A JURISPRUDENCE OF POWER

Vol. 17 No. 2 (February, 2007) pp.162-165

A JURISPRUDENCE OF POWER: VICTORIAN EMPIRE AND THE RULE OF LAW, by R.W. Kostal. Oxford, Oxford University Press, 2006. 544pp. Hardback. £79.95/$140.00. ISBN: 0198260768.

Reviewed by Catherine Lane West-Newman, Department of Sociology, The University of Auckland, New Zealand. Email:l.westnewman [at] auckland.ac.nz.

This book elaborates and explores an historical episode where issues of legality and their testing through the judicial process were central to what transpired; in short where law was a significant element in the politics of empire. It does so in the manner pioneered by E.P. Thompson (in WHIGS AND HUNTERS and see Albion’s FATAL TREE) and subsequently employed to excellent effect by a number of legal historians, including the editor of this Oxford series, A. W. Brian Simpson. The incident known as the Jamaican suppression that here illustrates the centrality of law as a constraint on political power in the ‘modern English world-view’ (p.463) is well described in the author’s own words.

On 11 October 1865, a crowd of black men and women attacked and burned the courthouse at the southeastern vestry town of Morant Bay. The chief magistrate and seventeen other persons, most of them white men, were beset and killed as they fled. When apprised of these events, the Governor of Jamaica, Edward John Eyre, proclaimed martial law in the afflicted district, and dispatched regular soldiers and militia to put down the insurrection. This the soldiers did with vigour, killing and torturing hundreds of black Jamaicans – that is to say, British subjects – in the process (p.1).

The passage also serves to demonstrate an economical and vigorous writing style which, especially considering the length of this book, is an excellent thing.

Legal and political histories are usually, if one takes the time to trace them in intricate detail, found to be closely entangled. But, as the author in this case points out, the existing literature on the episode was extensive enough to be discussed in the book’s appendix on the historiography of the incident but had nowhere directly addressed this the particular conjunction. So, in A JURISPRUDENCE OF POWER, R.W. Kostal takes a moment in British colonial history and explores in depth and detail the way a debate about the uses and purpose of martial law and the political implications of events in Jamaica was played out through legal processes and learned and popular commentaries that formed a vehicle for debating broader issues of principle in British social and political life. Thus, he explores the concept of martial law in its legal, political, and ethical dimensions in the late 1860s. In so doing he also reminds us that, although the British Empire may no longer exist, the contemporary global political economy still offers examples of the same questions of freedom, coercion, legality, and control, not least in connection with the ‘war on terror.’ [*163]

This violent incident where, although resistance was crushed within a week, the ‘black population . . . was subjected to a protracted and calculated reign of terror’ (p. 13), was in fact simply one violence among many in the history of the British Empire; there were more than seventy during Queen Victoria’s reign alone (p. 462). The extended response to it, however, involved journalists, lawyers, judges, intellectuals (including Thomas Carlyle and John Stuart Mill), and politicians, and extended over several years. Their concern was activated not so much by the predicament of those tortured and executed in Jamaica as through the disquieting apprehension that the principles involved were also deeply relevant at home. The meaning and legal/constitutional status of events at Morant Bay highlighted a series of questions about the dangers of force used as a means of governance when it is operating, to use Kostal’s evocative phrase, ‘unharnessed from law’ (p.480). They set up a debate about the meaning and possibilities of a law of martial law, particularly in questioning whether under a declared state of martial law there was still a place for a constitutionally-based rule of law. Was martial law bound by the common law, or was it simply a ‘law of its own’ based entirely in the expedience of the moment? In that case, if martial law ‘curtailed the common law’ then it also ‘immunized officials from legal culpability’ (p.479). And, if this was indeed so, then could such ‘law’ also be applied to citizens of Britain itself when a perceived need arose?

Concerned by what they saw as a dangerous disconnection the Jamaica Committee, set up in redemptory mode by concerned citizens, and representing a ‘grand coalition of Christian activists and secular liberals’ including John Stuart Mill, took the affair to the courts where it was inevitably rendered into the pleadings, oral arguments, judicial declarations, and both scholarly and popular commentaries that constitute the discourse of law. This meant that lawyers and judges were taking on a task that politicians had not achieved – the reconciliation of empire’s conflicting desires for legality and absolute domination.

The means by which this matter came into judicial determination was curious. Private prosecutions for murder are not commonly used to determine constitutional law but in this case, having failed to persuade the Government to prosecute those involved in the killings as ‘criminal wrongdoers,’ this was the strategy pursued by the Jamaica Committee. The focus became the death of George Gordon, a landowner-politician of mixed ancestry and pale complexion. Although there was no suggestion that Gordon had taken part in acts of violence, he had been Eyre’s strongest political opponent. Charged with high treason and sedition, he was publicly executed in symbolic fashion by hanging from the central arch of the ruined courthouse. The three unsuccessful prosecutions brought against Governor Eyre for the murder of George Gordon involved some of England’s most senior lawyers, judges and legal scholars whose writings and [*164] pronouncements are described in detail over several chapters.

Nor were prominent conservative lawyers and thinkers silent throughout this process. Seeing an issue of policy and principle vigorously pursued through interpretations of legality, they responded through journalistic commentary and legal scholarship. The prime figure in the latter was William Francis Finlason, a barrister who was also a legal reporter for The Times. Kostal describes his TREATISE ON MARTIAL LAW AS ALLOWED BY THE LAW OF ENGLAND IN TIME OF REBELLION as ‘often convoluted, sloppily edited, and tediously repetitive’ (p.228). It was also the most comprehensive analysis of martial law ever written in English and blatantly political in purpose. Emphasizing the extreme danger of insurrection in any parts of the empire Finlason located martial law in the exigencies of law – not only the controlling of outbreaks of rebellion but also their prevention. He argued that in a rebellion there can be no neutrality. ‘Every person in the field not acting in direct aid of the forces of the Crown was ‘rightly and necessarily regarded as the enemy’ (p.235). Martial law was not law in the ordinary sense at all; it was expediency for, in Finlason’s own words, it ‘operates chiefly by the terror of summary military executions, and by the rigid restraints of military discipline’ (p.235). Summary executions without trial were justified by a utilitarian calculus.

The majority of public opinion supported the conservative point of view, generally in agreement with Finlason, the political realist, that ‘in much of the empire the white master class was hated as much as it was outnumbered. Ultimately, British rule over masses of black and uncivilized peoples depended less on consent than on coercion and, even more crucially, on the omnipresent threat of coercion’ (p.256). Although it required an acceptance of the ‘tenets of terror,’ if these were necessary for the maintenance of empire then that price must be paid – by imperial subjects in blood and suffering and by English liberals through the diminution and compromise of freedom under the rule of law. An interesting sidelight on this is Karl Marx’s view of the debate and his unsympathetic characterization of the liberal distress and concerns over the Jamaica suppression, which, in a letter to Engels, he described as evidence of their ‘utter turpitude’ (p.479).

Through this thoughtful tracing of the effects of just one of the hundreds of violent episodes that form the history of the British Empire on the political and legal fabric of imperial power, much wider questions about the limits of permissible force in pursuit and maintenance of national political interests in countries other than one’s own come into clear focus. For scholars of law and politics this can only be a good thing. The book makes excellent and thought-provoking reading, not least as a prompt to recognition that the moral perils of empire in the nineteenth century look remarkably like the moral perils of global hegemony today.

The level of detail, presented in around 500 pages, means however that for [*165] teaching purposes some distillation of its key ideas and evidence would almost certainly be needed. Kostal notes that surprisingly for a 500-page legal treatise, Finlason’s book was widely read and discussed at the time. Unfortunately, it seems likely that potential readers in general and students in particular have more claims on their time and interest now than were available at that time. Nor do the prospects for a wider recognition of law’s centrality in Victorian history look promising; the book’s appendix on the Jamaica Controversy as historiography ends with the author’s regret that the newest edition of the OXFORD HISTORY OF THE BRITISH EMPIRE ‘almost entirely overlooks legal ideas, events, and variables’ (p.501). Since Kostal’s arguments for their recognition are insightful, persuasive, and of real scholarly merit, one hopes the setback is only temporary.

REFERENCES:

Hay, Douglas (ed). 1977. ALBION’S FATAL TREE: CRIME AND SOCIETY IN EIGHTEENTH-CENTURY ENGLAND. Harmondsworth: Penguin.

Thompson, Edward P. 1977. WHIGS AND HUNTERS. Harmondsworth: Penguin.

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