Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800–1900 by John Mclaren (review)

Canadian readers may already be familiar with the brief and turbulent judicial career of John Walpole Willis. Sent to Upper Canada in 1828 to head a proposed Court of Chancery, he found his career hopes dashed when the Colonial Office lost interest in the project. Willis hinted – not unsubtly – that the recently vacated post of chief justice of King’s Bench would be an agreeable alternative. Authorities had other ideas, and Willis ultimately accepted his consolation prize as puisne (associate) judge of King’s Bench. Having already aligned himself with elements of the colony’s reform faction, the judge used his new position to agitate for procedural innovations that were not only novel in Upper Canadian courts, but, if followed, would have cast into doubt the legality of literally decades of decided cases. With the colony in uproar, and its legal machinery paralyzed, officials took the only path open to them: Judge Willis was sacked.

This story may have begun in Canada, but it certainly did not end there, and Willis is but one of many colonial “judges in trouble” (55) who populate the pages of McLaren’s Dewigged, Bothered, and Bewildered. Shifted throughout the empire by Whitehall, much as Catholic bishops once shuffled around disgraced priests, the experiences of these renegade judges – and the communities in which they served – has prompted McLaren to inquire exactly what it was that a nineteenth-century judge needed to do in order to fall so completely from grace and, once he had, what options existed for making him go away.

Much of the story hinges upon changing concepts of judicial independence and responsibility; whether judges owed their allegiance to the regime they served and could be dismissed at will, or whether their role was above politics and – baring gross legal incompetence or wrongdoing – included security of tenure during good behaviour. As vexing as this question was in England, it became even more contentious and convoluted when posed in regard to Britain’s vast, and vastly heterogeneous, collection of colonies.

McLaren is clear that wherever English law was found, it functioned as a tool of authority and control (278–9). But beyond this obvious truism, the similarities were less evident, and much depended upon the nature of the colonies themselves. Whether white settler colonies (the Canadas), old or new, slave (Trinidad, Grenada) or convict (New South Wales), McLaren’s wide-ranging study reveals evidence of a gradual shift from amateur and improvisational interpretation of the law, often depending upon purely local circumstances, to a more professional and consistent reading of the law. Though often purely pragmatic, the benefits stemming from this legal flexibility did not accrue equally to all players, and in the inevitable ensuing clash of law and politics, uncooperative judges often fell – or were pushed – from the constitutional tightrope they were attempting to walk (188).

Judge Willis’s literal interpretation of the law in Upper Canada would have – among other effects – thrown a generation’s worth of land tenure decisions into disarray, an outcome authorities simply could not countenance. But in New South Wales, a similar strict adherence to legal form would have disenfranchised resident convicts – a result no doubt pleasing to Judge Barron Field’s conservative and “dictatorial” view of the common law, but one not in keeping with Colonial Office visions for Antipodean colonial development (146–7). So too was a tempering of English law to local conditions a necessary reality in the newly “emancipated” slave colonies of the Caribbean, unhappily for members of the white plantocracy, but a necessary accommodation in favour of already sadly exploited indentured labourers.

For disgruntled colonists, the solution was to remove the judge – not always an easy process, and one McLaren usefully spends a good deal of space clearly explaining. For colonial officials, whose views frequently differed from those of residents, the longer-term resolution was either to grant responsible government and judicial independence, allowing colonies the freedom to...