A MACLEAN’S FLASHBACK

The Hanging Judge Was a Softy

Matthew Begbie was the law in untamed British Columbia, this man who sang in the church choir and hanged murderers from the nearest tree. He was accused of graft, his life was threatened, but he blustered his way into the legends of a new land

BRUCE HUTCHISON November 15 1950
A MACLEAN’S FLASHBACK

The Hanging Judge Was a Softy

Matthew Begbie was the law in untamed British Columbia, this man who sang in the church choir and hanged murderers from the nearest tree. He was accused of graft, his life was threatened, but he blustered his way into the legends of a new land

BRUCE HUTCHISON November 15 1950

The Hanging Judge Was a Softy

A MACLEAN’S FLASHBACK

Matthew Begbie was the law in untamed British Columbia, this man who sang in the church choir and hanged murderers from the nearest tree. He was accused of graft, his life was threatened, but he blustered his way into the legends of a new land

BRUCE HUTCHISON

A TOWERING young stranger from England stepped ashore at the gate of Fort Victoria on Nov. 16, 1858. His top hat was cocked

rakishly on the side of his head. His dark mustaches were waxed to a fine point, his beard trimmed in a neat wedge. His look was handsome, proud and theatrical. Here was a self-confident Mephistopheles, straight out of “Faust."

In this alarming presence Governor Douglas (with some secret Scottish doubts) beheld not the greatest but certainly the most incredible figure in the history of British Columbia, one of the makers of the future Canadian nation, the authentic stuff of national myth.

Matthew Baillie Begbie had landed on the Pacific coast of British Columbia, bringing with

him the law of Britain, very vague and muddled, in his head. He had arrived just in time.

Uncounted thousands of American miners were swarming into the coastal colony from California to mine the gold of the Fraser River bars. If they fought with the Indians and appealed for aid to the U. S. Government Douglas foresaw an American push northward. The desperate governor had no military power to defend his colony against the expansive, trigger-happy movement called Manifest Destiny which had turfed the British out of Oregon and was now observing the whole Pacific littoral with an envious eye. Douglas’ only hope was to prevent violence from the start, enforce the law among the miners and avoid an international incident.

Beghie’s job, as the first judge west of the Rockies, was to enforce the law. He didn’t understand it very well but, fortunately, in legal matters he had an inventive imagination. Already he had failed so hopelessly at the London bar that he was reduced to reporting the courts for the Law Times. At 39, with no prospects, he had jumped at the chance of a judgeship at £800 a year on the other side of the world. Anyway, his brother had just run off with his sweetheart and he was glad to get out of England.

It was not necessary that he know law. The Colonial Secretary, Sir Edward Bulwer-Lytton, asked only that the new judge be a man who could “truss a murderer and hang him from the nearest tree.” Begbie was such a man and much else

besides. Instinctively, Bulwer-Lyttor, who had written a library of fiction (“The Last Days of Pompeii”), had selected in Begbie an almost fictional character who would write his own story in his own fashion.

The trails were hardly open in the spring of ’59 when Begbie walked up the Fraser from Yale with his clerk, Thomas Bushby, and his “high sheriff,” Charles Nicol. To his surprise, and doubtless to his secret disappointment, the new judge found the miners strangely peaceable. They were rocking the sand of the Fraser bars, taking out gold by the sackful and they seemed strangely uninterested in international politics. There were no murderers to be hanged from the nearest tree. It was not a promising start for a man who would be remembered in the legendry of the far West as the Hanging Judge.

With time on his hands Begbie inspected the mines, tramped the interior ranges, mapped the country, wrote Douglas enthusiastically about its future, advised him to open it with a road—the famous Cariboo Road which was rushed through three years later—and quickly came to regard himself as an empire builder.

He was all that. But the tight little Family Compact which surrounded Douglas at Victoria wanted no interference from the English upstart. The palace guard around Colonel R. C. Moody, the Chief Commissioner of Lands and commander of the Royal Engineers, called Begbie the “arch enemy,” continually intrigued against him. But the judge was to outlast all his enemies, become himself the chief pillar of the oligarchy, shout down charges against his honesty, survive a final attempt to ruin him and outlive the compact.

Empire building was a sideline with Begbie. After one idle season he found more congenial work. As gold was discovered in the uplands of Cariboo and the second rush of miners headed overland

from the Fraser to the creeks of Barkerville, killings, thefts and claim jumping kept the judge agreeably occupied.

Traveling with a string of 12 horses he would turn up anywhere, at the first sign of trouble, don his robes and wig and hold court in a settler’s cabin, in a barn, or still mounted in an open field. He slept wherever night found him, often in a tent or without it, winter and summer.

Often he would scribble a court order while in the saddle. It might be questionable law, it was nearly always misspelled, but his writ ran through the Cariboo and he was seldom far behind it.

Now began the most extraordinary series of trials ever held in British America.

At the report of a crime Begbie galloped to the scene, haled the prisoner before him and proceeded to act as prosecutor, defense counsel and judge. This kind of one-man litigation was rough, often technically wrong, but generally just. If the crime was serious the judge gathered in anyone who happened to be handy and impaneled a jury. Since most of the miners were Americans who had no right to act as jurors in British Columbia, the first trials were probably illegal, but a little point like that never worried Begbie.

He worked on the simple assumption that if a crime had been committed someone should suffer for it. Once he threatened to punish a man who had been found innocent and actually assumed that he had power to do so but, cooling off, let the prisoner go. The release of a man whom he believed guilty left the judge gibbering with rage. In his shrill nasal voice he continued to shriek at his juries as if they were the criminals.

There were no lawyers in the country. An appeal from Begbie had to be taken to England, where no man could afford to go. The judge usually could get away with anything. There was one fatal drawback—as always in the history of British peoples the tyrant was impotent against that remarkable British invention, the jury system. Begbie could shriek and threaten but the jury often retorted with a verdict of “not guilty” to spite him, even if the prisoner’s guilt had been proved to the hilt; or it would find that a murdered man had accidentally “fallen off a cliff” or “died of fever.” On such occasions Begbie would blow his handsome top.

When, in a plain case of murder, a jury brought in a verdict of manslaughter, the judge screeched from the bench: “Prisoner, it is far from a pleasant

duty for me to have to

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sentence you only to imprisonment for life. Your crime was unmitigated, diabolical murder. You deserve to be hanged! Had the jury performed their duty I might have the painful satisfaction of condemning you to death, and you, gentlemen of the jury, are a pack of horse thieves, and permit me to say it would give me great pleasure to see you hanged, each and every one of you, for declaring a murderer guilty only of manslaughter.” This was the kind of oratory that the minders could understand and they would come from miles around to hear it.

Another jury brought in a verdict of innocence against a man who, as the evidence showed, had sandbagged a companion in a Victoria barroom brawl. Looking out coldly from under his massive wig Begbie snarled his most famous dictum: “Prisoner at the bar, the jury have said you are not guilty. You can go, and I devoutly hope the next man you sandbag will be one of the jury.”

Begbie’s was a crude and gaudy justice but the miners knew by now that it was usually fair and they feared it. They began to call Begbie the Flanging Judge and he never lived down that name in British Columbia.

It was a false name. Under all his bluster Begbie was a quivering sentimentalist. When he had to pass the death sentence he was so shaken that he kept a chaplain by his side to support him at the awful moment. Often he secretly advised Douglas to commute the sentence to life imprisonment.

In the case of an Indian named Quahook he wrote to the governor: “The Indian & the murdered man had been getting drunk together; and in this there was some misunderstanding about a female. I am quite aware that if 2 men engage in a burglary or any other crime & kill the other, even by accident, it is murder! but surely, when it is the seducer and the far more guilty party (as to the original crime) who is killed it wod not be irrational to modify the punishment of the murderer.”

Concerning another Indian who had been long held in the Lytton jail Begbie advised Douglas: “I am not at all

convinced that his execution is necessary, although I am sure it wod have been just, but after so long reprieve I cannot but think that the sentence ought to be commuted to penal servitude for a term of years. It is scarcely right to keep a poor fellow on the tenterhooks for so long & hang him at

Begbie’s methods achieved precisely the result that Bulwer-Lytton and Douglas wanted—the rule of law, a friendly, firm hand on the Americans, the steady enforcement of British ways against the northward pressure of Manifest Destiny.

Between the Rockies and the sea one hard-riding, hotheaded and ignorant man—the government and justice in the same saddle—directed the police, managed the local magistrates, settled all disputes of miners, settlers and townsfolk and, singlehanded, established the law-abiding habits which, more than anything else, were to distinguish the future Canadian nation in America.

He did not introduce the law. He was the law over the whole sprawling terrain of British Columbia. And in a colony where nearly half the population saw no hope except in union with the States, Begbie, perhaps even more than the abler Douglas, organized a native society which could resist this southward pull and finally consign its

future to Canada. Douglas at Victoria was governing a British colony. Begbie, in the interior—though he was the last to guess or, probably, to wish it—was laying the foundations of a Canadian province.

Up to now it had been easy for the judge. He could make up the law as he pleased to suit the occasion. There was no one to question him. As towns sprang up along the river, as miners, homesteaders and storekeepers acquired property, they became annoyingly litigious and in civil cases Begbie was helplessly at sea. Worse, lawyers who knew the law had settled in the colony and Begbie could not shout them down.

For months he refused to allow George Walkern to practice before him because Walkern was merely a lawyer from Canada and not “a Gentleman from England.” Having set himself up as a chancery court to deal with estate litigation in the existing English fashion, Begbie once reversed a decision he had rendered already in his own supreme court.

A Pot for the Plotters

In civil cases, where a jury determined only facts, Begbie, like a modern judge, could set aside its findings and often did. But he could not get away much longer with his abuse of lawyers and litigants. For now that pestiferous growth called democracy was sprouting along the river, with scant respect for English Gentlemen.

After one of Begbie’s more perverse decisions 500 miners held a mass meeting beside the Richfield courthouse to resolve that “the administration of the mining laws by Mr. Justice Begbie is partial, dictatorial and arbitrary in setting aside the verdict of juries,” and that the judge should be removed or an appeal court established above him.

Begbie rode off with his little retinue, taking no notice of such protests. He was used to criticism and, lately, to threats against his life. One day, sunning himself on the upper balcony of the Clinton Hotel, he heard some men on the street below plotting to shoot him. He went to his room, fetched out the chamber pot, emptied its contents on the heads of the conspirators and resumed his siesta.

So far he had feared no man and carried his honor high. When at last his honor was openly impeached Begbie knew fear for the first and last time in his life.

A Voice From the Dungeon

On November 26, 1862, New Westminster’s paper, the British Columbian, published a letter signed “A,” accusing Begbie of taking a bribe from a man who wanted a questionable homestead approved by the court. For months Begbie had borne in silence the criticism of the paper’s angry editor, John Robson, chief enemy of the Family Compact and a future premier of British Columbia. Now the judge had the editor where he wanted him—in outright contempt of court.

Begbie summoned Robson before him in New Westminster and demanded an unreserved apology. Though he conducted the case in his usual highhanded style the judge obviously was worried. He denied “A’s” charge in laborious detail. He said he had acquired 20 acres of land west of Barkerville for a house in which he intended to recuperate from rheumatism. He had paid for the land at 10 shillings an acre and, quite properly, had approved the settler’s pre-emption of the remaining portion.

Robson listened, unmoved. A grim man, with the face of an eagle and a

gift of flamboyant invective, he hated Begbie and the whole Victoria oligarchy of which Begbie was now the chief pillar. In his fight for responsible government Robson could strike at his enemies through the ruin of the judge. Granted a day to think it over, the editor refused to apologize and Begbie ordered him locked up.

Martyrdom was just what Robson sought. The cheers of the crowd at the courtroom door assured him that, his cause was popular. While 500 people held a mass meeting to denounce Begbie as the “Tyrant Judge” and petition the British Government for his dismissal Robson sat down to write the most celebrated editorial ever printed in British Columbia. It was headed “A Voice from the Dungeon!” and began:

Fellow colonists! We greet you from our dungeon. Startled by the wild shrieks of a dying maniac on one hand, and the clanking of the murderer’s chains on the other, while the foul and scant atmosphere of our cell, loaded with noxious effluvia from the filthy dens occupied by lunatics, renders life almost intolerable, our readers will overlook any incoherency or want of connected thoughts in our writing.

. . . The Press of British Columbia is virtually enslaved. . . . Accept— all of you — our deep feelings of grateful emotion and, having truth and liberty inscribed on your banner, Heaven will smile upon your path and crown with glorious success your war against oppression and wrong.

Brave words, but Robson soon tired of martyrdom and asked to be taken before the court again. The judge was glad enough to hear him. Robson’s apology was not quite complete but it was good enough to vindicate the judge and extricate the government from a threatening clash with democracy.

When released from jail Robson published “A Voice from the Dungeon” on his front page. It was a little late, but too fine a piece of prose to waste. On page three appeared a brief note of explanation:

Liberated. Since writing the article on our first page we have been discharged from custody. Further particulars in our next.

The adventure of Robson in his dungeon has a look of comic opera now. So has Mackenzie’s Rebellion of 1837 in another part of Canada. Both were part of the same pattern, the blundering irrçpressible struggle of Canadians for the right to manage their own affairs.

From his dungeon Robson had dealt a deadly blow at the Family Compact through its most distinguished lieutenant. Though his accusation was small, a matter of 20 acres of land, he had left around Begbie’s name a cloud of suspicion and doubt which has lasted to this day. Wherever old-time British Columbia lawyers forgather the argument is likely to arise again. One of the province’s leading judges told the writer that Begbie unquestionably was guilty. A modern Investigator, Sydney Pettit, history professor at Victoria College, in his definitive work on Begbie, finds that “on the whole it seems that the evidence for him is stronger than that brought against him. But . . . there is a certain residue of uncertainty.”

For years after the dungeon incident the British Columbian continued to publish more evidence on Begbie’s land deal while other writers vindicated the judge with much frantic journalism. Finally the settler involved in the dispute, a man named Dud Moreland, said he had given Begbie the land for

nothing—a flat repudiation of the judge, who did not answer.

By that time he had no need to answer. British Columbia had entered Confederation and Begbie, as chief justice, enforced the law of Canada. He had been knighted. His black whiskers were white now and the Mephistopheles of the 60s had turned into a genial prophet. He was already, in his own lifetime, British Columbia’s great folk figure, the man on horseback who had carried justice from the sea to the mountains.

A few old men still remember him striding about Victoria, a pack of spaniels at his heels. His ghost rides the Cariboo Road and haunts the washed-out gold creeks. A few years ago you might have seen a clumsy chair carefully preserved by an oldtimer of Clinton—Begbie had once used it-at a trial. A miner of the rush of ’62, one of the original Argonauts, once told me—standing beside the old diggings of Lightning Creek—that “Begbie, by God, was the biggest man, the smartest man, the best-looking man, the damndest man that ever came over the Cariboo Road.”

Begbie may not have been made for true greatness (though his achievement was great enough) but he was made to endure. He will endure until the history of British Columbia is forgotten.

Some Claret For the Clergy

Having established his legend, Begbie lived long enough to enjoy it. In Victoria he built a rambling house with a spacious garden at the edge of town, on what is now Cook Street. He shot ducks out of season on the Fairfield marshes nearby. He gave weekly tennis parties in the summer, his Chinese servants tying ripe cherries on the bushes so that the players could pick them convenient'y. Every Saturday night he entertained the clergy at dinner, they debating theology until 9 o’clock. Then the parsons were dismissed and the bloods of the town arrived to play poker until dawn.

On Sunday mornings Sir Matthew sang in the choir of the Church of England in his high, obnoxious voice and at noon he invariably burst into the house of Peter O’Reilly with his spaniels, greeted his hosts in the Indian tongue of Cariboo and sat down to consume a huge rice pudding.

In the spring of ’94 the clergy and the town bloods were no longer invited to the big house on Cook Street. Sir Matthew had learned he was dying. His death was long and painful for he would take no drugs “lest they dull my mind.” Every night O’Reilly sat with him, talking of the better days of Cariboo, but on June 10 Sir Matthew said to his friend: “You must leave me alone

tonight, O’Reilly. I must make my peace with God.” By morning he was

The Hanging Judge, it turned out, was not the man that British Columbia imagined. The real man was revealed in his will. His fortune—so small as to destroy any charge of peculation—was left to a group of poor unknown men and women whom he had been secretly supporting for years. To each of the clergy he left $100 and a case of claret or sauterne “at their choice” and to Mrs. Crease and Mrs. Drake “a dozen potted plants and a dozen roses at their choice.”

And the Tyrant Judge, the blusterer of the courtroom, the terror of the mining camps, the dandy of drawingrooms, ordered that only $200 should be spent on his funeral, that no one must send flowers, that his grave should be marked by a wooden cross bearing only the inscription: “Lord, be merciful to me, a sinner.” if