Martial Law
The use of martial law against subject peoples in the British Empire intensified in the aftermath of the Napoleonic Wars, when military governors were appointed to the settler colonies.
Their capacity to declare martial law empowered them effectively to suspend the ordinary rule of law. As the Colonial Office under-secretary James Stephen noted, martial law ‘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'.[391] In 1867, legal commentator 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'. He argued that martial law not only enabled colonial governors to use military force against all kinds of insurgent subjects across the empire and to render ‘immune from prosecution' those government agents who disposed of insurgents, but also denied insurgents ordinary legal rights. Indeed, he considered that martial law was a necessary measure to control the empire, and that without it the empire would collapse.[392]Possibly the most notorious uses of martial law in the history of the British Empire until the end of the nineteenth century relate to Jamaica and India where it was used to put down large-scale uprisings with brutal efficiency. In the settler colonies, however, martial law was also used against resisting Indigenous peoples on the frontier as insurgent subjects of the colonial state. In denying Indigenous people sovereign status, the British used martial law in the settler colonies to secure fragile frontiers. As such it proved an extraordinarily flexible mechanism that British governors could use in situations of crisis to extend and consolidate the settler frontier.
It could be used, for example, to subdue Indigenous resistance in frontier regions, such as Zuurveld District of the Cape Colony where it was proclaimed in 1811 to drive the Xhosa out of the district and across the Great Fish River, or the Bathurst Plains in New South Wales, where it was proclaimed for a period of four months in 1824 so that a military campaign could ‘clear out' the Wiradjuri people who were resisting the settler invasion. It was also useful in securing larger territories, such as the Settled Districts in Van Diemen's Land (Tasmania) where it was promulgated in 1828 to contain the violent resistance of several Tasmanian Aboriginal nations. Two years later it was extended across the entire island, and when it was revoked sixteen months later in 1832, most of the Tasmanian Aborigines had been killed. Just as flexibly, it could be used in response to a perception by settlers that a treaty with Indigenous people had been abrogated. In New Zealand for instance, between 1844 and 1845 and again in 1846, martial law was invoked in specific regions of the North Island where settlers considered that Maori chiefs were abrogating the Treaty of Waitangi. British troops were despatched to bring them to justice, but in this case the chiefs outsmarted the British, who were forced to sue for peace. Martial law would again be invoked between 1868 and 1872 in the second phase of the frontier wars before the two sides reached a stalemate. Martial law could also be invoked in a very specific place for a few days, to carry out summary punishment on specific Indigenous groups. For example, in 1840 martial law was declared at a specific stretch of coastline in the colony of South Australia so that a police party could arrest two Milmenrura warriors, try them in an open court on the spot, and then hang them on the site where twenty-four passengers from the ship Maria, wrecked at the mouth of the Murray River a few weeks earlier, had been killed. This was the largest single killing of settlers by Indigenous people in the history of colonial Australia. In this case, martial law was used as an instrument of terror in the hope that it would deter Indigenous attacks on vulnerable settlers in the future.[393]The settler frontiers where martial law was invoked most often in the nineteenth century were the Cape Colony's eastern frontiers between 1811 and i860 and the North Island of New Zealand from 1844 to 1872. In each place, several thousand British troops were deployed over many decades to assert British sovereignty. On the eastern Cape frontier of the Xhosa homelands, the colonial government invoked martial law on at least ten occasions, sometimes for years at a time, and deployed British troops to suit the shifting requirements of colonial security: it was variously used to force the Xhosa to move from one part of their homelands to another, to ‘dispose' of them for allegedly breaking treaties, to coerce them into particular areas, and to force them into British re-education camps.29 In New Zealand it appears to have been invoked on at least five occasions during the course of the frontier wars on the North Island.30 The powers of martial law were not necessarily limited to the colonial state's capacity for military manpower. During the 1820s, for instance, the military powers available to the colonial government in Van Diemen's Land were considerably extended by adding a call to arms of the civilian population to assist in wresting the land from the Indigenous owners.31 Martial law also conferred on other colonial officials, such as police and magistrates, the summary powers either to ‘dispose' of ‘insurgents' without arresting them, let alone bringing them to trial in a court of law, or to place them in detention in places such as Robben Island. As a key instrument for putting down Indigenous resistance with force, the principal purposes of martial law on the settler frontier were to secure the settler polity and to assert colonial claims to sovereignty over Indigenous lands.32