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For the better administration of justice : county court reform in late-nineteenth-century British Columbia Clark , Adrian Stephen 1992

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We accept this as conforming to the required standardFOR THE BETTER ADMINISTRATION OF JUSTICE:COUNTY COURT REFORM IN LATE-NINETEENTH-CENTURYBRITISH COLUMBIABYADRIAN STEPHEN CLARKB.A., State University of New York at Binghamton, 1989A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTSFOR THE DEGREE OF MASTER OF ARTSinTHE FACULTY OF GRADUATE STUDIES(Department of History)THE UNIVERSITY OF BRITISH COLUMBIAOCTOBER, 1992© Adrian Stephen ClarkIn presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(SigDepartment of    The University of British ColumbiaVancouver, CanadaDate	DE-6 (2/88)ABSTRACTThis thesis seeks to explain how civil procedure legislation enacted inBritish Columbia in the 1870s was motivated by a desire to make the province'scounty courts conform to the requirements of an expanding commercialcommunity. The county courts system had evolved in the colonial period toserve the limited legal needs of a sparsely populated country. It was modeledon English county courts, but local circumstances had required that a number ofcompromises be made in the administration of justice. The most significantdeviations from the English model were that administrators appointed laymagistrates to serve the courts and they endowed the court with a very highjurisdictional limit in civil cases. Despite public agitation in the late 1860s toformalize court procedure no significant changes were made to the courts whenBritish Columbia entered Confederation in 1871. In the first years of the newprovince members of the legislative assembly championed the cause of civilprocedure reform in the courts. In contrast, the judiciary resisted change to thisgovernment institution and to a way of life that they had established in thecolonial era.This study is based on an extensive examination of literary sources as wellas a quantitative analysis of court records. One goal of the research was todiscover the urgency of court reform in the post-Confederation period. RecentBritish Columbia legal historiography has suggested that would-be courtreformers tried to implement changes that were premature. The quantitativeiiresearch presented in this study supports the argument of reformers that changewas required for the better administration of justice. At Confederation the extantcourts system was stifling economic development. In response materialist,progress-minded legislators adopted court reform initiatives instituted incontemporary English common law courts to facilitate commercial expansion. Inconclusion, this examination of court reform suggests that the rationalization ofthe county courts system advanced the development of capitalist social relationsin British Columbia.iiiTABLE OF CONTENTSPageABSTRACT 	LIST OF ILLUSTRATIONS 	LIST OF TABLES	 viCHAPTER 1. INTRODUCTION TO THE LEGAL HISTORIOGRAPHY OFBRITISH COLUMBIA 	 1CHAPTER 2. HISTORICAL CONTEXT FOR AN EXAMINATION OF THEBRITISH COLUMBIA COUNTY COURT SYSTEM	 13CHAPTER 3. COURT TRANSACTIONS IN THE LYTTON AND NEWWESTMINSTER COUNTY COURTS	 35CHAPTER 4. COURT REFORM INITIATIVES IN BRITISH COLUMBIA,1872-1878 	 64CHAPTER 5. CONCLUSIONS: THE SIGNIFICANCE OF COURT REFORM FORTHE ORGANIZATION OF BRITISH COLUMBIA SOCIETY	 96APPENDIX A 	 98APPENDIX B 	 100BIBLIOGRAPHY 	 102ivLIST OF ILLUSTRATIONSFigure	PageFigure 1. Judgement summons in the New Westminster court. 	 58vLIST OF TABLESTable 	 PageTable 1. Resolution of actions in the Lytton County Court, 1871-80	 39Table 2. Resolution of actions in the NW County Court, 1871-80	 39Table 3. Description of actions brought in the Lytton County Court	42Table 4. Description of actions brought in the NW County Court	42Table 5. County court business before Magistrate Pemberton	 61viCHAPTER 1INTRODUCTION TO THE LEGAL HISTORIOGRAPHY OF BRITISH COLUMBIANineteenth-century British Columbia 's "free market" economy was aheavily regulated market place. In the period immediately after British Columbiajoined Confederation in 1871, the province's farmers and petty industrialistsanticipated the beneficial expansion of their market by a railway link with easternCanada. However, the province's immature commercial structure and thedominion's inability to meet the Terms of Union limited economic growth.Furthermore, the late-nineteenth-century Atlantic trading community was in aperiod of stagnation. In the name of the public good, British Columbia'sagriculturists, ranchers and miners demanded governmental assistance tofacilitate their goal of economic development. Provincial legislators respondedto this private need by pursuing an aggressive public works program and bycreating a legal environment that allowed speculative enterprise based on creditrelations.This study will examine the relationship between the law and the economyin British Columbia through a discussion of legislative action and a description ofcivil court transactions. The subject period encompasses British Columbia'sentry into Confederation to the completion of the transcontinental railroad whileemphasizing the reform movement of the 1870s. From 1871 to 1885 theprovince was isolated from eastern Canada, but Ontario provided a model ofcommercial expansion that British Columbians hoped to imitate. FollowingOntario legislators' example, British Columbia's newly elected politicians12attempted to use legislation to shape the economic development of BritishColumbia. Their reform program included instrumentalist measures intended tofacilitate the growth of domestic industry. Legislators wanted to reduce BritishColumbia's dependency on goods and services from the western United States.Another aspect of the reform package was an overhaul of governmentalinstitutions, including changes to the justice system. Provincial legislatorsidentified the courts as an obstacle to economic growth, and they targeted thecourts for reform throughout the 1870s and 1880s. The publication of a set ofCounty Court Rules in 1885 marked the success of legislators to institutesignificant changes to the justice system that they had been struggling toimplement since Confederation. Court reform by legislation was part of anadministrative policy to provide services that better served the needs of anexpanding commercial community.The history of law that examines the relationship between the law and theeconomy has special significance for the study of Canadian history due to theactive role that the state has taken in public economic development. 1 Americanscholarship provides some excellent theoretical perspectives to govern researchin this area. 2 In his book, Law and the Conditions of Freedom in the Nineteenth-Century United States(1956), and in other monographs on the lumber industryand the law in Wisconsin, J.W. Hurst put forward the basic premise that1 Barry Wright, "Towards a New Canadian Legal History," Osgoode Hall Law Journal.22(1984) :368.2At least two other Canadian legal history theses introduce their studies with a review ofAmerican legal historiography, Tina Merrill Loo, "Law and Authority in Nineteenth-Century BritishColumbia, 1821-1871" (Ph.D. dissertation, University of British Columbia, 1990), pp. 8-9, andWilliam Newman Thomas Wylie. "Arbiters of Commerce, Instruments of Power: A Study of theCivil Courts in the Midland Districts Upper Canada, 1789-1812" (Ph.D. diss., Queen's University,1980), pp. 6-8.3nineteenth-century American law was calculated to facilitate the release ofindividual creative energy. 3 Hurst characterized this era's law-making asinfluenced by "instrumentalist" principles, which shaped the social, political and,especially, economic organization of society. Morton Horwitz developed thetheme of the instrumentalist function of law in nineteenth-century America in hisbook, The Transformation of American Law(1977). 4 Horwitz described howlegislators implemented changes to contract, tort and property law to uprootprivileges based on ancient usage as inherited from English common law. Healso documented how members of the judiciary contributed to changing attitudesabout the function of law in society. Influential decrees in precedent-settingcourt cases showed that American judges were willing to interpret statute law inways that were favourable to commercial interests. The judiciary helped tofashion a value system that equated public interest with private right. Writingabout the American West, Gordon Bakken has examined the legislation ofterritorial legislatures and their support for the mining industry. 5 His legalresearch detailed how legislators rewrote water rights regulation to facilitate themost productive use of water power. The Colorado and Wyoming legislaturesused liberal incorporation statutes to allow individuals to capitalize ventures andempowered them to make contractual agreements in the name of corporations.Concerning the Canadian legal environment R.C.B. Risk has shown that many of3James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century UnitedStates (Madison: University of Wisconsin Press, 1956); Hurst, Law and Economic Growth: TheLegal History of the Lumber Industry in Wisconsin, 1836-1915 (Madison: University of WisconsinPress, 1964).4Morton Horwitz, The Transformation of American Law ,1780-1860 (Cambridge: HarvardUniversity Press, 1977).5Gordon Bakken, The Development of Law on the Rocky Mountain Frontier: Civil Law andSociety, 1850-1912 (Westport, CT: Greenwood Press, 1983).4the instrumentalist initiatives promoted by New York legislators were adopted inOntario to facilitate public economic development. 6 But he also concluded thatconflicting cultural values limited the extent of such borrowing by Ontariolegislators. The conservatism of Ontario's political elite restrained theirinclination to imitate all the permissive legislation of their North Americancontemporaries. To summarize, then, legal historians writing about the law andthe economy in nineteenth-century North America are in agreement that law andchanging attitudes about its function in society promoted the growth of industrialcapitalism.The Hurstian school of legal history has significantly shaped recent NorthAmerican legal historiography, but its influence on the writing of BritishColumbia's legal history has not been so profound. 7 Robert Cail researched theconveyance of public lands to private individuals in nineteenth-century BritishColumbia and initiated a direction of study in legal history similar to that followedby Hurst and his students. 8 Cail wrote about the principles that guided publicland disposal in the colonial and early provincial period. He recognized thatthese principles included attitudes about the law of property and that theseattitudes changed over the course of British Columbia's development. Cail6R.C.B. Risk, 'The Nineteenth-Century Foundations of the Business Corporation in Ontario."University of Toronto Law Journal. 23(1973):270-305; Risk, "The Golden Age: The Law About theMarket in Nineteenth-Century Ontario." University of Toronto Law Journal. 26(1976):307-346;Risk, "The Last Golden Age: Property and the Allocation of Losses in Ontario in the NineteenthCentury." University of Toronto Law Journal. 27(1977):199-239; Risk, "The Law and theEconomy in the Mid-Nineteenth Century Ontario: A Perspective." University of Toronto LawJournal. 27(1977) :403-438.7For a review of Hurst's work that situates it in American legal historiography, see RobertGordon, "Introduction: J. Willard Hurst and the Common Law Tradition in American LegalHistoriography." Law and Society. Fa11(1975): 9-54.8Robert Cail, Land, Man and the Law: The Disposal of Crown Lands in British Columbia, 1871-1913 (Vancouver: The University of British Columbia Press, 1974). Originally presented as theauthor's M.A. thesis, University of British Columbia, 1955.5identified divergent factions in the political elite of British Columbia withconflicting ideas about the proper method for the granting public lands. Coloniallaw-makers attempted to foster a citizen body of responsible property-owningindividuals who made "beneficial use" of public lands granted them in fee simple.Provincial politicians co-opted to a degree the guidelines used by coloniallegislators to grant public lands, but they were increasingly motivated by a desireto promote economic development through generous land transfers. Cail'sdescription of the "beneficial use" principle articulates law-maker's prejudice toallocate lands only to individuals who would make resources productive. 9 Cailalso described the way that legislators employed other instrumentalist measures,including wild land taxes and stipulations about working mining claims, todiscourage speculation and monopolistic enterprises. In Cail's estimation thewise and forward-looking principles that had shaped Governor James Douglas'legislation were discarded by provincial administrations, especially thoseheaded by William Smithe (1883-87) and John Robson (1889-91). In Cail'sopinion, these ministries adopted a "give-away" policy to encourage investmentin transportation companies. 10 Cail's romantic depiction of the guardianship ofBritish Columbia's public lands by Governor Douglas as a "lost golden age"detracts from the critical perspective of his work; however, his book revealedhow law-making shaped the social organization of the country in the colonialperiod and promoted industrial growth in the national period.The majority of British Columbia's legal historiography for the nineteenth-century period has not followed the direction in legal history pioneered by Hurst9lbid. xiii and throughout.10 lbid. p.166.6and others, which has stressed the importance of legislative assemblies in legalhistory. Rather, two prominent trends are identifiable in the legal historiographyof the new province. The first is that historians have chosen to concentrate oncriminal law, or more specifically, the enforcement of law. 11 And secondly, legalhistorical writing in British Columbia has focused on the judiciary and thedevelopment of court structure. Historians writing about criminal law havedisplayed a subjective interest in proving the civility of British Columbia's frontierdays. They seek a point of contrast with the American frontier experience andattribute the distinctive character of modern Canada to the state's benignbeginnings. 12Archives-based histories of recent years have drawn into question thepremise of these works, viz. that the modern cultural identities of the UnitedStates of America and Canada stem from their distinctive frontier experiences.Roger McGrath's re-assessment of frontier violence in the American Westrevealed that levels of violence have been vastly exaggerated. 13 Statistics11 This point is made by Tina Loo, "Law and Authority," p. 263. Some examples of this body ofliterature, Walter N. Sage, "The Northwest Mounted Police and British Columbia" PacificHistorical Review 14(1982):345-361; Barry Gough, "Keeping British Columbia British: The Lawand Order Question on the Gold Mining Frontier" Huntington Library Quarterly 38(1974-5):269-280; Selwyn Banwell, A Frontier Judge: British Justice in the Earliest Days of Farthest West(Toronto: Rous and Mann, 1938).12Gough, "Keeping British Columbia British: The Law and Order Question on the Gold MiningFrontier," p. 280 writes, "The administration of law and order in this remote quarter of the BritishEmpire during its formative years did much to develop both the non-American and the trulyBritish character of British Columbia." See also, F.W. Howay, W.N. Sage and H.F. Angus,British Columbia and the United States: The Pacific Slope from Fur Trade to Aviation (Toronto:Ryerson Press, 1942).'Roger6 	McGrath, Gunfighters, Highwaymen and Vigilantes: Violence on the Frontier (Berkeley:University of California Press, 1985); J.P. Reid, Law for the Elephant: Property and SocialBehavior on the Overland Trail (San Marino: Huntington Library, 1980). Reid asserts thatoverlanders brought their respect for personal property and rights on the trail and that the trekwas relatively violence-free; Eugene Hollon, Frontier Violence: Another Look (New York:Harcourt, Brace and World, 1974). For a sophistic treatment of the ethnology of law on theNorth American frontier, which qualifies, but reasserts, the general assumptions about the levels7presented in his book show that legendary wild west towns, such as Bodie,California and Aurora, Nevada, experienced substantial lawlessness solelyduring the short boom periods of the respective towns. Of comparablesignificance, Canadian research has provoked a re-evaluation of earliersuggestions that the Canadian frontier was violence-free. 14 Historians writingfrom both national perspectives have offered revisionist interpretations ofcultural attitudes about law and the incidence of violence on the periphery ofnon-native population expansion in their respective countries. This new workexposes the weakness of earlier histories that depended on a nationalistic visionfor its thematic content.The second major subject of study in British Columbia's legalhistoriography concerns civil procedure (the organization and administration ofjustice) in the courts. Early studies on this subject attempted to explain theevolution of the Supreme Court through a review of the statute law that governedthe administration of justice. 15 R.G. Herbert and Jesse Gouge wrote abouthistorical change as if it were limited to the realm of substantive law. In theirwriting, the social, political and economic forces that shaped the development ofthe superior courts did not receive due consideration. Their work fails to identifywho the law-makers were and the provenance of court reform legislation. DavidFarr's article on the organization of the judicial systems in the colonial period is aof violence on the respective frontiers, see Thomas Stone, Miners' Justice: Migration, Law andOrder on the Alaska-Yukon Frontier, 1873-1902 (New York: Peter Lang, 1988) .14Tina Loo, "Law and Authority," Chapter 7, pp. 257- 302, "The Ubiquitous Ned: Crime andSociety in BC."15J.F. Gouge, "Civil Procedure in the Superior Courts: The British Columbian Illustration, 1849-1880 U.B.C. Law Review 13(1979):338-379; R.G. Herbert, A Brief History of the Introduction ofEnglish Law into British Columbia" U.B.C. Law Notes 2(1953): 93-101.8much more comprehensive and informative account of historical change in thecourts. 16 His work encompassed a study of the inferior and superior courts ofthe colonies and described the growth of the justice system to accommodate thelegal service needs of the community. Hamar Foster's recent publications oncivil procedure in the courts incorporate strategies in legal research prominent inthe historiographical school labeled the "new" legal history. 17 Legal historianswriting in this vein concentrate on law in the context of society. Foster employsthis research methodology while drawing on a broad range of historical sourcesother than purely legal materials to explain the evolution of the courts. But ifFoster's methodology is progressive in the field of legal research in BritishColumbia, his concentration on the judiciary's perspective on court reform istypical of conservative legal history. While describing the political debatesconcerning the source of authority to make rules of court for the provincialcourts, Foster takes a partisan perspective that compares the "rational"constitutional arguments of the Supreme Court Justices with the fallible law-making of provincial politicians. 18 The legal historiography of nineteenth-16David M.L. Farr, "The Organization of the Judicial System in the Colonies of Vancouver Islandand British Columbia, 1849-1871" U.B.0 .Law Review 3(1967):1-3517For a discussion of historiographical trends in legal history, see Barry Wright, "An Introductionto Canadian Law in History," in eds. W. Wesley Pue and B. Wright. Canadian Perspectives onLaw and Society. (Ottawa: Carleton University Press, 1988), 7-20. Hamar Foster's workincludes, "Long-Distance Justice: The Criminal Jurisdiction of Canadian Courts West of theCanadas, 1763-1859" The American Journal of Legal History 34(1990): 1-48; "The Struggle forthe Supreme Court: Law and Politics in British Columbia, 1871-1885" in Law and Justice in aNew Land: Essays in Western Canadian Legal History. ed. Louis Knafla, (Calgary: Carswell Co.Ltd., 1986) :167-213; "The Kamloops Outlaws and Commissions of Assize in Nineteenth-CenturyBritish Columbia," in Essays in the History of Canadian Law. volume 2, ed. D. Flaherty, (Toronto:University of Toronto Press, 1983): 308-364.18 In addition to "...Law and Politics in British Columbia," see Foster, "How not to DraftLegislation: Indian Land Claims, Government Intransigence, and How Premier Walkem nearlySold the Farm in 1874," The Advocate 46(1988): 411-420. This anecdotal critique of Walkem'slaw-making abilities presents the lowly standards of the representative assembly as the result ofuniversal suffrage.9century British Columbia requires further research that investigates more fullythe organization of the inferior courts and the role of provincial legislators inshaping the judicial system of post-Confederation British Columbia.The strength of Tina Loo's examination of law and political authority incolonial British Columbia derives from her application of modern researchmethodologies and use of diverse theoretical perspectives to explain the natureof this relationship. 19 Her study documents a transformation of law in historyfrom judge-made law to formalism in law, a shift she attributes to the changingsocial structure of the colony. Her sensitive treatment of the legal history of theperiod reveals that two cultural value systems contributed to the making of theprovince. One was the legacy of eighteenth-century paternalism as embodied inthe "common sense" justice of Chief Justice Matthew Baillie Begbie. Thesecond was the demands of the nineteenth-century market-driven economy,which required certainty and predictability from the justice system to regulateformalized commercial transactions. Her contribution to British Columbia legalhistoriography suggests the need for a study of legal change and its relationshipto the economy in the post-Confederation period.To broaden the scope of inquiry in the legal history of this period this studyexamines civil procedure reform in the province with a new perspective. BritishColumbia's legal historians have concentrated on the superior courts, 20 and19Tina Merrill Loo, "Law and Authority in Nineteenth-Century British Columbia, 1821-1871."20With a few exceptions, Nancy Kaye Parker, "The Capillary Level of Power: Methods andHypotheses for the Study of Law and Society in Late-Nineteenth-Century Victoria, BC." (M.A.thesis, University of Victoria, 1987) A study of the inferior criminal courts; see also Farr, "TheOrganization of the Judicial Systems," and Loo, "Law and Authority," especially, Ch. 3. Fosterdeals with civil procedure reform in the county courts in an incidental manner as it related to theconflict between the judiciary and legislators , "...Law and Politics in British Columbia," pp. 171-79.10have been limited by a perspective that considers legal history to be the historyof judges and statute law. 21 This study focuses on the inferior civil courts andattempts to explain how the demands of a credit-based economy commandedthe need for court reform. An examination of the county courts is warrantedbecause the majority of civil litigation in the province was handled by the lowercourts, and because the magistrates of these courts were the focus of reformproposals after Confederation. 22 These court officers had no formal training inlaw, but they did have the confidence of the colonial administration. GovernorMusgrave recommended that the county court magistrates' tenure should not beaffected by Confederation with Canada. 23 His counsel to retain the magistrateswas based on his desire to expedite Union and to reward these civil servants fortheir loyal service. But following Confederation the status of these gentlemenattracted the ire of the public who used the courts, and provincial legislatorsselected them for early retirement.This archives-based study hopes to suggest explanations for the variouscourt reforms introduced and implemented after Confederation. Starting fromTina Loo's supposition that a materialistic society based on a market-driven21 British Columbia's legal biographers are some of the most legal-centric. See The Hon. DavidVerchere, A Progression of Judges: A History of the Supreme Court of British Columbia(Vancouver: University of British Columbia, 1988); David Williams Q.C., "...The Man fora NewCountry": Sir Matthew Baillie Begbie (Sidney, B.C.: Gray Publishers, 1977).22The magistrates of the County Court were styled "County Court Judges," but not one was dulyappointed before 1884. An Ordinance to amend and assimilate the procedure in the CountyCourts in all parts of the Colony of British Columbia, 1867, R.S.B.C. (1871), 34 Vic., c. 95, sec. 3(repealed 41 Vic., c.. 20) authorized the Governor-General of Canada to appoint any StipendiaryMagistrate or Justice of the Peace a County Court Judge, but no such appointments were made.For the remainder of this essay the members of the bench of the county court will be referred toas "magistrates."23Governor Musgrave to the Earl of Kimberly, 3 June 1871. Colonial correspondence sited byAttorney General G.A. Walkem in "BC Attorney General, Opinion on Various Topics, 1864-1879," 9 April 1873, file 12, GR 1459. British Columbia Archives and Record Service (BCARS).11economy had overwhelmed an ordered society based on a moral economy in thecolonial period, it is reasonable to hypothesize that governmental institutionsheld over from the colonial period, such as the courts, would present obstaclesto modernization. Whereas "common sense" rulings had functioned tolerablywell in a face-to-face organic community, a codified and formalistic law wasessential to the smooth operation of a complex commercial system. This studyseeks to explain how civil procedure legislation enacted in the 1870s wasmotivated by a drive to make the courts complementary to an expandingcommercial system.Chapter Two provides historical context for an examination of the countycourts. The chapter describes the institutionalization of the inferior courts in thecolonial period and illustrates the reasons why there were demands for courtreform in the national period. Chapter Two also presents the intellectualperspective and political agenda of the two factions offering reform programs toimprove the administration of justice. Chapter Three examines the diurnalbusiness of the courts. A quantitative and descriptive analysis of county courttransactions in two selected courts introduces the specific problems of the courtsin the 1870s. The chapter describes how the existing court structure and civilstaff failed to satisfy the legal service needs of British Columbia as the countrydeveloped. The quantitative data presented in the third chapter supplementsliterary evidence that the courts and its officers were inadequate. Chapter Fourdiscusses legislators' aims at improving the court system, and the difficultiesthey encountered in implementing a feasible reform program.The thesis argues that economic change and commercial expansionprompted court reform legislation. The courts, as inherited from the colonial12period, failed to meet the requirements of a materialist, growth-oriented country.The superior courts did not provide equally accessible justice on a province-widebasis, and the inferior courts could not ensure the enforcement of their orders inan efficient and inexpensive manner. Debate over the character of the lowercourts pitted members of British Columbia's colonial elite- individuals who had avested interest in maintaining the structure of the courts as it stood atConfederation- against a group of newly empowered legislators who, motivatedby self-interest, demanded judicial change that would facilitate economic growth.CHAPTER 2HISTORICAL CONTEXT FOR AN EXAMINATION OF THE BRITISH COLUMBIACOUNTY COURT SYSTEMThe Institutionalization of the County CourtsThe growth of the British North American colonies on the west coastrequired that administrators in the Colonial Office make provisions for theadministration of justice, especially in criminal matters. 1 Drawing on theirexperience in other colonies they recognized that it was a practical measure toprovide courts with varying levels of jurisdiction. In this way, inferior courtshandled simple civil cases and criminal misdemeanors in a perfunctory andinexpensive way. Superior courts administered civil cases that involved finepoints of law or large sums of money and serious criminal infractions. Thesecourts operated in a more formalized manner and imported the well-triedtraditions of English common law tribunals.To arbitrate civil suits twin-tiered justice systems were instituted in both ofthe British North American colonies on the west coast. On Vancouver Islandmajor civil actions were administered in the Superior Court of Civil Justice,presided over by Justice Cameron, a lay judge replaced by Joseph Needham in1864. The Small Debts Court, established in 1856, provided a means to settledisputes up to 15 at a reduced scale of fees. Originally, Cameron presided over1 See Hamar Foster, "Long-Distance Justice: The Criminal Jurisdiction of Canadian Courts Westof the Canadas, 1763-1859." The American Journal of Legal History. 34(1990): 1-48.1314both courts, but this arrangement proved unmanageable since appeals from thelower court came before the same judge in the higher court. Responding to thisproblem, lay magistrate Augustus Pemberton commenced hearing civil suits inthe Small Debts Court, and he assumed regular duties in the court in 1865 whenJustice Needham refused to sit in the lower courts. 2 On the mainland colonycivil justice was divided between the Supreme Court of British Columbia andinferior courts: the Mining Court and the Stipendiary Magistrate's Court. GoldCommissioners staffed the Mining Court, and they adjudicated mining disputesin the mining districts. The Stipendiary Magistrate's Court, or "County Court" asit was called in colonial correspondence, adjudicated petty civil cases throughoutthe mainland. Justice Begbie was the sole judge in the superior court;appointees, including career civil servants Peter O'Reilly, W.R. Spalding, H.M.Ball, and E.H. Sanders (variously Saunders), served the inferior tribunals.At the merger of the colonies and the eventual settling upon Victoria as thecapital of the colony in 1868, justice became more centralized. The ColonialOffice required that the Supreme Court Justices and the Attorney General live inVictoria.3 Local Stipendiary Magistrates adjudicated petty criminal and civilactions in all parts of the colony. These government agents acted in numerouscapacities: Police Magistrates, County Court Judges, Gold Commissioners,2"BC Attorney General, Opinion on Various Topics, 1864-79" (Crease), 25 October 1865, file 3,GR 1459, BCARS. On the problem of Needham refusing to act in the "County Court" ofVancouver Island, Attorney General Crease recommended that Pemberton open the SmallDebts Court and "settle up cases now on hand and any new cases which may arise."(emphasisadded) Crease clearly felt it was expedient to make use of the present judicial power at hand,although he noted that Pemberton was not professionally trained and that he would likely knowmost of the litigants personally.3H.P.P. Crease, to Z. Lash, Deputy Minister of Justice, 9 September 1878, Add MSS 54, folder12/65, folio 8501. BCARS. Crease asserted this fact in a letter arguing amongst other things thatthe local legislature could not appoint the residence of the Justices.15Indian Agents, Assistant Commissioners of Lands and Works, Postmasters,Justices of the Peace, and general government agents. Semi-annual circuitcourts to the centers of population served major criminal and civil actions,whereas less populated regions, such as Kootenay and Cassiar, received fewercircuits. Highly qualified judges staffed the superior court, and these Justiceswere expected to use their formal training and resourcefulness to meet thedemands of significant criminal and civil breaches of justice. The inferior courtdeveloped as a catch-all for court business that did not demand the attention ofa legally-trained individual. Legal transactions, such as insolvency actions,probates of wills, and court-ordered injunctions, were reserved for SupremeCourt Justices. Since the Justices lived in Victoria, these legal services wereaccessible solely in Victoria, except when the Justices were on circuit.The County Court Ordinance of 1867 formalized the organization of thecounty courts in British Columbia. 4 This Ordinance repealed Vancouver Islandand British Columbia colonial statute law relating to district courts and madeEnglish legislation governing county courts universally applicable throughout theunited colony. 5 The county court system included six informal judicial districts,two on Vancouver Island and four on the mainland, and a magistrate wasattached to each district. According to the Ordinance, the magistrate was to hold4An Ordinance to amend and assimilate the procedure of the County Courts in all parts of theColony of British Columbia, 1867, Revised Statutes of British Columbia(1871), 34 Vic., c. 95. Allcolonial acts, ordinances and enactments are sited as they appear in the Revised Statutes ofBritish Columbia (R.S.B.C.) published in 1871. In general, statutes are sited in the text by theabbreviated "short title" and referenced in the footnotes by the long title.5The principal model legislation for the courts was, An Act for the more easy Recovery of SmallDebts and Demands in England, 1846, Halsbury's Statutes of England, 9&10 Vic., c. 95 andamendments, 1850, 13&14 Vic., c. 61; 1851, 14&15 Vic., c. 52; 1852, 15&16 Vic., c. 52; 1856,19&20 Vic., c. 108. Second Edition. Volume 5. ed. Sir Roland Barrows. (London : Butterworthand Co. Ltd., 194816regular circuit courts within the designated districts following the rules of courtprocedure prescribed in the English acts. The magistrates appointed were thefive individuals cited above: Pemberton, Spalding, Ball, Sanders and O'Reilly, aswell as A.T. Bushby, a registrar in the court system. These men had received noformal legal training but gained their appointments based on their experience inthe local courts of British Columbia and Vancouver Island. 6 Despite their lackof formal training Governor Musgrave expressed confidence in these gentlemen,and colonial administrators apparently consented to the appointments with fewreservations. 7David Farr has suggested that "...the system of local courts grew upnaturally as part of the larger system, adjusting itself freely under the impress ofchanging and broadening conditions." 8 He supports this vague statement with ahint that civil litigation may have been clogging the operation of the SupremeCourts and that it was this situation that prompted administrators to expand andformalize the civil jurisdiction of local magistrates. 9 Whether the courtsdeveloped "freely" or were crafted to meet the practical need to unburden thesuperior courts, British Columbia officials assumed that English justice could be6 In her study of the colonial courts, Tina Loo presents evidence that suggests that certain ofthese men recognized their deficiencies as judges. Although educated at Eton and Oxford, PhilipH. Nind, Stipendiary Magistrate at Alexandria, refused a County Court Judgeship and sited hislack of training and inferior legal knowledge compared to some of the litigants in court. p. 220.kord Buckingham to Governor Seymour, 25 March 1868, GR 2045. (Microfilm B-2 and B-3)BCARS. Buckingham's only advice on the County Court Ordinance of 1867 was that ,should it be necessary to redraft this Ordinance it is worthy of consideration whether itwould not be better to set out such of the provisions of the Imperial Acts as it is thoughtadvisable to introduce into the colony, rather than to make a general reference as in thepresent ordinance to all the Imperial Acts."Most British Columbians would not have been familiar with the sited Imperial legislation andtherefore would have been uncertain about the procedure in the courts.8Farr, "Organization of the Judicial System," p.17.9 lbid., p. 33.17imported to the province by copying English institutions. The significant flaw inthis line of reasoning was that the English model was not copied completely;thus, suitors in British Columbia could not avail themselves of the full recourse ofEnglish justice.The British Columbia county courts were modeled on the English courts,but practical considerations compromised the administration of justice. BritishColumbia's legislators followed the principle pioneered by Governor Douglas in1858 to adopt English laws " far as they are not, from local circumstance,inapplicable to the colony of British Columbia." 10 Consequently, English countycourts legislation and derivative British Columbia enactments were not entirelyalike. "Local circumstances" made it impossible to follow the stipulation of theEnglish county court Acts that the County Court Judges be barristers-at-law. 11Before Confederation, there were thirteen barristers on the Barrister's Roll forthe province of British Columbia, an insufficient number of legal men to staff thesix magisterial positions of the inferior courts and meet the requirements of thebar. 12 The County Court Ordinance of 1867 did not designate that theappointees to the county court bench be formally trained in law. It merelyauthorized the Governor of British Columbia to appoint any StipendiaryMagistrate or Justice of the Peace to be a County Court Judge. Since thecolony's Stipendiary Magistrates and Justices of Peace were not legally-trainedmen, lay magistrates continued to serve the local courts of the island andmainland after the merger of the colonies.10 Proclamation dated 19 November 1858 as sited in Gouge, "Civil Procedure in the Superiorcourts" p.345.11 1846, 9&10 Vic., c. 95, sec. 9.12Copy of "Barrister's Roll for the Province of British Columbia," (n.d.) in the Attorney GeneralRecords Finding Aid, 7A. BCARS.18Other differences between imperial and colonial county court legislationreveal that British Columbia legislators wanted to create an institution that wassuited to local circumstances. The colonial government lacked the personneland the finances to provide a full courtroom staff; consequently, the Ordinanceenacted that the "County Court Judge" perform the duties of the courtregistrar. 13 In the 1860s the practice of the courts had developed whereby theclerk of the court also performed certain of the duties of the sheriff, such asserving execution summons. In this way the same court officer was responsiblefor administering courtroom duties and for serving court orders outside thecourtroom. In the interest of minimizing the number of court officers necessaryto administer justice, the Ordinance did not change this ambiguous procedure.In addition, section four established the jurisdiction of the court at $500. Thiswas double the jurisdiction of the English courts, 14 and it suggests thatadministrators wanted to establish the county court as the major civil court of thecolony. 15The County Courts Ordinance of 1867 formalized procedure in the inferiorcourts and established a standard county courts system on the island and themainland. However, administrators failed to provide the people British Columbiawith faultless inferior courts. One problem was that the Ordinance perpetuated a13 R.S.B.C.(1871), 34 Vic., c. 95, sec. 12.14An Act to Extend the Act for the more easy Recovery of Small Debts and Demands inEngland, and to amend the same, 1850, Statutes of England, 13&14 Vic., c. 61, sec. 1. Thejurisdiction of the court was originally set at 220, 1846, 9&10 Vic., c. 95, sec. 58.1560.9% of all actions in the County Courts in the colonial period were below $100. Loo, "Lawand Authority," p. 123. One explanation for colonial administrators decision to establish the highjurisdiction of the county court may have been that they hoped to minimize judges' travelexpenses. Traveling expenses were a highly contentious issue between the Justices and Ottawaand if civil business could be handled locally it would have released the Justices from makingfrequent circuits of the Supreme Court.19system of courts adjudicated by lay magistrates, and another was that it did notclearly define the responsibilities of the various court officers. Furthermore, theOrdinance made no reference to the jurisdiction of the court in actions entered inequity. Nineteenth-century law distinguished between suits heard before thecommon law and those heard before equity law. A judge decided a common lawaction according to precedent as established in the courts since timeimmemorial. An action brought in equity required that the judge base hisdecision on the circumstances surrounding the particular case and on equitylaw. Before the judicature reforms of the 1870s in England, it was necessary toenter an action in the appropriate jurisdiction before the court hearing. 16 If aplaint was entered incorrectly the suit might be dismissed on technical grounds.Since there is no mention in the British Columbia Ordinance to the cognizance ofthe magistrates in actions entered in equity, it must be assumed that the practiceof the English courts was adopted, where the County Court Judges hadcognizance in both equity and common law actions. English judges werecompetent to instruct litigants about which proceeding was most advantageousto their particular circumstances. However, the administration of justice by laymagistrates in the British Columbia courts negatively affected the equitablerights of litigants. In the superior courts of British Columbia suitors could bringan action in equity in the Chancery Court and a common law suit in the Court ofCommon Pleas. A similar recourse did not exist in the inferior courts, and16For an explanation of the reforms instituted by the "Judicature Acts" of 1873, 1875 and 1876see Gouge, "Civil Procedure in the Superior Courts," pp. 348-351. These reforms were modeledon changes in civil procedure initiated in New York by the Field Code (Laws N.Y. 1848, c. 379)outlined by Lawrence Friedman, A History of American Law (New York: Simon and Schuster,1973), 340-7. Law reform was designed to simplify the procedure for entering plaints and toextinguish the inconvenience and risk to suitors that their actions be dismissed on technicalgrounds.20consequently, all actions were heard as "common law" actions. Equitable rightswere further trenched upon by the condition that appeals to the higher courtwere allowed only on a point of law, not on the facts of a case.The ambiguity of the Ordinance on the matter of the magistrates'cognizance in equity actions suggests that administrators either overlooked thematter, or, more likely, neglected to include provisions for jurisdiction in equity.Administrators did not believe that it was necessary to import this subtle legaltechnicality. Instead, the inferior court was instituted as a simplified disputesettlement forum. Justice system administrators, including Governor Seymourand Attorney General Crease, wanted to create local courts that wereeconomical to administer and yet served what were perceived to be the limitedlegal needs of a sparsely populated colony. Seymour and Crease anticipatedthat lay magistrates would be able to judge cases on points of fact and would notneed formal training in law. In addition, court procedure was simplified to makethe management of court business possible in the absence of professionally-trained officers. Administrators did not believe that the province needed anelaborate justice system that imported the technical and symbolic formalities ofEnglish law tribunals. The British Columbia county courts were instituted as acourt of fact and not of law, and this arrangement suited the rudimentary legalknowledge of its officers.At Confederation the courts were essentially the same as constituted bythe County Court Ordinance of 1867; however, the question of whether to retainthe courts as established arose in the Confederation debates. GovernorMusgrave was a staunch supporter of the county courts system that haddeveloped in the colony. In a dispatch to the Colonial Office he informed21English officials that he considered the position of county court magistrates"singularly well filled" and stated that he did not believe the officers of the courtwould be affected by political changes on the admission of British Columbia intothe Dominion. 17 The Colonial Office accepted Musgrave's assessment of thelegal needs of the country, and following directives from Imperial officials theSeventh Session of Legislative Council of British Columbia made provisions toretain the incumbent magistrates after Confederation.Political Division Over Court ReformThe political struggle for control of the Supreme Court after Confederationoriginated in the colonial period as dissatisfaction with the courts and its officersfermented. 18 Friction between the judges and would-be reformers coalescedover the proper function of the justice system in society. On one side of theissue, the judiciary and their supporters believed that the court structure that haddeveloped in the colonial period was adequate for the legal service requirementsof the country. As Justice Crease noted in one letter to the federal Minister ofJustice,The County Court System that is wanted is one, which should arise from thenatural growth and prosperity of the country. It [does not want] a system offorced growth prematurely ushered into being... 19The judges believed that local lay magistrates were competent to handlepetty criminal actions and minor civil disputes after Confederation while circuitcourts of the Supreme Court would serve the more important legal service needsof the country. In this way, a non-resident, and therefore impartial,17Governor Musgrave to Lord Lisgar, 22 November 1870 as cited in, "BC Attorney General,Opinions on Various Topics, 1864-1879" 9 April 1873, file 12, GR 1459. BCARS.lboThis section builds on Hamar Foster's work, "...Law and Politics in British Columbia."19Crease to Blake 27 March 1877 Add MSS 54, file 12/65. folio 8309. BCARS.22professionally-trained individual would adjudicate grave criminal infractions andsignificant civil disputes. The majesty of a Justice on circuit would also serve thesymbolic function of importing an uplifting moral tone to the coarse back-countrylife of the mining towns. The judges' resistance to change in the courts hadexisted in the 1860s as well. Justice Matthew Begbie had repeatedly blockedrequests from suitors for an appeals court on the grounds that it was anunnecessary expense. 20 He felt confident that an appellate court wouldmechanically confirm the judgement of its brother judges. Pressured on thepoint of court reform in the national era, the judges adhered to their opinion thatthe extant justice system was adequate.Suitors in the court and their elected representatives in the legislativeassemblies demanded a formalized justice system that relied on written codes.Whereas the judges believed that a courts system without an appellate divisionwas adequate, this faction considered the incontrovertible power of the judgesarbitrary. And as Tina Loo shows, popular denunciation of Begbie's decisions ina number of celebrated mining cases highlighted the inadequacies of judge-made law. 21 These would-be reformers required accountability from theJustices and wanted to institute reforms that would assure the security of capitaland contract in the courts. These factions existed in the colonial period, but it20 Aurora Co. v. Davis Co. (1866) raised the problem of the need for an appellate court from theGold Commissioners Court. The case is documented in the Cariboo Sentinel (Barkerville), 28May 1866, "Chancery or Law?" Letter to editor from Miner, p.2; 31 May 1866, "Irresponsibledeputies: decisive stand taken by Judge Cox," p.1; 31 May 1866, Letter to ed. from Miner, p.2;4June 1866, "Judge Begbie and his judges," Letter to ed. from Onyx, p.2 (Defence of the judges-written by Begbie?); 11 June 1866, "Judge Begbie and his judges," Letter to ed. from Caustic, p.2.21 Ibid., see Chapters 4, "A Delicate Game: Law and Geography on Grouse Creek," pp. 150-189and 5, "Cranford vs. Wright Law and Authority in British Columbia," pp. 190-226; see also Farr,"The Organization of the Judicial Systems," p. 28.23was only in the national period that opponents to the existing judicial structurepossessed the political power to initiate reform of the courts.A prosoprographic survey of these political rivals reveals that there wereintellectual differences and places of origin distinctions between the two factionsmaking up the governing elite of British Columbia. The Justices of the SupremeCourt and the magistrates of the inferior courts and their supporters such asSenator Clement F. Cornwall were part of a group of appointed officials.Generally, they were recent immigrants from the British Isles and had gainedtheir appointments during the colonial period. Begbie, Crease and Cornwallcame from upper-middle class families in England who owned small propertiedestates. They had been educated in England, and they imported their familyvalues and ideas about the role of government to British Columbia. GregoryThomas describes the country gentleman/rancher, Clement Cornwall, aspart of a significantly larger group of British settlers and officials who, fromtheir base on Vancouver Island, exerted a considerable influence upon thetone and direction of British Columbia society. 22This group's stand on a number of contemporary political and social issuesillustrates their intellectual perspective. As one example, the Justices' influenceon the operation of the Married Women's Property Act, 1873, helped to definewomen's position in society and the sanctity of marital unity. 23 This Act wasmodeled on contemporary legislation in England and Ontario and was anegalitarian measure formulated to delimit married women's rights in the22Gregory E.G. Thomas, The British Columbia Ranching Frontier, 1858-1896." (M.A. thesis:University of British Columbia, 1976), p.183.23The discussion of the statute and its significance is based on Paulette Falcon's thesis, "...if theevil ever occurs." The 1873 Married Women's Property Act: Law, Property and Gender Relationsin Nineteenth-Century British Columbia." (M.A. thesis: University of British Columbia, 1991).24marketplace. The Justices' interpretation of the statute in a number of courtcases reveals their attitudes about family values and marital unity. Instead ofinvoking the statute to justify women's rights to transact commercial relationsindependently from their husbands, the Justices used the Act as a measure toensure that husbands lived up to their obligation to provide for and protect theirfamilies. When husbands were negligent in their responsibility to their families,the Justices implemented the statute to protect married women's personalproperty such as their dowry from the squandering hands of their husbands.Paulette Falcon has argued that,Instead of fulfilling its potential, the Act became another extension of theprotective domestic legislation affecting women and the family that wascharacteristic of the nineteenth century. 24The Justices imprinted their vision of society on the country through theircourt decisions and influence as respected members of the community.On contemporary political issues the Justices also expressed conservativevalues. They opposed Union with Canada, supporting instead the concept thatBritish Columbia remain a colony within the British Empire. 25 The judges hadmaterial reasons for opposing confederation: they feared the loss of their jobsand pensions. But they were also intellectually opposed to the idea ofrepresentative government by universal suffrage. The construction of thetranscontinental railway was among the most divisive of issues in the new24 Ibid. p. 89. Further revealing their elitist sensibilities, the Justices aligned themselves with thefaction that supported a sectarian educational structure over free schools. See Jean Barman,"The Emergence of Educational Structures in Nineteenth-Century British Columbia," in Readingsin the History of British Columbia. eds. R.A.J. McDonald and Jean Barman, (Richmond, B.C.:Open Learning Agency, 1989), pp. 83-105.20G.R. Elliot, "H.P.P. Crease: Confederation or No Confederation" BC Studies 12(1971-72): 63-74.25province. However, it did not preoccupy the judges because they, unlike themajority of British Columbians, were not motivated by a desire to see theprovince prosper economically. In one instance, Begbie wrote about the railwaywith the bemused attitude of a disinterested observer:Everybody is anxious here for the success of the Railway. The pecuniaryamount is so enormous, the risk considerable, the difficulties of assessingthe various competing termini on the coast so heavy, notwithstanding theenergy of expense and labour in the last year's surveys- that I for one shallnot be disappointed if it be found impossible to commence the line at thetime indicated, at least otherwise than formally. 26In their attitudes about social and political issues the judges and theirsupporters expressed their resistance to radical change. The judges did notoppose progress and they were not ignorant of the social leveling that occurredin colonies such as British Columbia. They did, however, retain certainconservative and paternalist ideas engendered in the social fabric of their classbackgrounds.Opposing this group was a coalition of progressive-minded, materialistindividuals, who had immigrated from eastern Canada to British Columbia. AmorDe Cosmos, one of the staunchest advocates of Confederation and an immigrantfrom Nova Scotia, saw union with Canada as a means to achieve his goal ofeconomic growth for British Columbia and as a vehicle to gain responsiblegovernment. 27 In the post-Confederation period, De Cosmos and otherreformers hoped to pare down what they believed was a bloated civil list.Reformers specifically identified the incumbents of the county court bench as26Chief Justice Matthew Bail lie Begbie to Louis Fournier, Minister of Justice, 23 April 1873,O'Reilly Collection, BCARS, E/C/B41.27R.A.J. McDonald and H. Keith Ralston, "Amor De Cosmos" in the Dictionary of CanadianBiography, Vol. XII (1891-1900) (Toronto: University of Toronto Press, 1990), pp 237-243.26targets for early retirement. They believed that a smaller number ofreplacement, professionally-trained appointees would be able to handle the legalservice needs of the community more efficiently than their lay predecessors.Reform of the courts constituted an integrated part of legislators'administrative policy to create an economic environment compatible withcommercial and industrial development. An introduction to the view oflegislators and business leaders on political economy will show that BritishColumbians recognized the potential that law-making offered to facilitatedomestic economic development and that they had very different attitude aboutstate management and the meaning of progress than reactionary components ofBritish Columbia society. Successive ministries shared a common commitmentto the expansion of British Columbia's commercial economy throughinstrumentalist legislation. Reform of the county court system represented onlyone of the measures that legislators took to encourage economic expansion.Instrumentalist British Columbia LegislationInstrumentalist legislation is a broad and ill-defined term. Essentially alllegislation is "instrumentalist" in that individual statutes are formulated with aparticular aim in mind. However, this term, as used by Hurst, Horwitz, Risk andothers, refers to a specific development of nineteenth-century law-makingwhereby legislators, and especially state or provincial legislators, used object-directed legislation to create opportunities for economic development.Instrumentalist statutes often benefited a particular sector of industry, 28promoted technological development and industrial efficiency through28For example Hurst, Law and Economic Growth: The Legal History of the Lumber Industry inWisconsin, 1836-1914 (Madison: University of Wisconsin Press, 1964).27permissive measures, 29 or granted indemnities to industry to minimize risk fromloss.30 Instrumentalist legislation typified British Columbia's law-making effortsto aid regional economic growth, and the succeeding paragraphs provideexamples of such enactments in British Columbia. While the federal governmentdisallowed some of this legislation, it should not mean be dismissed asirrelevant. Disallowed legislation reveals as clearly as sanctioned enactmentsthe aim of law-makers to channel economic development and to releasepotential energy from the province's natural and human resources.One of the greatest needs of the province's isolated centers of industry,agriculture and commerce was an efficient communications network. Innineteenth-century eastern Canada legislators promoted an extensive canalnetwork, river improvements and trunk railroads to increase the carrying capacityof transportation companies. In British Columbia public works programs mostsignificantly took the form of road construction projects to link the interior'sminers and agriculturists to the commercial centers of Victoria and NewWestminster. Ever since 1862-3 when the Douglas government commissionedthe vast project to construct the Cariboo Road, British Columbia's legislatorsmade a concerted effort to create an intra-provincial trunk road system. 31 After29For example Horwitz, The Transformation of American Law ,1780-1860 (Cambridge: HarvardUniversity Press, 1977). In Chapter 2 , Horwitz discussed changing legislation about bridgecharters and the abrogation of monopoly charters based on ancient privilege.30For example Risk, "The Last Golden Age: Property and the Allocation of Losses in Ontario inthe Nineteenth-Century." University of Toronto Law Journal. 27(1977):199-239.31 "The Prorogation," Daily Standard (Victoria) 3 March 1874, p.3.This (public works) policy is the true basis of a successful immigration scheme in thefuture. It's advantages are not confined to success in this quarter. It will stimulate trade.It will improve the condition, and increase the prosperity of our farmers, by affordingthem easy access to new and at present, inaccessible markets for the sale of theirproduce. It will ensure profitable employment to our merchants. It will develop ourmineral wealth. It will materially assist our pastoral interests, and thus retain forexpenditure in the Province, if not wholly, large sums of money which hitherto have been28Confederation, administrators also tried to lower the costs for private individualsand commercial groups using the province's roads. The Department of Landsand Works redeemed certain chartered toll roads and replaced private ferrycompanies with serviceable public bridges. 32 The public works policy wasformulated to help domestic producers and shippers control the flow of goodsentering and exiting the interior of the province and was inspired by a belief thatinvestment in communications added value to otherwise valueless resources.As well as allocating roughly 30-50% of the annual budget to public worksin the 1870s and 1880s,33 the provincial government used toll legislation on theprovince's roads as a discriminatory internal tariff. Tolls on the Cariboo Roadhad helped pay for the road's maintenance since its earliest days and ensuredthat local "taxes" paid for local improvements. Legislators attempted to replacethe hated tolls with a general road tax assessment on all property owners, butthis measure proved to be even more unpopular. 34 The first G.A. Walkemadministration (1874-76) recognized the need to reinstate the road tolls butpaid by us to foreign markets. I have therefore cheerfully assented to the appropriations,which you have with prudent liberality, made for these objects; as beneficial results of apermanent character are sure to flow from legislation so directed.32For example, "Report of the Chief Commissioner of the Department of Lands and Works,"B.C. Sessional Papers. (Victoria: Richard Wolfenden, 1875). In the Cassiar the Dept."...redeem[ed.] Moore's Road Toll Charter in accordance with the Memorandum of Agreement,12 April 1873, for $12500, $10000 for cost of the work and twenty-five percent additional."33"Comparative Statement of the Receipts and Expenditures of British Columbia," B.C.Sessional Papers. (Victoria: Wolfenden, 1886). p.122A. The percentage of the annual budgetspent on public works: roads, streets, bridges and the Esquimalt graving dock, was; 1872 -36.5%, 1873 -26.9%, 1874 -49.7%, 1875 -32.2%, 1876 -49.8%, 1877 -35.2, 1878 -18.6%, 1879-80 -18.6%, 1880-81 -23.2%, 1881-82 -30.5%, 1882-3 -40.9%, 1883-84 -30.3% and 1884-85 -27.5%. For an average of 32.3% annually34One of the enactments of first post-Confederation parliament was to abolish the Cariboo Roadtolls (Road Tolls Repeal Act, 1872, 35 Vic., c. 2) and instate a province-wide road tax, whichproved even more unpopular as it was not an ad valorem tax and did not share the burden offunding road construction fairly.29wanted to legislate the tolls in a way that was most beneficial to the wholeprovince. To achieve this goal British Columbia's law-makers used tolllegislation to circumvent lack of control over tariff regulation forfeited atConfederation when British Columbia had accepted the Canadian tariff. 35 In1876 the legislature levied new road tolls that placed differential rates ondomestic and imported goods. 36 All goods going down the road from the interiorwere exempted from road tolls, as were domestic produce, farming implements,mining machinery and personal goods going up the road. The burden of thetolls was designed to fall on imported agricultural products and importedmanufactured goods.Advocates of domestic production over consumption of imported goodswere eager to use legislation to promote new industrial enterprises in theprovince. One of the favoured means of encouraging the start-up of nascentindustry was enactments that offered bonuses or rewards to entrepreneurs. 37Legislators also copied the initiative of their North American contemporaries andoffered generous incorporation statutes to private individuals. The incorporationstatute transferred public powers to individuals: to make contractual agreementsin the name of a corporation, to generate capital investment through sale ofstocks, to make decisions about capital spending and to limit the liability of35Canada Customs Laws Adoption Act, 1872, 35 Vic., c. 3.36Cariboo Waggon Road Tolls Act, 1876, 39 Vic., c. 3. Disallowed by Ottawa, but according to"The Recap of Revenues and Expenditures" (note 33, chapter 2, infra) the tolls werenevertheless collected.37Quartz Act, 1877, 40 Vic., c. 13. offered a $15000 loan to a " building a good andsufficient ten-stamp quartz mill".; Woolens Act, 1882, 45 Vic., c. 28. offered to pay $5000 to theerector of a suitable mill. Bonuses were one of the objects forwarded by journalists andpoliticians to inaugurate a sugar beet industry, iron works, and numerous other ventures.30investors from loss to the amount that was invested. 38 These powers permittedindividuals to exercise their capacity to transact commercial relations in astructured, but relatively unfettered, marketplace. In British Columbia themajority of incorporation statutes established mining companies, bankinginstitutions, a woolens factory, salmon-canning operations and transportationcompanies. 39As another instrumentalist measure, property laws were changed toaccommodate industrial development. Legislators in the post-Confederationperiod held different views about property rights than their appointedpredecessors. Whereas appointed officials shared the social engineeringphilosophy of colonial administrators such as Edward Gibbon Wakefield, whohoped to reconstitute the class structure of England in the colonies throughproperty law arrangements, 40 provincial politicians were more interested inreforming property rights to promote economic development. The transformationof property rights in the mining industry is an instructive example of howlegislators used law to encourage capital investment. Mining law change is alsoan example of how business leaders influenced legislation and evidence of theagreement between business and government about the mutual benefits ofinstrumentalist legislation to shape industrial growth.38For a comprehensive discussion of the powers and uses of incorporation statutes in Ontario,which applies equally to use of incorporation statutes in nineteenth-century North America, seeR.C.B. Risk, "The Nineteenth-Century Foundations of the Business Corporation in Ontario."University of Toronto Law Journal. 23(1973):270-305.39For examples, An Act to Incorporate the British Columbia Milling and Mining Company, 1878,41 Vic., c. 4; Nanaimo Railway Act, 1881, 45 Vic., c. 25, et alia.40Edward Gibbon Wakefield, The Art of Colonization. (London, 1849). Described by Tina Loo,"Law and Authority," pp. 68-69.31In 1873 the American miner and entrepreneur, C.C. Lane, petitioned thelegislature to make changes to the Gold Mining Ordinance of 1865 governingproperty rights for miners. 41 Lane wanted the mining laws of British Columbia tobe more similar to the liberal laws of the Dominion of Canada and the UnitedStates of America. Lane argued that placer mining had drained the majority ofalluvial gold deposits and that it was important to import new quartz miningtechnology to assist the flagging gold mining industry. Quartz mining requiredcapital investment, which he stated the present mining law discouraged, sincemining claims were held by possessory title only; thus, they were insecure. Laneasserted that if mining claims were held in fee simple, as offered by theDominion and the United States "...mining men from San Francisco, London andother mining markets would come to British Columbia to buy miningproperties."42At the opening of the legislative session of 1873 Premier De Cosmospromised a change to the mining law of the province. 43 In the early days of thesession R. Smith (Yale-Lytton) moved that a select committee be appointed toconsider this proposition, and a committee headed by A.R. Robertson(Esquimalt) was duly appointed. Lane's petition to the legislature clearlyinfluenced the committee, and it offered a bill that recommended that the41 Lane wrote and circulated a pamphlet, The Mining Laws of BC Contrasted with Those of OtherCountries. (Victoria: British Colonist Office, 1873), in Victoria at the opening of the locallegislature. He received some advertising from the Victoria Daily Colonist( Victoria), "The MiningLaws of BC Contrasted..." 17 January 1873, p. 2 and from the Cariboo Sentinel, "Reform of theMining Law," 14 December 1872, p.2. and "Mining Law of BC Compared with California," 15February 1873, p.2.42Lane, Mining Laws, p. 12.43The Second Session of the First Parliament opened 16 December 1872 with the McCreight(Victoria City) ministry in power. A vote of confidence motioned by T.B. Humphreys (Lillooet)brought about the demise of this ministry and a new ministry led by A. De Cosmos (VictoriaDistrict) opened the session for all intents and purposes 6 January 1873.32purchase system replace the leasing system. 44 This piece of instrumentalistlegislation suited the capitalist but was potentially dangerous to the private minersince wealthy investors acquired the power to monopolize the industry by buyingup the best mining properties. Cariboo representative G.A. Walkem, whonormally supported measures designed to encourage industrial development,expressed his constituents' reservations about the permissive enactment.45Walkem successfully amended the bill to suit the specific needs of the privateminer. He added Clause 117 to the list of clauses from the Gold MiningOrdinance of 1867 repealed by the act, effectively removing a burdensome taximposed on miners.46 He also amended the bill by adding Section 16 whichallowed any electoral district to petition to have their district withdrawn from theoperation of the act. The act passed as amended and the property rights ofminers were changed in order to encourage new forms of mining activity in theprovince; however, the original bill as proposed by a non-mining regionrepresentative clearly revealed a close alliance between business leaders andlegislators to the possible detriment of independent entrepreneurs.Law as a means to offer favoured status to domestic producers and toencourage business ventures and new legislation about natural resourcemanagement are examples of the administrative policy of British Columbia'slegislators. Successive administrations implemented these permissive44GoId Mining Amendment Act, 1873, 36 Vic., c. 4. Section 8 of this act made the requirementsfor acquiring a Crown grant retroactive. If a miner, or company, had met the requirements priorto the act, the miner was eligible for a Crown grant. The Lane and Kurtz Cariboo Mining Co.received a four and one half mile Crown grant on the meadows of the Williams Creek area,some of the richest mining lands in the interior but still went bankrupt in 1875.45Legislative debates as reported in the Daily Standard 22 February 1873, p.3. and Victoria DailyColonist 18 February 1873, p.3.4636 Vic., c. 4, sec. 2 . Clause 117 had levied an annual $250 fee on miners for the right towater privileges.measures despite the fact that they were led by politically opposed ministries.The De Cosmos (1873-74) and Walkem (1874-6, 1878-82) ministries wereparticularly progressive when it came to public works programs. The Smithe(1883-87) and Robson (1889-91) ministries made greater use of incorporationstatutes than any previous administration, offering generous land grants toprospective transportation companies. De Cosmos and Walkem consideredthemselves "reformers," but Smithe labeled himself a conservative. Politiciansof varying ideological hues pursued a similar policy of using legislation topromote economic expansion.SummaryColonial administrators instituted a county courts system that fulfilled theneed for a local dispute resolution forum throughout British Columbia. In 1867the County Courts Ordinance formalized the practice of the courts andestablished a standard for conduct that was intended to meet the legal servicerequirements of the colony. Fiscal restraints, however, demanded that thecounty courts system of British Columbia be a simplified version of the modelEnglish county courts. Quantitative data and literary evidence presented in thefollowing chapters suggests that the inadequacies of the courts stemmed directlyfrom their construction in the colonial period. Powerless magistrates andambiguous procedures in the courts weakened the effectiveness of the court.At Confederation elected representatives, newly endowed withadministrative authority and eager to implement instrumentalist legislation toachieve their goal of economic development, set out to reform the courts. Thispolitical coalition formulated court reform as part of a broad administrative policy.Legislators wanted to acquire accountability from all components of the state3334system and increase their serviceability to the public. Opponents to court reformproposals obstructed the implementation of legislators' plans and laboured topreserve a court structure and a way of life that they had established prior toConfederation. The struggle for administrative control of the courts concernedthe utility of the justice system and it also influenced the state formation processin the province.CHAPTER 3COURT TRANSACTIONS IN THE LYTTON AND NEW WESTMINSTERCOUNTY COURTSHistorical Sources and MethodologyIn addition to making private law that fueled development, legislators wereinterested in reforming governmental institutions that interfered with theirprograms for economic expansion. Legislators identified the courts and itsofficers as ill-suited to the legal needs of the commercial community. Theyrecognized that the courts should function as a dependable and predictablearbitration mechanism to settle corporate and personal disputes. In aneconomic system dependent on credit relationships, as was the case innineteenth-century British Columbia, creditors and parties to contracts needed tobe able to invoke state power to force negligent parties to meet theircommitments. In the 1870s and 1880s the inferior civil courts of the provincewere not operating effectively, especially in the urban regions of Victoria andNew Westminster, and litigants were dissatisfied with an expensive anddysfunctional justice system. British Columbia's legislators attempted to institutecourt reform in order to ensure the effective dispatch of justice and to instillconfidence in the institution as a reliable dispute settlement forum.To substantiate the thesis that court reform was part of a formula designedto facilitate commercial expansion it is important to show that there weremeasurable grievances with the operation of the court. Contemporarynewspapers indicate that litigants in the courts were dissatisfied with the3536effectiveness and the costs of the courts. The records of the county courtsprovide another historical source. Plaint and Procedure Books registered all ofthe civil cases coming before the magistrates by litigants' names, cause of theaction, amount sought, court fees, judgement and, less fully, the success of thecourt to execute its judgements. This record is suitable for systematic study byquantitative methods using simple computer software. The Bench Books alsoilluminate the magistrates' jurisprudence and the procedure of nineteenth-century courts. These records provide commentary on the courtroom action incertain cases selected by the magistrates. In this chapter the Bench Books areused in conjunction with quantitative data generated from the Plaint andProcedure Books to evaluate the utility of the court. An historical analysis ofliterary sources and court records reveals three weaknesses of the courtssystem in the 1870s: accessibility to the courts, expense for litigants, andaccountability for court orders issued by the magistrates.The first decision in the research procedure entailed selecting countycourts whose Plaint and Procedure Books were to be entered into a computerdatabase. The records of the Lytton and New Westminster County Courts, bothof which were in the New Westminster Judicial district, were among the mostextensive of the county court records held at the British Columbia Archives andRecords Service. Peter O'Reilly's Bench Books complemented the Plaint andProcedure Books from these courts, and, together, they presented a well-documented historical subject for study. Additionally, literary sources suggestedthat the New Westminster Judicial district might be a suitable focal point for aninvestigation of the weaknesses of the court. Public dissatisfaction with thecourt erupted after 1875 when the resident magistrate, A.T. Bushby, died and37was not replaced. Furthermore, the two courts represented examples of an"urban" (New Westminster) and a "rural" (Lytton) county court and offered theopportunity for comparative analysis.To measure the competency of the magistrates the records from Plaint andProcedure Books were entered in computer databases using spreadsheetsoftware. This software allows a researcher to replicate and manage a series ofmultiple entry records. Two databases form the basis for the quantitativeanalysis conducted in this study (see Appendix A). One database contains therecords from the Lytton court spanning the period August 1871 to December1880 and holds 74 civil cases (see Appendix B). A second database containsthe records from the New Westminster court spanning the years January 1871 toDecember 1880 and holds 1237 cases. The time frame represents the periodextending from the year of Confederation to the replacement of the laymagistrates by professionally-trained judges.In order to use the database technique it was necessary to classify thetypes of cases coming before the courts. Eight categories are directlycomparable between the two courts:accounts rendered: merchant trader seeking payment on creditaccountnegotiable instruments: promissory notes, money orders, bills ofexchangegoods: non-commercial seller seeking payment on goods soldservices: professional (lawyer, doctor, musician, etc.) seeking paymentfor services providedwages: non-professional (farm labourer, fisherman, teamster, etc.)seeking payment for labour performedrEA: landlord seeking rent from tenantdamages: individual seeking court ordered payment from defendant onliability for lossnon-applicable: a broad range of cases, including lack of information(20 examples in the NW court) to cases heard on appeal(5 examples in the NW court)Describing the cases in the New Westminster court it was necessary to addfive additional categories:lodgement summons: second hearing of a trial to execute payment on aprevious court orderaarnishee summons: judgement creditor seeking court ordered paymentof debt owed by third party to a judgement debtormoney loaned: currency advanced on creditinterpleader: two parties seeking a court settlement on an issueinvolving a third partyreplevin: party seeking court ordered return of a disputed piece ofpropertyThe study employed traditional historical research techniques involving anextensive examination of literary sources as well as quantification of otherrecords in order to provide a complete explanation for the need for court reformin nineteenth-century British Columbia.Quantitative and Descriptive Analysis of Decisions Rendered in theCounty CourtsFor the great majority of civil actions in the county courts the courttransaction was a simple procedure. A plaintiff entered a plaint through theagency of the court registrar. Once served with a summons, the defendant could3839pay the debt, settle out of court, confess judgement, or defend the case. 20.1%of all cases in the Lytton court and 18.9% of all cases in the New Westminster(NW) court did not require a magisterial decree because the debt was paid outof court or a settlement was reached (Tables 1 and 2).Table 1.Resolution of actions brought in the Lytton County Court, 1871-80'General Decision 'Specific Decision 'Number 1% of Total "Debt Settled 11) no decision by satisfied/paid 0 	 0 	 0magistrate settled out of court 15 20.1 152) action decided default 6 8.1 4summaryily debt confessed 9 12.2 1struck out 6 8.1 0withdrawn 7 9.5 0adjourned 5 6.8 03) decision by for plaintiff 20 27.1 14magistrate for defendant 6 8.1 0grand totals 74 100 34Table 2.Resolution of actions brought in the NW County Court, 1871-801General Decision 'Specific Decision 	 1Number 	 1% of TotallDebt Settled I1) no decision by satisfied/paid 	 112 	 9.1 	 112magistrate settled out of court 	 123 9.9 1232) action decided default 	 136 10.9 30su mmaryily debt confessed 	 299 24.2 102struck out 	 95 7.7 0withdrawn 	 90 7.3 0adjourned 	 32 2.6 13) decision by for plaintiff 	 320 25.9 120magistrate for defendant 	 30 2.4 0grand totals 1237 100 498Another 44.7% of cases in the Lytton court and 52.8% in the NewWestminster court were decided summaryily for the following reasons:401. the defendant confessed judgement2. the plaintiff won the case by default3. the magistrate struck out the case4. the plaintiff withdrew the case5. the case was adjourned. 1The remainder of the cases, 35.2% in the Lytton court and 28.3% of thecases in the New Westminster court, were adjudicated by the magistrate infavour of either the plaintiff or the defendant. In these cases the magistrate atLytton awarded the verdict to the plaintiff in 20 out of 26 cases (76.9%) and atNew Westminster in 320 out of 350 cases (91.4%). Irrespective of thecomplexity of the cases, the decision of the magistrate was fairly predictable.Court transactions were non-technical and informal. The process ofconfessing judgement was so simplified that a form document was used by thecourt to record this transaction. The issues in cases rarely involved reference tostatutes, and local statutes required little or no enforcement in the courts.Another indication that procedure was simple was the willingness of legislatorsto broaden the number of functionaries who were permitted to administer thevarious duties of the court. Clerks and registrars entered judgements in suitswhere the debt was confessed or paid. Clerks acted in the double capacity assheriffs or high bailiffs and represented clients as advocates. In late-nineteenth-century British Columbia, court officers with imprecise responsibilities staffed thetribunals, and ad hoc procedures constituted the practice of the county courts.lln cases of adjournment it was the intention of the court to hear the case at a later date. Forwhatever reason unknown, possibly settlement out of court or poor record keeping, some caseswere adjourned and not heard at a later date.41The administration of justice by lay magistrates required simple courtprocedures, and the court developed into a court of fact and not of law.Pleadings were oral and litigants often presented their own cases. In othercases suitors hired the services of non-professional lawyers to act as theiragents, a situation made possible by a local statute. 2 Generally, these agentswere persons familiar with the practices of the court. The New Westminstercourt clerks, J. Morrison and H.V. Edmonds, were the most frequent agents inthe court. F. Hussey and J. Tait, clerks of the Lytton court, were regular agentsin that court. Other individuals hired the services of professional lawyers fromVictoria. Suitors such as merchant traders and petty businessmen who regularlybrought actions to the courts were most likely to take the services of professionallawyers. These individuals expected to win their suits and recognized thatattorney's fees would be levied against the defendant in the event of afavourable court decree. Cases were argued with minimal reference to legalprecedents, hinged upon convincing evidence and had predictable results.Typical Cases in the County CourtsA description of nine cases heard at New Westminster and Lytton willillustrate the nature of court transactions in the county courts. Typical casesfrom the major groups of cases coming before the court are represented in thissample (see Tables 3 and 4). The survey of standard cases first describescases that were found in both courts and then proceeds to outline cases foundsolely in the New Westminster court.The most common cases in the Lytton and New Westminster courts werebrought by merchant traders against regular customers to render accounts2The County Courts Practitioners Act, 1873, 36 Vic., c. 41.Table 3.Description of actions in the Lytton County Court, 1871-80!Action I# of cases 1% of Total 	 'Average Claim 'Average Court Feesaccount rendered 27 36.5 $161.05 $10.41notes 14 18.9 $181.78 $12.33goods 3 4.1 $211.47 $26.06services 8 10.8 $93.59 $4.92wages 8 10.8 $85.83 $8.93rent 2 2.7 $50.00 $4.30damages 7 9.5 $217.24 $31.22N/A 5 6.7 $210.01 $8.1374 100 $151.37 $13.28Table 4.Description of actions in the NW County Court, 1871-80'Action 1# of cases I% of Total	 !Average Claim 'Average Court Feesaccount rendered 485 39.4 $56.47 $9.71notes 154 12.4 $119.18 $13.17goods 101 8.2 $66.33 $9.71services 118 9.5 $70.40 $10.79wages 83 6.6 $55.66 $10.74rent 25 2.1 $66.89 $11.43damages 18 1.5 $155.61 $19.85judgement summons 146 11.8 $87.55 $6.39N/A 47 3.7 $85.43 $10.69garnishee summons 23 1.8 $73.84 $5.13money loaned 28 2.3 $72.54 $10.20interpleader 6 0.5 - $11.00replevin 3 0.2 $183.33 $26.001237 100 $84.09 $11.08payable. In between pay periods and seasonal harvests most pioneeringsettlers depended upon established traders for goods on credit, and merchantsconducted a good portion of their trade in this manner rather than upon a cash-and-carry basis. This commercial arrangement resulted in traders using the42II43courts regularly to render credit accounts extended over a period of time. In theten year period, 1871-1880, five merchant traders brought 307 suits (24.8% ofthe total 1237) before the New Westminster court and received a favourabledecree in a remarkable 255 cases (83.2%). 3The Lytton court did not see prominent traders bring successive actions inthe manner witnessed in New Westminster. William McWha, a substantialmerchant in the early 1870s, brought seven actions to the Lytton court to settleaccounts. But McWha's pre-eminence as a merchant trader waned, and he wasforced to file for insolvency in the New Westminster court in the late 1870s.Royal City merchants exerted economic power up the Fraser valley and acted ascreditors to upriver settlers as well as to the people of New Westminster city.The traders of New Westminster depended upon the justice system to ensurethat there was an effective mechanism to force payment on their accountsextended throughout the expansive judicial district of New Westminster andbetween districts as well.A merchant trader initiated a suit by entering a plaint with the courtregistrar. The sheriff, or an appointed individual, would serve the summons andthe defendant would have a number of choices: pay the debt, confessjudgement, or answer the summons in court. 240 of the 485 cases (49.5%)brought by merchant traders before the New Westminster court in the ten yearperiod, 1871-1880, were paid or the debt was confessed prior to the hearing.The remainder proceeded much like Gold v. Wright, adjudicated by Magistrate3The major traders were: James Cunningham ( M.P.P. for N.W. City), Major, Passard & CluteCo., S. Wise, G.L. Webster, and Holbrook, Fisher Co. (Henry Holbrook, M.P.P. for N.W. Cityand salmon-canning industrialist).44O'Reilly on 21 August 1878 in the New Westminster court. 4 Louis Gold,represented by J. Morrison, sued Robert Wright for the balance of an accounttotaling $10.62. Gold produced a bill of particulars to verify the account. Heclaimed that the defendant did not dispute the account but had defaulted on hisagreement to pay the account in wood. Morrison called a witness, Cohen, whoswore that he had had a conversation with Wright and that the defendant hadsaid he would pay the account when he was able. This witness evidentlyestablished the intent of the defendant to pay and, consequently, hisacknowledgment of the debt. The witness was not cross-examined. NormanBole, a barrister, represented the defendant and examined his client whoinsisted that the account had been settled as standing at $4.00, which Wrighthad agreed to pay in wood. According to Wright, he had presented Gold with abundle of wood, but Gold had refused to give him a fair price on the wood.Wright added that he had never promised to pay. This was the extent of thetestimony and at this point O'Reilly pronounced his decision for the plaintiff for$10.62. Following the custom of the court, the costs, totaling $17.75, 5 wereawarded to the plaintiff, meaning that the defendant was assessed the costs inaddition to the judgement. Actions brought by traders to render accounts weretreated in a perfunctory manner, and a bill of particulars presented by a traderwas generally enough to assure a decree for the plaintiff.4All cases will be sited as follows: by the plaint number in the Plaint and Procedure (P & P)Books and the year of the case. Followed by a reference to a citation in a Bench Book, ifapplicable. Hence Gold v. Wright, 78/(18)78 P & P Books NW. GR 1705. O'Reilly Bench Book,1877-79, GR 1727, v. 52 (not paginated). BCARS.5The costs were as follows: $1.00 summons, $1.25 service, $3.00 extra service (the summonswas served outside the NW court jurisdiction), $1.00 hearing fee, $1.50 witness fee, $3.00judgement fee, $5.00 attorney fee and $2.00 agent's expenses.45Most elements of this case are representative of similar circumstancesfound in other actions brought by merchant traders. Gold was not a majortrader, but he did bring twenty-six cases before the New Westminster court torender accounts payable. Gold chased this petty debt through the court systemdespite the fact that this action had been adjourned on a previous occasion 6 andstruck out at a second hearing.? The amount of the action was fairly lowcompared to the average sums sought in these cases (see Table 4), but theultimate decree of the court was typical of the county court. The case alsoreveals the court's attitude about due consideration for conflicting testimony andthe precarious state of defendants' equitable rights. Wright clearly felt that hehad a legitimate defence when he claimed that Gold had not given him a "fair"deal on the wood offered to settle the account. Defendants hired the services oflawyers less frequently than plaintiffs, and this aspect of the case is notrepresentative of this class of suits. Wright hired Norman Bole because hebelieved that he had a legitimate case. Despite the advocacy of a professionallawyer, Wright still lost the suit. In addition to other similarities to most merchanttraders' suits, this case exposes the weakness of the court to execute its orders.Wright neglected to pay the amount ordered by the court. Gold v. Wright camebefore the court as a judgement summons case in November 1878.8655/78 P & P Books, NW. GR 1705.770/78 P & P Books, NW. GR 1705. The term "struck out' means that the magistrate dismissedthe case before the hearing based on technical grounds, e.g. a summons filed incorrectly.8143/78 P & P Books, NW. GR 1705. Judgement summons for $28.57. No appearance by thejudgement debtor, judgement for the plaintiff and defendant committed to 30 days in jail forcontempt. Actions to execute court orders, to be discussed below, were a prominent problem inthe county courts. Plaintiffs were forced to chase debts through the courts because defendantsfailed to comply with orders of the court.46Suits to force payment on the various forms of negotiable instruments werehandled in an expedient manner as well. McWha and Alendine v. Arthurs Bros.was brought in the New Westminster court in 1876 to force payment on apromissory note of $282.94 and presents an example of quick and mechanicaljustice.9 The defendants did not appear, but according to the practice of thecourt, the action proceeded as if they were present. H.V. Edmonds, a courtregistrar/sheriff/agent, was sworn, and he claimed that he had shown the note tothe defendants who had acknowledged the signature. Begbie awarded to theplaintiffs the judgement, interest on the note, and costs totaling $27.48. 10 Themagistrate ordered that the defendant pay the debt on a negotiable instrument in141 of the 154 cases (91.6%) in the New Westminster court and in all 14 actionsinvolving notes in the Lytton court. In an era before the universal circulation ofstate-issued paper currency the courts functioned as an institution to ensure thenegotiability of standard forms of exchange. These judgements reinforced theeconomic power of creditors, and indirectly, the social stratification of BritishColumbia.Private individuals commonly sued one another to recover payment forcommodities or services sold on the basis of future payment. Actions for goodsand services pitted litigants of a similar social standing against one another. Inorder to win a suit the courts required proof of a transfer and an agreement onpayment terms. If sufficient evidence was provided, as in French v. Sullivan, the9332/76 P & P Books, NW, GR 1705. Begbie Bench Book 1873-76, GR 1727, v. 729, p.542.BCARS.10 It must be remembered that Justices of the Supreme Court could act in the capacity of"County Court Judge," by the operation of local statute, 34 Vic., c.95. sec. 9.47judgement was invariably for the plaintiff. 11 In cases where the goods or servicewere of questionable value, as in Uren v. McLennan, the magistrate mightexercise his judgement and rule for the defendant. 12 The magistrate sought todiscover if there was a direct or implied contract and adjudicated according tothe facts presented. In Uren v. McLennan, heard in the New Westminster courtin 1880, O'Reilly made a subjective judgement about the fairness of the contract.The decree for the defendant, in such a case, provided a measure of protectionagainst fraud for unwary contractors. In the broader context of standardizedmarketplace contracts, this type of "justice's justice" was not attractive tocommercial interests. The formula used by nineteenth-century judges to assessthe terms of a contract was "buyer beware," 13 and the "fairness" of a contract,even in cases involving usurious interest, 14 was the contracting parties' concern.Standard business practices, e.g., a recognized symbol designating acommodity's material quality, cemented a binding agreement, but as long as asale of a good or service was not fraudulent it was the custom of North Americancourts to enforce the specific performance of a contractual agreement. The11 516/80 P & P Books, NW, GR 1705. O'Reilly Bench Book 1879-80. GR 1727, v.47, p.292. Thesuit was for a meat bill of $26.16. Mrs. Sullivan, represented by W.D. Ferris ( a Justice of thePeace, but not a lawyer), claimed that the debt was truthfully owed by her dead husband, fromwhom she had been separated. The judgement was for the plaintiff; however, no reasons weregiven. The Married Women's Property Act, 1873 36 Vic., c.22, [Discussed by Paulette Falcon,"...if the evil ever occurs." The 1873 Married Women's Property Act: Law, Property and GenderRelations in Nineteenth-Century British Columbia." (M.A.: University of British Columbia, 1991)]was not sited as a statute that protected creditors from the defendant's argument. This statuteclearly stated that husband and wife were equally responsible for each others' debts, except incases where the property in question, such as a dowry, was property independently owned by thewife.12473/80, P & P Books, NW, GR 1705. Uren sued McLennan for $75.00, the value of teachingthe defendant how to make soda water.13Risk, "The Golden Age: The Law About the Market in Nineteenth-Century Ontario," p. 310.14Bakken, Rocky Mountain Law, p.51. Some western U.S. territories recognized any rate ofinterest stipulated in writing.48county courts of British Columbia failed to provide a predictable contractmanagement agency. In certain cases, the magistrate of the court exercised hisarbitrary power and issued a court decree that operatively eroded theestablishment of standard business practices.Actions to recover wages reveal that the courts did not provide equalconsideration for all suitors and did not level the playing field for suitors ofdifferent social classes. In general, litigants suing for wages were from a lowersocio-economic class than their employers, and how they fared in the courtsreflects a bias of the courts. Teamsters, farm labourers, fishermen and loggersall brought actions in the courts to sue their respective employers for unpaidwages. Most of the agreements between employees and employers were oraland were based on the customary pay scale offered by local employers.Disputes arose over the agreed-upon terms of the contract and turned on theword of employees against that of their employers.Jackman v. Fraser reveals the bias of the courts to accept an employer'sversion of labour contract terms over those presented by an employee. 15 A.C.Fraser and his brothers Simon and J. Fraser were prominent foresters in thelower Fraser valley, and they employed numerous individuals in all aspects ofthe timber industry. A. Jackman was hired as a teamster for the summer seasonin 1879. Jackman hired on with Fraser's outfit with no agreement to wages.After working 25 days he had fallen ill and quit. He sued in the court for $86.00in unpaid wages, reckoned at $90.00 a month. At the trial Jackman representedhimself and testified that he had worked all over Puget Sound and British15312/79 P & P Books, NW, GR 1705. O'Reilly Bench Book, 1879-80 GR 1727, v. 47, p.66-8.BCARS.49Columbia as a teamster. He claimed that the customary wage was $75.00-90.00a month and that there was no obligation to give notice when quitting the employof a timber boss. Three witnesses for the plaintiff corroborated his estimation ofthe monthly wage; however, only two agreed that no notice when quitting wascustomary. Defending himself, Fraser charged that Jackman's hasty exit lefteight men idle and cost his operation $65.00, but he agreed to credit Jackmanwith wages at $80.00 a month. Three witnesses for the defence (two of thewitnesses were Fraser's employees) contradicted Jackman's testimony andimputed that Jackman had falsely claimed illness. O'Reilly's judgement for theplaintiff awarded wages for 25 days estimated at $80.00 a month minus $25.00for damages. Jackman received $51.88 and likely paid the $7.25 in court fees.A number of peculiarities in the judicial decisions rendered in suits forwages suggest that the court handled this type of action differently than thosebrought by merchant traders. Judgements for the plaintiff that awarded afraction of the amount claimed were not typical of commercial cases brought inthe Lytton and New Westminster courts, and yet partial awards were common insuits for wages. 16 Actions to recover wages were riskier propositions than otheractions entered in the court and less likely to provide total satisfaction for theplaintiff. Jackman v. Fraser reveals that the magistrate accepted the employer'sestimation of a monthly wage. Furthermore, in this suit, O'Reilly assesseddamages against the plaintiff that the defendant had not formally entered as acounter-claim (set-off). Fraser's court-room testimony proved more influential16 In the Lytton court two of four judgements for the plaintiffs in actions for wages were partialjudgements. In the NW court, eight of thirty-three decisions for plaintiffs suing for wages werepartial judgements (24.3%), while 40 of the 391 (10.2%) total decisions for the plaintiff werepartial judgements. Suits for damages were the other significant group in which the magistratemight award only partial judgement.50than Jackman's. Due to the nature of labour contracts, which were oral andbased on common practice, the magistrate's decision was bound to besomewhat arbitrary. That the magistrate tended to give more credence to anemployers version of events than an employee's would seem to indicate thatpersons with social status and economic power were treated more deferentiallythan their social lessors.The statistics from the New Westminster court also indicate that thecustomary practice of the courts in suits to recover wages operated againstminority groups. 17 The most common suit brought by natives in the court was torecover wages. Natives entered 23 cases in the New Westminster court, and20 were for wages. They received a favourable decree in only seven cases. Incontrast, ten were struck out on technical grounds, seemingly indicating thattheir lack of success in the courts stemmed from their unfamiliarity with theformal processes of court procedure. Although Chinese litigants only sued ontwo occasions for wages, only one of these cases was successful. The majorityof actions entered by Chinese litigants involved suits against a fellow Chinese.Merchant traders and money lenders from the Chinese community used thecourts to force compliance on contractual agreements much like their whitecounter-parts. The typical cases brought by Chinese against one anotherreinforces the image of the Chinese community as an insular fragment ofsociety. In addition, the statistics from the New Westminster court concerning17David R. Williams, The Man for a New Countty..."Towards the Indians Begbie behaved as abenevolent and affectionate patriarch, towards the Chinese as a patrician, but for thirty-five yearshe was their best friend in high places." p.128. Williams suggests that natives and Chinesereceived favourable and equitable treatment from Begbie. Evidence presented here indicates aneed to re-evaluate Williams' hagiographic depiction of Begbie and the early judges.51wages, which were the most common type of suit brought by minority groups,suggest that the class bias of the court also translated into a racial bias.Actions for damages were another significant type of suit brought in boththe Lytton and New Westminster courts. This category of suits included actionsto recover damages in disputes ranging from breach of contract todisagreements over water rights. In these suits the inadequacy of the court isfurther evidenced. The magistrates were vigilant in their effort to blockindividuals from using the courts as a venue to pursue fraudulent or vexatiousclaims for damages. The burden of proof was on the plaintiff to show the extentof the "damages." Here the quantitative analysis reveals that decisionsawarding partial judgement were common and that there were a proportionallygreater number of decisions against the plaintiff than in actions to recoverwages. Of the seven suits for damages in the Lytton court, one was settled outof court, three awarded to the plaintiff (all partial awards) and two cases wentagainst the plaintiff. In one other, the case was adjourned and no decisionrendered. In the New Westminster court there were eighteen cases fordamages, and the plaintiff received a favourable decree in only eleven instances(61.1%). Three verdicts for the plaintiff awarded partial judgement, and one ofthese partial judgements was a nominal award, perhaps indicating themagistrates' message to suitors not to pursue vexatious demands in the countycourts. 18 Seven judgements went against the plaintiff (38.9%). Actions to18Betts v. Magee 445/77, action for $50.00 and $1.00 award(O'Reilly). In 1881 there were threeinstances of Judges giving nominal awards: Pooley v. Gill 603/81 action for $100.00 and $5.00award(Crease); Greer v. Arthur 609/81, action for $490.00 and $5.00 award (Crease); and Smithv. Greer742/81, action for $300.00 and award for one shilling (Begbie).52recover damages in the county courts were risky propositions that were unlikelyto give satisfaction to aggrieved plaintiffs.Why was the court so unreliable for plaintiffs in actions to recoverdamages? The customary practice of the courts was to favour plaintiffs overdefendants, but in actions to recover damages decrees often went againstplaintiffs. Certain of the claims were vexatious, which accounts for themagistrates' decision in perhaps four of the cases in the New Westminster court.The burden of proof required by the magistrate suggests another explanation forthis irregularity. A plaintiff had to prove a material loss in order to recoverdamages. Actions for damages based on trespass on property, or some otherreference to infringement on a legal right did not often prove successful. Themagistrates' decisions in these suits discouraged parties from bringing causesfor damages. Actions for damages reveal that the court was not set up toaccommodate complex litigation based on fine points of law, and that themagistrates were opposed to the court becoming a venue for the settlement ofneighbourly disputes.Differences between the courtsThe majority of actions brought in the rural and urban courts were directlycomparable to one another. The same magistrates adjudicated cases in boththe Lytton and New Westminster courts, and they followed similar administrativepractices in each court. Court transactions and the outcome of cases pending inthe courts were generally consistent throughout the province. When thedescription of actions are compared between the courts the significantdifferences are the number of cases heard in each court and the higher averageamount of the suits brought in the Lytton court (see Tables 3 and 4). The New53Westminster court was a much busier court, and it served a much largerpopulation. Royal City merchant traders used this court to process their claimsagainst residents of New Westminster city, as well as against settlers fromthroughout the Fraser valley, and the number of suits they brought into the courtcontributed to the activity of the court. The difference in the amount of theclaims is attributable to the greater sums sought by merchants in actions torender accounts in Lytton. It appears that Lytton merchants extended greatercredit to their customers than their down-river contemporaries. Perhapsgeography limited Lytton merchants' access to the courts on a regular basis.More likely the divergence in average amounts of the actions is attributable tothe more infrequent sitting of the court. The Lytton court usually met two orthree times a year, but in 1876, 1878, 1879 and 1880 the court met only once.The Victoria and the New Westminster County Courts met once a monthallowing merchant traders to render their accounts more frequently.Despite the infrequent sitting of the Lytton court, it seems to have beenmore successful in providing satisfaction to suitors than the New Westminstercourt. This significant difference between the courts is related to a combinationof factors that reduced the efficiency of the New Westminster court. NewWestminster was a much more substantial commercial center than Lytton andthe legal service needs of the people using this court greatly surpassed those ofLytton residents. The paucity of legal business transacted in the Lytton courtactually contributed to its success. The magistrate was able to use his authorityin the small community to influence litigants to settle their disputes out of court.The magistrates in the "urban" court of New Westminster administered a broadervariety of court cases, including execution orders, naturalization certificates,54insolvency actions (after 1875), and appellate decisions from the Justices of thePeace Court (after 1877). The inadequacy of the lay magistrates to administerthe legal service needs of British Columbians was most evident in NewWestminster city.Part of the success of the Lytton court is attributable to the ability of themagistrates to influence out-of-court settlements. The term "settled out of court"is a deceptive description of cases resolved in this manner. The essentialmeaning of this description is that the magistrate did not make a formal order onthe disposition of the claim, and payment of the disputed debt was not madethrough the agency of the court registrar. Otherwise the court procedure for out-of-court settlements was the same as for actions in which the magistrate passeda decree on the outcome of the trial. Plaintiffs used the pre-hearing courtprocedure to induce the defendant to meet his/her commitments. The registrarentered the plaint, and the sheriff served the summons in the customary manner.Often it appears the plaintiff and defendant met in the court before themagistrate. At this point in the trial action the informal nature of county courtproceedings is evidenced. If the litigants could come to an agreement, perhapswith the assistance of the magistrate, the action was recorded as settled out ofcourt.An out-of-court settlement was a favourable resolution to a disputed debtfor all parties involved. This type of agreement often meant that the litigantswere able to reach an equitable arrangement about the disposition of the suit.The court records indicate that the debt in question was generally paid when anout-of-court settlement was reached. Court fees were considerably reduced in55actions settled in this manner as well. 19 Moreover, there is no evidence tosuggest that suits settled out of court came before the courts a second time toforce compliance on an agreement. 20 Suitors who could reach a settlement outof court used the courts as a venue to meet to discuss their dispute but did notuse the formal court machinery to reach a settlement.Miles Fairburn has suggested that out-of-court settlements were rare infrontier communities in New Zealand, and he has construed the absence of suchagreements as one indication of loose social cohesion in Wellington, NewZealand. 21 Tina Loo' s examination of the colonial courts in British Columbiaproduces similar statistics about the rarity of out-of-court settlements. 22 Thesehistorians suggest that there were no informal mechanisms for settling disputesbecause of the "bondlessness" of frontier communities. They argue that litigantsturned to the courts as their only available recourse to settle disputes, and toillustrate their contention that litigants were bereft of other settlementmechanisms they cite the number of litigants who employed the full machinery ofa trial hearing to resolve their disputes. Such a construction suits the theoreticalframework which suggests that frontier societies were loosely organizedcommunities and lacked networks of interpersonal relationships. However, it isdifficult to support this hypothesis for British Columbia by using provincial courtrecords.19Court fees for out of court settlements/ average court fees: Lytton- $7.36/ $13.28 and NW-$7.84/ $11.08.°The absence of execution actions to follow up out-of-court settlements may indicate that suitssettled in this manner provided satisfaction to plaintiffs. Contrarily, plaintiffs may have forfeitedthe right to use the court procedure to execute a debt when they opted for an out-of-courtsettlement.21 Miles Fairburn, The Ideal Society and its Enemies(Auckland: Auckland University Press,1989), pp. 225-9.22Tina Loo, "Law and Authority," p. 15, 137.56Proportionally more actions were settled out of court in the Lytton court(20.1%) than in the New Westminster court (9.8%) (see Tables 1 and 2). In themore economically developed and socially diversified district of NewWestminster, out-of-court settlements were less common. One implication of thehypothesis advanced by Fairburn and Loo is that out-of-court settlements shouldhave become more common with the development of social institutions andinterpersonal relationships comparable to those found in more socially advancedcommunities. While out-of-court settlements increased annually over the courseof the subject period in the Lytton court, this was not the case in NewWestminster. 23 As this practice in the Lytton court became more regular andfamiliar, more litigants found this method of dispute resolution satisfactory. InNew Westminster, out-of-court settlements never developed as a common courtpractice, although a limited number of litigants turned to this form of disputeresolution throughout the subject period. Court records from post-ConfederationBritish Columbia do not support the conclusion that out-of-court settlements arean useful measure of the social cohesiveness of a given community.One explanation for these statistics may be that the more informalprocedure of the Lytton court encouraged out-of-court settlements. Litigants inthe Lytton court employed the services of attorneys and agents less frequentlythan their counter-parts in the New Westminster courts. Furthermore, the Lyttoncourt served a community where litigants and the magistrates were on familiarterms. It appears that the magistrate assumed the position of "unofficial" arbiter23 15 of 74 cases settled out of court before 1881 and 30 of 96 cases settled out of court, 1881-86.57and helped the litigants reach an agreement without following the formalproceedings of the court.24In contrast, the commercially developed region of New Westminsterproduced court business that was more extensive and diverse. Magistrateswere responsible for court duties in addition to adjudicating disputes. Theyprocessed more naturalization certificates and actions in insolvency than thecourts in the upper Fraser region. The magistrates of the County Court of NewWestminster adjudicated more appellate cases from the Justices of the Peace'sCourt as well. Additionally, more than thirteen percent of the New Westminstercourt's business was with various forms of execution on court ordered debts:garnishee summonses, sheriff's executions and judgement summonses. Moredefendants failed to pay their court-ordered debts in New Westminster thanLytton, and litigants were forced to re-try their actions as execution orders.Execution actions amounted to an additional 171 cases in the New Westminstercourt over the ten year period. The magistrate of the New Westminster courtwas required to administer legal services demanded by a growing civilianpopulation and commercial community. And execution orders placed anadditional administrative burden on the magistrate whose work schedule did notallow him to act as an "unofficial" arbiter to assist litigants to "settle out of court."The inability of the court to force debtors to meet their commitmentsdisplays the greatest weakness of the inferior court system in British Columbia.24William Wylie, "Arbiters of Commerce..." Writing about the two stage development of civilcourts in Upper Canada in the late-eighteenth-century, where in the early period, 1789-1792,courts were served by lay, merchant traders as judges and later, 1792-1794, by English trainedbarristers-at-law, Wylie suggests that the success of the lay judges could be attributed to theirlocal social standing and economic power which allowed them to influence out-of-courtsettlements in a more satisfactory manner than their replacements who relied on formal andstultified legal proceedings. pp. iv., 353.58Actions to execute previous court orders were a very important function of thecourts, and the courts' success in these actions hinged on the authority of thecourt to force judgement debtors to pay their debts. A plaintiff resorted to anexecution action when s/he had not received satisfaction on a magistrate'sdecree. The courts offered a number of alternatives to a suitor to force paymenton a court-ordered debt. A judgement summons was the most simple (seeFigure 1). The plaintiff re-entered the plaint introduced in the original action.Figure 1.Judgement summons in the New Westminstercourt353025MM ICVCO 	 COCIDDD20151050 I El i I I1■■ 	 CO 	 C75r■ 	 I--- 	 1-■OD 	 CO 	 00O0000The second action was invariably for a larger amount since court feesawarded with judgement in the original hearing were added to the judgementsummons. The judgement debtor was bound by law to respond to the summons,and the magistrate was empowered to commit a negligent debtor to prison forfailure to respond to a judgement summons. The hearing was supposed to be anaffirmation of the order to pay a debt, but it could become an arbitration forum.The magistrate might order easy payment terms as low as $2.00 a month on a59affirmation of the order to pay a debt, but it could become an arbitration forum.The magistrate might order easy payment terms as low as $2.00 a month on ajudgement summons of $32.37. 25 When Dennison v. Budlong came up in courtfor a second time to re-affirm Budlong's debt on a promissory note for $500.00,the plaintiff accepted twenty cents on the dollar as payment. 26 Garnisheesummons allowed a plaintiff to extract payment from a third party. In this type ofaction the court ordered the appearance of an acknowledged debtor to thejudgement debtor. Theoretically, the magistrate's duty was to order a transferpayment to the plaintiff in lieu of direct payment by the judgement debtor. Theseactions were less frequent than judgement summons and not very reliable. 27 Athird form of execution on an acknowledged debt was an execution summons,whereby the plaintiff sought a court order for a sheriff's auction of the judgementdebtor's seizable possessions. 28The frequency of actions to execute court orders varied province-wide.From 1871-80, there were 171 execution actions in the New Westminster court,and none in the Lytton court. These cases added to the magistrates' case-load,and the clerk of the court, who also acted as the sheriff, was required toadminister summons outside of the court in addition to his courtroom duties.The statistics for the incidence of execution actions indicate that in at least22.6% of all actions awarded to the plaintiff in the New Westminster court the25 Cunningham v. Hall 232/75, P& P Books, NW, GR 1705.2691/78, P & P Books, NW, GR 1705.27The decision in 15 of 23 cases went against the plaintiff. For a success rate of 34.8%.28The Homestead Act, 1873, 36 Vic., c. 38 protected a settler's homestead property and $500of personal property from seizure for debt. Execution Summons were an unusual assignment ofthe New Westminster court. There are only two recorded cases in the Plaint & Procedure Booksfrom New Westminster(1871-1880). One was successful and the other struck out on a nullabond.60defendant neglected to pay the court-ordered debt. 29 More than one-in-fivedebtors flouted the order of the New Westminster court. The court's inability toassure the execution of its orders jeopardized the authority of this stateinstitution.Certain plaintiffs re-entered summons on multiple occasions, essentiallychasing bad debts through the unreliable agency of the court. JamesCunningham, a New Westminster merchant trader and salmon-canning operator,brought an action against S.F. Holt in February 1879 to render an accountpayable for $79.55.30 Holt confessed the debt in court, and Magistrate O'Reillyordered that he pay the debt and $16.33 in court fees in $5.00 installments forfour months and successive $10.00 installments until paid. No payment wasmade into court the day of the hearing. In May 1879 Cunningham attempted toprocure a court-ordered settlement from a garnishee, F. Woodwork, for the sumof $95.88.31 This action was withdrawn, perhaps due to the non-appearance ofthe garnishee. However, an additional $6.50 in court fees was added to thealready burgeoning debt. Cunningham re-entered the plaint as a judgementsummons in September 1879.32 The action was postponed at this court sittingand the next three court sessions in October, November and December.Eventually Cunningham withdrew the plaint in January 1880. In this caseCunningham actually received satisfaction on the debt, but not until October29This percentage is reached by taking the total number execution actions: 171 [146 judgementsummons, 23 garnishee summons, and 2 sheriffs execution (absorbed by the N/A category inTable 4)] and dividing it by the number of cases awarded to the plaintiff: 755 (320 judgements forthe plaintiff, 136 cases awarded by default and 299 cases confessed by the debtor).30 198/79, P & P Books, NW, GR 1705.31 263/79, P & P Books, NW ,GR 1705.32344/79, P & P Books, NW ,GR 1705.611884. Plaintiffs often chased debts through the courts for years and neverreceived satisfaction.Although the business of the Victoria County Court is outside the scope ofthis research project, evidence suggests that suitors there were also havingtrouble gaining satisfaction on debts through the agency of the county court.Table Five shows that an increasing number of judgement summons cases wasan escalating problem in the Victoria County Court. Although the total number ofplaints was not increasing, the total number of execution actions increasedannually. 33 The fact that the urban courts were less effective in giving justice tocreditors than the rural courts suggests that the growing complexity of socialorganization in urban communities negatively affected the dispatch of justice bylay magistrates.Table 5.County court business before Magistrate PembertonYear 1872 1873 1874Number of plaints 180 215 198Judgement summons 6 21 57Garnishee summons 3 4 5Interpleader 1 0 0Execution summons 14 16 17Commitments to gaol 0 1 3source: Victoria Daily Colonist, 3 March 1875The absence of a resident magistrate in New Westminster after 1875 likelycompounded the lack of authority wielded by the court. When Arthur T. Bushby,the New Westminster resident magistrate since Confederation, died in 1875,33 Actions to execute debts increased dramatically in frequency after Confederation. Tina Loofound that judgement summons cases occupied only 1.7% of the county court's business (p. 132)in the colonial period as compared to 13% of the New Westminster County Court's business.62Peter O'Reilly, a resident of Victoria and the magistrate appointed to Yale andthe northern gold fields, assumed responsibility for court business in the RoyalCity. At first he coordinated his northern circuit courts so that he could handlethe business of the New Westminster court as well. By 1877 he was makingmonthly excursions to the New Westminster district courts and had given up hisformer magisterial duties in Yale. Despite his full-time appointment in NewWestminster, O'Reilly continued to reside in Victoria. These circumstanceslikely contributed to the ease with which judgement debtors escaped the longarm of the law. 34The inability of the court to force debtors to meet their commitmentsdisplays the greatest weakness of the inferior court system in British Columbia.The economic power of merchant traders and employers was reinforced by thepractice of the court, but a court order had little real significance if the defendantfailed to obey the court decree. Magistrates in the Lytton court were able to usetheir influence in the small community to encourage litigants to settle theirdisputes out of court. Suitors used the pre-hearing apparatus of the court toinduce debtors to meet them in or out of court to settle their disputes.Defendants generally answered summons issued by the court, and plaintiffsreceived satisfaction on their debts through the mechanism of an informal courtprocedure. And yet, justice was certainly justices' justice. Defendants could notreceive an appeal based on a point of fact. In most cases the magistrate'sdecision was final and incontrovertible. In the New Westminster court the same34Crease to Lash, Minister of Justice, 10 July 1877 Add MSS 54, file 12/66. BCARS. JusticeCrease believed the absence of a resident magistrate accentuated the problem. Commenting onthe need for a resident judge in New Westminster, Crease wrote that, "...debtors desirous ofabsconding have every opportunity of escaping across the 49th parallel unmolested instead ofbeing [subpoenaed] at Yale or Hope and the debt recovered." Folio 8430.63simple procedure prevailed, but there, even the beneficial aspects of informal"out-of-court" settlements were not available. More cases proceeded to a formalhearing by the magistrate and resulted in a court order issued by the magistrate.The more formal procedure at New Westminster suited a court where trainedlawyers argued cases and the more fractured social relations of a largercommunity required a court instrument to settle disputes. The quantitativeanalysis of New Westminster court records reveals that the court there was notoperating as effectively as the Lytton court. The abundance of actions toexecute previous court orders indicates that debtors were flouting the authorityof the magistrate. The court failed to fulfill its function in the community toregulate commercial transactions. This chapter has documented the need forcourt reform; the succeeding chapter outlines the proposals for reform offered bycompeting factions of the political elite of late-nineteenth-century BritishColumbia.CHAPTER 4COURT REFORM INITIATIVES IN BRITISH COLUMBIA, 1872-1878Following Confederation, civil procedure reform in all courts of the provincewas an annual point of debate in the sessions of the local legislature, but fewreal changes could be implemented since Ottawa paid the costs of administeringjustice in the province. 1 The most significant court reform proposals during thesessions of the 1870s and 1880s were to replace the magistrates of the countycourts with professionally-trained lawyers and to legislate more frequent circuitsof the superior courts. Commercial interests and other lobby groups demandedboth of these reforms, and they voiced a number of specific complaints about theadministration of justice. 2 Miners and traders in the remote mining districts ofRichfield, Cassiar and Kootenay wanted resident judges during designated timesof the year, since the centralization of the justice system in Victoria created asituation where justice was not served efficiently enough by circuit courts. 3Furthermore, as an economy measure the semi-annual Assize (superiorlAs agreed in the 5th Article of Union. B.N.A. Acts 1867-1907 (Ottawa: Printed by C.H.Parmelee, 1913), p.78. Ottawa was unwilling to pay more for the administration of justice in theprovince of British Columbia. The federal government delayed acting on the province's requestfor more judges by not making new appointments.2"A Change to our Superior and County Courts," Daily Standard 20 March 1878, p.2.3"Grand Jury Report," Cariboo Sentinel 30 July 1870, p.2. The foreman criticized unequalCounty Court fees throughout the province and requested a resident judge. "As it is, causes over$500 have to await the coming of court once a year, or pay the expense of taking the cause toVictoria."; "The Judiciary," Daily Standard 16 December 1873, p.2. Editor argued need forresident judges on the mainland to provide, "...more frequent courts, better employed justices,greater public utility..."; "Presentment of Grand Jury of the Cassiar District," Daily Standard 2October 1876, p.3. "Some judicial means should be taken to protect the interests the community,and to insure this, we strenuously urge that a County Court Judge shall reside in the district andhold circuit from the middle of October."6465criminal) and Nisi Prius (superior civil) Courts were reduced to an annual circuitin 1874.4 One result was that accused criminals languished in jail awaiting thecommission of an Assize Court. 5 On the mainland, litigants in civil actions over$500 had to await the commission of a Nisi Prius Court, or incur the expense oftaking their plaints to Victoria to be entered by the court registrar. In somecases, plaintiffs preferred to accept the lower jurisdiction of the county courtsand abandoned any excess over $500. 6 Other superior court transactions,which included bankruptcy, probate, admiralty, exchequer, and chancery, wereadministered exclusively in Victoria. This situation was particularly significantsince it meant that all insolvency cases and the administration of wills ofdeceased persons had to be conducted through the agency of the court registrarin Victoria. Another frequent complaint voiced throughout the province centeredon the expense of the county courts. 7 Members of the Incorporated Law Societyof British Columbia complained that the lay magistrates were inefficient in the4Senator Clement F. Cornwall, to Z. Lash, Minister of Justice, March 1879, Add MSS 54, file13/72, folio 9325. BCARS. Cornwall attributed the reduced schedule to the expense of circuitcourts. He estimated the cost of a circuit at between $1200-1300, which seems reasonable sincethe average annual traveling expenses of the judges and registrars during the years, 1867-1870,was $2526.43. According to "Traveling expenses of judges and registrars on circuit during thefollowing years, 1862-1870," Add MSS 54, file 14/82, folio 10088-9. BCARS. The average costhad been much higher, as high as $7058.73 in 1864, but it seems reasonable to assume that thecost stabilized at the figure quoted by Cornwall.6/Ns an extreme example, "Cassiar Report of the Grand Jury," Daily Standard 16 September1879, p.3. In R. v. Thomas Anderson (1879), the accused had spent 18 months in jail by the timethe court arrived and then Justice Gray was forced to postpone the hearing due to administrativenegligence.6For example, Marshall v. Chapman 61/82, P & P Book, Lytton, GR 576. Action to recovermoney loaned: $719.33. Excess abandoned. Judgement for $472.53 without cost for plaintiff.Payment received 17 October 1882.7"Official Rapacity" Mainland Guardian (New Westminster) 30 December 1874, p.3 "Observer"complains about court fees fleecing litigants; "The Price of Justice," British Colonist 28 July1875, p.2.; "That Sheriff's Little Bill," Daily Standard 1 August 1875 , p.2. Refers to an executionof a debt of $215.45 that cost $1274.85 in Sheriff's fees.66dispatch of court business and suggested that three legally trained men shouldreplace the incumbents of the county court bench. 8Justice system administrators and community members who used thecourts to arbitrate their commercial suits acknowledged the need for courtreform. They argued that a reorganization of the entire justice system was notnecessary and, moreover, they recognized that this was beyond the financialmeans of the province. However, as the lower mainland was becoming equal tothe island in pre-eminence as an area of commerce and population, changeswere required in the administration of justice in order to accommodate structuralchanges in society. Court reformers wanted to decentralize the justice systemfrom geographically-remote Victoria. A more satisfactory method of executingcourt orders in the county courts and more efficient use of the judicial poweravailable were also necessary.Two powerful factions from the political and social elite of British Columbiaoffered substantially different formulas for restructuring the existing justicesystem. One group, composed of the Supreme Court Justices and Senatorsfrom British Columbia, advocated moderate changes to the administration ofjustice. Their reforms would have required further responsibilities of theSupreme Court Justices and eliminated the need for all of the incumbent CountyCourt Magistrates. Another faction comprised of eastern Canadian immigrantsto British Columbia supported personnel changes on the county court bench thatwould have introduced new, professionally-trained lawyers as judges. Bothproposals aimed to maintain the existing jurisdictional division between theinferior and superior courts as inherited from England and copied in Ontario.8"Law Society of British Columbia on the County Courts," Daily Standard 27 March 1877, p.3.67However, the first proposal was based on the premise that the judicial districts ofthe upper Fraser region and other outlying population centers did not demand,nor require, a formalized justice system that would be expensive to administer.The Supreme Court Justices wanted to "level up" the existing county courtsystem by better utilizing the judicial power available.9 The most vociferousexponent of this position was Justice Crease, who laboured to preserve thedignity and independence of the Supreme Court bench. 10 The competingfaction had supporters in successive ministerial administrations. These would-be reformers shared common goals for the economic development of theprovince, and they identified the courts and the judges as obstacles to anexpanding commercial system. Their proposals for reform contemplated muchmore significant changes to the administration of justice, and they sought toachieve their aims through iconoclastic and pernicious legislation. Theirlegislative mandates confronted the Supreme Court Justices with decisionsabout their willingness to abide by the law. And in their effort to replace the laymagistrates of the county court with lawyers they effectively created a justicesystem that could only be served by professionals.Hamar Foster has described the debates over court reform in nineteenth-century British Columbia as a political struggle between appointed officials fromthe colonial period and newly elected representatives. 11 Foster is verysympathetic to the arguments made by the former group for moderate changesto the administration of justice. He downplays the selfish concerns that9Crease to Z. Lash, Deputy Minister of Justice, 9 September 1878. Add MSS 54, file 12/65, folio8515-6. BCARS. Crease used the terms "leveling up" and "leveling down" to describe theneeded reform in the inferior and superior courts.10Hamar Foster, "...Law and Politics in British Columbia," p. 211.11Ibid.68motivated the Justices to oppose civil procedure reform and instead makes adefence of the Justices' constitutional grievances. And although he effectivelyexposes Justice Crease as a prevaricator and a judge who betrayed his integrityas an impartial arbiter by mixing in politics, 12 Foster does not pass criticaljudgement on this sometimes unscrupulous gentleman. He does, however,question the provincial legislators' legal acumen and ability to govern. 13Fosters account of court reform in the years after Confederation tends toindemnify the Justices for their obstructive behavior and lays blame for domesticturmoil on obstreperous elected officials.This examination of court reform suggests that legislators' proposals hadgreater utility than the Justices' because the Justices' program for court reformwas inadequate. Crease wanted to provide the lower mainland and island withprofessional judges, while perpetuating the existing system in the remainder ofthe province. His program was based on the assessment that there was animbalance in legal service needs throughout the province. New Westminsterneeded a legally-trained resident judge, and Crease believed the city deservedone. Lytton, in Crease's mind, only required a semi-annual circuit court to servejustice effectively. Further reducing the utility of Crease's reform proposal, he12 Ibid. p. 187. Foster quotes Crease to Lash, 24 February 1879.I need not say [that] it wd. be "taboo" to discuss the subject beyond the precincts of theCourt and your Department at Ottawa or to break thro'- however indirectly- thewholesome rule which without exception I have faithfully observed ever since my firstcommission under Her M's hand in 1861 up to this day, namely not to write or dictate aline to any of the newspapers on such subjects.Foster later reveals that he found evidence in Crease's papers that he wrote anonymous andfalsely signed letters to the Victoria Daily Colonist ,the Canada Law Times and the Canada LawJournal.13See also Foster, "How not to Draft Legislation: Indian Land Claims, GovernmentIntransigence, and How Premier Walkem nearly Sold the Farm in 1874," The Advocate.46(1988): 411-20.69ignored communities where growth was imminent, such as Kamloops. Thesepopulation centers also needed access to formalized local courts. The Justiceswanted to retain certain of the lay magistrates of the county courts and the laygold commissioners to adjudicate civil disputes on the periphery of whitesettlement. And they did not want to transfer any new jurisdictional powers tothe officers of the lower court. This system would have perpetuated a situationwhere the isolated communities of the interior would not have had access toresident judges. Applications for insolvency actions and probate matters wouldhave remained centralized in Victoria. In the final analysis, the Justices' reformmeasures were essentially obstructive to real change that was needed in BritishColumbia.Provincial legislators used public utility as a benchmark for reformproposals, and they hoped to institute progressive changes to improve theadministration of justice in all of British Columbia. This body engineered thestatute law that regulated the administration of justice, and it was the impetus forchange. Proposals that came from the Justices, the Incorporated Law Societyand other sources influenced the local parliament, but this assembly constructedthe legislation that actually changed the courts. Federal officials disallowedmuch of the legislation enacted by the local parliament to improve the justicesystem. This legislation is important, nevertheless, because it reveals BritishColumbia politicians' conception of how the administration of justice could havebeen improved.The annual debates in the legislative assembly on the point of court reformhelp us to understand the historical process that resulted in reform of the courtsof British Columbia. In each parliamentary session from 1872 to 1878 the70ministry in power prepared bills that contemplated reform of the courts of theprovince. The provenance and details of each of these bills are described in thefollowing paragraphs. In some instances the Justices and their supportersoffered counter-proposals to the bills drafted by the Attorney General. Ananalysis of the Justices' stated and hidden objections to the proposals forms partof the survey. This examination of court reform considers the social characterand intellectual outlook of the major factions proffering reform proposals, theelements of these reform packages and the legal service needs of thecommunity.Legislation for the Better Administration of JusticeIn the 1872 session of the British Columbia legislature, T.B. Humphreys(Lillooet) introduced a resolution to require that County Court Judges haveprofessional training and that there be at least three judges. 14 His propositionfollowed editorials in the contemporary newspapers arguing that BritishColumbia had good laws, but that the magistrates were the weak link in theadministration of justice. One of these editorials supported the idea thatprofessional judges conduct regular circuit courts once a month, and barring thisproposition suggested that the current magistrates be pensioned and competentlay individuals handle the county court business on an on-call, fee basis. 15 Thepeople and of the new province were dissatisfied with the lay magistrates anddemanded reform.14Legislative debates as reported in the Daily Standard 1 March 1872, p.3.15"County Court Judges," Daily Standard 10 February 1872, p.2.; "Justices of the Peace," DailyStandard 1 August 1872, p.2; The Official Staff and their Payment," Daily Standard 20 August1872, p.2. Reports that Kootenay District with a population of 45 whites was served by fiveofficials at an annual cost of $10,000. The editor of the paper, Amor De Cosmos, believed that afee system would be less expensive.71Proposals to reform the courts focused on the judges for a number ofpractical reasons. The legal service requirements of British Columbia changedwith the development of the country; however, the judges had remained aconstant variable in the administration of justice. The benchers of the provincein both the inferior and superior courts represented an enduring legacy from thecolonial period, and reform of the courts inherently involved changes to thejudiciary. Secondly, British Columbia legislators used the Ontario example ofcourt reform as a guideline for their own reform proposals, and there, legislatorshad replaced lay magistrates when their serviceability had expired. DuringUpper Canada's formative years English-trained judges had handled superiorcourt business and lay magistrates inferior court transactions. By 1859 theUpper Canadian legislative assembly had enacted statute law requiringprofessional training for County Court Judges. 16 In 1864 on Vancouver IslandJoseph Needham replaced the lay judge, David Cameron, also setting theprecedent for superannuating lay judges. And thirdly, many of the complaintsabout the lay magistrates resulted from the fact that these gentlemen wereoverburdened with court business they were not trained to handle. As is shownin the following review of court reform legislation in the 1870s, administratorscontinued to increase the legal services required of the county court magistrates,effectively creating a system that could only be served by professionals. 1716An Act Respecting County Courts, Consolidated Statutes of Upper Canada (1859), 22 Vic., c.25, sec. 2. (Toronto: Stewart Derbershire and George Desbarats, 1859). Stipulated County CourtJudge's be of 5 years standing at the bar.17As examples, An Act to amend, "The Gold Mining Ordinance, 1867," by giving County CourtJudges jurisdiction over the Mining Court, as constituted under the said Ordinance, and todeclare the powers of the said County Court Judges, and to regulate the procedure in relationthereto, 1873, 36 Vic., c. 14; An Act Respecting Insolvency, 1875, Statutes of Canada 38 Vic., c.16; An Act for giving Appeals from Convictions or Orders of the Justices of the Peace in certaincases to the County Court, 1877, 41 Vic., c.23.72British Columbia's legislators wanted to assure residents of western Canada thesame recourse to justice available in eastern Canada and this included courtsadministered by professionally-trained judges.The federal Civil List Act of Canada of 1872 presented a significantobstacle to replacing the incumbent magistrates. It legislated the salaries of civilservants, including the six Stipendiary Magistrates of British Columbia, and wasbeyond the jurisdiction of the provincial legislature to amend. In addition, themagistrates' contract stipulated that they could only be replaced orsuperannuated after suitable employment had been found for them in anotherpublic service capacity, or that they be retired with a two-thirds salary stipend.In 1872 when Amor De Cosmos (Victoria District) 18 raised the issue of retiringthe magistrates in the House of Commons, his proposal was met with stiffresistance. 19 Minister of Justice Edward Blake commented on the expense ofthe administration of justice in British Columbia and Manitoba and added that ifBritish Columbia had borne the cost internally there would have been less talk ofsuperannuating the lay judges. Ottawa was not sympathetic to BritishColumbia's requests for court reform, and extant legislation stymied the way forchange.In spite of Ottawa's opposition to replacing the magistrates, the 1872session of the British Columbia legislature passed a County Court Judges18From 1872-1874, DeCosmos was a representative in the provincial and federal parliamentssimultaneously.19"The Judges and Magistrates Bill," Daily Standard 26 June 1872, p.2. Reported that DeCosmos' queries about professional County Court Judges were met by Sir John A. Macdonald'sresponse that the salaries had been fixed by Imperial Statute and no changes could be made inincumbencies. Macdonald added that Ontario had had non-professional County Court Judgesuntil very recently. (Upper Canada legislated professional training for County Court Judges in1859, see footnote 16, chapter 4, infra).73Appointment Act. This statute established the administrative machinery toreplace the magistrates and authorized the Governor-General of Canada "fromtime to time, to appoint any fit and proper persons as and to be County CourtJudges."20 The statute was fairly insignificant since no appointments weremade, but it did address the issue of finding replacement magistrates andannounced to Ottawa British Columbia's dissatisfaction with the status quo.Statutory enactments of the legislature in the 1870s suggest that legislatorswanted to make the recovery of small debts an easier process, despite theunwillingness of the Dominion to make personnel changes on the bench.Legislation confirmed the power of the magistrates to make orders of executionon debts and to issue writs of seizure for debt.21 This Act allayed doubts aboutthe competency of the lay judges to issue writs of capias to imprison abscondingdebtors. The statute confirmed a standard practice of the courts in order toimpress on the public the full authority of the magistrates. The ExecutionAgainst Lands Act, 1874, confirmed that magistrates of the county courts couldenforce payment of debts by court-ordered seizure of lands. 22 Other measuresmade it easier for plaintiffs to enter and argue their plaints. 2320County Court Judge's Appointment Act, 1872, 35 Vic., c. 22. The preamble of this statutestated the right of British Columbia to legislate provincial courts as described in the B.N.A. Act,1867, sec. 92.21 An Ordinance to amend the County Court Ordinance, 1867, R.S.B.C. ( 1871), 34 Vic., c.126.2237 Vic., c. 23. This act did not interfere with the operation of another act, The HomesteadAmendment Act, 1873, 36 Vic., c. 38, which protected settlers' homestead and personalproperty valued to $500 from seizure by debt.4-1The County Courts Practitioners Act, 1873, 35 Vic., c. 41. This act allowed any individual toact as an agent in the court, thus making it more simple to gain representation. Anotherexample, Justices' of the Peace and Coroners Oaths Act, 1874, 36 Vic., c. 7. By broadening thenumber of persons eligible to take affidavits, which were necessary to enter a plaint in a court,this act made it easier for a litigants to sue.74Legislators employed another tactic in their effort to effect reform to thecourts: they attempted to harass the incumbents with pernicious legislation. On15 March 1873 H.M. Ball, the Stipendiary Magistrate for Cariboo, informed theAttorney General that he declined to fulfill the additional capacities adjoined tohis colonial appointment without further remuneration to his $3400.00 salary. 24The commissions of the "County Court Judges" in the colonial period hadauthorized appointees to act in the capacity of County Court Judges, GoldCommissioners, Police Magistrates, Justices of the Peace, AssistantCommissioners of the Department of Lands and Works, Postmasters, IndianAgents, Collectors of Revenue and general government agents. Ball consideredthat these additional responsibilities were not part of his commission as amagistrate in the national era. The De Cosmos ministry responded to MagistrateBall's insubordination with the County Courts Extension Act, 1873, whichrequired the county courts magistrates to conduct the business of the miningcourts without additional remuneration. 25 The Act had little consequence. Themagistrates of the county courts continued to handle civil and mining caseswithin their informal judicial districts, and Gold Commissioners adjudicatedmining cases in the outlying mining districts of Cassiar and Kootenay. Supreme24"County Court Judges- opinion on their duties," 9 April 1873, in "BC Attorney General, 1864-1874, Opinion on various topics." file 12, BCARS. Assessing the issue in a historicalperspective, Attorney General Walkem gave his opinion that Governor Musgrave had intendedthat the County Court Judges would continue to complete their colonial times' duties. Whenconsidering the small number of cases on the docket in the colonial period and in 1873, Walkemconcluded, "I make these observations to show that Gov. Musgrave must have known thesefacts and must have felt that he was not justified in recommending the Dominion Government totake over the Stipendiary Magistrates in the sole capacity of County Court Judges at the largesalaries paid to them." p. 7d.25An Act to amend "The Gold Mining Ordinance, 1867," by giving County Court Judgesjurisdiction over the Mining Court, as constituted under the said Ordinance, and to declare thepowers of the said County Court Judges, and to regulate the procedure in relation thereto, 1873,36 Vic., c. 14.75Court Judges adjudicated criminal actions and larger civil suits during annualcircuit courts. The County Courts Extension Act, 1873, did not change civilprocedure in the county courts or the mining courts, but its intention was tolegislate the authority of the local parliament to direct the duties of county courtmagistrates.26To this point the superior court judges and the magistrates had not raisedany formal objections to civil procedure legislation enacted by the legislature;however, the County Courts Extension Act of 1874 provoked a petition by thebenchers of the inferior court addressed to the federal Minister of Justice. In thelocal parliament Attorney General Walkem presented the 1874 Bill to reform thecounty courts as a means for the provincial government to gain control over civilservants.27 The Bill authorized the Lieutenant-Governor in Council to appointthe times and places at which county courts would be held and to appoint theplaces of residence of the magistrates. Once again reformers contemplatedlegislation that harassed the magistrates. Certain of the magistrates did notreside in their districts, and they had no desire to change the location of theirfamily homes. Speaking on the Bill, J.F. McCreight (Esquimalt) raised theobjection that the magistrates were federally appointed officials and without thejurisdiction of the provincial legislature. Walkem responded that theadministration of provincial courts was a local matter and British Columbia couldnot expect the Dominion government "to find food for the province [and] put the26Another statute enacted during the 1872/73 session of the local legislature, An Act to amendthe Courts Merger Ordinance, 1870, 36 Vic., c. 15, contemplated a similar declaration oflegislative control over the administration of justice. This Act delegated the power to appointSupreme Court registrars and deputy registrars to the Lieutenant-Governor in council. Thepower of appointment had formerly rested with the Justices.27Legislative debates as reported in the Daily Standard 27 January 1874, p.3.76spoon to the mouth." 28 This Bill was intended to meet the public demand formore frequent court sittings and to discourage the magistrates from livingoutside of their Judicial Districts.The voting division on a proposed amendment to this Bill indicates that aconsiderable majority of the Legislative Assembly supported Walkem's versionof court reform. A.R. Robertson (Esquimalt) seconded by J.A. Mara (Kootenay)resolved that the Bill be referred to a select committee before the Assemblyvoted on its provisions. The representatives voted down the amendment by avote of 5 yeas to 18 nays and the Bill went to a second and third reading thatday passing both readings. 29 The significance of the division was thatRobertson and J.F. McCreight both voted for the amendment in opposition to themajority. These two individuals were prominent lawyers in the city of Victoriawhose social standing and political sensibilities distinguished them from themajority of the legislators. And their opinions about court reform differed fromthe majority. Although there are few recorded divisions from the early sessionsof the Parliament, the voting divisions on civil procedure legislation wereconsistent.30 The majority of legislators voted with the prevailing ministry of theday on this type of legislation, demonstrating that there was political consensuson the need for court reform.28 Ibid.29Journals of the Legislative Assembly, Volume 3, (Victoria: Government Printer, 1873).ThirdSession, First Parliament, 27 January 1874, p.29.30A survey of the Journals from 1872-1878 revealed only two recorded divisions on civilprocedure legislation. The other vote was on Bill #6, An Act to amend The Courts MergerOrdinance, 1870. Ibid. Volume 2. Second Session, First Parliament, 30 January 1873, p. 47.McCreight and Robertson voted Nay in a division of 17 Yeas and 3 Nays. For a comprehensiveroll-call analysis of the British Columbia Parliament see, Daniel P. Marshall, "Mapping thePolitical World of British Columbia, 1871-1883," (M.A. thesis, University of Victoria, 1991).77At the time of the County Courts Act, 1874, Magistrate O'Reilly was the realtarget of the legislation. His district comprised Yale and the northern goldmines, and yet he lived in Victoria. There was no residency clause in the CountyCourt Ordinance of 1867 to require magistrates to live in their Judicial Districts,but there was precedent in English and Ontario statutes for legislating the placeof residence for court officers. One of the English county courts Acts stipulatedthat the clerk of the court must reside within his appointed district, 31 and theOntario legislature enacted that the County Court Judge must reside in hisappointed district. 32 Attorney General Walkem and the majority of legislatorsvoting for this section of the Bill believed that resident judges would better servethe legal needs of the community. Since the magistrates continued to exerciseadministrative duties as general government agents in addition to their courtduties, a residency clause would also have increased their serviceability to thecentral government in Victoria. 33 The stipulation was designed to provide thepublic with regular court sittings and to maximize the efficiency of the availablecivil staff.The magistrates of the county courts resisted the order to reside indesignated districts. They wrote a jointly signed protest to the Minister of Justiceoutlining their objections to the enactment suggesting that it31 An Act to Extend the Act for the More Easy Recovery of Small Debts and Demands inEngland, 1849, Halsbury's Statutes of England, 13&14 Vic., c. 61, sec. 3.32An Act Respecting County Courts, Consolidated Statutes of Upper Canada (1859), 22 Vic., c.25. sec. 5.33 For example, "Correspondence - Mr. Barry's Bridge Charter." Sessional Papers 39 Vic.(Victoria: Robert Wolfenden, 1876), pp. 709-21. H.M. Ball acted as an Assistant Commissionerof the Department of Lands and Works in negotiations about W.P. Barry's toll charter over theQuesnelle River in 1873.78carries with it the power of rewarding such judges as may be favoured by theministry of the day by transferring them to more agreeable posts or visitingdispleasure upon them by ordering them to the inhospitable districts of theinterior, all which is incompatible with a continued faithful and unbiaseddischarge by the County Court Judges of their judicial function. 34In his written opinion on the Act, M. Fournier, Deputy Minister of Justice,acknowledged the merit of the magistrates' objections to the County CourtsExtension Act, 1874, but based its disallowance on the grounds that the locallegislature could not delegate the power of appointment of County Court Judgesto the Lieutenant-Governor as conceived by the Act. This was a power ofappointment delegated to the Governor-General of Canada by the British NorthAmerica Act and could not be amended by a provincial legislature. Walkem'sfirst attempt to reform the county courts by legislation failed.In the second year of the first Walkem ministry political debates over publicworks spending and representation in the Legislative Assembly took pre-eminence over reform of the county courts. Nevertheless, dissatisfaction withthe courts continued to build, and vocal proponents of reform presented theirgrievances in the contemporary newspapers. 35 The British ColumbiaIncorporated Law Society submitted a proposal to the federal Minister of Justiceoffering its opinion on the reform needed in the county courts. The members ofthe bar considered that it was desirable to create judicial districts in the provincesimilar to those in the Ontario court system and to assign a professionally-34"Memorial of the County Court Judges," Canada, Department of Justice, Correspondence andpapers relating to County Court Acts 1874, 1875. O'Reilly Collection, A/E/Or3/C165, BCARS.65"The Judiciary," Daily Standard 16 December 1874, p.2. Criticizing the indolent SupremeCourt Justices and suggesting that they might be used more effectively, the editor asked, "Whatabout the far more important considerations of the public convenience and the actual interest ofthe people... We know we speak the unanimous opinion of the Mainland people on this subject."This editorial offered the formula to institute three circuits: Barkerville, Yale and Victoria, eachserved by one resident Supreme Court Judge. This was close to the plan finally implemented in1881 to meet the legal needs of the mainland.79trained lawyer (chosen from the British Columbia bar) as County Court Judge toeach district. 36 Another indication that agitation to institute change was growingwas that Lieutenant-Governor Langevin promised the legislative assembly at theopening of the parliamentary session that a bill to consolidate the statute lawgoverning the administration of justice in the county courts would be laid beforethe representatives. Despite the urgency enmeshed in public discourse on thesubject other domestic issues consumed the time of the session, and the issueof reforming county courts administration was neglected.Prior to the session Attorney General Walkem had drafted acomprehensive bill aimed at consolidating the statute law governing the countycourts and designed to amend some of the weaknesses of the system. 37 But onits final reading, the County Court Extension Act of 1875 did not represent asignificant advance towards reform of the courts. The original Bill , however, didpropose progressive steps in the direction of codifying and formalizing courtprocedure. In two hundred and two sections the Bill set out the detailed civilprocedure of the county courts. Former county courts legislation, includingAttorney General Crease's consolidated statute in the Revised Statutes of BritishColumbia (1871), adopted and made applicable English legislation in theprovince but did not print the text of the sited legislation. Walkem's Bill copiedtext and schedules from English and Ontario statute law and set to writing someof the practice of the courts in British Columbia. This was an important steptowards making the complete practice of the courts known to a larger part of the36"Reform Suggested," Daily Standard 4 January 1875, p.3.37A copy of the Bill # 31 "An Act to consolidate and amend the Ordinances and Acts relating tothe procedure of the County Courts in the province of British Columbia." can be found in theCrease Collection Add MSS 54, file 12/65, folio 8156-8193. BCARS.80population than the few lawyers familiar with the English Acts. Following themovement in English common law courts to codify and formalize courtprocedure, the Bill included provisions that were intended to insure that suitswere not decided on technical grounds, but rather on the facts of the cases. 38Walkem's commitment to implement progressive reforms in the courts of BritishColumbia exemplified his concern that the public and the commercial classes beafforded the same legal rights enjoyed by North American contemporaries.The Bill also sought to amend some of the weaknesses of the county courtthat compromised the administration of justice. Walkem's Bill set to writingdescriptions of the court officers' duties and clarified the critical role of the clerkin the management of simple court procedures. By one provision, the "CountyCourt Judge or ... appointed clerk" would continue to perform the responsibilitiesof the court registrar. 39 The clerk was required to reside in an appointed districtand was authorized to act in the capacity of a judge in cases where the debt wasconfessed or settled out of court. 40 Since the ambiguity of this officer'sresponsibilities had caused mischief in the courts, provisions were inserted thatrestricted the clerk from acting as the sheriff or as an agent in the court. 41 This38 lbid. Sec. 126. On Tenant law stated that "any defect or want of form in the information,summons, conviction, warrant of distress, or other proceeding relating thereto..." would notinvalidate any order of the court or incriminate any court officers, see also sec. 180. Execution ofdebts. Cases struck out on the grounds of want of form had become an increasingly annoyingproblem for suitors in nineteenth-century. The Field Code of New York (1848) and JudicatureActs of England (1873 and 1875) included similar provisions to those copied by Walkem. Thelegislation was designed to simplify and expedite justice. See Friedman, A History of AmericanLaw, pp. 340-358.39Bill #31, sec. 11. County Court Judges' administrative responsibilities; sec. 30 and 48Continued the practice that anyone might serve summons; sec. 65. Lay agents allowed asadvocates.40 Ibid., sec. 135, 136 and 201.41 Ibid., sec. 14. Clerk cannot perform the duty of high bailiff as well as clerk's duties; sec.15." clerk, high bailiff or officer of the court shall be engaged as attorney or agent for any partyin any proceeding."81recommendation for reform attempted to work with the existing court structureand personnel of the bench, while codifying the informal practice of the countycourts.None of these constructive clauses were part of the final reading of theCounty Courts Extension Act, 1875. 42 The sole provision of this enactment wasto delegate authority to the Lieutenant-Governor in Council to divide theprovince into Judicial Districts. The consolidation of statute law contemplated byWalkem's Bill was rejected. And reform of the ambiguous procedure of the courtwas delayed. Edward Blake disallowed the abridged Act on the same groundsas the previous years county courts legislation, pointing out that the provincewas assuming a power beyond its jurisdiction. Writing to the local government,Blake suggested that the administrators achieve their aim of creating judicialdistricts "by legislation" rather than by an order-in-counciI. 43 The 1875 sessionfailed to produce any consequential county courts legislation.The year 1875 proved to be a seminal point in the reform of the courts foranother reason. Arthur T. Bushby, the resident magistrate for New Westminsterdied 18 May 1875. Court business in New Westminster was on an ascendingscale at the very moment the citizens of the most populated area on themainland found themselves without a resident magistrate. The Lieutenant-Governor's Executive Council filed a request with the Secretary of State in June1875 to provide a practising barrister to replace Magistrate Bushby. 44 On theFall Circuit of the Assize Court, the people of New Westminster voiced a similar42 An Act to make provision for the better Administration of Justice, 1875, 38 Vic., c. 6.430pinion on 'An Act to make provision for the better Administration of Justice, 1875.'" 13October 1875, in "Return-Correspondence on Administration of Justice," Sessional Papers 40Vic..(Victoria: Wolfenden, 1877) pp. 441-442."Ibid., Lieutenant-Governor J.W. Trutch to Secretary of State, 19 June 1875, p 440.82request through the agency of a Grand Jury Presentment to Justice Crease.Edward Blake, however, did not believe that there was statutable authority forthe payment of replacement officer. 45 Blake suggested that the interimmeasures that had been taken, whereby Magistrate O'Reilly had assumed theresponsibilities of the New Westminster court, would suffice until a properparliamentary provision for the appointment of a magistrate had been fulfilled.Ottawa once again delayed reform and shifted the responsibility foradministering justice in British Columbia to the local legislature.The session of 1876 was complicated by the fall of the Walkem ministryover questionable financial policies and by a second ministerial crisis. Thecounty courts bill that the A.C. Elliot (Victoria City) administration (1876-78) hadprepared was never tabled before the House, but, once again, the provisions ofthe proposed legislation revealed the prevailing ministry's objects for reform ofthe county courts.46 A new source of opinion on the needed reforms in thecounty courts heavily influenced the construction of the Bill. In a series ofeditorials published in the Victoria Daily Colonist, A.N. Richards, a immigrantfrom Ontario and the soon to be appointed Lieutenant-Governor of BritishColumbia, suggested that the courts ought to be modeled directly on the districtcourts of Ontario. 4745 lbid., "Report of Minister of Justice," 22 December 1875, pp. 442-445.46A copy of the Bill # 41, "An Act to provide for the better Administration of Justice," can befound in the Crease collection Add MSS 54, file 12/65, folio 8207-8212. BCARS.47The series of articles in the Victoria Daily Colonist were, "The Price of Justice," 28 July 1875,p.2; "The Administration of Justice," 10 August 1875, p.2; "Legal Procedure Reform," 12 August1875, p.2; "More Law Reform Needed," 15 August 1875, p.2; "Further Court Reform Needed," 17August 1875, p.2.; "Law Reporting," 25 August 1875, p.2; "Jury Reform Needed," 29 August1875, p.2; "Law Reform," 12 January 1876, p.2 This last article revealed that the author of thepast summers law reform articles had been A.N. Richards.83In Ontario professionally-trained judges with greater jurisdictional powerspresided over district courts. The courts had jurisdiction in equity as well as incommon law actions. The judges also presided over Quarter Sessions of theJustices of the Peace Court. In their capacity as Chairmen of the QuarterSessions, the judges heard appellate applications from the Justices of the PeaceCourt. These appeal cases included criminal cases, which meant that OntarioCounty Court Judges had jurisdiction in criminal and civil disputes. In theOntario justice system, resident judges conducted court business locally, andsuperior court judges with greater jurisdictional powers were not required tomake frequent circuit courts. Richards believed that this judicial structure,including the scale of costs used in Ontario courts, ought to be adopted in BritishColumbia. His vision of the county courts greatly expanded the jurisdiction ofthe inferior courts and was intended to make justice more accessible andinexpensive.Attorney General Elliot's proposed legislation followed many of thesuggestions offered by Richards, but it was also formulated to meet the specificneeds of the mainland for more accessible and efficient justice. Elliot's Billcontemplated creating two Judicial Districts on the mainland, New Westminsterand Cariboo, which would be served by professionally-trained judges. Inaddition to having cognizance in all civil cases, the County Court Judges of NewWestminster and Cariboo would have acted as Chairmen in Courts of QuarterSessions, had jurisdiction in equity, possessed power to appoint guardians forinfants and other wards of the state, had jurisdiction in questions relating to thetestacy of wills, and had authority to grant probates of wills. 48 Under the extant48Bill #41, An act to provide for the better Administration of Justice, 1876, 39 Vic., c.41, sec. 9.84county court system, these duties were reserved for the Supreme Court Judges,and mainland residents had to make application to Victoria to receive these legalservices. As much as the proposal infringed upon the customary business of theSupreme Court, it did not obviate the need for the superior court. Circuit courtswould have been necessary to preside over Assize and Nisi Prius Courts, andthe Supreme Court Justices would have heard all appeals from the countycourts. This proposal for court reform would have "leveled up" the inferior courtsof the mainland and required personnel changes on the bench. Despite theurgent need for such reforms, the chaotic nature of domestic politics during the1876 session required that Elliot dismiss any plans for court reform that year,and consequently, the Bill was never introduced.In 1877 the struggle for control over civil procedure in the courtsintensified. The local legislature enacted iconoclastic and pernicious courtreform legislation, and at this juncture, the Supreme Court Justices circulatedtheir own proposals for court reform. Three bills were introduced during thesession to improve the inferior courts of the province. Elliot introduced An Act toamend the Gold Mining Ordinance of 1873. 49 The Bill provided that GoldCommissioners would have cognizance in all civil actions normally reserved forhearing in the county courts. The proposed statute was limited to applicability inthe Cassiar and Kootenay, but it answered a long-standing grievance in thesecommunities for a resident judge who might hear civil actions. Theoretically, civiljustice there had been served by County Court Judges on circuit. In practice,Supreme Court Judges on circuit handled the majority of civil actions in thesedistricts after Confederation, or suits were brought to Victoria to be adjudicated4939 Vic., c. 26.85by Supreme Court Judges. Speaking on the Bill, T.B. Humphreys (Victoria Dist.)commented that it was likely unconstitutional, "but it would bring home toDominion officials the need of County Court Judges in these districts." 50 TheBill passed the third reading but was disallowed by Ottawa.Another Bill, the County Courts Act, 1877, was the consummation of yearsof legislative debate about needed reform in the inferior courts. 51 The AttorneyGeneral proposed dividing the province into distinct Judicial Districts andawarding expanded jurisdictional powers to County Court Judges. Unlike Elliot'sBill of the previous session the County Courts Act, 1877, considered the practiceof the courts on Vancouver Island, as well as on mainland, making it a morecomprehensive piece of legislation. The amount recoverable in the court wasextended to $1000, and the courts' jurisdiction in equity was formally confirmed.Judges were awarded cognizance in questions relating to testacy or intestacyand delegated power to grant probates of wills to the amount of $2500. And annew authority, the power to grant injunctions, was delegated to the judge of thecounty court. In addition to these new jurisdictional powers, another Billproduced during the session, the Justices of the Peace Appeal Act, 1877,provided that the county court would be an appellate division court. 52 Theprovisions of these statutes would have transformed the practice of the courtsand created powerful local courts throughout the province.While the County Courts Act, 1877, placed the incumbent magistrates in avery ambiguous position it contemplated reforming a bureaucratic institution to50Legislative debate as reported in the Daily Standard 17 April 1877, p.3.51 An act to provide for the better Administration of Justice, 1877, 40 Vic., c. 22.52An Act for giving Appeals from Convictions or Orders of Justices of the Peace in certain casesto the County Court, 1877, 40 Vic., c. 23.86make it more serviceable for the residents of the mainland. The statuteconfirmed the terms of the magistrates' employment and secured them apension, but the operation of the statute required professional judges. Thepernicious intent of the legislation was to superannuate the current magistrates.A.E.B. Davie (Cariboo) supported Elliot's county courts Bill, and he commentedthat with professional men the proposed statute would be good for the interior. 53Members of the mainland communities would have been afforded the means toconduct their personal legal matters concerning hereditaments locally.Moreover, a resident judge invested with the power to grant injunctions wasimportant to the commercial community. In the event of a dispute over a claim, amining company could procure a temporary injunction against another to stop itsoperation. Investors, too, acquired a measure of protection from this provision.If a company directorate levied a call on shares that appeared irregular, stock-holders would have been afforded the right to apply to a local court officer toforce an injunction on the call on shares. This clause empowered stock-holdersto control the fiscal policy of a company's directorate. These considerationswere not hypothetical, especially in the volatile mining industry. Mainlandresidents needed access to legal services centralized in Victoria by extantstatute law.Elliot's county courts Bill contemplated overhauling the inferior courts byupgrading the legal services provided by the courts. The Bill passed through theBritish Columbia Legislative Assembly with little debate, suggesting that themembers of the legislature shared the Attorney General's opinion that reform of53 Legislative debate as reported in the Daily Standard 23 March 1877, p. 3.87the courts was necessary. 54 The legislation could not incorporate the existingjudicial staff, and legislators recognized this consideration. Instead it required anew, professionally-trained class of officers who would be able to deliverdoctrine-based legal services to the centers of population in the province. Thetwin-tiered jurisdictional division between the inferior and superior courts wasmaintained, but the statute shifted some of the responsibility of the upper to thelower division. Legal services that had been provided by the Supreme CourtJustices on circuit or by application to Victoria were transferred to the jurisdictionof resident County Court Judges. The superior courts would have continued toact as a court of record (meaning it would have had original jurisdiction) inimportant criminal and civil cases and as an appeals court for cases from thecounty courts. The County Courts Act of 1877 sought to institutionalize the levelof legal services available in the courts of British Columbia according to anational standard: the Ontario courts system.Opponents of the reform measures questioned the need for an elaboratejustice system in the underdeveloped province of British Columbia. JusticeCrease engaged in a furious letter writing campaign to table his own program forreform of the courts. Asked by Minister of Justice Blake for his opinion on theneeded reform,55 Crease freely offered advice that was at the same timeinsightful and biased by self-interest. The major thrust of Crease's proposalswas that the available judicial power in the province could be better utilized andcomprehensive reform was not necessary. Crease recognized that NewWestminster, Nanaimo and Victoria required the legal services of professionally-`No voting divisions on this resolution are available in the Journals of the Legislative Assembly.55Blake to Crease 5 February 1877, Add MSS 54, file 12/65. BCARS.88trained judges. Crease and Justice Gray believed that the Supreme CourtJustices could assume the responsibilities of the county court work in theseareas.% In contrast to legislators, the judges did not believe that the rest of theprovince required the services of professionally-trained judges. Crease arguedthat individuals unfamiliar with the real needs of the country forwarded theproposition to implement an Ontario-based system of justice. And he consideredthe legislation that was intended to expand the jurisdiction of the County CourtJudge meddlesome because it created problems of inferior and superior courtswith concurrent jurisdiction. Crease feared that the Supreme Court would bereduced to the position of an appeals court and that the status and dignity of thesuperior court would be lowered.Crease's objections to the legislation were effective in persuading thefederal government to disallow the Act. In addition, Crease's furtivecorrespondences may very well have sealed the fate of the incumbents of thecounty court bench. The Supreme Court Judges were in agreement that theycould handle the county court business of the lower mainland and island andthereby provide a means for Ottawa to superannuate three or four of themagistrates of the county court. The judges accepted as a temporary measurethat certain of the incumbent magistrates and gold commissioners shouldcontinue to administer justice along the line of the Cariboo Road and in theremote mining districts. But to give authority to his proposal that the SupremeCourt Judges perform the county court work, Crease suggested to Blake that he56Crease to Blake 9 April 1877, Add MSS 54, file 12/65. BCARS Crease stated that theSupreme Court Judges "do a great deal of work, it is also equally true that they are capable andwilling to do more." Folio 8327; Justice Gray to Blake 12 July 1877, Add MSS 54 file 12/66,BCARS. Gray offered the services of the Supreme Court Judges on the lower mainland andisland at an increased salary. Folio 8442.89take authorship for the reform measure. 57 Whether the idea that the SupremeCourt Justices assume county court responsibilities was Blake's "suggestion" orwhether provincial legislators independently formulated the scheme, legislatorsincorporated this construction in their next reform proposal for the county courts."Mr. A.R. Robertson's Bill", as Crease termed an early draft of the BetterAdministration of Justice Act, 1878, introduced a justice system proposal thateliminated the need for any County Court Judges. 58 A.R. Robertson may haveinitiated the proposal, but it was adopted as a government measure by thesecond Walkem administration. Ottawa's disallowance of the previoussession's county courts and gold commissioners' courts legislation hadfrustrated legislators. Since the only justice system legislation approved by andacted upon by Ottawa revolved around the appointment of additional SupremeCourt Judges,59 provincial legislators decided to attempt to use this device toaffect reform. The 1878 court reform legislation delegated authority to theGovernor-General to appoint two new Supreme Court Judges for British579 April 1877 Add MSS 54, File 12/65, folio 8331. BCARS.At present I lay before you the suggestion that it should come back from yourself then theSupreme Court Judges would I think find ready response- namely that the SCJs take intotheir hands all the CC work of Victoria, Nanaimo, Cowichan, Comox, NW and Yale.(emphasis in original).In a later missive to Blake, 10 July 1877, Crease actually refers to "the consideration ofthat portion of the subject submitted to us by the Hon. E. Blake on the 2 May- How far the SCJscan assist [in the county court work] in the outlying districts?" Add MSS 54, file 12/65, folio 8411.BCARS.58As noted by Hamar Foster, "...Law and Politics in British Columbia," p. 181. One copy of anearly draft of the Bill, An Act to make provision for the administration of Justice in the Provinceof British Columbia, 1878, is in the Crease collection, entitled in Crease's hand-writing "Mr. A.R.Robertson's Bill of the previous session," Add MSS 54, file 12/65, folio 8372. BCARS. A secondcopy of Bill # 3, as introduced by Walkem, An Act to make further provision for theadministration of Justice, 1878, is in the O'Reilly collection, file A/E/Or3/C165, SCARS. Theshort title of the sanctioned Act was, The Better Administration of Justice Act, 1878, 41 Vic.,c.20.59Puisne Supreme Court Judge Appointment Act, 1872, 35 Vic. c. 22.90Columbia whose residence was to be on the mainland. These judges and theirbrother judges would assume the responsibility of all county court work.This civil procedure reform proposal introduced an original direction for theadministration of justice. Whereas colonial and provincial administrators hadconsistently followed the Ontario model of a twin-tiered jurisdictional divisionbetween superior and inferior courts, each with their own separate officers, thisproposition for reform broached the concept that one class of officers couldprovide all of the legal services required by the public. The judicial systems ofManitoba and Nova Scotia followed this prescription for the most efficientdispatch of justice. In those provinces Supreme Court Justices performed theservices of the County Court Judges at a reduced scale of fees. In 1856Vancouver Island had tried this judicial arrangement. Justice Cameron hadpresided in both the Supreme Court of Civil Justice and the Small Debts Court,but this construction had proved unmanageable. In 1878 this arrangementwould have maximized the utility of the available judicial power and assuredpatrons of the courts access to competent judges, but it also required additionaljudicial appointments. The residency provision of the statute legislated acontingency of the Judge's commission and assured the residents of themainland access to local courts. The Better Administration of Justice Act, 1878,addressed the substantial grievances of the public and was a responsive pieceof legislation offered to control the operation of the courts and its officers.The Supreme Court Judges retreated to a more ethereal defence of theirstatus and dignity when confronted with this radical reform measure. Creaselaboured to show that the Supreme Court of British Columbia was a Dominion91court as established by Imperial Act. 60 This interpretation construed the judgesas Dominion officers who were beyond the legislative prerogative of provincialpoliticians. The judges felt that the Act altered their original commission assuperior court judges and adjoined an additional responsibility, service in aninferior court, to their contract. Crease resorted to a defence of "family values,"imputing that prescribing the residence of the judges would mean the destructionof their families. 61 In addition to his more emotional appeals for disallowance ofthe legislation, Crease offered some practical observations on the weaknessesof the Act. The Better Administration of Justice Act, 1878, was formulated totransform the practice of the courts and direct the administration of justice awayfrom its path of historical development as a copy of Ontario's twin-tiered courtssystem. Crease offered computations that showed the proposed system wouldhave been more expensive, and he derided the clause that stipulated that threeof the judges reside on the mainland stating that it would destroy the integrity ofthe Supreme Court as an appellate division.In light of Crease and Gray's earlier suggestions to the Minister of Justicethat the superior court judges would be willing to take on the responsibility ofsome of the county court work, it is difficult to understand their militant reactionto this piece of legislation. The reasons for their objections were essentiallypersonal rather than professional. The Justices were more interested in60Crease to Lash, 9 September 1878, Add MSS 54, file 12/65, folio 8497, 8509; Crease to Lash20 September 1878, Add MSS 54, file 12/65, folio 8524-30; "Rough incomplete draft of some ofthe preliminary heads of objections of the Judges" 21 April 1879 sent to (Senators) C.F.Cornwall, E. Dewdney and W.J. Macdonald, Add MSS 54, file 12/65, folio 8538-8544. BCARS.61 "Rough incomplete draft of some of the preliminary heads of objections of the Judges" 21 April1879 sent to (Senators) C.F. Cornwall, E. Dewdney and W.J. Macdonald, Add MSS 54, file12/65, folio 8542. BCARS; Gray to Blake, 12 July 1877, Add MSS 54, file 12/66, folio 8444-5.BCARS.92maintaining their social position in Victoria and remaining close to theadvantages of nineteenth-century elite society than meeting the demands oftheir stations as public servants. 62 They rejected the proposal that superiorcourt judges should handle county court work in the entire province. Creaseconsidered that this construction "leveled down" the superior courts when thereal change that was needed was to "level up" the inferior court. The judges hadoffered to serve in the inferior courts on Vancouver Island and the lowermainland; they were not willing to serve in the mainland interior. Theyrecognized that residency in these regions was the only practical means to meetthese areas' legal service needs, and they absolutely refused to consider such aproposition. To serve Nanaimo and New Westminster the judges could maintaintheir residency in Victoria and make circuit courts, coinciding with superior courtcircuits, to these cities. The Better Administration of Justice Act requiredprovince-wide service from the superior court judges and stipulated a residencyclause. These features of the Act made it completely objectionable to thejudges.Ottawa sanctioned the Better Administration of Justice Act, 1878, and itproved to be the legislation that inaugurated real change to the courts. Creaseand his supporters were able to delay the provincial legislature from asserting itscontrol over provincial court officers. 63 But for all intents and purposes,Ottawa's sanction of this legislation sealed the fate of the county court. Until62The three Justices all had substantial homes in Victoria as did Magistrate O'Reilly. Crease'sthird home in British Columbia is described in "Judge Crease's New Mansion," Daily Standard 12June 1875, p.3. They enjoyed the social diversions of Victorian life; Begbie was an avidcricketer, Begbie, Gray and Crease were on the board of the Provincial Rifle Association and allthree were standard invitees at prestigious "At Homes" and other gala balls.63Hamar Foster has written about the prolonged internal struggle for control of the SupremeCourt. See "...Law and Politics in British Columbia."93December 1880 the incumbent magistrates continued to adjudicate disputes inthe county courts. At that juncture Ottawa made two new appointments to theSupreme Court bench, and these appointees served the mainland county courts.The civil court business of the lower mainland and Vancouver Island washandled by Begbie, Crease and Gray while on circuit. After 1880 Peter O'Reillywas appointed Indian Commissioner and Augustus Pemberton continued to actin the capacity of Police Magistrate of Victoria. H.M. Ball, E.H. Sanders andW.R. Spalding were pensioned, as guaranteed by their contracts with theImperial government.When the changes to the judicial staff of the county court were made some,but not all, of the public's grievances about the court were answered. At last thelay magistrates of the court were replaced by professional judges in all of theJudicial Districts of the province. Three Justices lived in Victoria, Cariboo andLillooet received resident judges and the remainder of the province was servedby itinerant Supreme Court Justices. Ironically, New Westminster, which hadbeen the focal point of dissatisfaction with the county court, did not receive aresident judge. Justice Gray was assigned to the New Westminster district, buthe refused to abide by the federal government's order. Instead NewWestminster continued to be served by circuit courts. Other problems with thecourt received varied response. Addressing the complaint about the expense ofthe courts, in 1878 a General Order was published in the British ColumbiaGazette regulating court fees in the superior and inferior courts. Court fees werenot reduced, but the Order did establish upward limits on the fees that could betaken by attorneys and sheriffs. Contrarily, no provisions were made in any civil94procedure legislation to clarify the ambiguous roles of the court's officers otherthan the County Court Judge.The Better Administration of Justice Act of 1878 initiated reform of thisgovernment institution, but it did not solve all of its problems. Complaints aboutthe county court continued into the 1880s. 64 Members of the outlyingcommunities of Kootenay and Cassiar still demanded resident judges, and toaddress this grievance, S. Duck (Victoria City) re-introduced the proposition thatlay magistrates preside over courts in the Kootenays. 65 In May 1884 thegovernment responded to the incessant demand for local magistrates andappointed Eli Harrison as the County Court Judge for Cariboo and other CountyCourt Judge appointments followed. 66 These appointments signaled a return tothe twin-tiered system of courts experimented with throughout the history of theBritish Columbia. 67 After 1884 the province was served by professionalsuperior and inferior court judges with separate jurisdictions.The publication of the County Court Rules in 1885 represented theculmination of legislative effort to formalize court practice. This volume set towriting the definitive legislation governing the rules of practice in the court andthe schedules for proceedings in all jurisdictions of the court. It finally64"New Westminster wants a resident judge," Daily Standard 18 January 1881, p.2; "Judges andJustices of the Peace," Daily Standard 11 January 1884, p.2.65Legislative debates as reported in the Daily Standard 11 January 1884, p.3. Duck wanted toaward Justices of the Peace jurisdiction in civil cases to $500.66By the authority of An Act Relating to County Courts, 1883, 46 Vic., c.5. sec. 9.67Crease had foreseen the return to the traditional thinking about the courts in 1878. Crease toLash 9 September 1878, Add MSS 54, file 12/65, folio 8514. BCARS...and when the experiment has had time enough to fail and the old system must be revived.the inevitable new County Court Judgeships which must then be created will be so manyadditional prizes to be obtained. So many incentives to a new and prolonged agitation!95addressed the problem of defining the ambiguous position of court officers otherthan judges, and essentially instituted job descriptions for these court officerscontemplated by Walkem's original County Courts Extension Act, 1875. Thecompletion of the transcontinental railway in 1885 linked British Columbia toeastern Canada, and the publication of the 1885 Rules concluded a legislativeeffort to bring county court practice up to a national standard. The year 1885represented a seminal point in the administration of justice in the province andthe beginning of a new era in British Columbians' progress towards their goal ofeconomic development.CHAPTER 5CONCLUSIONS: THE SIGNIFICANCE OF COURT REFORM FORTHE ORGANIZATION OF BRITISH COLUMBIA SOCIETYA credit network was crucial to the smooth operation of British Columbia'seconomy. Industrialists and stock-holders invested capital in resource extractiveventures anticipating future returns. Merchant traders based in Victoria and NewWestminster advanced goods on credit to petty traders throughout the province.In turn these petty traders sold groceries and shop goods to subsistence farmersand other pioneers on credit. The majority of labour contracts were creditrelationships, too. Employers retained the services of wage labourers on thecondition of future remuneration. A forester paid a teamster or a sawyer afterthe sale of a boom of logs, and a rancher paid a cowboy after the sale of a herdof cattle. This network of credit relationships required an efficient and effectivedispute resolution mechanism to settle disagreements between parties tocontractual agreements. Legislators pursued reform of the county courts in the1870s in order to establish a state institution that could serve this function.Throughout the 1870s while British Columbia was wrangling over theTerms of Union, demanding a transcontinental railway and attempting to workout its position as a province in the Canadian confederation, legislators werealso implementing reforms to governmental institutions that rationalized theprocesses of government. British Columbia's historians have concentrated onthese other issues because they were the most prominent points of debate in theprovincial legislature and the subject of endless editorials in the contemporary9697newspapers. Although court reform and reform of other state institutions weremore subtle developments and have received less attention from nineteenth-century and modern commentators, their significance for the organization ofBritish Columbia society was perhaps more important.Reform of the county courts in British Columbia represents one example ofthe rationalization of governmental institutions typical of the nineteenth-century. 1Litigants in the courts, and especially creditors, demanded standardizedprocedures and codified laws. The provincial government responded byimplementing court reform that replaced the lay magistrates of the county courtwith professionally-trained judges. Through this reform the state indirectlygained control over standards for commercial relations. Since theprofessionally-trained judges issued doctrine-based decisions, litigants wererequired to follow state-mandated prescriptions for commercial agreements ifthey wanted to be successful in the court. In a very subtle way court reformchanged the way people conducted their commercial transactions. In the broadperspective court reform established the footing for the growth of capitalist socialrelations. The formalization of court procedure buttressed the economic powerof creditors and the social position of white male British Columbians, furtherempowering them to dictate the future development of the province.1 See a recent publication on this subject which proposes to challenge the "liberal myth of theliberal state." Allan Greer and Ian Radforth, "Introduction," in Colonial Leviathan: State Formationin Mid-Nineteenth-Century Canada. eds. Allan Greer and Ian Radforth (Toronto: University ofToronto Press, 1992), p. 13.Where others have dwelt on legal and constitutional developments that theoreticallysubjected government to the control of citizens, we insist on the need to study the actualpractices by which citizens came under the control of the state.APPENDIX AThe appendix to this thesis is the machine-readable data upon whichChapter 3 is based. The use of the computer databases on file on the attachedcomputer disk requires an IBM TM compatible micro-computer equipped withExcel' soft-ware. To use the soft-ware to its full capacity it is suggested thatthe computer operator employ a companion volume to the soft-ware entitled, TheFirst Book of Microsoft 	 Excel for the PC by Christopher Van Buren as areference. 1 This book is not essential, however, because the spreadsheet soft-ware is very simple to use. For those who do not choose to use the referencevolume, I will sketch the basics for conducting searches and the method forextracting designated records from the spreadsheet.First, a number of abbreviations employed in the data entry of the courtrecords from the Plaint and Procedure Books need explaining:j\s: judgement summonsa\c: account renderedn\a: non-applicablesoc: settled out of courtpl: plaintiffTo conduct a search three steps are necessary1. set the database (pre-set)2. enter search selection in cell below the criteria range1 Christopher Van Buren, The First Book of Microsoft ® Excel for the PC (Carmel, Indiana:SAMS, 1990).98993. 	 prompt computer to extract matching recordsStep One. The database need only be activated one time, unless aresearcher wants to search a section of the database other than the pre-setdata-base. As the file stands the entire selection constitutes the database. Thecriteria range is Row 1242 on the New Westminster court records database. Theextract range is Row 1246. And respectively, Rows 81 and 85 on the Lyttondatabase. It is possible to re-set the database for any selection of rows andcolumns from the whole. If the researcher wants to search the entire selection,no input is necessary.Step Two. The search selection that the researcher wants to investigate isentered in a cell in the row below the criteria range. The entry must match one ofthe entries in the cells of the spreadsheet and be entered in the appropriatecolumn of the criteria range. Prompt the computer with the Enter button.Step Three. An on-screen message asks the computer operator, " matchunique records only." Indicate the appropriate response.The soft-ware program will retrieve the requested records matching allrecord entries that contain the detail entered in the corresponding cell of thecriteria range.APPENDIX BLytton County Court Plaint and Procedure Book, 1871-1880# of plaint plaintiff defendant cause amount set off court fees judgement paid date97\71 W. McWha R. Cursino note $88.00 $4.89 plaintiff no 71-8-598\71 T. Seward Junio & Johnston note $116.98 $5.97 plaintiff no 71-9-599\71 H. Lattimer P. Sherman note $197.13 $8.19 confessed no 71-8-18100\71 J. Campbell P. Sherman note $400.00 $11.25 confessed no 71-8-18101\71 J. Amprian P. Sherman note $50.00 $3.75 confessed no 71-8-18102\71 W. McWha G. Cavanaugh a\c $193.37 $22.49 plaintiff yes 71-8-23103\72 Ah Tie J. Chapman note $270.40 $13.10 plaintiff yes 72-5-1104\72 W. McWha W. Hensworth a\c $86.00 $15.37 struck out no 72-7-1105\72 W. Mcwha G. Dunn a\c $49.17 $4.75 plaintiff no 72-7-23106\72 W. Mcwha J. Saul a\c $17.50 $0.25 soc yes 72-7-23107\72 W. Boothroyd T. Quirk a\c $72.01 $0.50 struck out no 72-7-23108\72 G. Cavanaugh McWha & Co. wages $89.00 $9.00 withdrawn no 72-7-23109\72 A. Shifray J. Earl services $186.00 $198.00 $4.62 defendant no 72-7-23110\72 J. Kron D. Walker damages $500.00 $47.25 plaintiff no 72-9-9111\72 J. Uren R. Cumosi n\a $500.00 $6.75 struck out no 72-9-12112\72 W. Fortiss B. McDonald a\c $76.44 $1.50 withdrawn no 72-9-12113\72 W. Fortiss a\c $62.62 $7.50 defendant no 72-9-12114\72 J. Ampraut P. Audas a\c $69.62 $17.75 adjourned no 72-9-12115\72 T. Seward W. Mcwha a\c $58.18 $7.00 plaintiff yes 72-9-3116\72 P. Audas J. Ampraut damages $500.00 $131.12 plaintiff yes 72-9-3117\72 J. Flovis A. Cooper damages $35.00 $2.00 plaintiff no 72-9-27118\72 L Boucherat L Loring a\c $253.23 $9.75 withdrawn no 72-9-27119\72 Simhop Ah Lep a\c $116.00 $5.00 withdrawn no 72-9-27120\72121\72Ah WahP. AudasW. SpieJ. Arnprautservicesgoods$50.50$240.12$6.25$18.20socsocyesyes72-9-2772-9-27122\72 L Hantier Ah Yang wages $37.00 $6.30 plaintiff yes 72-11-6123\72 C.F. Cornwall U. Nelson n\a $200.00 $13.67 adjourned no 72-11-6124\72 Jas. Salisbury Ah Kil a\c $266.35 $10.17 soc yes 72-11-6125\72 Garsas & McWha J. Chapman a\c $75.75 $6.03 withdrawn no 72-11-6126\72 L Boucherat L Hantier a\c $412.10 $11.65 soc yes 72-11-6127\72 J. Chapman Ah Qu services $149.20 $7.00 soc yes 72-11-61\73 W. McWha J. Chapman a\c $70.61 $2.50 plaintiff no 73-5-252\73 J.R. Buri J.E. Roberts a\c $398.73 $10.25 confessed no 73-5-253\73 C.F. Cornwall U. Nelson damages $130.70 $3.75 soc yes 73-5-254\73 W.A. Curry J. Black n\a $290.00 $11.25 defendant no 73-5-255\73 W. Boothroyd T. Quirk a\c $97.11 $5.41 soc yes 73-5-256\73 Cornwall Bros. L Hantier note $293.70 $10.45 soc yes 73-5-257\73 J. Fowling R. Currou n\a $44.30 $6.24 default yes 73-10-308\73 J. Boucherat L. McEntec note $200.00 $8.25 default yes 73-10-309\73 G. Coxon H. Lye & Co. a\c $259.97 $20.00 default yes 73-10-3010\73 H. Blackford J. Chapman wages $34.88 $8.75 plaintiff yes 73-10-3011\73 G. Coxon J. Chapman rent $40.00 $3.50 withdrawn no 73-10-3012\73 G. Coxon R. Ritchie wages $83.87 $3.50 soc yes 73-10-3013\74 G. Coxon J. Chapman rent $60.00 $5.10 adjourned no 74-6-1514\74 G. Coxon J. Chapman n\a $15.75 $2.75 withdrawn no 74-6-1515\74 Kassuth Shamada Kassuth Garcias services $240.00 $10.40 soc yes 74-6-1516\74 P. Kilroy L Hantier a\c $158.48 $7.50 confessed yes 74-6-1517\74 L Boucherat L Hantier a\c $244.00 $18.64 struck out no 74-6-2518\74 L Boucherat L Hantier a\c $312.12 $15.68 confessed no 74-6-2519\74 H. Blackford U. Ward services $8.50 $2.40 plaintiff no 74-6-2520\74 Pierre Moreau J. Uren wages $104.90 $11.10 soc yes 74-6-2521\74 Ah Foon L Hantier a\c $40.00 $4.00 defendant no 74-8-261001 0122\75 G.E. Roberts U. Nelson a\c $264.10 $27.64 default yes 75-5-1223\75 P. Mroy J. Black note $30.00 $6.50 soc yes 75-5-1224\75 P. Phillips W. Thompson goods $35.00 $19.00 plaintiff yes 75-5-1225\75 P. IGIroy T. Seward damages $80.00 $12.40 struck out no 75-6-2226\75 Charley L Hantier services $19.00 $2.90 plaintiff yes 75-7-227\75 J. Duball P. McEntec wages $163.50 $13.80 adjourned no 75-7-2228\75 R. Sproat G. Cavanaugh note $53.14 $12.10 default no 75-7-2229\75 Charley J. Black wages $135.50 $13.70 plaintiff yes 75-11-1230\75 J. Clipperton Lawrence & Bailey goods $359.29 $41.00 confessed no 75-11-1231\76 L Hantier J. Chapman damages $150.00 $12.00 defendant no 76-8-332\77 Ah Lee Ah Nim note $60.00 $37.50 plaintiff yes 77-3-2033\77 W. McWha L Hantier a\c $145.43 $376.73 $11.94 defendant no 77-7-1634\77 W. McWha L Hantier a\c $259.42 $18.18 struck out no 77-7-1635\77 S.W. Nelson H. Smith a\c $56.11 $10.36 plaintiff no 77-10-1736\77 G. Coxon G. Riskley note $420.52 $21.40 plaintiff yes 77-10-1737\77 G. Coxon G. Riskley note $100.00 $9.00 confessed no 77-10-1738\77 L Hantier L Stroat damages $125.00 $10.00 adjourned no 77-10-1739\78 W. McWha R. Valenzuela wages $38.00 $5.30 plaintiff yes 78-9-2440\79 M. McCormack L Hantier note $265.00 $20.25 confessed no 79-4-1940\80 F.Hussey H. Woodward services $15.50 $2.00 soc yes 80-11-241\80 L Hantier W. Walker services $79.99 $3.75 soc yes 80-11-242\80 Ah Nil Ah Lye a\c $233.97 $9.25 default no 80-11-2BIBLIOGRAPHYNewspapers.Cariboo Sentinel (Barkerville) 1870-1875.Daily Standard (Victoria) 1870-1885.Mainland Guardian (New Westminster) various.Victoria Daily Colonist (Victoria) various.Primary Unpublished Sources.Barnard Family. "Private" Letterbook, 1874-1892. BCARS. Add MSS. 1064.Microfilm A-1724(2).Begbie, Matt Baillie. Correspondence outward, 1872-1894. BCARSE/C/B41.	 . Memoranda, 1871-1872. BCARS. E/C/B41.1.	 . Correspondence inward, 1872-74, 1880. BCARS. E/C/B41.2.British Columbia. Attorney General. Correspondence inward, 1872-1883.BCARS. GR 429. 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