by Philip Dwyer
The most notorious of these cases came to public notice in late 1897, when brothers Ernest and Alexander Anderson were charged with murder after having flogged to death three Indigenous servants who absconded from their Bendhu station in the northern district of Marble Bar. The circumstances of this case drew wide disapprobation in the colonial press, not least because the settler jury returned a verdict not of murder but of the lesser crime of manslaughter. Alexander Anderson died of typhoid awaiting trial but his brother Ernest received a sentence of life imprisonment for the crime, although he only served five years. 53 While the publicity centred on the Bendhu case reflected a moral distaste for flogging at this extreme, the public disapproval the case generated was focused not on flogging as an everyday reality of labour relations but rather on the fact that the gender and age of the Anderson brothers’ victims—two women and an elderly man—made the flogging an especially unmanly act. 54
As this and other cases indicated, the local colonial government had to draw a clear distinction between flogging as judicial punishment and its definition as unlawful assault. To this end, the conditions that separated judicial and privatised flogging were highly calibrated. Lawful floggings were to be conducted only in the presence of a magistrate or Justice of the Peace, a Protector of Aborigines or a police officer. They had to correspond with a specified number of lashes, and they had to be inflicted using no instrument other than the government-endorsed ‘cat o’ nine tails’ or birch rod. The stock whip, which was the instrument usually on hand amongst settlers, was strictly prohibited. 55 These rather arbitrary distinctions between legal and illegal forms of corporal punishment produced controversy on numerous occasions, for instance when Justices of the Peace sanctioned the flogging of Aboriginal prisoners with a prohibited kind of lash, or when the magistrates and Justices who awarded sentences of lawful flogging in their courts subjected their own Indigenous workers to unauthorised floggings at home. 56
This system of Indigenous punishment did not pass without protest. One critic—a former police constable—noted that floggings were one of the principal causes that prompted Indigenous workers to run away from their employers, exposing them in turn to arrest under the Masters and Servants Act and a judicial flogging as summary punishment for absconding from service. He also pointed out the contradictions of a system in which Protectors of Aborigines, the very officials charged with providing Indigenous people with legal protection, worked to administer their punishment. Scorning the parallel drawn by the Chief Protector between flogging and the caning of schoolboys, he drily observed that, unlike the flogging of Indigenous prisoners, schoolmasters do not ‘half kill the child to bring about the desired effect’. In a direct rejection of the Chief Protector’s defence of the government-authorised whip as a relatively humane instrument, he emphasised that the cat o’ nine tails was attached with nine lines of cord ‘about two feet six inches long, with from four to six knots in them, the whole weighting about 11 ounces. With this instrument I have seen natives most brutally cut about by the “flogger”, [who receives] payment at the rate of 10s per head from the Government for every native he flogs’. 57 Another correspondent agreed with the problem of Protectors of Aborigines overseeing the floggings, noting that the key duty of a Protector should be to protect, not ‘to uphold the rotten laws…and to make last the chains that bind the slaves’. 58 The Aborigines Protection Act may as well exist ‘to legalise slavery’, stated another correspondent to the press, while yet another drew parallels between the treatment of Indigenous people in Western Australia and the old evils of the convict system that was now considered to be ‘the most discreditable institution of Australia’. 59
Despite some voicing of criticism, however, the idea that flogging Indigenous people was kinder and more beneficial to them than imprisonment survived well into the twentieth century. At a 1937 federal government conference on Aboriginal welfare, delegates discussed the potential advantages of summary corporal punishment as a strategy of Indigenous governance. Secretary of the Department of the Interior, Joseph Carrodus, argued that the lapse of time between committing an offence and being tried for it made other forms of judicial punishment meaningless to Indigenous people, whereas a ‘native is capable of understanding the meaning of punishment given on the spot’. Professor John Burton Cleland, Chairman of the South Australian Advisory Council of Aborigines, concurred that there was ‘much to be said for inflicting some form of corporal punishment, on the spot’, but in an effort to tie it to Indigenous agency, he suggested it ‘should be administered only after consultation with the old men of the tribe, and should actually be administered by them or under their direction’. 60 Ultimately, the discussion closed with a resolution against any move to formalise a nation-wide system of Indigenous corporal punishment, although informally it continued to be practised in Australia, as in other parts of the former Empire, well into the twentieth century. 61
Conclusion
From the early nineteenth century onwards, the humanitarian politics that achieved the abolition of slavery and propelled social reform into a wider arena had a direct impact upon the decline of corporal punishment as a mechanism of order and deterrence. Colonised people remained the notable exception around the British Empire, reflected in their continued subjection to flogging as a judicial punishment, as well as a non-judicial one in the private domain of labour relations. While settlers tended to fear Indigenous populations as an ever-potential force of resistance and threat, requiring subjection to the firm hand of state control, colonial sentiment and state policy also positioned them as uniquely ‘child-like’, requiring improvement through tutelage and guidance. This ambivalent combination of colonial fear and colonial notions of guardianship help to explain why flogging continued to be imposed upon Indigenous people well after the age of social reform that brought about its decline for other groups.
This pattern might be quite predictable in the context of colonialism and the forms of judicial violence it sanctioned, but perhaps less predictable were the arguments posed by Western Australian law officers and supported by the Chief Protector of Aborigines in defence of flogging as a more ‘merciful policy’ than carceral measures. Justified on grounds that Indigenous people were immune from the lessons of incarceration, this argument reasoned that only the physical immediacy of corporal punishment would bring them to an understanding of justice and thereby protect them from settlers’ retributive vengeance outside of the law. The parallels between this late nineteenth-century revival of flogging as a specifically racialised punishment and the outlawed systems of slavery and convictism were not lost on some commentators. Yet as Russell Hogg has put it, the continued toleration of corporal punishment into the twentieth century revealed the limits set by colonial states on Indigenous people’s entitlement ‘to civic recognition, citizenship and rights’. 62
Notes
1.Margaret Abruzzo, Polemical Pain: Slavery, Cruelty and the Rise of Humanitarianism (Baltimore: John Hopkins Press, 2011), 1–2. See also Myra Glenn, Campaigns Against Corporal Punishment: Prisoners, Sailors, Women and Children in Antebellum America (Albany, NY: State University of New York Press, 1984).
2.See for instance David B. David, The Problem of Slavery in the Age of Revolution (Ithica, NY: Cornell University Press, 1975); J. R. Dinwiddy, ‘The Early Nineteenth-Century Campaign Against Flogging in the Army’, The English Historical Review 97. 383 (1982), 308–331; Clark Nardinelli, ‘Corporal Punishment and Children’s Wages in Nineteenth Century Britain’, Explorations in Economic History 19 (1982), 283–295; Myra Glenn, ‘The Naval Reform Campaign Against Flogging: A Case Study in Changing Attitudes Towards Corporal Punishment, 1830–1850’, American Quarterly, 35. 4 (1983), 408–425; Douglas Peers, ‘Sepoys, Soldiers and the Lash: Race, Caste, and Army Discipline in India, 1820–1850’, Journal of Imperial and Commonwealth History‚ 23:2 (1995), 211–247; Henrice Altink, ‘“An Outrage on All Decency”: Abolitionist Reactions to Flogging Jamaican Slave Women’, 1780–1834�
�, Slavery and Abolition: A Journal of Slave and Post-Slave Studies, 23:2 (2002), 107–122; Penelope Edmonds and Hamish Maxwell-Stewart, ‘“The Whip is a Very Contagious Kind of Thing”: Flogging and Humanitarian Reform in Penal Australia’, Journal of Colonialism and Colonial History, 17:1 (2016), https://muse.jhu.edu/article/613283.
3.Angus McLaren, The Trials of Masculinity: Policing Sexual Boundaries, 1870–1930 (Chicago: Chicago University Press, 1997), 19.
4.Jurgen Osterhammel has described a line between ‘exploitation’ colonies, which are directed towards exploiting the economic gains of a colony’s native labour and resources, and ‘settlement’ colonies, which are directed towards the possession and re-settlement of a colony’s lands. Jurgen Osterhammel, Colonialism: A Theoretical Overview (Princeton, N.J.: Markus Wiener, Publishers, 1997), 10–11. Over the past two decades, settler colonial scholars have elaborated on the particular character of settler colonialism and its ongoing status as what Patrick Wolfe has famously termed a ‘structure’, not an ‘event’. Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology (London: Cassell, 1999), 2–3. On the distinctive political and structural features of settler colonialism see also Lorenzo Veracini, Settler Colonialism: A Theoretical Overview (London: Palgrave Macmillan, 2010).
5.Mark Finnane, Punishment in Australian Society (Melbourne: Oxford University Press, 1997),115; Dinesh Joseph Wadiwel, ‘Thick Hides: Whipping, Biopolitics and the White Soul of Power’, Social Semiotics 19. 1 (2009), 47–48. On the historical transition between corporal punishment and incarceration see Michel Foucault, Discipline and Punish: The Birth of the Prison. 1975; rpt. translated by Alan Sheridan (London: Penguin, 1977).
6.Glenn, ‘The Naval Reform Campaign’, 408; Finnane, Punishment in Australian Society, 108–118; G. Geltner, Flogging Others: Corporal Punishment and Cultural Identity from Antiquity to the Present (Amsterdam: Amsterdam University Press, 2014).
7.George Ryley Scott, The History of Torture Throughout the Ages (London and New York: Routledge, 2003), 137.
8.A. F. Hattersley, ‘Slavery at the Cape’ in A. P. Newton and E. A Benians, eds. The Cambridge History of the British Empire: South Africa, Rhodesia and the Protectorates, vol 8 (Cambridge: Cambridge University Press, 1936), 269.
9. Report from the Select Committee on the Extinction of Slavery Throughout the British Dominions (London: J. Haddon, 1833), 2518–2524; 5041–5042.
10.Edmonds and Maxwell-Stewart, https://muse.jhu.edu/article/613283.
11.John Ritchie, ‘Towards Ending an Unclean Thing: the Molesworth Committee and the Abolition of Transportation to NSW, 1837–1840’, Historical Studies, 17:67 (1976), 144–164.
12.The Molesworth report observed that the convict system in New South Wales allowed a magistrate, himself generally a master of convicts, ‘to inflict 50 lashes on a convict for “drunkenness, disobedience of orders, neglect of work, absconding, abusive language to his master or overseer, or any other disorderly or dishonest conduct”’. In Van Diemen’s Land, ‘the law which determines the condition of a convict servant is severer’. Report of the Select Committee of the House of Commons on Transportation (London: Henry Hooper, 1838), 10.
13. Report from the Select Committee on the ‘Bill to Regulate the Labour of Children in the Mills and Factories of the United Kingdom, with Minutes of Evidence, Appendix and Index, vol 2, British Parliamentary Papers no. 706 (1831–32); Seymour Dreshcer, Capitalism and Antislavery: British Mobilization in Comparative Perspective (Baskingstoke: Macmillan, 1986), 254.
14.Perhaps the best-known example of socially reformist legislation introduced in Britain during the 1830s was the Poor Law Amendment Act of 1834 which established centralised powers, exercised by a Board of Commissioners, for administering relief to the poor. An Act for the Amendment and better Administration of the Laws relating to the Poor in England and Wales (4&5 Will. IV, c. 76) 1834. Beyond Britain itself, an important humanitarian intervention into social policy for the British colonies during the 1830s was the 1835–1837 House of Commons Select Committee on Aborigines (British Settlements), although its report did not contain reference to practices of corporal punishment.
15.Ambruzzo, Polemical Pain, 2.
16.Angela Woollacott has argued that beyond Victorian England, in its colonies violence was integral to the development of a particular kind of settler colonial manhood. Whereas violence was increasingly disapproved as being counter to metropolitan expressions of manliness that were grounded in principles of respectability and restraint, in the settler colonial context violence contributed directly to the building of a nascent national feeling and it implicitly underpinned colonial culture and politics at many levels. Angela Woollacott, ‘Frontier Violence and Settler Manhood’, History Australia, 6:1 (2009), 11.9–11.11.
17.Diana Paton notes that although amelioration legislation outlawed the flogging of women in Crown colonies, colonies that could administer themselves according to their own legislative powers did not necessarily follow suit. Diana Paton, ‘Decency, Dependence and the Lash: gender and the British debate over slave emancipation 1830–1834’, Slavery and Abolition, 17:3 (1996), 173; Diana Paton, No Bond but the Law: Punishment, Race and Gender in Jamaican State Formation, 1780–1870 (Duke University Press, 2004), 110–112.
18.While Glenn’s focus is on reform in the American navy, her argument is also applicable to early-to-mid-nineteenth century campaigns for military reform in Britain. Glenn, ‘The Naval Reform Campaign’, 414.
19.Finnane, Punishment in Australian Society, 109.
20.‘Flogging in the Army’, British Parliamentary Debates, 19 June 1832, Hansard’s Parliamentary Debates, vol 13 (London: T. C. Hansard, 1833), 888–889.
21.Martin J. Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004).
22.McLaren, The Trials of Masculinity, 13–14.
23. The Vagrancy Act 1824 (5 Geo. 4 c. 83), s. 10; McLaren, The Trials of Masculinity, 16–17.
24.Steven Pierce has shown that in northern Nigeria where criminal law was administered through ‘native courts’, the application of flogging was accepted by British authorities but was vexing where it did not correspond to their understandings of different categories of person; hence the flogging of women caused official dismay in a way that the flogging of men did not. Steven Pierce, ‘Punishment and the Political Body: Flogging and colonialism in Northern Nigeria’, Interventions: International Journal of Postcolonial Studies, 3:2 (2001), 207.
25.In addition to the above, see Stephen Pete and Annie Devenish, ‘Flogging, Fear and Food: Punishment and Race in Colonial Natal’, Journal of Southern African Studies, 31:1 (2005), 12; Dinesh Joseph Wadiwel, ‘Thick Hides: Whipping, Biopolitics and the White Soul of Power’, Social Semiotics, 19:1 (2009), 48; David M. Anderson, ‘Punishment, Race and the “Raw Native”: Settler Society and Kenya’s Flogging Scandals, 1895–1930’, Journal of Southern African Studies, 37:3 (2011), 479–497.
26.Pete and Devendish, ‘Flogging, Fear and Food’, 3.
27.Cited in Pete and Devinish, ‘Flogging, Fear and Food’, 4.
28.Pete and Devindish, ‘Flogging, Fear and Food’, 5; Anderson, ‘Punishment, Race and the “Raw Native”’, 479–480.
29.Anderson, ‘Punishment, Race and the “Raw Native”’, 479.
30.Anderson, ‘Punishment, Race and the “Raw Native”’, 480.
31.‘The Native Question’, Victorian Express, 3 September 1887, 5.
32.Anderson, ‘Punishment, Race and the “Raw Native”’, 213.
33.Pierce, ‘Punishment and the Political Body’, 218.
34.Russell Hogg, ‘Penality and Modes of Regulating Indigenous Peoples in Australia’, Punishment and Society 3.3 (2001), 361.
35.Anna Haebich, ‘Marked Bodies: A Corporeal History of Colonial Australia’, Borderlands eJournal, 7:2 (2008), 8–9.
