Honourable Intentions?

Violence and Virtue in Australian and Cape Colonies, c 1750 to 1850.

Penny Russell, Nigel Worden, Penny Russell, Nigel Worden

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317269397
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Honourable Intentions? compares the significance and strategic use of 'honour' in two colonial societies, the Cape Colony and the early British settlements in Australia, between 1750 and 1850. The mobile populations of emigrants and sojourners, sailors and soldiers, merchants and traders, slaves and convicts who surged into and through these regions are not usually associated with ideas of honour. But in both societies, competing and contradictory notions of honour proved integral to the ways in which colonisers and colonised, free and unfree, defended their status and insisted on their right to be treated with respect. During these times of flux, concepts of honour and status were radically reconstructed.

Each of the thirteen chapters considers honour in a particular sphere - legal, political, religious or personal - and in different contexts determined by the distinctive and changing matrix of race, gender and class, as well as the distinctions of free and unfree status in each colony. Early chapters in the volume show how and why the political, ideological and moral stakes of the concept of honour were particularly important in colonial societies; later chapters look more closely at the social behaviour and the purchase of honour among specific groups. Collectively, the chapters show that there was no clear distinction between political and social life, and that honour crossed between the public and private spheres.

This exciting new collection brings together new and established historians of Australia and South Africa to highlight thought-provoking parallels and contrasts between the Cape and Australian colonies that will be of interest to all scholars of colonial societies and the concept of honour.

1Defining and defending honour in law

Kirsten McKenzie

How might historians pin down that slippery concept known as honour? The judicial realm appears to hold out a promise of clarity through its rulings on questions relating to a victim’s injured reputation and its judgements on the remedies required of those found guilty. Defamation law (alongside other relevant torts such as seduction and breach of promise) is explicitly designed to deal with behaviour alleged to reduce the esteem in which a community holds the injured party.¹ The determination of cases and the calculation of damages take into account both the defamatory nature of the offence and the manner in which the plaintiff was previously regarded by the wider community. Since these legal frameworks place significant emphasis on the community as audience, court procedures are bound to illuminate historically specific mores and attitudes.² They also throw up patterns of plaintiffs and defendants, which serve to reveal whose honour was vulnerable, and who, or what, might threaten the honour of particular individuals in particular contexts. All these elements have made the courts a productive line of enquiry for historians interested in broader questions of status and reputation.

As these historians have long recognised, however, any vision of a concrete legal system providing a way through the messy reality outside the courtroom will quickly prove a mirage. Court proceedings are always subject to particular constraints in their creation and meaning. While the law is never removed from society, the records it generates cannot be read as straightforward reflections of how individuals thought about themselves and their injured honour. Adversarial court systems and legal definitions influence the tactics of argument. Intimidating surroundings, strategic narrative choices by litigants and the impact of legal expertise are all in play. In the context covered by this chapter, an extra layer of complexity must also be added to these caveats. The Cape and the Australian colonies went through significant upheavals in their judicial structures in the first decades of the nineteenth century, upheavals that had important implications for the way in which honour was defined and defended in law. Disputes over the legal definitions of honour in this period, therefore, ranged from the quotidian levels of interpersonal relations to the heights of constitutional reform. In exploring these contestations, I seek to move towards some working understandings of how reputation operated across these particular colonial landscapes in a moment of profound judicial transition.

This chapter begins with a brief introduction to the legal landscapes that distinguished the Cape from the Australian penal colonies across the first half of the nineteenth century. The remainder of the chapter focuses more specifically on cases heard before the superior courts in Sydney and Cape Town, tracking the contested legal parameters of honour through three registers. In the first place it considers the distinction between civil and criminal cases of defamation. The chapter then turns to the question of monetary compensation to explore the changing degree to which honour was commodified under the law. The final section draws upon cases of seduction and breach of promise of marriage to open up a discussion of the disjuncture between legal and community ideas of how honour should be restored. While we can never draw a clear line between the genuine beliefs of litigants and the strategic arguments they used to win legal disputes, disjunctures such as these can prove illuminating on how this was negotiated. All three lines of enquiry highlight significant differences between the two colonial contexts. Nevertheless, they also demonstrate the degree to which these differences were eroding over this period.

***

One of the key legal differences between the Cape and the Australian colonies was that the British recognised the former as a colony of conquest. This meant that the Cape retained its Roman-Dutch civil law system, parting ways with its original imperial overlord when the Napoleonic Code was adopted in the Netherlands in 1809.³ An extensive parliamentary commission of inquiry in the 1820s ultimately failed to recommend the wholesale adoption of English common law at the Cape, despite the personal opinions of the Commissioners themselves. Nevertheless, following the passage of a new Charter of Justice in 1828, wide-reaching changes fundamentally altered the judicial landscape, which resulted ultimately in South Africa’s current mixed legal system.⁴

New South Wales and Van Diemen’s Land presented a different set of challenges to the practice of English common law in a colonial context. The prior sovereignty of Australia’s indigenous inhabitants was not recognised, and their position under British law remained a vexatious problem.⁵ There was also the complication of New South Wales and Van Diemen’s Land being penal colonies, especially as the free settler population increased in size in both places across the 1820s and 1830s. As Blackstone’s Commentaries on the Laws of England expressed it, ‘if an uninhabited colony be discovered and planted by English subjects, all the English laws then in being, which are the birth right of every subject, are immediately there in force.’⁶ ‘But’, Blackstone went on, ‘this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony.’⁷ How then, should this ‘situation’ be defined? According to the British legal doctrine of ‘felony attaint’, convicts who had been transported in lieu of a death sentence were immediately dead in law. They could not give evidence or sue in court, and their goods were forfeit to the Crown. Yet applying these principles in penal colonies, especially in the early decades when the majority of the settler population was still subject to them, was unworkable. The paradox of sites of punishment coexisting with ventures of colonial expansion was evident almost from the start. Within months of the British arrival in 1788, two Sydney convicts successfully brought a civil action against a ship’s master for the recovery of their missing luggage. David Collins (a marine officer acting as judge advocate of the fledgling colony) ignored felony attaint, and the court awarded Henry and Susannah Kable £15 for the loss of their goods. From the very outset, therefore, convicts had rights in New South Wales that they did not possess under English law. This was not the end of the legal wrangling, however. The eventual reconciliation of English law and colonial practice would unfold across decades of controversy. Key struggles took place around the question of whether emancipated convicts had the right to sit on juries or act as Justices of the Peace; both rights involved concrete power and the recognition of honourable status.⁸

The Cape and the Australian colonies, therefore, presented particular challenges to incorporation into a British legal order. Administrative responses to these challenges saw large-scale judicial reforms take place across the 1820s. New Supreme Courts were established and judicial and executive power became more firmly separated. The transition impacted countless aspects of colonial life. In the rest of the chapter, I turn to three areas where they influenced legal definitions of honour.

***

Criminal libel rested upon the perceived relationship between political order (it was necessary to prove a breach of the peace) and the personal reputation of public officials. Thus criminal and seditious libel actions offer the possibility of tracking ideas of honour through the formal political and constitutional realm because of the way they police the interface between freedom of expression and state security. Under English law, as historian William Wickwar explains, criminal libels were ‘distinguished as defamatory, obscene, blasphemous, or seditious libels, according as they treated of personal, sexual, religious, or political matters’.⁹ They were frequently employed for political purposes until the beginning of the nineteenth century, and were enthusiastically taken up in the Australian colonies, particularly by colonial governors in the 1820s and 1830s, who faced a fractious press promoting the political interests of emancipated convicts. By contrast, actions for criminal defamation were rare at the Cape, and indeed in Roman-Dutch law more generally.¹⁰ As the chapter by Teun Baartman demonstrates, however, such disputes could play out in a variety of registers, leading to significant controversies. The differences between English and Cape legal responses to criminal libel were highlighted by a series of scandalous cases in the 1820s, brought against its critics by the British administration under Lord Charles Somerset. As a misdemeanour (rather than a felony) those convicted of criminal libel under English law faced a fine and imprisonment. Criminal libel was not a transportable offence, a prominent element in the controversy over the Cape cases of the 1820s that highlighted the confused legal parameters of the colony in the years immediately before the 1828 Charter of Justice.¹¹

In bringing such cases against their critics in the first decades of the nineteenth century, governors at the Cape and in the Australian colonies were out of step with political practice in Britain, where the pitfalls of bringing cases of criminal libel had become increasingly evident. In the absence of press censorship, charges of seditious libel had been a key strategy against English dissidents in the late eighteenth and early nineteenth centuries, and the judicial system was used to harass them as far as possible even if a trial did not eventuate. Yet libel trials remained a gamble and could ironically provide a useful venue for the defendant’s political agenda to be publicised. After Fox’s Libel Act of 1792 it was up to the jury rather than the judge to decide on whether the printed matter in question had a tendency to provoke a breach of the peace, making the case potentially more vulnerable to shifting public opinion. As historian Philip Harling argues, ultimately ‘the uncertainty of language doomed the crown lawyers to failure, because they had too much difficulty convincing juries that what they called libels were indeed libellous’.¹² The notorious Six Acts, passed by the British parliament in 1819 with the intent of cracking down on popular radicalism, included both the Blasphemous and Seditious Libels Act, and the Publications Act. But it was the latter, which imposed taxes on publications to make them less profitable, that soon proved decisive in the state’s battle against dissent. The harsh penalties for criminal libel laid down in the former act were largely a dead letter because courts refused to impose them.¹³ By the time that a spate of libel trials were being prosecuted against the Cape and Australian press in the 1820s and 1830s there had been a dramatic decline in the use of seditious libel prosecutions in English law, a decline prompted less by political tolerance than by a recognition of the actions’ tactical disadvantages.¹⁴ This shift in the metropolitan political landscape underscored arguments that colonial constitutions were becoming increasingly anachronistic.

The 1820s and 1830s saw a series of pitched battles over the freedom of the pre...

Table of contents

• Cover
• Half Title
• Series Information
• Endorsement
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures
• Notes on contributors
• Introduction: Honourable intentions?
• 1 Defining and defending honour in law
• 2 The Honourable Company: VOC rule at the Cape
• 3 Honourable colonisation? Australia
• 4 Honour and religion in the Cape Colony
• 5 Honour, information and religion: New South Wales, 1780s–1850s
• 6 The politics of burgher honour in the Cape Colony, 1770s–1780s
• 7 Honour and liberal governance in the Australian and Cape colonies, 1820s–1850s
• 8 Defending honour in Dutch Cape settler society
• 9 Defending honour in Australian settler societies
• 10 Honour among slaves and indigenous people in the Cape Colony
• 11 Honour among convict and Aboriginal men in 1820s New South Wales
• 12 Honour, morality and sexuality in the eighteenth-century Cape Colony
• 13 Honour, morality and sexuality in nineteenth-century Sydney
• Index