Law lay at the heart of the British imperial enterprise, and criminal justice was at the core of law. Even more than other areas of law, criminal law – with its sanctions of corporal punishment, imprisonment and death – was deeply political. Historians have argued that criminal law was a key coercive instrument in the dispossession and subjugation of the colonized, a disciplinary tool of social control used to ‘civilize’ subject populations and eradicate ‘primitive’ cultural practices like sati or witchcraft ordeals. Others have argued that criminal law became a resource for anti-colonialism to challenge the violence of colonialism itself, and for disputes between the colonized themselves. As Kolsky and Wiener have recently argued in regards to India however, criminal law in the British Empire was neither fully benevolent nor fully despotic, constrained by race and inequality in one direction, and constitutionalism and an ideological adherence to the rule of law in the other. The figuration of criminal law was a result of dialogical tensions between ‘civilization’ and ‘violence’ within colonial and imperial governance.
In white settler colonies, the long nineteenth century was marked by a gradual switch from legal pluralism to the hegemony of state law, as with the codification of criminal law in Australasian colonial states in 1890s. The introduction of the ‘rule of law’ in settler colonies however was interrupted by its episodic abrogation in favour of ‘martial law’ and ‘summary justice’ to secure effective authority against rebellious subject populations. Aboriginal and Maori communities consequently found themselves construed as both rebels and criminals, subject to warfare and punishment. Legal pluralism, allowing a role for Hindu and Muslim law, was similarly key to strategies of rule in India, but even there from late eighteenth there was growing British control over content and administration of criminal law, with the promulgation of the Indian Penal Code in 1860: a simplified, codified version of common law, it was held to be less legalistic and more suitable for application in the field by administrative officers. As colonial rule expanded, criminal law and justice was adapted to suit local needs, with the Criminal Tribes Act of 1871 developing the concept of hereditary criminality and criminalized entire ethnic groups as the British fought to gain control of the frontier districts of Northern India.
In Africa, criminal law was very much a product of the imperial project: the Indian Penal Code ran in East Africa until 1929 and in Sudan until independence; Southern African colonies were influenced by Romano-Dutch law in South Africa; criminal codes in West Africa were based on Caribbean models. Some colonies like the Gold Coast even had multiple legal jurisdictions in the same territory. Notionally, English law as exported to the colonies was based on equality and impartiality, but as colonial rule was founded upon racial dominance and economic hegemony these principles were absent or ambiguous in local legal codes. In Africa, criminal justice was based on received English common law but ‘customary law’ was also to be incorporated into judgements in cases involving Africans were it was deemed ‘not repugnant to justice or morality’, rendering Africans subject to both customary and colonial law, as citizens and subjects of empire. Islamic law also ran in Muslim dominated territories like Northern Nigeria and Zanzibar. For those brought before the courts, criminal law defined the colonized as an individual with inalienable rights, but also as subject to the disciplinary apparatus of the state.
Criminal justice in the early colonial period in Africa was focused on pacification and the establishment of colonial political, social and economic frameworks. This was followed by a widespread criminalization of indigenous life, custom and labour: the Tswana of Bechuanaland referred to colonial cultures of legality as ‘the English mode of warfare’ which reduced ‘human beings to bits of paper’. The law however was marked in practice by tensions between ‘customary’ and British understandings of crime, law and justice. Against a background of economic depression and the introduction of ‘Indirect Rule’, the inter-war period became marked by the expansion of categories of criminality and the professionalization of legal systems. Whilst most legal officers promoted ‘due process’, insisting that the strict application of British justice with full equality before the law for all British subjects was the best way to protect the rights and lives of colonized peoples, colonial administrators tended to prefer a more pragmatic ‘administrative justice’ which took African mentalities and the weaknesses of colonial infrastructure into account – ignoring laws of evidence, allowing hearsay statements, or allowing blood-money in compensation during criminal trials. In the decolonization era, particularly after the Second World War, colonial development and welfare policies necessitated a reframing of criminal justice towards a more reformist, rehabilitative system, marked by modern penal technologies and legal frameworks. This rhetoric of reform however masked the reality of continued violence, violence which increased in the face of anti-colonial and nationalist agitation from sedition laws and political imprisonment in the Gold Coast to States of Emergency in Kenya and Central Africa. Criminal law in the British Empire was essentially pragmatic and contingent, driven primarily by the necessities of maintaining colonial authority, but it was also shaped by the wider political, legal and moral economies of empire.
At an imperial level, the Judicial Committee of the Privy Council was striking reluctant to grant leave to appeal in criminal cases. The granting of special leave to appeal in criminal cases from across the Empire had been accepted since 1867, but only where a clear departure from the requirements of justice existed or where ‘by a disregard of the forms of legal process, or by some violation of the principles of natural justice or otherwise, substantial or grave injustice has been done’, robbing the accused of a fair trial and the protection of the law [Dillet’s case (1887), 12 App Case, 459; Clifford v. King Emperor(1913), LR 40 Ind App, 241]. The justification for the Privy Council’s reluctance to act as a court of criminal appeal was largely Benthamite: the law lords had long felt that if criminal appeals were allowed, appeal would be sought as a matter of course and would be ‘entirely destructive of the administration of all criminal jurisprudence’, overcrowding the court and leading to a gross delay in sentences being carried out, which in capital cases would lead to ‘miserable suffering’[R. v. Eduljee Byramjee (1846), 5 Moo. P.C. 289-91; R. v. Bertrand(1867), LR, 1 PC, 520-30]. However, in order to ensure the due administration of justice, it was acknowledged that appellate jurisdiction in criminal cases must fall to the Privy Council and hearing applications for special leave to appeal in capital cases became an accepted, if unpopular, part of Privy Council business by 1940s as criminal justice became increasing politicized in the decolonization era.
Godfrey, Barry & Graeme Dunstall (eds.), Crime and Empire, 1840-1940: Criminal Justice in Local and Global Context (Cullompton: Willan Publishing, 2005).
Howell, Peter Anthony, The Judicial Committee of the Privy Council, 1833-1876: Its Origins, Structures and Development (Cambridge: Cambridge University Press, 1979).
Kolsky, Elizabeth, Colonial Justice in British India (Cambridge: Cambridge University Press, 2010).
Merry, Sally Engle, ‘Law and Colonialism’, Law and Society Review, 25 (1991), 896.
Singha, Radika, A Despotism of Law: Crime and Justice in Early Colonial India (Delhi, 1998).
Wiener, Martin, An Empire on Trial: Race, Murder and Justice under British Rule, 1870-1935 (Cambridge: Cambridge University Press, 2009).