Module: HST6356 'An Excess of Colonialism': Empire, Race, and Violence
By: Hussain Syed
Colonial law formed a key component in Britain’s civilising mission. This essay scrutinises the civility of British laws in its colonies between 1800-1931. The temporal scope provides a picture of colonial laws before the increased enforcement of martial law, during the Great Depression, due to industrial strikes. ‘Law’ is defined broadly, encompassing: martial law, law enforcement officers, civil legislation, penal codes, and the criminal justice system. ‘Violence’, however, is limited to exploring only the use of physical violence, rather than cultural, economic, and psychological violence. Since 2000, historians have explicitly linked colonial laws and violence. Elizabeth Kolsky and Mark Condos both support that laws enabled violence in British India; Kolsky focuses on everyday violence whereas Condos explores exceptional legislation. Historians Rande Kostal, Martin Wiener, and Martin Thomas, have pushed the existing scholarship on law and violence beyond India. Engaging with this scholarship and working thematically, from the most explicit to the most insidious method of enabling violence, this essay will address martial law, then law enforcement, then components of the criminal justice system, and finally, exceptional civil laws. Ultimately, it argues that the law, as an instrument and catalyst, served to directly and systematically enable the use of physical violence in Britain’s colonies.
Martial Law
Martial law was the most explicit method of enabling the use of violence in the colonial world. Britain’s fears of rebellion drove them to enact legislation which enabled the suspension of ordinary law in states of emergency. The murky definition of ‘emergency’, and the always-impending necessity of martial law in an anxious colony offered military officials unchecked discretion in exercising disproportionate violence when quelling ‘native’ insurrections. The brutality of martial law was notable in the 1865 Morant Bay Rebellion. Governor Eyre, enforcing martial law under Local Act (9 Vict c. 35), ordered troops under Brigadier Nelson and Lieutenant Brand to hunt down protesters who burnt down the courthouse in St. Thomas-in-the-East, Jamaica. Alongside the shooting of 439 people, public flogging of 600 men and women, and burning down of 1090 cottages, maybe the most audacious manipulation of martial law was the extradition of George William Gordon.[1] Gordon, a leading critic of Eyre’s government, was extradited from the non-martial law jurisdiction of Kingston to Morant Bay. He was sentenced and executed by a military tribunal which found him guilty of inciting armed resistance alongside Paul Bogle. Despite the rebellion collapsing as soon as troops appeared, excessive use of military violence was not prosecuted by the Old Bailey’s grand jury. The use of violence via martial law, and the judiciaries lack of holding military officials to account, was justified by broader conspiracies of native revolt against the state.
The ruthless logic of martial law re-emerged in colonial India on 13th April 1919. General Dyer killed 379 people and injured thousands by ordering 50 soldiers to open fire without warning for 15 minutes at 20,000 Indians. They gathered in the 250-by-200-yard Jallianwala Bagh to celebrate Baisakhi, and to defy Dyer’s enforced curfew in protest of the arrest of Indian nationalist leaders, Satyapal and Saifuddin Kitchlew. The Anarchical and Revolutionary Crimes Act passed in March 1919, enabled Dyer to take war-time measures against civilians at a time when the British government feared civil disobedience could lead to an overthrow of law and order.[2] While Britain justified the use of martial law as a mechanism to limit violence by aggrieved natives in its colonies, in reality it aimed to suppress native dissent and insurrection using brute force as evidenced in both Jamaica and India. Under the cloak of lawfulness provided by martial law, military officials shot, flogged, and injured ‘natives’ in the colonial world. Even when military officials were retrospectively held accountable by commissions and the judiciary, physical violence was systematically legitimised by sympathetic acceptance that such violence was non-justiciable in states of emergency.
Law Enforcement
The enabling of state-mandated physical violence through colonial laws was not limited to military officials. As agents of the law, colonial police were delegated powers of enforcement via penal codes to maintain order using physical violence. The Riot Act of 1714, which forbade the gathering of riotous assemblies, was fundamental in enabling police forces to violently suppress political dissent against the colonial state. In October 1919 and January 1920, Kingston, Jamaica, experienced street disturbances which morphed into widespread looting and riots in urban neighbourhoods. Police officers in their paramilitary equipment, automatic weapons and armoured cars, were permitted under a revision of the Riot Act to shoot the ringleaders of protesters who would not disperse.[3] Native Administrative Ordinances gave colonial police similar powers in Trinidad during the 1903 Water Riots, where 16 ‘natives’ were killed and 42 injured for protesting the increase in the cost of water.[4] By delegating powers of enforcement to colonial police, Britain legislated the systematic quelling of organised ‘native’ dissent in its colonies using police brutality.
Colonial police also used state-mandated violence to advance the interest of settlers. The coronial inquests between 1860-1897 in Queensland, Australia, reveal that Queensland Native Police (QNP) used Rule 33 of Commandant Eric Morisset’s revised regulations, to assist settlers in protecting appropriated property and advancing into Aboriginal territory.[5] In 50 of the 500 reported cases, QNP troopers were responsible for the deaths of Aboriginal people. The geographical pattern of recorded deaths mirrors settler expansion into ‘native’ lands, and there are several cases where QNP massacred ‘natives’ in Gladstone (1872) and Irvinebank (1884). Alexander Douglas was one of many troopers in 1872 who killed 5 Aborigines in Gladstone, explaining to the Police Commissioner that he did so as a lesson for Aborigines who challenged European property rights; “the other blacks will profit by [the killings] and remain quiet”.[6] Therefore, laws enabling police violence assisted Britain’s colonial project by protecting and expanding settler property.
Plantation owners were another agent of the law whose violence against labourers was enabled by colonial legislation. Regulation V 1830 and Act VI 1865 established indenture systems using penal contracts that bound labourers to tea plantations in colonial Assam. The Inland Emigration Act 1882 authorised planters to arrest and punish deserters without a warrant or assistance of the police if they were found within 5 miles of their plantation. The law also devolved authority from magistrates to plantation managers, forcing labourers to take their grievances to plantation managers rather than magistrates.[7] Britain’s delegation of penal powers to plantation owners created a reciprocal benefit. While Britain used plantation owners to maintain order in the volatile frontiers of their empire, plantation owners revelled in their penal powers which guaranteed production through a fearful and obedient workforce. Kolsky states that “labour laws directly linked to widespread criminal fraud, abduction and abuse of workers”.[8] Ultra-vires daily flogging of labourers was protected by the law, as criminal trials of European planters declined from 96 to 11 between 1884-1909.[9] By 1899, the Chief Commissioner of Assam’s Labour Report exposed tea plantations for their widespread violence and persistent failure to administer justice in cases involving labourers and planters.[10] Conditions faced by labourers, and the physical violence they endured in indentured servitude, were products of legislation which delegated powers of exemplary punishment to tea plantation employers in colonial Assam.
Criminal Justice System
The criminal justice system also enabled violence in British colonies. Actors, such as judges, juries, and medical experts, protected and sustained white violence against ‘native’ populations. All-white juries protected the violence of white criminals in court; trivial punishments and acquittals for murder gave confidence to the settler community that assaulting ‘natives’ would lead to inconsequential ramifications. In 1914, settler lobby groups in Kenya pressured the Colonial Office to revise the Criminal Procedure Code to operate with all-European juries and unanimous verdicts. Magistrates previously had 2 officials in the jury to push through convictions of violent settlers. After the ordinance, settlers were emboldened against the colonial judiciary. This feeling of invincibility enabled the use of violence. In 1907, Captain Ewart Grogan deliberately flogged 3 African rickshaw drivers in front of the Nairobi courthouse. His imprisonment for only 1 month in a specially-guarded prison was confirmation to several hundred Europeans who witnessed the flogging that they were immune from prosecution for violence against ‘natives’.[11] The verdicts of some colonial judges also reflected the attitude of maintaining racial prestige. While Governor Arthur Gordon and Chief Justice Gorrie implemented laws granting Fijians equal rights at law, Gorrie’s replacement in 1883 from Western Australia, Sir Henry Wrensfordley, publicly supported European solidarity in his judgements. This led to greater appeals by convicted settlers in hope of vindication.[12] The sympathy of all-white juries and white judges for white criminals was in part to maintain racial prestige in the face of ‘native’ accusations of white criminality. Punishing white criminals too severely could give ‘natives’ contradictory messages regarding white supremacy. Thus, Martin Wiener’s broad study of Fiji, the Bahamas, and Kenya, reinforces the widespread bias in Britain’s colonial justice system; it enabled physical violence by systematically protecting white criminals and reinforcing settler attitudes of invincibility from prosecution.
Medical experts also contributed to a British criminal justice system that enabled violence in the colonial world. In colonial India, non-official Europeans drew on the “diseased-spleen defence” to argue that an Indian, who they had beaten to death, had in fact died from a ruptured liver or spleen rather than their assault. The defence was legitimised by medical ‘experts’ like Dr. Norman Chever and Isidore B. Lyon. They contributed to nineteenth-century medico-legal discourse which theorised that Indian bodies had peculiar vulnerabilities, such as a diseased spleen from malaria fever, leaving them more susceptible to fatal injuries from even light kicking. After the enactment of section 45 of the Indian Evidence Act 1872, the opinions of these experts in murder trials were valued higher than the oral testimony of witnesses. As a result of colonial law institutionalising the “diseased-spleen defence”, Europeans who faced murder charges would only receive fines or short prison sentences. The pseudo-scientific defence proved more convincing than witnesses of a physical attack. Robert Fuller, a British lawyer, successfully relied on this defence when he fatally assaulted his groom, Katwaroo, for unpunctuality in 1875. Bailkin indicates that the defence contributed to the decline in criminal convictions against Europeans in India, from 78% in 1870 to below 45% by 1905.[13] Therefore, judges, juries and medical experts all contributed to a criminal justice system that protected and sustained white violence against ‘native’ populations.
Exceptional civil laws
The most insidious laws serving to enable violence in British India was ‘exceptional’ legislation targeted at supposedly violent racial groups. While martial law, police brutality, and injustice in the criminal justice system were explicitly violent against all ‘natives’, the Murderous Outrages Act 1901 (MOA), Thugee Act 1836, and Moplah Act 1854 were justified as strictly applying to specific groups of Indians branded as hereditary criminals. The legislation supposedly served a dual purpose. Firstly, to be used exceptionally as a counter-measure against sporadic attacks taking place on the fringes of British India. Secondly, to control the Punjab school’s established practice of summarily executing frontier ‘fanatics’ as revenge for Indian attacks on British soldiers.[14] The MOA granted officials wide-ranging powers to prosecute Muslims identified as ‘fanatics’ in the volatile North-West Frontier of India, much like the Moplah Act targeted the Mappilas of the Malabar Coast for their participation in agrarian revolts between 1835-1921. Under the MOA, any ‘fanatic’ who murdered or attempted to murder a European could be executed on the same day after appearing in front of a special tribunal and have all their property forfeited to the state. Both the Moplah Act and MOA aimed to deter Indian retaliation by incinerating Indian bodies, well aware that this was a violation of Muslim beliefs.[15] These laws directly served to enable violence in British India.
The MOA was particularly subject to manipulation. After being extended to Baluchistan, 40 executions and 16 outright killings were recorded between 1881-1905. In Punjab, there were 12 Indians executed and 8 outright killings between 1895-1905.[16] British officials abused the ambiguous definition of “fanatic” or “ghazi” and creatively applied it to a variety of crimes. True cases of religious fanaticism were rare, and officials were wilfully ignorant to the socioeconomic and political motivations for attacks. A notable example is Habib Nur, who attempted to shoot Captain Barnes of Charsadda in February 1931 to avenge the death of his father and uncle. Despite Barnes escaping assassination, Nur was executed two days later in a Peshawar jail under section 2 of the MOA for admitting to having religious motives for the attack.[17] A Government of India inquiry into the use of MOA highlighted the questionable and illegal application of the law by officials.[18] Originally associated with religious extremism, the MOA was later used against political revolutionaries and anti-colonial resistance in the 1930s. Therefore, as Condos summarises, “by couching the colonial state’s sovereign need to punish and kill within the language of the law, the MOA granted what was otherwise a brutal and fundamentally vindictive procedure the veneer of necessity and respectability and insulated British officers”.[19] Existential dangers on the British imperial frontier justified the creation of exceptional colonial legislation against specific racial groups, empowering officers to assume sovereign authority to punish and kill on a regular basis and to their discretion.
Conclusion
To conclude, colonial law served to directly and systematically enable the use of physical violence in Britain’s colonies. Whether in the more glaring figures of military officials, police and plantation managers, or the more subtle shadows of judges, juries, medical experts and racist exceptional laws, colonial law was a ubiquitous instrument of violence against ‘natives’ in all corners of the colony. Veiled by justifications of subduing ‘native’ or settler violence and maintaining order, colonial laws and their various actors worked in tandem to institutionalise racial difference, protect white criminals who assaulted and murdered ‘natives’, excuse massacres against ‘native’ populations, and legitimise violent coercion to sustain the colonial state. Much like its lethal laws, Britain masked its colonial agenda behind a veneer of legality. Laws which preached civility suffocated ‘native’ political dissent with the labels of criminal and ghazi. One may question whether police powers during the coronavirus outbreak, the UK’s criminal justice system, and terrorism legislation, are anachronisms of Britain’s colonial past.
Footnotes [1] Rande Kostal, A Jurisprudence of Power (Oxford: Oxford University Press, 2008), pp.12-14. [2] Nasser Hussain, The Jurisprudence of Emergency (Ann Arbor: University of Michigan Press, 2003), pp.99-100. [3] Martin Thomas, Violence and Colonial Order (Cambridge: Cambridge University Press, 2012), pp.212-216. [4] Ibid, pp.237-240. [5] Mark Finnane and Jonathan Richards, ‘“You'll get nothing out of it”? The Inquest, Police and Aboriginal Deaths in Colonial Queensland’, Australian Historical Studies, 35:123 (2004), pp.92-95. [6] Ibid, pp.100-101. [7] Elizabeth Kolsky, Colonial Justice in British India (Cambridge: Cambridge University Press, 2010), pp.148-149. [8] Ibid, p.151. [9] Ibid, pp.157-160. [10] Ibid, p.175. [11] Martin Wiener, An Empire on Trial (Cambridge: Cambridge University Press, 2009), pp.201-202. [12] Ibid, p.90. [13] Jordanna Bailkin, ‘The Boot and the Spleen: When was Murder Possible in British India?’ Comparative Studies in Society and History, 48:2 (2006), pp.476-481. [14] Mark Condos, The Insecurity State (Cambridge: Cambridge University Press, 2017), pp.151-153. [15] Ibid, pp.141-144. [16] Ibid, p.168. [17] Ibid, p.164. [18] Ibid, p.168. [19] Ibid, p.149.
Bibliography
Jordanna Bailkin, ‘The Boot and the Spleen: When was Murder Possible in British India?’ Comparative Studies in Society and History, 48:2 (2006): pp. 463-469.
Mark Condos, The Insecurity State: Punjab and the Making of British Colonial Power in India (Cambridge: Cambridge University Press, 2017).
Mark Condos, ‘License to Kill: The Murderous Outrages Act and the Rule of Law in Colonial India, 1867-1925’, Modern Asian Studies, 50:2 (2015), pp. 479-517.
Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003).
Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge: Cambridge University Press, 2010).
Elizabeth Kolsky, ‘The Colonial Rule of Law and the Legal Regime of Exception: Frontier “Fanaticism” and State Violence in British India’, American Historical Review, 120:4 (2015), pp. 1218-1246.
Rande W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2008).
Philip Dwyer and Amanda Nettlebeck (eds.) Violence, Colonialism and Empire in the Modern World (Cambridge: Palgrave Macmillan 2018).
Mark Finnane and Jonathan Richards, ‘“You'll get nothing out of it”? The Inquest, Police and Aboriginal Deaths in Colonial Queensland’, Australian Historical Studies, 35:123 (2004), pp. 84-105.
Martin Thomas, Violence and Colonial Order: Police, Workers and Protest in the European Colonial Empires, 1918-1940 (Cambridge: Cambridge University Press, 2012).
Martin J. Wiener, An Empire on Trial: Race, Murder, and Justice under British Rule, 1870-1935 (Cambridge: Cambridge University Press, 2009).
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