Chapter Six offers a careful reading of the first two sedition trials of Bal Gangadhar Tilak (1898 and 1908). While existing scholarship has studied his subversive performances within the courtroom, I extend this analysis to incorporate his efforts at winning executive mercy and commutation from prison. More than any other political leader, Tilak spent his imprisonment exhausting every avenue to petition and appeal against his sentence. This included multiple approaches to the Privy Council and serious plans to petition the House of Lords. In an important and original breakthrough in anticolonial political thought, it was when Tilak failed to win freedom on the basis of justice alone that he connected the availability of mercy to the curtailment of political rights in India.

There was no legal definition of the British Empire and it possessed no explicit constitutional meaning. The empire was diverse and incoherent and terminology was not very clear. The terms ‘colony’, ‘dominion’, ‘possession’, ‘plantation’, and other expressions were used in different ways at different times. Indeed, an anti-formalist attitude tended to prevail – often eschewing formal law in favour of informal assurances, customs, and conventions. There was no attempt to establish a uniform legal code. And the sovereignty of the Parliament in London was only one of many types of sovereignty that existed. Much of the British Empire lent itself to a more pluralistic type of sovereignty – one that was divided, shared and indeterminate. Indeed, it was likely that power was the only unifying factor underlying the empire, aided by British naval supremacy, and the fact that, in the nineteenth century, global communications were predominantly in British hands. However, that power could not be derived from a unified, coherent account of legal and political sovereignty. And power by itself lacks legitimacy – it must be validated by something else – which is where sovereignty becomes relevant, in providing that grounding. Yet, the claims of sovereignty made by the empire were often mutually self-contradictory.

The second Edwardian Act of Uniformity required an ordinal (a booklet containing the services for ordaining priests and bishops) to be bound with each folio edition of the 1552 Book of Common Prayer. No ordinal was mentioned in the 1559 Act, but the authorities evidently provided the printers with revisions for it, and each team of printers produced one. Only one copy of Grafton’s survives, and none of the extant copies of the ‘Jugge and Cawood’ ordinal is bound with their first edition of the prayer book. Moreover, unlike the 1552 contents lists, those of 1559 make no mention of an ordinal. The evidence suggests that it was withdrawn at the last minute, to be sold only as a separate item. Curiously, fewer than half the copies include the original sheet BB5:6. One simply lacks it; three have cancels printed in the 1580s by two different printers.

This chapter explores the use of martial law courts to punish and remove a number of chiefs after the Zulu rebellion of 1906. It focuses on the debates generated by two controversial trials under martial law: that of twenty Africans for the murder of two white policemen at the start of the unrest, and that of chief Tilonko for public order offences, which led to his deportation to St Helena. Taking place at a time when the colony was at peace, these episodes raised questions both about how far civilian courts could review military powers exercised under a proclamation of martial law and about the nature and purpose of indemnity legislation. In addressing them, the Privy Council once again took a very executive-minded view of emergency powers. Although officials at the Colonial Office were more sensitive to the demands of the rule of law, they were also prepared to defer to the political demands of a self-governing colony for severe action. Comparing the response to martial law in the Cape in 1899–1902 and Natal in 1906 reveals how much fidelity to the rule of law depended on how far its targets were perceived to be part of the political community whose rights needed protection.

This chapter looks at the use of martial law to detain and try British subjects in the Cape and Natal in the Anglo-Boer War, and the legal questions raised. Since the legal nature of martial law was still contested, its ambit was a matter of negotiation between various parties, military and civilian, imperial and colonial. This is shown through the debates over the creation and role of a special court to deal with rebels, and over the introduction of a limited form of martial law in the Cape ports. The right of the military to detain under martial law was repeatedly challenged in litigation which revealed that the attitude of the judges in the Cape courts was often much more liberal than that of those in the Privy Council. The Cape legislature was also unwilling to indemnify the military for its actions unless the sentences of those held in prison as a result of martial law trials were reviewed and revised. This chapter shows that, while Cape politicians often sought to rein in martial law powers by subjecting them to common law tests, both the military authorities and judges in London were more prepared to concede the executive exceptional powers in times of perceived emergency.

This chapter retraces the appeal made by Ho Chi Minh's legal team to the Privy Council in London in an attempt to cancel a Hong Kong Governor-in-Council order to return him to a French jurisdiction. Drawing upon British and French documentation, the chapter explains the out-of-court settlement in his favor but also intramural government maneuverings and even incompetence in the handling of his case: Ho Chi Minh's thwarted attempt to reach England, an aborted trip to Singapore and, with local Hong Kong legal assistance, his anticlimactic final departure from Hong Kong to Shanghai. A range of documentation is brought to bear upon, for example, faux reports of Ho Chi Minh's death, his journey to Moscow and communist recriminations over his Hong Kong interlude.

The book begins with a broad introduction situating the development of colonial law alongside the rise of the novel. The introduction offers an overview of the architecture of colonial sovereignty while also delving into its specifically legal context. From the move toward the codification of laws to the adjudication of cases in the Privy Council, the introduction reveals the ways in which the law provided a narrative for colonial lives. At the same time, the introduction shows how broader cultural narratives as represented in the era’s literature influenced the law. Even if, as is customarily claimed, the substance of law in the colonies was haphazard and drawn from multiple legal traditions, its authority was largely founded in claims to absolute sovereignty. The introduction frames the ways in which bloodline claims to the sovereignty of kingship were reconfigured in the colonies to enact a biopolitical sovereignty of race.

Many Australian academics and jurists regard Australian High Court Chief Justice Sir Owen Dixon’s judgment in Parker v The Queen (1963) as Australia’s ‘declaration of judicial independence’ from Privy Council precedent and from a unified common law more generally. His expression in Parker is sharp, clear; Dixon makes no apologies for his finding. Nor does he limit the decision to its facts: he states, quite clearly, that he believes that the Australian courts should no longer be beholden to English precedent. Further, he states that has the support of the puisne justices in making this declaration. How had the Court arrived at this point, particularly in the context of its members championing ‘interdependence’ with British institutions, and close adherence to legal precedent, only years earlier? The reasons for this volte-face on the part of both Dixon and his colleagues remain unexplored in Australian legal history. This paper reveals that, notwithstanding the justices’ continuing cultural ties to Britain, their changing views as to the desirability of judicial interdependence were largely a reaction to developments in the English judiciary itself. This chapter argues that the justices’ changing conception of the role of the Australian High Court was shaped in part by a growing sense of a uniquely Australian legal identity, but more pressingly as a reaction to disappointment with the Privy Council in particular. It explores the reasons for this disappointment and suggests that Dixon’s own jurisprudence presaged the Australian Federal Parliament’s actions in the decades that followed to abolish appeals to the Privy Council.

This chapter treats the decisions in The Quartet of cases not as individual contributions to judicial-review doctrine but rather as a sign of significantly increasing judicial activism in public law. The decade of The Quartet - the 1960s - was one of rapid de-colonialisation in the British Empire. Through a consideration of the development of judicial control of the executive in various countries that emerged into post-colonialism in the course of the twentieth century - notably Pakistan, Myanmar, Hong Kong, Malaysia, Singapore, Malawi, Tanzania, Uganda, Kenya and South Africa - the chapter seeks to illuminate, in a very preliminary way, the public-law legacy of British colonialism, and the ongoing states of relations between the judiciary and the executive in common-law jurisdictions of the ‘Global South’. Finally, the chapter draws out from the jurisdictional analysis a number of common themes and issues such as the role of the Privy Council and of written constitutions.

This chapter delineates a crisis of public health that occurred throughout the Revolutionary and Napoleonic Wars. It shows how it was in response to this crisis that the modern system of universal quarantine took shape. The chapter investigates the series of plague and yellow fever epidemics that breached the defenses of a string of Mediterranean islands and considers the response of European governments. The frequency with which armies and navies crossed the Mediterranean created a massive augmentation of quarantine traffic just as new epidemic threats emerged. Authorities recommitted to a robust approach to quarantine in light of these challenges. Despite wartime debacles that suggested the system might break down, Chapter 1 shows that it emerged stronger than ever. In this way, we see how a brutal series of wars and epidemics counterintuitively fostered transnational sanitary cooperation.

This chapter outlines the system and structure of the courts in Hong Kong and discusses the concept of judicial precedent. It leads readers through the hierarchical structure of the courts and its historical development during the pre- and post-1997 periods. The different levels of the courts are examined including the Court of Final Appeal (CFA), the High Court, the District Court and Magistrates’ Courts. Different tribunals that exercise judicial power are also reviewed. The second section of this chapter deals with judicial precedents, an essential feature of the common law. The doctrine of precedent as it applies in Hong Kong is detailed, taking readers through vertical and horizontal stare decisis for each level of the courts. The status of English and overseas decisions, including Privy Council decisions in present-day Hong Kong, is discussed.