Violence, Colonialism and Empire in the Modern World

by Philip Dwyer

  The use of martial law became even more draconian after World War I and Townshend suggests that military governors in the British Protectorates in Iraq and Palestine were desperate to find relevance for themselves and their armed forces in what was considered as a period of peace. On at least one occasion a governor in Palestine had to be restrained by legal counsel in the Colonial Office from using martial law as a tool for the complete eradication of the villages of alleged Arab dissidents. 38 In this new military environment of air strikes and long-range mortar attacks, the Colonial Office began to replace the legal uncertainty of martial law with more legislatively defined coercive measures although there is still no agreement about what they were and when they were put in place. The more draconian Defence of the Realm Act of 1920 began to gradually supersede martial law in some parts of the Empire, although it was still in place in India and Burma at the end of World War II . 39 By 1950, colonial governors in non-self-governing parts of the Empire were using other extreme coercive measures such as the Emergency Regulations in Malaya 1948–1958 and the regulations put in place in Kenya in the 1950s to incarcerate Mau Mau rebels in detention camps. 40 A recent article the Guardian newspaper suggests that the archive of this period of the Mau Mau rebellion in Kenya remains concealed from public scrutiny in the bowels of the British Foreign Office and contains evidence of systematic torture and 400 charges of abuse of detainees. 41 It questions the benign view of Empire promoted by historians such Niall Ferguson , Andrew Roberts and Lawrence James .

  Discussion

  What is clear from this account is that until a British colony gained self-government, a colonial governor, as long as he ruled with an Executive Council , held an open-ended power to take whatever steps he decided were needed to deal with what he considered was insurrection by colonial subjects and could keep it in force for as long as he thought fit. According to Simpson , ‘action taken under this prerogative power, as decided by the executive (that is, the governor in executive council), was legal; martial law was thus the form of law imposed by the Crown in conditions of crises’. 42 Indeed ‘the common practice of making a formal proclamation of martial law was associated with this view’, even though it came to be settled by law officers in the Colonial Office in 1838, that in common law such a declaration ‘did not confer any powers which would not have existed without it’. 43 Nevertheless, in many parts of the Empire where colonial governors ruled without an Executive Council , such as in Palestine in the 1920s and in times of rebellion, it became commonplace for a colonial governor, acting on behalf of the Crown, to take whatever action was necessary to suppress insurgents and rebels. The absence of clear guidelines from the Colonial Office on this issue ensured that Finlason ’s definition remained in place until the end of World War II and usually left the colonial subject without legal redress. 44

  Characteristics

  The absence of a comprehensive study of the use of martial law across the Empire in the nineteenth and twentieth centuries makes it difficult to know exactly how often it was invoked. Richard Gott ’s account of the British Empire between 1757 and 1857 reveals 35 instances of its use although the number is by no means complete. However it does state that martial law was deployed against just about every kind of rebellious subject in the Empire ranging from Indian princes to Irish peasants, black slaves and indentured labourers, Indigenous peoples and white settlers and British convicts. 45 Finlason in his text on martial law in 1867, referred to 90 different reported legal cases arising from various proclamations of martial law across the Empire, and although there were two cases arising from a particular declaration of martial law, such as in Ireland in 1798, most of the others appear to have single cases arising from specific declarations of martial law. 46 However, in focusing only on the few cases that he considered could inform the legal issues arising from the Morant Bay affair , he left the reader to ponder the rest. All the same, from the known cases, it should be possible to identify the key characteristics of martial law as it was practised in the Empire.

  The key purpose of martial law in the Empire was either to assert or protect British sovereignty . Three examples from the settler colonies between 1815 and 1855 demonstrate the variety. Martial law was most often used in this period to deprive Indigenous peoples of their sovereignty and make them into British subjects As noted above, this occurred on at least four occasions in the Cape Colony , on four occasions in the Australian colonies and at least twice in Ceylon and New Zealand . In each case, the sovereignty of Indigenous peoples was erased with considerable loss of life and their leaders were either executed or banished to other parts of the Empire. In the Australian colonies it is estimated that martial law was directly responsible for the loss more than 1000 Indigenous lives and in the Cape Colony , the number of Xhosa lives lost during the 13-year period of martial law in British Kaffraria alone is more than 20,000. 47

  In the settler colonies, as noted above, martial law was also used to suppress other kinds of colonial subjects such as convict rebels and bushrangers who contested British sovereignty . In these cases they were similar to the suppression of rebellions of slaves and indentured labourers in other parts of the Empire. 48 The final example from the settler colonies is the use of martial law to put down white settler demands for self-government. The suppression of the rebels in Upper and Lower Canada in 1836 and 1837 and of the rebels at the Eureka Stockade in the Australian Colony of Victoria in 1854 are the best known examples. In the Canadian case, the rebel leaders were tried and hanged before court martial and others transported to Van Diemen’s Land . 49 In the Victorian case, settler outrage was so great against the colonial authorities that the rebel leaders escaped conviction and in the following year some of them were elected to the first parliament under settler self-government. 50

  In other parts of the Empire, however, martial law was an all too familiar repressive measure against those who contested British sovereignty. In India it was used to keep dissident subjects under military control for long periods of time with the loss of nearly a million lives and to reprise Hussein it was the most difficult to contest in the courts of all the repressive measures that were put in place in India in the aftermath of the First Indian Uprising in 1857. 51 The statistics are not only shocking they reveal the fragility of an Empire under increasing stress.

  Another characteristic is that its purpose was more often to protect white settlers than other subjects in the Empire. In the few cases of settler rebellion, in Upper and Lower Canada in 1836–1837 and in the colony of Victoria in 1854, the rebels were considered to be threatening British sovereignty as exercised by the colonial elite. In these cases, however, the separation of colonists by class and ethnicity and by different nationality suggests that martial law was sometimes used to maintain as well as protect the settler elite.

  Yet another characteristic is the range of tactics that was used to enforce martial law. The most dramatic was the full-scale military operation of up to 1000 troops that was deployed to drive Indigenous subjects out of their homelands either across the border into non-British territory, or into an area or region within British territory that was not required by the settlers. It was used in the Zuurfeld region of the Cape Colony in 1811 and 1819 to drive out the Xhosa and again in 1835 and 1847 to establish and hold new territories. It was also used in Ceylon in 1818, in New South Wales in 1824, in Van Diemen’s Land in 1830 and in New Zealand in 1847. In each case troops were deployed into three or four detachments as a strategy to drive the insurgents before them in a pincer movement until the objective was reached. The tactic was not always successful however. In Van Diemen’s Land , the military operation of 1830, known as the Black Line, ended with the capture of two Aboriginal men and the killing of two others. 52 But the sheer number of troops assisted by an equal number of settlers had the desired effect over the following year when most of the remaining Aboriginal people in the war zone were either forced to surrender or were shot. 53

  Another tactic was the us
e of the punitive expedition consisting of 3–20 soldiers whose purpose was to attack and burn villages where insurgents resided and then shoot them and bring others to court martial. This tactic was certainly used against the Xhosa in the Cape Colony in 1835, against the Canadian rebels in Upper and Lower Canada in 1836 and 1837 and against Indigenous insurgents in South Australia in 1840. In this case it was alleged that members of the Milmenrura clan of the Ngarrindjeri people had killed up to 26 survivors of the brig Maria which had been wrecked on a reef south of the Coorong on the South Australian coast on a voyage between Adelaide and Hobart. The event is considered as the largest murder of white people by Indigenous people in Australia’s colonial history. 54 Aware that he could not bring the alleged murderers to trial because there were no survivors, and Indigenous people were not permitted to give evidence in court, the governor of South Australia , George Gawler , declared the case ‘beyond the limits or ordinary British justice’ and decided to proceed ‘on the principles of martial law’. 55 He despatched a police party to the Coorong with specific instructions to identify up to three of the murderers and enforce summary justice without trial by hanging them over the grave site of the murdered white people. 56 However there is dispute about whether further summary justice was carried out against other Milmenrura people . 57

  In the aftermath of the First Indian Uprising , however, the punitive expedition was used with increasing effect against people whose legal status as British subjects was undecided. In this case as pointed out above, it was used to great effect against Boer settlers in South Africa in 1899–1901. By the twentieth century it appears to have replaced the full-scale military operation and become the most common tactic for tracking down insurgents.

  Yet another tactic was the use of massacre . Under martial law, the soldiers, police and defence force personnel could act against alleged insurgents with impunity. In the nineteenth century, the declaration of martial law was the opportunity to conduct massacres of Indigenous peoples in Van Diemen’s Land , the Xhosa in the Cape Colony and the Kandyans in Ceylon . In India there appears to have been several instances where massacre was carried out in full view of witnesses. In the aftermath of the First Indian Uprising in 1857, groups of Muslim rebel soldiers were individually strapped to the face of cannons which were then fired. Then in Amritsar in 1919, British troops fired on 20,000 people who were gathered for an illegal meeting, killing 380 people and wounding more than 1000 others. 58 As a result of this incident, General Dyer, the commander of the British troops was retired from the army, but was never charged let alone convicted for his brutal behaviour. 59

  Another characteristic is the extraordinary flexibility in the time period that martial law could remain in place. When deployed as a short sharp shock, it was exceedingly effective. This was certainly the case in the Irish Convict Rebellion in New South Wales in 1804 and in the response to the Maria Massacre in South Australia in 1840. 60 However from the cases that I have studied in the period before settler self-government, a similar effect was achieved when it was in place from between three to six months. But in each case its effectiveness relied on the colonial governor having sufficient military resources at his disposal. This was not the case for Thomas Davey , the lieutenant-governor in Van Diemen’s Land who declared martial law against outlaw bushrangers in 1815. Even though it remained in operation for six months, the lack of military manpower ensured that only two bushrangers were captured and executed. 61

  In many parts of the Empire, however, martial law remained in force for years at a time not only rendering the insurgents vulnerable to attack by British forces but also the settlers it was designed to protect. In Van Diemen’s Land in the three years that it was in force, more than 90 settlers were killed, including women and children, one third more than in the earlier period. 62 In the Boer War where it was in force for more than four years, the risk to civilians increased in each year and in Palestine and Iraq where it was in operation for nearly a decade, civilian deaths increased exponentially from more sophisticated military strategies, such as the use of air strikes and long-range weapons attacks on civilian villages.

  A further characteristic is that in the aftermath of the First Indian Uprising in 1857, the use of martial law appears to have intensified and the provisions became more draconian. Indeed, several historians have cited the Boer War as the critical starting point but without a comprehensive study of martial law it could well have been in earlier decades. However, it was the Boer settlers who were not designated combatants who were first to be arrested and taken before military tribunals rather than civilian courts and were often placed in that new British invention, the concentration camp. 63 Townshend also points to its draconian use in the British Mandates of Iraq and Palestine in the 1920s and 1930s where anyone could be declared an insurgent and deported to a concentration camp without trial. 64

  A final characteristic is that some colonial governors appear to have been more enamoured of martial law than others. Two of them in particular stand out. George Arthur declared martial law on two occasions against the Tasmanian Aboriginal people in Van Diemen’s Land in 1828 and 1830 and, in the latter case, conducted a major military operation against them in order to drive them from their homelands and banish them to an offshore island. Then in 1838, when posted to Upper Canada , he used the residual power of martial law to convict 30 settler rebels in a military tribunal and after hanging three of them he used the power of banishment to transport 23 others to Van Diemen’s Land . 65

  George Grey is known to have either declared or continued to operate under martial law on at least four occasions. As Governor of New Zealand , he declared martial law in the northern part of the North Island in 1845 to enable troops to attack the Maori pa at Ruapekapaka and again in the Lower Hutt Valley region between April and September 1846 so he could deploy 600 British troops to ‘clear out’ Maori insurgents who were fighting for their sovereignty. In the aftermath he used a military court to convict two Maori leaders as common criminals for attacking British soldiers and hanged one of them. He then had seven others convicted on several charges, including having ‘been taken in arms in open Rebellion against the Queen’s Sovereign Authority and Government of New Zealand’ and sentenced them to transportation to Van Diemen’s Land . 66 Eight years later he was despatched to the Cape Colony and took a special interest in the new province of British Kaffraria where martial law had been in place since its inception in 1847. According to Denver A. Webb , Grey found the opportunity to rule under martial law ‘attractive and useful in driving his interventionist programmes’ until his departure in 1860. 67 His goal was to make the Xhosa ‘useful servants, consumers of our goods, contributors to our revenue; in short, a source of strength and wealth for this colony, such as Providence designed them to be’. 68 When he returned to New Zealand in 1861 for a second term as governor he held much reduced powers as the colony had achieved self-government. Undeterred by these restrictions, in August 1863, he issued a Proclamation that included the same powers as martial law, demanding that the Maori chief, Weraora , give up his sovereignty and commanded the military campaign that led to his capture. 69 He then persuaded the Executive to accept the proclamation after the fact.

  Yet both governors considered they were humanitarian imperialists who believed that their actions represented the best interests of the benign British Empire. The deployment of martial law enhanced their careers in the period of humanitarian imperialism in that it demonstrated their strength of purpose in a crisis.

  Conclusion

  This brief survey of the use of martial law in the British Empire reveals that it was a flexible mechanism that could be quickly invoked to address a wide range of resistance from small-scale insurgencies to major rebellions. It could remain in place for just a few days or it could be in force for several decades. As a flexible form of the rule of law, colonial governors in the period before settler self-government had no difficulty in seeing its use as an instrumentalist form of humanit
arianism . But it was not effective without the availability of troops to carry it out.

  The impact of martial law on the Indigenous peoples was devastating. They were not only destroyed in great numbers, but in losing their sovereignty which the British only acknowledged in New Zealand , the opportunity for redress was virtually impossible. In many cases the only way the survivors could exist was to become a fringe group in colonial society. Finally, in keeping with the increasing complexity of Empire in the aftermath of the First Indian Uprising, martial law became less a temporary suspension of the rule of law, rather it became the legal backbone of the Empire. For, as this chapter has demonstrated, without it the Empire would surely have collapsed.