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Wild, Wild West Law

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There is an ancient North American expression, "wild, wild west", now in disuse since any historic technological deficiencies of the Pacific Coast of North America compared to the east Coast, has long since disappeared.

However in the history of law, the phrase "wild, wild west" has a unique pedigree. Indeed, to use the example of one enclave, Vancouver Island, the nicest description would be "wild, wild west"

In any event, the wild and crazy shenanigans of the early establishment of law and justice in what is now the modern city of Victoria, British Columbia, represent a looking glass into the rough world of justice over 100 years ago throughout the North American Wild Wild West.

Territory and Fur Trading

The history of the non-aboriginal economic development of the land of what is now the Canadian province of British Columbia, started with British North West Company (later absorbed by the Hudson's Bay Company), and Russian fur trading and, later still, once Lewis and Clark had reported on their discoveries in what is now Oregon, American expansionism.

By 1843, the Hudson's Bay Company anticipating a border settlement between Great Britain and the United States, and seeking to establish a second strong base on the territory (they were already at Fort Vancouver), landed men and supplies at what is now Victoria to establish a trading base. In 1849, the British government leased Vancouver Island to the Hudson's Bay Company including the right to govern it. The statute book, at the time, extended the jurisdiction of the existing courts in Upper and Lower Canada to the far-off colony on the Pacific coast, ultimately, and soon obviously, a completely unworkable proposal.

Matthew BegbieIn July 1849, the British House of Commons passed the Act to Provide for the Administration of Justice in Vancouver's Island.

The first trained lawyer to arrive in the "Colony of Vancouver's Island" was Richard Blanshard, but not a practicing lawyer but an employee of the Colonial Office in London. He arrived in 1850 and took up his position as Governor.

Unfortunately for him, there was already a de facto "governor' on location, in the strong personality of the Hudson's Bay Company's local manager, 47-year old James Douglas.

Douglas made it difficult for Blanshard to do his job. In one disagreement, Blanshard sentenced Douglas to a prison term because the latter had cleared a vessel for departure from the port without Blanshard's consent.

In his assessment of Blanshard, Douglas may have been onto something: the colony did not even have a jail and all of the buildings belong to the Hudson's Bay Company. The sentence could not be carried out.

Blanshard's next move was almost as curious as his first. He appointed a local doctor, John Helmcken as magistrate on July 10, 1850. Helmcken failed miserably in his first assignment, to gain control over an escalating dispute at Fort Rupert between traders and the local Indians.

The other difficulty was Helmcken's other employer: the Hudson's Bay Company and the not insignificant fact that the doctor was married to Douglas' daughter.

The conflicts of interest finally dawned on Helmcken and he resigned as judge.

In 1851, Blanshard ended his miserable tenure by resigning the governorship and returning to England. Douglas exercise his prerogative as de facto governor including the administration of justice, at least until 1853 when he proposed the appointments of four locals to act as judges. None were lawyers and three were employees of the company. They included Edward Langford (a farmer and retired British soldier), Thomas Skinner, Kenneth McKenzie and Thomas Blenkhorn.

Blenkhorn had a fascinating past as a farmer in Tasmania (Australia) in the 1840, before he emigrated to Vancouver Island, and is credited with saving the life of the famous explorer John Franklin and his wife who had gotten themselves lost in the Tasmanian bush. Franklin and his entire crew would later disappear in an ill-fated attempt to sail through the Arctic islands.

Since none of the new judges had any experience in the law, and all were seriously compromised in terms of their personal and business interests, some very questionable decisions started to come out of the rudimentary courts in Victoria. Still, there were no lawyers on Vancouver Island.

That brings us to the next delicious character in the early legal history of British Columbia generally, and Victoria in particular, David Cameron. Born in Scotland, Cameron married James Douglas' sister there. Cameron and his wife escaped debtor's prison by absconding to British Guinea where he ran a sugar plantation.

And where the local court declared him bankrupt in 1851. He moved to Nanaimo on Vancouver Island accepting his brother-in-law's offer of a position with the Hudson's Bay Company.

In September 1853, the colony awoke to some sensational news: Douglas had appointed Cameron judge of a new Court of Common Pleas, later renamed Supreme Court of civil Justice of Vancouver Island.

Some of the locals quite rightfully objected to the appointment pointing out the complete lack of legal training, the fact that Cameron had been declared a bankrupt, and the nepotism. Another group, comprised of Douglas' men, drafted a cross-petition supporting the appointment. The Colonial Office in London had to resolve the dispute and ultimately sided with Douglas, blessing the appointment of Cameron.

The first lawyer on Vancouver Island was George Pearkes who arrived in 1858. He died in 1871.

In 1858, the British government had sent over a chief judge for the entire Colony of British Columbia, 39-year old and Lincoln's Inn alumni, Matthew Baillie Begbie, concurrent with the passage of a British statute An Act to Provide for the Government of British Columbia. One oddity was that Begbie had actually never practiced law in England: he had been a mere law reporter.Henry Crease

But Begbie hit the ground running, amending and republishing the Rules of Court and setting an annual schedule of sittings of the Court of British Columbia on the mainland and on Vancouver Island. Begbie also opened the door to the practice of law in British Colombia as a short-term fix of allowing American and foreign barristers.

Begbie's initial situation was unusual in that he also served as Attorney General and in some cases, in true frontier justice, he had to arrange pleadings which would be resolved by himself!

Begbie, who maintained his residence at New Westminster, had to travel frequently to Victoria and on horseback to isolated communities, especially where gold digging occurred with its attendant problems such as alcohol and conflicts with local Indians. The Gold Rush started in 1858 and what was about 1,000 "white" people on Vancouver Island, suddenly mushroomed with the arrival of thousands of American prospectors and miners, and their rowdy ways. But the gold wasn't on the Island; it was on the mainland. Hence, Begbie's horse and pony traveling court. One of the first things Begbie did was to proclaim on behalf of the British government that the mainland a distinct colony, the Colony of British Columbia; but both under Douglas' command, and both later joined into a single province of British Columbia when it joined the Canadian Confederation in 1871.

In 1861, Pearkes was joined in Victoria by George Hunter Cary, a lawyer who came over from Vancouver, and who took the position of Attorney General of British Columbia from Begbie. Other lawyers soon arrived including Henry Crease. Crease was 35 years old when he arrived at Victoria, a graduate of Cambridge University. He became the first barrister to receive a license to practice for both Vancouver Island and the Mainland (then, properly, "British Columbia"). He later joined Begbie on the bench.

The first book ever printed on Vancouver Island was the 1858 compendium of Rules of Court and forms to be use in the new Supreme Court (which Begbie later changed). In 1860, Chief Justice Cameron was given jurisdiction over criminal matters as well, and his salary increased to £800 annually.

Another of Cameron's important innovations was to build a jail which soon serve to house all criminals in the entire colony who were given long terms, at least until 1863 when a prison was built at New Westminster near Vancouver.

David Cameron served as chief justice until 1865 and, according to David Farr: "… carried out his duties admirably."

Justice Cameron was replaced by Joseph Needham, a British barrister who arrived to serve his five-year term as chief justice in 1865.

James Douglas retired in 1864 and died in 1877.

The administration of justice continued to evolve especially with the implantation of a police force so necessary "during the rough days of the gold rush period (starting in 1958)".1

A Legal Professions Act was issued for British Colombia in 1863 and lawyers did what lawyers do in quickly identifying and addressing the issues arising on the administration of justice in their jurisdiction. The first members of the bar included, of course, Crease and George Cary and soon, also, George Walkem, born in Ireland, and the first Canadian-educated lawyer in British Columbia (McGill). Walkem later became premier and a long personal animosity developed between him and Begbie.

Alexander Robertson had been educated at upper Canada College and had joined an Ontario law firm at the age of 16. He moved to British Colombia in 1864 and became mayor of Victoria in 1870. But Robertson died young, in 1881, at the age of 41 as a result of complications from a leg injury.

Modern, Modern West

As roadways and technology began its exponential growth throughout the developed world in the late 1800s and early 1900s, these advances enhanced the delivery of justice in British Colombia and all North American frontier towns. Slowly but surely, the description "Wild, Wild West" was no longer apt.

But still to this day, the names of the early characters of the legal history of Canada's Wild, Wild West adorn the streets of modern Victoria: Blanshard Avenue, Douglas Street, Begbie Street, Cameron Street and Crease Avenue as a reminder and memorial of the difficult circumstances in which they brought justice to a frontier community.

REFERENCES:

  • Act to Provide for the Administration of Justice in Vancouver's Island, 12 and 13 Victoria, Chapter 48 (1849).
  • Act to Provide for the Government of British Columbia, 21 and 22 Victoria, Ch. 99
  • Duhaime, Lloyd, 1879-1880 - The Murder of Johnny Ussher
  • Farr, David, The Organization of the Judicial System of the Colonies of Vancouver Island and British Columbia, 1849 to 1871 (Vancouver: University of British Columbia, 1944), paper submitted as completion of the author's Bachelor of Arts in the UBC Department of History. NOTE 1.
  • Foster, Hamar, The Kamloops Outlaws, published in Essays in the History of Canadian Law, Volume II (Toronto: Osgoode Society, 1983), pages 308-364.
  • Lamb, W. Kaye, Early Lumbering on Vancouver Island, 2 British Columbia Historical Quarterly 49 (1938)

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