A crime against Sir Matthew Begbie’s humanity

By: on May 28, 2018 |

Matthew Begbie (Image: PNG Merlin Archive)

This past March, Prime Minister Justin Trudeau apologized for another in the apparently endless list of wrongs perpetrated by previous governments of Canada. This time the aggrieved party was the Tsilhqot’in Nation of British Columbia; their grievance was the pre-Confederation hanging of six chiefs for their role in what is now known as the Chilcotin War. Accused and convicted of mass murder at the time, today they’re officially considered to have been warriors bravely defending their land against white invaders.

“We now understand that the treatment of the Tsilhqot’in chiefs represented a betrayal of trust and injustice that has been carried by the Tsilhqot’in people for more than 150 years,” Trudeau told the House of Commons. And so these six native leaders, once convicted of murder, “are fully exonerated of any crime or wrongdoing.”

This follows a remarkably similar apology by former B.C. premier Christy Clark from 2014, when she also said, “we confirm without reservation that these six Tsilhqot’in chiefs are fully exonerated of any crime or wrongdoing.”

As an exercise in political symbolism, Trudeau’s ancient legal discharge was artfully executed, emotively delivered, and rewarded with maximum positive media coverage. And yet if it is a righteous and newsworthy act to hand out exonerations for injustices perpetrated upon historical figures associated with the Chilcotin War, there’s no good reason to stop with these six war chiefs.

Even the slightest nod to fair play or historical context should require us to acknowledge that the legacy of the presiding judge in this affair − the once-renowned and much-celebrated Sir Matthew Baillie Begbie − has also suffered a grave injustice. If Canada of 2018 is prepared to fully exonerate six war chiefs for horrific actions we now consider to have been honourable and reasoned, then we surely owe the same to Begbie, who was by colonial standards the most liberal, open-minded and minority-positive jurist of his day – and even by modern standards remains arguably the most impressive figure ever to wield a gavel in Canada.

When will Sir Matthew get his reputation back?

A Canadian colonial icon

A long time ago − when colonialism was still a byword for high adventure and bravura − Sir Matthew Baillie Begbie stood at the vanguard of the Victorian ideal: born on a British troop ship on its way to Mauritius, educated in the classics at Cambridge and employed at the bar of the Chancery Courts of London. In 1858, thanks to political connections, he was named the sole colonial judge for the wild and woolly newly-created colony of British Columbia.

As soon as he set foot on the West Coast, Begbie established a reputation as a hard-working and incorruptible purveyor of British common law tradition. He personally wrote the Gold Fields Act of 1859, legislation that was instrumental in establishing the crown’s authority over the B.C. gold rush – keeping in check many lawless American miners who made their way north. Begbie travelled extensively throughout his precinct to ensure the law was as fairly administered and easily accessible in the hinterland of the Cariboo as it was in the relative comfort of a courthouse in the colony’s capital of New Westminster.

According to biographer David Williams, within a year of arriving in B.C., Begbie walked from New Westminster up the Fraser Canyon to Lillooet and back, a journey of over 560 kilometres, in four months. On horseback he established a regular judicial circuit: winter and spring along the coast, summer and fall in the interior. In 1865, author Williams figures, Begbie travelled nearly 6,000 km dispensing justice. During these trips, Begbie often lived off the land, establishing a reputation as a skilled frontiersman.

Begbie’s golden reputation is further burnished by the fact he was not just an impeccably fair purveyor of law and order, but also an early proponent of native rights. He learned several native dialects in order to adjudicate without need of interpreters. He frequently refused to enforce culturally insensitive laws such as the infamous Potlatch ban, exhibited much sympathy for the damage done to natives by whisky-sellers and, in 1860 spoke in favour of the then-heretical notion of “Indian title” to the land. And despite his unfortunate nickname of “the Hanging Judge” – a term never applied in his lifetime − he was no friend of vigilantism and displayed no prejudice when handing out sentences. In his biography The Man for a New Country, Williams calculates that between 1859 and 1872 Begbie presided over 52 individual murder charges. Of these 38 resulted in guilty verdicts, of which he offered clemency to 11, including seven natives. “Interestingly,” Williams writes, “he did not recommend clemency for any of the white men sentenced to be hanged.”

Begbie was equally tolerant of the Chinese community, another group victimized by wide-spread prejudice in early B.C. He repeatedly struck down discriminatory bylaws aimed at Chinese laundries and pawn-shops, allowed elaborate oath-taking procedures for Chinese witnesses who refused to swear on a Bible, and openly spoke in their favour when surveyed by the federal government in advance of the now lamented (and dutifully apologized for) Chinese head tax. A questionnaire from the Royal Commission investigating the ‘Chinese question’ in B.C. asked: “Are they industrious, sober, economical and law-abiding, or are they lazy, drunken, extravagant or turbulent? Please answer the question fully.” To which Begbie replied:

“Industry, economy, sobriety and law-abidingness are exactly the four prominent qualities of Chinamen… This is, I think, the real cause of their unpopularity. If Chinamen would only be less industrious and economical, if they would but occasionally get drunk, they would no longer be the formidable competitor with the white man which they prove to be in the labour market; there would be no longer a cry for their suppression.”

In recognition of his work ethic, duty and profound sense of morality, for most of B.C.’s first 100 or so years, Begbie was commonly paired with governor Sir James Douglas as the province’s two most significant and revered forefathers. In further recognition of his contributions, Begbie was frequently commemorated in geography; his name graced streets, parks, mountains, lakes, schools and other public sites across the province.

But that was then. As a result of Begbie’s involvement in the execution of those now-exonerated Tsilhqot’in war chiefs, his once-shining legacy is now steadily retreating into darkness. In 2001 the University of Victoria removed his name from the school’s law building, and a small statue of Begbie in front of that building later disappeared under mysterious circumstances. A mural featuring Begbie dispensing justice that once graced the walls of the B.C. Legislature was hidden from public view in 2008.

Prime Minister Justin Trudeau officially exonerated six Tsilhqot’in chiefs who were hanged for murdering 18 white road builders and settlers during a violent rampage in 1864 that came to be known as the Chilcotin War. (Image: CPAC)

Last year, a much larger statue of Begbie – on horseback in the front lobby of the Law Society of British Columbia’s building in Vancouver – was also purged. So was its plaque which read: “His 36 years of fearless and impartial service made a lasting contribution to the administration of justice in the Pacific region of Canada.” But in capitulation to demands of modern Tsilhquot’in political war chiefs, the law society renounced the province’s first chief justice and declared the statue “a reminder … of the province’s colonial past and Justice Begbie’s role in the hanging of six Tsilhqot’in Chiefs. The presence of the statue is offensive to them.”

Emboldened by this victory, the “Tsilhquot’in National Government” of Williams Lake, B.C. subsequently demanded that the province should “remove Begbie’s name from all public places” because he “wrongfully convicted six Tsilhqot’in war chiefs of murder and sentenced them to death.” Every testament to Begbie in every part of the province can now be considered under threat of removal to satisfy this demand. Once celebrated as a founding father, today he is considered persona non grata throughout much of the province. But if a review of the facts in light of modern-day sensitivities prompted the B.C. and federal governments to declare the charges and punishment meted out against those six Tsilhqot’in chiefs to be unjust, surely we owe the same due process to Begbie.

The Massacre that became a War

What we today call the Chilcotin War was once known as the ‘Waddington Massacre’. In Spring 1864 entrepreneur Alfred Waddington decided to build a private toll road into the area west of Williams Lake to take advantage of gold mining traffic, and possibly encourage permanent white settlement in the area. A road crew was sent up the Homathko River, chopping and carving its way into unceded Tsilhqot’in territory. In response, a Tsilhqot’in war party attacked. Over a period of a few days, 18 whites were killed, including most of the road crew, a nearby settler, ferry operator and wranglers from a pack train supplying the area.

The exact reason for the uprising remains unclear to this day. Some historians ascribe the violence to sexual interference with native women by the road crew. Others suggest desperation and starvation on the part of the Tsilhqot’in, in part because of a devastating recent small pox epidemic. Plunder is another possibility. The explanation currently favoured by apologists for the killers is that the new road was seen by the Tsilhqot’in as a deliberate attempt to wipe them out via another bout of small pox.

What we do know is that a handful of Tsilhqot’ins decided to engage in a campaign of bloodshed unrestricted by the formalities of modern, nation-to-nation warfare. The first killing took place at a ferry crossing, outside traditional Tsilhqot’in territory. Then the war party tore through the main camp of the road crew on the morning of April 30, 1864 in a surprise attack, made all the more surprising by the fact many of the native attackers were employed as workers in the camp at the time. Most of the nine dead were killed as they slept, either shot or bludgeoned to death in their tents. The war party then moved upstream to an advance camp. There, reported a government party that surveyed the scene later, foreman Willy Brewster was found “shot, his head smashed in with an axe and his belly ripped up.” According to author Mel Rothenburger’s vivid account in The Chilcotin War, Brewster’s killers carved out his heart and ate it, and cut off his penis and stuck it in his mouth.  Other victims were also mutilated. One road worker threw himself into the river and drowned rather than allow himself to be captured alive.

 

In Rothenburger’s telling of the story, Brewster was a catalyst for the uprising because he had threatened the Tsilhqot’ins with smallpox after members of another local band had stolen 25 sacks of flour from the road builders’ stores. The locals had good reason to be fearful and angry over the threat. In the previous two years an estimated 20,000 of the region’s 60,000 aboriginal inhabitants had been killed by the disease. Half the Tsilhqot’ins had perished. Rothenburger writes of two American traders who had chanced upon a decimated village, gathered up blankets, and resold them to other natives who became infected and died (as did one of the traders).

Whatever the motive, such violence could not go unrebuked by the colonial government, and an armed party of 70 volunteers was promptly organized to bring the chiefs to justice. While it eventually succeeded, the circumstances surrounding the capture of Klatsassin, the ring-leader of the war party, are pivotal to present-day abjurations of Begbie, and require a closer look.

The disputed surrender

W.G. Cox, the gold commissioner for the province, led the Cariboo volunteer party. After several months on the run, Klatsassin’s party was reduced to eating their horses and were on the verge of starvation. Cox sent word through an emissary that he would either accept the surrender of all guilty parties or continue pursuing the entire group and thus “kill all the men, women and children.” This threat lead to an exchange of gifts, and Klatsassin’s appearance in Cox’s camp to parley. Two days later the chief returned with seven other members of his band. “We are seven murderers who are here giving ourselves up, and I am another”, Cox recorded Klatsassin as saying. Upon discovering that he had been made a prisoner by Cox, however, the chief declared “there is no murderer here.” Later, he refined his argument: “We meant war, not murder.”

The meaning of the initial parley and subsequent surrender has been subject to much debate in the intervening 154 years. Cox’s threat to kill Klatsassin’s family clearly complicates his confession. And if we accept the modern interpretation of the killings as an act of war − and if the gifts exchanged were meant as a peace offering to establish a truce − then the circumstances of Klatsassin’s capture appear to violate widely-accepted rules of warfare.  Begbie, as trial judge for Klatsassin and the others, was very much alive to the significance of the surrender. In a letter to B.C. Governor Fredrick Seymour, he called the surrender a “very important topic.” He questioned Cox at length on the matter and even visited Klatsassin in his jail cell, a conversation conducted in the chief’s native tongue. The judge concluded the accused had not expected to be imprisoned by Cox. Rather, Begbie suspected a rival chief who stood to gain from Klatsassin’s removal may have deliberately mis-translated Cox’s message and confused the purpose of the parley. Despite this murkiness, however, the judge concluded Klatsassin was on the verge of giving himself up anyway due to a lack of supplies – something the chief did not dispute − and allowed the confessions to stand as evidence.

                                                                                                                    Image: Mel Rothenburger

Biographer Williams, himself a lawyer, carefully considers Begbie’s decision on the surrender and concludes that today, Klatsassin’s self-incriminating statements would almost certainly be struck from the evidence. Yet the author admits application of this exclusionary principle was a very rare event in colonial-era courtrooms. Besides, there were plenty of eyewitnesses who put Klatsassin and his co-accuseds at the scenes of the crimes, supporting guilty verdicts without any need for confessions. However the decision is viewed today, it’s clear Begbie showed a far greater concern for Klatsassin’s legal rights than the chief had reason to expect from most other British colonial judges of his time. “It seems horrible to hang five men at once, especially under the circumstances of capitulation,” Begbie wrote to Seymour of the verdict. “I do not envy you your task of coming to a decision.”

Indeed, it was not Begbie’s decision that sealed Klatsassin’s fate. A jury found five of the eight natives captured by Cox to be guilty of murder. Before Begbie pronounced upon them the mandatory sentence of death he asked, “What is your law against murderers?” “Death”, they replied. “Our law is the same”, Begbie said. “You are guilty of death.”

While he had commuted sentences of capital punishment in other, less-politically sensitive trials involving natives, Begbie chose not to do so in this case. In any event his was not the last word on the matter. First the province’s Executive Council reviewed the trial, then Governor Seymour confirmed the death sentence.

“After a most prolonged and careful enquiry and deliberation the Council were unanimously of opinion that no promise of any sort was made to any of these Indians by Mr. Cox on their surrender and that there was no reason why the justly deserved sentence of death imposed on five of them by the Law should not forthwith be carried out.”

                        − Frederick Seymour, Governor of British Columbia, October 18, 1864

If anyone should bear historical responsibility for hanging the five war chiefs (a sixth was captured, tried and hanged later that year), surely it is Seymour. So why has Begbie been made the villain of the piece?

The answer to that question, as well as why the Chilcotin killers deserve a public exoneration, can be traced to the 1993 report of the Cariboo-Chilcotin Justice Inquiry, a provincial investigation prompted by complaints about the administration of justice in native communities in the interior of B.C. While the bulk of this report deals with familiar modern issues such as high rates of native incarceration, treaty rights and conflict between natives and the RCMP, it made headlines for suggesting a posthumous pardon for the six war chiefs as a peace offering to improve local native/provincial relations.

“Much as been written, but little is known with any certainty of the facts that led to the trial of those chiefs before Judge Matthew B. Begbie,” the report notes. “Whatever the correct version, that episode of history has left a wound in the body of the Chilcotin society. It is time to heal that wound.” Note how the inquiry takes no position on the killings, or Begbie’s role in the final outcome; the facts are moot against the “healing” imperative.

In the years that followed, the case for exoneration was built on the unsubstantiated assumption that the killings were an honourable act of war, not murder. In their recent apologies, for example, both ex-Premier Clark and PM Trudeau blandly state the native attackers removed “all settlers from their lands.” What the law originally found was a mass murder of 18 unsuspecting road workers and settlers is now officially recognized as a war between nations fully justified on the basis of a bio-terror threat, and lost only because of deception on the part of the white army.

The final requirement for this new narrative affirming the natives as victims is the transformation of Begbie into a villain. His punishment is to rubbish his reputation and scrub his name from the province’s road maps and lobbies.

Begbie, Macdonald, Langevin, Cornwallis…

In fact this demand for scapegoats plucked from the pantheon of Canadian history has become a regular by-product of the “Truth and Reconciliation” movement. Begbie’s fate is remarkably similar to that of Sir Hector-Louis Langevin, the influential French Catholic federalist and Father of Confederation who has lately been fingered as an “architect” of the Indian residential school system. Last year Trudeau removed Langevin’s name from the building that houses his office in Ottawa after complaints from native leaders. Langevin was, in fact, the Minister of Public Works when Prime Minister Sir John A. Macdonald’s government formalized its residential school program. Langevin was the program’s ‘architect’ in only the most literal sense of the word – he was responsible for putting up the buildings. Laying the concept or creation of the residential school system at his feet is pure historical fiction. Another newly-minted villain is Edward Cornwallis, the first governor of Halifax, who responded to the practice of Mi’kmaq warriors scalping English settlers (for payment by the governor of New France) by establishing his own scalping bounty. In response to demands from descendants of the Mi’kmaq scalpers, Halifax City Council recently voted to remove a statue of the city’s founder.  Historical context has no relevance in the nationwide effort to expiate Canada’s collective colonial sins by  taking the metaphorical scalps of as many prominent Canadian historical figures as possible.  Yet this villainization of Begbie is especially and ironically unjust. Casting his continued physical presence in the province as an impediment to reconciliation requires us to ignore his vast record of accomplishments in furtherance of law, liberalism and good governance during B.C.’s early days. It means wiping from popular history his impressive and laudatory record as defender of minority rights and native cultural traditions. Surely no representative of the British crown displayed a more enlightened view of Indigenous traditions or interests throughout the province’s colonial era. Removing his legacy in this way robs all Canadians of a fulsome understanding of the origin of minority rights in their own country. And it ignores the large and important role played by the British liberal, Christian and colonial traditions in the creation of a modern, diverse and tolerant Canada.

If we are intent on applying present-day standards of law and morality to adjudicate past actions – as is now apparently de rigueur in Canadian historical debates – it is true that Begbie’s handling of the Tsilhqot’in killers falls short of a Charter-worthy regard for their legal rights. And if we accept that the Chilcotin War was in fact a proper war between nations, it is similarly true that Cox’s inducements to Klatsassin look suspiciously like a trick that would be considered unethical today.

But such assumptions, if applied, must be fairly distributed. It is clear the activities of the Tsilhqot’in war party of 1864 also violate numerous contemporary standards of behaviour and ethics. Their declaration of war, for example, was not announced to anyone else in the B.C. colony. As such, the initial raid can only be seen as a sneak attack: a de facto act of terrorism. And the warriors who hired themselves out to the road crew and thus disguised themselves as friendly participants prior to the attack should similarly be considered guilty of an act of dishonourable deception – conduct that has always been punishable by summary execution on the battlefield. Finally, the war party committed several horrific acts of ritualized mutilation on the dead, particularly in their bloodthirsty mauling of Brewster, that would be universally condemned as crimes against humanity if carried out today. Is this something that deserves exoneration? Or excused as something “many of us would have done,” as Kamloops-Thompson-Cariboo Conservative MP Cathy McLeod said during bi-partisan parliamentary cheerleading for Trudeau’s apology? The scales of justice have tilted decisively and unfairly against the reputation of Begbie. B.C.’s greatest judge deserves a fair trial of his own.

 


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About Peter Shawn Taylor

Peter Shawn Taylor is editor-at-large for Maclean’s magazine.