by Jan Morris
6
Steeped in the traditions of the team spirit, slightly glazed perhaps by the intoxications of the High Anglican revival, aglow still with the privileged pleasures, strawberries and Alpine reading parties of the English universities at their happiest, the young imperialist generally boarded his ship at Tilbury or Liverpool welcoming the worst that flies or savages could do to him. If the Indian Civil Service cadet knew he was joining a service of venerable order and regularity, the recruit off to Africa could hardly know what to expect, having no idea what his duties would be, still less how to perform them.
It was rare to find two entries in one year from the same school, but the Empire was administered very largely by graduates of the ancient universities. Against their permissive background, where a man could do as much or as little work as he pleased, the imperial administrators were expected to stand out in diligent distinction. Once in the field, they must be very hard-working indeed. The Conduct Rules for Indian Government Servants specified that Government was entitled to twenty-four hours a day of its employees’ time, and often it was very nearly claimed. In those days the classic picture of the junior Empire-builder’s life was accurate enough. Often he really did sit in a leaky mud hut, several days from anywhere, all on his own with a few hundred thousand subjects. He really was policeman, judge, doctor, vet, handyman and oracle, all in one. Petitioners might come to his bungalow day and night, pleading for his help in solving a family dispute, dealing with a crop blight, or killing a man-eating tiger. From dawn to midnight he was seldom at leisure. He probably spent the morning as a magistrate, presiding over his own court; he spent the afternoon surveying his estate, inspecting crops, interviewing overseers; he spent the evening studying the local languages, receiving petitions, writing reports and letters. With luck he had a few other Englishmen at hand: a couple of traders on the river, perhaps, an engineer building a bridge, a missionary or an area doctor. If not, he considered himself alone, often without a telegraph, only a runner or his own horse to keep him in touch, and natives for company.
All over the Empire these administrators, like members of some scattered club, shared the same values, were likely to laugh at the same jokes, very probably shared acquaintances at home. An Australian governor, an Indian provincial commissioner, an officer of the North-West Mounted Police, busy Mr Cropper in St Lucia, beefy Philistine or grave classicist—place them all at a dinner table, and they would not feel altogether strangers to each other. To the outsider this sense of social or professional collusion could be intensely irritating. To the administrators themselves the easy fraternity of class, background and experience seemed an essential factor in the imperial system, giving strength to the web of Government, and providing consolation for lonely lives. Beneath the disciplines of convention and efficiency, an unexpectedly easy relationship linked senior and junior men. Although promotion was nearly always by seniority, outside the normal run men often reached positions of great responsibility in the Empire at surprisingly early ages. Egypt in 1897 was effectively ruled by three Englishmen, the Agent-General, the Sirdar of the Egyptian Army and the Financial Adviser: the first had assumed office at 41, the second at 40 and the third at 37.
7
Top jobs in the Empire sometimes went to grandees outside the two services. The Viceroyalty of India was a political appointment, governors of colonies were frequently noblemen or generals. For the rest the Indian Civil Service and the Colonial Service ran the dependent Empire, holding both political and administrative power in the colonies. In effect this was a State ruled by its own bureaucracy. Below the permanent secretaries in London came the governors on the spot; below them the chief secretaries; below them again the provincial commissioners and district officers. No tropical colony enjoyed any real degree of self-government, despite a few propitiatory sops. White settlements apart, the Empire was a vast despotism—or rather a group of despotisms, for liaison between region and region, or even perimeter and centre, was tenuous. We must imagine the different imperial branches like sections of a cloistered university: each faculty supremely knowledgeable in its own remote speciality, but seldom familiar with, or even interested in, the exercises of the philosophers, botanists or mathematicians across the quadrangle. Among colonial servants loyalty to colony, to region, to tribe was intense, and often exclusive: just as there were classicists, in those days, to whom the higher mathematics was upstart vulgarity, and probably slipshod at that.
A heavy thoroughness linked them all. The bureaucracy of Empire was overelaborate. ‘Round and round like the diurnal revolutions of the earth went the file, stately, solemn, sure and slow’: so Curzon wrote of an Indian proposal, and stateliness, solemnity, sureness and slowness were attributes of British imperial government almost everywhere. ‘Documents no longer needed may be destroyed,’ ran an apocryphal imperial directive, ‘provided copies are made in duplicate’: and in the Colonial Office List for 1897 there really was an advertisement for red tape. The annual General Index to the Administration of Aden gives us a glimpse of the ruling style. ‘Lady type-writers’ had not yet reached the tropical outstations, and the Index was written in a huge and splendid copper-plate hand that suggested Dickensian clerks on high stools, beneath the slowly creaking punkahs of the forenoon. Here are some characteristic entries, not always scrupulously spelt:
Compressed Hay: enquiries regarding the practicability of obtaining from Italy.
Engine Driver: entertainment of an, for the Steam Launch Rose.
Ewes: purchase of Abyssinian, for Government Farm at Hyderabad.
Exumation: of the body of M. Boucher, late Commandant of the French gunboat Etendard.
Fee: sanction for payment of a, of Rs 200 for a surgical operation performed on a relative of the Abdali Sultan.
Mails: re fumigation of, Aden to Mauritius.
Opium: agents B.I.S.N.Co. petition for a reduction of transhipment fees levied on, to China via Bombay.
Pecuniary arrangements: Governments servants prohibited from entering into, with members of the department to which they belong in connection with the resignation of appointments held by them.
Pilgrims: copy of an unfinished report by Consul Moncrieff on the alleged ill-treatment of, at Camaran Island.
Slave girls: Home Government requires particulars regarding two, made over to the Good Shepherd Convent.
There is the ring of omniscience to such a list, written in such a script, in such a huge thick-leaved register of Empire. By and large only Britons from Britain were considered suitable for the senior imperial posts. There were exceptions: Australians administered New Guinea, New Zealanders the Cook Islands, a few Indians had succeeded in entering the higher ranks of the Indian Civil Service and a few Sinhalese shared in the Government of Ceylon. In the West African colonies there were some African senior officials, but they were soon to be replaced. This was a burden for white men, and candidates for the senior branch of the Colonial Service had to be ‘of pure European descent’.
8
The law was different. To administer the imperial justice the British had to enlist the help of their subjects. In several parts of the Empire natives were acting not only as barristers but as magistrates and judges, too. The British could scarcely resent their participation, though nobody annoyed them more than a really litigious native lawyer, because the legal system of the Empire was so immensely involved, so interwoven with customary law and the codes of previous authorities, that often the local lawyer was the only person who really understood it.
The Common Law of England did not necessarily obtain throughout the Queen’s Dominions. The principle was that an Englishman took with him ‘as much of law and liberty as the nature of things would bear’. Acts of Parliament after the foundation of a colony only applied there if they expressly said so, and if a colony had its own laws before the British arrived, they remained in force until they were specifically superseded. A myriad different codes supplemented, modified or replaced the Common Law in d
ifferent parts of the Empire, inherited from previous rulers or evolved as safety and common sense demanded. Even in the white self-governing colonies, those mirrors of England, the law was often locally modified: the Australians had changed the marriage law, and the New Zealanders had repealed the Statute of Uses, one of the most important statutes in English conveyancing.
In general the British respected indigenous laws, where they made sense, and seemed just: within their own islands, after all, they allowed a quaint degree of legal latitude to the Scots. British imperial scholars were the first to clarify and define the Islamic and Hindu laws of India—a memorial in Calcutta Cathedral proudly portrayed Sir William Jones, the great oriental jurist, with the tablets of the law in his hands, and Muslim and Brahmin sages respectful at his feet. Customary law was generally honoured, unless it was especially horrible, and even slavery, though legally abolished in the British possessions more than sixty years before, was not flatly forbidden everywhere: in countries actually annexed it was seldom tolerated, but in Protectorates only its legal status was abolished— it was not an offence for a native to keep slaves, but slaves’ children were born free, and a slave could always claim his freedom.1 The advent of English law did not much affect the more advanced branches of native civil law in India, which were essentially religious, and the baffling procedures of West Africa, with all their rituals of fetish and oblation, were mostly left undisturbed, if only because few Britons could master them.
All this made for a dizzy variety of legislation. British India had its own superb Penal Code, drawn up by Macaulay. Stephen once described it as ‘the criminal law of England freed from all technicalities and superfluities, and systematically arranged’: anyone who wanted to understand the criminal law of India had only to read the Penal Code ‘with a common use of memory and attention’. The French Canadians kept their archaic version of French law, as it had been before the Revolution, while Mauritius and the Seychelles had the Napoleonic Code. Sicilian law applied in Malta, Roman Dutch in Ceylon and Cape Colony, Ottoman in Cyprus. Traces of Spanish law still applied in Trinidad, and faint remnants of the old Brehon law in Ireland. In Sarawak, a British Protectorate, the White Rajah very often made the law up as he went along: generally with liberal intent, in an island where, for example, if an unmarried pregnant girl refused to reveal her lover’s name, she was traditionally left to starve in the forest. In Jersey the clameur de haro, an ancient appeal to the Crown, could still be raised by a really determined litigant, and lawyers still went for their training to the University of Caen in Normandy.
Sometimes the law, whatever its nature, applied equally to rulers and ruled, English or native. Sometimes the imperialist found himself subject to special rules of his own, set apart from the laws of the country he ruled. In theory there was a special court in England to deal with offences committed by Englishmen in India. It was established in 1784, and consisted of three judges, four peers and six members of Parliament. It was a conscious copy of the tribunal of Roman senators which, in the second century B.C., had been established to try offences committed by Roman officials against provincials: but it had never been summoned.
9
Loftily above it all, the supreme fount of imperial justice, sat the Judicial Committee of the Privy Council. As the Crown was to the administration of the Empire, the Judicial Committee was to the law. It was the supreme court of appeal for the entire British Empire, outside the United Kingdom. The origin of this eminence was curious. When William of Normandy conquered England his subjects of Normandy and the Channel Islands retained, to differentiate them from the conquered Saxons, particular legal access to the King’s person, by way of his Privy Council. Normandy was presently lost, but the Channel Islands kept this ancient privilege, and it was later extended to all the overseas dominions. (Citizens of the United Kingdom had the right of appeal to the House of Lords: in practice the two courts had become virtually identical.)
Oddly enough, in an Empire devoted to pomp and pageantry, the Judicial Committee flaunted few of the trappings of English law. Its members, half a dozen eminent jurists, met in modest upstairs chambers in Downing Street—John Buchan thought the premises ‘shabby—the majesty of the imperial law seemed poorly recognized’.1 They wore no robes or wigs, only plain dark suits, and sat at a semicircular table, the barrister addressing them standing at a lectern in the middle. It was only a committee, not officially a court of law. Its duty was to give advice to the sovereign, so that no dissenting judgements were delivered—it would have been improper to offer the Queen conflicting advice—and no verdict was pronounced: the judges merely declared that in their opinion the appeal should be dismissed or upheld, ‘and they will humbly so advise Her Majesty’. Sometimes a judge from Canada, South Africa or Australia attended a hearing: but there was nothing very imperial to the circumstances of the Judicial Committee, and visitors to its meetings were often disappointed.
Yet this was, in the range of its powers and jurisdiction, the most powerful court of the modern world. It might only offer its humble advice to the Sovereign, but the advice was invariably accepted. A quarter of the inhabitants of the earth were ultimately at its mercy, and when the Kols hill tribe in India were once involved in a dispute with the Government about forest rights, their elders were surprised sacrificing a kid to propitiate a distant but omnipotent deity. ‘We know nothing of him, but that he is a good god, and that his name is the Judicial Committee of the Privy Council.’ Nothing was more properly romantic, in the complex structure of the Pax Britannica, than the existence of this tremendous tribunal, perhaps the one imperial institution that smacked authentically of the Caesars. The laws of half a dozen conquered civilizations were laid before it, and its members must interpret them all both by their own values, and by the values of the imperial British. They might have to declare an opinion, against which there was no further appeal, upon the legal meaning of the Koran, or the Hindu Manu, or a clause of the Napoleonic Code modified by Canadian practice, or even the law of the Kingdom of Kandy, that last stronghold of the Ceylonese monarchs, hidden away in the forested interior of the island. Once an English lawyer had pleaded before them, on behalf of orthodox Hinduism, against the abolition of suttee, the burning of widows alive: more than once the Committee had dealt with cases in which property had been entailed in the person of a temple idol.
Some of the greatest British jurists had presided over the Judicial Committee, and its roll of members included many of the ringing honorifics of the realm—the Lord Chancellor, the Lord Chief Baron, the Lord Chief Justice, the Master of the Rolls, the Vice-Chancellor of England and all the Lords of Appeal in Ordinary. Among them in 1897 were Lord Halsbury, whose Laws of England was the standard digest of English law, and Lord Macnaghten, the most eloquent jurist of his day.1 There was no sniffing at such a body, at a moment when the prestige of English law, by whose standards all else was ultimately to be judged, stood at its highest. When a Chinese lawyer argued his case from Hong Kong, or a Jamaican litigant appealed to the fair play of the Crown, when an East African Muslim pleaded the legal significance of the Meditations, or the Kols hillmen slit the throat of another kid—as the members of the Committee looked out from their table across their quarter of the world, it must sometimes have seemed that the dream of a universal civilization was half-way to fulfilment.
10
Not the law as such, but the rule of law, was the one convincingly unifying factor in imperial affairs. The British subject, whether he be Kaffir, Maori or French Canadian, automatically acquired those private civil rights which the English had evolved for themselves since the time of Magna Carta. It took the Romans many generations to extend civil rights throughout the Roman Empire, because it was done in stages: the British granted such rights the moment they annexed a territory. One day a tribesman might be absolutely subject to the fickle despotism of his hereditary chieftain, with no personal liberties whatever: the next day he had a constitutional right to take a suit before Lord Halsb
ury, or stand for the Imperial Parliament. Most people, in most parts of the British Empire, would probably have agreed that on the whole, and certainly by the standards of its predecessors, it offered its subjects justice. Wherever the British went, as they threw down railway lines and erected Anglican churches, so they set up courts : and though the magistrate might only be an anxious youth a year or two down from the university, or a beery old veteran soaked for a quarter of a century in sun and the lesser vices, still the hearing was likely to be fair and the judgement impartial. To many of the Queen’s native subjects this was the first advantage of the Pax—more important than prosperity, efficient government, even better health. Asked in 1896 to name the first benefit of British rule in Egypt, a Cairo newspaper editor replied that now a peasant could not only bring a lawsuit against a pasha, but actually win it.
Simple benevolence was not a general trait of the British imperial system, but its fairness was generally recognized. As Emerson once wrote, ‘the English sway of their colonies has no roots of kindness in it. They govern by their arts and ability: they are more just than kind.’ If an imperial idealist had to choose a text of Empire, he might have done worse than select the original instructions of the East India Company to its judges in the east. In those days the state of the law in India was fearfully muddled, a welter of religious and customary law only thinly reinforced by English practice, but the Company’s justices knew how to behave. When there were no positive or acceptable rules to follow, they were told, they must consult two simple principles: ‘Equity or Good Conscience’.1