Violence, Colonialism and Empire in the Modern World
Page 16
The growing moral sensibility that placed new prohibitions on corporal punishment was at least partially shaped by evolving middle-class expectations of decency, respectability and manliness that would mature and strengthen as the Victorian age progressed, at least within metropolitan Britain if not at its colonial frontiers. 16 As historians have argued, these social expectations came to associate the act of flogging with a complex set of gendered codes. Diana Paton’s work on decency, gender and the lash considers the ways in which the later stages of the abolitionist movement supported and perpetuated a hardening sentiment that ‘flogging was worse when inflicted upon a woman’, not least because the exposure of the female body it required was considered uniquely provocative and morally indecent. By the 1830s, she shows, a growing concern with decency and female modesty was redefining flogging as a form of punishment that was imagined as suitable only for male offenders, a belief that was reflected in efforts of the Colonial Office to outlaw the flogging of women in Britain’s Crown colonies. 17
In another reflection of the consolidating moral codes that would become characteristic of the Victorian age, flogging was also increasingly regarded as a dishonourable and humiliating instrument of punishment in the masculine world of the military, where it had long been used to assert hierarchical order and serve as a deterrent to disobedience. In her analysis of early to mid nineteenth-century naval reform, Myra Glenn has argued that campaigns to abolish flogging in the navy were less centred on humanitarian opposition to the infliction of pain than they were centred on the demeaning aspect of corporal punishment as something that stripped men of their inherent manliness. 18 Underpinned by a liberal humanitarian belief in the ‘dignity of man’ and an Enlightenment belief in the power of reason, reformist campaigns against flogging in the military, like those against the flogging of (male) convicts and prisoners, pressed forward an argument that rational rather than brutal measures would provide the most powerful motivation for the cultivation of men’s better natures and of their capacity for self-restraint. A moral conviction that flogging undermined the natural dignity of both the recipient and the enforcer further supported campaigns against it as an ignoble practice. 19 In the House of Commons, the abolition of flogging in the army was urged on grounds that it was more likely to make men ‘barbarous’ than penitent, so was injurious not only to the individual but also to the service and to the nation. 20
Yet humanitarian arguments against flogging as a punishment that sat in opposition to principles of decency and the ‘dignity of man’ did not hold for all groups through the nineteenth century. In his study of masculinity and criminal justice in nineteenth-century England, Martin Wiener shows how male violence, particularly against women, became subject to ever-more severe judicial punishments within a Victorian society that was occupied with values of respectability and honour, and that increasingly defined violence as demeaning to the civilising impulses of imperialism. 21 But while the serious violent crimes he examines, such as homicide and rape, remained subject to trial by jury in a superior court, Angus McLaren’s work on lower-order sexual and social offences at the fin de siècle shows how a late nineteenth-century culture of moral disapproval helped to produce a resurgence of flogging as a summary punishment considered suitable for men who committed ‘deviant’ acts—that is, acts which offended hardening Victorian values of moral decorum. 22 By the 1850s, flogging in Britain had become largely restricted to crimes of treason, but demands for its revival gathered pace from the 1870s in response to ‘moral’ offences such as earning a living from prostitution, acts of domestic abuse, indecent exposure, public displays of transvestism and other forms of sexual exhibitionism. The powers of summary jurisdiction that allowed magistrates to award punishments of floggings late in the nineteenth century were provided through existing provisions of the Vagrancy Act of 1824; these provisions had largely lapsed in usage but had never been repealed, and so men found guilty of social order offences of a sexual kind could be flogged as ‘incorrigible rogues’. 23
The moral arguments in late nineteenth-century Britain that led to a revival in flogging as a judicial punishment for certain kinds of sexual ‘delinquency’ were premised on a social understanding that men who were capable of such acts forfeited their natural right to an assumed state of dignity. A similar social understanding extended to Britain’s colonies, where the Victorian codes of manliness, decency and human dignity were not applied in the same way to the bodies of colonised men. In multiple sites of the (former) British Empire, flogging continued to be applied as a racialised punishment well into the twentieth century, serving both as means of regulating black subjects and as a symbolic marker of white sovereignty. In accordance with Victorian sensibilities on gender, however, legally sanctioned flogging was predominantly reserved as a male punishment, although not in all cases. Nor did this restraint apply to non-judicial floggings where colonists privately took the whip to Indigenous workers, including women. 24
Either as a judicial or as an non-judicial punishment, flogging was enlisted in various colonial settings to secure the security or appease the fears of colonial society: it served equally as a means to control frontier disturbances, to manage large colonised labour forces and to sooth white anxiety about black crime in settings where colonised populations significantly outnumbered colonial incomers. 25 As Stephen Pete and Annie Devenish have put it in their study of flogging in colonial Natal, while metropolitan societies had mostly shifted from strategies of corporal punishment to those of penal confinement by the mid-nineteenth century, at Britain’s colonial peripheries elements of ‘pre-modern’ punishments remained central to the discipline of colonised subjects, creating ‘a complex colonial discourse which linked ideas of punishment to those of race and colonial domination’. 26
The arguments that justified flogging as a racialised punishment in the colonies had several strands. In Britain’s African colonies, where black populations were much larger than the white population, a sense of settler vulnerability contributed to the development of a normative colonial culture in which authority could be asserted through physical force. Pete and Devenish have shown that in Natal, a social undercurrent of settler fear played a significant role in maintaining a prevailing colonial belief that strong deterrents were required for the repression of disobedience or resistance within a large African labour force, and that those deterrents had to be harsh and visceral to be understood by the ‘savage’ mind. This ideology sustained a ‘cult of the cat’ well into the twentieth century, captured in the comment of Natal’s Attorney General in 1909 that there was ‘a law for the kafir in this country and the law is to flog him and to flog him severely’. 27
Importantly, the judicial power of colonial states to flog African workers was also tied to an assertion of political independence unshackled from fear of imperial intervention. Within settler frontier societies that distanced themselves from what they deemed the armchair humanitarian ism of metropolitan Britain, the right to impose corporal punishments on black subjects was perceived as the right to disregard the views of an imperial metropole that was overly concerned with ‘native rights’ and out of touch with the realities of colonial life. 28 David Anderson has analysed the continuing power of this sentiment of political independence in early twentieth-century Kenya, where local judicial authorities continued to support a normative culture of corporal punishment for Indigenous Africans to a degree that was ‘unrivalled anywhere in the British colonies’. 29 It was not until the decade following World War I, Anderson argues, that Kenya’s freedom to impose both judicial and non-judicial corporal punishments on black workers was subjected to legal reform, forced through by the Colonial Office after a series of fatal flogging scandals caused outrage in London. 30
But in addition to serving as a means of colonial management and as a display of colonial power, colonial authorities and settlers also frequently saw the flogging of Indigenous people as having an educative function. Drawing upon the hierarchical principl
es of stadial theory that positioned Indigenous people as being inherently immature in their capacity for reason and self-restraint, this kind of colonial argument commonly drew parallels with children in justifying the use of the whip on Indigenous bodies. As one correspondent to the Australian colonial press put it in 1887, ‘a native is only a child of bigger growth’ and therefore the lesson of a whipping was beneficial in the same way that ‘fathers occasionally administer [one] to their children to save them from being spoiled’. 31 This ideology of tutelage through corporal punishment perpetuated a colonial assumption that Indigenous people more readily understood the lessons of physical suffering than they understood more abstract disciplinary measures; it also justified the flogging of Indigenous offenders in front of gatherings of their countrymen, for it was felt that a public spectacle of suffering would be effective in teaching the wider group to learn the lesson of immediately-administered justice. 32 In all these respects, corporal punishment in a colonial context was racially bifurcated in a way that created and upheld embodied categories of ‘colonial difference’. 33
Flogging as ‘Merciful Policy’ in Late Colonial Western Australia
Across nineteenth-century Australia, Indigenous people were still subjected to the lash after the broader social shift towards more carceral modes of punishment. Russell Hogg suggests that alongside other non-carceral strategies such as rationing, flogging had such a regular role in the management of Indigenous people on Australia’s settler frontiers that it could be considered ‘a cultural and symbolic practice as much as a legal and political one’. 34 Similarly, in discussing the role of flogging in helping to set the terms of colonial power in Australia, Anna Haebich describes the ‘branding’ of Indigenous people with the lash as part of ‘the shadowy underbelly of colonial society. Their colonised bodies bore testimony to the violence of a civilising project that used the pain of corporeal punishment to discipline and imprint civilised habits’. 35 The social toleration of flogging as a racialised punishment was particularly pervasive in colonial economies where settler masters used it throughout the nineteenth century, and well into the twentieth century, as a means of keeping Indigenous workers in line. In this implicitly-understood context of colonial labour relations, Russell Hogg argues, corporal punishment was seen to hold a ‘quasi-legal’ status that fell somewhere between unlawfulness and communally-sanctioned justice, demonstrating that colonial understandings of legitimate violence were not restricted to a ‘straightforward state monopoly’. 36
If the continuing toleration of flogging as a non-judicial form of Indigenous punishment was pervasive across Australia, in the last decade of the nineteenth century it had revived life as a judicial punishment in the newly self-governing colony of Western Australia. Under the terms of the amended Aboriginal Offenders Act (1892), magistrates or Justices of the Peace could award summary punishments of 25 lashes to Indigenous men, with or without an additional term of imprisonment of up to two years, and a dozen lashes to boys aged less than 16. 37 These were exceptionally wide summary powers compared to those available to magistrates and Justices of the Peace in other Australian colonies. In South Australia and Queensland, colonies whose governments were similarly managing actively-contested northern frontiers in the late nineteenth century, magistrates could not authorise floggings and could only award prison sentences of one year for some non-capital offences. 38 In reviving flogging as a specifically racialised summary punishment then, Western Australia had less in common with its sister Australian colonies than it had with the British African colonies where legally-sanctioned corporal punishment continued to serve as a normative strategy for the control of black subjects.
The flogging of Indigenous offenders had in fact been legally available as a summary punishment in Western Australia throughout the second half of the nineteenth century for all but a decade. It was first introduced in 1849 as a provision of the Ordinance to provide for the Summary Trial and Punishment of Aboriginal native Offenders. 39 This provision remained in place until 1883, when the 1849 Ordinance and its later amendments were repealed by a new Aboriginal Offenders Act that removed the capacity of magistrates to award flogging sentences, and that limited summary punishments to prison terms of up to two years with or without hard labour. 40 But the revival of flogging a decade later in 1892 reflected the government’s need to find a way to regulate an on-going and protracted state of racial conflict on Western Australia’s northern frontiers. Through the 1870s and 1880s, settlers in the north made constant complaints that Indigenous people were killing their cattle ‘wholesale’ and that the government afforded them no legal protection, while it let Indigenous crime go unpunished. 41 Against this backdrop of settler grievance, accounts circulated in the press of a normative culture of abuse against the large numbers of Indigenous people who now worked as an indentured labour force in valuable colonial economies, and whose treatment drew regular comparisons to slavery. 42 Such claims prompted the local government to undertake a number of dedicated inquiries into the treatment of Indigenous people in the north, although with little effect. 43 Settlers’ demands for more government support had considerable political and economic leverage; their vociferous complaints that Indigenous people enjoyed immunity from the law was sometimes accompanied by the sentiment that they were forced to take the law into their own hands. 44 It was into this environment and its fraught state of race relations that flogging was re-introduced as an exceptional legal measure for the summary punishment of Indigenous offenders. Not surprisingly, followed by absconding from service, the most regularly prosecuted Indigenous offence under the summary jurisdiction of magistrates was theft of livestock. 45
The return of flogging as a racialised punishment in Western Australia was justified, as it was in Britain’s African colonies, on grounds that the prospect of imprisonment served no deterrent to Indigenous crime, and visceral measures were required to control it; indeed, some magistrates and settlers argued that Indigenous men were glad of a spell in prison because it provided them with free food and clothing. 46 It was ‘of no earthly use to preach morality’ to Indigenous people , ran a press editorial in support of the return of flogging, when the only effective deterrent they could understand was ‘brute force’; summary punishment on the spot was additionally seen to have the practical benefit of saving the government from having to bring Indigenous prisoners potentially hundreds of miles to the nearest magistrate for trial. 47 The idea that Indigenous people understood corporate punishment more clearly than incarceration was also held up to support a familiar colonial sentiment that it had an educative role in teaching them how to obey expected codes of conduct and that, as with ‘naughty children’, this lesson needed to be reinforced with a firm hand. 48
These interlinked rationales in favour of flogging as an exceptional racialised punishment were broadly shared across the British colonies, but in Western Australia an additional rationale for its revival as a specific punishment for Indigenous people was that it constituted a more humane policy than imprisonment. The reasoning of this argument was that because flogging was the only effective means of teaching Indigenous people to understand the law, and because its display of justice would deter settlers from carrying out acts of retributive violence against them, its availability as a summary punishment would help the government to regulate conflict on the colony’s frontiers through legal means, and thereby serve towards the long-term legal protection of Indigenous people themselves. This reasoning framed the Attorney General’s comments in support of flogging when the proposed amendments to the Aboriginal Offenders Act came before the Legislative Council in January 1892. The ‘depredations of aboriginals’ on the colony’s frontiers had become so pressing, he stated, that unless the government steered them onto a ‘better footing’, settlers would be tempted to ‘take the law into their own hands’. Flogging was a punishment the recipients could comprehend, and the whip ‘did them far more good than any imprisonment’. The maximum number of 25 strokes proposed by
the government was ‘very slight’, and would help prevent conditions in the outlying districts decline ‘from bad to worse’. He trusted, then, that the parliament would recognise the return of lawful flogging under the Aboriginal Offenders Act as ‘a merciful policy’. 49
The idea that flogging represented a more humane policy than its alternatives because it interrupted the cycle of frontier conflict and deterred settlers from more violent responses was also apparent in public sentiment. One correspondent to the press argued that the return of flogging constituted a ‘moderate’ policy, because ‘physical pain inflicted on a score of the natives in the presence of their brothers’ had an ‘impressive’ effect upon them, and unless they learned ‘obedience and submission to our laws’, settlers would be obliged to act for themselves and ‘many more lives will very probably be sacrificed’. 50 Notably, the Chief Protector of Aborigines himself accepted flogging as a relatively benign punishment, one that was more humane than banishment to prison. In his report for the year 1900–1901, he described the whipping of Indigenous offenders as parallel to the caning of schoolboys, and defended the authorised government whips as causing less pain than alternative instruments because their lashes were free of knots and made of ‘small cord’. 51
The Chief Protector’s description of the government-authorised whips as causing no more than the requisite amount of pain opened onto the ambiguous problem of how to define the difference between legal floggings of Indigenous prisoners by the state and illegal floggings of Indigenous workers by settler masters. The flogging of Aboriginal workers was known to be a standard practice within the northern pastoral and pearling sectors, and before that as part of labour relations further south. While technically illegal, the private practice of inflicting corporal punishment on Indigenous servants was—within certain limits—considered acceptable as a measure for ‘educating’ them into good behaviour, even by personnel of the Aborigines Department who were charged with monitoring their legal protection. In his 1892 report to the Chief Protector of Aborigines, for instance, travelling inspector Charles Straker noted that most station owners ‘chastised’ their Aboriginal employees with a ‘light thrashing’, a practice he accepted to the extent that ‘settlers must have a certain amount of liberty to punish natives’. 52 However, when this tolerated culture of physical ‘chastisement’ crossed a line, settlers could be prosecuted for assault. And when they beat servants to death, they exposed themselves to more serious charges.