In line with our previous blog post, we keep our focus on judges as we examine their sometimes fraught relationship with goverment authorities in the colonies during the nineteenth century. Ideas emanating from the imperial center took root in various depths and forms in the colonies. Our blogger today, Jack Jin Gary Lee, explores the impact of English philosopher and political economist (amongst other things) John Stuart Mill’s ideas on colonial judges in the British Empire. Gary is a Visiting Scholar at the American Bar Foundation, and a PhD candidate in Sociology at the University of California San Diego. His dissertation project examines the institutional causes and consequences of the reconstitution of Jamaica and the Straits Settlements (Malacca, Penang and Singapore) as Crown Colonies from the mid- to late-nineteenth century. Both colonies became Crown Colonies during a time when the colonial government and the use of English laws in Empire were undergoing intense reforms. Thus, they provide strategic lenses through which we can understand the historical origins and enduring effects of key institutional developments. As a historical sociologist of public institutions, Gary is also interested in the making and implications of citizenship laws and labor migration policies across different contexts. The initial findings from his dissertation research have been published in the Asian Journal of Law and Society. His personal website is at https://jackjinlee.wordpress.com/
John Stuart Mill and Colonial Judges
The study of lawmaking and the role of law in the British Empire often depict fascinating points of congruence between the history of ideas and legal history. Like any other body of thought, nineteenth-century English liberalism was not merely an abstract doctrine regarding the relationship between the individual and the state. It emerged out of a set of public discourses and social circles involving various interlocutors of different callings. For instance, the education of John Stuart Mill (1806-1873), one of the foremost proponents of liberal thought, had been deeply shaped by his interactions with philosophers like John Austin (1790-1859) and, of course, Jeremy Bentham (1747-1832).
Mill’s work deserves more scrutiny, not only in light of his prominent role in English politics and public life, but also because he had worked as a clerk handling correspondence for the British East India Company. Legal historians can take heed of the assumptions he shared with colonial officials and political elites in this period. In reading his Autobiography, I was struck by Mill’s reflections on the relationship between state and society. He writes that “all questions of political institutions are relative, not absolute, and that different stages of human progress not only will have, but ought to have, different institutions…” (Mill, 1969, 137) Mill’s naturalistic turn of thought occurs during the mental crisis of his twenties, a point where his ideas began to diverge from those of Bentham and his father, James Mill (1773-1836).
Interestingly, a similar mode of thought with its latent assumptions of social progress and institutional development also affected how other English political elites in the nineteenth-century approached the problem of colonial government and the rule of law in the colonies. Rather than view colonial governments as natural offshoots of the political institutions that had taken root on English soil, colonial officials viewed their possessions as lacking in the conditions that had allowed for representative government and its affiliated institutions to develop at home. Beyond the basic problem of racial and cultural difference, the questions facing these officials consisted of the kinds of conditions within the colonies their implications for colonial rule.
The problem of institutional design thus presented itself in several domains. My blog post concerns the independence of colonial judges, a necessary element for the rule of law. As noted in the correspondence leading up to the 1870 Privy Council memorandum on the removal and suspension of colonial judges, colonial judges were not appointed under the same terms as their English counterparts – they could be removed with greater ease. For Sir Frederic Rogers, Under-Secretary of State for the Colonies (1860-1871), certain conditions were necessary if judges were to be appointed “during good behaviour.” He stated:
That Judges should be appointed formally during good behavior, where the salary is such as to command a superior class of lawyer, and where there exists a sufficient combination of the following conditions: a reasonably extended public opinion, a tolerably efficient press, colleagues, an intelligent Bar, and a society large enough to make the Judge’s personal habits no great element in the improvement or corruption of colonial society.
But that, where no such combination exists, it is advisable to possess a somewhat more ready mode of getting rid of officers, who if they turn out ill, can disorganize the whole society and administration of the place.
Within this series of correspondence, the crux of the debate over the protection of colonial judges from the local executive’s influence lay in the ability of the governor to remove or suspend a judge in cases of judicial misconduct. Agreeing with Rogers, the Judicial Committee of the Privy Council stated that efficient means of removal by the governor were necessary when colonial judges were suspected of unprofessional conduct. However, unlike Rogers, they stressed the potential practical difficulties in exercising an original jurisdiction over cases of judicial misconduct given the distances between the colonies and London. The Privy Council preferred to hear cases on appeal after the governor had removed or suspended the errant judge.
They thus stated,
It is obvious that some effectual means ought to exist for the removal of Colonial Judges charged with grave misconduct, and that these means ought to be less cumbrous than those existing for the removal of one of Her Majesty’s Judges in this country. The mode of procedure ought to be such as to protect Judges against the party and personal feelings which sometimes sway Colonial Legislatures, and to insure to the accused party a full and fair hearing before an impartial and elevated tribunal [i.e. the Privy Council]
Without saying as much, officials’ assumptions of the different conditions of the colonies shaped the pronouncements of the Colonial Office and the Privy Council on the problem of whether colonial judges should be protected from dismissal or suspension by the governor. And, in effect, their policy on this matter would bolster the power held by the governors of Crown Colonies since the latter already possessed control of the Legislative Council.
Returning to Mill’s thoughts on the relationship between political institutions and society, he adds that:
government is always either in the hands, or passing into the hands, of whatever is the strongest power in society, and that what this power is, does not depend on institutions, but institutions on it: that any general theory or philosophy of politics supposes a previous theory of human progress, and that this is the same thing with a philosophy of history.
Drawing from Mill, we might note that the political, sociological and historical understandings of colonial officials proved to be determinative in shaping imperial policy toward colonial rule. The imagined character of certain colonial societies, especially those comprising small European settler populations and “natives” of various origins, would make illiberal institutions necessary even if these institutions contravened the political and legal principles held at home.
Mill, John Stuart. 1969. Autobiography: With an Appendix of hitherto unpublished speeches and an introduction by Harold J. Laski. London: Oxford University Press.
Jack Jin Gary Lee
 Enclosure No. 3 in “Correspondence respecting the removal and suspension of colonial judges,” House of Commons Parliamentary Papers, C. 139, 1870.
 Enclosure No. 4, ibid. Words in brackets are mine.