Citation:Tina Loo, Making Law, Order and Authority in British Columbia 1821-1871 (Toronto: University of Toronto Press, 1994), pp. 93-112
CHAPTER 5 — Cranford v. Wright: Law and Authority in British Columbia In April 1861 something significant happened in Alexandria, a small settlement in British Columbia’s upper country: Stipendiary Magistrate and Assistant Gold Commissioner Philip Henry Nind sat down and wrote a letter toe W.A.G. Young, the colony’s colonial secretary, declining an appointment as a county court judge. ‘I regret that His Excellency has been pleased to nominate me to this post,’ he said.
as I am deficient in that special Knowledge requisite to the proper execution of its duties, nor have I any legal works to refer to for instruction and guidance. The population in this district is fond of litigation and many are acquainted with the technicalities of law, and would only be too ready to detect mistakes committed by an inexperienced County Court Judge. I respectfully submit that the appointment be conferred upon someone better qualified by education and experience to undertake its duties.1
What lifts this episode from the routine to the remarkable is the fact that Nind, a graduate of Eton and Oxford, felt himself not just ‘inexperienced,’ but positively ‘deficient,’ and hence unsuited for the post. Here surely was the sort of ‘gentleman . . . with country tastes’ that Matthew Baillie Begbie thought should anchor the colonial magistracy.2 Yet Nind did not think his social status would confer the authority necessary for him to do his job effectively.
Nind’s letter is interesting because it raises questions about the nature of legal authority in British Columbia and suggests some answers. But before turning to those, it might be useful to discuss briefly what I mean by authority. First and foremost, authority is a type of power, which can itself be defined as the ability to produce intended effects. Authority is distinguished from other kinds of power (such as force and persuasion, for instance) by the means by which it  produces those intended effects. Those possessed of authority are able to do things because people obey their commands. Though obedience can be secured by coercion, the obedience that underlies legitimate authority rests on consent. Thus, though authority is a form of power, it also implies a certain social relationship between rulers and ruled. People in authority have a right to command that is recognized by those over whom they rule. Without that recognition and the consent it implies authority is illegitimate, indeed some would say that it does not exist.3 If legitimate authority resets on a recognition of the right to command – on the consent of those governed – on what basis is that recognition and consent given? How do people gauge the legitimacy of authority? As was suggested in chapter 1, fur-trade authority was premised on a particular understanding of society in which mutuality and inequality were the accepted foundation of social order. Labourers accepted their lower status and the arbitrary and sometimes violent rule of HBC officers as long as the latter fulfilled the responsibilities commensurate with their station and power. Philip Nind’s letter suggests that while his social status did not confer the authority necessary for him to rule, possession of ‘special Knowledge’ would. In Nind’s opinion, British Columbians measured the authority of the law less by the character of the person who dispensed it and more by his demonstrated knowledge of the ‘technicalities of law.’ Authority was thus contingent on individual ability and performance. In fact, Nind’s comments indicate that the authority of the law could be separated to a certain degree from the individual who administered it: it was the ‘special Knowledge’ itself, rather than the individual, which possessed authority.
If Nind’s letter suggested the broad outlines of two kinds of authority in British Columbia, their details were provided in Cranford v. Wright (1862), a prosaic suit for breach of contract and debt that precipitated a storm of controversy over the administration of the law, and in the process revealed more about the right by which the law commanded obedience. The case reveals the standards European British Columbians used to gauge the legitimacy of the law. Those standards, I argue, were derived from liberalism, and they became apparent in the discussion about the case the conduct of the judge and the principals involved that occurred in the pages of both Vancouver Island’s and British Columbia’s newspapers. Why was the case so controversial? What were the central issues? Cranford was controversial because the presiding judge, Matthew Begbie, appeared to contravene what European British Columbians considered the proper conventions of legal decision-making, dismissed important documentary evidence, and was contemptuous of the Cranfords’ lawyers’ use of legal doctrine – not how they used it, but that they used it at all to make  their case. The central issues of debate involved Begbie’s interpretation of contract law, his treatment of documentary evidence, and his reaction to the lawyers’ use of legal doctrine. In framing their criticisms of the judge, European British Columbians revealed that to them legal authority was rooted in texts and the experts who could interpret them, and that justice or fairness was a matter of the simple application of the rules. Unlike paternal authority, which was based on personal discretion, textual authority and expertise conferred the certainty and predictability that was a precondition of success in the marketplace. Just as laissez-faire liberalism created an institutional structure that both supported and furthered its needs, it constructed an ethical system that did the same thing.
On the basis of a single, albeit high-profile, case, the argument I put forward in this chapter is necessarily speculative – a quality that is only reinforced by the nature of my subject matter, which is the slippery concept of authority. Nevertheless, for all it particularities, I do think Cranford is emblematic of many of the tensions in the administration of the law, and of the problems of doing so in a particular social and economic context.
The case of Cranford v. Wright, which John Robson, the editor of the British Columbian, called ‘most lengthy and, to the mercantile community of this and the adjoining Colony, most important trial’ began on Thursday, 4 December 1862, before a densely crowded courtroom, with David Babington Ring and John Foster McCreight representing the plaintiffs John Foster McCreight representing the plaintiffs John and Robert Cranford Jr, and George Hunter Cary, attorney-general of British Columbia, and H.P. Walker representing the defendant Gustavus Blinn Wright.4 This action was a countersuit for $25,000 in damages. Robert Cranford had contracted Wright, a packer, to transport $10,000 worth of goods from Douglas to Lillooet. The original suit, launched by Wright against the Cranfords, was heard in Lillooet before Begbie at nisi prius proceedings in October 1862.5 Hoping to profit from the demand for provisions in the Cariboo mining district, Robert Cranford had arrived in Victoria in April 1862 with a consignment of goods from San Francisco, which he arranged to be transported from New Westminster to Lillooet by G.B. Wright & Company.6 In a contract signed on 25 April, Wright agreed to pack the goods for nine cents per pound, payable sixty days after the arrival of the merchandise at Lillooet, and assured his customer that the goods would reach their destination in seven to ten days. Robert Cranford then proceeded to Lillooet where, in anticipation of the arrival of his goods, he contracted another packer to take them to Williams Creek, farther up the Fraser River. Then he waited. And waited. Two weeks later, the second packing company released Cranford from the agreement they had struck, informing him that it could wait no longer. Not until 28 May – thirty-three days after the signing  of the contract with Wright – did the first of Cranford’s goods arrive at Lillooet. The merchandise continued to trickle in over the summer, a third of it delayed some sixty to seventy-five days and none of it arriving in less than thirty-three days. In all, half could not be forwarded to Williams Creek because it arrived too late in the year or had spoiled; and the portion that did make it to the upper country did not sell at the high prices that Cranford hoped for. During the delay, other enterprising merchants had established themselves in the Williams Creek area, and had glutted the market.
None of this was of concern to Wright, however, who launched a suit against Robert Cranford and his elder brother John in August for non-payment of ‘goods sold and delivered.’7 Claiming a debt of £1,719, Wright convinced the County Court judge at Lillooet, A.C. Elliott, to issue a writ of capias on 8 September for the arrest of both Cranfords.8 Robert Cranford was arrested at Lillooet on the same day and imprisoned for eighty-four days. His brother John, also a Cariboo merchant, was arrested at Williams Creek three weeks later on 27 September, brought to Lillooet, and imprisoned for sixty-six days.9 Their case was heard before Matthew Baillie Begbie on 15 and 16 October, and despite their efforts to show that John Cranford was not a partner and therefore not indebted, and that Robert Cranford, by virtue of his contract with Wright which stipulated that payment was not due until sixty days after delivery, was also not indebted, the case proceeded.
When Wright produced the contract of 25 April in the Lillooet courtroom, both Cranfords ‘pronounced it altered.’ They said ‘that the words “& Brother” had been interpolated, and that the “&” had been crowded in at the end of the first line, the word “brother” written across the margin opposite the second line, that the “t” had been inserted before “him” to make it read “them” and that the alterations had been made in darker ink.’ Even Begbie agreed that the document had been tampered with, noting that ‘the dot which had been over the “i” in “him” was still there to show what the word once was,’ Nevertheless, the judge ‘went on to make apologies for Mr. Wright, saying that it was a private memorandum of Mr. Wright’s and that he had a right to do what he liked with it.’ Wright, without prompting from the bench or the defence counsel, admitted ‘that he had made the alteration of the same day on which it was written.’ To this Begbie again interjected that ‘it was rather in Wright’s favor than against him that he should so boldly show this altered agreement.’ ‘In this way,’ John Robson wrote in the British Columbian,
Judge Begbie relieved Wright’s Counsel of his duties, and drew a veil over the ugliness of Wright’s guilt. In this way Judge Begbie would not see, and did his best to prevent the Jury from seeing, that Wright had virtually committed the CRIME OF FORGERY against J.P. Cranford. How could the memorandum of agreement be a private one with which he had a right to do as he chose, and then bring it forward in a Court to prove an Account!
Despite the sensation caused by this evidence, however, the jury ruled that John Cranford was liable as a partner and that the sixty-day stipulation in the contract signed by Robert Cranford and G.B. Wright had been rescinded. They awarded Wright $9,500, a sum that include court costs of almost $1,000. Robson attributed this decision to Begbie’s failure to charge the jury properly. ‘If he had done so, fairly, no honest Jury could have decided as they did.’ ‘In sober truth,’ he concluded, ‘Judge Begbie ignored a large part of the evidence.’10 From their jail cells, the Cranfords were unsuccessful in their attempts to get a new trial, an d were released only when they launched the countersuit against Wright, which was heard by Begbie at the December sitting of the Supreme Court. Claiming damages of $25,000, the Cranfords used the same argument they had in the earlier suit. As well as asserting that John Cranford was not a partner and that Wright had breached his contract with Robert Cranford, the counsel for the plaintiffs claimed that Wright had appropriated Cranford’s goods, ‘having caused the brand and mark of the plaintiff to be obliterated, and his own substituted, at a time, too, when the market was high.’11 At this point Begbie interrupted the Cranfords’ lawyer McCreight, saying that he ‘could not allow imputations of such a nature to be cast upon the defendant, and insisted that they were disgraceful and must recoil upon the head of the person advancing them.’ McCreight refused to withdraw his remarks, and Begbie requested that David Babington Ring, the plaintiff’s other lawyer, take over. Ring refused, and the judge subsided until the contract between Robert Cranford and Wright as well as invoices between the two were produced as evidence. Though the contract was admitted, the invoices, address to ‘R. Cranford, Jr.,’ which were brought forward to show that the contract had been altered to read ‘R. Cranford & Brother,’ were not. Begbie’s refusal to admit the invoices ‘produced a hot discussion between the judge and plaintiffs’ counsel, and a reference by the latter to Taylor on Evidence.12 ‘The title of this book,’ said the British Colonist, ‘will never be forgotten by those present at the trial. Taylor was invoked nearly every hour of the day.’13 Relations between the bench and the Cranfords’ counsel were not improved on the last day of the trial (17 December), when Robert Cranford attempted to shake Wright’s credibility by telling the jury that the affidavit with which Wright obtained the writ of capias in Wright v. Cranford was false.14 Wright swore that the Cranfords owed him £1,719 15s. for ‘goods sold and delivered.’ This, according to the Cranfords, was not strictly true: the Cranfords, if they owed Wright any money at all, owed it for freight charges. Here  Begbie interjected: ‘Oh, Mr. Cranford! I have seen sheaves of affidavits made in this country by persons who never read them. No doubt Mr. Wright did not read that before he swore to it, so that it would be unfair to impute a false oath to him.’ Amidst the ‘confusion’ that followed, proceedings were adjourned, and at Begbie’s suggestion all retired to the races.15 At 6:30 p.m. the court met, counsel presented closing statements, and Begbie charged the jury, telling them first that ‘they must consider that the defendants [applicants] (the Cranfords) were strangers, while on the other hand, Mr. Wright was well known to them’;16 and second, that they had three points to decide: whether the contract between the Cranfords and Wright was rescinded, as the defendant claimed, or was still binding; if the contract was not rescinded, what constituted a reasonable time for delivery of the goods to Lillooet; and the value of the goods when they should have arrived and their value when they did arrive, the difference being equivalent to the damages incurred by the Cranfords.17 Before the jury retired, Ring asked that they be given a ‘bill of particulars’ outlining the Cranfords’ claim to aid them in their decision. To this Begbie reluctantly agreed.
Late the next day, some twenty-six hours after they had been locked up, the jury were recalled, having failed to come to a decision. Begbie refused to accept a majority verdict as he had in an earlier case in the same nisi prius session.18 Ring asked when the jury had been given the bill of particulars. Begbie was ‘considerably disconcerted at this enquiry,’ and the court registrar, Greville Matthew, sported ‘an unusual flow of blood to his features.’19 The foreman, ‘after considerable shuffling,’ told the court that the document in question had not been given to the jury until ‘Three o’clock this afternoon!’ ‘Thus it appeared that a document essential to enable the Jury intelligently to come to a decision had only reached them after they had been locked up for twenty-five hours, and three hours before they had been called before the Court!’ Though William Grieve, the foreman, said that considerable progress had been made after they received the bill of particulars, and that decision could be reached if the jury were allowed to retire again, another juryman disagreed and asked to be discharged. Counsel for the plaintiffs asked Begbie to offer advice or assistance to the jury so ‘that justice be not defeated,’ but Begbie refused and discharged the jury. Mr. Ring, addressing the registrar, said:
‘Mr. Matthew, have you the book in Court which contains the names of the Barristers who practice in this Court?’
Mr. Matthew: ‘Yes.’
Mr. Ring: ‘Then please dash your pen across my name.’
McCreight made a similar request, and ‘both gentlemen indignantly withdrew.  Cheers were given and the Court adjourned amidst great confusion and excitement.20 The Cranfords were rearrested and sent to prison, but released when they again made application for another trial – this time in the adjoining colony, on the grounds that their contract had been made in Victoria with a Victoria-based firm. David Cameron never heard the case, however, as it was finally settled out of court in April 1863.21 Ring and McCreight’s dramatic withdrawal created a great sensation in New Westminster, and a ‘meeting to mark public disapprobation of the extraordinary course pursued by the Judge throughout the trial’ was held immediately.22 ‘Loud applause’ greeted the arrival of the two principals in the Columbia Theatre, where both were complimented for the ‘firm and manly ability with which . . . [they] repelled the insults heaped upon them by the Court during the Cranford suit.’ William Grieve, the foreman of the jury, was called upon to address the meeting and ‘in a very able and lucid manner went over a large amount of facts and figures bearing upon that extraordinary trial, and showing most conclusively that the Jury had sufficient data before them to entitle the Plaintiffs [applicants] to a verdict.’ The meeting soon adjoined, but discussion continued in the pages of both the Island and mainland’s newspapers.
What is striking about Cranford is the intensity of feeling and the interest that accompanied a case that was, on the surface, a routine suit for debt. If the attention given to the trial by the British Columbian is any indication, all of New Westminster’s 1,190 inhabitants were riveted by the proceedings.23 The Cranfords themselves contributed to a good portion of the discussion. ‘We desire, through your columns, to present a plain statement of facts for the consideration of the authorities and the people of British Columbia,’ they wrote to John Robson, the newspaper’s editor.24 With his help they produced a lengthy three-part series entitled ‘A History of the Wrongs of the Cranfords including an Account of the Two Celebrated Suits – Wright vs Cranford and Cranford vs Wright.’25 The articles related the circumstances leading to the trials themselves and reprinted some of the documents submitted as evidence in the two cases. In addition, the newspaper published nine editorials and four letters to the editor, representing the views of all twelve jurors, in the weeks preceding and following the December trial. Interest was equally keen across the water in Victoria. The British Colonist followed the trial closely, reprinting daily testimony and offering editorial comment on the case. The interest generated by Cranford stands in marked contrast to the relative lack of discussion given to assize criminal trials, even trials for murder.