by Philip Dwyer
21.Fourniau, Vietnam, 468.
22.SHD 10 H 19, Dossier 7, 13–15. On Dê Tham, see Marr, 73–74; Michael P.M. Finch, A Progressive Occupation?: The Gallieni-Lyautey Method and Colonial Pacification in Tonkin and Madagascar, 1885–1900 (Oxford: Oxford University Press, 2013), 159–162; Claude Gendre, Le Dê Thám (1846–1913): Un résistant vietnamien à la colonisation française (Paris: L’Harmattan, 2009).
23.SHD 10 H 18 Dossier 1, 51–52.
24.SHD 10 H 19, Dossier 7, 15; Joseph Gallieni, Trois colonnes au Tonkin (Paris: Librairie Militaire R. Chapelot, 1899), esp. 36, 156; Joseph Gallieni, Gallieni au Tonkin (1892–1896) par lui-même (Paris: Berger-Levrault, 1941), 183–212; Louis-Hubert Lyautey, Lettres du Tonkin et de Madagascar (1894–1899) (Paris: A. Colin, 1920), T. 1, 112; T. 2, 51; Finch, 116–167.
25.SHD 10 H 19, Dossier 7, 22. Lyautey and other officers derided this as a ‘pseudo-submission’. Lyautey, T. 1, 250; Mordacq, 6.
26.See the reports in France, Archives Nationales d’Outre-Mer (Aix-en-Provence), Gouvernement Générale d’Indochine, 6142–6164.
27.Fourniau, Vietnam, 721, 742; Kawamoto Kuniye, ‘The Viet-Nam Quang Phuc Hoi and the 1911 Revolution’, 115–127 in Etō Shinkichi and Harold Z. Schiffrin, The 1911 Revolution in China: Interpretive Essays (Tokyo: University of Tokyo Press, 1984); Barlow, 29–40.
28.Gendre, 87–91.
29.SHD 10 H 18 Dossier 2, 30–32.
30.SHD 10 H 18 Dossier 2, 33.
31.Michael G. Vann, ‘Fear and Loathing in French Hanoi: Colonial White Images and Imaginings of “Native” Violence’, 52–76 in Martin Thomas (ed.), The French Colonial Mind, Vol 2: Violence, Military Encounters, and Colonialism (Lincoln: University of Nebraska Press, 2011); Marr, 134, 181, 193–194; Fourniau, Vietnam, 704–705.
32.SHD 10 H 18 Dossier 2, 44–48.
33.SHD 10 H 18 Dossier 2, 49–52.
34.SHD 10 H 18 Dossier 2, 53–55.
35.SHD 10 H 18 Dossier 2, 36. See also Gendre, 145–150; Chack, 208–236; Fourniau, Vietnam, 717–720.
36.SHD 10 H 18 Dossier 2, 37–38.
37.SHD 10 H 19, dossier 1, 188–215.
38.Marr, 234–235.
39.Gallieni, Trois colonnes, 34, 146; Lyautey, T. 1, 260, 288; T. 2, 35; Mordacq, 3, 32.
40.SHD 10 H 18 Dossier 1, 72–73.
41.SHD 10 H 18 Dossier 2, Historique du 1ère Régiment de Tirailleurs Tonkinois, 2ème partie, 1898–1914, 1, 2.
42.Paul Doumer, Situation de l’Indo-chine (1897–1901) (Hanoi: F-H Schneider, 1902), 736.
43.R.B. Smith, ‘The Development of Opposition to French Rule in Southern Vietnam, 1880–1940’, Past & Present, 54 (1972), 94–129; David Del Testa, ‘S’adapter pour ne pas être expulsé: les manifestations paysannes de Vinh en 1905’, 136–147 in Gilles de Gantès and Nguyen Phuong Ngoc (eds.), Vietnam: le moment moderniste (Aix-en-Provence: Publications de l’Université de Provence, 2009); Marr, 212–277; Truong Buu Lâm, Resistance, Rebellion, Revolution: Popular Movements in Vietnamese History (Singapore: Institute of Southeast Asian Studies, 1984); and Martin Thomas, Violence and Colonial Order: Police, Workers and Protest in the European Colonial Empires, 1918–1940 (Cambridge: Cambridge University Press, 2012), 141–176.
44.SHD 10 H 19, dossier 1, 247–249.
45.William Gallois, ‘Dahra and the History of Violence in Early Colonial Algeria’, in Martin Thomas (ed.), The French Colonial Mind, Vol. 2, Violence, Military Encounters, and Colonialism (Lincoln, NE: University of Nebraska Press, 2011), 10.
Part II
Colonial Authority and the Violence of Law
© The Author(s) 2018
Philip Dwyer and Amanda Nettelbeck (eds.)Violence, Colonialism and Empire in the Modern WorldCambridge Imperial and Post-Colonial Studies Serieshttps://doi.org/10.1007/978-3-319-62923-0_5
Martial Law in the British Empire
Lyndall Ryan1
(1)Centre for the History of Violence, University of Newcastle, Callaghan, Australia
Lyndall Ryan
Email: [email protected]
According to journalist Richard Gott , martial law was a legal device which allowed colonial governors in the British Empire to ‘detain and torture subject peoples’, with no questions asked, and to’ annihilate those rash enough to dissent’. 1 A key feature was that it ‘rendered immune from prosecution the actions of agents’ operating under its aegis although, as historian Mark Finnane points out, its use signalled the fragility of colonial authority. 2 When considering its deployment across the British Empire however, it is not only the fragility of authority that is notable, but the frequency with which it was used to put down a wide range of insurgents. In 1867, the British lawyer, A. W. Finlason contended that without martial law the British Empire would collapse. 3
This view of martial law, however, stands in stark contrast to the doyens of British constitutional law, William Blackstone and Alfred Dicey , who simply could not conceive of it being invoked in Britain after 1689 on the grounds that it had no authority in law. 4 What then is martial law and how did it become the legal lynchpin of the Empire when in Britain it was considered to have no authority in law? What were the circumstances in which it was invoked in the Empire, how long did it remain in force, and how did it impact upon colonial subjects? This chapter reviews the origins of martial law in England and how it became a critical component of the prerogative powers of colonial governors in securing the Empire from internal rebellion and external attack. It then provides examples of its operation in the nineteenth and twentieth centuries as a way of demonstrating its flexibility as a legal method of repression and its trend to become more draconian over time.
Origins of Martial Law
According to the legal historian J. V. Capua , martial law emerged in England in the fourteenth century when Edward III set out the Royal Prerogative as a personal suite of undefined powers that enabled the monarch to legally assert his sovereignty over the Kingdom. It appears that a monarch would declare martial law ‘in a time of open rebellion’, or in wartime when invasion was threatened and that it replaced all other laws which were suspended. It was closely connected with military rule in that military tribunals were used to try rebels and traitors who were considered enemies of the monarch. Thus martial law was an undefined personal power held by the monarch; its success relied upon his having loyal troops at his disposal to enforce it. 5 Legal historian John M. Collins considers that martial law was in more or less permanent operation in England for most of the fifteenth and sixteenth centuries as successive usurping monarchs tried to assert their sovereignty over other usurpers and a possible Spanish invasion. In 1628, however, martial law was contested by the English Parliament, which considered that Charles I was abusing its use in peacetime. The Parliament passed the Petition of Right, which reasserted the principle of Magna Carta that no free person should be imprisoned, outlawed, exiled or executed in peacetime except by ‘due process of law’. 6
The right of the monarch to declare martial law under the Royal Prerogative was severely limited by the Bill of Rights of 1689 , which affirmed the supremacy of Parliament and the rule of law. 7 When martial law was declared in 1715 and 1745 to suppress the Jacobite uprisings, it was done so in the name of the King and Parliament and the same process was used in 1780 to suppress the Gordon riots in London. 8 From that time on, martial law was never again invoked in Britain.
But this was certainly not the case in the Empire. According to Collins , from the beginning of England’s imperial adventure in Ireland and North America in the sixteenth century, colonial governors were not only invested with the monarch’s undefined powers of the Royal Prerogative , they considered that in these far flung jurisdictions, ‘martial law was the best form of law’. They had no hesitation in declaring martial law and setting up courts martial to convict a wide range of people they considered were enemies of the English state. They included rebels, soldiers, sailors, colonists, vagrants, known criminals, illegal retainers and rioters. 9
> After the rule of law came into effect in England in 1689 however, it was not readily translated to the settler colonies in North America and the plantation colonies in the Caribbean . Some colonial assemblies tried to follow the English Parliament in limiting the reserve powers of their colonial governors but the move was more about empowering the legislature to declare martial law during a slave rebellion in the absence of gubernatorial leadership than supporting the rule of law. Indeed, colonial governors continued to be invested with the undefined powers of the Royal Prerogative that not only included the power to declare martial law to contain insurgency and rebellion but also to banish their colonial subjects without trial to other parts of the Empire. 10 As John McLaren points out, by the end of the American War of Independence in 1783, although the reserve powers of the monarch were in steep decline in England, in the Empire the reserve powers of colonial governors were being reinforced in reaction to the loss of the American colonies and to the success of the French Revolution . 11
Martial Law in the British Empire in the Nineteenth and Twentieth Centuries
English legal historian Charles Townshend considers that martial law was first used in the form that became recognisable in the British Empire in the nineteenth century during the Irish Rebellion of 1798 . 12 In this instance the Lord Lieutenant of Ireland and senior members of the Irish Parliament declared martial law to suppress insurgent resistance by deploying soldiers to burn down their villages, shoot and kill insurgents, and bring others to court martial, where they were convicted of treason and hanged. Others were banished to the Colony of New South Wales . 13 Although two of the alleged insurgents brought cases of wrongful arrest before the courts, the judgments indicated that martial law granted legal immunity to the soldiers and police acting as agents of the Crown and that any insurgent who was arrested could expect summary punishment. Their fate lay not in the jurisdiction of the civil court, but in a military court and the discretion of the Crown’s representative. 14
The same approach was adopted by the Governor of New South Wales, Philip Gidley King , in swiftly suppressing the Irish Convict Rebellion of 1804 . 15 He used the reserve power to declare martial law in the region where the rebellion was taking place and over a period of five days he deployed the garrison to track down and kill some of the rebels, ensured that the leaders were arrested and summarily convicted of treason by a military court and sentenced to hang in chains. Other rebels were banished to a penal settlement. 16 In other parts of the colony, however, where lieutenant-governors were in control and no civil courts were available, one of them declared martial law for five months to prevent looting during a drastic food shortage and another declared it for six months to track down outlaw bushrangers who were contesting British sovereignty . 17 In the latter instance, however, the governor lacked sufficient military and police resources to bring more than two of the outlaws to summary justice. 18
In the period between the end of the Napoleonic Wars in 1815 and settler self- government in the 1850s, when thousands of British white settlers colonised the homelands of Indigenous peoples across the Empire, colonial governors were expected to advance and secure British sovereignty over these regions at the expense of their Indigenous subjects . They usually declared martial law after consultation with the Executive Council , a small body of unelected officials in the colony that included at least one legal officer. 19 They used this approach to declare martial law four times against the Xhosa in the Cape Colony (South Africa ) and a similar number of times against the Aboriginal people in the Australian colonies , twice against the Kandyans in Ceylon (Sri Lanka) and the Maori in New Zealand . Some of them claimed they were deploying the measure as the only effective way of forcing Indigenous insurgents to accept British sovereignty . 20
The colonial governors who invoked martial law before 1855 usually did so for between four to six months to enable troops to carry out full-scale military campaigns against Indigenous insurgents either to drive them out of their homelands or to force them to surrender. 21 In Ceylon (Sri Lanka) however, when martial law was declared in 1818 it appears to have remained in force for at least a decade while Indigenous insurgents were suppressed and dispossessed and British settlers occupied their homelands and established coffee plantations. 22 In this instance, a dual legal system was put in place, with martial law applying to Indigenous insurgents and the rule of law applying to the settlers. A similar system prevailed in Van Diemen’s Land between 1828 and 1832 where martial law only applied to the Indigenous insurgents . 23 In British Kaffraria it applied to every person who lived in the newly conquered province from 1847 to 1851 and many instances of summary injustice were recorded. 24
In most parts of the Empire, however, martial law was used as a declaration of war against Indigenous insurgents who contested British sovereignty . But unlike a formal declaration of war which was made against a sovereign nation or group, martial law did not recognise Indigenous sovereignty . In defeat Indigenous leaders held few bargaining chips in negotiating a genuine outcome for their people and in many cases they were banished to other parts of the colony or the Empire. In the case of settler uprisings, martial law was deployed in Upper and Lower Canada in 1836 and 1837 and in the Australian Colony of Victoria in 1854, to suppress their demands for self-government. 25 Although they were put down in brutal and bloody events, unlike most Indigenous insurgencies, the settlers were more successful in achieving their aims.
It was not until the 1840s, however, in response to its use against Indigenous peoples in South Australia and New Zealand that some settlers began to question the use of martial law on the grounds that it was outside of the principles of the rule of law. 26 They were surprised by the reaction of the Under Secretary of State for the Colonies, James Stephen , a leading humanitarian and champion of the rule of law. ‘Martial law’, he wrote in 1847 in response to Governor George Grey’s use of it in New Zealand , ‘is but another name for the suspension of all law; It is a measure which necessity justifies, but for which the Act of Indemnity is necessary for even when necessary it is illegal’. 27 What Stephen ’s comment reveals is that the declaration of martial law is a political act in that, according to Australian legal historian Julie Evans , it ‘rests on shallow ground in law’. 28 Indeed, as David Dyzenhaus points out, the use of martial law in the British Empire was based more on political expediency than legal necessity. 29 Nevertheless, the declaration of martial law in this period was a means both of asserting the rule of law and simultaneously of placing it under suspension. As a flexible form of law, colonial governors in this period could even see its use as being consistent with an instrumentalist kind of humanitarianism .
The first definition of martial law that best explained its use in the Empire appeared in 1867 in the aftermath of the Morant Bay affair in Jamaica where the governor, Edward John Eyre , in conjunction with the Colony’s legislature, declared martial law in 1865 to put down an uprising by former slaves. During the month that it was in force, more than 400 former slaves were shot dead and 600 others were flogged, 1000 of their dwellings were destroyed and an alleged rebel leader who was declared guilty of treason by a military tribunal was summarily executed. 30 The shocking event created a furore in Britain about the legitimacy of martial law in the Empire. In the ensuing debate between the advocates of the rule of law and the supporters of martial law, the latter won the day.
Their legal spokesman, W. R. Finlason , defined martial law as ‘the final power colonial governors could impose upon dissidents under their jurisdiction who were perceived to be in an act of rebellion’. 31 It not only enabled them to use military force against all kinds of insurgent subjects across the Empire in ‘rendering immune from prosecution’ those agents of the governor who disposed of the insurgents, it also denied the insurgents their legal rights. For that reason Finlason considered that martial law was a necessary measure to control the Empire, and that without it, the Empire would collapse. 32
Finlason ’s definition not on
ly clarified what Stephen had been reluctant to admit, that martial law was a political device that colonial governors could use to suppress resistance to British rule, it also appears to have continued as the accepted definition across the Empire until the end of World War II. It appears, for example, to have influenced Nussar Hussein ’s fine study of the operation of colonial rule in India in the nineteenth and twentieth centuries. 33 He found that martial law was one of several violent measures regularly invoked by the British authorities to keep their Indian subjects in a state of oppression and was the most difficult to contest in the courts. 34 He concluded that it was most effective in the aftermath of the First Uprising in 1857 (the Mutiny) and after World War I when it was in place for nearly two decades as a key strategy to suppress the Independence movement. It was during this period that the Massacre of Amritsar took place. 35
Other studies of martial law have focused on the first half of the twentieth century, from the Boer War 1899–1901 to the British Mandates in Iraq and Palestine in the 1920s and 1930s. 36 They indicate that martial law became more draconian as resistant subjects became better organised and better armed and more difficult to identify. In a celebrated case from the Boer War , where the extent of permissible military activity during a state of martial law was contested, a British patrol had travelled through enemy territory to a farmhouse in order to arrest several individuals suspected of dealing with the Boer insurgents. In the haste for a safe return, the British commanding officer ordered the suspects to be transported without delay. When a farm worker ‘proved dilatory’ in providing a horse bridle for the return trip, the British commander ordered a soldier named Smith to shoot the offender and he promptly did so. At the urging of the family involved, the government of the Cape of Good Hope brought a charge of murder against Smith for his action. The case was heard before a Special Court established by the British mandate to hear cases under martial law in South Africa and after due deliberation it declared Smith not guilty of wilful murder on the grounds that he was acting in good conscience in obeying an order from his superior officer. 37