Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Correspondence (private letter)
Begbie, Matthew Baillie to Lytton, Edward George Earle Bulwer 1 December 1858, CO 60:2, no. 1072, 576.
Abstract
Correspondence (private letter).
Minutes (5), Other documents (1).
Begbie outlines his travels to Victoria and apologizes for not reporting in sooner. He relates his presence at Langley for Douglas’s Act of Parliament announcement. And he expresses his anticipation of trying a couple
murder charges but regrets that a dearth of English barristers and attorneys makes
his proceedings difficult.
The minutes address a plenitude of Begbie’s concerns including: law books sought after, a required seal, the admission of foreign
counsel in his court, and proper protocols of communication with the Colonial Office for civil servants.
Begbie to Lytton
I have the honor to inform you that having left Liverpool on the
11th Sept. I proceeded from New York on the 7th Octr so as to
overtake the West India Mail [packet] of the 17th Septr at Panama
and proceeded thence with the mail to this place where I arrived on the
16th Novr ulto having arrived at San Francisco on the 31st Octr, the Mail, owing to detentions & circuitous route
adopted, not having been delivered here until the 18th day after its
arrival at San Francisco. I shod have had the honor of addressing
you earlier but that it was impossible to have overtaken the next mail
(viz) that wch left San Francisco on the 20th ulto. I therefore
determined, being summoned rather hastily by the Governor to attend him
into British Columbia the next morning, to defer writing until the next
mail; and now a similar irregularity having again occurred (for the South
Mail has not yet arrived) it will be impossible to be in time for the
mail of the 5th inst, and no communications can leave San Francisco
until the 20th inst.
Immediately after the arrival of the Steamer in Esquimalt I was
summoned as I have mentioned to attend his Excellency up Fraser's river
and on the 19th ulto the Act of Parlt the establishment of
English law in the Colony and the proclamn of Indemnity for the
interim Acts of the Officers here were duly proclaimed. Also the
revocation of the Charter of the Hudson's Bay Compy wch had been
previously published in Victoria.
His Excellency having considered that I could be of more
service at Victoria than on the main land for the present, I have
continued here, having returned with him on the 22nd ulto.
The cases for decision in British Columbia as far as I can learn are
not numerous or important, except two charges of murder wch I am anxious
to try as soon
as possible. In relation however to these and all other
trials there is a great difficulty owing to the absence of any English
barrister or attorney and the presence of one or two from Canada & one or
two from the United States. As it is impossible to prevent surreptitious
practice, if open practice be not permitted, and as it seems equally
impossible that any decision shod give satisfaction generally (which
I take to be a very important point in the present circumstances of the
Colony) I propose, subject to His Excellency's sanction to issue an
order of Court enabling all qualified Colonial & United States
practitioners to practice in British Columbia, under certain
regulations—the order only to continue in force for 6 months. It is
with great reluctance that I shall feel myself driven to pick a course,
but until English practitioners arrive some measure will probably have to
be taken from pure
necessity.
1
as possible. In relation however to these and all other
trials there is a great difficulty owing to the absence of any English
barrister or attorney and the presence of one or two from Canada & one or
two from the United States. As it is impossible to prevent surreptitious
practice, if open practice be not permitted, and as it seems equally
impossible that any decision shod give satisfaction generally (which
I take to be a very important point in the present circumstances of the
Colony) I propose, subject to His Excellency's sanction to issue an
order of Court enabling all qualified Colonial & United States
practitioners to practice in British Columbia, under certain
regulations—the order only to continue in force for 6 months. It is
with great reluctance that I shall feel myself driven to pick a course,
but until English practitioners arrive some measure will probably have to
be taken from pure
necessity.
1
I have some doubts as to the nature of my commission upon
the following points.
1. Whether my Court will be a Court of record—so
as to have power of fine & imprisonment in cases of contempt.
2. Whether I can act as a justice of peace in British Columbia.
In Canada I observed the style of the Court to be the Queen's
Bench.
2
If this Court were so styled there wd be little doubt on these two
points—but it might raise a doubt as to the Equitable jurisdiction wch I
intend (until otherwise instructed) to exercise.
3. As to Admiralty jurisdiction.
4. As to ecclesiastical jurisdon in cases of wills
& administrations. I propose to assume the jurisdiction.
5. I have been interrogated since my arrival here whether I have
jurisdon in divorce cases. This I at present, & until otherwise
instructed, certainly do not propose to assume or exercise and if I may
express my views I shod be reluctant to be clothed with it.
6. No Seal of the Court is provided; nor any instructions
for making one. I shod feel much obliged if you think proper to have
one sent from home with suitable device & inscription. There is no means
of making an inscription & I shod hardly know what device or
inscription
[illegible]
3
I propose until further instructed to exercise
on the civil side of the
Court all the authorities & jurisdon vested in Chief Justice Cameron,
in Vancouver's
Island,
4
under the order in Council of the 4th April 1856 (constituting
the Supreme Court of Civil Justice here) except as to the Seal.
on the civil side of the
Court all the authorities & jurisdon vested in Chief Justice Cameron,
in Vancouver's
Island,
4
under the order in Council of the 4th April 1856 (constituting
the Supreme Court of Civil Justice here) except as to the Seal.
This town seems extremely thriving. Roads are rapidly progressing
and there are good stores—all prices reasonable—the accounts of the
gold diggings unvarying. I have heard none suggest lower than £5 per
diem wch when provisions can be conveyed up country will pay the
miner very well.
All the neighbourhood here is as quiet by night & day as any other
country town in Her Majesty's dominions; at least that has been so
since my arrival.
To the Rt Hon Sir E. Lytton Bart
&c &c &c
&c &c &c
Minutes by CO staff
Mr Merivale
One wd imagine that the prejudices of [a Prof]essional Education wd not have suffered Mr Begbie to allow Aliens to practise before him unless it were that the necessity of the case required it. A suitor will hardly be satisfied with less than some one to appear, plead & act for him. The O. in C.—4 Apl /56—whh constitutes the Court in V.C. Island prevents Page 25 any other person from so acting on behalf of a Suitor, but I can find no such restriction in the O. in C. of 2 Sepr /58 providing for the admn of Justice in B. Columbia.
One wd imagine that the prejudices of [a Prof]essional Education wd not have suffered Mr Begbie to allow Aliens to practise before him unless it were that the necessity of the case required it. A suitor will hardly be satisfied with less than some one to appear, plead & act for him. The O. in C.—4 Apl /56—whh constitutes the Court in V.C. Island prevents Page 25 any other person from so acting on behalf of a Suitor, but I can find no such restriction in the O. in C. of 2 Sepr /58 providing for the admn of Justice in B. Columbia.
Mr Begbies brother has called here to say that the Judge is in
the greatest distress for a few Law Books. Smith's mercantile Law, &
Chitty's Blackstone is the extent of the Legal Library in the
Colony.
5
ABd
31 Jany
1. As to books. Mr Blackwood will find that some steps
have been taken. But I do not know in what stage the matter is.
2. As to seal. The preparation of one was authorized the other
day.
3. As to admitting foreign counsel. I think it is to be regretted.
But I do not see how Mr Begbie could well have avoided it.
4. As to his doubts. I am afraid he will be troublesome on this
score. The remedy for all such doubts is in the hand of
the Legislature of Vanc. I. and of the Governor in Brit. Col.
5. It is most essential that he should be warned not
to write except through the Governor. Delay is far
better than habitual infraction of this rule, and I fear
all the B. Columbia civil servants will follow the same bad example.
Other documents included in the file
Minutes by CO staff
My reason for suggesting this mode of answering Mr B. is this:
He is evidently a lawyer of the "ingeniously doubting" class, though I
daresay he will make none the worse judge. Now to answer his "doubts" is
not in our province, for the Secy of State is not a lawyer, & Mr
Begbie would think but little of our answer, and to consult the Law
Advisers, really not worth while, where the doubts, if substantial, can
be removed merely by Mr B & Govr D. enacting their removal.
Mr Merivale
Do you approve this emendation? You were not aware that a V. Admiralty Court was already established in B. Columbia.
Do you approve this emendation? You were not aware that a V. Admiralty Court was already established in B. Columbia.
ABd
14 Feb
Footnotes
- = Begbie Order of Court.Begbies Order of Court, issued in accordance with Douglas's Proclamation of 24 December, is in British Columbia, List of Proclamations. Note that it does exclude Canadians??
- Court of Record and of Queen's Bench. Difference??
- = seal The file copy is a carbon copy of the original in which the carbon evidently shifted so the last word or two of this sentence ran over the preceding line, making them undecipherable.
- = Cameron's jurisdiction OC 4 April 1856, establishing Supreme Court of Civil Justice on Vancouver Island. INFO needed ?? Journals of Colonial Legislatures. Vol. 1.
- Smith's Mercantile Law is unidentified. For Chitty's Blackstone, see Douglas to Lytton, 27 October 1858, 12726, CO 60/1, p. 320. Smith not in law library bibliographies.