Governors and Settlers: Images of Authority in the British Colonies, 1820-60

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In New South Wales and Van Dieman's Land, these same judges were required to certify that local statutes were not repugnant to the laws of England — a notoriously ill-defined test that generated a series of political disputes between colonial judges and governors in the mid-nineteenth century.

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However, in such small government circles, judges still maintained close formal and informal roles in legislative drafting and law reform issues. When Martin CJ resigned, Henry Sewell told the Colonial Office that a willingness to analyse draft legislation was a more important qualification for a new Chief Justice than the ability to decide cases. In Canada, attempts to chart the shifting attitudes to law, and the relationship between different arms and functions of government authority, have contributed to rich debates over the historical construction of settler notions of self-government and Crown authority.

Such relationships developed, in part, from the particular role of courts and their jurisdiction in early colonial politics, which is briefly surveyed below. Before the constitutional changes that swept the Australasian colonies in the s and s, imperial authorities tried to keep a relatively close watch on the establishment and jurisdiction of colonial superior courts.

In contrast, colonial judges enjoyed their office at the sovereign's pleasure. Attempts to give greater tenure to judges in New Zealand was one of the grounds for disallowing the first Supreme Court Ordinance of Reviewing the Ordinance, the law officers admitted they did not know a great deal about how colonial legal systems were usually constructed. However, they concluded that the Ordinance was in many respects a sensible, if novel, adaptation of English legal principles and practice to a small colonial community.

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James Stephen was unimpressed by the analysis. The Colonial Secretary, Lord Stanley, found Stephen's advice more persuasive than the law officers' opinion. Among Stephen's concerns was the role given to sheriffs; the Colonial Office instructed Governor Hobson to limit the role of sheriffs to their functions as officers of the court, rather than simply giving them all the powers and functions of an English sheriff.

In England, sheriffs had the traditional role of convening public meetings of freeholders in a district, to discuss matters of public importance.

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Further, clerks and other court officials were to be appointed by the governor. In England, superior court judges appointed their own officials. In Crown colonies, such patronage was to be kept under gubernatorial control. The Colonial Office's caution was due partly to the political significance of colonial courts to many settlers. In Crown colonies courts were significant in part because they were a site of authority and adjudication that could be used in political debate. Access to law courts often became politically symbolic and contentious, and cases might gain a social significance beyond the particular issue between the parties.

Litigation was consciously used to test the limits of gubernatorial authority. Courts were also significant because in Crown colony society they became part of a nascent public sphere, and part of the public construction and projection of political status. Crown colony politics were characterised by settler arguments about, and appeals to, notions of constitutional principles that governors were critiqued against. Settler newspapers reported litigation and judges' jury directions in detail.

An important strand of such debates rejected any characterisation of colonists as having legally distinct or limited constitutional liberties compared to subjects in the metropole. Such notions of empire-wide constitutional norms blended legal and political claims about Crown authority and obligation with ambiguous claims about access to the courts and judicial adjudication as a "birthright" of British settlers. The extent to which the claimed legal principles existed in case law was open to question.

Such arguments often sought to deploy legal language and precedents strategically as part of particular political disputes. We do not mean every detail of rural or municipal police". Indeed, appeals to "Britishness" were sometimes designed to legitimate political or social innovation by presenting that innovation as an adaptation of latent principles of government and law to the new colonial context. Australasian settlers' claims to a wide franchise, or to legislative and judicial structures that differed markedly from metropolitan models, were advanced and critiqued against often ambiguous notions of "British law" and the "true" character of male British settlers.

In this way, claims to Britishness, and to the adaptation of Britishness to local circumstances, could be merged together for particular rhetorical or political effect. Notions of "British" law should not be viewed separately from the prominence given to arguments about representation and the legislature in settler politics. Although no longer as historiographically prominent as it once was, representation — the ability to at least elect the majority of a legislative chamber — was a central political ambition for many of the would-be political elite in New Zealand, as in other Australasian colonies.

The various, competing, political proposals for representative government encapsulated, in constitutional form, a range of claims about political authority, who was qualified to wield it, and the appropriate institutional loci of such authority. This included debates over the appropriate franchise, and the composition of any upper house. Importantly, however, such claims were not limited to discussions about legislatures.

Membership of juries, and the selection of foremen, was discussed in terms of the "respectability" and good judgement of jurymen, reinforcing the political significance of courts in a Crown colony society. Such arguments were linked to an abiding theme of colonial politics — the nature and extent of the legal authority held by the governor. As is discussed below, a range of arguments were rehearsed in public debate and private lobbying over the way the prerogative powers of the Crown might be applied in new colonies, and the political obligations that ought to guide their exercise.

The scope of the governor's authority and power was fiercely disputed and debated by the settler press. In the absence of representative legislatures, litigation was one possible way to contest gubernatorial power and policies.

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Circumstances were often consciously engineered, by one or both parties, to lead to litigation. In , Governor Grey arranged for the suit in R v Symonds to test the legality of his predecessor's land policies and, in doing so, to assert his own political and legal authority over the land policy debate.

It claimed that "in England, a nominal assault, or a forcible opening or breaking of a door or window, would be the utmost means adopted" to assert a title to land that might be tested in court. Thus, representations of metropolitan legalism were not merely a point of reference for their replication in colonial practice.

Supposed English practice might be used to highlight colonial difference, in a way that privileged local assessments of how the broad principles of particular metropolitan practices were to apply in a colony. However, many settler observers felt such assessments of local circumstances were largely political rather than strictly legal or judicial matters. The perceived failure of governors to give significant weight to settler views in their decision-making was a regular theme of those colonists arguing for greater constitutional constraints on gubernatorial authority and practice.

In New Zealand, and elsewhere in Australasia, provision of effective judicial fora was presented as an obligation of the Crown and often in a more radical key a fundamental part of the relationship between subject and sovereign. Despite such immediate or material motives, the question of the form of the tribunals, and the law they would apply could easily escalate into more overtly political questions about the relationship between the executive and the magistracy or judiciary, the extent to which "central" government would grant local settler communities discretionary powers to administer their own legal disputes, and the priority given to particular settlements or communities in government decision-making.

As a number of historians of empire have explored, the links settlers might draw between jurisdiction and the forms of colonial government meant that civil jurisdiction could also generate constitutional issues. What some settlers saw as questions of abstract political entitlement, governors and administrators might present in more pragmatic terms. Providing effective courts to a number of scattered settlements, all surrounded by indigenous communities with their own customary law systems, was not an easy task. Defining jurisdiction whether by territorial jurisdiction, purely by subject-matter or a combination of both was one way colonial governments sought to manage such issues.

Even before , using jurisdiction as an analytical category to delineate different roles within colonial government was an important tool in metropolitan lobbying about colonial policy, and in colonial debates about the implementation of government policy. Debate within British politics over the treatment of indigenous peoples intensified in the wake of wars in southern Africa and associated "humanitarian" lobbying of government.

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Such metropolitan theorising served multiple purposes. By developing such schemes, lobbyists promoted themselves as respectable, considered commentators, with policy proposals to hand. This facilitated political lobbying and coalition building. The relative role of judges, settlers and indigenous peoples in the plans was often related to particular views of the appropriate method and speed of colonisation and assimilation.

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Historians have noted the importance of such jurisdictional schemes for expositing and debating ideas about indigenous "civilisation". Early proposals for a South Australian colony sought to devolve the prerogative powers to a local settler council to such an extent that James Stephen called them "republican".

Such attempts to constrain the prerogative, or to place it in settler hands, were not simply concerned with the regulation of land grants and sales. One early proposal for South Australia sought the power to appoint and remove judges. He wanted to give senior chiefs magisterial powers to encourage their connection to the Crown.

Differing approaches to the governor's authority in these debates can be seen as arguments about how British law and government should operate in new colonies, whether "settlement" colonies or otherwise. As noted, despite the lobbyists' enthusiasm, British governments generally sought to avoid colonial legislative encroachments on the colonial prerogative regarding courts, judges and administrative officers in the s.

Imperial administrations reformed a number of colonial legal systems across the s and s, seeking to create more formalised and standardised legal structures. Underlying such views was a sense that colonies were not constitutional carbon copies of the metropole, but nascent and immature polities often requiring firm government.

Governors And Settlers Images Of Authority In The British Colonies 60

Many Crown Colony governors were convinced that a strong gubernatorial executive would be best placed to guide colonial economic and political development. Recalled governors bemoaned a perceived lack of power. George Gawler, Governor of South Australia from October to May , insisted that a new colony was like "a bateau on the rapids". At such a distance from London, he said, the risk of "sudden expensive changes" in economic and social conditions required "the concession of something near to absolute authority, to the supreme local dictator".

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