Crime and Empire 1840 - 1940

Barry Godfrey, Graeme Dunstall

• Publisher: Willan
• Year: 2013
• eBook ISBN: 9781134009381
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book is a major contribution to the comparative histories of crime and criminal justice, focusing on the legal regimes of the British empire during the nineteenth and early twentieth centuries. Its overarching theme is the transformation and convergence of criminal justice systems during a period that saw a broad shift from legal pluralism to the hegemony of state law in the European world and beyond.

Chapter 1

Crime and empire: introduction

Graeme Dunstall and Barry S. Godfrey

This book offers a contribution to the comparative histories of crime and criminal justice within the legal regimes¹ of the British empire during the nineteenth and early twentieth centuries. An overarching theme is the transformation and convergence of criminal justice systems during a broad shift from legal pluralism to the hegemony of state law in the European world and beyond. In this context, the essays present a variety of approaches, ranging from ‘global’ discussions to local case studies, and reflecting current criminological, historiographical and post-colonial issues.

Significant changes in European criminal justice systems during a ‘long’ nineteenth century are the focus of Clive Emsley’s essay. Within empires and nation states, a multiplicity of legal codes and infra-judicial methods were largely superseded by uniform (often Napoleonic) codes, new and increasingly centralised prison and policing systems, and changing perceptions of criminals and explanations of criminality. Clearly the degree and effect of transformation and convergence in legal regimes varied within Europe according to local traditions and political circumstances. Within the United Kingdom, for example, neither the English nor Scottish common law systems of criminal law were codified, although much of English penal law was consolidated in statutes by the mid-nineteenth century. In terms of the three types of policing systems that were present in France and which became common on the Continent (Emsley, 1999), Ireland had only a gendarmerie (the Royal Irish Constabulary), Scotland had only municipal civilian (borough and county) forces, while England had a state civilian force (the London Metropolitan police) and municipal civilian forces, but lacked a gendarmerie. England’s relatively decentralised policing system did not imply a weak state, however (Phillips, 2004). By contrast with the English experience, infra-judicial methods of resolving offences and disputes remained much more significant in parts of southern Europe, notably Corsica and Sicily, and epitomised the French and Italian states’ weakness in those regions.

Until the mid-twentieth century at least, the dominant view of the changes in English (and more broadly European) criminal law, policing and punishment was that they were (in Emsley’s words) ‘progressive and increasingly driven by humanitarianism and rationality’. Certainly, as Sarah Anderson’s exegesis of a mid-Victorian English novel suggests, contemporaries who exposed the abuse of prisoners could still believe in the potential of professionally administered and centrally controlled institutions to be humane and reforming. However, as John Pratt’s historiographical discussion of punishment shows, the traditional accounts of benign motives and improved conditions came to be challenged by others who critiqued in a variety of ways the intentions and outcomes of nineteenth-century European penal reform.

European imperialism saw the transfer of legal codes, and policing and punishment systems, to a wider world as part of the processes of colonial state-building. In fact, the transition from legal pluralism to the hegemony of colonial state law was generally a slow and often incomplete process in the many and varied contexts of the British empire (Benton, 2002; Mommsen and De Moor, 1992; Mann and Roberts, 1991). Colonial law, and more particularly the European concept of the rule of law, could be (and was) a key coercive instrument in the dispossession and subjugation of the colonised to the authority of the colonial state. But law (and the ideology of the rule of law) could also be a resource for the colonised in their disputes among themselves and with the colonisers; it could be a mechanism for protection, resistance, adaptation and collaboration (Mann and Roberts, 1991: 3, 35; Benton, 2002: 254–60; Ward, 1995; cf. Kelsey, 1984). In assessing the nature of British authority in the colonial context – and how far the ‘customary’ law, policing and punishment practices of the colonised were adopted, modified, transformed or superseded by British law and institutions – a broad distinction can be made between an empire of dominion (involving imperial authority over a non-British population and where legal pluralism was relatively strong) and white settlement colonies – notably Australia and New Zealand where settler self-government was achieved during the 1850s and legal pluralism was officially discountenanced.

Legal pluralism, allowing a role for Hindu and Muslim law, can be seen to have been a key strategy of British rule in India. Nonetheless, from the late eighteenth century, there was growing British control over the content and administration of criminal law – with the principles of English criminal law being eventually embodied in the Indian Penal Code and Code of Criminal Procedure of 1860 and 1861 respectively, and with the development of varied provincial policing systems where British gendarmerie and state civilian models were adapted and superimposed on local village watchmen (Benton, 2002: 127–52; Kolff, 1992; Robb, 1991; Arnold, 1986: ch. 1). How far then did the British adopt and transform preexisting Indian law? Jane Buckingham assesses the debate with reference to the British control in the early nineteenth century of sati and samadh – Hindu practices of suicide by widows and leprosy sufferers. She concludes that the British relied on Brahmanic and local royal precedent as the basis for their intervention, as well as pragmatism in balancing their control over life and death with the need to maintain their hold on power.

Evolving ideas about Indian society further shaped the nature of criminal law and policing as the British sought to establish tighter control over the countryside, and especially in the ‘frontier’ areas of north India. In this context Mark Brown examines the developing concept of hereditary criminal communities and policies for their containment and control which were codified in the Criminal Tribes Act 1871. Here the ambit of colonial state law moved beyond that of the metropolitan centre in criminalising groups and extending criminal responsibility and punishment beyond individuals. More broadly, Brown considers how the criminal tribes policy contributes to an understanding of current developments in penal theory and the nature of colonial governance.

Ultimately the criminal tribes policy demonstrated a fundamental ambiguity of the British rule of law in the colonial context, with some groups being viewed as simultaneously ‘outside’ the law and yet subject to coercion (including lethal violence) justified by it. There are parallels with the position of Aborigines (especially when construed as ‘savage tribes’) on the expanding frontiers of the British settlement in Australia. Seeing violence against Aborigines as part of the process of their dispossession, Mark Finnane critiques the historiographical assumptions underpinning claims in a recent controversial account by Keith Windschuttle (2002) that such violence has been exaggerated and misinterpreted by historians. Using South Australia as her case study, Julie Evans discusses how the introduction of the rule of law in white settler colonies depended upon its abrogation in favour of ‘martial law’ and summary justice where necessary to secure the effective assertion of state authority. Accordingly, as Evans comments, Aborigines (and, we can add, Indian and Maori ‘tribes’) could be construed as both enemies (or ‘rebels’) and criminals, subject to both warfare and punishment, and to the ‘murky legality’ of martial law.

In New Zealand from 1840, Maori looked to maintain their rangatiratanga (autonomy) in the face of rapid Pakeha (European) colonisation and the advent of a colonial state. Richard Hill discusses the ongoing quest for rangatiratanga and the variety of strategies adopted by Maori which are revealed by their involvement in, or resistance to, various systems of state policing – ranging from gendarmeries to co-opted Maori institutions. Indeed the nature and degree of Maori involvement in mid-nineteenth-century colonial policing stands in contrast to that of Aborigines in Australia (Finnane, 1994: ch. 4). From the outset of the New Zealand colonial state, an official policy of racial ‘amalgamation’ was pursued with varying degrees of intensity. There were few concessions to the practices and oral traditions of Maori customary law which the British saw as uncivilised by comparison with the written texts of Hindu and Muslim law. Nonetheless, the limited coercive power of the early colonial state meant that a weak legal pluralism persisted in Maori-dominated areas until the 1880s. The ending of any state concessions to Maori viewpoints in judicial practices and policing was apparent by the 1890s when Maori assessors lost the right to assist the Pakeha (European) magistrates, and there were no longer any Maori as full members of the state civilian police force (Ward, 1995: ch. 21).

Codification of criminal law in the Australasian colonial states during the 1890s epitomised the formal erasure of legal pluralism; it also reflected the developing independence of colonial legal regimes. Jeremy Finn examines the varied parliamentary histories of the process which ranged from failed attempts to the rapid enactment of Criminal Codes, especially where there were influential lawyers, strong parliamentary leadership and self-consciously progressive governments willing to act in advance of England. In so doing, the Australasian codifiers looked not just to their counterparts in England, but also elsewhere in the empire and beyond.

A similar pattern of emulation among adjacent colonies occurred in Australasian variants of British models of policing. There were common nineteenth-century developments in each state: from local police directed by magistrates to one government-controlled force; from gendarmeries to state civilian police; and with the co-option of Aborigines and Maori to fight in racial conflicts being followed by their elimination from state policing once the frontiers had been pacified (Finnane, 1991, 1994; Hill, 1991). Between 1858 and 1899, however, Tasmania was an exception to these trends. In his essay, Stefan Petrow examines the state’s reversion from a centralised gendarmerie to a decentralised English model of municipal civilian forces, and then its return to the antipodean norm by the 1890s of a state civilian force. From the beginning of the twentieth century, an enthusiasm for technical innovations – notably fingerprinting and motorised wireless patrols – revealed another pattern of emulation. Focusing in his chapter on the early adoption of new technologies in Melbourne, Dean Wilson sees a fundamental shift in the symbolic dimension of policing in Australasia as well as the United States and Canada during the early twentieth century: the hitherto defining image of the beat constable was surpassed by new symbols of techno-scientific policing.

Albeit belatedly and in a piecemeal fashion during the first two decades of the twentieth century, Australian and New Zealand prison systems followed European and North American developments in penology (Finnane, 1997: ch. 3; Pratt, 1992: ch. 5). In particular, separate prisons for women were established in Victoria (1894), New South Wales (1908) and New Zealand (1913), with the proponents of the last two institutions looking to adopt the regime of the Massachusetts Reformatory Prison for Women opened in 1877. Here, Anna McKenzie examines the thinking of New Zealand’s Minister of Justice in proposing a women’s reformatory, and the gap between his aspirations and the outcomes for female inmates. In effect, the separate institution did not represent a significant advance from the earlier separate divisions for women in prisons created for men.

The South African War between Britain and the Boer Republics led to a very different confinement of Boer women and children in concentration camps. These were meant to control and regulate rather than punish a population displaced by British military policy. However, Boer women’s testimonies present traumatic experiences of hardship and death as the product of a British genocidal policy. In reassessing these testimonies, Helen Dampier argues that they ignore the ‘everyday life’ of the camps and misrepresent British intentions for nationalist political purposes. In this instance, those subjugated by imperial power constructed narratives which would dominate the subsequent historiography.

Overall, the criminal justice systems that developed in the British settler colonies during the nineteenth century broadly mimicked the English system in ideology and practice. The degree of institutional convergence suggests that the colonial experience of crime and crime control can be compared with that in England. Recent analyses have noted, for example, a parallel late nineteenth-century decline in national rates of recorded violence in Australasia and England (Godfrey, 2003; Dunstall, 2004). Looking to make more wide-ranging subnational comparisons, Barry Godfrey and Graeme Dunstall report their preliminary findings on trends for violence, drunkenness and offences against property in two rapidly developing new towns in England and New Zealand.

In her chapter, Catharine Coleborne considers the potential of post-colonial theory and methodology to provide different ‘ways of seeing’ and ‘doing’ transnational legal historical scholarship in the Australia-Pacific region. She considers that the post-colonial framework enables a sharper focus on: racial distinctions and exclusions, on the gendering of criminality and its regulation, and on the nature of the colonial archives – their biases and omissions in presenting a record for reconstructing the complex sets of relations between the colonised and the colonisers.

Ultimately, the post-colonial approach suggests the need for multiple histories in the comparative study of crime and criminal justice within the context of empire. That remains to be done.

Note

1. This phrase is borrowed from Lauren Benton whose interpretation of ‘global legal regimes’ informs this discussion (Benton, 2002).

References

Arnold, D. Police Power and Colonial Rule: Madras 1859–1947. Oxford University Press, 1986.

Benton, L. Law and Colonial Cultures. Cambridge University Press, 2002.

Dunstall, G. ‘Frontier and/or cultural fragment? Interpretations of violence in colonial New Zealand’, Social History, 29, 1, 2004, pp. 59–83.

Emsley, C. ‘A typology of nineteenth-century police’, Crime, histoire & sociétés/Crime...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Contents
• Foreword by carolyn
• Notes on the editors and contributors
• Acknowledgements
• 1. Crime and empire: introduction
• 2. The changes in policing and penal policy in nineteenth-century Europe
• 3. Explaining the history of punishment
• 4. Crimes of violence, crimes of empire?
• 5. Colonialism and the rule of law: the case of South Australia
• 6. Colonial history and theories of the present: some reflections upon penal history and theory
• 7. Crime, the legal archive and postcolonial histories
• 8. Traces and transmissions: techno-scientific symbolism in early twentieth-century policing
• 9. The English model? Policing in late nineteenth-century Tasmania
• 10. The growth of crime and crime control in developing towns: Timaru and Crewe, 1850–19201
• 11. (Re)presenting scandal: Charles Reade’s advocacy of professionalism within the English prison system
• 12. ‘Saving our unfortunate sisters’1? Establishing the first separate prison for women in New Zealand
• 13. Maori police personnel and the rangatiratanga discourse
• 14. ‘To make the precedent fit the crime’: British legal responses to sati in early nineteenth-century north India
• 15. ‘Everyday life’ in Boer women’s testimonies of the concentration camps of the South African War, 1899–1902
• 16. Codification of the criminal law: the Australasian parliamentary experience
• Index