No Law at All

Stephen Sedley

  • A Jurisprudence of Power: Victorian Empire and the Rule of Law by R.W. Kostal
    Oxford, 529 pp, £79.95, December 2005, ISBN 0 19 826076 8

On 11 October 1865, a crowd of poor black Jamaicans burned down the Morant Bay courthouse and killed 18 people, most of them white and one the local chief magistrate, who had just had them fired on by soldiers after a reading of the Riot Act. The governor of the island, Edward Eyre, on the advice of his military commander and his law officers, decreed martial law in the county where Morant Bay lay, but excluded the town of Kingston. Although the uprising was put down within a week, in the month that passed before the decree expired the military was allowed an orgy of shooting, flogging and more or less arbitrary executions. The Cornhill Magazine put the number of deaths at 439 and of floggings at 600.

If this had been all, there would probably have been a transient fuss in England, after which Eyre’s career would have continued to flourish. The largest controversy provoked at home by the Indian Mutiny seven years earlier had been about Charles John Canning’s attempts as governor-general to rein back the brutality of the military reprisals. A slave revolt in Jamaica in 1831, seven years before formal emancipation, had been visited with hundreds of executions, albeit after some form of trial, without provoking a major domestic outcry. Governors of other colonies – Demerara in 1824, Cephalonia and Ceylon in 1848 – had faced parliamentary inquiry and, at least in the latter instance, censure for their violent suppression of unrest; but none had ignited the degree of public passion generated in and after 1865 by the suppression of the Morant Bay rising.

The controversy was not about whether there had been a necessity for martial law to be invoked at Morant Bay: there almost certainly had. It was ostensibly about the unnecessary duration of the decree and the abuse of the powers it created; but neither of these features distinguished it from the measures adopted in response to other such risings. What gave the outrage a focus was that Eyre had personally authorised the arrest in Kingston of a man named George Gordon, and what today would be called his extraordinary rendition to Morant Bay. Arriving there on a Saturday, Gordon was given an instant trial without access to counsel and hanged two days later – the military commander felt it was not right to hang people on a Sunday – from the surviving arch of the charred courthouse. All of this was done with Eyre’s express approval.

Without question Eyre, who was swiftly relieved of his post, had overreached himself in relation to Gordon. His excuses were feeble: he had heard ‘little facts’, he told the local Royal Commission that had been set up within two months of the rising, which convinced him that Gordon had been the ‘prime instigator’ of the insurrection. More candidly, he later told the Colonial Office that he feared that Gordon, if left alive, would be a focal point for further trouble. In this he was probably right. Gordon, born in 1820, was the child of a wealthy white planter and a black slave. He inherited substantial land holdings and became a member of the legislative assembly, elected by the island’s handful of landowners. By the 1860s, however, with the decline in Jamaica’s economy accelerated by drought and the effects of the American Civil War, Gordon was in debt and in open political conflict with the white planters about the need for agrarian and social reform. When Eyre, an experienced colonial administrator, arrived as acting governor late in 1862, Gordon became one of his many problems. But Gordon was not simply a difficult local planter. Through his conversion to Native Baptism he had become closely associated with the black preacher and reform agitator Paul Bogle, whose attempted arrest had sparked the rising and who was to suffer the same fate as Gordon.

Gordon was that dangerous thing, a rogue member of the ruling elite; but he was racially and economically compromised, and that made him not only dispensable but serviceable as an example to others. All Eyre needed was an excuse and an opportunity to sweep him into the net of bloody reprisal; but it was these that he misjudged. In the wake of Eyre’s own ingenuously candid report to the Colonial Office, which Edward Cardwell, the colonial secretary in the Liberal government, took the unusual course of publishing in full, had come Gordon’s moving last letter to his Irish wife; and then, out of the blue, a full transcript of the proceedings made by a local journalist. It showed beyond any doubt that Gordon had been perfunctorily tried – on a charge of high treason – on almost entirely inadmissible evidence by a drumhead tribunal presided over by a 26-year-old naval subaltern, Lieutenant Brand, who, far from being an innocent, turned out to be a bloodthirsty bully who had sent 189 Jamaicans to the scaffold. Newspapers and periodicals that had initially supported Eyre changed sides.

The Jamaica Royal Commission produced an honest, albeit not damning report. The Colonial Office decided not to prosecute any of the surviving prisoners on capital charges. But one serious local prosecution was attempted. This was of a sadistic ex-soldier called Duberry Ramsay, a Crimean War veteran, who had been put in charge of a temporary prison camp at Morant Bay, where he had prisoners flogged and hanged at random. He was charged with the murder of one of them, but in spite of clear direction from an upright Scottish judge, Alan Ker, the grand jury of local property-owners would not indict him. This pattern was repeated in the attempts that followed to bring Eyre and some of his officers to justice in England.

In recounting the public row that erupted in England, from a large range of contemporary sources R.W. Kostal draws heavily on the press because he is interested in the visceral divide in public opinion which the Jamaica controversy generated. ‘The truth is,’ the Manchester Guardian said ponderously but accurately, ‘that the insurrection of the negroes, and the manner in which it was suppressed, raise a series of questions not merely local, casual or personal, but entering very deeply into the science of politics and public morality.’ Beyond these issues, however, Kostal is interested in yet another set of questions about the interpenetration of public discourse and law in the Jamaica controversy. He is troubled by the verdict of historians such as Catherine Hall and Stefan Collini that the organised attempts to bring Eyre and others to justice had, in Hall’s words, absolutely no effect.

I doubt whether this is the real issue. Practically everything that happens has some effect. The Colonial Office, the War Office and the Admiralty took immediate legal advice on how governors and military commanders should handle states of emergency, and it is probable that a good many colonial administrators took caution from the fate of Eyre, who became unemployable for the rest of his long life. But, as Kostal himself shows in painstaking detail, the domestic justice system proved in part unable and in part unwilling to call Eyre and his officers to account. The imperatives of empire were too potent to admit the self-examination which a prosecution would have involved and the self-doubt which a conviction would have entailed. What the controversy nevertheless exposed and articulated was the deep discomfort among both supporters and critics of the imperial project concerning Britain’s treatment of its subject races. The argument was not, except possibly at its fringes, between empire and no empire: that lay in the future. It was about how an imperial power should conduct itself and, in particular, whether there was to be one law for the imperial nation and another for its subject peoples. The resonances with the post-9/11 world order, although they lie outside Kostal’s project, are striking. Among them is the fact, on which Kostal rightly remarks, that the breadth and depth of public hostility towards Eyre and his defenders tells us something significant about democracy and society in mid-Victorian England. Also true, but less interesting (though, oddly, it is Kostal’s main theme), is the fact that it was through legal controversy and the courts that these issues were channelled. Where else does an argument about illegality and injustice go?

When in 1869 the Boston lawyer Richard Dana added a postscript to his celebrated narrative Two Years before the Mast, reflecting on the brutality which he had witnessed a quarter of a century earlier as a boy at sea, he was quick to insist that a ship’s master must have ‘powers commensurate with his utmost possible need; only let him be held strictly responsible for the exercise of them.’ But that was the problem. If, as Dana asserted, the captain, once ashore, was answerable to the ordinary law for what he had done at sea, a flogging became a criminal assault and the reasons for it ‘merely circumstances to be considered’. It was, as Dana remarked, a matter of no little embarrassment. And so it proved both for Eyre’s enemies and for his supporters.

To begin with, it was unclear what martial law meant. The view expounded by Chief Justice Cockburn to the grand jury which was asked to indict Colonel Nelson – the commanding officer – and Lieutenant Brand for the murder of George Gordon was that it permitted the use of lethal force against those in arms, but for the rest meant the application of military law – importantly, requiring due process – to those civilians held by the armed forces. On this view, Eyre and the military had acted well beyond the law. A second view, developed and prolifically publicised by a barrister journalist named William Finlason in the aftermath of the rising, was that martial law replaced all civil authority with the will of the military commander – subject only to what Finlason delphically called ‘natural justice’ or, as Disraeli later put it in the House, ‘good faith’ – and that for as long as it lasted it permitted the state to conduct a reign of terror. The Duke of Wellington was alleged to have adopted this view when, in 1851, he intervened in the Ceylon debate to say that ‘martial law meant no law at all’; but Wellington had been talking about the process of military conquest, not the suppression of civil unrest.

A third view, probably the only intellectually respectable stance and one which would have satisfied Richard Dana, was that a situation which justified the invocation of martial law was by the same token one which gave state officials a common law defence of necessity to what would otherwise have been crimes and torts. This was the analysis put forward by the criminal lawyer and jurist James Fitzjames Stephen, who was retained by the Jamaica Committee in its endeavour to get Eyre and some of his officers convicted. Its attraction as a workable constitutional theory in a common law polity was instantly recognised by Bagehot and by the end of the century had acquired orthodoxy in the hands of Dicey, though the victims and survivors of Denshawai and Amritsar might not have thought so. It recognised, first, that a situation might arise, and not only in the colonies, in which the preservation of law required its temporary suspension. It meant, second, that if the declaration of martial law could not be justified, the law gave no protection to wrongful acts done in its name. Third, it meant that only those acts which were genuinely necessary to the restoration of order, or at least were honestly and on tenable grounds believed to be necessary, were protected. But these were exactly the reasons why Stephen’s proposition was not generally embraced: by setting law above power it limited the capacity of the imperial state to act at will and put the onus on its officers to prove the necessity for their extra-legal measures.

Stephen is only one of a large cast of celebrities who became involved in the Jamaica controversy. With Edward James QC, MP, he was retained by the Jamaica Committee because of the message that the joint retainer gave about the breadth of the committee’s base and the universality of its appeal to law. Among the committee’s leaders were John Bright and John Stuart Mill; among its supporters Darwin, Huxley, Herbert Spencer and Thomas Hughes. Eyre’s supporters, led by Carlyle, included Ruskin, Tennyson and Charles Kingsley, as well as characters like the Earl of Cardigan, whose display of judgment at Balaclava did not seem to bother the Defence Committee.

The Jamaica Committee, despite the refusal of Gordon’s widow to act as complainant, decided to bring a private prosecution of Eyre for murder. It thought it had retained John Duke Coleridge QC, a future chief justice, to lead its legal team, but the Defence Committee somehow got the new Tory attorney-general to rule that Coleridge was obliged to accept its retainer, which had been tendered only after Coleridge had accepted the Jamaica Committee’s retainer and was designed purely to neutralise him. Instead, the Defence Committee briefed Hardinge Giffard QC (the future lord chancellor, Lord Halsbury), while the Jamaica Committee briefed Fitzjames Stephen. Because the process had to begin with an application to the magistrates for committal, the Defence Committee, with the same devious skill it had shown in sabotaging the Jamaica Committee’s choice of counsel, had taken the precaution of moving Eyre to Shropshire. There, he came, as intended, before a bench consisting of five local landowners and retired army officers (two other justices had stood down because they had contributed to his defence fund). Stephen was heavily criticised by the Jamaica Committee’s supporters for conceding too much to Eyre in putting the case against him. But a trial which could leave a colonial governor facing a mandatory death sentence was not exactly an inviting prospect (although it had happened early in the century to a governor who had had three Africans flogged to death); and after listening to a defence speech in the course of which the future Lord Halsbury reduced himself to tears and had to compose himself, the Market Drayton bench took ten minutes to decide that Eyre had no case to answer.

The Jamaica Committee’s concomitant attempt to prosecute Nelson and Brand for murder got off to a better start. The chief metropolitan magistrate recognised that Stephen had established a case for them to answer and sent them on to the next stage, the grand jury. Sir Alexander Cockburn (‘small in stature but large in personality, vanity and aspiration’: it’s unfair but irresistible to recall that Claud Cockburn belonged to the same dynasty) took it on himself to sit at the Old Bailey in order to deliver the charge. Although the grand jury cannot have been much helped by its length and discursiveness, their refusal to send the two men for trial was of a piece with the other abortive proceedings. Populist attachment to the imperial ideal was far too ingrained to countenance putting its exemplars not only in the dock but potentially on the scaffold.

Although the Jamaica Committee was by now under pressure to call it a day, Mill would not give up. Another prosecution of Eyre was launched, this time for abuses of power contrary to the 1801 Colonial Governors Act. The Bow Street magistrate accepted, in the light of the law set out in Cockburn’s charge to the earlier grand jury, that there was a case to answer, and the case went off to the Middlesex Sessions to see if this time a grand jury would indict Eyre. But there Mr Justice Blackburn gave a direction which, although he told the grand jury that it had the prior assent of Cockburn and the other Queen’s Bench judges, not only prompted another refusal by the jurors to indict Eyre, but led Cockburn at the opening of the full court’s next session to publicly repudiate Blackburn’s version of the law. What Blackburn had done, in essence, was tell the jury that Jamaica’s martial law statute would override the common law so long as the governor had invoked the statute reasonably and in good faith. This was a scheme of things which Cockburn and other common law constitutionalists would not countenance. Their view was that the common law was supreme, that the Crown itself no longer possessed a prerogative power to declare martial law, and that a colonial statute could confer no powers beyond those with which the common law itself invested martial law.

The final debacle came when a civil action brought by two respectable Jamaicans who had been appallingly mistreated by Eyre was kicked into touch by Cockburn himself, on the ground, upheld on appeal, that the local act of indemnity to which Eyre had set his own hand within a month of the rising absolved him from all civil lawsuits.

It is unsurprising both that public anger against Eyre and his officers was channelled into legal action and that legal action proved ineffective. But much that is revealing emerges in Kostal’s tracing of these events. The focus quickly swung away from the slaughter and brutality deployed against the Jamaican population: many of the Jamaica Committee’s supporters and spokesmen, regarding Gordon as an honorary white man, were at pains to emphasise the alternately idle and murderous disposition of Jamaicans particularly and blacks generally, and to proclaim themselves, as Huxley did, unmoved by ‘any particular love for, or admiration of, the negro’. From this stance of benchmark racism the campaign rapidly became domestic in its focus. Its evangelicals, who were the most likely to have humanitarian concerns about the Jamaican poor, became marginalised. Its radicals and moralists were interested in whether the same thing would be allowed to happen with impunity here or, more probably, in Ireland. Its lawyers were interested in the universality of common law principles and the risk that the exigencies of empire were producing two classes of British subject who could expect different standards of law and justice.

In a powerful imperial state shaken by internal agitation for democratic reforms, none of these was a foolish or unfounded concern, as history went on amply to demonstrate. Arguably the most important thing about the Jamaica Committee was not its methods or their outcome but its crystallisation of a clutch of issues which have changed in shape but not in essence in the intervening years. Law and order are still not the same thing.