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Dewigged, Bothered, and Bewildered

Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800-1900

  • Book Info
    Dewigged, Bothered, and Bewildered
    Book Description:

    Using the career histories of judges who challenged the system,Dewigged, Bothered, and Bewilderedilluminates issues of judicial tenure, accountability, and independence throughout the British Empire.

    eISBN: 978-1-4426-9977-9
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-x)
    R. Roy McMurtry and Jim Phillips

    Canada was but one part of a large and complex empire, and this book is a reminder of that fact and a fascinating exploration of one important aspect of the legal history of the empire – the role of superior court judges. Professor John McLaren gives us a series of case studies of nineteenth-century judges from across the empire, including, of course, the Canadian colonies, who found themselves the centre of political controversy and were either suspended or removed from office. Frequently they landed in another colony, despite their chequered pasts. The book also provides a very useful and informative survey...

    (pp. xi-xii)
    Bruce Kercher and Philip Selth

    John McLaren is an important figure in the study of Australian legal history. He visits Australia frequently and has delivered a number of public lectures and conference papers there. His significance lies in his comparative approach to the history of the British legal empire. He has published influential books and was the primary compiler of a brilliant comparative legal history course, which was taught simultaneously in Canadian and Australian law schools. Students in both countries studied the same materials in the same week.

    Dewigged, Bothered, and Bewilderedis the culmination of Professor McLaren’s comparative approach. It shows how colonial judges...

  5. Preface
    (pp. xiii-2)
  6. 1 Colonial Judges in Trouble: Setting the Scene
    (pp. 3-9)

    Lieutenant Governor Peregrine Maitland of Upper Canada ordered Justice John Walpole Willis, puisne judge of the province’s Court of King’s Bench, removed from office in June 1828. By challenging the legality of the actions of the conservative law officers of the Crown, by consorting with reformist politicians and questioning the constitutionality of the Court sitting with less than a full bench, this judge had driven the colonial executive to the point of exasperation.¹ But this was not to be the end of Willis’s troubles as a colonial judge. Having persuaded the Colonial Office that he had been unjustly treated in...

  7. 2 Judicial Tenure, Accountability, and Independence in the Common Law World before 1800
    (pp. 10-33)

    To understand the histories of judicial tenure and accountability in the British Empire in the nineteenth century, it is important to have a sense of not only the struggle for judicial independence in England itself before 1701, but also of the status and exercise of control over colonial judges in the pre-1800 empire.

    There is a long history of judicial discipline in England prior to 1701.¹ Before the seventeenth century, judges in the royal courts acted primarily as the servants of the monarch. First of all, the King or Queen sought to exercise control over their behaviour through the oath...

  8. 3 The Administration of Colonial Justice and Law in the Nineteenth-Century British Empire: General Contours
    (pp. 34-55)

    The year 1800 did not represent a clear divide in the character of the colonial judiciary and its administration. The trends noted at the close of the previous chapter – emphasis on judicial loyalty to the colonial administration, professionalization of the judiciary, and pressure for English law to predominate in the colonies – continued, albeit fitfully, as the British government dealt with the distractions of the Napoleonic Wars and their economic and social aftermath.

    In one important respect, this was a period of institutional reorganization and reform in the way in which colonial policy was formulated, organized, and administered. In 1801 London...

  9. 4 The Perils of the Colonial Judiciary: Courting Reform in a Counter-revolutionary Empire, 1800–1830
    (pp. 56-87)

    It was late December 1806. The excitement of a by-election was in the crisp winter air in the riding of East York in Upper Canada. Supporters of the two candidates were in the streets enthusiastically waving flags and banners. Across the banners of Robert Thorpe were emblazoned the words ‘The King, the People, the Law, Thorpe and the Constitution,’ and his flags displayed Irish harps without a crown above them. Thorpe was an unlikely candidate for an assembly seat, as he was a puisne justice of the Court of King’s Bench.¹ Supporters of his rival, Thomas Gough, noted the lack...

  10. 5 The Perils of the Colonial Judiciary: Ultra-Conservative Judges in an Era of Developing Reformist Sentiment in the British Empire, 1810–1840
    (pp. 88-121)

    If the case of Robert Thorpe illustrates the limits set to the independence of reform-minded colonial jurists during the first third of the nineteenth century, that of Jonathan Sewell, chief justice of Lower Canada, and James Monk, chief justice of Montreal, threatened with impeachment in 1814, demonstrates the extent to which the imperial system would protect Baconian judges politically involved in the conservative cause, during the same period.

    Quebec, seized by the British from the French in the early 1760s, had gone through several stages of colonial rule prior to 1791.¹ Originally governed by British military authorities, it had in...

  11. 6 The Perils of the Colonial Judiciary: Guarding the Sanctity of the Common Law from Local ‘Deviations’ in a Convict Colony, 1800–1830
    (pp. 122-156)

    In 1820 two judgments of Justice Barron Field of the New South Wales Supreme Court of Civil Jurisdiction sent shock waves reverberating through the colony. In actions brought by emancipist (former convict) attorney Edward Eagar, one of which named Field himself as the defendant, the judge proclaimed that the English law of felony attaint applied in the colony.¹ The effect was to rob the plaintiff of any legal status as a litigant, maker of contracts, or seller, purchaser, or owner of property. Under the doctrine he was civilly dead. As the assumption since 1789 was that felony attaint had no...

  12. 7 The Perils of the Colonial Judiciary: English Legal Culture and the Repugnancy Card in the Australian Colonies, 1830–1850
    (pp. 157-189)

    In 1847 in Hobart, Van Diemen’s Land (later Tasmania), a spat developed between the colonial executive and judiciary with a storyline reminiscent of a Gilbert and Sullivan operetta. The casus belli was the Dog Tax Act that the no-nonsense civilian lieutenant governor of the colony, William Thomas Denison, had recently enacted with the approval of his Executive Council.¹ The statute imposed a requirement on dog owners to secure a dog licence, for which they had to pay a fee. One of its purposes, alongside more money for the treasury, was to reduce the number of canines roaming at large in...

  13. 8 Repugnancy in Australia after 1850: Shoot-out in Adelaide, 1854–1868
    (pp. 190-216)

    In 1865 the British Parliament passed the Colonial Laws Validity Act, signed by Victoria Regina and duly proclaimed.¹ This crucial legislation recognized the lawmaking autonomy of colonial legislatures throughout most of the British Empire. Repugnancy was to be limited to just two categories of statutes: those imperial acts related to a specific colony, and those of general application throughout the empire.² The black letter of the statute shrouded an ongoing battle royal between one of the judges of the South Australia Supreme Court, Benjamin Boothby, and the colony’s legislators about the relative powers of the legislative branch and the judiciary...

  14. 9 The Perils of the Colonial Judiciary: The Incubus of Slavery in the West Indian Colonies and West Africa, 1800–1834
    (pp. 217-244)

    In the early spring of 1809 George Smith, formerly chief justice of Grenada, full of enthusiasm and good intentions, set sail from England for a new judicial assignment in Trinidad. Just over two years later, in March 1811, stripped of several of his judicial functions in the administration of justice on the island by Governor Thomas Hislop, Smith left the colony under cover of night, to sail back to England. His objective was to reach London before his nemesis and to argue his case to the imperial authorities.¹

    Judicial appointment from Britain to its Caribbean colonies was particularly risky for...

  15. 10 The Perils of the Colonial Judiciary: The Indelible Stain of Slavery in the West Indian Colonies, 1834–1900
    (pp. 245-272)

    The formal end to slavery in the British Empire at midnight on 31 July 1834, celebrated by the 750,000 slaves and their anti-slavery supporters, was a compromise – a sure sign that London, while taking the moral high ground on abolition, was not willing to sacrifice the plantation economies of former slave colonies.¹ In the first place, the planters in these possessions received £20 million collectively in compensation. Secondly, London substituted a temporary apprenticeship system for the former regime to induce most former slaves to continue working on the plantations.² Mary Turner notes that the British government in beginning to dismantle...

  16. 11 Judges, Courts, and Empire in the Nineteenth Century and Beyond
    (pp. 273-304)

    What of the significance of these stories? It might be tempting to treat them as a series of ripping yarns of empire, the tales of a parade of eccentrics, malcontents, mavericks, and egomaniacs that have nothing useful to tell us about the roles of judges in colonial society. I argue vigorously that it is wrong to commit them to the ashcan of historical ephemera. In the first place, several of them had important thoughts on the constitutional relationship between Great Britain and its colonies, and the need to change and further liberalize it. Although those opinions and reservations were dismissed...

  17. Notes
    (pp. 305-416)
  18. Index
    (pp. 417-442)
  19. Back Matter
    (pp. 443-447)