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23. In a footnote, Begbie gives seven reasons why a preemption
claim could never succeed, basically
because Greer and Spinks had complied with none
of the legal requirements (Report, supra note 20 at
219). When Begbie questioned them, they either
pleaded ignorance or said they thought they had
complied.
24. This was clear (British) law: since the Royal Proclamation
of 1763, only the Crown could purchase
Indigenous land, and then only by complying with a
formal procedure involving tribal consent. Individual
tribal members could not convey title. Neither Indigenous
law nor common law Aboriginal title was considered,
nor, it seems, were Charley and Jim
claiming such rights.
25. Begbie’s attitude was different. Although clearly possessed
of some of the prejudices of the English country
gentleman, he stated shortly after his arrival in the
colony that his “impression of the Indian population
is that they have far more natural intelligence, honesty,
and good manners, than the lowest class—say
the agricultural and mining population—of any
European country I have ever visited, England
included”. In the same year he said this, Begbie and
magistrate Peter O’Reilly convicted William Marshall,
a white miner, of assault, solely on the testimony
of Indigenous witnesses, and much to the
dismay of a delegation of miners who complained—
unsuccessfully—to Governor Douglas about it
(Williams, The Man for a New Country, supra note
2 at 157–58).
26. There were 18 in all, including Greer, the most
important being McTiernan and Charley. Interestingly,
one John Manley Spinks (JMM Spinks?) was a
member of the grand jury that would indict Greer for
assaulting the deputy sheriff in 1891.
27. McTiernan had asked Ella White, a young woman,
to be a witness.
28. Report, supra note 20 at 225 (testimony).
29. Ibid at 232 (testimony of William Mackie, who also
claimed the land). “Masacha” is presumably
“mesachie”, Chinook jargon for “wicked”.
30. Ibid at 233–34 (testimony).
31. Ibid at 234. “Tyhee” is Chinook jargon for “chief”.
32. Williams, The Man for a New Country, supra note 2
at 265.
33. Ibid at 266. The people Greer had duped presumably
did not understand that Jim and Charley, under
British law, could not pass good title to Spinks. It
appears that a Mr. Henderson, acting as agent for
Spinks, had sold the land and provided the forged
conveyance to one McDonald, who in turn sold it to
a Mr. JP Walls, who produced the document to Begbie
at the royal commission hearings. Walls represented
“himself and the other parties claiming rights
to land under it” (ibid at 218).
34. Sydney G Pettit, “‘Dear Sir Matthew’: A Glimpse of
Judge Begbie”, The British Columbia Historical
Quarterly, vol XI, no 1 (January 1947) at 12. Professor
Pettit wrote three more articles about Begbie in
this volume of the BCHQ.
35. St George Stubbs, supra note 11.
36. See Hamar Foster & John McLaren, “B.C.’s First
Judge Fought Discriminatory Laws”, Times Colonist
(12 January 2014), online: <www.timescolonist.
com/opinion/op-ed/comment-b-c-s-first-judgefought
discriminatory-laws-1.785491>; “Echoes of
B.C.’s Past in Quebec Unveiling Law”, Times Colonist
(26 October 2017), online: <www.timescolonist.
com/opinion/op-ed/comment-echoes-of-b-c-spast
in-quebec-unveiling-law-1.23075436>. See
also the report of the Royal Commission on Chinese
Immigration (1885), online: <pier21.ca/research/
immigration-history/royal-commission-on-chineseimmigration
1885>.
37. R v Corporation of Victoria (1888), 1 BCR (II) 331 at
333.
38. St George Stubbs, supra note 10.
39. Williams, The Man for a New Country, supra note 2
at 263, quoting from a letter from Begbie to his fellow
Supreme Court judge Henry Crease. Notwithstanding
this, one of the reasons the Law Society’s
Truth & Reconciliation Advisory Committee gave for
removing Begbie’s statue from the foyer of the Law
Society building was that “he was influenced by
racist ideologies”. Of course, he was not without his
prejudices, which were either class-based (see e.g. n
23, above) or just plain peculiar, such as his view
that persons and nations who use alcohol are superior
to those who do not: Royal Commission on the
Liquor Traffic, Minutes of Evidence, vol III (1894) at
494–503.
40. Whether Begbie can be fairly described as a “hanging
judge” is a matter of opinion. He never convicted
anyone of a capital offence—only a jury could do
that—and, once convicted, the death penalty was
mandatory. But Begbie could recommend clemency.
Fifty-two men were charged with murder between
1859 and 1872. Of these, 38 were convicted. Begbie
recommended clemency or remained neutral in
18 of these convictions—almost half. (Had he done
so in the Tsilhqot’in trials in 1864, it would have been
well over half.) After BC joined Canada, more
Supreme Court judges were appointed, so he
presided over only a fraction of such cases after
1871. His biographer could find no evidence that he
was described as a hanging judge in his lifetime,
and, ironically, Begbie never considered a career in
the military because he “found it abhorrent to take
human life”. See Hamar Foster, “Was Matthew Begbie
Really a ‘Hanging Judge’?”, Times Colonist (2
September 2018), online: <www.timescolonist.com
/islander/was-matthew-begbie-really-a-hangingjudge
1.23419366>.
41. Williams, The Man for a New Country, supra note 2
at 144, citing William Wymond Walkem, Stories of
Early British Columbia (Vancouver: News-Advertiser,
1914) at 28. Significantly, when he reported on the
trial to the executive, Begbie admitted that the verdict
and life sentence were “not perhaps an altogether
unsatisfactory result”.
42. When BC joined Canada and more Supreme Court
judges were appointed, these judges, sitting together