and more an ‘extension’ of British Columbia ‘into a new dominion,’ those on the Island had different ideas.
There was little love lost between Joseph Needham, Vancouver Island’s chief justice, and Matthew Baillie Begbie, particularly in the wake of the Grouse Creek War (see chapter 6), when Needham was called in to arbitrate an appeal of one of Begbie’s decisions. Over and above the personal animosity between them, Needham claimed that because the Act of Union did not specifically abolish either of the colonial Supreme Courts, both continued to exist after 1866.55 Moreover, by virtue of the 1857 imperial order in council establishing the Supreme Court of Vancouver Island, the local colonial legislatures could not frame or alter the rules and regulations governing the court.
While the Colonial Office sided with Needham on his first point, it rejected the second. ‘the object of that Act [of Union], as I understand it, was simply to unite the 2 colonies of Vancouver’s Island and British Columbia in as general terms as possible, leaving the Colonial Legislature to work out the details of any changes that might be deemed expedient,’ the secretary of state for the colonies, Lord Carnarvon informed Seymour. ‘the act was not intended to grant titles, jurisdiction, powers & position of the Judges, and it appears to me that it did not touch them. And if this is so, Mr. Needham is still Chief Justice of Vancouver’s Island & with all the same powers & authority that he had before the Act passed.’56
To clear up the doubts surrounding the jurisdiction of the two courts, the Colonial Office suggested that the local legislature pass an act declaring the legitimacy of the two chief justices in the united colony but giving each precedence in his formerly separate jurisdiction. Upon the death or resignation of Begbie (chief justice of the mainland of British Columbia) or Needham (chief justice of Vancouver Island), the remaining judge would become the chief justice of British Columbia.57 After much heated discussion, the Colonial Office’s [63] suggestions were embodied in the Courts Declaratory Ordinance, passed in May 1868, almost a year and a half after union.58
The ordinance did little to alleviate the practical problems of having two Supreme Courts in a colony of fewer than six thousand people.59 Both the merchants and lawyers of British Columbia complained of difficulty in securing debts, given the lack of concurrent jurisdiction of the two superior courts. When Joseph Nicholson, an agent of some Victoria merchants, attempted to collect money owed to his employers from Charles Wallace, the capias issued on his behalf by the mainland Supreme Court was ignored by its island counterpart. Needham discharged Wallace as a bankrupt, and the money that was paid into court was given not to Nicholson but to Wallace’s other creditors.60
Nicholson petitioned the government in December 1868, and in response the Legislative Assembly struck a committee to examine the jurisdictional problems raised by the petition. Of central concern to the committee was ‘the very great injustice [done] to litigants’, particularly given that ‘a very large portion of the law suits are connected with the local trade and commerce of the colony.’ The only solution, the committee reported, lay in giving the two courts equal jurisdiction. Without reform, suitors would be compelled to launch actions in both the Island and the mainland courts, an enterprise that was costly and time consuming.61
Concerns about the adverse effects of the Courts Declaratory Ordinance on the commercial life of the colony were raised again by merchants and lawyers a year after Nicholson’s petition. ‘Nearly all the men of business in the Colony’62 called the governor’s attention to ‘the want of concurrent jurisdiction in Civil cases.’
[It] is felt to be a great hardship pressing with great weight on a Commercial community whose interests are identical over the whole Colony. It imposes on litigants a double tax, by compelling them to resort to two Courts before they can obtain the fruits of their Judgement and by giving to Debtors every opportunity of defrauding their Creditors by Passing from one Jurisdiction into another and so embarrassing the Administration of Justice.63
In addition, both the merchants and ‘nearly all the lawyers in the colony’ complained about the absence of a colonial Court of Appeal, calling the situation ‘disastrous and oppressive.’64 Before the colonial government was able to respond, the jurisdictional problem disappeared with the appointment of Joseph Needham as chief justice of Trinidad.
The Nicholson petition and the debate surrounding the Supreme Courts after union illustrated the connection between legal institutions and economic devel-[64]-opment, and specifically the need for standardized rules of exchange not only across individual colonies but between them. As Governor Seymour’s successor Anthony Musgrave noted in his report to the Colonial Office, the debate over British Columbia’s Supreme Courts ‘illustrates the practical difficulty which exists in separating the legal business of the Mainland from the commercial requirements of Victoria, which is the Mercantile focus of the whole colony.’65 A well-functioning marketplace and the economic prosperity that would follow was possible only through the imposition of uniform rules and the security that came from their predictability.
While the demands of laissez-faire capitalism for a standardized and secure rule-bound arena in which individuals could pursue their self-interest shaped and were embedded in British Columbia’s courts, those institutions also bore the imprint of the colony’s geography. For the courts to fulfil the role that British Columbians wanted them to, however, the colonial state had to be both strong and interventionist. This was not quite the contradiction it seems to be, for as economic historians have pointed out, even at the height of laissez-faire in the mid-nineteenth century the ‘free market’ was the product of self-conscious construction and regulation on the part of the state rather than a natural phenomenon.66 Markets did not just happen as a result of human interaction – they had to be created. If a laissez-faire economic order and state intervention were not contradictory, achieving the former through the latter was problematic in British Columbia, where the colony’s geography posed a very real obstacle to standardized, effective, and efficient governance. Imposing and creating order was thus a spatial problem, and it was solved, or at least addressed, by creating local courts and resident law officers and investing them with extensive powers. Before discussing the details of that process, however, it will be useful to consider the problem of distance more generally, and how the law is especially useful in overcoming it.
Despite historians’ preoccupation with the place of North American geography in shaping a continental consciousness, its effects on the organization of power have been largely overlooked. Canadian historians are not alone in neglecting the influence of distance on power, for, as the sociologist Anthony Giddens noted, ‘there is a lack of concepts that would make space, and control of space, integral to social theory.’67 According to Giddens, the extension and exercise of power is fundamentally a spatial problem. Distance acts as a barrier to the exercise of power in two ways: first, it is a physical obstacle to surveillance and enforcement. While states may possess absolute dominion over their subjects, if they lack the ability to monitor their subjects’ behaviour or punish those who violate their rules, then their power is meaningless. Second, distance encourages localism – the proliferation of parochial meanings and customs – [65] that prevents the development of a set of common experiences and ultimately hinders the social integration necessary for the creation of a powerful and effective state.
The key to the liberal state’s exercise of power lies in its ability to ‘stretch’ experience over time and space; that is, to break down local practices and replace them with a set of common ones defined and mediated by the state.68 Without sufficient ‘stretching’ of common experience over time and space and the social integration that comes with it, governance is difficult because the groundwork necessary for consensus is lacking. By developing a commonality of experience, the state ensures itself a degree of certainty in the behaviour of its citizens. As well, by providing the institutions and the rules through which that experience is constituted and mediated, the state ensures for itself the opportunity for surveillance and control.
One of the ways the liberal state creates a commonality and hence exercises power, I suggest, is through the law. Law is a community of shared meaning and experience, which to a certain degree can transcend space and time.69 It gives meaning to action by assigning it a value (legal or illegal) and defines social relationships by spelling out the obligations that bind people to each other. As well, it provides a language and a set of procedures and institutions that allow people to deal with each other in an intelligible way. Though conflict brings people before the law, when they go to court they participate in a common, formal, state-sanctioned legal process that limits and guides human relationships over great distances. The process that upcountry miners went through in resolving their disputes through the courts would be familiar to the merchant in Victoria, or in San Francisco or London, for that matter. Formal law can also stretch experience over time: when people submitted themselves and their disputes to the courts for adjudication, they connected themselves to a process and a set of rules that was historical. By virtue of the very nature of the legal process, which assessed present behaviour by linking and measuring it against precedent, the law stretched human experience backward. It also projected that experience forward, prescribing the rules of interaction that would bound and guide future relationships. By transcending space and time in this way, the law was central to the governance of modem societies and societies of strangers.
In British Columbia the problems of distance were exaggerated by a rugged geography. As Attorney-General Henry Crease observed of his colony, ‘In every direction we are met by the fact that the centres of population in British Columbia are at the circumference.’
Cassiar is full 1000 miles north of Victoria, making a clear 2000 mile journey thither and back, Kootenay is some 600 miles, 400 of it on horseback, from Victoria, making a jour-[66]-ney there and back 1200 miles, Cariboo 400 or 500 miles north from Yale, 700 from Victoria . . . Off the [Yale Cariboo] Waggon Road the only mode of transit over all other parts of the province is by packhorse and trails. The Judge has to carry with him for himself and his attendant and packer, tents, baggage, food, cooking utensils, and camp equipage of every kind, and blankets; ford rivers, scale mountain-sides, camp and sleep out Seven and six weeks at a time, sometimes subject to an Egyptian plague of mosquitoes.
The Supreme Court Judge as a matter of absolute necessity has to carry with him, in addition to the above, all Law Books he will require in every branch – Chancery, Probate, Common Law . . . some 500 lbs., with freight at 25 cents per lb.70
Despite Crease’s complaints about the barriers confronting those charged with the colony’s legal administration, the law ‘was still an important vehicle for exercising state power, particularly in the absence of others. In British Columbia a legal infrastructure was in place within months of the colony’s formation, well before the construction of anything more than the most rudimentary roads and bridges. The circuits of Matthew Begbie’s assize court adumbrated the boundaries of the law’s empire on the Pacific coast (both literally and figuratively),71 connecting the small settlements in its gold fields – the outposts of its realm – to each other and to the colony’s administrative centre.
The problem of distance was not overcome through the simple presence of legal institutions and their officers, however. Their presence was necessary, of course, but the real key to understanding how law aided in the governance of the colony lay in the fact that social relations were mediated and, to a certain extent, created through its forms. The law imposed duties and obligations on individuals, thus setting out the boundaries of and a common basis for their interaction. In doing so it made economic activity possible across the colony because it provided secure and predictable ways of dealing, thus giving British Columbia a coherence that came from the creation of a functioning marketplace. Thus, the conditions that made for effective governance – a commonality that stretched over space – also favoured capitalist enterprise. However, the law also provided the colony the coherence that comes from a engaging in particular conventions of dispute resolution. Not only were parties engaged in a shared experience when they went to court, but through the law’s rituals some were also linked to a common past. The courts were a touchstone to the familiar, secure, and sometimes glorious traditions of English common law.
Despite their frontier environment, British Columbia’s law men strove to maintain a certain degree of orthodoxy in their trial proceedings. Begbie travelled his lengthy circuit with his robes and full-bottomed wig in tow, and his assizes followed a pattern not too different from that of his English counterparts, even if the juxtaposition of old world forms in a new world context was

[67] often jarring, as Arthur Bushby discovered. ‘I may record these few days as some of the most remarkable in my life,’ noted British Columbia’s first court registrar of his and Begbie’s first assize in March 1859,

Since my arrival in B.C., Begbie had appointed me clerk of the court, assize clerk, registrar, clerk of the arraigns &c. As I had never been in a Ct of justice before the thing seemed strange indeed to me. I had to open the proceedings by reading the proclamation of silence 0 Yes 0 Yes 0 Yes which I did at the top of my lungs. Then I had to read aloud the different commissions – the Queen’s to Begbie and of oyer & terminer & gaol delivery &c. – swear the grand jury, petty jury, witnesses &c., read the indictments twice through, ask the prisoner whether he was guilty or not . . .
‘It was most strange work,’ he concluded. ‘[H]owever, I got through all right & once I heard my voice tell at the other end of the room I bawled away like fun.’72
It would be misleading, however, to assume that the law’s theatricality and magisterial qualities were transferred intact from old Albion to the new Eldorado. More often than not, British Columbia’s law men wore coonskin (if not literally than certainly metaphorically) rather than scarlet and ermine, and heard cases in a variety of venues, ranging from the ‘curious brick and frame designs’ of Victoria’s legislative buildings (dubbed the ‘Birdcages’) to the back of an accommodating horse.73 The shifting mining frontier worked against the establishment, at least initially, of the substantial stone court houses that anchored other colonial communities in British America.74 Most government buildings on the mainland were dark, windowless structures held together by mud and constant repair, ‘a style of architecture . . . peculiar in its order,’ as one Caribooite observed. ‘It is neither Doric, Ionic, nor Corinthian, but decidedly Columbian . . . The relative properties of capital, column and base never trouble the mind of the builder.’75 Even in New Westminster, the colonial capital, the Supreme Court sat in ‘an austere frame structure measuring 40 ft by 20 ft,’ which possessed an ‘open floor, rattling windows, and old sooty cotton lining and ceiling, in many places torn to shreds and fluttering in the breeze like a bird of evil omen over the seat of justice.’76
The changes wrought by the immediate circumstances in which the law was administered were not limited to those of venue. Despite its integrating effects, British Columbia’s governors still found it necessary to modify the substance of the law in response to the geographical realities of life in the colony. They did this by increasing both the intensity and the scope of court powers; that is, by increasing the number of state institutions (increasing the intensity of state power), and by vesting those institutions and their agents with a wide range of [68] powers (increasing the scope of power).77 In doing so, the colonial administration made it more likely that individuals would fall under government surveillance and power. Moreover, as the intersection between the agents of the state and its citizens increased, social relations came to be mediated through the institutional forms of the state to a greater degree. A commonality of experience developed as a result, and state power became more effective because it was hegemonic.
The colonial government attempted to increase the intensity of its power through the legal system by creating a set of inferior courts anchored by a resident stipendiary magistracy. By placing legal officers in the gold fields and arming them with extensive powers the government hoped to increase the effectiveness of its courts and make the resolution of disputes more efficient. Though an early plan for British Columbia’s legal system called for two or more justices of the peace to be assigned to each of the colony’s districts to take informations and issue warrants in all criminal cases, to hold bail or commit prisoners to jail to await the next quarter sessions or assizes, or to hear cases involving petty offences and render judgment summarily, this was never done.78 Instead, the colony’s JPs had the ‘power to act in all the said Colony, without distinction of districts and divisions.’ The government also dispensed with the need for JPs to sit in pairs to decide cases by endowing ‘a single Justice . . . [with] all such powers and jurisdiction as . . . vested in . . . any Stipendiary Magistrate for the metropolitan district of London.’79 The increased power of the magistrates eliminated the need for the colony’s justices of the peace to sit together quarterly. A court of quarter sessions did not exist on the mainland. Instead, a single justice decided all but the most serious civil and criminal cases. These were heard at the annual assize by Matthew Baillie Begbie. This widening of power was achieved without a parallel change in the expertise of British Columbia’s legal personnel. For although they were called stipendiary magistrates, the colony’s justices were untrained in the law, unlike their English counterparts, who were barristers of at least five years’ standing.80
The most visible example of the trend towards investing more power in the hands of British Columbia’s inferior courts, however, was in the legislation governing the small debts and county courts. There were two ways for a creditor to secure his debt.81 The first was to initiate a suit to recover his property. If the court ruled in his favour, the debtor was required to satisfy the claim by selling his personal property and then, if necessary, his real property. To this end, the court had the power to attach and sell his goods. If he could not comply, he was jailed until he fulfilled his obligation. The second way of obtaining redress was called the ‘mesne process.’ In it, the creditor simply swore an affidavit attesting to an overdue debt or the fact that the debtor was about to abscond or sell his [69] property and the court (at the discretion of the judge) issued a writ of capias ad respondendum. This was the method chosen by most British Columbians, because it was faster than the more elaborate trial process. The writ empowered the sheriff or bailiff to arrest the debtor and hold him in jail until he satisfied the creditor’s claim. In contrast to the situation in the trial process, however, the court had no power to attach the debtor’s goods. The creditor could have the debtor’s property (through the longer, more expensive trial process) or his body (through the mesne process), but not both.
The Small Debts Act (1859) gave the colony’s magistrates the power to issue writs of capias ad respondendum in all cases of debt above twenty pounds when it could be shown that the debtor was about to abscond. Even this was not sufficient for Yale’s stipendiary magistrate Andrew Charles Elliott, who informed the colonial secretary in 1860 that
the exigencies of justice are by no means fully complied with by the ‘Capias ad respondendum’ not issuing for any less sum [i.e. debt] than £20. [T]he greater number of cases in my Court are, and will continue to be, under that amount and in which I have no power to detain debtors when about to leave the Country. I should respectfully suggest that £5 should be the minimum.82
Under the imperial statute that regulated the English county courts, this Power was severely limited by a series of stringent conditions that had to be fulfilled before such a writ could issue. No such limitations were defined in the British Columbia act, leading Matthew Baillie Begbie to conclude that ‘it would really seem impossible to set aside a capias obtained on such an order,’ even though, ‘circumstances may be such that I myself would not or could not have made the order.’83 Thus, out of a need to facilitate economic transactions in the frequent absence of the colony’s senior law officer, the Small Debts Act endowed British Columbia’s magistrates with virtually unlimited powers of arrest in suits involving relatively small amounts of money.
In addition to the power to issue writs of capias, an 1865 ordinance gave magistrates powers in bankruptcy and insolvency equivalent to those held by the Supreme Court, and allowed them to grant immediate protection to debtors instead of requiring that they he held in prison until Begbie’s circuit came through the district again.84 But it was the County Courts Ordinance(1866) that put the final touches on the wide powers of the colony’s inferior courts. As well as setting a new limit to the jurisdiction of the county courts (one hundred Pounds), the act made no provision for appeal, shortened the time for the return of a summons from ten days to three, dispensed with the need for the plaintiff to prove the defendant’s intention to abscond, and gave the judge rather than the [70] plaintiff the right to decide whether a case would be heard before a jury. In addition, the act modified the conditions under which a writ of capias was served. Before the enactment of this ordinance, writs had to be presented to the defendant directly by the sheriff or high bailiff of the court. Under the new act, writs of capias could be served by any person designated by the court to do so. Taken together, the provisions of the County Courts Ordinance not only made it easier for suitors to recover debts and sue for damages, but also vested wide-ranging and discretionary legal powers in the hands of a few untrained men, whose ‘country tastes’ were of questionable use in ensuring the judicious exercise of the law.
The effects of geography were also felt on the criminal side of the law. The Speedy Trials Act (1860) made provision for criminal hearings to be held by the Supreme Court anywhere and at any time in the colony without a commission.85 In framing the act, Begbie was well aware that its provisions ‘entirely contradicted the spirit and practice of the Courts of Justice as administered in England’; nevertheless he claimed that ‘the practise of Criminal Trials as followed in England would render convictions [in British Columbia] in almost every case impossible.’
[I]t would be in the upper country simply impossible to secure the attendance of the witnesses or of the prisoner on a serious charge after an interval which would in England be deemed barely sufficient to introduce between the apprehension and trial of an offender. Your Excellency is well aware of the wandering habits of the population . . . the absence of all gaols or places of security[, and] the extremely small number of regular constables . . . There would be no means of securing the attendance of witnesses after the interval of a month without committing them to close custody; which in the existing state of things is a physical impossibility.
‘I do not recollect one case of a white man who has been convicted of any offence,’ he concluded, ‘unless the trial were had within a month or so from the time of his apprehension.’86 The Colonial Office did not share Begbie’s pragmatism or appreciation of the problems of distance, and disallowed the act.87
As the power of the courts was being extended, the power of British Columbia’s juries was curtailed and challenged. The Juror’s Act passed in 1860, eliminated the right of plaintiffs and defendants to challenge the selection of jurymen.88 In English law, the right of challenge was a check on the possibility of corruption or bias, and was unlimited.89 When similar legislation was put forward in the island colony, the opposition press predicted that trial by jury would become ‘a mockery, a delusion, [and] a snare.’90 In the eyes of British Columbians, the bench further challenged the effectiveness of the jury. Whether he [71] addressed them as ‘a pack of Dalles horse thieves,’ altered their verdict, or discharged them and decided the case himself, Matthew Baillie Begbie gained a reputation for his repeated attempts to undermine the decision-making power of juries. So infamous was Begbie’s treatment of juries that in 1863 the New Westminster-based British Columbian reported ‘that it is the intention of our prominent citizens to unite in a declaration that they will not sit on a Jury in our Supreme Court while the Bench is occupied by Mr. Begbie.’91 Though the Supreme Court judge was within the scope of his powers when he challenged jury verdicts, his actions, when combined with the widening of judicial power achieved through colonial laws, must have contributed to a growing sense of the colonial government’s power.
The Sheriff’s Act was also passed in 1860.92 It gave the high sheriff the authority vested in stipendiary magistrates, thus combining the powers of enforcement with those of judgment. Though sheriffs in England had once had judicial powers in civil and criminal matters, by the time English law was received in British Columbia a strict distinction had been made between the two functions, and the sheriff was ‘disqualified from acting as a justice of the peace.’93 This consolidation of offices reflected the exigencies of frontier life. Specialization and the division and diffusion of power were sacrificed, and the risks of consolidation taken in the name of efficiency and economy.
After the union of the colonies in 1866, the colonial legislature passed a series of acts that effectively imposed British Columbia’s legal apparatus on Vancouver Island. With the exception of its Supreme Court, the island’s tribunals were given the same wide-ranging powers as the mainland’s courts.
In response to the economic and social exigencies of the Fraser and Cariboo gold rushes, the institutional foundations of law, order, and authority in British Columbia were laid down with great speed. British Columbians took what legal historians have called an ‘instrumentalist’ view of the law, seeing it as an essential part of the economic infrastructure of a new colony tied to external markets and experiencing rapid growth.94 Law was considered a tool for economic development. The colonial government shared that view, though it was also motivated to establish law by a desire to prevent the development of local and informal means of dispute resolution and government and to assert its own power. Both capitalism and the needs of the colonial state were thus fulfilled through the law. British Columbia’s courts were shaped by and upheld a laissez-faire capitalist economic order, which contributed to the creation of a functional marketplace by establishing predictable and standardized ways of dealing and the control that came with them over a far-flung, culturally diverse, and mobile population.
[72] The geographical realities of the colony also left their imprint on the courts. British Columbia’s great distances, rugged terrain, and scattered population were no small barriers to its effective and efficient governance. In an effort to overcome them, the colony’s legal architects increased the scope and intensity of the lower courts’ powers. The summary proceedings of the gold commissioners’ courts were designed to settle disputes within a formal legal setting, but without the lengthy and potentially costly delays associated with jury trials or Supreme Court proceedings. The same rationale underlay the formation of the small debts and county courts. In these, the colony’s stipendiary magistrates had powers of arrest (that is, powers to issue writs of capias ad respondendum), which in England were more tightly controlled and placed in the hands of formally educated and seasoned barristers. On the criminal side, the Speedy Trials Act (1860) did away with the need for separate commissions to be issued for each assize, allowing criminal cases to be heard at anytime and in any place in the colony. Less serious offences were also treated with the twin demands of effectiveness and efficiency in mind, for stipendiary magistrates dealt with criminal offences summarily, sitting alone rather than in pairs at quarter sessions of the peace.
The overall effect of the changes made in response to the colony’s geographical exigencies was to enhance the security of property and state power, and hence to make the marketplace even more functional. Property and geography were thus dual and reinforcing influences on the construction of British Columbia’s courts; and, as we will see, they were visible in the pattern of litigation that emerged from their operation.
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