Navigating the Scylla of imperial politico-legal aspirations and Charybdis of colonial micro-politics in the British Empire: the case of the judges

Chapter 2
Navigating the Scylla of imperial politico-legal aspirations and Charybdis of colonial micropolitics in the British Empire

The case of the judges

John McLaren

Robert Thorpe, puisne judge of the Upper Canadian Court of King’s Bench, was removed from office in 1807 for attempting to lead the official opposition to the counter-revolutionary colonial regime of Lieutenant Governor Francis Gore.1 Henry John Boulton, an arch-conservative, appointed to bring more law and order to the island, lost his job as Chief Justice of Newfoundland in 1838 for his aggressive political comments as leader of the Legislative Council and antipathy towards the local reformist and Roman Catholic dominated House of Assembly.2 In 1811 George Smith, Chief Justice of Trinidad had to flee the island under cover of night, because of his unbending stand in favour of preserving Spanish law on the island and against a legislative assembly, in the face of a campaign by British merchants and settlers who wanted English law introduced and their own representative governing body.3 Jeffrey Hart Bent survived an attempt by local planters to dislodge him as Chief Justice of Grenada in 1832 for taking the part of a Roman Catholic priest who ministered to a parish of slaves and poor free persons and criticizing the plantocracy and their incestuous control of the island’s administration.4 The examples of and contrasts between the fates of colonial judges in trouble could be multiplied.

What these short references suggest is that in considering issues of judicial tenure and accountability in the British Empire in the nineteenth century, both imperial politico-legal aspirations and colonial micro-politics and tensions between them are important factors in determining how colonial judges were treated, especially those who found themselves on the wrong side of the colonial government, London or a significant interest group in the colonies in which they served. It is true that during the first third of that century reforms in colonial administration occurred that might have suggested a more consistent pattern of supervision of the judiciary. Both the establishment of the Colonial Office in 1801, with overarching responsibility for governance of the colonies, excepting India,5 and the judicialization of appeals to the Privy Council in 1833 pointed in that direction.6 However, the levelling impact of these changes in imperial governance took time to occur, and, in any event, the multifarious character of Britain’s colonial possessions over the previous two hundred years made a ‘one policy fits all’ impossible to achieve. Despite Sir William Blackstone’s attempt to reduce the status of various types of British colony to some sort of juristic order, his rationalization tells us little about how different colonies were actually governed, how justice was administered and what law was applied.7 This chapter seeks to explore the impact of the operation of and tension between imperial, political and legal imperatives and micro-politics within colonies, with reference to the careers of British colonial judges, and the rule of law and judicial independence in those possessions. The particular focus is the trials and tribulations of those men who were alleged or were found to have ‘misbehaved’ by confusing law and politics.

There were several common features about the appointment of colonial judges across the empire. In the first place appointments were not governed by the Act of Settlement, 1701, s. 3 which finally established that English judges were appointed ‘during good behaviour’.8 They were by contrast, and very consciously, appointed by London ‘at pleasure’.9 Until the 1830s when ‘during good behaviour’ became the norm in the British North American colonies, the imperial authorities resisted vigorously any attempt by colonial assemblies to change the rules. The reasoning of the British government was simple. We need colonial judges to play an important role in colonial administrations and they are expected to be loyal in a general sense to both the colonial and imperial governments. Accordingly, we need to ensure that a judge who persistently fails to toe the line may be removed from office. These sentiments were embodied in legislative form in Burke’s Act of 1782, which endowed colonial executives with the power to remove (‘amove’) colonial judges who misbehaved themselves.10 It was also possible, under a more venerable practice, for a troublesome jurist to be removed on a petition from a colonial legislature to the Privy Council.11 Moreover, if a judge was seen as obstructing or embarrassing the imperial authorities more directly he could be recalled.12 Because London recognized the often parlous and vindictive state of relations in colonies, considerations of fairness provided an appeal to the Privy Council to those individuals who were removed or suspended under the Act of 1782.13

A second common theme about most colonial judicial appointments was that the candidates for office were the ‘also rans’ of the English, Irish and Scottish bars. These were men who, whatever their competencies, were not going to make it to the top of the professional ladder as barristers or advocates. The reason was, as John Bennett has wryly noted, that they were consigned to languish ‘under the “closed shop” system that kept the Bar the wealthy domain of the anointed few’.14 The system was greased by patronage in the sense that judges appointed to the colonies had managed to persuade a couple of people of consequence within or even outside the profession to vouch for their competence and gentlemanly qualities.15 The size of the pools of people available for service in particular colonies varied depending, on the one hand, on the reputation of those possessions as places to live and work and, on the other, on the degree to which aspirants were desperate enough to accept judicial preferment at almost any cost.

By contrast, when it came to the ways in which justice was administered and working conditions in the various colonies, the story was one of significant diversity, especially in the first half of the century. In older and smaller colonies there were, in some cases, vestiges of earlier systems of amateur justice. In Barbados, for instance, the first Chief Justice to be a qualified lawyer was appointed in 1841. In 1825, as a Commission of Inquiry appointed by the Colonial Office found, a local surgeon had filled the role.16 In Newfoundland and Prince Edward Island, London vacillated between professional and lay appointees as Chief Justice between 1800 and 1825.17 Even if the Chief Justice was legally trained, the associate judges were often lay persons, typically selected from the local elite. The law that colonial jurists applied in British colonies ranged from English law supplemented or even confined by local custom, the law of the previous colonizer, mixed systems of English and indigenous law, private company law, and the quasi-military law and regulations applicable in strategic bases or penal settlements.

The salaries that colonial jurists could expect diverged considerably. In the case of several West Indian colonies where the judges were planters and laypersons the most that could be expected was a share in the litigation fees. Professionally trained chief justices were typically on salary (bolstered by a share in fees), but the range of remuneration was wide, ranging between £1,000 and £3,000.18 India was the plum, with salaries at £4,000 per annum, only a little lower than those enjoyed by the English judges.19 Other colonies paid lower salaries. In Australia the Chief Justice of New South Wales enjoyed a high end figure of £2,000 a year.20 The first Chief Justice of South Australia by contrast originally received a measly £500.21 What looked like an attractive salary in the abstract proved sometimes to be less beneficent in the face of the high cost of living in certain colonies, as those appointed to Australian possessions found. Although judges in some colonies benefited from grants of land in expanding their patrimonies this could become a serious burden if the bottom fell out of the local economy, as it did on occasion.22

Working conditions also varied considerably. At a professional level the life of a colonial judge could be lonely and isolating if he was the single superior court judge or kept at a distance by his colleagues and the local bar (as was sometimes the case when an external candidate was ‘parachuted’ in, and beat out a local boy).23 In other locations he would enjoy the respect of colonial officials, the bar and even members of the community. Library resources could be passable or derisory. Court facilities and domestic accommodation ranged from the commodious to ramshackle.24 Life on circuit could be pleasant and calming, or perilous, stressful and enervating.25 While maladies might be expected and experienced in any colony, the diseases in tropical colonies were particularly debilitating and deadly.26 The social life that was never a match for the glittering lights of London, Dublin or Edinburgh ranged from the relatively urbane to that of the frontier.

It was differences in politico-legal culture of colonies and the shifting strategic priorities of the metropolis that were the most important variables that affected the roles of colonial judges and what was expected of them. In British North America during the first third of the nineteenth century, London’s colonial mission was to prop up the possessions that had escaped or been saved from revolution.27 The success of this policy was, believed William Pitt the Younger and William Grenville, the architects of the new imperial order, dependent upon balancing the grant of a representative legislature with the provision of strong executive power through the Crown’s representative in the colony, and legislative and executive councils composed of powerful and respectable individuals who would be loyal to the colonial state. In this system there was to be no doubt about where the judges would stand in political terms: firmly behind the executive. Force was given to this assumption by judges (especially chief justices) serving on the councils in powerful, almost ministerial roles, and fulfilling a more general advisory function of the sort familiar during the constitutional struggles in seventeenth-century England.28

Colonial judges were expected to be political animals, but, of course, the colour of their politics mattered. With the counter-revolutionary policies behind the organization of power in these colonies, judges motivated by high Tory principles, unwavering loyalty to the Crown and antipathy towards radical and even reformist elements in the population (the agents of ‘faction’) generally enjoyed the support of London. This was so even if the Colonial Office was at times embarrassed by the less than honourable tactics used by these men to preserve conservative power. In 1814 the House of Assembly in Lower Canada (Quebec), dominated by the reformist parti Canadien, sought to impeach the Chief Justice of the colony, Jonathan Sewell, and of Montreal, James Monk, for their support of Sir James Craig’s ‘Reign of Terror’ in 1810 and 1811, and for their attempts to anglicize the colony’s civil law in ways felt to be detrimental to the interests of the majority Canadiens.29 Craig, who was paranoid about rebellion among French Canadians, had arrested a number of reform members of the House of Assembly when the newspaper they sponsored used intemperate language against the administration. They were charged with treasonous conduct.30 When a grand jury demurred from issuing a bill of indictment the prisoners remained incarcerated and Sewell, who had been advising the Governor, refused a writ of habeas corpus. The two judges who both harboured the view that ultimately French civil law should be replaced by English law had sought to replace French court procedures with English ones. Although there was substance in both criticisms, the Colonial Office refused to countenance charges based on the advice given by judges to the Governor during a period of unrest, and the Privy Council found no fault with the judges’ attempts to rationalize and expedite the work of the superior courts through the introduction of English procedure.31 These judges assumed correctly that when push came to shove in these conflicts the imperial authorities would plump for the bastions of order and deference, over political dissenters.

By contrast with the comfort of support from London enjoyed by conservative judges, any judge who took up the cause of or identified with oppositionist forces in these colonies was wading into perilous waters. Robert Thorpe arrived in Upper Canada in 1805 as an associate justice of the province’s Court of King’s Bench.32 Perhaps betraying Irish Whig sentiments developed as a young barrister in Dublin in the 1790s, he attached himself to a group of disaffected Irish lawyers and placeholders. These men resented the favouritism shown to the ‘Scotch’ advisers to the Lieutenant Governor and what they considered to be the oppressive, uncaring and arbitrary policies of the colonial executive. The latter included the enactment of a draconian Sedition Act and the administration of colonial land policy. In his charges to both grand and petit juries the judge laced his comments with references to a liberal reading of the British constitution. When Thorpe, who stood for and won the Assembly seat left vacant by the death in a duel of his friend, lawyer William Weekes, purported to lead the opposition in the House and began to talk of representative government, his days were numbered. Lieutenant Governor Francis Gore, who had persuaded himself that Thorpe was a closet United Irishman and a dangerous demagogue, had little trouble in persuading Lord Castlereagh, Secretary of State for the Colonies, and, ironically, Thorpe’s patron, of the need to remove the judge from office.33

John Walpole Willis was no less fortunate in his dalliance with the forces of reform and his challenges to the colonial executive in Upper Canada twenty years later. An ambitious Equity lawyer with a demanding aristocratic wife (a Bowes-Lyon), he was appointed a puisne justice in Upper Canada in 1827.34 Expecting that he would head a planned Court of Chancery in the colony, he became disappointed at the failure of the colonial executive and especially of the Attorney General, John Beverley Robinson, to advance the proposal seriously.35 He courted several reform politicians who were developing a commitment to responsible government to support the new court. When the plan for a court of Equity aborted in the Assembly, Willis set his sights on the Chief Justiceship of King’s Bench. His competition was Robinson, an ultra-conservative Upper Canadian who was a close adviser to the colonial executive and a member of the Family Compact.36 The latter were a loose, elite group dedicated to an ordered, deferential society, and vigorously opposed to democracy. Willis’s stock with Lieutenant Governor Peregrine Maitland began to decline seriously when in open court he challenged the law officers for their offensive policy of vigorously pursuing radical critics for libel, while ignoring the violent, vigilante depredations of their friends against both radicals and reformers.37 His Waterloo occurred when he challenged the constitutionality of King’s Bench sitting with less than all three judges present. The Chief Justice was on furlough in England and Willis refused to sit in his absence.38 He had tried the patience of the colonial government too far and he was removed from office in June 1828.39

Unlike that of Thorpe, the exit of Willis from the Upper Canadian judiciary had some effects on British policy towards some of its North American colonies. This was because the mild breezes of reform that were blowing through the corridors of power in Westminster in the late 1820s were causing at least minor changes in colonial policy. These eddies may well have induced Willis to launch his challenge to the colony’s constitution, believing that London would see him, rather than the local hick, as the preferable embodiment of justice for the time. That apart, the British government moved to deny the Chief Justice of Upper Canada membership on the Executive Council in 1830, shortly after Robinson was elevated to that position.40 Moreover, after 1834 judicial appointments to the colony were made ‘during good behaviour’.41 Judicial independence in the English sense was emerging from the colonial mire.

If Willis had miscalculated his timing in challenging the thoroughly outdated counter-revolutionary form of colonial government devised by Pitt and Grenville, one of his detractors in Upper Canada, Henry John Boulton, sadly misconstrued the effects of both the reformative impulse in British politics after 1832, and the effects of the emancipation of Roman Catholic Ireland in 1829. Both were having an impact in some of Britain’s colonies, not least Newfoundland.42

Like Robinson, Boulton was a member of the Family Compact, serving for a long period as Solicitor General, replacing Robinson as Attorney General in 1829 when the latter became Chief Justice.43 Secretary of State Lord Goderich ordered him removed from that office in 1833 for harassing the radical politician, William Lyon Mackenzie.44 Boulton, having persuaded Goderich’s more conservative and anti-Catholic successor, Edward Smith Stanley, that he had been a victim of miscommunication in his dealings with Mackenzie, was appointed Chief Justice of Newfoundland to bring more law and order to the possession.45 This move occurred in the wake of the grant of a representative assembly to the colony with the most liberal franchise anywhere in the empire at that time, as well as the introduction of the island’s Roman Catholic majority to full civil rights.

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