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Law and authority in British Columbia, 1821-1871 Loo, Tina Merrill 1990

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LAW AND AUTHORITY IN BRITISH COLUMBIA. 1821-1871 By TINA MERRILL LOO B.Sc. The University of British Columbia, 1984 M . A The University of Toronto, 1986 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE STUDIES (Department of History) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA June 1990 © Tina Merrill Loo, 1990 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada DE-6 (2/88) ii Supervisor: Dr. W. Peter Ward ABSTRACT The central concern of this dissertation is to understand the nature of political authority in pre-Confederation British Columbia through an examination of the colony's law and its courts. In British Columbia, as in other parts of the Anglo-North American world, the law was closely associated with mamtamlng and upholding political authority, by contributing to both its institutional and ethical foundations. The ability of states to do acts of a specified nature and to impose sanctions if impeded ~ its authority — rests on consent to the "rule of law." The rule of law encompasses the idea that everyone is subject to the same rules of conduct, sanctions and rewards regardless of his condition. Ultimately, the rule of law guarantees equality in an otherwise inequitable world. Commentators have pointed out that the rule of law is a fiction. Law is normative, and hence the authority it upholds is as well. In British Columbia the rule of law was firmly tied to the market, not the moral economy. British Columbia's law and courts bore the imprint of the colony's commercial economy and its geography. Colonial law and the courts provided a rule-bound arena in which to resolve disputes in a predictable, efficient and standardized manner that suited the demands of a market economy. Capitalism also profoundly shaped the ethical basis on which political authority in British Columbia rested. Commerce involved people in complex relationships. Trials to resolve commercial disputes reflected this complexity. They were lengthy affairs which generated masses of detailed and often technical information. If the demands of the commercial ill economy for predictable, efficient and standardized conflict resolution were to be met, the Intervention of experts, like lawyers, who could Impose order on this mass of information was necessary. Political authority In British Columbia became less paternal and resident In the person of the Judge, and more textual and embedded in printed statutes, precedents and legal texts, as well as the experts who could interpret them. iv TABLE OF CONTENTS Abstract ii List of Tables v List of Figures vi Acknowledgments vii J Introduction 1 1 Hudson's Bay Company Law In British Columbia, 1821-1849 29 2 Law and Authority on Vancouver Island: Of Pastors, Pigs and Petitions 65 3 "A California Phase": Civil Litigation and Society in British Columbia 109 4 "A Delicate Game": Law and Geography on Grouse Creek 150 5 Cranford versus Wright Law and Authority in British Columbia 190 6 Property, Geography and British Columbia's Courts 227 7 The "Ubiquitous" Ned? Crime and Society in British Columbia 257 Conclusions and Consequences 303 Bibliography 316 Appendix 346 V LIST OF TABLES Table 2-•1 Antl and Pro-Cameron Petitioners 92 Table 3-•1 County Court Actions, 1858-1871 120 Table 3- 2 Richfield Mining Court: Actions, 1864-1871 122 Table 3- 3 Value of County Court Actions. 1858-1871 124 Table 3--4 Cost of County Court Actions, 1858-1871 126 Table 3 5 County Court Decisions, 1858-1871 129 Table 3- 6 Richfield Mining Court: Decisions, 1864-1871 131 Table 3-•7 Appearances by Richfield Plaintiffs, 1862-1870 134 Table 3 •8 Appearances by Richfield Defendants, 1862-1870 136 Table 7--1 Homicide Rate in British Columbia, 1859-1870 272 Table 7- 2 Assault Rates/100,000 for Three British North American Cities 274 v l LIST OF FIGURES Figure 2-1 Vancouver Island's Courts, 1866 80 Figure 2-2 Emanuel Douillet, bailiff: Enemies and Allies 90 Figure 3-1 Supreme Court of British Columbia: Types of Activity, 1858-1871 114 Figure 3-2 Gold Production and Civil Suits in British Columbia, 1858-1871 117 Figure 6-1 British Columbia's Courts. 1866 238 Map 1 Hudson's Bay Company Forts in the Columbia and New Caledonia Districts, 1821-1849 28 Map 2 British Columbia: Principal Settlements Before 1871 108 Map 3 Barkerville and Environs, 1867 149 vii ACKNOWLEDGMENTS Though much of writing is a solitary enterprise, finishing is often the product of a collective effort. Over the last four years I have benefitted from the advice, support, good humour, distraction and occasional dressing down from a number of people and institutions whose efforts it is a pleasure to acknowledge. First among these is my committee. I would like to thank my supervisor, Peter Ward, for recognizing that what I called chapters were really ideas in progress and not losing his patience or faith in my abilities as a historian-come-lately; Robert McDonald, for being the most uncompromising and rigorous of critics but the most generous of scholars and friends; and James Winter, who despite his aesthetic sensibilities, put up with talk of exploding pie charts and "time-space distanciation" good humouredly, and tempered my penchant for overstatement with some measured and thoughtful advice. The other members of my examination committee, Alan C. Cairns, David H. Flaherty and Allan Smith, have my thanks for the careful, penetrating and sometimes relentless questions they put to me and for their very valuable insights. A number of other people have read all or parts of this dissertation at various stages, or have been willing to let me bend their ears. John Beattie, Hamar Foster, DeLloyd Guth, A.L. Lazenby, Susan Lewthwaite, Elizabeth Mancke, Jeremy Mouat, Keith Ralston, Erwin Sui and Alan Tully all assured me this was a project worth doing, and all have my thanks and appreciation. I would also like to acknowledge the staff at the British Columbia Archives and Records Services, particularly Indiana Matters and Brent McBride; the University of British Columbia's Government Publications, Inter-Library Loans and Special Collections Divisions of the Main Library; and the National Archives of Canada. A doctoral fellowship from the Social Sciences and Humanities Research Council of Canada, scholarships from the Native Daughters of British Columbia and the University of British Columbia's Graduate Student Travel Fund funded my research. Finally, though my mother, along with Paulette Falcon, Foo Hong, Lois Kelly, Sam Mlddleton, Katherine Ridout and Louise Robert have had almost nothing to do with the conceptualization or the mechanics of producing this dissertation, they all, in a variety of important ways, helped with it. 1 INTRODUCTION In the wake of a series of controversies over the actions and decisions of the Supreme Court. British Columbia's Attorney-General, Henry Crease, took a rare moment to reflect on the colony's legal administration. "Everything," he complained to the Colonial Secretary in 1868, "which affects the condition of the law vibrates through every fibre of the body politic... .The safety, the very existence of life, limb & property in a new Gold Colony so recently placed as British Columbia...depends entirely on a thread, the mere sentiment of obedience to the majesty of British Law."1 In the years prior to Confederation in 1871 the law was the focal point of debate and criticism aimed at the colonial government. The connection Crease made between law, the gold economy and political authority ("the mere sentiment of obedience") is one which I am concerned to explore in this dissertation. British Columbia's law and courts bore the imprint of the colony's commercial economy and its geography, and the system of authority that was reconstructed on these far western shores of the British Empire reflected the influence of both. Throughout the colonial period, British Columbians possessed an mstrumentalist conception of the law, viewing it as a tool for economic development Colonial law and the courts provided a rule-bound arena in which to resolve disputes in a predictable, efficient and standardized manner that suited the demands of a market economy. Capitalism also profoundly shaped the ethical basis on which political authority in British Columbia rested. Commerce involved 2 people In complex relationships. Trials to resolve commercial disputes reflected this complexity. They were lengthy affairs which generated masses of detailed and often technical information. If the demands of the commercial economy for predictable, efficient and standardized conflict resolution were to be met, the intervention of experts, like lawyers, who could impose order on this mass of information was necessary. Political authority in British Columbia became less paternal and resident in the person of the judge, and more textual and embedded in printed statutes, precedents and legal texts, as well as the experts who could interpret them. Authority is a term that needs explanation, and since it is the focus of this study, I would do well to define it now. I take authority to mean simply the legal power to do acts of a specified nature, and to impose sanctions if its exercise is impeded.2 In this study, I am concerned with political authority. This is the power of states to do the same, and rests on particular institutional and ethical foundations. The law is tied closely to political authority, for it is through law (the state's rules) and legal institutions that the state exercises its power. Though law regulates behaviour through commands and by empowering certain Individuals over others, it also provides the ethical basis of political authority.3 People must obey the state's commands or its authority is meaningless. Obedience can be secured by coercion, but using force can endanger the legitimacy of authority. In the Anglo-North American world, obedience rests instead on consent to the "rule of law." 3 The rule of law encompasses the idea that all individuals are subject to regulation by the law regardless of their status, condition or belief. Under the rule of law, individuals are protected from the arbitrary dictates of men because conflict is resolved according to established rules and procedures (due process). Because the law is distinct and independent of the Interests of any particular group, the rule of law makes justice possible in a world of inequities. The perception and the reality of the rule of law lends coherence and stability to the body politic and is an integral part of the political culture and self-definition of the English and Anglo-North American world. The laws and legal Institutions that rule take a variety of forms which change over time, and the political authority they uphold is also a historical construct. Historians have been concerned, as I am, with understanding the kind of political authority which characterized past societies and what this can tell us about politics and social relations. For instance, medieval trial by ordeal was built on the premise that "divine intervention would prevail on behalf of the innocent."4 Thus, this form of dispute resolution reflected a society in which the judgement of God was the source of all law and the ultimate authority. David Flaherty's work on colonial Massachusetts reveals that the Commonwealth's laws reflected an overwhelming concern with establishing and maintaining conformity and consensus, the basis of political authority underlying the Puritan ideal of community.5 E.P. Thompson's study of the Black Act shows eighteenth-century English criminal law was used by the Whig oligarchy to protect their property and 4 to buttress their social and political status at the head of a hierarchical and paternal system of authority.6 Paternalism is the dominant form of authority described by historians of the law. Part of this emphasis is due to the temporal focus of much of legal history, which looks at the pre-industrial period, particularly eighteentJi-centuiy England. Much of the emphasis on paternalism is, however, due to legal history's almost exclusive concentration on criminal law. Because criminal law involves using the state apparatus for the prosecution and punishment of state-defined offences, the coercive and paternalistic aspect of the law is the one most visible. The most influential model that deals with the relationship between law and political authority is one that combines both these temporal and topical foci. Douglas Hay's "Property, Authority and the Criminal Law" (1975) looks at the role criminal law played in upholding paternal authority in eighteenth-century England.7 Hay argues that the English courts were theatres in which status was displayed in ritual fashion and the political ideals of paternalism and rule of law were dramatized through the vehicles of 'Terror, Justice, Majesty and Mercy."8 These four devices worked simultaneously to distance the law from any overt class interest and to reinforce the ascendancy of the English patrician ruling class. The spectre of capital punishment for over two hundred offences fTerror) and the technical nature of law (Justice) detached the law from its human origins and gave it a veneer of just omnipotence. At the same time, the ritual nature of the trials, with their processions, pageantry and costumes (Majesty), served as a metaphor for the hierarchical nature of English society and the rightful place of 5 the ruling class at its head. The merciful discretion of the judges (Mercy) in pardoning those convicted of capital crimes ~ that is, of not exercising the terrible power of the law even when they had the right to do so — served to legitimate the position of the ruling class further and to reinforce their paternal authority. In essence, Hay sees social relations in eighteenth-century England as mediated by two things: by paternalism, and the sense of mutual obligation between the powerful and the powerless that sprang from it; and by the law, which though it appeared to be\a detached body of rules that transcended the arbitrary dictates of men and embodied a neutral and natural idea of justice, in actual fact was "the cornerstone of a premodern world of paternalism." Applying this model or the concept of paternal authority to a nineteenth-century context is problematic. Applying it to nineteenth-century British North America merely compounds the problem. In the English world of the nineteenth century, the market, rather than the moral economy prevailed and transformed the role of law in mediating social relationships.9 The moral economy emphasized reciprocal obligation between English "patricians and plebians."10 This mutuality reflected a particular understanding of the world In which society was composed of a variety of parts unequal in power. Despite the inequities, each was equally necessary, however, and the cooperation of all was essential for the integrity and well-being of the social whole. The powerful occupied their positions by virtue of their social status, but status carried with it the responsibility for the welfare of the powerless. If the ruling class failed to fulfil their obligations they ran the risk of losing their power and authority. 6 Conversely, nmeteenm-century law was shaped by laissez-faire ideas and the market economy. I will make much of laissez-faire and its influence on law and political authority in the chapters that follow, and it would be useful to explain what I mean when I use the term, particularly because it is one fraught with controversy.11 Laissez-faire is a phrase of great polemical value but little clear meaning. Nevertheless, I will venture some remarks. Along with the free market, it provides the underpinnings of a capitalist economic system. Capitalism rests on the idea that voluntary, self-interested transactions between freely-contracting producers and consumers ~ the free market ~ are natural and promote the general welfare of nations. Such an assumption raises questions regarding the proper role of government. That role is expressed by the policy of laissez-faire, or non-intervention. But because it is impossible for government to absent itself completely from the public sphere, the question of intervention is one of degree and not of kind.1 2 As a result, as Arthur Taylor notes, "one man's laissez-faire is another man's intervention."13 Taylor argues that because of the lack of clarity surrounding the idea of laissez-faire, its importance in shaping nineteenth-century public policy was more prescriptive than analytical; that is, non-intervention was more a principle designed to meet the exigencies of particular political and economic situations than a hard-and-fast law of nature that could be used to diagnose and treat social ills.14 That said, when I use the term laissez-faire, I mean a government policy aimed at enhancing the free market and individual enterprise by mamtaining fair play in economic competition. Such a policy involved a degree of state regulation, but government intervention to 7 achieve these ends was not motivated out of a sense of paternalism. The invisible and impersonal hand of the free market set prices, wages and profits, rather than the arbitrary dictates of those occupying the seats of power. The best example of the influence of laissez-faire capitalism and individualism on the law is in the area of contracts.15 Under the nineteenth-century law of contracts, obligation was limited, of a specific nature and existed as a result of a voluntary agreement between individuals who intended to take on such responsibility. Social status and power were irrelevant to the issue of obligation. The law upheld this emphasis on the individual. Instead of imposing its will and dictating the terms or the substance of obligation, the state, through the law, allowed individuals to "realize their wills."16 Enforcement of the law of obligations was not considered paternal interference but an extension of the private arrangements of individuals, the manifestation of individual wills. The law had nothing to say about the justness of such arrangements ~ about just price or just wage, for instance ~ as it would under a system of paternal authority. Apart from the differences in the relationship between law and political authority in the eighteenth and nineteenth centuries, there are also problems in applying the concept of paternal authority to the British North American context. British North American colonies lacked the social and economic structure of paternalism, even though they received its undercarriage in the form of English law. Immigrants to British North America were drawn from a narrow range of social classes and the frontier conditions of the new world only served to reduce stratification further. Gone were the material trappings of status and class. Gone 8 too was much of the collective sense associated with it.17 The people who came to British North America did so to make their own lives better ~ to realize their individual wills. They were individualistic and entrepreneurial ~ not the sort of characteristics that would foster the recreation of paternal authority. Additionally, the notion, if not the reality, of material abundance in British North America did little to encourage a moral economy from taking root.18 A moral economy is built at least partly on the assumption that social, economic and political resources are scarce, and provides a rationalization for the resulting inequities through the idea of mutuality. English plebians may not have been powerful, but they were as necessary to the constitution and functioning of society as those more favoured by social and economic circumstance. In a world of abundance no such rationale was necessary because individual equality appeared possible. Most useful for Canadian historians of the law than the concept of paternalism is the work of three American legal historians.19 Beginning with James Willard Hurst, American legal historians have consistently noted the strong connections between law, economy and political culture. In a short but sweeping piece, Hurst argued that Americans possessed an "instrumentalist" view of the law, seeing it as a tool of economic development. Nmeteenth-century American law shed its eighteenth-century preoccupation with protecting the property and hence the power of the few and instead "promoted the release of individual creative energy."20 "We were," Hurst wrote, "a people going places in a hurry." Men in that frame of mind are not likely to be tiiinking about the condition of their brakes....Prevailing nineteenth century attitudes...made private property pre-eminently a dynamic, not a static institution....We did not devote the prime energies of our legal 9 growth to protecting those who sought the law's shelter simply for what they had; our enthusiasm ran rather to those who wanted the law's help positively to bring things about.21 By protecting and promoting individual capitalist initiative the law contributed to the overall development and prosperity of the United States. William E. Nelson found what Hurst predicted in his study of legal change in Massachusetts from 1760 to 1830. As the Bay colony grew and became entangled in the trans-Atlantic commercial economy to a greater degree, the "ethical unity" and consensus that characterized the colony and that was symbolized by its "Christian, U t o p i a n , closed, corporate communities" broke down and was replaced by diversity and competition.22 Developments in the common law reflected this. Nelson documents the emergence of a legal order in which property replaced morality as the basis of authority and in which competition and individual gain were legitimated and aided by the law. Morton Horwitz takes much the same view, but goes further than Nelson to argue that judges used their rulings to promote social and economic change actively, rather than merely legitimating new forms of property and competition.23 To Horwitz, the common law, even more than legislation, was responsible for the creation of a political order that was organized according to the principles of a market economy. All three of these authors tie instrumentalism closely to America's emerging individualist creed, which infected its political institutions with a spirit of creativity. David Flaherty suggested that Hurst's work could inform Canada's legal history.24 Though some have heeded his advice, it has produced mixed results. 10 RC.B. Risk viewed "the encouragement of private initiative, change, and the public and private interests" as central themes in the statute and common law of nineteenth century Ontario.25 In the same vein, Peter George and Philip Sworden argued that Upper Canadian "law and its enforcement constituted important mfrastructural elements contributing to economic efficiency."26 Yet despite these Hurstian sentiments, the same authors are careful to point out the differences separating the Ontarian and American experiences, underscoring the greater judicial conservatism of Canadian judges. Unlike their American counterparts, Risk concluded, Ontario courts "did not participate in change and innovation even vicariously."27 Anthropologist David Howes went further, arguing that applying Hurst's approach would "elide many important cultural differences between Canada and the U.S." Upper Canadian jurists, he contended, conceived of the law as "establishing boundaries and setting limits to actions"28 rather than "promot-ing the release of creative energy." Risk's and Howes's emphasis on the conservatism of the Canadian courts is informed by the prevailing historical orthodoxy regarding political culture in Upper Canada. Despite the regional focus, historians have applied the Upper Canadian model to all of British North America, describing political authority there as "conservative,"29 "liberal, with a tory touch,"30 "court," "statist."31 and most recently, as arising from "a providentially-mandated world view."32 Though the labels are different the resulting picture is fairly homogeneous: authority in Canada was rooted in the conservative tradition's structured and organic 11 hierarchy. Flowing from this came the country's collectivism, its deference to authority and its preoccupation with law and order. While one could take issue with applying such labels to British Columbia, a colony created at a different time and under different circumstances, to do so exclusively would be to miss an equally important point. That is, that the instrumentalism Hurst describes is not incompatible with a Jurisprudence which conceives of the law as, to quote David Howes again, "establishing boundaries and setting limits to actions." The economic freedom that Hurst argues characterized rimeteenth-century America was a freedom circumscribed by law; freedom under the law. As Hurst himself noted, American courts recognized that "limitations on official power were very important." But so too was a complicated affirmative use of the law to furnish instruments and patterns of dealing. In this respect, our [America's] rimeteenth-century policy involved a good deal less of simple laissez-faire than has been claimed for it.3 3 I would argue that there is much more similarity between the colonial courts of British Columbia and perhaps British North America and those of the nineteenth-century United States than has been claimed by scholars like Risk and Howes. Their work might be accused of over-emphasizing the Loyalist influence and over-reacting to the close associations Hurst and those who followed him made between mstrumentalism and a particular brand of American individualism. More recently, and quite apart from the work described above, social historians have cast a critical eye on the rather generalized, undifferentiated and elite-centred assessment of Canadian political authority. These scholars explored the normative aspect of law and the social order it reflected and contributed to. 12 The law may have upheld a "conservative," "tory," "court," "statist," and "providentially-inspired" system of authority, but it was also sexist, racist and class-based. The European fragments that were transplanted to British North American soil contained old world political ideas as well as old world prejudices. We have learned, for Instance, that nineteenth-century Canadian rape law was framed on the premise that rape was an offence against the property rights of the woman's father or husband (the property being her reproductive capacity), rather than a crime against her person.34 We also know that law was an integral part of the anti-Orientalism that characterized British Columbia in the period to the Second World War, and continues both to provide the framework of oppression that helps keep Native people marginal and to legitimate that oppression.35 Michael Katz's work on law enforcement in nineteenth-century Hamilton and Judith Fingard's study of Victorian Halifax reveal that the law was not blind to socioeconomic differences. If the prison populations in these two cities are at all typical, poverty and criminality were closely associated.36 No coherent picture of authority emerges from these fragmentary pieces of evidence, however. There has been no attempt on the part of social historians to link their narrowly-focused studies of legal bias into a broader conception of politics and political authority. That is what this study aims to achieve. Unlike other social histories of the law, Canadian and non-Canadian, this one focuses primarily on civil rather than criminal law. If the object is to understand the ethical and institutional bases of political authority It seems reasonable to focus on the kind of law that most people experienced. Throughout the colonial period, 13 British Columbians had very little to say about crime or criminal law. All of the debate and controversy surrounding the colonial legal administration dealt with the regulation of private economic transactions: civil law concerns.37 This leads me to the central premise underlying this study. Law and political authority were part of a particular cultural matrix, and any analysis of the two must take into account the effects of society, economy and geography. In England, the law was part of a system of authority that was buttressed by an agrarian, pre-industrial economy and one in which property, in the form of land, was a political rather than an economic commodity. A stratified and rigid social hierarchy also contributed to this system of authority which has been called "paternal." When the British North American colonies were created in the late-eighteenth and nineteenth centuries they received the framework of political authority in the form of English law, but not much of the substance that gave it meaning. Property was a dynamic commodity, took many forms and was exchanged for economic gain rather than accumulated for political power. England's nmeteenth-century North American colonies were firmly tied to the emergent and competitive world of commercial capitalism, and had been since the first Portuguese fishermen salted their cod on Newfoundland's beaches in the sixteenth century. Given this context, political authority in the colonies had to be different from that which characterized England. New links were forged between English law and the new world's economy and geography. The authority that was reconstructed in the colonies reflected local conditions as much as it did its European inheritance. 14 Though the chapters that follow are roughly chronological in their order, each takes a thematic focus. The scale of analysis shifts back and forth from the broad brush strokes of an aggregate quantitative analysis to the more detailed and textured picture that emerges from a narrowly focused case study. Whatever the magnification, however, each chapter represents an attempt to outline one facet of the relationship between law, economy and authority. I begin my exploration of colonial law and the reconstruction of political authority by looking at the beginnings of the European presence in the area that became British Columbia. Chapter One deals with the legal legacy of the Hudson's Bay Company. Although the company was a highly specialized fragment of European culture, the close linkages between law and economy that characterized the colonial period had their roots in the fur trade. Law was narrowly focused under the HBC, and was concerned primarily, if not exclusively, with the regulation of the fur trade labour force. Though the company became the proprietary governor of the colony of Vancouver Island in 1849 they saw no need to alter their private corporate practices in framing public policy. The first five years of the company's tenure as proprietor were marked by intense agitation over the constitution of legitimate political authority, which is the subject of Chapter Two. The debate between the independent settlers (independent of the company) and the HBC government focused on Vancouver Island's land laws and its Supreme Court. It was framed in terms of laissez-faire economics, and centred on the legitimacy of monopoly, again underscoring the close association between law, economy and political authority. 15 It was In the mainland colony, however, that the Influence of the market economy on the law, legal Institutions and political authority was most visible. The remaining chapters deal primarily with developments in British Columbia. Chapter Three discusses the relative unimportance of land and the dominance of commercial capital in the mainland economy through a quantitative analysis of civil litigation. Though law and economy were still linked, property was a dynamic commodity, whose value was realized through its exchange. The law and the civil courts protected and promoted its exchange by providing sure routes for dispute resolution and in this way minimized the risk Inherent In economic development. Civil litigation also revealed an aspect of colonial society that had implications for understanding the role the law played in creating an ethical base for political authority. British Columbia was a bondless society and because it was, the law and the courts came to play an important part in bringing people together. The heightened Importance of the law in social relations added to British Columbians' Interest in legal developments. The administration of the law had implications for both the material welfare of the colony and its social cohesion. Having discussed the influence of the commercial economy on the law and hinted at its contribution to the ethical basis of authority, I turn in Chapter Four to a discussion of the role of geography in the administration of the law. The colony's sparse and scattered population, its rugged terrain and poor routes of communication made it difficult for the government to administer the law. These physical obstacles themselves created another barrier to the extension of authority. Isolation allowed a variety of meanings to become attached to the law. 16 In the Cariboo gold fields the law was part of "common sense," which, despite the transcendence Implied by its name, was actually part of local knowledge. The meaning of the law was thus geographically limited. The consequences of this are explored through an examination of three mining cases which led to open defiance of the colonial magistracy in the Cariboo. The "Grouse Creek War" (1867) was motivated out of conflicting definitions of the law and the authority it upheld. Common sense was too limited to work as a foundation for political authority. Instead, British Columbians rooted authority in legal texts and the specialized knowledge of the experts who could interpret and apply them. This is the theme of Chapter Five, and it is taken up through Cranford v. Wright, an 1862 court case for breach of contract and debt. The political authority revealed by this law suit was not paternal and best represented by the judge, but textual and resident in the expert. Chapter Six looks at the courts as the institutional manifestations of the twin influences of economy and geography. If the commercial economy provided the courts with their raison d'etre, British Columbia's geography influenced the ambit of their powers. The economic freedom the law and the courts promoted was not without limit, however. These limits were most visible in the execution of the criminal law, which is the focus of Chapter Seven. The final chapter concludes the study and explores, in speculative fashion, the consequences of the rule of law in nineteenth-century British Columbia. A Brief Constitutional History of Vancouver Island and British Columbia 17 Though I touch upon aspects of the constitutional development of Vancouver Island and British Columbia in Chapters Two and Three, I do not give it full treatment anywhere. It may be useful to do so here to provide a context for the developments in both colonies' legal administration.38 The Governors of the Hudson's Bay Company were made the "true and absolute lords and proprietors" of Vancouver Island by virtue of a Royal Charter issued on 13 January 1849. In return for the proprietorship of the Island the HBC agreed to settle the colony, defray the expenses of constructing a civil and military establishment there and construct other public services using the revenue generated from land sales. After five years the charter came up for review, and the crown could, if it were dissatisfied with the company's progress in colonization, revoke the HBC's privileges without compensation. After ten years, the company's exclusive licence to trade with the Native population expired and the crown, on reimbursing the HBC for its expenses, could resume control of Vancouver Island. Though a separate act provided for the administration of justice on Vancouver Island, the colony's constitution was derived from the instructions and commission issued to Richard Blanshard, its first governor.39 These called for the creation of a seven-man Council (including the Governor) and a General Assembly, both of which would enact legislation together. When Blanshard arrived in March 1850 he discovered that there were not enough freeholders to justify an elected assembly. Instead, he established the Council and relied on a clause in his commission which allowed him to "enact laws with the advice and consent of the said Council" to govern the colony. Or at least he attempted to govern it.4 0 18 From his arrival at Fort Victoria, the London barrister found himself at odds with the real political authority on Vancouver Island: the Hudson's Bay Company.41 Though he was the crown's representative, his authority was ineffectual in a colony populated primarily by HBC employees. After a stormy nine month tenure he resigned and the crown appointed HBC Chief Factor James Douglas as governor. Though the Colonial Office reminded Douglas repeatedly of his responsibility to create an elected assembly, the Governor continued to legislate with the aid of his appointed Council until 1856. Up to that point, Vancouver Island's government had encountered few problems enacting laws primarily because it did so rarely. However, when Douglas and the Council proclaimed an act creating a Supreme Court of Civil Justice in 1854, the Colonial Office, perhaps tired of the delays in establishing representative institutions on the Island, declared the act invalid.42 Without an elected assembly, as stipulated in his instructions and commission, the governor and Council could not enact any legislation. The Colonial Office's declaration threw all acts of the government of Vancouver Island into doubt, and because it continued to debate this point with Victoria until 1856 the problem was compounded. Orders-in-Council establishing the Supreme Court of Civil Justice and validating all past acts of the governor and Council of Vancouver Island finally solved the immediate problems, and in 1856 Douglas made arrangements for elections to be held and a General Assembly formed.43 From 1856 to 1863, a crown-appointed governor, an appointed Council and an elected General Assembly governed Vancouver Island. Though the Council 19 possessed both executive and legislative functions (as it had since Blanshard first created it in 1850), its role was unclear. Until the 1858 Fraser River gold rush, the Council sat infrequently and at the call of the governor to advise him and to enact legislation. After that time, however, the Council ceased to assume any executive functions and existed as only as a legislative body which sat concurrently with the assembly. The consultative role of the council was fulfilled through informal and private meetings between the governor and the heads of the principal government departments. The General Assembly considered the Council a strictly executive institution, and resented its incursions into the legislative sphere, particularly in its initiation of bills of supply. As a result, in 1861 the government asked London for permission to created an Executive Council, consisting of the heads of each of the principal government departments, and a Legislative Council, composed of all other members of the existing Council. The Colonial Office complied, but not until 1863, after it had sorted out the constitutional arrangements of the new and neighbouring colony of British Columbia. From 1863 until the union of the island and mainland colonies in 1866, the governor, Executive Council, Legislative Council and General Assembly presided over Vancouver Island. The Executive Council represented the formalization of Douglas' earlier informal and private consultations with his department heads. Its membership consisted of the Colonial Secretary, the Attorney General, the Treasurer and the Surveyor General, and its role was advisory. The Legislative Council had eight members, including the Chief Justice, the members of the Executive Council and up to four other people appointed by the governor. 20 In the Immediate wake of the Fraser River gold rush, British Columbia was created as a separate colony in August 1858 with James Douglas, Vancouver Island's chief executive, serving as its first governor.44 Two factors shaped the constitutional development of the mainland colony. The first was the Colonial Office's fears of the large American element in its population, and the second consisted of its desire to unite the two colonies as soon as possible. Both conspired to prevent the creation of representative institutions in British Columbia until the eve of Confederation in 1870. Instead, from 1858 to 1864 all executive and legislative power was vested in the hands of the Governor, James Douglas. Douglas did rely informally on the advice of the colony's Supreme Court Judge, Matthew Baillie Begbie, in matters involving the creation and administration of the colony's laws, however. In fact, Begbie framed many of the most important pieces of colonial legislation, including the Gold Fields Acts, the Small Debts Act, 1859 and the Pre-Emption Act, I860.45 From the beginning of Douglas* tenure as governor of British Columbia, mainland residents expressed their opposition both to the form of the colony's government and to the fact that Douglas was also the chief executive of a rival colony. Many of those most vehemently opposed to the constitution of the government of British Columbia had emigrated from the maritimes and Canada West, where they were accustomed to more representative and responsible institutions. The continual protests and petitions led Douglas to recommend the creation of a fifteen member unicameral legislature in 1863. The Colonial Office concurred with the governor's assessment, but also recognized that much of the political agitation in British Columbia stemmed from the fact that mainlanders perceived Douglas to be favouring island interests over their own. As a result, and with an eye to preventing any further antipathy that could make the eventual union of the colonies difficult, London removed James Douglas as governor of both colonies and replaced him with two men: Arthur Kennedy on Vancouver Island and Frederick Seymour in British Columbia. That done, the Colonial Office approved the creation of an Executive and a Legislative Council for British Columbia. The latter institution would satisfy calls for representative institutions but was not as unwieldy an obstacle to union as an elected assembly would be. The Legislative Council consisted of fifteen members, five of whom (with provision for more as the population grew) were elected. Despite its appearances, British Columbia's Legislative Council was not truly a representative institution. The Colonial Office considered it a crown council because though its elected members were chosen by the population, they sat by virtue of a crown appointment. Thus, all members of the Legislative Council, appointed and elected, occupied their posts at the pleasure of the crown and could not alter the rules governing the composition of the institution in which they sat. This was just a further measure on the part of London to limit the potentially unruly influence of the American component of the colonial population. The appointment of separate governors for Vancouver Island and British Columbia in 1864 precipitated a great deal of anger and concern on the island. 22 Islanders felt that without Douglas and his pro-island bias they would suffer economically. The same result would also occur, however, if the colonies were united: Victoria would likely lose its status as the capital city and a free port. These fears, combined with an economic recession in both colonies in 1864 and 1865, stirred the General Assembly to rash action. It decided to embark upon a series of obstructionist tactics aimed at driving out the new governor, Arthur Kennedy, and making the Colonial Office reconsider its actions. The only effect the assembly had was to make London very angry, and in 1865, when it became clear that they were having no effect, its members asked the Colonial Office to unite the two colonies. London complied in November 1866, and the new united colony of British Columbia was formed.46 As a result of the actions of the "lunatic House of Assembly," the Colonial Office reorganized the constitution of the new colony, eliminating the institutional framework of Vancouver Island's government entirely, replacing it with that of British Columbia.47 Thus, the united colony possessed a governor, an Executive Council, and an expanded Legislative Council, but no elected assembly. Though the Act of Union set out the constitution of the new colony, it did not deal with the administration of justice. This omission, as will be discussed in Chapter Six, caused a great deal of controversy. In 1868 Governor Frederick Seymour modified the constitution of the Legislative Council by appointing three additional members who were unconnected with the government, and suggested that the elected membership might also be expanded. Though the Colonial Office pointed out that as a crown 23 council the Legislative Council had no authority to make such an amendment to its own constitution, interest in establishing representative government continued among the elected members of the Legislative Council. Seymour's successor, Anthony Musgrave, used this interest in representative government to secure British Columbia's entry into Confederation. In return for their support for Confederation, Musgrave promised his Executive Councillors that he would secure their pensions under Dominion government and delay the advent of representative government. The Executive Council agreed and set out to draft the terms of Confederation, which were debated and accepted by the Legislative Council. While this occurred, London passed the British Columbia Government Act, 1870, which replaced the existing Legislative Council with one that was based on true principles of representation. This was the form the colonial government had when it ratified the terms of Confederation in January 1871. 24 NOTES 1. Crease to Seymour, Attorney General's Office, 14 March 1868. Great Britain. Colonial Office. British Columbia Original Correspondence. National Archives of Canada (hereafter NAC). MG 11. CO 60/32, reel B-99, 169. 2. For a good overview on power and authority see Dennis H. Wrong, Power: Its Forms, Bases and Uses (Oxford, 1979); also see Stephen Lukes, "Power and Authority," in Tom Bottomore and Robert Nisbet, eds., A History of Sociological Thought (New York, 1972), and Stephen Lukes, ed., Power (New York, 1986). 3. On this definition of the law, see H.L.A. Hart, The Concept of Law (Oxford, 1961). "Law" has a variety of definitions, of which this is only one. For a general overview see J.C. Smith and David N. Weisstub, The Western Idea of Law (London, 1983). 4. William J . Tewksbury, "The Ordeal as a Vehicle for Divine Intervention in Medieval Europe," in Paul Bohannon, ed., Law and Warfare (New York, 1967), 263-266. 5. David Flaherty, "Law and the Enforcement of Morals in Early America," Perspectives in American. History 5(1971):201-253. 6. E.P. Thompson, Whigs and Hunters: the Origins of the Black Act (London, 1975). 7. Douglas Hay, "Property, Authority and the Criminal Law," in Hay, et. al., eds., Albion's Fatal Tree: Criminal Law and Society in Eighteenth-Century England (London, 1975), 17-63. 8. Ibid., . 9. On the moral economy see E.P. Thompson, "The Moral Economy of the English Crowd in the Eighteenth Century," Past and Present 50(1971). 10. E.P. Thompson, "Patrician Society, Plebian Culture," Journal of Social History 7(1974). 11. For an overview of the debate over laissez-faire, see Arthur J . Taylor, Laissez-Faire and State Intervention in Nineteenth-Century Britain (London, 1972). 12. A.W. Coats, "Laissez-Faire," in Adam Kuper and Jessica Kuper, eds., The Encyclopedia of the Social Sciences (London, 1985), 441. 13. Taylor, Laissez-Faire and State Intervention in Nineteenth-Century Britain, 12. 25 14. Ibid., 25. 15. See P.S. Ativan, The Rise and Fall of Freedom of Contract (Oxford, 1979) and his An Introduction to the Law of Contract, Fourth Edition (Oxford, 1989). 16. Atiyah, An Introduction to the Law of Contract, 8-9. 17. On these themes see R Cole Harris, "The Simplification of Europe Overseas," Annals of the Association of American Geographers 67(1977):469-483; and Louis Hartz, The Founding of New Societies: studies in the history of the United States, Latin America, South Africa, Canada and Australia (New York, 1964), Chapter 7, "The Structure of Canadian History." 18. On the influence of abundance on the United States and the American character see David M. Potter, People of Plenty: Economic Abundance and the American Character (Chicago, 1954). 19. English historians have also begun to emphasize the connections between law, economy and society but no case studies have yet been done. For an introduction, see David Sugarman, "Theory and Practice in Law and History: a prologue to the study of the relationship between law and economy from a historical perspective," in Bob Fryer, Alan Hunt, Doreen McBarnet and Bert Moorehouse, eds., Law, State and Society (London, 1981); and G.R Rubin and David Sugarman, eds., Law, Economy and Society: Essays in the History of English Law, 1750-1900 (London, 1984). 20. James Willard Hurst, Law and the Conditions of Freedom in Nineteenth Century United States (Madison, 1956), 6. 21. Ibid., 10. 22. William E. Nelson, The Americanization of the Common Law: Legal Change tn Massachusetts, 1760-1830 (Cambridge, MA, 1975); "Christian. U t o p i a n , closed, corporate communities" from Kenneth Lockridge, A New England Town: the First Hundred Years, Dedham, Massachusetts, 1636-1736 (New York, 1970), 16. 23. Morton J . Horwitz, The Transformation of American Law, 1780-1860 (Cambridge, Massachusetts, 1977). 24. David Flaherty, "Writing Canadian Legal History," in Flaherty, ed. Essays in the History of Canadian Law, volume 1, (Toronto, 1981), 3-42. 25. RC.B. Risk, "Law and Economy in Mid-Nineteenth Century Ontario," in Flaherty, ed. Essays in the History of Canadian Law, volume 1, 118-119. 26. Peter George and Philip Sworden, "The Courts and the Development of Trade in Upper Canada, 1830-1860" Business History Review 60(1986):259. 26 27. Risk, "Law and Economy In Mid-Nineteenth Century Ontario," 125. 28. David Howes, "Property, God and Nature in the Thought of Sir John Beverley Robinson," McGill Law Journal 30(1985):367, 399. More generally, see Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact (Toronto, 1984). 29. S.F. Wise, "Upper Canada and the Conservative Tradition," in Edith Firth, ed., Profiles of a Province (Toronto, 1967). 30. Gad Horowitz, "Conservatism, Liberalism and Socialism in Canada: An Interpretation." Canadian Journal ofEconomics and Political Science32(1966): 147-171. 31. Gordon T. Stewart, The Origins of Canadian Politics: a Comparative Approach (Vancouver, 1985). 32. G. Blaine Baker, "'So elegant a web': Providential order and the rule of law in early nineteenth-century Upper Canada," University of Toronto Law Journal 38(1988):205. 33. Hurst, Law and the Conditions of Freedom, 32. 34. Constance Backhouse, ''Nineteenth-Century Canadian Rape Law, 1800-1892," in Flaherty, ed., Essays in the History of Canadian Law (Toronto, 1983), v. 2., 200-247; "Nineteenth-Century Canadian Prostitution Law: Reflection of a Discriminatory Society," Social History/Histoire Sociale 18(1985):387-423; "The Tort of Seduction: Fathers and Daughters in Nmeteenth-Century Canada," DalhousieLaw Joiirnal 7(1986):45-80; and "'Pure Patriarchy': Nineteenth-Century Canadian Marriage," McGill Law Journal 31(1986):264-312; John McLaren, "The Canadian Magistracy and the Anti-White Slavery Campaign," in W. Wesley Pue and Barry Wright, eds., Canadian Perspectives on Law and Society: Issues in Legal History (Ottawa, 1988). 35. On anti-orientalism see W, Peter Ward, White Canada Forever (Kingston, 1978); Patricia Roy, A While Man's Province (Vancouver, 1989); Henry Angus, "The Legal Status in British Columbia of Residents of Oriental Race and their Descendants," CanadianBar Review 9(1931):1-12; on aboriginal peoples and the law see Forrest E. LaViolette, The Struggle for Survival Indian Cultures and the PmtestantEthicinBritishCtolumbta 1973); Bradford W. Morse, Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights in Canada (Ottawa, 1985); and Robert A. Williams, Jr., The American Indian in Western Legal Thought: the discourses of conquest (New York, 1990). 36. Michael Katz, Michael Doucet and Mark Stern, eds., The Social Organization of Early Industrial Capitalism (Cambridge, 1982), Chapter Six; and Judith Fingard, The Dark Side of Victorian Halifax (Halifax, 1989). 27 37. As Richard Sparks noted, criminal law is only important "at the margins of social life;...in day-to-day affairs it is not all that important to the maintenance of late-industrial capitalism's social order...give me the law of contracts (including contracts of employment), and you can have the rest of the statute book....The most generally useful laws are likely the ones that define...ownership and control [of the means of production], and not some ancillary laws that promise to thump individuals for rather trivial kinds of tampering with those means." Richard Sparks, "A Critique of Marxist Criminology," Crime and Justice: An Annual Review of Research 2(1980): 159; cited in John H. Langbein, "Albion's Fatal Flaws," Past and Present 92(1983): 119. 38. What follows owes much to James E. Hendrickson, "The Constitutional Development of Colonial Vancouver Island and British Columbia," in W. Peter Ward and R A J . McDonald, eds., British Columbia: Historical Readings (Vancouver, 1981), 245-274. 39. An Act to Provide for the Administration of Justice in Vancouver's Island." 12 & 13 Vic. c. 48 (1849). 40. Hendrickson, 247. 41. On Blanshard, see Willard Ireland, "The Appointment of Richard Blanshard," British Columbia Historical Quarterly 8(1944):213-226 and W. Kaye Lamb, "The Governorship of Richard Blanshard," British Columbia Historical Quarterly 14(1950): 1-40. 42. An Act to establish a Supreme Court of Civil Justice in the Colony of Vancouver's Island and its dependencies, 2 December 1853. 43. For these Orders-in-Council see Revised Statutes of British Columbia 1979, Appendix Part B, 25. 44. An Act to provide for the Government of British Columbia, 22 & 23 Vic. c. 99 (1858). 45. David R Williams, "...The Man for a New Country": Str Matthew Baillie Begbie (Sidney, B.C., 1977), 148-157. 46. An Act for the Union of British Columbia and Vancouver Island, 29 & 30 Vic., c. 67 (1866). 47. Hendrickson, 259. 29 CHAPTER ONE HUDSON'S BAT COMPANY LAW IN BRITISH COLUMBIA, 1821-18491 The overwhelming influence commercial capitalism had on law and political authority in British Columbia is the central theme of this dissertation. If we take law to mean the regulation of behaviour by the state or an institution acting like a state, then the influence of capitalism on law is evident from the beginnings of the European presence in the area that became British Columbia. European penetration of this area had its origins in the fur trade. Though American John Jacob Astor's Pacific Fur Company, the Russian American Company and the Montreal-based Nor'westers had established posts between the Continental Divide and the Pacific Ocean, the Hudson's Bay Company had the largest and most enduring presence there. The HBC's posts, some 9000 miles away from their London-based headquarters, were an administrative achievement of no small significance. With their employees, supplies, raw materials and markets spread over an Immense geographic area, the company found itself confronted with some sizeable obstacles to its economic efficiency. Add to this the volatile international market for a staple resource like furs, and the simple longterm viability of an enterprise like the HBC takes on astonishing proportions. Given the variety and the magnitude of these barriers to profit-making, the Hudson's Bay Company, like any other business, attempted to limit as much of the uncertainty associated with its operations as it could. While its economic monopoly went a fair distance to doing this, the HBC also concerned itself with 30 regulating the conduct of its employees. The company's success depended as much on the cooperation of its own servants as it did its Indian suppliers. Two recent articles by Hamar Foster focus on how the company and imperial authorities attempted to deal with violent clashes (particularly murder) between fur traders or fur traders and Indians within the framework of English criminal law.2 Both the Canada Jurisdiction Act (1803) and the 1821 Act for regulating the fur trade specified that individuals accused of serious crimes in unorganized Indian territories were to be conveyed along with the necessary witnesses to Upper or Lower Canada, where the proper colonial tribunals could deal with them.3 "Long-distance justice" proved unworkable and unjust in the absence of any other means of conflict resolution; and Foster concludes that these two acts were mere gestures designed to justify the HBC's dominion over a large part of British North America.4 Though violent behaviour was an issue for the Hudson's Bay Company for the political reasons Foster points out and because of the destabilizing effects it could have on the conduct of its trade, the company was more concerned with regulating the commercial conduct of its employees. This was the realm of Hudson's Bay Company law, which was narrowly focused on mamtaining a disciplined and orderly labour force and aimed at protecting its own economic monopoly and profits. The company had four methods of achieving these ends, two formal and two informal: through the imperial statutes mentioned above; through its contracts with its servants; through its corporate organization; and, finally, through a system of "club law," or corporal punishment. It would be 31 Incorrect to assume that the Hudson's Bay Company controlled its servants, however. These formal and Informal mechanisms of regulation were a loosely-knit matrix which, like formal, positive law, bounded the fur trade labour force but did not always intersect with it. Nevertheless, the fact that the law was so tied to capitalism from the beginnings of the European presence in British Columbia had important ramifications for our understanding of the ethical foundations on which the political authority of governments rested. For the company's governors and its field officers, the inhospitable conditions its servants worked in exacerbated the problem of imposing labour discipline. Service in the Hudson's Bay Company was gruelling and difficult, but conditions in British Columbia made engagements there particularly demanding. New Caledonia (mainland British Columbia) was particularly despised for its "misery and privation"5 and "poverty...of fare."6 Chief Factor John Tod recalled that in HBC Governor George Simpson's day (1820-1860) the district was "looked on in the light of another Botany Bay Australia; the men were in dread of being sent there."7 So loathe were the company's men to serve in the region that in 1827 Simpson proposed to raise the district's wages by £2 to counter the loss of labour precipitated by the retirement of "a great many of the New Caledonia men from the Service" and "to compensate those that remain for the extra work they will have to do."® The sheer isolation and ruggedness of the New Caledonian posts contributed greatly to the district's poor reputation. Simpson described McLeod's Lake post in 1829 as simply "the most wretched place in the Indian Country,"9 perhaps because of the "surround[ing] mountains which almost exclude the light 32 of day," and snow storms "so violent and long continued as to bury the establishment."10 The coastal location of Fort McLoughlin did little to ameliorate service there, as Charles Ross' letter to his sister revealed: Than our way of life in this dreary wilderness nothing can be more dark and insipid. The posts we occupy, though many, are far between, and seldom have any intercourse with each other, oftener than once a year and then for the most part is for the purposes of exchanging cargoes for furs. There is no society—that is the person in charge must divert himself the best way he can with his own thoughts.11 In addition to the isolation and rugged geography, conditions in New Caledonia were made more difficult by the periodic failures of the salmon fishery, which led to famine for both HBC men and Indians. In 1827 the fishery failed in the Chilcotin, effectively preventing the establishment of a post there.12 Two years later Simpson reported another salmon shortfall in the area of McLeod's Lake. Upon reaching the fort in the course of his tour of inspection, Simpson found its complement of men "starving, having nothing to eat for several weeks but berries." Their faces, he noted, "were so pale & emaciated that it was with difficulty I recognized them."13 Generalized famine also led to theft and to increased confrontations between fur traders and Indians. Even under better conditions the native population was viewed with suspicion and hostility. The company's sentiments were not without basis, as the murders of its servants and officers demonstrated. In 1823 the complement of men at Fort St. John were "massacred" and the fort abandoned.14 Further south at Fort George two HBC workmen were "done to death by two Fraser Lake Indians" in the same year.15 In 1828 a company interpreter was killed by two Babine Indians,16 and in 1848 33 refractory HBC servant Alexis Belanger was murdered.17 Garnering particular notice were the murders of HBC officers and clerks: Chief Factor Samuel Black in 1841,18 postmaster William Morwick at Fort Babine in 1843,19 and half breed clerk John Mcintosh of Fort Chilcotin in 1844.20 Company servants liked the Columbia district better, but it too posed peculiar dangers and discomforts to the HBC's servants posted there. Initially celebrated for the "salubrity of its climate and excellence of its soil," the Columbia quickly fell into disfavour because of the dangers posed by navigating the "tortuous channels" of its rivers, its hostile Indian population and the malaria or influenza which struck the district with regularity in the 1830s and 1840s.21 Low fur returns added to the company's disenchantment and with the district. "Every thing appears to me in the Columbia on too extended a scale except the Trade," wrote George Simpson with some frustration:" and when I say that that is confined to Four permanent Establishments the returns of which do not amount to 20,000 Beaver and Otter altho' the Country has been occupied upwards of Fourteen years and immense Sums of Money expended therein I feel that we have done little more than commence operations on this side of the Continent.22 At least some of the dangers that characterized the district were thought to be due to the unruly American population, some of whom were "people of the worst character, runaways, from jails and outcasts from Society, who take all their bad qualities along with them." This motley crew," wrote Simpson, "acknowledge no master, [and) will conform to no rules or regulations."23 In addition to the physical dangers posed by the inhospitable environment, wages and provisions were also the cause of dissention between the HBC and its 34 employees. Following the economic restructuring precipitated by its merger with the Northwest Company, George Simpson wrote to the Governor and Committee in London, informing them that it was impossible to reduce servants' wages and deny them certain supplies "without running very serious risks of mutiny." "Generally speaking," Simpson wrote, "they are dissatisfied with the new order of things."24 Much to Fort Vancouver Chief Factor John Mclaughlin's chagrin, the high price of company goods caused several of Peter Skene Ogden's men to desert in 1827. "[A]s we had only a precarious tenure of the Country," he wrote, "we ought therefore to have allowed the trappers have their supplies at as low a price as possible so as to get while in our power all the furs we could."25 The aptly-named company chaplain Herbert Beaver considered the company's "inferior servants" "ill-treated, especially in the article of food," and from the number of complaints received, he was likely correct.26 In 1830, eight apprentices complained that "they had not a sufficiency of Bread," but company authorities felt their allowance of "4 lbs. Biscuit & 2 lbs. flour p. Week" and potatoes in the winter or "fresh provisions" in the summer was adequate.27 To "prevent a general strike and desertion" James Douglas gave Fort Victoria's European servants "2 ozs. of Tea and 1 lb. of Brown sugar weekly" in 1850.28 Such "luxuries" were in limited supply, and, according to Innis, "smuggling was in many cases the result."29 Even the water served to the company's servants did not escape complaint in 1851. A fresh supply was ordered, but the company's servants refused to get it until "an extra glass of 'grog' [was given] to all hands." Douglas 35 then sentenced fifteen of them to twelve weeks imprisonment for their part in the "conspiracy."30 With such miserable working conditions, it was not surprising that many of the HBC's servants tried to improve their situations by engaging in some private trading with Indians to fill their stomachs or, as Chief Trader James Murray Yale put it, by entering into the exchange of "more smutty commodities."31 Such activities could and often did result in violent conflict. Even if they did not, however, they could still bring the censure of the company because of the threat they posed to the company's monopoly and the security of its supply of furs and provisions. Officially, anyone trading on his own account was to forfeit treble the value of such moneys goods and merchandize so traded for, and...be immediately discharged and made incapable of serving this company in any Office or place whatsoever, and that the said forfeiture...do redound, three fourths parts for the use and benefit of the company in general, and one fourth part to such person or persons as shall discover the same.32 Unofficially, however, the company dealt with transgressors far more informally. For instance, in 1826 at Fort Kilmaurs, clerk William Brown attempted to drive down the Indians' price for salmon. Unfortunately, his men "were in every corner endeavouring to trade one or two from them," rendering Brown's efforts "to appear to dispise [sic] their salmon" and thus drive down the price ineffective. This [the illicit trade] I for some time winked at until I saw it was going too far, then caught Gilbeau who was coming out of one of the Lodges with, a Parcel he had traded, for which I gave him a severe scolding and made him go and throw them in the River. At this same time I gave the whole party to understand that the first I saw enter a lodge or have any communication with the Indians I would split his head with my sword—this proceeding put an end to their traffic...33 36 A French Canadian cook's plan to trade with the neighbouring Tsimshlan In 1853 proved to be doubly threatening to the company's Interests. "Leon" not only engaged In private trading, but also offered the Tsimshlan a particularly dangerous item in return for their furs: his knowledge of how to turn the large quantities of potatoes which the Tsimshlan, Haida and Bella Bella Indians raised into "whiskey."34 In doing so Leon violated the conditions of his contract and endangered the post's food supply, its supply of furs and general safety. Indian potatoes were both an indigenous staple as well as an item of trade. HBC posts were provisioned by these potatoes, and Leon's plans to diversify the Indians' economy by teaching them how to manufacture home brew were not appreciated by the company's authorities and its employees who were often faced with food shortages. Liquor also created disorder, and, as the Bishop of Columbia noted, the HBC did not use liquor as a trade item because it "ministered to the wild incentives of their nature."35 "In consideration of his previous good behaviour," Leon was offered "another situation in the company's employ, provided he would make a full confession and tell how far the scheme had progressed. Otherwise he should be dismissed immediately." Although Leon did confess, he made his escape the next day but was captured shortly after and "bound hand and foot" was sent to Victoria and out of the district.36 Relations with Indian women and family responsibilities were also the cause of disputes in the fur trade. "Improper familiarity with their [Indian] Women" was singled out by George Simpson as one of the causes of "serious differences...between the Natives and the people of our Establishments" in "nine 37 cases out of ten."37 At New Year's celebrations in 1829, Archibald McDonald of Fort Langley discovered "the drunken sot Dilenals had contrived to haul up an Indian woman by one of the Portholes." After confixrning the servant's guilt, McDonald called him In and told "that had there been Irons he should have felt the weight of them, for three months to come." Instead, Dilenals (or Debinais) was fined half his wages — £11— for his "unpardinable [sic] crime," and told "to taste no liquor...during the present year of our Lord."38 Two years later at Fort Vancouver, clerk Francis Ermatinger "got Into disgrace" when he instructed the post's Interpreter to cut off the tip of the ear of an Indian who had had "an intrigue with his woman.™39 McLoughlin noted that though in a civilized world such an act will appear harsh,...if the Indian had not been punished it would have lowered the Whites in their estimation, as among themselves they never allow such an offence to pass unpunished.40 Separation from their families also underlay some servants' discontent. Flnan McDonald, a "very careful and economical trader but not bright,"41 expressed some "anxiety about bis Family" and was allowed to retire in 1827, because Simpson contended, "no one should...be pressed to remain In the Columbia of a discontented turn of mind as the feeling spreads like a contagion." "Family affairs," he continued, "are a source from whence much of this evil arises."42 William Brown, another Fort Vancouver servant, was not as fortunate. In 1837 Brown's term of service expired, but Instead of being allowed to retire he was ordered to go back to Fort Langley. Brown took his complaint to Herbert Beaver, telling him he "had a child of eight months old, the mother being dead, and that he was unwilling to remain unless he should receive £20 per annum, 38 Instead of the £17 his former wages." Before Beaver could intercede, a boat arrived to convey Brown and others to the Fraser River. Brown refused to board the vessel and was flogged the next day. [H]e was stripped and tied up to one of the Great Guns, which stand at the foot of the messroom steps, the usual place and mode of administering corporal punishment, and ordered to receive two dozen lashes with a cat o'nine tails, the messwaiter, a very powerful man, being according to custom, the executioner, and a very severe left-handed flogger. On the sixth lash, which, but that reason and the awkwardness of the inflictor, fell across the heart, the poor man, whose courage now failed, said he was ready to go whither they pleased him, provided they released him, which was accordingly done. Chief Factor Mclaughlin and Chief Trader Douglas, who superintended the punishment, no medical man, although one is stationed at the Fort, being present, telling him that they were sorry to inflict it upon a man, who bore a uniformly excellent character, but that orders must be obeyed.43 Though these conflicts with the company arose from the misery and privation experienced by its employees, they also reflected the HBC's priorities. The company sought to regulate only that behaviour which threatened its economic interests. To do so, they had at their disposal two formal legal instruments: the 1803 and 1821 imperial statutes regulating the fur trade and the contracts of engagement each servant signed upon entering the company's service. From 1821 to 1859 the administration of justice in the politically unorganized "Indian territories" under the control of the Hudson's Bay Company was provided by two imperial statutes: the Canada Jurisdiction Act (1803) and the Act for regulating the Fur Trade (1821). The Indian territories referred to included all of British Columbia, the Northwest Territories, Saskatchewan and northern Alberta, and were distinct from Rupert's Land, whose government was derived 39 from King Charles H's Charter of Grant (1670) to the Hudson's Bay Company. The 1803 act was an attempt on the part of the imperial government to deal with the violent clashes between the Hudson's Bay Company and its rival, the Northwest Company. It extended the jurisdiction of the courts of Upper and Lower Canada over the Indian territories and empowered the governor of Lower Canada to appoint territorial justices who would commit all offenders until they could be conveyed to the Canadian courts for trial. Violence also spawned the 1821 act. Its provisions limited the violent clashes between the two companies by granting one of them ~ the Hudson's Bay Company ~ a monopoly in trade over the Indian territories for twenty-one years. It also extended the provisions of the 1803 act to cover all the territories under HBC control and further empowered the Upper Canadian courts to take cognizance of all suits originating in the Indian territories with the exception of those involving land title, which were to be referred directly to England.44 No territorial justices were ever appointed under the 1803 or 1821 acts and there is only one known instance in which offenders and witnesses were conveyed to Lower Canada for trial.45 Given the great distances and great expense involved, the two acts were unworkable, and disputes were settled locally, within the confines of company, rather than statutory, authority. The company's failure to adhere to the provisions of the 1803 and 1821 acts became an issue m the 1857 Select Committee investigation into the affairs of the Hudson's Bay Company. The company's monopoly came under attack by a Liberal government committed to the principles of laissez-faire, and the Select Committee 40 members took a dim view of what they perceived to be the HBC's efforts to hide behind their Charter when it came to protecting its trade, and to shirk the duties concomitant with the granting of the monopoly. Of particular interest to the Committee was the administration of justice. Company critics like James Edward Fitzgerald charged that the HBC had failed to adhere to the 1803 and 1821 acts and, in so doing, had created conditions in which revenge, rather than justice underlay dispute settlement in the territories under its jurisdiction.46 Under insistent questioning by the Committee, Sir George Simpson asserted that justice was administered "as nearly as possible according to the laws of England," and noted that the provisions of the 1803 and 1821 acts had been adhered to despite the "great difficulty and great expense" of removing the accused to Canada for trial.47 Not satisfied, the Committee members pressed Simpson, hoping to reveal the company's failure to provide adequate legal administration: Q. How many criminals do you suppose are annually tried at Asslnlbola [Simpson had stated previously that prisoners were often conveyed to Red River for trial]? A. I think the whole of the criminal cases within my recollection are but 19 in the 37 years [of his governorship]. Q. And that you call administering justice in that country? A. Yes. Q. We may take that as a specimen of the adminstration of justice in those countries under the rule of the Hudson's Bay Company? A. Of the absence of crime, I should hope; we claim to ourselves great credit. Q. Do you mean to say that in your tenure of office there for 37 years there have been only in fact 19 criminals in that country? 41 A. I think so. Q. Are those serious cases or minor offences? A. Serious cases. Q. Take murders: do you mean to say that in all your term of office of upwards of 30 years, there have been only 19 murders committed in the whole of Hudson's Bay territory? A. There were 11 people killed In this particular case [Simpson had cited one case in which three prisoners were accused of murdering eleven people and were conveyed to Canada for trial] which I am referring to. Q. Do you mean to say that in the 37 years of your government of that country there have been only 19 murders committed? A. Nineteen cases; I said there were 11 murders in that first case which I spoke of. Q. I want to ascertain what has been the administration of justice in that country; I want to know how many persons have been brought to justice; you tell me 19? A. Since 1821 there have been 19 cases of homicide in which the Hudson's Bay Company people were concerned; in 11 punishment was inflicted; one prisoner was tried and acquitted; one was a case of justifiable homicide; three accused parties died before being captured, and in three cases there was no evidence to proceed against them; those are the nineteen cases. Q. Do you say that fairly represents the state of crime in that country? A. I do.4 8 While Simpson attempted to persuade the Committee that the company had adhered to the acts governing the administration of justice in its territories, his superior Edward Elllce (who was both a director of the company, the author of the legislation in question, and on intimate terms with some of the committee members) testified that the responsibility for judicial administration lay with the 42 Governments of Canada and Great Britain.49 The Hudson's Bay Company was under no legal obligation to establish courts or convey prisoners to Upper or Lower Canada for trial. Instead, contended Ellice, the responsibility for the administration of justice in the fur trade territories belonged to the governments of Upper and Lower Canada, not the Hudson's Bay Company.50 Although formal procedural justice as stipulated in the acts of 1803 and 1821 may indeed have been "theoretical," as Hamar Foster suggested, the absence of its machinery did not mean that the Hudson's Bay Company lacked the means to regulate behaviour.51 The contracts HBC servants signed when they Joined the company imposed certain terms of service and obligations on them that were enforced. The HBC's labour contracts were the chief means by which the company regulated its servants, and their content was symptomatic of the extent to which the demands of commercial capitalism influenced the regulation of conduct. The contracts defined licit and illicit behaviour in terms of private economic interests rather than any notion of a public good. While this is hardly surprising behaviour for aprtvatebusiness, not all nineteenth-century businesses were imperial powers that would form the basis of colonial governments like the Hudson's Bay Company did in Red River and Vancouver Island. Throughout the fur trade period the Hudson's Bay Company used a form contract to engage its servants.52 The most notable characteristic of the document was its extensive protection of the company's monopoly and property. Not only was a servant of the "Honourable Company" expected to "devote the 43 whole of his time and labour in their service and for their sole benefit," and act "with courage and fidelity." he was also expected to defend the property of the said Company and their Factories and settlements; and will not absent himself from the said service, nor engage, or be concerned with any trade or employment whatsoever, except for the benefit of the said Company and according to their orders.53 In addition, all goods obtained by barter with the Indians or otherwise, which shall come to the hands or possession of the said [servant] shall be held by him for the said Company only, and shall be duly delivered up to the said Governors or other of their Officers or Agents...without any waste, spoil or injury thereto.54 By protecting their monopoly, the company criminalized the one activity ~ barter — that could have given its servants a certain degree of independence. The independent mobility of servants was not allowed; however, the company took care to engage servants for "the Department generally," ...that they be subject to the inconvenience, or have the benefit of being moved about or transferred from one part of the country to the other at pleasure....55 Regulation of the labour force was further guaranteed by the terms of release: servants were required to give notice "one year or upwards before the expiration of the said term...of his intention to quit the service," and upon doing so were required to leave the company's territories.56 In this way the company assured itself of a predictable labour supply and rid Itself of potential competition. The HBC retained the right to dismiss any of its employees from their service and imposed a penalty amounting to a year's wages for desertion, neglect or any 44 failure to discharge the proper duties. From this penalty, the contract stipulated, "there shall be no relief either in law or in equity."57 In addition to the formal means of regulation which the HBC had at its disposal, its corporate organization provided an informal, but immediate and palpable framework that constrained its labourers' behaviour. Centralization and hierarchy were the two chief characteristics of this organization following its merger with the North West Company in 1821. While ultimate control remained in London with the Governor, Deputy Governor and Committee of seven directors, the company's North American "field structure" became increasingly centralized, particularly under the administration of George Simpson (1820-1860), Gover-nor-in-Chief of all the HBC territories in North America.58 The company's territories were organized into four departments, the affairs of which were overseen by the Governor and the company's chief factors at the annual meeting of the Council of the Northern Department. The dominance of the Council, according to Frederick Merk, signalled the end of an era of aggressive and undisciplined individualism that had characterized the pre-1821 period of competition between the HBC and the North West company: The old semi-feudal freedom and individualism of the fur trade had become a thing of the past; "wintering partners" were no longer, as ln the days of the North West company, "lords of the lakes and forests." They had become cogs in an efficient machine, the levers of which were in the firm grasp of the Governor of the Northern Department of Rupert's Land.5 9 The potential for regulation offered by the centralization of the fur trade under Simpson was reinforced by the company's occupational structure, which reflected its belief in the stabilizing and ordering powers of hierarchy.60 45 Employees were of three types: commissioned officers, clerks and servants. Servants comprised the bulk of the company's employees, and included, in order of the "degrees which were impUcitly recognized," interpreters, mechanics, guides, steersmen, bowmen or boutes, fishermen, middlemen ("common boatmen"), and apprentices.61 For this group "promotion was naturally out of order, each man pursuing the vocation his abilities or training fitted him for."62 Clerks, like servants, were engaged by the company for a fixed number of years (usually five), but differed from servants primarily in their education.63 They were, as their occupation suggests, literate, and were employed in letter-writing and accounting. At the end of their five year apprenticeship they were eligible to be given the charge of less important and smaller posts, and could eventually be promoted to the ranks of the officer class.64 Despite the often similar social and economic circumstances from which the clerks and servants were drawn, "the lines between the different classes in the service were strictly drawn:" ....The clerks, even when in a subordinate position in an important establishment, sat at the officers' mess and, as a rule, had rooms in the same house. They were called gentlemen, and in letters were addressed as "Mr."65 The commissioned officers ~ the chief factors and chief traders — formed what Morice called "a veritable oligarchy."66 Although they too were engaged for a fixed period, officers held shares in the company — valued at an average of £350 each — (chief factors held two and chief traders one), thus tying them even more directly to the company's economic fortunes.67 By doing this, the company ensured the fiscal accountability of its officers. As a further check, the HBC held each of its officers responsible for all the goods sent to his post and for the wages 46 of the men In his charge.68 Every year each post turned in accounts for every man in the company's employ and took an Inventory. The results of these were used as a guide for apportioning provisions and goods for the following season; thus, a mistake or a lack of productivity by the officer in charge could have far-reaching, as well as immediate, implications for the profitability of his post and the size of his own purse.69 In addition to the wages and greater responsibilities of the officer class, a variety of symbols and ritual display also served to delineate in a very tangible way the company's occupational hierarchy. Dress was an important means of distinction, as clerk, and eventually chief trader J.W. McKay's description of a chief factor illustrates: This exalted functionary was lord paramount; his word was law; he was necessarily surrounded by a halo of dignity, and his person was sacred, so to speak. He was dressed every day in a suit of black or dark blue, white shirt, collars to his ears, frock coat, velvet stock and straps to the bottom of bis trousers. When he went out of doors he wore a black beaver hat worth forty shillings. When travelling in a canoe or boat, he was lifted in and out of the craft by the crew; he still wore his beaver hat, but it was protected by an oiled silk cover, and over his black frock he wore a long cloak made of Royal Stuart tartan lined with scarlet or dark blue bath coating. The cloak had a soft Genoa velvet collar, which was fastened across by mosaic gold clasps and chains. He had also voluminous capes.70 Such sartorial splendour was impossible for the company's servants who were issued "2 striped cotton shirts and two yards of common cloth."71 In fact, dress was considered so effective in eliciting respect and maintaining order that in 1825 Governor Simpson wrote to the Governor and Committee in London, requesting Your Honors permission to introduce an uniform to be worn by every person coming under the denomination of Gentleman both in the Honble Coys Sea and Land Service,...The object for suggesting this 47 uniform are that it will add to the respectability of the Service in a certain degree in the estimation of our Servants the Natives & Strangers, That it will tend to introduce a certain Esprit du Corps which is much required....72 The physical space of the company's posts was also apportioned in a manner which reflected its strict occupational hierarchy. The most significant building at HBC posts was the officers' residence. Usually the largest building on the site, the officers' residence, or "Big House," as it was called at Fort Langley, dominated the landscape, its whitewash, trim, twelve windows, wide sills and hipped roof setting it apart from the post's other unpainted and otherwise unadorned buildings. At Fort Langley the Big House was situated at "the back of the fort on an upward incline from the river [the Fraser] provid[ing] a view of the river and McMillan Island directly in front of the fort." Its importance was further accentuated because visitors had "to walk the length of the fort square before reaching the Big House."73 Servants, on the other hand, lived communally in barracks, the exteriors of their dwellings almost indistinguishable from the warehouses and barns that comprised the rest of the post's structures. The interior social space of the officers' residence was divided into private quarters for the use of the Chief Factor and his subsidiary officers and a more communal ceremonial space used for dining. Dinner was an occasion to display status publically, as Thomas Jefferson Farnham's 1839 description of the dining hall at Fort Vancouver demonstrates: The dining room is a spacious room on the second floor, ceiled with pine above and at the sides. In the south-west corner is a large close stove, giving out sufficient caloric to make it comfortable. At the end of a table twenty feet in length stands Governor McLaughlin [sic, Mclaughlin], directing guests and gentlemen from 48 neighbouring posts to their places, at distances from the Governor according to their rank in the service. Thanks are given to God, and all are seated. Roast beef and port, boiled mutton, baked salmon, boiled ham; beets, carrots, turnips, cabbage and potatoes, and wheaten bread, are tastefully distributed over the table among a dinner-set of elegant queen's ware, burnished with glittering glasses and decanters of various-colored Italian wines. Course after course goes round, and the Governor fills to his guests and friends; and each gentleman in turn vies with him in diffusing around the board a most generous allowance of viands, wines, and warm fellow-feeling. The cloth and wines are removed together, cigars are lighted, and a strolling smoke about the premises, enlivened by a courteous discussion of some mooted point of natural history or politics, closes the ceremonies of the dinner hour at Fort Vancouver.74 The arrivals and departures of chief factors and other persons of importance were also occasions for ritual display. McKay explained that "salutes were fired on his departure from the fort and on his return,"75 while Archibald McDonald provided this 1828 description of George Simpson's arrival at Fort St. James: The day as yet being fine, the flag was put up; the piper in full Highland costume; and every arrangement was made to arrive at FORT ST. JAMES In the most imposing manner we could, for the sake of the Indians. Accordingly, when we came within about a thousand yards of the establishment, descending a gentle hill, a gun was fired, the bugle sounded, and soon after, the piper commenced the celebrated march of the clans "Si coma leum cogadh na shea," (Peace: or War, if you will otherwise.) The guide, with the British ensign, led the van, followed by the band; then the Governor, on horseback, supported behind by Doctor Hamlyn and myself on our chargers, two deep; twenty men, with their burdens, next formed the line; then one loaded horse, and lately Mr. McGillivray (with his wife and light infantry) closed the rear. During the discharge of small arms and wall pieces from the Fort, Mr. Douglas met us a short distance in advance, and in this order we made our entree Into the Capital of Western Caledonia.76 But as McKay noted, while "All this ceremony was considered necessary; it had a good effect on the Indians; it added to his [the chief factor's] dignity in the 49 eyes of his subordinates," it "sometimes spoiled the chief factor."77 The ceremony also created tensions between and among the different classes of employees, and led Governor Simpson to report in 1822 that a considerable degree of reserve approaching to coolness appears to exist between the Chief Factors and the Chief Traders, arising, in my opinion, from the circumstances of the former being desirous to make a wider distinction in the rank than is either necessary or proper.78 Provisions were also a source of distinction between the company's employees. The officers' "roast beef and port, boiled mutton, baked salmon, and boiled ham" contrasted markedly with the servants' allowance of "3 lb. of Salt fish and 2 lb. of potatoes" which was the prescribed "dietary of the Country for the companys establishments west of the Mountains."79 These examples convey important messages about the nature of every day life in the fur trade. The ordered and hierarchical nature of post society contributed to the regulation of the labour force by reinforcing the authority of company officers and by emphasizing the proper place of labouring men. Both Farnham's and McKay's descriptions are noteworthy for their emphasis on rank. In the first, "guests and gentlemen" were seated "at distances from the Governor according to their rank," and in the second, the horsed Simpson, preceded only by a piper and the British ensign, led a group of mounted and provisioned attendants who were arranged in an orderly fashion. As well, costume served to segregate the company's officers. It was a direct badge of importance in the case of McKay's chief factor, and in Simpson's case "the piper in full Highland costume" set him off from the others in his party. Horses were also important bracketing 50 devices. From the lofty height of a company charger, HBC officers commanded a wider view of the landscape — commensurate, perhaps, with their status in the company, which integrated them more intimately into the larger trans-Atlantic world of the fur trade. Mounted, the company's field officers gazed down — both actually and symbolically — at their inferiors. McLaughlin's position at the head of the Fort Vancouver dining table was also revealing. It underscored his position as head of the establishment as well as the paternal role he occupied with respect to his men. The HBC's officers did often act as parents, acting as providers, meting out punishment and attempting to regulate the conduct of their charges. Corporal punishment, the final means that the company used to regulate its labour force, was in many ways a natural outgrowth of both the paternal relationship that existed between HBC officers and servants and the isolated geographic context in which disputes occurred, which encouraged local and immediate solutions to problems. The company's treatment of its workers was also sanctioned by the use of corporal punishment in English criminal law as well as being informed by more general attitudes toward the labouring classes and ethnic prejudices. Rough treatment at the hands of HBC officers was the subject of much complaint. Though Chief Trader James Douglas admitted in 1838 that "the most unpleasant of our duties is the inforcement [sic] of order," he defended the use of "strong measures in repressing insolence and arresting the dangerous progress of Insubordination," because the company had to deal with a class of men with whom obedience is the result, neither of upright principle, nor the dread of legal penalties; but, in almost every case,...from a high degree of respect for their officers.80 51 Other contemporary commentators ascribed the "hard usage" of the company's servants to the "autocratic" nature of HBC officers and their tendency to make status distinctions.81 For instance, "Irascible" William Thew of Fraser Lake "was too prone to believe a gentleman against a plebian," and often beat his servants cruelly when they complained.82 These status distinctions were based on the company's assumptions about the nature of their workforce. Labouring men had to be taught how to work and, in Governor George Simpson's estimation, needed to be "managed" and "moulded" into industriousness. As such, the company preferred to engage young men. Older servants, he contended, cannot shake off their indolent and luxurious habits, whereas by good management we can mould young men to our wishes with little difficulty. But it is absolutely necessary that they be stout and healthy as weak and puny men are not to us worth the provisions they consume.83 Ethnic stereotypes also influenced the company's treatment of its labourers. The HBC considered Orkneymen "a close, prudent, quiet people, strictly faithful to their employers," "avaricious," and who acted with great "propriety" around the native population. French Canadians, on the other hand, were "a volatile and inconsiderate race of people, but active, capable of undergoing great hardship and easily managed." Red River Metis were a cheap source of labour and an effective one, but only if they were introduced into the service "at a sufficiently early period of life." Otherwise, they tended to be of "changeable disposition and unsteady habits." Such attitudes were encapsulated in Simpson's remarks about the company's methods of disciplining its workers. Whereas European labourers "are 52 not accustomed to receive corporal chastisement and we would not consider it would be proper to introduce it," he wrote. with Canadians it is different; they stand more in awe of a blow than a fine, and altho' we reprobate this mode of discipline generally and discountenance it as much as possible it is nevertheless highly necessary on extraordinary occasions.84 Despite these sentiments, in an 1853 letter to Donald Manson, chief factor in charge of New Caledonia, Simpson made his disapproval of such attitudes clear. Charges of ill-treatment continued to surface, providing George Simpson with "ample evidence" of "a system of 'club law."1 We duly appreciate the necessity of mamteining discipline and enforcing obedience; but that end is not to be attained by the display of violent passion and the infliction of severe and arbitrary punishment in hot blood. When a servant is refractory or disobeys orders he should be allowed a full hearing, his case examined fairly and deliberately, and if guilty, either taken out to the depot, put on short rations or under arrest—in fact, almost any punishment rather than knocking about or flogging.85 As should be apparent by the examples scattered in this chapter, there was little evidence to show that Simpson's calls for the fair and deliberate examination of misconduct were heeded. Dispute resolution in the fur trade period continued to be characterized by "a system of violence" rather than peaceful remedy. We are traders, and apart from more exalted motives, all traders are desirous of gain. - Chief Factor John McLaughlin86 The international staple trade in furs, and later in gold, brought both men and the structures of government to British Columbia. If economic activity provided the region with its raison d'etre, it also profoundly shaped the nature of 53 law there. From the beginnings of the European presence ln British Columbia the regulation of behaviour was intimately associated with securing the gain that people like Fort Vancouver Chief Factor John McLoughlin sought. The fur trade, like other commercial enterprises, required a reliable and well-disciplined labour force if it wanted to succeed. The context in which the HBC's servants worked made the problem of regulation difficult, however. Not only were the formal institutions of dispute resolution far-removed from the isolated reaches of most British Columbian posts, but that isolation and the harsh environment in which the company's servants worked were themselves the causes of discontent and disorder. Nevertheless, this chapter has presented evidence that indicates the company did enforce its strictures on private trading and other types of behaviour it deemed threatening to its monopoly and profits. Apart from the imperial statutes that made formal provision for the resolution of disputes in British Columbia, the company's employees were bounded by the terms of their contracts which made them entirely dependent upon the HBC for food, shelter, clothing and wages. Once engaged in the company's service, servants were subtly constrained by the HBC's administrative organization which enveloped them In a web of ordered authority and a visibly structured hierarchy. As well, they were subject to the less subtle and certainly more painful authority that came from "the use of the lash and cutlass, supported by the presence of the pistol."87 54 Though it was a highly specialized fragment of European society, the Hudson's Bay Company established what would be a long association between law and commercial capitalism in British Columbia. 55 NOTES 1. In 1849 the HBC became the proprietor of the newly-formed colony of Vancouver Island, hence the end-date. Yet the mainland remained a fur trade preserve of the company until it too became a colony In November 1858. 2. Hamar Foster, "Long-Distance Justice: the Criminal Jurisdiction of the Canadian Courts West of the Canadas, 1763-1859," American Journal of Legal History 34(1990): 1-48; and "Sins Against the Great Spirit: The Law, the Hudson's Bay Company, and the Mackenzie's River Murders, 1835-1839," Criminal Justice History ll(1990):23-76. 3. "An Act for extending the Jurisdiction of the Courts of Justice in the Provinces of Upper and Lower Canada, to the Trial and Punishment of Crimes, and Offences within certain parts of North America adjoining to the said Provinces" (1803), 43 Geo. Ill, c. 138; and "An Act for Regulating the Fur Trade and establishing a Criminal and Civil Jurisdiction within certain parts of North America" (1821), 1 & 2 Geo. IV, c. 66. 4. Foster, "Long-Distance Justice," 48. 5. Hudson's Bay Company Archives (hereafter HBCA) — National Archives of Canada (hereafter NAC). MG 20. reel HBC 3M44 or 45, D. 4/94 fo. 10. Governor George Simpson—Official Reports to the Governor and Committee of the Hudson's Bay Company. Simpson to the Governor and Committee, Fort Vancouver, 1 March 1829. 6. Simpson to William Connolly, York Factory, 9 July 1827, HBCA-NAC. MG 20 D. 4/90 fo. 106. 7. John Tod. History of New Caledonia and the Northwest Coast (Victoria, 1878), H.H. Bancroft Collection, TS. NAC. MG 29 C15, v. 3, c-27, 40. 8. Simpson to the Governor and Committee, York Factory, 9 July 1827. HBCA-NAC. MG 20 D. 4/90 fo. 106. 9. Simpson to the Governor and Committee, Fort Vancouver, 1 March 1829, HBCA-NAC. MG 20 D. 4/94 fo. 7. 10. W. Stewart Wallace, ed. John McLean's Notes of a Twenty-Five Years Service tn the Hudson's Bay Territory fToronto, 1932), 144. 11. W. Kaye Lamb. "Five Letters of Charles Ross, 1842-44." British (Columbia Historical Quarterly 7(1943): 109. 56 12. Simpson to the Governor and Committee, Fort Vancouver, 1 March 1829, HBCA-NAC. MG 20 D. 4/94 fo. 9. 13. Ibid., fo. 7. 14. Wallace, ed., 141. 15. Simpson to the Governor and Committee, York Factory, 10 August 1824, HBCA-NAC. MG 20 D. 4/87 fo. 45-46; Simpson to the Governor and Committee, York Factory, 1 September 1825, MG 20 D. 4/88 fo. 59; Minutes of Council held at York Factory Northern Department of Rupert's Land, 2 July 1825, MG 20 D. 4/88 fo. 104; and Morice, A History of the Northern Interior of British Columbia (Toronto, 1907), 138. 16. Simpson to the Governor and Committee, Fort Vancouver, 1 March 1829, HBCA-NAC. MG 20 D. 4/94 fo. 11. 17. Morice, 262-271. 18. Morice, 181; Archibald McKinlay, Narrative of a Chief Factor of the Hudson's Bay Company (Victoria, 1878), TS. NAC. MG 29 C15 H.H. Bancroft Collection, v. 3, c-25, 11-18; Sir George Simpson, Narrative of a Journey Round the World, During the Years 1841 and 1842, v. 1 (London, 1847), 155-157; and John Tod, History of New Caledonia and the Northwest Coast 7-13. 19. Morice, 212-217. 20. Ibid, 185. 21. Frederick Merk, ed., Fur Trade and Empire: George Simpson's Journal (Cambridge, Massachusetts, 1968) 338-339. 22. Simpson to the Governor and Committee, Fort George, 10 March 1825. HBCA-NAC. MG 20 D. 4/88 fo. 17. 23. Simpson to the Governor and Committee, Fort Vancouver, 1 March 1829, HBCA-NAC. MG 20 D. 4/94 fo. 29. 24. Simpson to the Governor and Committee, York Factory, 16 July 1822. HBCA-NAC. MG 20 D. 4./85 fo. 5. 25. McLoughlin to the Governor and Committee, Fort Vancouver, 6 July 1827. In E. E. Rich, ed., John McLaughlin's Letters from Fort Vancouver, First Series, 1825-1838 (London, 1941), 40. 26. Beaver to Benjamin Harrison, Fort Vancouver, 15 November 1836. Reports and Letters of Herbert Beaver (Reed College, 1959), 20. 57 27. Mclaughlin to the Governor and Committee, Fort Vancouver, 28 October 1832. In Rich, ed., John McLoughltn's Letters from Fort Vancouver, First Series, 1825-1838, 107-108. 28. Douglas to Archibald Barclay. Fort Victoria, 16 November 1850. In Hartwell Bowsfield, ed., Fort Victoria Letters, 1843-1851 (Winnipeg, 1978), 130-131. 29. Innis, The Fur Trade tn Canada, 313. 30. Douglas to Archibald Barclay, Fort Victoria, 23 November 1851. In Hartwell Bowsfield, ed.. Fort Victoria Utters, 1846-1851 (Winnipeg, 1979), 230-231. 31. Yale to Simpson, 22 October 1852; cited in Richard Somerset Mackie, "Colonial Land, Indian Labour and Company Capital: the Economy of Vancouver Island, 1849-1858." University of Victoria M.A. thesis (history), 1984, 89. 32. "Bye-Laws." HBCA-NAC. MG 20. A. 37/41 fo. 7. 33. Fort Kilmaurs Journal, March-June 1826. Entry for 10 March 1826. NAC. MG 19 D8. 34. Joseph William McKay. Recollections of a Chief Trader in the Hudson's Bay Company (Fort Simpson, 1878), TS. H.H. Bancroft Collection. NAC. MG 29 C15, v. 3, c-24, 14. 35. Columbia Mission. Fifth Report of the Columbia Mission, 1863, "Extracts from the Bishop's Speeches," 21-22. 36. McKay, 14. 37. The other was the use of liquor. Simpson to the Governor and Committee, York Factory, 1 September 1825. MG 20 D. 4/88 fo. 60. 38. Archibald McDonald. Journal of the Hudson's Bay Company kept at Fort Langley, 103-104. 39. Servants' Character and Staff Records, 1832. MG 20 A. 34/2 fo. 26. 40. Mclaughlin to Simpson, Fort Vancouver, 16 March 1831. In Rich, ed., John McLoughlin's Letters from Fort Vancouver, First Series, 1825-1838, 227. 41. Servants' Character and Staff Records, 1832. HBCA-NAC. MG 20 A. 34/1 fo. 106. 42. Simpson to McLoughlin, York Factory, 9 July 1827. HBCA-NAC. MG 20 D. 4/90 fo. 87. 58 43. Beaver to Benjamin Harrison, 10 March 1837. Reports and Letters of Herbert Beaver, 36-37. 44. Sections V and VI. 45. Foster. "Sins against the Great Spirit." 46. James Edward Fitzgerald. An Examination of the charter and proceedings of the Hudson's Bay Company, with Reference to the Grant of Vancouver's Island (London. 1849). 177-178. 47. Select Committee Report on the Hudson's Bay Company, testimony of Sir George Simpson, 26 February 1857, responses to questions 1018 and 1020, 59. 48. Ibid., questions 1393 to 1401, 75. 49. Ellice's son, Edward Ellice, and Robert Lowe were Ellice Senior's allies on the committee. When asked "how a free-trade liberal could defend monopoly,...Ellice answered that monopoly could never be defended when an alternative existed. Looking over his company's holdings, he named Vancouver Island as a place where an alternative did exist. He thought Rupert's Land a different situation entirely....[H]e gave a dismal account of the present state and the future prospects of the settlement along Red River. He said that settlers would never flock in great numbers to the lands south of Lake Winnipeg so long as better land remained unclaimed in Minnesota to the south or Upper Canada to the east. Hardy souls who did venture into company territory along the Red River would find that their only practical route of communication with the outside world would be through the United States. He warned that if Canada undertook to administer the region, she would soon tire of the expense and ask to be relieved. If Britain decided instead to set the region up as a separate colony, then the taxpayers of Britain would be asked to make an unprofitable and dangerous investment....Ellice drew the conclusion that however much the continuance of the company's monopoly might violate the abstract principles of political economy, that monopoly did, nevertheless, protect the interests of British subjects and keep the peace in British North America [James Winter, Robert Lowe (Toronto, 1976) 122] For more information on Ellice, see James M. Colthart, "Edward Ellice," Dictionary of Canadian Biography, (Toronto, 1976) v. 9. 233-239. 50. Select Committee on the Hudson's Bay Company. Testimony of The Right Hon. Edward Ellice, MP, 23 July 1857; responses to question 5889 [338-339] and 6014 [348]. The act, Ellice noted, "...only gave to the Crown and the Canadian authorities power to appoint justices to bring parties within the jurisdiction of the courts in England or Canada, which 59 power they never have exercised by the appointment of any justice. I put in those clauses myself, in order that the Crown or Canada might have the power of appointing Justices under it; but it has never appointed any, therefore the clause is taoperatrve....Sending them [the accused] to Canada depends, I believe (I have not looked at the Act latery), upon the requisition of the authorities in this country [Great Britain] so to send them. There is nothing imperative in the Act of Par-liament requiring the company to send for adjudication of anything within our own territories." 51. Hamar Foster, 'Theoretical Justice:" paper presented to the 1986 BC Studies Conference, Victoria, B.C. 52. The following is an example of a contract of engagement [Servants' Contracts. HBCA-NAC. MG 20, reel 404 A. 32/37, fo. 52 (Charles LaFleur).] AN AGREEMENT made this day of in the year one thousand eight hundred and between aged years, formerly of the Parish of i n t h e County of of the one part, and the Governor and Company of Adventurers of England, trading into Hudson Bay, represented by of the other part as follows. The said hereby contracts and agrees to serve the said Company in North America in the capacity of for the term of yas to be computed from and for such further term as hereinafter mentioned, and devote the whole of his time and labour in their service and for their sole benefit and that he will do his duty as such and perform all such work and service, by day or by night, for the said Company as he shall be required to do, and obey all orders, which he shall receive from the Governors of the Company in North America, or other their Officers or Agents for the time being; and that he will with courage and fidelity in his said station, in the said service, defend the property of the said Company and their Factories and settlements; and will not absent himself from the said service, nor engage, or be concerned in any trade or employment whatsoever, except for the benefit of the said Company and according to their orders. And that all goods obtained by barter with the Indians or otherwise, which shall come to the hands or possession of the said shsi be held by him for the said Company only, and shall be duly delivered up to the said Governors or other their Officers or Agents for the time being, without any waste, spoil or injury thereto, and in case of any wilful neglect or default herein, he shall make good to the said Company all such loss or damage as they shall sustain thereby, to be deducted out of his wages. And that the said will faithfully obey all laws, orders and regulations established or made by the said Company for the good government of their settlements and territories; and all times during the residence of the said in North America, he will defend the rights and privileges of the said Company and aid and support their 60 Officers and Agents In the utmost of his power; and the said further engages and agrees that in case he shall omit to give notice to the Governor or Officers of the said Company in North America, one year or upwards before the expiration of the said term of years, of his intention to quit their service and return to then that he hereby promises and engages to remain one year longer upon the like terms as are contained in this contract; And the said on behalf of the said Company hereby engages, That upon in like manner as aforesaid, but not otherwise; the said shall recdve from the said Company after the rate of per annum, to commence on and be computed from aforesaid and provided always, and it is hereby expressly agreed between the said parties hereto, that it shall be lawful for the Governor or other Officers or Agents of the said Company in North America, at any time during the said term of yeas or such additional term as aforesaid, to dismiss the said from their service and direct his return to in such case his wages are to cease from the day of [his dismissal] and further that in case the said sM at any time desert the service of the said Company, or otherwise neglect or refuse duly to discharge his duty as such hired Servant as aforesaid, then he shall forfeit and lose all his wages, for the recovery whereof, there shall be no relief either in law or in equity. In witness whereof the said parties have hereto set their hands at Signed in the presence of 53. See previous note. 54. Ibid. Servants' wages would be deducted in the case of any damages. 55. Simpson to John McLoughlin, York Factory, 9 July 1827. HBCA-NAC. MG 20. D. 4/90 fo. 102. 56. Ibid. 57. Ibid 1 58. Frederick Merk, ed. Fur Trade and Empire, "Introduction to the First Edition," xxxviii-xlL For more information on Sir George Simpson see John S. Galbraith, "Sir George Simpson," 58. Dictionary of Canadian Biography, (Toronto, 1985), v. 8, 812-819. 59. Merk, Fur Trade and Empire, xlvi. 61 60. On the occupational hierarchy see Sylvia Van Kirk, Many Tender Ties: Women in Fur Trade Society, 1670-1870 (Winnipeg, 1980), 10; Jennifer Brown, Strangers in Blood: Fur Trade Families in Indian Country (Vancouver, 1980), Chapter Two; and John W. Chalmers, "Social Stratification in the Fur Trade," Alberta Historical Review Winter 1969, 10-20. 61. Morice. 104. 62. Ibid. Interpreters received £25 per year, mechanics, guides, steersmen, bowmen, middlemen and labourers received £17 per year. See Merk, Fur Trade and Empire, "Introduction to the First Edition," xlii-xlii; this, however, differs from what is recorded in the Northern Department's Minutes of Council as the suggestion of London: Steersmen and bowsmen £22 10s. Ordinary labourers £ 15 For Canadians, Bowsmen 600 livres "Montreal money" middlemen 400 " Tradesmen and mechanics were paid "according to merit," but could receive no more than £ 4 0 per year. Interpreters were paid "in proportion to ability and steadiness" to £50 per year. [Flerning, ed., Governor and Cornmittee to Simpson, Hudson's Bay House, London, 27 February 1822, 305-306.] These suggestions were, for the most part complied with, although Simpson did increase the wages of the Company's Canadian servants, noting the "very serious risk of Mutiny" which may have followed the application of the wage scale suggested. In the Columbia, wages were as follows: Boutes Out & in 1200 livres Milieu Do. 900 " Boutes resident 1000 " Milieu Do. 700 " In addition, boutes and received one 3 point blanket, one two and half point blanket, 2 striped cotton shirts, two yards of common cloth and nine pounds of tobacco. Milieux received the same as boutes, but only three pounds of tobacco, [/bid., Simpson to Governor and Committee, 31 July 1822, 346-347]. In 1824 a new wage scale was instituted which recognized, through a differential scale, the very different conditions under which the Company's employees worked. In New Caledonia and the Columbia the following wages existed [Ibid, Minutes of Council 1 July 1824, 65-66]: New Caledonia: Boutes £27 Mileux £22 Columbia: 62 Boutes £22 Milieux £17 In 1836 wages for New Caledonia were adjusted again (check the intervening years!) [Minutes of Council, Northern Department 21 June, 1836, in E.H. Oliver, ed. The Canadian North-West (Ottawa, 1914), v. 2, 749]: New Caledonia, Millbank, Nass and Stlkine: Boutes £24 Middlemen £19 (note: "boutes" were the "steersmen and bowsmen of canoes", and milieux were middlemen. See ibid.). 63. Clerks received £20 in their first year, £5 more in the two subsequent years of service and £10 more in the last two years of their apprenticeship. "If they behaved satisfactorily then £75 was given for a term of three years. This again was increased to £100 per year." [See Roderick Finlayson, The History of Vancouver Island and the Northwest Coast (Victoria, 1878). H.H. Bancroft Collection. NAC. MG 29 C15, v. 2, c-15, 36] Salaries of clerks ranged from £50 to £100 in the mid-1830s. See Morice. 105. 64. After their apprenticeship clerks were graded into four classes, "according to their Eduction and abilities." In 1822 clerks' wages were set as follows [Fleming, ed. Minutes of Council, Northern Department, "Simpson to the Governor and Committee, 31 July 1822, 346-347.]: 1st class £100 2nd class £ 75 3rd class £ 60 4th class £ 40 65. Ibid, 104 and 106. 66. Ibid, 106. 67. Wallace ed., John McLean's Notes, 4-5. 68. Innis, The Fur Trade in Canada, 410-413. 69. Ibid, 318. 70. J.W. McKay, cited in Morice, 110. J.W. McKay was employed in the HBC's Vancouver Island posts of Fort Nanaimo and Victoria. There is no date given for his description of the chief factor (who, given the tartan, was probably John Stuart, the head of the New Caledonia district [see Shirlee Ann Smith, "John Stuart," Dictionary of Canadian Biography (Toronto, 1988), v. 7, 907-908]. McKay's description certainly fits with the assessment of Stuart given by Governor 63 George Simpson, who wrote In 1832 that although Stuart "had not the advantage of a good Education", but being studious improved himself very much and having a very retentive Memory is superficially conversant with many subjects. Is exceedingly vain, a great Egoist, swallowing the grossest flattery, is easily cajoled, rarely speaks the truth, indeed I would not believe him on Oath; lavish of his own Means, extravagant and irregular in business and his honesty is always questionable. [HBCA-NAC. MG 20. A 34/2 fo. 3. Servants' Character and Staff Records, 1832. Reel HBC 423] 71. Simpson to Governor and Cornmittee, 31 July 1822, in Fleming, ed. Minutes of Council, Northern Department, 346-347. 72. Simpson to Governor and Committee, York Factory, 1 September 1825. HBCA-NAC. MG 20, reel 3M43, D. 4/88 fo. 94-95. 73. MaryK. Cullen, The History of Fort Langley, 1827-96 (Ottawa, 1979) 100-101. 74. Thomas Jefferson Farnham, Travels in the Great Western Prairies, the Anahuac and Rocky Mountains, and in the Oregon Territory (New York, 1843), cited in John Warren Dease Papers, Burpee MS "The Columbia Journal of J.W.Dease, 1829, edited with notes by Lawrence J . Burpee," n.d.; note "A" to the entry for 1 November. 1829.NAC. MG 19 A22. 75. Morice. 106-111. 76. Malcolm McLeod, ed. Peace River: A Canoe Voyage from Hudson's Bay to the Pacific by Sir George Simpson in 1828. Journal of the Late Chief Factor Archibald McDonald, (Hon. Hudson's Bay Company), who Accompanied Him (Ottawa, 1872), 24. 77. J.W. McKay, cited in Morice. 110. 78. Simpson to Governor and Committee, York Factory, 1 September 1822. HBCA-NAC. MG 20, reel 3M42, D. 4/85 fo. 90. 79. James Douglas to Archibald Barclay, Fort Victoria, 16 November 1850. In Bowsfield, ed.. Fort Victoria Letters, 130-131. Servants could also be given (depending on where they were stationed) six pounds of fresh salmon or codfish and one and a half pounds of flour, or four dried salmon and two pounds of potatoes; or ten pounds of fresh salmon or codfish; or eight pounds of fresh venison, as their daily ration. In the Spokan district of the Columbia department, the style of life was such at some posts that it did not escape the notice of George Simpson, who noted in 1825 that 64 The good people of the Spokan District I believe of the interior of the Columbia generally have for a length of time shown an extraordinary predilection for European provisions without sufficiently considering the enormous cost.... [F]or several years past Five and sometimes Six Bouts have been sent and these principally loaded with Eatables Drinkables and domestic concerns....The articles of provisions and Luxuries are In themselves at Prime cost of little value but when the expence of conveying them to their destinatlons is taken into account their acquired value becomes a matter of serious consideration....I do not know any post of the Country on the East side of the Mountains that offers such resources in the way of living as Spokan District; there is an abundance of fine Salmon besides a variety of other Fish to be had quite at home, plenty of Potatoes if trouble is taken to raise them, Game if required in short every thing in the way of necessaries that an inhabitant of the Indian Country has a right to look for; why therefore squander large Sums of money in this manner? [Simpson to Governor and Committee, Fort George, 10 March 1825. HBCA-NAC. MG 20, D. 4/88, fo. 11,] 80. Douglas to the Governor and Committee, 18 October 1838, in E.E. Rich, ed., John McLaughlin's Letters from Fort Vancouver, First Series, 1825-1838, 247. 81. "Hard usage" from Mclaughlin to the Governor and Committee, 20 November 1845, in E.E. Rich, ed. John McLoughlin's Letters from Fort Vancouver, Third Series, 1844-1846 (London, 1944), 100. "Autocratic officers" from Morice, 112-113. 82. Peter Skene Ogden. quoted by Morice, 200-207. 83. Simpson to Governor and Committee, York Factory, 10 August 1824, MG 20 D 4/87 fo. 24-25. 84. Simpson to the Governor and Council, 23 June 1823, cited in R.H. Fleming, ed., Minutes of Council, Northern Department, xxiv. 85. Simpson to Donald Manson, Norway House, 18 June 1853, cited in Morice, 281-282. 86. McLoughlin to the Governor and Committee, Fort Vancouver, 15 November 1843. In E.E. Rich, ed., The Letters of John McLoughlin from Fort Vancouver to the Governor and Committee of the Hudson's Bay Company, Second Series, 1839-44 (London, 1943), 118. 87. Beaver to Benjamin Harrison, Fort Vancouver, 15 November 1836, Reports and Letters of Herbert Beaver, 1836-38,20: 65 CHAPTER TWO LAW AND AUTHORITY ON VANCOUVER ISLAND, 1849-1866: OF PASTORS, PIGS AND PETITIONS In 1865, English adventurer and journalist Charles Aubrey Angelo recalled his introduction to Vancouver Island during the Fraser River gold rush in 1859 with a bitterness suggestive of deeper tensions in the young colony. "In my unsophisticated innocence," he wrote, "I foolishly imagined that I was entering a Colony governed by British Institutions." but I was quickly undeceived: it was far worse than a Venetian oligarchy, ~ a squatocracy of skin traders, ruled by men whose life had been spent in the wilderness in social communion with Indian savages; their present daily occupation being the sale of tea, sugar, whisky, and the usual et ceteras of a grocery, which (taking advantage of an increased population) they sold at the small advance of five hundred per cent.;....I found these "small fry" claiming under some antediluvian grant, not only Vancouver Island, but a tract of country extending from the Pacific to the Atlantic Ocean! The onward march of civilization was checked And a country which might now be teeming with a hardy, industrious population, was crushed and blasted, by a set of unprincipled autocrats, whose selfish interests, idle caprices, and unscrupulous conduct, sought to gratify their petty ambition by trampling on the dearest rights of their fellow man.1 Angelo's sentiments were symptomatic of the bitter debate over the constitution of legitimate political authority in Vancouver Island following its creation in 1849 as a proprietary colony of the Hudson's Bay Company. At a time when laissez-faire principles informed much of British policy and suffused public sentiment, the HBC's position as a monopolistic business enterprise and a colonial proprietor rested on insecure foundations. 66 For five years, from 1849 to 1854, Vancouver Island's independent settlers (Independent, that is, from the HBC) voiced their opposition in a series of petitions to the company's attempts to turn its economic monopoly into a political and social one. Of particular concern to the independent settlers was the HBC's use of the law and the courts to buttress its position. To the independents, not only were the colony's land laws detrimental to its settlement and economic development, but they also had the effect of extending the HBC's rigid occupationally-based social hierarchy over the island and, because of the land-based franchise, of concentrating political power in company hands. In framing the colony's courts, the HBC also drew on its fur trade experience. Equating law with the regulation of its work force, the company appointed men who had experience in managing large numbers of labourers as Justices of the peace: its farm bailiffs. These appointments did not attract much attention, but when Fort Victoria Chief Factor and Vancouver Island Governor James Douglas named his brother-in-law and the manager of the company's coal mines Chief Justice of the Supreme Court in 1853 the independents took action and petitioned the Colonial Office and the Queen for relief. The language of the rule of law and of laissez-faire economics informed and shaped the debate over political authority on Vancouver Island. Both the colony's land policy and the appointment of David Cameron compromised the idea that the law was above the arbitrary dictates and prejudices of men and served some loosely-defined human good. But overlaid on the independent settlers' concerns for the rule of law and their criticisms of HBC government on this basis was a 67 rejection of economic monopoly. The independents considered the political authority of the company illegitimate not only because its policies contravened the rule of law, but also because of the growing illegitimacy of monopoly in the Anglo-North American world of the mid-nineteenth century. The intersection of these two discourses ~ rule of law and laissez-faire economics — thus illustrates the continuing association of law, authority and capitalism in nmeteenth-century British Columbia. From the beginning, tensions existed between the island's de Jure civil authority and the de facto authority of the Hudson's Bay Company. Despite the arrival in March 1850 of a colonial governor unconnected with the HBC, effective control of Vancouver Island remained in the hands of the company. Richard Blanshard found himself both superfluous and unwanted from the moment he arrived. Like a poor relation, the inexperienced barrister found he was completely dependent upon the company's generosity. Food he received; but shelter proved a contentious issue throughout Blanshard's short tenure.2 When Blanshard arrived, he was forced to live aboard H.M.S. Driver because construction on a Governor's residence was unfinished. Though he was given a room at the Fort, Blanshard grew increasingly annoyed at his lack of appropriate lodging, interpreting it as a sign of his insignificance. By June the Governor was positively cranky, and informed Chief Factor James Douglas that he considered "the labour of a single man [on his "Cottage"]...a mere mockery."3 Blanshard's problems ran deeper than his petty exchanges with the HBC indicated. Although the Crown's representative of British authority in the colony, Blanshard was a ruler without 68 subjects. Though the new governor had jurisdiction in "the administration of civil government and military affairs,"4 he complained that "there [was] little indeed to do except settle disputes between representatives of the Company and their employees."5 Even in this capacity Blanshard was ineffectual. As the events at Fort Rupert in 1850 showed, the Hudson's Bay Company was a state within a state. With two parallel authorities in the colony, financing the construction of his cottage was to prove the least of his problems. In 1850, the "miserable affair" at Fort Rupert illustrated the degree to which company control and civil government were indistinguishable.6 Located on the northeast coast of Vancouver Island, Fort Rupert was a coal mining and a fur trade post. Like its other servants, Fort Rupert's miners were contracted by the Hudson's Bay Company; however, because they were skilled workers, the Ayrshire miners' contracts stipulated that their labour was to be confined to the diggings.7 They were not, like the company's other servants, subject to performing whatever task its employers might order. When the Fort's officers tried to make the miners do so, they promptly struck. Fearing a breakdown of authority in an area populated heavily by apparently "hostile" natives, Blanshard commissioned John Sebastian Helmcken, the company surgeon, as Justice of the Peace for Fort Rupert and sent him north.8 Shortly after Helmcken arrived, the bodies of three British seamen ~ deserters from the British barque England -- were discovered near the fort, murdered, it was presumed, by the neighbouring Newitty Indians. Unable to secure the cooperation of the servants at the fort, who charged the company with instigating the murders,9 or of its officers, who "asserted that [they] 69 owed no obedience except to the Hudson's Bay Company",10 Helmcken tendered his resignation.11 The episode, which ended relatively peacefully for the Europeans12, convinced Blanshard of "the impropriety of making appointments among the company's servants," who Even after retiring from the service...are in a great measure subject to the same influence as they receive certain allowances which may be forfeited if they act in any manner that is considered as prejudicial to the company.13 The situation Blanshard found himself in was unworkable, and it the wake of the Fort Rupert incident, he tendered his resignation in November, only nine months after his arrival.14 Blanshard's concerns about "the impropriety of making appointments among the company's servants" were echoed shortly after his resignation when the crown named Fort Victoria Chief Factor James Douglas the new governor of the colony. Fifteen independent settlers signed a petition protesting the appointment. "We and we alone represent the interests of the Island as a free and independent British Colony," they insisted. for we constitute the whole body of the independent settlers, all the other inhabitants being in some way or other so connected with and controlled by the Hudson's Bay Company.... We beg to express in most emphatlcal and plainest manner our assurance that impartial decisions cannot be expected from a Governor who is not only a member of the Company sharing in its profits, but is also charged as their chief Agent, with the sole representation of their trading interests in this Island and the adjacent coasts.15 Because the Hudson's Bay Company was pre-eminently a business enterprise the independent settlers assumed its actions would be motivated by self-interest. While this was rational behaviour for private companies and 70 Individuals, it was illegitimate for mid-nineteenth century governments. The role of government in a laissez-faire age was to provide a regulatory framework which would promote individual gain without impinging on the rights of others to do so. Monopolies and governments based on monopoly, like the proprietary government of Vancouver Island, were anathema to this view. According to the petitioners, under Hudson's Bay Company rule the welfare and prosperity of the colony and the petitioners themselves was compromised. There was no "security that the interests of the Hudson's Bay Company shall not be allowed to outweigh and ruin those of the colony in general."16 Even those closely associated with the company had doubts about is impartiality. "We are taught that a man cannot serve two masters," wrote Chief Factor Peter Skene Ogden, but their Honours are of a different opinion ~ vide Douglas' new appointment not only two but three: C.F. [chief factor] in the Fur Trade, Agent for the Puget Sound Coy. [the HBC's agricultural arm] and Gov. of Vancouver's Island; if there be not a clashing of interests In the management of these different Interests ~ I wonder}1 But motivated by its own concern for economy, and recognizing the fact that the HBC was the de facto authority on the Island for the majority of its inhabitants, the Colonial Office was unmoved. The colony's land laws and the appointment of David Cameron as Chief Justice were the next flashpoints of political discontent on the Island. These two problems and the petitions they spawned made explicit the issues at stake in the company's attempt to govern based on its corporate experience as a private monopoly. Those who signed the anti-land laws and the anti-Cameron petitions opposed the company because its policy decisions had the effect of turning its 71 economic monopoly into a political one, and in the process compromised the rule of law. The 1849 grant was conditional on the company's successfully colonizing the Island within five years.18 Retired company servants were an obvious source of prospective colonists, not only because the company would not have to bear the expense of conveying such settlers to Vancouver Island, but because their familiarity with the native population acted to safeguard the relatively peaceful relations between the two.19 Free grants of land like those given in the American territories were not used to attract settlers to Vancouver Island. Instead, the company embarked on a plan of systematic colonization guided and shaped by the ideas of Edward Gibbon Wakefield.20 Central to Wakefield's theory was the means by which colonial lands were disposed. The anaemic state of many English colonies was due to their abundance of land and their small population. These two factors resulted in a shortage of labour, as few colonists would choose to work the lands of others when they could so easily become their own masters. This labour shortage, in turn, would deter investment by monied individuals in the colonies, and thus was responsible for the slow development of commerce, as the capital accumulation necessary for the development of economies of scale was impossible. The solution, according to Wakefield, lay in balancing labour and land. By selling land at a "sufficient price," ~ that is, at a price low enough to attract prospective colonists, but high enough to prevent all from becoming independent land owners ~ the preconditions for successful colonization would be met.21 Moreover, Wakefield's plans for 72 systematic colonization had an element of social engineering. By replicating Britain's social hierarchy in her colonies social order would be assured. This was done by pricing lands on a sliding scale, each price corresponding to a different "class" of settler. The London Governors of the Hudson's Bay Company were taken by Wakefield's ideas and recommended them to James Douglas. "The object of every survey system of colonization," confided HBC Governor Archibald Barclay to Douglas in 1849. should be not to re-organize Society on a new basis, which is simply absurd, but to transfer to the new country whatever is most valuable and most approved in the institutions of the old, so that Society may, as far as possible, consist of the same Classes, united together by the same ties, and having the same relative duties to perform in one country as in the other. The Committee [of the HBC] believes that some of the worst evils that afflict the Colonies have arisen from the admission of persons of all descriptions; no regard being had to the character, means or views of the irnrnigrants. They have therefore established such condi-tions for the disposal of lands, as they trust will have the effect of introducing the just proportion of labour and capital, and also of preventing the ingress of squatters, paupers and land Speculators. The principle of Selection, without the invidiousness of its direct application, is thus indirectly adopted.22 Douglas was confident that "almost every one of the Company's labouring servants would also gladly avail themselves of the opportunity of settling on British Territory, and spending the declining years of life, under the protection of their native Flag," and because they were "a hardy tractable, laborious, class of men...they would certainly form an excellent nucleus for a new settlement."23 On Vancouver Island, land was divided into three classes, each reflecting a different 73 social class: town lots (£10), suburban lots (five acre sections at £15) and country lands (£1 per acre, with a minimum purchase of twenty acres).24 Political power was reserved for settlers who could afford to buy twenty acres of country land, and for those who aspired to hold office themselves, ownership of a minimum of 300 acres of country land was necessary. Given, as we saw in Chapter One, that the average wage of HBC labourers was £17 per year, while that of Company officers ranged from £100 for clerks to £360 for Chief Factors, effective power in the new colony mirrored the division of power in the HBC hierarchy. Thus, the replication of the social and corporate order of the Hudson's Bay Company was one of the animating principles of colonial land policy. Measured in terms of actual settlement, the company's scheme of systematic colonization was successful, with town and suburban lots and country lands being purchased by the appropriate ~ in Wakefieldian terms — social classes.25 If, however, the HBC's efforts at settling the Island are measured in terms of its success as a colonization scheme ~ that is, in terms of its success in attracting immigrants ~ then the assessment must be less favourable. For despite the Victorian optimism of Barclay and the Governors of the Hudson's Bay Company, the population of Vancouver Island grew slowly.26 Many attributed Vancouver Island's sluggish development to the high price charged for land, as the 1853 petition from the "landed proprietors and inhabitants of Vancouver Island" showed.27 "The attempt at colonizing Vancouver Island may, so far, be considered a failure," they wrote: 74 one principle cause of which is the high price charged for land, while in Oregon, but a few miles distant...the United States Government makes liberal gratuitous grants to actual settlers.28 Company land laws were squarely to blame for the "manifest hopelessness of its settlement within any reasonable period," rather than the colony's "natural properties." Vancouver Island's setters were not the labouring classes of England, whose numbers inspired Wakefield to formulate his scheme of systematic colonization. Rather, as the petitioners pointed out, and the company's land records indicate, those who purchased land in Wakefieldian proportions were already in the colony, brought there by the fur trade or by the company in its capacity as proprietor to work its farms. "Although there may be now fifty or sixty purchasers of land," they wrote, these persons were, almost without a single exception, previously upon the Island, or in the immediate neighbourhood, and connected strongly with it by their engagements in the service of the Hudson's Bay Company.29 To the petitioners, the only solution to the company's mismanagement and the progress of the colony was the intervention of the imperial government. There was more to the petitioners' concerns than just economic development. On Vancouver Island, Wakefield's plan had the effect of extending the company's rigid occupationally-based social hierarchy over the colony ~ something that the independent settlers thought they left behind when they emigrated from England. More importantly, however, land and political authority were linked. By controlling land alienation, the HBC also controlled political power. Land reform went hand-in-hand with political reform. Not only did the petitioners call for a reduction in the price of land to "no more than 10 s. per acre" 75 from £1, they also demanded a change in the franchise qualifications. If the petitioners had their way, electors would include "all persons possessed, for their own use and benefit, of land in the counties worth £10 sterling, or in the towns worth £20 sterling, or occupying houses paying rent to the amount of £10 sterling per annum." As a logical extension of these demands, the petition also contained a call for an elected Council and Assembly, as well as "reliable courts of justice." Although some company officials dismissed the land petition as the work of "two or three contemptible propagandists," the American press did not.30 The Olympia-based Columbian reprinted it along with an editorial in October 1853, and in doing so must have raised the spectre of American annexation in the minds of Douglas and the London Governors of the Hudson's Bay Company. "The language of the petition is very similar to that which our own immortal sires used in their beseeching through vain appeals to the same government," noted the Columbian. "When Great Britain shall turn her back on her natural-born sons, we will take them to ourselves, foster them as our own and the consequences be upon her head...American enterprise would thunder a welcome to the STATE OF VANCOUVER."31 David Cameron's appointment as Chief Justice of the newly-created Supreme Court came on the heels of the anti-land laws petition and sparked yet another round of petitioning. Cameron's appointment and the agitation that ensued was just the end of a series of smaller problems that plagued the construction of Vancouver Island's legal system, however, and which illustrate the difficulties the company encountered in trying to extend its corporate experience 76 Into the civil sphere. The limitations of company authority that were revealed in the course of the construction of the colony's courts did nothing to make the HBC's position as proprietor more palatable to the island's independent settlers. For not only was the company a monopoly ~ an illegitimate form of association in the mid-nineteenth century ~ but it also appeared to be inept when it came to administering the lawl Even before it was granted proprietorship of Vancouver Island, and through much of the colonial period, the HBC equated the institutions of the law with the regulation of labour. Although there is not evidence that they were appointed, the London Governors of the company put forward the names of fourteen HBC officers as "gentlemen...well-qualified to hold commissions of the Peace under the Act of 1st and 2d Geo. 4th ch 66" for Vancouver Island.32 Despite his difficulties with the company, and his warning that "to appoint [representatives of the HBC] magistrates would be to make them Judges in their own causes,"33 Governor Richard Blanshard's first civil appointment was to the HBC surgeon, John Sebastian Helmcken. The medical officer was made magistrate for Fort Rupert "as the miners and laborers there have shown a disposition to riot."34 The trend of appointing company officers to judicial positions continued under Governor and Chief Factor James Douglas. In March 1853 he named three company bailiffs ~ managers of the HBC's farms — justices of the peace.35 Kenneth McKenzie, bailiff of Craigflower Farm, and Thomas James Skinner, bailiff of Constance Cove Farm, were JPs for "the Peninsula", while the manager of Colwood Farm, Edward Edwards Langford, was given jurisdiction in Esquimalt. The JP for Metchosin, 77 Thomas Blinkhorn, was not an HBC employee, but did work as a bailiff on a 300 acre farm belonging to Captain James Cooper, formerly of the company's maritime service, then an independent merchant.36 In September, David Cameron, a manager of the company's collieries at Nanaimo and James Douglas' brother-in-law, was added to the colony's complement of Justices of the peace. The JPs held petty sessions on the first Thursday of each month, and a general session four times a year.37 Though there are few records of the proceedings of Vancouver Island's courts prior to 1858, those that have survived bear testimony to the accuracy of Richard Blanshard's early impression of the nature of legal activity in the colony.38 Most of the suits involved disputes between company employees: claims for wages, breach of contract, or desertion. Company servants could also be found on the criminal side of the early court's business, charged with assault or drunkenness.39 Though they appeared to be well-equipped to handle these cases, it soon became apparent that the Justice's Courts were neither sufficient nor competent to handle all the legal business of the colony. Although the English laws relating to Justices of the Peace were received in Vancouver Island in 1849 and were not amended prior to the appointment of the first JPs, the colony's magistrates appear, from the surviving court records, to have assumed wide-ranging powers inconsistent with their statutory jurisdictions and responsibilities.40 In June of 1853, for instance, Thomas James Skinner was convinced by an "American adventurer," Webster, to issue what amounted to an injunction to stop two ships from receiving spars at Sooke.41 Webster's motive in seeking this injunction was 78 to secure a monopoly on timber exports from Vancouver Island. After ordering the vessels to be released from custody and dissuading both masters of the ships in question from launching proceedings against his justice of the peace, Douglas chastised Skinner for his "rash and ill-considered" behaviour.42 His warning seems not to have had any effect, for in September of the same year Skinner awarded damages of $2213 and costs to the same Webster in another case against the Muir farnily of Sooke.43 Spurred on by his success, Webster launched yet another case against the Muirs, but left the colony when it became apparent that he would not receive as favourable treatment from the colony's new Supreme Court of Civil Justice as he had from Skinner. The establishment of the Supreme Court of Civil Justice of Vancouver's Island with David Cameron as its judge on 2 December 1853 was, as James Douglas wrote, a direct result of certain irregularities, in the practice of the Justices Court, arising from the inexperience of the Magistrates....It was therefore resolved to limit the Jurisdiction of the Justices Court in civil cases, to such simple matters as our Justices are competent to deal with....44 The jurisdiction of justices of the peace in civil matters was limited to cases involving sums up to £50, with all other cases falling under the jurisdiction of the superior court. Although the act establishing the Supreme Court was disallowed by the Law Officers of the Crown in January 1854, it is unclear whether this affected its operation.45 Certainly the colonists continued to consider David Cameron Vancouver Island's Chief Justice, though his appointment and the Supreme Court itself were not confirmed until April 1856. Though he had no formal legal training, Cameron drafted the rules and regulations governing the 79 Supreme Court, which gave it jurisdiction in civil matters as well as the power to sit as a court of appeal, bankruptcy, equity, probate and revision. These were passed by an Imperial Order-in-Council in February of 1857. Criminal jurisdiction was granted to the Supreme Court in April I860.46 The colonial government established an "Inferior Court of Civil Justice," designed to further limit the jurisdiction of the justices' courts in civil matters and in response to the "comparatively numerous" suits for "petty debts," in 1857.47 Essentially, this was a small debts court modelled on the English county courts as established by the 1846 Act for the More Easy Recovery of Small Debts and Demands in England.48 But unlike the situation in England, there was only one Inferior Court of Civil Justice, based in the main population centre of Victoria, and presided over by David Cameron. The Minor Offences Act, 1860 and the Vancouver Island Jury Act 1865 further modified the procedure of the inferior courts in order to accommodate the Island's transient and sparse population.49 The first act gave two justices of the peace the powers of justices sitting as a court of quarter sessions in criminal cases where a material witness was unable to wait until the next sitting of the court of quarter sessions. Furthermore, cases tried under the Minor Offences Act could be heard with a jury of eight, rather than twelve men. The Vancouver Island Jury Act amended the manner of taking verdicts In civil cases. Instead of unanimity, judges were authorized to accept verdicts passed by a majority of six eighths of the jury, given that the jury in question had been retired for a niinimum of three hours.50 In recommending the bill, Vancouver Island's Attorney General thought that "in so small a community as that of the 8 0 Q U E E N AND PRIVY COUNCIL GOVERNOR AND EXECUTIVE COUNCIL SUPREME COURT OF CIVIL JUSTICE 3 , b- c' c r- w- p > r DISTRICT COURTS 0 -COMMISSIONS FOR TRIAL-NISI PRIUS OYER AND TERMINER AND GENERAL GAOL DELIVERY JUSTICES' COURTS c r- C T a=appeal b=bankruptcy c=chancery cr=criminal cv=civll p=probate r=revlsion Figure 2-1: Vancouver Island's Courts, 1866 Showing routes of appeal and jurisdiction. 81 Colony where few individuals are absolutely unknown to each other" verdicts were harder to obtain. No doubt he was right: given Vancouver Island's factionalization.reaching any consensus must have been difficult. By far the most important act dealing with the inferior level of courts on Vancouver Island was the District Court Act, 1866. This act allowed for the creation of several "Inferior Courts of Civil Justice" ~ like the one established in Victoria ~ for the recovery of small debts. Each district court was presided over by one justice of the peace, whose jurisdiction was limited to cases involving sums up to $250. By 1866 Vancouver Island's court system looked like Figure 2-1. The evolution of Vancouver Island's courts is suggestive of the limitations of Hudson's Bay Company authority. The inability of the JPs to handle civil cases ~ something their HBC experience did not prepare them for ~ led directly to the formation of both the Supreme Court of Civil Justice and the Inferior and later, the District, Courts. Despite his comments about the incompetency of the bailiff-JPs, old HBC-hand and Governor James Douglas must have held fast to his belief that the authority conferred by the company could still be effective, because he named David Cameron to the superior court. Cameron was equally, if not more unqualified for the post than his brother magistrates. According to the independents, not only was he untrained in the law, but his "improperly close family connexion" with James Douglas and his "commercial situation as Clerk of the Honble Hudson's Bay Company's coal mines at Nanymo [sic]" also disqualified him for the office of Chief Justice. Cameron, wrote the Victoria-based British Colonist, i 82 Instead ofbelngversed in the profound commentaries...of Blackstone on the Common law, was -- so far as can be inferred by his occupation ~ only versed in the blackstone of the Nanaimo mines. Jefferies may have benefitted from the lucubrations of Coke the compeer of Bacon, but our Chief Justice possibly benefitted from the coke derived from coal.51 Governor Douglas's appointment of his brother-in-law and a former company employee did little to dispel the fears that Vancouver Island's proprietary government rested on a political monopoly as well as an economic one. Unlike the earlier conflict over the colony's land laws, however, Cameron's appointment struck a more direct blow to the idea of the rule of law. Given his past association with the HBC and his familial ties to the governor, each time Cameron took the bench his presence was a symbolic contradiction of the very notion of impartial justice. Moreover, the Chief Justice's occasional outbursts did not aid his own cause. Cameron, as a Colonial Office memorandum stated, "conducted himself on one occasion in Court, shortly after his appointment as J.P. in so disgraceful a manner that the other three magistrates passed a resolution censuring him in the strongest measures....[H]is conduct was so gross that the whole of those in Court soon actually hissed him."52 But Cameron was more than just a symbol. His powers of sanction and reward as Chief Justice were real, as those who came before him realized. Fines or confinement in irons in the north bastion of the fort made company rule palpable to the colonists in a way qualitatively different than the colony's governorship or its land policy. It was David Cameron's exercise of his very real judicial powers that precipitated the last flurry of petitioning in the winter of 1853-54. His actions in R. v. Robert John Staines (1853) revealed the social, as well as the political, 83 dimension of the debate over the law and legitimate political authority on Vancouver Island. *** "A man full of frills," Robert John Staines arrived at Fort Victoria on March 17, 1848 to take up his position as HBC chaplain.53 Six years later to the month, Staines died off Cape Flattery, Washington, when his overloaded ship, the Duchess of San Lorenzo bound for San Francisco, sank. Elected by some of the Island's colonists to act as their emissary, Staines was on his way to London, carrying with him two petitions ~ one addressed to the Duke of Newcastle, and the other to the Queen herself ~ signed by sixty-nine of the "most dutiful and loyal" inhabitants of Vancouver Island.54 In these two petitions, the colonists complained about the Island's legal system, and particularly about the Chief Justice of the Supreme Court of Civil Justice, David Cameron. "Groaning under the grievances inflicted by the Local Government of this Colony of Vancouver's Island," the petitioners complained that [T]here can be no sound basis for happiness amongst a People where the Courts of Justice are not pure, efficient and reliable. We regard this as a fundamental Maxim of Government unshaken and eternal. It is our most anxious wish to have the laws of our country ably and impartially administered amongst us by men of adequate integrity, ability, learning, and experience, in whom we can repose our entire confidence, and towards whom we can cordially extend our deserved respect. We therefore most humbly intreat that your majesty would graciously cause a strict inquiry to be immediately instituted into the circumstances of the recent creation of a Court entitled "The Supreme Court of Civil Justice" for Vancouver's Island,...and the appointment of Mr David Cameron, the Governor's Brother-in-law, as Judge of the same as...we cannot consider our safety to depend upon our innocence or the rectitude of our cause.55 84 Certainly, their emissary, Staines, could relate to the sentiments contained in the petitions. Though he did not sign either document, during his short tenure on Vancouver Island Robert John Staines clashed with its colonial administrators, and had himself been the victim of Cameron's "notorious and gross partiality, acrimony, malice, and indecorum."56 R v. Staines (1853) precipitated both petitions and, despite his death, initiated a protracted discussion of the colony's legal system. Yet despite their lofty rhetoric of justice, the petitions and the docu-ments sent by the Island's colonial administration in response had much more humble origins. On a Saturday morning in the middle of November 1853, George Hawkins, the bailiff of Staines' farm who had arrived on the Norman Morison two years earlier, called on Emanuel Douillet, the managing bailiff of Cloverdale, William Fraser Tolmie's farm.57 Hawkins told Douillet he had heard that there were pigs on the farm which belonged to him, and which he had come to claim. While Douillet admitted that he had two pigs which did not belong to Cloverdale, he later noted that Hawkins could not pick them out of the herd. Nevertheless, Douillet turned over the two. As he was leaving, Hawkins spotted another familiar pig, and told the bailiff that he would return the following day with a man who knew the animals better and would claim the remainder of his wayward animals. True to his word, Hawkins returned on Sunday at eleven o'clock, armed, and accompanied by James McFadden, a labourer and also an employee of Staines. The bedridden Douillet was rousted up and told to turn over the animals. He refused, saying that the only two pigs that were not his had already been 85 returned. Hawkins and McFadden accused the bailiff of stealing and left the house without another word. After searching the farm, Hawkins remarked to McFadden that he had discovered three sows that were his. However, the two left without them. On Monday, Staines, Hawkins, McFadden, James Graham (another labourer) and an unidentified Indian returned to Douillet's, this time armed with a search warrant issued by Thomas James Skinner. With Douillet's neighbours, Adolphus Fearon, Baptiste Jollibois and Jacob Low present, Staines ordered James Graham to read the warrant. The illiterate Graham stumbled, so Staines did the job himself. He then ordered Jacob Low to read the warrant to Douillet in French, but as Douillet later recalled, the warrant said "nothing about pigs." The mounted pastor then proceeded to drive all the pigs into the yard, and after picking out five, warned the bailiff not to interfere. He would forgive Douillet once, but not twice. Staines was particular about his pigs. His farm in the vicinity of Mount Tolmie yielded large quantities of wheat and oats, and the pastor himself exhibited a penchant for livestock breeding. Thus, when he discovered that some of his prized pigs had escaped and, possessed of ^discriminate tastes, had lodged themselves on the farm of an HBC surgeon, Staines felt "wrathy," and applied to Skinner for a search warrant.58 True to his judicial form, Skinner "issued a simple order, for the removal of certain pigs...without summoning the party charged with the offense to appear before him, or taking any steps to ascertain the 86 truth."59 'This most arbitrary proceeding excited a general feeling of indignation, and I was not a little vexed," wrote James Douglas that Mr. Skinner should have so inconsiderately violated in that instance, the forms prescribed by the Law, without any evident necessity, as Douilet [sic], whether guilty or otherwise was entitled to a hearing in his own defence.60 Douillet reported the incident to Governor Douglas, and swore a complaint to David Cameron on December 5.61 Cameron then issued a summons for Staines, Hawkins and Graham to appear in three days to answer charges of "illegal trespass and forcible taking and carrying away of...property." Douillet's three neighbours, Fearon, Jollibois and Low, as well as Fearon's wife Susan Grant, were examined, and after hearing their depositions and the answers of the defendants, Cameron concluded that there was sufficient evidence to proceed. The three were released, each on his own recognizance of £20, and the pigs taken into the custody of the court. On the 17th James McFadden and George Richardson were summoned to answer the same charges, but were, it appears, released: Richardson because he claimed to be "a looker on," and McFadden because he was acting on Staines's instructions. Because of insufficient evidence, the crown did not proceed with the case and the rest of the defendants were released January 5. Not satisfied with his exoneration, Staines laid charges against Douillet for theft.62 Found guilty, the bailiff was fined and imprisoned in the north bastion of Fort Victoria, and the pigs returned to their proper pastoral sur-roundings on Mount Tolmie. "Highly indignant because Mr Cameron received and acted upon the complaint of Douilet [sic]," Staines "did eveiything in his power to create an 87 Impression that in so doing, Mr Cameron was animated solely by motives of personal hostility."63 Ninety of the Island's residents signed a petition complaining about Cameron's appointment even before Staines' January hearing. Calling Cameron's appointment "a measure so obnoxious to the Community at large," the petitioners outlined their case against the Chief Justice. The office should, they considered, be "reposed only in men of the highest repute for honor, honesty, & impartiality." David Cameron, the petitioners argued, shared none of these characteristics. "Mr Cameron," they continued, has barely resided Six months among us, and in that brief space he has not so conducted himself as to have obtained the respect of the Community; he during the short time he has officiated as a Magistrate, has most singularly failed in impressing us with a sense of his integrity and uprightness, he has in the position proved himself most singularly cast and indecorus in his language; he has exhibited the most profound ignorance of the duties attaching to the Commission of the Peace and is tolerably void of the little practical knowledge necessary to conduct the business of a Magisterial Court as have made him a laughing stock; and indirectly brought scorn on the proceedings of the whole Bench of Magistrates.64 When the Governor turned them away "with scorn", the petitioners gathered at independent merchant James Yates' house. There they elected a five-man committee consisting of independent merchants Yates, William Banfield and James Cooper and JPs Edward Langford and Thomas Skinner, and raised $400 to send Staines to England to present their grievances. Not to be outdone, those who supported the HBC's proprietorship drafted a petition of their own in response, countering the charges against David Cameron. The Chief Justice, they argued, was "a Gentleman of business habits and considerable colonial experience,...the fittest man here of those not already \ 88 professionally occupied to preside in such a Court." In contrast, "but few of the Subscribers to that [anti-Cameron] petition have property at stake in the Island." We are further of opinion, that if in this Colony, where there is perfect freedom of action, where life and property are as yet secure, where the market is so extensive and remunerative, and where the produce is so lamentably small, the labouring and industrious classes were to employ their time more in raising wheat and potatoes, constructing houses to live in &c, &c, and suffer themselves less, to be led away into discussions upon abstract political questions; all would gain by the alteration, progress become more decided, and foreigners and visitors, whose good opinion we respect, would say more for our common sense.65 After the trial and the imprisonment of Douillet, the two petitions that Staines carried with him to the bottom of the Strait of Juan de Fuca were drafted, bearing further testimony to "the strong feeling in the public mind against this abortion of a court."66 *** This obscure trial and the events that led to it reveal much about the nature of litigation and social tensions in the colony. Though the immediate issue at law was narrow in scope — exactly five pigs wide — the case involved people from the very top of the colonial social hierarchy to the very bottom. But Staines's pigs also managed to transcend the merely provincial to reveal both the political and social dimensions of the debate over law and political authority. Those who petitioned against Cameron saw his connection with the company as a conflict of interest which defeated the notion of the rule of law. "We cannot," they wrote, "consider our safety to depend upon our innocence or the rectitude of our cause." With Cameron as Chief Justice, the HBC's political monopoly was considerably 89 strengthened and it also gained a veneer of impartiality through its control of an institution that was traditionally neutral. But the trial and the petitions that followed also revealed the social polarization that underlay political agitation on the island. Figure 2-2 is a graphical representation of the social alliances the Staines case illustrated. Those who opposed the Chief Justice and company government were late arrivals to the colony and were independent of any HBC affiliation. Like typical mid-nineteenth century emigrants to British North America, they came to Vancouver Island to improve their economic situation, but found themselves confronted with obstacles to achieving that end: namely, a colonial government whose economic interests were not favourable to their own, and which, through the law and the courts, could act in its own interests from a position of considerable strength. 90 Indian | (status)  Hostile Group Support Group Figure 2-2: Emanuel Douillet, bailiff Enemies and Allies67 As Chief Factor, James Douglas had clashed with Staines over the funding of the company school, and suspected the pastor was responsible for a series of anonymous letters which appeared in Oregon newspapers criticizing the government of the colony.68 Staines was among fifteen colonists who signed the 1851 petition protesting Douglas' appointment as governor, and he was suspected of being the organizing force behind the 1853 land petition.69 Against this backdrop of political agitation, it is not surprising that Douglas gave Douillet a sympathetic hearing and that Staines read this as a confirmation of the partiality of the colony's proprietary government. Skinner and the other PSAC bailiffs were often at odds with Douglas over the management of the four company farms. As company agent, Douglas was 91 concerned over the failure of the PSAC farms to return a profit, and blamed the failure on the mismanagement and extravagance of the farms' bailiffs.70 As well, in the June and September prior to the Staines case, Douglas had been openly critical of Skinner's conduct as a Justice of the Peace ~ conduct which, as we have seen, led to the formation of the Supreme Court of Civil Justice. Given this, it is not surprising that Skinner aligned himself with Staines, signing the petitions and sitting with his fellow JP and bailiff Edward Langford and Yates, Cooper and Banfield, on the anti-Cameron committee struck in December 1853. More mteresting are the alliances between those of lower status. Those who supported Douillet were both his immediate neighbours and shared a bond forged during their years as Hudson's Bay Company servants. All French Canadian, Douillet and Jollibois had served at Fort Vancouver before being transferred to Victoria, and they, plus Adolphus Fearon, had been relatively long-serving company employees.71 They were thus knit together by their shared experience, which included a familiarity with James Douglas who, as Chief Trader, later Chief Factor and still later as Governor, had also been posted at Vancouver and Vic-toria. On the other hand, those allied against Douillet had no such longstanding HBC connection. All were English immigrants and later arrivals to the colony, with Hawkins and Richardson — as well as Skinner — arriving on the Norman Morisonin 1851 and 1853. Perhaps sensing the disadvantage incurred by the lack of a company connection, they associated themselves with Staines, Skinner and the anti-company faction as the group which best represented and protected their interests.72 92 These alliances are borne out by an analysis of those who signed the two March 1854 anti-Cameron petitions, as well as a January 1854 pro-Cameron petition.73 TABLE 2-1: ANTI AND PRO-CAMERON PETITIONERS, 1854. ANTI-CAMERON PRO-CAMERON N 70 55 Literate 66 26 Illiterate 3 29 British 65 20 French Canadian 0 26 Other 1 8 Unknown nationality 3 1 arrived pre-1849 1 37 arrived post-1849 65 15 HBC officer 6 17 HBC servant 49 38 Independent 8 0 Unknown occupation 3 0 Those who signed the petitions against David Cameron tended to be literate British servants of the Hudson's Bay Company (many of whom worked on its subsidiary's ~ the Puget's Sound Agricultural Company ~ farms) who arrived in the colony after 1849; that is, after the Island ceased to be a fur trade preserve and became a colony. For although the anti-Cameron petitioners were technically company servants they did not, as those whose association preceded the HBC's proprietorship, consider their interests protected by the company. Unlike the fur trade-era servants, these later arrivals were brought over specifically as settlers to fulfil the conditions of the company's proprietary agreement.74 As such, they 93 had rather different expectations for their life ln the colony. Not only did they expect that the colony would possess the familiar institutions and well-articulated political conventions of British rule, but they also ~ as emigrants ~ expected to better their economic position. With such expectations it is not surprising that they considered the HBC proprietorship the antithesis of proper government and legal administration in a British colony, and aligned themselves against the representatives of the company. Pro-Cameron petitioners drew their support from the ranks of HBC employ-ees who had arrived during the fur trade period. The allegiance of company officers is not surprising, but Cameron had support among the HBC's servants as well. Two of these were Emanuel Douillet and Baptiste Jollibois, who were obviously unswayed by their treatment at the hands of company justice, perhaps because French Canadians in the Oregon Territory had received worse from the American government. Having been with the company when it was solely a commercial concern, the pro-Cameron servants did not have the same expectations as those who arrived later as settlers. For them little changed with the HBC proprietorship. The politics of Vancouver's Island just now are disagreeable: but the proceedings of the opposition are so far from formidable, that I really believe had there been a Punch-and-Judy show here to divert the people while the snow was on the ground all this petitioning would never have occurred and the saving in foolscap would have been considerable....The key to the matter is this: two or three contemptible propagandists...represent the Company as a sort of huge monopoly ~ a gross fraud ~ an incubus that broods over the fortunes of the colony, and then we have a parcel of people going about the place roaring British Subjectl...As in the old fable, it 94 doesn't require much penetration to detect the ass beneath this pseudo-British Lion's skin. — Colonial Surveyor J.D. Pemberton, 185475 From 1849 to 1854 the small European community on the southern tip of Vancouver Island was rocked by rancorous debate over the constitution of legitimate political authority. As Pemberton's comments indicate, the colony's independent settlers saw the island's government as a simple extension of the Hudson's Bay Company's economic monopoly, and therefore as antithetical to their rights as British subjects. Law was a focal point of the "politics" the Colonial Surveyor observed. Vancouver Island's land laws had the effect of extending the HBC's corporate hierarchy over island society and of concentrating political power in the hands of those highly placed in the company. Instead of encouraging settlement and economic development, the island's land laws served the "petty ambitions" of the "squatocracy of skin traders" who governed the colony.76 The construction of the colonial courts provided further evidence of the Hudson's Bay Company's attempts to rule the island using its corporate experience as a private monopoly. Viewing the law as the regulation of behaviour, James Douglas named the HBC's farm bailiffs justices of the peace and appointed his brother-in-law and the manager of the company's collieries as Chief Justice. David Cameron's appointment was beyond the pale of acceptable behaviour in the opinion of the island's independent settlers, however, because it contradicted the notion of impartial justice. It was, to the anti-Cameron petitioners, "an abortion" of the rule of law to have someone so closely connected with a business interest dispensing the law.77 95 Although the petitions used the language of rule of law to criticize the authority of Vancouver Island's proprietary government, that language and the notion of impartiality was mtimately associated with another equally powerful discourse: that of laissez-faire capitalism. The debate over political authority on ( Vancouver Island was all about the legitimacy of monopoly as a form of economic, social and political organization. The very first petition against Douglas's appointment as governor illustrated the interpenetration of these two discourses: The Hudson's Bay Company being, as it is, a great trading body, must necessarily have interests clashing with those of independent colonists, most matters of a political nature will cause a contest between the Agents of the Company and the colonists. Many matters of a judicial nature also, will undoubtedly arise in which the colonists and the Company (or its servants) will be contending parties, or the upper servants and the lower servants of the Company will be arrayed against each other. We beg to express in most emphatical and plainest manner our assurance that impartial decisions cannot be expected from a Governor who is not only a member of the Company sharing in its profits, but is also charged as their chief Agent, with the sole representation of their trading interests in this Island and the adjacent coasts. Self-interested economic behaviour was fine for individuals, and in fact was the basis of the general happiness of a nation in laissez-faire tJiinking, but it was not consistent with good government. The anti-Douglas petitioners were not convinced that "a great trading body" could act impartially. The language of the anti-land laws petition is also suggestive of the close association between law and economy. The petition contended that prospective settlers on Vancouver Island were not rewarded for their individual endeavours because of "administrative causes" rather than any "natural" obstacles.78 The administrative causes referred to were, of course, the HBC's land laws; and they 96 were deemed unnatural because they prevented individuals from reaping the fruits of their own labours. Such criticisms were ones that classical liberal economists like Adam Smith would have shared. Equally revealing were the petitions generated by the appointment of David Cameron. Both those who supported Cameron and those who opposed him linked his ability to execute bis office to his economic associations and his business abilities. In addition to their belief that his close association with James Douglas and the Hudson's Bay Company disqualified him for the Chief Justiceship, one anti-Cameron petitioner, Bailiff-JP E.E. Langford, also charged that Cameron was a bad businessman, having left a trail of bankrupt enterprises In Scotland and Demerara before he arrived in Vancouver Island.79 Conversely, but using the same economic standard, Cameron's supporters called attention to his "business habits" (likely in his capacity as manager of the company's collieries) and "considerable colonial experience" as qualifying him for the post. The juxtaposition of these two frames of reference, one provided by the rule of law (impartiality) and the other by laissez-faire, points to the different ethical basis for political authority in this British North American colony. Unlike their English counterparts of an earlier century, Vancouver Island's independent settlers did not ask that their laws and government adhere to a moral standard that bound powerful and powerless together in a unified social whole and ensured some level of distributive justice. Instead, they rejected the paternal and discretionary authority that came from a moral economy, preferring the rule of laws that would allow them to realize their own individual ambitions. The role of 97 law and of governments In formulating and administering it was to allow people to pursue their individual wills by providing a rule-bound arena in which competition could occur without unfair advantage or interference. This was the essence of authority in a society tied to and shaped by a market economy. 98 NOTES 1. Charles Aubrey Angelo (Chaos). Idaho: A Descriptive Tour and Review of its Resources and Route, prefaced by a sketch of British Misrule in Victoria, V.I. (San Francisco, 1865), 8-9. Angelo was an Englishman (b. London, 1810; d. San Francisco 30 May 1875) who before corning to Victoria in 1859 had worked in China and India as a journalist. In Victoria, he worked as a customs house clerk and ran afoul of the law in the summer of 1859. He was indicted and convicted of embezzlement at the August 1859 Victoria assizes. Angelo was fined £200 and sentenced to two months imprisonment [Calendar or List of Prisoners tried at a Court of General Gaol Delivery held at Victoria before David Cameron Esquire, a Justice of Our Lady the Queen in Indictments Preferred by the Grand Jury for the District of Victoria on Thursday the Eleventh day of August A.D. 1859, enclosed in Cameron to Douglas, Victoria, 22 October 1859, British Columbia. Colonial Secretary. Colonial Correspondence (hereafter Colonial Correspondence). British Columbia Archives and Records Service [hereafter BCARS]. GR 1372, reel B-1313 f 259/3]. A petition calling for Angelo's pardon and release was signed by "numerous gentlemen" of Victoria. Despite this, Cameron advised Douglas against granting it, and recommended only that the remainder of Angelo's sentence be remitted [Colonial Correspondence. BCARS. GR 1372. reel B-1313. f 259/4, Cameron to Douglas, Chambers, Court House, Victoria, 4 November, 1859]. After his release, Angelo left the colony for San Francisco, where he worked again as a journalist for the Daily Alta California before joining the Boise, Idaho gold rush in 1863. 2. As W. Kaye Lamb pointed out: "The price scale at which an individual could purchase goods depended on his relationship to the company. For this purpose, Blanshard was considered completely independent and was therefore charged the highest tariff. In 1850 this was high indeed, as it was based upon the peak prices prevailing during the gold rush in California. The consequence was that Blanshard found the cost of living ruinous, and it would seem that Douglas and the company might well have made a generous concession under the circumstances." "The Governorship of Richard Blanshard," British Columbia Historical Quarterly 14(1950):5. 3. Ibid., 2. 4. Barclay to Douglas, 3 August 1849, cited in Ibid., 23. 5. Testimony of Richard Blanshard given to the Select Committee on the Hudson's Bay Company, 15 June 1857. Great Britain. House of Commons. Report from the Select Committee on the Hudson's Bay Company, together with the proceedings of the committee 289. 99 6. On the Fort Rupert affair, see Barry M. Gough, Gunboat Frontier: British Maritime Authority and Northwest Coast Indians, 1846-1890 (Vancouver, 1984), 32-49. 7. See H. Keith Ralston, "Miners and Managers: The Organization of Coal Production on Vancouver's Island by the Hudson's Bay Company, 1848-1862," in Blanche Norcross, ed. The Company on the Coast (Nanaimo, 1983), 45-46. 8. Blanshard to Helmcken, Victoria, 22 June 1850. CO 305/2. NAC. MG 11, reel B-233, 71. 9. Blanshard to Grey, Victoria, Vancouver Island, 18 August, 1850. Vancouver Island. Despatches: Governor Blanshard to the Secretary of State, 26 December 1849 to 30 August 1851 (New Westminster, n.d.), 5. 10. Blanshard to Grey, Fort Rupert, 19 October 1850. CO 305/2, NAC. MG 11, reel B-233, 85. 11. Blanshard to Grey, Victoria, Vancouver Island, 18 August 1850. In Vancouver Island. Despatches: Governor Blanshard to the Secretary of State, 26 December 1849 to 30 August 1851, 5. 12. Less so for the Newitty, whose village was shelled by HMS Daphne, "with the happiest effects, so filling their minds with terror, that they made no attempts at reprisals." Douglas to Grey, Fort Victoria, Vancouver's Island, 31 October 1851. In Hartwell Bowsfleld, ed. Fort Victoria Letters. 1849-1851 (Winnipeg. 1979). 227. 13. Blanshard to Grey. Victoria, Vancouver Island, 29 March 1851. NAC. MG 11. CO 305/3, reel B-233, 13. 14. Testimony of Richard Blanshard, 15 June 1857. Great Britain. House of Commons. Report from the Select Committee on the Hudson's Bay Company, together with the proceedings of the committee.... (London, 1857), 289. 15. Petition to His Excellency Richard Blanshard, n.d., but received 28 September 1851. NAC. MG 11, CO 305/3, reel B-233, 58-59. 16. Jbfd. 17. Ogden to Simpson, 10 August 1851 (private), MS. BCARS. Cited in W. Kaye Lamb, "The Governorship of Richard Blanshard." British Columbia Historical Quarterly 14(1950):35. 18. On land policy on Vancouver Island see Leonard A. Wrinch, "Land Policy of the Colony of Vancouver Island, 1849-1866," University of British Columbia M.A. thesis (history), 1932. Also see Richard Somerset Mackle, "Colonial Land, Indian 100 Labour and Company Capital: the Economy of Vancouver Island, 1849-1858." University of Victoria M.A. thesis (history), 1984. 19. Ormsby, "Introduction," in Bowsfield, ed. Fort Victoria Letters, lv. 20. Wakefield presented his scheme of systematic colonization as a solution to the dual problems of unemployment and poverty in England and the under-development and sluggish commerce of English colonies. "In Great Britain all classes suffer from the want of room," he wrote in The Art of Colonization (1849), By a want of room I mean a want of the means of a comfortable subsistence according to the respective standards of living established among the classes, and obviously rising from the competition of the members of one class with another. Whatever the fund for the maintenance of any of the classes, it is divided amongst too few people; there are too many competitors for a limited fund of enjoyment. Competition among the country's excessive numbers of labourers held out the threat of "political disturbance." Wakefield did not have to go far to find real examples. He considered English "Chartism and socialism representatives of discontent," and cited the example of the French Revolution as a warning to those who did not take him seriously. Given the historical precedent and developments at home, he concluded that "it is well worthwhile to try colonization, or anything that affords a chance of reducing that competition amongst the working classes that is the cause of their political discontent." 21. Wakefield's ideas were taken up eagerly by Herman Merivale, a senior member of the British Colonial Office, whose tenure coincided with the formation of both the colonies of Vancouver Island and British Columbia. Merivale stated the principles of systematic colonization in a most succinct way: 1. That the prosperity of new colonies mainly depends upon the abundance of available labour at the command of capitalists, in proportion to the extent of territory occupied. 2. That this abundance is to be secured by introducing labourers from the mother-country, and other well peopled regions, and taking measures to keep them in the condition of labourers living by wages for some considerable time; at least two or three years.... 3. That the revenue derived from the sale of new land is the fund out of which the cost of introducing them is best defrayed. 4. That the most convenient way of preventing them from rising too rapidly from the condition of labourers is to sell the land at a sufficiently high price. 5. That the entire proceeds of land sales ought to be devoted to purpose of obtaining emigrants; and that only by devoting the whole, and not any portion, will the exact equilibrium between land, labour, and capital be secured.... 101 See Herman Merivale, Lectures on Colonization and Colonies delivered before the University of Oxford in 1839, 1840, & 1841 (London, 1861), 387-388. 22. Barclay to Douglas, 17 December 1849, Hudson's Bay Company Archives, A. 6/28, fo. 91. Cited in Ormsby, "Introduction," Fort Victoria Letters. 111-1111. The HBC colonization plan was as follows: "Colonization of Vancouver's Island." 1st,—That no grant of land shall contain less than twenty acres. 2nd,—That purchasers of land shall pay to the Hudson's Bay Company, at their House in London, the sum of One Pound per acre for the land sold to them to be held in free and common soccage. 3rd,~That purchasers of land shall provide a passage to Vancouver's Island for themselves and their families, if they have any; or be provided with a passage (if they prefer it) on paying for the same at a reasonable rate. 4th, —That purchasers of larger quantities of land shall pay the same price per acre, namely one pound, and shall take out with them five single men, or three married couples, for every hundred acres. 5th,—That all minerals, wherever found, shall belong to the Company, who shall have the right of digging for the same, compensation being made to the owner of the soil, for any injury done to the surface; but that the said owner shall have the privilege of working for his own benefit any good mine that may be on his land, on payment of a royalty of two shillings and sixpence per ton. 6th, —That, the right of fishing proposed to be given to the Hudson's Bay Company in the grant as printed in the Parliamentary Papers relative to Vancouver's Island having been relinquished, every freeholder will enjoy the right of fishing all sorts of fish on the seas, bays, and Inlets of, or surrounding, the said Island; and that all the ports and harbours shall be open and free to them, and to all nations, either trading or seeking shelter therein. [NAC--HBCA MG 20 A. 37/42. "Deeds and Agreements, etc., Relating to Vancouver Island, 1849-1896." Reel HBC 436, fo. 13] 23. Douglas to Barclay, Fort Victoria, 3 September 1849; in Bowsfield, ed., Fort Victoria Letters, 42-44. 24. Mackie, "Colonial Land, Indian Labour and Company Capital," 232. 25. Ibid., 233-242. 26. The population of Vancouver Island was as follows: 1848 32 1853 679 1849 104 1854 797 1850 255 1855 774 1851 295 1862 2884 1852 464 1865 5-6000 102 27. The Olympic Columbian, 29 October 1853. 28. Ibid. 29. Ibid. 30. J.D. Pemberton to Colvile, Fort Victoria, 22 January 1854. HBCA ~ NAC. MG 20, reel HBC 167, A. 11/75, fo. 20. 31. 'Vancouver's Island," The Olympic Columbian29 October 1853. 32. They were: Rev. Robert John Staines: Peter Skene Ogden; James Douglas; John Work; Archibald McKinlay; William Fraser Tolmie; James Murray Yale; Alexander Caulfleld Anderson; Richard Grant; John Tod; Donald Manson; George Traill Allan; John Kennedy; and Dugald McTavlsh. Pelly to Grey, Hudson's Bay House, 13 September 1848. NAC. MG 11. CO 305/1, reel B-233. 263. 33. Blanshard to Grey. Victoria. 10 July 1850. NAC. MG 11, CO 305/2, reel B-233, 67. 34. Blanshard to Grey, Victoria, VI, 10 July 1850. Vancouver Island. Despatches, 4. 35. Douglas to Newcastle, Victoria, Vancouver's Island, 11 April 1852. NAC. MG 11, CO 305/4, reel B-???, 20-21. Also see David M.L. Fair, "The Organization of the Judicial System of the Colonies of Vancouver Island and British Columbia, 1849-1871." University of British Columbia B.A. Essay (history), 1944, 9-12; and David R. Verchere, A Progression of Judges: A History of the Supreme Court of British Columbia (Vancouver, 1988), Introduction and 12-19. For more on the Puget's Sound Agricultural Company (the HBC's agricultural subsidiary that employed the bailiffs) see Brian Charles Coyle, "The Puget's Sound Agricultural Company on Vancouver Island, 1847-1857." Simon Fraser University, M.A. thesis (History), 1977; Barry M. Gough, "Corporate Farming on Vancouver Island, 1846-1857," Canadian Papers in Rural History TV (Ganonoque, 1984), 72-82; and for its origins in Washington and Oregon, see James R Gibson, Farming the Frontier: the Agricultural Opening of the Oregon Country (Vancouver, 1985), Chapters 4, 5, and 6. 36. On Blinkhorn see Dorothy Blakey Smith, "Thomas Blinkhorn," The L^tionary of Omadian Biography 36. (Toronto. 1985). v. 8. 97. 37. Douglas to Newcastle, Victoria, Vancouver Island, 28 July 1853. NAC. MG 11. CO 305/4, reel B-234, 75-76. Also see J.K. Nesbitt, "The Diary of Martha Cheney Ella, 1853-1856, Part I." British Columbia Historical Quarterly 13(1949): 106. On 103 October 6 she noted a "Court day, which happens to be the first Thursday in every month." 38. Blanshard testified to the 1857 Select Committee on the Hudson's Bay Company that as governor he had "very little indeed [to do] except to regulate the disputes between the Hudson's Bay Company's officers and their servants." Testimony of Richard Blanshard given to the Select Committee on the Hudson's Bay Company, 15 June 1857. Great Britain. House of Commons. Report from the Select Committee on the Hudson's Bay Company, together with the proceedings of the committee.... (London, 1857), 289. 39. Vancouver Island. Notes of Proceedings, 3 October 1853-20 April 1857. BCARS. MS. 40. English law relating to justices of the peace were not amended except with respect to that touching on the property qualification. This was waived. Douglas and his Executive Council also authorized the Island's magistrates to charge twenty shillings per day for their services because of "the absence of a wealthy class, who might afford to devote their time gratuitously to the public office." Douglas to Newcastle, Victoria, Vancouver's Island, 11 April 1852. CO 305/4. NAC. MG 11, reel B-234, 21. 41. See W. Kaye Lamb, "Early Lumbering on Vancouver Island, part I: 1844-1855." British Columbia Historical Quarterly 2(1938):31-53. 42. Ibid. 43. Ibid. 44. Douglas to Newcastle, Victoria, Vancouver's Island, 7 January 1854. CO 305/5, reel B-235, 15. 45. The Law Officers of the Crown disallowed this ordinance and put into question the validity of those that preceded it because: according to the Instructions under the Sign Manual accompanying the Patent and by those Instructions the power of legislation is vested (as by Law it must be) in the Governor, Council and General Assembly [my italics], we do not therefore think that the ordinance or the Act in question can be properly assented to by the Crown or that it would have the force of Law. See Bethell to Grey, Temple, 20 December 1853. NAC, MG 11. CO 305/5, reel B-235, 186. The Colonial Office reassured Douglas that though the position of the colony's laws and superior court was serious, "there will be no permanent difficulty, in as much as the Act 'to Provide for the admirustration of Justice in Vancouver's Island' 12th and 13th Vict: ch:48, reserves powers to the Crown to 104 take all necessary steps for the administration of justice I have therefore directed the preparation of an Order-in-Council, embracing the important provisions to the invalid Act, and giving power to the Court to make necessary rules and regulations for its own conduct." See Newcastle to Douglas [confidential], 5 April 1854. NAC. MG 11. CO 305/5. reel B-235, 193-195. The Order-in-Council was passed in February 1857. 46. Up to that time the Supreme Court of Civil Justice sat as a Court of Oyer and Terminer and General Gaol Delivery by virtue of commissions issued by the Governor. In England, assize judges heard criminal cases not by virtue of the Letters Patent naming them judges, but by virtue of Commissions of Oyer and Terrniner and General Gaol Delivery. These allowed them to "hear and deliver" (oyer and terminer) all assize criminal cases and to "deliver the jails" (general gaol delivery) of all other prisoners awaiting trial for minor criminal offences. These commissions were granted on Vancouver Island until 1860, when the Supreme Court of Civil Justice was granted permanent jurisdiction in criminal matters. A Colonial Office opinion written on Douglas* letter to Newcastle, Victoria, Vancouver's Island, 13 March 1854 [CO 305/5, NAC. MG 11, reel B-235, 42] noted that the Governor of Vancouver Island was empowered, through his commission, to appoint judges and issue commissions of oyer and terrniner. 47. Cameron to Douglas, Belmont, Vancouver's Island, 30 May 1857. CO 305/9, NAC. MG 11, reel B-237, 32-33. 48. 9 & 10 Vic. c. 95. 49. "An Act for Rendering the Administration of Justice in Minor Criminal Cases more Speedy and Certain [The Minor Offences Act, I860]," 19 December 1860; "An Act to amend the Manner of taking the Verdict of a Jury in Civil Cases [The Vancouver Island Jury Act, 1865]," 16 June 1865. 50. T.L. Wood to the Colonial Secretary. Attorney General's Office, Victoria, 14 September 1865. British Columbia. Colonial Correspondence. BCARS. GR 1372, box 147, file 56/13a. Also see Wood to the Colonial Secretary, Attorney General's Office, Victoria. 15 May 1865, box 147 file 55/21. 51. "Another Chief Justice Wanted," The British Colonist 26 April 1860. 52. Written on the back of Labouchere to Douglas 53. Margaret Ormsby, British Columbia: A History (Toronto, 1958),. Also see Madge Wolfenden, "Robert John Staines," Llictionary of Ckuuidian Biography, (Toronto. 1985), 835-836. 54. James Cooper, E.E. Langford, T.J. Skinner, William Banfield and James Yates to Newcastle, Victoria, Vancouver Island, 20 April 1854. NAC. MG 11. CO 305/5, 105 reel B-235. 272-273. Petition addressed to The Queen's Most Excellent Majesty, [1 March 1854]. CO 305/5, NAC. MG 11, reel B-235, 276-280. 55. Petition to the Queen's Most Excellent Majesty, dated 1 March 1854. CO 305/5. NAC. MG 11, reel B-235, 276-280. 56. Petition to the Duke of Newcastle, dated 1 March 1854. CO 305/5. NAC. MG 11, reel B-235, 281-288. 57. The following account is taken from Vancouver Island. Supreme Court. Notes of Proceedings, October 3, 1853-April 20, 1857, BCARS. MS. 58. James Cooper, Maritime Matters on the Northwest Coast of America, cited in G. Hollis Slater, "Rev. Robert John Staines: Pioneer Priest, Pedagogue, and Political Agitator." British Columbia Historical Quarterly 14(1950):221n. 59. Douglas to Barclay, 3 November 1854, cited in Slater, "Rev. Robert John Staines." 221. 60. Ibid. 61. Unless otherwise noted, the information in this paragraph is taken from Vancouver Island. Supreme Court. Notes of Proceedings, October 3, 1853-April 20, 1857. 62. Douglas to Barclay, 3 November 1854, cited ln Slater, "Rev. Robert John Staines." British Columbia Historical Quarterly 14(1950):221. 63. Ibid. 64. Petition to His Excellency James Douglas, December 1853, enclosed ln Labouchere to Douglas, 8 July 1856. NAC. MG 11, CO 305/7. reel B-236, 438-439, 65. Petition to James Douglas, 11 January 1854. CO 305/5. NAC. MG 11, reel B-235, 136-138. 66. Ibid 67. After Rhys Isaac, The Transformation of Virginia, 1740-1790 (Chapel Hill, 1982), "A Discourse on Method: Action, Structure and Meaning," 323-357, especially 335. 68. Wolfenden, "Robert John Staines," Dictionary of Canadian Biography, v. 8, 836. 106 69. Great Britain. House of Commons. Report from the Select Committee on the Hudson's Bay Company, together with the proceedings of the committee.... (London, 1857), copy of a petition addressed to Richard Blanshard, Governor of Vancouver's Island, [1852], 293. It was signed by James Yates; Robert John Staines; James Cooper; Thomas Munroe; James Sangster; John Muir, sen.; William Fraser; Andrew Muir; John Muir, jun.; Michael Muir; Robert Muir; Archibald Muir; and Thomas Blinkhorn. 70. Coyle, "The Puget's Sound Agricultural Company on Vancouver Island, 1847-1857," Chapters 2 and 3. 71. Jean Baptiste Jollibois was born in Laprairie (Lower Canada) in 1796, and joined the HBC in 1813, at the age of 17. He first appears on the Fort Vancouver servants' accounts in 1827. In 1831 he is listed as being employed as a boute at Fort Vancouver. He was transferred to Fort Simpson in 1837, where he remained until 1846, when he was moved to Fort Victoria. At the time of the Staines case Jollibois had been in the Company's employ for forty years. The principal in the case, Emanuel Douillet (also Douillette or Douilet) first appears in the Fort Vancouver accounts in 1841, where he was listed as being 18 years of age, from "Canada," and posted in the Thompson River district of New Caledonia, where he was a middleman. He had joined the Company in 1839, at the age of 15. He remained in the Thompson until being transferred to Victoria in 1846. At the time of his involvement with the Staines case he had been with the HBC for 14 years. We know much less about Adolpus Fearon (also Ferron), who is listed in the Fort Victoria account book as being previously employed in the Montreal Department. Jacob Low is also listed in this account book, but no indication of service prior to 1846 is given [see Hudson's Bay Company Archives (hereafter HBCA). Fort Vancouver, Abstracts of Servants'Accounts, 1827-1844. B. 223/g/l-8. NAC. MG 20. reel HBC 1M796. 1M797; and Fort Victoria Account Book, 1846-1853. B. 226/d/3a. NAC. MG 20, reel 1M628]. 72. A.N. Mouat, "Notes on the 'Norman Morison.'" British Columbia Historical Quarterly 3(1939):213-214. 73. Petition to the Queen's Most Excellent Majesty [1 March 1854], CO 305/5. NAC. MG 11. reel B-235; Petition to the Duke of Newcastle. [1 March 1854], CO 305/5. NAC. MG 11. reel B-235,281-288; Petition to James Douglas, 11 January 1854, CO 305/5. NAC. MG 11, reel B-235, 136-138. 74. See A.N. Mouat, ; Coyle, 13. 75. Pemberton to Colvile, Fort Victoria, 22 January 1854. NAC-HBCA. MG 20. A. 11/75, fo. 20. 76. Angelo. Idaho: A Descriptive Tour, 8-9. 107 77. Petition to James Douglas, 11 January 1854. CO 305/5, NAC. MG 11, reel B-235. 136-138. 78. Olympic Columbian, 29 October 1853. 79. Langford to Newcastle, 49 St Paul's Road, Camden Square, NW, 21 May 1862. CO 305/19. NAC. MG 11, reel B-244, 654-655, 664ff. On Langford's turbulent career, see Sydney Pettit, "The Trials and Tribulations of Edward Edwards Langford," British Columbia Historical Quarterly 17(1953):5-40. 108 109 CHAPTER THREE "A CALIFORNIA PHASE": CIVIL LITIGATION AND SOCIETY IN BRITISH COLUMBIA The 1858 gold rush diverted the attention of the Colonial Office and the inhabitants of Vancouver Island away from their internal political wrangling and toward the banks of the Fraser River on the mainland. On April 25 the Commodore deposited the first boatload of fortune seekers — 400 in all ~ in Victoria. They were, according to Vancouver Island Governor James Douglas, "a specimen of the very worst of the population of San Francisco ~ the very dregs of society." Nevertheless, he admitted, despite the "many temptations to excess in the way of drink," "quiet and order prevailed."1 These four hundred were followed in the same year by an additional 25,000, 10,000 of whom arrived in British Columbia between May 1 and June 15, precipitating the formation of the separate colony of British Columbia on 2 August, with James Douglas doubling as its governor.2 'Vancouver's Island," wrote Duncan Macdonald in 1862, "is manifestly not British Columbia."3 Differences between the island and the mainland drew the attention of colonial observers and continue to be the subject of commentary.4 From the beginning, Vancouver Island was a settler society, characterized by a more measured pace of social and institutional development. Before the 1858 rush, Victoria was, according to one historian, "a tranquil little hamlet...clustered about a fur trade depot."5 Little changed even after the temporary dislocation of the gold rush.6 At least part of Vancouver Island's character was due to the 110 nature of its population. It was considered the more "British" of the two colonies, while the mainland was more "Canadian." Justice of the Peace Gilbert Malcolm Sproat called the "native-born British" and the Canadians "the two great parties in the colony." "The British," he wrote in 1867, include the Hudson's Bay Co.'s men, the Government officials and the largest merchants. These are socially at the top. Politically they are rather an inactive party, though when roused and united, they are powerful. Necessarily all past governments have been socially at least, and to some extent politically, connected with this party.... The Canadians on the other hand are the most numerous, though not the best educated, or the richest. They are the most active politicians, and have the press at their hands....Feeling that they are a little 'outside', as it were, socially and politically, and that few Canadians hold office, they have little sympathy with the Govern-ment.7 Though Sproat's observations reflected the conventional wisdom in the colonial and, later, the provincial period, his analysis obscures a more fundamental difference between the island and the mainland, and one which has far more significance for understanding political authority in British Columbia. Of itself, national origin was less important than it would appear to be from Sproat's categorization. Instead, what was "British" about Vancouver Island was the connection between land and authority. Because land was the basis of political and social organization, it provided a focal point for the debate over legitimate authority on the island. What was "Canadian" about British Columbia was the fact that land could not play the same role. However, property was still important in shaping the institutional and ethical basis of authority; but on the mainland it did so as commercial capital rather than land. An overview of British Columbia's land laws and a quantitative analysis of civil litigation reveals the centrality of commercial over real property in the mainland economy. Property was a dynamic commodity, whose value was realized through exchange rather than simple accumulation. The courts protected and promoted this exchange by acting as reliable institutions for the resolution of disputes arising from private economic transactions. Civil litigation also sheds light on the role the law played in creating an ethical foundation for political authority. The disposal of civil cases suggests that British Columbia was a bondless society, and that the law played an important part in esrabushing a degree of social cohesion in the colony as well as acting as a means to secure property. When James Douglas issued a proclamation in December of 1857 declaring the rights of the Crown with respect to the gold found "within the limits of Fraser's and Thompson's River Districts" he knowingly overreached his jurisdiction as Governor of Vancouver Island, fearing that the "country would become the scene of lawless misrule."8 Though the Colonial Office's Undersecretary of State Herman Merivale pointed out that the Crown possessed "the machinery for keeping things in order [through 1 & 2 George IV c. 66]...without creating a colony," British Columbia came into being in August 1858. The "Herculean task" of creating "a great social organization" out of "a wilderness of forest and mountain" began with the articulation of a land policy.9 112 Permanent settlement would generate the social order lacking in British Columbia as well as create the revenue needed to fund the colony's civil establishment.10 As in the neighbouring colony of Vancouver Island, British Columbia's colonial administration embarked on a policy of systematic colonization based on the ideas of English political theorist Edward Gibbon Wakefield. But British Columbia's colonial government soon discovered that Wakefield's careful balance between land and labour could not be achieved in a colony located so close to the United States, where a system of free grants existed. Priced at one pound per acre initially, country lands did not sell, and the government, in the hope of attracting "an English element in the population" as well as "sturdy yeomen...from Canada, Australia and other British Colonies [who might otherwise] be driven in hundreds across the frontier to seek for homes in the United States Territories," reduced the price to 10s. 4d. in February 1859.11 As a further incentive to settlement, Douglas granted aliens the full rights of possession held by British subjects.12 Land alienation policy moved further away from Wakefieldian principles and toward an American model in 1860 and 1861, when the government instituted a pre-emption system.13 The American Donation Act "bear[s] testimony favourable to a liberal land system," wrote Douglas to the Duke of Newcastle in 1860. The settlement of British Columbia, is, I believe, dependent on the same wise policy, and must be fostered and promoted by the same means, or emigrants will be forced into the neighboring Territories of the United States.... In tracing the effects of the two systems, I would remark, that there is obviously no period of a settlers career when capital is more useful, or more pressingly wanted for carrying on his operations than at his first start in a new Country....In no case can it be advisable to 113 allow the whole of the settlers capital to be absorbed in the purchase of land, for that would be depriving him of the means of improving and bringing the land into cultivation.14 As a result, country lands were further reduced in price to 4s. 2d. per acre.15 Despite these liberal amendments to British Columbia's land alienation policy, growth was slow and land sales even slower.16 But while the colony's proximity to American territory was one reason for the lack of permanent settle-ment, the more lucrative opportunities offered by mining were equally detrimental. "The purchase of Country land is considered a most unprofitable method of Investing money in this country," Douglas informed the Colonial Office, because "a high rate of interest is derived from investing money in other real estate, or ln mining or mercantile enterprise." Unfortunately, the Governor continued, The miner is at best a producer and leaves no traces but those of desolation behind; the merchant is allured by the hope of gain; but durable prosperity and substantial wealth of States is no doubt derived from the cultivation of the soil. Without the farmers aid British Columbia must for ever remain a desert.17 In British Columbia as in other parts of the British North American world landholding could not be the basis of political, economic or social organization. Instead, it was replaced by commercial capital. British Columbia's courts reflected the dominance of commercial capital and of private economic exchange. The colony's Supreme Court devoted only one-fifth (18.7%) of its time to criminal trials (see Figure 3-1). Most of the remainder of its energies was expended in civil matters, including civil litigation (22.9%), business in chambers (17.7%), probate (7.3%) and bankruptcy (28.9%). The rest of the Supreme Court's time was devoted to "administrative" functions (4.4%). The single Supreme Court of British Columbia Types of Activity, 1858-1871 Figure 3-1: % of Tim* 8p«nt 115 largest portion of the Supreme Court's time was occupied sitting as a Court of Bankruptcy. These proceedings dealt with the seizure and administration of thebankrupt's property by a court-appointed trustee and the distribution of that property among the bankrupt's creditors. Activities conducted in the judge's chambers consisted largely of hearing motions (for example applications to change the venue of trials, to delay proceedings or motions to appeal), issuing writs or orders, and in assessing costs. As a Court of Probate, the Supreme Court oversaw the probate of wills and the administration of estates. Naturalizing aliens, settling land title under the Town Lots Leases Act, and settling corporate affairs under the Companies and Winding-Up Acts were the court's administrative duties in the colonial period. The bulk of litigation, both civil and criminal, occurred in the two lower courts, and it is these that are the focus of this chapter. The Small Debts or County Courts and the Mining Courts dealt most directly with securing property and with the most people.18 The majority of the cases were suits for debts; not an unusual state of affairs in a frontier setting. As Douglas McCalla and Graeme Wynn demonstrate, merchants played an important role in the development of the Canadian frontier.19 By advancing credit, these merchants absorbed much of the risk and the cost of resource extraction and settlement. On the British Columbia mining frontier the same process can be seen at work. Attracted by the possibility of profiting from the influx of miners into the colony's interior, Victoria and New Westminster merchants engaged in a rush of their own as each scrambled to get his consignment of goods upcountry. In May 1860 Magistrate E.H. Sanders 116 reported that "the business at Yale is rapidly assuming a California phase (and a bad one), viz. a pure credit system. Miners and upcountry traders seldom pay for goods as ordered, but require time, in many cases six and eight months."20 By August, Sanders noted that the credit system had gained ground: "even the Chinamen have their pass-books in trading with white merchants whilst amongst themselves credit is almost unlimited."21 The colony's law officers expressed concern over this liberal extension of credit, and dismay over the speculative activities of these merchants. "The real cause of the depressed state of affairs is the partial exhaustion of the Gold Mines [and] the failure of the Miners and others to meet the unlimited and ruinous credit that had been so freely extended to them," wrote Stipendiary Magistrate William Cox in 1867.22 From New Westmin-ster, Police Magistrate Chartres Brew confessed, "I do not know...a single Merchant who commenced business with Capital," all obtained their Stock in trade on credit ~ payment within sixty days to be considered Cash — after that 2 per cent a month interest to be charged on the debt. Merchants who were thus set up in business instead of using their returns in clearing off their Indebtedness continued paying this ruinous interest which no reasonable profits could support, and applied their receipts In extending their business prospecting — placer diggings — artesian Mining — Bed rock drain — Bed rock flume — Steam Boat and other Companies scarcely one of which has proved hitherto remunerative....The result of such a system was inevitable, failure must come sooner or later, and it has come upon many: Numbers of the embarrassed Merchants in Victoria must know that their difficulties are to be attributed either directly or indirectly to dabbling in Mining Stock — many of them went largely into it themselves, and others gave extensive credit to men who ruined themselves and those who trusted them, by entering into that uncertain and hazardous speculation.23 The business of the colony's courts reflected a preoccupation with the regulation of the economic activity that stemmed from the gold rushes. The 117 Gold Production and Civil Suits in British Columbia, 1858-1871 Millions of Dollars Number of Plaints 600 1868 1859 1860 1861 1862 1863 1864 1865 1866 1867 1868 1869 1870 1871 Year Legend Gold Production — C o u n t y Court Plaints Figure 3-2 118 Cariboo was the heart of mining activity in the colonial period and thus generated most of British Columbia's civil litigation. Although Barkerville was the largest settlement, Richfield, to the south on Williams Creek, was the district's admini-strative centre. If we take the Richfield County Court as typical, then civil cases comprised almost three-quarters of the litigation in British Columbia.24 The number of plaints entered at the county court level peaked in 1863-64 and 1867-69, coinciding with an increase in mining activity and an extension of credit in the wake of the Cariboo (1862) and Kootenay (1865) gold rushes (Figure 3-2). In civil cases in the nineteenth century, plaintiffs took the initiative in commencing actions.25 In county court proceedings, prospective plamtiffs had to file an affidavit stating the reasons for their claim with the Judge or Court Registrar. Leave to commence a county court action was left entirely to the discretion of these legal officials. Once the judge granted permission to proceed, the action commenced with the entry of the "plaint" in the courts record book. A summons to appear, containing the names of the plaintiff and defendant, the nature of the claim and the date of the hearing, was issued by the court and "served," or presented to the defendant. Service of the summons was carried out by the sheriff, or more often in British Columbia, by a constable attached to the district. The document had to be given to the defendant directly, unless he worked at a mine, in which case the summons could be left with the person in charge. If the summons could not be served because the plaintiff had mis-stated the name, residence or place of business of the defendant, or if the defendant had moved, the action ceased. 119 Another one, at additional cost, could be initiated if sufficient information was available. Once the summons was in the hands of the defendant, he had a variety of options. If he admitted his debt as stated in the summons, called "confessing the plaintifTs claim," he had to deliver his confession to the court at least five days before the date of the hearing. If, instead, he and the plaintiff could come to some agreement as to the amount and method of payment, such an agreement had tobe registered with the court before the hearing. No appearance in court was then necessary. In either case, the amount admitted and a proportion of the costs had to be paid into the court by the defendant. The defendant could, however, choose to defend himself. If he did, he had to inform the court five days before the hearing. In addition, he had to file details of his defence with the Registrar, who would deliver them to the plaintiff. Notices of defence could only be received by the court upon payment of court fees for entering and transmitting such information. The defences available included anything from a complete denial of the claim to proposing a "set-off1; that is, proposing to pay a lesser sum td the plaintiff. Defendants also pleaded the statute of limitations, coverture, infancy and bankruptcy as their defences. Prior to the hearing, parties to the action could ask the court for leave to examine their opponents or for certain documents to be deposited with the court as evidence. Any time before or during the trial plaintiffs could withdraw their actions or defendants could confess or otherwise settle the action. 120 With few exceptions (2.7%), the actions brought forward in the colony's Small Debts and County Courts throughout the period were launched to recover debts (Table 3-1). Three-fifths (60.3%) were a direct result of merchants extending credit for goods sold and delivered (37.0%) or by individuals extending credit in the form of promissory notes (23.3%). While mining activity was dependent on the extension of this kind of credit, the county court records also reveal a second kind of economy in operation in the gold fields. What might be called a "service sector" grew up around TABLE 3-1: COUNTY COURT ACTIONS, 1858-1871. ACTION N % N/A 305 8.9 PROVISIONS 1254 37.0 MINING 33 1.0 SERVICES 94 2.8 PROMISSORY NOTE 789 23.3 BUILDING MATERIALS 76 2.2 ROOM & BOARD 170 5.0 DAMAGES 93 2.7 FREIGHT 37 1.0 JUDGEMENT 57 1.7 LABOUR 363 10.7 MISCELLANEOUS 119 3.5 TOTAL 3389 100.0 Source: see Appendix. the mines and was responsible for many of the suits launched. Actions for unpaid bills for board, medical attention, legal services, and, occasionally, a hair cut or the rental of a billiard table, point to the existence of a less transitory community in the Cariboo that was the locus of permanent settlement and whose inhabitants initiated many county court actions. 121 The regulation of gold mining received early attention from the colonial government. Created in August 1859, Gold Commissioner's, or Mining Courts heard all rriining disputes arising within a given district.26 A single Assistant Gold Commissioner armed with "the same power and authority [to enforce decisions] as...exercised in the Supreme Court of Civil Justice of British Columbia" rendered decisions summarily. Additional rules and amendments to the Gold Fields Acts were made in the next five years.27 As well as sitting in judgement over rriining disputes, Assistant Gold Commissioners issued mining licences, collected the various licensing fees, monitored the productivity of the diggings and presided over locally-elected Mining Boards which drafted bylaws regulating the operation of the local mines. Despite their "litigious" label, miners did not resort to the Mining Court as frequently as might be expected. Mining Court cases comprised only 20% of the total litigation in Richfield, the only district for which mining court records are extant for the colonial period.28 Though the court was established to deal with disputes that grew out of mining activity, just over two-fifths of its caseload consisted of disputes not directly a result of mining activity (Table 3-2). 122 TABLE 3-2: RICHFIELD MINING COURT: ACTIONS. 1864-1871. ACTIONS N % TOTALS JUDGEMENT 11 1.6 WAGES 165 23.7 NON-MINING MATERIALS 52 7.5 41.7 MONEY 8 1.2 TRADESMEN'S SERVICES 14 2.0 ASSESSMENT 56 8.1 DAMAGES 21 3.0 DISOBEYING COURT ORDER 7 1.0 DRAINAGE 27 3.9 MINING INTEREST IN A CLAIM 61 8.8 58.3 PARTNERSHIP 1 0.1 OBSTRUCTING CLAIM 47 6.8 RIGHT OF WAY 5 0.7 TRESPASS 152 21.9 WATER 28 4.0 MISCELLANEOUS 40 5.8 5.8 TOTAL 695 100.0 100.0 'Source: See Appendix. These were actions for debt, not unlike those heard in the county court. In fact, suits launched for mining-related wages made up the single largest type of action (23.7%). The presence of non-mining suits in the Richfield Mining Court is further evidence of the overlapping functions of the various parts of the colony's legal system. But these actions are suggestive of more than the unspecialized nature of the emerging legal apparatus, because they can tell us something of the behaviour of plaintiffs within the system of colonial courts. Why were those non-mining disputes heard before the mining court and not the usual venue for such actions, the county court? Before 1866 county court jurisdiction was limited to 123 £50 ($250).29 Cases involving sums greater than that had to be tried in the Supreme Court, unless — and this is the crucial point — they were somehow related to mining. The Gold Fields Acts were silent on just what kind of action was considered under the Jurisdiction of the Mining Court, leaving that to the discretion of the Assistant Gold Commissioner. Given that the commissioner and the county court judge were the same person, it is unlikely that a strict distinction was made between the mining and non-mining disputes. Instead, the disposal of these non-mining cases was largely dependent on the actions of the plaintiff. When they had the choice, plamtiffs chose the Mining Court over the County Court because of the attractiveness of their summary proceedings, which likely were faster and less expensive than a county court action. In addition, because of the large amount of money at stake in many mining court actions, the choice open to the plaintiff was not between the mining court and the county court, but between the mining court and the Supreme Court. Given the higher schedule of fees in the superior court and its relatively ponderous proceedings, it is not surprising that plamtiffs opted for the inferior court, where their cases were treated with greater dispatch before a magistrate with whom they were familiar. Turning to the value of the suits launched in the county courts, it is clear from Table 3-3 that despite the extension of the court's Jurisdiction from £50 ($250) to £100 ($500) in 1866, over one-third (37.6%) of the cases heard were actions for sums of £10 ($50) or less, and 60.9% were for £20 ($100) or less. Suits launched in the "Lower Country" (that is, below Lillooet) courts exhibited a pattern different from those 124 TABLE 3-3: VALUE OF COUNTY COURT ACTIONS, 1858-1871. VALUE ($) TOTAL LOWER COUNTRY UPPER COUNTRY % % (N=3389) (N=1164) (N=2225) 0 0.3 0.8 0 1-50 37.6 43.5 34.6 51-100 23.3 20.0 24.9 101-200 23.7 21.2 25.0 201-300 10.7 10.8 10.6 301-400 1.8 1.2 2.1 401-500 2.5 2.0 2.8 500+ 0.2 0.5 0 MEDIAN $61-70 $41-50 $71-80 Source: See Appendix. launched in the "Upper Country." With a bit of variation, the farther away one got from the population and administrative centre of New Westminster, the higher the value of the suit. The median value of lower country suits was $41-50, while In the upper country the median value ranged from $71-80, some 60-75% higher. In New Westminster itself, actions for sums less than $50 constituted almost two-thirds (63.6%) of the business of that court, while suits for $50-100, $100-150 and $150-200 comprised 17.4%, 7.3% and 3.4% of the plaints entered. Converse-ly, at Richfield, in the upper country, actions for less than $50 made up only 37% of the business of that court. This pattern likely reflects the relative ease with which cases were brought forward In New Westminster, and the lower cost of goods there.30 Because county courts in the Interior of the colony served larger geographic areas, individuals who wished to launch actions were often required to travel some distance, thus making suits for debts at the lower end of the scale too costly to pursue. As well, because transporting goods to the gold fields added 125 substantially to their cost, cases launched to recover debts occasioned by the purchase of provisions were necessarily of greater value than similar ones initiated at settlements closer to New Westminster. Unlike the county court, the mining court's jurisdiction was not limited to suits below a certain sum, even though the same magistrate served as both county court judge and assistant gold commissioner. Given the higher value of mining property and the higher wages in the gold fields, the average value of mining court actions was $523, almost five times that in the county court. The median value of mining court cases was two and a half times that for the county court ($187). Actions for wages in the mining court averaged $278 (median $179). Much has been made of the costs of going to court in the past, mainly in an attempt to demonstrate that the formal mechanisms of the law were beyond the means of the majority of the population, and hence that the historian is better employed in the task of recovering the more informal practices of dispute resolution. But was this the case? My data suggest that costs were not prohibitive. Court costs were higher in the upper country, as Table 3-4 indicates, but the median costs were not that different. 126 TABLE 3-4: COST OF COUNTY COURT ACTIONS, 1858-1871. COSTS ($) LOWER COUNTRY UPPER COUNTRY % % (N=1045) (N=1437) 0 8.3 0.6 1.01-5.00 53.3 45.6 5.01-10.00 21.6 26.6 10.01-15.00 7.2 16.0 15.01-20.00 3.6 5.9 20+ 6.0 5.3 MEDIAN $4.50 $5.00 Source: See Appendix. Without reference to income levels this discussion of the value and the costs associated with launching a suit lacks meaning. However, because data on standards of living and wages for the colonial period do not exist, I can only venture some informed guesses based on two sources: estimates of wage rates in the Colonial Office Blue Books of Statistics on British Columbia and contemporary comments of the colony's legal personnel. There was a difference in income between the upper country gold districts and the communities below Lillooet. From the Colonial Office estimates, lower country unskilled labourers averaged between $40 and $50 per month from 1860 and 1870, while skilled tradesmen (carpenters and blacksmiths, for instance) could earn double that or more.31 At the same time, labourers in the gold fields could earn from $50-75 per month, while a miner's income was estimated at $10 per day in 1864, and $6 to $8 per day in 1867-1870.32 Less systematic, though probably no less accurate, were the occasional comments of the colony's law officers, who often complained of the high wages that could be commanded in the gold fields. During his tour of the 127 Fraser at the beginning of the 1858 rush, James Douglas noted that it was "impossible to get Indian labour at present as they are all busy mining, and make between 2 and 3 dollars a day each man."33 Three years later, in 1861, the situation had not improved. "[T]he labourers who can be commanded are very few,...[fjor the large proportion of miners cannot be induced to work a mine for wages at all or otherwise than as owners," Matthew Baillie Begbie reported. The rates of wages, viz. $10 for mining, and $8 for ordinary work, hewing logs &c. indicate the high rate of production in the mines. So do the rates of all the articles beyond the first necessaries. When a man will give $12 for a bottle of American Champagne, his gold must be a burthen to him....3 4 These figures, rough as they are, put the value of suits launched in the county courts in some perspective. Three-fifths (59.3%) of the suits launched were for sums greater than the highest average monthly income for labourers. Put another way, the median value of a county court suit ($41-50 in the lower country and $71-80 in the upper country) was equivalent to one month's income for a labourer, and about ten day's returns for a miner: a substantial sum. This statistic acquires increased significance given the seasonal nature of mining and the uneven returns experienced even when the mines were in operation. The high and fluctuating cost of provisions, which according to Magistrate Thomas Elwyn, were "crippling every man in the mines," only underscored the fact that much was at stake in the outcome of a county court suit in British Columbia.35 When the potential gains were as great as they were, it seems unlikely that median court costs of $4.50-5.00 ~ approximately 10% of a labourer's monthly income, or less than a day's work for a miner ~ were prohibitive to prospective suitors. 128 So far we have ascertained that creditors had much to gain and debtors much to lose in the litigation process. But there is more. The disposal of county court cases reveals three things (Figure 3-5): first, that plaintiffs were successful in recovering debts owed them. Three of every five plaints entered were resolved in favour of the complainant. Conversely, defendants were successful less than one in every ten times (7%). Third, and equally striking, are the number of cases settled out of court. Whereas most actions initiated today are settled out of court, almost nine-tenths (87.1%) of the cases in nineteenth-century British Columbia were resolved by court intervention. A closer look reveals some important subtleties (Table 3-5). Of the decisions resolved 129 TABLE 3-5: COUNTY COURT DECISIONS. 1858-1871. GENERAL SPECIFIC N % DECISION DECISION N/A 126 3.7 FOR THE P 1174 34.6 CONFESSED 461 13.6 FOR PLAINTIFF DEFAULT 202 6.0 PAID 52 1.5 SATISFIED 14 0.4 FOR THE D 89 2.6 FOR DEFENDANT WITHDRAWN 102 3.0 NON SUIT 47 1.5 SETTLED 206 6.1 NO APPEARANCE 155 4.6 DISMISSED 106 3.1 NO SERVICE 68 2.0 OTHER STRUCK OUT 44 1.3 ADJOURNED 36 1.1 POSTPONED 33 1.0 SUMMONS ONLY 22 0.6 OTHER 16 0.5 SETTLED OUT OF COURT 436 12.9 TOTAL 3389 100.0 Source: See Appendix. In the plaintiffs favour, 34.6% were straight judgements for the plaintiff; 13.6% were "confessed" (that Is, a formal and full admission of the charge was made by the defendant); and 6% were resolved in the plaintiffs favour because the defendant did not appear to stand trial. Only 2.6% of the cases resolved in the defendant's favour resulted from a judgement of the court. In fact, defendants won more cases by default (4.5%); that is, when the plaintiff withdrew his suit, failed to appear or had a non-suit declared. Finally, under the category of "other" 130 decisions two figures are especially notable: those for no appearance and no service. 4.6% of all cases did not proceed because the plaintiff or both the plaintiff and the defendant did not appear, and 2.3% did not proceed because proper service of the writ of summons was not or could not be executed. These figures reveal some Interesting patterns. First, judges awarded plaintiffs at least eight times as often as defendants (56.1% v. 7.1%), indicating that the courts favoured the security of property. Despite their poor chances, however, defendants chose to settle out of court just a little more than once every ten times (12.9%), placing their faith instead on court intervention (87.1%). In fact, actions went to a full trial at least four times in tenl This willingness on the part of defendants to abide by the forms of legal process is further supported by the figures for actions which were ended by failure to serve the summons (indicating that the debtor absconded; 2.8%), by default (6.8%). or by the non-appearance of the plaintiff and/or the defendant (4.6%). In total, just 14.2% of all actions were decided in one way or another by a failure to appear. British Columbians usually came to court to answer their creditors' claims. Decisions in the mining court mirror those seen for the county court (Table 3-6). 131 TABLE 3-6: RICHFIELD MINING COURT: DECISIONS, 1864-1871. DECISION N % N / A 15 2.2 FOR PLAINTIFF 285 41.0 FOR PLAINTIFF BY DEFAULT 9 1.3 CONFESSED 81 11.7 FOR DEFENDANT 63 9.1 FOR DEFENDANT NON SUIT 19 2.7 WITHDRAWN 16 2.3 SETTLED OUT OF COURT 29 4.2 ADJOURNED 17 2.4 DISMISSED 90 12.9 NO APPEARANCE 5 0.7 OTHER PAID 5 0.7 POSTPONED 3 0.4 SATISFIED 1 0.1 SETTLED 40 5.8 OTHER 17 2.4 TOTAL 695 100.0 *Source: See Appendix. Cases were rarely settled out of court or withdrawn after an action had been initiated. Equally rare were cases where the principals did not appear: default Judgements and non-appearances comprised only 2% of all cases, suggesting ~ as was the case with the county courts — that the miners' proverbial transiency was not as much of a problem as might be expected. British Columbia's inferior courts showed themselves to be protectors of property, rewarding plamtiffs in almost 60% of the cases launched. The courts' actions would be meaningless, however, if they could not enforce their decisions. Unfortunately, there is little information about the execution of court orders. The 132 colony's sheriff, whose job it was to carry out the decisions of the courts, left behind no records. Given British Columbia's sparse population and the limited numbers of constables, enforcement would appear to be problematic. On the criminal side of the law, difficulties in enforcement were a constant source of worry to Begbie and his fellow magistrates. Despite these concerns, few suitors voiced complaints. Only 1.7% of county court actions were launched to enforce previous judgements of that court (see Table 3-1). The comments I have gleaned seem to indicate that the courts were successful in executing their decisions. On Vancouver Island, David Cameron seized Robert Staines* pigs with the aid of a constable sworn in especially for the occasion. It was an expensive endeavour, costing nearly $140, or about one-third of the Chief Justice's annual income. When Malvina Jane Toy, a Clinton innkeeper, succeeded in winning her suit against Francis Barnard in 1867, an angry Barnard complained to the Attorney General. The County Court did not grant him sufficient time to comply with its verdict, and seized his property. The sheriff took Barnard's coach and horses and assumed possession of his real estate at Clinton. Had his lawyer not "paid the money under protest my stage would have been stopped for several days and myself put to great inconvenience." Imprisonment was also an option exercised by the court against debtors it considered likely to abscond before a trial, as well as those unable to pay their debts following a judgement against them. Incarceration was no small matter. John and Robert Cranford, whose case I will discuss in Chapter Five, were arrested in 1862 for debt and imprisoned for eighty-four and sixty-six days 133 respectively. The "Debtors' Prison," which was part of the New Westminster jail, where the Cranfords were held was a notorious place, thanks to the critical editorials published by the British Columbian. John Robson, the newspaper's editor, had been an inmate of the jail after the Cranfords' stay. The night he spent there left a deep impression on him, punctuated as it was by "the shrieks of a dying maniac" and the smells of "noxious effluvia."36 British Columbians were particularly sensitive to the whole issue of imprisonment for debt in late 1862. In the weeks just prior to the Cranfords' trial, and Robson's imprisonment, British Columbians had been regaled with stories of the horrors of New Westrninster's debtors' prison, which culminated in the death of one of its inmates, James Locke.37 Such sentiments must have touched British Columbia's colonial administrators, because shortly afterwards the law respecting bankruptcy and insolvency was amended and imprisonment for debt outlawed. Although the courts had the power to enforce their decisions, their effectiveness still relied on the willingness of both parties, especially the defendants, to abide by its rules and proceedings. At least part of the reason for this willingness lay in the barriers to mobility in the gold fields. People could not readily escape a court action. The miners were a transient group of labourers, but the ease with which they could move has perhaps been exaggerated. The Gold Fields Acts placed restrictions on the length of time a claim could remain unworked before it was considered abandoned, and hence subject to be claimed by other miners. Aside from these statutory restrictions, miners could have a substantial amount of time and capital invested in their claim that they could not 134 leave behind easily. And of course there was always the eternal optimism of the gold fields ~ the ever-present hope of striking it rich — that could be the heaviest anchor of all tying a miner to his claim. Miners were not the only people who appeared before the courts, however. More than half (53.6%) of Richfleld's County Court plamtiffs, who were likely miners, appeared only once. However, these "one shot players," to use Marc Galanter's terminology, TABLE 3-7: NUMBER OF APPEARANCES BY RICHFIELD PLAINTIFFS, 1862-1870. APPEARANCES N P % P N c % c 1 254 53.2 254 18.4 2 93 19.5 186 13.4 3 35 7.3 105 7.6 4 23 4.8 92 6.6 5 20 4.2 100 7.2 6 14 2.9 84 6.1 7 7 1.5 49 3.5 8 7 1.5 56 4.0 9 2 0.4 18 1.3 10 1 0.2 10 0.7 11-15 5 1.0 73 5.3 16-20 6 1.3 70 5.1 21+ 10 2.1 287 20.7 TOTAL 477 100.0 1384 100.0 Source: See Appendix. Np=number of plaintiffs %p=percentage of plamtiffs Nc=number of cases %c=percentage of cases accounted for only 18.4% of the county court cases launched in Richfield.38 "Repeat players" (those appearing more than once) are responsible for the 135 remaining foiir-fifths. Of the cases involving these repeat players, over one-quarter (25.4%. or 20.7% of the total) were initiated by ten individuals, or just 2.1% of the plaintiffs; and almost half (45.5%, or 37.1% of the all cases) were initiated by just 30 (5.9%) people. These 30 individuals might be considered Richfield's "litigious class." Of these, 19 (63.3%) were merchants and 4 (13.3%) were saloonkeepers.39 The predominance of merchants is not surprising, and conforms to contemporary opinions about the extension of credit on the resource frontier. Richfield defendants comprised a larger pool of the general population (777 versus 477 people). As with the plamtiffs, however, although "one-shot" defendants made up over t^o-thirds of all defendants, they accounted for only 37.8% of all cases. 136 TABLE 3-8: NUMBER OF APPEARANCES BY RICHFIELD DEFENDANTS, 1862-1870. APPEARANCES N P % P N c 1 523 67.3 523 37.8 2 125 16.1 250 18.1 3 58 7.5 174 12.6 4 21 2.7 84 6.1 5 20 2.6 100 7.2 6 11 1.4 66 4.8 7 7 0.9 49 3.5 8 2 0.3 6 1.2 9 3 0.4 27 1.9 10 3 0.4 30 2.2 11+ 4 0.5 65 4.7 TOTAL 777 100.0 1384 100.0 Source: See Appendix. Np=number of defendants %p=percentage of defendants Nc=number of cases %c=percentage of cases 16% of the actions involving repeat defendants are accounted for by only 12 (1.6%) individuals. This "debtor class" consisted of a surprising mix of people. Instead of miners, Richfield's most frequent debtors were doctors, lawyers, saloonkeepers, boarding house operators, merchants and carpenters.40 These people were even less mobile than the miners because of the nature of their occupations. The gold rush had brought them to the colony's interior, but when the gold claims were played out they were left with a ledger-full of credit notes and debts of their own. Perhaps the most important reason why British Columbians resorted to the courts is suggested by the disposal of cases. In both the County and the Mining 137 Courts few actions were settled out of court. The Intervention of a formal arbiter was necessary for most disputes to be settled because of the nature of colonial society. British Columbia lacked the social cohesion necessary to make informal settlements work, and people resorted to the courts because they were the only common denominator of communication. In a colony as new as British Columbia, and with a diverse population scattered over a wide geographic area engaged in an economic activity that encouraged transiency and instability, social interaction was not easy. In this context, the law was one of the few experiences British Columbians shared. It was the social cement that bound colonists together — at least momentarily — to solve problems that in more settled communities might be worked out outside formal institutions. There were three aspects of colonial society that contributed to the "bondlessness" suggested by this pattern of civil litigation: its demography, geography and economy.41 From its beginnings as a gold colony, British Columbia was a place dominated by single men. Despite the best efforts of the colonial government to attract women to the colony, the ratio of men to women was skewed throughout the nineteenth century. At the height of the Cariboo rush the ratio of men to women was 20:1, and by Confederation it had improved only to 8:1.42 Unlike other societies where the sex ratio was more even, British Columbia was not knit together by kin ties. It took a long time to overcome the imbalance, and the process was not helped by the continual irnmlgration of greater numbers of men than women.43 138 If the colony's demography did not lend it much internal cohesion, neither did its settlement pattern. Outside the administrative centres of Victoria and New Westminster there were few permanent settlements. The colony's thin population was scattered in isolated farms on Vancouver Island, while on the mainland it was located in impermanent mining camps. Governor Frederick Seymour found the situation demoralizing and complained to the Colonial Office. "It would be difficult to imagine a post more hard to fill than the one I now occupy," he wrote. Where on the Fraser 12,000 or 13,000 white men washed up Gold, a solitary Chinaman working his "rocker" represents the population for the mile of river.44 The scattered nature of the population, combined with the colony's rugged geography and poor road system did not favour social interaction. Life in British Columbia was often solitary and lonely. British Columbia's upcountry miners may have boasted that they were "free and easy as Lords," but their letters home belied their confident sentiments.45 The new El Dorado was not as adventurous or romantic as it was supposed to be: in fact, it was fairly tedious. A miner often spent his days slogging through mud and rock, stopping only for meals of "bread, beans and bacon with an occasional mess of very tough beef." 4 6 The delights of Barkerville were not frequently experienced ~ especially when the miner's claim did not produce. The upcountry miner was not the only person who suffered the frontier blues, however. British Columbia's colonial a(iministrators were not immune to bouts of homesickness. Their letters to each other spoke wistfully of "Home" and of their own efforts to overcome the loneliness of life in the "imperial stump-field."47 Englishmen like interim Governor Arthur Birch dealt with life in 139 the far corners of the Empire by recreating the familiar rituals associated with his social station, as this letter to his brother showed. We are very religious in our regulations, having passed a law for White Ties every day at dirmer....This is one of the only ways of keeping up civilization in a place like this.48 Matthew Begbie's letter to an English friend also underscored the emptiness many Europeans felt. "When you write," he told his friend, "you should write gossip." Why is the Times so much better than the Evening Mail? — because it has more gossip — even births, d[eaths] & m[arriages] are interesting out here, though you never read them at home. Police reports, law reports, letters from indignant correspondents ~ those are what one likes out here.49 Apart from the particular ways these British Columbians dealt with their environment, the language they used is suggestive: British Columbia is referred to as "out here," and the virtues and civility of life at "home" are contrasted with "a place like this." These British Columbians, like so many others, looked beyond the colony and the sea to define themselves. Because their emotional ties, like their economic ones, lay outside British Columbia the colony's internal coherence suffered. Perhaps most importantly, the nature of the colonial economy retarded the development of permanency and stability. The gold economy, like the other mineral, timber and fishing economies that followed it, was volatile and beyond the control of British Columbians to alter. These staple economies required a labour force that was mobile and increasingly specialized, but could employ them for only part of the year. The demands of such an economic system worked against the creation of a permanent, stable and integrated society. Even after the 140 colonial period, British Columbia remained an archipelago of settlements unconnected to each other, populated by people who had come to service a particular staple economy but were left behind when the gold or silver, copper, lead or zinc, the trees or the fish were exhausted. Unlike the money that financed resource exploitation and the men whose labour carried it out, people like Barkerville's blacksmith William Winnard or Clinton innkeeper Malvina Jane Toy were not mobile. Their limited means had allowed them one chance to take advantage of the opportunity the staple economy held out, but no more. When the mines petered out, William and Malvina were more or less stuck, left to make a living in communities left in the wake of an international economy over which they had little control, and perhaps, if Governor Seymour was any indication, little understanding. Hope is 'played out.' Lytton languishes. Princeton contains one occupied house. But Barkerville in Cariboo has made considerable progress. Yale flourishes. New Westminster has not retrograded since I have known it. But Victoria, the largest of our towns, has lost all confidence in herself. Things are dull and depressed.... My great grievance with the colony is this determination of people to leave it. Let them set themselves in opposition to the Government. That is fair in an unprospering colony. But the opposition shewn by selling off furniture and nailing up doors and windows and leaving the Colony is one, I confess, to which I cannot be indifferent.... I hardly know what remedy to suggest.50 Together, demography, geography and economy conspired against permanency and stability. British Columbia was a society without the cohesion lent by kin, neighbour or workplace. As a result, it was not a place that developed the strong informal or formal institutional ties that consolidated the non-native presence in other British North American societies and gave them an internal 141 focus. The transient nature of its population worked against the formation of fraternal organizations like the Orange Lodge, and cultural institutions like natural history societies, museums; or theatres developed late, were limited to Victoria and, to a lesser degree, New Westminster, and were like Arthur Birch's "White Ties at dinner," a manifestation of the English colonial elite. "The history of British Columbia is brief. Gold made it and gold unmade it."51 The pithy comment English traveller W.A. Baillie-Grohmann made at the turn of the century encapsulated two fundamental realities of colonial life: the dominance of the economy in British Columbia and its precariousness. The pattern of litigation confirmed and elucidated both these aspects. Civil rather than criminal matters preoccupied British Columbia's courts, and actions for debt comprised the bulk of civil litigation In its inferior tribunals, something the colony shared with other Jurisdictions.52 Both the extent and types of debt cases illustrated that commerce was an important part of the frontier economy and that land was not. Cases involving disputed land title or trespass were almost unknown in the County Courts; and while they did comprise the 22% of Mining Court actions, mining properties were part of a larger system of commercial and industrial capitalism rather than a settled agrarian economy. The colony's courts further underlined the importance of commercial property by favouring the plaintiff/creditors in their decisions. Despite the tendency of British Columbia's courts to secure property, few defendants chose to settle out of court. The resolution of most cases required the 142 Intervention of the court, and at least half of the actions commenced went to trial. The degree to which the courts were called on to intervene indicates that they were truly institutions of dispute resolution and says something about the character of colonial society and the role the law played in providing the ethical foundations for political authority. With little social cohesion to facilitate the mutual understanding necessary for out-of-court settlements British Columbians turned to formal institutions to bridge the communication gap between them. The heightened importance the law had in nmeteenm-century British Columbia, as a means to secure property and as a sort of social glue, meant that British Columbians took an active interest in its administration for both material and emotional reasons. Maladministration of the law threatened to endanger the colony's prosperity as well as rent its very loosely-knit social fabric, and because of this, political authority in the colony rested on very shaky ground. 143 NOTES 1. Douglas to Labouchere, Victoria, Vancouver's Island, 8 May 1858. Great Britain. Colonial Office. British Columbia Original Correspondence. CO 60/1. National Archives of Canada (hereafter NAC). MG 11, reel B-77, 12. 2. Margaret Ormsby. British Columbia: A History (Toronto, 1958), 140. Prior to becoming a separate colony, British Columbia, or New Caledonia, as it was known, was a fur trade preserve of the HBC. 3. Duncan George Forbes Macdonald. British Columbia and Vancouver's Island.... (London, 1862), 333. 4. See Stanley Ruzicka, "The Decline of Victoria as a Metropolitan Centre of British Columbia, 1885-1901." University of Victoria M A thesis (history), 1973. 5. J.M.S. Careless, "The Business Community in the Early Development of Victoria, British Columbia," in J . Friesen and H.K. Ralston, eds., Historical Essays on British Columbia (Toronto, 1976), 177. 6. For instance, Emily Carr considered Victoria in the 1870s "was like a lying-down cow, chewing." She had made one enormous effort at upheaval. She had hoisted herself from a Hudson's Bay Company Fort into a little town and there she passed, chewing the cud of imported fodder, afraid to crop the pastures of a new world, for fear she might lose the good flavour of the old to which she was so deeply loyal. Her Jaws went rolling on and on, long after there was nothing left to chew [Emily Carr, The Book of Small (Toronto. 1942), 139]. 7. Gilbert Malcolm Sproat. Memorandum on British Columbia, 18 June 1867. NAC. MG 11, CO 60/37, reel B-105, 584-586. 8. Douglas to Labouchere, Victoria, Vancouver's Island, 29 December 1857. Great Britain. Colonial Office. Vancouver Island Original Correspondence. CO 305/8. NAC. MG 11, reel B-237. 272-275, 285-288. 9. Douglas to Lytton, Victoria, Vancouver's Island, 26 October 1858. NAC. MG 11, CO 60/1, reel B-77, 245-255. 10. Lytton to Douglas, 31 July 1858. Cited in Phyllis Margaret Mikkelsen, "Land Settlement Policy on the Mainland of British Columbia, 1858-1874," University of British Columbia M.A. thesis (History), 1950, 47. On land policy in general see Robert Call, Land, Man and the Law: the Disposal of Crown Lands tn British Columbia, 1871-1913 (Vancouver, 1974), Chapter One. 144 11. Proclamation respecting the method to be pursued with respect to the alienation and possession of Agricultural Lands, and of Lands proposed for sites forTowns, in British Columbia...., 14 February 1859. Unless otherwise noted, all statutes cited are from Micromedia's collection of Pre-Confederation Canadian Statutes. Douglas to Lytton, Victoria, Vancouver's Island, 19 February 1859. CO 60/4, reel B-80, 174. 12. An Act to enable Aliens to hold and transmit Real Estate, 1861. 13. Proclamation relating to the Acquisition of Land in British Columbia, 4 January 1860; and Proclamation respecting occupation of Pre-empted Land, 28 May 1861. 14. Douglas to Newcastle. Victoria, Vancouver's Island, 24 August 1860. CO 60/8. reel B-83. 81-83. 15. Proclamation Lowering the Price of Country Lands, 19 January 1861. 16. Only 1696 pre-emption claims were made by 1868 (ten years after the creation of the colony), and not more than 6000 acres were under cultivation. In the New Westminster district [the oldest area of settlement] only 27,797 acres of land were purchased by 1868, and of this less than 250 acres were under cultivation. See Mikkelsen, 2. 163. 17. Douglas to Lytton, Victoria, Vancouver's Island, 18 October 1859. CO 60/5, reel B-81, 184. 18. The Small Debts Courts were created in 1859 to deal with the many suits for debt generated during the Fraser River gold rush. They sat in the principal settlements along the river and had colony-wide jurisdiction to hear cases involving sums less than L50. A Stipendiary Magistrate, who was also the Assistant Gold Commissioner, sat in judgement over these cases. The Mining, or Gold Commissioner's Courts were also created in 1859 and sat in the primary mining settlements. They had jurisdiction to hear all rnining or mining-related cases and to detennine them summarily. The Assistant Gold Commissioner also issued mining licences and collected the various associated fees. 19. Douglas McCalla, The Upper Canada Trade, 1834-1872: A Study of the Buchanan's Business (Toronto, 1979); and Graeme Wynn, Timber Colony: A Historical Geography of Early Nineteenth Century New Brunswick (Toronto, 1980), especially chapter 5. 20. Sanders to Young, Yale, 11 May 1860. British Columbia. Colonial Correspondence. British Columbia Archives and Records Service (hereafter BCARS). GR 1372, reel B-1362, f 1554. 145 21. Sanders to Young, Yale, 8 August 1860. BCARS. GR 1372, reel B-1362, f 1554. 22. W.G. Cox to the Colonial Secretary, New Westminster, 18 January 1867, enclosed in Seymour to Carnarvon, New Westminster, 18 March 1867. CO 60/27. NAC. MG 11, reel B-97, 414. 23. Brew to the Colonial Secretary, New Westminster, 21 January 1867, enclosed in Seymour to Carnarvon, New Westminster, 18 March 1867. CO 60/27. NAC. MG 11, reel B-97, 401-402. 24. The Richfield County Court is the only one for which data for civil and criminal cases is strictly comparable. Because civil cases from this County Court comprise almost half (45.8%) of the cases in the period 1858-1871, I have assumed that it is "typical." 25. The information on pretrial procedure is taken from Lord Halsbury. The Laws of England, Hailsham edition, (London, 1907), volume 8, "County Courts." 26. The Gold Fields Act, 1859 [31 August 1859]. 27. The Gold Fields Act, 1859 [7 September 1859]; Rules and Regulations for the Working of the Gold Mines under the Gold Fields Act, 1859 [7 September 1859]; Rules and Regulations for the Working of Gold Mines, issued in conformity with the Gold Fields Act, 1859 (Bench diggings), [6 January I860]; Rules and Regula-tions under the Gold Fields Act, 1859 (Ditches) [29 September 1862]; Further Rules and Regulations under the Gold Fields Act, 1859 [24 February 1863]; Proclamation amending the "Gold Fields Act, 1859" [25 March 1863]; The Mining District Act, 1863 [27 May 1863]; The Mining Drains Act, 1864 [1 February 1864]. 28. On the "litigious" miners, see David Williams, "...TheManforaNew Country": Sir Matthew Baillie Begbie (Sidney, B.C., 1977), Chapter V; and his "The Adrninistration of Criminal and Civil Justice in the Mining Camps and Frontier Communities of British Columbia," in Louis A. Knafla, ed., Law and Justice in a New Land: Essays in Western Canadian Legal History (Calgary, 1986). 29. A Proclamation to afford a clear and speedy method of recovering small Debts and Demands in British Columbia, 10 December 1859. Its provisions were amended in 1866 by An Ordinance amending the procedure of the County Courts of the Colony of British Columbia, 5 April 1866. 30. As was noted in the Colonial Office's Blue Books of Statistics, prices "increase as you proceed into the Interior, and at the Mines Flour, Sugar, Tea, Coffee, Wines are as much as 2 to 5 times the...figures [for New Westminster." British Columbia Blue Books of Statistics. CO 64/6. NAC. MG 11, reel B-199, 135. 146 31. British Columbia Blue Books of Statistics. "Average Prices of Various Produce and Merchandise, &c [including wages]." CO 64/1-11. NAC. MG 11, reel B-199 and B-200. 32. Ibid., for 1864 CO 64/5. NAC. MG 11, reel B-199, 105; for 1867-70, CO 64/8, 118, CO 64/9, 115, CO 64/10. 120. and CO 64/11. 117; all on reel B-200. 33. James Douglas. 24 May 1858, "Diary of Gold Discovery on Fraser's River in 1858." Private Papers of Sir James Douglas, First Series. H.H. Bancroft Collection. NAC. MG 29 C15, v. 2, c-12, 66. 34. Begbie to Douglas, New Westminster, 30 November 1861. Enclosed in Douglas to Newcastle, Victoria, Vancouver's Island, 5 February 1862. CO 60/13. NAC. MG 11. reelB-86, 78-79. 35. Isabel Bescoby, "Some Aspects of Society in the Cariboo from its Discovery to 1871," University of British Columbia B.A. Essay (history), 1932, 58. For the cost of provisions, see the British Columbia Blue Books of Statistics. "Average Prices of various Produce and Merchandise, &c." NAC. MG 11, reel B-199: CO 64/1,113; CO 64/2, 113; CO 64/3. 161; CO 64/4, 97; CO 64/5, 107; and CO 64/6, 135. NAC. MG 11, reel B-200: CO 64/7, 112; CO 64/8, 120; CO 64/9, 117; CO 64/10, 122; and CO 64/11, 119. 36. "A Voice from the Dungeon!" British Columbian 3 December 1862. 37. "The Late Judicial Murder." British Columbian 26 November 1862; "The Inquest." British Columbian 22 November 1862; "A History of the Wrongs of the Cranfords...." British Columbian 7 January 1863; and British Columbian 14 February 1863. 38. Marc Galanter. "Why the 'Haves' Come Out Ahead: Speculations on the Limits of Legal Change." Law and Society Review 9(1974):95-160. 39. There was one auctioneer, one expressman (stagecoach) and four plaintiffs of unknown occupation. 40. 1 carpenter, 2 doctors, 1 lawyer, 2 boarding house keepers, 3 saloonkeepers, 1 livery stableman, 1 merchant and 1 repeat defendant of unknown occupation. 41. Miles Fairburn, The Ideal Society and its Enemies: the Foundations of Modern New Zealand Society, 1850-1900 (Oxford, 1989). Fairburn characterizes colonial New Zealand as "bondless" and "atomistic" for the same reasons I outline. 42. Throughout the colonial period, the ratio of men to women was more skewed on the mainland than the Island. At Confederation, for instance, the ratio of men to women on the Vancouver Island was 1.5:1 — still skewed, but not as markedly as the society across the Georgia Strait. 147 43. In fact, the proportion of native-born British Columbians only exceeded that of immigrants in 1981. 44. Seymour the Buckingham and Chandos, New Westminster, 17 March 1868. CO 60/32, reel B-99. 111. 45. From James Anderson's (a.k.a. "Sawney") poem describing a miner's shanty in the Cariboo: The bakin' board hangs on the wa'; Its purposes are twa-fold-For mixin' wf yeast or dough Or panning out the braw goldl A log or twa in place o' stools, A bed without a hangin' Are feckly all the furnishin's The little house belangin'; The laird and tenant o' this sty I carina name it finer Lives free and easy as a Lord Tho' but an honest miner. Cited in Isabel Bescoby, "Some Aspects of Society in Cariboo to 1871," University of British Columbia BA. Essay (history), 1932, Appendix E. 46. Robert Harkness to Sabrina Harkness, Richfield, 10 June 1863. Cited in Richard Thomas Wright, Discover Barkerville (Vancouver, 1984), 34. 47. As New Westminster was called. H.H. Bancroft, History of British Columbia (San Francisco, 1890), 415; cited ln Ormsby, British Columbia: A History, 201. 48. Birch to John Birch??? 49. Begbie to Birch, 24 June 1865. Birch Family Papers, v. 7. BCARS. MS. 50. Seymour to Buckingham and Chandos, New Westminster, 17 March 1868. CO 60/32, reel B-99, 111,119-120. The Colonial office called the letter "a protracted groan" that "requires no answer." 51. W A Baillie-Grohmann. Fifteen Years' Sport and Life in Western America and British Columbia (London, 1900), 316; cited in Patricia Roy, ed., A History of British Columbia fToronto, 1989), 3. 52. John Dickinson, writing on New France, noted that "les litiges civils constituent 90 a 95 pour 100 de ractivite globale des officiers de justice....A rencontre de la criminalite qui met en evidence les aberrations done les comportments, Tune minorite la justice civile s'attache un normatif et aux transactions de la vie quotidienne qui touchent l'ensemble d'une population." Dickinson reported that cases for debt comprised the largest proportion (20-30%) 148 of all civil suits. See his Justice et justiciables: la procedure civil a la prevote ae Quebec, 1667-1759 (Laval, 1982), 3, 123. Evelyn Kolish looked at the civil courts in Lower Canada, and found that actions to recover debts accounted for 80-90% of all civil litigation from 1785-1840. See "Some Aspects of Civil Litigation in Lower Canada, 1785-1825: Towards the Use of Court Records for Canadian Social History." Canadian Historical Review 70(1989): 351. Clinton Francis* study of the English common law courts from 1740-1840 revealed that debt collection accounted for 90% of actions. See his "Practice, Strategy and Institution: Debt Collection in the English Common Law Courts." Northwestern University Law Review 80(1986):810. John Wunder's monograph on law in Washington Territory noted that actions for debt made up almost 93% of all civil cases that came before the lower courts. See his Inferior Courts, Superior Justice: A History of the Justices of the Peace on the Northwest Frontier, 1853-1889 (Westport, CT, 1979), 149. 150 CHAPTER FOUR "A DELICATE GAME": LAW AND GEOGRAPHY ON GROUSE CREEK The centrality of commercial capital In the economic and legal life of British Columbia was a characteristic it shared with other British North American colonies, one which Harold Innls pointed out in very broad terms in The Fur Trade tn Canada. He also argued that the dominance of staple economies in Canada created "a unity of structure in institutions...and centralized control."1 However, the geographical context in which the law operated placed limits and constraints on its execution and prevented the easy extension of authority and control envisioned by Innls. Despite its detached nature, the law gained much of its meaning through the very localized experiences people had with it. At a local level the execution of the law was inextricably tied to the personalities of the disputing individuals and those of the people who sat in judgement over them. As such, the law was anything but detached. This posed certain problems for those charged with administering it. Magistrates in particular were caught between the demands of local circumstance and those of a colonial government bent on maintaining a certain standard of order through the law. Douglas Magistrate John Boles Gaggin certainly felt the pull of these two "levels of law" in 1862, when he was confronted with a party of one hundred starving and broken miners who had commandeered a steamer to take them out of the gold districts and away from their failed enterprise.2 Despite the obvious illegality of the miners' actions, Gaggin advised 151 the master of the Henrietta to "take the men on, and on arrival at New Westmin-ster, apply to the proper authorities for redress." He took this course of action, believing, as he wrote to the Colonial Secretary in 1862, that to attempt coercion with a force unable to command It would have weakened the apparent power of the Law;., .[and] that me getting of these men out of Douglas was in every way desirable,...any attempt to arrest would have provoked a riot, perhaps bloodshed, and I believe I acted prudently in avoiding the least risk of this.3 In an effort to further justify his actions, Gaggin closed his report on a defiant note with this telling observation. Magistrates in these up country towns have a delicate game to play, and I believe we are all of opinion that to avoid provoking resistance to the Law is the manner In which we best serve the interests of His Excellency, the Governor....[A]s it is the matter passed off without riot and without defiance of the Magistrate, though the Master of the steamer...was somewhat annoyed ~ I shall be very sorry if the cautious way I acted, with such quiet results, does not meet His Excellency's approval, but I acted for the best.4 The colonial government chastised the magistrate for his "want of nerve and judgment" in allowing "the occurrence of so lawless a proceeding."5 "It appears," noted Colonial Secretary W.A.G. Young, that you consider yourself vested with discretionary power to temporize with your duties, and that you are unaware that, while rigidly dispensing the laws for the protection of life and property, a Magistrate may act with perfect temper and discretion.6 This brief episode raises questions about the social meaning of the law which I am concerned to address. Gaggin considered law to be the preservation of order — "quiet results" ~ and told his superiors so. From his vantage point ln Victoria, Governor James Douglas saw things rather differently. The law, through its rigid application, served a more particular end by securing life and property. 152 There was yet another perspective. Both Gaggin and Douglas considered the miners' actions "lawless," but those who boarded the Henrietta likely did not feel the same way. From their arrival, British Columbia's miners possessed a reputation as a self-conscious and vocal interest group with a penchant for self-government which they learned in California's gold fields. Despite their impermanent character, California's gold rnining camps developed an elaborate system of informal regulation centred on the Miners' Meetings.7 These were elected tribunals of local miners who drafted the rules which governed behaviour in a specific locale. Their regulations covered a wide range of activities, from claim size, the technicalities of ditch widths and water rights to the use of alcohol and firearms in the camps.8 This experience instilled the miners with a taste for local government and a certain degree of independence.9 It was this independence that made those who streamed northward to British Columbia in 1858 to try their luck in the Fraser and Cariboo rushes so dangerous in the eyes of British colonial administrators like James Douglas and Supreme Court Judge Matthew Baillie Begbie.10 These men considered the miners a lawless bunch and took steps to prevent local government from gaining a foothold on the banks of the Fraser River. In September 1858, just a month after the mainland colony was formed, James Douglas issued the first Gold Fields Act11 It and subsequent acts created and elaborated formal government institutions and regulations specifically designed to regulate gold mining.12 An Assistant Gold Commissioner presided over locally-based Gold Commissioner's or Mining Courts. He had jurisdiction to 153 hear all mining or nilnlng-related disputes and to dispose of them summarily. By doing so the Gold Commissioner's Court allowed suitors to avoid the costly delays associated with Supreme Court actions and jury trials. A locally-elected Mining Board replaced the Californian Miners' Meetings, drafting bylaws which governed behaviour. Unlike the American institution they replaced, however, the decisions of the Mining Board could be overturned by the Assistant Gold Commissioner, who also possessed the power to dissolve the board at his pleasure. Despite the early intrusion of this formal regulatory institution into the gold fields, British Columbia's miners retained a sense of themselves and their enterprise as distinct and crucial to the development of the colony. Despite their impermanent character, gold rush communities were localistlc, regardless ~ paradoxically ~ of their location. Miners were particularly Interested in the administration of the law, watching Mining Court decisions with an eye to their own fortunes. Though the law and the courts brought British Columbia's diverse and far-flung miners together in a common process of dispute settlement, they also were the cause of much division, for they resolved differences by creating other ones. The law defined plaintiffs and defendants, assessed guilt and innocence, and ultimately, in the eyes of those involved, determined right and wrong. The potential for conflict was thus inherent In the process of dispute settlement. As will be seen, different concepts of law stood in bold relief against this structured background of formal dispute resolution. British Columbians understood and measured their laws with a standard that was rooted in a particular geographic, social and cultural milieu and that was 154 not always shared by those charged with its admiiustration. Confhcting understandings of what constituted law underlay the disputes which culminated in the Grouse Creek War (1867), and which form the focus of the following narrative. *** The three cases that lay at the centre of the controversy over the colony's judicial adrnmistration were all disputes over the ownership of rriining claims.13 Each is rather unremarkable in terms of the issues of fact involved, which consisted of the recording and re-recording of claims and the placement of stakes.14 Once the cases were appealed to the Supreme Court, however, the issues of fact in these cases became secondary to Supreme Court Judge Matthew Baillie Begbie's actions. The Judge's behaviour in the three cases and public reaction to them neatly illustrate the problems associated with administering the law in British Columbia, and adumbrate the limits of formal, institutional dispute settlement. The first of these, launched in 1865, pitted the Borealis Company against the Watson Company. After the Assistant Gold Commissioner's decision awarding a disputed claim to the Watson Company was sustained by Begbie, the Borealis Company took the case to the Court of Chancery.15 There, sitting this time as Chancery Court Judge, Begbie reversed his earlier decision, and awarded the disputed ground to the Borealis Company! By all accounts, the mining community of the Cariboo was incredulous, and the colony's three main opposition newspapers wasted no time in adding their voices to the growing cries of 155 Indignation over Begbie's rulings from the gold fields. Most distressing to British Columbians was the use of the Chancery Court as a court of appeal, a process that was not only expensive and protracted, but was also capricious, because decisions appeared to be unfettered by any reference to statute law. "The late decision in the Borealis & Watson case strikes me as being the most flagrant and arbitrary stretches of power that has ever been committed by an individual occupying the position of Judge," wrote "Miner" to the Cariboo Sentinel in 1866: ...we have mining laws containing explicit provisions as to the manner in which claims should be taken up and held, but at the same time that any parties having money enough to stand the costs of a Chancery suit may omit to comply with these provisions and set the law at defiance; it tends to create a feeling of insecurity as the value of every title, no man is secure if he strikes a good claim, as after strictly complying with the law which he supposed to be protection and spending his last dollar in prospecting, he may find when he thinks he has reached the long hoped for goal of his ambition, that some more favoured individual had intended in taking up the same ground long previously, but had neglected...staking it off or recording it, a grave error certainly, but one which can be expiated by filing a bill in Equity, making a score or two of affidavits, and paying his own costs in a Chancery suit, and this is what is called "Equity."16 Less measured was the commentary of the Victoria-based British Colonist which contended that the "endless round of litigation" in British Columbia's mining districts was "ruining claimholders, shutting up the country's wealth and causing disasters in communities hundreds of miles away from the scene of the dispute." "The risks of mining are a mere bagatelle," the newspaper concluded, "it is the risks of Begbie's Chancery Court that terrify the miner."17 Public indignation over Begbie's actions in the Borealis case scarcely subsided when his handling of another rrrinlng dispute again drew the attention 156 and the wrath of British Columbians. After issuing an Injunction ordering the Davis Company to cease work on disputed ground, Begbie discovered that the Supreme Court seals necessary to validate the injunction were unavailable — detained, with the rest of his luggage, on a wagon that had broken down en route to Bridge Creek. Undeterred, the Judge sent a messenger to Richfield with the injunction and orders for William Cox, the Stipendiary Magistrate and Assistant Gold Commissioner there to attach seals to the injunction in his capacity as Deputy Registrar of the Supreme Court. Cox, whose decision Begbie had overturned in issuing the injunction, declined to act as ordered, claiming that while he "entertain[ed] high respect for Mr. Begbie as Mr. Begbie and also as Supreme Court Judge," he held no commission as Deputy Registrar. Moreover, continued the Magistrate, Finding now that it is attempted to drag me into this disagreeable quarrel, and act contrary to my own conscience, I would if I actually did hold a commission as Deputy Registrar of the Supreme Court resign the post at once.18 Although delayed by Cox's "decisive stand," Aurora v. Davis came to trial before Matthew Baillie Begbie and a special jury on 18 June.1 9 After deliberating until midnight, the jury awarded half of the disputed ground to each side, because "the Aurora and Davis Companies have expended both time and money on said ground in dispute."20 According to the Sentinel, the Jury's decision met with the general approval of the entire mining community. There is probably no instance on record where trial by jury has been so fully appreciated....We are convinced that there is not a single miner on the creek that would not gladly submit his grievances to the decision of seven disinterested fellow citizens, and thus avoid the expensive and vexatious proceedings in Chancery.21 157 Despite the satisfaction with the jury's verdict evinced by the Sentinel Begbie insisted that a decision by his court "would not end the litigation, and the expense of actions in one or two other branches of this Court would be heavy on both parties." Instead of accepting the jury's verdict, the judge suggested "that the whole matter be referred to me, not in my capacity as Judge, but as an arbitrator and friend, and that whatever decision I may arrive at will be final and absolute."22 The two sides agreed, and the following day — June 19 ~ Begbie rendered his decision to an "anxious" court room. Perhaps hoping to forestall any criticism, the Judge made it a point to downplay the irregularity of his actions and to praise the Jury as an institution. "I have always had every reason to be satisfied with the findings of juries during the whole period of my own official experience in this colony," Begbie remarked; but if "a jury finds a verdict contrary to the evidence, resulting from ignorance, fear, or any other cause it is [the judge's] priv-ilege to set aside their verdict." Noting that "when men go to jump ground they do not see their enemies' stakes," Begbie ruled against the Davis Company and awarded all of the disputed ground to the appellant.23 Reaction was immediate. Five or six hundred miners and residents of Cariboo gathered in front of the Richfield Court house on a rainy Saturday night six days after Begbie's decision to discuss the administration of the colony's mining laws.24 Amid a great many speeches lasting well into the night, the participants passed three resolutions: RESOLVED, That in the opinion of this meeting the administration of the Mining Laws by Mr. Justice Begbie in the Supreme Court is partial, dictatorial, and arbitrary, in setting aside the verdict of 158 juries, and calculated to create a feeling of distrust in those who have to seek redress through a Court of Justice.' RESOLVED, That the meeting pledges itself to support the Government in carrying out the Laws in their integrity, and beg for an impartial administration of justice. To this end we desire the establishment of a Court of Appeal, or the immediate removal of Judge Begbie, whose acts in setting aside the Law has destroyed confidence and is driving labor, capital and enterprise out of the Colony.* RESOLVED, That a Committee of two persons be appointed to wait upon His Excellency the Administrator of the Government [Arthur Birch] with the foregoing resolutions, and earnestly impress upon him the immediate necessity of carrying out the wishes of the people. With three cheers for "Judge" Cox, the British Colonist, the Cariboo Sentinel and the Queen (in that order), and three groans for Judge Begbie, the meeting adjourned.25 As a result of the mounting public pressure for reform, the colonial government amended the Gold Fields Act in April 1867, limiting appeals from the Mining Court to questions of law only.26 For all intents and purposes, this amendment made the decision of the Assistant Gold Commissioner final, something which bothered the colonial government greatly. "This change was made against the general feeling of the Legislative Council, at the insistence of the Members nominated for the Mining Districts and especially the urgent representation of the Mining Board of Cariboo;" Attorney General Crease wrote. However, "experience shews the power of appeal to be a safety valve for the preservation of the peace in the Mining Districts of the Colony."27 These were prophetic words. But for the next two months at least, all was quiet in Cariboo. 159 The Borealis v. Watson and Aurora v. Davis cases set the stage for the final, and according to one magistrate most "huminating1' part of this mining trilogy: the Grouse Creek War.2 8 Having found Chancery and arbitration wanting, and his government colleagues sensitive to public pressure, in 1867 Matthew Baillie Begbie found only one option remaining: to adhere to the newly-amended Gold Fields Act and refuse to hear appeals from the Mining Courts. This course was not successful in restoring British Columbians' faith in the administration of the law. The fault was not Begbie's, however. A less outspoken Supreme Court Judge might have succeeded in blunting the sharpest barbs, but no one could have bridged the gulf between the different meanings of law created by the colony's geography. In late April 1864, the Grouse Creek Bedrock Flume Company, a Victoria-based joint stock company, applied to Peter O'Reilly, Richfield's Assistant Gold Commissioner, for the rights to a certain portion of land on Grouse Creek. O'Reilly granted the company title for ten years provided they fulfilled the usual conditions of occupation, licensing and recording of the claim as outlined in the Gold Fields Act During 1864 and all of 1865 the "Flumites," as they came to be known, developed their claim, investing $20,000 to $30,000; but in late 1866 the company ran out of money, and their claim was left unoccupied from September to November. During this time — on October 8 ~ the Canadian Company, a locally-based association of free miners, entered the Flume Company's claim, and finding it apparently abandoned, applied for rights to it. Warner Spalding, who had replaced Peter O'Reilly as interim Assistant Gold Commissioner, duly 160 recorded the ground In the Canadian Company's name. At the beginning of the next mining season, in March, the Flumites renegotiated their lease to the Grouse Creek claim with the Crown, managing to extricate themselves from all previous conditions regulating their occupation of the ground. Inexplicably, Warner Spalding, who had just six months earlier granted the same piece of land to the Canadian Company, presided over this renegotiation on behalf of the Crown! It was only a matter of weeks before the two companies clashed, and the dispute was taken to the district's Mining Court, again to be heard before Spalding.29 There Spalding ruled in favour of the plaintiffs, and ordered the Canadians off the disputed ground.30 The Canadians gave notice of appeal, but obeyed the Commissioner's order. Though the Canadians left quietly, they were back on Grouse Creek in a month. At the end of May, Anthony Melloday and three other Canadian Company members commenced work on the Grouse Creek Flume Company's claim. This time, however, the Flumites took their complaint to the Magistrate's Court, laying criminal charges of trespass against the Canadians. The foreman, Melloday, received the heaviest sentence: one month's Imprisonment. The others were sentenced to seven and fourteen days.31 Noting that the earlier injunction served on the Canadian Company by Spalding had been "given to their foreman ...in an oral and extrajudicial manner, and not in the form of an order of Court," the Cariboo Sentinel contended that the Canadians had been operating under a "misconception" and that the punishment meted out was "rather severe."32 161 At the beginning of July Begbie informed the two Companies that he would not, in keeping with the newly-amended Gold Fields Act, hear the appeal. Though he underscored his opposition to the new act, the Judge told the appellants that he was not willing "to drive a coach-and-four through this clause, [just] because I conjecture that it may prove mischievous or work hardship." Undeterred, the Canadians regrouped, and now thirty or forty strong, they again returned to Grouse Creek. Three constables and one surveyor were dispatched to eject the Canadians, but were prevented from doing so when the Company's men "surrounded [them]...without showing any hostile disposition, or making any threats of violence, but simply claiming that as they all acted as one man, If any one was liable to arrest they all were...."33 The constables left. Local sentiment seemed to be very much on the side of the Canadians, particularly in light of Begbie's refusal to hear their appeal ~ a situation that was doubly ironic, given that local sentiment, and notably the pressure of the Canadian Company's principals, John MacLaren and Cornelius Booth, had led to the 1867 amendment! Writing on behalf of the members of the Canadian Company, Booth insisted they were not "acting in opposition to the law of the land." Since they could not appeal, they were more than willing to force a new case. Since the Supreme Court sat, they have made the most strenuous efforts to bring their case into court, not with a view of setting aside, but carrying out the decision of Commissioner Spalding. Their case would not be heard at any time, and any action they have taken since is simply with the object of coming into court in such a manner, that the rights they contend for may be contested on the real merits of the case, supported by evidence, which is, I opine, the spirit of British law.34 162 Booth told the same tiling to a public meeting of 500 people gathered to hear "a full and tixithful statement of the grievances and position of the Canadian Company." The sympathetic crowd passed a resolution recording their sympathy with the Canadians and their commitment to aid the Company "by all lawful means to obtain their rights."35 The good will manifested toward the Canadians made itself apparent the next day, when the district's magistrate proceeded to Grouse Creek, backed this time by twenty-five or ttiirty of "the most prominent businessmen, and respectable citizens of this town" who had answered court summonses to act as special constables. Once there, the "posse comitatus" exchanged "the most friendly greetings" with the Canadians and the nearly 400 eager onlookers who had "splashed through mud and mire, knee-deep, in haste to reach the rendezvous." All settled in for a long, and what must have been anti-climactic, afternoon of negotiation by letter between the two companies. In the end, with no hope of settlement, the magistrate read a writ of injunction to the Canadian Company and asked them to leave the claim. "[A] unanimous NO was returned, whereupon Mr. Ball, along with his constables, left Williams Creek, and the crowd dispersed."36 The magistrate immediately telegraphed the Governor, requesting that a detach-ment of marines be sent to assist him. 3 7 The Royal Navy refused to intervene, and Seymour, "at very considerable inconvenience to myself proceeded...to Cariboo."38 It was this stalemate that greeted the Governor when he arrived in Richfield a few weeks later, on August 7. Seymour, along with the rest of the colony had 163 been treated to a series of alarmist reports of "mob law" on Williams Creek from the British Colonist and the British Columbian, and no doubt expected the worst. "In our most important gold field the arm of justice hangs powerlessly by her side, while a company of men, under the most hollow and hypocritical professions of a desire to respect the law are wantonly and openly trampling it underfoot," screamed the Columbian: ...It is simply a question of British Law vs. Lynch Law....[with reference to Governor Seymour's visit] To go to the scene of strife unarmed with a force to compel submission will simply to be to toy with outlawry while the coveted treasure is being grabbed up. 3 9 Calling for the imposition of "martial law," the Colonist noted that "by offering armed resistance to the mandate of a court" the Canadians were "criminals" who "went into court determined to obey the law if it was with them; [and] to break it if it was against them."40 The Cariboo Sentinel took issue with its competitors' treatment of the Grouse Creek "War." "Victorians," the Sentinel speculated, "no doubt wrought up to the highest pitch of excitement by the graphic descriptions of the warlike attitude of the Canadians, would be surprised if they were here." Canadians and Flumites may be seen dally in the streets of Barkerville, habited in the usual miners' garb, saluting each other without the slightest appearance of hostility.41 The Sentlners attempts to emphasize the peacefulness of the Cariboo were not aided by the events which followed, however. A few days after Governor Seymour's arrival, the Canadian Company strode Into Richfield, not, noted one anonymous writer "in obedience to any order or summons," but at the suggestion of their leader, Cornelius Booth. Though Booth -164 - the 'Talleyrand of the band" ~ assured his compatriots they would not be arrested, seven of their number were. Conveyed immediately to the courthouse, the seven received three month sentences for resisting arrest (stemming from Magistrate Ball's earlier attempt to eject the Canadians from Grouse Creek); however, with the exception of one man, all refused to go to jail. Instead, they "warned the constables not to touch any of them, and abused and blackguarded the Commissioner on the Bench!"42 The seven told the court "that if they had treated the Commissioner to more champagne &c. they would have won their case."43 Ball left the courtroom, and the Governor requested a parley with Booth. After extracting a promise from Seymour to commute the sentences to forty-eight hours imprisonment, Booth "persuaded his comrades to walk towards the gaol, promising them that they would not be confined three days!"44 This concession to the form of law was continued once the redoubtable Canadians arrived at the Richfield jail. There, wrote "Crimea," "they would not allow the doors of the jail to be locked upon them and had free access to all the Court house grounds during the term of their imprisonment." By all accounts, their experience of prison life must have been very agreeable, for their sympathisers supplied them bountifully with grog; what with games and songs, interspersed occasionally with a derisive hoot at the officials, they were the jolliest convicts ever seen. 3 When Seymour left Richfield he left behind conflicting impressions of what he accomplished. The Canadian Company believed they had secured a promise for a new trial, while the Colonist and the Columbian were convinced that Seymour had merely offered the services of Joseph Trutch, the Chief Commissioner of 165 Lands and Works, as arbitrator. Added to this confusion was yet another round of vitriolic newspaper reports from Victoria, condemning the Governor's actions. Claiming that Governor Seymour's negotiation legitimized the actions of the Canadian "mob," the Colonist predicted an end to the "security of life and property in the country."46 The Canadians rejected arbitration, insisting that they would "accept nothing less than the law allows them": a new trial.47 Less lofty were Cornelius Booth's sentiments about Trutch's arbitration. "It appears to me passing strange," he wrote, that a case which has already, through the blundering of incompetent, or possibly interested officials, assumed an unpleasant and dangerous magnitude, should be proposed to be submitted to the decision of an individual in whom the Canadian Co. and the miners of Cariboo in general have no more confidence as to his ability to understand and administer British Law or British Justice than they would have in the ability of a dancing dervish to understand and expound the ten commandments.48 Seymour then appointed Joseph Needham, Vancouver Island's Supreme Court Judge, as arbitrator. Needham arrived in Richfield in mid-September, prepared to try the Grouse Creek case (as well as other mining appeals) de novo*9 Noting that every court had the power to suspend its rules if "any technicality arises that might tend to defeat the ends of justice," the Judge began hearing evidence in the Canadian Company v. the Grouse Creek Flume Company on 17 September. After two weeks of testimony, Needham awarded all of the disputed ground to the Flumites. "I cannot be blind to the fact that much public excitement has existed with regard to this case," he told the court, But I do hope and believe that all will acquiesce in the decision of this court; I can only say that it has been arrived at after anxious consideration, and a simple desire to administer justice according to 166 the law. I hope, and firmly believe, that armed alone with the authority of the law, a child may execute this Judgment, and that no one will here be found whose wish is not to uphold and obey the judicial tribunals of this country ~ tribunals which have always been regarded by Englishmen as the fountain of justice, and the bulwark of freedom.50 With this plea for peace, Needham ended one of the most protracted disputes in the colony's short history, and one which was noted as much for the bitterness engendered between Island and mainland, as between the rival mining factions. It also ended Begbie's stormy tenure as mining appeal court judge. After 1867 the "tyrant Judge" heard few mining cases, leaving them to his less controversial colleagues.51 *** These three cases have been discussed before by David Williams, who called them "causes celebres."52 They were certainly that, and more. Aurora Borealis and Grouse Creek illustrate the difficulty of, in Joseph Needham's words, "administering justice according to the law." The Supreme Court Judge's distinction is an important one. While the Canadians and the Flumites were of one voice as to the ends of the law and the process of dispute resolution, they disagreed on how best to secure justice through the law. This was because of the variety of meanings of the law in a colony as loosely organized as British Columbia. Their various definitions of the law revealed the importance of geography in determining its contours, as well as showing the limits of authority. Despite their differences, Flumites and Canadians used the same language of laissez-faire capitalism, linking liberty to the security of property, to frame criticisms and to justify their actions. The New Westrninster Columbian and the 167 Victoria Colonist contrasted "British Law" with the Canadians' "Mob rule," and predicted an end to "that security of life and property in the country which has ever been our proud boast." Capital, finding its tenure insecure, will fly to countries where people are made to respect the laws, and where possession of property rests upon a more stable and secure foundation.53 At the same time, the Canadian Company, that "mob" of "footpads" and "filibusters," used the very same language of law and property to predict the same ends if its demands were not met. "There are three tilings the most despotic governments claim," Cornelius Booth told a crowd of 500 gathered at Fulton's saloon, "namely the right to take property, liberty and life." The first of these have already been taken from the Canadian Co., and there is but one step to the last. I repeat that these men do not wish to be looked upon as outlaws; they consider they have been unjustly shut out from having a hearing; and would be perfectly satisfied in obtaining one, even if a decision was given against them.54 The crowd agreed, as they had done in the wake of the Borealis v. Watson and the Aurora v. Davis cases, when they informed the colonial government that its laws and Begbie's administration of them were driving "labor, capital and enterprise out of the Colony."55 To British Columbians on both sides of the Grouse Creek War, as well as the mining disputes that preceded it, just laws and legitimate authority were defined by their positive effect on economic development. Begbie's Chancery Court was viewed with contempt not only because the laws of chancery appeared capricious, but also, and perhaps more Importantly, because of the costly delays associated with its proceedings. Jury trials could not guarantee satisfaction either, as Aurora v. Davis showed. Recourse to a Jury trial was a poor 168 alternative to Chancery because verdicts could be set aside by an "arbitrary" judge. The "tyranny" of Begbie's court lay in its unpredictability and inefficiency -- the two enemies of capitalist enterprise. Just as they used the same language and agreed on the ends that the law served, British Columbians on both sides of the Grouse Creek war recognized the same process of dispute resolution. The ends sought by those who opposed the government's administration were always to be achieved within the existing structures of formal dispute settlement. In Borealis v. Watson Caribooites criticized the use of the Court of Chancery to resolve mining appeals because its ponderous proceedings were singularly unsuited to mining activity. But what did the miners propose as a solution? The establishment of a Court of Appeal! Similarly, in Aurora v. Davis, arbitration was rejected in favour of trial by jury. And in the Grouse Creek war, the Canadian Company did not ask for public sanction of extralegal action (in fact, it did not consider that it was acting in an illegal manner), but for "nothing less than the law allows us": a full hearing of its case.56 Indeed, as David Williams noted, both Cornelius Booth and John MacLaren visited Begbie in early July 1867 to ask for his intervention ~ surely an indication they had not lost faith in the legal options available.57 Even after seven company members were arrested in August, the Canadians still demanded that the "tyrant Judge" or his Island counterpart replace Joseph Trutch as arbitrator.58 Clearly, those who took issue with British Columbia's legal administration did not reject the structures of dispute resolution; rather it was to the official framework of English institutions that they looked for relief. In fact, the 169 law, as I suggested In the previous chapter, was the social cement holding colonists together. If Caribooites agreed about the ends of the law and the institutional means of executing the law, they took issue with what the law was and how to achieve justice through that law. British Columbians in other parts of the colony considered that a body of rules applied evenly and predictably insured justice. Reflecting on the Borealis and Aurora cases, the Colonist pointed to Begbie's lack of legal experience as the cause of the trouble. "Unlike Judge Needham," the newspaper reported, Begbie "had no legal experience to recommend him, and it is by no means a matter of surprise that his decisions instead of partaking of that judicial clearness and point which are the universal characteristics of the decisions of English judges, should be generally rambling, disconnected and irrelevant."59 Nevertheless, both the Sentinel and the Canadians dismissed the Chief Commissioner of Lands and Works, Joseph Trutch, as a suitable adjudicator for the same reasons and called for the Intervention of the Supreme Court: "He [Trutch] lacks the legal acumen which is necessary to unravel those knotted points of law that are inseparably Involved in the settlement of the dispute in question." Had either of the judges of the Supreme Court, or even a barrister of good standing, been selected as the arbitrators...no reasonable objection could have been urged against the arrangement; but to entrust the settlement of an important case like the present, which requires the exercise of no small amount of legal skill in the hands of a gentleman who has no pretensions to that knowledge, is simply preposterous... 170 "Legal acumen" was not necessarily specialized knowledge, however. The valued acumen was a knowledge of community standards and local circumstance: what Caribooites wanted was law that was self-evident. In the wake of Aurora and Borealis, Caribooites let it be known that "common sense" was the chief hallmark of just laws and just administration. The Cariboo Sentinel published a telling editorial emphasizing just this point by contrasting Peter O'Reilly's (the previous magistrate) conduct with that of his predecessors and his successor, William Cox Prior to O'Reilly's arrival, the mining court "was virtually, if not nominally, a Court of Conscience." Then the mining laws consisted of only a few proclamations issued from time to time by the Governor, and the Cornmissioner supplemented these with his own judgment. Since then extensive mining laws have been passed and partially consolidated. It was not until the administration of Mr. O'Reilly that this Court, by his false pretensions to legal ability, declared itself to be a Court of Equity or Law, or both combined....The policy of Mr. Cox, on the other hand, was quite different: he made no pretensions to legal ability, yet his policy was at once most agreeable to the miners; he converted this Court back once again almost wholly into a Court of Conscience, and presided in it with no little success. Cox's success, the Sentinel concluded, was due to the fact he was guided by "common sense rather than a smattering of law."61 As the Sentinels editorial revealed, common sense was an important yardstick of the law's legitimacy. Sociologists argue that common sense occupies an important place in human interaction.62 The strength and influence of common sense lies in its "taken-for-granted" nature. Common sense is common knowledge; it is a body of truths that does not need explanation (and probably cannot be explained) for it is instantly recognized as self-evident.63 According to 171 sociologist Siegwart Lindenberg, cornmon sense is a "general baseline for human interaction."64 It is a frame of reference against which humans gauge events and understand the world as well as a "court of appeal."65 "Common sense," argue van Holthoon and Olson, "provided the basis of appeal...to criticize and overthrow a more specialized and restrictive world view."66 By appealing to a body of self-evident truths, critics attempt to show that the status quo is unnatural and illogical. But the concept could just as easily be used to buttress the existing order of things. Just as often, notes philosopher Herman Parret, '"Use your common sense'", 'Behave commonsensically' ~ these mean 'Be conventional', 'Be conservative.'...It is used to stop argument, fantasy and originality, and it is often a dews ex machina, a rhetorical device to express power."67 Given the ambiguous nature of common sense, literary critics argue that it is a powerful rhetorical device, "part of 'the formal language of ideological dispute.'"68 Although common sense implied a commonality of experience that cut across political, social and economic divisions ~ indeed, this is part of its strength — it was rooted In a cultural and social matrix particular to a time and place. Concepts of common sense were tied to particular locales; they were, as anthropologist Clifford Geertz contended, part of "local knowledge."69 As such, "the law...is not a bounded set of norms, rules, principles and values...but part of a distinctive manner of Imagining the real."70 Thus, when Caribooites appealed to common sense In criticizing the colonial legal administration, their meaning was clear only within their frame of reference. They wanted the law to be self-evident; however, what was common knowledge varied from place to place. 172 Common sense dictated what was just, but because it was bounded by space and by local experience with the law, the concept had different meanings for different people. British Columbia's great distances, thin population and poor systems of communication accentuated the localism of the colony's mining population. The mainland lacked an internal coherence that would have narrowed the variations in common sense. Its communities were uncoupled from each other, as well as the administrative centres of New Westminster and Victoria.71 In such a geographical context a variety of concepts of law proliferated; the historian's task is to recreate that milieu so that others can appreciate it as "commonsensical." The Cariboo Sentinels opposition of common sense and conscience on one hand, and law and equity on the other is important. A Court of Equity was another name for a Court of Chancery; not the miners' favourite legal institution i as Borealis showed. Initially, cases tried by equity courts had been resolved by applying the "standards of what seems naturally just or right, as contrasted with the application...of a rule of law, which might not provide for such circumstances or provide for what seems unreasonable."72 By the early nineteenth century, however, the principles of equity had become a body of settled law rather than a personal and arbitrary assessment of fairness.73 Ironically, though equitable jurisdiction evolved as a corrective to the inflexibility of the law, the Court of Chancery acquired a reputation as a morass of legal complexity and delay into which unwitting suitors could fall and never gain a settlement. When British Columbians' equated Peter O'Reilly's tenure as Magistrate and Assistant Gold Commissioner with a "Court of Equity or Law," and contrasted it with Cox's 173 "common sense," they revealed that they considered the two kinds of knowledge to be antithetical. The complexities of equity and statute law were far from self-evident truths; in fact, they were "pretensions" that caused unnecessary delays and thwarted justice. Cox's common sense cut through all this. He circumvented legal technicalities by letting "conscience" guide his decisions. In the eyes of British Columbians, Cox's "court of conscience" was the sure route to justice. Yet courts of conscience were, in legal parlance, merely another name for courts of equity or chancery!74 Why was Cox's "conscience" ~ his ability to apply "standards of what seems naturally just or right" ~ superior to Begbie's? Why, in short, was the magistrate's common sense superior to that of the Supreme Court Judge? Caribooites recognized the magistrate's decisions and actions as expressions of common sense because he was part of their community. Common sense was bounded by locale and rooted in specific constellations of social relations. Keith Wrightson shows that magistrates, constables and jurymen were caught between "different kinds of order" in which the execution of the law had to be balanced against the more tangible pressures of familiarity In the face-to-face communities of seventeenth century England.75 Nineteenth-century British Columbia demonstrates the same pattern. Because the colony's magistrates were a part of the communities they administered, they quickly became enmeshed in the politics of famillaiity, a situation that both aided and limited their ability to execute the law. William Cox's knowledge of miners and mining won him the admiration and support of 490 of his neighbours, who petitioned against his 174 removal in 1866. "From the very long acquaintance we have had with Mr. Cox, and the intimate knowledge he has acquired of mining in Cariboo, we consider him much better qualified for the office than any other gentleman ln this Colony;" they wrote. "Mr. Cox's conduct...has been such as to inspire the public with the utmost confidence in his integrity,... while his judicial decisions have had the effect of checking litigation."76 These judicial decisions were often unconventional: on one occasion the magistrate settled a mining court claim by making the opposing parties race from the steps of the Richfield Court House to the disputed ground -- winner take all. On another occasion Cox swore in Chinese witnesses by decapitating a chicken instead of administering the usual and less spectacular oath.77 Cox's "intimate knowledge" consisted of a proper understanding of community morals, and it was this empathy that underlay justice in the Cariboo. Community sentiment about what was right and wrong made it impossible to keep the Canadian Company under lock and key. Henry Maynard Ball, whose misfortune it was to preside over the Grouse Creek dispute, failed because "he had but little experience in the mining districts."78 Familiarity also limited the ineffectiveness of enforcement. For the most part, policing was done by special constables, sworn in from the local population as the need arose. In the Grouse Creek case the special constables, who as men of capital and business presumably stood to lose from the unrest, were of no use in ejecting their neighbours; nor could the district's jailer incarcerate the Canadians. "The public feeling was rather in favour of the Canadians," complained Frederick Seymour, "At 175 all events no one would come forward to assist the Government in an emergency."79 Despite the constraints of familiarity on the execution of the law, British Columbians would have it no other way. The interventions of outsiders in their affairs were considered despotic, even when that intervention was done by a figure as magisterial as a Supreme Court Judge. In this context, juries became an important bridge between law and justice. "[T]his community," reported the Richfield Grand Jury, owing to its isolated position, the peculiarity of its interests, and especially its national origin, has a decided preference for local trial by jury, and is extremely jealous of all verdicts by its peers....80 The Cariboo Sentinel was even more direct, asserting that "a man is wrong when almost every person in the community thinks and says he is wrong."81 When Begbie overturned the jury verdict in Aurora v. Davis, he not only breached what Caribooites perceived to be established practice, he also burned the only bridge between the law as a set of overarching rules and as a set of social and locally constructed norms. The Judge's cavalier treatment of the jury in this and other cases led many colonists to conclude that Begbie did not consider them qualified to pass judgement on their peers. What these British Columbians objected to was not so much Begbie's lack of technical legal knowledge, but the fact that he was not guided by the same self-evident truths as they were. He could not have been. The Supreme Court Judge was outside their community: he resided in Victoria, visiting the colony's far-flung communities only once a year. His circuits were metaphors for his status as an outsider. Begbie's actions and decisions appeared 176 arbitrary, particularly in a colony that lacked the social organization that would support the arbitrariness of paternal authority. Because his decisions were not necessarily commonsensical and because of the important role the law played in establishing some cohesion in the colony, Begbie's actions and decisions not only threatened the colonists' economic security, but eroded one of the few bonds tying them together. Caribooites also considered the Grouse Creek Flume Company an outsider. Not only were the Flumites based in Victoria, headed by one of that city's largest merchants, but they also represented "big capital" in a region where small, independent entrepreneurs were the norm.82 The Canadians styled themselves a "company," but their Victoria opponents were the real thing. The Grouse Creek Flume Company was a joint stock venture, capitalized to the tune of $50,000. The Flumites were harbingers of a different kind of resource entrepreneur in British Columbia. By the late 1860s, most of the easily accessible surface gold in the Cariboo was gone. Continued success on the upper country creeks depended on a hydraulic process which required a substantial capital investment to construct the necessary flumes. Such an investment was beyond the means of most independent miners. Part of the support for the Canadians and the wrath directed at Begbie likely stemmed from an antipathy toward this form of large corporate enterprise that would eventually dominate resource exploitation and push out the smaller upper country operations. 177 Conflicting concepts of law were central to the controversies surrounding the a<hmnistration of British Columbia's mining laws in the colonial period. While recent writing ln Canadian legal history has cast a critical eye on the law, revealing its normative nature, few studies deal with the variety of meanings the law could take on. 8 3 As I have discussed, despite its detached nature, the law gained much of its meaning through the very local experiences people had with it. Foremost in placing meaning at the centre of analysis is the work of anthropologist Clifford Geertz.84 Eschewing materialistic and generalized explanations for behaviour, Geertz concerned himself with recovering meaning "from the native's point-of-view."85 A Geertzlan perspective on theft, for instance, would involve contextualizing the act in a local frame of reference to understand what the act meant for the people involved, rather than linking it to more generalized phenomena like war and dearth.86 Whereas materialist explanations like the latter Implicitly accept theft as an objective fact to be counted and cross-tabulated with socioeconomic data, Geertzlan analysis, or "thick description," treats "theft," "thief' and "victim" as "essentially contestable" categorizations and seeks to ground them in local circumstance.87 Both cultural historian of France Natalie Davis and English historian E.P. Thompson take this anthropological perspective in their work on the charivari and rioting.88 Emphasizing the ritualistic aspect of violence, they root concepts of legality In community norms, and see the violation of these norms as motivation for violent action. For both these scholars, meaning is at the crux of understanding behaviour. Many of those who dealt with formal law took the same 178 approach. Focusing on local frames of reference, some English historians of the law explored the social context of crime. For them, legal categories were rife with significance. Forest gleaning and pilfering in the putting-out industries, for in-stance, activities long sanctioned by custom, became criminalized as poaching and embezzlement.89 The crirninalization and prosecution of behaviour like this was interpreted as evidence of the growing centrality of private property in the politics and social relations of eighteenth century England. The Grouse Creek War and the events leading to it demonstrate the importance of geography in creating "local frames of awareness" that shape social meaning.90 The law Caribooites wanted had to be self-evident; it had to be commonsensical. Because common sense was local knowledge, however, its meaning was spatially limited. This localism was accentuated by the colony's geography which effectively precluded the integration of the archipelago of small settlements that was British Columbia. Geographers and sociologists have recognized that space is deeply implicated in social life.91 Because human relations and the extension of authority are spatially, as well as socially, constructed, understanding what the law means involves more than contextualizing behaviour in time. Distant places like the Cariboo were uncoupled from New Westminster and Victoria, the colony's centres of authority.92 In this spatial context, law and authority were rooted in specific and local constellations of social relations. For Caribooites, the law was more a collection of community norms than a set of hard-and-fast rules. Face-to-face relations, the politics of the personal and personality loomed large in determining authority. Being recognized 179 as an authority conveyed more power in these localized settings than being tn authority by virtue of some extra-community sanction.93 Although I have put local knowledge at the crux of understanding behaviour, local frames of reference were not the only ones that influenced the meaning of law.94 On Grouse Creek, common sense may have gone a long way to shape what the law meant to British Columbians, but clearly the larger framework provided by the structure, institutions and traditions of the common law itself also played an important role.95 Magistrate William Cox's decisions may have been commonsensical, but he and those who came before him still operated within a set of rules and procedures that at least nominally constrained action and provided a standard for measuring legality. As I discussed, British Columbians on both sides of the Grouse Creek War and the disputes that led to it never challenged the authority of the law and its institutions; instead, they took issue with their adniiinstration and looked to the existing forms of law for redress. Perhaps more important in shaping the social meaning of the law than its forms were its traditions and the expectations they created. The "rule of law" promised freedom from the dictates of arbitrary sovereigns for all, no matter their condition. The idea of the rule of law became intimately tied to the security of life and property, and became the keystone of English liberty. For British colonists, the law was an important source of unity, particularly In the years immediately following settlement. Though differences brought them before a magistrate, the British Columbians who resorted to the law were tied together in a common adversarial process that imposed a degree of structure, organization and 180 predictability on social relationships in a colony where such characteristics were rare commodities. More broadly, for both those directly involved in litigation and those who perhaps afterwards discussed and criticized its administration, the law was a link to and a symbol of a common, storied and secure past that stood in marked contrast to the new and alien environment they found themselves in. The common law conferred citizenship to colonists whose sense of place had been eroded by the experience of migration. Much of the social meaning of the law, then, was provided by the forms and traditions of the law itself ~ forms and traditions which had their genesis outside the locale that has been the focus of my analysis. Although they were physically distant from the main centres of population, as well as from the rest of British North America, Caribooites were tied to another frame of reference through extensive webs of credit: the wider world of commercial capitalism. So dominant was economic activity in the collective experience of the colony that the language of laissez-faire infused British Columbians' discussions of the law and provided the standard with which they measured political authority. Begbie's actions and decisions provoked the reactions they did because they were the antithesis of what commercial capitalist enterprise demanded and defined as the criteria for legitimate action: efficiency, predictability and standardization. Though British Columbians on both sides of the mining disputes demanded these characteristics of the law and conceived of it as an instrument of economic development, there was room for a diversity of opinion because of the spatial 181 context In which the law was administered. Divergent concepts of law became apparent only when the localism of the colony was penetrated by the annual circuits of British Columbia's Supreme Court. Begbie and the Supreme Court represented a different level of law and a different level of social interaction. To Caribooites, the Supreme Court Judge was an outsider; his reasoning and decisions were not self-evident because he operated in a world outside the community of local interaction. To be effective, Begbie and his fellow magistrates had to balance the demands of colonial administration with local sentiment. With these conflicting demands, "administering justice according to the law" was a difficult, and sometimes Impossible, task. This was Gaggin's "delicate game," and it was one that would be played over and over again amid the western mountains. NOTES 182 1. Harold Innls. The Fur Trade in Canada, revised edition (Toronto, 1956), 401. 2. On "levels of law" see Leopold Pospisil, Anthropology of Law: A Comparative Theory (New York, 1971), 99ff; as well, see Keith Wrightson, '"Two Concepts of Order: Justices, constables, and jurymen in seventeenth-century England." In John Brewer and John Styles, eds., An Ungovernable People: the English and their Law in the Seventeenth and Eighteenth Centuries (London, 1980). Pospisil contended that anthropologists tended to "dissociate law from the structure of society," [99] and that, in fact, there were as many different kinds of law as there were "subgroups" in society. Because an individual belonged to several subgroups simultaneously (i.e. family, kin group, community, religious sect, etc.) he was subject to many different kinds, or "levels" of law, each of which affected him differentially depending on his degree of Integration ("inclusiveness") in each subgroup. The job of the anthropologist, Pospisil argued, was to sort out the different levels of law an individual was enmeshed in and understand how each of these levels related to each other and the individual in a matrix of regulation. 3. Gaggin to the Colonial Secretary, Douglas, B.C., 2 July 1862. British Columbia Archives and Records Services (hereafter BCARS), Colonial Correspondence, GR 1372, reel B-1330, file 621/14. For more on this episode and Gaggin see Dorothy Blakey Smith, '"Poor Gaggin': Irish Misfit in the Colonial Service" BC Studies 32(1976-7):41-63. 4. Gaggin to the Colonial Secretary, Douglas, B.C., 2 July 1862. British Columbia. Colonial Correspondence. British Columbia Archives and Records Service (hereafter BCARS). GR 1372, reel B-1330, f 621/14. For more on this episode and Gaggin see Dorothy Blakey Smith, "'Poor Gaggin'" Irish Misfit in the Colonial Service," BC Studies 32(1976-77):41-63. 5. Cited in Smith, "'Poor Gaggin'." 45. 6. Ibid., 47. 7. See Hubert Howe Bancroft, Popular Tribunals (San Francisco, 1887), v. 1, Chapter Ten; Charles Shinn, Mining Camps: a Study in American Frontier Govern-ment and on California and British Columbia, David Ricardo Williams, "The Administration of Civil and Criminal Justice in the Mining Camps and Frontier Communities of British Columbia," in Louis Knafla, ed., Law and Justice in a New Land: Essays in Western Canadian Legal History (Calgary, 1986). 8. Williams, 217-219. 9. See Shinn, Introduction. 183 10. Morley Arthur Underwood, "Governor Douglas and the Miners, 1858-1859," University of British Columbia B.A. Essay (history), 1974. 11. The Gold Fields Act, 1859 [31 August 1859]; William J . Trimble, The Mining Advance into the Inland Empire (Madison, Wisconsin, 1914), 187-214, 336-7. 12. Rules and Regulations for the Working of Gold Mines under the "Gold Fields Act, 1859" [7 September 1859]; Rules and Regulations for the working of Gold Mines, issued in conformity with the "Gold Fields Act, 1859" (Bench Diggings) [6 January I860]; Rules and Regulations under the "Gold Fields Act, 1859" (Ditches) [29 September 1862]; Further Rules and Regulations under the "Gold Fields Act, 1859" [24 February 1863]; Proclamation amending the "Gold Fields Act, 1859" [25 March 1863]; The Mining District Act, 1863 [27 May 1863]; The Mining Drains Act, 1864 [1 February 1864]; An Ordinance to extend and improve the Laws relating to Gold Mining [26 February 1864] and An Ordinance to amend and consolidate the Gold Mining Laws [28 March 1865]; An Ordinance to amend the Laws relating to Gold Mining, 2 April 1867. 13. Williams discusses them in "...The ManforaNew Country": Sir Matthew Baillie Begbie (Sidney. B.C., 1977), 68-80. 14. Ibid. 15. A Court of Chancery is a court that has jurisdiction in equity; that is, it resolves disputes according the rules and procedures of equity rather than the rules and procedures of common law. Though the principles of equity initially reflected the chancellor's own arbitrary and sometimes idiosyncratic ideas of justice, (the Tudor Court of Star Chamber was the repository and dispensary of equity, for instance) over the seventeenth, eighteenth and early-nineteenth centuries the principles of equity evolved into a more settled body of rules. Chancery never lost its negative reputation for arbitrary, protracted and unnecessarily complex proceedings, however (see Charles Dickens' Bleak House (1859), for instance). 16. Letter from "Miner," Cariboo Sentinel 31 May 1866. 17. "The British Columbia Judiciary" British Colonist reprinted ln Cariboo Sentinel 2 July 1866. 18. "Irresponsible Deputies." Cariboo Sentinel 31 May 1866. 19. Ibid 20. "Supreme Court" Cariboo Sentinel 18 June 1866. 21. Ibid. 184 22. Cariboo Sentinel 21 June 1866. 23. Ibid. 24. "Mass Meeting," Cariboo Sentinel 25 June 1866. 25. Ibid Also see "The Tyrant Judge," British Colonist 28 June 1866; "Another Verdict Set Aside," and "From Cariboo," British Columbian 27 June and 4 July 1866. 26. An Ordinance to amend the Laws relating to Gold Mining [2 April 1867]. 27. Crease to Seymour, New Westminster, 28 August 1867. CO 60/28. NAC. MG 11, reel B-97. 380. 28. Nind to O'Reilly, Yahwalpa, Pimpama, Brisbane, Queensland, 11 April 1868. O'Reilly Family Papers. BCARS. Add. MSS. 412, v. 1, file 6a. 29. Canadian Company v. Grouse Creek Flume Co., Ltd., 27 September 1867. Archer Martin, Reports of Mining Cases decided by the Courts of British Columbia and the Courts of Appeal therefrom to the 1st of October, 1902.... (Toronto, 1903), 3-8. 30. "Magistrate's Court," Cariboo Sentinel 3 June 1867. Spalding heard case on 22 April 1867, and the order ejecting the Canadian Company was issued on 24 April. 31. Ibid 32. "Trespassing on Grouse Creek Bed Rock Flume Co.'s Ground." Cariboo Sentinel 3 June 1867. 33. "Grouse Creek Difficulty." Cariboo Sentinel 15 July 1867. 34. Letter to the Editor from C. Booth, dated 13 July 1867. Cariboo Sentinel 15 July 1867. 35. "Public Meeting." Cariboo Sentinel 15 July 1989. 36. "Grouse Creek Troubles ~ Great Excitement." Cariboo Sentinel 18 July 1867. 37. Seymour to Buckingham and Chandos, New Westminster, 16 August 1867. CO 60/28. NAC. MG 11, reel B-97, 333. 38. Ibid. 39. "The Situation." British Columbian 27 July 1867. 185 40. "The Grouse Creek Difficulty." British Colonist 24 July 1867. 41. "The Governor and the Grouse Creek Difficulty." Cariboo Sentinel 12 August 1867. 42. Anonymous letter to the Editor, dated Williams Creek, 21 August 1867, British Colonist 2 September 1867. 43. Letter to the Editor from "Crimea," dated Richfield, 20 August 1867. British Colonist 9 September 1867. 44. Anonymous letter to the Editor, dated Williams Creek, 21 August 1867, British Colonist 2 September 1867. 45. Letter to the Editor from "Crimea," dated Richfield, 20 August 1867, British Colonist 9 September 1867. 46. "The Grouse Creek War." British Colonist 29 July 1867; also see "The Grouse Creek Imbroglio," 19 August 1867, and "The Patched Up Peace on Grouse Creek," 23 August 1867. 47. Resolution passed by the Canadian Company, at Booth's Saloon, Grouse Creek, 30 August 1867. Reprinted in "Grouse Creek Dispute Again," Cariboo Sentinel 2 September 1867. 48. Letter to the Editor from Cornelius Booth, dated Grouse Creek, 31 August 1867. Cariboo Sentinel 2 September 1867. 49. Cariboo Sentinel 16 September 1867. 50. Canadian Company v. Grouse Creek Flume Co., Ltd., 27 September 1867. Archer Martin, Reports of Mining Cases 8. 51. "Tyrant Judge" from "The Tyrant Judge," British Colonist 28 June 1866. For Begbie and mining cases after 1867, see Williams, "...TheManforaNew Country", 80. 52. Williams, "...The Man for a New Country", 68. 53. 'The Grouse Creek •War'" British Colonist 29 July 1867. 54. "Public Meeting." Cariboo Sentinel 15 July 1867. 55. "Mass Meeting." Cktriboo Sentinel 25 June 1866. 56. Emphasis added. Resolution passed at a meeting of the members of the Canadian Mining Company, convened at Booth's Saloon, Grouse Creek, on the 186 evening of the 30th August 1867. "Grouse Creek Dispute Again." Cariboo Sentinel 2 September 1867. 57. Williams, "...The Man for a New Country", 76. 58. Letter to the Editor from Cornelius Booth, dated 31 August 1867, Cariboo Sentinel 2 September 1867. 59. "British Columbia's Judiciary." British Colonist ?? reprinted in the Cariboo Sentinel 2 July 1866. 60. "The Grouse Creek Dispute Again." Cariboo Sentinel 2 September 1867. 61. "The Administration of the Mining Laws." Cariboo Sentinel 15 December 1866. 62. Frits van Holthoon and David R. Olson, eds., "Introduction," Common Sense: The Foundations for Social Science (Lanham, Maryland, 1987); Thomas Luckmann, "Some Thoughts on Common Sense and Science," in van Holthoon and Olson, eds., 179-198; Siegwart Lindenberg, "Common Sense and Social Structure: A Sociological View," in van Holthoon and Olson, eds., 199-216. 63. van Holthoon and Olson, "Introduction," 3-4. 64. Lindenberg, "Common Sense and Social Structure." 202-203. 65. Ibid.', "court of appeal" from van Holthoon and Olson, "Introduction," 3. 66. van Holthoon and Olson, "Introduction," 3. 67. Herman Parret, "Common Sense: From Certainty to Happiness," in van Holthoon and Olson, eds., 19. 68. van Holthoon and Olson, eds., "Introduction," 8. 69. Clifford Geertz, "Local Knowledge: Fact and Law in Comparative Perspective," in his Local Knowledge: Further Essays in Interpretive Anthropology (New York, 1983). 70. Ibid., 173. 71. Anthony Giddens discusses the influence of space on the integration of societies. The key to integration is the extension or the "stretching" of experience over time and space (something he calls "time-space distanciation"). When people do not share common understandings of time and space the communities they live in become "uncoupled" from each other and from the central administrative state, thus posing problems for the exercise of power (i.e. the regulation of 187 behaviour by the state). See his A Contemporary Critique of Historical Materialism (Oxford, 1981), 65-67. 72. David M. Walker, "Equity." The Oxford Companion to the Law [Oxford, 1980), 424. 73. Ibid., "Chancery," 204. 74. On courts of chancery and conscience, David Walker notes "The Court of Chancery was sometimes referred to as a court of conscience because its jurisdiction was originally founded on relief granted by the Chancellor, as Keeper of the King's Conscience, in circumstances where equity and justice demanded it." See his Oxford Companion to the Law, 272. 75. Wrightson, 'Two Concepts of Order: justices, constables, and jurymen in seventeenth-century England." In Brewer and Styles, eds., An Ungovernable People: the English and their Law in the Seventeenth and Eighteenth Centuries. 76. Petition dated Williams Creek, B.C., 3 November 1866. Colonial Correspondence. BCARS. GR 1372, reel B-1355, f 1352. 77. Both examples from Margaret Ormsby, British Columbia: a History (Toronto, 1958). 181. 78. Seymour to Buckingham and Chandos, New Westminster, 12 May 1868. CO 60/32. NAC. MG 11, reel B-100, 368. 79. Seymour to Buckingham and Chandos, Victoria, 4 September 1867. CO 60/29. NAC. MG 11, reel B-97, 5. 80. "From Cariboo." British Colonist 4 July 1866. 81. "The Administration of Justice." Cariboo Sentinel 30 November 1866. 82. Selim Franklin was the president of the Grouse Creek Flume Company and noneother than J.P. Cranford was its treasurer. 83. On gender bias, see Constance Backhouse's work, including "Shifting Patterns of Nineteenth Century Canadian Custody Law," in D.H. Flaherty, ed., Essays tn the History of Canadian Law fToronto, 1981), v. 1, 212-248; and "Nineteenth Century Canadian Rape Law, 1800-1892," in Flaherty, ed., Essays tn the History of (Canadian Law fToronto, 1984), v. 2, 200-247; on class bias in enforcement, see Michael Katz et. aL, The Social Organization of Early Industrial Capitalism (Cambridge, Massachusetts, 1982), Chapter Six and Nancy Kay Parker, "The Capillary Level of Power: Methods and Hypotheses for the Study of Law and Society in Late-Nineteenth Century Victoria, British Columbia," University of Victoria M.A. thesis (history), 1987. 188 84. 'Thick Description: Toward and Interpretive Theory of Culture," In Clifford Geertz, The Interpretation of Cultures (New York, 1974), Chapter One. For a good overview and criticism which I have drawn from, see Aletta Biersack, "Local Knowledge, Local History: Geertz and Beyond," in Lynn Hunt, ed., The New Cultural History (Berkeley, 1989), Chapter Three. 85. "'From the Natives Point of View': On the Nature of Anthropological Understanding," In his Local Knowledge: Further Essays in Interpretive Anthropology (New York, 1983), Chapter 3. 86. Douglas Hay has done just that. See his "War, Dearth and Theft: the Record of the English Courts," Past and Present 95(1982): 117-160. 87. This positivist analysis is best exemplified in the many statistical studies on crime. See for instance, J.M. Beattie, "The Pattern of Crime in England, 1660-1800," Past and Present 62(1974):47-95 and V.A.C. Gatrell, Bruce Lenman and Geoffrey Parker, eds., Crime and the Law in Western Europe since 1500 (London, 1980). "Essentially contestable" from Geertz. cited in Biersack, 95. 88. Natalie Davis, "The Reasons of Misrule" (on the charivari) and "The Rites of Violence" (on religious riots), both in her Society and Culture in Early Modern France (Stanford, 1982), Chapters Four and Six; E.P. Thompson, "The Moral Economy of the English Crowd in the Eighteenth Century," Past and Present 50(1971):76-176; and his "'Rough Music'" le charivari Anglais," Annales 27e(1972):285-312. On these scholars and these particular examples of their work, see Susan Desan's analysis and critique, "Crowds, Community and Ritual in the Work of E.P. Thompson and Natalie Davis," in Hunt, ed., The New Cultural History, Chapter Two. 89. On poaching, see for example, E.P. Thompson's Whigs and Hunters: the Origin of the Black Act (London, 1975). On other social crimes see Douglas Hay, et al, Albion's Fatal Tree: Crime and Society in Eighteenth Century England (London, 1975); Peter Linebaugh, "Karl Marx, the Theft of Wood, and Working Class Composition: a contribution to the current debate," Crime and Social Justice 6(1976): J . Ditton, "Perks, Pilferage, and the Fiddle: the historical structure of invisible wages," Historical Journal22(1979):825-860; and Joanna Innes and John Styles, "The Crime Wave: Recent Writing on Crime and Criminal Justice in EighteentJi-Century Britain," Journal of British Studies 25(1986):395-399. 90. Geertz, Local Knowledge, 61; cited in Biersack, 82. 91. According to geographers Jennifer Wolch and Michael Dear, space impinges on social practices in three generalized ways: first, social relations are constituted through space; they are constrained by space; and they are mediated by space. For instance, to understand law and authority we must look at how geography influences the construction of legal institutions (the constitutive role of space); 189 how distance hinders or facilitates the Imposition and articulation of law and legal institutions (the constraining role of space); and finally how space facilitates the construction of the social meanings of the law (the mediating role of space). See Michael Dear and Jennifer Wolch, "How Territory Shapes Social Life." in Wolch and Dear, eds., The Power of Geography: How Territory Shapes Social Life (Boston, 1989), 9. 92. Anthony Giddens, A Contemporary Critique of Historical Materialism (London, 1980), 65-66. 93. Stephen Lukes, "Power and Authority," in Tom Bottomore and Robert Nisbet, eds., A History of Sociological Thought (New York, 1978). 95. On this theme see Greg Marquis, "Doing Justice to "British Justice": Law, Ideology and Canadian Historiography," in W. Wesley Pue and Barry Wright, eds., Canadian Perspectives on Law and Society: Issues tn Legal History (Ottawa, 1988), 43-69. 190 CHAPTER FIVE CRANFORD VERSUS WRIGHT: LAW AND AUTHORITY IN BRITISH COLUMBIA In British Columbia, law and the colonial economy were intimately associated, and standards from the marketplace — predictability, efficiency and standardization ~ provided the measure of legitimacy. On Grouse Creek these standards were encompassed by the concept of common sense. As a body of self-evident truths the law's predictability was axiomatic. Laws based on common sense were also efficient because applying them to the resolution of disputes short-circuited the complexities of statute law and the convolutions of equity, as well as guaranteeing satisfaction. Who could argue with decisions based on self-evident truths? And, of course, common sense was standardized because it was common knowledge. But despite the transcendence implied by its name, common sense was rooted in a particular social, cultural and geographic milieu that made it impossible to achieve the sort of consensus that would allow common sense to be a workable standard against which to measure the rule of law. Cranford v. Wright {1862) demonstrated how British Columbians' demands for the rule of predictable, efficient and standardized law were met by applying quite a different set of criteria to measure the law and those who administered it. In Cranford, British Columbians rejected the paternal discretion of Supreme Court Judge Matthew Baillie Begbie. But Instead of common sense, they rooted legitimate authority in legal texts and the experts who could Interpret them. Both Begbie's paternalism and common sense were unworkable as means of civil 191 dispute resolution. Civil cases like Cranfordwere lengthy ordeals which generated masses of undifferentiated, and sometimes complex, information. To make sense of it all, and to come to a decision, jurors had to rely heavily on precedent and rules of law to guide them. The authority of experts like lawyers who could, through their specialized knowledge, impose some kind of order on the information generated In a trial was crucial in resolving civil disputes. The interpolation of experts into the legal process was emblematic of the overwhelrning Influence of commercial capitalism on law and authority in nineteenth-century British Columbia. *** The case of Crcmford v. Wright, which John Robson called "most lengthy and, to the mercantile community of this and the adjoining Colony, most important trial," began on Thursday, December 4, 1862 before a densely crowded court room, with David Babington Ring and John Foster McCreight representing the plamtiffs — John and Robert Cranford, Jr. ~ and George Hunter Cary, Attorney General of British Columbia, and H.P. Walker representing the defendant, Gustavus Blinn Wright.1 This action was a counter-suit for $25,000 damages for delays and goods valued at $10,000 that Robert Cranford had contracted Wright, a packer, to transport from Douglas to Lillooet. The original suit, launched by Wright against the Cranfords, was heard in Lillooet before Begbie at nisi prins proceedings in October 1862.2 Hoping to profit from the demand for goods in the Cariboo mining district, Robert Cranford arrived in Victoria in April 1862 with a consignment of goods 192 from San Francisco which he arranged to be transported from New Westminster to LUlooet by G.B. Wright & Company.3 In a contract signed on April 25, Wright agreed to pack the goods for nine cents per pound, payable sixty days after the arrival of the merchandise at Lillooet, and assured his customer that the goods would reach their destination in seven to ten days. Robert Cranford then proceeded to Lillooet, where he contracted another packer to take his goods to Williams Creek, farther up the Fraser River. Then he waited. And waited. Two weeks later, the second packing company released Cranford from the agreement they had struck, iriforming him that it could wait no longer. Not until May 28 ~ thirty-three days after the signing of the contract with Wright — did the first of Cranford's goods arrive at Lillooet. The merchandise continued to trickle in over the summer, a third of it delayed some sixty to seventy-five days and none of it arriving in less than thirty-three days. Once it arrived at Lillooet, nearly half of Cranford's consignment could not be forwarded to Williams Creek because of the lateness of the season. The portion that did make it to the upper country could not be sold at the high prices that Cranford had hoped for in April. During the delay In shipping the goods to Lillooet, other enterprising merchants had estab-lished themselves in the Williams Creek area, and had glutted the market. None of this was of concern to Wright, however, who launched a suit against Robert Cranford and his elder brother John, in August, for non-payment of "goods sold and delivered."4 Claiming a debt of £1719, Wright convinced the County Court Judge at Lillooet, A.C. Elliott, to issue a writ of capias on September 8 for the arrest of both Cranfords.5 Robert Cranford was arrested at Lillooet on 193 the same day, and imprisoned for eighty-four days. His brother, John, also a Cariboo merchant, was arrested at Williams Creek three weeks later, on September 27, brought to Lillooet, and imprisoned for sixty-six days.6 Their case was heard before Matthew Baillie Begbie on October 15 and 16, and despite their efforts to show that John Cranford was not a partner, and therefore not indebted, and that Robert Cranford, by virtue of his contract with Wright which stipulated that payment was not due until sixty days after delivery, also was not indebted, the case proceeded. When Wright produced the April 25 contract in the Lillooet court room both Cranfords "pronounced it altered." that the words "& Brothef had been interpolated, and that the "&" had been crowded in at the end of the first line, the word "brother" written across the margin opposite the second line, that the "t" had been inserted before "him" to make it read "them" and that the alterations had been made in darker ink.7 Even Begbie agreed that the document had been tampered with, noting that "the dot which had been over the "i" In "him" was still there to show what the word once was." Nevertheless, the Judge "went on to make apologies for Mr. Wright, saying that it was a private memorandum of Mr. Wright's and that he had a right to do what he liked with it." Wright, without prompting from the bench or the defence counsel, admitted "that he had made the alteration of the same day on which it was written." To this Begbie again interjected that "it was rather in Wright's favor than against him that he should so boldly show this altered agreement." "In this way," editorialized John Robson of the New Westminster-194 based British Columbian, "Judge Begbie relieved Wright's Counsel of his duties, and drew a veil over the ugliness of Wright's guilt. In this way Judge Begbie would not see, and did his best to prevent the Jury from seeing, that Wright had virtually committed the CRIME OF FORGERY against J.P. Cranford. How could the memorandum of agreement be a private one with which he had a right to do as he chose, and then bring it forward in a Court to prove an Account! Despite the sensation caused by this evidence, however, the jury ruled that John Cranford was liable as a partner and that the sixty day stipulation in the contract signed by Robert Cranford and G.B. Wright had been rescinded. They therefore awarded Wright $9500, a sum which included court costs of almost $1000. Robson attributed this decision to Begbie's failure to charge the jury properly. "If he had done so, fairly, no honest Jury could have decided as they did." "In sober truth," he concluded, "Judge Begbie ignored a large part of the evidence...." From their Jail cells, the Cranfords were unsuccessful in their attempts to get a new trial, and were only released when they launched the countersult against Wright which was heard at the December sitting of the Supreme Court before Begbie. Claiming damages of $25,000, the Cranfords used the same line of defence as they had in the earlier suit. As well as arguing that John Cranford was not a partner and that Wright had breached his contract with Robert Cranford, the counsel for the plaintiffs also claimed that Wright had appropriated Cranford's goods, "having caused the brand and mark of the plaintiff to be obliter-ated, and his own substituted, at a time, too, when the market was high."8 At this point, Begbie interrupted the Cranfords' lawyer, McCreight, saying that he "could not allow imputations of such a nature to be cast upon the defendant, and 195 Insisted that they were disgraceful and must recoil upon the head of the person advancing them." McCreight refused to withdraw his remarks, and Begbie requested that David Babington Ring, the plaintiffs' other lawyer, take over. Ring refused, and the Judge subsided until the contract between Robert Cranford and Wright as well as invoices between the two were produced as evidence. Though the contract was admitted, the invoices, addressed to "R Cranford, Jr.," which were brought forward to show that the contract had been altered to read "R. Cranford & Brother," were not. Begbie's refusal to admit the invoices "produced a hot discussion between the judge and plaintiffs' counsel, and a reference by the latter to Taylor on Evidence. "The title of this book," according to the Colonist, "will never be forgotten by those present at the trial. Taylor was invoked nearly every hour of the day."9 Relations between the bench and the Cranfords' counsel were not improved on the last day of the trial (December 17), when Robert Cranford attempted to shake Wright's credibility by telling the jury that the affidavit with which Wright obtained the capias (in Wright v. Cranford) was false.10 Wright swore that the Cranfords owed him £1719 15s. for "goods sold and delivered." This, according to the Cranfords, was not strictly true: the Cranfords, if they owed Wright any money at all, owed it for freight charges. Here Begbie again interjected: Oh, Mr. Cranford! I have seen sheaves of affidavits made in this country by persons who never read them. No doubt Mr. Wright did not read that before he swore to it, so that it would be unfair to impute a false oath to him. Amidst the "confusion" which followed, proceedings were adjourned, and at Begbie's suggestion, all retired to the races.11 At 6:30 PM the court met, counsel 196 gave their closing statements and Begbie charged the jury, telling them first that "they must consider that the defendants [sic, plamtiffs] (the Cranfords) were strangers, while on the other hand, Mr. Wright was well known to them;"12 and second, that they had three points to decide: first, whether the contract between the Cranford and Wright was rescinded, as the defendant claimed, or was still binding. Secondly, if the contract was not rescinded, then the jury was to ascertain what a reasonable time for delivery of the goods to Lillooet was. Thirdly, they were to ascertain the value of the goods when they should have arrived and their value when they did arrive, the difference being equivalent to the damages incurred by the Cranfords.13 Before the jury retired, Ring asked that they be given a "bill of particulars," outlining the plamtiffs claim to aid them in their decision. To this Begbie reluctantly agreed. Late the next day, some twenty-six hours after they had been locked up, the jury were recalled, having failed to come to a decision. Begbie refused to accept a majority verdict as he had in an earlier case in the same nisiprius session.14 Ring then asked when the jury had been given the bill of particulars. Begbie was "considerably disconcerted at this enquiry," and the Court Registrar, Greville Matthew, sported "an unusual flow of blood to his features."15 The foreman, "after considerable shuffling," told the court that the document in question had not been given to the jury until 'Three o'clock this afternoon!" Thus it appeared that a document essential to enable the Jury intelligently to come to a decision had only reached them after they had been locked up for twenty-five hours, and three hours before they had been called before the Court! 197 Though William Grieve, the foreman, said that considerable progress had been made after they received the bill of particulars, and that a decision could be reached if the jury were allowed to retire again, another juryman disagreed, and asked to be discharged. Both counsel for the plaintiffs asked Begbie to offer advice or assistance to the Jury so "that justice be not defeated," but Begbie refused, and discharged the jury. "Upon this Mr. Ring, addressing the Registrar, said:" 'Mr. Matthew, have you the book in Court which contains the names of the Barristers who practice in this Court?"' Mr. Matthew: *Yes'" Mr. Ring: Then please dash your pen across my name.' McCreight made a similar request, and "both gentlemen indignantly withdrew. Cheers were given and the Court adjourned amidst great confusion and excitement."16 The Cranfords were rearrested and sent to prison, but released when they again made application for another trial -this time in the adjoining colony, on the grounds that their contract had been made in Victoria with a Victoria-based firm. David Cameron never heard the case, however, as it was finally settled out of court in April 1863.17 Ring and McCreight's dramatic withdrawal created a great sensation in New Westminster, and a "meeting to mark public disapprobation of the extraordinary course pursued by the Judge throughout the trial" was held immediately.18 "Loud applause" greeted the arrival of the two principals in the Columbia Theatre, where both were complimented for the "firm and manly ability with which...[they] repelled the insults heaped upon them by the Court during the Cranford suit." William Grieve, the foreman of the Jury, was called upon to address the meeting and "in a very able and lucid manner went over a large 198 amount of facts and figures bearing upon that extraordinary trial, and showing most conclusively that the Jury had sufficient data before them to entitle the Plaintiffs to a verdict." The meeting soon adjourned, but discussion continued in the pages of Robson's newspaper. What is striking about the Cranford case is the intensity of feeling and the interest that accompanied what was, on the surface, a routine suit for debt. If the attention given to the trial by the British Columbian is any indication, all of New Westminster's 1190 inhabitants were riveted by the proceedings.19 The Cranfords themselves contributed to a good portion of the discussion. "We desire, through your columns, to present a plain statement of facts for the consideration of the authorities and the people of British Columbia," they wrote to John Robson, the newspaper's editor.20 With his help they produced a lengthy three part series entitled "A History of the Wrongs of the Cranfords including an Account of the Two Celebrated Suits -- Wright vs Cranford and Cranford vs Wright."21 The articles related the circumstances leading to the trials themselves and reprinted some of the documents submitted as evidence in the two cases. In addition, the newspaper published nine editorials and four letters to the editor, representing the views of all twelve jurors, in the weeks preceding and following the December trial. Interest was equally keen across the water in Victoria. The British Colonist followed the trial closely, reprinting daily testimony as well as offering editorial comment on the case. The interest generated by the Cranford case stands ln marked contrast to the relative lack of discussion given to assize criminal trials, even those for murder. 199 The Cranford case is important on two levels for understanding the relationship between law and authority. First, its significance derived from the legal points at issue. Cranford was a case that involved the law of contract and imprisonment for debt. The arguments surrounding these substantive legal issues sheds light on the role the law played in mediating social relations, which bears directly on the question of authority. Rather than reinforce a paternalistic and organic social order by accentuating the discretionary power of the judge and reinforcing the mutuality of social relations, in British Columbia the law upheld the wills and desires of individuals in accordance with laissez-faire thinking. Second, Cranford is important for what it reveals about the nature of civil litigation in the nineteenth century. The length of the trial, the nature of the testimony and jury deliberation, as well as the court room dynamics between judge and lawyers made Cranford a notable but not, I would argue, an exceptional civil case. Civil trials placed heavy demands on the decision-making abilities of judge and jury, and this had implications not only for the shape of the trial, but also for the standard against which the legitimacy of the law was measured. In both the original suit brought by Gus Wright against the Cranfords and i n the subsequent countersuit, the contract between the two disputing parties was the central point at issue. Cranford occurred at the height of what legal historian Patrick Atiyah calls the "age of freedom of contract."22 From 1770 to 1870 the law of obligations, which contract law is a part of, reflected and reinforced the central tenets of laissez-faire. Contract law treated individuals as equal and independent agents whose obligations were limited by and coextensive with the 200 Intentional, voluntary and private arrangements they made with each other. Individuals could only be held responsible for meeting obligations they Intended to enter into and that were specified in a contract. The role of law in the age of freedom of contract was to enforce these private agreements between Individuals. Using the law in this way was not considered paternal intervention by the state, but rather simply as an extension of individual will. The law had almost nothing to say about the content of the contracts; that is, whether they were reasonable or just. Such questions were best left to the judgement of the individuals involved or, at best, lay in the realm of politics. Instead, those who framed and enforced the law operated under the assumption that the greatest happiness and prosperity, as well as the greatest justice, resulted from allowing individuals to "realize their own wills." Matthew Baillie Begbie had a different interpretation of the law of contract and the nature of obligation which got him into trouble during the Cranford case. Although the Cranfords insisted repeatedly that Robert "was the only person connected in the business,"23 Begbie, during the Lillooet trial, "ingeniously helped the plaintiffs [Wright's] case by laying great stress in his charge on the fact that after J.P. Cranford had been employed by R Cranford, Jr., he had manifested great zeal and energy In conducting the business, and had given the impression...that he might be a partner. Judge Begbie ruled that J.P. Cranford might, ln this way, unconsciously have made himself a co-contractee with R Cranford, Jr., and so instructed the jury.2 4 201 According to the newspaper, J.P.'s "zeal and energy" did not make him liable as a partner, and it was ridiculous to punish him for his industry. Begbie's understanding of contract stemmed from an older and by the 1860s, when Cranford came before his court, anachronistic understanding of obligation that was rooted in paternalism and a particular understanding of society. To the Supreme Court Judge, obligation was not limited by a legal mstrument like a written contract. Instead, responsibility was coextensive with the moral obligation incurred by behaviour and social status. J.P. Cranford acted like a zealous merchant and partner and so took on, regardless of his intent, the responsibilities of a businessman. This included paying his bills. Begbie's idea that obligations extended beyond the particular desires and intents of the people involved was rooted in an organic view of society. In such a society, the bonds of obligation were horizontal and vertical and extended between and among all individuals regardless of their power and status. The mutuality among the various parts meant that individual actions had consequences for all, and that for the well-being of the social whole, the power and actions of some had to be curtailed. The role of the law was to protect and reinforce this mutuality and, in doing so, to promote the general welfare. In this way, the rule of law and the moral economy fit hand-in-glove to uphold a system of paternal authority. In the age of freedom of contract and laissez-faire, the mutuality that characterized social relations in the previous century was gone. In the absence of an organic understanding of society, obligation only existed between equal, independent and fredy-contracting people. Individual action had consequences 202 only for those directly Involved. Because of this, Individual responsibility was limited, and the role of the law was correspondingly circumscribed to encompass only the enforcement of the faithful performance of specific obligations. The rule of law was the perfect complement to the market economy. As in societies characterized by a moral economy of mutual obligation, nineteenth-century law promoted the general welfare, but it did so by favouring individual initiative. The rule of law promised to guarantee a level of predictability and standardization in behaviour, and in so doing, limited the uncertainty and risk inherent in economic pursuits. By making the options open to individuals clear, the law provided a level playing field for each to pursue his economic ambitions with the greatest chance of success. If the general welfare was tied to the faithful performance of economic transactions, it was also guaranteed by liberal laws pertaining to imprisonment for debt. The extension of credit that was characteristic of commercial capitalist economies led to changes in attitudes toward debt.25 As it became more common, indebtedness shed some of its association with moral failure, and was viewed Instead as a consequence of respectable economic activity. In this context, imprisoning debtors was not only immoral, but immoral because it did not serve the security of property or promote continued capitalist enterprise. British Columbia's volatile economy only accentuated these sentiments, and in the wake of Cranford, John Robson published two editorials on the subject. As honest businessmen engaged ln opening up and developing the colony through the extension of credit, the Cranfords, like other merchants, could not be blamed for 203 an occasional "misfortune." By imprisoning a debtor, the colonial government deprived him of his freedom to engage in the pursuit of economic gain and hence did great injury to the public welfare. Such sentiments were voiced in antebellum America, which, like British Columbia, was equally concerned with economic growth. Lawyer Daniel Webster felt that changes in the law of debtor and creditor were necessary to "liberate 'human capital' for reentry into the economy."26 Legal historian James Willard Hurst agreed. The abolition of imprisonment for debt in the nineteenth century was, he felt, motivated by a desire to "afford the debtor a breathing spell in which he might regather his strength," and "to preserve the general course of his dealings."27 Laws that deterred economic activity did not, in short, serve justice. Cranfords more general characteristics as a civil trial are also revealing. Though trials in British Columbia often occurred in unorthodox settings, their actual conduct would be familiar to those who lived In more settled societies. Civil cases heard at the assizes were characterized by their length. The testimony in a single case could often occupy an entire day, during which large amounts of information were produced and difficult questions of law and fact raised. The intervention of experts who could guide the decision-making process by ordering the evidence produced and by offering rules and precedents became necessary to meet the demand for predictability and efficiency in the legal process. The authority represented by these experts was not paternal or derived from common sense, but textual. The rule of a technical, positive law was emblematic of the rule 204 of the marketplace and the individual in the Anglo-North American world that British Columbia was part of. What is known about trials in British Columbia is the stuff of frontier legend. Rough and ready, and draped metaphorically if not actually in coonskin rather than scarlet and ermine, British Columbia's Judges were prepared to hear cases anywhere. "Anywhere" included a variety of venues, from the "curious brick and frame designs" of Victoria's "Birdcages" to the back of an accommodating horse.28 Usually the court sat in a location somewhere between these two extremes. The temporary nature of the venues testified to the lack of capital and permanency that characterized the colony. The substantial stone court houses that anchored other colonial communities in British America were notably absent in both the Island and mainland colonies.29 In Victoria, the administrative centre of the "settler" colony of Vancouver Island, the Supreme Court did not have a permanent location until 1860, and even then it shared the "Birdcages" with the Legislative Assembly, shoe-horning its hearings in between sittings of the House.30 The mainland's rapid transformation into a colony left its mark even more noticeably on British Columbia's public architecture. The HBC "barracks" at Fort Langley provided the site for the first sittings of the Supreme Court, though a separate court house was built in New Westminster in I860.31 It was "an austere frame structure measuring 40 ft by 20 ft," and did not age well. "As far as the present court house is concerned," wrote the British Columbian in 1865, "the inside is not a very desirable place in the winter." With its open floor, rattling windows, and old sooty cotton lining and ceiling, in many places torn to shreds and fluttering in the breeze 205 like a bird of evil omen over the seat of justice — the whole thing is a disgrace to the town.32 But despite its condition, New Westminster's court house remained In use throughout the colonial period, its poor state of repair a constant point of comment for those forced to occupy it. "Very great inconvenience is incurred by all parties being jumbled together in a small low room, with a canvas ceiling, in an old wooden building, without ventilation or means of warming it," the Grand Jury complained to Puisne Judge Henry Crease in 1870. "We cite as an instance the fact of a juryman, during a late trial, fainting, and also it being well known that