by Philip Dwyer
Notes
1.Richard Gott, Britain’s Empire: Resistance, Repression and Revolt, (London: Verso, 2011), 205.
2.Mark Finnane, ‘Law and regulation’ in Alison Bashford and Stuart Macintyre eds., The Cambridge History of Australia Vol. I, (Cambridge: Cambridge University Press, 2013), 391–392.
3.W. R. Finlason, Commentaries on Martial Law with Special Reference t its Regulation and Restraint, (London: London, Stevens & Sons, 1867), 12.
4.William Blackstone, Commentaries on the Laws of England, 3 vols. fourth edition, (Oxford: Clarendon Press, 1770), vol. 1, 412; A. V. Dicey, Introduction to the Study of Law of the Constitution, 8th edition, (London: Macmillan, 1924), 283–284.
5.J. V. Capua, ‘Early History of Martial Law From the Fourteenth Century to the Petition of Right’, Cambridge Law Journal, vol. 36, April 1977, 152–173.
6.John M. Collins, ‘Hidden from Plain Sight: Martial Law and the Making of the High Court of Justice, 1642–1660’, Journal of British Studies, no. 53, 2014, 859–884.
7.David Dyzenhaus, ‘The Puzzle of Martial Law’, University of Toronto Law Journal, 59 (2009), 58.
8.A. W. B. Simpson, Human Rights and the End of Empire, (Oxford: Oxford University Press, 2001), 67.
9.Collins, ‘Hidden in Plain Sight’, 863.
10.Dyzenhaus, ‘The Puzzle of Martial Law’, 58. For the use of Prerogative power to banish dissidents see Michael Powell, ‘The Clanking of Medieval Chains, Extrajudicial Banishment in the British Empire’, Journal of Imperial and Commonwealth History, 44:2 (2016), 352–371.
11.John McLaren, ‘Reflection on the rule of law: the Georgian colonies of New South Wales and Upper Canada, 1788–1837’ in Diane Kirkby and Catharine Coleborne eds, Law, History, Colonialism, (Manchester: Manchester University Press, 2001), 48.
12.Charles Townshend, ‘Martial law: Legal and Administrative Problems of Civil Emergency in Britain and the Empire, 1800–1940’, The Historical Journal, 25 (1982), 168.
13.Townshend, ‘Martial law’, 168.
14.Rande W. Kostal, A jurisprudence of power: Victorian Empire and the rule of law, (Oxford: Oxford University Press), 2005, 198.
15.King to Hobart, 12 March 1804, Historical Records of Australia, Series I, Volume IV, 564.
16. Sydney Gazette, 11 March 1804.
17.Alan Atkinson, The Europeans in Australia a History Volume One the Beginning, (Melbourne: Oxford University Press, 1997), 73; Lloyd Robson, A History of Tasmania vol. 1, from the earliest times to 1855, (Oxford: Oxford University Press, 1983), 578, note 9.
18.Robson, History of Tasmania, 578.
19.Simpson, Human Rights and the end of Empire, 67.
20.Martial law was declared against the Xhosa in 1811, 1819, 1835 and 1847; against the Aboriginal people in 1824, 1828, 1830 and 1840; against the Kandyans in 1818 and 1848; and against Maori in 1845 and 1846.
21.Martial law was in force for five months on Norfolk Island in New South Wales, in 1790; for six months in Van Diemen’s Land in 1815; for four months in New South Wales in 1824; in the Cape Colony for three months in 1818 and six months in 1819; and in New Zealand for four months in 1847.
22.Gott, Britain’s Empire, 201.
23.Lyndall Ryan, Tasmanian Aborigines A History since 1803 (Sydney: Allen & Unwin, 2012), 84–90.
24.Denver A. Webb, ‘More than Just a Public Execution: Martial law, Crime and the Nature of Colonial Power in British Kaffraria’, South African Historical Journal, 5:2 (2013), 314.
25.Gott, Britain’s Empire, 310–316, 495, n. 4.
26.See, Foster, Hosking and Nettelbeck, Fatal Collisions, 18–19; Kristyn Harman, Aboriginal Convicts, Australian, Khoisan and Maori Exiles (Sydney: UNSW Press, 2012), 221–222.
27.James Stephen Minute to Correspondence from George Grey Lt Governor of New Zealand to Gladstone, Secretary of State for the Colonies, Despatch No. 109, 23 October 1846, National Archives, London, CO 325/53.
28.Julie Evans, ‘Where Lawlessness is Law: the Settler-Colonial Frontier as a Legal Space of Violence’, Australian Feminist Law Journal, 30 (2009), 1–22.
29.Nassar Hussein, The Jurisprudence of Emergency: Colonialism and the Rule of Law, (Ann Arbor: University of Michigan Press 2003).
30.For the most comprehensive account of the uprising and the aftermath in London, see, Kostal, A jurisprudence of power.
31.Finlason, Commentaries on Martial Law, 10.
32.Finlason, Commentaries on Martial Law, 12.
33.Hussein, Jurisprudence of Emergency, 10.
34.Hussein, Jurisprudence of Emergency, 10.
35.Hussain, Jurisprudence of Emergency, 12.
36.See, Townsend, ‘Martial Law: Legal and Administrative Problems’; and Simpson, Human Rights and the End of Empire.
37.Richard A. Cosgrove, ‘The Boer War and the Modernization of British Martial Law’, Military Affairs (1979), 124–126.
38.Townsend, ‘Martial Law’, 187.
39.Simpson, Human Rights and the End of Empire, 67; Christopher Bayly and Tim Harper, Forgotten Wars The End of Britain’s Asian Empire, (London: Penguin Books, 2007), 407–445.
40.Bayly and Harper, Forgotten Wars, 407–445.
41. The Guardian 25 July 2011. See also the work of Caroline Elkins, Britain’s Gulag: The Brutal End of Empire in Kenya (London: Pimlico, 2005).
42.Simpson, Human Rights and the End of Empire, 61.
43.Simpson, Human Rights and the End of Empire, 61.
44.Hussain, Jurisprudence of Emergency, 12.
45.Gott, Britain’s Empire, 8.
46.Finlason, Commentaries on Martial Law, 25–30.
47.The figure for the Australian colonies is an estimate drawn from the four period of martial law. For the Cape Colony see Webb, ‘More than Just a Public Execution’, 300.
48.See Gott, Britain’s Empire for examples of slave rebellions.
49.Gott, Britain’s Empire, 303–317.
50.David Goodman, ‘The gold rushes of the 1850s’, in A. Bashford and S. Macintyre, (eds.), The Cambridge History of Australia, Vol. I (Melbourne: Cambridge University Press, 2013), 176–178.
51.Hussein, Jurisprudence of Emergency, 12.
52.Ryan, Tasmanian Aborigines A history since 1803, 137–138.
53.Ryan, Tasmanian Aborigines, 138–139.
54.Foster, Hosking and Nettelbeck, Fatal Collisions, 13.
55.Foster, Hosking and Nettelbeck, Fatal Collisions, 15.
56.Foster, Hosking and Nettelbeck, Fatal Collisions, 15.
57.Julie Evans, ‘Colonialism and the rule of law: the case of South Australia’ in Barry S. Godfrey and Graeme Dunstall (eds), Crime and Empire 1840–1940 Criminal justice in local and global context (Cullompton, Devon: Willan Publishing, 2005), 57–75.
58.Dyzenhaus, ‘the Puzzle of Martial Law’, 31.
59.Hussain, The Jurisprudence of Emergency, 210.
60. Sydney Gazette 11 March 1804; see Foster, Hosking and Nettelbeck, Fatal Collisions, 13–28.
61.A. G. L. Shaw, A History of Tasmania by John West, (Sydney: Angus and Robertson and the Royal Australian Historical Society, 1971), 563, note 78.
62.Ryan, Tasmanian Aborigines, 143.
63.Townshend, ‘Martial Law’, 187.
64.Richard A. Cosgrove, ‘the Boer War and the Modernization of British Martial Law’, Military Affairs, 1979, 124–127; Townsend, ‘Martial Law: Legal and Administrative Problems’; Simpson, Human Rights and the End of Empire; Hussain, The Jurisprudence of Emergency.
65.A. G. L. Shaw, Sir George Arthur, Bart 1783–1854 (Melbourne: Melbourne University Press, 1980), 126, 129–130, 185–191.
66.Harman, Aboriginal Convicts, 217–218, 220–223.
67.Webb, ‘More Than Just a Public Execution’, 304.
68.Webb, ‘More Than Just a Public Execution’, 301.
69.Entry on George Grey in A. G. L. Shaw and C. M. H. Clark (eds), Australian Dictionary of Biography, Vol. 1 (Melbourne: Melbourne University Press, 1966), 479.
© The Author(s) 2018
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p; Philip Dwyer and Amanda Nettelbeck (eds.)Violence, Colonialism and Empire in the Modern WorldCambridge Imperial and Post-Colonial Studies Serieshttps://doi.org/10.1007/978-3-319-62923-0_6
Flogging as Judicial Violence: The Colonial Rationale of Corporal Punishment
Amanda Nettelbeck1
(1)The University of Adelaide, Adelaide, SA, Australia
Amanda Nettelbeck
Email: [email protected]
The gradual turn against corporal punishment in the nineteenth-century Anglo world has been often noted by historians of crime and punishment, particularly in the context of a rising concern with social and legal reform. In her recent book Polemical Pain, Margaret Ambruzzo has explored how the humanitarian sentiments of sympathy and social improvement that thrived with the transatlantic anti-slavery movement produced a gradual loss of public faith in the infliction of bodily suffering as an effective deterrent to wrongdoing, and led to a broader ‘transformation in moral thinking’ about pain as a tool of discipline that was no longer appropriate for modern and progressive societies. 1 Intersecting with the anti-slavery movement, a range of related humanitarian campaigns for social reform also flourished during the early nineteenth century that directed political energy away from corporal punishment and towards the introduction of more humane systems of discipline in the military, penal colonies, prisons and schools. 2
By the 1820s, the effects of this broad social shift towards liberal reform and more humane forms of punishment were starting to be seen in a trend against the lash as an instrument for disciplining slaves as well as women and children, sailors and soldiers, convicts and criminals. Yet despite the powerful influence of humanitarian campaigns to curb corporal punishment within a range of institutional settings over the first half of the nineteenth century, flogging continued to have an extended life into the twentieth century as a form of judicial punishment for specific groups of people. In this sense, as Angus McLaren has suggested, later nineteenth-century arguments in favour of the lash pose a challenge to ‘the generally accepted account of nineteenth-century criminals [and others] being subjected to ever more “humane”, rational, and reformist punishments’, and indicate that social justifications for the infliction of bodily pain were not neatly divided from the progressive moral sensibilities of the nineteenth century. 3
Around Britain’s Empire, colonised people remained subject to flogging as a judicial punishment long after it declined in application to other groups. The extended use of flogging as an exceptional form of racialised punishment was visible both in ‘exploitative’ colonies that were reliant upon Indigenous labour and in settler colonies where colonial governments sought to transform Indigenous people into a new kind of colonial citizen. 4 With different degrees of emphasis, the lash continued to be applied to Indigenous bodies in both these kinds of colonial setting as an instrument of control or of ‘education’, well after the reformist era that saw corporal punishment gradually become replaced with the principle of the reformatory prison. 5 Yet for many colonial authorities, the suitability of the lash as an instrument for disciplining colonised people also carried other forms of rationale beyond the fact that it served as a powerful means to subdue disorder and resistance, or to display the controlling power of colonial authority. A striking feature of some late nineteenth-century arguments for its application to Indigenous people was that it could be justified as being more ‘humane’ than the alternative of incarceration. Flogging ultimately served Indigenous people’s interests, ran this rationale, because it was an immediate form of punishment they could comprehend, and as a display of judicial violence it helped to protect them from the kind of retributive violence from settlers that was otherwise difficult to regulate at colonial frontiers.
This chapter will trace some of the arguments that supported flogging as an exceptional mode of punishment for Indigenous people in Britain’s late colonial world well after the mid-nineteenth century when corporal punishment fell into wider disuse. It will firstly compare some of the social and moral debates of the early nineteenth century that produced declining reliance upon corporal punishment as a mode of discipline, and later debates that contributed to its revival as a suitable form of judicial punishment for specific groups. Drawing upon the settler colonial case of Western Australia, where flogging was re-introduced in 1892 as a provision of the amended Aboriginal Offenders Act, it will then unpack the threads of a complex colonial reasoning that the revival of corporal punishment for Indigenous people was not only a more effective mode of discipline than carceral measures, but also a more ‘merciful policy’.
The Decline and Return of Flogging in the Nineteenth-Century British Empire
Flogging has had a long history as a deterrent to social disobedience and as a symbolic assertion of social order. 6 However, in the shift towards liberal reform in early nineteenth-century Britain and its empire, the 1820s represented a decade of transition when moral distaste generated declining use of the whip, and this downward trend continued through the 1830s and 1840s. Increasingly seen as a practice that was ‘degrading, barbaric, and despotic’, flogging was first prohibited for use on female prisoners through legislation introduced in Britain in 1820. 7 Female slaves still remained subject to corporal punishment after this time, but over the following years legal prohibitions on the flogging of female slaves and restricted conditions on the flogging of male slaves were introduced in some parts of the British Empire, mirroring a wider campaign for humanitarian reform in the slave colonies that culminated in the Abolition of Slavery Act of 1833. 8 Even before this legislative change, however, testimony given to a House of Commons Select Committee on the Extinction of Slavery indicates an uneven reliance upon the lash in the British dominions where slaves constituted the backbone of the colonial labour force: in some quarters flogging was still regarded as a necessary stimulus to labour, while in others it was already becoming rarely used. 9
Humanitarian arguments for the reform of corporal punishment also influenced its declining application in the Australian penal colonies from the 1820s. A recent statistical study by Penelope Edmonds and Hamish Maxwell-Stewart indicates that in Van Diemen’s Land, the penal colony that became most notorious for its systematic brutality against convicts, rates of flogging peaked in 1822 and declined thereafter. 10 Encouraged by the success of the anti-slavery movement, campaigns for the humane treatment of convicts gathered pace through the 1830s. 11 In his 1838 report of a House of Commons Select Committee established to advise on the state of the convict transportation system and its scope for improvement, Sir William Molesworth drew strongly on the rhetorical evils of slavery to highlight their parallels with the physical tortures of convict punishments. Elaborating on the arbitrary brutalities of a system in which overseers held discretionary power to authorise heavy floggings for relatively minor offences such as insubordination or insolence, the Molesworth Committee report became widely regarded as one of the triggers that brought about the end of the convict transportation system. 12
Beyond the colonies, comparisons to slavery also drove forward calls for the reform of factory conditions at home in Britain, especially for child workers. During 1831 and 1832 a House of Commons Select Committee on Factory Children’s Labour gathered testimony on unregulated whippings amongst other abuses imposed on the youth who worked in Britain’s factories. As the Molesworth Committee report would do a few years later in its recommendations for reform of the convict system, the Factory Children’s Labour Committee report emphasised the comparisons between the plight of child workers and that of slaves, and contributed to the introduction of the Factory Act of 1833 that enshrined new protective regulations in law. 13 Through the 1830s, other legislative changes and government inquiries directed towards the protection and amelioration of vulnerable subjects were emblematic of an appetite for humanitarian reform that was more diverse than the call to improve the legal and social rights of any one group. 14 Instead, this strengthening humanitarian turn reflected a b
roader adjustment occurring within the moral code of nineteenth-century western societies, and it was symptomatic of a developing social sensibility that the deliberate infliction of human suffering was ‘immoral’. 15
