(The following is the text of a talk delivered by William L. Day at the Hedley Historical Museum celebration of Canada Day (2019). A part-time resident of Hedley, Day is a former President of Douglas College, and more recently, a Citizenship Judge. In this talk he challenges the commonly held view of Judge Matthew Begbie as the “Hanging Judge”. A.M.)

Judge Matthew Begbie

Some of this material was sourced from the Victoria Times Colonist and material written by Stephen Hume in the Vancouver Sun newspaper.  

Matthew Begbie was the colony of B.C.’s first judge from 1858-71 and the new province’s first Chief Justice from 1871-1894. He held court in almost every settlement in the province, often under trees or in tents.  He was an appointee of the then British Colonial Office and as such was the unassailable final legal authority in the future British Columbia.

Begbie proved to be the ideal man for the job. He was tough, hardy, adventurous, adaptable, fair-minded and determined. He wasn’t popular except with First Nations chiefs, with whom he was prepared to communicate and whose rights he frequently defended.

In 1865 alone, he covered about 5,600 kilometres on foot, on horseback and by canoe. In the Stikine country in 1879, the year he turned 60, his party lived mainly off the land, “eating rabbits, grouse and squirrels, most of which Begbie himself shot.” He loved the outdoors.  He is a hero to lovers of Victoria’s Beacon Hill Park for his ruling in 1884 preserving it from development.

But the so-called “Hanging Judge” was controversial almost from the moment he stepped off the boat in 1858.  The phrase apparently stemmed from references to him as the “Haranguing Judge” from his extended diatribes during and after jury trials.  It was transliterated in later years after his death, by people ignorant of the actual circumstances of his life and work.

At one of his first trials, he told the assembled miners – mostly Californians – that in the U.S. they might govern “by the Bowie knife and the Colt’s pistol,” but not in British Columbia.

Begbie was also controversial for his racial attitudes, telling a royal commission in 1884 that the “four prominent qualities” of the Chinese were “industry, economy, sobriety and law abidingness.” And that, he said, was the main reason they were unpopular. The Daily British Colonist (now the Times Colonist) criticized him for this, maintaining that the Chinese were “hereditarily on a lower plane of civilization.”

With reference to Begbie’s attitude toward native peoples, in 1860, Governor James Douglas had to deal with complaints that Begbie had allowed a white man to be convicted of assault at Yale “wholly on testimony from Indians.”

In the ensuing years, Begbie continued to condemn “racial jealousy” and set aside convictions under discriminatory bylaws dealing with such matters as licences for Chinese laundries and pawnshops whenever these issues came before him. A century before Canada adopted its Charter of Rights, he described such laws as an infringement “at once of personal liberty, and of the equality of all men before the law, and also a negation of international rights.”  On his last circuit in 1889, when he was 71, he renewed old acquaintances in the Cariboo, describing the Chinese who had been there since the gold rush 30 years earlier as “better British Columbians than nine-tenrhs of the later arrivals.”

Other decisions also raised eyebrows.  In 1889, he overturned the conviction of a man who had pleaded guilty to potlatching, holding that the law against it was too vague and unfair to support lawful convictions.  This rendered the potlatch ban a “dead letter” until, after Begbie’s death, Parliament strengthened it.

His positive opinion of B.C.’s Indigenous Peoples, formed early on, did not change throughout his lifetime.

Begbie  protected the territorial integrity of the Songhees Reserve in Victoria City, a case that illustrated his belief that, if at all possible, justice should trump legal technicalities. He was a skilled lawyer and judge, but as he put it himself, camping on the hard ground and coping with an overturned canoe were more important than legal niceties in the new colony.

Unlike most of his contemporaries, Begbie was fluent in several languages, including the Chinook Jargon – the trading language of the entire Pacific Coast – and made a concerted effort to learn some of B.C.’s Indigenous languages.

Was he a “Hanging Judge”?  Where he had discretion, he could certainly impose a harsh sentence if he thought it was justified. But he had no discretion in capital cases: When the jury convicted someone of murder — and all such trials in Begbie’s court were jury trials — the death penalty was mandatory. 

His biographer could find no evidence that he was described as a hanging judge in his lifetime.  Ironically, Begbie never considered a career in the military because he “found it abhorrent to take human life.”

Begbie is also controversial today for his role as Presiding Judge in the trial of the Tsilhqot’in chiefs who made war on the mainland colony in 1864. The evidence strongly suggests that they were tricked into surrendering and the jury convicted five of the six notwithstanding that they had meant “war, not murder.” The death penalty was automatic.  Begbie’s own notes at the time stated that the native chiefs viewed themselves as at war. These very notes were used in the Canadian Supreme Court decisions supporting the Chilcotin government’s legal case over land control in their territory.

In his report on the trial to the governor, Begbie said that it “seems horrible to hang five men at once — especially under the circumstances of the capitulation. Yet the blood of 21 whites calls for retribution.” He added that he was glad the decision was not his to make.

Both levels of government have since exonerated the executed men.  The Law Society of British Columbia has removed Begbie’s statue from the foyer of its building, citing his role in the Tsilhqot’in trials.  New Westminster Council has voted to remove the Begbie bust from the courthouse at Begbie Square.

What would Begbie have thought of this? His instructions to his executors were that “no other monument than a wooden cross be erected on my grave, that there be no flowers and no inscription but my name, dates of birth and death and ‘Lord be Merciful to Me a Sinner.’ ”

British Columbia’s first chief justice is often called “The Hanging Judge.” In fact, Matthew Begbie was progressive, lenient, championed the rights of indigenous and other minorities exposed to racism, and didn’t hesitate to speak truth to power — in his case, colonial authorities.

William L. Day

01 July, 2019