Abstract
This chapter explores the development of the Colonial Legal Service and its policies on recruitment, training, appointments and promotion structures, lifestyle in the colonies, dismissal, and retirement. It argues that the Colonial Office’s efforts to build a judiciary for the Empire detached colonial legal officers from the places where they served and helped shape the nature and practice of British colonial justice. This chapter also examines the reputation of colonial judges, offering a nuanced assessment of the barristers who joined the Colonial Legal Service and the variety of factors motivating them to serve on the colonial Bench.
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Notes
- 1.
On specialised colonial careers, see: C. Andersen, British Engineers and Africa, 1875–1914 (London, 2011); A. Crozier, Practising Colonial Medicine: The Colonial Medical Service in British East Africa (London, 2007); J.M. Hodge, Triumph of the Expert: Agrarian Doctrines of Development and the Legacies of British Colonialism (Athens, 2007).
- 2.
J. Dupont, The Common Law Abroad: Constitutional and Legal Legacy of the British Empire (Littleton, 2000), p. 51.
- 3.
On staffing colonial benches in the nineteenth century, see: D. Duman, The English and Colonial Bars in the Nineteenth Century (London, 1983), pp. 121–142; J. McLaren, Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto, 2011), especially pp. 49–52.
- 4.
McLaren, Dewigged, pp. 49–50.
- 5.
Ibid., p. 37.
- 6.
This analysis does not include the Dominions, namely Canada, Australia, New Zealand, and South Africa, which had previously received some judges from Great Britain, but by the early twentieth century were viewed as self-governing by Great Britain and therefore ‘did not concern the Colonial Office from a staffing point of view’. R. Heussler, Yesterday’s Rulers: The Making of the British Colonial Service (Syracuse, 1963), p. 1. There are a growing number of studies examining the origins of national judiciaries in dominion territories. For example, see: M. Chanock, The Making of South African Legal Culture, 1902–1936: Fear, Favour and Prejudice (Cambridge, 2001), pp. 221–240.
- 7.
ICS district officers were called collectors and magisterial work was one duty among many that the administration expected a collector to carry out. On the duties of collectors, see: D.C. Potter, India’s Political Administrators: From ICS to IAS, 1st Indian edn (Delhi, 1996), p. 35. Though Indians were employed as judicial officers in the ICS, they accounted for less than 11% of the total number of judicial officers in 1929. This changed rapidly in the 1930s, however, and by 1939 Indians accounted for 44% of the total number of judicial officers. P. Mason, The Men Who Ruled India (2 vols., London, 1963), ii, pp. 364–365.
- 8.
S. Schmitthener, ‘A Sketch of the Development of the Legal Profession in India’, Law and Society Review, 3 (1969), p. 357.
- 9.
C. Ilbert, The Government of India: Being a Digest of the Statute Law Relating Thereto, 2nd edn (Oxford, 1907), pp. 237–238; Schmitthener, ‘A Sketch’, pp. 355–356.
- 10.
L.S.S. O’Malley, The Indian Civil Service, 1601–1930, 2nd edn (London, 1965), p. 161.
- 11.
One exception is Sudan, which had its own service called the Sudan Political Service. It recruited officers directly for service in Sudan and was not under the auspices of the Colonial Office or India Office. On the Sudan Political Service, see: A.H.M. Kirk-Greene, Britain’s Imperial Administrators, 1858–1966 (Basingstoke, 2000), pp. 164–201.
- 12.
A.H.M. Kirk-Greene, On Crown Service: A History of HM Colonial and Overseas Civil Service, 1837–1997 (London, 1999), pp. 11–13.
- 13.
A.H.M. Kirk-Greene, Symbol of Authority: The British District Officer in Africa (London, 2006).
- 14.
L.H. Gann and P. Duignan, The Rulers of British Africa, 1870–1914 (London, 1978), p. 237; P.J. Cain and A.G. Hopkins, British Imperialism: Crisis and Deconstruction, 1914–1990 (London, 1993), pp. 209–210.
- 15.
Duman, The English, p. 123. Kirk-Greene asserts that there is also merit to the generalisation that the Colonial Administrative Service had a large portion of sons of upper middle-class professional families and that there were few administrators from aristocratic households. Kirk-Greene, On Crown Service, p. 95.
- 16.
Duman, The English, p. 138.
- 17.
Ibid., p. 125.
- 18.
Kirk-Greene, On Crown Service, p. 25, Table 2.4.
- 19.
Ibid., p. 32.
- 20.
Heussler, Yesterday’s Rulers, p. 14. Furse chronicled his role in designing the Colonial Service recruitment policies and techniques in: R. Furse, Aucuparius: Recollections of a Recruiting Officer (London, 1962).
- 21.
Justice Alexander, who served in Fiji prior to transfer to Tanganyika, complains about the terms of service for officers and possible financial penalties of transfer in his memoir: G.G. Alexander, Tanganyika Memories: A Judge in the Red Kanzu (London, 1936), p. 11.
- 22.
Colonial Office, The Colonial Service: Legal Appointments (London, 1931), p. 6. English and Irish solicitors, Scottish law agents and writers to the Signet could also apply for some positions, but accounted for only a small portion of Colonial Legal Service officers.
- 23.
The National Archives of the United Kingdom at Kew (TNA (UK)), Colonial Office (CO) 877/7/5, F.R.W. Jameson to unknown [CO], 6 July 1931.
- 24.
Gann and Duignan, Rulers, p. 204. Kirk-Greene asserts that the Colonial Service was often described as second-rate to the ICS, which typically drew the highest achieving young men earning firsts, while the Colonial Service was ‘content with … a sound Second’. Kirk-Greene, Britain’s Imperial Administrators, p. 164. This view of the Colonial Service as a whole perhaps contributed even further to the low opinion of legal officers in the Colonial Legal Service.
- 25.
TNA (UK), CO 877/10/6, A.F. Newbolt to R.D. Furse and H.G. Bushe, 6 February 1933.
- 26.
TNA (UK), CO 877/1, [file in bound series: ‘Legal Vacancies in the Colonial Service’], unknown [CO] to A. Milner, 28 August 1920.
- 27.
TNA (UK), CO 877/10/6, ‘The need for means of stimulating recruitment’, n.d., p. 1.
- 28.
For example, see: TNA (UK), CO 877/16/17, unknown [CO] to H.G. Bushe, 14 July 1938. This evidence challenges Kirk-Greene’s claim that, ‘the Colonial Office’s recruitment staff was proud of its reputation that it would rather leave a vacancy unfilled than appoint a misfit or a dud’. Kirk-Greene, On Crown Service, p. 98.
- 29.
TNA (UK), CO 877/10/6, A.F. Newbolt to R.D. Furse and H.G. Bushe, 6 February 1933.
- 30.
For Scotland, see: TNA (UK), CO 877/14/10, H.G. Bushe, draft letter to R. Rowe, 18 March 1937. For Northern Ireland, see: TNA (UK), 877/16/18, Private Secretary to the Lord Chief Justice of Northern Ireland W.M. Johnson to R.D. Furse, 11 July 1938.
- 31.
Dupont, The Common Law, p. xvii.
- 32.
TNA (UK), CO 850/25/2, P. Cunliffe-Lister, draft circular to Officer Administering the Government of [intended for numerous colonies], 15 July 1933.
- 33.
Gann and Duignan, Rulers, p. 208.
- 34.
Dupont, The Common Law, p. xvii.
- 35.
TNA (UK), CO 877/13/4, ‘Extract from minute on Appointments’, n.d.
- 36.
TNA (UK), CO 877/14/9, R.D. Furse, draft letter to D.E. Fouhy, S.M. Wadham, and J.M. Macdonnell, 21 June 1937. This decision to accept barristers from bars in the Dominions was contemporaneous with the Dominion Selection Scheme, which facilitated the establishment of selection boards, initially in Canada, Australia, and New Zealand, to assist with recruiting administrative officers for the Colonial Service. Kirk-Greene, On Crown Service, p. 29. H.G. Bushe, ‘The Colonial Legal Service’, The Irish Law Times and Solicitor’s Journal, LXX (1936), pp. 231–233.
- 37.
Ibid., p. 233.
- 38.
This reputation of colonial judges was not new, but rather an extension and, perhaps, decline from their already tarnished reputation in Great Britain in the nineteenth century. See: McLaren, Dewigged.
- 39.
TNA (UK), CO 822/65/8, H.G. Bushe, draft letter to unknown, [first words: ‘The Bar is excessively overcrowded’], n.d.
- 40.
Ibid.
- 41.
C.J. Jeffries, The Colonial Empire and its Civil Service (Cambridge, 1938), p. 147.
- 42.
Colonial Office, The Colonial Service: Legal Appointments, p. 19.
- 43.
Many officers in the ICS also had experience with and a preference for life in the colonies. Elizabeth Buettner argues that many young men who grew up in India in families serving the ICS took advantage of the benefit of being sent to the UK for schooling and then ‘rejoined the colonial community as adults, enjoying much higher social status than if they had not left India—or if they had never returned overseas’. E. Buettner, Empire Families: Britons and Late Imperial India (Oxford, 2004), p. 24.
- 44.
Patricia Law, interview with author, Canterbury, 14 May 2009.
- 45.
TNA (UK), CO 822/71/5, P.E. Mitchell to J.H. Thomas, 24 April 1936, p. 1. Gann and Duignan, Rulers, pp. 202–203.
- 46.
Kirk-Greene, On Crown Service, p. 27. Training courses were first established in 1908 for colonial administrators. They lasted only a few months and were held in the Imperial Institute in London. By the late 1920s year-long courses were being held at Oxford, Cambridge, and later at the London School of Economics and Political Science. On imperial education for colonial officers, see also: C. Prior, Exporting Empire: Africa, Colonial Officials, and the Construction of the Imperial State, c. 1900–1939 (Manchester, 2013), pp. 35–62.
- 47.
Jeffries, The Colonial Empire, p. 143.
- 48.
TNA (UK), CO 822/65/8, H.G. Bushe, draft letter to unknown, [first words: ‘The Bar is excessively overcrowded’], n.d.
- 49.
TNA (UK), CO 850/40/6, ‘Summary of Replies’, n.d., p. 4.
- 50.
Bodleian Library of Commonwealth and African Studies at Rhodes House, Oxford (RHL), MSS. Brit. Emp. s. 307, David Edwards Papers, D. Edwards, ‘H.M. Colonial Legal Service, 1900–1960’, 23 November 1965, p. 19.
- 51.
TNA (UK), CO 850/40/6, H.G. Bushe to unknown [CO], 16 October 1935.
- 52.
Ibid., p. 3
- 53.
Dupont, The Common Law, p. xvii, fn 12.
- 54.
TNA (UK), CO 850/84/8, J. Byrne to G.J.F. Tomlinson, 9 June 1936, p. 1.
- 55.
The Governor of Uganda did not object to the appointments, but did not want ‘appointments of this nature confined to Uganda’. TNA (UK), CO 850/84/8, P.E. Mitchell to G.J.F. Tomlinson, 18 June 1936, p. 1.
- 56.
TNA (UK), CO 850/84/8, H. MacMichael to G.J.F. Tomlinson, 4 June 1936. Though the Governors of Kenya and Tanganyika expressed concern over the racism of some of the settlers, they may also have been using the settlers to disguise their own racism and discomfort with mixed-race officials. TNA (UK), CO 850/84/8, J. Byrne to G.J.F. Tomlinson, 9 June 1936, p. 1.
- 57.
J.S. Read, ‘The Search for Justice’ in H.F. Morris and J.S. Read, Indirect Rule and the Search for Justice: Essays in East African Legal History (Oxford, 1972), p. 310. There are, however, examples of transfer between services and some colonial officers left the service after only a short period.
- 58.
TNA (UK), CO 822/65/8, J.H. Thomas, draft letter to the Governors of Kenya, the Uganda Protectorate, the Tanganyika Territory, Nyasaland, Zanzibar, and Northern Rhodesia, 7 January 1936.
- 59.
TNA (UK), CO 822/65/8, H.G. Bushe, draft letter to unknown, [first words: ‘The Bar is excessively overcrowded’], n.d.
- 60.
TNA (UK), CO 822/65/8, J.H. Thomas, draft letter to the Governors of Kenya, the Uganda Protectorate, the Tanganyika Territory, Nyasaland, Zanzibar, and Northern Rhodesia, 7 January 1936; Jeffries, The Colonial Empire, pp. 145–147.
- 61.
Ibid., p. 145.
- 62.
Ibid.
- 63.
Ibid., pp. 143–145.
- 64.
Read, ‘The Search for Justice’, p. 310.
- 65.
TNA (UK), CO 850/13/2, L.C.M.S. Amery, circular to the Officer Administering the Government of [sent to numerous colonies], 20 September 1928.
- 66.
TNA (UK), CO 850/209/10, ‘Report of a Committee appointed by the Secretary of State for the Colonies: Colonial Legal Service’, 16 February 1945, p. 7.
- 67.
Ibid.
- 68.
Tanzania National Archives in Dar es Salaam (TNA), 25586, ‘Government Circular No. 39 of 1945: Appointment of Ex-Servicemen to the Colonial Service (Rules Regarding Seniority and Initial Salaries)’, 30 November 1945, p. 2.
- 69.
Jeffries, The Colonial Empire, pp. 147–148.
- 70.
TNA (UK), CO 850/13/2, Lord Passfield [S.J. Webb], circular to the Officer Administering the Government of [sent to numerous colonies], 26 July 1929, p. 1.
- 71.
Ibid., p. 2.
- 72.
Gann and Duignan, Rulers, pp. 236–237.
- 73.
Jeffries, The Colonial Empire, p. 147.
- 74.
Gann and Duignan, Rulers, pp. 236–237. TNA (UK), CO 850/111/7. This file contains multiple letters discussing the invitation of colonial judges to the dinner.
- 75.
Judges were typically awarded for their service in the colonies or Commonwealth by being made knights of the Most Distinguished Order of Saint Michael and Saint George (abbreviated GCMG, KCMG or DCMG, and CMG) or were awarded the title Knight Bachelor (the title is not of a specific order and is abbreviated Kt), which became more common for judges serving outside the UK in the mid-twentieth century. Jeffries claims that announcements of knighthood of members of the Colonial Legal Service were frequent and Cain and Hopkins describe these honours as ‘liberally bestowed’ on senior members of the Service. Jeffries, The Colonial Empire, p. 147; Cain and Hopkins, British Imperialism, pp. 209–210.
- 76.
Mark Thomas, interview with author, Oxford, 29 July 2008.
- 77.
TNA (UK), CO 822/71/5, ‘List showing the source of recruitment of the judicial and legal officers now serving in East Africa’, n.d., p. 4. It is also possible that administrative bias against the barristers in the Colonial Legal Service partly stemmed from the fact that a number of legal officers were Irish and some British barristers held the attitude that the Dublin Bar was of a lower quality because Ireland was British colony that had only recently achieved independence. Administrators may have also used the idea that all judges were Irish as a way of indicating that they were a secondary and separate group from the administration.
- 78.
B. Brereton, Law, Justice, and Empire: The Colonial Career of John Gorrie, 1829–1892 (Kingston, 1997). p. xi.
- 79.
Gann and Duignan, Rulers, p. 234.
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Feingold, E.R. (2018). Building a Judiciary for the Empire: The Development of the Colonial Legal Service. In: Colonial Justice and Decolonization in the High Court of Tanzania, 1920-1971. Cambridge Imperial and Post-Colonial Studies Series. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-69691-1_2
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