Practiced Empires

We sit there to administer Buddhist law, or Hindu law, or Mohammedan law, one after the other. We administer Roman-Dutch law from South Africa or from Ceylon, or French law from Quebec, or the common law of England from Ontario, or curious mixtures of law which prevail in various colonies, sometimes Italian law, sometimes Roman law.

Viscount Haldane's description of the work of the Judicial Committee of the Privy Council was given as an after-dinner speech to the Cambridge University Law Society in 1921, almost a century after the 1833 Judicial Committee Act provided for the structured hearing of appeals against court decisions originating from every far- flung corner of the British Empire.^[570] Having warned his audience that “... we who sit on the Judicial Committee have taken a tremendous oath not to disclose any of the secrets that come to the fore there,” Haldane went on to describe the physical experi­ence of walking into the Judicial Office, just off Downing Street in London:

You will not think that it looks like a Court, particularly as you will see one or two gloomy officials glancing enquiringly at you. Brush them aside. This is the Supreme tribunal of the Empire, and every subject of the King-Emperor is entitled to go in there. You will see to your right a rather dilapidated-looking red-covered stair. Go up it—which you will do in company with white men, some of whom look as if they had come from the far West, and may be of American appearance; yellow men, some of whom come from Hong Kong; Burmese, who come from Burma; Hindus and Mohammedans from India; Dutch from South Africa; a mixed race from Ceylon—all sorts of people may be straying in there, and you will feel your­self in good imperial company.^[571]

The members of the Judicial Committee of the Privy Council were accordingly ex­pected to administer and decide upon multiple, different, kinds of law: Buddhist, Hindu, Mohammedan (Islamic), Roman-Dutch, French, the “common law of England from Ontario,” alongside what Haldane refers to as “curious mixtures of law which prevail in various colonies.” In an article published over 20 years earlier, in The Juridical Review, Haldane had described “the administration of justice on its Imperial Side”—along with religion and education—as constituting “...

Much of the existing scholarship on law and empire focuses on rulers, state officials, and state-backed military violence as the architects of imperial power. Yet legal practices and governance regimes were also spread via religious and com­mercial networks: “Churches, colleges and merchants no less than imperial ad­ministrative structures provided points of entry for law created or ratified in the metropolis.”^[574] These religious and commercial networks should not be understood as mere “transmitters” of state law and patterns of government; they had their own customs, laws, procedures, and practices. The corporations that developed in Tudor and Stuart England for the purposes of overseas trade and imperial ex­pansion were “not simply commercial firms but forms of political and social as­sociation”; they developed their own regimes of corporate government, including corporate courts, within the parameters specified by the royal charters which es­tablished their existence as legal entities.^[575] The royal charter, as Tomlins puts it, was “an exercise in the creation of jurisdictions.”^[576] According to Halliday, the chartered company—“whether Dutch, French or British”—was the “archetypal form of impe­rial expansion” in the modern period: “Like kings, the Dutch and English East India Companies made treaties with Asian sovereigns.

Chartered companies, colonial proprietors, and settler-directed plantations all made use of private contracts, adapted commercial laws, and developed pri­vate property rights, in their own interests.^[580] The phenomenon of “settler sover­eignty” and its impact on gender and family law, race, class, labor, and property, in particular, is an expanding field of research.^[581] As an entrenched structure of op­pression, settler colonialism could pose a greater threat to native and indigenous populations than the distant laws and “silken bands” of (some) imperial gov­erning institutions. In any case, thinking through law, bureaucracy, and the prac­tice of government and rule with reference to chartered companies and “settler sovereignties” forces us to exchange a monolithic, top-down, nation-state, model of law for a more nuanced picture of multiple, intersecting, and entangled socio- legal practices and jurisdictions.

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