Friday, December 24, 2010

Ward on Disallowance and Empire in New Zealand

Damen Ward, a Crown Counsel in New Zealand’s Crown Law Office and the recipient of a history doctorate from Oxford, has posted Legislation, Repugnancy and the Disallowance of Colonial Laws: The Legal Structure of Empire and Lloyd's Case (1844), which also appears in Victoria University of Wellington Law Review 41 (2010): 381-402. Here is the abstract:
The imperial government had the ability to disallow New Zealand colonial ordinances that were "repugnant to the laws of England." "Repugnancy" did not operate as a clear legal criterion; the British government could take into account a range of political factors. Instructions to governors were sometimes used to avoid potential legal questions about the impact of disallowance. Henry Samuel Chapman's judgment in Lloyd's case (1844) provides a basis for exploring the legal, administrative and political practices surrounding the disallowance of colonial laws. Judges' and officials' views on how disallowance took effect show the interaction between political authority, political communication, and legal institutions in a Crown Colony. Lloyd's case, and Chapman's extra-judicial writing about repugnancy, help illustrate changing colonial views of the British imperial constitution across the mid-nineteenth century.
Also of interest, but not available on-line, is Ward's "Imperial Policy, Colonial Government and Indigenous Testimony in South Australia and New Zealand in the 1840s," which appears in Law and Politics in British Colonial Thought: Transpositions of Empire, ed. Shaunnagh Dorsett, Ian Hunter (N.Y.: Palgrave, 2010), 229-248. Here is the abstract:
In the 1830s and 1840s proposals to allow indigenous testimony were part of broader disputes about the shape of colonial government and attempts to use courts to “civilize” indigenous peoples. In 1840, the English law officers concluded that any potential witness in a common law court had to perceive future moral or religious consequences of giving false testimony. Where an appropriate oath or other ceremony related to this belief could be identified, the witness might be sworn. If not, the witness lacked the legal capacity to give evidence. The law officers considered these rules to be fundamental elements of "British jurisprudence" which colonial legislatures could not amend. On this basis, a New South Wales ordinance allowing “unsworn” Aboriginal testimony was disallowed. In 1843, however, the imperial Parliament authorized colonial legislatures to pass their own ordinances on unsworn indigenous testimony. South Australia and New Zealand passed legislation allowing indigenous testimony as part of assimilationist policies, but the significance of ordinances in each colony was markedly different. The shifting political significance of the admissibility of indigenous testimony across time and place suggests the importance of considering particular institutional configurations of colonial law and government. Indigenous testimony points to the importance of legislation to colonial legal systems and to the significance of the administration of law in creating patterns of colonial government.
Image credit: Henry Samuel Chapman

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