2011, 303 p plus notes
John McLaren ‘Dewigged, Bothered and Bewildered: British Colonial Judges on Trial 1800-1900′.
The title Dewigged, Bothered, and Bewildered is a play on the show-tune with a similar title, (Bewitched, Bothered and Bewildered). It examines the careers of several 19th century judges of the British Empire who, for various reasons, found themselves removed or ‘dewigged’ from their positions. The title reflects the tone of this book- light and jocular at times- but it belies the sheer breadth of knowledge of individual colonies that it covers. Its author, John McLaren, is professor emeritus in the Faculty of Law at the University of Victoria (Canada) and as Bruce Kercher’s endorsement on the back cover says “John McLaren is the only person I know with sufficiently broad legal historical knowledge to attempt such a huge task, and he succeeds at it remarkably well”.
It might seem strange that a book about 19th century judges starts with an analysis of judicial tenure in the seventeenth century. It was during the constitutional maelstrom of Charles and James and the Glorious Revolution that two competing mechanisms for appointing and controlling judges emerged. The ‘Cokeian’ model, associated with Sir Edward Coke, drew on the rhetoric of the Ancient Constitution and the ‘rights of freeborn Englishmen’ to argue that the King, like other mortals, was subject to the law, and that he and his officers were subject to the jurisdiction of the stewards of the Common Law, the judges of the King’s Bench, Common Pleas, and Exchequer. The rival ‘Baconian’ model, expounded by Lord Francis Bacon, emphasized the Divine Right of Kings and emphasized that judges must be the loyal servants of the monarch. Hence, under the Cokeian model, judges should be employed ‘during good behaviour’ where, as long as there was not actual judicial impropriety, the judges were independent of the Crown. The Baconian model, on the other hand, employed judges “at His Majesty’s pleasure” and kept the judges under the control of the King and his government.
All this might seem far removed from a judge in Port Phillip, Sierra Leone, Newfoundland or Upper Canada 150 years later, but McLaren argues that this 17th century argument about the independence of the judges, abuses of power by the government, and local control over the judiciary was played out over again, this time in the colonies. In this book, McLaren uses group biography to examine how these battles were exemplified through the careers of a number of colonial judges from Upper Canada, New South Wales and Van Diemen’s Land, Sierra Leone, Newfoundland and the West Indies.
Judge Willis has a starring role here: we meet him in the opening pages, and he is featured in two chapters. He is, however, not the only judge in this book who appears as a trouble maker in two separate colonies. Jeffrey Bent, well known in Australia for his struggles with Macquarie, reappeared in Grenada, where he again clashed with the governor. Robert Thorpe, who was a ‘radical’ judge in Upper Canada prior to Willis’ appointment, also had trouble in Sierra Leone, and Sir John Gorrie seemed to be shifted from place to place when he fell out with various people in Fiji, the Leeward Islands and Trinidad. There are a number of troublesome judges whose travails were restricted to one colony alone: Boothby in South Australia; Sewell and Monk in Lower Canada; Montagu in Van Diemen’s Land; Beaumont in British Guiana.
The chapters are arranged thematically, but chronologically and geographically as well. For example, the chapter ‘Courting Reform in a Counter-Revolutionary Empire 1800-1831’ deals with Robert Thorpe and Judge Willis in Upper Canada, where the judges’ reforming zeal clashed with conservative local interests. It is followed by a chapter that makes the argument in the opposite direction for other British North American colonies ‘Ultra Conservative Judges in an Era of Developing Reformist Sentiment in the British Empire 1810-1840’. It covers similar years to the first chapter, but this time switches the focus around. It examines the cases of Sewell and Monk in Lower Canada and Henry Boulton in Newfoundland, where conservative judges fled the radical colonies for the protection of the home government.
Chapters 6-8 are focussed on Australian examples. Chapter 6 ‘Guarding the Sanctity of the Common Law from Local ‘Deviations’ in Convict Colony 1800-1830’ examines the career of Ellis and Jeffrey Bent in New South Wales, followed by Ch 7 ‘English Legal Culture and the Repugnancy Card in the Australian Colonies 1830-1850’ which follows on chronologically in examining Montagu and Pedder in Van Diemens Land, and Willis in Port Phillip. The term ‘repugnancy’ refers to the tenet that colonial law should not contradict English law. Part of a colonial judge’s role involved analysing local laws drawn up in the colony and advising the governor whether the law was ‘repugnant’ or not. Chapter 8 takes up the repugnancy question in Australia after 1850 with Benjamin Boothby in South Australia.
Chapters 9 and 10 examine judges in the slavery colonies in the West Indies and West Africa, with George Smith in Trinidad, Thorpe in Sierra Leone and Jeffrey Bent in Granada between 1800-1830 in Chapter 9. In Chapter 10 the time frame shifts to 1834-1900 with Joseph Beaumont in British Guiana and Sir John Gorrie in Mauritius, Fiji and Trinidad.
The final chapter draws together themes that emerge throughout the stories. In a way, this chapter subverts, or at least challenges, the structural logic of the other chapters because some of these judges, Willis in particular, are not easy to pigeonhole.
As McLaren points out, it is important that troublesome, contrary, complex and contradictory judges should not be committed to “the ashcan of historical ephemera”. We gain a view of empire from them that is not available from ‘don’t rock the boat’ jurists, and we must never lose sight of the fact that law is never a sideshow. Instead, it was an important instrument in the extension of imperial authority, infused with and supported by the constitutional and legal values of the English-speaking world of the previous two centuries. (p. 273, 274)
It is the PhD student’s nightmare that a highly prominent, esteemed and widely published academic release a book on one’s very topic while you are still working on- or worse, just as you finish- your thesis. I became aware of John’s work while I’ve been working on Willis myself, and it was with a mixture of trepidation and curiosity that I read his book. I gained much from it, particularly in being able to compare Willis with other judges in similar situations, and it’s with relief that I can see where my own more bottom-up work can fit under his broad umbrella of judicial misbehaviour and discipline.
A group biography, like this one, has challenges beyond that of the individual biography. There’s a danger that so many situations and people are introduced that the whole thing breaks down in confusion, but there’s also the advantage of being able to better define the exceptional. I think that a sign that McLaren has succeeded so well is that on encountering a particular judge a second or even third time, there is a rush of recognition. His judicial characters are so well drawn that when the final chapter draws together observations from across the work as a whole, there is no need to check back to see ‘now, who’s he again?’ The book is suffused with a lightness of touch and a sure grasp of the contours of so many different colonies that comes from the author’s long, deep immersion in colonial legal history.