Colonial Courts Research Articles

The legal status of widows and divorcees (janda) in colonial Bali

ABSTRACTThis article explores the legal status of widows and divorced women (janda) in Bali during the transition to Dutch colonial rule at the turn of the 20th century. It examines the Balinese law codes and their application in adat (traditional) courts to consider the ways in which widows and divorcees were able to claim recognition of their economic and social rights. At that time, the Dutch established the adat law system that provided separate civil laws and courts for each ethnic group in the Netherlands Indies. Balinese traditional law codes devote considerable attention to the regulation of female sexuality both within marriage and following separation or the death of a spouse, particularly in relation to rights to property and inheritance. However, they have little to say about the dissolution of marriage. Following the imposition of Dutch colonial rule, the pre-existing Balinese traditional law codes and legal norms continued to underpin the legal process administered through the colonial customary courts but were brought into alignment with modern legal practices. The colonial administration in Bali set out systematically to provide access to the legal process for women. A number of legal cases involving widows and divorcees based on adat law precedents were recorded in the Dutch compilations of adat law cases (Adatrechtbundels). These cases relate principally to disputes between widows and the families of their former partners and indicate that the legal status of Balinese widows and divorcees was formally recognised.

Un precedente remoto de la judicial review: el control judicial de la legislación de las colonias americanas

The first sketchs of the judicial review have to place in the colonial period. In this age, the Cokeʼs dictum in the Bonhamʼs case became the most important single source of the notion of judicial review. The introduction of the judicial review presupposed the idea of a fundamental law, that is, a superior law that the colonial laws had to respect. In the 18th century the colonists should find firm bases for his idea about the existence of a fundamental law in those impressive doctrinal constructions of the Enlightenment, the systematic treaties on natural and international law. The colonial Charters granted for the King were considered by courts binding for the legislatures and they were applied as a higher law. In the Giddings v. Brown case (1657), for the first time, the Cokeʼs dictum received practical application in the other side of the Atlantic. In the ruling of this case the Judge Symonds wrote «that where a law is repugnant to fundamental law, it is void». Likewise, the Privy Council, in the practice of its appealʼs jurisdiction in relation to colonial courts, carried out a judicial review of the colonial legislation. Its judicial annulment of the statutes has been compared to the function of judicial review. In fact, in the Winthrop v. Lechmere case (1727), the Privy Council declared that an Act of Connecticut, the Act for the Settlement of Intestates Estates (1699) was null and void because it was «contrary to the laws of England, in regard it makes lands of inheritance distributables as personal estates, and it is not warranted by the Charter of that Colony». In short, the colonial epoch, even long before of James Otis and the Writs of Assistance Case, offers us some examples of the application of the judicial review of legislation doctrine and, above all, it reveals us that a such doctrine was very well known and acknowledged in considerable sectors of the legal colonial world.

Beyond Jurisdictions: Native Agency in the Making of Colonial Legal Cultures. A Review Essay

Colonial law as an arena for cultural contestation and hegemonic process has displaced an older view of law as a tool of imperial domination. Rich studies based on archival work in local judicial and notarial archives in Africa and the Americas, complemented by a wide range of sources from colonial and metropolitan archives, emphasize the role of indigenous peoples in shaping legal institutions, practices, bodies of law, and ideas about justice. We now understand that colonial legal culture was forged in diverse configurations of conflict and alliance that played out in remote village tribunals and metropolitan courts of appeal. However, the tyranny of the archives persists in that the written evidence favors—in descending order—the perspective of European legal thinkers and reformers, the functionaries of intermediate institutions like the magistrates and lawyers who operated in district courts, and litigants who included European settlers and native people. In colonial courts, the voices of native litigants and witnesses tend to be highly mediated through translation and transcription.

Who was Elizabeth Dodderidge Thorp Powell and Why is the Fact She Took Her Former Father-in-Law to Court in 1693 Important?

This article began with a retirement gift from Lurie's department in 2010. Knowing of her special interest in New Jerseycolonial history, the department gave her a 1693 court writ from theEast Jersey colony. Lurie found this an intriguing but challengingdocument. Who were the people involved in this suit? Why wasa woman suing a man over a property dispute? The article revealsmuch about equity and fairness in the colonial courts and socialmatters of inheritance and property during colonial times. Lurietakes us along on a historical journey that shows us how initialquestions lead to dead-ends because of lack of documentationand how new lines of research developed as she uncovered ne

The Question Of Animal Slaughter In The British Straits Settlements During The Early Twentieth Century

Colonial law empowered British authorities to attempt to intervene in religious affairs. Rather than creating an atmosphere of open fruitful debate, colonial legal structures prevented useful discussions from occurring between colonial authorities and Muslim subjects that could lead to mutual understanding and useful consensus. In 1929, a Muslim butcher in the British Straits Settlement of Penang was fined in a British colonial court for causing unnecessary cruelty to a fowl, despite his claim that he had slaughtered the animal according to the proper Islamic method. The case forced the issue of religious slaughter into the public sphere, and sparked intense debates in the public press on the viability of Islamic method of animal slaughter. For Muslim subjects, animal slaughter was definitely a deeply religious issue. After all, the domain of the religious, generally envisioned as ‘private’ in British colonial imagination, enabled Muslim participation in the public sphere and civil society. Yet, religion sometimes fell out of the frame of discussion. Animal welfare groups robustly advocated stunning by electricity as a more effective, more humane method of slaughter. Other considerations such as general hygiene of slaughterhouses and economic considerations also played a large role in colonial intervention in animal slaughter since the early 20th century. British colonial policy put Muslim subjects on the high defensive that led to the stultification of transformations that were unlikely to stem from British colonial initiative. When discussions became acrimonious, colonial authorities would stifle dialogue by casting the issue as a religious one, thus removing it as a topic of sustained conversation.

To What Extent Could the Lawyers Defend the Independent Movement Cases in the Period of Japanese Rule? ‒ In-Sup Han, Defending the Independence at the Colonial Court ‒

To What Extent Could the Lawyers Defend the Independent Movement Cases in the Period of Japanese Rule? ‒ In-Sup Han, Defending the Independence at the Colonial Court ‒

Land, Gender and Inheritance Disputes Among the Basotho in the Dewure Purchase Areas, Colonial Zimbabwe

This article explores Basotho struggles for land and belonging in colonial Zimbabwe from the 1930s to the 1950s. It argues that as non-indigenous Africans in colonial Zimbabwe with no claim to land in reserves the Basotho saw ownership of freehold land as a key strategy in their construction of a sense of belonging. The centrality of land among the Basotho had a great impact on inheritance disputes within the members of the community. Drawing on archival files and court cases dealing with inheritance (including disputes involving land) in the Basotho community, the article argues that, through seeking further legal recourse in colonial courts, individual members of the community were able to challenge accepted customary laws and contest gender inequalities as well as to negotiate space within the community and the colonial state at large. This impacted on other inheritance disputes involving land as some of the Basotho inheritance cases set legal precedencies – thus illuminating the complex struggles among Purchase Areas farmers. The article feeds into the growing literature on land and inheritance during the colonial period. It also uses court cases as a prism through which women's struggles against patriarchy and the colonial state can be unravelled.

Between History, Memory, and Law: Courtroom Methods in Mexico

A deep reading of testimony delivered at the Spanish colonial court of the Audiencia uncovers distinctive speech formulas, nonverbal cues, and conceptual constructs that throw light on the intentions and goals, as well as the cultural predispositions, of communities and individuals. Historians can employ a similar methodology to derive patterns of “cognitive schemata” from testimony in other legal settings of the early modern era.

‘Habeas Corpus Mongols’—Chinese Litigants and the Politics of Immigration in 1888

Prior to the Commonwealth's first major statute, the Immigration Restriction Act of 1901, Britain's colonies experimented with a range of statutory restrictions on population movement. When these came to affect the interests of Chinese-born residents of the colonies, the Chinese struck back. As in British Columbia and California, the Chinese of Victoria and New South Wales deployed law in asserting rights of movement and residence. When the Supreme Courts of those colonies ruled in their favour, the self-governing colonials turned their minds to ever tighter restrictions through statutory reform. In this way, the White Australia Policy of the twentieth century might be considered the perverse product of Chinese litigation in colonial courts. In this article I argue that the Victorian and New South Wales immigration cases of 1888 demand greater respect than has been afforded them in the historiography and the legal literature of immigration policy and practice in Australia.

Imachi Nkwu: Trade and the Commons

The conventional view is that an increase in the value of a natural resource can lead to private property over it. Many Igbo groups in Nigeria, however, curtailed private rights over palm trees in response to the palm produce trade of the nineteenth and early twentieth centuries. I use the Ostrom (2007, 2009) framework for analyzing social-ecological systems to guide the construction of a model of this transition. An increase in the resource price leads the owner to prefer communal harvesting, which simplifies monitoring against theft. I support this framework with evidence from colonial court records. “Palm cutting always cause palaver.” Obuba of Ububa, Nkwo Udara Civil Suit 111/37

Lawyer, Lawyer: Albert Venn Dicey, Joe Ma, and the Rule of Law in Hong Kong

Joe Ma’s Lawyer, Lawyer, a film about a lawyer’s attempt to rescue his former servant from a false accusation of murder in the colonial courts of Hong Kong, was released in 1997, the pivotal year of Hong Kong’s retrocession to China and a time when anxieties about the rule of law were very much in the air. A quintessentially ‘Hong Kong’ movie, it casts the comedian Stephen Chau – one of the most iconic figures in Hong Kong cinema – as the lawyer. The film’s box-office success can to a great extent be traced to its clever use of puns and conventions in Cantonese, the dialect spoken in Hong Kong. Moreover, as a film with a specifically legal focus, it resonated with audiences by raising relevant questions about the legal construction of Hong Kong identity, the place of English law in a former colony, and the future of the rule of law in the city after its return to China. This article attempts to establish a dialogue between law and film by arguing that Lawyer Lawyer can be understood as a post-colonial critique of the notion of the rule of law. It will take the work of the English jurist Albert Venn Dicey as its focus, for Dicey’s seminal writings on the English constitution is widely regarded as the key to the popularisation of the term ‘rule of law’ in the common law world. This article therefore builds on the existing literature on ‘law and film’ studies, especially works on the relationship between legal theory and film studies, and extends their frame of analysis to the ways in which the genre of film responds to the dissemination of English constitutional ideas to former colonies in East Asia.

Remaking Her Family for the Judges: Hindu widows and property rights in the colonial courts of North India, 1875–1911

Remaking Her Family for the Judges: Hindu widows and property rights in the colonial courts of North India, 1875–1911

Indigenous People and Legal Culture in Spanish America

AbstractThis article reviews recent literature on indigenous people and the legal systems in colonial Mexico and the Andes, with special emphasis on legal engagement as a form of politics and the making of legal culture. Through mastery of alphabetic writing systems, literacy, and Spanish language, native peoples used colonial courts as an arena in which to resolve conflict within and among Indian municipalities, and with Spanish officials, both civil and ecclesiastical. In this way, the legal system facilitated the negotiation of colonial rule, including the growth and transformation of legal institutions and practices, and the relationship between Indian and Spanish jurisdictions. The legal system also provided an arena for cultural encounter in which Spanish and native forms of law and knowledge were circulated and constructed. Scholarship on these topics is growing fast, putting ethnohistory into an exciting dialogue with comparative studies of law and empire.

Indentured Servitude in the 17th Century English Atlantic: A Brief Survey of the Literature

This article surveys the literature on indentured servitude in the 17th century English Atlantic. It gives special attention to the recent challenge that Christopher Tomlins' celebrated book, Freedom Bound: Law, Labor, and Civic Identity in English Colonization, 1580–1865 (2010) has presented to widely accepted interpretations of unfree labor in colonial America. Within this context, the review canvasses three major themes in servant scholarship: servant migration, the laws of servitude, and servitude's relationship to slavery. A discussion of the scholarship that takes an Atlantic perspective on servitude within the wider history of colonization and colonial law reveals several problems with Tomlins' exclusive focus on North America. Tomlins could also have radically strengthened his already illuminating view of servant law as a foundation of slavery by engaging with work on how the “custom of the country” in colonial law related to both the involuntary dimensions of servant migration and the term‐bound chattel status that colonial courts imposed on indentured servants. Despite these limitations and the problems associated with his proto‐nationalist framework, the review concludes that Freedom Bound has vastly improved the extant literature on the relationship between the servitude and the ideological, discursive, and labor histories of English colonization.

Law as Politics: Chinese Litigants in Australian Colonial Courts

AbstractThe recent historiography of Chinese in Australia has emphasised their vigorous formation of a local identity and community even in the face of recurrent and expanding threats of exclusion from colonial life. In their ready embrace of legal remedies to redress what they saw as discrimination or other harms, the Chinese were exemplar colonial settlers who looked to the law to protect them. In colonial appeal courts, Chinese litigants challenged migration controls, contested convictions under opium restriction and gambling laws, sought equitable outcomes in property inheritance and challenged exclusionary regulation under the Factory Acts. In contrast to another kind of history of the Chinese in Australian law, as defendants in criminal prosecution, this article draws attention to the Chinese engagement in legal remedies as an assertion of their entitlement to recognition and fair play.

Muslim or Christian? Family Quarrels and Religious Diagnosis in a Colonial Court

Muslim or Christian? Family Quarrels and Religious Diagnosis in a Colonial Court

Jurisdictional Reform and the Role of the Supreme Court of Nigeria — The Path to a Policy Court

The Supreme Court of Nigeria is a system under severe stress. Unless the present caseload pressure is released somehow, the system will buckle imminently. Signs of stress are clearly obvious: overwhelming arrears of work, limited collegiality, and unsatisfactory output quality. As an organization, the Court has changed little during the last half-century; it has adapted to new challenges and changing roles almost without any significant structural or operational alteration. Samuel Huntington suggested that, whether an organization outlives its original functions is an indicator of the adaptability of that organization, a benchmark of institutionalization. Within its first decade, the Supreme Court evolved from a colonial intermediate court of appeal, subordinate to the Privy Council, to a final court of appeal, and shed almost all the original jurisdiction initially associated with it. During the next decade it was not just a final court of appeal, but the only appellate court for most of the country. This status of a first-level appellate court meant that it continued to function very much as it did earlier as an intermediate court of appeal even though its role was now that of a final court of appeal. There was no change in caseload volume or variety either. This ensured that the dominant functional orientation of the Supreme Court of Nigeria was always error-correction. In reaction to its caseload crisis, the Court’s bench has ballooned to the present sixteen, and there is a present temptation to enlarge it further. With increasing delay in processing its caseload and growing volume of fresh cases, this solution is utterly ineffective. This paper links the caseload crisis to the persistence of the Court’s error-correcting orientation: without a policy-court jurisdictional reform, the gap between the Court’s output and its caseload will continue to expand. This paper draws on the experience of the supreme courts of Canada and India respectively for lessons of successful and unsuccessful discretionary jurisdiction reform.

Marvels & miracles in late colonial Mexico: three texts in context

Miracles, signs of divine presence and intervention, have been esteemed by Christians, especially Catholic Christians, as central to religious belief. During the second half of the eighteenth century Spain's Bourbon dynasty sought to tighten its control over New World colonies, reform imperial institutions, and change the role of the church and religion in colonial life. As a result, miracles were recognized and publicized sparingly by the church hierarchy and colonial courts were increasingly reluctant to recognize the events. Despite this lack of official encouragement, stories of amazing healings, rescues, and acts of divine retribution abounded throughout Mexico.Consisting of three rare documents about miracles from this period, each accompanied by an introductory essay, this study serves as a source book and complement to the author's Shrines and Miraculous Images: Religious Life in Mexico Before the Reforma.

Law, Violence and Penal Reform: State Responses to Crime and Disorder in Colonial Malawi, c.1900–1959

The historical analysis of state punishment in colonial Africa has been dominated by studies of individual arenas and practices of judicial authority: prisons, detention, flogging, and the death penalty. This article on Malawi adopts a more holistic approach, focusing on ‘penality’ – the broader nexus of criminal justice infrastructure and discourses – rather than ‘punishment’, to explore the shifts and tensions within colonial judicial and penal policy. Drawing on sociological theories of punishment from Durkheim to Foucault, the development and functioning of such penality is analysed, beginning with a study of state concerns about African criminality, colonial courts and justice, before moving to an analysis of the forms and functions of state punishments. The article then explores state responses to large-scale disorder and rebellion in 1915 and 1959, and highlights how the experiences of colonial justice shaped Malawi's struggle towards independence.

Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (review)

Reviewed by: Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 Vicki Hsueh (bio) Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836. By Lisa Ford. (Cambridge, MA: Harvard University Press, 2010. Pp. 313. Cloth, $49.95.) In this compelling comparative history of legal and imperial transformation, Lisa Ford traces the emergence of modern settler sovereignty in the United States and Australia. Ford argues that what we now identify as the legal trinity of nation–statehood—sovereignty, jurisdiction, and territory—was not an automatic effect of Anglophone colonial settlement, nor was it achieved through imperial fiat. Instead, as she explains, "modern" sovereignty was preceded and spurred by a "long-practiced and institutionally entrenched pluralism" in which "indigenous jurisdiction was an acknowledged, alternative legal order" (209–210). Ford's account captures the subtle features of plural jurisdiction and [End Page 512] the complex relationship between jurisdictional theory and settler practice by looking closely at two exemplary cases in the eighteenth and early nineteenth century—the newly established state of Georgia and the settler colony of New South Wales. Although imperial statutes and charters in the period all claimed sovereignty and jurisdiction over land, Ford demonstrates how, in practice, colonial administrators and settlers operated within "plural jurisdictions" in which indigenous territory and jurisdiction were acknowledged and negotiated with, if often imperfectly and crudely. "Despite the expansive claims to sovereignty and jurisdiction over territory enshrined in colonial charters and legislation," Ford clarifies, "in the early nineteenth century the highest levels of settler government all tempered settler jurisdiction with plural logics of reciprocity, retaliation, and diplomacy" (53). In consequence, indigenous people and communities did receive practical exemption from state, federal, and colonial law before the 1820s in this plural jurisdiction, although to be sure this by no means ensured stable and orderly colonial–indigene relations. As Ford aptly notes, "Between first contact and the early nineteenth century, settlers and indigenous peoples developed their historically distinct affinities with reciprocity and retaliation into a body of syncretic, uneven, and at times mutually misunderstood practices" (36). While perhaps at first an unexpected choice, Ford's focus on Georgia and New South Wales allows her to explore both continuity and change in settler sovereignty in a rich and nuanced way. Read with and against each other, the two settlements help to illuminate the complex temperaments of a crucial transitional period in settler sovereignty. The similarities are striking: Both settlements were engaged in extensive debates about the relationship between sovereignty, jurisdiction, and the legal status of indigenous acts; both were involved in similar processes of colonization within inherently federal structures of governance; both did not seek to govern through indigenous hierarchies in order to extract commodities; and both used "the same legal arguments at the same time to articulate the most complete iterations of perfect settler sovereignty produced in the Anglophone world" (5). And, in some ways, the differences are even more instructive, for they mark the wide variety that encompassed settler experience in the period. Georgia, after all, was first a colony (1733) settled in territory long contested by the Spanish and English, which then became a new state deeply immersed in the ideologies of race slavery. Georgia also was inhabited by powerful Creek and Cherokee confederacies that inhabited both the center and periphery [End Page 513] of the territory, possessed distinctive and well-recognized constitutional orders, and held sizeable agricultural, slave, and trade economies. By contrast, New South Wales was, in Ford's evocative description, a "nascent convict colony, formed as an open-air prison in 1788" (7). Unlike its American pairing, New South Wales was relatively unmarked and unchallenged by other imperial powers, and also possessed makeshift juridical relations with Aboriginal communities in its early years. However, both settlements, despite these strong differences, eventually came to premise legal integrity as a settler polity on the regulation of indigenous crime. By the early nineteenth century, a notable shift took place as local governments, colonial courts, and executive commissions in America and Australia increasingly redefined its legal integrity and sovereignty on the subordination and regulation of indigenous people and their law. This transformation, as Ford notes, may have been anxious, precarious, and...