No Bond but the Law: Punishment, Race, and Gender in Jamaican State Formation, 1780–1870 9780822386148

Citation preview

Tseng 2004.8.31 07:45 7124 Paton / NO BOND BUT THE LAW / sheet 1 of 308

No Bond but the Law

7124 Paton / NO BOND BUT THE LAW / sheet 2 of 308

next wave : New Directions in Women’s Studies A series edited by Inderpal Grewal, Caren Kaplan,

Tseng 2004.8.31 07:45

and Robyn Wiegman

7124 Paton / NO BOND BUT THE LAW / sheet 3 of 308

No Bond but the Law Punishment, Race, and Gender in Jamaican State Formation, 1780–1870 diana paton

Tseng 2004.8.31 07:45

duke university press Durham and London 2004

7124 Paton / NO BOND BUT THE LAW / sheet 4 of 308

© 2004 Duke University Press. All rights reserved. Printed in the United States of America on acid-free paper.  Designed by Rebecca Giménez. Typeset in Adobe Minion by Tseng Information Systems. Library of Congress Cataloging-in-

Tseng 2004.8.31 07:45

Publication Data appear on the last printed page of this book.

Tseng 2004.8.31 07:45 7124 Paton / NO BOND BUT THE LAW / sheet 5 of 308

to polly and miriam

Tseng 2004.8.31 07:45 7124 Paton / NO BOND BUT THE LAW / sheet 6 of 308

7124 Paton / NO BOND BUT THE LAW / sheet 7 of 308

No more slavery! She had to laugh! ‘‘These new ones have Letter of the Law. Same thing. They got magistrate. They got fine. They got jail house and chain gang. They got tread machine to mash up people’s feet. New ones worse than old ones—more cunning, that’s all.’’

Tseng 2004.8.31 07:45

—j e a n r h y s, Wide Sargasso Sea

Tseng 2004.8.31 07:45 7124 Paton / NO BOND BUT THE LAW / sheet 8 of 308

7124 Paton / NO BOND BUT THE LAW / sheet 9 of 308

Contents Illustrations, xi Acknowledgments, xiii Introduction, 1 one

Prison and Plantation, 19

two

Planters, Magistrates, and Apprentices, 53

three four five

The Treadmill and the Whip, 83 Penality and Politics in a ‘‘Free’’ Society, 121 Justice and the Jamaican People, 156 Conclusion, 191 Notes, 201 Bibliography, 253

Tseng 2004.8.31 07:45

Index, 281

Tseng 2004.8.31 07:45 7124 Paton / NO BOND BUT THE LAW / sheet 10 of 308

7124 Paton / NO BOND BUT THE LAW / sheet 11 of 308

Illustrations

Map. Establishment of Workhouses in Jamaica, 1780–1838, 24

Tseng 2004.8.31 07:45

figures 1. Captured Runaways Advertised by Jamaican Workhouses, 1791–1831, 32 2. Jamaican Workhouse Populations, 36 3. Sentences Received by Slaves Entering Jamaican Workhouses, 1829, 37 4. Offenses Punished by Stipendiary Magistrates, 1834–35, 72 5. Cases Brought before Stipendiary Magistrates White and Carnaby, 76 6. Outcome of Decisions by Stipendiary Magistrates White and Carnaby, 76 7. Cross-section of Design for Prison Treadmill, 89 8. Longitudinal Section of Design for Prison Treadmill, 89 9. Rules and Regulations for the House of Correction in the Parish of St. Thomas in the East, 94 10. Plan of the Gaol and House of Correction at Black River in St. Elizabeth’s, 95 11. Plan of the St. Andrew House of Correction, 96 12. Plan of the St. Catherine House of Correction, Spanish Town, 97 13. Ground Plan and Elevation of the House of Correction in the Parish of St. David, 98 14. Interior View of a Jamaican House of Correction, 106 15. A Treadmill Scene in Jamaica, c. 1837, 108 16. Populations of All Prisons in Jamaica and of General Penitentiary, 1837–70, 125 17. Number of Prisons in Jamaica, 1837–70, 127

Tseng 2004.8.31 07:45 7124 Paton / NO BOND BUT THE LAW / sheet 12 of 308

7124 Paton / NO BOND BUT THE LAW / sheet 13 of 308

Acknowledgments

Tseng 2004.8.31 07:45

In the many years since I began this project I have accumulated many debts. The first and biggest is to Emilia Viotti da Costa, who agreed to supervise the dissertation that led to this book at a moment when it seemed possible that I would be prevented from continuing with it. Having done so, she provided the kind of engaged, provocative, and critical reading that is a model of supportive scholarship. Alongside Emilia, Gil Joseph and Nancy Cott provided consistent support and advice. Thanks also to Gad Heuman for introducing me to Caribbean history and encouraging me to pursue it. Gad’s presence, along with that of Sheena Boa and David Trotman, made work in the Public Record Office more enjoyable. I also appreciated and greatly benefited from the encouragement, at different stages of this project, of Catherine Hall, Mary Turner, Nigel Bolland, and Laura Edwards. I am grateful for the financial support for this study provided by the University of Newcastle, The Queen’s College, Oxford, and Yale University, especially Yale’s Program in Agrarian Studies, its Council on International and Area Studies, and its Smith-Richardson Program. Parts of the work included here were presented at conferences and seminars at Yale University, the Society for Caribbean Studies, Houston University’s Black History Workshop, the Berkshire Conference on Women’s History, the Association of Caribbean Historians, Warwick University, the Institute of Historical Research, University of London and the Institute of Commonwealth Studies, University of London. I am grateful for the feedback received from all those who participated, in particular to Melanie Newton, Mimi Sheller, Verene Shepherd, Richard Hart, Douglas Hay, and

7124 Paton / NO BOND BUT THE LAW / sheet 14 of 308 Tseng 2004.8.31 07:45

Swithin Wilmot. Thanks also to Pamela Scully, Greg Grandin, Robert Perkinson, Kate Chedgzoy, Judith Green, Mary Turner, Jolie Olcott, Peter Carroll, Lori Brooks, Bryan McCann, Sidney Mintz, and three anonymous readers for Duke University Press, all of whom made valuable comments on all or part of the manuscript. At Duke, I am particularly grateful to Valerie Millholland, Miriam Angress, and Mark Mastromarino for supporting me in bringing the project to completion, and to Natalie Kozin for drawing the maps and figures. Joanne Hall provided valuable assistance with quantitative data. An earlier version of chapter four was published in Crime and Punishment in Latin America: Law and Society since Late Colonial Times, edited by Ricardo D. Salvatore, Carlos Aguirre, and Gilbert M. Joseph (Durham: Duke University Press, 2001). The staff of many libraries and archives helped at various stages of the research and writing: the Public Record Office; the British Library; the National Library of Wales; the National Library of Scotland; the National Archives of Scotland; the National Library of Jamaica; the Jamaica Archives; the Elsa Goveia room at the University of the West Indies library; the archives of University College and the School of Oriental and African Studies, both of the University of London; the University of London library; Sterling Memorial, Mudd, and the Divinity School libraries at Yale University; Rhodes House, the Bodleian, and Regents Park College libraries, Oxford; the Staffordshire Record Office; and the Robinson Library of the University of Newcastle. I thank them all. In Jamaica I was fortunate to be able to discuss my work and much more with colleagues based at the University of the West Indies, in particular Jonathan Dalby, Lorna Simmonds, Swithin Wilmot, Glen Richards, Verene Shepherd, James Richardson, and Linda Sturtz. Linda and James were especially helpful in procuring maps and checking references for me after I had left Jamaica, while Jonathan has been generous with his research on crime and punishment in Jamaica. Peggy Soltau provided a warm home in Kingston, and members of her family and household, especially Jimmy Stephens and Peggy’s aunt Daisy, made my stays in Jamaica memorable and enjoyable. Paulette Jones and Omar Brooks welcomed me in Spanish Town. Friends and comrades on both sides of the Atlantic sustained and challenged me throughout the period of writing this book in a variety of ways hard to put into words. Thanks to Fiona Addison, Mark Foster, Greg Grandin, Julie Hathaway, Michele Janette, Gordon Lafer, David Lesser, Patricia Mathews, Kieko Matteson, Melanie Newton, Jolie Olcott, Robert Perkinson, Corey Robin, Gemma Robinson, David Sanders, Pam Scully, Naomi Standen, Wendi Walsh, and Daniel Wilkinson. xiv Acknowledgments

7124 Paton / NO BOND BUT THE LAW / sheet 15 of 308 Tseng 2004.8.31 07:45

The ‘‘original’’ members of my family, Polly, Ben, David, Rona, Laura, Jeanette, Paul, and Debbie Epstein, and Judith and Jon Green have been a source of love and support to me since before this book was imagined, although to my sorrow Polly and Ben did not live to see it completed. Since then, my family has expanded faster than I would have ever expected. It is an enormous source of happiness that Alistair Chisholm, Geof Ellingham, and particularly Kate Chedgzoy have become a permanent part of my life. This book is dedicated to our daughters, Polly Angharad, who constantly reminds me that books, while important, are not the only thing in life, and Miriam Rosa, whose arrival as this book went into production was a wonderful interruption to the final stages of editing.

acknowledgments

xv

Tseng 2004.8.31 07:45 7124 Paton / NO BOND BUT THE LAW / sheet 16 of 308

7124 Paton / NO BOND BUT THE LAW / sheet 17 of 308

Introduction

Tseng 2004.8.31 07:45

On August 1, 1838, the day of the complete abolition of slavery in the British Caribbean, the newly free members of the Mount Zion mission in Jamaica paraded to celebrate their freedom. They marched three abreast to the church and schoolhouse: first men, then children, and finally women. On arrival outside the church, the congregants were met by their minister and his wife, who read out phrases adorning banners carried in the parade. These slogans predicted a bright liberal future for the island. ‘‘Wages are better than whips,’’ stated one. A second read, ‘‘We will work for our wives and children.’’ ‘‘No Bond but the Law,’’ read a third. Each was greeted by ‘‘three hearty cheers.’’ 1 The ceremony, one of many similar events that took place in Jamaica that day, described and attempted to enact the fundamental transformation of a slave into a free society envisaged by the British architects and supporters of emancipation. The spatial arrangement of the event—the missionary and his wife outside the church, receiving an ordered parade of freed men, children, and lastly women—engaged both missionaries and freedpeople in an elaborate performance of idealized hierarchies of gender and race in the new society, a performance which, tellingly, had no place for planters or representatives of the colonial state. The banners so eagerly cheered suggested an easy process of change in which the physical punishment that characterized slavery would be replaced by the less tangible discipline of a gendered labor market in which men would be motivated to work by their desire to provide for dependents. Despite the banners’ optimism, for readers now their slogans also indicate the problems and conflicts that would, in different ways, confront all

7124 Paton / NO BOND BUT THE LAW / sheet 18 of 308 Tseng 2004.8.31 07:45

concerned with Jamaica in the post-emancipation period, whether they were located in the island itself or in imperial Britain, and whether they had been enslaved, slaveholders, or neither. If planters and state representatives were absent from the event’s choreography, they were nevertheless textually inscribed in it through the figures of free labor and the law. The assumed opposition between ‘‘wages’’ on one hand and ‘‘whips’’ on the other would be called into question within a generation, when the Jamaican population’s ability to avoid complete dependence on waged labor would be constructed as a sign of ‘‘barbarism’’ and used to justify the relegalization of whipping as a punishment for crime. ‘‘We will work for our wives and children’’ constructed an image of married men as the only people responsible for work, erasing an already long history of struggle between planters and slaves about the kind and quantity of work to be undertaken by women and children, a struggle that was to intensify in the years to come. And the apparently liberatory phrase from which this book takes it title—‘‘no bond but the law’’—was potentially imbued with threat. The missionary at Mount Zion may well have read the ‘‘but’’ unproblematically, assuming that a society in which there was ‘‘no bond but the law’’ was one in which freedom was guaranteed for all. For the former slaves who carried and cheered the banner, the relationship to the second half of the phrase was almost certainly more problematic. Emancipation, the banner asserted, was a release from bondage. It was, however, a release in which the state, symbolized by the notion of law, became in a sense a new type of bond. If there was ‘‘no bond but the law,’’ then the law was a form of bondage. This would become most apparent in the systems of punishment constructed in the wake of emancipation. This book investigates the cultural, social, and political history of punishment during roughly the century surrounding the abolition of slavery, a period when, of necessity, state and private forms of punishment underwent substantial change. It shows how the evolving shape of penal practice in Jamaica depended both on the circulation of ideas within a transatlantic intellectual and political world and on the intricate social, economic, and political struggles that took place among enslaved and freed people, planters, and representatives of the imperial state within Jamaica. It is concerned with the issues invoked by the parade at Mount Zion: with the relationship between punishment and market discipline; with the reconstruction of gendered identities through emancipation; and with the process of state formation that was precipitated by moves toward the abolition of slavery. The story I tell, however, is not captured in the sharp dichotomies between slavery and post-slave society suggested both by the parade’s banners and by much of the historiography 2 Introduction

7124 Paton / NO BOND BUT THE LAW / sheet 19 of 308 Tseng 2004.8.31 07:45

on Jamaica and other societies making the transition away from slavery. Rather, No Bond but the Law argues that there was a much more longstanding and intimate relationship between state formation and private punishment than the parade implied. The construction of a dense stateorganized system of prisons began not with emancipation but at the high point of slave-based wealth in Jamaica, in the 1780s. Similarly, the relationship among whips, wages, and prisons turns out to be a complex one, in which 1838 marks a moment of transition but not a binary divide. Studies of modern slavery and of post-slave societies range widely in the scale of their units of analysis, from micro-studies focused on individual plantations, the ‘‘slave community,’’ or on the planter–slave relationship, through nationally focused studies, to those which take empires or even the entire Atlantic world as their frame.2 Each unit of analysis has advantages and disadvantages. As Michel-Rolph Trouillot notes, it is impossible to provide a nuanced, locally attentive account of the whole world, but local studies, while often able to provide an impressive range of detail, can seem parochial, divorced from larger processes.3 The most successful studies, including Trouillot’s, are able to ‘‘articulate analytic levels,’’ maintaining a sense of both the day-to-day struggles among people and groups of people and the world economic and political forces within which these struggles took place. Even more crucially, the best studies demonstrate the reciprocal connections between these levels of analysis.4 While it does so less systematically than Trouillot, this study aims also for this articulation of analytic levels. Some of the most important developments analyzed in No Bond but the Law resulted from imperial decisions that applied to all the British slave and post-slave colonies, and thus probably had comparable, if not identical effects, throughout the British Caribbean as well as in the Cape Colony and Mauritius. Prime among these decisions is the Emancipation Act itself, but other, more specific colonial policy decisions, such as the outlawing of the flogging of women during apprenticeship and the encouragement of centralized prison building after 1838, also had ramifications that were not confined to Jamaica. Rather than attempt to document the outcome of such decisions across the British Empire, however, I move between analysis of imperial-level decisions on the one hand and Jamaican specificities on the other, within a framework that emphasizes comparisons and connections between and among developments in Jamaica and those elsewhere. Particularly important are comparisons with other colonial societies, other societies undergoing emancipation processes, and other societies where punishment has been extensively studied such as Britain, France, and the United States. Focusing on one colony allows for a more concrete and nuintroduction

3

7124 Paton / NO BOND BUT THE LAW / sheet 20 of 308 Tseng 2004.8.31 07:45

anced analysis of the struggles taking place there than would be possible if the detailed discussion of penal strategies and struggles was attempted on a larger scale. At the same time, Jamaican developments in punishment do not make sense without understanding concurrent changes in penal theory and practice elsewhere. Jamaica, then, to some extent functions as a case study. If other British slave colonies were studied in the same detail, many similarities in the timing and implications of penal developments would be observed, although some penal developments, especially the building of prisons during slavery, were taken further in Jamaica than elsewhere.5 Even more broadly, some aspects of what is discussed here could be traced in all emancipation processes. Because part of the legal meaning of slavery is that slaveholders have the right to inflict physical violence on their slaves, part of the legal meaning of slavery’s abolition is that this right is withdrawn from slaveholders. In practice, because no emancipation process led to the complete liberation of enslaved people from coercion, these rights were always taken over by the state. The Jamaican experience provides one detailed example of such a process. Nevertheless, Jamaica is studied here not only as an example that could be replicated elsewhere. All histories are unique, but Jamaica’s was not only unique, it was also uniquely influential within and beyond the British Empire. As Britain’s most populous and productive sugar colony on the eve of emancipation, Jamaica provided the paradigmatic case for British observers imagining, and later evaluating, the emancipation process. As Demetrius Eudell notes, ‘‘In the minds of many English citizens, including the antislavery activists who focused their attention on the island, Jamaica was synonymous with the West Indies.’’ 6 Parliamentary inquiries into slavery, apprenticeship, and free labor society all drew heavily on Jamaican evidence, as did abolitionist tracts. Later assessments of the supposed ‘‘failure’’ of emancipation in the British Empire also relied heavily on reports from Jamaica. Jamaican developments therefore had a disproportionate impact both on British colonial policy and on the formation of popular understandings of emancipation. This study begins in the late eighteenth century, at the beginning of the so-called amelioration period of slavery, which coincided with the first major wave of prison building in Jamaica. It ends approximately thirty years after the full abolition of slavery, at the moment of the second post-emancipation reconstruction of the Jamaican state in the wake of the Morant Bay rebellion. In taking this period of just under a century as its time frame, No Bond but the Law contests the conventional schol4

Introduction

7124 Paton / NO BOND BUT THE LAW / sheet 21 of 308 Tseng 2004.8.31 07:45

arly practice of examining either slavery or post-emancipation society, but not both.7 This conventional periodization tends to reinforce an assumption of a complete break between slavery and ‘‘freedom,’’ even while many scholars who use it contest that assumption in their analyses. The time frame used here was adopted to enable an examination of the origins of the Jamaican prison system, but it also emphasizes the need for scholars of slavery and emancipation to look across the great divide of the 1830s. The history of punishment and the history of the transition from slavery to free labor are ripe for considering alongside each other because of the conceptual connections and contradictions among slavery and different forms of punishment. The new ‘‘humanitarianism’’ of the eighteenth century called both slavery and traditional forms of punishment into question.8 Debates about slavery and its abolition took place in the same discursive field as debates about appropriate methods and purposes of punishment. Antislavery and the penal reform movement emerged at roughly the same time and made many of the same assumptions about human nature and the best way to organize society. In Britain, abolitionists and penal reformers were often the same individuals and spoke to similar constituencies. As David Brion Davis notes, abolitionists helped to ‘‘create the modern prison system’’ in which the offender would be ‘‘transformed into a dependable and willing worker.’’ 9 The conceptual opposition between slavery and freedom promoted by abolitionists was paralleled in the contrast drawn by penal reformers between arbitrary corporal punishment and reforming imprisonment imposed through processes of law. Both dichotomies were subsumed under the contrast between despotism and the social contract that dominated Enlightenment thought. The organization of punishment during slavery was a key aspect of the debate about slavery and its abolition. Throughout the campaigns against the slave trade and for the abolition of slavery, anti-slavery propaganda drew attention to the brutal punishments inflicted on slaves.10 Abolitionists portrayed flogging as the central event of the master-slave relationship, and as the defining difference between British society and colonial slave society. In the process, the existence of similar practices within Britain were denied or downplayed. A complicated dynamic was at work here. First, the portrayal of slavery as a system that revolved around flogging created a sense of distance between the presumed white British audience and the suffering slaves whose experience was assumed to be unlike that of anyone in Britain. This assumption overrode points of introduction

5

7124 Paton / NO BOND BUT THE LAW / sheet 22 of 308

potential comparison.11 The positing of the absolute difference between slavery and freedom created the need for the almost prurient attention to detail. In order to overcome the assumed distance between object and audience, detailed descriptions of flogging scenes were presented to create empathy in the audience, to allow them to understand fully what it meant to be enslaved.12 However, as Saidiya Hartman has argued with references to U.S. abolitionism, this was a doubled-edged empathy, involving a ‘‘masochistic fantasy,’’ in which, ‘‘in making the other’s suffering one’s own, this suffering is occluded by the other’s obliteration.’’ 13 The symbolic connection among slavery, the whip, and the private power to punish has been one of the most longstanding legacies of the abolition debate. Slavery, private penal power, and flogging line up on one side of a set of contrasts whose opposites are free labor, state authority to punish, and imprisonment. The overwhelming power of this set of oppositions influenced understandings of punishment in the postemancipation period as well as the historiography of slavery and emancipation. Historiographically, it has obscured some important realities: that whipping was carried out on the authority of the state both before and after the end of slavery; that slavery relied on prisons; and that slaveholders made direct use of imprisonment, both on and off their estates. The focus on punishment within antislavery discourse was powerfully gendered. Abolitionists condemned all flogging of slaves, but found the flogging of women particularly offensive, as much because it led to the exposure of enslaved women’s bodies as because of its violence and brutality.14 Concern about the flogging of women is evident from the earliest critical representations of slave punishment.15 By the nineteenth century the idea that the flogging of women was worse than the flogging of men had been integrated into colonial policy. The Order in Council of 1824, which governed slavery in the crown colonies such as Trinidad and set the tone for colonial policy for the other Caribbean colonies for the rest of the 1820s, included a ban on the flogging of women.16 Earl Bathurst, the colonial secretary, declared that the ‘‘object of the prohibition, or rather the motive for it was to prevent the indecent exposure of the persons of females.’’ 17 He described the reasoning behind the distinction between men and women as follows:

Tseng 2004.8.31 07:45

The system of meliorating the condition of slaves . . . cannot better commence than by the adoption of a principle which, by making a distinction of treatment between the male and female slaves, cannot fail to raise this unfortunate class generally above their present degraded level, and to restore to the female slaves that sense of shame which is 6

Introduction

7124 Paton / NO BOND BUT THE LAW / sheet 23 of 308 Tseng 2004.8.31 07:45

at once the ornament and the protection of their sex, and which their present mode of punishment has tended unfortunately to weaken if not to obliterate.18 The primary purpose of the ban on the flogging of women was thus to strengthen slaves’ sense of gender difference, ‘‘raising’’ slaves ‘‘generally’’ by doing so. The specifically feminine ‘‘sense of shame’’ was a common theme in both abolitionist and official discussions of the punishment of women. Bathurst here invokes the commonly held view that a society’s level of ‘‘civilization’’ could be measured in its treatment of women.19 He assumes that African-Caribbean slave women have less ‘‘shame’’ than British middle-class women, who provide the implicit point of comparison. This gendering of abolitionist and official imperial understandings of punishment had far-reaching consequences for the process of the abolition of slavery. Although the Order in Council was initially agreed to by the leaders of the planters based in Britain, colonial legislatures, partly in reaction to the 1823 Demerara slave rebellion, took a much harder line.20 None of them implemented the ban on the flogging of women. The flogging of women on the private order of their owners only became illegal in the legislative colonies with the abolition of slavery in 1834. The abolition of slavery in the British empire was a gradual process, taking place through a period of ‘‘apprenticeship’’ for former slaves which came into effect in August 1834. The organization of punishment, and in particular the organization of gender in punishment, were key to defining the difference between slavery and apprenticeship. While the connection between abolitionism and penal reform within Britain and North America has long been recognized, the extent to which penal reform became incorporated into the project of emancipation itself has been much less noticed.21 If anything, prison reform and antislavery were even more deeply entangled in the colonies than they were in Britain.22 The British Abolition Act removed slaveholders’ direct power to punish, transferring it to a newly created set of state officials known as stipendiary magistrates. Slaveholders (now apprentice-holders) could thus no longer order the flogging of either men or women. But while stipendiary magistrates were encouraged to use flogging as a punishment for male apprentices brought before them, the Abolition Act prevented them from ordering the corporal punishment of women. Apprenticeship thus produced a period of rapid state formation profoundly underpinned by constructions of gender. In this period former slaves, now known as apprentices, came into regular and direct conflict with representatives of the imperial state at introduction

7

7124 Paton / NO BOND BUT THE LAW / sheet 24 of 308 Tseng 2004.8.31 07:45

precisely the moment when that state claimed to be responsible for their liberation. Ironically, penal reform came to symbolize the construction of the new free society even while it created institutions that in certain ways perpetuated the kind of relationships found during slavery. Despite their presentation in Enlightenment thought as operating in opposed worlds, slavery and imprisonment had obvious similarities. Both involved subordination and unfree labor.23 After emancipation, when a second wave of prison building took place in Jamaica, the partial recapitulation of the social relations of slavery within the prison was widely recognized. In 1839 an editorial in the pro-planter newspaper the Cornwall Chronicle advocated a more rigorous program of prison labor within the island’s houses of correction. Citing Jeremy Bentham’s suggestion that a ‘‘suitable motto’’ be placed above the doors of houses of correction in order ‘‘to inculcate the justice, to augment the terror, and to spread the notoriety of this plan of punishment,’’ the writer made two suggestions for Jamaica’s prisons. The warnings above the doors were to read, ‘‘Had they been industrious when free, they need not have drudged here like slaves,’’ or, more concisely, ‘‘Violence and knavery, are the road to slavery.’’ 24 It was not only those who regretted the abolition of slavery who made this connection. John Daughtrey, a firm advocate of free labor and Jamaica’s first general inspector of prisons, also understood the punishment enacted in the prisons he oversaw as a form of enslavement. Describing the ‘‘real severity’’ of the system of discipline in the new penitentiary in 1845, he claimed that imprisonment there was ‘‘in fact a state of selfinflicted slavery, without its alleviations.’’ 25 We have far less access to the opinions of slaves and freed people, but it is likely that they also recognized the connections made by Daughtrey and the unnamed contributor to the Cornwall Chronicle. We know that Jamaican freed peoples’ fears that planters planned to re-enslave them were never far from the surface in post-emancipation society and were usually significant in moments of intense conflict.26 Elite boasts that an institution akin to slavery continued to exist were inflammatory in such a context. Such rhetoric, as well as the institutional similarities between slavery and imprisonment, must have influenced popular understandings of state forms of punishment. A focus on punishment in the transition from slavery to emancipation forces us to distinguish between ruling classes’ attempted strategies of domination and those that actually work. In many accounts, the development of systems of prisons and penitentiaries is presented as an imposition on popular classes over which they have little or no influ8

Introduction

7124 Paton / NO BOND BUT THE LAW / sheet 25 of 308 Tseng 2004.8.31 07:45

ence. Whether the purpose is seen in terms of class analysis, as a means of coercing labor, or in more Foucauldian terms, as the imposition of discipline, the sense of the unconstrained advance of modernity or capitalism is the same.27 Examining these developments in emancipationera Jamaica, though, reveals that, while there was an expansion of the prison system and all that went with it after emancipation, this expansion was not especially successful in perpetuating the coercion of the former slaves. Freed people did, after all, largely manage to extricate themselves from the direct surveillance of the state, although they did not become independent of the world economy. Indeed, in terms of disciplining labor, the post-emancipation penal regime was markedly less successful than that of slavery. Although planters gained some direct access to prisoners’ labor, Jamaica never saw anything like the developments in the postemancipation American South, where it has been convincingly argued that the convict lease system made a major difference to the region’s economic development after the end of slavery.28 The primary reason for this difference was material and political: property holders in post-emancipation Jamaica did not form a strong and coherent enough ruling class to perpetuate the plantation system. Many of the largest former slaveholders, the absentees, disinvested from West Indian property, moving on to make their money elsewhere. The sugar industry went into serious decline and did not recover until the twentieth century. Many plantations were sold: some were consolidated, while others were broken up into small plots. The formerly enslaved population remained dependent on the plantation economy for work but tried, with some degree of success, to limit their wage-working time, making estate labor a supplementary source of income, with their primary attention devoted to growing crops on their own land for home consumption and sale.29 The planters who remained did not manage to organize law and penality in such a way as to create a large-scale captive labor force or to proletarianize the population so as to force them into full-time wage work. Freedpeople, given other options by their ability to resist proletarianization, did not willingly submit to the plantation wage labor that was offered them. Instead, they tried to construct a peasant way of life. They thus removed themselves as far as possible from the subordination inherent in wage labor in plantation societies, a form of subordination that in fact echoed, rather than stood apart from, slavery. The contrast between systems of punishment based on statecontrolled prisons and those based on open violence and the infliction of pain is a mainstay of the history and sociology of punishment. Until the 1970s this change was generally understood as a move toward greater introduction

9

7124 Paton / NO BOND BUT THE LAW / sheet 26 of 308 Tseng 2004.8.31 07:45

‘‘humanitarianism’’; since then it has more frequently been seen as a shift toward more subtle forms of control. Perhaps the most influential work in sustaining this opposition has been Michel Foucault’s Discipline and Punish, which is organized around the idea of a radical break between different modes of power. Discipline and Punish opens by juxtaposing two radically different forms of punishment: a description of the torture of the French regicide Damiens alongside the regulations from an industrial school for juvenile delinquents. We have, as Foucault puts it, ‘‘a public execution and a timetable.’’ 30 These two scenes serve to establish what the rest of Discipline and Punish elucidates: the difference between a mode of power organized through the subjection of the body and one organized around processes of ‘‘normalization.’’ The former stands for what Foucault calls sovereignty; the latter for modernity. Foucault’s achievement was to present an analysis of how these distinctive modes of power worked. He connected the organization of power within prisons to a much broader set of disciplinary practices and presented a powerful argument that they created a dense network of subjection, in the dual sense of domination and the production of subjects. His analysis provides important tools for understanding the workings of power in Jamaica society, both before and after the abolition of slavery. Jamaican elites participated in the construction of systems of power characterized by the processes of normalization, categorization, and individualization described by Foucault. Nevertheless, examination of punishment in Jamaican society both before and after the end of slavery forces us to revise his understanding of modern power. Far from marking a sharp break with strategies of power that inflicted pain on the bodies of subjects, slaveholders and state systems of punishment made direct use of physical violence and the infliction of pain throughout the period discussed here. The contrast between slavery and the whip on the one hand, and the prison on the other, consistently broke down in practice. Prisons developed rapidly from the 1780s and contributed to the consolidation, not the abolition, of slavery. At the other end, chronologically, of the comparison, the whip has rarely been out of use in judicial practice in Jamaica: its most recent application was in the mid-1990s.31 Even when prisons did not rely on floggings—even when the deliberate infliction of pain was not explicitly part of a penalty—punishment remained ‘‘corporal’’ in that the bodies of prisoners continued to be constrained.32 Indeed, Foucault’s carceral timetable itself records a series of orderings of the bodies of prisoners. The mutual imbrication of ‘‘sovereign’’ and ‘‘disciplinary’’ modes of power is shown clearly in Jamaican practices with regard to runaway 10 Introduction

7124 Paton / NO BOND BUT THE LAW / sheet 27 of 308 Tseng 2004.8.31 07:45

slaves—practices that were similar to those of many other Atlantic slave societies. For most of the eighteenth century, the owners of slaves who had run away for extended periods placed advertisements in colonial newspapers describing the runaways. From around 1780, notices placed by the supervisors of workhouses (prisons) holding captured runaways supplemented these advertisements. The workhouse notices, which described the prisoners so that their owners could claim them, clearly belong to the normalizing and individualizing discourse described by Foucault. Each individual is identified by his or her location in a grid of characteristics: name, an ethnic identification, a height measurement, sometimes approximate age, sometimes owner, date of entry to the workhouse, and additional identifying marks, most frequently the scars left either by flogging or by branding with hot metal. The following entry from the Spanish Town workhouse’s advertisement of January 1791 is fairly typical: ‘‘Quasheba, a creole, to Williken’s estate, marked W, HD on left shoulder, 5 feet 6 1/2 inches high. 14 [January 1791].’’ 33 Such notices testify to a process of detailed interrogation and physical inspection that captured runaways must have undergone in order to produce this evidence. Without interrogation, the supervisor of the Spanish Town workhouse would not have known Quasheba’s name or estate of origin; without bodily inspection and measurement, he would not have known that she was branded on her shoulder or her height to the halfinch. This, then, is a precise example of the processes of surveillance and normalization described by Foucault. But embedded within these Foucauldian processes are the signs of another practice: the deliberate infliction of pain on the bodies of people like Quasheba by marking them with brands designed to provide precisely this kind of identification or by flogging them to the point where scars were left. The cataloguing of captured slaves through their identifying marks was only possible because of their prior subjection to the violence of branding and flogging. In this process, then, the imposition of pain supposedly characteristic of premodern forms of power turns out to be intimately joined to the strategies of surveillance characteristic of modern discipline. One way of understanding this situation would be to argue that Jamaica, as a colonial slave–post-slave society, made only an aborted or partial transition to modernity. The development of postcolonial theory has exposed this type of move as making the European experience both subject and measure of historical analysis, and it is not the argument I want to make here.34 Perhaps, then, we are dealing with a specifically ‘‘colonial governmentality’’ in which the Enlightenment attempt to produce the subject-citizen comes up against the assumption of the inherent introduction

11

7124 Paton / NO BOND BUT THE LAW / sheet 28 of 308 Tseng 2004.8.31 07:45

irrationality of the colonized, who must therefore be ruled through violence.35 While this in some ways is a powerful argument, it does not go far enough, in that it persists with the project of understanding colonial societies as characterized by their difference from a European norm. Instead of seeing Jamaica’s experience as deriving from either its backwardness or its specifically colonial status, I argue here that it demonstrates a problem in the binary conception of premodernity–modernity itself. The idea that modern forms of power are abstracted from—indeed, counterposed to—pain and violence is false and is itself a product of the Enlightenment narrative that Foucauldian accounts of modernity claim to contest. Ironically, the stark terms in which Foucault presents the difference between the premodern and the modern inverts the value judgment placed by Enlightenment thinking on these two modes of power but accepts their absolute difference from one another. In so doing, Foucault reinscribes the Enlightenment disassociation between body and mind. In contrast, I argue that body and mind cannot be separated from each other, that modern power works on both, and that violence and pain are fully part of modern power.36 Historians of punishment in Western Europe and North America, along with other followers of Foucault, have tended to accept too readily the claim that the birth of the prison marked a complete break from previous methods of pain-related power. Their studies could benefit from taking account of Jamaican and other colonial developments. This account of the development of a system of prisons within a colonial slave and post-slave society participates in the project, advanced by David Scott, of investigating ‘‘the political rationality of modern power’’ in the colonial context.37 It shares in Scott’s desire to displace the utopian story of freedom associated with narratives of emancipation, without, however, sharing his confidence that we can so sharply define the boundaries between the modern and what preceded it. Scott argues that ‘‘the postcolonial present demands . . . a critical interrogation of the practices, modalities, and projects through which modernity inserted itself into and altered the lives of the colonized.’’ 38 This study is to some extent a response to this demand, at least in terms of the discourses and practices of punishment. (Further studies could fruitfully be undertaken about religion, education, and health, for example.) Yet the terms that Scott proposes for such an interrogation are one-sided. Leaving aside the question of which actors may lie concealed behind the abstraction ‘‘modernity,’’ it is problematic to conceive of ‘‘modernity’’ simply acting on (inserting itself into, altering the lives of ) the homogenized group referred to as ‘‘the colonized.’’ This study reveals a constant 12 Introduction

7124 Paton / NO BOND BUT THE LAW / sheet 29 of 308

process of interaction and contestation: the ground on which a modern colonial society was built was itself created through struggle. As enslaved people, later apprentices, and finally juridically free people experienced punishment and the threat of punishment, they engaged the systems designed to control them. Sometimes their actions involved clear resistance; at other times they were more instrumental, expressing divisions among the popular classes as well as hostility to elites.39 The purpose of elucidating such processes is not to show popular agency for its own sake, as a defensive move designed to demonstrate the humanity of the enslaved and the colonized.40 Rather, I argue that the political practice of subalterns had a direct impact on the exercise of power, on the construction of relations of ruling, and on the organization of labor. This impact was most dramatic at moments of crisis, such as the transitional period between slavery and free labor known as ‘‘apprenticeship.’’ During these four years, the actions of apprentices both inside and outside Jamaican prisons were crucially important for the development of a crisis of colonial rule that turned on the competing claims of the resident planter class and the imperial state for control of colonial penal practice.

Tseng 2004.8.31 07:45

this work does not attempt to provide a total history of Jamaica in the emancipation period or an all-encompassing account of slave society. It does, however, locate the history of punishment within the rapid social, economic, and political changes that took place in the slightly less than 100 years discussed. In 1780, Jamaica was dominated by sugar production, by large estates, and by the annual importation of enslaved people from a variety of parts of Africa. Government was by a British-appointed governor whose powers were in practice subordinated to the House of Assembly, which was elected by white property-holding men. Absentee proprietors in Britain played a significant role both in directing events in the colony and in British political life. The slaveowners’ efforts, under considerable pressure from the growing abolitionist movement in Britain, to maintain their control over a population that massively outnumbered them, that shared little with them in terms of culture and history, and that was thus extraordinarily difficult to establish hegemony over dominated the history of the next fifty years. It was a struggle that the slaveowners mostly won from day to day. Ultimately, however, they were unable to maintain the system of slavery, which was finally abolished in 1838. With emancipation, a great deal changed, and yet much remained the same. Despite the planters’ political defeat, they continued to dominate introduction

13

7124 Paton / NO BOND BUT THE LAW / sheet 30 of 308 Tseng 2004.8.31 07:45

the local state and economy and thus seemed in control. Nevertheless, even as they held on to the best land, their economic power was broken, as they became increasingly marginal within the world economy. Imperial powers did not fight for control of Caribbean possessions in the second half of the nineteenth century, as they had in the eighteenth. By 1870, sugar exports had fallen dramatically and there were fewer plantations, although those that existed occupied a disproportionate share of the island’s best agricultural land. The majority of the no-longer-enslaved population—now Jamaican-born but increasingly African-identified— labored to produce small-scale export crops such as ginger and pimento, as well as foodstuffs for local consumption, while supplementing this income with occasional wage labor. Government was still by a Britishappointed governor, but he now directly appointed an advisory council rather than dealing with an elected assembly. This council included ‘‘brown’’ as well as ‘‘white’’ men. Such contrasts highlight long-term shifts but obscure the historical processes that took place over the course of the period, which was anything but one of linear, unidirectional change. Sugar exports, a measure of the economic and political power of the wealthy planters, increased to the 1810s, stagnated until the 1830s, and then collapsed in the years after emancipation. Popular political participation expanded over time. Free colored men gained the vote just prior to the end of slavery. Freedpeople participated extensively in electoral campaigns after emancipation, and some freedmen were able to vote.41 These steps toward democratization were dramatically rolled back after the suppression of the Morant Bay rebellion, when the Jamaica assembly abolished itself in favor of direct crown colony status.42 There were also continuities. Enslaved people’s day-to-day achievements were as much about maintaining their families, cultivating their provision grounds, and sustaining their spiritual and cultural lives as they were about outright rebellion.43 These achievements formed the basis out of which former slaves built a peasant society in the 1840s. As Sidney Mintz and Douglas Hall showed many years ago, the post-emancipation Jamaican market system developed during slavery.44 Enslaved people not only grew their own food on provision grounds; they also deliberately grew surpluses for sale at markets.45 Many observers commented on the extent and vibrancy of Jamaica’s markets in the late eighteenth and early nineteenth centuries. These institutions had political and cultural, as well as economic, implications. As one observer noted, attendees at the Kingston market came ‘‘in streams of hundreds from every direction, for 20 & 30 miles round . . . not only . . . for these merchantile [sic] and religious 14

Introduction

7124 Paton / NO BOND BUT THE LAW / sheet 31 of 308 Tseng 2004.8.31 07:45

advantages, but [rural Jamaicans] take their tone of political feeling almost entirely from the towns.’’ 46 Far from being isolated on the estates, slaves had a strong awareness not only of events in other parts of the island but also of political developments across the Atlantic.47 Trade, selfdirected production, and family-organized labor were thus by no means new to Jamaicans in the post-emancipation period. The period covered by this book also saw massive change in other parts of the world. It has variously been called the ‘‘age of revolution,’’ the ‘‘age of enlightenment,’’ and the ‘‘age of emancipation.’’ 48 Most of the Americas gained political independence in this period, and there were major shifts in the organization of political power within European states. Large-scale capitalist industry, major cities, and consumer culture became increasingly significant in the world’s economy. All these changes are subjects of intense historiographical debate.49 The history of punishment in Jamaica must be seen in this general context, and in particular in relation to change in Britain and elsewhere in the British Empire. The colonial relationship between Jamaica and Britain meant that the two societies referred to each other ideologically and politically. In the 1830s in particular, and again in the 1860s, Jamaica was a central focus for British concerns about colonial societies. Not only were policymakers in Jamaica always potentially subordinate to decisions made in London, but developments in British social policy and practice also took place with reference to colonial practices and debates. Debates about and practices of punishment, poor relief, relationships between workers and employers, and definitions of gender and class occurred with at least one eye on the colonies. The construction of the state in nineteenth-century Britain drew on techniques of centralization and supervision that had been earlier developed for use in the empire. Jamaica was especially significant in this regard. Thus, while this study is focused on Jamaica, it also sheds light on this complex intertwining of metropolitan and colonial societies and social processes. Throughout the period covered by this book, punishment in Jamaica contributed to the construction of ‘‘race’’ both by enacting racism and by providing a central site for debate about the meaning of blackness, whiteness, and other racial categories. It enacted racism, for instance, through segregating black and white people within prisons and through reserving some punishments such as flogging for black people. It also became a key topic through which elites—including men defined as ‘‘brown’’ or ‘‘colored’’—debated the nature of groups of people they referred to as ‘‘the Negro’’ or ‘‘the African.’’ In so doing, they also implicitly defined the ways in which ‘‘whites’’ or ‘‘Europeans’’ differed from these others. While introduction

15

7124 Paton / NO BOND BUT THE LAW / sheet 32 of 308 Tseng 2004.8.31 07:45

punishment was, of course, only one of many institutions through which ‘‘race’’ was debated and enacted in colonial and post-slave societies, it was at certain moments a very important means through which racial hierarchy, both within the colony and between colony and metropolis, was maintained. Gender is also a central category of analysis for this book, even though the most pressing questions addressed here are not about the construction of gender, nor do I assume that gender is always the central method of marking difference and power. Men’s and women’s experience of the events and processes discussed differed, although this is often occluded in the sources, which frequently present men’s experience as the norm. In reconstructing the experience of emancipation in relation to punishment, I have attended to both men’s and women’s experiences and to the ways in which these were determined by pre-existing gendered practices and ideologies. But more than simply exemplifying existing gender hierarchies, the processes studied here contributed to the reformulation of gender difference. For instance, as noted earlier, the British abolition act’s provisions regarding punishment were crucially gendered, making the flogging of women, but not of men, illegal. This move, a product of the abolitionist critique of flogging as a problem that was especially acute when imposed on women, meant that during apprenticeship women convicted of offenses were more likely than men to be sent to the island’s prisons, producing an acute crisis for abolitionist understandings of proper punishment. Later, in their belief that a modern prison kept men and women apart and ‘‘rehabilitated’’ them in gender-appropriate ways, abolitionist penal reformers contributed to the elaboration of new ideals of freed masculinity and femininity.50 Gender hierarchy was not, however, simply imposed on freed people from above. The unofficial quasi-judicial practices of freed communities both contested the power of the state and asserted the political dominance of men within those communities. This study of issues of law, justice, and punishment would not have been possible without the work of many historians of slavery, emancipation, and post-emancipation society, on Jamaica and other parts of the Atlantic world. Influenced by wider developments in social history, and by the needs of new nations for a history of ‘‘the people,’’ the last generation of studies has largely turned away from an earlier concentration on white society, on the development of the plantation economy, and on the interaction of the imperial government with the local state, focusing instead on the cultures, communities, and labor of enslaved and freed people.51 This work has done much to augment our knowledge, in particular of the labor process and slaves’ role in negotiating it; of urban 16 Introduction

7124 Paton / NO BOND BUT THE LAW / sheet 33 of 308 Tseng 2004.8.31 07:45

society during and after slavery; of religion, including the influence of missionaries and the growth of African-oriented religions; and of popular involvement in post-emancipation politics. Collectively, this work has broadened the concept of ‘‘resistance’’ and has added to our understanding of the autonomous aspects of slave communities. Some recent influential work on slavery has, however, had a romantic tendency, abstracting enslaved and freed people from the wider networks of power, including state power, within which they lived.52 Accepting Philip Corrigan and Derek Sayer’s dictum that ‘‘history cannot only be written from below,’’ this study is concerned largely with questions of power and domination, emphasizing analytically the importance of state formation both during and after slavery.53 It integrates these questions with the interest in popular culture and popular politics that has been so fundamental to recent social history.54 Thus, it emphasizes that state decisions were not simply worked out in conflict between local and imperial elites. They were also influenced by the politics of ordinary Jamaicans. Recognizing this makes it essential to pay attention to the local processes by which a network of state institutions was built. These included the various kinds of courts in which ordinary people participated, both during and after slavery, and the activities of people within and outside prisons. Representatives of the imperial state in London and the local Spanish Town–based authorities could and did plan and strategize, designing ideal prisons and penal systems, and theorizing about how ‘‘the Negro’’ would respond to a particular form of punishment. In practice, however, their plans worked out in ways that were significantly influenced by local contestation and negotiations. Any study of slave and post-slave societies will include troubling material. Focusing as it does on the most coercive and inhumane aspects of one such society, this book does so more than most. Dealing with these topics requires that both author and reader reflect on the value and purpose of discussing them. As Saidiya Hartman has argued, there is a danger that ‘‘the ease with which such scenes [of violence towards enslaved people] are usually reiterated, the casualness with which they are circulated . . . immure[s] us to pain by virtue of their familiarity . . . and . . . reinforce[s] the spectacular character of black suffering.’’ 55 Similarly, discussing the repeated impositions of the powerful on the dominated can reinforce power. I have attempted to deal with this problem in three ways. First, I have limited quotation of what Hartman refers to as ‘‘scenes of subjection’’ to those that are necessary to demonstrate an analytic point. Second, I have tried to describe the experiences of enslaved, apprenticed, and freed people using their own words whenever these were recorded. introduction

17

7124 Paton / NO BOND BUT THE LAW / sheet 34 of 308 Tseng 2004.8.31 07:45

Third, and most important, the analysis here gives full weight to the politics of those who were subjected to punishment and imprisonment, to their understandings of and strategies for dealing with these forms of domination. Nevertheless, some readers may still find the tone problematic. One reader suggested that the subjects this book deals with should not be discussed in a ‘‘rationalist’’ manner, that the historian’s emotional response to the suffering documented should be present on the page. To maintain an analytic tone in the face of the beatings, imprisonments, and deaths described within may appear as a failure of compassion, as a refusal to engage with the humanity of the people that the book is ultimately about. Despite this, I do write primarily from within an analytic and academic register. Heavy-handed expressions of outrage and horror are ultimately patronizing to the reader, who, I trust, does not need overt instruction in how to respond. Mere expressions of outrage at what is clearly outrageous and horrific are inconsequential in dealing with the kinds of relations of domination discussed in this book, especially given the inability of language to represent pain.56 A moralistic but ultimately easy condemnation of events in the past carries with it the danger of an inappropriate analytic distancing of our own time from the historical time discussed. More useful is an investigation of the historical circumstances under which the events examined took place and the connections of such circumstances with our own world. This book aims to provide such an investigation.

18 Introduction

7124 Paton / NO BOND BUT THE LAW / sheet 35 of 308

Chapter One prison and plantation

Tseng 2004.8.31 07:45

In 1770 there were three penal institutions in Jamaica: the county gaols in Kingston, Spanish Town, and Savanna La Mar. By 1820 there were sixteen ‘‘houses of correction’’ (also known as ‘‘workhouses’’) spread in towns across the island, and many parishes had built their own gaols. Intense attention to prisons in the late eighteenth and early nineteenth centuries is, at first sight, unsurprising. This period has, after all, been identified as the moment of the ‘‘birth of the prison.’’ 1 While the new houses of correction were built in Jamaica, prisons were being built or rebuilt across Europe and the United States. The wave of prison building in Jamaica was part of a movement taking place in much of the Atlantic world. Jamaica’s status as a colony and as a slave society did not mean that it ‘‘lagged behind’’ the metropolis in this key aspect of the development of the state’s means of repression. And yet the new Jamaican prisons, because they were in a slave society, did not serve the same purpose as those in Britain, France, or the Northern United States. Their inmates were enslaved people who had managed to escape from the plantations or had been sent in for punishment on the private order of their masters or mistresses, and people convicted of crimes (often crimes that by definition could only be committed by slaves, such as being an ‘‘incorrigible runaway’’). The Jamaican prison population thus differed from that of a typical prison in a contemporary ‘‘free’’ society such as Britain in two important ways. First, it included large numbers of people committed without judicial procedures. Second, the majority of the prisoners were held for life at a time when the longest prison sentence in Britain was three years.2 The development of the

7124 Paton / NO BOND BUT THE LAW / sheet 36 of 308 Tseng 2004.8.31 07:45

prison in the industrializing world has been seen as a stage in a longer process in which state penal institutions over time displace other, private, forms of discipline that had been organized through structures such as the household, the church, the landed estate, or the kin group, and in which modern modes of disciplinary or governmental power displace earlier forms of sovereignty.3 In contrast, in Jamaica, state-operated penal and disciplinary mechanisms existed alongside ‘‘private’’ forms of punishment directed by slaveowners, while modern modes of punishment existed side by side with—indeed, were intertwined with—violent and spectacular modes of power and domination. Rather than standing in counterpoint to the supposedly premodern institution of slavery, Jamaican prisons were established precisely in order to protect that institution. Studies of Caribbean slave societies have almost completely neglected the development of the prisons for at least two reasons. First, attention to direct violence inflicted on the bodies of enslaved people, especially by whipping, dominates discussions of coercion in slave societies.4 Planters’ insistence, despite external pressure, on maintaining their legal power to use the whip in the fields and to whip enslaved women reveals that bodily violence was certainly central to the maintenance of slavery.5 Still, historians’ emphasis on flogging at the expense of analyzing other forms of coercion reflects the influence of abolitionist propaganda’s attention to whipping, as well as the practice’s real significance.6 As David Brion Davis notes, the abolitionists’ emphasis on the whip as the symbol of slavery meant that, ‘‘at a time when English industrialists were devising ingenious and more efficient substitutes for physical punishment, the slave system could symbolize a discredited form of authority that seemed to require the personal imposition of continuous pain.’’ 7 Historians’ repeated reproduction of a view of slave society as utterly different from free society in its means of discipline and coercion perpetuates a common-sense view of slavery as divorced from modernity, despite the widespread acceptance of interpretations of the plantation as the prototype of modern industrial production.8 Second, the historiography of slavery has to a large degree focused on planters as entrepreneurs, on relationships between slaveholders and enslaved people, and on the life of the ‘‘slave community.’’ 9 These approaches, frequently taking an individual plantation or set of plantations as the unit of study, differ substantially among themselves but share a lack of attention to the wider relationships of power in which planters and enslaved people were embedded, and in particular are uninterested in questions related to state formation and state power. Pioneering early work, such as that of Elsa Goveia on the West Indian slave codes, and of 20

Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 37 of 308 Tseng 2004.8.31 07:45

Edward (Kamau) Brathwaite on ‘‘creole society,’’ which emphasized the importance of the planter class’s domination of the colonial state, has not been developed in recent historiography.10 As a result, many aspects of Jamaican society during the period of slavery, prisons included, remain to be explored. The use of publicly funded prisons for the capture of runaways and the privately authorized punishment of slaves was a common feature of slave societies. In the American South, Brazil, the French Caribbean, and the Cape Colony, states organized penal institutions that held captured runaways, enslaved people convicted of crimes, and slaves sent for punishment by order of their owners. This phenomenon has been noted, but little detailed attention has been paid to it.11 A closer examination of the development of penal institutions during slavery in Jamaica thus provides wider insights into power relations in Atlantic slave societies more generally. The development of a substantial prison system in a slave society was full of contradictions. The prison as a form of punishment worked through the principle of ‘‘less eligibility,’’ which held that the conditions of penal institutions (and other state institutions, such as workhouses for the poor) had to be worse than the conditions of the poorest person outside the institution; otherwise, poor people’s rational choice would be deliberately to get themselves incarcerated to gain access to the better conditions inside. In a free-labor society, the very denial of autonomy involved in incarceration automatically introduced an element of ‘‘less eligibility’’: on this principle the British New Poor Law of 1834 denied ‘‘outdoor’’ poor relief to able-bodied adult males.12 English prisons thus stood in contrast to a free world beyond the prison walls, functioning as a symbol of unfreedom and demonstrating what happened if people did not use their freedom in authorized ways.13 This symbolic function of the prison did not work easily in an unfree society. A punishment whose premise was the deprivation of freedom faced problems in maintaining its reputation for severity when most of the people who suffered it were already unfree. The similarity between enslaved people’s experience within and outside prison makes this clear. Prison inmates were forced to labor by flogging and the threat of flogging—very much as were enslaved people all over Jamaica. In addition, the idea of reforming the inmate’s character or transforming his or her soul, which was becoming dominant in British prisons in this period, made little sense in a society that denied the personhood of the vast majority of people. In the context of slave society, reform and rehabilitation meant enslaved people’s acceptance of their subjection. prison and plantation

21

7124 Paton / NO BOND BUT THE LAW / sheet 38 of 308

And yet, as the persistence of escape from the prisons shows, enslaved people were no more likely to acquiesce to their domination within prisons than in plantation society more generally. Indeed, one consequence of the establishment of a large-scale prison system in Jamaica may have been the facilitation of communication among some of the most persistently oppositional slaves from different estates and areas by forcing them to spend time in the same space. It is much harder to find evidence of prisoners’ actions, conversations, thoughts, and intentions than it is to locate the plans, goals, and acts of slaveholders and prison managers. As a result, it is easy to mistake prison managers’ descriptions of prisons, which generally present an account of the prison as the manager thought it should run, for real accounts of the social dynamics of prison life. Nevertheless, the traces through which we can gain some knowledge of the prison from the point of view of the prisoners suggest that the new workhouses became sites for the exchange and development of knowledge and strategies of resistance, along with other forms of sociability. As they could in daily life outside the prisons, enslaved people in prison could twist and transform—but not completely overturn—technologies aimed at their domination.

The Establishment of the Workhouses

Tseng 2004.8.31 07:45

The rapid expansion of the state prison system in the late eighteenth century marked a break with the preceding colonial period. Jamaican legislators had passed an act authorizing workhouse building in 1683, but this did not lead to the establishment of penal institutions.14 Instead, during this period the colonial state delegated day-to-day authority over slaves to slaveholders, placing little constraint on their power to inflict violence. The British imperial state supported slaveholders’ power through the naval and army regiments stationed permanently in the Caribbean, which fought the maroons and suppressed slave rebellions, as well as participating in intra–European wars of colonial conquest.15 Enslaved people could be tried for serious crimes in slave courts, which inflicted severe punishments, including death, mutilation, transportation (organized with minimal state support), and flogging. State agencies did not, however, take responsibility for imprisoning slaves; nor did they provide substantial resources for organizing their punishment or for facilitating their private punishment by masters.16 Until 1759 there was only one penal institution in the island: the Middlesex County Gaol in Spanish Town. Gaols for the counties of Surrey and Cornwall were built—in Kingston and Savanna La Mar, respectively—following the passage of legislation in 22 Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 39 of 308

that year.17 Edward Long noted with disapproval that the Middlesex gaol was ‘‘perfectly pestilential’’ and that its residents included both debtors and criminals; both whites and what he termed ‘‘the most bestial and profligate wretches of the Negroe race.’’ 18 With no systematic means of extracting labor from the prisoners, and no attempt made to categorize them, these gaols were similar to the British ‘‘unreformed’’ gaols of the period.19 This essentially passive relationship between imperial state, local state, and slaveholder shifted dramatically in the last sixty years of slavery’s existence. In the 1770s, the Jamaican Assembly passed a series of acts empowering parish authorities to build penal institutions: first parish gaols, then a workhouse or house of correction in Kingston, and in 1780 workhouses throughout the island.20 By 1780, the first year for which Jamaican newspapers are extant, there were at least eleven parish or county gaols, and there was a workhouse in Kingston.21 The workhouses rapidly became the heart of the new Jamaican penal system aimed at enslaved people, while the gaols generally confined free people imprisoned for debt. The sequence in which workhouses were created across Jamaica provides an index to local processes of state formation and to the degree of planter class cohesion in the different parts of the colony. The earliest parishes to open workhouses were located in the major sugar growing areas. St. James, Trelawny, and St. Ann, the three wealthy sugar parishes in the center-north of Jamaica, all established workhouses within a year of the passage of the 1780 act empowering them to do so. By 1790 there were a further eight workhouses spread across Jamaica, leaving eight parishes without a workhouse (see Map). Gradually over the next decades, these other parishes established workhouses. By the 1820s, of those parishes that had no workhouse, St. John and St. Dorothy formed part of the ‘‘precinct’’ of St. Catherine, sharing the house of correction in Spanish Town, while St. David was served by the workhouse in Morant Bay, St. Thomas in the East. Thus, planters throughout Jamaica had access to houses of correction. In comparison with other Caribbean colonies at this time, Jamaica had a highly developed penal system.22

Tseng 2004.8.31 07:45

why did this rapid expansion of the Jamaican state penal system take place in this period? Why were workhouses attractive to parish authorities in the 1780s but not in the 1680s? One explanation would attribute Jamaican prison-building to diffusion or mimicry. The expansion of the Jamaican prison system coincided with a wave of prison construction in England and the United States. Many prisons, especially in the form of prison and plantation

23

7124 Paton / NO BOND BUT THE LAW / sheet 40 of 308

10

0

St. Thomas in the Vale

Montego Falmouth Bay

Lucea

Hanover St. James

Westmoreland

Trelawny

St. Ann’s Bay

St. Ann

Port Maria

20

miles

St. Andrew

St. Mary

Manchioneal (est. 1834– Savanna 1838) St. George Man- Clarendon Point Rodney La Mar Port Antonio Hall Hill St. Elizabeth chester St. Portland Half Chapelton John Way Tree Mandeville Spanish St. Thomas Black River Town Houses of correction in the East Easington Vere Port established before 1782 Morant Royal Kingston established 1782–1791 Milk River Old Port Bay Bath established 1792–1833 Kingston Royal St. Harbour established 1834–1838 St. Catherine David St. Dorothy Buff Bay

Parish names appear in roman type. Location of houses of correction, in most cases the principle town of the parish, appear in italics.

map 1 Establishment of workhouses in Jamaica, 1780–1838. Parish names appear in roman type. Location of houses of correction, in most cases the principle town of the parish, appear in italics.

Tseng 2004.8.31 07:45

houses of correction or ‘‘bridewells,’’ had been built from the late seventeenth century on, but the late eighteenth century saw an intensification of attention to and (re)construction of penal institutions. Forty-five new ‘‘reformed’’ prisons were built in England between 1775 and 1795.23 Perhaps Jamaican elites were simply following what was going on in Britain. The British example surely had some impact but is unconvincing as the main explanation. Not all British developments were taken up in Jamaica, after all, so even if prison building spread from Britain to the empire, we would still need to explain why this British development was attractive to Jamaican elites while other developments were rejected. In addition, the Jamaican prisons did not directly follow their British counterparts. Unlike reformed British prisons, which occupied large, specially constructed buildings, Jamaican prisons were generally small and in the eighteenth century were not housed in specially designed buildings. Many were in buildings that had been converted from another use and so did not have architecturally integrated security features. In St. Ann, for instance, the vestry decided in February 1781 to rent the house of one John Ware for a workhouse, on the condition that he provide a fence around his yard, build a new kitchen, and provide ‘‘a proper Platform for the Negroes to sleep on.’’ 24 Thus, the workhouse was architecturally little different from an ordinary residence. Those parishes that remained longer without a workhouse were more likely eventually to build a specifically designed institution. When the parish of Manchester was created in 1816, its vestry immediately invited 24

Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 41 of 308 Tseng 2004.8.31 07:45

tenders to build a combined workhouse and gaol, as well as a church, a parsonage, and a courthouse. The vestry drew up a plan specifying that it wanted a stone building, 38 by 28 feet, including two rooms for ‘‘Workhouse Negroes,’’ a room for ‘‘Prisoners,’’ and a piazza, as well as rooms for the gaoler.25 Similarly, when the parish vestry of St. David finally decided to build a workhouse in 1834, it commissioned a plan for the building and then advertised for builders to fill its precise requirements.26 These buildings used architectural designs that were not very different from contemporary residential buildings rather than adopting the radiating or pentagonal-style prison designs that were common in England from the late eighteenth century on.27 This may have been because of the need to build cheaply, but it also demonstrates that there were reasons internal to Jamaica for building prisons. The colonial authorities were not simply responding to external pressure or adopting ideas from outside the colony. If Jamaican authorities were not simply importing ideas from elsewhere, they may well have been responding to similar pressures in similar ways. Explanations for the rise of the prison in other societies may thus help to explain what happened in Jamaica. Analysis of the Jamaican experience may also provide a way of assessing and revising other approaches to the history of the prison. The two most powerful explanations for the rise of the prison have been developed by Marxist scholars on one hand, and by Foucault and his followers on the other. Marxists have connected the rise of the prison as a form of punishment to the needs of capitalism, defined as a system of production dominated by wage-labor relations. Starting with Georg Rusche and Otto Kirchheimer in the 1930s, and pursued more recently by scholars such as Christopher Adamson, Alex Lichtenstein, and Dario Melossi and Massimo Pavarini, a powerful argument has been made that the growing prominence of the prison was intricately linked with the rise of capitalism.28 These scholars argue further that the variation in the form of prison punishment at different times (primarily deterrent at some points, primarily reformative at others; at some points attempting to mobilize the labor of prisoners for productive purposes, at other times enforcing unproductive labor) depended on the economic needs of capital at different points in time. A second strand of Marxist interpretation has connected the prison term to the ideological rather than the economic needs of capitalism, arguing that a punishment that works by depriving a subject of his or her time fits perfectly in the context of a society in which time has become commodified—that is, in a society of wage laborers— but makes little sense under other modes of production.29 Foucault, by contrast, explains the rise of the prison as part of a larger prison and plantation

25

7124 Paton / NO BOND BUT THE LAW / sheet 42 of 308 Tseng 2004.8.31 07:45

shift from a society in which power is based on sovereignty to one in which it is based on ‘‘discipline.’’ 30 He argues that the penitentiary is paradigmatic of modern power as it operates in what he calls the ‘‘carceral society.’’ For Foucault, what is most important is what takes place within the prison—in particular, its use of disciplinary modes of power: the production of a new type of subject through classification, arrangement in space, surveillance, and ‘‘normalization,’’ by which he means the correction of every minute deviation from the norm that is being imposed. This kind of power is qualitatively different from the violence and spectacle of the ‘‘sovereign’’ mode of power; it is productive power, constituting a particular form of the self. Although he largely avoids labeling the society of the disciplines ‘‘capitalist,’’ Foucault’s thesis is in many ways compatible with those Marxists who see the relationship between capitalism and the prison as significantly ideological. He makes a similar argument to Evgeny Pashukanis and Melossi and Pavarini when he asks, ‘‘How could the prison not be the penalty par excellence in a society in which liberty is a good that belongs to all in the same way?’’ 31 Neither the Marxist nor the Foucauldian approach to the rise of the prison fully explains it in a slave society. Indeed, because they both directly link the prison to a society dominated by wage labor or an ideology of ‘‘liberty,’’ they would lead us to expect that prisons would not exist in such a society. As Adamson writes regarding the U.S. South, ‘‘The very idea of imprisonment as a punishment for crimes committed by slaves was a contradiction. The African slave was already a prisoner.’’ 32 This difficulty—of punishing unfree people with a penalty that relied on the deprivation of freedom—certainly did cause problems with imprisonment in Jamaica during slavery and apprenticeship. It did not inhibit Jamaican elites in establishing and making use of prisons, however. This fact suggests some problems with these theoretical approaches. While these problems mean that we should not simply attempt to map explanations for the rise of the prison in capitalist (in the sense of being dominated by wage labor) societies to Jamaica, their underlying approaches are helpful. The Marxist approach is particularly valuable in emphasizing the material dimensions of penal policy and practice. Specific forms of punishment emerge out of processes of struggle, not simply out of ideologies. Meanwhile, Foucault’s work usefully directs our attention to the micro-politics of the prison’s internal regime. In Jamaica, the prisons developed as one step in the protracted struggle between slaveholders and enslaved people. This struggle permeated every aspect of slave society’s existence. On a day-to-day level, it was most intense around running away, a practice by which enslaved people not 26 Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 43 of 308 Tseng 2004.8.31 07:45

only denied slaveholders their labor but also threatened the plantation system itself. Runaways often subsisted through theft of plantation resources; they provided encouragement to other slaves to escape; and they might, if grouped together with other maroons, become sparks for rebellion. The threat of runaways was a major reason for the establishment of the workhouses. The preamble to the 1777 act allotting £500 to the Kingston authorities for the building of ‘‘a public work house or house of correction’’ emphasized the need to provide ‘‘a proper receptacle for all idle and runaway slaves.’’ 33 Similarly, in 1801 Port Royal’s white inhabitants petitioned the Jamaican assembly for funds to erect a ‘‘place of confinement’’ to control ‘‘the number of runaway Negroes with which [the town] is infested.’’ 34 The prisons were a technology especially appropriate as a response to this slave strategy of resistance, because their spread throughout the island made returning runaways easier and more routine, almost bureaucratized. The establishment across Jamaica of a dense network of workhouses to hold and discipline captured escapees represented the joining of slaveholders’ resources to defend their interest in slavery more effectively than they could alone. Before the workhouses were built, runaways could only be returned if the private individual who captured them made the effort to establish who the owner was. With the new workhouses in place, a mechanism existed whereby a runaway could be taken to a specified place, and slaveowners whose slaves had run away knew that the workhouse would regularly advertise their holdings. The new network of workhouses thus made it more difficult for escapees to avoid capture and provided an additional threat to the enslaved population as a whole as to what might happen if they did not behave as required.35 But the workhouses’ contribution to the maintenance of slave society was not simply a matter of controlling the resistance of enslaved people. They also played an ideological role in the reproduction of the idea of racial division and hierarchy, an essential requirement of Atlantic slave societies. Edward Long attacked the Middlesex County Gaol for its mixing of ‘‘all sorts, all sexes and complexions’’; this was, he continued, ‘‘highly disgraceful to the publick humanity, more especially in a country where it is thought politically expedient to maintain a distinction between whites and Negroes.’’ 36 The workhouses were to be places where the ‘‘promiscuous crowding’’ that Long opposed would no longer take place. As well as controlling runaways, the initial workhouse act referred to the ‘‘great number of White Vagrants’’ as a central reason for building the workhouse. It specified that ‘‘[a]ll white persons committed or sent to the work house shall be lodged and worked separate and apart from the prison and plantation

27

7124 Paton / NO BOND BUT THE LAW / sheet 44 of 308 Tseng 2004.8.31 07:45

free negroes, mulattoes, and slaves in the work house.’’ Part of the work of the workhouse, then, was the reproduction of ‘‘race’’ as a dividing line even more significant than free or enslaved status. In the spatial configuration of the workhouse, free ‘‘negroes’’ and ‘‘mulattoes’’ were classified as having more in common with enslaved people than with whites. Nor was the establishment of prisons an isolated step in planters’ struggle to defend slavery. Rather, it was part of a struggle internal to the planter class, which was itself related to Jamaican planters’ self-assertion and attempt to strengthen themselves in relation to the British imperial state. At the same time as they decided to build prisons, Jamaican authorities also took a number of other important decisions, which collectively transformed Jamaica into a new kind of slave society. Throughout Jamaica, prison building took place alongside the development of a variety of characteristically modern institutions such as hospitals and asylums, as well as some more traditional ones, like churches. At the same time the assembly restructured the system of weights and measures, increased public expenditure on health including the establishment of a hospital in Kingston, and provided schools for free children. It restructured the slave laws, enacting a series of ‘‘consolidated slave laws’’ that, among other things, outlawed the infliction of punishments of mutilation on enslaved people. This period also saw the reorganization of the militia and the legal requirement that plantations be able to defend themselves.37 Edward (Kamau) Brathwaite dates the development of ‘‘creole society’’ in Jamaica to this period, commenting that ‘‘[c]reolization . . . was an aspect of white control and the Assembly’s function was, in the final analysis, to express this, ensure this, and perpetuate it.’’ 38 The construction of the workhouses was part of this process of the creation of a ‘‘creole society,’’ which was itself a process of state formation in which the ruling elite expanded and more strictly regulated a wide range of institutions. This process of state formation was motivated by the colonists’ desire to move away from the state of almost perpetual war with the enslaved population and in particular with the maroons that characterized Jamaica during its first century as an English colony.39 Elite planters hoped to achieve a less precarious form of rule. Their efforts to stabilize their domination did not aim to ensure the self-regulation of enslaved subjects; the control of enslaved people in Jamaica always relied heavily on coercion. The development of the prisons coincided, for instance, with the establishment of committees of security in all parishes looking for sedition. There was also a large and growing military force in Jamaica in the 1790s.40 28

Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 45 of 308 Tseng 2004.8.31 07:45

Most aspects of the reconstruction of the creole state were not directly aimed at controlling enslaved people. Rather, they represented the effort of the most powerful slaveholders, those whose opinions weighed most in the Jamaican assembly, to establish hegemony over their own class— that is, over other slaveholders.41 The new form of the state demanded the self-regulation of slaveholders, who accepted some limits on their individual autonomy and power over slaves in return for a more effective local state.42 In practice, this ‘‘self ’’ regulation frequently fell most heavily on the least well-off slaveholders, often those who were urban, female, and of color. Thus, for instance, in 1823 a ‘‘free sambo’’ woman named Ann Letman was summoned before the Kingston Common Council to answer the charge that she had ill treated her slave Sarah Williams, who she had sent to the St. Andrew workhouse to be severely whipped. Perhaps because Williams was able to prove that she had paid Letman £120 for her freedom, the council agreed that Letman should be prosecuted for cruelty.43 A few years later, a ‘‘mulatto’’ slaveowner named William Sutcliff was convicted of mistreating a female slave, Rebecca Clarke, to whom he had behaved with extreme cruelty. Sutcliff was fined and sentenced to twelve months’ imprisonment; Clarke was freed.44 Defenders of slavery could cite such prosecutions to demonstrate that there was no need for imperial interference in Jamaica’s affairs; its local ruling class was perfectly capable of regulating things. The increasing power of the state over slaveholders was not used only to restrain them from committing cruelty, however. It was also intended to ensure that slaveholders maintained appropriate control over their slaves. The new slave codes included several offenses designed to ensure that free people played their part in the defense of slavery. Not only was the positive action of helping a slave to escape a crime, but so were the more passive acts of allowing unlawful assembly of slaves and allowing slaves to keep horses. The workhouses formed part of this means of ensuring that all slaveholders played their part in the maintenance of slavery. Their existence meant that even if a slaveholder was negligent or incompetent, his or her slaves could still be effectively disciplined through the technologies of the state. Such decisions have to be seen in a political frame that extends beyond Jamaica. Struggles among different groups of slaveholders, and between slaveholders and enslaved people, took place in an imperial and transnational context in which Jamaican leaders faced threats on all sides: the increasingly popular antislavery movement in Britain; economic difficulties as new territories moved into sugar production while older sugar-producing colonies faced declining production; and perhaps prison and plantation

29

7124 Paton / NO BOND BUT THE LAW / sheet 46 of 308 Tseng 2004.8.31 07:45

most significant, the example of a successful antislavery and anticolonial revolution in nearby Haiti. In this context, it was politically imperative for slaveholders to form themselves into an effective ruling class, and in so doing, to demonstrate that they were modern and legitimate. They needed to counteract the stereotype of West Indian whites as crude, barbaric, and vulgar.45 Thus, prisons were adopted as part of a process of complex class struggles among planters, slaves, and the external forces influencing Jamaican slave society. They had two primary functions: to capture runaways, and to demonstrate the modernity and self-regulatory ability of Jamaican slave society to outsiders. In the long run, Jamaican slaveholders were unsuccessful in the latter task: they were not able to protect slavery. But in the immediate period the establishment of the prisons, along with a range of other measures both ‘‘positive’’ (such as the establishment of health care and new systems of weights and measures) and ‘‘negative’’ (the militia, military, committees of security) succeeded in creating a population that, despite ongoing slave resistance and the major rebellion of 1831, was less able to rebel in this period than in any other period of slavery in Jamaica. The establishment of the prisons was in part a demonstration of the strength and organization of the Jamaican planter class, and ultimately, as David Geggus suggests, ‘‘[T]he stability of a slave society was determined far less by the ideas circulating in the slave quarters than by the strength and unity of the master class.’’ 46 Still, even while the prisons provided a useful weapon in the planters’ battle against slave resistance, they never displaced other, more overtly violent, means of control. In particular, at moments of crisis Jamaica’s rulers turned to the familiar means of terror and spectacle.47 In late 1823, in response to rumors of a planned slave rebellion (and no doubt stimulated by the recent Demerara rebellion), thirteen slaves were sentenced to hang, eight to transportation for life, and nine either to imprisonment or flogging and imprisonment. More executions and transportations followed a minor rebellion six months later. The court ordered that the convicts be hanged ‘‘on a gallows to be erected in the Mill Yard[s]’’ of Argyle and Golden Grove estates.48 In 1831, the planters’ response to major rebellion was swift and bloody: 312 were hanged, either in the public square of Montego Bay or on their home estates, and many others were shot without trial during the suppression of the rebellion. In the rebellion’s aftermath, disciplinary punishment gave way almost completely to the spectacular. As Mary Turner notes, ‘‘[P]risoners were executed . . . [for] offenses usually punished by whipping and workhouse sentences.’’ 49 The 30

Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 47 of 308

heads of those executed were displayed on poles around the area that had been in rebellion until at least October 1832.50 Nevertheless, even in these dramatic instances of state violence, elements of disciplinary punishment persisted. It is notable that some of those convicted in both 1823 and 1831 received sentences of hard labor. The prisons in Montego Bay and Lucea were both ‘‘crowded with prisoners’’ in February 1832, as captured rebels awaited trial.51 During the mass executions in Montego Bay, the ‘‘hard labor’’ of the ‘‘workhouse negroes’’ was put to novel and gruesome use: removing and burying the ‘‘heaps of bodies’’ of executed rebels that accumulated under the gibbet.52 In these events, discipline and sovereignty worked hand in hand to perpetuate the domination of slaveholders over slaves.

The Uses of Imprisonment

Tseng 2004.8.31 07:45

The preceding discussion rests on the so far unproven assumption that the new penal institutions played a significant role in defending the power relations of slave society. It might be that, despite their large numbers, the workhouses were unimportant. Establishing their influence requires a sense of the scope of their use and how they related to other forms of struggle, in particular struggle between slaves and slaveowners. Although only a few detailed records from and about the houses of correction survive, evidence does suggest their value to slaveholders. Information from a variety of sources demonstrates that large numbers of slaves experienced imprisonment and that slaveowners considered the prisons an important disciplinary resource in the maintenance of their power.53 The continued preparedness of parishes to pay to support the workhouses suggests that the wealthier resident planters—those who sat on the vestries and parish councils—considered them useful and important institutions. Estate records corroborate this. Letters between attorneys or overseers and proprietors generally ignore problems of disciplining workers but do mention the use of prisons in exceptional circumstances. For instance, Roselle estate imprisoned two women, apparently privately, in the Kingston workhouse with the intention of ridding the estate of them permanently. The sources do not reveal the details of the situation, but it seems that the women had been the lovers of free managers who reneged on promise to purchase their and their children’s freedom. The women’s actions in response can only be guessed at, but they led to their incarceration and to the attorney’s conviction that ‘‘neither of the women ought to be allowed to return to the estate.’’ 54 On Trout Hall prison and plantation

31

120 100 number

7124 Paton / NO BOND BUT THE LAW / sheet 48 of 308

140

80 60 40 20 0 1791

1795

1797

1801

1806

1811

1816

1821

1826

1831

Total runaways advertised at the beginning of the year Runaways advertised by most populous workhouse Number of workhouses advertising Runaways per workhouse

figure 1 Captured runaways advertised by Jamaican workhouses, 1791–1831. Source: Royal Gazette (first advertisement by each workhouse in each year).

Tseng 2004.8.31 07:45

estate, ‘‘Bricklayer Tom’’ was sentenced to two years in the workhouse for ‘‘wickedness’’; after serving the full two years, the estate management arranged for him to be sold.55 While the details of individual cases gleaned here are rare, more frequent references to imprisonment can be found in estate account books, which usually include regular sums paid to prisons, primarily for the return of runaways but also sometimes for the privately ordered incarceration of insubordinate slaves.56 Ardoch Penn, for instance, paid St. Mary’s workhouse £1 7s. 6d. in June 1816 to retrieve a slave named Liverpool and in November of the same year paid more than £4 to fetch a ‘‘notorious absconder Frank’’ from the Spanish Town workhouse.57 The accounts of Ferry Penn include four or five entries per year involving payments to workhouses.58 These fragmentary sources add up to evidence of regular use by estate managements of the workhouses as an adjunct to their estate-based methods of control. Quantitative sources demonstrate that a substantial number of slaves passed through the workhouses, in particular as runaways. Between 1791 and 1831 workhouses across Jamaica were advertising at any one time an average of 102 slaves as runaways out of an enslaved population of between 300,000 and 350,000.59 Within this there was variation: over time 32

Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 49 of 308 Tseng 2004.8.31 07:45

the average number of runaways held declined from a peak of 126 in 1791 to 71 in 1831, even while the number of workhouses increased (see Figure 1). There was also a wide variation in the populations of individual workhouses: some, such as Spanish Town and Kingston, regularly advertised more than twenty runaways, while many others frequently advertised fewer than five.60 This distribution suggests that runaways frequently aimed for urban locations where evading capture was easier. While holding runaways was the most visible and easily quantifiable use of the prisons, many enslaved people also spent time in prison through other methods. Planters could send enslaved workers to be whipped and incarcerated in a parish workhouse, paying a daily fee for the service. The law did not limit the length of time a slave could be sent to the workhouse, nor did planters who sent their slaves to workhouses have to give reasons for doing so.61 Quantitative and qualitative sources demonstrate planters’ frequent use of their power to privately commit their slaves. Slaveowners committed around 2,350 slaves privately to the St. Thomas in the Vale workhouse between 1826 and 1834.62 At least 90 (53 percent) of the 170 slaves sent to the St. James house of correction at Montego Bay between January and June 1829 were committed directly by their owners, while in 1831, 7 of the 79 prisoners in the St. Catherine workhouse and 23 of the 74 in the St. Thomas in the Vale workhouse had been privately committed.63 In 1827 the report of the Commissioners on Civil and Criminal Justice in the West Indies noted that ‘‘slaves are frequently sent to the workhouse by their owners, to be there punished.’’ 64 The House of Assembly defended the practice, noting that ‘‘[i]t has been found expedient to leave in the hands of the master that power over the person of the slave, by the immediate exertion of which, any symptoms of disobedience may be suppressed.’’ 65 Henry Williams, a Christian slave who was punished for attempting to practice his religion and whose case became an abolitionist cause célèbre, was sent to Rodney Hall (St. Thomas in the Vale) workhouse to be punished on the authority of his master. Writing about this case, the missionary Isaac Whitehouse noted that another member of his congregation had been sent to the same prison a few months previously, suggesting that the procedure was common.66 The workhouses probably served two distinct communities for privately authorized punishment. One was small-scale slaveholders resident in the towns, to whom the workhouses were easily accessible. For them, punishing slaves in the workhouse allowed them to distance themselves from the punishment, enabling them to fulfill the Jamaican ‘‘custom’’ described by Alexander Barclay, ‘‘that a white man must never, with his own hand, inflict punishment on a slave.’’ 67 Larger-scale slaveholders could prison and plantation

33

7124 Paton / NO BOND BUT THE LAW / sheet 50 of 308 Tseng 2004.8.31 07:45

achieve the same thing through the use of a driver. Sending a slave to the workhouse gave small slaveholders security against resistance by minimizing direct confrontation between master and slave. Estate-based slaveholders probably used the workhouses in this way less routinely. To send an enslaved worker to the workhouse involved expense—not just that incurred in paying the workhouse fee, but also the loss of labor while the worker was incarcerated and the labor of the driver or drivers who would have to escort him or her to and from the workhouse. Many estates had complex arrangements for the punishment of slaves that included not only whippings but also estate ‘‘dungeons,’’ stocks, and chains. It is unlikely that such investment would have been considered necessary if the parish workhouses were routinely used. Nevertheless, the threat or reality of the workhouse could be used against particularly resistant slaves. If slaves were very disruptive, sending them to the workhouse had the immediate benefit of removing them so that they could not cause any more trouble while not being such an irrevocable step as prosecuting them as ‘‘incorrigible.’’ Besides holding runaways and privately authorized prisoners, the workhouses held prisoners who had been sentenced by courts. Formally, this punishment could be suffered by anyone. In practice, almost all those sentenced to imprisonment were enslaved, and they were largely imprisoned for offenses that by definition could only be committed by slaves, such as running away. Like the other uses of the workhouse, this practice aided slaveowners’ struggle against the resistance of their enslaved workers. Until the late eighteenth century, slave courts did not use imprisonment as part of their penal regime. With the construction of prisons, this began to change. By the 1820s, the slave courts were using prison sentences extensively. Forty-two percent of their sentences in capital cases between 1821 and 1825 involved imprisonment. Imprisonment did not displace punishments designed to inflict bodily pain, however. Just under two-thirds of prison sentences short of life imprisonment were accompanied by floggings, which usually took place at both the beginning and the end of a term of imprisonment.68 In a typical case from 1821 a man named Bird was sentenced to Hanover workhouse for fourteen weeks for harboring a runaway. In addition to his term of imprisonment he was to receive thirty-nine lashes in the marketplace before being sent to the workhouse, and another thirty-nine in the marketplace on his release. Two years later, Hector was sent to the same prison for eight months for assaulting the overseer of his estate. Before beginning his prison term he was to receive thirty-nine lashes in the marketplace.69 While these relatively short-term 34

Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 51 of 308 Tseng 2004.8.31 07:45

prison sentences accompanied by flogging were designed to impress on enslaved people their subordinate status in order to release them back to a life of slavery, life sentences were never accompanied by floggings. The two types of sentences performed quite different ideological work. Ironically, sentences including flogging had more investment in an idea of reform than did those involving imprisonment only. Flogging at the beginning and end of a sentence aimed to teach subordination through pain. The life sentence suggested that the convict could never be a productive worker. In absolute terms, fewer people ended up in the houses of correction as a result of court sentences than through the two methods previously discussed. Between January and July 1829, 197 enslaved people and three white seamen began sentences of imprisonment in fourteen workhouses, while seventy slaves were committed by their owners to one workhouse (St. James) in the same period, and approximately ninety passed through the St. Thomas in the Vale workhouse as runaways in a similar period.70 However, because many of those entering prisons as convicts were serving life sentences, the balance of the population shifted over time. Although only a minority of sentences imposed were life sentences, over time lifers accumulated in the prisons. By 1831, at least 447 convicts were serving sentences in prisons across Jamaica, compared with seventyone runaways advertised in January of that year (see Figure 2).71 When a census of slaves imprisoned as a result of court decisions was conducted in 1834, 386 of 490 prisoners (79 percent) were serving life sentences. Most had been sentenced in the previous five years, but a handful had already served more than twenty years by this point, including Davy, the longest-serving prisoner, who had been in the St. Catherine workhouse since he was sentenced to life imprisonment in 1801 as an ‘‘incorrigible runaway.’’ 72 Although an individual slave was most likely to experience imprisonment as a captured runaway or on the private order of his or her master, by the last years of slavery all the prisons were dominated by convicts. Slaves who spent time in the workhouses rarely stayed there long on any one occasion. Peter, for instance, was committed to the St. Thomas in the Vale workhouse as a runaway on July 17, 1827; his master removed him the same day. More commonly, runaways remained in the prison for several days; the median stay of runaways in the St. Thomas in the Vale workhouse was eleven days, while for privately committed prisoners it was twenty-one days.73 The longest stay in the St. Thomas in the Vale records was five months. Newspaper advertisements for runaways include slaves who had spent considerably longer incarcerated, such as the slave prison and plantation

35

Average Runaways 1791–1831

Runaways 1831

Convicts 1831

Convicts 1834

90 80 number of inmates

70 60 50 40 30 20 10

om Th St

St

as t An Ki n n St gst Ca on th er in e St St M Th ar om y .V St ale Ge o St rge W An d es tm rew or e Cl lan ar d e M ndo an ch n es t H er an o Tr ver ela wn St ey Ja m Po es rtl Po and rt St Roy El al iza be th

0 .E

7124 Paton / NO BOND BUT THE LAW / sheet 52 of 308

100

parish workhouse

figure 2 Jamaican workhouse populations. Source: Average runaways, 1791–1831: mean number of runaways advertised in the Royal Gazette in the years sampled. Not all workhouses advertised each year. Runaways, 1831: Runaways advertised in the Royal Gazette in January 1831; Convicts, 1831: Encs. in Belmore to Goderich no. 66, July 4, 1831, co 137/178; Convicts, 1834: Encs. in Sligo to Stanley no. 24, May 31, 1834, co 137/192.

Tseng 2004.8.31 07:45

advertised by the St. Mary workhouse in January 1797 who had been there since September 1794.74 The substantial variation in time that runaways spent in the workhouse suggests considerable variety in the ease or difficulty with which masters were located, as well as differences in masters’ decisions about retrieving their slaves. Of all enslaved prisoners, those who were serving court sentences spent easily the longest time in prison. Sentences short of life imprisonment ranged from one week to twelve months, but the modal sentence was life imprisonment or hard labor for life. In 1829, seventy-nine slaves received such sentences, seventy-two of them for being ‘‘incorrigible runaways’’ (see Figure 3). Slaveowners had always used the courts as a cheap way of ridding themselves of slaves who frequently ran away. As one absentee slaveowner instructed his attorney, ‘‘I have always found that habitual Runaways were a nuisance to an estate, and therefore you are at liberty to have all of that description transported; and whatever money you re36

Chapter One

70 number sentenced

7124 Paton / NO BOND BUT THE LAW / sheet 53 of 308

80

imprisoned only imprisoned and flogged

60 50 40 30 20 10 0 Less than 1 month

1–3 months

Life

6–12 months

Transportation

Flogging only

sentence figure 3 Sentences received by slaves entering Jamaican workhouses, January–July 1829. Source: List of persons confined in gaols and workhouses of Jamaica, 1829, pp 1830 (673) XXI, 197.

Tseng 2004.8.31 07:45

ceive for transported negroes you may lay out in the purchase of new negroes.’’ 75 Because owners received compensation if their slaves were sentenced to death, transportation, or life imprisonment, these sentences had relatively little negative consequences for slaveholders, even though they might not receive the full value of the convict. Indeed, such sentences were in a sense more desirable than shorter terms of imprisonment, which simply removed the slave from the workforce without compensation. Until the early years of the nineteenth century, such ‘‘incorrigibles’’ were usually transported off the island, and were sometimes executed. After about 1823, transportation became more difficult, as areas that had previously received Jamaican transportees refused to continue doing so.76 At this point, the life sentence as punishment for being an ‘‘incorrigible runaway’’ became routine. While most prison inmates were enslaved, some free people did find themselves in the houses of correction, usually serving sentences for vagrancy. Port Royal magistrates sentenced twenty-one free people to the house of correction between 1821 and July 1834, either for vagrancy or for public order offenses such as using ‘‘obscene language in the public street.’’ Several received sentences on multiple occasions. Overwhelmingly poor people of color, they served between ten days and six months.77 Meanwhile the common law courts (Quarter Sessions and Assizes) began prison and plantation

37

7124 Paton / NO BOND BUT THE LAW / sheet 54 of 308 Tseng 2004.8.31 07:45

making more use of imprisonment as a punishment in the nineteenth century, imprisoning people in the county gaols rather than in the houses of correction. On average, the assize courts imprisoned 4.4 free people each year in the 1770–79 period, rising to 7.9 per annum from 1800 to 1834.78 Free people did experience imprisonment but in very small numbers in comparison with enslaved people. There were also more unusual ways into the prisons. After 1788, slaves who complained about their masters could be committed to workhouses for their own protection while a ‘‘council of protection’’ investigated the complaint. If the council found that the complainant had been subjected to ‘‘atrocious cruelty,’’ he or she could be freed. If, as was more common, the complaint was found to be groundless, the complainant was returned to his or her master, often receiving a punishment first. Similarly, if slaveholders were prosecuted for cruelty to their slaves, the enslaved person concerned could be held in the workhouse awaiting the outcome of the trial. Rebecca Clarke, the victim of her master William Sutcliff ’s cruelty in the case discussed earlier, was held in the workhouse more than once while Sutcliff ’s behavior was investigated.79 Still, few slaves were sent to prison for their protection. Prisons reporting their total populations in 1831, including runaways awaiting collection and slaves sent in privately by their owners, reported none held for this purpose. Men dominated all sections of the prison population. Runaway advertisements included between 13 percent and 30 percent women. The prison census of 1829 included 121 women (26 percent) out of a total of 471 prisoners where the sex can be identified; 18 percent of convicts in 1831 were female, while in 1834, 75 (17 percent) of 453 prisoners whose sex is identifiable were female.80 In this, Jamaican prisons were not very different from late-nineteenth-century British prisons, where women constituted, on average, 17 percent of the population.81 The figures confirm that, as we know from other studies, enslaved women’s means of dealing with and surviving slavery took different forms from those of men. In particular, they were less likely to take the action most likely to lead to imprisonment: running away.82 Nevertheless, women formed a substantial minority of the prison population, and while imprisonment was a more common experience for enslaved men than for enslaved women, it was by no means something that women could be sure they would not suffer. The available qualitative and quantitative evidence demonstrates the significance of the workhouses to Jamaican slave society in the late eighteenth and early nineteenth centuries. The total population of individual prisons was usually fairly small, but due to their brisk turnaround in 38

Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 55 of 308 Tseng 2004.8.31 07:45

population, large numbers of enslaved people spent some time within them. Imprisonment, reached through a variety of routes, was a common experience among enslaved Jamaicans in the fifty years before abolition. By building and maintaining prisons, slaveholders supplied themselves with an important new weapon in their struggle to maintain control of a society in which they were massively outnumbered.

The Internal Life of the Prison The routes to imprisonment detailed earlier present the process of incarceration largely from the point of view of the slaveholder. It is much harder to get at the point of view of enslaved and free people who spent time in the prisons. The nature of the sources means that we rarely have access to the life stories of prisoners—only fragments of information about individuals, frequently organized by categories such as age, sex, and reason for entry into the prison. Such evidence reduces the complex humanity of the people it seeks to represent to these few measurable or classifiable attributes, lending itself to quantitative but not to empathetic analysis. Nevertheless, it is essential to consider both how individuals experienced the prison system over a period of time and what it was like to be in prison. Without this kind of analysis we are likely to miss key aspects of the dynamics of the prison experience and to accept at face value that the goals of the prisons—to control and discipline enslaved people—were successful.83 While the three major routes by which people came into the prison had different bases in law, these routes were used and experienced together. From the point of view of enslaved people who ran away, it made little difference whether they were captured by someone other than their owners and sent to prison to await collection or were ‘‘taken up’’ by someone on the staff of the plantation and sent to the house of correction to be ‘‘taught a lesson.’’ Similarly, it is almost certain that the individuals sentenced to life imprisonment as ‘‘incorrigible runaways’’ had earlier spent time as captured runaways or had been subjected to private punishment in one or more workhouses. David (also known as William Lord), of Worthy Park estate, had been categorized by that plantation’s managers as troublesome since childhood. According to Michael Craton, he and his younger brother Hannibal ‘‘ran away from work as often as they could . . . bird’s-nesting, fishing, stealing cane, fruit and provisions; then as they became adults, venturing further afield into more serious theft.’’ In 1830, in his early twenties, he was tried and sentenced to life imprisonment as an ‘‘incorrigible runaway.’’ Although Craton, who describes prison and plantation

39

7124 Paton / NO BOND BUT THE LAW / sheet 56 of 308 Tseng 2004.8.31 07:45

David’s life, does not mention it, it is likely that at some point before being sentenced he spent some time in one or more workhouses in response to his running away and other ‘‘crimes.’’ 84 From the point of view of many of the prisoners, then, imprisonment was a frequent, if transient, experience. Many of those who entered prisons were returning to an institution that they had already encountered. Even for those experiencing incarceration for the first time, there was much that was familiar about prison life. Imprisonment was oppressive and exploitative in some of the same ways that the regular life of slavery was and was resisted using many of the same means. Prison work was organized similarly to plantation labor. Like enslaved workers, prisoners worked in gangs. These ‘‘workhouse gangs’’ went out of the prisons to repair the roads and perform other kinds of labor for the ‘‘public good’’—that is, for the benefit of slaveholders.85 Workhouse gangs were a common feature of the life of slave society not just in Jamaica but in many parts of the West Indies.86 In St. Ann, ‘‘workhouse negroes’’ cleared land around the racecourse and mended the road to it in 1785.87 In Port Royal, two workhouse inmates went early each morning to ‘‘every street and alley leading to the sea . . . so that filth may be removed from those places into the sea.’’ 88 The ‘‘workhouse negroes’’ of Kingston in 1827 cleaned the city’s burial grounds.89 In addition to public work, the workhouse gangs were hired out privately, most frequently to estates, where they worked in sugar agriculture. Effectively, the workhouse inmates here filled the function of a jobbing gang, acting as a group of workers who were hired out to supplement an estate’s labor force when there were not enough resident slaves, especially at planting and crop time. As in the rest of Jamaican agriculture, a driver supervised the gang’s work, using the whip to enforce labor discipline.90 Lines of authority within the prison worked similarly to those on plantations. The most senior authority within the house of correction was the superintendent or supervisor. All superintendents were male, although some were assisted by female matrons, often their wives. Beneath the superintendent worked a range of subordinate officers and drivers, some free, some unfree.91 As on a plantation, where authority was delegated to privileged enslaved drivers, prisons used long-term enslaved prisoners to enforce internal discipline. For instance, Nelson, who had been the slave of one Miss Hannah Pitkin, was sentenced in 1829 to life imprisonment in the St. Andrew house of correction as an incorrigible runaway. By 1835 he had shifted from being ‘‘incorrigible’’ to ‘‘correcting’’ others in his new role as a whip-carrying driver in the institution, responsible for overseeing the work of the workhouse gang.92 Drivers like Nelson, the superin40 Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 57 of 308 Tseng 2004.8.31 07:45

tendent, and all the employed officers lived within the prison. Beneath these subordinate officers was the fluctuating population of prisoners, most of whom were incarcerated for relatively short periods. While life prisoners’ relationship to prisons was different from that of employees, it is fair to say that the major division within the prisons was less between the employed officers and the prisoners than between long-term residents—both prisoners and employees—and those who were just passing through. There were risks involved in using enslaved drivers. They might defy their situation using techniques similar to those employed by enslaved people on the plantations. The Clarendon workhouse was in the embarrassing position in 1797 of having to place a runaway advertisement for its own African-born driver, Cuffie.93 The St. Ann workhouse suffered the same fate a month later, when its driver, John, escaped. John, who the workhouse supervisor thought would try to ‘‘pass as free,’’ had been ‘‘bought in by the vestry many years ago, and has served as driver ever since.’’ He escaped in February 1797, carrying ‘‘a blue frock and trowsers, and sundry wearing apparel,’’ and was still being advertised as missing in late 1799.94 These escapes suggest another similarity between the social relations of the prisons and those of the plantations: resistance. Enslaved people within the workhouses resisted in similar ways to those outside. Escape is the form of resistance that left most records, and we have records of ordinary inmates, as well as drivers, escaping.95 A few advertisements for runaways placed by slaveowners provide evidence of a Jack Sheppard–like tendency to ‘‘excarceration’’ among enslaved prisoners.96 A ‘‘Creole Negro Man’’ named Castalio, advertised for over a year in 1781 and 1782, provides a good example. He had, according to the advertisement placed in April 1781, first run away in November 1780. He was ‘‘taken up’’ in February 1781 and ‘‘confined in the Workhouse,’’ but then, while en route back to his owner, ‘‘made his escape and has not since been heard of,’’ although the advertiser believed him to be living with his mother or else working as a carpenter in Kingston. Charles Williams, also known as Wordie, was similarly persistent fifty years later. Three months into a year-long sentence for larceny, he escaped from the Kingston workhouse gang. He was captured a few months later and taken to the Spanish Town workhouse, then escaped again while being returned to the Kingston workhouse. He was recaptured and received an extra fifty lashes in addition to those in his initial sentence before being returned to the workhouse; the records do not state whether he served the rest of his time or escaped once more.97 Charles Williams was unlucky or unskilled: many escapees were never returned to prison. The workhouses’ reports on their prison and plantation

41

7124 Paton / NO BOND BUT THE LAW / sheet 58 of 308 Tseng 2004.8.31 07:45

convicted inmates in 1834 listed fully 5 percent as ‘‘absconded’’ or ‘‘escaped’’; some had been absent for five years.98 Escape from the prisons was the most extreme and most visible form of resistance but was almost certainly merely the tip of the iceberg. Ironically, the prisons may have served quite the opposite purpose from that intended by the parish authorities who decided to establish them. The workhouses brought under one roof and into one gang those slaves who were most persistently resistant on the estates and in their practices of running away. It would be remarkable if the prisoners had not told one another stories of how they came to be in prison and, in doing so, exchanged information about techniques of resistance, including the geography of the local terrain. Escapees from prison joined the larger world of runaway slaves, which many of them had been part of prior to their incarceration, and occasionally became leaders of resistance. Although conversations among prisoners left no archival traces, occasional snippets of evidence suggest a hidden history of such practices. In one intriguing example, a prisoner named Brutus escaped in 1790 from the Trelawny workhouse, to which he had been sentenced for life. He became the leader of a maroon band of eighteen runaways and by 1792 had developed a complex plot involving estate-based slaves to attack the white population while it was distracted by the developing war with France and Spain.99 Brutus may well have developed some of his strategies and recruited some of his followers while in the house of correction. From the slaveholders’ point of view, this was precisely what the workhouses were supposed to prevent. The frequency of escape throughout the workhouses’ history emphasizes the limits of the control they could successfully impose. To some extent, what was intended as a means of coercion in practice facilitated resistance. Much scholarship on prisons views them as ‘‘total institutions,’’ in which inmates are isolated from the rest of society. The term is taken from the influential work of Erving Goffman, who defines a ‘‘total institution’’ as ‘‘a place of residence and work where a large number of likesituated individuals, cut off from the wider society for an appreciable period of time, together lead an enclosed, formally administered round of life.’’ 100 While Goffman provides a compelling account of the mental institutions that he studied, with important explanatory power when applied to twentieth-century prisons holding long-term inmates, it is problematic to apply it retrospectively. Nineteenth-century prison reformers, including those who were active in the West Indies, hoped to create total institutions but had not been successful in Jamaica by the time of the abolition of slavery.101 The short periods of time for which most prisoners 42 Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 59 of 308 Tseng 2004.8.31 07:45

were incarcerated, the frequency of escape, and the ongoing connections between the worlds inside and outside the prison meant that prisons did not re-create or reform prisoners in a particular way—creating ‘‘deviants,’’ as Foucault puts it, or establishing an institutional ‘‘moral career,’’ in Goffman’s terms. If anything, the situation was reversed: prisoners brought into the prisons understandings and expectations developed in their ordinary lives and attempted to mold the institutions according to these expectations. Prisoners’ experience of imprisonment depended a great deal on the prison to which they were sent. As Figure 2 shows, some prisons had much larger populations than did others. Those in Spanish Town and Kingston received an unusually large number of runaways, while in the last years of slavery (the only period for which we have evidence) the prisons in Spanish Town, Morant Bay (St. Thomas in the East), St. Mary, and St. Thomas in the Vale contained significantly more convicted prisoners than did the other prisons. Inmates of these more populous prisons had more fellow prisoners with whom to share information and sociability, and possibly to resist, but overcrowding meant that their material conditions were generally worse. While life in the prison was in many ways similar to life outside, enslaved people do seem to have found life in the workhouse considerably worse than life on the estates. We can infer this from the fact that slaves advertised as runaways almost always gave the names of their masters, suggesting that they preferred being ‘‘reclaimed’’ to staying in the prison indefinitely. We know very little about day-to-day conditions in the prisons, but what we do know suggests that there were material and social differences that made them definitively worse than an ordinary life in slavery. Their work pattern was roughly equivalent to that of a jobbing gang, the group of enslaved workers that generally experienced the most extreme forms of exploitation. Jobbers lacked a stable home life or provision grounds, while those who hired them had no long-term interest in maintaining their health; workhouse gangs must have suffered similar problems.102 Workhouse prisoners were also subjected to more frequent and more severe use of the whip than were most enslaved people outside the prisons. Henry Whiteley, in his influential abolitionist pamphlet Three Months in Jamaica in 1832, described the workhouse gang that was hired to dig cane holes on the estate where he was staying. He claimed that all its members had been severely and recently whipped, declaring that ‘‘it was the most horrid sight that ever my eyes beheld.’’ 103 In addition, members of workhouse gangs suffered from being chained together in pairs, with the chains attached to iron collars worn permanently around prison and plantation

43

7124 Paton / NO BOND BUT THE LAW / sheet 60 of 308

their necks. This led not only to physical pain and injury but also to a complete absence of personal privacy. For female prisoners, the heavily masculine world of the prison increased the dangers of sexual exploitation that always threatened enslaved women. The prisons’ shifting and fluctuating population meant that, for most of their inmates, no longstanding networks of kinship or friendship developed, even if prisoners who returned to the workhouse on multiple occasions may have encountered some of the same people. Probably most important, prisoners lacked the social worlds ordered around the provision ground, the market, and the religious meeting in which enslaved people outside the prisons forged and reproduced a sense of self beyond the power of the plantation. Imprisonment was in many ways similar to ‘‘ordinary’’ slavery but tended to exacerbate the most negative and demeaning aspects of the experience of enslaved people while providing fewer areas of autonomy.

Reforming Enslaved Prisoners?

Tseng 2004.8.31 07:45

By the time the Jamaican houses of correction were built, penal reformers elsewhere were making substantial claims for the reformative power of imprisonment. Cesare Beccaria published On Crimes and Punishments in 1764; John Howard, The State of the Prisons in 1777; and Jeremy Bentham, Panopticon in 1791. The first wave of prison rebuilding in England took place in the 1780s. As Robin Evans puts it, these new prisons were designed with the goals of ‘‘security, salubrity, and reformation’’ in mind.104 Their advocates argued that a properly organized prison could create individuals who, through a combination of religious conversion, solitary contemplation, and regular labor, would no longer want to commit crime. For them, prison labor would relieve the mental anguish of the solitary confinement essential for reform. By the 1820s, debates over the desirability of the reformative prison had been replaced by nearconsensus. Discussion in Britain now revolved around technical issues of the best way to achieve reform rather than its desirability or possibility.105 In Jamaica, as well, the adoption of a new kind of prison was clearly understood to be a marker of modernity and civilization. The Kingston Common Council’s efforts to improve the city’s workhouse provide one indication of this. In 1824, concerned at the ‘‘ruinate’’ state of the accommodations for the workhouse supervisor and overseer, the council ordered their rebuilding. From 1827 it required that the prison’s minute book be produced at each council meeting. In that year, the council also purchased a treadmill for the workhouse, a clear sign of an effort to con44

Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 61 of 308 Tseng 2004.8.31 07:45

struct a modern prison.106 In 1830, concerned at the large number of workhouse inmates who were not healthy enough to work in the streets and thus were ‘‘left in a good measure to themselves to waste their time within the walls, under little or no personal restraint,’’ the workhouse committee recommended the employment of a driver to work permanently inside the prison yard, extracting light labor—grinding corn and breaking stones—from those who were able to perform it.107 Although it was clearly influenced by penal-reform ideology, the Common Council nevertheless did not attempt to implement wholesale the prescriptions of organizations such as the Society for the Improvement of Prison Discipline. Its main efforts went into ensuring the mobilization of prisoners’ labor rather than, for instance, their religious conversion of solitary confinement. Other local state representatives were less strongly influenced by penal-reform ideology than were those in Kingston. The Port Royal vestry, for instance, whose concern until the 1820s had been limited to appointing the supervisor and managing the books, debated a series of new rules for the workhouse in 1832. The rules it suggested, however, did not follow conventional penal-reform concerns; rather, they were intended to clarify relations between the workhouse and the private individuals who contracted for the labor of its prisoners or who owned the slaves held inside. The prime problem that concerned the vestry was the supervisor’s failure to enforce fee collection. The new rules required the supervisor to present a quarterly financial report to the vestry. He was not to return any ‘‘negroes . . . to their respective owners until the fees be paid’’: if he did so, he was liable for the debt. Likewise, he was not to give more than two days’ credit to anyone by whom the ‘‘negroes’’ were employed (incidentally revealing an assumption about who would be in the prison), although public institutions were exempted from this provision. These rules echoed one aspect of English prison reform: the concerted effort to wrest control of penal institutions away from their management and their inmates and pass it to the institutions of the local state. However, other concerns, such as the classification of prisoners, the regimentation of their actions, and their religious instruction, were absent.108 Reports from prisons across the island solicited in response to a particularly cruel episode of flogging in the St. Andrew house of correction confirm that Jamaican prison managers took up many of the ideas behind the disciplinary prison but did so in an uneven and contradictory way.109 The governor, the Earl of Belmore, asked prison superintendents to report not only on flogging but also on the work done by prisoners, the food provided, and a series of other points. The reports provide inforprison and plantation

45

7124 Paton / NO BOND BUT THE LAW / sheet 62 of 308 Tseng 2004.8.31 07:45

mation on workhouse management, but perhaps more important, they illuminate what the supervisors believed would represent their management in a good light.110 Many workhouse supervisors clearly believed that they were managing prisons according to what would be perceived in Britain as modern, ‘‘civilized,’’ and ‘‘progressive’’ standards. They noted the provision of religious services, the regular visits of medical doctors, the prohibition of gambling, and the distribution of precise amounts of food. In several workhouses, male and female prisoners slept in separate rooms.111 Nevertheless, the houses of correction also deviated in many ways from penal-reform ideals. The superintendent of the St. James workhouse noted with pride practices that would be considered problematic by British prison reformers along with some that they would have approved of. In his prison, prisoners were able to exchange their food rations for other kinds of food, presumably with people from outside the prison, and they worked every day on the streets of Montego Bay.112 Similar practices were described in most of the other reports. In Savanna la Mar, prisoners’ relatives and friends had ‘‘ingress and egress at all times with provisions without interruption,’’ while in Trelawny, ‘‘the friends of the prisoners cannot be debarred continual access to them, which is afforded by their employment on the public streets and roads.’’ 113 These points emphasized the connections between the prison and the outside world rather than their separation from each other. Taken together, the reports suggest that Jamaican managers shared only some of the preoccupations of contemporary British prison reformers. In particular, they did not replicate the British reformers’ effort to maintain strict separation between the world of the prison and the world beyond it. The gaps between British and Jamaican uses of penal theory derived in part from contradictions inherent in the attempt to adopt penal-reform practices in a slave society. The penal theories of the Enlightenment rested on assumptions that derived from a free labor society. They assumed that the individual was a (masculine) free agent who calculated the costs and benefits of everything he did. He thus had the ability to make rational choices about whether or not to commit crime. This was the logic of the argument for certain and predictable punishment made most powerfully by Beccaria and Bentham.114 This concept of the individual was logically incompatible with the idea of the slave as entirely dependent on his or her owner’s will. Of course, slave societies had always circumvented this contradiction to the extent that they acknowledged the personhood of the slave sufficiently to hold slaves criminally responsible. But there was still a degree of dissonance in any attempt to transpose penal-reform ideology to Jamaican slave society. This dissonance would 46

Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 63 of 308

be further exposed during apprenticeship, when state-organized punishment played a more central role, requiring the underlying principles on which it was inflicted to be more thoroughly articulated.115 Planters sometimes adopted the language of penal reform without noting the contradictions between the type of penal regime they advocated and the slave society they were determined to maintain. In 1822, the Colonial Office appointed commissioners to inquire into ‘‘Civil and Criminal Justice in the West Indies.’’ 116 The commissioners were primarily interested in the colonial court systems, but they also collected information on prisons. William Burge, the Jamaican Attorney General (later to become the representative of Jamaican planters in London), used the language of prison reform in his submission to the commissioners. Describing the ‘‘whole system of gaols and workhouses in this country’’ as ‘‘radically defective,’’ Burge argued for an increase in the salaries of prison staff in order to employ gaolers of ‘‘sufficient respectability.’’ In addition, he advocated classification of prisoners, religious instruction, frequent inspection, and the use of work as a means of rehabilitation: There is not sufficient attention paid in separating and classing the different prisoners: those who have been committed for some slight offence, are thrown into the society of those who are hardened in their crimes. There ought to be different employments for the prisoners; some may be of such a nature as to be used as a means of punishment; other employment may be devised, for the purpose of preventing prisoners contracting habits of idleness. There ought to be a religious instructor expressly for these establishments. The Custos, and two or more of the magistrates, should be obliged weekly to visit such places of confinement, and make stated reports of their condition, and the number of prisoners therein.117

Tseng 2004.8.31 07:45

Burge’s concern with slaves’ acquiring habits of idleness, which they would ‘‘contract’’ like a disease, is notable. For him there was no contradiction between the fact that most of the prisoners were enslaved and the effort to reform them. Several of the parish custodes echoed Burge’s opinions. The custos of Trelawny was particularly concerned about providing fit work for women. He argued that female prisoners ‘‘should be employed within the establishment in task work, for preparing cotton or other material for weaving cloth, and that they should be taught the art of weaving; and in cases of great delinquency and refractoriness, they may occasionally be employed in the tread-mill for grinding corn for their support.’’ 118 These uses of the language of penal reform, however, evaded rather than confronted the problems of imprisoning slaves. Burge’s adprison and plantation

47

7124 Paton / NO BOND BUT THE LAW / sheet 64 of 308 Tseng 2004.8.31 07:45

vocacy of religious instruction within the prisons, for instance, is hard to reconcile with the exactly contemporary legislative efforts to restrict enslaved people’s practice of Christianity.119 The custos of Trelawny’s argument that female prisoners should learn ‘‘traditional’’ feminine skills ignored the employment of the majority of Jamaican enslaved women in field labor. For enslaved people, the distinction between inside and outside the prison did not map onto an equivalent distinction between unfreedom and freedom. This created serious problems for the logic of the prison. Legislators invented elaborate means to ensure that the process of incarceration did not end with a slave’s being released without a master. What was to happen, for instance, to the unborn child of an enslaved woman who was pregnant when she was sentenced to execution, transportation, or life imprisonment (the woman would not be executed or transported until her child was born)? The owners of such a slave would be entitled to compensation for her value. Theoretically, then, her child became the property of the state, because it had effectively purchased her. While state authorities had no desire to maintain enslaved children in prisons, it was imperative that a child in these anomalous circumstances did not become free. The 1830 slave code legislated for this anomaly, proposing that the child should be kept in the workhouse for the first five years of life and then sold at public auction. This clause was amended on the grounds that it was inhumane to expose a young child to public sale; instead, he or she was to become the property of his or her mother’s former master.120 The pardoning of slaves who had been sentenced to death, transportation, or execution also created problematic anomalies. Given that the state had compensated the slave’s former owner, who now owned the slave? In 1828, the governor wrote that he was reluctant to pardon one such enslaved convict because after being pardoned he would have no master and ‘‘would therefore become to all intents and purposes free.’’ This would create the scandalous situation in which the pardoned convict would ‘‘be placed in a more advantageous condition than those who have committed no crime.’’ 121 The 1826 and 1831 slave acts tried to resolve this difficulty. The 1826 act specified that in cases where convicted slaves showed for three years ‘‘in every respect a complete reformation of manners’’ the workhouse keeper was to sell them ‘‘to the highest bidder, with the approbation of the said convict.’’ According to the statute, this would ‘‘hold out encouragement to convicts who have so conducted themselves as well as to render them an example for imitation.’’ 122 The 1831 slave code expanded this provision to slaves who might be pardoned or have their sentences commuted for 48 Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 65 of 308

whatever reason, specifying that the slave’s former owner should first be given the option of repurchasing the former slave at the compensation price. If the former owner chose not to take this option, the slave was then to be publicly sold.123 Neither the discourse accompanying the houses of correction nor that associated with the new, reformed prisons could be easily transferred to a slave society. Whatever else happened to them, slaves were always going to remain slaves. Despite the fantasy of the enslaved convict who demonstrated ‘‘complete reformation of manners,’’ there was no ideal of creating a dutiful, self-motivated, productive citizen. Edward Ayers argues that slaves were not subjected to penitentiary punishment in the antebellum U.S. South because they had ‘‘no rights to respect, nor civic virtue or character to restore, nor freedom to abridge.’’ 124 The same was true of enslaved people in Jamaica. The slave codes’ suggestion that the prospect of being resold to a different slaveowner would ‘‘encourage’’ workhouse inmates to ‘‘reform’’ raises important questions. What would it mean for a slave to be reformed? And why should the prospect of a return to slavery encourage reformation, whatever that may have meant? The second question was unanswerable, but the prisons’ emphasis on routine labor and obedience suggests an answer to the first. Rather than attempting to re-create prisoners as contract-making individual workers, prisons in Jamaican slave society—to the extent that their goals were articulated—aimed to recreate their inmates as ideal slaves: subordinate, unresisting, accustomed to hard physical work, and willing to perform it.

Privatized Discipline

Tseng 2004.8.31 07:45

Ironically, it may have been in the private realm of punishment on the estates that the disciplinary model of using penal techniques to modify the future behavior of those subject to them was most influential. This period saw a number of plantation-based experiments with punishment in which new disciplinary methods replaced or supplemented flogging. Many estates invested in the building of plantation ‘‘dungeons’’ in the 1790s.125 Thomas Roughley, arguing for ‘‘progressive’’ estate management, advocated dedicated buildings as prisons on plantations, opposing the common practice of confining ‘‘delinquents’’ in stocks in the estate hospital. Roughley argued for ‘‘a small, strong building made in the centre, between the hospital and mule-stable, of mason work for such a purpose, about twelve feet by nine, with durable stocks fitted up in it, and well secured with strong hinges, iron bars, staples and locks. This little prison and plantation

49

7124 Paton / NO BOND BUT THE LAW / sheet 66 of 308

place being thus set apart, and separated from other buildings, will make confinement more irksome and dreaded, and perhaps cause less delinquency.’’ 126 The argument partakes of the language of penal reform in its argument for the effectiveness of the ‘‘dread’’ of isolation instead of the fear of physical pain and in its idea of the need for prisons to be built according to particular architecture. Similarly, Henry De La Beche advocated the use of solitary confinement by planters as a punishment for slaves’ crimes, referring to the alleged fact that ‘‘negroes dislike being debarred from the revels and pleasures of the night’’ to prove that the punishment would be effective.127 At roughly the same time, the management of the Worthy Park estate introduced a ‘‘vagrant gang’’ in which persistent runaways and other resistant slaves were to work under closer supervision and at harder tasks than the ordinary gangs.128 Matthew Lewis aimed to replace the use of the whip on his estates with a carefully defined set of ‘‘proportionate’’ punishments, including solitary confinement. He advocated imprisonment on the grounds that ‘‘the memory of it seems to make a lasting impression upon their minds; while the lash makes none but upon their skins, and lasts no longer than the mark.’’ 129 These reforms were driven by an understanding of the purpose and working of punishment that was very similar to the philosophy underlying penal reform elsewhere. However, these progressive planters’ reforms differed fundamentally from those advocated by most prison reformers in that they maintained the power to punish in the hands of the planter rather than those of the state. When Matthew Lewis wrote that his ‘‘negroes’’ should be punished by ‘‘known and fixed laws,’’ he unquestioningly positioned himself as the lawmaker.130 Penal reform in Europe and North America was a centralizing project that aimed to increase the state’s strength over its subjects and citizens. If all crimes were to be punished by predictable and known means, there would have to be an extensive network of policing, courts, and penal institutions to enforce this. Progressive planters adopted some of the techniques of penal reform without subscribing to this central presupposition. They wanted to maintain their sovereign rights to punish slaves.

Tseng 2004.8.31 07:45

the shift in the organization of punishment that took place in the late eighteenth century in some ways parallels the shifts noted by historians of punishment in Europe and North America. The changes were not identical, however. In particular, public and private punishment remained intertwined in Jamaica, whereas they were separated in Britain. In Jamaica, the practices of flogging, transportation, imprisonment, mutilation, and hanging frequently took place in ways that were close to in50

Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 67 of 308 Tseng 2004.8.31 07:45

distinguishable from acts taken on the private initiative of planters. The shift toward what has been seen as a ‘‘modern’’ penal regime, involving incarceration, actually increased the potential for this mixing. Jamaican prisons were organized and financed by the local state but held a shifting population of privately committed slaves, runaways awaiting collection, and enslaved people sentenced to prison largely for crimes that could be committed only by slaves. Jamaican prisons thus served a wider range of purposes than did their English counterparts. At any given moment they contained slaves imprisoned for a wide variety of reasons and on the authority of private individuals as well as of the state. If we assume that an increasing monopolization of punishment by the state is characteristic of modern penal systems, this mixture is easily translated as representing Jamaican ‘‘backwardness.’’ Yet some other characteristics of the Jamaican penal system, especially the large numbers of prisoners sentenced to spend the rest of their lives incarcerated, are usually taken as standing for modernity. Life sentences did not become common in European or North American prisons until the twentieth century. Similar combinations of elements that can be identified as ‘‘modern’’ and those identified as ‘‘backward’’ can be found in Jamaican penality through the post-emancipation period. This suggests that ‘‘modern’’ penal systems are more plural than has been recognized; that change in the organization of punishment often happens in a less unidirectional manner than is implied by much penal history. Prisons in Jamaica were more significantly used in ways that blurred the dividing line between private and state-organized punishment— holding runaways or punishing slaves on the authority of their masters— than as institutions of judicial penality. It was not until the 1820s that prisons became the dominant mode of punishment for crime. At that point, large numbers of people began to be committed to prison for life. Although shorter prison sentences were used, they never dominated the criminal justice system; nor were sentences by the courts ever the primary use of prisons. This lack of modulated and finely graded sentences implies some contradiction between prisons and slavery. In the short term, the prison population simply increased, but in time the expansion of the prison population would have become untenable. If slavery had not been abolished in 1834, leading to a wholesale reformulation of the social role of punishment, some resolution might have been reached, with enslaved prisoners receiving shorter sentences and then returning to their estates. Alternatively, and perhaps more likely—this did in fact begin to happen in the early 1830s—a new system of slave transportation might have been put in place. prison and plantation

51

7124 Paton / NO BOND BUT THE LAW / sheet 68 of 308 Tseng 2004.8.31 07:45

If Jamaica adopted a similar, though not identical, form of modern penality as a series of other countries did in the late eighteenth century, the reasons for the change both in Jamaica and elsewhere become complicated. Students of the development of the prison in Europe and North America have emphasized its relationship to the development of capitalism. But clearly, while prisons in these places, especially the houses of correction in England, were crucially about forcing people to accept wage labor relations, this was not the only role they could play. Prisons could and did act as an important form of discipline in a society in which wage labor was rare. The need to enforce subordination was at least as significant in a slave society as in one dominated by wage labor, and slaveowners were not always able to achieve this without recourse to state institutions. Nevertheless, even with the extensive development of the state in the process of Jamaican creolization, this was a society in which the state claimed to control a relatively small part of social life. Expansion of the state’s role was deliberately limited in the 1820s as planters reacted against imperial demands that they submit themselves to inspection and supervision by state officials. With the passage of the Emancipation Act in Britain in 1833, however, Jamaican planters recognized that they could no longer defend the sovereignty they had claimed over slaves. As planters grudgingly and partially relinquished this power, state-controlled institutions and officials became increasingly significant.

52

Chapter One

7124 Paton / NO BOND BUT THE LAW / sheet 69 of 308

Chapter Two planters, magistrates, and apprentices

At a moment when one of the ancient and fundamental bonds of society, as hitherto constituted, is about to be dissolved, . . . it is emphatically necessary that a submissive obedience to the law should be inculcated by the highest authority in the state, and enforced, if necessary, by the most decisive measures.—edward stanley, Colonial Secretary, September 1833 1

Tseng 2004.8.31 07:45

Reflecting on the new apprenticeship system nearly five months after it began, Samuel Barrett, a significant Jamaican planter, argued that the system was failing. The reason, he claimed, was that ‘‘the strong stimulus to exertion, viz. punishment, which, under certain restrictions was inflicted on the authority of the master, was now done away with; and there was nothing substituted in the shape of remuneration for labour which would call forth any extraordinary exertion.’’ 2 In these words he encapsulated the peculiarity of the method of gradual emancipation chosen by the British government for its slave colonies. While he was correct to point out that nothing ‘‘in the shape of remuneration’’ led former slaves, who were now renamed ‘‘apprentices,’’ to work for the plantations, he was wrong to imply that there was no reason whatsoever for them to work. For, as the words of Edward Stanley quoted earlier show, representatives of the colonial state were committed to constructing a state-organized system of coercion strong enough to compel the ‘‘submissive obedience to the law’’ that Stanley believed was ‘‘emphatically necessary.’’ The colonial state’s

7124 Paton / NO BOND BUT THE LAW / sheet 70 of 308 Tseng 2004.8.31 07:45

effort to perpetuate the extraction of former slaves’ labor led to a process of emancipation involving a major reconstruction of state power, to the renegotiation of Jamaican workers’ relationship to state authority, and ultimately to a confrontation between the imperial government and the Jamaican assembly. Apprenticeship was a process of state formation as well as one of labor extraction, a period during which the new role of the state—in particular, the creation of the position of stipendiary magistrate—transformed relationships between plantation workers and managers.3 This chapter shows that under apprenticeship Jamaican slaves’ (now apprentices) experience of the state shifted, since the state now presented itself in a highly contradictory guise, as both liberator and as enforcer of labor discipline. Records generated by these new state agents reveal the content and process of disputes that now came within the state’s orbit, most of which would previously have been fought out without involving the state. The next chapter looks in more detail at apprenticeship’s penal institutions, showing both how apprentices’ experiences on plantations influenced their reactions to imprisonment and other forms of punishment and how colonial efforts to reshape the Jamaican state led to conflicts over penality. Compared with other emancipation processes, apprenticeship in the British Empire brought with it an extreme version of state formation. Apprenticeship was similar to other gradual-emancipation schemes in effectively shielding slaveholders from the immediate economic impact of their loss of human property by granting them continued control of the labor of (former) slaves during the transition period.4 It was distinctive, however, in that only in the British colonies did slaveholders completely lose the legal right to punish without the substitution of any market mechanism to persuade or coerce former slaves into plantation work. During apprenticeship, this coercive role was played by the state rather than by either the market or the slaveowner. Under the new system there was an extensive penal response to acts that were not defined as criminal. Apprenticeship translated a variety of work-related struggles, which during slavery had been clearly recognizable as power struggles between masters and slaves, into the idiom of the law. It made the enforcement of work discipline a matter for state adjudication and brought apprentices into conflict with representatives of the state in qualitatively new ways.5 Whereas the expansion of state facilities during slavery had placed them directly at the service of slaveowners, during apprenticeship the growth of state sovereignty displaced the sovereignty of the planters. It is particularly ironic that this form of gradual emancipation brought apprentices into such direct conflict with the state. After all, the architects 54

Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 71 of 308 Tseng 2004.8.31 07:45

of emancipation wanted Jamaican (and other) slaves to be educated into trusting the state—respecting the rule of law—as well as into wanting to perform wage labor. Indeed, the two goals were inseparable. The Colonial Office wanted to end the arbitrary discipline of slavery, replacing it with a rational and rule-bound system of justice. Their new experience of justice was expected to lead apprentices to trust the law and to turn to the state to resolve disputes. Yet despite the sincere goal of establishing impartial justice, magistrates with responsibility to punish apprentices who challenged their masters’ orders were to embody the law’s neutrality. Thus, at the height of the colonial state’s efforts to portray itself as the protector of the interests of the masses, Jamaican workers’ daily experience of state representatives demonstrated that this protection worked within the limits of the needs of continued plantation production. The process of state formation that took place during apprenticeship assumed and sought to expand gender difference among colonial subjects. Given the extent to which the ideological debate over slavery involved competing assumptions both about what it was to be a man or a woman and about the applicability of these differences to Jamaican (and other black) people, this is hardly surprising. During apprenticeship, Colonial Office concerns were bifurcated by gender. All participants in the debate about whether or not former slaves would work focused on men, continuing a precedent established in the debates around emancipation in Britain.6 Proclamations to apprentices by the Marquis of Sligo, governor of Jamaica from 1834 to 1836, show a specific concern with encouraging male slaves to adopt the persona of the masculine provider for the family. The language of one such proclamation, although formally aimed at the ‘‘Negro Population’’ of Jamaica as a whole, betrays the fact that it is addressed to men alone. ‘‘If you follow my advice and conduct yourselves well,’’ Sligo said, ‘‘nothing can prevent your being your own masters, and to labour only for yourselves and your wives and your children.’’ 7 The designers and critics of apprenticeship showed relatively little concern about women’s labor but were very interested in the treatment of women’s bodies, particularly with regard to discipline and punishment. As we shall see, apprenticeship wrote into law the restrictions that the Colonial Office had been trying to persuade the Jamaican legislature to enact since 1824—that is, the prohibition on the flogging of women. As a result, women and men tried for the same offenses received different punishments. Although precise quantitative evidence is scarce, it seems likely that, unlike the vast majority of penal systems and in contrast to the period of slavery, Jamaican prisons in the 1830s held at least as planters, magistrates, apprentices

55

7124 Paton / NO BOND BUT THE LAW / sheet 72 of 308

many women as men.8 Throughout the four-year transition period, much greater official attention was focused on women’s experience of punishment than on men’s. Historians have tended to approach apprenticeship by attempting to measure the extent to which it moved away from slavery and toward ‘‘freedom.’’ 9 Their interpretations have generally followed Stanley’s understanding of apprenticeship as ‘‘an intermediate state between slavery and freedom,’’ with debate turning on which of the two conditions the ‘‘intermediate state’’ of apprenticeship is thought to be closer to.10 Earlier historians emphasized apprenticeship’s break with slavery. W. L. Burn, for example, entitled his book on the subject Emancipation and Apprenticeship in the British West Indies, implying that emancipation preceded apprenticeship.11 More recently, historians have emphasized the continuities between slavery and apprenticeship. Apprenticeship, they have argued, was a time of raised but disappointed expectations on the part of former slaves who continued in bondage to the same estates and masters for whom they had labored throughout their lives.12 There were many important similarities between slavery and apprenticeship. Nevertheless, analyses of apprenticeship as a continuation of slavery rely, as did the older story of apprenticeship as emancipation, on a linear model of slavery and freedom in which anything that is neither one nor the other must lie between the two poles.13 This formulation risks missing what was different in apprenticeship both from what preceded it and what came after, for in practice apprenticeship operated as neither slavery nor free labor but as a third form of labor relations. The key difference was in the relationship of the state and its representatives to those who labored and to those who owned and managed labor. Because the state took on a particularly significant role in disciplining labor during apprenticeship and used the penal system to impose this discipline, this phenomenon is revealed especially clearly through an examination of punishment and the processes that led to its infliction.

State Formation and Emancipation

Tseng 2004.8.31 07:45

Ending slavery meant something very different to slaves and to those who derived their living from the profitability of plantation economies. The concept of ‘‘free labor,’’ as envisioned by the imperial state and its representatives, did not imply the freedom for former slaves to organize work however they chose. Rather, it implied their freedom to make contracts to sell their labor while maintaining the ‘‘station’’ appropriate to their class and race. The governor of Jamaica captured this hierarchical liberal 56 Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 73 of 308 Tseng 2004.8.31 07:45

freedom nicely in a proclamation addressed to slaves in which he urged them to ‘‘[b]ear in mind that every one is obliged to work—some work with their hands, others with their heads, but no one can live and be considered respectable, without some employment. Your lot is to work with your hands.’’ 14 For planters and imperial policymakers alike, the ‘‘problem of freedom’’ was fundamentally one of labor discipline. How could a regular labor force be maintained without the violent privatized coercion of slavery? The emancipation policy was based on a culturalist interpretation of this problem, assuming it to be one of race and culture rather than of political economy. If slaves were unlikely to work once made free, this was due to their lack of education and training. They needed to learn that their best interests lay in performing for wages the work they had previously done as slaves. The scheme enacted in 1833 would transform slaves into ‘‘apprentices’’ who would work part time with neither the threat of the planter’s whip nor the promise of monetary reward, and would, in the rest of their time, engage in contractual wage labor, thus ‘‘practicing’’ for freedom. According to Stanley, who proposed the emancipation bill to the House of Commons, its purpose was ‘‘to give them habits, and to imbue them with feelings calculated to qualify them for the adequate discharge of their duties here.’’ 15 This was the meaning of ‘‘apprenticeship.’’ Critics such as the American abolitionists who exposed the absurdity of the ‘‘apprenticeship’’ of ‘‘hoary-headed and wrinkled-browed’’ skilled carpenters deliberately misconstrued the term. Apprentices were apprenticed not to any specific trade but to the status of freedom itself.16 It was not only slaves who needed training. Although masters retained the language of command in their titles, the designers of apprenticeship considered that they, too, needed to learn a new status—that of employer of wage labor. As Thomas Holt puts it, planters ‘‘needed to be apprenticed to a new system of labor management and political governance.’’ 17 According to Sligo, Jamaican bookkeepers and overseers were deficient in the psychological and rhetorical skills required to gain cooperation from a non-slave labor force. Having been too accustomed to ‘‘the diplomacy of the lash,’’ he claimed, the plantation managers were not ‘‘acquainted with the best modes of influencing the human mind by persuasion’’ and, indeed, had ‘‘nothing to supply its [the lash’s] place.’’ 18 For many reasons—most important, the scarcity of cash with which planters could pay wages and apprentices’ preference for using their ‘‘own’’ time to grow and market their ‘‘own’’ crops—the system of contractual labor between master and apprentice never became as extensive as Stanley and his colleagues hoped. The primary arena of interaction planters, magistrates, apprentices

57

7124 Paton / NO BOND BUT THE LAW / sheet 74 of 308 Tseng 2004.8.31 07:45

among planters, apprentices, and the state thus became the compulsory work week, enforced by the threat of state-administered punishment. Workers who refused to work or in other ways resisted were brought before specially appointed magistrates who would sentence them to one or more of a variety of punishments. Apprenticeship was legally most similar neither to slavery nor to ‘‘free labor’’ but, instead, to the ‘‘unfree contractual labor’’ regulated by the English Statue of Artificers and masterand-servant law, in which people without other means of support were legally required to make contracts to sell their labor and could be punished if they refused to do so or failed to complete the contract.19 Indeed, Paul Craven and Douglas Hay describe apprenticeship as a precedent to full-fledged master-and-servant law in the Caribbean.20 However, unlike servants, who had some choice over their employer, apprentices had no choice over entry into the contract. Whereas during slavery the state’s and the planter’s disciplinary powers had been tightly interwoven, now those of the state were disentangled from those of the planter. Planters objected to their loss of sovereignty, but this should not blind us to the fact that the state’s agents acted to maintain their labor supply. This is not to deny the role of the state in enforcing capitalist labor relations even in fully formed wage-labor economies. Many historians have emphasized the state’s significant role in supporting employers by limiting or even outlawing the methods of collective action that are workers’ most significant means of improving their side of the ‘‘free’’ contract. In nineteenth-century Britain, state coercion continued to enforce labor discipline and suppress workers’ organization. Methods of coercion included vagrancy laws, anti-combination laws, master-and-servant legislation that allowed for the imprisonment of workers who breached employment contracts, and the New Poor Law introduced in 1834.21 Most early-nineteenth-century British prison inmates had been convicted of master-and-servant offenses, petty thefts, failure to support their families, and having illegitimate children. They were those who were not suitably disciplined proletarian workers or who threatened to burden the parish poor rate.22 Some scholars argue that such practices show that unfree labor is intrinsic to capitalism as a mode of production.23 Certainly, ‘‘free’’ markets in labor are hedged around with coercion, including the coercion of the state, and capitalism as a global system of production has historically relied on unfree and semi-free workers to reproduce itself, and continues to do so. Nevertheless, there is an important difference between societies in which state coercive practices act mainly to supplement the coercion of the market and those, like apprenticeship-era Jamaica, 58 Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 75 of 308 Tseng 2004.8.31 07:45

in which state power provides the primary method through which labor discipline is enforced.

Legislating Apprenticeship Like slavery, apprenticeship defined a person’s legal rights and responsibilities according to his or her membership in a particular group within the population. Despite the rhetoric of neutrality, the three acts that provided the legal foundation for apprenticeship in Jamaica made no claim that all people were equal before the law.24 Instead, they defined the new obligations of masters on the one hand and ‘‘apprenticed laborers’’ on the other and laid out the areas in which the state claimed authority over each. The bulk of the Jamaican Abolition Act was taken up with defining transgressions of the law for which apprentices should be punished, and their appropriate punishments; a smaller section laid out punishments— always fines—for planters who failed to fulfill their obligations. The British Abolition Act created a new set of state officials: the stipendiary (or ‘‘special’’) magistrates, who took over the functions of the slave courts and of direct punishment by the master. Stipendiary magistrates were to visit each estate with more than forty apprentices once every two weeks and make themselves available to hear complaints from smaller estates and non-estate-based apprentices. These magistrates, who could not be planters and who were paid by the British government at the rate of £300 a year, had exclusive jurisdiction over offenses committed under the terms of the Abolition Acts. The existing unpaid local magistrates, who were almost all planters, had no power to try an apprentice or master for breaches of responsibilities laid down by the acts, although members of either group could be tried for common law crimes such as theft or murder by the previously established courts of quarter sessions and assizes. The stipendiary magistrates made decisions about punishment but relied for the enforcement of those decisions on two sources of power: a new system of police and a network of ‘‘constables’’ drawn from among the apprentice population. The Police Act of June 1834 called for the creation of a militarized police force to be settled throughout the island on land specifically bought for this purpose. The police took over the militia’s role in the enforcement of ‘‘order,’’ although formally the militia continued to exist. Despite problems with the recruits—nearly 100 out of 800 policemen had been disciplined for drunkenness, disobedience, or desertion by the end of 1835—stipendiary magistrates reported that the planters, magistrates, apprentices

59

7124 Paton / NO BOND BUT THE LAW / sheet 76 of 308 Tseng 2004.8.31 07:45

police proved important in suppressing disturbances on plantations and helping them inflict punishment.25 One described an incident where he had made use of police support, when apprentices ‘‘raised their hoes in aggression,’’ protesting against the conditions of their work. In response, ‘‘the police marched in with bayonets fixed, routed them, and by their determined and orderly conduct enabled me to bring the gang . . . into subjection to the law, and I am sure hindered the whole in most of the districts from following their example.’’ 26 The Jamaican Abolition Act also allowed for the appointment of ‘‘constables’’ from among the apprentice population on estates. Those appointed had usually been drivers as slaves, and they filled a similar role under apprenticeship. They were to be chosen with the consent of the master or manager and could, under his directions, place apprentices who committed offenses or those found ‘‘loitering’’ on the estate in confinement for twenty-four hours while awaiting the arrival of the special magistrate. This clause allowed planters to retain significant direct penal power, and was objected to by the Colonial Office, but went into effect nevertheless. While the police were called to plantations only in cases of clear resistance, the constables were always present. They were responsible for the daily implementation of the decisions of the special magistrates: they carried out most of the floggings and usually escorted apprentices to the houses of correction.27 The system thus required the cooperation of these apprentices for its enforcement, as slavery had relied on slave headmen and drivers. The constables mostly cooperated with the system without explicit dissent but gave their cooperation neither unconditionally nor completely freely. Like all subordinate agents of repression, the constables knew that they could themselves be punished if they did not give their full cooperation. At the same time, they retained significant power in interpreting orders. In cases of collective apprentice resistance, magistrates could not rely on the full cooperation of the constables. One magistrate instructed three different constables to flog an apprentice, believing that each constable was failing to beat severely enough.28 In such instances, constables’ solidarity with their fellow apprentices was reinforced by their self-interested recognition that the sanctions of the estate community, with whom they had to live in the long term, could be as forceful as those of the magistrates. Community pressure on constables intensified if they were members of missionary churches. According to Robert Davidson, who was both a deacon in the Baptist church and the head constable on his estate, his missionary Henry Taylor reproached him for flogging another apprentice. Taylor told Davidson that ‘‘he would have no person in his 60

Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 77 of 308 Tseng 2004.8.31 07:45

church that inflicted punishment on another.’’ Davidson chose to retain his position as constable and left the Baptists for the Church of England.29 On other occasions, constables made different choices. One, a leader in the Spanish Town Baptist church, told of how ‘‘he found it very difficult to act according to his oath’’ and was ‘‘frequently obliged to remonstrate with his overseer about the oppressions which he practised.’’ 30 The ambiguity of the position of headman persisted into—indeed, was intensified by—apprenticeship.31 Beyond these coercive forces lay the power of the British army and navy, whose help was occasionally called on to suppress dissent. In the final analysis, this power was always available to enforce order and coerce labor, as Jamaicans, who had experienced the suppression of the 1831 slave rebellion, would undoubtedly have been aware. The military intervened to suppress apprentice resistance several times during apprenticeship, including in response to a widespread strike in St. Ann in August 1834. According to Sligo, the apprentices there adopted a tactic of ‘‘passive resistance,’’ in which they ‘‘committed no overt act whatever, but doggedly refuse to work, submitting with the appearance of pleasure, to their punishment, their comrades exhorting them to bear it for the sake of freedom.’’ While the apprentices sustained their resistance in the face of floggings ordered by the special magistrates, the strike was eventually suppressed by the combined forces of magistrates, military, and police.32 All special magistrates, all policemen, all military personnel, and all constables were male. This exclusive masculinity of state-created authority is not surprising, but it is nevertheless worth noting. The establishment of the system of constables reinforced a set of options, alongside those of skilled work on the sugar estate, that were open to male slaves/ apprentices but not to women. The entire system of constables, police, magistrates, and military perpetuated an association between formal power and masculinity. Jamaica shared with other societies undergoing the creation of a modern bureaucratized state a process in which women became more firmly excluded from access to formal power, whether political, penal, or administrative.33 Apprentices could be punished under the new laws for a lengthy list of offenses. These included absence ‘‘without reasonable cause’’; absence on the pretext of ill health; refusal to perform labor required by the Abolition Act; willful negligence that resulted in damage to the master’s property; damaging one’s master’s fruit trees; careless use of fire, endangering the property of the employer; ‘‘ill-use’’ of cattle or other stock; insolence or insubordination; riot or combined resistance; leaving or attempting to leave the island; aiding another apprentice in leaving or attempting planters, magistrates, apprentices

61

7124 Paton / NO BOND BUT THE LAW / sheet 78 of 308 Tseng 2004.8.31 07:45

to leave the island; sheltering a runaway; being part of a ‘‘distinct community, habitually abandoning and neglecting to perform the duties imposed on them by law’’ (i.e. belonging to a maroon community);34 and ‘‘all other inferior misdemeanors and other crimes committed by apprentice labourers against each other, or against the person entitled to his or her services.’’ 35 Many of these were new crimes, suggesting that the lists represented the efforts of the planters’ representatives to legislate against all behavior for which planters either had punished or could imagine punishing slaves. The offenses thus provide a guide to planters’ fears as much as to apprentices’ actions. The acts set out penalties for each of these transgressions, including having to work for one’s master in one’s own time; being sent to the parish house of correction for up to six months, with or without hard labor in the penal gang; and up to ten days’ solitary confinement in the house of correction. The Jamaican Abolition Act delineated a careful tariff of the appropriate levels of punishment for each apprentice offense, listing the requisite number of lashes, amount of time in prison, or other punishment. Appropriate levels of flogging ranged from twenty ‘‘stripes’’ for running away for one week to fifty for careless use of fire, riot, or ‘‘combined resistance.’’ However, the act also mandated different punishments for men and women, forbidding magistrates and judges from sentencing female apprentices to be flogged. As a result, women, once convicted, were more likely than men to be sent to prison. In that the individual clauses prescribing appropriate levels of flogging did not mention that these punishments were only for men, the act also contributed to a gendered imagining of the ‘‘apprentice’’ in the abstract as male. Apprenticeship was framed in the language of paternalism, as if it prescribed reciprocal obligations to master and apprentice. And, indeed, the abolition acts did detail some obligations of masters. Masters had to allocate land to apprentices for provision grounds and time to cultivate the grounds, or they had to supply provisions instead. They were required to supply apprentices with ‘‘such food, clothing, lodging, medicine, medical attendance, and such other maintenance and allowances’’ as were laid down in the 1831 slave code.36 Since the only provision of this kind in the 1831 slave code was that slaveowners must provide ‘‘proper and sufficient clothing’’ once a year, this was a rather limited requirement.37 The Jamaican Abolition Act also forbade masters from punishing their apprentices directly. Masters could be tried for ‘‘cruelty, injustice, or other wrong or injury’’ to apprentices. If they failed to fulfill these obligations, they could be penalized, although all the penalties laid down by the act were in the form of fines, ranging from £2 for refusing apprentices sufficient time or 62 Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 79 of 308 Tseng 2004.8.31 07:45

land for provision grounds, to £5 for cruelty to an apprentice. Planters who did not pay a fine could be jailed until payment was received (although I have found no examples of this occurring). The act made no provision for the flogging, hard labor, or solitary confinement of planters. While the punishments implemented by stipendiary magistrates were based on a system that literally prescribed one rule for the rich (or propertied) and one rule for the poor (or those who were themselves considered property), the common criminal law persisted alongside the apprenticeship law and presented itself, as did the criminal law in England, as a neutral form of law applied evenly to all. For offenses that fell beyond the jurisdiction of the stipendiary magistrates, both apprentices and apprentice holders could be taken to the ordinary criminal courts and could be fined or imprisoned by them. Criminal courts operated at three levels: petty sessions (which took place whenever the requisite number of magistrates decided to convene a court), quarter sessions (taking place every three months in every parish), and county assizes (or grand court in the county of Middlesex); these occurred three times a year in Kingston, Spanish Town, and Montego Bay. In practice, in Jamaica as in England, most prosecutions in the petty and quarter sessions were for property offenses committed by the relatively poor. The sparse evidence available suggests that free people of color were overrepresented as defendants, while apprentices were underrepresented.38 It seems that the most important function of these courts was not so much to enforce order among the apprentices as to control the poorer and darker-skinned sections of the free population—poverty being heavily correlated with blackness. The highest level of criminal court was the assizes, held three times a year in each county. As at quarter sessions, most of the trials at assizes were for property crime, often the theft of livestock. The assizes dealt with a very small number of cases compared with the stipendiary magistrates, quarter sessions, and petty sessions courts.39 However, the cases heard there attracted the most attention of all trials in Jamaica. Followed particularly intensely were the few prosecutions that took place of planters who engaged in extreme acts of cruelty to apprentices. In one such case, Robert Loughlin was sentenced to three months’ imprisonment and fined £100 for ordering William Taggart, an apprentice on his estate, to be tied to the carcass of a steer that had been dead for three days.40 Loughlin’s conviction was unusual. Many of those indicted for such crimes had their indictments thrown out by grand juries, and those who were tried were frequently acquitted.41 Nevertheless, as they had done during slavery, Jamaican planters held up as proof that the criminal justice system was not biased the few occasions in which overseers were convicted of cruelty. planters, magistrates, apprentices

63

7124 Paton / NO BOND BUT THE LAW / sheet 80 of 308 Tseng 2004.8.31 07:45

English Liberties and Colonial Penality Some discussions of apprenticeship have emphasized the ‘‘meanness’’ and ‘‘parsimony’’ of the stipendiary magistrates’ salaries.42 Certainly, £300 did not stretch far for a man with a family trying to present himself as a gentleman in 1830s Jamaica. In the context of that time, though, it was less surprising that the magistrates were paid so little than that they were paid at all. Paying magistrates centrally rather than through private fees was a recent innovation in the history of Britain and its empire, one that cut against ideas about ‘‘English liberty.’’ Traditionally, magistrates were assumed to be gentlemen, enforcing the law as part of their general duty to the county.43 In 1832, the only paid magistrates in England and Wales were in London and Manchester, where they had been accepted as necessary to control urban areas considered exceptionally disorderly. Even in these cities, the innovation was introduced in the face of significant hostility to centralized state control of the judiciary, which was frequently interpreted as an intrusion of ‘‘continental despotism’’ into ‘‘English liberty.’’ 44 In Ireland, stipendiary magistrates had been introduced in the late eighteenth century, and their role was expanded and consolidated in Peel’s police reform of 1814. They were sent, along with centrally controlled military police (known as ‘‘Peelers’’), into counties declared to be ‘‘in disorder’’ and had superior jurisdiction over local magistrates. The role of the special magistrate, which was new in Jamaica, thus drew on precedents of both the stipendiary magistrates of London and Ireland and the protectors of slaves who had existed in the crown colonies since 1823. In Ireland, the Anglo-Irish Protestant elite used claims to English liberties to reject centralized policing until the revolutionary threats to their authority of the 1790s. After that decade showed them how much their power depended on British military force, they were willing to accept the loss of their ‘‘liberties’’ in exchange for the security of more efficient and better funded state coercion.45 In the 1830s, Jamaican planters felt similarly to the pre-1790s Irish elite: they objected to the imposition of outside magisterial (and police) authority. As with abolition as a whole, the planter class did not fight the overarching change but tried to gut it of meaning. The planters accepted that stipendiary magistrates would exist but tried to undermine their authority. On one occasion, Stipendiary Magistrate Richard Chamberlaine was forced to hold his court in the stables of a sugar estate.46 Planters also tried to control magistrates’ decisions both through patronage and by trying to ensure the appointment of men they knew to be pro-planter.47 Resistance by the local ruling class 64 Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 81 of 308 Tseng 2004.8.31 07:45

to centralized state law enforcement and judiciary was more intense in the slave colonies than in Britain or Ireland. This was, perhaps, because in the Caribbean stipendiary magistrates implicitly supported a challenge to elite authority from below as well as above, providing as they did a space for apprentices to complain officially about their masters. Despite this, Jamaican planters were less successful than their English counterparts in resisting the growth of state authority. A discourse of ‘‘liberties’’ was joined to one of class in the language of the Jamaican planters, who presented themselves as epitomizing the gentleman magistrate. They attacked the stipendiaries primarily for their ignorance of Jamaican ways, describing them as ‘‘strangers’’ to the island who knew nothing of the supposed ‘‘character’’ of the ‘‘negro.’’ 48 This discourse was in itself imbued with a sense that the ‘‘stranger’’ lacked class respectability. Planters also directly attacked the magistrates for being lower class, which, compared to the minor gentry who were the justices of the peace in English counties, they were.49 Their race was seized on to attack the handful who were men of color; they were not strangers, but neither were they members of the Jamaican elite, which prided itself on its supposed racial superiority.50 One letter to the Colonial Office attacked Richard Hill as ‘‘such a Mulatto dan’’ who had persuaded the governor ‘‘to discharge several White Special Magistrates, and detain all his own colour.’’ 51 The perception that justice could only be properly enforced by white English gentlemen, and a nervousness that the magistrates did not meet this criterion, was also powerful among senior state officials. It is apparent, for instance, in Sligo’s comment that the stipendiaries should ‘‘recollect their position, and . . . conduct themselves with the utmost respect towards the gentlemen of the country.’’ 52 However, in the Colonial Office’s eyes, the low status of the magistrates was overridden by the lack of class status and truly ‘‘English’’ identity of the planters themselves. Because Jamaica’s large landowners were absentees, Jamaican resident planters were portrayed as vulgar, uneducated, and—despite their vigorously asserted whiteness—foreign.53 If only Jamaica had its own aristocracy, the assumption went, the state would not have had to step in. This was the essential difference of the colonies: they either had no indigenous ruling class of their own (as in the Caribbean) or the native ruling class could not be trusted (as in Ireland and India). Both planters’ and official discomfort with the stipendiary magistracy drew on a conservative social discourse that articulated a paternalist vision of authority as embedded in long-standing and supposedly organic hierarchies. Ultimately, both depended on an idealized version of English rural society, in which the local landowner and his dependents existed in planters, magistrates, apprentices

65

7124 Paton / NO BOND BUT THE LAW / sheet 82 of 308 Tseng 2004.8.31 07:45

a symbiotic relationship of mutual trust and dependency. For all the difficulties of applying this view to a colony obviously dependent on imported slaves, this was the ideology that underlay pro-slavery representations of flogging, in which the planter is revealed as being able to create justice and order out of the chaotic lives of uncivilized blacks.54 The authority of ‘‘low’’ and ‘‘strange’’ magistrates challenged such a view. A similar vision was the basis for official attacks on stipendiary magistrates and Jamaican resident planters. This view was also contradictory. In implicitly contrasting the Jamaican planters’ failure in the use of power to the orderly exercise of authority at ‘‘home,’’ colonial officials obscured and evaded the fact that their vision of order did not really exist in England at this time, either. Large numbers of people now lived in the industrial cities, apparently beyond the reach of traditional forms of social control. And even in the countryside relations were anything but settled and orderly: the Swing rebellion of 1830 challenged any easy assumption of mutuality between landowner and laborer.55 It must have been clear that the centralized forms of state organization that had already begun in London and a few other cities would have to be extended sooner or later to the rest of Britain. Over the next forty years, this did indeed happen: stipendiary magistrates were appointed across the country, and national inspectorates were created for education, prisons, the poor law, and so on. The creation of the stipendiary magistrates for the Caribbean, while answering to needs there, was also a step toward normalizing a practice labeled alien in long-standing discourses of Englishness. If the British government could declare a form of property extinct, spend £20 million on compensating those expropriated, and create a body of magistrates whose position did not derive from their status to rule over landowners, this indicated a significant shift in the organization of social power and heralded future change. That these acts became foundational to English claims to virtuous nationhood contributed to increasing the authority of the national state within England. Slave emancipation should thus be placed alongside the other changes, many of them concentrated in the 1830s, that Corrigan and Sayer discuss as part of the construction of the ‘‘Great Arch’’ of the English state.56 As well as the abolition acts, a series of other laws passed in this period expanded and redefined the role of the state in the maintenance of ‘‘order.’’ In addition to the new police acts, the 1830s saw the passage of a new vagrancy act, a trespass act, several prisons acts, and, in 1837, a complete revision of the criminal code, creating new consolidated statutes dealing with larceny, offenses against the person, and malicious damage.57 While the Colonial Office disallowed some of these acts, their prolifera66

Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 83 of 308 Tseng 2004.8.31 07:45

tion does not merely represent the regressive politics of Jamaican planters. The Colonial Office had advocated, in a circular of 1833, the adoption of a variety of police measures and continued to advise the adoption of new judicial, police, and penal statutes through this period.58 Those acts that were disallowed were opposed by the Colonial Office not because they were coercive but because they organized coercion in the wrong way, through the means of private individuals (planters) rather than by delegating the responsibility to the state. The imperial commitment to the rule of law was central to apprenticeship. The rule of law was the blessing Britain bestowed on its colonies; it (along with a discourse of racial hierarchy—although one that was relatively undeveloped in this period) legitimated imperial rule for those involved in the ruling. The political work accomplished by this imperial ideology does not make it simply a cover for ulterior motives. Indeed, many at the heart of the imperial project were thoroughly committed to it.59 It was certainly the impulse that dominated the Colonial Office under the powerful permanent secretary, James Stephens; under the Marquis of Sligo and Lionel Smith, it also dominated the Jamaican governor’s mansion. The commitment to the rule of law led to an effort to promote the state’s clear neutrality in the implementation—though not the content—of the law. The stipendiary magistrates were supposed to be independent of the plantation system and thus free from the bias that had distorted Jamaican criminal justice during slavery. Instructions to stipendiary magistrates repeatedly stressed the need for impartiality in disputes between masters and apprentices. The magistrate ‘‘must not become the partisan of one more than the other,’’ wrote Governor Sligo in 1835. ‘‘He must recollect that as it is his duty to protect the apprentice from any oppressive conduct on the part of those placed over him, so it is also his bounden duty to protect that master from insolent and ungrateful behaviour on the part of the apprentice.’’ 60 Several magistrates lost their positions because they were too closely allied with the planters, while others were fired for siding too consistently with the apprentices. There was a certain contradiction in this conception of the rule of law and in the requirement of neutrality. Sligo was a Whig and an aristocrat. He was also a significant slaveholder, owning two plantations in St. Dorothy parish, with a total of 286 apprentices.61 His position as a slaveholder was one of the reasons why he was chosen for the position. Thus, although the individual stipendiary magistrates had to be untainted by slaveownership, the highest representative of the British government in the colony was compromised in precisely the way the apprenticeship system was supposed to prevent. Sligo did not see himself as having much in planters, magistrates, apprentices

67

7124 Paton / NO BOND BUT THE LAW / sheet 84 of 308 Tseng 2004.8.31 07:45

common with the resident Jamaican proprietors, of course, understanding his methods of management as entirely different from those of his peers. He had also recently been persuaded of the necessity for abolition, although he did not emancipate his own apprentices prior to the abolition of the system. His commitment to the rule of law was thus, from personal interest as well as political belief, situated strongly within the framework of ensuring the continuity of estate-based commodity production. Perhaps the strongest evidence for Sligo’s meticulous efforts to enforce the rule of law is to be found in a volume that contains his responses to the weekly reports containing the decisions of the stipendiary magistrates.62 His criticisms consistently demonstrate his desire for the rational rule of law—as well as his inability fully to impose it. Sligo reproved the magistrates when they failed to stick to the letter of the law and called for precision and detail in the reporting of decisions. Thus, he urged them to be more specific in their penal judgments—for instance, asking R. St. John what, exactly, a sentence he gave of ‘‘hard labor’’ was to consist of.63 He insisted they administer the correct punishment as laid down by the abolition law, overturning many sentences of additional labor for ‘‘insolence’’ because the law stated that this particular offense must be punished by imprisonment.64 He instructed them to punish only those offenses that fell within their jurisdiction, criticizing Stipendiary Magistrate Pryce for punishing three women for ‘‘improper familiarity with police’’ and rebuking several others for trying cases of theft, which fell under the jurisdiction of the local magistrates.65 These efforts reveal both Sligo’s commitment to the rule of law and the limitations of state power: for all he tried to enforce his will, the magistrates continued to make judgments that were not strictly legal. Nevertheless, his public efforts to ensure rational law enforcement had important consequences in terms of sustaining apprentices’ belief that recourse to the law was possible. A commitment to the rule of law does not imply anything about the justice of the law whose rule is implemented, but that does not mean it has no significance. Sligo’s specific recommendations show his commitment to state rather than private control of the penal process. He consistently recommended that apprentices be sent to the parish penal gang rather than forced to compensate masters with extra labor; he argued against flogging and in favor of punishment on the treadmill. His policy was not to decrease the amount of punishment received by apprentices, but to reorganize it. Indeed, he criticized magistrates for inflicting too little punishment as well as too much, instructing one magistrate that two spells per day on the treadmill of ten minutes each was ‘‘insufficient punishment’’ for a healthy woman.66 Overall, his advice to the magistrates show him to have strongly 68 Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 85 of 308 Tseng 2004.8.31 07:45

advocated and defended the sovereignty of the state bureaucracy and of bureaucratized, routinized, and rationalized punishment.

The New Penality in Practice We should not assume that because of the change in the law, masters immediately stopped using private methods of punishment against apprentices. Apprentices’ frequent complaints to stipendiary magistrates that they had been flogged by their masters demonstrate that private punishment continued.67 Undoubtedly, many cases of illegal punishment took place that were never recorded. Even when they fulfilled their duties to the letter (which was probably not very often), stipendiary magistrates only visited each estate once every two weeks, and the roughly 20 percent of apprentices whose masters had rights to fewer than forty apprentices would only see a magistrate if they sought him out to complain or if the master called him to the estate.68 In addition, planters used those aspects of apprenticeship law that gave them limited penal rights over apprentices to their fullest extent, especially the power to imprison apprentices for up to twenty-four hours in order to call a magistrate. Planters interpreted this provision broadly, arguing that it allowed them to use estate imprisonment to punish apprentices rather than simply as restraint. Despite governors’ statements that this was illegal and magistrates’ fines on planters who did it, the practice continued. Planters also made extensive use of a range of other disciplinary practices that were not considered penal. The ‘‘customary allowances’’ that Jamaican slaves had won from their masters through the course of long labor struggles were not specifically laid down in the abolition laws, and masters withheld or gave them as a mechanism of labor discipline (as well as out of spite or penny-pinching).69 They could also win over the magistrates to do their bidding. Magistrates allied themselves with planters either out of their own predispositions or because of their dependence on planter society for any comfort whatsoever. Many ended up sleeping in plantation great houses and dining at planters’ tables.70 In addition, planters tried to regain direct penal power through their control of the law. For instance, the planter-dominated assembly passed the Second Act in Aid, which, among other provisions, established penal gangs on the estates. (The act was in force for seven months before it was refused Colonial Office assent.) Planters also tried (unsuccessfully) to have local magistrates appointed as stipendiaries and used their dominance of parish vestries to control the management of prisons. Such planter efforts did not strip the change in the law of all meanplanters, magistrates, apprentices

69

7124 Paton / NO BOND BUT THE LAW / sheet 86 of 308

ing. If it had relied for enforcement only on the stipendiary magistrates, this might well have been the case, but it did not. Planters tried to hide the changed circumstances from their apprentices, in order, as Sligo put it, ‘‘to hold something in terrorum over the dd [i.e. ‘‘damned’’] rascals.’’ But, as he went on to explain, they were unsuccessful in this, apprentices ‘‘being quite alive to their rights.’’ 71 Richard Madden, a stipendiary magistrate who wrote a two-volume account of his year in Jamaica, noted a change in mood on the first of August, describing the gleeful games of some ‘‘negro urchins’’ of unspecified age who threw stones at a ‘‘drunken sailor’’ in Kingston: [W]henever poor Jack made a reel after them, [they] scampered away, shouting most lustily to each other, ‘‘What for you run away? we all free now! buckra can’t catch we! hurra for fuss of Augus! hi, hi, fuss of Augus! hurra for fuss of Augus!’’ Then the young elite of the liberated blacks would courageously wheel round and give poor Jack another volley of pebbles, and cut all manner of ridiculous capers before him.72

Tseng 2004.8.31 07:45

This incident, although intended by Madden as a trivial anecdote, reveals the symbolic importance, for enslaved people, of the end of slavery. In legal terms, the change from slavery to apprenticeship made very little difference to whether or not children could throw stones at a drunken sailor with impunity. They probably could have done so before the first of August, and the risk they would have taken then—that he would overcome his drunkenness sufficiently to retaliate with violence—in fact continued to exist during apprenticeship. No magistrate would have considered the children as having a legitimate complaint had the sailor attacked them. And indeed, the children’s sense that ‘‘buckra can’t catch we’’ probably signified a more general feeling of emancipation rather than an awareness of specific rights. The change seems to have had a major psychological importance for these children reveling in their ‘‘freedom,’’ giving them a new confidence in their relationship with white people. For women, as for young children, the penal implications of apprenticeship were more dramatic than for adult men. Not only did they have to be brought before a magistrate for punishment, but not even the magistrate could order them to be flogged. There may have been a corresponding assertiveness in women’s challenges to authority. One of the stipendiaries claimed that women were ‘‘exulting over the managers for their triumph of the abolition of flogging.’’ 73 Given the importance of flogging to slavery’s penal regime, the change must have seemed liberation indeed—at least, at first. Apprentices quickly learned which of the magistrates were likely to 70 Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 87 of 308

take their side in disputes and which were more likely to favor the planters. Two magistrates in St. James, William Norcott and Richard Hill, quickly gained reputations as sympathetic to apprentices. According to Sligo, neither had inflicted any corporal punishment by October 1834, with the result that ‘‘[t]he Negroes when brought before any other special laugh at him and their masters and say they will go to Hill and Norcott, who won’t allow them to be punished.’’ 74 If no sympathetic magistrate was nearby, apprentices often traveled to Spanish Town to appeal directly to the governor, who wrote even before apprenticeship began of the ‘‘[i]mmense numbers of grievous complaints’’ made to him ‘‘almost daily.’’ 75 Such complaints included criticisms of magistrates’ practices and decisions. In November 1834, for instance, a ‘‘numerous gang’’ of women apprentices reported to Sligo that S. M. Finlayson refused to hear their evidence in cases he decided. Sligo’s commitment to seeing Jamaica governed by rational law meant that such complaints could be effective. In this case, Sligo wrote to Finlayson, warning him in polite language that he must ‘‘hear every one patiently’’ and ‘‘let them tell as long a story as they please.’’ 76 The change in the law thus meant a change in the balance of power on plantations. Apprentices took advantage of the illegality of planter violence to press for better conditions within the terms of the system. They could resist planters’ demands that they thought unfair with greater confidence than had slaves. In the course of such resistance, many asserted their free status to deny the planters’ powers. One apprentice, Charles Wilkey, reportedly refused his estate’s constable’s order with the justification ‘‘that he was free and should do as he liked.’’ 77 Another, on being told by an overseer to watch cattle for his master, replied that he ‘‘had no master.’’ 78 Apprentices also knew that planter-implemented punishments were illegal and acted on this knowledge. When the young apprentice James Williams’s master threatened to beat him, Williams was able to deflect the beating. ‘‘You can’t lick me down, Sir,’’ he said, ‘‘the law does not allow that, and I will go complain to magistrate if you strike me.’’ 79 Such claims suggest that the structure of apprenticeship led to increased apprentice engagement with the law and with state officials.

The Magistrates’ Decisions

Tseng 2004.8.31 07:45

When Governor Sligo reported on punishments given by stipendiary magistrates during the first year of apprenticeship, he listed only punishments imposed on apprentices, not complaints brought against masters. As this suggests, the magistrates’ most fundamental responsibility was the planters, magistrates, apprentices

71

punishments inflicted in thousands

7124 Paton / NO BOND BUT THE LAW / sheet 88 of 308

15

11,855

10

6,024 5 2,837

2,552

1,805 322 0 Theft

Running away

Neglect of duty

Disobedience Cutting and maiming cattle

Insolence

offense

figure 4 Offenses punished by stipendiary magistrates, August 1834–July 1835. Source: Enc. in Sligo to Glenelg no. 195, January 22, 1836, pp 1836 (166), XLVIII.

Tseng 2004.8.31 07:45

enforcement of labor discipline on the estates. Sligo divided the apprentices’ offenses into six categories: theft, running away, neglect of duty, disobedience, cutting and maiming cattle, and insolence (see Figure 4).80 With the exception of theft, which accounted for 11 percent of the total of 25,395 instances of punishment reported, all these categories imply apprentices’ lack of cooperation with the apprenticeship regime.81 The extent of the non-cooperation ranged from overt and organized resistance, as when estate workers struck to gain a four-and-one-half-day rather than a five-day working week, to individual acts representing a less systemic challenge to the planter’s authority, as in a case adjudicated by Stipendiary Magistrate William Ramsay when the apprentice Lucy Gale took biscuits belonging to her mistress.82 Sligo’s figures tell us little about the content of the conflicts. The difference between cases of ‘‘insolence’’ and cases of ‘‘neglect of work,’’ for instance, probably reflects primarily the point in a conflict at which the manager decided to bring the apprentice before the magistrate rather than the nature of the conflict itself. To investigate the situations that led to cases’ being brought before magistrates, we need to look more closely. Most of the evidence about magistrates’ decisions takes the form of abstracted totals of types of offense and kinds of punishment. However, 72 Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 89 of 308 Tseng 2004.8.31 07:45

some of the magistrates’ private records of their decisions have been preserved. The evidence from these journals allows for analysis both of the form taken by judicial practice and of the background to many of the cases in a way that is rarely possible with Jamaican court records from earlier and later periods, most of which simply list the crime and the decision without further details. The two most detailed journals are those of Frederick White, who was based in St. George in the northeast of the island, and of William Carnaby, the magistrate in the western sugar parish of St. James. White’s journal runs from the beginning of apprenticeship until February 1835, when he was removed from the magistracy; Carnaby’s runs from January 1836, when he took up his duties, to June of that year. In addition, we have the journal of John Rhodes Hulme, based in Hanover, covering February to April 1835 and January to May 1836.83 Brief extracts from the returns of William Ramsay, Ralph Cocking, Simeon Farrar, Edward Fishbourne, Samuel Pryce, and Thomas Davies were either published in the Parliamentary Papers or have been preserved in the Colonial Office archives at the Public Record Office in Kew.84 These sources show that the hearings were relatively informal, unbureaucratic, and only partially ritualized. These trials followed rules, but they were not the same rules as those of a modern magistrate’s court. Usually, the magistrate would arrive at the estate and ask the overseer whether he had any cases he wished to be brought up. If he were conscientious, which many were not, he would also go to the fields where the apprentices were working to ask them the same. The magistrates submitted their reports in tabular form, listing ‘‘date,’’ ‘‘place,’’ ‘‘distance travelled by magistrate,’’ ‘‘plaintiff,’’ ‘‘defendant,’’ ‘‘complaint,’’ and ‘‘decision.’’ However, not all of these categories were always filled in, and their very structure indicates some of the divergences from what we have come to expect of a criminal trial. There was no column in which the magistrate could enter a plea of guilty or not guilty; nor was there a column for evidence heard, although sometimes the magistrates summarized the evidence they heard in the ‘‘complaint’’ column. In many cases, there is no record that the magistrate asked the apprentice concerned for his or her side of the story. Finally, the ‘‘decision’’ column encouraged the magistrates to collapse verdict and sentence. While Carnaby often wrote ‘‘complaint upheld’’ before noting the punishment, a typical record by White reads, ‘‘Eleanor Martin, for general bad conduct and refusing to go to work putting her master at defiance, 7 days hard labour at the house of correction.’’ 85 From White’s point of view it was not necessary to specify exactly when Martin had refused to go to work, how she had ‘‘put her planters, magistrates, apprentices

73

7124 Paton / NO BOND BUT THE LAW / sheet 90 of 308 Tseng 2004.8.31 07:45

master at defiance,’’ (i.e. defied her master), or the content of her ‘‘general bad conduct.’’ Nor did he note that he had found her guilty before listing her sentence. This was in many respects similar to the practice of English magistrates in the same period. Like the stipendiary magistrates, English justices of the peace heard cases spontaneously and rarely in official courtrooms. They also rarely had legal training. A magistrate acting alone usually held trials in a room in his house; when more than one magistrate was required, the case often took place in a public house. Rules requiring English magistrates to ask the defendant for his or her plea were introduced in 1848, suggesting that prior to this they rarely asked this question.86 Indeed, in some ways the stipendiary magistrates’ practice was closer to the normative ideal of impartial justice than was that of their English counterparts. For instance, the insistence that stipendiary magistrates not be apprentice holders demanded a greater degree of impartiality than was common in rural England at this time. The stipendiary magistrates saw themselves as negotiators or mediators as much as arbiters of justice. They were encouraged in this belief by the ideology underlying apprenticeship, which saw masters and apprentices as having fundamentally compatible interests; the job of the magistrate was to mediate between these interests in the hope of persuading the two sides to recognize their mutual interests. In this sense, magistrates operated within a less confrontational system than is implied by the idea of British justice. A common decision, especially on White’s part, was to ‘‘admonish’’ the person charged. From the point of view of a judicial system in which defendants are either guilty or not guilty, this suggests a verdict of guilty: if the defendant had not done what he or she were charged with, there would be no reason to admonish him or her. And indeed, on many occasions White admonished instead of giving out a more severe punishment, noting as his reason the fact that the defendant was young or old or had a record of good conduct. But White also admonished people in cases where he judged that there was ‘‘not . . . sufficient evidence to convict,’’ or in which the case was ‘‘only in part proved.’’ 87 That is, he seemed to view ‘‘admonition’’ as an intermediary outcome between upholding and dismissing a complaint, one that could be used to impress on an apprentice, and occasionally a manager, his or her position and duties, whether or not that individual had actually broken any of the rules of apprenticeship. On other occasions, cases ended with a resolution of the dispute without any official decision about whether the complaint was justified. For instance, a group of apprentices from Caen Wood estate complained to White that they were worked longer hours 74

Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 91 of 308 Tseng 2004.8.31 07:45

than was lawful. After listening to both the apprentices and the management, White persuaded the apprentices to accept their situation. He reported that he ‘‘left them perfectly happy[,] they having come to the overseer[’]s terms.’’ 88 These informalities suggest that the magistrates’ trials did not fall easily into either the ‘‘premodern’’ or ‘‘modern’’ categories into which legal scholars sometimes divide juridical regimes. Foucault, for instance, writes of the modern ‘‘rule of common truth’’ in which ‘‘[l]ike a mathematical truth, the truth of the crime will be accepted only when it is completely proven.’’ He contrasts the classical penal theorists’ understanding of absolute guilt or innocence to the ‘‘old regime,’’ which could encompass half proofs and half guilts.89 Similarly, the anthropologist Richard Abel makes a schematic distinction between ‘‘tribal disputing’’ on the one hand and ‘‘modern litigating’’ on the other.90 Although Abel presents the two as taking place synchronically while for Foucault these are consecutive categories divided by an epistemic shift, both imply that the two systems exist in different worlds. The stipendiary magistrates’ journals, though, suggest a more hybrid juridical formation in which the magistrates both attempted to enforce a precisely rule-bound ‘‘rule of law’’ and, at the same time, aimed to bring the parties involved in the disputes to an agreement on how to proceed. White’s and Carnaby’s journals suggest that masters took complaints to the stipendiary magistrates far more frequently than apprentices (see Figure 5).91 Of the 571 cases heard by White in which it is possible to determine the relationship between plaintiff and defendant, 543, or 95 percent, were brought by masters against apprentices; 13, or 2.3 percent, by apprentices against masters; and 15, or 2.6 percent, by apprentices against other apprentices.92 White gained a reputation early on for being extremely hostile to apprentices, so it is not surprising that few raised complaints with him. Apprentices were less reluctant to bring their cases to Carnaby, but even in his journal complaints by apprentices against masters made up only 14 percent of all cases heard.93 The relative paucity of apprentices’ complaints against masters demonstrates that the stipendiary magistrates did not simply apply the role of the protector of slaves in other colonies to a wider situation, but they substantially altered the function of the official. Almost all of the cases heard by protectors of slaves originated with slaves’ complaints; the opposite was true of stipendiary magistrates. Not only did apprentices bring cases relatively rarely, but when they did bring complaints, they were far less likely than planters to have them upheld. As Figure 6 shows, both White and Carnaby either found defenplanters, magistrates, apprentices

75

White Carnaby

500 number of cases

7124 Paton / NO BOND BUT THE LAW / sheet 92 of 308

600

400 300 200 100 0 Management vs. apprentice

Apprentice vs. apprentice

Apprentice vs. management

type of case

figure 5 Cases brought before Stipendiary Magistrates White and Carnaby. Source: White Journal, Carnaby Journal.

percentage of cases

100

80

60

40

20

0

White Carnaby Carnaby White Carnaby White Management Management Apprentice vs. Apprentice vs. Apprentice vs. Apprentice vs. Management Management Apprentice Apprentice vs. Apprentice vs. Apprentice

magistrate name and plaintiff–defendant relationship dismissed

negotiated

admonished

upheld

Tseng 2004.8.31 07:45

figure 6 Outcome of decisions by Stipendiary Magistrates White and Carnaby. Source: White Journal, Carnaby Journal.

7124 Paton / NO BOND BUT THE LAW / sheet 93 of 308 Tseng 2004.8.31 07:45

dants guilty or admonished them in the vast majority of cases brought by apprentice holders. When apprentices brought complaints against other apprentices, they were nearly as likely as managers to have the complaints upheld. But when apprentices complained against their managers, their chances of success dropped radically. Carnaby upheld complaints against managers 52 percent of the time, or 55 percent if one includes admonitions. White found managers guilty in a mere 15 percent of cases, rising to 46 percent if one includes admonitions—incidentally showing his reluctance to impose fines on planters. The low success rate is especially striking, since apprentices would have been more reticent than managers in bringing cases and presumably only brought cases that they felt confident of winning. This is implied by the much lower number of cases brought and is a logical result of the fact that apprentices’ complaints could be turned against them, with magistrates punishing for ‘‘frivolous or vexatious complaints,’’ a charge that was never brought against managers. Alex Browne, for instance, complained that the overseer neither gave the proper time for breakfast nor blew the shell to indicate the end of the work day. He ended up spending a week in the penal gang.94 It was much more common for the magistrate to try to mediate an apprentice’s complaint against a manager, coming up with a negotiated settlement. Negotiated settlements accounted for 23 percent of White’s and 15 percent of Carnaby’s apprentice-versus-management cases, but less than 1 percent of White’s and 4 percent of Carnaby’s management-versus-apprentice cases. When managers complained against apprentices, magistrates rarely negotiated settlements; instead, they punished. In comparison with the evidence from the slave courts, the most striking point revealed by these magistrates’ journals is the high rate of convictions suffered by apprentices. Compared with an acquittal rate of 25 percent found in an eighteenth-century slave court, and, more important, a 35 percent acquittal rate in the records of slave courts from 1821 to 1825, the fact that only 4 percent of all apprentices tried by White and 17 percent of those tried by Carnaby were acquitted or admonished is significant.95 Although the punishments that the magistrates could inflict were much less severe than those of either the eighteenth- or nineteenthcentury slave courts, the conviction rates suggest that in one sense apprentices’ experience with the law was harsher than that of slaves. Abolitionist and official colonial attacks on the inadequacies of the slave courts, which undoubtedly referred to real problems, might lead us to assume that these new ‘‘neutral’’ officials’ decisions would more frequently go in favor of apprentices. Having heard the rhetoric of the rule of law repeated planters, magistrates, apprentices

77

7124 Paton / NO BOND BUT THE LAW / sheet 94 of 308 Tseng 2004.8.31 07:45

many times by the governor and the magistrates themselves, apprentices probably also hoped that this would be true. The fact that it was not, I would suggest, resulted less from the bias of the magistrates against apprentices than from the different functions of the stipendiary magistrates and the slave courts. Whereas slave courts responded to relatively exceptional events, the stipendiary magistrates had a large share of the daily responsibility for enforcing plantation labor discipline.

‘‘The Law Is Not So’’ Occasionally we can reconstruct events in more detail than a single record in a magistrate’s journal allows, enabling us to piece together the context in which a wide variety of apprentices’ tactics were used. This is possible for a series of incidents that took place on Gibraltar estate, St. George, in the autumn of 1834 and were recorded in several sources, including White’s journal.96 This case is interesting not only because of what it reveals about apprentice-manager conflicts, but also because it demonstrates the multifaceted nature of apprentices’ relationship to the stipendiary magistrates and to the idea of the rule of law. In addition, it demonstrates the difficulties involved in determining what was at stake in a magistrates’ hearing from summaries of stipendiary magistrates’ decisions alone. What would, from a summary of White’s decisions, appear to be the disconnected actions of a few apprentices can be seen in the light of additional sources to have involved a collective labor struggle on the part of the entire gang. Like many other acts of collective resistance by apprentices, this conflict stemmed from a dispute over the organization of labor time. At the beginning of crop time, Thomas Learny, the overseer, tried to rearrange his apprentices’ work schedule to increase the hours in which the sugar works ran. He claimed that he wanted to divide the gang into two spells, one working from 4 a.m. to noon, the other from noon to 8 p.m.; the apprentices reported that he tried to divide them into three spells, one from 3 a.m. to noon, one from noon to 10 p.m., and the remaining one working from 6 a.m. to 6 p.m. in the fields. The apprentices refused to work outside of daylight hours, grounding their refusal in the changed legal circumstances of apprenticeship. According to Learny, they declared themselves ‘‘as well aware of the law as I was myself.’’ 97 Other apprentices reported that one of their number, Leanthe Allweather, said that ‘‘negro had no right to be worked at night—that Buckra was imposing on them, and that the law was not so.’’ 98 78 Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 95 of 308 Tseng 2004.8.31 07:45

When, the next day, the apprentices did not divide themselves into early and late spells, but instead all arrived in the field and sugar works at 6 a.m., Learny called in White. The apprentices said that White ‘‘could do nothing for them,’’ and in spite of his instructions that they must obey the overseer in the matter of work hours, they continued to oppose the new arrangements.99 Clearly, White did not embody the same ‘‘law’’ that the apprentices asserted they understood. They apparently maintained a conceptual separation between the law, understood in abstract terms, and the magistrate, who was individualized and given respect according to his specific actions. Indeed, it was this dual understanding of the nature of law that led to the next level of the confrontation. White interpreted Allweather’s claim that ‘‘the law was not so’’ as a direct challenge to his authority and ordered her into the stocks to await a sentence in the house of correction. He also tried to force her to relinquish care of her infant child. When Allweather refused to go to the stocks without her baby, White, according to Gibraltar apprentices, tried to remove the infant by force. Another apprentice, Francis French, intervened to help her, calling out, ‘‘Eh can’t you give the woman liberty to loose the child off her back instead of pulling and hauling it this way, are you going to kill the child.’’ 100 The conflict had now come to be about White’s interactions with the apprentices—and, in particular, his disregard for a woman’s relationship with her child— as much as it was about the organization of labor time. White ordered that French be flogged. When none of the apprentice constables flogged French to White’s satisfaction, he ordered multiple further punishments. By now he had ordered twelve people to be punished for refusing to work, plus punishments for French, Allweather, and the three constables who failed in the flogging of French.101 At this point, most of the apprentices left the estate. Their rejection of White’s authority did not, however, entail complete rejection of the law. A group of nine walked through some of the most mountainous terrain in Jamaica, reaching the stipendiary magistrates Archibald Palmer and Patrick Dunne in the parish of Port Royal three days later. The rest, they reported, had dropped back ‘‘from fatigue and hunger,’’ but these nine had persisted in order to report the story to the magistrates they respected.102 Their complaints focused more on White’s unfairness, refusal to listen, and arbitrary punishments than on the original conflict with Learny. Palmer and Dunne took down a detailed affidavit and sent it on to Sligo, where it became part of a dossier of cases that resulted in White’s eventual removal from the magistracy. Palmer and Dunne then told the planters, magistrates, apprentices

79

7124 Paton / NO BOND BUT THE LAW / sheet 96 of 308 Tseng 2004.8.31 07:45

apprentices to go back to Gibraltar, assuring them ‘‘that redress would be afforded if their rights had been infringed on.’’ 103 We could surmise, though, that the apprentices’ confidence in the law was diminished in the next week. There is no evidence that they received any of Palmer and Dunne’s promised ‘‘redress.’’ Instead, when they returned to Gibraltar, Learny once again called in White, who sent a group of four women to the Kingston house of correction for running away. One of those punished, Catherine Willis, had been among the group who made the affidavit before Palmer and Dunne. A number of other apprentices did not return until early December, when two men were punished by flogging and eight women by extra labor.104 By late November, Learny reported that the estate’s apprentices were ‘‘working well’’ according to the two eight-hour-spell system. But he also had to consider the fact that two fires had mysteriously appeared in the trash house the night of the ‘‘disturbances,’’ and no one on the estate was willing to help put them out—an indication, perhaps, that while they hoped to be able to gain the support of lawful authorities, the Gibraltar apprentices did not put all their confidence in the state.105 There may have been a split in tactics among the apprentices, with one group putting its hopes in the ‘‘good’’ magistrates, while another preferred more direct and anonymous action. Or perhaps those same apprentices who sought out Palmer and Dunne attacked their masters’ property before doing so. These incidents demonstrate a number of the central points of this chapter. White, the representative of the state, was called in by Learny with the intention of suppressing the resistance of the gang workers. Learny needed White because the law made it illegal for him to directly punish his workers, and because he knew that the apprentices were fully aware of that law and would act against him if he tried to break it. The struggle began as one between a planter and his apprentices but quickly drew in several stipendiary magistrates, pitting apprentices against one of them. It also expanded from its beginnings in a conflict over work hours to become a conflict around maternal rights, when White attempted to remove Allweather’s child from her. Finally, the apprentices made use of a wide variety of tactics which drew on slaves’ traditional methods of struggle and which operated simultaneously within and beyond the law. It is in this context that we should evaluate the significance of the new role of the state during apprenticeship. Attempts by subordinate groups to make states work in their favor have been common in many situations of unequal power.106 The implications of these attempts have been much debated, with some arguing that the use of the state legal system locks 80 Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 97 of 308 Tseng 2004.8.31 07:45

people into accepting the inequalities of the system of power under which they live, while others argue that such practices indicate nothing about the beliefs of the people who adopt them, since they represent merely the ‘‘public transcript’’ of a situation.107 A community’s attempts to pursue its goals through the courts, it has been claimed, may even lead to more radical strategies by mobilizing the community.108 Of course, both interpretations may be correct for different situations. The evidence presented here suggests that, in apprenticeship-era Jamaica, those advances that were made in the living conditions of apprentices resulted from their individual and collective actions, including, but not limited to, their use of the law. To the extent that the advent of apprenticeship saw a diminution in planter-administered punishment and a reduction in working hours, it was because apprentices made sure that the law was enforced. They did so by combining direct collective resistance with appeals to the magistrates or the governor. However, the fact that apprentices made use of the law should not be taken as a straightforward indication of the success of the hegemonic project of those who designed the program of emancipation. Recent scholarship on slavery in the Anglophone Caribbean has argued that we should pay closer attention to the ways in which enslaved people attempted to make use of formal legal structures. Emilia Viotti da Costa has shown how a ‘‘close reading of the slaves’ complaints [before the Demeraran fiscals and protectors of slaves] uncovers their notions of rights.’’ 109 Mindie Lazarus-Black argues that ‘‘everyday practices,’’ including slaves’ routine attempts to take their masters to court, ‘‘transformed the meaning and possibilities of ‘law’ in slave societies and . . . constituted the genesis of a West Indian hegemony.’’ 110 I have pursued a similar direction in this chapter; during apprenticeship even more than during slavery, the law was an everyday part of unfree laborers’ lives. However, I am wary of assuming that popular use of the courts constitutes, in and of itself, evidence of the construction of hegemonic common-sense understandings of law. The use by Gibraltar apprentices of the tactics of a strike, of direct resistance to one magistrate, of arson, and of appeal to another group of magistrates demonstrates the importance of placing popular use of the law in its context. This context must include both the use of the courts by elites (White’s repeated punishments of apprentices for their resistance, in this case) and the simultaneous use of non-legal tactics of resistance by the subordinate group (here, arson and striking). In Jamaica as a whole, popular experience with the law and the state during apprenticeship had contradictory implications. Apprenticeship at once promised but did not deliver freeplanters, magistrates, apprentices

81

7124 Paton / NO BOND BUT THE LAW / sheet 98 of 308 Tseng 2004.8.31 07:45

dom. Likewise, it expanded the state’s availability for complaints against masters while at the same time increasing its ability to implement repression. The ambivalent relationship of Jamaican freedpeople to state power in the post-emancipation period—the subject of the final chapter of this book—was rooted in part in their experience, during apprenticeship, of this doubled face of the state.

82 Chapter Two

7124 Paton / NO BOND BUT THE LAW / sheet 99 of 308

Chapter Three the treadmill and the whip

Tseng 2004.8.31 07:45

If the slave woman flogged by her sadistic master was the most powerful image generated by the British abolition campaign, that of the campaign against apprenticeship was of a woman on a prison treadmill, flogged because she could no longer turn the wheel. The story of the rapid rise and equally rapid decline of the treadmill in Jamaican prisons encapsulates the contradictions inherent in apprenticeship’s attempt to gain ‘‘voluntary’’ submission to an explicitly coercive system. The treadmill, introduced into Jamaican prisons as a symbol of the island’s adoption of progressive penal practice, became by the end of apprenticeship a sign of all that was wrong, an icon of the backwardness and barbarism of Jamaican social relations. The changing perception of the treadmill metonymically traced shifting interpretations of apprenticeship itself, from its initial description as ‘‘emancipation’’ to its denunciation, widespread by 1838, as worse than slavery. The abolition of apprenticeship two years earlier than planned, in the midst of a crisis of colonial rule, was at least partly a result of the persistent resistance of apprentices to treadmill punishment, resistance which undermined the Jamaican elite’s claim that it had the right to manage its ‘‘own’’ society. The shifting evaluation of the treadmill is also typical of institutional changes in penal arrangements since the birth of the prison: repeatedly, changes introduced as advances that would cure the prison of its ills have come within a few years to epitomize all that is wrong with a penal system. Conflicts over the use of the treadmill occurred at two interlocking levels: within the space of the prisons themselves, in contestations between prisoners and prison authorities; and in disputes about prison

7124 Paton / NO BOND BUT THE LAW / sheet 100 of 308 Tseng 2004.8.31 07:45

management that involved a wide network of participants in Britain and Jamaica. These connected struggles escalated into a widespread debate about the autonomy of colonial elites and led to a crisis in 1838 and 1839 over the relationship between Jamaica and Britain. In the course of this crisis, which I call the West India Prisons Act crisis after the imperial statute that prompted it, the Jamaican legislature went on strike while the ‘‘mother of parliaments’’ debated a government proposal to suspend its insubordinate colonial offspring for five years. While the crisis has been analyzed by a series of distinguished historians, none has been especially concerned with its specificity.1 Examining more specifically the events leading up to the West India Prisons Act crisis means investigating apprenticeship-era penal policy, including the decision to introduce treadmills into Jamaican prisons; it means examining the dynamics of power within the prisons, including prisoners’ resistance; and it means understanding the origins of the disputes about who should control Jamaica’s prisons. Looking at the specificity of the crisis shows that, rather than being simply a conflict between contending metropolitan and colonial elites, it grew out of the resistance of imprisoned Jamaican apprentices. This does not mean that it was entirely attributable to prisoners’ resistance; the tension in the metropolitan–colonial relationship would have existed without the particular circumstances recounted here. Nevertheless, without the resistance of Jamaican apprentices, the central problems within the prisons that led to the crisis would not have arisen. The West India Prisons Act crisis and the events that led up to it require us to investigate ‘‘high’’ political conflict in relation to the daily ‘‘infrapolitics’’ of oppressed peoples, rather than seeing these as distinct areas of analysis. Looking at the specific dynamics of the crisis also reveals the central place of gender within it. As Thomas Holt has argued, ‘‘The most militant resistance to the apprenticeship regime came from women workers, and eventually the method used to tame them—the treadmills at the houses of correction—created a scandal discrediting the whole apprenticeship system and paving the way for its abolition.’’ 2 During apprenticeship, almost no one publicly defended the whipping of women, but the practice continued within prisons. The desire to protect women from flogging in penal institutions became both the primary motivation for and the crucial symbol of the need for imperial intervention in Jamaican legislative autonomy. The urge to defend women—even those who were defined as racially inferior to English women—thus justified the attempted expansion of imperial power.3 In addition, it created a situation in which the argument against flogging was apparently victorious, but because it 84

Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 101 of 308 Tseng 2004.8.31 07:45

had been constructed out of the need to defend women’s bodily integrity rather than as a gender-neutral principle, there was little basis for opposition to flogging when it was later reintroduced as a judicial punishment applicable only to men.

Penal Theory During Apprenticeship Apprenticeship-period conflicts over punishment took place in the context of a widespread discussion of the purpose of punishment and the best techniques to achieve that purpose. Penal policy was contested not between clearly marked and monolithic groups of reformers and reactionaries, but with complex divisions of opinion on all sides. By the time the crisis over the West India Prisons Act was settled, a degree of consensus had been reached among elites and colonial authorities as to the best way of managing an ‘‘enlightened’’ system of punishment. Post-emancipation penal reform proceeded on the basis of that partial consensus. During apprenticeship, in contrast, there was no such consensus. Even shared assumptions about how punishment was to work often led not to the same conclusions but to radically different proposals. Of course, penality had been the subject of intense discussion in Europe and North America since at least the 1770s.4 Jamaican elites had been involved in these discussions, although the slave-dominated and colonial nature of Jamaican society meant that the development of the penal complex there had taken a somewhat different path to that of England. In apprenticeship-era Jamaica, the structure of social relations continued to differ from the society of ‘‘free’’ individuals that eighteenthand nineteenth-century penal theory both assumed to exist and was designed to control. However, the newly significant role of state punishment made this body of theory seem more relevant. Participants in the Jamaican debate about penality rarely cited authorities, but their discussions were nevertheless imbued with ideas deriving from the work of Enlightenment writers on punishment. These ideas had become ‘‘common sense’’ among educated people, making citation unnecessary. Probably few commentators on Jamaican penality had read the eighteenth-century works; they did not note the contradictions between, say, Howard’s religiously driven belief in reform and Beccaria’s rationalist proposals for punishment as deterrence. Rather, they, like their European and North American contemporaries, mixed ideas from a variety of sources together in a way that seemed best to suit their particular situation.5 However, because that particular situation was a colonial one in which the vast majority of the population was still unfree, there was an ongoing clash treadmill and whip

85

7124 Paton / NO BOND BUT THE LAW / sheet 102 of 308 Tseng 2004.8.31 07:45

with the realities of social life in the attempt to apply classic penal theories in Jamaica. Many of these issues were also problems during slavery. However, the heightened concern over punishment during apprenticeship produced both extensive documentation of conditions within prisons and a great deal of discussion of penal policy, allowing us to investigate assumptions and concerns that probably already existed prior to 1834. For those who saw themselves as progressives, flogging represented the brutal past that must be overcome. It was almost always referred to as ‘‘degrading,’’ sometimes also as ‘‘brutalizing,’’ or ‘‘humiliating.’’ 6 Governor Sligo expressed the hope in 1836 that this ‘‘degrading and cruel mode of punishment’’ would soon be abandoned.7 The anti-flogging discourse of both abolitionists and penal reformers had succeeded during the last years of slavery in making flogging a symbol of irrationality, personal abuse of power, and sexual sadism. Its use on women was for many so obviously inappropriate that this point could be merely stated rather than argued for. Lord Glenelg, Colonial Secretary from 1835 to 1839, for instance, wrote that it was ‘‘superfluous to engage in any proof of the folly, the indecorum and injustice of subjecting women to be scourged.’’ 8 Drawing on earlier understandings of flogging as a phenomenon that destroyed the ‘‘sense of shame’’ and self-respect of both those who were flogged and those who watched floggings, he claimed that the law against flogging women was ‘‘intimately connected with the moral elevation of both sexes.’’ 9 Flogging was not only degrading; it was also ‘‘inefficient.’’ Effectiveness and efficiency became the standards by which any form of punishment was to be judged. Advocates of a particular type of punishment frequently attacked the methods they opposed as ‘‘inefficient’’ or ‘‘not efficacious.’’ 10 The desire for ‘‘efficacious’’ punishment shows the prevalence of a utilitarian approach to penality, in which the purpose of punishment was defined by its future effects. In contrast to a purely retributive understanding of punishment, in which the punitive act in itself achieves the end of reasserting the moral order unbalanced by the offense, in the utilitarian view punishment is oriented toward the future. It is thus judged according to how well it inhibits future offenses, either by the individual who is punished or by the population more generally. Despite their insistence on efficiency, the advocates of efficient punishment in Jamaica rarely spelled out the ends to which it should be directed. When they did so, these tended to focus on the need to ‘‘reform’’ those subjected to punishment. Thus the Kingston-based antislavery newspaper The Watchman argued for ‘‘efficient’’ gaols which should ‘‘restrain 86

Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 103 of 308 Tseng 2004.8.31 07:45

and punish’’ the ‘‘lawless and depraved . . . with a view to their reformation.’’ 11 Similarly, Glenelg criticized the practice of chaining prisoners together because it ‘‘must degrade but cannot reform them.’’ 12 Nevertheless, those who argued for the reforming power of imprisonment rarely discussed the process by which reformation would take place. Even more significant, they entirely avoided discussing what kind of person the ‘‘reform’’ of apprentice prisoners should produce. The reform of prisoners as formulated in Europe was supposed to lead to their becoming responsible and self-disciplined (implicitly male) individuals who had internalized the work ethic and provided for their families. But this could not easily be the goal of reforming apprentices. The stated purpose of apprenticeship was a similar process of training, in which apprentices became accustomed to wage labor. Yet in reality, apprenticeship was a system of directly coerced labor in which responsible, self-directed liberal individuals had little place. The contradiction is resolved if we realize that ‘‘reform’’ of prisoners always requires people to emerge from confinement adjusted to their ‘‘station’’ in society. Thus, for Jamaica during apprenticeship, when the biggest anxiety of both planters and colonial officials was the future continuity of plantation labor, emphasizing reform meant aiming for the re-creation of individuals as willing plantation workers.13 Despite the criticisms directed against it, penal flogging remained legal throughout the apprenticeship period. Only the flogging of women was outlawed; in some circumstances, the flogging of men was prescribed. Flogging of men was never defended, however. It was always described, by both planters and colonial officials, as a necessary evil, as something that would eventually be overcome. Almost from the beginning of his tenure as governor, Sligo reported that he hoped soon to be able to abolish flogging completely, implying that it was not possible to do so at present. This led to the peculiar situation in which Sligo instructed magistrates to avoid flogging where they could and yet also admonished those magistrates who never ordered flogging for failing properly to enforce the law.14 When Sligo attacked stipendiary magistrates who failed to flog, he argued that their policy had led to the ‘‘deplorable’’ state of the parish over which they had jurisdiction, implying that flogging was effective in maintaining labor discipline and social order.15 Yet in the very same period he described flogging as a ‘‘degrading’’ punishment. This duality revealed a fear that imprisonment could never, in practice, be a harsh enough punishment to have meaning for unfree people. Flogging might be degrading, but slaves and apprentices were already degraded. The risk was that they would not respond to punishment that did not degrade them further. Therefore, flogging must be maintained. treadmill and whip

87

7124 Paton / NO BOND BUT THE LAW / sheet 104 of 308 Tseng 2004.8.31 07:45

The contradiction, then, was not so much in the maintenance of flogging as a punishment for men but in its abolition for women. Why should the gender of female apprentices trump their predisposition to disorder, making it possible to control them without resort to the whip? Given the frequent assertions during slavery that female slaves were especially disorderly, the question is even more perplexing.16 It seems, however, that flogging women was assumed to have disorderly results that outweighed its potential deterrent effects. The reasoning behind this was implicit in Glenelg’s claim, quoted earlier, that the ban on flogging women ‘‘elevated’’ the ‘‘morals’’ of both sexes. Anti-slavery discussions of flogging had focused particularly on the display of women’s bodies, arguing that it led not merely to the degradation of the flogged woman but also, because her male relatives were unable to protect her, to the disruption of the proper gender order and the demoralization of all those who observed the event. These assumptions made the ban on flogging women a more urgent political goal than was an end to flogging men. If flogging was the type of punishment most to be avoided, the treadmill was its replacement and conceptual counterpoint. The treadmill was invented in 1818, and in part as a result of efforts by the influential British Society for the Improvement of Prison Discipline (sipd), became widespread in British prisons in the 1820s.17 Treadmills had been installed in Trinidad in 1824, in Berbice in the late 1820s, and in the Kingston house of correction in 1828.18 As plans published by the sipd show, the machine consisted of a large cylindrical drum with steps around the circumference (see Figures 7–8). Those on the mill had to step upward continuously as the mill revolved. The sipd’s plans misleadingly show prisoners holding a bar at waist height while working the mill. Prisoners stepping, ‘‘working,’’ or ‘‘dancing’’ real treadmills either held on to or were strapped by the wrists to a bar positioned above head level, making the experience far more painful and exhausting than is suggested by these images. For its antislavery advocates, the treadmill represented the peak of regulated and civilized punishment. Its mechanical operation meant that it supposedly required the same labor from all who worked on it, unlike more traditional forms of hard labor in which prisoners worked more or less diligently according to their own inclination and the degree of coercion applied. The Marquis of Sligo urged the assembly to adopt the treadmill. He argued that the mill was a ‘‘very salutary punishment,’’ far superior to flogging, to which he counterposed it in his advice to stipendiary magistrates.19 Its advocates assumed that punishment on the treadmill was an ‘‘efficient’’ deterrent in a way that flogging was not and that it met the need for a non-degrading punishment. They categorized treadmill 88 Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 105 of 308

figure 7 Cross-section of design for prison treadmill from Society for the Improvement of Prison Discipline, Rules Proposed for the Government of Gaols, Houses of Correction, and Penitentiaries (1820). This image and the next demonstrate an idealized view of the treadmill as it was originally imagined. Courtesy of the National Library of Scotland, Edinburgh.

Tseng 2004.8.31 07:45

figure 8 Longitudinal section of design for prison treadmill from Society for the Improvement of Prison Discipline, Rules Proposed for the Government of Gaols, Houses of Correction, and Penitentiaries (1820). Courtesy of the National Library of Scotland, Edinburgh.

7124 Paton / NO BOND BUT THE LAW / sheet 106 of 308 Tseng 2004.8.31 07:45

punishment as hard labor rather than corporal punishment. The distinction was, as will become clear, ultimately meaningless: the treadmill in practice produced both pain and injuries in those who were forced to work it. The treadmill, as a form of ‘‘hard labor,’’ allowed for some resolution of the biggest problem in implementing European penal theories in Jamaica: the centrality of labor to those theories’ understanding of ‘‘efficient’’ punishment. While its purpose was contested, hard labor always occupied a central place in eighteenth- and early-nineteenth-century penal theory. Hard, coerced labor was supposed to be both redemptive and reformative. But in the context of slavery or apprenticeship, in which the labor of those subject to punishment was coerced even during ‘‘normal’’ life, the performance of coerced labor did not in itself mark out imprisonment as punitive. When imprisoned apprentices were forced to work building roads or, even worse, digging cane holes, the experience was much too close to that of the daily lives of apprentices. Such work, according to Glenelg, ‘‘associate[d] the idea of more labour with that of punishment, thereby destroying whatever moral effect the connection of punishment with an Act of disobedience to the laws is calculated to produce.’’ 20 In other words, if punishment meant labor, freedom would come to mean an absence of labor. This association was one of the biggest fears of the designers of emancipation. Their anxieties highlight the contradiction in the idea of the reforming prison as a whole, for this association between punishment and labor could presumably act to make labor repellent for ‘‘free’’ laborers as well as for apprentices. Nevertheless, Glenelg believed that he was describing a particular problem resulting from the unfreedom of the Jamaican population. He argued that ‘‘These considerations come with peculiar force where applied to a country where compulsory labour is exacted from the community at large, and where, consequently, the distinction between punishment and the daily duty of life, would be marked by none of those external circumstances which are peculiarly necessary to make every penalty appropriate and efficacious.’’ 21 The solution was to make hard labor in the prison as different as possible from that outside, and this was where the treadmill came in. These views were not confined to colonial administrators such as Sligo and Glenelg. Similar positions were advocated, for instance, by Edward Jordon and Robert Osborn, leaders of Jamaica’s Kingston-based colored middle class. Jordon and Osborn argued that flogging had been overused and thus had ‘‘lost its terror’’ in Jamaica; a ‘‘more efficacious’’ type of punishment was needed. They advocated the construction of new prisons, to be run on principles of ‘‘hard labour, silence, and solitary con90

Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 107 of 308

finement at night,’’ thus preventing communication among prisoners and the ‘‘contamination’’ of ‘‘the petty delinquent’’ by the ‘‘depraved scoundrel.’’ In their final ringing claim, they encapsulated the oppositions that underlay much Jamaican thinking on penality—the treadmill versus the whip, productive hard labor versus the slave-like penal gang: ‘‘We desire to see the cat and penal gangs superceded by the tread wheel and the work shop, and the prisons a source of revenue to the state rather than a heavy burthen, as they are at the present moment. We wish to see bad men made good, without their flesh being torn, or their little remaining sense of shame blunted or destroyed.’’ 22 Throughout these debates, participants discussed penal technologies with little acknowledgment of the fact that punishment was being used for rather different purposes in apprenticeship-era Jamaica than in the societies in which the foundational assumptions of penal theory developed. While at the most general level punishment in both societies was directed toward enforcing the status quo, its purpose in Jamaica of directly enforcing labor discipline was not equivalent to its role in England, where people were compelled to labor primarily through their lack of alternative means of subsistence. Discussions about penality that concentrated on the effectiveness of particular penal methods assumed that the offenses for which people in apprenticeship-era Jamaica were most frequently punished—refusal to work, insolence, and other forms of resistance to the terms of the apprenticeship—did indeed deserve punishment. This was so even though the implicit message of the transitional status of apprenticeship was that these offenses were, if not exactly justified, at least unpreventable. By positing the technocratic criterion of ‘‘efficiency’’ as the key to judging the value of a mode of punishment, progressive participants in the debate about penality during apprenticeship occluded questions about its justice and the justice of the wider system of social relations in which it was embedded.

Changes in Penal Practice

Tseng 2004.8.31 07:45

This was the context in which, in the same legislative session in which it adopted the emancipation act, the Jamaican assembly passed the first comprehensive legislation covering prisons, the Gaols Act of 1834.23 While on paper this act fundamentally transformed the organization of the island’s penal system, in practice it did not lead to change in the main structures of power within prisons. The act marked not the end but the beginning of a debate about the purpose of punishment and best technology to achieve that purpose. treadmill and whip

91

7124 Paton / NO BOND BUT THE LAW / sheet 108 of 308 Tseng 2004.8.31 07:45

Introduced by Hector Mitchel, mayor of Kingston and later a central figure in resisting centralized imperial control of Jamaican prisons, the Gaols Act passed the assembly without a division and with only minimal amendment from the council.24 Sligo immediately consented to it, calling it ‘‘admirable.’’ 25 Much more attention at the time was focused on the Jamaican Abolition Act and Police Act that were passed in the same session. Nevertheless, behind the implied certainty and consensus, there was deep division about how to punish, even among those who considered themselves on the same side. The act established a series of rules that prisons were to follow but created no mechanism to enforce them, leaving actual practice within the prisons open to controversy. Within a few years, the lack of centralized enforcement lay at the center of criticisms of Jamaican penality. The Gaols Act set out a series of changes that prisons were to undergo. It required each parish to have, for the first time, a gaol and a house of correction, to be managed in accordance with rules set down by the act. It authorized a regime of hard labor in which prisoners would be classified according to sex and type of crime and fully separated from nonprisoners; in which prison staff would be responsible and professional; and in which prisons would be regularly visited by chaplains, surgeons, and magistrates so that abuses of power could not take place. Infractions of prison discipline would be punished by solitary confinement or the use of irons, both to be reported within twenty-four hours to a visiting justice. The act made no mention of the use of the whip within the prisons. Many of the act’s provisions were taken from the English Gaols Act of 1823, itself a compromise between prison reformers aiming for a uniform system of prison discipline and the defenders of local autonomy in England.26 The adoption of the English model resulted from the Colonial Office’s efforts, since the legal commissioners had reported in 1827, to ensure uniform penal policy throughout the empire. The 1823 act laid down many rules for prison management but contained few mechanisms for their enforcement. In particular, reformers of the sipd had argued for, but failed to achieve, a national prisons inspectorate with power to enforce rules and close those prisons that did not conform to them. The Jamaican 1834 act, like the English 1823 act, gave local magistrates the power to control prisons. In England, this had led to a situation in which reformers felt that many county and borough authorities were holding up the process of reform. In Jamaica, where the relationship between local and central state authorities was more inherently contentious, it is not surprising that the system led rapidly to friction. 92

Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 109 of 308 Tseng 2004.8.31 07:45

The Jamaican Gaols Act precipitated a rash of prison construction and renovation: in contrast to the preceding three years, in which a total of £900 was spent on prison building and repair, more than £11,000 per year was spent in 1834 and 1835, including the construction of new prisons in Morant Bay, Vere, St. Dorothy, and St. John.27 Magistrates in many parishes passed new rules for the governing of houses of correction and gaols (see Figure 9 for an example).28 But the most dramatic effect was the installation of treadmills (or ‘‘treadwheels’’) in prisons across the island between 1834 and 1836.29 In June 1834, the Jamaica Despatch carried an advertisement addressed to parish vestries publicizing the availability of treadmills for sale. By 1835, most workhouses had mills installed.30 As the plans of houses of correction in Figures 10–12 demonstrate, the treadmill shed dominated many prisons, usually being placed in the center of a courtyard with cells arranged around it.31 The introduction of the treadmill into Jamaican prisons, like the 1834 Gaols Act, was a rare measure in that it was endorsed by supporters and opponents of the abolition of slavery. Its promoters in Britain were prison reformers drawn from the same milieu as the leadership of the antislavery movement; indeed, the two campaigns included many of the same individuals. Thomas Buxton, for instance, leader of the antislavery group in Parliament, was also one of the founding members of the sipd and the leading parliamentary spokesman for prison reform.32 The sipd had advocated the introduction of treadmills into British prisons and recommended the same policy for those in the colonies. The planters who dominated the Jamaican assembly and local magistracies were less ideologically invested in the treadmill, although some of them also saw Jamaica’s adoption of it as a useful symbol of the island’s progress. For more of them, far from being the opposite of flogging, the purchase of a treadmill for the parish house of correction was a sound investment in an instrument designed to make up for the fact that they were about to lose their direct power of punishment. They hoped it would be used alongside the floggings ordered by the stipendiary magistrates. The Gaols Act changed little in the day-to-day operation of prisons. It left their managerial structure, in which a superintendent was appointed by and answerable to local authorities, intact. Thus, implementation of any of the rules depended on the local magistrates’ choosing to enforce them. Indeed, the act may well have been passed with little intention that it should be fully implemented. It required that each prison have the potential to separate inmates into twelve different categories at a time when most of the island’s prisons had less than four rooms in which pristreadmill and whip

93

7124 Paton / NO BOND BUT THE LAW / sheet 110 of 308 Tseng 2004.8.31 07:45

figure 9 Rules and regulations for the house of correction in the parish of St. Thomas in the East. Source: co 142/50, pro. Courtesy of the Public Record Office, Kew.

7124 Paton / NO BOND BUT THE LAW / sheet 111 of 308

figure 10 Plan of the gaol and house of correction at Black River in St. Elizabeth’s, Jamaica. Source: co 142/50, pro. Courtesy of the Public Record Office, Kew.

Tseng 2004.8.31 07:45

oners could sleep, yet neither the House of Assembly nor the press discussed this problem. Even those institutions that were rebuilt after the act’s passage did not contain enough divisions to classify prisoners fully according to its requirements. The vestry of St. David decided to build a house of correction just before the Gaol Act became law, and it seems likely that it did so in part because it knew the law was imminent. Nevertheless, in addition to a hospital, dispensary, kitchen, stores, boatswain’s room, and privy, the St. David house of correction consisted of only six small cells and two larger ‘‘apartments’’ designated for men and women, respectively, arranged around a yard (Figure 13).33 The Gaol Act took no account of the fact that the Jamaican Abolition Act, passed in the same month, would lead to many people being imprisoned who fell into none of the categories according to which prisoners were supposed to be separated.34 It should be viewed more as a statement of what members of the elite assumed to be ideal penal practice than a description of how prisons would function. treadmill and whip

95

7124 Paton / NO BOND BUT THE LAW / sheet 112 of 308

figure 11 Plan of the St. Andrew house of correction. Source: co 142/50, pro. Courtesy of the Public Record Office, Kew.

The Experience of Imprisonment

Tseng 2004.8.31 07:45

In many ways, apprenticeship did not substantially change social relations within prisons. There were probably more prisoners, and the routes into prisons were slightly different, but life within the prisons continued roughly as before. As during slavery, prisons contained a mixed population who entered the institution through a variety of routes. These included sentences by stipendiary magistrates, apprehension as runaway apprentices, and sentences at petty sessions, quarter sessions, and assizes courts. Unlike during slavery, apprentices could not be committed simply on the will of their masters. Even more so than during slavery, being sent to prison was not a sign of deviance but a common misfortune. In the first year of apprenticeship, stipendiary magistrates handed down 8,252 prison sentences to a popula96

Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 113 of 308

figure 12 Plan of the St. Catherine house of correction, Spanish Town. Source: co 142/50, pro. Courtesy of the Public Record Office, Kew.

Tseng 2004.8.31 07:45

tion estimated at 300,000, meaning that up to 3 percent of the apprentice population, or 2,751 per 100,000 people, was imprisoned that year.35 This does not include those who ended up in prison because they were apprehended as runaway apprentices or sentenced by common-law courts. Despite the recent rise in imprisonment rates worldwide, no contemporary society comes close to this rate of incarceration.36 Neither did England in this period, where prison sentences affected a much smaller proportion of the population in the 1830s.37 Knowledge and discussion of workhouse conditions was widespread among apprentices. Janette Saunders reported meeting a young man while she was being taken to the St. Ann house of correction who told her to ‘‘keep a bold heart’’ for he knew ‘‘what that workhouse is, for I have been there myself.’’ 38 Apart from those imprisoned for life, many of whom formed a bloc associated as much with prison management as with other prisoners, pristreadmill and whip

97

7124 Paton / NO BOND BUT THE LAW / sheet 114 of 308

figure 13 Ground plan and elevation of the house of correction in the parish of St. David, 1837. Source: co 142/50, pro. Courtesy of the Public Record Office, Kew.

Tseng 2004.8.31 07:45

oners were mostly incarcerated for short periods, not long enough to lose touch with the outside world. This had also been true during slavery. Apprentices sentenced by stipendiary magistrates usually spent only brief periods in the workhouses. The stipendiaries rarely gave sentences of more than a few weeks; the longest sentence they were legally allowed 98

Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 115 of 308 Tseng 2004.8.31 07:45

to give was six months.39 Eliza Emanuel, a Kingston apprentice, was committed to the house of correction on seven separate occasions between February 1835 and April 1836, for periods ranging between ten and twenty days.40 James Williams reported being sent to the St. Ann house of correction multiple times during the apprenticeship, always for less than three weeks.41 Petty sessions courts, which dealt with by far the largest number of cases of all the common-law criminal courts, also sentenced people to brief periods of imprisonment. In Port Royal parish between 1834 and 1837, petty sessions trials gave 160 prison sentences to 124 individuals, of which 97 percent (130) were for periods of one month or less, while 61 percent (77) were for periods of two weeks or less. The longest sentence was for three months.42 While Port Royal was an atypical parish, dominated by the naval town of the same name, comparison with records of petty sessions cases scattered in Colonial Office sources suggests that such sentences did not differ greatly from those given in other parishes, although possibly those in Port Royal were given for different types of crime. Evidence from the stipendiary magistrates’ reports combined with court reports suggests that a majority of committals were of apprentices sentenced by stipendiary magistrates. However, because those serving short sentences pass rapidly through a penal institution, the proportion of people serving long sentences will always be higher than the proportion of long sentences handed down. The large proportion of short stipendiary magistrate sentences given may thus be misleading in terms of the population of the prisons at any one time. Evidence from John Pringle’s 1838 inspection of all of Jamaica’s prisons suggests that prisoners sentenced by stipendiary magistrates accounted for just under half of the total prison population.43 This evidence gives the closest approximation possible of the weight of short- and long-term prisoners in Jamaican prisons during apprenticeship. Even while incarcerated, apprentices came into frequent contact with people outside the prison walls. As during slavery, penal gangs were sent out of most prisons to perform ‘‘hard labor.’’ This work varied: sometimes prisoners cleaned the streets of towns, sometimes they built new roads, sometimes they were hired by private individuals to perform agricultural labor on sugar or coffee estates.44 In all cases, prisoners came into contact with people outside the houses of correction. Judicially prescribed floggings also took place, as during slavery, outside the prison walls.45 The architectural structures of some of the prisons also facilitated communication between prisoners and outsiders. The St. George house of correction had walls that were only four feet high, enabling people who lived treadmill and whip

99

7124 Paton / NO BOND BUT THE LAW / sheet 116 of 308

nearby to observe life inside. Another had an eight-foot open space in the boundary wall, ‘‘giving a view through to the outside of the prison.’’ The Manchioneal workhouse’s wall had ‘‘large loop-holes in it.’’ 46 The treadmill in St. Ann’s Bay was not enclosed and could be seen from outside the prison.47 The machine seems to have become something of a public entertainment. One woman reported that the children she looked after ‘‘asked her to let them go to see the mill work.’’ 48 Connections between prisoners and the outside world were active as well as passive. Friends and relatives of those imprisoned maintained contact with them and often made efforts to lessen the harshness of imprisonment. Several prisoners reported that their mothers brought them clothing on a regular basis.49 On several occasions, relatives of apprentices incarcerated as a result of Frederick White’s sentences came to him asking that their kin be released. For instance, he released Jenny Winter ‘‘on the request of her sweetheart’’ after six days of a fourteen-day sentence for insolence.50 Prisons continued to be, as they had been during slavery, decidedly untotal institutions, in which the agency of their inmates and of people on the ‘‘outside’’ were crucial to their institutional dynamics.

From the Plantation to the Prison

Tseng 2004.8.31 07:45

Because incarcerated apprentices were not simply prisoners but also individuals with histories, personalities, and expectations formed under the conditions of their lives as slaves and apprentices, and because prisons were structured in ways that to some extent mirrored the structure of plantation life, the dynamics of conflicts within the prisons often paralleled those that took place on estates. This can perhaps be most clearly seen in conflicts around sexuality and the sexual exploitation of women prisoners. Apprentices did not frequently report sexual abuse of women to stipendiary magistrates, but it has been much documented as taking place during slavery and almost certainly continued during apprenticeship. Scholars of gender relations during slavery have shown how female slaves confronted sexual exploitation from men in managerial positions on plantations, including some who were themselves enslaved. Hilary Beckles notes that enslaved women ‘‘had to resist the tyranny of enslaved black men’’ and cites examples from Suriname, Jamaica, and SaintDomingue of sexual exploitation by males of female slaves.51 They have also described how women could gain a tenuous and usually temporary degree of privilege within the slave system by engaging in sex with powerful men.52 This type of analysis unsettles the assumption that relations of 100 Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 117 of 308

power, of authority, and of domination and subordination on plantations existed only in the binary division between planter and slave. Likewise, prisoners’ actions reveal that while the division between prisoners and prison authorities was fundamental, it cannot be abstracted from other kinds of power relations, including those operating among apprentices. Inside the prison walls, a similar sexual economy existed to that of the plantations. In several cases, women prisoners testified that drivers and supervisors used their power to coerce them into sexual relations. The fullest description of such a pattern of behavior was provided by Agnes Davis, who was imprisoned in the St. Andrew house of correction for stealing coffee. She told of how Philip, a driver who was also an apprentice, had propositioned her, threatened her, and punished her. According to Davis, this was a regular feature of prison life. She testified that twice whilst she was in prison [Philip] proposed to her to allow him to have connexion with her, which she refused, and that he threatened to punish her in consequence of her refusal; that two other female prisoners told her that the same driver, Philip, had forced them to have connexion with him; that Philip proposed to have connexion with her on the day after she went to the prison, and that on her refusal he licked her twice over the shoulder with the cat, and told her she would find it hard if she did not live with him before her three months were out.53

Tseng 2004.8.31 07:45

Davis’s testimony, elicited in the course of an inquiry into the flogging of women in the prison, led to the conviction of Philip. He received thirty-nine lashes for illegal flogging of women as well as for his sexual misconduct. According to the apprentice James Williams, drivers in the St. Ann house of correction were similarly keen to have sex with female prisoners. Williams reported in his autobiographical Narrative, published in 1837 as part of the abolitionist campaign for the early end of apprenticeship, that the drivers ‘‘constantly try to get after the young women that put into the workhouse—even them that married, no matter; before day in the morning, when the driver open the door to take the people out of the shackles, he call for any one he want, to come to his room.’’ 54 Some apprentices’ testimony suggests that some women cooperated— although that word may be inappropriate, given their powerless situation—with the suggestions of the drivers. By doing so they sometimes succeeded in reducing the harshness of their experience of imprisonment. According to the apprentice Joseph Lawrence, ‘‘[T]he young women whom the drivers took a fancy to, were put by them to light work.’’ Julian Morison described how fear of punishment led her to go three times at treadmill and whip

101

7124 Paton / NO BOND BUT THE LAW / sheet 118 of 308 Tseng 2004.8.31 07:45

night to the field driver’s room, where she ‘‘consent[ed] to his wishes.’’ As a result, she said, her work in the field was lessened.55 The language used in these descriptions suggests the difficulty here: the term consent used by Morison hardly fits the situation of a woman who was both enslaved and imprisoned. Nevertheless, Davis’s testimony suggests that women did have a degree of choice in how to respond to drivers’ advances, if only between sexual exploitation and flogging. Given the power they held over women prisoners, drivers probably did not usually have to resort to open violence to achieve their goal: their structural dominance was sufficient. This situation can lead to a particularly insidious form of exploitation, in which a woman’s failure to resist physically becomes evidence of her active participation in a free exchange. For this reason, women prisoners likely avoided talking about their involvement in sex with prison drivers and managers except when they could position themselves as victims of direct physical as well as sexual violence. There is evidence that imprisoned women who submitted to or were forced into sex were often judged harshly by other apprentices. That is, within the community of apprentices it was assumed not that women who had sex with powerful men were victims of rape but, rather, that they had chosen this course of action. Williams, after reporting the efforts of the drivers to have sex with women prisoners, continued his narrative by saying that ‘‘many of them worthless ones do it.’’ 56 Williams here seems to condemn such women, dismissing them without empathy for the difficulty of their situation in a manner that stands out against the sensitive account of apprentices’ problems in the rest of his Narrative. In some cases, female apprentice prisoners who had sex with prison drivers seem primarily to have feared the sexual jealousy of their male partners rather than the possibility that they would be condemned for breaking an absolute moral standard. Leanty Thomas reported seeing Bella Richards, who was from the same estate, ‘‘in the field crying’’ on release from the workhouse. According to Thomas, Richards was crying because ‘‘the rest of the people carried her name to her husband, saying that one of the drivers, Charles Rose, had had improper intercourse with her.’’ 57 We cannot, of course, assume that Thomas knew the whole explanation for Richards’s tears. But it is notable that the ‘‘rest of the people’’ believed that they should report the event to Richards’s husband, and that Thomas thought that this provided a convincing explanation for Richards’s crying. The implication is certainly that Richards was held responsible among apprentices in general for submitting to Rose’s sexual demands. Perhaps those women who had sex with prison drivers were con102 Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 119 of 308 Tseng 2004.8.31 07:45

demned in part because they were compared to women such as Davis, who found ways to refuse the drivers’ demands. Sometimes these women came up with ingenious methods of protecting one another. Amelia Lawrence, an apprentice from Penshurst plantation in St. Ann, was sentenced to imprisonment at the same time as several other women. She reported resisting the pressure to have sex put on her by a driver, James Thomas.58 She also observed another driver, Jenkins, propositioning a girl of fifteen or sixteen named Catherine Bayley. According to Lawrence, ‘‘I was obliged to say that Catherine Bayley was my daughter, in order to protect her from Jenkins.’’ This was apparently successful, indicating, at least in this case, an interesting degree of respect on the part of the drivers for a mother’s authority or, perhaps, the drivers’ awareness of the significance and power of the wider network of kin relations within which Lawrence’s claim located Bayley. Judging by the number of times her story was told in the inquiry into Williams’s Narrative, Lawrence was a well respected and widely known woman in her area. In a similarly successful case of subterfuge, Susan White reported that when Thomas White put ‘‘bad questions’’ to her, she borrowed a ring from her sister and used it to ‘‘prove’’ that she was a married woman, although in fact she was not. As a result, White did not bother her again.59 Interpreting this evidence is difficult. The historian’s urge is to classify these situations into cases of rape, consensual sex, or some kind of in-between encounter involving implicit trade (and thus, some level of coercion). But I am not sure that even their participants could have classified these encounters in these ways. Even if they could have done so, how can we, from this distance, extricate one situation from another, given that the evidence we have was produced in the context of a wellestablished discourse that positioned women slaves as essentially sexually victimized? There is a danger in historians’ discussions of sexuality, sexual exploitation, and sexual trade that we make the complex situations of the past all too knowable, all too easy to understand. It is difficult to describe the dynamics of power and desire at work in sexual relations even when the participants are able to articulate for themselves, in the context of shared political and cultural assumptions about sex, what happened or happens in a sexual encounter. Given this, we should not expect to be able to fully diagnose and describe the sexual relations of the past. In the production of the evidence about sexual encounters reproduced here, there was great pressure for participants to describe events in terms that they knew would be acceptable to those listening to and recording their stories. But this is not the whole problem: it is not only that people would have been treadmill and whip

103

7124 Paton / NO BOND BUT THE LAW / sheet 120 of 308

likely to dissemble about their experiences, or even that those experiences in all probability did not have one fixed meaning or way of telling. Rather, we confront the problem that it is (almost?) impossible for us from this distance in time to know which of these was the case. For these reasons, I have presented this account of sexuality within the prison more tentatively than much of the rest of the argument of the chapter. I want to restore some possibility of agency to the women involved while not denying or downplaying the dominance over them of the men. This does not undermine the underlying point: the existence of important similarities between the dynamics of prison and plantation life. Precisely the same problems pertain in discussing sexual relations within the context of estate-based slavery.

Punishing the Unfree by Depriving Them of Freedom The parallels between apprenticeship and imprisonment were not, however, complete. Although both were conditions of unfreedom, imprisonment was more severe than apprenticeship alone. As it had for slaves, imprisonment created hardships for apprentices. It meant the loss of those areas of autonomy won by enslaved people through years of struggle and negotiation. Apprentices in the houses of correction had no control over their diet, and the quality of the food provided was a major cause of complaint. John Clarke reported that whenever apprentices on his estate returned from the house of correction, they went to the estate hospital to obtain a dose of salts, ‘‘to purge off the effects of the food given them in the house of correction.’’ 60 More important, apprentices who were sent to the house of correction could not cultivate their provision grounds. Their grounds were either neglected and subject to predation from other apprentices, or members of their families had to work to compensate for the loss.61 For example, after being released from the St. Andrew house of correction, Alexander Sinclair spent three consecutive days working on his provision ground, which had been ‘‘knocked to pieces’’ during his ten-day absence.62 Houses of correction also differentiated the prison world from ‘‘normal’’ apprentice life by cropping inmates’ hair, depriving them of one of the few expressions of individuality available to slaves and apprentices.63 Sligo attacked the practice, arguing that it was done out of vindictiveness:

Tseng 2004.8.31 07:45

[T]hey do it . . . because it is the greatest annoyance they find they can inflict on the women. They with great trouble get their hair into little plats [sic] and are proud of them, and if a girl is sent for 3 days 104

Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 121 of 308 Tseng 2004.8.31 07:45

in the workhouse for some slight offence against her master, off goes her hair at once. This vexation is the only thing they can continue to annoy the apprentice and as their beloved cartwhip is now more difficult of use than it was, they have got hold of this plan and persevere in it because it annoys me as well as the apprentices.64 Sligo focused on the impact of the practice on women specifically, even though both male and female prisoners’ hair was cropped. While in part this was a result of women’s more elaborate hairstyles, it also resulted from the antislavery movement’s general understanding that attacks on women’s bodies were symbolically more important than those on men. Head shaving was a feature of prison regimes in other places, often used deliberately to humiliate as well as for the expressed purpose of hygiene.65 Planters tried to increase the hardship of imprisonment by using their knowledge of the circumstances of particular prisons. Masters and apprentices alike had definite ideas about which prisons treated prisoners worse and tried to influence sentences accordingly. The Rodney Hall workhouse in St. Thomas in the Vale had gained a reputation as a particularly harsh institution during slavery.66 This reputation continued into apprenticeship. When White was sentencing the apprentices from Gibraltar estate in the incident described at the end of the previous chapter, the overseer asked him to send them to the Rodney Hall house of correction rather than the nearest prison at Buff Bay, implying that he believed they would be more severely punished there. In turn, the apprentices begged not to be sent to Rodney Hall.67 But the most important way in which prisons were marked out from the outside world was through the use of the treadmill. Despite all the talk about its capacity to reform those who worked it, the mill’s most important function was the solution it provided to the problem of ‘‘less eligibility.’’ The treadmill, by instituting an experience clearly more unpleasant and painful than working in the fields, made Jamaican prisons ‘‘less eligible’’ than the ‘‘mere’’ coercion of apprenticeship. Both planters and reformers could share in the sense that this was a useful contribution. Despite the praise it received as a non-brutalizing punishment in the early phase of apprenticeship, treadmill labor in practice inflicted physical pain. Even in normal operation, the treadmill should be thought of as a form of corporal punishment. Amelia Lawrence, whose testimony about sexual exploitation in prisons I discussed earlier, said that ‘‘there can be no harder work than treadmill punishment.’’ She stated: ‘‘[T]he mill bruised my legs and gave me great pain, but the greatest pain I felt was between my shoulders; I have never recovered up to the present motreadmill and whip

105

7124 Paton / NO BOND BUT THE LAW / sheet 122 of 308

figure 14 An interior view of a Jamaican house of correction. Courtesy of the National Library of Jamaica, Kingston.

Tseng 2004.8.31 07:45

ment. . . . I have pains all about my body since then, which I cannot get over, particularly those in the small of the back; my wrists and fingers are so hurt that they are swelled even now.’’ 68 The treadmill, then, is a clear illustration of the inextricability of the body, the mind, and the labor performed by the body. Since all punishment necessarily involves the body of the person being punished, can there in fact be any punishment that is not ‘‘corporal’’? Over the course of the apprenticeship period, the treadmill received increasing criticism. Edward Baynes referred to it as a form of torture in his report of July 1837, when he grouped it along with flogging as a punishment that should be superseded.69 Joseph Sturge’s speeches to abolitionist audiences following his 1837 investigative trip to the West Indies dwelled on the ‘‘tortuous effects’’ of the treadmill.70 Similarly, the Narrative of James Williams contained extensive descriptions of harsh punishment on Jamaican treadmills. When the Colonial Office sent Pringle to inspect West Indian prisons, one of his tasks was to investigate carefully the treadmills in each institution.71 His report condemned many of the mills, arguing that they were ‘‘defective’’ and ‘‘objectionable.’’ 72 One of the most vivid critiques of the treadmill took the form of an abolitionist engraving showing the treadmill in operation, which was both circulated individually and bound in later editions of Williams’s 106 Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 123 of 308

figure 15 A treadmill scene in Jamaica, c. 1837. Courtesy of the National Library of Jamaica, Kingston.

Tseng 2004.8.31 07:45

Narrative (Figure 14).73 This important tool in the campaign against apprenticeship is worth analyzing in some detail.74 The image presents a number of discrete scenes in different areas of the frame, depicting them as taking place simultaneously within an unnamed and thus apparently typical ‘‘Jamaican house of correction.’’ As is usual with an engraving of this kind, no artist is credited, adding to the illusion of immediacy created by the image. The frequency with which this engraving or a nearly identical engraving produced at about the same time (Figure 15) has been used by historians as an illustration of conditions in apprentice-era prisons, with no critical discussion of its production or its strategies of representation, suggests the power of this illusion.75 Despite its realism, the engraver has worked hard to include examples of every problem identified by abolitionists as representing an abuse within West Indian prisons. In the background, but dominating the scene, is the image of the treadmill being worked by a mixed-sex group of apprentices. One woman has lost her footing and hangs from the bar above her, to which all eight have their wrists shackled. A second woman is being whipped by the black prison driver, a punishment that not only bloodies her back but—equally importantly in the context of the work the artist aimed to achieve—reveals her naked body. The scenes in the rest of the image reveal additional aspects of prison treadmill and whip

107

7124 Paton / NO BOND BUT THE LAW / sheet 124 of 308

life identified as scandalous by abolitionists. In the central foreground a man cuts the hair of a woman; she is being held by a second man but does not struggle against this attack. Just behind them to our left sits a woman holding a baby. In the far right foreground, a woman lies on the ground. She is apparently unconscious, maybe even dead. A woman kneels over her and tends to her while a male figure seems to weep. In the far left a man is flogged; two well-dressed white men—the only white people in the print—watch casually. Meanwhile, a group of chained women walk out of the open door holding agricultural tools, suggesting that they are to be sent as a gang to work in sugar fields. These elements are arranged differently in another version of the image (Figure 15), in which the woman having her hair cut and the man being flogged are left out in favor of a greater focus on the women being sent to the field and the group tending the unconscious woman. It is possible that Figure 14 is derivative of Figure 15, with the artist in the chronologically later version (Figure 14) having sacrificed some of the dynamism of the earlier image—the outstretched arm of the woman tending the unconscious figure; the response of the final woman in the gang to the whip—in order to represent more fully the individual elements identified as problematic in prison life. Underneath the prison scene in Figure 14 is printed the following text: THE WHIPPING OF FEMALES, you were informed by me officially, WAS IN PRACTICE; and I called upon you to make enactments to put an end to conduct so repugnant to humanity, and so CONTRARY TO LAW. So far from passing an Act to prevent the recurrence of such cruelty, you have in no way expressed your disapprobation of it. I communicated to you my opinion, and that of the Secretary of State, of the injustice of cutting off the hair of females in the House of correction, previous to trial. You have paid no attention.

Tseng 2004.8.31 07:45

These words, the print claims, come from the ‘‘Speech of the Marquess of Sligo to the Jamaica House of Assembly Feby. 1836.’’ 76 The engraving highlights the extent to which the abolitionist—and the official colonial—critique of Jamaican prisons during apprenticeship turned on problems of gender disorder and the exploitation of women. These problems were not just the violations of the female body—flogging and cutting hair—emphasized in the written text, but also a series of more subtly coded points, including the mixing of male and female prisoners within the prison and on the treadmill, the supervision of female prisoners by male drivers and prison supervisors, the imprisonment of women with infant children, and the display of partially naked female bodies in the course of the punishment of women. The print is typical of 108 Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 125 of 308

abolitionist texts in making the degradation of women bear a large part of the symbolic weight of the condemnation of apprenticeship. The scandal, implied the image, was the nakedness and whipping that took place at the site of treadmill punishment rather than the treadmill itself. The print is illustrative of a more general pattern in criticism of the treadmill: condemnation was not directed at the pain it inflicted in normal operation.77 Pringle’s report did not criticize the treadmill as a form of punishment per se; rather, he attacked the particular treadmills that were used in Jamaica, claiming that they were very poorly constructed. In this way, he carefully separated Jamaican treadmills from their English counterparts, thus avoiding implicit criticism of their use in English prisons. Abolitionists were less circumspect, but their criticisms of the treadmill also did not focus directly on the treadmill itself. Instead, the machine was criticized because of its involvement in a number of scandals that revealed abuses in prisons. These abuses usually arose when prison authorities were particularly coercive toward prisoners who resisted their power. Presumably, only some such acts were actually taken up and became part of the archival record. The content of these scandals thus reveals both the nature of prisoners’ resistance and the type of issues that were of concern to reformers and colonial officials. As time went on, they increasingly involved the treadmill. They revealed that, far from standing at opposite poles of the penal spectrum, the treadmill and the whip were inextricably connected in Jamaican prisons.

‘‘Abuses’’ in Prison

Tseng 2004.8.31 07:45

Many of the scandalous ‘‘abuses’’ involved the death while in prison of an apprentice prisoner. At least thirteen apprentices died in prison during apprenticeship; two others died shortly after their release, in circumstances which led many to attribute their deaths to beatings they had received in prison.78 Since ten of the thirteen cases were revealed as a result of one particularly shocking death, many others probably died in prison without their deaths being widely publicized. The recorded cases included that of Daniel, a man of around seventy years who was sent to the St. Elizabeth house of correction as a runaway. He was sent out to work with the penal gang despite protesting that he was unwell. Before his death, Daniel complained that the supervisor ‘‘dragged him violently by the chain which was about his neck and kicked him on the stomach and on the breast’’ and then ordered the driver to beat him with a rope and ‘‘told him he might die and be dd.’’ He died a few days later, having been released from the house of correction.79 In another case, Frederick treadmill and whip

109

7124 Paton / NO BOND BUT THE LAW / sheet 126 of 308 Tseng 2004.8.31 07:45

Shrieves, imprisoned for threatening and stealing from his master, died in the Hanover house of correction. Despite the local rector’s efforts to restrain the supervisor on the grounds that Shrieves was insane and should not be in prison at all, the elderly and sick man was severely flogged on multiple occasions.80 While prisoners’ deaths drew some Colonial Office attention, far more concern was shown about another issue: the flogging of women who were imprisoned in the houses of correction. This concern was selected out of a variety of problems that could have been foregrounded—notably, deaths in custody, but also the flogging of men, the poor quality of food, the use of chains, or the lack of classification of prisoners. In comparison with the focus on the flogging of women, relatively little attention was ever devoted to investigating these problems. The first major case to be publicized was the flogging of Janet Williams and Aglaia Ceffay in the Kingston house of correction, reported to Sligo in March 1835.81 By June 1836, the governor had drawn up a list of twenty-four cases, involving seven of the island’s houses of correction, and asked the House of Assembly to pass specific legislation prohibiting the flogging of women in prison.82 When the British Parliament established a select committee to inquire into apprenticeship in Jamaica, one of the central concerns of the members of the committee—indeed, the only significant issue that they took up with regard to prisons—was the flogging of women prisoners.83 The refusal of the House of Assembly to pass legislation specifically outlawing the flogging of women in prisons was the clearest reason given for the need for the West India Prisons Act. It is not surprising that this issue should have been pursued so vigorously by the Colonial Office, colonial officials in Jamaica, and abolitionists alike. The focus on the particular problem of the infliction of physical punishment on women’s bodies was inherited from the antislavery campaign. Cases in which apprentice women were flogged were particularly shocking to the British public because of the effort expended from 1823 to 1834 to gain a ban on flogging women in Jamaica, which had succeeded only with the passage of the Jamaican Abolition Act. According to Sturge and Thomas Harvey, the most significant aspect of the abolition act consisted in ‘‘the advantages it appeared to confer on the weaker sex, whom it professed, by exempting them from degrading punishment, to elevate at least one step towards that position which reason and humanity require that they should occupy.’’ 84 The fact that women were still being flogged after the practice had been made illegal was galling to all those involved in trying to obtain the ban, particularly because it appeared that it was not illegal to flog women within the houses of correction. Flogging 110 Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 127 of 308 Tseng 2004.8.31 07:45

women was banned by the Abolition Act but was not mentioned in the Gaols Act. Thus, while a stipendiary magistrate could not order that a woman be flogged as punishment for an offense against the Abolition Act, it was arguably legal for a prison superintendent to order that a woman prisoner be flogged for a transgression of prison discipline.85 The ambiguity of the law made the Colonial Office’s efforts to get it altered doubly frustrating. On one hand, Jamaican juries refused to convict prison officers charged with illegally flogging women, implicitly denying the illegality of the practice.86 On the other hand, the Jamaican assembly, when asked to pass explicit legislation on the issue, claimed there was no reason to do so, as flogging women was already illegal under the abolition law. In response to Sligo’s request that it legislate against flogging women in prisons, the assembly ‘‘repudiat[ed], in the strongest terms they can find, the accusation, that the whipping of females is practised in Jamaica. . . . It is true that such acts are against law, and also subject to such severe penalties, that it is beyond the duty or power of the Legislature further to intervene.87 The assembly’s argument was typical; the standard response to such accusations was not to defend the flogging of women in itself. Rather, the assembly defended each particular case of flogging as unavoidable. Without it, they argued, the prisoner concerned would not have obeyed prison discipline. Thus, in response to Sligo’s list of twenty-four cases, the assembly established a committee which heard evidence and presented a report arguing that, in each of these individual cases, the floggings had been essential. In addition, defenders of flogging attacked the characters of the women concerned. The assembly’s report emphasized that Janet Williams was in the house of correction because she had stolen a large sum of money from her master.88 Likewise, the custos of St. Andrew noted that Agnes Davis had been sentenced to three months’ imprisonment for stealing coffee, and that the magistrate who committed her ‘‘must have considered her a very bad character’’ to give her such a long sentence.89 The assembly’s committee did not contest the governor’s claim that the flogging of women was barbaric. A different defense of flogging was adopted by the plantocratic newspaper the Jamaica Despatch. The newspaper argued that most of the cases involved ‘‘refractory women’’ who refused to work on the treadmill and asked rhetorically whether or not flogging would be ‘‘the identical same mode of compelling them to perform that labour according to their sentences as is adopted in the houses of correction in England upon white women?’’ Why, the Despatch demanded, ‘‘should there be a distinction made in favour of colour by the philanthropists of Great Britain, in favour treadmill and whip

111

7124 Paton / NO BOND BUT THE LAW / sheet 128 of 308

of the sable females?’’ 90 The point had some logic, for white women in English prisons were put on the treadmill and, if they refused to work it, would have been subjected to flogging. Abolitionists would have been quick to point out, though, that women in English prisons were ‘‘real’’ criminals rather than offenders against what they increasingly understood to be an unjust and unworkable system of coerced labor. The Despatch was correct to note that in most of the cases documented by Sligo the disobedience to prison discipline consisted of resistance to the treadmill or inability to work it. Seventeen of the women were flogged while on the treadmill or because they refused to climb onto it. The significance of resistance to the treadmill in these cases indicates the importance of prisoners’ resistance in generating conflict between the various authorities who claimed the right to manage prisons. Increased coercion was necessary to combat prisoners’ resistance, and it was this increased coercion that provoked external criticism of the prison regimes.

‘‘Dancing’’ the Mill

Tseng 2004.8.31 07:45

If criticisms of the treadmill focused not on the mill itself but on the means used to force people to work on it, what were those means? At first, those sentenced to work the mill were instructed to climb onto the wheel and hold the bar above it as they stepped. But the mills were impossible to operate in such a manner. As Sligo wrote in 1835, ‘‘[T]he apprentices, who very much dislike the constant labour of the tread-mill, do throw themselves off it and refuse to work out their sentences.’’ 91 Prisoners constantly jumped from the mill—no doubt frequently because they were unable to keep up with the pace of the wheels and knew that if they did not jump, they would fall. In response, prison superintendents increased the level of coercion, ordering that prisoners be strapped to the bar above the wheel by their upper arms, and flogged those who still either would not or could not tread. The prisoners continued to lose their footing and were often left to hang by the wrists for the remainder of the fifteen-minute ‘‘spell.’’ 92 It is difficult to evaluate the extent to which prisoners were actively resisting the treadmill and the extent to which they were simply physically unable to continue on the wheel. Prison staff invariably attributed cases in which prisoners were punished while on the wheel to the ‘‘obstinacy’’ of the prisoner concerned, while abolitionists presented the prisoners purely as victims. James Williams, who was an apprentice but who was shaping a narrative to fit the requirements of abolitionists, gave the following account of a fellow prisoner’s experience: 112 Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 129 of 308 Tseng 2004.8.31 07:45

[S]he was not able to dance good; after she been on little time, she miss step and drop, and hang by her two wrists; then the boatswain flog her with the cat, as hard as he could put it; then she try to fetch up and catch the step, but fall again, and them keep on flog; and when they tire of flogging then they let her alone, and let the mill go on mashing her legs; all the skin was bruise off her shins, and her legs cut up with the cat.93 It certainly seems likely that many prisoners, especially those who were not young and strong, were simply unable to maintain the level of exertion required to continue treading the mill for fifteen minutes at a time. However, there is also evidence of deliberate resistance to the treadmill. Prisoners often protested that they were not well enough to go on the treadmill but were rarely excused from the punishment. When Janet Williams, the prisoner in the Kingston house of correction, was put on the treadmill, she was, according to the boatswain, ‘‘excessively obstinate,’’ refusing to climb onto the machine. Flogging eventually forced her to mount it, but as soon as she saw the prison doctor enter the institution, she jumped down, telling him that she was sick and unable to step. Unfortunately for her, the doctor refused to certify her illness. Instead, he ordered that she was healthy enough to work the mill and should be flogged until she consented to do so.94 Pringle, who was generally very critical of Jamaican prison management, believed that the prisoners who hung from the rail rather than stepping did so ‘‘purely from obstinacy. . . . [T]hey could have stepped had they tried to do so.’’ 95 Governor Sligo, who tried to prosecute several prison superintendents for abusing prisoners, was convinced that there was a high level of outright refusal.96 On at least some of the occasions when they jumped or hung from the treadmills, prisoners’ actions can be categorized as deliberate resistance. Many of those who most openly resisted the treadmill did so in groups, drawing strength from the solidarity of those they had known before entering the house of correction. Such groups usually involved apprentices punished for collective action on the estates. In April 1836, eleven women apprentices from Leith Hall estate, St. Thomas in the East, refused to cut cane. The specific reasons for the protest are not clear but seem to have been connected to the working conditions at Leith Hall; two of the women, Catherine Stanford and Diane Clarke, said that they would not continue to work ‘‘on so poor an estate.’’ After threats and minor punishments failed to convince the women to end their strike, Stipendiary Magistrate Thomas Baines sentenced them all to the house of correction and the treadmill. If they had been male, they would probably have been treadmill and whip

113

7124 Paton / NO BOND BUT THE LAW / sheet 130 of 308 Tseng 2004.8.31 07:45

flogged. According to prison staff, once in the house of correction the women were all ‘‘very violent,’’ and refused to step the treadmill. As a result, they were strapped to the mill with cords tied around their upper arms, causing severe injuries. One of the women, Louisa Beveridge, died while tied to the mill in this way; the coroner attributed her death to an apoplectic fit. At this point, the other women’s resistant spirit was broken, at least temporarily. Baines reported finding that they ‘‘seemed to have lost all their former insolent determination, and expressed themselves sorry for their conduct.’’ Not wanting to encourage what he saw as a deliberate strategy of injuring oneself on the treadmill to avoid further punishment, Baines did not release them but ordered that they be put in solitary confinement for the rest of their sentences.97 It was not coincidental that, despite the eventual defeat of their protest, these women were some of the most persistent in their refusal to work on the treadmill. Their experience of the house of correction was clearly influenced by the solidarity they gave to one another—solidarity that they had initially developed in their confrontation with the management of their estate. And they were not unusual in experiencing imprisonment as a punishment inflicted on a group. The new relationship of the state to punishment and labor discipline during apprenticeship meant that many of those sentenced to imprisonment during this period were being punished for their resistance to labor discipline. Protests were often collective, and many prisoners thus went to the houses of correction in groups. This was particularly true of women, since groups of oppositional men were usually flogged.98 It is therefore not surprising that prison managers during the apprenticeship era were faced with a particularly resistant group of prisoners, especially among the female prison population. The unusually resistant nature of this particular prison population led to prison superintendents’ perception that they could not control prisoners without increasing the levels of coercion. But increased coercion could not take place entirely out of sight. Abolitionists in Britain put pressure on the Colonial Office about ill treatment of prisoners. The Beveridge case, for instance, was extensively reported in the British abolitionist press. The British Emancipator reprinted the information on the case that had been published in the Parliamentary Papers, along with commentary emphasizing the gender of those subjected to ill treatment: ‘‘eleven females (hear it, ye women of England!) tied with cords to a treadmill for twenty-four hours, until one was taken down dead, and the rest with their bodies and limbs shockingly mangled.’’ 99 Such reports fed into conflicts between stipendiary magistrates, the governor, and the Colonial Office on the one hand, and prison officials, with planters and the House of Assembly de114 Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 131 of 308 Tseng 2004.8.31 07:45

fending them, on the other. Ultimately, it was these conflicts that led to intervention on the part of the imperial Parliament.

Imperial Intervention The connection between prisoners’ actions and the responses of the authorities was complex and reciprocal. Prisoners’ resistance led to disputes among the various groups competing for power to control prisons. But the influence was not unidirectional. Prisoners knew of conflicts between prison supervisors and the colonial state, in part because they were often required to give evidence in investigations into the management of prisons. They then took advantage of the state’s failure to support prison authorities, leading to more resistance and disorder in the prisons. Because conflicts among competing authorities tended to create more prisoner resistance, they undermined the authority of prison managements and made them seem vulnerable to criticism. This cycle took place most clearly in the Kingston house of correction. Conflicts in that prison first came to public attention in March 1835, when Janet Williams and Aglaia Ceffay were flogged by the driver William Coffey. Their flogging came in part as a result of resistance to being put on the treadmill. In June of the following year, in response to these and other cases, Sligo asked stipendiary magistrates throughout Jamaica to report on cases in which women had been flogged on treadmills.100 His exclusive concern with abuse of women was determined both by the assumption that to flog a woman was worse than to flog a man and by the dubious legal status of the practice of flogging women that resulted from the abolition law. When Henry Moresby, the stipendiary magistrate for Kingston, tried to visit the house of correction to take affidavits from prisoners and officers, George Aitcheson, the superintendent, refused to allow him entry. Aitcheson was backed in this by the Kingston Common Council, whose members claimed that they, rather than Moresby, had authority over the prison. Eventually, Moresby gained access to the house of correction and took statements from several prisoners about their experiences.101 Moresby’s difficulties contributed to a growing sense on the part of both Sligo and the Colonial Office that it was necessary to act to gain control of Jamaican prisons. From November 1835, Sligo had been trying to persuade the House of Assembly to amend the Gaols Act.102 He wanted the law to prevent ‘‘abuses,’’ including the flogging of women.103 In June 1836, Glenelg recommended that stipendiary magistrates refuse to commit apprentices to houses of correction in which they might be treadmill and whip

115

7124 Paton / NO BOND BUT THE LAW / sheet 132 of 308 Tseng 2004.8.31 07:45

punished without prior reference to a magistrate for infractions of prison discipline.104 But this was only a temporary measure, since neither Sligo nor the stipendiary magistrates were prepared to give up punishing apprentices for violations of the apprenticeship law, and without prisons, few alternatives were available. The longer-term solution was to change the law, but only the House of Assembly could do that, and it consistently resisted doing so. The first mention of a bill to legislate directly for West Indian prisons was made in August 1836, when Sligo wrote to the Colonial Office that he thought the only solutions to the problems would have to come from ‘‘home.’’ 105 However, no immediate action was taken. Pressure on the Colonial Office to act intensified over the course of 1837, as the growing abolitionist campaign in Britain for an early end to apprenticeship began focusing specifically on the issue of prison abuses. Sturge arrived back in England from his trip to the West Indies in May and gave speeches throughout the country emphasizing the ‘‘horrors’’ he had observed in Jamaican prisons.106 For instance, at a meeting in Birmingham attended by 500 people he described the treadmills in detail, declaring, ‘‘I believe the people of this country have no idea of it.’’ He told of a ‘‘poor old woman [who] had been put on the mill that morning, and being unable to keep the step, hung for the whole fifteen minutes, suspended by the wrists, with the revolving steps beating against, and bruising her body the whole time.’’ 107 With Sturge arrived James Williams, whose freedom Sturge had provided the money to purchase. By June, Williams’s A Narrative of Events, since the first of August, 1834, with its graphic descriptions of the treadmill, had been published and was widely circulated both in pamphlet form and as reprints in newspapers.108 The report of the House of Commons Select Committee on Negro Apprenticeship, published in July, drew attention to ‘‘the state of the Workhouses and of . . . Prison Discipline . . . particularly as it exists in the Island of Jamaica.’’ 109 The combined pressure of the attention to West Indian prisons both inside and outside Parliament led the Colonial Office in August 1837 to send Captain John Pringle to the West Indies in order to investigate the prisons.110 Pringle arrived in Barbados in October and reached Jamaica in December 1837. Pringle began his Jamaican investigation by attempting to inspect the Kingston house of correction. Superintendent Aitcheson, with the support of the mayor, Hector Mitchel (the same man who had proposed the 1834 Gaols Act in the House of Assembly), refused to allow Pringle to interview prisoners without a prison official present.111 Pringle eventually gave up on his efforts to inspect the prison and proceeded to visit prisons 116 Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 133 of 308 Tseng 2004.8.31 07:45

in the rest of the island. However, Governor Lionel Smith (who had taken over from Sligo in September 1836) now asked Moresby to investigate unauthorized floggings within the prison. When Moresby tried to do so, he once more met with resistance.112 In response to Smith’s instruction that it facilitate Moresby’s inquiries, the Kingston Common Council began to carry out its own investigation and demanded that he present his allegations to the council. Control of the Kingston house of correction was becoming a test case for Smith’s authority as governor. At this point the resistance of prisoners once more became critical. Apprentice prisoners in Kingston knew that the house of correction’s superintendent was in conflict with the stipendiary magistrate and took advantage of this fact. According to James Quin, a boatswain, the prisoners, since the beginning of the Kingston Common Council’s investigation, had been ‘‘misbehaving very much—they talk as they like, and work as they like—they laugh and disregard what is said to them. Not one half of the work is now done that used to be.’’ Quin’s report was confirmed not only by other prison workers but also by some of the prisoners. John Thomson, who was incarcerated for twelve months for stealing an ass, reported that ‘‘[t]he people are behaving very bad lately. Since . . . March they come off the mill when they like—make a noise, and fight in the mill-house, and disregard the orders of the Boatswain.’’ 113 Clearly, at least some of the inmates were using their knowledge that those with authority over them were divided to expand the control they exercised over their lives within the institution. The dynamic at work here was analogous, on a small scale, to slaves’ responses—including strikes and sometimes outright rebellions—to rumors that the British government was contemplating ‘‘ameliorative’’ reforms.114 It was this response by prisoners that made the situation of divided authority acutely untenable. Not only did it lead to disorder in the prisons; it also made the limits of the governor’s power increasingly visible. The news of these disturbances added to the Colonial Office’s resolve to centralize control over prisons in the hands of colonial governors.115 In February, Glenelg wrote that he was waiting only to receive Pringle’s report before proposing a bill governing West Indian prisons to Parliament.116 When Pringle’s report arrived in July 1838, it singled out Jamaican prisons for attention, arguing that they ‘‘hardly hold out a chance of bringing about reform in the character of the inmates.’’ 117 It focused in particular on problems in the management of gender within prisons: the possibilities for mixing of prisoners of different sexes, the flogging of women, and the sexual abuse of women in prison. Similar problems had been highlighted by the inquiry into Williams’s Narrative. Pringle’s rectreadmill and whip

117

7124 Paton / NO BOND BUT THE LAW / sheet 134 of 308 Tseng 2004.8.31 07:45

ommendations formed the basis of the Act for the Better Government of Prisons in the West Indies, which was introduced into Parliament in July 1838.118 The bill, which became law within a few weeks, centralized control of West Indian prisons in the hands of the governors and thus curtailed the power of the colonial legislatures. News of the passage of the act arrived in Jamaica a few weeks after apprenticeship had been abolished, in September 1838.119 Smith’s first use of his new powers was to issue new rules for prisons. Several of these rules aimed at managing gender relations within the prisons, including mandating the complete separation of male from female prisoners.120 Members of the Jamaican elite united in opposition to the West India Prisons Act, which they saw as a fundamental usurpation of the assembly’s authority. Its opponents included those who saw themselves as progressives, including Jordon and Osborn, as well as assembly members traditionally allied with the planters. Osborn vigorously attacked the act in both the assembly and the Kingston Common Council. ‘‘He might be compelled to submit,’’ he declared, ‘‘he might be beaten down to silence by the strong hand of power, but he did not believe he would ever be able to bring himself to acknowledge the right of the British Parliament to make laws for our internal regulation.’’ 121 In October 1838, the assembly met and refused to conduct any further business, with only five members voting against. Within a few weeks, the police had been discharged, as there was no money to pay them, and other state funded activities came to an end. The crisis brought Anglo-Jamaican relations to the brink of dissolution.122 The British Whig government seriously considered abolishing the Jamaican House of Assembly and instituting direct rule from London, although its slim majority led it to propose to Parliament only the suspension of the Jamaican constitution for five years. An unlikely coalition assembled in defense of colonial autonomy, including Jamaican colored patriots, white planters, the ‘‘West India interest’’ in England, Lord Brougham (the leader of the antislavery group in the House of Lords), and both Radicals and Tories in the House of Commons. Ultimately, both sides backed down. Jamaican planters and professionals were in no position to declare independence, as their reliance on the British army to suppress apprentice disturbances had shown. But the Whig government was too weak simply to dispense with the Jamaican legislature. Its bill to suspend the Jamaican constitution passed by only five votes and was never implemented.123 Instead, a more conciliatory bill, requiring only that the assembly pass certain remedial legislation before its functions were restored, passed in June 1839. Lionel Smith was recalled to 118 Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 135 of 308 Tseng 2004.8.31 07:45

London and replaced by Sir Charles Metcalfe, who arrived in September 1839 with the mission of conciliating the planters. He took several concrete steps toward doing so in the first months of his governorship: ratifying harsh vagrancy laws, reducing the regularity of stipendiary magistrates’ reports, and publicly attacking the Baptist missionaries who were the former slaves’ most prominent white allies.124 Jamaican planters and progressives eventually reconciled themselves to the West India Prisons Act, passing a new Prisons Act in 1839.125 the crisis around the West India Prisons Act has usually been seen as marking a key point of transition in Jamaican history, the moment at which the British imperial government drew back from its efforts to impose external control on Jamaican planters. It has rarely, however, been analyzed in its specificity. Doing so provides insight into the relationship between the local politics of Jamaican apprentice prisoners and the ‘‘high’’ politics of Anglo-Jamaican relations. Prisoners’ actions did not on their own determine the direction of penal policy, but they did set limits to what prison authorities could do. Prisoners were actively aware of, and took advantage of, the developing conflicts between different groups within the elites. If prisoners had been as passive as prison managers hoped and sympathetic observers pretended, far fewer of the scandals that took place in Jamaican prisons during the apprenticeship would have occurred. This in turn would have meant that relationships among planters, the assembly, the governor, and the Colonial Office would have been much less conflictual. Close attention to the development of the crisis also demonstrates the importance of gender in this period of Jamaican history. Gendered ideologies and the different experiences of men and women were fundamental to generating the crisis in two separate but intertwined ways. First, abuses of women—and, in particular, their flogging—were a primary concern underlying both abolitionist and official attacks on the prisons. This concern drew on the tradition of antislavery representations of flogging discussed in the Introduction as well as on the gendered assumptions inherent in penal theory. Second, the resistance of women both to the regimes they faced on the plantations and to the treadmill was crucial to generating the sense of crisis within the prisons. The West India Prisons Act was also a significant step in the development of the colonial state. As with the creation of the stipendiary magistrates, conflict between the needs of the imperial government and those of the local elite led to the implementation of a greater degree of centralization in colonial state power than was accepted in contemporary treadmill and whip

119

7124 Paton / NO BOND BUT THE LAW / sheet 136 of 308 Tseng 2004.8.31 07:45

Britain, where prisons remained under local control until the 1870s. In the post-emancipation period, this would mean that in certain ways the colonies could become a testing ground for a variety of penal regimes. At the same time, the dependence on financing from the cash-strapped and parsimonious Jamaican assembly meant that governors had less control in practice than was implied by the language of the new act. The next chapter explores the implications of these developments for the unprecedented changes that were to take place in the management of Jamaica’s prisons over the next decades.

120 Chapter Three

7124 Paton / NO BOND BUT THE LAW / sheet 137 of 308

Chapter Four penality and politics in a ‘‘free’’ society

Tseng 2004.8.31 07:45

In the early hours of the morning of August 1, 1838, hundreds of newly freed slaves gathered outside the Baptist chapel at Falmouth. Most had already attended a service at midnight, during which their missionary, William Knibb, had declared ‘‘the monster’’ of slavery dead. Some of the group had earlier dug a hole in the ground, and now they conducted a ‘‘funeral service’’ for slavery, burying a whip, a chain, and an iron collar, along with an empty coffin.1 In another part of Jamaica, a few days earlier, the about-to-be-freed apprentices performed a similar ritual. According to the missionary John Hutchins, members of his congregation celebrated their freedom by burning slave chains and collars. As one celebrant explained, ‘‘[W]e burning all the blood off the chain and collar, so him show no marks of slavery.’’ 2 These and the many similar celebrations that took place across Jamaica illustrate a widely held belief that freedom would mean dramatic changes in the uses of punishment.3 This belief was correct: after 1838, labor discipline was no longer enforced through direct coercion.4 In this period, the penal system underwent considerable change. Prison reformers, mostly colonial civil servants taking their cue from Britain and the United States, tried to create a system in which modern, well-run prisons would transform criminals into non-offending members of society. It was clear to officials that the construction of a ‘‘free’’ society would require a reconstruction and elaboration of state responses to acts defined as criminal. Less clear was how these state institutions should be reconstructed. Should West Indian penal regimes be modeled on those of Britain, which had themselves undergone substantial modification in

7124 Paton / NO BOND BUT THE LAW / sheet 138 of 308 Tseng 2004.8.31 07:45

the 1830s? Or did the specific circumstances of colonial society require that penal policy follow a different path to that in the metropolis? These questions were the subject of considerable debate among those who wrote and spoke about political matters in Jamaica in the postemancipation period, as well as among those in Britain who took an active interest in colonial policy. In colonial societies generally, punishment became a key site for the negotiation and construction of the meaning of modernity and the nature of colonial subjects.5 What David Scott calls ‘‘colonial governmentality’’ did not, however, take a singular form.6 Thus, in the early post-emancipation period, those arguing for a Jamaican policy mirroring that of Britain won out. A program of prison construction and reform was adopted with stated goals of the ‘‘rehabilitation’’ of prisoners and the ‘‘reformation’’ of their characters. By the mid1850s, however, this program was widely understood to have failed. This sense of failure is not especially surprising: as the changing meaning of the treadmill during apprenticeship suggests, the perception that a previous generation’s reforms have achieved nothing is very common in the history of punishment. Indeed, a similar onset of pessimism took place in Britain in this period, as well. However, whereas there the utopian effort to ‘‘reform’’ was replaced with closer surveillance and differentiation of the ‘‘criminal class’’ from the ‘‘respectable’’ working class, in Jamaica new forms of racism associated ‘‘the Negro’’ or ‘‘our peasantry’’ with criminality, implicitly defining the non-elite population as a whole as criminal. Colonial subjects in Jamaica, as throughout the British Empire, came to be seen as not fully equipped with the rationality associated—at least in the colonies—with whiteness and Britishness. In this period, imprisonment continued to be the mainstay of the penal system, but flogging was reintroduced and became the focus of debate about punishment. Throughout this period, gender distinction was a fundamental, if sometimes unspoken, criterion for determining penal policy. In the period of rehabilitation, part of the goal of imprisonment was to accustom prisoners to acting in appropriately gendered ways. Prison reform was related to a wider project of refashioning the gender relations of freedpeople. Later, the laws reintroducing corporal punishment specified that only men could be whipped, although this fact was rarely commented on at the time. No single narrative can thus describe change over time during this period, for men’s and women’s encounters with the judicial and penal systems differed considerably. Through the debates around punishment, members of the colonial elite elaborated different positions about the nature of the Jamaican population. The debates tell us at least as much about constructions of ‘‘race’’ 122

Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 139 of 308

in this period as they tell us about penal policy. Much of what was suggested on both sides was never fully implemented. All of the people involved in these debates saw black Jamaicans as colonial subjects who were different from and inferior to white British subjects, but the reasons for and appropriate response to this supposed inferiority changed over time. The program of rehabilitative imprisonment presented the ideal of the reformed prisoner in opposition to the stereotype of the feckless, irresponsible, and demoralized slave. It was part of a colonial project that assumed that all people responded in the same way to the same environment and posited an idealized disciplined, responsible, respectable worker as the goal to be achieved. The Jamaican prison reform project has parallels throughout the British Empire in this period, in particular in India.7 The later argument for whipping and private use of prison labor relied on a more dehumanizing form of racism, in which colonial subjects were understood to be inherently unable to attain the goal of the respectable worker. Satadru Sen argues for a similar shift in penal ideologies in colonial India after the 1857 ‘‘mutiny.’’ He suggests that, in contrast to Britain, in India ‘‘there was no question of teaching the lower orders to behave like the social and political elites. The idea, rather was to teach subordination, loyalty and what can be described as a ‘sense of place’ on a map of colonial society that located populations in terms of race, class, caste, gender and age.’’ 8 A similar understanding of racial difference came to dominate Jamaican debates around penality by the early 1850s, even before the 1857 events reformulated dominant imperial understandings of colonial populations.

After Slavery: Restructuring and Rehabilitation

Tseng 2004.8.31 07:45

The full abolition of slavery led to considerable change in the function of prisons. In a move symbolizing this shift, on August 1, 1838, Governor Lionel Smith ordered the release of 176 former slaves serving prison sentences for offenses committed under the slave codes.9 By 1840, although the prison population had expanded dramatically—from a reported 644 in 1834 to 1,170 in 1840—all prisoners (with the exception of debtors) were held under the criminal law, which now made no overt distinctions among people by race or former slave/free status.10 As these figures suggest, the end of slavery did not mean a decline in the use of the penal system. In the 1840s, in part in response to the sense of crisis around prisons generated by the controversy of the 1830s, the penal system was consolidated and strengthened in the name of reform. The new penal complex differed from those of slavery and apprenticepenality and politics

123

7124 Paton / NO BOND BUT THE LAW / sheet 140 of 308 Tseng 2004.8.31 07:45

ship. Apart from the obvious shift in the means by which people came to be punished, there was also a different set of punishments available to the courts. Flogging was abolished as a punishment for crime in 1840.11 Transportation remained a legal punishment, but in practice it was not used after 1837, when the Colonial Office had ordered West Indian colonies to cease sending their convicts for transportation to the Australian colonies.12 The fine, which unsurprisingly had rarely been used to punish slaves or apprentices, became newly significant. This punishment existed alongside the death penalty and, most important, the prison sentence, which became for the first time the dominant means of punishment in both a quantitative and a discursive sense. Jonathan Dalby’s study of the Jamaican assize courts shows a dramatic increase in the proportion of prison sentences given after emancipation.13 These sentences were also on average longer than they had been before 1838.14 Moreover, discussions of penality now focused with new intensity on the prison and the prison sentence as the centerpiece of a penal regime. As the prison became the central penal technology, prison populations were recorded systematically for the first time. The average prison population for the period 1840–70 was just over 1,000, for a total population measured at 377,433 in 1844 and 441,264 in 1861 (see Figure 16).15 While we do not have strictly comparable figures, those that are available suggest that the prison population was larger in this period than during either slavery or apprenticeship. After declining somewhat in the early 1840s, the total prison population rose through the rest of the decade, reaching a high of 1369 in 1849. It decreased in the early 1850s, during the major cholera epidemic which killed more than 30,000 people, then began to climb again and surpassed its 1849 high in the early 1860s, in the wake of the Great Revival and the period of social and political crisis that culminated in the Morant Bay rebellion.16 Throughout, the prison population was heavily male, with, on average, 13 percent of the prison population being female, a significant change from apprenticeship, when about 20 percent of prisoners were women. Prisoners were also heavily concentrated in the General Penitentiary, which for almost the whole period contained more than 40 percent of the entire Jamaican prison population. From 1839 on, successive governors and assemblies followed a program of prison reform largely modeled on dominant practice in Britain and the United States. Similar programs were undertaken in the other West Indian colonies and in India.17 This was an empirewide effort to impose ‘‘civilized’’ British penal practice on the colonies. Other post-slave societies likewise constructed new disciplinary institutions soon after the abolition of slavery. In Martinique, for instance, the new republican 124

Chapter Four

total prison population

1800

prisoners in penitentiary

1600 number of prisoners

7124 Paton / NO BOND BUT THE LAW / sheet 141 of 308

2000

1400 1200 1000 800 600 400 200 0 1837

1840

1843

1846

1849

1852

1855

1858

1861

1864

1867

1870

figure 16 Populations of all prisons in Jamaica and of General Penitentiary, 1837– 70. Source: Blue Books of Statistics for Jamaica, co 142; Falmouth Post, July 31, 1857. There are extensive arithmetic errors in the totals given in the statistical tables in the Blue Books. The totals have therefore been recalculated from the raw data given. The General Penitentiary did not report a population figure for 1852, but a figure for this year was reported in the Falmouth Post of July 31, 1857, as part of a series of fairly accurate prison statistics. The Falmouth Post’s figure has been added to the total prison population in the Blue Book for 1852.

Tseng 2004.8.31 07:45

governor, Perrinon, authorized the building of two ateliers de discipline (workhouses) soon after the abolition of slavery in 1848.18 As one of the first acts toward reforming the prisons, Charles Metcalfe, the new governor, appointed special and regular magistrates as parochial inspectors of prisons and solicited reports on the state of the prisons across the island. The reports filed in response, many of which described the gaols and houses of correction in great detail, provide important evidence about both the functioning of Jamaican prisons in this period and the new prison inspectors’ assumptions about penality. The reports themselves illustrate the contradictory state of the penal system at this time: they are an artifact of the desire to methodically record and report on every aspect of the system, yet the body of knowledge they present is not at all systematized. Some prisons were not reported on at all, while others received two or three reports—and no two reports included exactly the same categories of information.19 The reports suggested that some progress had been made toward meeting penal-reform standards, mostly in the easy-to-achieve form of the adoption of new rules controlling prisoners’ behavior. Thus, many of penality and politics

125

7124 Paton / NO BOND BUT THE LAW / sheet 142 of 308 Tseng 2004.8.31 07:45

the prisons now had explicit rules against gambling and the consumption of alcohol. The friends of prisoners were now less likely to be allowed into the prisons than during slavery and apprenticeship. Despite these changes, most reports emphasized the prisons’ failings. Some of these related to controversies that had existed during apprenticeship. Gender relations in particular continued to be a central concern. Several inspectors complained that prisons failed fully to separate men from women; according to one, it could not be doubted that ‘‘moral corruption’’ would result from this fact.20 As this concern with separation by sex suggests, there was now an increased focus on control of space within the prison. Moresby wrote of the Kingston house of correction that ‘‘a general superintendence is out of the question; and, unless a boatswain is placed at each of the numerous angles of these detached buildings, the inmates are free from observation.’’ 21 Many of the other reports noted that prisoners could not be properly classified. They were also concerned with the apparent ease with which many prisoners escaped. The reports echoed the criticisms of unreformed prisons that had been made repeatedly in other countries, at least since John Howard had published The State of the Prisons in 1777.22 The British prison inspectors William Crawford and Whitworth Russell claimed that the information in the reports was ‘‘more startling and extraordinary than any other prison reports which have come under our notice,’’ and argued that ‘‘it is obvious that an entire reform in their construction and internal arrangements is indispensably necessary.’’ 23 They classified the problems under eight major headings, which provided a basis for attempted changes over the next decade: insecurity, lack of classification of prisoners, unhealthiness, ease of communication of prisoners with persons outside the prison, defective superintendence, deficiency of moral and religious instruction, the existence of penal gangs, and the lack of a regular diet. The desire to improve conditions for prisoners was intimately connected with the desire to control them, to prevent them from having any areas of autonomy in their lives. In Crawford’s and Russell’s view, contact between prisoners and non-prisoners was an equivalent problem to concerns over health and diet. Governor Metcalfe’s initial response to the reports was to embark on a major change in the organization of the islandwide system of prisons. In the early 1840s, many prisoners were moved among the existing institutions in order to classify and categorize the prisoners so that those deemed similar to one another were kept in the same institution. The Kingston house of correction was renamed the General Penitentiary and became a male-only prison. Men convicted of felonies throughout the 126

Chapter Four

25 number of prisons

7124 Paton / NO BOND BUT THE LAW / sheet 143 of 308

30

20 15 10 5 0 1837

1840

1843

1846

1849

1852

1855

1858

1861

1864

1867

1870

figure 17 Number of prisons in Jamaica, 1837–70. Source: Blue Books of Statistics for Jamaica, co 142.

Tseng 2004.8.31 07:45

island were transferred there. A separate women’s penitentiary was established, several houses of correction were closed, and twelve others became single-sex ‘‘district prisons,’’ reserved for convicts serving sentences of two months or longer. With ‘‘serious’’ criminals thus removed and concentrated in a smaller number of prisons, the remaining gaols and houses of correction now confined only debtors, untried prisoners, and those serving short sentences.24 From a high point of twenty-eight prisons in 1837, only eighteen were operating in 1843, shrinking again to twelve by the 1850s (see Figure 17).25 In contrast to the late years of slavery, Jamaica now saw the concentration of prisoners within fewer institutions rather than the proliferation of those institutions. This was possible in part because the West India Prisons Act had removed the prisons from local control, making it easy to transfer prisoners among the parishes. The prison-reform project was managed by John Daughtrey, who had been in Jamaica as a stipendiary magistrate since 1834. He was appointed Jamaica’s first general inspector of prisons in 1841 and filled this position for the next twenty years. Daughtrey had been one of the most diligent of the special magistrates, sharing almost exactly the Colonial Office’s understanding of the transition from slavery to freedom. He understood his role to be to protect apprentices from cruelty and unfairness while building in them what he saw as the necessary spirit of subordination. Years later, he recounted with pride his role in defusing labor conflict in the first months of apprenticeship. Without recourse to the lash or to penality and politics

127

7124 Paton / NO BOND BUT THE LAW / sheet 144 of 308 Tseng 2004.8.31 07:45

any form of punishment, he had persuaded striking workers to return to their jobs, although they had not won any change in their working conditions.26 The incident is emblematic of his view of the way government should function. A passionate believer in the advantages of free labor, Daughtrey aimed to build a modern penal system to replace what he saw as the corrupt, brutal, and—perhaps most significant—ineffective institutions that had existed during slavery. Like many of his counterparts in Europe and Latin America, Daughtrey visited North American prisons and was impressed by the new penitentiaries, especially the Philadelphia Penitentiary, which kept prisoners in almost total isolation under what was known as the ‘‘separate system.’’ 27 He attempted to apply the lessons he took from the United States to the penal institutions under his jurisdiction. He had plans for the new Jamaican penitentiary building drawn up in the United States on the ‘‘radiating principle, so advantageous for inspection and supervision,’’ invoking the panoptic model which dominated penal thought at the time.28 The foundation stone for the new penitentiary was laid in 1845. While the plans described by Daughtrey have not been located, newspapers published a detailed description after the beginning of construction work. The prison site covered ten acres in East Kingston, on sloping land near the harbor. It would be surrounded by a twenty-foot wall, four feet at the base and eighteen inches at the top, with an octagonal guard tower at each corner. The site was to contain officers’ residences, a chapel, a kitchen, storerooms, a saltwater bath, and a hospital. Near the superintendent’s residence there was to be a ‘‘Hall of Inspections,’’ which, according to the Morning Journal, would command ‘‘a view of the entrance of every cell, and of the entire premises.’’ When not in their cells, the prisoners would work in ranges of worksheds through which a passage was to run ‘‘by means of which the convicts will be under the eye of the officers at all times when at work, although the officers will be invisible to the convicts. The work sheds will enclose spacious squares, which will much conduce to the healthiness of the establishment.’’ In addition to its front entrance, the penitentiary was to have an entrance leading to a quay on the harbor, allowing access to ships for the goods made by the prisoners. In addition, there was a nearby brickyard, to be reached through a tunnel to prevent the prisoners from communicating with people in the street outside.29 At the heart of the penitentiary were to stand several rectangular cell blocks, distanced from the exterior wall in order to prevent escapes. They were to be two stories high, containing a total of 500 tiny cells for sleep128 Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 145 of 308 Tseng 2004.8.31 07:45

ing. The cells were to have a floor-area of eight feet by five feet and were to be nine feet tall, with a ‘‘narrow oblong window’’ in each for ventilation eight feet above the floor.30 Lack of funds meant that it took considerable time for these cell blocks to be constructed. In 1849, when the penitentiary held more than 500 prisoners, Daughtrey reported that the ground floor of each block, a total of 120 cells, was ready for occupation, meaning that each cell would hold four or five prisoners. Prior to this, the prisoners had slept in large-scale dormitories.31 In 1853, Daughtrey reported that two cell blocks were complete. There were, he wrote, ‘‘two wings, in every respect corresponding, containing 260 cells, each wing having a second story which is reached by central steps and an ample corridor. The corridor of the second story assists in protecting the cells below from the sun as well as from heavy rain, while the cells in the upper story are similarly protected by an overhanging roof.’’ 32 The penitentiary was the first Jamaican prison to incorporate penal measures into its architecture. Earlier prisons had been built along roughly the same lines as other buildings; even those built in the 1830s did not attempt a cellular design. The penitentiary, by contrast, had security walls, cell blocks, and guard towers. The description demonstrates the influence of contemporary penal thought in Jamaica. This was ‘‘architecture against communication,’’ as Robin Evans has described contemporary English prison design.33 The architectural problems to be solved were slightly different from those in England. Most significant, the concern was with shelter from the sun rather than with the provision of heating. As Daughtrey described it, his prison design was ‘‘best adapted for the free admission and circulation of air in a tropical climate.’’ 34 Nevertheless, the concerns were essentially similar. The placing and design of the buildings was intended to empower prison managers by enabling total inspection and visibility of the prisoners. At the same time, productivity was to be maintained, but rather than sending inmates outside the prison, as prisons had done previously, prisoners were now to work in the brickyard and in workshops. Although the description does not mention what they were to make, advertisements in the Kingston press in 1842 had solicited applications for foremen to direct linen tailors and shoemakers.35 Token attention was also paid to the health of the prisoners, although their close confinement could not have been healthy. Daughtrey’s model prison, designed to contrast with the ‘‘degrading’’ punishments that existed prior to emancipation, was to symbolize Jamaica’s freedom.36 Daughtrey’s penal theory was highly conventional. His articulation of the rationale behind the penitentiary could have come from a European or North American prison-reform tract: penality and politics

129

7124 Paton / NO BOND BUT THE LAW / sheet 146 of 308 Tseng 2004.8.31 07:45

No man can be forced into reformation by the infliction of physical suffering. The subjection produced by mere force may leave the mind itself full of latent resistance. The will must be gained—the will to amend. The mind is then at once accessible to reason and persuasion. Instead of torturing the body to punish crime, and deter from its commission, the penitentiary system substitutes silence, restraint, and hard labour, a discipline less revolting, but perhaps in reality more severely felt, and far more reformatory.37 Daughtrey here uses a distinction between punishments that work on the mind and those that attack the subject’s body. This distinction was common in contemporary penal theory and has largely been accepted by historians of punishment. However, as with the opposition between the treadmill and the whip, Daughtrey’s argument demonstrates that the body and the mind are not easily extricated from each other. Although he contrasts them to ‘‘torture’’ of the body, Daughtrey advocates two techniques—‘‘silence’’ and ‘‘hard labour’’—which in fact rely on using and controlling the bodies of prisoners. The passage also shows Daughtrey’s defensiveness about his penal policy. He feels he must justify penitentiary discipline as ‘‘more severely felt’’ than the infliction of ‘‘mere force’’ against an expected criticism that the penitentiary was a soft option for criminals. Support for the penalreform project among the Jamaican elite was relatively thin even at the start. In late 1839, for instance, an assembly committee reported that, although it was aware of the ‘‘inadequacy’’ of the parish prisons, the financial position of Jamaica meant that it could not recommend significant expenditure on a penitentiary.38 In the 1840s, there were already complaints in pro-planter newspapers such as the Jamaica Despatch that the new penitentiary was costing too much to build.39 Within the prisons, the most fundamental principle of good management was gender segregation. Critics of the slavery-era prisons condemned them repeatedly for their failure to separate male and female prisoners from one another.40 In the reorganization of the prison population, most of the prisons were allocated as being either for men or for women. New regulations specified that male prison wardens should not come into contact with female prisoners.41 By separating prisoners (and staff ) along gendered lines, the potential for heterosexual expression within the prison was removed, thus emphasizing the institution’s separation from the world outside. This concern for separation of men and women was commonplace among penal reformers. As Michael Meranze comments with regard to Philadelphia’s Walnut Street Jail, ‘‘The threat 130 Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 147 of 308 Tseng 2004.8.31 07:45

of sexual contact obsessed prison reformers; it more than any other issue seems to have represented the seductiveness of vice . . . The new disciplinary regime aimed to reshape and redirect the practices of the body; the sexually active body transgressed disciplinary limits and expressed ungoverned desires and individual wills that escaped the control of prison regulations.’’ 42 Still, for women prisoners this concern also lessened the dangers of imprisonment. Coercive sex had been a common part of women’s prison experience during apprenticeship.43 While this almost certainly continued to some extent in the reformed prisons, the requirements that women and men be physically separate, and that female warders be responsible for female inmates, must have decreased opportunities for sexual exploitation. Sexual segregation did not make the prisons asexual spaces, however. A report on the Kingston house of correction in December 1840 noted that ‘‘neither decency or order is preserved, as the case of a prisoner lately committed to take his trial for perpetrating an unnatural crime, fully testifies.’’ 44 In 1849, Hector Mitchel alleged that what he termed ‘‘the beastly crime of Sodomy’’ was widespread in the penitentiary. Older men, he claimed, exchanged their rations with boys, ‘‘induc[ing] them . . . to acquiesce in that offence.’’ 45 Daughtrey denied the allegation. Since 1847, he rebutted, he had chosen ‘‘men of the best class’’ of prisoners, and placed one in each of the penitentiary’s cells. The men were to act ‘‘in the situation of Monitor, as a guard upon order and decency during the night.’’ 46 His claim reveals that he had also been anxious about the possibility of sex between men. The new gender-segregated prisons required prisoners to enact their gender in particular ways. Religious teaching emphasized the attributes of manliness and femininity thought to be appropriate for a newly free population. Work assignments were allocated according to gender: women washed clothes, cooked, and cleaned the prison buildings, while men repaired roads, broke stones, or did agricultural work. Despite the fact that women routinely performed agricultural labor in the developing peasant economy of post-emancipation Jamaica, prison inspectors considered such work to be ‘‘inappropriate.’’ Samuel Pryce, the prison inspector for St. Thomas in the East, recommended in his 1841 report that the prisoners in Manchioneal women’s prison be employed washing clothes for hire. ‘‘At present I am not prepared to suggest to his Excellency, any other mode of labour adapted to females,’’ he noted, rejecting other possible types of work. ‘‘[O]ur creole women have never been accustomed to [such work] and do not understand it, for which reason I consider it quite impossible, being more properly the work adapted to the penality and politics

131

7124 Paton / NO BOND BUT THE LAW / sheet 148 of 308 Tseng 2004.8.31 07:45

male sex.’’ 47 By 1841, it was illegal for women prisoners to work outside the prison, while men continued to do so in many of the district prisons.48 Women thus experienced a more thoroughgoing version of the rehabilitative prison’s principle of seclusion from the world outside than did men. Prison reformers’ efforts to reconstruct the gender identities of inmates can be seen as a more coercive version of the missionary project in free communities, where missionaries aimed (with limited success) to transform former slaves’ understandings and practices with regard to work, kinship, home life, and sexuality.49 Having concentrated the serious criminals in a relatively small number of prisons, Daughtrey focused his attention on the institutions’ internal regimes. By the mid-1840s, despite the still unfinished state of the penitentiary, he was satisfied with the improvements he had made. In his 1844 and 1845 reports on the penitentiary he described these advances. Prisoners were now separated into groups so that those convicted of serious offenses did not come into contact with inmates awaiting trial or serving short sentences. Rather than being chained to prevent escape, prisoners were restrained by the twenty-foot wall. They worked silently in the workshops which had themselves been rebuilt using convict labor. Prisoners worked in a variety of trades, including as carpenters, blacksmiths, and coopers. Most, however, worked in the brickyard, making bricks for the further construction of the prison buildings. Daughtrey’s 1844 report on the penitentiary emphasized the value of both the work and the silence, claiming the latter as one of his ‘‘greatest achievements. No voices are heard now but those of the officers of the establishment,’’ he boasted. ‘‘No sounds but of the hammer, the axe or the saw.’’ 50 Instead of receiving money to buy food, prisoners received a strictly measured daily ration. Infractions of prison discipline were no longer punished by flogging; instead, prisoners were subjected to solitary confinement.51 An Anglican clergyman preached a sermon each Sunday and provided other means of religious instruction. Inmates no longer worked as guards. Daughtrey believed that these modifications had created an environment in which prisoners could successfully be reformed. ‘‘The prison has been certainly made to many a school of order and obedience,’’ he claimed in 1844. ‘‘Those who had before been subject to no restraining, many have here been compelled to submission. They have been mastered and subdued.’’ According to Daughtrey’s statistics, the Jamaican recidivism rate now stood below that of England and the United States, proof of the penitentiary’s success.52 Daughtrey’s penal policy was based on his assumption that in Jamaica he dealt with a population racially distinct from, and inferior to, that 132 Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 149 of 308 Tseng 2004.8.31 07:45

of Britain and the United States. Reports from his time as a stipendiary magistrate prior to his appointment as general inspector of prisons, as well as from when he held that position, indicate his belief that those he termed ‘‘Negroes’’ lacked self-control, ambition, and responsibility, and were generally childish. He described the language of apprentice protest as ‘‘violent jabber’’ which ‘‘excited’’ other apprentices, and pointed out that the inmate population in Jamaica ‘‘consist[ed] chiefly of a race proverbially talkative.’’ 53 Thus, while usually avoiding explicit racial terminology, he invoked the stereotype of ‘‘Quashee’’ or ‘‘Sambo’’ that historians have recognized as a common view of enslaved people in many slave societies.54 In Daughtrey’s interpretation, this childlike passivity was primarily induced by slavery rather than by biology and thus would be replaced by responsibility, given enough experience of freedom. Ironically, their very lack of civilization made Afro-Jamaican criminals excellent candidates for rehabilitative imprisonment. Contrasting the prisoners in the Jamaican penitentiary to the ‘‘educated and professional thief ’’ who he claimed filled British prisons, Daughtrey argued that the former were easier to reform than the latter. Criminals in ‘‘long civilized countries’’ had ‘‘sunk’’ to their position ‘‘after a perfect process of depravity.’’ The inmates of the Jamaican penitentiary, though, were simply ‘‘taught no better.’’ Whereas the ‘‘educated thief ’’ had deliberately suppressed and silenced his conscience, in Jamaicans, conscience ‘‘has scarcely been awakened.’’ 55 For this reason, in contrast to later colonial penal theorists who would argue that the racial inferiority of the population meant that metropolitan penal theories could not be applied in colonial situations, Daughtrey advocated the thoroughgoing adoption of European and North American penal ideologies rather than their rejection. Daughtrey’s vision of the rehabilitated freedman who was ‘‘mastered and subdued’’ and whose ‘‘moral feelings’’ were reawakened was part of a much broader imaginative reconstruction of post-slavery society. His view of the future was allied to that of missionaries and Colonial Office officials who believed that, if the correct environment could be provided, former slaves would learn to behave appropriately to their ‘‘station’’ as workers, as men and women, and as Christians. This view was also held by members of the colored middle class such as Robert Osborn and Edward Jordon, whose newspaper the Morning Journal consistently advocated for the penitentiary when it was attacked as too costly.56 Such a vision was exemplified in a speech to former slaves made by the magistrate Richard Chamberlaine, a brown Jamaican. ‘‘Freedom brings with it no exemption from labour; it rather increases your cares and anxieties,’’ Champenality and politics

133

7124 Paton / NO BOND BUT THE LAW / sheet 150 of 308

berlaine warned his audience. ‘‘Remember that you are henceforth to buy your own clothes, your own salt food, your own medicines, your own nourishment. . . . Your wives and daughters will require their fine clothes for their chapels, churches, and holidays. . . . [I]n order to obtain these, the comforts and necessaries of civilized life, you will have to labour industriously.’’ Chamberlaine aimed to stimulate the pride of free men rather than retrain those who had committed crimes. Nevertheless, his imagined future Jamaica was projected against an anxiety that freedpeople would not, in fact, participate fully in wage labor. ‘‘And if you can support your selves for a week by two days’ labour,’’ he asked, ‘‘must you not continue to work the other four days to supply the increased wants of your improved condition to make provision for the rainy day?’’ 57 Chamberlaine’s exhortation emphasized his audience’s ability to choose their own future but skirted the question of what would happen should freedpeople not agree that they ‘‘must’’ continue to work as wage laborers to supply their ‘‘increased wants.’’ The penitentiary provided a partial answer. It was to teach labor, appropriately gendered behavior, and Anglo-Christianity to those freedpeople who rejected advice such as Chamberlaine’s.

The Limits of Penal Reform

Tseng 2004.8.31 07:45

Despite Daughtrey’s optimism, there were early signs of problems in the attempt to create a ‘‘modern’’ penal system in Jamaica. Daughtrey and his allies would have liked the Kingston penitentiary to adopt the system of prison discipline known as the ‘‘separate system.’’ 58 In this system, which was implemented in the ‘‘model prisons’’ at Pentonville and Philadelphia, prisoners remained in individual cells throughout their sentence and never saw one another. Work was conducted entirely within the inmate’s cell, and the only people with whom prisoners had contact were guards and clergymen. This system was, in the 1830s and 1840s, widely regarded as the epitome of modern and civilized penality: it was, according to the British inspector William Crawford, a system ‘‘of a moral character,’’ one that ‘‘induces habitual submission.’’ 59 In their 1840 and 1841 reports, many of the stipendiary magistrates who had been appointed prison inspectors called for the separate system. Separation represented the most thoroughgoing use of widely recommended penal technologies and thus could symbolize colonial society’s modernity and adoption of science. As Peter Brown, the prison inspector for Portland, put it, ‘‘The experience of other countries, and more particularly the inquiries which have been instituted of late years into this 134 Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 151 of 308 Tseng 2004.8.31 07:45

subject, seem to establish the fact that the principle of entire separation of prisoner from prisoner or ‘separate system’ is the best calculated to improve the moral character of an offender.’’ 60 As someone whose career depended on successful implementation of reforms, it was in Daughtrey’s interest to oversee the most dramatic change possible in penal practice. In the early 1840s, it seemed that he would be able to achieve this system. According to a Morning Journal article of 1842, ‘‘The system which it is intended to carry out [in the construction of the penitentiary] is that called the separate. . . . The advantage of this system is, that the prisoners, instead of being coerced to labour, fly to it as a relief from ennui, and gladly employ the time in industrious pursuits, which otherwise hangs so heavily on their hands.’’ 61 However, Jamaica’s agricultural economy, predominantly rural population, and lack of fiscal resources made it difficult to adopt this system. The separate system assumed the existence of a manufacturing sector: work had to be provided that each prisoner could do in his or her individual cell. John Pringle noted in 1841 that ‘‘to find employment for prisoners such as the Negroes in separate cells would be difficult, almost all having been accustomed to field labor only, so that shoemaking, tailoring, weaving etc would scarcely be applicable, nor if taught, of use to them when discharged.’’ 62 Apart from this problem, the cost of building a prison with an individual cell in which each inmate could work proved prohibitive. The initial plans for the penitentiary already conceded this point by including workshops and a brickyard. It was not even possible for each inmate to sleep in an individual cell. The prison never achieved a one-to-one prisoner-to-cell ratio.63 Despite all the enthusiasm for separation, the penitentiary in the end adopted a system of silent work in groups during the day. Some prisoners were locked in separate cells at night, but most slept in dormitories.64 There was thus less control over prisoners’ lives than some of Daughtrey’s reports implied. Their nighttime communication could not be controlled; nor could the rule of silence be fully enforced during the day. In another difference from metropolitan penal ideals, penal gangs made up of male prisoners continued to labor on the streets of Jamaica’s towns throughout the period of prison reform. Prison gangs were now rarely hired out as jobbing gangs to planters, but their labor for the state continued. The vestry records of St. Thomas in the Vale reveal an almost total reliance on convict labor for public works. Between 1852 and 1858, the inmates of the district prison (that is, the formerly infamous Rodney Hall workhouse) built roads, cleaned streets and churchyards, cleaned Linstead market, built a fence for the pound and supplied it with grass penality and politics

135

7124 Paton / NO BOND BUT THE LAW / sheet 152 of 308 Tseng 2004.8.31 07:45

and water, did construction work at the parochial hospital, and even dug a grave.65 Penal labor was clearly significant in the creation and maintenance of the limited state facilities that existed in this period. In Spanish Town, prisoners from the St. Catherine house of correction were used not only to clean the streets but also to clear them of hogs and goats. According to three magistrates, the animals were ‘‘slaughtered by being knocked down and killed by heavy sticks hurled [by prisoners] at the running animals.’’ The magistrates reported that ‘‘this has been done to a degree of demoralization and of offence to the public under their jeers and sports, their indecent exclamations and inhuman jests, immeasurably greater than the evil, the annoyances and the nuisances of which their services were intended to rid society.’’ 66 As this description indicates, this labor not only took place in public view, but it became a raucous public spectacle in which control shifted between prisoners and the public but was certainly not strongly vested in prison authorities. Penal labor was the subject of substantial debate during the 1840s. Public work was attacked as both degrading and insufficiently severe. It degraded by producing a public display of the bodies of convicts, who were usually chained together to prevent escape. The British prison inspectors Crawford and Russell criticized Jamaican practice on these grounds in 1840, arguing that ‘‘unless prisoners be strictly confined at all times within the prison-walls, they cannot be protected from public exposure, and from that personal degradation which must result from it.’’ 67 At the same time, the penal gang allowed convicts too much latitude: as the St. Catherine magistrates quoted earlier noted, prisoners were able to communicate with friends and family while working outside the prison. These problems about public penal labor were connected to more general ambiguities in the reasons given for that labor. All commentators agreed that prisoners must not be allowed to be ‘‘idle.’’ Some commentators acknowledged an economic reason for this: prisoners must be compelled to work to defray some of the cost of their imprisonment. But this was rarely given as the only reason for prisoners to work. The Falmouth Post, for instance, cited the example of prisons in New York to argue that ‘‘[b]y proper management, every prison in this island, might be made to support itself, and thus . . . relieve the inhabitants from a grievous and oppressive tax.’’ The benefit, however, would not be just to the taxpayers, but also to the prisoners themselves: such labor would also ‘‘restore’’ convicts to a ‘‘respectable position’’ which they would never otherwise attain.68 Similarly, the Kingston Grand Jury supported prison labor on the basis that it led to the ‘‘future improvement of the unhappy inmates of 136

Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 153 of 308 Tseng 2004.8.31 07:45

the establishment’’ and imparted to them ‘‘salutary habits of industry,’’ which would be ‘‘productive of the happiest results.’’ 69 The implicit theory behind such claims was that people committed crime because they did not work, and they did not work because they did not have the day-today experience—the ‘‘habits’’—of doing so. This claim was ironic given that only eight years earlier the people concerned had been apprentices subject to regular coerced labor. The similarity between imprisonment and slavery was, indeed, occasionally recognized by the authorities, as in the words of a judge sentencing a young man to three years in the penitentiary: ‘‘while there,’’ Judge Roberts told John Bell, ‘‘you will have to labour like a slave.’’ 70 These claims suggest an ambiguity at the heart of nineteenth-century penal theory. Was the purpose of convict labor to be productive, or to teach the convict a moral lesson? Did labor have intrinsic value, or was it useful because it produced value? Would it make the prisoner a more disciplined laborer, or would it lead him or her to hate work and avoid it in the future? These are questions that all prison systems confront—to some extent they continue to structure debates about prisons—but they were more acute in Jamaica in this period both because of the existence of an acute ‘‘labor problem’’ and because of the reluctance to spend public money, which meant that there was a powerful motivation for ensuring that prison labor was productive. During slavery, the question of motivation was absent: insofar as imprisonment was about ‘‘rehabilitation,’’ it was about teaching subservience and subordination. In the post-slavery period, the irony of using forced labor to ‘‘rehabilitate’’ people so that they would willingly make labor contracts was exposed, but the contradiction it implied was never fully resolved. The effort to reform Jamaican prisons faced other pragmatic problems. When the Kingston house of correction first became a penitentiary, it grew so fast that its inmates became extremely difficult to control. As felons from other prisons were sent to Kingston, the penitentiary’s population increased from about 80 to over 300 in a few months, without any corresponding change in its management or physical structure. Nearly eighty prisoners escaped within a short period, including one mass escape of seventeen prisoners. Looking back on this time, Daughtrey wrote that the penitentiary had served to terrify the ‘‘peaceful citizens of Kingston’’ more than its inmates and noted that ‘‘there was nothing to make the prison an object of aversion and dread to the guilty inmate; it supplied little that could minister to his moral reformation.’’ 71 In addition, the construction of the new penitentiary building was slow: the foundation stone was not laid until 1845, and in 1856 the building penality and politics

137

7124 Paton / NO BOND BUT THE LAW / sheet 154 of 308 Tseng 2004.8.31 07:45

remained incomplete.72 The principle of classification of prisoners began breaking down almost immediately after it was established. An 1844 act set aside a section of the penitentiary for a house of correction to receive those awaiting trial and convicted of minor crimes in the city of Kingston, thus bringing the categories of prisoner disaggregated from one another in 1840—serious criminal, minor offenders, and the untried—back into the same institution.73 By the 1860s, H. B. Shaw, Daughtrey’s successor as general inspector of prisons, claimed that the resulting incarceration of house of correction residents alongside long-term penitentiary inmates was a serious problem for prison discipline.74 The women’s penitentiary, created to receive serious female offenders in 1842, was combined with the men’s penitentiary (the ‘‘General Penitentiary’’) in 1853.75 Reforming the district prisons—mostly former houses of correction —and parish gaols was even more difficult. Some changes did take place. Treadmills were withdrawn from all prisons during 1840.76 Structural alterations were undertaken in a number of institutions, often dividing existing spaces so that more categories of prisoners could be kept separate from one another. With long-term prisoners removed to the penitentiary, many of these prisons held a smaller and more transient population than they had prior to 1838. Since the ideology of rehabilitation was predicated on relatively long sentences—subduing a prisoner’s ‘‘will’’ could not be achieved in a mere few weeks—the district prisons were not considered fully part of the effort to reform criminals. Less effort was made to find work that prisoners could do within the prison walls, which meant that penal gangs continued to be used by many prisons, despite the Colonial Office’s opposition to the practice. These problems were exacerbated by the assembly’s and local vestries’ reluctance to provide funds for public expenditure of any sort. The Jamaican sugar economy had been in decline since the early nineteenth century and slumped after the abolition of slavery. Britain’s removal, in 1846, of protectionist tariffs on sugar imported from outside the empire increased the Jamaican sugar industry’s problems. Whereas 653 sugar estates existed in 1833, only 300 remained in 1866.77 Production of peasant crops such as arrowroot, pimento, and ground provisions increased in the same period, but planters did not interpret this as economic growth. Instead, they viewed the labor devoted to peasant production as ‘‘idleness,’’ because it subtracted from labor provided to their estates. Although members of the Town Party, whose social base was colored merchants and professionals rather than planters, were not generally supportive of the planters’ needs, they joined with the planters in opposing the Sugar Duties Act and in advocating ‘‘retrenchment’’ of 138

Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 155 of 308

all public expenditure in the late 1840s and early 1850s.78 Debates over prison reform thus took place in an atmosphere of financial stringency.79 Nevertheless, in the mid-1840s, the Jamaican penal regime shared the goals of modern penal systems as they have been described in the standard ‘‘revisionist’’ histories of punishment.80 Jamaican prisons aimed to discipline their inmates through routine and tried to reconstruct their subjectivity. Daughtrey claimed that ‘‘[t]he severity of a well regulated prison consists in a steady pressure of the discipline on mind and body,’’ an idea which anticipates Foucault’s analysis of the ‘‘capillary’’ and ‘‘productive’’ nature of modern power. To be sure, much remained of the unreformed prison system, especially in the minor prisons, but this was hardly a peculiarity of Jamaica.81 If anything, the changes in Jamaican penality were more dramatic than those in the metropolis. Prison administration was centralized in Jamaica to a degree that would not be achieved in Britain until the 1877 Prisons Act. By 1845, Jamaican law actually permitted less corporal punishment than did British law. Flogging was no longer used as either punishment for crime or for infractions against prison discipline, except in rare cases.82 The treadmill, removed from all Jamaican prisons in 1840, continued to be used in British prisons throughout the nineteenth century.83 By several of the penal reformers’ measures, and in their own gendered metaphor, the colonial ‘‘daughter’’ had outgrown her ‘‘mother’’ country.84

The Return of the Repressive

Tseng 2004.8.31 07:45

As confidence in rehabilitation waned, a growing campaign developed in favor of those methods of punishment that had recently been abandoned. Debate over penality in the 1850s tended to focus on which types of crime should be punished by flogging, with most contributions advocating the addition of crimes to the list. Discussion of how prisons should be organized was mostly displaced by arguments assuming the failure of the reforming prison and advocating flogging in its stead. Several historians have noted that whipping as a punishment for crime and as a method of controlling prisoners reentered the judicial and penal systems in the period leading up to the Morant Bay rebellion of 1865.85 They have usually focused on the act passed in early 1865 that made second and subsequent convictions for larceny—the most commonly prosecuted crime—punishable by flogging.86 The focus on larceny implies a relatively straightforward class interpretation: as Swithin Wilmot puts it, the whip was used ‘‘to guard the property of the planters.’’ 87 Such an interpretation seems justified by statements such as that of the Colonial Office official who argued penality and politics

139

7124 Paton / NO BOND BUT THE LAW / sheet 156 of 308 Tseng 2004.8.31 07:45

in 1864 that ‘‘[w]hen thieving reaches a point at which it interferes with production, it certainly seems to me time to whip, and to whip well.’’ 88 It is also supported by the fact that rising levels of theft of food crops were associated with the widespread drought of 1863–65, which was exacerbated by the scarcity of wage work available to peasants whose crops had failed. The 1865 Whipping Bill’s advocates presented it as a response to this rise in theft.89 While rising theft was clearly significant, as an explanation of the reintroduction of flogging it overlooks other important developments in the criminal justice system and cannot entirely account for the shift. For one thing, even if increasing theft explains the implementation of a punishment felt to be harsh, it does not explain why whipping was considered the solution. In fact, by 1865 there was a substantial post-emancipation set of precedents for the use of flogging as a judicial punishment, and flogging thus seemed a ‘‘natural’’ choice. Although larceny came to be seen as the defining aspect of the ‘‘crime problem’’ in the 1860s, the reintroduction of flogging into the penal system began in 1850, in a period when the argument in its favor was made on an eclectic variety of grounds and did not focus primarily on property crime. A wide variety of people within the political elite supported flogging: the assembly passed the 1850 bill with almost no opposition.90 The 1850 act enumerated a long list of crimes for which up to 117 lashes could be inflicted: rape, assault with intent to commit rape, sodomy, assault with intent to commit sodomy, bestiality, attempt to commit bestiality, carnally knowing children ‘‘of tender years’’ or attempt to commit that crime, and arson.91 Thus, with the exception of arson, the named crimes involved sexuality. Property crime could lead to corporal punishment because of a provision that flogging could be used to punish a man convicted of a felony if he had previously been convicted of a felony, but lack of systematic record keeping meant that in practice this provision was difficult to apply. Of the twenty-nine cases I have found in which flogging was used in the first thirty months of flogging’s relegalization, seventeen were for crimes involving sexuality (bestiality, rape, attempted rape, and ‘‘unnatural’’ assaults), while eight were for thefts. Of the remaining four cases, three were for arson and one for assault with intent to murder.92 Between 1850 and 1865 several laws augmented the categories of crime that could be punished corporally. By 1860 these included burglary; obeah; and maliciously cutting, maiming, or destroying cattle or sheep, as well as the previously named offenses, when committed by men.93 Nevertheless, flogging continued to be used primarily against men convicted of sexual crimes. Of a further thirty-four cases reported between Novem140

Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 157 of 308 Tseng 2004.8.31 07:45

ber 1853 and December 1864, twenty-three were for sexual crimes, four for obeah, five for arson, one for violence, and one for larceny.94 The debate about flogging also focused on crimes of sexuality (often coded as crimes of ‘‘the passions’’), and the post-emancipation period saw a dramatic rise in prosecutions for sex offenses, for reasons still to be explained. The acts reintroducing flogging were part of a wider moral panic about sex crime in this period.95 Justice MacDougall praised the 1850 act for its likely effect in preventing ‘‘crimes of this disgusting and dangerous character.’’ 96 Another judge, passing a flogging sentence in a bestiality case, declared that he did so as a response to a crime that was ‘‘disgracing this country from East to West.’’ 97 In 1852, a judge singled out rape, sodomy, and assault, as well as larceny, as ‘‘besetting crimes of the people,’’ a characterization which led the Falmouth Post to call for the flogging of ‘‘the depraved beings, who are the slaves of unruly passions.’’ 98 John Castello, the Post’s editor, was a free colored man; his newspaper had played a significant role in publicizing abuses in prisons during apprenticeship, and as an assembly member he supported the Town Party. His adoption of the pro-flogging argument demonstrates the extent to which this point of view united the urban middle class with the planters. A major impetus for the revival of flogging seems to have been the desire to use corporal punishment as a response to crimes that intimately involved the body of the criminal. The convicts’ illicit—and sometimes coercive—corporeal pleasure was to be met with the infliction of bodily pain. As some of these quotations already indicate, arguments in favor of flogging often invoked a harshly racist language about the nature of the people who would be subjected to the punishment. One of the earliest calls for the reintroduction of flogging, made in 1842, argued that crimes were ‘‘confined to one class of the community, who are the most base and barbarous of a savage race; and indeed the very outpourings of the refuse of even ‘African humanity.’’’ The article described a black convict as ‘‘possess[ing] no other feelings than the physical sensations of the beast’’; individuals of this ‘‘kin and kind,’’ it continued, ‘‘ought to be dealt with as brutes are, and flogged into tameness and submission.’’ 99 Ten years later the Falmouth Post’s call for flogging of those who were ‘‘slaves of unruly passions’’ argued that it was necessary because the prevalence of sexual and violent crimes demonstrated that ‘‘Afric’s sons and daughters, are in a fair way of relapsing into their ‘original state of barbarism.’ ’’ 100 Both arguments thus explicitly linked the supposed need for flogging to the Jamaican population’s African origins, invoking a contrast between an implicitly European civilization on one hand and African barpenality and politics

141

7124 Paton / NO BOND BUT THE LAW / sheet 158 of 308 Tseng 2004.8.31 07:45

barism/savagery on the other. The first article also compared Africans to ‘‘beasts’’ and ‘‘brutes.’’ Both used supposed racial difference to argue for a divergence in Jamaica’s penal policy from the British and North American ‘‘norm’’ that Daughtrey advocated. This dehumanizing racism fit easily with the idea that African Jamaicans were especially prone to crimes against the sexual order. The ability to control one’s sexual urges was assumed to be a mark of a high level of civilization. Thus, Jamaican men’s apparent failure to control their ‘‘passions’’ demonstrated that their bodies were not properly subject to control by their minds and therefore that punishment should be addressed to the body rather than the mind. Rather than aim to raise criminals ‘‘up’’ to European standards, these arguments implied that descendants of Africans were permanently, unchangeably inferior. Commentary on flogging often invested it with an almost magical power to change the pattern of crime. A letter to the editor of the Falmouth Post argued that if the courts were able to flog offenders, they would ‘‘soon find the numbers of criminals decreased.’’ 101 Similarly, in 1865, Shaw, the general inspector of prisons who replaced Daughtrey, advocated flogging for larceny, arguing that ‘‘once it is known such a bill has become law, and a few examples have been made in the different districts of the island, there will be little heard of thefts of provisions in the rural districts.’’ 102 Flogging was assumed to be a more effective deterrent than was imprisonment, but the reasons for this were rarely articulated. Shaw and those who shared his point of view believed the lash to have symbolic power that outweighed its actual use. Almost entirely ignored in the process of introducing these new laws was the fact that they applied only to men. Although the initial 1850 law did not make a distinction between men and women, this seems to have been an oversight. When that law was renewed the following year, it specified that ‘‘male’’ offenders could be flogged.103 I have found only one reference to this exclusion of women: an aside in an editorial in the Falmouth Post. Arguing for the extension of corporal punishment to the crimes of obeah, myalism, assault on children ‘‘of tender age,’’ and arson, the editorialist argues that ‘‘corporal chastisement, from which, of course, females should be exempt,’’ is essential to the ‘‘suppression’’ of these ‘‘evils.’’ 104 Despite alarmist arguments about the necessity for corporal punishment, no one expressed anxiety that this new form of punishment could not be applied to women. Even the editorial quoted earlier that argued in favor of flogging as a response to the reversion to barbarism of ‘‘Afric’s sons and daughters’’ (my emphasis) paid no attention to the exclusion of the ‘‘daughters’’ from this new punishment. A dramatic shift in attitudes 142

Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 159 of 308 Tseng 2004.8.31 07:45

had clearly taken place since the 1830s, when the claim was frequently made that women were more disorderly than men.105 It seems that, by the 1850s, the archetypal criminal was so firmly male that no alternative harsh punishment for women was thought to be necessary to parallel the flogging of men. The exclusive concern with men reinforces the point that the reintroduction of flogging was connected more with anxiety about sexuality than with anxiety about property crime. Bestiality, sodomy, and rape, for which flogging was most commonly used, were, by custom or legal definition, strongly associated with men. Women’s withdrawal from the paid labor force perhaps also meant that planters were less concerned with controlling their behavior than that of men.106 As a result, the 1850s and ’60s saw a growing differentiation between penal approaches to women and to men. In the discursive realm, women no longer figured in the debate about punishment. Eventually, discussion about flogging shifted toward property crime, especially ‘‘praedial larceny’’ (the theft of still growing crops), which came to be seen as the most significant problem for Jamaican criminal justice. The Whipping Bill, making flogging the punishment for that crime, was passed in 1865. In 1866, in the wake of the Morant Bay rebellion, the Jamaican assembly abolished itself, and Jamaica became a crown colony ruled by a governor appointed in London. This change did not disrupt the trend toward corporal punishment.107 In 1872, district courts gained the right to pass sentences of flogging, which had previously been reserved to higher courts. In 1877, the punishment of flogging was extended once more: it could now be added to sentences for first offenses of praedial larceny, of whatever value.108 Flogging was maintained as a punishment for crime for most of the twentieth century.109 The reintroduction of flogging was neither a return to the days before penal reform nor simply a holdover from slavery. Rather, corporal punishment was integrated into a modernized penal system, as slavery had integrated prisons and flogging. Imprisonment continued to be the main punishment. Floggings were to take place in addition to, rather than instead of, imprisonment. Convicts sentenced to flogging usually received relatively long sentences, as well. For instance, James Smith, a ‘‘mariner’’ sentenced in 1851 to thirty-nine lashes for an ‘‘unnatural offence’’ committed against a fifteen-year-old boy, was also sent to the penitentiary for three years.110 Henry Walker similarly received sixty lashes in addition to three years’ imprisonment for bestiality.111 Imprisonment was no longer accompanied by high hopes of reconstructing the personality of the inmate, but the basic pattern of life within the prison was not much changed from the 1840s. Meanwhile, the attention to uniformity, centralpenality and politics

143

7124 Paton / NO BOND BUT THE LAW / sheet 160 of 308

ized control, and precise ordering that had earlier been used in reforming the prisons was now applied to corporal punishment. The floggings of the 1850s and ’60s differed from those of the slavery period in several ways. Most obviously, they were inflicted on the authority of the state rather than the master. But they also differed from the floggings handed down as punishments by slave courts. Their execution was intended to be orderly and controlled. Judges were instructed to specify precisely the number of lashes to be inflicted and the amount of time that was to pass between their infliction, and they had to restrict themselves to limits set by law. A series of specified people, including medical doctors and constables, had to be present to observe the punishment. Floggings were not to be carried out by fellow convicts, as they often had been before 1839. In 1865, the penitentiary acquired a ‘‘model cat [of nine tails]’’ to be used for all whippings that took place within its walls. Shaw reported that this whip weighed nine ounces, with the handle weighing six and three-quarters ounces and the tails two and onequarter ounces. Its nine cord tails, on each of which were three knots, were thirty-three inches long, while the handle measured nineteen and three-quarters inches.112 The specificity of such rules and descriptions implies a concern to overcome what Jeremy Bentham had identified as the major problem with flogging as a means of discipline: its lack of uniformity. Lashes, Bentham pointed out, inflicted a highly variable degree of pain, depending on the disposition and strength of the person inflicting them.113 And yet flogging was still, as it had always been, the infliction of physical violence and pain by one human being on another. Jamaican legislators and policymakers now disregarded the other aspects of the penal-reform and antislavery critique of flogging: that it was inherently indecent; that it degraded the individual who suffered it (and also those who inflicted it and observed it); and that for these and other reasons it failed to reform criminals. Indeed, some now claimed that flogging itself could act to reform criminals. Advocating a second whipping of criminals halfway through their sentences, the Colonial Standard argued that such a practice would ‘‘have more effect in reclaiming them from their evil ways than would a sentence of imprisonment for the term of their natural life.’’ 114

The Privatization of Punishment

Tseng 2004.8.31 07:45

Around the same time that flogging was reintroduced several experiments took place that allocated direct authority over significant numbers of convicts, along with the product of their labor, to private individu144

Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 161 of 308 Tseng 2004.8.31 07:45

als. In 1854 a ‘‘Penal Servitude Act’’ was passed, allowing the governor to grant a license for the release of convicts who had served more than half of their sentences. Those so licensed were bound to serve as agricultural laborers for three-quarters of their remaining sentences, during which time they would work for six days a week and receive 9d per day, plus lodging, medical attendance, and a suit of clothes. They had no choice over where they were sent or to whom they were bound. The license could be revoked at any time, including on the demand of the employer.115 Whereas work in the penitentiary was supposedly designed to accustom prisoners to regular work as a moral lesson so that they would undertake wage labor in the future, the Penal Servitude system more directly used prisoners’ labor for its immediate productive capacity. The system shared some characteristics with the British Ticket of Leave system, also introduced in 1853. As in Jamaica, British convicts who had served more than half of their sentences were released from prison on condition that they not reoffend. The British ‘‘ticket of leave men,’’ however, did not have to work in any specific field of labor, were not assigned to any one employer, nor were their rates of pay and conditions of employment established by law.116 More similar was the system of convict leasing that existed in the U.S. South from the Civil War until around World War One. As with Jamaican convict leasing, employers gained direct control over the labor of prisoners. Unlike in Jamaica, many Southern states all but dispensed with their prisons. States contracted to supply convicts to employers, who paid a fee per convict per year to the state, and were supposed to provide convicts with food, clothing, housing, and medical attention—although the supplies provided were rudimentary at best. Nor did U.S. convict lessors pay wages to their convicts. The American system, however, was far more extensive than its Jamaican counterpoint, because the U.S. South underwent an economic resurgence in the late nineteenth century, creating a wide range of industries in search of cheap and flexible labor. Convicts played a significant role in the rebuilding and industrialization of the South after the devastation of the Civil War. In the first year of the Jamaican penal servitude act’s operation 159 convicts were released to 14 different employers, who took between 2 and 20 men at a time.117 Robert Russell received six convicts on July 30, 1855 and a further six in October of that year, with all six original men still working for him. These men were serving sentences of between 18 months and 2 years and were supposed to work for Russell for periods of between 72 and 276 days.118 The employers were, overwhelmingly, part of the island’s political penality and politics

145

7124 Paton / NO BOND BUT THE LAW / sheet 162 of 308 Tseng 2004.8.31 07:45

elite. All but two who received convicts in 1855 served as members of the House of Assembly at some time between 1830 and 1866, and seven of them were actually sitting members of the assembly that voted on the convict lease legislation.119 Between them these employers acquired more than 27,000 days of cheaper-than-usual labour.120 Beneficiaries of the lease system were not just planters: Robert Russell, who had been a member of the assembly since 1835, was colored, a supporter of the Town Party, and one of the most consistent pro-government voters.121 Robert Osborn also took 9 convicts. The desire for cheap and controllable labor cut across the political spectrum. Probably more important to the employers than the cost of this labor was its reliability. Ever since slavery ended, Jamaican planters had complained about the unreliability of the labor supply. Stephen Harmer, an overseer on a coffee plantation, wrote in 1840 that ‘‘one half of the negroes are not working and they that do only work four days in the week and then not more than 6 or 7 hours per day so that we find it very difficult to procure labour. Consequently several fine properties are going almost to ruin.’’ 122 His complaint echoed those of employers across the world when dealing with a labor force that had some direct access to its own land. As a modernizing English agricultural magazine put it in 1800, ‘‘When a labourer becomes possessed of more land than he and his family can cultivate in the evenings . . . the farmer can no longer depend on him for constant work.’’ 123 As in England, so in Jamaica: workers’ refusal to subordinate the labor needs of their own land to the needs of employers, and their consequent practice of undertaking wage labor for intermittent periods, was particularly galling. In Jamaica, as happened throughout the colonial world, workers’ ‘‘unreliability’’ came to be seen as a characteristic of their ‘‘race.’’ Two years after his first letter Stephen Harmer’s analysis had hardened; he was now convinced the problem was due to the innate character of the ‘‘negroes’’ who, he had concluded ‘‘are naturily [sic] a Lazy set of individuals and there wants are but few . . . they are satisfied and will lay down under their Plantain trees and sleep sooner than work for fair wages.’’ 124 John Daughtrey reported that planters found convict workers to be ‘‘the most useful people on the estate and an example of industry and civility to all the rest.’’ His attribution of this to the beneficial influence of their experience in the penitentiary suggests his conception of the meaning of the ‘‘reform’’ that institution was supposed to impart. It is more realistic, though, to understand the planters’ comments as a reflection of the compliance of forced, relative to free, workers.125 The ticket-of-leave system thus functioned similarly to the state-subsidized 146

Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 163 of 308

immigration of indentured workers from India and Africa that also took place in this period.126

Punishment and ‘‘Race’’ Thus, by 1865 the reformatory ideal had been largely transformed. To some extent the language of reform persisted, but its context and meaning had changed. There was no longer an expectation that Jamaicans could be ‘‘raised up’’ to the civilized standards of Europeans. At the symbolic level, the ideal punishment was now a flogging inflicted on a male criminal. The island’s prisons continued to contain large, and growing, numbers of prisoners, but there was little talk of their moral capacities. The reasons for the alleged failure of rehabilitative imprisonment were much debated, with two major arguments put forward. First, the prisons were said to provide living conditions that were too comfortable to pose real hardship. An editorial in the Falmouth Post asked rhetorically, ‘‘What does the experienced thief care about being sent to hard labour in the House of Correction for two or three weeks? He knows, that during the time he remains there, he will be well housed, well clothed, and well fed, and with this knowledge he takes the chance of detection.’’ 127 Another newspaper, the Colonial Standard, connected the supposedly comfortable living conditions in the penitentiary directly to the ‘‘nature’’ of the Jamaican population: A mere term of imprisonment in the General Penitentiary, excellent as is the system there carried out, and terrible as it would be to the educated, or man of refined mind, is, in sober truth, rather a temptation to commit crime than a punishment to the debased and brutal minded wretches with which alas! our community is thronged, and who compose the mass of the felons of our isle!—Within the walls of the General Penitentiary they are better cared for than they are, or can hope to be, when at liberty.128

Tseng 2004.8.31 07:45

Jamaicans in general—the community is ‘‘thronged’’ with them—are thus ‘‘debased and brutal minded,’’ in contrast to the ‘‘man of refined mind’’ who appears to live elsewhere. This argument referred to the problem of ‘‘less eligibility’’ that had also been important during slavery and apprenticeship: a penal institution must provide its inmates with a standard of living worse than they would get in the world outside or else it would act as an incentive to crime. Although Jamaican policymakers no longer faced the problem of ensuring that conditions in prisons were penality and politics

147

7124 Paton / NO BOND BUT THE LAW / sheet 164 of 308 Tseng 2004.8.31 07:45

worse than those of slaves, the less eligibility problem had not disappeared. The lower the standard of living outside, the more difficult it was to create an institution that fell below it without injuring the health of its inmates. Those who made this argument effectively admitted that Jamaicans were too poor for rehabilitative imprisonment. Their argument was as much as a comment on the poor conditions of those outside the prisons as one on conditions within them. On first sight, this may seem ironic, given that a commonly made racist argument of the time was that Jamaicans were ‘‘idle’’ because the bountiful and fertile land in which they lived meant that they did not need to work.129 In fact, the two arguments could reinforce the racist conclusions drawn from each: Jamaicans had a low standard of living because they were idle rather than because of the history and contemporary economic and social position of the island. Therefore, the fact that it was difficult to produce a penal institution that provided an inferior standard of living led to the condemnation of the people’s supposed lack of a work and consumer ethic rather than to a critique of either Jamaica’s position in the world economy or of the policies of Jamaican and imperial elites that deliberately sustained this position. The second argument, which could be combined with the first, relied even more explicitly on ideas about ‘‘race.’’ Commentators on penality repeatedly claimed that the desire to separate oneself from convicted criminals was a mark of civilization. People in Jamaica, they argued, were not civilized enough to realize that they should stigmatize criminals. For instance, in 1840 Stipendiary Magistrate W. A. Bell decried the lack of ‘‘moral courage’’ among the peasants in his area, as shown by their refusal to report suspicions about who had perpetrated crimes to the authorities.130 An editorial in the Falmouth Post in 1851 claimed that criminals in Jamaica ‘‘care nothing about the temporary deprivation of liberty’’ because ‘‘when discharged from a district prison or the penitentiary, they are regarded as ‘martyr,’ and received with open arms by their former associates, who are not yet so civilized as to shun companionship with such depraved characters.’’ 131 Similarly, another magistrate commented that communities would welcome back a member who had been imprisoned ‘‘more as a martyr than a criminal.’’ 132 According to a letter to the editor of the Falmouth Post, the problem was one of civilization. ‘‘When the ignorant, half-civilized negro is convicted of a too free indulgence in one of his besetting sins, then his sympathizers exclaim—‘ah, my brudder, I wish you well through your trial.’’’ 133 Again, the problem is not merely ‘‘indulgence’’ in crime (note the implication in the term indulgence that the problem is a lack of self-control), 148 Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 165 of 308 Tseng 2004.8.31 07:45

but even more seriously, the criminal’s peers’ refusal to condemn him. Perhaps the epitome of this view was expressed by Shaw in 1865: A thief or any other criminal does not lose caste from having been in the penitentiary. On his discharge, he is as well received by his relatives, comrades and friends, as if he had merely returned from a long journey. He does not feel the bitter disgrace that criminals in other countries do on being let out of prison; consequently, the terror or irksome feeling that his confinement in the penitentiary may have caused soon wears off, and he is ready, on the least temptation, to commit crime again.134 Shaw concluded from this that penitentiary punishment could not work in Jamaica. Because of the failure of family and friends to stigmatize criminals, imprisonment did not serve as the ‘‘terror to evil-doers’’ that it should. It functioned only as a passing phase in the life of an inmate rather than as a long-standing marker of difference. In the new logic, the reform of prisoners was at once utopian and unnecessary. The obvious replacement was whipping. Throughout their discussions of Jamaicans’ failure to stigmatize criminals, commentators worked with a conceptual opposition between the Jamaican population, on the one hand, and an imagined ‘‘civilized’’ (implicitly, British) group with a much deeper respect for the law, on the other, as is demonstrated by the characterization of Jamaicans as ‘‘halfcivilized’’ or ‘‘uncivilized.’’ The opposition—which idealized and exaggerated respect for law among the British population—revolved around the idea of shame. In civilized societies, according to this argument, the mere fact of having been in prison was shameful. The fear of being shamed by being marked out as a former prisoner (that is, a criminal), rather than the fear of what would happen in prison per se, was what deterred most people from committing crime. Thus, as Shaw had put it, Jamaicans did not feel the ‘‘disgrace’’ felt by criminals in ‘‘other countries.’’ In Jamaica (and, by extension, other uncivilized or colonial places), going to prison was not shameful, because the population in general understood the prison sentence not as a sign of wrongdoing but, rather, as signifying resistance (or ‘‘martyrdom’’). To quote again from the Falmouth Post: ‘‘In a country like this, where the lower classes are not yet sufficiently intellectual or moral to repudiate an association with parties who have legally expiated their crimes within the walls of a Penitentiary or District Prison, the knowledge that imprisonment for five or six months has no terrors which need be dreaded, has a most pernicious effect.’’ 135 In such a society, however harsh the experience of imprisonment, it did penality and politics

149

7124 Paton / NO BOND BUT THE LAW / sheet 166 of 308

not deter people from committing crime, since fear of the penitentiary itself could never be sufficient to prevent crime. The ‘‘terrors which need to be dreaded’’ could only be established through fear for the body. Such logic implicitly accepted that once a person had been imprisoned, he or she was likely to reoffend. It assumed that the penitentiary’s primary function was the discipline of those outside rather than those within its walls. It was thus significantly removed from the discourse of earlier reformers, whose attention was clearly focused on prisoners. This new argument focused more on the moral failings of the population as a whole and thus had extensive implications for policy beyond the penal. That the rehabilitative penitentiary project ‘‘failed’’ in Jamaica should not surprise us. Eventual rejection is, after all, the most frequent fate of penal programs. Indeed, Jamaican opinion was congruent with a general trend in European and North American thought about crime and penality in this period. By the early 1860s, reformatory prisons were under severe attack in Britain, and a series of acts between 1862 and 1864 legislated for physically harsh prison regimes that included extensive treadmill labor and restricted diets. The effort to break down and rebuild the character of the criminal was replaced by a stress on making the experience of imprisonment one of physical hardship.136 In 1863, following a moral panic around violent robbery, termed ‘‘garroting,’’ a ‘‘Garrotter’s Act’’ introduced whipping as a punishment for this crime. However, while this fed into a discourse that facilitated the tightening of prison regimes, it did not establish a trend toward the reintroduction of corporal punishment in Britain.137 Jamaica’s penal system could not have changed as it did without the change in British ideas on penality. The Colonial Office of 1838 would not have allowed a piece of legislation such as the 1865 Corporal Punishment Act (the Whipping Bill) to take effect. But what happened in Jamaica was not just a more extreme version of a reactionary trend in Britain; the difference was qualitative as well as quantitative. In Britain, the harsh penal measures prescribed in the 1860s were understood to be a way of dealing with a hardened criminal minority of the population, the ‘‘dangerous classes,’’ or ‘‘residuum.’’ 138 This was part of a process by which a substantial proportion of workers were constructed, by their own leaders as much as by the elite, as ‘‘respectable.’’ Thus, during the 1862 ‘‘garroting panic’’ an article in the Observer contrasted the honest workers of Lancashire with London’s morally degenerate garroters:

Tseng 2004.8.31 07:45

[I]f we look at the distressed artisans of Lancashire who are starving, and have poor weeping wives and hungry children looking up to them 150

Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 167 of 308

for bread, which would almost justify a man helping himself to what does not belong to him, we find crime has greatly diminished. It is not hunger that drives a man to crimes like these; it is more probably caused by a life of idleness and debauchery. Thieves from childhood, with the prison stamp branded on their souls, they are lost to shame and self-respect, and look to jail as a contingency which is not a bad one, after all, to put up with.139 While such ‘‘thieves from childhood’’ were to be scorned and feared, they nevertheless existed in opposition to the ‘‘respectable’’ working class. The respectable formed the majority of the population, and their male household heads could be trusted enough to be given the vote in 1867.140 In contrast, in Jamaica the whole non-elite population, including the peasant proprietors who in classic liberal theory were seen as having ‘‘independence’’ and a real property-holding stake in society, came to be seen as criminal and irreformable. This is the real difference between the failure of the rehabilitative prison project in Britain and Jamaica. In discussions of the need for flogging, the Jamaican masses as a whole filled the conceptual space of the ‘‘residuum’’ in Britain, becoming ‘‘other’’ to the respectable. In Britain, comparisons were made between different groups within the population; in Jamaica, the criminal was made to stand in for the population as a whole, which was then compared with an idealized external group. In the process, as is common in colonial discourse, divisions and distinctions within the colonized population were erased. Governor Edward John Eyre’s answer to a memorial from peasants in the parish of St. George, which complained of badly maintained roads, unemployment, and destruction of the petitioners’ crops due to livestock trespass and theft, clearly demonstrates this. Eyre argued that the problem was due to a low level of morality and ‘‘civilization’’ among the petitioners. He failed to recognize their claim to respectability, implying that they themselves produced the ‘‘idle thieves’’ about whom they complained:

Tseng 2004.8.31 07:45

I wish to see them [small settlers] make larger and better dwellings, distribute their families in separate sleeping rooms at night, make provision for medical attendance, pay more attention to their ordinary daily dress, . . . devote more time to the care and instruction of their children, train them up to habits of industry and honesty. . . . You justly complain of the insecurity of property, and that whilst the honest labourer plants, the idle thief reaps; but the remedy is chiefly with yourselves. It is the rising generation, the young, and the strong, and the healthy of both sexes, who fill our Gaols, and such must penality and politics

151

7124 Paton / NO BOND BUT THE LAW / sheet 168 of 308 Tseng 2004.8.31 07:45

continue to be the case unless the small settlers and other residents in the country districts, improve in civilization.141 After touring the island and receiving many memorials of distress similar to that from St. George, Eyre concluded that harsher laws against larceny, including punishment by flogging, were needed. While similar comments were directed at the British ‘‘dangerous classes’’ in this period, what is notable here is the direction of such moralizing rhetoric at almost the entire Jamaican population, including ‘‘respectable’’ smallholders. Unlike in Britain, where the franchise was being extended, Jamaicans were soon to be denied any input into their government, as direct rule from London replaced representative government in the wake of the Morant Bay rebellion. As Catherine Hall has pointed out, the debates about the British Reform Act of 1867 and the Jamaican ‘‘crisis’’ took place at almost exactly the same time in Britain and were conducted with reference to each other.142 The new interpretation of the Jamaican elite, both planter and urban, was part of a broader intellectual shift in dominant understandings of ‘‘race’’ throughout the Anglo-American world. Important events and processes in that shift included the Indian rebellion of 1857 that ‘‘proved’’ to many in Britain that it was impossible to transform colonized subjects into Englishmen and Englishwomen, and the increasing perception that emancipation in the West Indies had ‘‘failed.’’ Out of a paradigm of race in which the difference of the other could be dissolved through changing their circumstances and, in particular, the educational and disciplinary processes to which they were subjected, emerged an understanding of permanent, threatening alienness, inferiority, and barbarism. The shifts in understandings of punishment in Jamaica both were part of and helped to construct and develop these intellectual changes. These ideological developments in Jamaica have close parallels in several other colonial and postcolonial societies where changing penal regimes have been studied. In Peru and Puerto Rico, as in Jamaica, the ‘‘failure’’ of rehabilitative imprisonment confirmed in the mind of the dominant class that the population as a whole was racially other, inferior, and barbarous.143 As Kelvin Santiago-Valles comments with regard to Puerto Rico, the propertied classes used the penal system ‘‘to ideologically represent the majority of the population in the island—particularly the poor peasantry—as being both lazy and depraved.’’ 144 The process of racialization reflects the resistance of colonized peoples to being entirely dominated by the low-wage capitalist economies that colonial powers hoped to introduce or expand. Frederick Cooper’s comment in regard 152 Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 169 of 308 Tseng 2004.8.31 07:45

to colonial East Africa that ‘‘[l]abeling the African worker as lazy was a way of acknowledging the limits of dominance while attributing these limits to the basic nature of the dominated, rather than to the contradictions of exercising power,’’ could equally be applied to Jamaica and Puerto Rico.145 Similar problems in Britain had been largely overcome by the middle of the nineteenth century. Workers were less accustomed to celebrations such as ‘‘St. Monday’’; they were more fully proletarianized. Rather than struggle, as did Jamaicans, to resist full-time subordination to wage labor, their battles over wages, working hours, and conditions at work were largely about controlling the terms of that labor. Although cultural differences in attitudes toward work discipline continued to exist in Britain, they were identified as problems of class: as manifestations of divisions within the society. In colonial societies, in contrast, the idealized reference point against which popular behavior was measured was not internal, as it was in Britain, but external. Foucault argues that the purpose of penitentiary punishment is not to reform prisoners but to create a category of ‘‘delinquents’’ whose existence will both divide the popular classes and lead to their acceptance of state regulation. ‘‘For the observation that prison fails to eliminate crime,’’ he claims, ‘‘one should perhaps substitute the hypothesis that prison has succeeded extremely well in producing delinquency, a specific type, a politically or economically less dangerous—and, on occasion, usable—form of illegality; . . . in producing the delinquent as a pathologized subject. The success of the prison, in the struggles around the law and illegalities, has been to specify a ‘delinquency.’ ’’ 146 As Ann Stoler has demonstrated, Foucault’s work lacks sustained consideration of colonialism and race.147 His focus on Europe means he does not consider societies such as Jamaica, where penitentiary punishment and flogging were intertwined in the penal system. As a result, he constructs a model of modern power that is too monolithic and unidirectional. Nevertheless, his argument provides a clue to what was happening in Jamaica. In Jamaica, elites had no real desire to create the opposition delinquent– ordinary worker; rather, the penal regime emphasized the oppositions colonizer–colonized; white–black; Briton–Jamaican. Discussions of punishment consigned the whole population to the category of ‘‘delinquent.’’ This contrast, incidentally, provides support for Foucault’s point with regard to penitentiary punishment in Europe and North America. The need to spell out just how the penitentiary program had failed led penal authorities in Jamaica to state explicitly the argument which Foucault attributes to them but which was rarely articulated in Europe—that what mattered about the penitentiary was its branding of the prisoner as a penality and politics

153

7124 Paton / NO BOND BUT THE LAW / sheet 170 of 308

criminal. At the same time, the Jamaican experience might lead us to rethink Foucault’s implicit condemnation of the ‘‘carceral society’’ as dominated by the most insidious and worst form of power. Certainly, Daughtrey’s prison policy involved domination, as his use of terms such as mastery makes clear. Nevertheless, the perceived failure of this policy did not lead merely to the reestablishment of corporal punishment; it also had broader consequences. The conclusions drawn in the 1850s and early 1860s about the nature of Jamaicans prepared the way for the extreme violence of the response to the rebellion at Morant Bay, which included the death of 439 people, the flogging of 600, and the burning of 1,000 homes.148 Given that this kind of violence was a common response of colonial powers to civil disturbances, it seems naive to distinguish the carceral mode of power as the problem of the modern world. Rather than conceptualizing changes in modes of power as undergoing a sharp break, we should recognize the importance of the ongoing use of violent domination within modern colonial societies, both alongside and intertwined with forms of carceral power.

Tseng 2004.8.31 07:45

penal developments in post-emancipation Jamaica did not follow the path we might expect, given the many accounts of the history of punishment in Europe and North America. Most accounts of this history argue that a shift took place from punishment focused on inflicting bodily pain to punishment that aimed to control the prisoner’s mind. Penality in post-emancipation Jamaica followed a different pattern. After a brief period in which penal reform followed a British model, new forms of corporal punishment were integrated into the penal system. This is not simply because Jamaica and other colonial societies were ‘‘backward.’’ We should not imagine Jamaica as following the same road as Britain but going more slowly; if anything, during the era of rehabilitative imprisonment, Jamaica was ahead. Although their paths later diverged, the goals and preoccupations of Jamaica’s administrators of justice were as modern as Britain’s. But Jamaica’s was a more violent, more coercive, and specifically colonial modernity. The dichotomous distinction between corporal and carceral punishment does not adequately describe the Jamaican experience. Both types of punishment in fact operated side by side in Jamaica in the post-emancipation period. Nor did Jamaica’s ‘‘heritage of slavery’’ simply return to haunt it, as some discussions of corporal punishment suggest.149 Racism was not simply a legacy of slavery; it was reformulated to redescribe a new situation. The brief interlude during which corporal punishment was not used was one of significant change in Jamaican social relations. Much changed, in154

Chapter Four

7124 Paton / NO BOND BUT THE LAW / sheet 171 of 308 Tseng 2004.8.31 07:45

cluding the relationship of the mass of the people to the state and to the plantation system, the decline of the power of the planter class, and the development of more complex hierarchies and power relations among freedpeople. The relationship between the penal complex of the late slavery period and that of the second half of the nineteenth century was not one of direct continuity. Arguments about penality did more than advocate particular policy options. They also postulated different positions about the nature of the Jamaican population, positions which constructed competing understandings of ‘‘race.’’ Rehabilitative imprisonment, as a goal, could only make sense on the understanding that individuals, including black Jamaicans, would respond in the same way to a given environment. This view could quite happily encompass the idea that Jamaicans were by nature or training passive and subservient, since those were the qualities that such imprisonment was designed to create. But such a view had to return to the claim that the people on which it focused attention were human. The arguments for flogging entailed the construction of a more overtly violent and dehumanizing racial discourse, in which black people were marked out not just by their passivity but by their brutality and lack of civilization. These arguments were significant not just for the implications they had for penal policy, but perhaps more so because they prepared the way for the indiscriminate violent repression that followed the 1865 Morant Bay rebellion. To The Times of London, the rebellion demonstrated that it was ‘‘impossible to eradicate the original savageness of the African blood.’’ 150 Violent repression could be easily resorted to because the Jamaican population had been placed firmly beyond the boundaries of the human community. Discussions about punishment and crime had played a significant role in locating Afro-Jamaicans beyond those boundaries.

penality and politics

155

7124 Paton / NO BOND BUT THE LAW / sheet 172 of 308

Chapter Five justice and the jamaican people

Your honor, perhaps you are right in telling me that Justice will come at last. But she has not come yet, and I will tell you the reason why. There were two vessels bound to Jamaica from England. One of them had Justice on board—the other had not. The vessel with Justice, went to the bottom, and the other safely arrived—so that you see Justice has not yet appeared in the island.—edwin thompson, 1845

Tseng 2004.8.31 07:45

According to the newspaper the Falmouth Post, Edwin Thompson directed these words to the judge at the quarter sessions court in the town of Falmouth, a significant port on Jamaica’s north coast, in August 1845. Thompson and another man had just been convicted of stealing calico from a shop and sentenced to two years hard labor in the General Penitentiary. Thompson’s words ‘‘appeared to create a serious impression on the minds of the ignorant,’’ the paper reported, referring to the local people assembled in the courthouse to watch and comment on the proceedings. His points were taken up by other defendants that day: Joseph Kelly, sentenced to twelve months’ hard labor in the penitentiary for stealing a pair of boots, turned to the judge and ‘‘cried out with a loud voice, that there was ‘no justice’ in the land for black persons,’’ while Charles Dickenson, who got twelve months for resisting arrest and assaulting the police likewise ‘‘raised the ‘no justice’ cry.’’ All three men also reportedly abused the

7124 Paton / NO BOND BUT THE LAW / sheet 173 of 308 Tseng 2004.8.31 07:45

court and cursed the police while being removed after their trials. Henry Roberts, the judge, increased Dickenson’s sentence to eighteen months in response to his attack on the court. Later that day, both Thompson and Kelly were said to be behaving ‘‘with great impropriety.’’ Both men refused to walk under police guard to Kingston, where they were to serve their sentences in the penitentiary.1 The Falmouth Post related the courtroom disturbances to a sermon given by the Baptist missionary William Knibb on the anniversary of emancipation a couple of weeks earlier. According to the Post, Knibb had argued ‘‘that there was no justice in the land for black persons,’’ and this ‘‘cry’’ had ‘‘gone its round among the lower classes.’’ Baptist congregations were in the 1840s a primary vehicle through which former slaves organized themselves politically, socially, and religiously, so this link is significant. Thompson’s resonant metaphor of the two ships— one of which, presumably representing emancipation from slavery, had arrived in Jamaica, while the other, representing justice for the former slaves, had sunk to the bottom of the sea—might well be his reworking and reapplication of an image first heard in the context of a sermon. However, given that the two ships metaphor has no obvious biblical referent, it could just as easily have originated with Thompson himself or derived from a different oral tradition. Whatever the source, the protest was clearly inspiring to other defendants and to at least some of the watching public. The fact that, according to the press report, ‘‘the majority’’ of people tried that day made some comment about the injustice of the system suggests that the protest may have been planned in advance among prisoners awaiting trial. It is notable that the defendants framed their comments in terms of racial oppression: they believed that there was ‘‘no justice’’ for black Jamaicans, not for poor Jamaicans. The protest was also characteristic in its identification of England as a potential location from which justice would emanate but one that had failed to make good on its promises. A similar ideology underlay the 1831 slave rebellion and other significant Jamaican popular uprisings.2 The events of this day in court provide an unusual glimpse of how some of those positioned as defendants within Jamaica’s penal system understood their situation. More commonly, defendants in court cases are silenced in the archival record. Judges’ words, in the form of addresses to juries and comments to defendants when sentencing, formed part of the deliberate theatricality of the law. There was a structured space for these speeches in trial proceedings, and they were deliberately addressed to a much wider range of people than those directly party to a case. Rejustice and the jamaican people

157

7124 Paton / NO BOND BUT THE LAW / sheet 174 of 308 Tseng 2004.8.31 07:45

ported at length, judges’ speeches used the particularity of individual cases to discuss broader issues about morality and order and to prescribe appropriate behavior. As Pierre Bourdieu comments, ‘‘[T]he judgment represents the quintessential form of authorized, public, official speech which is spoken in the name of and to everyone.’’ 3 In the previous chapter, judges’ speeches provided some of the sources that demonstrated how elite and official discussions of punishment and crime were used to debate wider issues about ‘‘race’’ and hierarchy. For defendants, however, there was little space within a trial in which they could speak and none in which they could comment on questions beyond the specificity of their cases, on issues such as whether or not black people could obtain ‘‘justice’’ in Jamaica. Thompson and the other defendants’ efforts to comment on the proceedings were in themselves ‘‘improper.’’ As Judge Roberts’s (legally dubious) increase of Dickenson’s sentence demonstrates, they were perceived by the authorities as violent attempts to destabilize the entire proceedings of the court. This chapter uses the archival traces of the unusual moments when those Jamaicans without authorized means of recording their opinions spoke or acted in ways that ensured they were heard. It does so in order to unpack the range of meanings, attitudes, and uses that members of the emerging peasant and plebeian classes in post-emancipation Jamaica gave to and found in official law and justice. The previous chapter showed how, in the post-emancipation period, elite discussions of crime and punishment constructed an increasingly dehumanizing discourse about the nature of the Jamaican population, a discourse in part founded on the claims that the Jamaican masses rejected the decisions of the courts, perceived prison sentences as misfortune rather than disgrace, and welcomed convicted criminals back into their communities as ‘‘martyrs’’ to an unjust and racist system. This powerful discourse was used to justify both the 1865 massacre at Morant Bay and the subsequent shift to an unrepresentative form of government.4 Its significance requires that we ask to what extent it was an accurate description of popular belief. Should we, as Ranajit Guha advocates, treat this discourse as an instance of the ‘‘prose of counter-insurgency’’ and read its claims about barbarism and immorality as inverted signs of popular adherence to an alternative ‘‘moral economy’’? Guha claimed that the ‘‘words, phrases, and, indeed, whole chunks of prose’’ used in official documents to express hostility to rural rebels ‘‘have much to tell us not only about elite mentality but also about that to which it is opposed—namely, subaltern mentality.’’ He gives examples which at first seem highly pertinent to the Jamaican case: offi158 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 175 of 308 Tseng 2004.8.31 07:45

cial designations of ‘‘fanatics’’ can be inverted to reveal ‘‘rebels inspired by some kinds of revivalist or puritanical doctrines,’’ while ‘‘lawlessness’’ indicates ‘‘the defiance by the people of what they had come to regard as bad laws.’’ 5 Guha’s reading of the term lawlessness could be transposed to the Jamaican context, where it would be relatively easy to argue that the official documents demonstrated mass popular rejection of both the law and the courts. Before rushing to this conclusion, however, we should remember that Guha’s Elementary Aspects of Peasant Insurgency in Colonial India is, obviously, about moments of rebellion. Because it assumes both the unitary character of subaltern consciousness and that the terms encoded in elite discourse have easily discerned antonyms, Guha’s technique is problematic in analyzing moments of less intense conflict. In post-emancipation Jamaica, simply inverting the terms of elite discourse to deduce popular consciousness is methodologically insufficient, inviting us to wash out rather than to address the complexity and ambiguity of popular mentalités. Sherry Ortner has argued that too great a concern with ‘‘resistance’’ in recent scholarship has led to ‘‘ethnographic thinness’’—that is, to a tendency to overlook the relations of power that operate within subaltern communities and a lack of precision about how oppositional mobilizations take place.6 In some Jamaican historiography, the focus on post-emancipation riots and rebellions has been at the expense of a broader understanding of the dynamics of daily life, with the result that we end up with a portrait of heroic but uncomplicated people who ‘‘endure[d] when they had to’’ and ‘‘resist[ed] however and whenever they could.’’ 7 Such historiography can lead to false assumptions of both the ease with which opposition can be organized and the unproblematic nature of what might be put in place of the status quo. This chapter aims to draw out the complexities that Ortner argues are essential to understanding resistance. To do this, it goes beyond the generalizations made in both elite discussions and inversions of them to look at non-elite Jamaicans’ interpretations of their interactions with the courts. Most writers on post-emancipation Jamaica, like the commissioners who investigated the Morant Bay rebellion of 1865, have focused on ordinary people’s alienation from legal proceedings, the deliberate unfairness of statute law, the bias of the courts toward planters, and poor Jamaicans’ inability to obtain justice from such courts.8 Similarly, scholars who have discussed the role of law in other Caribbean societies have usually described the courts and the law as biased, corrupt, and inaccessible to people beyond a narrow planter-based elite.9 Such accounts justice and the jamaican people

159

7124 Paton / NO BOND BUT THE LAW / sheet 176 of 308 Tseng 2004.8.31 07:45

tell an important part of the story but fail to capture the complexity of popular attitudes toward and experience of the law and the state. It is true that post-emancipation legislation deliberately restricted poor Jamaicans’ ability to gain a livelihood beyond the reach of the plantation. Vagrancy laws enacted in 1839 and 1840 specified prison sentences for those who ‘‘wilfully refused or neglected’’ to maintain themselves. An act of 1852 allowed landowners and constables who found hogs and goats— quintessentially peasant forms of livestock—on their land or even ‘‘fastened upon the public road’’ to destroy them, while estate cattle had to be taken to the pound.10 It is also true that many protests and riots in the post-emancipation period targeted symbols of the state’s judicial authority. Thus, in 1859 a serious riot in Falmouth took place during the trial of a group of people for disturbances arising out of disputed possession of land nearby. The crowd liberated prisoners awaiting trial and attacked various symbols of the criminal justice system, including the courthouse, the gaol, the police station, the houses of justices of the peace, and the police barracks.11 Similarly, the prison and courthouse were early targets during the Morant Bay rebellion, which was precipitated by a courtroom disturbance in which a crowd refused to allow the arrest of one of their number.12 Nevertheless, popular attitudes toward the law were far more complex than can be captured in a framework that divides Jamaicans into biased authorities and popular opposition. In addition to the attacks on state institutions described above, ordinary Jamaicans on occasion took their neighbors to court, physically attacked people who had been acquitted in court but who they thought were guilty, cheered the decisions of judges, cooperated to catch thieves, and handed over escaped prisoners to the authorities. Jamaicans from all walks of life tried to make use of the legal resources that were available to them, even while many of them perceived the formal legal structures of their society as fundamentally unjust. There was an abiding sense, usually framed in terms of racial oppression and solidarity, that the state’s institutions of justice were unfair. This belief was indicated, for instance, by one woman’s attempt to prevent a neighbor from giving evidence against her lover who was accused of murder. ‘‘It is not every thing we know that is to be told to Buckra,’’ she reportedly said.13 Nevertheless, this sense of injustice did not preclude a deep and ongoing engagement with ‘‘Buckra’s’’ courts. In order to understand popular attitudes toward the courts, it is necessary to go beyond the framework of official justice. People’s sense of the unfairness of the official system was sustained by the knowledge that alternatives to it did exist. After emancipation, powerful competing 160

Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 177 of 308 Tseng 2004.8.31 07:45

methods of responding to conflict built on the institutions and practices developed during slavery. The prominence of these alternatives, based in the black churches and the practices of obeah and myalism, made it difficult for the state to naturalize its own judicial and penal systems as the common-sense answer to problems of wrongdoing. Legal hegemony in nineteenth-century Jamaica was more fragile than in societies such as nineteenth-century England, in which these kinds of alternatives had been largely eradicated. The challenge that obeah and myalism presented to state authority is part of the reason that legislators were so keen to attack them. This problem of competing epistemological systems for understanding justice is common to most colonial societies and particularly powerful in post-slave societies. However, whereas many colonial states attempted to codify and thus domesticate what they termed ‘‘customary law,’’ in Jamaica such practices were treated only as needing suppression.14 When colonial powers recognized the need to accommodate preexisting forms of political authority, as in Africa and India, they made some effort to maintain ‘‘indigenous’’ or ‘‘customary’’ forms of conflict resolution as subordinate systems of justice. Where populations had been brought from elsewhere, as in colonial slave and post-slave societies, colonial powers treated their translocated or creole forms of conflict resolution only as marks of their ‘‘barbarism.’’ While I am interested in trying to generalize about popular attitudes to the law and the state as a whole, it is also important to ask what these sources tell us about relationships among poor Jamaicans. Occasions on which poor Jamaicans took each other to court, consulted obeah men and women, and participated in independent judicial practices can provide insight not merely into how a unitary group of non-elite Jamaicans evaded or confronted state and planter power. They can also be viewed as constructions and expressions of power relations within peasant and poor urban communities in which authority was allocated along lines of age, gender, and ‘‘respectability.’’ If the state’s courts belonged primarily to the planter class but could be engaged with and used by others, the authority of the black churches belonged in this period in an analogous way—that is, primarily but not absolutely—to the male smallholder rather than to the whole population of non-elite Jamaicans. Obeah, perhaps, belonged to the poor and to non-elite women. It is significant, however, that this most accessible means of obtaining justice was also the one that accomplished least in terms of status and prestige because of its secret, illegal, and stigmatized character. justice and the jamaican people

161

7124 Paton / NO BOND BUT THE LAW / sheet 178 of 308 Tseng 2004.8.31 07:45

Everyday Life, Popular Attitudes Toward ‘‘Crime,’’ and the Use of the Courts According to Stipendiary Magistrate T. Dillon, ‘‘No peasantry in the world are more exempt from crime, few more irritable, and none more litigious [than the Jamaican].’’ Petty sessions hearings, he claimed in 1842, were crowded with cases arising out of ‘‘private quarrels’’ between former slaves.15 Dillon here participated in the construction of an alternative— if almost equally negative—stereotype of freedpeoples’ behavior to the more widespread claim that they had no respect for the law. The image of the litigious peasant persisted throughout this period. Charles Lake, for instance, argued in 1854 that ‘‘[i]n small cases there is a prevailing fondness for litigation, too much indulged in.’’ 16 The Falmouth Post complained that ‘‘week after week our Police Courts are crowded with agricultural and domestic labourers, all apparently bent on vindicating their feelings and passions, by a resort to law proceedings.’’ Such cases, the paper alleged, arose out of ‘‘foolish and disgusting squabbles’’ and ‘‘petty negro-quarrel[s].’’ 17 The Post thus constructed a willingness to use the law as a sign of immaturity and fractiousness. Tellingly, it complained that the attendance of large numbers of rural workers at court contributed to the unreliability of the workforce.18 These comments could be dismissed as reflecting primarily the prejudices of these observers and telling us little about popular attitudes toward law. However, the argument that at least in the early post-emancipation period freedpeople were willing, indeed eager, to submit conflicts within their communities to the jurisdiction of the lower courts can be found in other more specific and less judgmental claims. Three stipendiary magistrates, working in three different parishes, reported in the early 1840s that the majority of cases in the lower courts arose out of conflicts between members of ‘‘the negro population’’ or ‘‘the laboring classes.’’ 19 These comments imply a fairly general willingness among freedpeople to bring cases against one another to magistrates, especially stipendiary magistrates. Analysis of actual court records might reveal more about which groups within Jamaican society were able to use the law.20 Unfortunately, few systematic records of court cases survive from anywhere in Jamaica in this period. Those that do exist give little information about the social backgrounds of either prosecutors or defendants. The best set of extant records for analyzing relationships between prosecutors and defendants is a collection of 432 cases covering the period 1838 to 1887, from the St. Andrew courthouse at Half Way Tree (see Table 1).21 These petty sessions 162 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 179 of 308 Tseng 2004.8.31 07:45

I67A:'H[bWj_edi^_fiX[jm[[dfhei[YkjehiWdZZ[\[dZWdji _dYWi[i^[WhZWj>Wb\MWoJh[[9ekhj>eki["'.).¸'..-$ EGDH:8JIDG 9:;:C96CI ;b_j[ H[if[YjWXb[ BWXeh[h Dej[dek]^_d\e 4OTAL

;b_j[

H[if[YjWXb[

BWXeh[h

Dej[dek]^_d\e

( ' )( )

' & )+ ', 

& + (' . 

& ' '( '+* 

4OTAL     

IekhY[09ekhj½iE/Y[H[YehZi">Wb\MWoJh[["Ij$7dZh[m$?6'6%(%(9[djhWb=el$¹9ekhji$

and quarter sessions cases were primarily for theft and trespass. Some of the records provide enough detail to analyze the class position of the prosecutors and defendants and in some cases reveal the relationship between them. Very few of the trespass cases give any information, so I have confined my analysis to the cases of theft.22 It is clear that large-scale employers and property owners made disproportionate use of the courts in defense of their property. Seventy-two of 158 classified prosecutors were of this group. Even if none of the unclassifiable prosecutors were part of the elite (this is possible: the courts were quite assiduous in marking complainants as ‘‘gentleman,’’ and by definition the names of members of an elite are relatively easy to recognize), they would be responsible for initiating 22 percent of all theft cases. In many of these cases, planters used the courts to prosecute small thefts from their estates. Some of these thefts were instances in which workers took sugar, coffee, or other produce from the estates on which they were employed. The proprietors of Constant Spring estate prosecuted fourteen individuals for theft between 1854 and 1874, including their head boiler.23 Mary Ann Murray, a ‘‘labourer’’ on Papine estate, spent a week in the penitentiary for taking fourteen pounds of sweet potatoes. ‘‘The people working at Papine are constantly in the habit of stealing potatoes from Papine,’’ claimed George Bailey, the estate’s ranger.24 It is likely that Murray and the others who ‘‘constantly’’ stole potatoes thought of this practice as legitimate ‘‘taking,’’ as had enslaved plantation workers.25 The large property holders who could most easily afford to lose such items disproportionately initiated prosecutions for very low value amounts of property. Of the eighteen cases in which the item stolen was worth less than one shilling, members of the elite initiated seven. These gentlemen could, it seems, most easily afford the time and expense involved in prosejustice and the jamaican people

163

7124 Paton / NO BOND BUT THE LAW / sheet 180 of 308 Tseng 2004.8.31 07:45

cution, felt most comfortable in court, and wanted to establish reputations as intolerant of theft, especially by employees. However, there were also many prosecutions initiated by people who could not be considered part of the elite. I classified fifty-two of the theft prosecutors as ‘‘respectable’’ and thirty-four as ‘‘laborers.’’ Very few of these prosecutors were among the poorest Jamaicans. Despite their nonelite status, property rights were significant to these individuals, and they used the law to defend their relatively small amounts of property. They prosecuted for theft of clothing, food, household items, livestock, and cash. The importance of property was rooted in the ‘‘proto-peasant’’ experience of growing and marketing crops that most Jamaicans had acquired during slavery and apprenticeship.26 In St. Thomas in the East, between 31 percent and 43 percent of petty sessions cases in the years 1863–65—when popular disaffection was probably the highest it ever reached in the second half of the nineteenth century—were brought by people described as ‘‘laborers.’’ These were primarily assault or abuse cases rather than property crimes.27 Although this is much lower than their proportion of the population, and is usually presented as evidence of the bias of the courts against them, these cases still reveal a significant degree of voluntary engagement with the official judicial system on the part of ordinary Jamaicans. One such case was heard at the St. Andrew quarter sessions in 1855. John White lived on Waterhouse Pen in St. Andrew. Owning at least twenty-five goats, he was a reasonably successful herdsman and peasant farmer. Nevertheless, he did not own land, was described in court records as a ‘‘labourer,’’ and signed his name with a mark. With goats making up his major asset, White was also vulnerable to theft. Between October and December 1854, he deposed, at least twenty goats disappeared from the land where he turned them out to graze. Losing six more in January 1855, he ‘‘made enquiries’’ and eventually went to the house of Beckford Stewart, the watchman on another pen, where he saw a goat and a kid that he believed belonged to him. White seized the goats and demanded of Stewart that he ‘‘come with me to Half Way Tree’’—that is, to the courthouse—with the animals. Stewart refused to come, and eventually White took the goats to the magistrate’s office, swore an ‘‘information’’ that described the circumstances of the case, and accompanied a policeman to Stewart’s house, where he identified several other goats and goatskins as his. Stewart, charged with the theft, acknowledged that he had shot some goats but claimed that he had done so only because they had wandered onto the pen he was employed to watch, threatening to damage his gar164 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 181 of 308 Tseng 2004.8.31 07:45

den. The court did not believe him, and he was sent to the penitentiary for twelve months.28 While every case brought before the courts was unique, this one was not out of the ordinary. The stories told in the legal records demonstrate the everyday nature of the situations that gave rise to allegations of theft. In terms of their relationships to the centers of power and wealth in Jamaican society, Stewart and White were roughly equivalent: neither was completely marginal nor very secure. As, respectively, the owner of a substantial goat herd and a senior employee on a cattle pen, they were probably among the better off of rural working people. Yet White seems to have suffered a near-catastrophic reduction through the loss of his goats, while Stewart’s time in the penitentiary must have lost him whatever security he had established in his job. We do not know how typical he was, but White’s actions in demanding that Stewart accompany him to Half Way Tree, going there himself, swearing the information, going back to Stewart’s place with the policeman, and finally testifying in court are those of a man who found some use in the judicial and penal systems of the state. Whether Stewart’s prison sentence did White any good is less clear. It did not regain him his goats. The point is not that the courts provided fair and equitable ways of resolving wrongs committed against non-elite Jamaicans. That more than 90 percent of the classifiable defendants in the Half Way Tree records were laborers is clear demonstration that they did not. The courts provided no remedy for workers or peasants who found themselves in conflict with planters. The point, rather, is that awareness of obstacles to the use of the courts in conflicts with the rich did not deter poor people from pursuing disputes with other ordinary people through the courts. Indeed, even more than during apprenticeship, poor people used the courts to prosecute cases against one another rather than in conflicts with their social ‘‘superiors.’’ Historians have focused on two problems faced by poor Jamaicans in bringing cases to court: first, the costs of bringing both civil and criminal cases; and second, the irregularity of court hearings.29 This irregularity resulted from the fact that, at the lowest level (the petty sessions), cases were usually heard before unpaid magistrates who could not or would not take the time away from their private concerns to perform their judicial functions. Innumerable complaints were made of the difficulties of getting the required two magistrates together to hear a case. This problem was first noted as early as 1839, when John Candler, a Quaker who had gone to Jamaica to observe the transition to freedom, reported a visit to justice and the jamaican people

165

7124 Paton / NO BOND BUT THE LAW / sheet 182 of 308 Tseng 2004.8.31 07:45

a petty sessions court that did not take place because only one magistrate was present.30 Complaints about this problem became frequent from the late 1840s on.31 This evidence has been presented as accounting for popular alienation from the mechanisms of official justice. Robert Stewart, for instance, writes that ‘‘in many districts the black people simply gave up taking any cases into court.’’ 32 But perhaps these complaints reveal something more complex. For example the Falmouth Post reported in 1862 on the frustration of approximately 250 ‘‘labouring people’’ in Falmouth, who complained that court had not been held for two or three weeks, ‘‘and that they had suffered much from the expense and inconvenience of leaving their homes and labour on so many occasions, to prosecute and defend the cases in which they were interested.’’ 33 As a result of their experience many of these people may have concluded that it was not worth attempting to use the official court system. Still, they had not yet concluded so in 1862—hardly evidence of a completely oppositional popular stance towards the judiciary. Poor people’s complaints that their cases were not heard surely imply the desire that the state provide courts for people to use rather than a rejection of the courts. Willingness to engage with the state judicial system does not mean that those who used it believed it to be just in any abstract sense. As Douglas Hay remarks in a discussion of eighteenth- and nineteenth-century English prosecutions, ‘‘[T]he notion that the poorer half of the population, because they sometimes were able to prosecute, believed that The Law was basically just seems most unlikely. Most people took a profoundly instrumental attitude to the law.’’ 34 In Jamaica, as well, popular attitudes toward the law were more instrumental than supportive. People used the courts to achieve a particular goal rather than because they believed the state’s claims to fairness or supported its desire to monopolize conflict resolution. We can, perhaps, get a better sense of popular feeling in relation to official justice by looking at the actions and reactions of ordinary people in cases in which they were not directly involved. On occasion, urban crowds acted in ways that suggest that they shared the official view of the criminal as outsider. For instance, in February 1842 a group of thirty to forty prisoners escaped from the Kingston District Prison. Fighting off the police with stones, most of the group managed to reach Spanish Town, where a military regiment recaptured them. According to the newspaper account of the incident, the recaptured convicts were taken to the gaol, ‘‘followed by an immense number of the populace, who, be it recorded to their credit, did all they could to assist in retaking these rascals.’’ The Despatch assured its readers that ‘‘had any of the pris166 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 183 of 308

oners attempted to escape, the populace alone would have exterminated them.’’ 35 The newspaper’s insistent tone suggests anxiety that the population of Spanish Town might have reacted in solidarity with the escaped prisoners and refused to cooperate with their recapture. Nevertheless, this should not override the fact that the popular mood seems to have been against the convicts. When one of them, ‘‘the celebrated Mocho John,’’ was brought to Spanish Town a few days later, a crowd of ‘‘some hundreds’’ surrounded him. The crowd hissed at him, then cheered and clapped when he was put into the gaol.36 Similarly, court records include instances in which substantial numbers of local people participated in searching for suspects in cases in which they were not directly involved. This took place especially in cases of goat stealing, a crime that must have been particularly alarming, given that goats were among the most valuable assets of many poor people. When Thomas Burton, a policeman, arrived on the scene of a reported goat theft, he saw ‘‘lots of people running towards the wood’’ in order to track down the thief. He later organized a party of local women to search the area for the stolen animal.37 Similarly, when one of David Simpson’s goats was stolen, he went to search for it, and the thief, along with the woman he lived with, a male friend, and, he deposed, ‘‘plenty other people.’’ 38 Even when it was not their own property that had been stolen, people in these cases set aside time to search out a goat thief. In an abstract sense, these individuals may have felt the law to be unfair; in the concrete situation of their neighbors’ loss of property—which might well eventually also threaten their own—they were willing to assist in using the law. This concern with the protection of the property of ordinary Jamaicans is borne out by the comments of Stipendiary Magistrate Bell, who reported in 1854 that ‘‘when the labourer robs the employer, the cases are very difficult to unravel to obtain convictions; but when one of the peasantry robs another, the evidence is much more easily obtained.’’ 39 Popular support for the law was almost never given completely unequivocally. Even when a crowd was hostile to an individual who had committed a crime, it was often at the same time very suspicious of the authorities. This was revealed in a telling incident in Kingston in 1857, when a woman was suspected of having sold a stolen goat. According to the newspaper account of the incident, a large crowd gathered outside the yard of the suspect:

Tseng 2004.8.31 07:45

A short while after, a person in male attire was seen to come out of the yard, dressed in a pair of pantaloons, a shirt, and a white jacket, with a hat on; and very quietly passed the crowd, without being suspected justice and the jamaican people

167

7124 Paton / NO BOND BUT THE LAW / sheet 184 of 308

as the party in pursuit, taking snuff all the while. It was not long, however, when suspicion commenced to awaken in the minds of many; and the crowd hastened after the party at the suggestion of one of them. She was overtaken on the Spanish Town road by the police, and the crowd, who commenced to exult at the capture, especially under such circumstances, in a manner almost unendurable; and they followed the captive to the Cage, where she was detained in custody till Saturday, to be brought up for examination.40 The crowd’s view appears here to be congruent with that of the police and the state: hostile to the theft, ‘‘exultant’’ at the suspect’s capture, and with an additional glee at the extraordinary circumstances in which the woman was caught. Her cross-dressing was apparently fascinating to large numbers of Kingston people, who assembled at the ‘‘cage’’ the next morning in the hope of seeing the woman. At this point, however, the view of the police and the crowd—which consisted, according to the Colonial Standard, ‘‘principally of the idle and ill-clad of the city’’—diverged, for the popular sense of involvement was disruptive to the orderly progress of a trial. The police tried to disperse the crowd but were unable to do so. When the trial had not begun by 11 a.m. because of the shortage of a magistrate, the crowd became suspicious, thinking the delay ‘‘was a ruse to overcome them in their anxiety to behold the accused in her peculiar dress.’’ 41 Eventually the police dispersed the crowd, but only by using considerable force. This event was no more than a minor disturbance but is useful in reminding us that popular hostility to certain crimes—and perhaps in this case to unorthodox gendered behavior—does not equal popular agreement with the values of the state; that, indeed, it can lead to confrontations between popular and state forces.

‘‘Negro-House Lawyers’’ and Courtroom Commentaries

Tseng 2004.8.31 07:45

Popular opinion about the state’s legal system was not constructed only through direct experience of involvement as prosecutors or defendants. Throughout the early post-emancipation period elite observers noted— often with distaste—the many ordinary people who attended court sessions to observe and comment on the proceedings. Criminal trials were routinely attended by large numbers of people. Commenting on his decision to criticize a new statute privately rather than through a speech in court, Judge Henry Roberts wrote that he wanted to avoid his words’ having a negative effect on the ‘‘large and shrewdly watchful audience’’ that would hear them.42 A few years later, the magistrate Thomas Witter 168 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 185 of 308 Tseng 2004.8.31 07:45

Jackson wrote of the need for sentencing policy to be aware of the effect on the ‘‘audience’’ gathered in court that witnessed decisions.43 These courthouse ‘‘audiences’’ were not in practice the passive recipients of intended messages that Roberts and Jackson expected them to be. Especially in the major towns, popular attendance at court was often considered a nuisance by elite commentators. The Morning Journal wrote in 1842 of the problem of ‘‘hale, hearty men and women wasting day after day, lounging about the [Kingston] Court-house, idling and making idle, when their time might be profitably employed, and themselves and their families benefited.’’ 44 Similarly, the Falmouth Post complained of the ‘‘concourse of idlers’’ who attended the magistrates’ court in Kingston, arguing that they attended ‘‘for the express purpose of listening to the vulgar language which is so frequently heard there.’’ 45 In these cases, it was not so much the people’s active opposition to the decisions of the court that was attacked; rather, newspaper editors and jurors objected to poor Jamaicans’ claiming the space of the courtroom for themselves, turning it into a place for their own sociability and enjoyment. If it was true, as the Post claimed, that ‘‘the noise and confusion idlers occasion cause great interruption to the Court,’’ then the popular presence effectively inverted the intended theater of the law, forcing the officials to listen to the multiplicity of popular voices rather than vice versa.46 Comments about the ‘‘unwashed,’’ the ‘‘lower orders,’’ and the ‘‘idle’’ were to a great extent about class. These people’s presence was offensive not only because of its disruptive potential, but also because the individuals at court were not at work. Since ‘‘idleness’’ was supposedly a major cause of crime, the fact that courtrooms were full of ‘‘idle’’ people implied that the space that was intended to maintain order was becoming instead a source of crime. Given elite anxiety about the labor supply, and the supposed unwillingness of freedpeople to work as regular wage laborers, the image of the ‘‘idle’’ spending their time inspecting the decisions of the court was extremely powerful. Part of the problem elites found in lower-class behavior was revealed through gender, with interactions between men and women creating particular problems. A letter to the editor of the Falmouth Post complained that ‘‘decency [in the court house] is outraged by female cake sellers, who indulge in vulgar conversation with the men that assemble there daily.’’ 47 This problem was felt most severely when male judges believed that women should not hear the details of cases involving sexual behavior. For instance, when John Burnett was tried for the rape of Isabella Reid, a child of eight or nine, the judge advised that women should justice and the jamaican people

169

7124 Paton / NO BOND BUT THE LAW / sheet 186 of 308 Tseng 2004.8.31 07:45

leave the courtroom before evidence was given. The evidence, he believed, would be ‘‘unfit’’ for female ears, and he hoped ‘‘that delicacy would induce them to go away.’’ The Falmouth Post reported with shock that ‘‘not one of them followed the advice. They all remained, and appeared delighted in listening to the disgusting facts which were deposed to.’’ 48 Poor women’s presence in public space, even as listeners rather than commentators, was seen as inherently disruptive. The women’s refusal to follow the judge’s instructions demonstrated their failure to adhere to class- and race-based standards of respectable femininity. The idealized respectable white lady to which the judge implicitly compared the women would neither want to listen to language ‘‘unfit’’ for her ears nor disobey the instructions of a judge. Members of courtroom ‘‘audiences’’ considered what those in authority perceived as intrusive and frivolous to be legitimate expressions of interest in the public proceedings of the community. Effectively, these black women and men were claiming rights of citizenship that Jamaican elites found abhorrent to grant to former slaves. More precisely, it was the manner in which the courtroom audiences claimed the right to participate in the proceedings that commentators found objectionable. It was acceptable for people to come to observe legal proceedings, but only if they behaved appropriately: if they deferred to the conventional hierarchies of the space of the court. Citizenship rights were thus granted conditionally. But the spectators wanted more than this. They were motivated by the desire to engage with the system, to know what was going on, and to comment on it. Sometimes the crowds were attracted by an unusual case without taking a collective view of it. But there were also many situations in which courtroom crowds expressed loud opinions about the justice of the decisions made. In 1855, Charles Wright, a Falmouth boatman, was charged with stealing coals. He had been employed to deliver coal from a brig to the wharf and, having delivered the amount he was contracted for, kept what was left over. In his defense, he argued that this was the accepted custom among boatmen and was supported in this by the testimony of others. Despite being directed by the judge that such a ‘‘monstrous doctrine’’ was not tenable as a defense, the jury acquitted Wright ‘‘from conscientious motives.’’ The verdict was strongly welcomed by the courtroom crowd. According to the newspaper account, it ‘‘was received with a tremendous shout by the rabble, and it was some time before silence was restored.’’ 49 Similar cases involved prosecutions for the theft of a mare, the theft of bricks, a ‘‘riot’’ on the part of Kingston Baptists involved in a dispute with their one-time minister, and the killing by a woman of her 170 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 187 of 308 Tseng 2004.8.31 07:45

baby granddaughter.50 In these cases, courthouse audiences ‘‘shouted in approbation,’’ gave ‘‘triumphant shouts’’ at not guilty verdicts, and created ‘‘uproar’’ when defendants they supported were convicted.51 Members of the crowd often accompanied the defendant they supported to his or her next location, whether to prison or home. In so doing, they created an informal ceremony that used and transformed that of the state. It is tempting to try to draw out of these cases conclusions about popular understandings of legitimate and illegitimate behavior, and to produce from them a set of law-like rules by which ordinary people judged the behavior of their peers. Given the evidence we have, such a set of rules may be illusory. This is partly because we do not have enough evidence to know on what basis people decided to support particular defendants. Some, such as the case of Charles Wright, seem easily legible: they involve popular defense of the non-monetary parts of a wage.52 But most, such as the trial of John Burnett for the attempted rape of Isabella Bird, or of Mrs. Vernon, who received the death penalty for infanticide, are more opaque.53 As is true of most crimes involving sexuality, we know very little about the circumstances of Burnett’s case, because the newspaper declined to print any of the testimony on the grounds that it was ‘‘unfit for publication.’’ In the infanticide case, the press reported only that Vernon had tried to produce an abortion in her daughter while pregnant and had later poisoned the days-old infant with arsenic. There was a ‘‘strong demonstration made by the populace on behalf of the prisoner both in Court and while she was being conveyed to Prison,’’ but the basis of the popular support for Vernon is not clear. It would not be safe to assume that all cases of infanticide would be met with a similar response; there are similar cases in which women did not receive popular support.54 A second reason why it would be illusory to generate a set of lawlike rules from this evidence is that such a methodology would assume that spectators in court—and by implication, non-elite Jamaicans in general—made these decisions on the basis of a process analogous to legal reasoning. In fact, what seems more likely is that the people who drew support from court audiences were well-known individuals with local followings mobilized through networks of kin and community. In two cases of this kind, the prosecuted individual was said to be the ‘‘headman’’ on an estate, suggesting that these defendants were able to organize support for themselves through employment-related ties. Another man who gained popular support had previously been prosecuted on multiple occasions. It may well be that popular support for specific defendants was less a response to the circumstances of individual cases than an expression of loyalty to the individuals involved in the trials. justice and the jamaican people

171

7124 Paton / NO BOND BUT THE LAW / sheet 188 of 308 Tseng 2004.8.31 07:45

Individuals facing prosecution used a variety of resources to try to avoid conviction. The audiences that appeared in courthouses in support of individual defendants are one indication of this. They could have a real effect, both in boosting the confidence of the defendant and in influencing the decisions of the judge and jury. In addition, those who were able to do so retained trained lawyers to defend them. Sometimes the use of a lawyer could facilitate and express a sense of the law as a system of ‘‘us’’ against ‘‘them.’’ Popular engagement with the law was often based on an awareness of the biases and unfairness of the system combined with a desire to outwit or overcome them. When Mr. Nathan (who was also the lawyer for Charles Wright in the coal-stealing case) successfully defended a leader of a peasant community in St. Ann, who had been prosecuted for burglary, he was said to have been greeted after the case by ‘‘a large number of the peasantry’’ who ‘‘poured out blessings upon him, mingled with such exuberant expressions, as ‘Lawyer, you wort you money;’ ‘you is fe we Lawyer;’ ‘plenty of money da in St. Ann’s fe you.’ ’’ 55 Such comments imply at the same time a sense of a system divided into ‘‘them’’ and ‘‘us’’ and a reliance on the position of ‘‘Lawyer’’ to represent those who make up the ‘‘us.’’ 56 More often, individuals facing prosecution turned to lay people from within their communities for advice and support. Some lay individuals, usually men, acquired experience with court procedures and gained reputations for their understanding of the law and ability to advise on it. These people were referred to by elites in a mixture of scorn and fear, as ‘‘negro-house lawyers’’ or ‘‘half-inch lawyers.’’ Their existence predates emancipation. An 1837 report by Stipendiary Magistrate Richard Chamberlaine concluded that apprentices ‘‘manifest an anxiety to be informed on their legal obligations, and study to regulate their conduct in conformity therewith. The intelligent man who displays this feeling, is necessarily obnoxious to the employer, and the acme of an apprentice’s delinquencies consists in being a ‘‘lawyer.’’’ 57 Stipendiary Magistrate Richard Madden claimed in 1835 that ‘‘[o]n most plantations there is a litigious negro, who regulates the quarrels of the other negroes with one another, and takes on himself the general direction of their discontent.’’ Madden described how ‘‘one of these negro lawyers’’ was sent to him for punishment for the crime of ‘‘putting the negroes into a state of insubordination’’ by asking ‘‘quibbling questions’’ about the precise obligations of apprentices under the new law.58 References to ‘‘negro-house’’ and ‘‘half-inch lawyers’’ persisted in the post-emancipation period. Often the terms were used to describe those who managed more ably than most to defend themselves in court. The 172 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 189 of 308

Falmouth Post described a man charged with obstructing the collector of debts as ‘‘a sort of negro-house, second rate Lawyer’’; despite his supposed inadequacies, this man was acquitted.59 In a case in which a group of people were charged with assault that arose out of disputes over inheritance—at issue was whether the legitimate or illegitimate daughters were to receive property—the newspaper commented on the ‘‘lawyerlike style’’ in which the defendants cross-examined witnesses. According to the reporter: [T]he most learned of the whole was Mr. John William Thomas Johnson, a black young man, who was described as ‘a general deputy of all kinds’ by a witness . . . Another witness described him to be ‘a person who always meddled with law, and was a great writer.’ Mr. Speight, who was also a witness declared him to be a very troublesome person to the community generally.60 Literacy and knowledge of law on the part of unpropertied black people was troublesome and meddling. It implied impertinence, a refusal to know their place. The Falmouth Post described defendants in several other cases who defended themselves confidently and assertively, usually concluding that their lack of discomfort in the courtroom must mean that they were ‘‘old offenders.’’ 61 Nevertheless, it is clear from the records of the Half Way Tree courthouse that many defendants were familiar enough with court procedure to cross-examine prosecution witnesses.62 Some people went beyond conducting their own defense to assist others in their interactions with the court system. According to a vitriolic attack on popular political action, written in 1862 by Peter Espeut, a significant colored planter and assembly member, the town of Morant Bay was ‘‘the nest of a set of characters whose principal occupation is that of ‘half-inch lawyers’ and village politicians.’’ 63 In the intimate link between half-inch lawyers and village politicians we see the connections between popular mobilization and the effort to appropriate official law and use it in ways that challenged rather than re-enforced the oppression of black and poor Jamaicans. Espeut singled out for attention two men who had been active in organizing a recent public meeting to protest the governor’s decision to remove the radical politician George William Gordon from his position as a magistrate. He designated both William Foster March and William Grant ‘‘half-inch lawyers.’’ Espeut described Grant as

Tseng 2004.8.31 07:45

mulatto, a petty saddler at Morant Bay, another kind of character which particularly infests the small communities of this island viz. one justice and the jamaican people

173

7124 Paton / NO BOND BUT THE LAW / sheet 190 of 308

who acts as what is termed ‘‘a half inch lawyer’’ and advises the ignorant to put themselves against the law, one of the worst characters in Morant Bay, very plausible, maintains a respectable exterior, would not hesitate to enter a Jury Box and acquit some villain who had previously consulted him and whose guilt was well known to him.64 Espeut claims both that Grant fails to uphold appropriate standards of impartiality in court—he would acquit someone he knew to be guilty— and that he encourages the ‘‘ignorant’’ to take a confrontational attitude toward the law. He likewise attacked March for giving legal advice: William F. March mulatto, illegitimate son of the late Foster Henry March, Attorney at Law Kingston (a colored man), a poor miserable penniless fellow with scarcely a suit of clothes to his back. He was for some time in his fathers office, and has acquired a little knowledge of the law, gains a wretched livelihood by going about the country advising the lower orders of the people on law matters, provoking litigation, preparing documents and otherwise acting as what is called in this country ‘‘a Negro house lawyer’’ of no principle or character, so bad his father turned him out of his house and office.65

Tseng 2004.8.31 07:45

Despite Espeut’s descriptions of these men as poor and ignorant, their leading role in popular political organizing indicates that, by the standards of their own communities, they were held in high regard. People who gained reputations as ‘‘lawyers’’ became leaders in their communities, deriving authority and power from their ability to represent others in confrontations with the white-dominated system. March and Grant, a saddler and a man with some legal training, were unusual in their literacy and education.66 They were part of an emerging semi-urban artisan class that had connections to but was not part of the class of small settlers and squatters who made up the majority of the population. Such individuals could thus act as political brokers for the ‘‘lower orders.’’ 67 Mimi Sheller, drawing on Florencia Mallon’s discussion of popular liberalism in Latin America, has described this group as a network of ‘‘literate and outspoken ‘organic intellectuals,’ ’’ part of an ‘‘educated group who mediated between peasants and the state.’’ Through an examination of the attendees at a number of other public meetings and political events, Sheller has shown that March and Grant were part of an interlinked group of political leaders based in St. Thomas in the East.68 I would add to this analysis that their position also built on and structured hierarchies among ordinary Jamaicans. Their light skin, recognized work skills, and access to relatively powerful kin allowed them to act in public politi174 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 191 of 308 Tseng 2004.8.31 07:45

cal roles. In addition, while the politics of the street and even the courthouse were easily accessible to women, the public meetings organized by men such as March and Grant were entirely dominated by men. From emancipation on, then, Jamaican people actively approached the courts, participating as an audience, using them against one another, making clear their feelings about particular cases, and providing support to one another through amateur legal advice. They engaged dynamically with the official judicial process, not deferring to the judgment of the court but understanding it to be a significant space and source of power. Ordinary people perceived the significance of what went on in court and tried to exert control over the process. Their efforts to do so could be classified as a form of hegemony in that these struggles took place on terrain already established and largely controlled by the powerful. At the same time, such struggles had the potential to tip into more confrontational situations. The patterns of interaction I describe here reveal that the events that precipitated the Morant Bay rebellion emerged out of long-standing patterns of behavior. The rebellion began after a day in court when a case of trespass was due to be heard. The defendant, Lewis Thomas, had consulted his cousin, Paul Bogle, who had advised him—in a way reminiscent of the complaints about ‘‘half-inch lawyers’’—to appeal against a previously imposed fine.69 As well as advising his cousin, Bogle organized considerable numbers to attend the courthouse to support him. According to Gad Heuman, this mobilization was deliberately designed by Bogle to develop a confrontation with the authorities. Once in the courtroom, another case, that of James Geoghagan, turned out to be more incendiary. Geoghagan’s sister called out, ‘‘Come out of the Court, let us go down in the market, and let us see if any dd policemen come here if we don’t lick them to hell.’’ As Sheller, who quotes Geoghagan, points out, this incident suggests ‘‘the sense of female control over the market as a public space in which (unlike the courts) popular justice could prevail.’’ 70 While we should be wary of reading the historical record teleologically and reducing all courthouse interventions to precursors to Morant Bay, we should also recognize the extent to which Bogle made use of long-standing strategies of engagement with the court system, transforming them from intermittent resistance into organized opposition. He could do this, I suggest in the rest of the chapter, in part because of the existence of other forms of judicial practice that were intertwined with strategies involving the official system.

justice and the jamaican people

175

7124 Paton / NO BOND BUT THE LAW / sheet 192 of 308 Tseng 2004.8.31 07:45

Beyond the Rule of Law: Popular Justice Using the courts was by no means the only way in which Jamaicans responded to conflict. Ironically, it is often only because a case eventually came to court that we discover the actions taken to pursue differences outside of official law. For instance, when John Russell caught Alexander Yates stealing from his provision grounds, he beat him rather than taking him to the police. This information is recorded in the archives only because Yates later died, and Russell was prosecuted for assault.71 Similarly, an ongoing dispute between two groups is revealed in the execution of Joseph Wallen for the murder of another man, who, he alleged, had poisoned one of his friends.72 Likewise, an attack by a crowd on the house of a man accused of assaulting a woman named Ann Anderson was revealed when seventeen of the crowd were prosecuted for riot. The crowd was said to have ‘‘accompanied their work of destruction with songs in which unmistakable allusions were made to the late attack on the Police Station,’’ implying that the crowd members understood their actions not simply as an alternative means of resolving conflict but as standing in opposition to official legal processes.73 All these cases involved transgressions that were theoretically recognized by formal law as criminal. The victims of the initial crimes—Russell, Wallen, and Anderson—did not, however, bring them to court for resolution. Taking a case to court did not preclude other actions around a case. In 1840, for example, Nancy Mitchel and William Forrest were prosecuted at the Surrey assizes for the murder of an old man, Joseph Sims. According to the judge, Sims had previously been prosecuted and sentenced to the workhouse for stealing yams and plantains belonging to Mitchel and Forrest. However, ‘‘not being satisfied with the punishment which he then received, they were heard to utter threats of their intention to beat him as soon as he was discharged from confinement. Accordingly, as soon as this happened, they appeared to have carried their threats into execution, and beat him in such a manner as to cause his death.’’ 74 A slightly different incident of this kind took place following a highly publicized murder trial in 1862. Unlike Mitchel and Forrest, the people who participated in this vigilante action were not the direct victims of the crime. John Longmore Wilson, the overseer of an estate at Murphy Hill in St. Ann, was shot dead, and three men and a woman were taken into custody as suspects.75 One of them, Henry Jones, was tried, convicted, and sentenced to death before any of the others were tried, and his evidence was expected to be crucial in gaining convictions of the other three. However, although he previously claimed he was merely an accessory to the 176 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 193 of 308 Tseng 2004.8.31 07:45

crime, Jones claimed at the second trial that he alone had been responsible for the murder. As a result, the three were acquitted. The audience in the Spanish Town courthouse responded with anger. According to the Falmouth Post: [T]he populace in the Court manifested their feelings by hisses which subsequently found vent in loud and clamorous execrations against the Jury. The prisoners could not be removed from the dock, and after considerable excitement, by order of the judge, they were escorted by the police, and several magistrates, to the gaol. In proceeding thither, stones, brickbats, and broken bottles were hurled at the prisoners, and the police, many of them, were seriously cut.76 Governor Eyre’s report of the execution of Jones, which took place in late November, noted that the three acquitted defendants were ‘‘popularly supposed to be the more guilty parties.’’ 77 When they returned to St. Ann, local people who believed they were guilty and were angry at their acquittal pursued them. The suspects were chased out of St. Ann and were attacked in the neighboring parishes that they then entered. According to an approving letter written to a newspaper, the homes of all three of the suspects and of ‘‘every branch of the[ir] Families’’ were destroyed. One of them, it was reported, was seen running into St. Ann’s Bay ‘‘sans hat—sans shirt—seeking protection from the enraged mob, formed of his own colour and class. He was no sooner recognised than he was met by the people of the town with a shower of stones, and could just reach the Police Station in time to escape a speedy death.’’ 78 He was held in custody for a day but was pursued again on his release and several days later was reported to be ‘‘in a dying state’’ due to wounds inflicted by members of the crowd. The second acquitted defendant reportedly managed to leave Jamaica; no details were given of what happened to the third. These cases provide a partial counterweight to those incidents in which courthouse audiences mobilized in support of defendants. As with those cases, we do not know enough about the circumstances of the cases to generate a coherent account of the standards by which judgments were made. This murder case in particular is hard to fit into a simple model of class or race relations: lower-class Jamaicans here took violent action against other lower-class Jamaicans accused of the murder of a planter. These cases do indicate, however, that judgments were made. Far from welcoming all criminals back into their communities as ‘‘martyrs,’’ Jamaican communities made judgments about who was deserving of punishment and who was not. These judgments were not the simple reactions justice and the jamaican people

177

7124 Paton / NO BOND BUT THE LAW / sheet 194 of 308 Tseng 2004.8.31 07:45

implied by elite discourse but operated according to their own rules— rules that we cannot clearly perceive at this distance. Nor should we presume that such ‘‘rules’’ were analogous to those of common or statute law.

Alternative Justice Complex popular engagement with the processes of law, drawing people resistantly into the official system, is probably the rule rather than the exception in societies that claim to operate according to the rule of law. There were also, however, a conjunction of practices and beliefs that were, if not uniquely Jamaican, specific to New World slave and post-slave societies. These practices—primarily, obeah and courts based in black churches—together meant that popular engagement with official law was never the only option for conflict resolution. There is evidence of the incipient development in the 1860s of a formal system of counter-official judicial practice, which some historians have labeled ‘‘independent courts.’’ The small amount of evidence we have about these courts emerged during the course of the inquiry into the Morant Bay rebellion. William Miller, a St. Thomas in the East magistrate and the manager of an estate in that parish, presented to the commission a ‘‘summons’’ from such a court, which he claimed to have found on the person of one of his workers. The summons was addressed to James Millin, whom it charged with using ‘‘abusive and Columnious Languages, tending to provoke a breach of the peace, in words Following to wit:— ‘You are to give me your stick,’ ’’ and commanded him to ‘‘be and appear on Saturday the 4 day of March at the Court House, Huntley Village, Before such Justices of the peace as shall then be there to answer to the said Charge, and to be further dealt with according to Law.’’ It was signed ‘‘John G. Lamont, J.P.’’ 79 John Lamont was an African worker on the Serge Island sugar estate. According to a newspaper article published before the Morant Bay rebellion, ‘‘sham courts’’ existed in St. Thomas in the East, which tried real crimes and handed down real fines as sentences. The article stated that buildings ‘‘arranged internally upon the same plan as parish court-houses’’ had been constructed.80 After the 1865 rebellion, minutes of a meeting were found among the belongings of Paul Bogle, the Native Baptist preacher and rebellion leader. Echoing procedures regularly used in political meetings at the time, the minutes recorded a process of decision making in which proposals were made by one individual and seconded by another. The meeting appointed a ‘‘State General’’ and two ‘‘Justices of the Peace,’’ including Bogle; it decided on the required 178 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 195 of 308 Tseng 2004.8.31 07:45

‘‘Qualyfication of Baristers and Lawyers’’; fixed the dates of two ‘‘Petty Sessions’’ courts and one ‘‘Court of Arispagus’’; and established a procedure for summoning and ensuring the attendance of jurors. It further resolved that ‘‘all Person or Persons who shall wilfully Missbehave themselves in the Vecinity of the Court the same shall be Commited for, trial and if wont Submit be disbands as Unsivilise.’’ 81 These documents are immensely suggestive but also difficult to interpret. Certainly, some kind of a court system was developing in St. Thomas in the East, modeling itself closely on the official system of justice and hearing cases that included conflicts arising out of abusive language. The rules regarding misbehavior in the vicinity of the court reveal a concern to establish the authority of this new court system. William Miller stated in 1866 that he knew that these courts had operated for the past three years, and that the punishments they imposed included fines and being required to work on the prosecutor’s land.82 Despite his evidence, which may well be marked by a post-rebellion tendency to exaggerate the extent of popular organization, we do not know how widespread these courts were or the extent to which they actually heard cases (as opposed to making plans to hear them), or how widely respected their decisions were. These courts have fascinated historians, many of whom downplay the difficulties involved in interpretation. Monica Schuler, for instance, refers in passing to ‘‘a Creole system of justice which functioned independently of the colonial judicial system,’’ while Don Robotham states matter-of-factly that these courts ‘‘issued summonses, tried cases and imposed fines in the whole Serge Island-Plantain Garden River area, even as far as Manchioneal.’’ 83 Some have speculated that the courts acted like mutual aid societies; others have suggested that they were used to give people facing hearings in the state court system an opportunity to practice.84 Others have argued that the people turned to this alternative system of ‘‘people’s courts’’ because of their complete alienation from the official courts.85 In the light of the evidence presented earlier in the chapter, this is not a tenable interpretation; indeed, the involvement of Paul Bogle in both the alternative court system and in interaction with the official system shows that the two operated together rather than separately. As others have suggested, the courts in St. Thomas in the East developed out of the traditions of community-directed conflict resolution established during slavery.86 These traditions were organized around the leading role of headmen in deciding what should happen in cases of conflict among slaves.87 The role of ‘‘headman’’ persisted after emancipajustice and the jamaican people

179

7124 Paton / NO BOND BUT THE LAW / sheet 196 of 308

tion, but probably more important was the position of elder within religious communities. After emancipation, judicial practices became more formally institutionalized among missionary congregations. The elders among the Hanover congregation of the Scottish missionary Warrand Carlile formed an autonomous court to resolve disputes among members, here described by the missionary’s son, James Edward Carlyle: The people generally looked up to their pastor with great reverence. He and his venerable black session, composed then of four or five old negro elders, were a court of reference in all disputes as to property, &c. Few even of the most careless, and none of the church members, ever thought of going to a court of law. They brought their disputes before the minister and session, and though they stated their case with much vehemence, they always accepted the decision. . . . Many of these cases concerned little matters, such as the straying of pigs, goats, horses, &c., on their neighbours’ property, where they had devoured or damaged the crops.88

Tseng 2004.8.31 07:45

While Carlyle stresses respect for the white missionary, it seems likely that the moral authority of the black (and almost certainly male) elders gave this institution its real power. According to the writer Claude McKay, his father, a respectable smallholder with enough property to qualify as a voter, played a similar role in late nineteenth-century Clarendon. ‘‘People who had trouble among themselves,’’ he wrote in his autobiography My Green Hills of Jamaica, ‘‘and who would otherwise have gone to court would bring their cases to my father who would settle the differences between them. Generally he was always obeyed.’’ McKay’s father had been a head deacon in the congregation of a Baptist missionary, although he had left the missionary church because of his belief that the missionary was hypocritical. McKay’s additional comment that his father resolved ‘‘disputes pertaining to land boundaries or cattle or horses straying into other peasants’ lots and destroying crops’’ echoes Carlyle’s description. His further comment that McKay senior ‘‘would do nothing on behalf of a thief caught in the act or a rapist, which was rare among the peasantry; or carnal knowledge of animals, which occurred pretty often’’ gives a sense of the values that were enforced in such courts.89 One case, which eventually came before the official courts, perhaps reveals a concrete example of this kind of process. James Graves was tried in 1846 at the Trelawny quarter sessions for sexually assaulting a thirteenyear-old girl, Rebecca Campbell. According to the newspaper report of the case, the evidence revealed that ‘‘the parents of the child, counselled by the Leader of their class (they belonged to a Dissenting Establishment) 180 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 197 of 308 Tseng 2004.8.31 07:45

sought to obtain money from the prisoner, and promised to drop proceedings if he would ‘come down liberally.’ ’’ The ‘‘Leader’’ refers to an Afro-Jamaican Christian leader equivalent to a deacon rather than to the missionary. It is not clear whether the family as a whole or the girl in particular was to be compensated. Clearly, this case involved less formality than the events described by Carlile, McKay, and the documents about Bogle’s court. However, it shows a similar impulse at work. It may well, in fact, reveal the way such processes worked in situations in which all parties did not recognize in advance the power of the leader to make judicial decisions. In this case, Graves did not agree to the proposal that he pay compensation, revealing the limits of such disputing processes. Campbell’s parents’ attempt to resolve the crime through financial compensation took place simultaneously with the formal prosecution, suggesting that the two types of procedure were perceived as different means to an end rather than as opposed to each other. This pluralistic outlook on the part of Campbell’s family was not shared by the official judicial system. The court interpreted the demand for compensation from Graves as prostitution: the judge admonished the parents for their ‘‘base and detestable conduct’’ in trying to ‘‘sell the virtues of their child.’’ As a result, Graves was acquitted.90 An attempt to deal with crime beyond the formal judicial system could thus be interpreted as in itself a sign that no crime had been committed. The official system jealously guarded its prerogative to judge. The court in which Bogle served as a justice of the peace represented, it seems likely, an attempt to formalize and institutionalize the system of justice associated with the dissenting churches. Like the procedures described by Carlile and McKay, it arose out of a desire on the part of many Jamaicans for an additional space, beyond the official system, wherein their conflicts could be adjudicated. Most interpretations of the informal courts have examined them primarily for what they tell us about the relationship between the Jamaican people and the state or the elite, focusing in particular on their function as resistance. But the independent courts also provide suggestive evidence about the power dynamics operating within Jamaican communities. Scholars who have examined similar institutions in other colonial societies have tended to see popular justice in a less straightforwardly celebratory light than have historians of Jamaica, and their work is helpful for a reexamination of the Jamaican independent courts. As Clifton Crais notes in relation to a similar ‘‘people’s court’’ in the Transkei in the 1950s, it is more useful to ask questions about the political imaginaries of participants in informal judicial practices than to take a straightforjustice and the jamaican people

181

7124 Paton / NO BOND BUT THE LAW / sheet 198 of 308

wardly evaluative approach.91 That is, we should not be satisfied with asking whether such practices constituted resistance to the colonial state but should also seek to understand what other issues, problems, and power relations they articulated. In the Jamaican case, although Bogle’s court did not have access to state force to enforce its decisions, this does not mean that it operated beyond power relations. As with the institutions discussed by McKay and Carlile, Bogle’s court expressed and perpetuated the relations of power and authority within the peasant community. For instance, it allocated the right to judge to men alone. All the officers named in the minutes of the meeting found in Bogle’s house were men. Moreover, it confined this power primarily to smallholding farmers who formed the ‘‘respectable’’ peasantry. Such smallholders—rather than landless workers—also formed the backbone of support for the Morant Bay rebellion.92 The elders in Carlile’s congregation, McKay’s father, Bogle and his fellow justices of the peace, and the ‘‘leader’’ who advised Rebecca Campbell’s parents were all part of this group. People who had authority to mediate disputes were also those who played respected roles in the churches. Bogle’s meeting’s threat, quoted earlier, to declare those who misbehaved ‘‘Unsivilise’’ suggests a belief among this group that there was an important, if fluid, distinction between the civilized and the uncivilized within the Afro-Jamaican population. The content of this concept of civilization remains to be explored, but civilization was certainly a complex attribute, probably requiring the conjunction of status based on class, gender, age and religion.93 However, the court in St. Thomas differed from the systems described by Carlile and McKay in the extent to which it modeled itself on the official system. In that sense, Bogle’s court implies not so much a move beyond the official system as an attempt to replicate it.

Obeah and Myalism

Tseng 2004.8.31 07:45

The alternative court system was probably not the most widespread unofficial judicial practice engaged in by ordinary Jamaicans. The beliefs and practices labeled obeah and myalism provided another means of pursuing conflict and of responding to harm and wrongdoing.94 It seems likely that Christian-based courts and obeah coexisted in many communities and were used in somewhat different ways to respond to different types of conflicts and provide different types of solutions. Unlike both the official court system and the systems of justice associated with the black dissenting churches, obeah held out the possibility of gaining redress even in conflicts with people of superior status, including planters. Obeah was 182 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 199 of 308

also available to women as much as to men: many obeah practitioners were women. It was a form of judicial practice available to those deemed ‘‘disreputable’’ or ‘‘unsivilise’’ even more than to the ‘‘respectable.’’ This availability was a change from slavery, when obeah’s power seems to have been recognized and used by all slaves and many planters.95 As a growing differentiation of status developed among former slaves, one of the means by which ‘‘respectable’’ smallholders distinguished themselves from the rest of their communities was by their public adoption of missionary Christianity and rejection of obeah. Leonard Tucker, the official historian of the Jamaican Baptist missionaries, in his discussion of the disciplinary practices of the Jamaican Baptist churches reveals the complex relationship of ‘‘respectable’’ Christianity to obeah. Tucker demonstrates both obeah’s attractions and the social risk in attempting to use it: African witchcraft, known by its Egyptian name, ‘‘Obeah,’’ is sadly prevalent in the West Indies, and from time to time members of our Churches are reported to be practising it. The attitude of our Churches towards this false and evil thing is that of entire severance and prohibition. Any Church member seeking the aid of an Obeah man . . . is liable to exclusion from membership, just as if he had broken one of the express commandments of Scripture.96

Tseng 2004.8.31 07:45

Clearly, many individuals who strived for respectability believed that obeah practices could mobilize power. However, they must have been reluctant to consult obeahmen and obeahwomen, for if it should become publicly known that they had done so, this would compromise their position within the missionary church. Precise definitions of obeah and myalism have proved elusive, in part because the evidence about them comes almost entirely from outside, from efforts to define them for purposes of legislating against them. Obeah was the name Europeans gave to all aspects of Caribbean popular belief that they found alien and threatening. In addition, obeah and myalism comprised a very broad system of beliefs and practices that does not correspond to any of the realms into which scholars are accustomed to dividing social life. These beliefs and practices cannot be categorized as medicine, law, religion, magic, or judicial practice; they encompassed all these areas of life but were not confined to any of them, or even to all them collectively. Lazarus-Black puts it well in arguing that obeah ‘‘defies neat categorization’’; it is, she argues, ‘‘an empowering phenomenon, a discourse and practice concerning rights, crime and punishment, and varying forms of domination and resistance.’’ 97 It is, additionally, characteristic of a world view in which discourses about health, the spiritual justice and the jamaican people

183

7124 Paton / NO BOND BUT THE LAW / sheet 200 of 308 Tseng 2004.8.31 07:45

world, and responsibilities of people to one another remain tightly connected. The multifaceted nature of obeah and myalist beliefs and practices means that their practice always involved a variety of meanings. My purpose in introducing obeah and myalism here is to examine their function as juridical processes that provided an alternative means of redressing harm and as a source of power with which the official system of justice could be opposed and evaded. Obeah and myalism were often used when individuals or groups believed that a wrong had been committed against them. Some of these wrongs were encompassed within the state’s understanding of crime; others were not. Individuals or small groups of people usually consulted obeahmen and obeahwomen in order to mobilize power regarding a particular situation. While it is usually referred to as bad magic, obeah could be used for positive purposes—in particular, in efforts to heal. The distinction between myalism and obeah is as much one between collective and individual practice as it is between malign and benign goals. Both obeah and myal could be used to wound and to heal, to dominate and to resist.98 Ordinary Jamaicans could use the power of obeah to counter that of the state. Individuals charged with crime sometimes made direct use of obeah in the hope that it would prevent their conviction. For instance, in 1854 Stipendiary Magistrate Bell reported that two men accused of horse theft had consulted an obeahman in order to ensure that they were not convicted; this was revealed because they failed to pay the obeahman and he testified against them.99 In another case, two women charged with assault were reported to have sacrificed a cock on the courthouse steps prior to their trial to protect themselves from conviction; they were found guilty.100 Despite the failure of these specific instances, obeah’s power seemed to work often enough that people remained convinced of its usefulness. The Morning Journal commented on this, declaring that there had been ‘‘numerous instances in which these imposters while undergoing trial for their disgusting crimes, give out to their followers that their own influence, and the influence of other obeahmen at work, would defeat the law, and the law having indeed failed, left the impression of the obeahman’s power upon the minds of the crowd.’’ 101 Obeah did not, however, primarily involve direct interaction with state judicial practice. As Lazarus-Black recognizes, obeah ‘‘may be directed against an exploiting class, but the justice it expresses also permeates relationships between neighbors, lovers, and kin.’’ 102 Obeah and myal practitioners—those with specialist knowledge of how to mobilize supernatural power for concrete ends—were consulted for the purpose of pursuing 184 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 201 of 308 Tseng 2004.8.31 07:45

conflicts beyond the realm of the formal law. Evidence about these purposes comes from the descriptive accounts of white observers and from court cases involving accusations of obeah. Such cases included the use of obeah to heal sickness, which was in most cases believed to result from the use of evil against the sick person. Joseph Hudson, for instance, allegedly ‘‘pretended to suck pieces of glass and other like rubbish’’ from the body of Catherine Manford, an old woman who died a few days later. He was convicted of obeah at Hanover Circuit Court.103 Obeah could also allow its user to gain sexual power over an actual or hoped for partner. Such practice was revealed in a case in Hanover, in which Lewis Thomas, on trial for obeah, was said to have provided ‘‘charms’’ to a man with which he enticed the wife of another man to live with him.104 Obeah could be used to harm enemies, especially those who occupied a higher social position than the person who made use of obeah’s power. A former headman who had been dismissed was prosecuted for engaging an obeahman to attack the attorney who he believed had cheated him, while in another case a witness testified that the defendant had asked him for a draught to render an estate’s overseer unconscious.105 Others consulted obeah practitioners to discover who had committed a crime and to find out why someone had become sick, although I did not find any trials involving these uses. These practices had existed during slavery and persisted far beyond the period I am discussing. A concise summary of the variety of potential uses of obeah dating from 1914 listed the following: ‘‘to recover stolen property, to protect his provision ground from thieves, to cure sickness by casting out the supposed evil spirit, or to punish an enemy by putting a ghost upon him.’’ 106 Both parties to a conflict might be suspected of employing the power of obeah. Obeah operated here as a way of mobilizing power that partially overlapped with the formal state system of justice. It disciplined people involved in practices recognized by the state as criminal, such as theft, but also those who transgressed community norms in ways that were not defined by the state as criminal, such as by firing somebody from his or her employment.107 It is difficult to read popular values from cases in which obeah is used, because its use often reveals an area of conflict rather than consensus. Like lower-class use of the courts, obeah was primarily used as a way of taking forward conflicts within communities rather than as a weapon against the state or the elite. It structured sexual relationships between men and women, revealing the conflict involved in many of them. It could also be used to organize gendered hierarchies among men, as in the cases cited in which one man used obeah to win another man’s partner, thus increasing justice and the jamaican people

185

7124 Paton / NO BOND BUT THE LAW / sheet 202 of 308

his own status and prestige. The use of obeah had complex consequences: it simultaneously organized conflict within Afro-Jamaican communities and provided an alternative way of understanding wrongdoing and responsibility that countered the hegemonic goals of the elite. The conflict inherent in the practice of obeah was revealed most profoundly in collective popular attempts to banish obeah practitioners. These disciplinary actions were in Jamaica known as myalism. Many historians have described rituals undertaken to rid a community of the evil power that was causing misfortune, rituals that often included violent attacks on individuals accused of practicing obeah. In 1841–42, many such events took place in St. James and Trelawny. According to Schuler, the movement began on Spring estate, St. James, where there had recently been several deaths. Myal leaders came to the estate and performed a ceremony designed to cleanse the area of hostile obeah forces; this ceremony involved the use of violence against men who were identified as obeah practitioners. Similar ceremonies taking place on other estates are recorded in contemporary newspapers.108 This was an Afro-creole religious-judicial process in which individuals accused of the crime of obeah were punished and purified. The process did not take the same form as that of the formal courts, because it relied on a very different interpretation of evidence and proof of guilt. It also understood the significance of punishment quite differently from the state system. Adam Black, who the myalists accused of obeah, reported that he had been tied up, brought to Gale’s Valley estate, the center of the movement in Trelawny, and beaten. He testified that a group of myalists had tied his arms behind him with a rope—called him a wicked man, and forced him to Gale’s Valley Estate, some shoving him, and a man on a mule pulling him along with a rope. Arrived at Gale’s Valley, he was placed in confinement, his thumbs and fingers were tightly bound with a cord; he was also tied round his head, with so much force as to cut him. He asked for water, but it was refused, unless he would tell them about Obeah. When they danced, men and women thumped him on his sides, and on the third night of his endurance, the prisoner Mary Shand, assisted to hold his feet, while the parties, male and females inflicted several blows on his . [sic] 109

Tseng 2004.8.31 07:45

We do not know what Black was alleged to have used obeah for, or with what results. In the cases at Spring estate, however, the accused obeahmen were said to have caused the deaths of local young men, and the accusations in Trelawny probably involved similar charges.110 Myalism was effectively suppressed in 1843 through prosecutions and 186 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 203 of 308 Tseng 2004.8.31 07:45

by sending large numbers of special constables to St. James and Trelawny. It did not disappear, however. A similar event was recorded in 1856, when fifteen men were prosecuted at the Falmouth Circuit Court for an attack they perpetrated on a man named Henry Gordon. The attack was motivated by the men’s belief that Gordon was an obeahman who was responsible for the death of one Ann Lewis, a local woman. Gordon was reported to have threatened Lewis, who afterward died. Believing that Lewis’s death was a result of Gordon’s use of obeah, the ‘‘rioters’’ had broken into Gordon’s house at Wakefield (notably, this is also where Adam Black was from), carried him away, and beaten him about the head. All fifteen were found guilty and sentenced to six months’ imprisonment, a decision that reportedly went against the wishes of the many spectators in court.111 These anti-obeah activities combined religious and judicial processes. Myalists and others who attacked obeah practitioners understood misfortune as resulting from the use of hostile power. Such power usually worked through non-material means. The law also assumed that obeah practitioners could cause harm but interpreted their ability to do so as resulting from the use of poison or the power of ‘‘suggestion.’’ The crime of obeah was defined not as actually causing harm through supernatural means, but as ‘‘pretend[ing] to any supernatural power’’ or ‘‘pretending to be a dealer in obeah or myalism.’’ 112 The law also refused to recognize the distinction between obeah and myalism. Thus, there was a profound break between popular and official assessments of judicial processes. Those who attacked Gordon and Black did not believe that a satisfactory result could be obtained by going through legal channels. For one thing, having Gordon or Black convicted for obeah would not break their powers of sorcery or release the shadows they had caught. Even if they had wanted to prosecute, it is unlikely that Gordon and Black’s attackers would have obtained a conviction. Despite obeah’s illegality, the evidence that had convinced their assailants that Gordon had used obeah to kill Lewis, and that Black was an obeahman, was unlikely to convince a court. The formal system of criminal justice made use of assumptions and standards of proof derived from a different epistemological system from that held by the vast majority of Jamaicans who believed in the power of obeah. In this case, people had to go beyond the law to achieve what they considered to be justice. The two systems of justice relied on profoundly different assumptions about all stages of the judicial process. Obeah was first made illegal in 1760 when it was used in a major slave rebellion.113 There is plenty of other evidence that elites feared it because of its power to mobilize Afro-Jamaicans to political ends. Nevertheless, justice and the jamaican people

187

7124 Paton / NO BOND BUT THE LAW / sheet 204 of 308

obeah and myalism were not inherently oppositional practices. In many cases, they were used against the same poor and marginal individuals who were also likely targets of court procedures. However, the persistence of the belief that harm was caused by obeah, with its corollary belief that the remedy for such harm was a spiritual-judicial practice designed to counter obeah, created a profound cultural block against popular acceptance of the monopolization of penal power by state institutions. Because obeah represented an alternative system of law and justice, a different way of understanding and responding to harm, the colonial legal system found it at once very threatening and very difficult to respond to. Laws against obeah had to perform the contradictory task of denying the reality of the practice while providing a mechanism by which those who ‘‘pretended’’ to its power could be punished. Such laws are a classic example of an effort to establish hegemony, to control what is perceived as common sense. But the persistence of obeah shows that such control could never be complete.

Tseng 2004.8.31 07:45

how do all these events, practices, and case studies fit together? What do they reveal about Jamaican conceptions of justice and of popular interactions with the official court system? We are now in a better position to interpret Thompson’s comments on justice with which this chapter opened. The events at the Falmouth courthouse—in particular, the reports that the spectators sympathized with the protesting defendants— seem to confirm the claim that the judicial system was widely perceived to be unfair. Thompson’s story provides a particularly sharply expressed example of a critique of Jamaican criminal justice that was subscribed to in some degree by large numbers of Jamaicans. However, belief that the system was unjust and racially oppressive did not usually lead to total rejection of that system. Most Jamaicans also tried to make use of the legal and penal system when it suited them and tried to manipulate court proceedings to their advantage. Many expressed deep interest in individual cases, commenting on the justice of particular decisions in ways that imply neither the absolute rejection of the system described by many members of the Jamaican elite nor the passive acceptance of the law as the only mechanism for mediating conflict that elites would have liked to see. As in any society, Jamaican popular attitudes to the law and to justice were complex and contextual. Elite claims about popular alienation from the law built on real feelings of injustice, but those feelings existed within a much more complex matrix of instrumental and other uses for and oppositions to the law than this discourse allowed. My purpose is not to replace a complacent portrait of unceasing re188 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 205 of 308 Tseng 2004.8.31 07:45

sistance and clear-sighted popular understanding of oppression with a facile one in which ‘‘the people’’ accept the rule of law and find it basically legitimate. Neither picture is appropriate, most fundamentally because the wide range of ways in which ordinary Jamaicans interacted with the state’s system of justice demonstrate that there was not one unitary ‘‘popular belief ’’ with regard to the law. A common analytic move in such circumstances is to invoke the Gramscian concept of ‘‘hegemony,’’ arguing not that the people believe that the status quo is just but that there are certain limits beyond which change is unthinkable, and that struggle takes place within such limits. Framed in this way—as ‘‘the language of contention’’ in which conflict is conducted, as William Roseberry puts it—hegemony does provide a useful way of thinking about non-elite Jamaicans’ ways of interacting with the state’s system of justice in the postemancipation period.114 One must be careful not to create an essentially static view, however. ‘‘Hegemony’’ is such a broad concept that it can be used to describe almost any situation short of revolution, and yet it is clear that, if most societies are dominated by some kind of coerced consent, some hegemonic situations are more fragile than others. We need to be able to distinguish among different hegemonic situations: when, for instance, are the boundaries within which contention takes place likely to shift? In a situation such as that in Jamaica, in which circumstances and popular attitudes shifted widely over time, it is necessary to explain how and in what circumstances one type of understanding of the role of the courts, the law, and the state—such as that which operated in Morant Bay in 1865—came to predominate. The hegemony of the courts and the state was always unstable in Jamaica because they faced deep and ongoing competition for dominance as the mechanism of conflict resolution. In addition to using the official courts, non-elite Jamaicans resorted to a series of other methods for resolving or mediating conflicts, building on institutions and practices developed within the slave community. Although historians have paid most attention to the fragments of evidence that reveal the existence of a network of popular courts, institutionally based in the Native Baptist church, I have suggested that the juridical role of obeah—and, in particular, its countervailing explanation of harm and redress—was the most powerful source of this competition. The fact that Jamaica was a society created through colonial settlement and populated through the importation of enslaved Africans made a significant difference to the function of the law and the way in which it was understood and used by the poor. Jamaica in the post-emancipation period was deeply culturally and socially divided. Although the culture of all Jamaicans was creole, this does not mean that justice and the jamaican people

189

7124 Paton / NO BOND BUT THE LAW / sheet 206 of 308 Tseng 2004.8.31 07:45

all Jamaicans shared a culture.115 While some aspects of creolized culture were highly valued publicly, others—those identified as deriving from Africa, such as obeah and myalism—were suppressed. This had important consequences for popular understandings of justice. Public rejection of obeah and myal became a sign of ‘‘respectability,’’ including among the black peasantry. Nevertheless, belief in the efficacy of obeah and in the truth of myal remained strong throughout this period and continues to be significant in Jamaica today. This chapter has shifted attention from the ‘‘state’’ to the ‘‘people’’ so that the history of the organization and implementation of punishment can be seen in a broader context. In looking at popular interactions with the official courts and efforts to implement justice, we find, on the one hand, an ongoing and intense engagement with the state legal system in which many people made great efforts both to use the system in their favor and to prevent it from being used against them, and on the other, the vibrant counter-hegemonic juridical practices contained within the traditions of obeah, myalism, and Native Baptism. Both these traditions were significant ways in which ordinary Jamaicans expressed their understandings of the proper social and spiritual order, organized and challenged hierarchies within their communities, and structured their relationships to the white and colored elites with whom they came into contact more or less regularly. Both traditions could also be transformed at significant moments of crisis into weapons that challenged the power and authority of Jamaica’s rulers.

190 Chapter Five

7124 Paton / NO BOND BUT THE LAW / sheet 207 of 308

Conclusion

Tseng 2004.8.31 07:45

After the Morant Bay rebellion of 1865, the Jamaican state was reformulated for a second time in thirty years. With direct elections abolished, the new centrally appointed government embarked on a program of ‘‘modernization’’ that included changes in the system of courts along with shifts in the structure of land tenure, family law, and taxation.1 The penal system, however, remained much as it had been since the 1850s, combining the use of the whip to punish men with extensive use of the prisons. Many of Jamaica’s most significant political and religious leaders of the next decades, including Leonard Howell and Marcus Garvey, would spend time in the island’s major prisons.2 Jamaica had by then witnessed several successive penal complexes. In the period of the expansion of slavery, planters had been largely responsible for maintaining the subordination of their slaves. They used the state to sanction the violence required to maintain the system of slavery, in the process legitimating an extreme use of violence in hierarchical relationships that drew on but exceeded what had previously been acceptable in Britain. When state forces officially intervened, they did so primarily to put down rebellions that the repressive forces of individual plantations were unable to suppress. In addition, planters’ use of the slave courts to rid themselves of especially resistant or disruptive slaves dramatically represented the conjoined power of slaveowner and state. Over time, a Jamaican-based planter elite consolidated itself, forming a network that collectively filled most of the positions in the islandwide and parish-level state institutions. This elite organized, through the increasingly complex

7124 Paton / NO BOND BUT THE LAW / sheet 208 of 308 Tseng 2004.8.31 07:45

state, a network of prisons that were subordinated to their control. Although these were public institutions, the ‘‘public’’ to which they were accountable was made up of slaveowners. Both because of the development of external antislavery pressure and because of a desire for more consistent and thorough mechanisms of control, planters’ political representatives turned away from the routine use of extreme forms of mutilation as punishment and toward punishments that constrained rather than inflicted permanent physical damage. Nevertheless, at moments of crisis, such as the threatened rebellion of 1823 and the realized one of 1831, public corporal punishment and bodily mutilations were used again on a large scale. The simultaneous increase in prestige of imprisonment in Europe as ‘‘humanitarian’’ punishment meant that the intermingling of state and private power to punish through imprisonment was rarely singled out for attack. Instead, the persistent use of the whip came to symbolize enslavement. Shifting gender ideologies within Britain meant that the whipping of slave women was seen as especially problematic. Legislation on this point, rather than the use of the prisons or conditions within them, was the most strongly contested political issue about punishment during the abolition campaign. As a result, the punishment of women also dominated political conflict over prisons during apprenticeship. During apprenticeship, control of the Jamaican penal complex shifted as the imperial state tried to centralize authority over punishment. As during slavery, the prisons were used to impose subordination and labor discipline on unfree workers. However, their relative significance increased because slaveholders lost their direct power to punish. Because they could not be flogged, women were especially likely to be sent to the houses of correction during this period. The creation of a group of intermediaries who represented the state rather than the planters made it possible for apprentices to manipulate law in their favor. At the same time, the structuring of law to guarantee the continued unfree labor of former slaves meant that their day-to-day experience with the representatives of the state was ambiguous, at best. In this period, state regulation of the daily lives of ordinary Jamaicans was at its most intense. The state was also at its most complex and contradictory. Its representatives at the lowest level, the stipendiary magistrates, were not formally accountable to locally elected authority. This centralization was a novelty that would later spread to other colonies and to Britain itself. Thus, the central imperial state’s efforts to oversee the process of emancipation led it to elaborate an institutional structure and set of processes that would later be used elsewhere, in Britain and in other parts of the empire, to ensure that 192 Conclusion

7124 Paton / NO BOND BUT THE LAW / sheet 209 of 308 Tseng 2004.8.31 07:45

the needs of a local elite would be subordinated to centralized decisions and policies. The idea of the rule of law persisted after 1838. Prisons received substantial investment and were rebuilt and reorganized. The construction of the Kingston penitentiary was probably the most capitally intensive state project of the early emancipation period. As a prison that made no use of flogging or the treadmill, it was supposed to symbolize Jamaica’s new status as a ‘‘free’’ society. Yet it was built with the coerced labor of convicted prisoners. Despite extensive discussion about its purpose and the strategies that should be used to achieve that purpose, state-organized punishment decreased in significance over time as the population moved away from the control of both the former slaveowners and the state. In this period, discussions of punishment served more as sites for debate about the nature of the Jamaican population than as locations for elaboration and critique of specific penal policies and practices. It is notable that, as they participated in these debates, many of the liberal creole proto-nationalists who had opposed slavery, advocated the end of apprenticeship, and argued for the construction of modern prisons condemned the Jamaican population in the same harshly racist terms as did the planter class. Given the decreasing white population and the decline of the sugar industry, the penal politics of the 1850s and 1860s cannot be attributed purely to the influence of reactionary former slaveholders and sugar barons or to the growing racism within the Colonial Office. Some of the men who have figured in Jamaican historiography primarily as opponents of planters’ power, such as Robert Osborn, Edward Jordon, and John Castello, also participated actively in the creation of a new politics that condemned the majority of the population for their ‘‘failure’’ to model themselves on an idealized version of the responsible wage-earning nuclear family. The liberal view of emancipated slaves, which understood them to be demoralized due to slavery but to have the potential for progress and civilization, was deeply interlaced with the project of prison reform and underlay the goals of the dissenting missionaries and the colored middle class. This view could easily become overtly hostile if and when the people who were supposed to become ‘‘civilized’’ through the discipline of monogamy, patriarchy, Euro-Christian religion, labor, and, if necessary, imprisonment instead constructed an alternative economy, form of family and gender relations, and way of worship. For the colored middle class, the adoption of a racist view of the inferiority of the Jamaican population was ironic, since the widespread acceptance of this view within Britain contributed to their exclusion from political power when representative government was abolished in 1866.3 conclusion 193

7124 Paton / NO BOND BUT THE LAW / sheet 210 of 308 Tseng 2004.8.31 07:45

The repeatedly problematic place of labor within the Jamaican penal system calls attention to a contradiction in the ideology of reform and rehabilitation that was at the heart of most advocacy of the prison. Imprisonment was at once supposed to contrast with the world beyond the prison walls and, at the same time, prepare people to rejoin a ‘‘society’’ outside whose boundaries they were deemed to have placed themselves. The prison was supposed to be at once different from and the same as the world outside. The work done by prisoners was both their punishment and their training. Prisons during slavery and apprenticeship faced the difficulty of distinguishing themselves from the normal lives of slaves. After slavery ended, prisons were the institutions within Jamaica in which social relations most like slavery persisted, and yet those who had campaigned for and presided over the end of slavery advocated them.4 The ideology of rehabilitative labor allowed this to be glossed over for a time. The subordination rather than self-direction required of the ‘‘rehabilitated’’ worker was revealed most clearly, however, when the system moved in the 1850s toward supplying the labor needs of employers who were unable to attract wage workers. As they moved from the status of slaves to that of apprentices and finally to that of freedpeople, Jamaicans interacted in different ways with these successive state systems of justice and their institutions. Throughout the period studied here, the most common popular experience of the judicial and penal systems was of their use in protecting the interests of property. Their own complicated relationship to property rights made many Jamaicans’ relationship to the law complex. During slavery, of course, the majority of Jamaicans were themselves legally categorized as a form of property. Their relationship to the state and the law was structured by this fact. Nevertheless, even during slavery, enslaved people attempted to use the law, usually to protect themselves against excessive punishment. Jamaican slaves, however, had less access to the state than did those who lived in colonial societies with figures with official responsibility to hear their complaints, such as fiscals and protectors of slaves. In those societies, the existence of such officials seems to have exacerbated conflict and contradictions more than resolved it.5 A similar but more intense process took place in Jamaica when the stipendiary magistrates were introduced in 1834. The magistrates for the first time provided relatively accessible legal protection for apprentices’ property. Apprentices used this protection, pursuing complaints of theft against other apprentices and complaining when their masters attacked their property in the form of hogs, goats, and provision grounds. At the same time, apprentices’ struggles pushed back planters’ efforts to nullify 194

Conclusion

7124 Paton / NO BOND BUT THE LAW / sheet 211 of 308

those legal changes contained in the abolition legislation—in particular, the prohibitions on direct punishment. Through both these processes, apprentices’ political struggles became tied to a discourse of legality. However, in part because of the very success of apprentices’ struggles (as well as, in some cases, planters’ respect for the law and the enforcement mechanisms of the state), planters relied heavily on state officials to enforce labor and social discipline. In contrast to the protectors of slaves, complaints to stipendiary magistrates came primarily from planters, not apprentices, even as those same planters attacked the magistrates for their low status and their infringement on planter sovereignty. Apprentices’ framing of their demands in terms of their understanding of what the law was and should be was thus frequently contradicted in their practical experience of legal decisions. The experience of apprenticeship had consequences for freedpeople’s relationships to official processes of law and justice. Former slaves’ efforts to establish themselves as a free peasantry consolidated the importance of property that had developed during slavery and apprenticeship. Ordinary Jamaicans attempted to make the courts work in their favor primarily by prosecuting those who stole from them, especially when the thieves were strangers. This expressed the central importance of property in land, livestock, and produce to the newly emerging class of freedpeople. At the same time many Jamaicans found the courts and the penal system to be unfair, unreliable, and founded on principles different from those held by the majority of the people. Conflicts over obeah expressed this difference most profoundly. In a sense, the state and the popular view were similar: both understood obeah to be a source of evil and harm. Yet the responses that resulted from this understanding were radically different. Indeed, Jamaicans’ attempts to rid their communities of obeah practitioners through violence, ritual, and exorcism, or to cure individuals of the hostile effects of obeah, frequently led to their own prosecution, sometimes under anti-obeah laws. Persistent official attacks on obeah and its power meant that widespread respect for and the desire to protect property could never fully dissolve popular suspicion and antagonism toward the state’s system of justice.

Jamaican Justice Revisited

Tseng 2004.8.31 07:45

Punishment remains contested in Jamaica, and few Jamaicans feel confident that justice—either social or legal—has been or will be achieved. In July 1999, Prime Minister P. J. Patterson ordered what he termed a ‘‘war’’ on the gangs that dominate the ghetto areas of Kingston. This has inconclusion 195

7124 Paton / NO BOND BUT THE LAW / sheet 212 of 308 Tseng 2004.8.31 07:45

volved the use of armed troops, curfews, and house-to-house weapons searches in these areas. Patterson reportedly called on residents not to support the gangs there, declaring that ‘‘the gunman who is your socalled protector . . . becomes your worst terrorist tomorrow,’’ although given the history of state violence against civilians, the same words could easily be applied to the police and military.6 Clearly, the postcolonial state has failed to build legitimacy for itself. In September 1998, state forces lost control of downtown Kingston for three days when supporters of a local ‘‘don,’’ who had been arrested on charges of murder, took to the streets demanding his release. The demonstrators, with good reason, suspected that their leader, Donald Phipps, known as Zeeks, might well meet his death in police custody. This incident ended when the police— to much criticism from those who identified themselves as supporters of the rule of law—allowed Zeeks to appear on the balcony of the East Queen Street police station to appeal for calm. But trust in the ability of the state to provide fair or impartial justice was not regained. Popular alienation was demonstrated again in April 1999 when a proposed 31 percent rise in gasoline tax was greeted with prolonged demonstrations and disturbances across the island. In the course of this unrest, at least nine people died, several killed by the police.7 These are only a few of multiple incidents in the past few years expressing and contributing to the complete lack of confidence in the political and judicial processes, a lack of confidence which constitutes one aspect of what Brian Meeks has termed ‘‘hegemonic dissolution.’’ 8 Jamaica’s high rate of extrajudicial killings by the forces of the state is both a cause and an expression of a larger crisis in state legitimacy, especially among the poor. According to Amnesty International, ‘‘the rate of lethal police shootings in Jamaica is one of the highest in the world,’’ with an average of 140 people shot and killed by police in the 1990s out of a population of 2.6 million. Amnesty reported that residents of ‘‘deprived, urban areas . . . described the police not as protectors from crime but as a force to be feared, almost akin to an occupying force.’’ 9 Recently, these killings included the shooting of seven young men in Braeton, St. Catherine, in March 2001. While police claimed that they fired from outside the house after being fired on from inside, an independent pathologist suggested that six of the seven had been killed by shots to the head at close range. Despite this, the inquest into the killings concluded that no one was criminally responsible for the deaths.10 It was not until November 2003, after much pressure from human rights organizations inside and outside Jamaica, that six police officers were indicted for murder.11 The words of a relative of one of the Braeton Seven reverberate backward, 196 Conclusion

7124 Paton / NO BOND BUT THE LAW / sheet 213 of 308 Tseng 2004.8.31 07:45

echoing those of Edwin Thompson and his allies in the Falmouth Court House in 1845: ‘‘Dis is how da country yah stay, yuh can shoot down di likkle yute and it jus’ done suh, there is no justice for poor people.’’ 12 The police, the government, and many Jamaicans believe that extrajudicial killings are explained and justified by Jamaica’s extremely high rate of violent crime: the homicide rate in 2001 exceeded 40 per 100,000 persons.13 Most of these deaths arise out of battles between the gangs that dominate the poor urban ghetto areas, each of which is affiliated with one of the two main political parties. These gangs were effectively militarized during the political conflict of the 1970s and 1980s but now aim to control the drug trade rather than the political process. As it does in many North American cities, gang membership provides the only economic opportunity for many young people. The urban population no longer has access to the land that, despite its marginality, provided a livelihood for their grandparents, nor is there the possibility of regular wage earning. Nearly 40 percent of Kingston’s population and a good many outside the metropolis live off the so-called informal economy: selling ‘‘box drinks’’ and finding passengers for overcrowded cabs, or, if they are lucky, selling provisions in the markets on a more or less permanent basis.14 Hamstrung by the International Monetary Fund’s neoliberal policies imposed in the wake of the destabilization by the United States of Michael Manley’s democratic socialist government of the 1970s, and made only more severe over time, the Jamaican government—the inheritors of Manley’s People’s National Party—puts its economic faith in tourism. ‘‘Allinclusive’’ hotel packages try to shield European and North American visitors from the realities of Jamaican life so that they will not be harassed by hustlers who need to sell ganja, souvenirs, or sex to make a living.15 Middle-class Jamaicans are also shielded to some degree by the armed guards and electronic alarm systems that protect their homes. Both those who can and those who cannot afford armed guards call for the death penalty and other harsh punishments for violent and property crime. Political surveys in the 1970s and 1980s found support for the death penalty running above 80 percent.16 The island’s prisons, most of them the institutions built or rebuilt in the immediate post-emancipation period, are filled with young men convicted of weapons, drugs, and other offenses. Their female relatives line up each day outside the prison gates, carrying food which is not properly provided by the institutions. These former symbols of modernity are now condemned by organizations such as Amnesty International and Human Rights Watch as overcrowded and inhumane.17 Violence within the prisons is common, including violence leading to the death of prisoners. Sixteen people were killed in riots in St. conclusion 197

7124 Paton / NO BOND BUT THE LAW / sheet 214 of 308 Tseng 2004.8.31 07:45

Catherine’s District Prison in 1997, while disturbances in the same prison in May 2000 culminated in the beating by soldiers and prison wardens of about 300 prisoners.18 The opening of a new hypermodern remand center in 2001 has not helped; its brief period of operation has seen violence, an escape, and the army sent in to take control on one occasion.19 Reading the recent reports on Jamaican prisons by Amnesty International and Human Rights Watch is eerily reminiscent of reading those by John Pringle and others more than 150 years ago. Both sets of reports condemn the overcrowding, sexual violence, and deaths in custody characteristic of Jamaican penal institutions. In response, the Jamaican authorities, today as in the past, deny that there is any real problem with the state’s actions and point to the supposedly barbaric nature of (a sector of ) the population as the fundamental cause. Violence has today replaced larceny and bestiality as the crime on which fear is focused, but much of the discourse remains surprisingly similar. Letters to the editor and calls to talk shows today bemoan the ‘‘decline in moral values and discipline,’’ echoing nineteenth-century newspaper editorials about the post-emancipation ‘‘reversion to barbarism.’’ 20 As they did in the nineteenth century, outside campaigners for human rights combine with the British state to attack Jamaican justice. As they did in the nineteenth century, some Jamaicans condemned by their country’s judicial processes can ally with powerful forces beyond the island to stave off some of the Jamaican judicial system’s harshest effects. Individuals sentenced to death in the Commonwealth Caribbean, of which there have been a growing number recently, in Trinidad, the Bahamas, and Barbados, as well as Jamaica, routinely appeal their sentences to the Judicial Committee of the British Privy Council, the highest court in these supposedly postcolonial nations’ judicial systems. The Privy Council has prevented the executions of many but not all of those sentenced to death. Many in the Caribbean have, not surprisingly, interpreted these decisions as colonial intervention. A pan-Caribbean Court of Justice, almost certain to allow a more routine implementation of the death penalty, is now imminent.21 The current crisis suggests no easy solutions. Certainly, it admits of opportunities: the erosion of nationalist hegemony may make possible the emergence of a ‘‘new game of politics’’ signified, on the one hand, by the increasingly frequent illegal roadblocks mounted by both urban and rural communities to draw attention to their problems, and, on the other, by the popularity of militant politicized dance-hall musicians such as Anthony B and Capleton.22 Nevertheless, the popular forces of alternative justice that exist in the space left by the state’s inability to provide basic services should not be romanticized. The gangs that dominate life 198

Conclusion

7124 Paton / NO BOND BUT THE LAW / sheet 215 of 308 Tseng 2004.8.31 07:45

in poor urban areas sometimes organize oppositional political action but equally engage in social predation. As the narcotics trade becomes increasingly lucrative and increasingly risky, the latter is more and more the case. Area ‘‘dons’’ and the organizations that support them promote a hypermasculine style that puts women, and men who do not conform to this kind of masculinity, in danger. Although the largest number of murder victims are young men killed in gun battles between rival gangs, the second-largest category are women killed in cases of ‘‘domestic violence.’’ In 1997, a government proposal to distribute condoms in the Kingston penitentiary as a preventive measure against the spread of HIV led to a strike by prison staff, followed by riots within the prison. In these riots, sixteen men were killed, some of them in attacks reportedly motivated by hostility to their alleged homosexuality.23 The incident reflected the shared homophobic culture of male prisoners and prison guards alike. The external response, though, cannot be one of simple condemnation of the Jamaican use of the death penalty, of extra-judicial killings, of flogging, and of the faults in the prison system. As prison populations in Britain and the United States increase and prison conditions deteriorate, it hardly makes sense for people situated in those countries merely to attack Jamaican human rights abuses. Rather, people located in those countries, including myself, need to recognize that we are implicated in the perpetuation of poverty and violence in countries such as Jamaica. In Britain, while the Privy Council refuses to allow executions to go ahead, racist immigration policies make it extremely difficult for Jamaicans and others trapped in poverty-stricken economies to enter the country even for vacations or to visit relatives. Policies imposed by the industrialized countries prevent Jamaica and other poor countries from spending money on public services. The United States’ attack on Caribbean banana producers through the World Trade Organization has brought further impoverishment to Jamaicans.24 The twin problems of crime and of punishment in Jamaica today cannot be solved by the adoption of a different kind of penal system. Instead, they derive from the island’s poverty and marginal position in the world economy, which is exacerbated by the forces of ‘‘globalization’’ and neoliberalism. This book does not directly address these issues. The problem of the subordination of states to global capital in the twenty-first century is not identical with the questions I pose about state formation and legitimacy in the nineteenth. Still, there are connections. In particular, the contemporary situation raises the question of what happens when modern states fail to establish legitimacy with the populations over which and in whose names they rule. The legitimacy of the state was always at conclusion 199

7124 Paton / NO BOND BUT THE LAW / sheet 216 of 308 Tseng 2004.8.31 07:45

issue during the period covered by this study, although the majority of the population was probably less alienated from state claims to judicial power during apprenticeship and the early post-emancipation period than it is today, despite independence and universal adult suffrage. The contemporary situation also suggests that analyses of modern power need to address themselves more attentively to the connections among different forms of power—surveillance, the discipline of the body, the use of apparently random violence—rather than draw distinctions between them and project some kinds of power into the past. This study has shown that during the late slavery and early post-emancipation periods, multiple modes of domination worked together in the penal system and elsewhere. The presence of armored vehicles in urban streets today suggests that the power of display and the display of power remain central to the working of domination. Rather than being superseded by the creation of a disciplinary society, these supposedly premodern forms have persisted alongside and become intertwined with the greater individualization and surveillance power of modern and postmodern states.

200 Conclusion

7124 Paton / NO BOND BUT THE LAW / sheet 217 of 308

Notes

introduction 1

2

3 4 5

Tseng 2004.8.31 07:45

6

Morning Journal, August 18, 1838, quoting Cornwall Courier. Other banners read: ‘‘This is the Lord’s doing,’’ ‘‘Free labour, no slavery,’’ ‘‘Honour all men, love the brotherhood, obey the laws,’’ ‘‘Christian freedom is the best freedom,’’ ‘‘Free from men, but servants to God,’’ and ‘‘Peace and prosperity to Jamaica.’’ For influential examples of the former, see, for instance, Craton and Walvin, A Jamaican Plantation; Blassingame, The Slave Community; and McDonald, The Economy and Material Culture of Slaves. For examples of the latter, see Blackburn, The Making of New World Slavery; Thornton, Africa and Africans in the Making of the Atlantic World. Trouillot, Peasants and Capital, 288–89. Ibid., 16. In addition to Trouillot’s work, studies that achieve this include Tomich, Slavery in the Circuit of Sugar; Viotti da Costa, Crowns of Glory, Tears of Blood. The only other book-length study to deal extensively with punishment in a British Caribbean society in this period is Trotman, Crime in Trinidad, which does not discuss slavery or apprenticeship and is more interested in crime than in punishment. Nevertheless, punishment is briefly discussed in a number of works. See, for instance, the discussion of the treadmill and prisons in Jamaica in Holt, The Problem of Freedom, 105–8, 286–87; of Jamaican courts, prisons, and policing in Wilmot, ‘‘Political Developments in Jamaica in the Post Emancipation Period,’’ 47–50, 124–52; of the construction of workhouses after emancipation in Antigua in Lazarus-Black, Legitimate Acts and Illegal Encounters; and of punishment during slavery throughout the British Caribbean in Turner, ‘‘The 11 O’clock Flog,’’ 38–58. For a primary source containing substantial material on punishment, see McDonald, Between Slavery and Freedom. Eudell, The Political Languages of Emancipation in the British Caribbean and

7124 Paton / NO BOND BUT THE LAW / sheet 218 of 308

7

8

9

10 11 12 13 14

15

16

17 18

Tseng 2004.8.31 07:45

19

the U.S. South, 14. See also Green, British Slave Emancipation, 129–30. For a major study of Jamaica’s place in the English imagination, see Hall, Civilising Subjects. The major studies of emancipation in the British Caribbean, for instance, start in 1830 (Curtin, Two Jamaicas; Green, British Slave Emancipation); in 1832 (Holt, Problem of Freedom); and in 1838 (Hall, Free Jamaica; Adamson, Sugar Without Slaves; Moore, Race, Power, and Social Segmentation). A few studies do cross the great divide. See Scully, Liberating the Family?; Heuman, Between Black and White; Newton, ‘‘The Children of Africa in the Colonies’’; Butler, The Economics of Emancipation. On ‘‘humanitarianism’’ and antislavery, see Davis, The Problem of Slavery in Western Culture; idem, The Problem of Slavery in the Age of Revolution. On penal reform, see Evans, The Fabrication of Virtue; Ignatieff, A Just Measure of Pain; Heath, Eighteenth Century Penal Theory. Davis, The Problem of Slavery in the Age of Revolution, 242. On the connections among activists across a variety of reform movements, including antislavery and penal reform, see Harrison, ‘‘A Genealogy of Reform in Modern Britain.’’ Oldfield, Popular Politics and British Antislavery; Wood, Blind Memory. The exception to this is the claim that British workers were treated like slaves. This claim was more commonly anti-abolitionist than anti-slavery, however. For further discussion, see Paton, ‘‘No Bond but the Law,’’ 43–62. Hartman, Scenes of Subjection, 19. Paton, ‘‘Decency, Dependence, and the Lash’’; Ferguson, Subject to Others, 295– 97; Midgley, Women Against Slavery, 97–99; Altink, ‘‘An Outrage on All Decency’’; Favret, ‘‘Flogging.’’ For an early example of this genre see Letter from a Merchant at Jamaica, esp. 8– 10. This passage contains many of the themes that would be further emphasized in later descriptions. This Order, produced in response to government-proposed resolutions passed by the House of Commons, was not legally binding on older colonies like Jamaica where legislatures were responsible for making law. Nevertheless, the colonial office urged those legislatures to adopt the policies set down in it. For discussion of the passage of this legislation and colonial response to it see Green, British Slave Emancipation, 99–108; Murray, The West Indies and the Development of Colonial Government, 128–45. Bathurst memo, 1823, co 324/75 f 109. Bathurst to Governors of Colonies Having Local Legislatures, May 28, 1823, pp 1824 (003) XXIV. This truism was to become increasingly important during the emancipation period, when it was repeatedly argued that the way to ‘‘improve’’ the level of ‘‘civilization’’ of former slaves was to raise the status of the women, which effectively meant persuading them to adopt the gender conventions of Victorian domesticity. See, for instance, the Morning Journal, August 3, 1838: ‘‘If it is intended to improve the morals and habits of the people, and to raise them in the scale of

202 Notes to Introduction

7124 Paton / NO BOND BUT THE LAW / sheet 219 of 308

20 21 22

23

24 25

26

Tseng 2004.8.31 07:45

27

civilization, the attempt must be made with the females in the first instance. Elevate them, and the others will quickly follow.’’ See also Smith to Glenelg no. 12, January 6, 1839, co 137/237: ‘‘the first step to improve the civilization of the negro, in the West Indies, is to raise the condition of the women.’’ On the 1823 rebellion, see Viotti da Costa, Crowns of Glory, Tears of Blood. Bender, The Antislavery Debate; Turley, The Culture of English Antislavery; McGowen, ‘‘Power and Humanity, or Foucault Among the Historians.’’ Penal reform was part of the colonial project more generally, not only in societies undergoing emancipation. It was, for instance, at a very similar point in time central to the colonization of India. On this see Yang, ‘‘Disciplining ‘Natives.’’’ The similarities have been recognized by a number of historians who have discussed the connections from the perspectives of social and intellectual history. In particular, historians of prisons in the United States have recognized the significance of the fact that prison building on a large scale took place during the period of the early national and antebellum expansion of slavery in the South: see Hindus, Prison and Plantation; Hirsch, The Rise of the Penitentiary; Meranze, Laboratories of Virtue. All of these historians discuss Northern prisons rather than analyze the role of prisons in a slave society. Discussion of post-slavery punishment in the U.S. South has focused on convict leasing, penal farms, and the chain gang rather than on penitentiary punishment. Cornwall Chronicle and County Gazette, December 11, 1839. John Daughtrey, ‘‘Inspectors Report of the General Penitentiary,’’ October 1, 1845, enc. in Elgin to Stanley no. 104, December 17, 1845, co 137/285. The eighteenth-century penal theorist Cesare Beccaria made rhetorical use of the difference between slavery and the social contract and the similarity between slavery and certain types of punishments. In his 1764 work ‘‘On Crimes and Punishments,’’ he contrasted a society of free men who lived under certain law to that ruled by an ‘‘oriental’’ despot, in which ‘‘slavish men’’ could never be certain whether their actions would be punished. However, in arguing for penal servitude to replace the death penalty, he maintained that such servitude, which should be characteristic of an enlightened society, was a form of slavery. For the crime of theft without violence, he argued, ‘‘the most fitting punishment shall be the only sort of slavery which can be called just, namely the temporary enslavement of the labour and person of the criminal to society, so that he may redress his unjust despotism against the social contract by a period of complete personal subjection’’ (Beccaria, ‘‘On Crimes and Punishments,’’ 53). The despotism of the ruler is here transmuted into the despotism of the criminal, whose breach of the social contract entitles those who remain within the contract to cast him out of it entirely. It is significant that the criminal is to be enslaved to society rather than to an individual. Heuman, ‘‘Riots and Resistance at the Moment of Full Freedom in the Anglophone Caribbean.’’ For the former, see, for instance, Rusche and Kirchheimer, Punishment and Social Structure; Melossi and Pavarini, The Prison and the Factory; Ignatieff, A Just

notes to introduction

203

7124 Paton / NO BOND BUT THE LAW / sheet 220 of 308

28

29 30 31

32

33 34

35

Tseng 2004.8.31 07:45

36

Measure of Pain (but see also Ignatieff ’s auto-critique, ‘‘State, Civil Society, and Total Institutions.’’ For the latter, see Foucault, Discipline and Punish; Wiener, Reconstructing the Criminal; Arnold, ‘‘The Colonial Prison,’’ 148–87; Leps, Apprehending the Criminal; Sen, Disciplining Punishment; Rao and Pierce, Discipline and the Other Body. Lichtenstein, Twice the Work of Free Labor. See also Ayers, Vengeance and Justice; Oshinsky, ‘‘Worse Than Slavery’’; Myers, Race, Labor, and Punishment in the New South. For more detailed exploration of these developments, see Holt, The Problem of Freedom; Hall, Free Jamaica; Curtin, Two Jamaicas; Eisner, Jamaica, 1830–1930. Foucault, Discipline and Punish, 7. ‘‘Jamaican Court Abolishes Flogging,’’ cnn, December 18, 1998, World Corporal Punishment Research Archives. Judicial flogging has had an important symbolic place in twentieth-century Jamaica. See, for instance, Claude McKay’s poem ‘‘Strokes of the Tamarind Switch,’’ first published in 1912 in James, A Fierce Hatred of Injustice, 183–84; and the important scene in the 1973 film The Harder They Come (dir. Perry Henzell, Xenon Studios), when the central character Ivan is punished with a whipping. Foucault’s attention to the prison’s training of its inmates’ bodies in routine movements recognizes this. As he puts it, ‘‘The classical age discovered the body as object and target of power. . . . The human body was entering a machinery of power that explores it, breaks it down and rearranges it’’ (Foucault, Discipline and Punish, 136–38). Yet he makes a distinction between punishments that attend to the body and those that attend to the soul. Michael Meranze makes a similar point to mine, arguing that despite their ‘‘critique of corporality,’’ penal reformers in fact relied on knowledge of and control of the bodies of prisoners. ‘‘Ostensibly about the spirit, the judgment of moral progress could not be about anything but the body, for it was only the body, its movements and expressions, that could be interpreted’’ (Meranze, Laboratories of Virtue, 301). Postscript to the Royal Gazette, January 15–22, 1791. The notices do not directly specify sex, assuming that it could be inferred from the name. For instance, Chakrabarty, ‘‘Postcoloniality and the Artifice of History’’; Prakash, ‘‘Subaltern Studies as Postcolonial Criticism.’’ While I have found Chakrabarty’s call for the ‘‘provincializing of Europe’’ productive, I do not fully accept his perspective, which leads ultimately to the rejection of historical analysis. I have found engagement with the following works of subaltern studies scholars especially helpful in thinking about the theoretical issues they raise: O’Hanlon, ‘‘Recovering the Subject’’; Coronil, ‘‘Listening to the Subaltern’’; Cooper, ‘‘Conflict and Connection’’; Mallon, ‘‘The Promise and Dilemma of Subaltern Studies’’; Sarkar, ‘‘The Decline of the Subaltern in Subaltern Studies.’’ Scott, Refashioning Futures; Rao and Pierce, ‘‘Discipline and the Other Body’’; Chatterjee, The Nation and Its Fragments. Similar arguments have recently been made in the fields of literary and cultural studies. See Hartman, Scenes of Subjection, and Wood, Blind Memory. Hartman

204 Notes to Introduction

7124 Paton / NO BOND BUT THE LAW / sheet 221 of 308

37 38 39 40 41 42 43 44 45

46

47 48 49

50 51

52

Tseng 2004.8.31 07:45

53 54

argues that ‘‘the circulation of techniques of discipline across the Atlantic, between the plantation and the factory, and from the plantation to Northern cities trouble arguments based upon epochal shifts of power or definitive notions of premodern and modern forms of power’’ (Scenes of Subjection, 138). Scott, Refashioning Futures. Ibid., 17. For a similar argument, see O’Hanlon, ‘‘Recovering the Subject.’’ Johnson, ‘‘A Nettlesome Classic Turns Twenty-Five,’’ provides an important critique of this recuperative mode of history writing. Heuman, Between Black and White. Sheller, Democracy after Slavery. See also Helg, Our Rightful Share, which charts a similar process in post-emancipation Cuba. See Dusinberre, Them Dark Days, for a forceful recent statement of this position in the context of U.S. slavery. Mintz and Hall, ‘‘The Origins of the Jamaican Internal Marketing System.’’ Berlin and Morgan, The Slaves’ Economy; McDonald, The Economy and Material Culture of Slaves; Schwartz, ‘‘Peasants and Slavery’’; Cardoso, ‘‘The Peasant Breach in the Slave System.’’ J. Wooldridge to London Missionary Society, June 8, 1835, LMS papers, Jamaica box 1, folder 1, jacket C, School of Oriental and African Studies Special Collections, London. Turner, Slaves and Missionaries. Hobsbawm, The Age of Revolution; Stinchcombe, Sugar Island Slavery in the Age of Enlightenment; Stanley, ‘‘Conjugal Bonds and Wage Labour.’’ The historiography here is too large to annotate fully. Important works, in addition to those in the previous note, include Hobsbawm, The Age of Capital; Perkin, The Origin of Modern English Society; Moore, Social Origins of Dictatorship and Democracy; McKendrick et al., The Birth of a Consumer Society; Brewer and Porter, Consumption and the World of Goods; Davidoff and Hall, Family Fortunes; Liss, Atlantic Empires; Lynch, Latin American Revolutions, 1808–1826. For similar claims, see Hall, White, Male and Middle Class; Scully, Liberating the Family? The recent literature on slavery and emancipation is very extensive. Important work focused wholly or partly on Jamaica includes Berlin and Morgan, Cultivation and Culture; McDonald, The Economy and Material Culture of Slaves; Turner, From Chattel Slaves to Wage Slaves, and Slaves and Missionaries; AustinBroos, Jamaica Genesis; Holt, The Problem of Freedom; Heuman, Between Black and White; Wilmot, ‘‘Political Developments in Jamaica in the Post Emancipation Period’’; McGlynn and Drescher, The Meaning of Freedom. This is particularly true of some of the work on the ‘‘slaves’ economy,’’ such as McDonald, The Economy and Material Culture of Slaves, and Berlin and Morgan, The Slaves’ Economy. Corrigan and Sayer, The Great Arch, 204. For a consideration of the difficulty in integrating analysis of power and domina-

notes to introduction

205

7124 Paton / NO BOND BUT THE LAW / sheet 222 of 308

55 56

1

prison and plantation 1 2 3

4

5

6

7 8

Tseng 2004.8.31 07:45

tion with close attention to popular culture and politics, see Joseph and Nugent, ‘‘Popular Culture and State Formation in Revolutionary Mexico.’’ Hartman, Scenes of Subjection, 3. Scarry, The Body in Pain.

Foucault, Discipline and Punish. Ignatieff, A Just Measure of Pain, 201. Spierenburg, The Spectacle of Suffering, makes one of the most forceful arguments of this kind. Many studies of punishment assume their object of study to be punishment inflicted under the authority of state institutions. They neglect the privately authorized punishment that takes place in the home or the workplace and its connections with state-authorized punishment. See, for instance, the definition given by David Garland: ‘‘Punishment is taken here to be the legal process whereby violators of the criminal law are condemned and sanctioned in accordance with specified legal categories and procedures’’ (Punishment and Modern Society, 17). Walvin’s Black Ivory includes extensive discussion of flogging but mentions ‘‘distant . . . jails’’ only in passing (Walvin, Black Ivory, chap. 15, quote on 247). J. R. Ward’s short discussion of coercion does not mention state institutions (British West Indian Slavery, 1750–1834, 199–205). Other studies of Caribbean slavery that devote extensive attention to physical punishment but do not mention prisons, despite drawing much of their evidence from Jamaica, include Bush, Slave Women in Caribbean Society, and Mullin, Africa in America. The latter’s index entry ‘‘punishments (whippings)’’ is a good indication of the dominance of the whip in historians’ discussions of coercion. In 1824, an Order in Council governing slavery in the crown colonies was produced in response to government-proposed resolutions passed by the House of Commons. It included prohibitions on the use of the whip in the fields and on the flogging of women. While it was not legally binding on legislative colonies such as Jamaica, the Colonial Office urged those colonies to adopt it. The Jamaican assembly refused to implement most of its provisions, including the restrictions on flogging. For discussion of the passage of this legislation and colonial response to it, see Green, British Slave Emancipation, 99–108; Murray, The West Indies and the Development of Colonial Government, 128–45; Scully, Liberating the Family? 34–46. On the symbolic importance of whipping to antislavery discourse, see Paton, ‘‘No Bond but the Law,’’ 42–62; Wood, Blind Memory, 260–71; Favret, ‘‘Flogging’’; Altink, ‘‘An Outrage on All Decency.’’ Davis, The Problem of Slavery in the Age of Revolution, 464–66. The pioneering argument of this nature was made by James, The Black Jacobins, appendix. It has since been adopted by many scholars, most notably by Mintz, Sweetness and Power, esp. 48–52.

206 Notes to Chapter 1

7124 Paton / NO BOND BUT THE LAW / sheet 223 of 308

9

10

11

12

13 14 15 16 17

18 19

Tseng 2004.8.31 07:45

20

For an example of the first approach, see Ward, British West Indian Slavery; for an example of the second, see Craton and Walvin, A Jamaican Plantation; for an example of the third, see McDonald, The Economy and Material Culture of Slaves. Although important recent work on the labor process and the ‘‘slaves’ economy’’ has moved forward research on these aspects of slavery, it has also contributed to the neglect of the state and state power. See Berlin and Morgan, Cultivation and Culture. Goveia, The West Indian Slave Laws of the 18th Century, and Slave Society in the British Leeward Islands at the End of the Eighteenth Century; Brathwaite, The Development of Creole Society in Jamaica. The only study of the use of prisons to punish enslaved people is Wood, ‘‘Prisons, Workhouses, and the Control of Slave Labour in Low Country Georgia.’’ Ayers, Vengeance and Justice, argues that prisons in the U.S. South were not directed at slaves, although his evidence demonstrates that enslaved people were sent to them with some consistency. For other examples of the use of prisons to incarcerate enslaved people, see Conrad, Children of God’s Fire, 301–5; Karasch, Slave Life in Rio de Janeiro, 118–26; Brown, ‘‘ ‘A Black Mark on Our Legislation,’ ’’ 103; Dusinberre, Them Dark Days, 125–31; Deacon, The Island, 40; Moitt, Women and Slavery in the French Antilles, 121–24. For a recent study of policing in a slave society, see Hadden, Slave Patrols. On ‘‘less eligibility’’ as it applied to both Victorian prisons and workhouses, see Garland, Punishment and Welfare, 44–53. This principle was also applied to the management of Indian prisons in this period: Yang, ‘‘Disciplining ‘Natives.’’’ For a discussion of prison architecture’s symbolic representation of this division, see Evans, The Fabrication of Virtue, 250–56. ‘‘An Act for Punishing Idle Persons and Vagabonds, and for Relief of the Poor,’’ 35 Car. II no. 39, 1683, co 139/8. Buckley, The British Army in the West Indies. On the practice of eighteenth-century Jamaican slave courts, see Paton, ‘‘Punishment, Crime, and the Bodies of Slaves in Eighteenth-Century Jamaica.’’ ‘‘An Act for Erecting and Appointing Common Gaols at the Town of Kingston in and for the County of Surrey and at the Town of Savannah La Mar for the County of Cornwall’’ (unnumbered), 1759, co 139/20. Long, The History of Jamaica, 2:14. For discussion of eighteenth-century gaols (jails), see Ignatieff, A Just Measure of Pain, 29–42; Evans, The Fabrication of Virtue, 9–46. Referred to as both houses of correction and (more frequently) workhouses, these new prisons drew on two separate but similar English institutional forebears: the workhouse, in which those who applied for poor relief were incarcerated, and the house of correction, a prison which housed those convicted summarily before magistrates of minor crimes, in particular ‘‘vagrancy’’ and ‘‘disorderly conduct’’ (Innes, ‘‘Prisons for the Poor’’). The legislation that established them was ‘‘An Act to Enable the Justices and Vestrymen of the Several Parishes in This Island, Remote from the County Gaols, to Raise Money by a

notes to chapter 1

207

7124 Paton / NO BOND BUT THE LAW / sheet 224 of 308

21 22

23 24 25

26 27 28

Tseng 2004.8.31 07:45

29 30 31

208

Parochial Tax, to Be Applied in Building or Purchasing a Gaol or Gaols, for the Confinement of Offenders, within their Respective Districts,’’ 14 Geo. III c. 6, no. 233, 1773, co 139/28; ‘‘An Act for Establishing a Public Workhouse in the Town of Kingston, and for Other Purposes Therein Mentioned,’’ 18 Geo. III c. 21, no. 388, 1777, co 139/34 (hereafter, Kingston Workhouse Act); ‘‘An Act for Establishing Public Workhouses in the Several Parishes of This Island,’’ 21 Geo. III c. ?, no. 471, 1780. This act expired in 1784 and was replaced by the almost identical ‘‘Act for Establishing Public Workhouses in the Several Parishes of This Island,’’ 24 Geo. III c. 9, no. 553, co 139/37B. Further acts, in 1790 and 1791, renewed the provisions of the 1783 act. See ‘‘An Act to Revive and Continue an Act Entitled ‘An Act for Establishing Public Workhouses in the Several Parishes in This Island,’ ’’ 31 Geo. III c. ?, no. 769, 1790; and ‘‘An Act for Establishing Public Workhouses in the Several Parishes in This Island,’’ 32 Geo. III c. 11, no. 810, 1791. The 1791 act included sections specifying that slaves sent to the workhouses on the sentences of slave courts were to be separated from other slaves. I have been unable to locate the chapter numbers of acts marked ‘‘?’’. Royal Gazette, 1780, 1782. Of the fourteen Caribbean colonies besides Jamaica visited by the British ‘‘Commissioners of Enquiry into the Administration of Criminal and Civil Justice in the West Indies’’ in the 1820s, only Demerara had a workhouse or house of correction. Most had one gaol which held all kinds of prisoners, while some also had one or more ‘‘cages’’ holding a mixture of vagrants, runaway slaves, and slaves sent in by their owners for punishment. The commissioners reported on Antigua, the Bahamas, Barbados, Berbice, British Honduras (Belize), Demerara, Dominica, Grenada, Montserrat, Nevis, Tobago, Tortola, St. Christopher (St. Kitts), and St. Vincent. Only St. Christopher and the Bahamas had more than one cage: pp 1825 (157) XV, pp 1826 (276) XXVI, pp 1826–7 (36) XXIV, pp 1828 (577) XXIII, pp 1829 (334) XXIV. Innes, ‘‘Prisons for the Poor,’’ 82–83; Evans, The Fabrication of Virtue, 94. Meeting of April 11, 1781, St. Ann Vestry Orders, ja 2/9/1. Manchester Vestry Minutes, August 27, 1816, ja 2/17/1; J. T. G. Grant, ‘‘Address on Early History of the Parish of Manchester, 1816–1838, Delivered at a Meeting Held in Mandeville, on 3rd June, 1946, under the Auspices of the Manchester Free Library,’’ ja 7/171/59. St. David Vestry Minutes, June 21, 1834, ja 1B/11/9/7. Evans, The Fabrication of Virtue, 118–31, 146–47. Rusche and Kirchheimer, Punishment and Social Structure; Adamson, ‘‘Punishment after Slavery,’’ ‘‘Towards a Marxian Penology,’’ and ‘‘Hard Labor and Solitary Confinement’’; Lichtenstein, Twice the Work of Free Labor; Melossi and Pavarini, The Prison and the Factory. Pashukanis, Law and Marxism; Melossi and Pavarini, The Prison and the Factory. Foucault, Discipline and Punish. Ibid., 232. Foucault does at points explicitly connect the disciplinary society to capitalism, as when he argues that ‘‘[t]he growth of a capitalist economy

Notes to Chapter 1

7124 Paton / NO BOND BUT THE LAW / sheet 225 of 308

32 33 34 35

36 37 38 39 40 41 42 43

44 45 46 47

48 49

Tseng 2004.8.31 07:45

50

gave rise to the specific modality of disciplinary power, whose general formulas, techniques of submitting forces and bodies, in short, ‘political anatomy,’ could be operated in the most diverse political regimes, apparatuses or institutions’’ (ibid., 221). Adamson, ‘‘Punishment after Slavery,’’ 557. Kingston Workhouse Act. Journals of the Assembly of Jamaica, X, 491, as quoted in Scott, ‘‘The Common Wind,’’ 36. If an individual captured a runaway slave, he or she could now take the slave to a workhouse and be compensated for his or her expenses. The workhouses placed regular advertisements in the island’s newspapers, listing the runaways held within. To retrieve their runaway slaves, owners had to repay the workhouse the money paid to the person bringing in the slave, plus the cost of advertising and of keeping the slave. If the owner did not reclaim the slave, the slave was eventually sold at public auction. A list of slaves who passed through the Port Royal workhouse in 1829 includes four with the annotation ‘‘sold for payment of fees’’: pp 1830 (673) XXI. Long, History of Jamaica. Brathwaite, The Development of Creole Society in Jamaica, 268–95. Ibid., 295. See also Patterson, The Sociology of Slavery, 286, which describes this period as ‘‘the period of consolidation.’’ Craton, Testing the Chains; Patterson, The Sociology of Slavery, 267–73. Geggus, Slavery, War, and Revolution, 88–90. On hegemony as a process by which one class fraction aims to dominate a class bloc, see Gramsci, Selections from the Prison Notebooks, 57–59. For a similar interpretation of Brazilian moves toward state-imposed punishment of slaves, see Brown, ‘‘A Black Mark on Our Legislation.’’ Proceedings of the Kingston Common Council, August 25, 1823, ja 2/6/11. The council also discussed Miss Letman’s behavior at its meetings of July and September 1823. Postscript to Royal Gazette, April 15–22, 1826, co 141/23. On this stereotype, see Hall, Civilising Subjects, 185–86; Midgley, Women Against Slavery, 103. Geggus, Slavery, War, and Revolution, 92–93. For comparative perspectives on the public execution, see Gatrell, The Hanging Tree; Masur, Rites of Execution; Wilf, ‘‘Imagining Justice’’; and Linebaugh, The London Hanged. Manchester to Bathurst no. 106, July 31, 1824, co 137/157; Turner, Slaves and Missionaries, 107–11. Turner, Slaves and Missionaries, 160–62, 176, quote on 161. See also Bleby, Death Struggles of Slavery, 29–39. Mulgrave to Goderich no. 28, October 6, 1832, co 137/183. Mulgrave reports in this dispatch his difficulties in persuading local magistrates of ‘‘the revolting nature of such spectacles, which I observed must tend also to perpetuate recollec-

notes to chapter 1

209

7124 Paton / NO BOND BUT THE LAW / sheet 226 of 308

51 52 53

54 55

56

57

Tseng 2004.8.31 07:45

58 59

210

tions that it was most desirable to obliterate.’’ Mulgrave’s difficulty suggests the divergence in understandings of penality between representatives of the local and imperial state. Belmore to Goderich no. 1, February 10, 1832, pp 1831–32 (482) XLVII. Bleby, Death Struggles of Slavery, 30, as quoted in Turner, Slaves and Missionaries, 162. Establishing a precise quantitative picture of the uses of the prisons is difficult. We do not have full records of prisoners who entered the houses of correction from all routes. Court records allow the partial tracing of the use of imprisonment as a judicial punishment; advertisements placed by workhouses give a sense of the numbers held as runaways. For the last years of slavery, we have occasional censuses of prison populations, but each institution generally provided a unique set of data, making it difficult to compare like with like. In addition, with very few exceptions, these censuses ignored privately admitted enslaved prisoners. Adam Ferguson to Hugh Hamilton, June 23, 1805, Hamilton of Pinmore Muniments, nas, gd 142/35/2. Letterbook of James Chisholme, Nisbet Papers, nls, ms. 5476. See letters of March 4, March 29, and July 6, 1793, and March 3, 1795. The content of the ‘‘wickedness’’ is not detailed in the estate records. This is true of the following plantation account records I have examined: Ardoch Penn, Airth Papers, nls, ms. 10925; Pemberton Valley, Alexander West Hamilton account book, Hamilton of Pinmore Muniments, nas, gd 142/49; Roselle Estate, Hamilton of Pinmore Muniments, nas, gd 142/35/2; Ferry Penn Papers, Airlie Muniments, nas, gd 16/27/291; account book detailing prison fees for a number of estates, including Drax Hall Plantation, Clarendon Estate, Bodless Pen, Retreat Plantation, and others, pro C 107/143. ‘‘An Account of the Proceeds of Ardoch Penn for the Year 1815,’’ Airth Papers, nls, ms. 10925. Ferry Penn Papers, Airlie Muniments, nas, gd 16/27/291. Based on a count of individuals being advertised as runaways in the Royal Gazette in the first advertisement placed by each workhouse of each calendar year, every five years from 1791. As the Royal Gazette for 1796 was not available, I looked at both 1795 and 1797. The size of the enslaved population is from Higman, Slave Population and Economy in Jamaica, 61. Orlando Patterson, who was interested in the ethnic origins of runaways, counted 1,075 individuals advertised in workhouse runaway lists in 1794, 1,721 in 1803, and 1,461 in 1813. He counted every runaway advertised in 1794 and 1813 and used information from Phillips, American Negro Slavery, for 1803 (Patterson, The Sociology of Slavery, 141). My method gives a better indication of change over time than Patterson’s, but, unlike his, it does not give the total number of runaways advertised in any single year. Like Patterson’s, it does not reveal seasonal variation. Another source of quantitative evidence regarding imprisoned runaways, which includes

Notes to Chapter 1

7124 Paton / NO BOND BUT THE LAW / sheet 227 of 308

60

61

62

Tseng 2004.8.31 07:45

63

all those who were committed regardless of whether they were advertised, is a book of ‘‘Receivals and Deliveries of Slaves’’ for the St. Thomas in the Vale house of correction from its opening in 1826 until the end of slavery in 1834 (ja 2/1/4). This book records the committal of 3,690 slaves sent in privately ‘‘for punishment’’ and awaiting collection as runaways and includes a separate list of 56 who had been sentenced by slave courts and were still in the prison on 1 July 1834. I recorded details of all inmates on the first and every tenth subsequent page of the book, creating a sample of 398 committed slaves, or 10.8 percent of all committals. Of this sample, 144 (36 percent) were runaways, suggesting that more than 1,300 slaves were committed to this workhouse as runaways in this eight-year period. The real number of inmates would have been somewhat above this, since runaways who passed rapidly through the workhouses were not included in the monthly advertisements. The 1788 Consolidated Slave Act, 29 Geo III c. 2, no. 682 co 139/44, limited only the extent to which a slave in the workhouse could be flogged, specifying a maximum of ten lashes if neither the slave’s owner nor the workhouse supervisor was present, and a maximum of thirty-nine if one of those individuals was there. The same limitations applied to floggings ordered by masters on plantations. The 1791 workhouse act (32 Geo III c. 11) limited privately ordered incarceration only by specifying that, should a slaveholder not remove his or her slave after three months, that slave was to be sold at public auction in order to recover expenses. The 1791 procedure was amended by the 1826 Consolidated Slave Act (7 Geo IV c. 23, no. 1899, sec. 37), which limited the amount of time for which a slave could be privately sent to a workhouse to ten days and restricted the number of lashes allowed to twenty. Although the Colonial Office approved of this change, the act was disallowed because of its failure to comply with British policy on amelioration, in particular because of its restrictions on slaves’ religious rights (see Huskisson to Keane no. 3, September 22, 1827, co 138/51). Thus, after October 1827 the slave code in force was that of 1816, which did not alter the provisions for owners committing slaves from the eighteenth-century laws. In 1831, a new slave code reinstated the 1826 restrictions; it also prohibited workhouse keepers from receiving slaves on the verbal order of their masters. Written instructions were required instead (‘‘An Act for the Government of Slaves,’’ 1 Will IV c. 25, sec. 34–35, no. 2085, co 139/69). This figure is reached by extrapolating from the sample taken from the St. Thomas in the Vale book of ‘‘Receivals and Deliveries of Slaves’’ described in n. 59. Of the sample, 254 slaves were privately committed. List of Persons Confined in Gaols and Workhouses of Jamaica, 1829, pp 1830 (673) XXI (St. James workhouse); Report on St. Catherine House of Correction, April 16, 1831, George Marshall to John Lunan, April 11, 1831 (on St. Thomas in the Vale workhouse), both enc. in Belmore to Goderich no. 66, July 4, 1831, co 137/178. Planters and prison management in the neighboring parishes of St.

notes to chapter 1

211

7124 Paton / NO BOND BUT THE LAW / sheet 228 of 308

64

65 66

67

68

69 70 71

72

73 74 75

Tseng 2004.8.31 07:45

76

212

Catherine and St. Thomas in the Vale may have deliberately divided the functions of the two prisons. This would explain the inversion of proportion of runaways and private committals between them. First Report of the Commissioners of Enquiry into the Administration of Criminal and Civil Justice in the West Indies: Jamaica, pp 1826–27 (559) XXIV, 76 (hereafter, Legal Commissioners’ Report). Statement of House of Assembly, December 14, 1827, enc. in Keane to Huskisson no. 5, December 24, 1827, pp 1828 (010) XXVII. Isaac Whitehouse to Wesleyan Methodist Missionary Society, July 1, 1829, enc. in James Townley to Horace Twiss no. 4, 8–13, March 10, 1830, pp 1830–31 (91) XVI. For more evidence of the actual and threatened private use of the workhouses, see the evidence given by Kitty Hilton at a council of protection hearing, December 11, 1829, enc. in Belmore to Murray no. 9, pp 1830–31 (231) XVI, December 1, 1830; Bickell, The West Indies as They Are, 14, 26. For a fictional account, see the anonymous novel Marly, 54–55. Barclay, A Practical View of the Present State of Slavery in the West Indies, 412. While Barclay refers only to white men, female and non-white slaveowners may have been even more reluctant to undergo the loss of honor associated with inflicting punishment with their ‘‘own hand.’’ Appendix 59, Votes of the House of Assembly of Jamaica, 1825, co 140/112, 373– 402; for a tabulation of the punishments, see Paton, ‘‘No Bond but the Law,’’ table 2.4. Roderick McDonald came to similar conclusions using the records of the St. Ann slave court in the early nineteenth century: McDonald, The Economy and Material Culture of Slaves, 45. Records of Hanover Slave Court, ja 1A/2/1/1, cases of September 26, 1821, and April 19, 1823. List of Persons Confined in Gaols and Workhouses of Jamaica, 1829, pp 1830 (673) XXI.197; St. Thomas in the Vale ‘‘receivals and deliveries of slaves,’’ ja 2/1/4. Encs. in Belmore to Goderich no. 66, July 4, 1831, co 137/178. The Kingston, St. Elizabeth, St. Ann, and St. James workhouses did not report figures, so the real numbers would be larger. Runaways figures are taken from advertisements in Royal Gazette, January 1831. Enc. in Sligo to Stanley no. 24, May 31, 1834, co 137/192. The sentences are concentrated in the late 1820s and onward because before the 1820s, most of these slaves would have been sold for transportation off the island. Although we do not have figures for earlier years, it is clear that the prison population expanded dramatically in the last ten years of slavery. For a discussion of the reasons for this, see Paton, ‘‘No Bond but the Law,’’ 158–62. This figure excludes a number of runaways who were released on August 1, 1834, the first day of apprenticeship, by order of magistrates. Postscript to Royal Gazette, December 31, 1796, to January 7, 1797. James Chisholme to William Anderson, January 9, 1804, Nisbet Papers, nls, ms. 5476. For discussion of transportation, see Paton, ‘‘An ‘Injurious Population.’’’

Notes to Chapter 1

7124 Paton / NO BOND BUT THE LAW / sheet 229 of 308

77

78 79

80

81

82

83

Tseng 2004.8.31 07:45

84 85

Port Royal Summary Slave Trials, 1819–34, ja 2/19/30 (despite the name, this volume includes trials of free people as well as slaves). Fifteen of the twenty-one free defendants were men; six were women. Although men made up a higher proportion of defendants than did women, those women who were prosecuted were more likely to be prosecuted on multiple occasions. Dalby, Crime and Punishment in Jamaica, table 3.2, p. 81. Postscript to Royal Gazette, April 15–22, 1826, co 141/23. For another case in which slaves were imprisoned for their own safety, see Port Royal Summary Slave Trials, 1819–34, ja 2/19/30, April 8, 1823, and June 19, 1830. Royal Gazette runaway advertisements; pp 1830 (673) XXXI 197; encs. in Belmore to Goderich no. 66, July 4, 1831, co 137/178; enc. in Sligo to Stanley no. 24, May 31, 1834, co 137/192. In twenty-four cases from 1834, the name is of indeterminate sex. By this time, males no longer outnumbered females in the enslaved population (Higman, Slave Population and Economy in Jamaica, 71–75). Zedner, Women, Crime, and Custody in Victorian England, 1, table 3 (317), table 10 (323). Zedner’s figures only begin in 1857. Roughly the same proportion of the prison population in late-nineteenth-century France was female (O’Brien, The Promise of Punishment, 54). Writing about the United States, Nicole Hahn Rafter also notes the minority status of women within prisons, although she does not give precise figures (see Partial Justice). Higman, Slave Population and Economy in Jamaica, 179, using the Returns of Registrations of Slaves for 1832, found that 34 percent of those listed as runaways were female. Most other studies of Jamaica, Barbados, and the United States concur, ranging from 18 percent to 36 percent female runaways (see Heuman, ‘‘Runaway Slaves in Nineteenth-Century Barbados’’; Franklin and Schweninger, Runaway Slaves, 210–13; Beckles, Natural Rebels, 168–70). The exception is Mullin, Africa in America, 35, who found that only 5 percent of Virginian and 10 percent of Jamaican runaways were women. For attempts to write histories of imprisonment that include the perspective ‘‘from the inside,’’ see O’Brien, The Promise of Punishment; DeLacy, Prison Reform in Lancashire, 1700–1850; Aguirre, ‘‘Disputed Views of Incarceration in Lima, 1890–1930.’’ Craton, Searching for the Invisible Man, 250–51. See the descriptions of workhouse labor in the enclosures in Belmore to Goderich no. 66, July 4, 1831, co 137/178, from which much of the information in this paragraph is taken. In addition to performing work that enhanced the profitability of slaveholders’ estates, such as road building, workhouse gangs lessened the burden on slaveholders of supplying enslaved workers to perform public works. As the parish vestry records held in the Jamaica Archives show, work such as road maintenance was organized through a labor tax on slaveowners, who were required to provide a certain number of slaves for a certain number of days per year, as decided by the parish vestry. The more workhouse slaves could be used to perform this type of labor, the less demand was placed on planters to supply it.

notes to chapter 1

213

7124 Paton / NO BOND BUT THE LAW / sheet 230 of 308

86 87 88 89 90 91

92 93

94 95 96

97 98

99

Tseng 2004.8.31 07:45

100 101

214

Coleridge, Six Months in the West Indies in 1825, attacks the use of workhouse gangs in St. Vincent and Antigua. St. Ann Vestry Orders, March 28, 1785, ja 2/9/1. Port Royal Vestry Minutes, July 25, 1832, ja 2/19/4. Kingston Common Council Proceedings, January 22, 1827, ja 2/6/11. Bickell, The West Indies as They Are, 14–15. In at least half of the houses of correction, prisoners were employed as drivers (‘‘Report of Captain J. W. Pringle on Prisons in the West Indies, Part I: Jamaica,’’ pp 1837–8 [596] XL—hereafter, ‘‘Pringle Report’’). See also advertisements placed by the Kingston and St. Mary workhouses in Postscript to Royal Gazette, December 31, 1796, to January 7, 1797, seeking enslaved and free workhouse drivers. pp 1830 (673) XXI; Sligo to Glenelg no. 432, April 25, 1836, co 137/210. Supplement to Royal Gazette, January 7–14, 1797. Cuffie was, the advertisement declared, a Coromantee, ‘‘about 5 feet 5 or 6 inches high, from 25 to 30 years of age, rather slim made, has some old scars about his mouth, and many old marks of severe whipping on his backside.’’ Ibid., November 25 to December 2, 1797; Royal Gazette, November 16–23, 1799. For instance, Charles, escaped from Kingston workhouse: Royal Gazette, April 8–15, 1780. Jack Sheppard was a legendary eighteenth-century English highwayman. He was eventually hanged, after escaping from imprisonment on multiple occasions (Linebaugh, The London Hanged, 7–41). Excarceration is Linebaugh’s term. ‘‘Doubtless, incarceration, in its many forms and for many purposes, was a major theme that can easily and exactly be particularized for London in the early eighteenth century. Yet the theme of incarceration brought with it a counter-theme of excarceration. As the theme of incarceration was played out in workhouse, factory, hospital, school, and ship, so the counterpoint of excarceration was played out in escapes, flights, desertions, migrations and refusals’’ (ibid., 23). Report of Kingston workhouse, enc. in Sligo to Stanley no. 24, May 31, 1834, co 137/192. The 1834 reports of prison populations include twenty-eight escapees who had not been recaptured. Further examples of escapes from prisons are recorded in the returns of those committed to workhouses as runaways who claimed to be free: pp 1826 (353) XXVIII, 486 (escape of John Wilkins from Westmoreland house of correction, 1821), 492 (escape of John Easy from Hanover house of correction, 1822), 493 (escape of Smith Vaugh from St. Thomas in the East house of correction, 1822). Geggus, Slavery, War, and Revolution, 91; ‘‘Examinations of Sundry Slaves in the Parish of Trelawny, Jamaica, Respecting an Intention to Revolt,’’ enc. in Williamson to Dundas, February 12, 1792, co 137/90; Escapee advertisement, Postscript to Royal Gazette, January 15–22, 1791. Goffman, Asylums, 11. For the argument that the reconstruction of prisons as total institutions in En-

Notes to Chapter 1

7124 Paton / NO BOND BUT THE LAW / sheet 231 of 308

102 103 104 105 106

107 108 109 110

111

112 113 114

115

116 117 118 119 120 121 122 123

Tseng 2004.8.31 07:45

124

gland took much longer than has usually been recognized, see DeLacy, Prison Reform in Lancashire, 1700–1850. Patterson, The Sociology of Slavery, 66. Whiteley, Three Months in Jamaica in 1832, 12. Evans, The Fabrication of Virtue, 256. Ibid., 239–42. Kingston Common Council. Proceedings 1820–28, ja 2/6/11. Treadmills were already in place in prisons in Trinidad and British Guiana: Turner, ‘‘11 O’clock Flog.’’ Proceedings of Kingston Common Council, October 4, 1830, ja 2/6/12. Port Royal Vestry Minutes, July 25, 1832, ja 2/19/4. Taylor to Belmore, July 15, 1830, enc. in Belmore to Murray no. 79, December 2, 1830, co 137/172; Goderich to Belmore no. 23, February 28, 1831, co 138/53. The reports are enclosed in Belmore to Goderich no. 66, July 4, 1831, co 137/178; Belmore to Goderich no. 122, November 20, 1831, co 137/179; and Belmore to Goderich no. 179, March 28, 1832, co 137/181. Not all the workhouses separated prisoners by sex. Whiteley criticized the St. Ann’s workhouse for hiring out its inmates in a mixed-sex gang which included ‘‘a man and a woman chained together.’’ Whiteley, Three Months in Jamaica in 1832, 12. Belmore to Goderich no. 179, March 28, 1832, co 137/181. Belmore to Goderich no. 66, July 4, 1831, co 137/178. Beccaria, ‘‘On Crimes and Punishments’’; Bentham, Panopticon, vol. 2. Many of the historians of punishment already cited describe the foundation of penal reform in Enlightenment ideas about human nature. See esp. the works by Ignatieff and Evans and Richard Bellamy’s introduction in Beccaria, ‘‘On Crimes and Punishments.’’ Historians of nineteenth-century Brazil have noted similar dissonances, although they have emphasized the contradiction between the idea of the ‘‘bureaucratic and formally egalitarian vision of society’’ which the penitentiary models and the actual importance of the distinction between the free and the enslaved (see Salvatore, ‘‘Penitentiaries, Visions of Class, and Export Economies’’ 200; Brown, ‘‘A Black Mark on Our Legislation,’’ 105). Murray, The West Indies and the Development of Colonial Government, 104–5. William Burge, in Legal Commissioners’ Report, 214. Custos of Trelawny, ibid., 249. Turner, Slaves and Missionaries, 120–22. Belmore to Goderich no. 4, February 19, 1831, co 137/178. Keane to Huskisson no. 31, February 9, 1828, co 137/167. Slave Code, 7 Geo IV c. 23, sec. 122. Slave Code, 1 Will IV c. 25, secs. 117–22. For examples of cases in which pardoned slaves were advertised for sale or repurchase, see Royal Gazette, May 3–10, 1834, co 141/29, and encs. in Sligo to Stanley no. 24, co 137/192. Ayers, Vengeance and Justice, 61.

notes to chapter 1

215

7124 Paton / NO BOND BUT THE LAW / sheet 232 of 308

125 126 127 128 129 130

2 planters, magistrates, apprentices 1 2

3

4

5

6 7

Tseng 2004.8.31 07:45

Ward, British West Indian Slavery, 202. Roughley, The Jamaica Planter’s Guide, 187. De La Beche, Notes on the Present Condition of the Negroes in Jamaica, 33. Ward, British West Indian Slavery, 202. Lewis, Journal of a West Indian Proprietor, 238–39, 250–51. Ibid., 250.

216

Stanley to Colonial Governors, dispatch D, September 5, 1833, pp 1835 (177) L. Samuel Barrett, as quoted in minutes of evidence taken before the committee of the House of Assembly to enquire into the working of the new system, enc. in Sligo to Spring Rice no. 28, December 29, 1834, pp 1835 (177) L. For other discussions of apprenticeship in the British Caribbean, see Shelton, ‘‘A Modified Crime’’; Wilmot, ‘‘Not ‘Full Free’ ’’; Holt, The Problem of Freedom, 55–112; Hall, ‘‘The Apprenticeship Period in Jamaica, 1834–1838’’; Marshall, ‘‘Apprenticeship and Labour Relations in Four Windward Islands’’; Burn, Emancipation and Apprenticeship in the British West Indies. On the similar apprenticeship period in Suriname, see Emmer, ‘‘Between Slavery and Freedom.’’ Slavery was abolished through gradual processes in the Northern United States; in most of the Latin American republics that gained their independence in the early nineteenth century; and in Cuba, Brazil, and Suriname. On these emancipations, see Blanchard, Slavery and Abolition; Blackburn, The Overthrow of Colonial Slavery, 1776–1848; White, Somewhat More Independent; Berlin, Many Thousands Gone, 228–55; Viotti da Costa, The Brazilian Empire; Conrad, The Destruction of Brazilian Slavery, 1850–1888; Scott, Slave Emancipation in Cuba. The Reconstruction period in the Southern United States, in which labor was overseen by state officials employed by the Freedman’s Bureau, also shares important features with apprenticeship in the British Caribbean. On Reconstruction, see Foner, Reconstruction; Saville, The Work of Reconstruction. This was more the case in Jamaica, which had never had an official protector of slaves, than it was in those colonies with a tradition of a fiscal, procurador fiscal, or protector of slaves. See Turner, ‘‘The 11 O’clock Flog,’’ 38–58, for analysis of how, in Berbice, the creation of the protector of slaves interposed a state official in conflicts between planters and slaves. See also Viotti da Costa, Crowns of Glory, Tears of Blood, 45–46, 61–74. Paton, ‘‘Decency, Dependence, and the Lash.’’ Enc. in Sligo to Stanley no. 12, May 27, 1834, pp 1835 (177) L. The language of this proclamation is also interesting in that it reveals an ambiguity in emancipation policy. What did it mean to be one’s ‘‘own master’’? On one hand, it seems to refer to independent smallholding, and there was certainly a strain in British thought in this period which was nostalgic for a pre-industrial age of the yeoman farmer and projected this into the colonial world (on this, see Comaroff, ‘‘Images of Empire, Contests of Conscience’’). On the other hand, the commit-

Notes to Chapter 2

7124 Paton / NO BOND BUT THE LAW / sheet 233 of 308

8

9

10 11 12

13

14 15 16

17 18 19 20

Tseng 2004.8.31 07:45

21

ment to the continuity of the plantations meant that this was not realistic. If former slaves became peasants on a large scale, who would work for wages on the plantations? The dependent status of the wives and children in Sligo’s phrasing is not accidental but a rhetorically essential (although surely not conscious) way of evading this ambiguity. An emphasis on the fact that the male former slave has dependents disguises his own potentially dependent status as a wage worker. On the relationship between the subordination of women and that of wage workers, see Pateman, The Sexual Contract. Most works that discuss women prisoners note their minority status within the penal system. For instance, see Zedner, Women, Crime, and Custody; O’Brien, The Promise of Punishment; Rafter, Partial Justice; Zárate Campos, ‘‘Vicious Women, Virtuous Women.’’ See, for instance, Holt, The Problem of Freedom, 56. For a critique of the effect of this conceptual opposition on historical writing on Indian indentured labor, see Kale, Fragments of Empire. Stanley to Governors of Legislative Colonies, dispatch E, October 19, 1833, pp 1835 (177) L, 11. Burn, Emancipation and Apprenticeship in the British West Indies. For examples see Holt, The Problem of Freedom; Marshall, ‘‘Apprenticeship and Labour Relations.’’ The idea that apprenticeship was merely the continuation of slavery is nicely encoded in the title of Altink’s ‘‘Slavery by Another Name.’’ For a sophisticated discussion of Caribbean slavery which is nevertheless problematic in its attempt to systematize this linear model, see Stinchcombe, Sugar Island Slavery. Sligo to Stanley no. 12, May 27, 1834, pp 1835 (177) L. Hansard, Parliamentary Debates, May 14, 1833, 1228. Thome and Kimball, Emancipation in the West Indies, 362–63. A similarly slippery use of the language of apprenticeship took place in the United States after emancipation, where some states passed laws giving the courts power to ‘‘apprentice’’ the children of unmarried parents to their former masters. These ‘‘apprentices’’ were not required to be apprenticed to any particular trade; rather, their apprenticeship provided a means for former slaveowners to maintain control over unfree labor. See Scott, ‘‘The Battle over the Child’’; Schwalm, ‘‘A Hard Fight for We,’’ 250–54; Zipf, ‘‘Reconstructing ‘Free Woman.’’’ Holt, The Problem of Freedom, 79. Sligo to Spring Rice, October 12, 1834, Marquis of Sligo Private Letter Book, nlj, ms. 281. Steinfeld, The Invention of Free Labor, and Coercion, Contract, and Free Labor in the Nineteenth Century; Simon, ‘‘Master and Servant.’’ Hay and Craven, ‘‘Master and Servant in England,’’ esp. 177; Craven and Douglas Hay, ‘‘The Criminalization of ‘Free’ Labour.’’ Rogers, ‘‘Vagrancy, Impressment and the Regulation of Labour in EighteenthCentury Britain’’; Simon, ‘‘Master and Servant.’’ On similar processes in the United States, see Montgomery, Citizen Worker, 52–114. Montgomery notes on

notes to chapter 2

217

7124 Paton / NO BOND BUT THE LAW / sheet 234 of 308

22 23 24

25

26 27 28

29 30 31

32

Tseng 2004.8.31 07:45

33

218

58 that ‘‘policing people for the needs of a capitalist market system required a restructuring of government.’’ Ignatieff, A Just Measure of Pain, 107–9, analyzing G. O. Paul’s report on the Gloucester prison in 1809. For example, Corrigan, ‘‘Feudal Relics or Capitalist Monuments?’’ The three acts were the imperial abolition act passed by the British Parliament in 1833 (3 and 4 Will. IV c. 73) and two Jamaican acts of 1834: ‘‘An Act for the Abolition of Slavery in this Island, in Consideration of Compensation, and for Promoting the Industry of the Manumitted Slaves, and to Declare the 52nd George 3rd cap 155 in Force in This Island’’ (4 Will. IV c. 41 No. 3089, co 139/71), and ‘‘An Act to Amend and Explain the Act Fourth William Fourth, Chap. 41, for Abolition of Slaves in Jamaica’’ (5 Will. IV c. ?, No 3141, co 139/72). The text of the Jamaican acts is in pp 1835 (278) L, 273–86. I have not been able to find the chapter number for the second Jamaican act. Subsequent references to these acts are to British Abolition Act, Jamaican Abolition Act, and Act in Aid, respectively. In addition, a second even more pro-planter ‘‘act in aid’’ was passed by the assembly in December 1834. This act was disallowed by the Colonial Office in June 1835 (‘‘An Act to Amend and Explain and Repeal Part of an Act Passed in the Fourth Year of the Reign of His Present Majesty, intituled ‘An Act for the Abolition of Slavery in this Island. . . .’ ’’ pp 1836 (0.44) XLVIII, 10–13, hereafter ‘‘Second Act in Aid’’). Sligo to Glenelg no. 186, December 13, 1835, pp 1836 (166) XLVIII. For further discussion of the development of policing in the Caribbean, see Johnson, ‘‘Patterns of Policing in the Post-Emancipation British Caribbean, 1835–95.’’ W. A. Bell, July 6, 1835, enc. in Sligo to Glenelg no. 151, July 31, 1835, pp 1836 (166) XLVIII. Policemen also sometimes performed these tasks. Affidavit of John McLeod, Lavinia Duncan, Catherine Willis, Betsy Shelly, October 19, 1834, enc. in Sligo to Aberdeen (unnumbered), February 7, 1835, co 137/197 (hereafter, McLeod Affadavit). Another version of this affidavit is in rh, mss. Brit. Emp. S 22 G 60. Affidavit of Robert Davidson, October 18, 1834, enc. in Sligo to Spring-Rice no. 53, October 29, 1834, co 137/193. Sturge and Harvey, The West Indies in 1837, 197. On slave drivers in the United States, see Genovese, Roll, Jordan, Roll, 365–88; Van Deburg, The Slave Drivers. On Jamaica, see Patterson, The Sociology of Slavery, 63. Sligo to the King, August 10, 1834, co 137/192. See also Sligo to Spring Rice no. 17, August 13, 1834, pp 1835 (177) L, and Sligo to Rgt. Hon. Sir George Cockburn, August 31, 1834, nlj, ms. 228, vol. 5. On this strike and a similar action in St. Thomas in the Vale, also suppressed by police and soldiers, see Wilmot, ‘‘Not ‘Full Free.’ ’’ Corrigan and Sayer, The Great Arch, 132–34; Davidoff and Hall, Family Fortunes;

Notes to Chapter 2

7124 Paton / NO BOND BUT THE LAW / sheet 235 of 308

34 35

36 37 38 39

40

41 42 43 44

45 46

Tseng 2004.8.31 07:45

47

Landes, Women and the Public Sphere; Dore, ‘‘One Step Forward, Two Steps Back.’’ For an introduction to the study of marronage, see Price, Maroon Societies. These crimes were listed in the Jamaican Abolition Act and Act in Aid. The last clause was glossed in the Act in Aid to mean ‘‘such crimes and misdemeanors as are by law cognizable and punishable by one justice of the peace when committed by any subject of His Majesty.’’ Jamaican Abolition Act, sec. 16. Slave code, 1 Will. IV c. 25, sec. 12. Paton, ‘‘No Bond but the Law,’’ 206–10. There were 131 convictions in assize courts between August 1834 and December 1835, compared with more than 25,000 punishments imposed by stipendiary magistrates between August 1834 and August 1835. Assizes convictions given in Sligo to Glenelg no. 185, December 5, 1835; stipendiary magistrate punishments in Sligo to Glenelg no. 195, January 22, 1836, both in pp 1836 (166) XLVIII. The records of assizes convictions are totals and do not list the punishments given, making comparison with punishments given by slave courts impossible. For a study of the Jamaican assize courts, see Dalby, Crime and Punishment in Jamaica. The trial record is enclosed in Sligo to Glenelg no. 410, April 9, 1836, co 137/210. The defendant’s name is spelled ‘‘Loughlin,’’ ‘‘Loughlen,’’ ‘‘Loghlin,’’ ‘‘Jockin,’’ and ‘‘Joughlin’’ in the records. Burn, Emancipation and Apprenticeship in the British West Indies, 274–75. Green, British Slave Emancipation, 137–40, quotes on 137. See also Burn, Emancipation and Apprenticeship in the British West Indies, 213–19. On the role of the eighteenth-century gentleman magistrate, see Hay, ‘‘Property, Authority, and the Criminal Law’’; Landau, The Justices of the Peace, 1679–1760. Stipendiary magistrates were introduced in Liverpool in 1836 and Birmingham in 1856. Legislation in 1835 made it possible for any municipality to appoint stipendiary magistrates should it choose to do so. The reform of the judiciary took place as part of the introduction of professional policing. On stipendiary magistrates and local resistance to them, see Philips, ‘‘ ‘A New Engine of Power and Authority.’ ’’ Palmer, Police and Protest in England and Ireland, 1780–1850, esp. chap. 6. Report of R. Chamberlaine, Manchioneal, July 15, 1837, enc. in Smith to Glenelg no. 65, November 2, 1837, pp 1837–38 (154) XLIX, 317. Many stipendiary magistrates, not just those few whose decisions were consistently sympathetic to apprentices, came into conflict with planters. I have evidence of conflicts with planters involving Hill, Norcott, Madden, Facey, Palmer, Hulme, Bourne, Carnaby, Finlayson, Baynes, Ramsay, Chamberlaine, Cooper, Grant, Gurley, and Oldrey. See also Burn, Emancipation and Apprenticeship in the British West Indies, 220–25. Sligo to Lord Suffield, private, January 10, 1835 (incorrectly dated 1834; from its context, the letter must have been written in 1835), nlj, ms. 228, vol. 5.

notes to chapter 2

219

7124 Paton / NO BOND BUT THE LAW / sheet 236 of 308

48

49

50

51

52

53

54

Tseng 2004.8.31 07:45

55 56 57

220

See Jamaican House of Assembly, Report of the Committee Appointed to Enquire into the Conduct of the Stipendiary Magistrates, enc. in Sligo to Spring Rice no. 113, December 27, 1834, co 137/194. See speech by Berry to House of Assembly, enc. in Smith to Glenelg no. 42, March 6, 1838, co 137/226, in which he attacks the stipendiary magistrates, questioning their status as gentlemen. On English magistrates, see Bentley, English Criminal Justice in the Nineteenth Century, 19–28. Sligo’s comment that Stipendiary Magistrate Lyon enjoyed the confidence of the planters ‘‘though a man of colour’’ indicates that this was surprising: Sligo to Aberdeen no. 8, February 8, 1835, co 137/197. M. L. L. to Glenelg, September 18, 1838, co 137/235. See also Salmon to Darling, May 7, 1839, enc. in Smith to Normanby no. 44, July 19, 1839, pp 1839 (523) XXXVI. ‘‘Dan’’ was presumably short for ‘‘dandy.’’ Cassidy and LePage, Dictionary of Jamaican English, 142, gives ‘‘dan-dan’’ although not ‘‘dan’’ as a Jamaican variant on ‘‘dandy.’’ Sligo to Hon. R. Barrett, August 23, 1834, nlj, ms. 228, vol. 5. See also Smith to Glenelg, private, November 20, 1836, co 137/213, and Sligo to Spring Rice no. 6, quite private and confidential, October 15, 1834, nlj, ms. 281, where the governor writes of Richard Hill that ‘‘[t]he brown people have the most inordinate pride.’’ See, for instance, Sligo to Lord Suffield, July 9, 1835, rh, mss. Brit. Emp. S 22 G 60, in which he complains that the reason the Jamaican assembly resists his policies is that it is made up of attorneys who are all ‘‘low people,’’ who started their careers as bookkeepers. British disparagement of creole West Indians for lack of both racial and class status was long-standing. See, for instance, Maria Nugent’s depiction of the ‘‘indolent drawling’’ of Jamaican creole ladies in Wright, Lady Nugent’s Journal of Her Residence in Jamaica from 1801 to 1805, 98. On antislavery views of creole Jamaicans as not quite white, see Hall, ‘‘Missionary Stories.’’ For a more general discussion of colonial anxiety about the boundaries of whiteness, see Stoler, ‘‘Making Empire Respectable.’’ For a discussion of pro-slavery representations of flogging, see Paton, ‘‘No Bond but the Law,’’ 62–77. Hobsbawm and Rudé, Captain Swing; Holt, The Problem of Freedom, 39–41. Corrigan and Sayer, The Great Arch, esp. chap. 6. ‘‘An Act for the Summary Punishment in Certain Cases of Persons Wilfully or Maliciously Damaging or Committing Trespass on Public or Private Property,’’ 4 Will IV c. 34, no. 3124, co 139/72; ‘‘An Act to Restrain and Punish Vagrancy,’’ 4 Will. IV c. 36, no. 3126, co 139/72; ‘‘An Act for Making Further Provision for the Building, Repairing, and Regulating of Gaols, Houses of Correction, Hospitals and Asylums,’’ 5 Will IV c. 8, no. 3142, co 139/72 (1834 Gaols Act); ‘‘An Act for Granting Parochial Aid from the Public Funds for Erecting Houses of Corrections and Treadmills,’’ 5 Will IV c. 21, no. 3164, co 140/125; ‘‘An Act in Aid of an Act Fifth William Fourth Entitled An Act for Making Further Provision for the Building, Repairing, and Regulating of Gaols, Houses of Correction, Hospitals,

Notes to Chapter 2

7124 Paton / NO BOND BUT THE LAW / sheet 237 of 308

58 59 60 61 62

63 64 65

66 67

68 69 70

71 72 73

Tseng 2004.8.31 07:45

74

and Asylums,’’ 5 Will. IV c. ?, no. 3172, pp 1835 (278-I), appendix B, no. 7, 300–301 (I have been unable to locate the chapter number of this act); ‘‘An Act for Consolidating and Amending the Laws in This Island Relative to Larceny and Other Offences Connected Therewith,’’ 7 Will. IV c. 40, no. 3252, co 139/75; ‘‘An Act for Consolidating and Amending the Laws in This Island Relative to Offences Against the Person,’’ 7 Will. IV c. 41, no. 3248, co 139/75; ‘‘An Act for Consolidating and Amending the Laws in This Island Relative to Malicious Injury to Property,’’ 7 Will. IV c. 36, no. 3245, co 139/75. Stanley to Governors of Legislative Colonies, dispatch E, October 19, 1833, pp 1835 (177) L, 11–14, 16–24. For an important discussion of this phenomenon in the context of slavery-era British Guiana, see Viotti da Costa, Crowns of Glory, Tears of Blood, 231–34. Sligo, ‘‘General Instructions to All Special Justices,’’ enc. in Sligo to Aberdeen no. 39, March 5, 1839, co 137/198. Holt, The Problem of Freedom, 98. His comments from April to August 1836 are preserved in the one unnumbered volume among nlj, ms. 228, Letterbooks of Peter Howe Browne, Marquis of Sligo, 8 vols. Ibid., June 24, 1836, no. 4046, 113. E.g., ibid., May 26, 1836, no. 333, 64; ibid., June 3, 1836, no. 3586, 77; August 11, 1836, no. 5229, 217; August 25, 1836, nos. 5538 and 5539, 241. Ibid., July 15, 1836 (Pryce), no. 4548, 159. E.g. ibid., April 29, 1836, no. 2547, 33; May 13, 1836, no. 3135, 41; May 13, 1836, no. 3175, 45; May 19, 1836, no. 3155, 51 (theft). Ibid., June 24, 1836, no. 4039, 107. For examples, see Sligo to Glenelg no, 374, March 10, 1836, co 137/210. See also William Carnaby, ‘‘Record of Visitations, Adjudications, and Valuations &c, by Special Justice Carnaby . . . 1 January to 30th June 1836,’’ ja, 1B/11/23/9 (hereafter, Carnaby Journal), entry dated January 14, 1836 (cases of Sukey Morris and Fanny Thomson). Higman, Slave Population and Economy in Jamaica, 70. Sligo to Spring Rice, August 24, 1834, nlj, ms. 281; Richard Hill to Thomas Pringle, October 12, 1834, rh, mss. Brit. Emp. S 22 G 61. Sturge and Harvey, The West Indies in 1837, contains many examples of such practices. See also Green, British Slave Emancipation, 139–40. Of course, it was normal for an English magistrate to share in the culture and sociability of the local elite; the fact that stipendiary magistrates’ doing so was remarkable indicates the divergence between state functions in the two societies. Sligo to Spring Rice, August 24, 1834, nlj, ms. 281. Madden, A Twelvemonth’s Residence in the West Indies, 2:8. Report of Samuel Lloyd, St. Andrew, October 28, 1835, enc. in Sligo to Glenelg no. 175, December 15, 1935, pp 1836 (166) XLVIII. Sligo to Spring Rice no. 6, quite private and confidential, Oct 15, 1834, nlj, ms. 281.

notes to chapter 2

221

7124 Paton / NO BOND BUT THE LAW / sheet 238 of 308

75 76

77 78

79 80 81

82

83 84

85 86 87 88 89

Tseng 2004.8.31 07:45

90 91

Sligo to Lord Suffield, private, June 15, 1834, nlj, ms. 228, vol. 5. Sligo to W. Finlayson, November 30, 1834, nlj, ms. 228, vol. 5. Many similar cases could be cited. See, for instance, Sturge and Harvey, The West Indies in 1837, 332–34. The second Act in Aid, passed in December 1834 but disallowed by the Colonial Office in July 1835, made it illegal for apprentices to leave the estates in groups of more than four to complain to magistrates. Frederick White, ‘‘Diary of a Magistrate in Jamaica, August 1834–February 1835’’ (hereafter, White Journal), rh, mss. W. Ind. r. 1, entry dated October 21, 1834. Official diary of Stipendiary Magistrate Hulme, February–April 1835, January– May 1836, 3 vols. (hereafter, Hulme Journal), Papers of Dr. J. R. Hulme as Special Magistrate in Jamaica, Staffordshire Record Office (hereafter, Hulme Papers), D 538/C/16/8, March 22, 1836 (case of A. Grant). Williams, A Narrative of Events, 13. See also Thome and Kimball, Emancipation in the West Indies, 394. Sligo to Glenelg no. 195, January 22, 1836, pp 1836 (166) XLVIII, 218–19. See fig. 4 for the distribution of these offenses. I exclude theft from this claim because many of the cases were of theft from other apprentices. Theft from planters should in many instances be categorized as resistance. See Lichtenstein, ‘‘That Disposition to Theft, with which They Have Been Branded,’’ for an argument along these lines in the context of U.S. slavery. Return of Complaints brought before Special Justice William Ramsay during the month of March 1837, enc. in Smith to Glenelg no. 570, May 11, 1837, pp 1837 (521) LIII (hereafter, Ramsay Journal). Carnaby Journal; White Journal; Hulme Journal. Ramsay Journal; Smith to Glenelg no. 570, May 11, 1837, pp 1837 (521) LII (hereafter, Fishbourne Journal); Sligo to Glenelg no, 169, September 28, 1835, pp 1836 (166) XLVIII (Cocking); Sligo to Glenelg no. 103, September 6, 1835, and no. 103B, September 11, 1835, co 137/202 (Cocking, Farrar, Davies, and Pryce). White Journal, entry dated August 7, 1834. Bentley, English Criminal Justice in the Nineteenth Century, 19–28. White Journal, entries dated August 26, 1834 (cases of Benjamin Haywood and John McStarck). Ibid., entry dated September 5, 1834. For a similar case, see Fishbourne Journal, case heard April 12, 1837. Foucault, Discipline and Punish, 97. For explication of the idea of the ‘‘half proof,’’ see Langbein, Torture and the Law of Proof. Abel, ‘‘Western Courts in Non-Western Settings.’’ I base this conclusion on White’s and Carnaby’s journals only, as these are the only ones that list all cases heard over a substantial period of time. It is not possible to know precisely how White’s and Carnaby’s decisions compared with those of their fellow magistrates. However, by comparing the information in the journals with the limited evidence about the totality of magistrates’ decisions in Jamaica, we can gain a sense of how representative the more detailed jour-

222 Notes to Chapter 2

7124 Paton / NO BOND BUT THE LAW / sheet 239 of 308

92

93

94 95

96

Tseng 2004.8.31 07:45

97 98 99 100

nals were. Unfortunately, there is no record of the proportion of all cases heard by magistrates that ended in convictions. However, we have fairly consistent figures for the types and numbers of punishments inflicted by all the magistrates. Comparing White’s and Carnaby’s punishments with those given by all the magistrates in the comparable period reveals that White was somewhat more prone to flog than average but imprisoned in similar proportions to his fellow magistrates, while Carnaby flogged slightly less than his peers and much less than White. White also dealt with a significantly higher number of cases than did Carnaby—almost twice as many cases over a similar time period. For more detail, see Paton, ‘‘No Bond but the Law,’’ 232–33. These figures exclude fifty-one cases against apprentices in which no complainant is listed and where it is not possible to tell whether the complaint was brought by management or an apprentice, and seven cases in which White himself brought a case. Most of the ambiguous cases involve charges of neglect or theft. Since theft could be perpetrated against either another apprentice or the estate, and neglect of duty could mean a watchman failing to prevent destruction of provision grounds, although it more likely meant failing to work, I have not assigned these cases to either category. Even if all of them were apprenticeversus-apprentice cases, management-versus-apprentice cases would still equal more than 91 percent of the total. In reality, many of these ambiguous cases were probably management-versus-apprentice cases. There were also twentyfour cases in which White committed apprentices as runaways. Carnaby was more assiduous than White in noting complainants, so there are no ambiguous cases in his journal. He recorded a total of 238 cases: 194 brought by managers against apprentices, 11 involving apprentices on each side, and 33 brought by apprentices against managers. Twelve of the management-versusapprentice cases involved a manager acting on behalf of an apprentice, playing the sovereign role assigned to him during slavery, as when Ralph Brown of Williamsfield brought charges against John Gray for ‘‘plundering and destroying Sarah Palmer’s provisions’’: Carnaby Journal, January 14, 1836. Fishbourne Journal, entry dated April 1, 1837. For the eighteenth-century evidence, see Paton, ‘‘Punishment, Crime, and the Bodies of Slaves in Eighteenth-Century Jamaica’’; on the 1821–25 slave court, see ‘‘No Bond but the Law,’’ 156. This section is based on the following sources: A. L. Palmer and Patrick Dunne to Sligo, private, October 19, 1834, rh, mss. Brit. Emp. S 22 G 60; Statement of Thomas Learny, November 18, 1834, enc. in Sligo to Spring Rice no. 28, December 29, 1834, pp 1835 (177) L (hereafter, Learny Statement); Sligo to Aberdeen (unnumbered), February 7, 1835, co 137/197; White Journal. Learny Statement. McLeod Affidavit. For full details, see n. 28, above. Learny Statement. McLeod Affidavit.

notes to chapter 2

223

7124 Paton / NO BOND BUT THE LAW / sheet 240 of 308

101 102 103 104 105 106

107 108 109 110

3

treadmill and whip 1

2 3

4

5

Tseng 2004.8.31 07:45

White Journal. McLeod Affidavit. Palmer was a magistrate with a strong pro-apprentice reputation. A. L. Palmer and Patrick Dunne to Sligo, private, October 19, 1834, rh, mss. Brit. Emp. S 22 G 60. White Journal. Learny Statement. See, for instance, Stern, Peru’s Indian Peoples and the Challenge of Spanish Conquest, 114–37; Scott, Domination and the Arts of Resistance, 96–103; Kolchin, Unfree Labor, 273–75. Stern, Peru’s Indian Peoples and the Challenge of Spanish Conquest, takes the first position; Scott, Domination and the Arts of Resistance, takes the second. Walker, ‘‘Crime in the Time of the Great Fear.’’ Viotti da Costa, Crowns of Glory, Tears of Blood, 72. Lazarus-Black, ‘‘Slaves, Masters, and Magistrates,’’ 255. See also her ‘‘John Grant’s Jamaica.’’

Discussions of the West India Prisons Act crisis and its aftermath include Curtin, Two Jamaicas, 97; Green, British Slave Emancipation, 165–70; Holt, The Problem of Freedom, 108–112; Wilmot, ‘‘Political Developments in Jamaica in the Post Emancipation Period,’’ 47–50. Since this chapter was first written an article has been published exploring controversies within and about Jamaican prisons during apprenticeship. See Altink, ‘‘Slavery by Another Name.’’ Altink does not examine the West India Prisons Act controversy itself. Holt, The Problem of Freedom, 64. This pattern has been common in the history of imperialism and has been particularly noted by scholars of British imperialism in India. Gayatri Spivak argues that the standard nineteenth-century imperialist mode was ‘‘White men are saving brown women from brown men.’’ This phrase, in modified form, applies to the Caribbean situation, in which abolitionists depicted white men and white women as saving black women from white and not-quite-white women and men. Spivak, ‘‘Can the Subaltern Speak?’’ 92. Significant works in this discussion include Beccaria, ‘‘On Crimes and Punishments,’’ Bentham, Panopticon, and Howard, The State of the Prisons. Important secondary work dealing with these debates include Heath, Eighteenth Century Penal Theory; Foucault, Discipline and Punish; Ignatieff, A Just Measure of Pain; Evans, The Fabrication of Virtue; and Meranze, Laboratories of Virtue. For a nearly contemporary English approach to punishment that similarly assumes that Enlightenment penal theory is common sense, see sipd, Rules Proposed for the Government of Gaols, Houses of Correction and Penitentiaries. See also the discussion of this and other sipd texts in Evans, The Fabrication of Virtue, 239–42. An 1839 newspaper article on penal reform which refers to both

224 Notes to Chapter 3

7124 Paton / NO BOND BUT THE LAW / sheet 241 of 308

6

7

8 9 10

11 12 13 14 15 16

17 18 19

20 21 22

Tseng 2004.8.31 07:45

23

John Howard and Jeremy Bentham demonstrates that their names and prestige, if not their specific works, were known in Jamaica: Cornwall Chronicle and County Gazette, December 11, 1839. See, for instance, letter of George Blythe, enc. in William Brown to Charles Grant, May 5, 1835, co 137/207; Glenelg to Sligo no. 213, June 28, 1836, pp 1836 (166) XLVIII. Sligo to Glenelg no. 196, February 2, 1836, pp 1836 (166) XLVIII. Degrading was the conventional term used to describe flogging in this period. Other uses include Sligo to Glenelg no. 512, May 15, 1836, pp 1837 (521) LIII; Report of Stipendiary Magistrate John Odell, enc. in Sligo to Glenelg no. 523, July 9, 1836, co 137/212; Smith to Glenelg no. 572, May 26, 1837, co 318/136; Report of Stipendiary Magistrate Richard Chamberlaine, enc. in Smith to Glenelg no. 575, June 12, 1837, co 318/136; Report of Stipendiary Magistrate Edward Dacre Baynes, enc. in Smith to Glenelg no. 65, November 2, 1837, pp 1837–38 (154) XLIX; Report of Stipendiary Magistrate Hall Pringle, enc. in Smith to Glenelg no. 28, February 21, 1838, co 137/231; Glenelg to Smith, private, February 28, 1838, co 138/61. Glenelg to Sligo no. 84, August 29, 1835, co 138/57. Ibid. no. 146, July 1, 1835, pp 1836 (166) XLVIII. See, for instance, report of Edward Dacre Baynes, enc. in Sligo to Glenelg no. 401, April 2, 1836, co 137/210; Sligo, advice to Stipendiary Magistrate Waddington, July 15, 1836, nlj, ms. 228 (unnumbered vol.); Glenelg to the Governors of the West India Colonies, May 25, 1837, co 318/136; R. Chamberlaine, enc. in Smith to Glenelg no. 575, June 12, 1837, co 318/136. The Watchman and Jamaica Free Press, July 16, 1836. Glenelg to Smith no. 155, October 2, 1837, co 138/61. I thank Robert Perkinson for pushing me to think through this argument. Sligo to Aberdeen no. 40, March 5, 1835, and no. 105, May 17, 1835, co 137/198. Sligo to Hon. Stipendiary Magistrate Barrett, private, March 6, 1835. nlj, ms. 228, vol. 5. See, for example, the claim by one slaveholder that enslaved women were ‘‘generally speaking, much worse to manage than the men.’’ Evidence of Robert Scott before the Select Committee on the Extinction of Slavery throughout the British dominions, question 5071, pp 1831–32 (721) XX. Ignatieff, A Just Measure of Pain, 177; Evans, The Fabrication of Virtue, 295. On Trinidad and Berbice, see Turner, ‘‘The 11 O’clock Flog,’’ 52. On the treadmill in Kingston, see chap. 1. Sligo to Spring-Rice no. 50, October 25, 1834, co 137/193. See also Sligo, advice to Stipendiary Magistrate St. John, April 22, 1836, nlj, ms. 228 (unnumbered vol.). Glenelg to Smith no. 100, May 31, 1837, co 138/61. Ibid. The Watchman and Jamaica Free Press, July 13 and 16, 1836. ‘‘The cat’’ refers to the cat-o’-nine-tails. 1834 Gaols Act; for text, see pp 1835 (278) L, 294–300.

notes to chapter 3

225

7124 Paton / NO BOND BUT THE LAW / sheet 242 of 308

24

25 26

27 28 29

30

31 32

33 34

Tseng 2004.8.31 07:45

35

The most significant amendment was a centralizing move introduced by Sligo in council. His amendment removed local responsibility for prisons from the vestrymen, who were locally elected on a limited franchise, and gave it to the local magistrates, who were appointed by the governor on the advice of parish custodes and who, once appointed, maintained their positions until they resigned or were dismissed for wrongdoing: Sligo to Spring Rice, July 20, 1834, nlj, ms. 281. The move could be seen as a response to the growing free black and colored electorate and the possibility that they might in future gain control of the vestries. Holt, The Problem of Freedom, 214–32. For more on the Act see Watchman, 28 June, 2 and 5 July 1834; Votes of the Honourable House of Assembly of Jamaica, June 26, July 2 and 4, 1834, co 140/125. Sligo to Spring Rice, 20 July 1834, nlj, ms. 281. ‘‘An Act for Consolidating and Amending the Laws Relating to the Building, Repairing, and Regulating of Certain Gaols and Houses of Correction in England and Wales,’’ 4 Geo. IV c. 64 (English Gaols Act). For discussion of the English act, see Ignatieff, A Just Measure of Pain, 168. Jamaican Blue Books for 1831–35, co 142/44–48. Kingston Common Council Proceedings, August 25, 1834, ja 2/6/12; Sligo to Glenelg no. 365, March 5, 1836, co 137/210. The installation of treadmills was also encouraged by an act of the same year granting central loans to parishes for their purchase: ‘‘Act for Granting Parochial Aid from the Public Funds for Erecting Houses of Corrections and Treadmills,’’ 5 Will IV c. 21, no. 3164 (Treadmills Act). A list of all treadmills in the island was sent to the Colonial Office in Sligo to Aberdeen no. 96, May 14, 1835, co 137/198. See also Blue Books for 1834–36, co 142/47–49, which list expenditure on seven treadmills. See the architectural plans of Jamaican prisons in co 142/50. Ignatieff, A Just Measure of Pain, 152. Buxton, Memoirs of Sir Thomas Fowell Buxton, includes discussion of Buxton’s work for both causes. The overlap in personnel was also true in the United States: Hirsch, The Rise of the Penitentiary, 76–77; Meranze, Laboratories of Virtue, 296–301. St. David Vestry Minutes, June 21 and July 5, 1834, ja 1B/11/9/7; Plan of St. David house of correction, October 1837, co 142/50. Within the overarching division between men and women, these were convicted felon; convicted misdemeanant; awaiting trial for felony; awaiting trial for misdemeanour; vagrant; and crown witness (1834 Gaols Act, 5 Will IV c. 8, clause 3, reg. 6). This figure is derived from addition of sentences to imprisonment, the treadmill, the penal gang, and solitary confinement (all of which involved incarceration) as reported in enc. in Sligo to Glenelg no. 195, January 22, 1836, pp 1836 (166) XLVIII. Higman puts the apprentice population at just over 300,000 (Higman, Slave Population and Economy in Jamaica, 62). If significant numbers of apprentices were imprisoned multiple times, this would significantly reduce the

226 Notes to Chapter 3

7124 Paton / NO BOND BUT THE LAW / sheet 243 of 308

36

37

38

39

40

Tseng 2004.8.31 07:45

41 42

proportion of all apprentices experiencing imprisonment. However, judging by the Carnaby and White journals, this was not especially common. Carnaby gave out ninety-six prison sentences to ninety-two individuals (i.e. he sentenced four individuals to prison twice); White gave out 259 prison sentences to 254 individuals (sentencing three individuals to prison twice and one three times). In the United States, which has the second highest rate of incarceration in the world after Russia, an estimated 470 per 100,000 population were in state and federal prisons on December 31, 2001 (an increase from 292 per 100,000 in 1990; U.S. Department of Justice, ‘‘Prison Statistics’’). These figures are not strictly comparable to the Jamaican information because they count prison population at any one time rather than the number passing through during the course of a year. Nevertheless, it gives a sense of the scale of the Jamaican use of imprisonment, especially considering that flogging was also a commonly used alternative. No one as far as I know has analyzed the English figures for prison committals, but historians who have analyzed trial statistics have found that rates of indictable committals, combined with committals to prison for summary offenses against property, did not rise above 300 per 100,000 in the 1830s. This includes people tried but not sentenced to prison and so is a larger figure than the actual equivalent to the Jamaican figure would be. See Gatrell and Hadden, ‘‘Criminal Statistics and Their Interpretation,’’ esp. 392–93. ‘‘A Report of Evidence Taken at Brown’s Town and St. Ann’s Bay in the Parish of St. Ann’s, Under a Commission from His Excellency Sir Lionel Smith, Governor of Jamaica,’’ in Williams, A Narrative of Events, 66–67. See also testimony of Letitia Johnston in minutes of meeting of St. Andrew magistrates, June 1, 1837, enc. in Smith to Glenelg no. 36, July 25, 1837, pp 1838 (154) XLIX. Jamaican Abolition Act 1833, 4 Will IV c. 41, co 139/71. Carnaby’s journal records only one sentence of longer than two weeks: he sentenced John Gray, who had been punished several times previously for stealing provisions, to two months’ hard labor. The other sixty-six house of correction sentences he handed down ranged from three to fourteen days (Carnaby Journal). Frederick White gave a significant number of one-month sentences, but, like Carnaby, his maximum sentence was two months’ hard labor. He sentenced only two people to this punishment: once when an apprentice who had escaped from the house of correction, and in the other case for the theft of two pounds (White Journal, entries dated August 26 and September 30, 1834). George Aitcheson to Hector Mitchel, June 13, 1836, in ‘‘Correspondence and Examinations,’’ appendix to ‘‘The Kingston House of Correction,’’ co 142/50, 32. Williams, A Narrative of Events. Port Royal Petty Sessions (Record of Convictions), ja 2/19/31. Unfortunately, it is possible to tell in only 50 of the imprisonment cases whether the defendants were free or apprentices. Of these 50, 35 were free (26 different individuals) and 15 were apprentices (9 individuals), confirming that the regular court system was used disproportionately against poor free people.

notes to chapter 3

227

7124 Paton / NO BOND BUT THE LAW / sheet 244 of 308

43

44 45 46 47 48 49 50 51

52 53

54 55

56 57 58 59 60 61 62

Tseng 2004.8.31 07:45

63

Of the 222 prisoners recorded by Pringle, 112 had been sentenced by stipendiary magistrates (‘‘Pringle Report’’). For more details see Paton, ‘‘No Bond but the Law,’’ 290. ‘‘Pringle Report,’’ 33, 34, 36, 38, 45. Ibid., 32. Ibid., 36, 47, 49. Ibid., 52. Evidence of Elizabeth Holder, enc. in Sligo to Glenelg no. 413, March 30, 1836, co 137/210. Apprentice ‘‘A’’ in Trelawny house of correction; Apprentice ‘‘A’’ in St. John house of correction (both in ‘‘Pringle Report,’’ 5, 46). White Journal, entries dated August 18 and 24, 1834. For a similar case, see ibid., entries dated August 19 and 23, 1834. Beckles, ‘‘Taking Liberties,’’ 150. Beckles argues on the same page that enslaved men ‘‘frequently targeted [the black woman] as an object with which to act out a strategy for the restoration of his crippled and dysfunctional masculinity.’’ While there is strong evidence for the practices he refers to, Beckles’s interpretation of their meaning undermines the larger case he is making for the social construction of gender by implicitly naturalizing one form of masculinity which is then ‘‘crippled’’ by enslavement. Beckles, Natural Rebels, 134–35; Morrissey, Slave Women in the New World, 145– 50. Affidavit of Agnes Davis, enc. in Sligo to Glenelg no. 363, March 5, 1836, co 137/210. Pringle also believed that this kind of abuse was common in the houses of correction (‘‘Pringle Report,’’ 10). Williams, A Narrative of Events, 17. ‘‘Report of Evidence,’’ ibid., 60, 74. See also ‘‘Minutes of Proceedings at Brown’s Town, St. Ann’s, Under Commission from his Excellency Sir Lionel Smith,’’ enc. in Smith to Glenelg no. 49 (no. 210), November 13, 1837, pp 1838 (154) XLIX, 172, testimony of Maria Anderson’s master. Williams, A Narrative of Events, 17. ‘‘Report of Evidence,’’ ibid., 81. See evidence of William Dalling and of Amelia Lawrence, ibid., 53, 61. Ibid., 61 (Lawrence), 65 (White). Affidavit of John Clarke, enc. in Smith to Glenelg no. 36 (no. 144), July 25, 1837, pp 1838 (154) XLIX. Pringle reported conversations with several prisoners who said that relatives were cultivating their grounds (‘‘Pringle Report’’). Affidavit of John Clarke, enc. in Smith to Glenelg no. 36 (no. 144), July 25, 1837, pp 1838 (154), XLIX. Note that this meant Sinclair was immediately involved in defying the demands of apprenticeship again, having been sentenced in the first place for insolence and insubordination. ‘‘Pringle Report.’’ The cutting of apprentices’ hair was discontinued in many of the houses of correction after the publication of this report, which criticized the

228 Notes to Chapter 3

7124 Paton / NO BOND BUT THE LAW / sheet 245 of 308

64 65

66

67 68 69 70

71 72 73

Tseng 2004.8.31 07:45

74

practice. On the cultural and political significance of hair styling among African American slaves in North America, see White and White, ‘‘Slave Hair and African American Culture in the Eighteenth and Nineteenth Centuries.’’ Sligo to Lord Suffield, private as before, July 9, 1835, rh, mss. Brit. Emp. S 22 G 60. In colonial Australia in the same period, head shaving was used with the deliberate purpose of defeminizing female convicts. It is notable that the Australian practice did not meet with criticism from the British colonial authorities. The abolitionist campaign had successfully positioned enslaved and apprenticed women as victims, in contrast to the image of the ‘‘depraved and disorderly’’ female transportee (Damousi, ‘‘ ‘What Punishment Will Be Sufficient for These Rebellious Hussies?’’ and Depraved and Disorderly, 85–109). Henry Bleby, referring to 1830, described the workhouse as ‘‘the terror of the slaves throughout the island, on account of the harrowing cruelties and bloody scenes which were constantly enacted there; and to this place poor sufferers were sent from all parts of the colony, for the express purpose of being subjected to heavier tortures and punishment than could be conveniently inflicted elsewhere’’ (Death Struggles of Slavery, 69–70). Enc. 6 in Sligo to Aberdeen (unnumbered), February 7, 1835, co 137/197. ‘‘Report of Evidence Taken at Brown’s Town,’’ in Williams, A Narrative of Events, 61. Report of Baynes, July 1, 1837, enc. in Smith to Glenelg no. 65, November 2, 1837, pp 1837–38 (154) XLIX. Sturge, Horrors of the Negro Apprenticeship System in the British Colonies. See also the many descriptions of prisons and treadmills in Sturge and Harvey, The West Indies in 1837, and the pamphlet issued by the London Anti-Slavery Society, which describes the treadmill as a ‘‘great instrument of torture . . . a horrible machine which is unsparingly applied to both sexes and in many cases, without the slightest regard to age, sickness, or infirmity’’ (London Anti-Slavery Society, Punishments Inflicted under the Apprenticeship System). George Grey to John Pringle, September 12, 1837, pp 1838 (154) XLIX. Pringle to Grey, February 23, 1838, co 318/136. British Emancipator, January 17, 1838, refers to a ‘‘new Tread-mill scene’’ which will soon be published. An advertisement in the 1838 edition of Williams’s A Narrative of Events reads, ‘‘James Williams’s Narrative fully confirmed in the report of a special commission issued from the Colonial Office. With a Steel Engraving of the Treadmill, price One Shilling.’’ The only edition of A Narrative of Events I have found that contains the engraving is held in the Friends House Library, London. Burn quotes a Reading bookseller ordering 200 copies of the engraving (Emancipation and Apprenticeship in the British West Indies, 343). The engraving drew a hostile reaction from Jamaican planters. ‘‘We understand some seditious prints and caricatures, sketched by some of the Special rebels, have been sent out by late arrivals, exhibiting a treadmill, with negroes writhing on it under every pos-

notes to chapter 3

229

7124 Paton / NO BOND BUT THE LAW / sheet 246 of 308

75 76 77 78

79 80

81

82 83 84 85 86 87

Tseng 2004.8.31 07:45

88

230

sible degree of torture; some with mangled flesh and broken libs, and some lying dead, or dropping lifeless from the rack of torture; whilst an ill-favoured white driver is raising a huge whip over the backs of the half-expiring victims! Now, we ask, is this not a gross libel on the Magistracy and Judges of the land, and ought not the miscreants, who drew the picture, to be prosecuted as lying rebel incendiaries, seeking to endanger not only the character but the property and lives of the inhabitants by the circulation of these seditious prints?’’ ( Jamaica Despatch, as quoted in British Emancipator, June 27, 1838). Holt, The Problem of Freedom, 107; Walvin, Black Ivory, 176 ff.; Craton, Searching for the Invisible Man, 248. This was an extract from Sligo’s address to the House of Assembly on February 3, 1836. The attribution is not visible on the reproduction. The notable exception to this is criticism offered by apprentices themselves, such as in the testimony of Amelia Lawrence quoted earlier. Two of these deaths in prison, those of Frederick Shrieves and Louisa Beveridge, are discussed later. In addition, Anna Maria Thompson died in the St. George house of correction; the deaths of ten other apprentices were revealed in the course of an inquiry into the St. Thomas in the East house of correction after Beveridge’s death. In addition to the case of Daniel, discussed later, Letitia Johnston died on her way home from the St. Andrew house of correction. John Gurley to Sligo, July 12, 1835, enc. in Sligo to Glenelg no. 68, July 31, 1835, co 137/200. Sligo to Glenelg no. 133, September 25, 1835, co 137/202; Evidence in the Case of Shrieves, an Apprentice to Alexander Lindsay Esq., Hulme Papers, D 538/C/16/5; Sligo to Glenelg no. 413, March 30, 1836, co 137/210; Sligo to Glenelg no. 537, July 15, 1836, pp 1837 (521) LIII. Thomas Jenkins, the supervisor of the house of correction, was prosecuted for murder but acquitted. He was later convicted of common assault and jailed for six months. Committee of Superintendence of Kingston house of correction to Sligo, March 12, 1835, enc. in Sligo to Aberdeen no. 75, April 12, 1835, co 137/198. In some documents, Williams is referred to as ‘‘Jeannette’’ rather than ‘‘Janet.’’ Sligo, message to House of Assembly, enc. in Sligo to Glenelg no. 216, June 13, 1836, pp 1836 (166) XLVIII. Report from Select Committee on Negro Apprenticeship in Colonies, pp 1836 (560) XV, iii–ix. Sturge and Harvey, The West Indies in 1837, 364. For a discussion of offenses established by the Abolition Act, see chap. 2. See William Wemyss Anderson to Sligo, April 18, 1836, enc. in Sligo to Glenelg no. 432, April 25, 1836, co 137/210. House of Assembly to Sligo, as quoted in William Burge to Glenelg, March 21, 1836, pp 1836 (174) XLVIII. Report of the Committee of the House of Assembly, Submitted in Evidence by William Burge, August 5, 1836, Report from Select Committee on Negro Apprenticeship in Colonies, pp 1836 (560) XV.

Notes to Chapter 3

7124 Paton / NO BOND BUT THE LAW / sheet 247 of 308

89 90 91 92

93 94

95 96

97 98

99 100 101 102

103

104

105 106

Tseng 2004.8.31 07:45

107 108

John Mais to Darling, February 6, 1837, enc. in Smith to Glenelg no. 57, February 13, 1837, co 137/219. Jamaica Despatch and New Courant, February 7, 1837. Sligo to Aberdeen no. 75, April 12, 1835, co 137/198. Affidavit of Jane Reid, enc. in Sligo to Glenelg no. 58, July 18, 1835, co 137/200; Thomas J. Baines to Sligo, February 9, 1836, enc. in Sligo to Glenelg no. 508, April 9, 1836, pp 1837 (521) LIII; Evidence taken in Mandeville house of correction, June 6, 1836, enc. in Sligo to Glenelg no. 216, June 13, 1836, pp 1836 (166) XLVIII; Sturge and Harvey, The West Indies in 1837, 190. Williams, A Narrative of Events, 19. Sligo to Aberdeen no. 75, April 12, 1835, co 137/198. For a similar case, see affidavit of Jane Reid, enc. in Sligo to Glenelg no. 58, July 18, 1835, co 137/200. See also evidence of Edward Brown, ‘‘Kingston House of Correction,’’ 37–38. ‘‘Pringle Report,’’ 8. For instance, he asked the Colonial Office for advice as to ‘‘what steps can be taken properly when individuals sentenced to the tread-mill refuse to submit to the punishment; they have latterly been hanging by straps to the hand-rail, but many throw themselves off ’’ (Sligo to Glenelg no. 514, July 30, 1836, pp 1837 [521] LIII). Sligo to Glenelg nos. 508, 509, 514, April 1836, pp 1837 (521) LIII. Holt discusses this case in The Problem of Freedom, 64–65. For examples of collective cases in which magistrates flogged men but imprisoned women, see Postscript to Royal Gazette, August 6–September 13, 1834 (case heard by Stipendiary Magistrate Finlayson at Spanish Town); White Journal, August 15 (Lowlayton estate), August 18 (Argulla estate and Gibraltar estate), November 17 (Kildare estate), 1834; Stipendiary Magistrate Woolfrys to Darling, July 16, 1838, enc. in Smith to Glenelg no. 146, August 7, 1838, co 137/229. British Emancipator, April 25, 1838. Nunes to Special Magistrates, June 3, 1836, in Hulme Papers, D 538/C/16/2. ‘‘Kingston House of Correction.’’ Sligo made explicit requests to the assembly for such legislation in November and December 1835 and in February 1836. His successor, Lionel Smith, asked the assembly to legislate in March, October, November, and December 1837. Sligo, message to House of Assembly, November 17, 1835, as quoted by William Burge in evidence to House of Commons Select Committee on Apprenticeship, July 5, 1836, pp 1836 (560) X. Glenelg to Sligo no. 206, June 14, 1836, pp 1836 (166) XLVIII. Glenelg made similar recommendations in July and December 1837 and in February 1838. It does not appear that Sligo followed this advice; Smith did so, but not until April 1838. Sligo to Glenelg no. 558, August 1, 1836, co 137/212. Joseph Sturge to Rev. John Clark, Browns Town, May 30, 1837, Sturge Papers, Fenn Collection, Angus Library, Regents Park College, Oxford. Sturge, Horrors of the Negro Apprenticeship System in the British Colonies. Sturge to Clark, June 15, 1837, repr. in Williams, A Narrative of Events, 96–97.

notes to chapter 3

231

7124 Paton / NO BOND BUT THE LAW / sheet 248 of 308

109 110

111 112 113

114

115

116 117 118 119

Tseng 2004.8.31 07:45

120

Report of the Select Committee on Negro Apprenticeship, pp 1837 (510) VII. Glenelg to Smith no. 130, August 25, 1837, co 138/61. Anti-apprenticeship campaigners continued to focus on abuses within Caribbean prisons until the abolition of the apprenticeship system. For examples, see almost any issue of British Emancipator, but especially no. 6, February 28, 1838, which reports Lord Brougham’s recent speech to the House of Lords in which he emphasized the deaths of eleven women while on the treadmill. Mitchel to Pringle, December 20, 1837, in Kingston Common Council Proceedings, December 28, 1837, ja 2/6/13. Warren to Moresby, February 27, 1838, enc. in Smith to Glenelg no. 79, April 24, 1838, co 137/227. See also the other enclosures in this document. ‘‘Kingston House of Correction,’’ 39 (Quin), 41 (Coffey), 40 (Thomson). See also evidence of the prison boatswain Edward Brown (41) and the prisoners William Dickson (41) and James Rennalls (42). For discussion of rebellions which followed this pattern, see Craton, Testing the Chains, pt. 5; Viotti da Costa, Crowns of Glory, Tears of Blood; Turner, Slaves and Missionaries. Glenelg to Smith no. 287, June 8, 1838, co 138/62. The decision was also a response to the arrival in England in January 1838 of the results of the inquiry established to investigate the charges contained within Williams’s A Narrative of Events. The inquiry heard testimony from more than 100 apprentices which cumulatively revealed that there were even more problems in the St. Ann house of correction than had been documented in the original pamphlet. The full testimony is in Glenelg to Smith no. 209, February 1, 1838, co 138/61. For substantial extracts, see Williams, A Narrative of Events, 45–93. Glenelg to Smith no. 221, February 13, 1838, co 138/61. ‘‘Pringle Report,’’ 10. ‘‘Act for the Better Government of Prisons in the West Indies,’’ 1 & 2 Vict. Cap. 67 (British). The text of the act is in co 318/136. In June 1838, the Jamaican House of Assembly passed legislation abolishing the apprenticeship system from August 1, 1838. Historians have attributed the early abolition of apprenticeship to a number of factors, including fear that the emancipation of the non-praedial apprentices would lead to the violent resistance of praedials who remained as apprentices, a desire on the part of planters to escape the supervision of stipendiary magistrates, and the planters’ belief that the growing British campaign against apprenticeship would lead to further imperial intervention if the system was not abolished. It is my contention that apprentices’ actions—in particular, in the prisons—played an important role in making the system seem untenable by this point, including by contributing directly to the British abolitionist campaign. For other discussions of the abolition of apprenticeship, see Burn, Emancipation and Apprenticeship in the British West Indies, 357–59; Holt, The Problem of Freedom, 104–5; Marshall, ‘‘The Termination of the Apprenticeship in Barbados and the Windward Islands.’’ ‘‘Rules and Regulations for the Jamaican Gaols, Houses of Correction, &c.,’’

232 Notes to Chapter 3

7124 Paton / NO BOND BUT THE LAW / sheet 249 of 308

121 122

123

124

125

4

penality and politics 1 2 3 4 5

6 7 8

9 10

Tseng 2004.8.31 07:45

issued in Council, November 24, 1838, enc. in Sligo to Glenelg no. 40, December 25, 1838, pp 1839 (107) XXXV, 167–69. Morning Journal, n.d., reporting meeting of the Kingston Common Council in June 1839, enc. in Smith to Normanby no. 153, August 1, 1839, co 137/239. This paragraph draws heavily on Holt, The Problem of Freedom, 105–12; Green, British Slave Emancipation, 165–70; and Wilmot, ‘‘Political Developments in Jamaica in the Post Emancipation Period,’’ 47–50. Melbourne, the Whig prime minister, resigned after this vote, expecting Sir Robert Peel to form the next government. As a result of the ‘‘bedchamber crisis,’’ in which Queen Victoria refused to allow her Whig ladies-in-waiting to be replaced by Tories, Peel refused to form a government. Melbourne returned to office, but his government was much weakened (Mandler, Aristocratic Government in the Age of Reform, 195–200; Newbould, Whiggery and Reform, 1830–41). Metcalfe to Russell no. 41, January 12, 1840, co 137/248 (assents to Vagrancy Act); Metcalfe to Russell no. 50, March 30, 1840, co 137/248 (attacks Baptists); Metcalfe to Russell no. 20 (no. 58), April 14, 1840, pp 1841 sess. 2 (344) III, 94–95 (orders cessation of stipendiary magistrate reports; the colonial secretary refused to agree to their full cessation, but they were reduced from monthly to half-yearly reports). ‘‘An Act to Provide for the Regulation of the Gaols, Houses of Correction, and Other Prisons in This Island,’’ 3 Vict. c. 45, no. 3341, co 139/77.

Hinton, Memoir of William Knibb, 258; Falmouth Post, August 15, 1838. Middleditch, The Youthful Female Missionary, 145. Falmouth Post, August 15 and 22, 1838; Baptist Missionary Society, Freedom in Jamaica; Henderson, Goodness and Mercy, 73–74. Indentured workers (from India and Africa) did experience directly coerced labor; they are the exception to this point. Rao and Pierce, Discipline and the Other Body; Sen, Disciplining Punishment; Santiago-Valles, ‘‘Subject People’’ and Colonial Discourses, and ‘‘‘Forcing Them to Work and Punishing Whoever Resisted.’’ Scott, Refashioning Futures, chap. 1. Arnold, ‘‘The Colonial Prison.’’ Sen, Disciplining Punishment, 15. Sen perhaps exaggerates, however, the extent to which even in Britain it was desirable that the lower orders behaved like the elite. Encs. in Smith to Glenelg no. 149, August 13, 1838, co 137/231. The 1834 figures are from Sligo to Glenelg no. 426, April 18, 1836, co 137/210. The 1840 figures are from Return of the Gaols and Houses of Correction in Jamaican Blue Book of Statistics for 1840, co 142/54. (There are extensive arithmetic errors in this table. I have recalculated the totals.) Just under 63 percent of the 1,170 prisoners in gaols and houses of correction on Michaelmas 1840 had been

notes to chapter 4

233

7124 Paton / NO BOND BUT THE LAW / sheet 250 of 308

11

12 13

14

15

16

17

Tseng 2004.8.31 07:45

18

234

convicted of a crime: 171 were debtors, 268 were awaiting trial, and 736 were convicts. ‘‘An Act to Amend the Laws Relating to Offences Against the Person,’’ 4 Vict. c. 45, no. 3401. See also Higginson to All Custodes no. 501, in Metcalfe to Russell no. 210, April 29, 1840, co 137/258. This circular advised magistrates to follow a policy of not sentencing offenders to floggings. The only exception allowed was for male juvenile offenders: ‘‘it may be advisable in cases in which admonition would be of no avail to chastise boys gently according to school discipline, rather than place them in prisons where they would learn new crimes, and become hardened in vicious habits.’’ The logic behind this exception, which was surely not unique to Jamaica, requires further consideration. Glenelg to Smith no. 70, March 30, 1837, co 138/61. On this decision, see Paton, ‘‘Injurious Population.’’ Dalby, Crime and Punishment in Jamaica, table 3.2, p. 81, figs. 3.1–3.3, pp. 86– 87. Before 1834, the proportion of prison sentences as a total of all sentences in Dalby’s study never reached 50 percent. In the 1840s, it stood at 60 percent, and in the 1850s, above 80 percent. Note that Dalby’s study looks only at assize courts, which could not try slaves. His data for the period prior to 1834 reveals punishment experienced by the free population. This explains the apparent contradiction between my claim that the fine became newly significant and Dalby’s figures showing a decrease in the use of fines. Information for 1845 and 1847 shows that prisoners in the penitentiary were generally serving sentences of between one and three years. There were, however, far fewer life sentences than there had been during slavery. As during slavery, the most common crime was theft: Statistical Table, General Penitentiary, enc. in Grey to Grey no. 11, March 9, 1849, pp 1849 [1065] XXXVII. See also Return of all convictions in assizes and quarter sessions, plus convictions for larceny in petty sessions, for seven years ending August 31, 1845, enc. in Elgin to Stanley no. 10, December 31, 1845, pp 1846 (691) XXVIII; John Daughtrey, ‘‘Brief Review and Report of the General Penitentiary,’’ February 26, 1844, enc. in Elgin to Stanley no. 57, April 6, 1844, co 137/279 (hereafter, Daughtrey Report 1844); Paton, ‘‘No Bond but the Law,’’ 345–46. Figures for prison populations in this paragraph are calculated from the Jamaican Blue Books of statistics, co 142. Data were recorded for every third year between 1837 and 1870. For total population, see Higman, The Jamaican Censuses of 1844 and 1861. On the cholera epidemic, see Hall, Free Jamaica, 102–3; Green, British Slave Emancipation, 311–12. On the Great Revival, see Stewart, Religion and Society in Post-Emancipation Jamaica, 145–48; Austin-Broos, Jamaica Genesis, 55–62. Yang, ‘‘Disciplining ‘Natives’’’; Boa, ‘‘Discipline, Reform or Punish?’’; De Barros, ‘‘Metropolitan Policies and Colonial Practices at the Boys’ Reformatory in British Guiana.’’ Pago, Les Femmes et la liquidation du système esclavagiste à la Martinique 1848– 1852, 147–48.

Notes to Chapter 4

7124 Paton / NO BOND BUT THE LAW / sheet 251 of 308

19

20 21 22 23 24 25 26 27

28

29 30 31 32 33 34 35 36

Tseng 2004.8.31 07:45

37 38

Encs. of Moresby, Woolfrys, Abbot, and Brown, in Metcalfe to Russell no. 10, February 9, 1840, pp 1841 (344) III, 14–70, and in Metcalfe to Russell no. 210, December 23, 1840, co 137/258. Encs. in Metcalfe to Russell no. 210, December 23, 1840, co 137/258. Ibid. On Howard, see Ignatieff, A Just Measure of Pain, 47–57. William Crawford and Whitworth Russell to James Stephen, May 19, 1840, enc. in Russell to Metcalfe no. 11, June 15, 1840, pp 1841 (344) III, 70–77. Metcalfe to Russell no. 210, April 10, 1840, co 137/258. Blue Books for Jamaica, co 142. ‘‘Pringle Report’’ lists thirty-one prisons in 1838. Darling to Newcastle no. 153, October 31, 1861, co 137/357. Elgin to Stanley no. 81, June 28, 1843, co 137/279. The most famous visitor to North American prisons was Alexis de Tocqueville: see de Beamont and de Tocqueville, On the Penitentiary System in the United States and Its Application in France. The British prison inspector William Crawford also visited the United States on an official mission to investigate American prison systems. On Latin Americans’ visits to U.S. prisons, see Salvatore and Aguirre, ‘‘The Birth of the Penitentiary in Latin America,’’ 4, 35, n. 5; on Crawford’s visit, see Ignatieff, A Just Measure of Pain, 194–95, and Evans, The Fabrication of Virtue, 323–25. John Daughtrey, ‘‘Inspectors Report of the General Penitentiary,’’ October 1, 1845, enc. in Elgin to Stanley no. 104, December 17, 1845, co 137/285 (hereafter, Daughtrey Report 1845). Daughtrey was also influenced in this decision by correspondence with the Colonial Office. See Elgin to Stanley (unnumbered), April 12, 1842, co 137/263; Elgin to Stanley no. 36, October 16, 1842, co 137/263. Falmouth Post, March 4, 1845, reprinting an article from Morning Journal. In fact, the cells, when built, were of slightly different dimensions. Report of the Inspector of Prisons, February 1849, enc. in Grey to Grey no. 12, March 10, 1849, pp 1849 (1065) XXXVII; Daughtrey Report 1845. John Daughtrey to T. F. Pilgrim, September 8, 1853, enc. in Grey to Newcastle no. 95, September 23, 1853, co 137/318. Evans, The Fabrication of Virtue. Daughtrey to Pilgrim, September 8, 1853, op. cit. Morning Journal, May 10, 1842. This prison remains Jamaica’s General Penitentiary. As Americas Watch described it in 1990, ‘‘The General Penitentiary . . . is another antiquated, decrepit maximum security institution. Built in the 1840s, its stated capacity is 850. On the day of our visit, the population was 1,498. . . . Encircled by high brick walls, the cellblocks are two-tiered buildings that face onto courtyards. The cells, which measure five feet by eight feet, house four or five inmates each’’ (Prison Conditions in Jamaica, May 1990, 22–23). The penitentiary’s population density—four or five per cell—was thus the same in 1990 as it had been in 1849. Daughtrey Report 1845. Enc. in Metcalfe to Russell no. 37, December 23, 1839, co 137/240.

notes to chapter 4

235

7124 Paton / NO BOND BUT THE LAW / sheet 252 of 308

39 40

41 42

43 44 45 46 47 48 49 50 51

52 53

54

55 56

Tseng 2004.8.31 07:45

57

236

Morning Journal, April 14 and 15, 1847, responding to an article in the Jamaica Despatch. See, for instance, Long, History of Jamaica, 2:214, as quoted in Edwards, ‘‘The Development of Criminal Law in Jamaica up to 1900,’’ 122; First Report of the Commissioners of Enquiry into the Administration of Criminal and Civil Justice in the West Indies, Jamaica, pp 1826–27 (559) XXIV; ‘‘Pringle Report.’’ See the rules and regulations for several prisons, enc. in Smith to Glenelg no. 50, March 28, 1838, co 142/50. Meranze, Laboratories of Virtue, 184. See also Dodge, ‘‘ ‘One Female Prisoner Is of More Trouble Than Twenty Males.’’’ Dodge argues that in Illinois prisons, the desire to separate prisoners by sex was driven by concern that women would corrupt male prisoners rather than a desire to protect females. Altink, ‘‘Slavery by Another Name,’’ 53; Paton, ‘‘Introduction’’ to Williams, A Narrative of Events, xlii, and ‘‘No Bond but the Law,’’ 295–301. H. Moresby to J. M. Higginson, in Metcalfe to Russell no. 210, December 23, 1840, co 137/258. Falmouth Post, May 4, 1849. Ibid., May 15, 1849. S. Pryce to Higginson, January 1, 1841, in Metcalfe to Russell no. 210, co 137/258. Metcalfe to Russell no. 212, April 30, 1841, co 137/255. Hall, ‘‘White Visions, Black Lives.’’ Daughtrey Report 1844. Governor Metcalfe had instructed prison superintendents to discontinue flogging as punishment for breaches of prison discipline in 1840 (Higginson to all Custodes no. 501). Daughtrey Report 1844; Daughtrey Report 1845. The claim with regard to recidivism is in the 1845 report. John Daughtrey, Stipendiary Magistrate’s report on St. Elizabeth, June 30, 1835, enc. in Sligo to Glenelg no. 48, July 7, 1835, co 137/200 (‘‘violent jabber’’); Daughtrey Report 1844 (‘‘proverbially talkative’’). Orlando Patterson notes that the stereotype of the slave as a ‘‘lying, cowardly, lazy buffoon devoid of courage and manliness’’ was common to large-scale slaveholding societies, giving examples from ancient Rome, medieval Iraq, and the Fulani, as well as Jamaica and the U.S. South (Slavery and Social Death, 338). As Deborah Gray White points out (and Patterson’s apparently unconscious use of the term ‘‘manliness’’ makes clear), the ‘‘sambo’’ stereotypes related mainly to men; slave women were stereotyped somewhat differently (Ar’n’t I a Woman? chap. 1). Daughtrey Report 1845. See, for instance, Morning Journal, May 19, 1842, April 14–15, 1847, April 16–17, 1847. Speech by Chamberlaine at Manchioneal Wesleyan Chapel, reported in Morning Journal, August 17, 1838, enc. in R. Chamberlaine to Normanby no. 8, June 27, 1839, pp 1839 (523) XXXVI.

Notes to Chapter 4

7124 Paton / NO BOND BUT THE LAW / sheet 253 of 308

58

59

60

61 62 63

64 65 66 67 68 69 70

71 72 73

Tseng 2004.8.31 07:45

74 75

See Metcalfe to Russell no. 103, August 5, 1840, co 137/249, and Edward Dacre Baynes to Metcalfe, December 15, 1839, enc. no. 15 in Metcalfe to Russell no. 10, February 9, 1840, pp 1841 (344) III, 26, for examples of arguments in favor of the separate system. It should be noted that this system proved too expensive even in the wealthiest countries. William Crawford, 1834, as quoted in Ignatieff, A Just Measure of Pain, 195. The ‘‘separate system’’ was hotly opposed by advocates of the actually rather similar ‘‘silent system’’ in which prisoners were confined to individual cells at night but worked together in silence during the day. On the debate between the two systems, see Forsythe, The Reform of Prisoners 1830–1900, chap. 1, and Henriques, ‘‘The Rise and Decline of the Separate System of Prison Discipline.’’ On the United States, see Rothman, The Discovery of the Asylum, 79–108. Peter Brown to J. M. Higginson, in Metcalfe to Russell no. 210, December 31, 1840, co 137/258. See also Lyon report, in Metcalfe to Russell no. 44, February 9, 1840, co 137/248. Morning Journal, May 19, 1842. Metcalfe to Russell no. 248, September 21, 1841, co 137/256. H. B. Shaw, ‘‘Answers with regard to the general penitentiary in response to ‘Interrogatories Respecting the Construction, State Discipline, and Management of Each Prison, House of Correction, Lock-up House, Convict Depot, Penal Settlement, or Other Place of Confinement in the Colony of [Jamaica],’’’ enc. in Eyre to Cardwell no. 48, March 16, 1865, co 137/388 (hereafter, Shaw Report 1865). Daughtrey Report 1845. St. Thomas in the Vale Vestry Minutes, 1852–59, ja 2/1/2. Edward Dacre Baynes, Richard Hill, and Richard Chamberlaine to Metcalfe, December 31, 1840, in Metcalfe to Russell no. 210, co 137/258. William Crawford and Whitworth Russell to Stipendiary Magistrate Phillipps, July 18, 1840, enc. in Russell to Metcalfe no. 111, July 30, 1840, co 137/248. Falmouth Post, November 24, 1848. For a similar argument, see ibid., February 21, 1844. Grand Jury of Kingston, reported in Morning Journal, May 21–22, 1847. Report of Trelawny Quarter Sessions Proceedings, Falmouth Post, November 29, 1843. See also the proposal made in Cornwall Chronicle and County Gazette, December 11, 1839, for a motto above the entrance to a prison reading, ‘‘Violence and knavery, are the road to slavery.’’ Daughtrey Report 1844. Daughtrey Report 1845; Bell to Labouchere no. 62, December 10, 1856, co 137/ 332. ‘‘An Act in Aid of an Act . . . entitled An Act to provide penitentiaries in this Island,’’ 7 Vict. c. 63. Shaw Report 1865. ‘‘An Act to Authorize the Removal of the Female Penitentiary in Saint Andrew to a Portion of the General Penitentiary in Kingston,’’ 16 Vict. c. 23, no. 3905.

notes to chapter 4

237

7124 Paton / NO BOND BUT THE LAW / sheet 254 of 308

76 77 78 79 80 81

82

83 84

85

86

87 88 89 90 91

Tseng 2004.8.31 07:45

92

238

Higginson to all Custodes no. 1211, in Metcalfe to Russell no. 210, May 4, 1840, co 137/258. Curtin, Two Jamaicas, appendix C. Holt, The Problem of Freedom, 208–13. For general discussion of post-emancipation political economy, see Curtin, Two Jamaicas; Holt, The Problem of Freedom; and Hall, Free Jamaica. For example, Foucault, Discipline and Punish; Ignatieff, A Just Measure of Pain; Rothman, The Discovery of the Asylum. DeLacy, Prison Reform in Lancashire, 1700–1850, and McConville, A History of English Prison Administration, 1:365–74. Both show that penal reform in English local prisons lagged far behind national policy. Higginson to all Custodes no. 501 recommended the abandonment of flogging as a punishment within penal institutions. In 1842, 6 Vict. c. 53 allowed magistrates to order corporal punishment of male prisoners in case of ‘‘riotous conduct’’ or ‘‘combined resistance to the [prison] authorities.’’ Ignatieff, A Just Measure of Pain, 177. In 1850, Colonial Office Secretary James Stephen compared Jamaica to the white settler colonies. ‘‘We emancipate our grown-up sons, but keep our unmarried daughters . . . in domestic bonds’’: as quoted in Holt, The Problem of Freedom, 235. Holt, The Problem of Freedom, 286–88; Wilmot, ‘‘Political Developments in Jamaica in the Post Emancipation Period,’’ 260–63; Heuman, Between Black and White, 183. ‘‘An Act to Authorize the Infliction of Corporal Punishment in Certain Cases of Larceny and Other Offences,’’ 28 Vict. c. 18, no. 4498 (Whipping Act of 1865). The Colonial Office refused to assent to this act unless the maximum number of lashes was reduced to thirty-six (Cardwell to Eyre no. 213, June 1, 1865, co 137/388). Wilmot, ‘‘Political Developments in Jamaica in the Post Emancipation Period,’’ 261. Minute by ‘‘C. F.,’’ in Eyre to Cardwell no. 256, September 10, 1864, co 137/384. Wilmot, ‘‘Political Developments in Jamaica in the Post Emancipation Period,’’ 261; Holt, The Problem of Freedom, 286–87. Falmouth Post, January 29, 1850. ‘‘An Act to Authorize the Several Courts of This Island to Inflict Corporal Punishment in Certain Cases,’’ 13 Vict c. 36, no. 3847 (Whipping Act of 1850). Few official court records below the level of assizes survive for this period. These cases were taken from the court reports in Falmouth Post and Morning Journal for the period. While the papers did not report every criminal trial, when they did report a court session they seem to have reported all cases that were tried at that session. Assizes records have been analyzed by Dalby, who confirms my finding: ‘‘flogging . . . in the early 1850s was imposed above all on those convicted of sex offences’’ (Dalby, Crime and Punishment in Jamaica, 83).

Notes to Chapter 4

7124 Paton / NO BOND BUT THE LAW / sheet 255 of 308

93

94 95

96 97 98 99 100

101 102

103 104 105

Tseng 2004.8.31 07:45

106

The following acts allowed for flogging for various crimes: Whipping Act of 1850; ‘‘An Act to Repeal an Act Entitled An Act to Authorize the Several Courts of This Island to Inflict Corporal Punishment in Certain Cases, and to Reenact the Same with Amendments,’’ 14 Vict. c. 24 (Whipping Act of 1851); ‘‘An Act Further to Improve the Criminal Law, and for the More Exemplary Punishment of Certain Offenders,’’ 16 Vict c. 17, no. 3979 (1853); ‘‘An Act Further to Improve the Criminal Law and for the More Exemplary Punishment of Certain Offenders,’’ 19 Vict. c. 28, no. 4142 (1856); ‘‘An Act for the More Effectual Punishment of Persons Convicted of Dealing and Practising in Obeah and Myalism,’’ 19 Vict. c. 30 (1856); ‘‘An Act Further to Improve the Criminal Law and for the More Exemplary Punishment of Certain Offenders,’’ 24 Vict c. 18, no. 4353 (1861). Several of these were reenactments of expiring or recently expired legislation. Obeah was and is an Afro-Caribbean popular system of belief and practice used to exert control over the natural world. Colonial authorities generally understood it as a form of witchcraft. For more substantial discussion of obeah, see chap. 5. Falmouth Post; Morning Journal. In assizes cases, sex offense cases constituted 12 percent of all prosecutions in 1840–44, 19 percent in 1845–49, and 27 percent in 1850–54, when sex offenses outnumbered property crimes. Before 1840, sex offenses had never constituted more than 5 percent of all assizes prosecutions. As Dalby notes, ‘‘[F]or whatever reason—relatively suddenly—the authorities became more alarmed about the sexual habits of the masses and less concerned about their capacity for larceny and violence’’ (Crime and Punishment in Jamaica, 45–46, tables 2.3, 2.5). Address to Grand Jury of Supreme Court, reported in Falmouth Post, February 26, 1850. Morning Journal, August 3 and October 21, 1854. Falmouth Post, October 26, 1852. For a similar call, see ibid., March 19, 1850. Jamaica Standard and Royal Gazette, August 24, 1842. Falmouth Post, October 26, 1852. The editorial places the phrase ‘‘original state of barbarism’’ in quotation marks to indicate that it is quoting from a judge’s statement to a grand jury. Letter from ‘‘Civis,’’ ibid., February 5, 1850. Shaw Report 1865; see also Governor Eyre, address on the prorogation of the House of Assembly, enc. in Eyre to Cardwell no. 37, February 21, 1865, co 137/388; Shaw Report 1865. Whipping Act of 1851. Falmouth Post, February 18, 1851. For example, Sligo to Spring Rice no. 110, December 25, 1834, co 137/194; report of Stipendiary Magistrate Arthur Welch, enc. in Sligo to Aberdeen no. 60, March 27, 1835, co 137/198; report of Stipendiary Magistrate Samuel Pryce, enc. in Sligo to Glenelg no. 401, April 2, 1836, co 137/210. On women’s withdrawal from plantation labor, see Wilmot, ‘‘‘Females of Abandoned Character’?’’ 279–84, Smith, ‘‘Race, Class, and Gender in the Transition to

notes to chapter 4

239

7124 Paton / NO BOND BUT THE LAW / sheet 256 of 308

107

108 109

110 111 112 113 114 115

116 117

118 119 120 121 122 123

Tseng 2004.8.31 07:45

124 125

Freedom,’’ 274–79; Brereton, ‘‘Family Strategies, Gender, and the Shift to Wage Labour in the British Caribbean’’; Paton, ‘‘The Flight from the Fields Reconsidered.’’ On Morant Bay and its aftermath, see Holt, The Problem of Freedom, chaps. 8, 9. On crown colony government, see Augier, ‘‘Before and after 1865’’; Satchell, From Plots to Plantations. The last third of the nineteenth century is relatively understudied in Jamaican history. District Courts Law, Law 4 of 1872; Praedial Larceny Law, Law 6 of 1877. Jamaica’s Prisons Law of 1965 (after independence) included provision for both flogging (with a tamarind switch) and whipping (with a cat-o’-nine-tails); The Prisons Law, Cap. 307: The Prison [Amendment] Rules, 1965, no. 115). Both fell into abeyance by 1969. However, whipping was reintroduced into Jamaican judicial practice in 1994, after a gap of twenty-five years during which it had not been used but had not been made illegal. The Jamaican Court of Appeal ruled in 1998 that corporal punishment was not constitutional. See Horace Awori, ‘‘Flogging Debate Heats Up Jamaica,’’ Weekly Journal, November 17, 1994; G. Anthony McLaren, ‘‘The Return of the Tamarind Switch,’’ InterPress Service English News Wire, May 14, 1998; ‘‘Jamaican Court Abolishes Flogging’’ cnn, December 18, 1998, all in World Corporal Punishment Research Archives. Falmouth Post, April 8, 1851. Ibid., January 1, 1857. Shaw Report 1865. Ignatieff, A Just Measure of Pain, 75. Falmouth Post, June 1, 1852, quoting Colonial Standard. ‘‘An Act to substitute in certain cases service in agriculture labour, on certain conditions, for part of the sentences of persons sentenced to imprisonment in the General Penitentiary of this Island,’’ 18 Vict. c. 22, No. 4069. The daily wage for agricultural labor at this time was about 1 shilling. On the British ticket of leave system see Davis, ‘‘The London Garotting Panic of 1862.’’ Enc. in Barkly to Labouchere no. 27, Feb. 20, 1856, co 137/330. None of the convicts had identifiably female names, and very few names were ambiguous with regards to gender. Ibid. Robertson, ‘‘Members of the Assembly of Jamaica from the General Election of 1830 to the Final Session January 1866,’’ 50–59. Enc. in Barkly to Labouchere No 27, Feb. 20, 1856, co 137/330. Holt, The Problem of Freedom, 103, 246, 256. Stephen Harmer to ‘‘Dear Father,’’ April 3, 1840, nlj ms 765. Commercial & Agricultural Magazine, 1800, as quoted in E. P. Thompson, ‘‘Time, Work-Discipline and Industrial Capitalism,’’ 378. Stephen Harmer to Saul Harmer, June 21, 1842, nlj ms 765. John Daughtrey, ‘‘Remarks on the Penal Servitude Act,’’ enc. in Barkly to Labouchere No 27, 20 Feb. 1856, co 137/330.

240 Notes to Chapter 4

7124 Paton / NO BOND BUT THE LAW / sheet 257 of 308

126 127 128 129

130 131 132 133 134 135 136 137 138 139 140

141 142 143

144 145 146 147 148 149

150

5

justice and the jamaican people 1 2

Tseng 2004.8.31 07:45

Green, British Slave Emancipation, 261–92; Shepherd, Transients to Settlers; Hall, Free Jamaica, 53–59. Falmouth Post, January 18, 1850. See also editorials of August 17, 1850, and February 18, 1851, which make very similar points. Colonial Standard, reprinted in ibid., June 1, 1852. This was, for instance, a central claim of Thomas Carlyle’s ‘‘Occasional Discourse on the Nigger Question’’ (1849). On Carlyle, see Holt, The Problem of Freedom, 280–83. W. A. Bell, report on St. Dorothy, September 1, 1840, enc. in Metcalfe to Russell no. 51, October 30, 1840, pp 1841 (344) III. Falmouth Post, February 18, 1851. T. A. Dillon report, January 12, 1854, enc. in Barkly to Newcastle no. 1, February 21, 1854, pp 1854 (1848) XLIII. Letter from ‘‘Civis,’’ Falmouth Post, February 5, 1850. Shaw Report 1865. Falmouth Post, June 22, 1852. Forsythe, The Reform of Prisoners 1830–1900, chap. 6. Davis, ‘‘London Garroting Panic.’’ Jones, Outcast London. As quoted in Davis, ‘‘London Garroting Panic,’’ 201. The 1867 Reform Act codified the concept of respectability by extending the franchise to male household heads who had been renting housing for twelve months or more: McClelland, ‘‘Some Thoughts on Masculinity and the ‘Representative Artisan’ in Britain,’’ and ‘‘Rational and Respectable Men’’; Hall, ‘‘Rethinking Imperial Histories.’’ Eyre to Cardwell no. 234, July 23, 1864, co 137/384. Hall, ‘‘Rethinking Imperial Histories.’’ Aguirre, ‘‘The Lima Penitentiary and the Modernization of Criminal Justice in Nineteenth-Century Peru’’; Santiago-Valles, ‘‘Forcing Them to Work and Punishing Whoever Resisted.’’ Santiago-Valles, ‘‘Forcing Them to Work and Punishing Whoever Resisted,’’ 131. Cooper, On the African Waterfront, 1. Foucault, Discipline and Punish, 271–92, quote on 277. Stoler, Race and the Education of Desire. Hall, ‘‘Competing Masculinities,’’ 254. For instance, Patrick Bryan explains the use of flogging in 1890s Jamaica by arguing that ‘‘[s]ocial attitudes which had emerged out of the slave plantation system continued to govern society’’ (The Jamaican People 1880–1902, 123). The Times, November 13, 1865, as quoted in Bolt, Victorian Attitudes to Race, 76.

Falmouth Post, August 19, 1845. Abigail Bakan identifies a discourse which depicts ‘‘the Crown as Benevolent

notes to chapter 5

241

7124 Paton / NO BOND BUT THE LAW / sheet 258 of 308

3 4

5

6 7 8

9

10

11 12 13 14

Tseng 2004.8.31 07:45

15

Despot’’ as a key element in the Jamaican rebellions of 1831, 1865, and 1938 (Ideology and Class Conflict in Jamaica). Bourdieu, ‘‘The Force of Law,’’ 838. After the suppression of the Morant Bay rebellion, the Jamaican House of Assembly voted itself out of existence, and Jamaica became a crown colony governed without elected representatives. Guha, Elementary Aspects of Peasant Insurgency in Colonial India, 14–17, quotes on 16–17. Guha’s attitude to this methodology of inversion is unstable, however: see also Guha, ‘‘The Prose of Counter-Insurgency,’’ where he argues convincingly against a nationalist historiographic tradition that works by inverting colonialist paradigms. Arnold, ‘‘Gramsci and Peasant Subalternity in India,’’ provides an important assessment of Guha’s work on peasant consciousness. See O’Hanlon, ‘‘Recovering the Subject,’’ 189–224, for a further critique of Guha’s methodology. Ortner, ‘‘Resistance and the Problem of Ethnographic Refusal.’’ Craton, ‘‘Continuity Not Change,’’ 203. Heuman, ‘‘The Killing Time’’; Chutkan, ‘‘The Administration of Justice as a Contributing Factor in the Morant Bay Rebellion of 1865’’; Robotham, ‘‘The Notorious Riot’’; Wilmot, ‘‘Political Developments in Jamaica in the Post Emancipation Period’’; Holt, The Problem of Freedom, 288–89. Trotman, Crime in Trinidad; Goveia, The West Indian Slave Laws of the 18th Century. Lazarus-Black’s work provides a significant exception to this perspective. I share many of her analytic concerns. See Hirsch and Lazarus-Black, ‘‘Introduction’’; Lazarus-Black, ‘‘Slaves, Masters, and Magistrates,’’ and ‘‘John Grant’s Jamaica.’’ ‘‘An Act for the Punishment of Idle and Disorderly Persons, Rogues and Vagabonds, and Incorrigible Rogues,’’ 3 Vict. c. 18, no. 3315, co 139/77; ‘‘An Act to Amend an Act for the Punishment of Idle and Disorderly Persons, Rogues and Vagabonds, and Incorrigible Rogues,’’ 4 Vict. c. 42, no. 3408, co 139/78; ‘‘An Act to Prevent the Injuries and Depredations of Hogs and Goats and for the Preservation of Cultivated Lands and to Re-enact the Same with Certain Amendments,’’ 15 Vict. c. 12, 1851. See Wilmot, ‘‘Political Developments in Jamaica in the Post Emancipation Period,’’ 261–63. Darling to Newcastle no. 103, August 9, 1859, co 137/345. Heuman, ‘‘The Killing Time,’’ 13. Falmouth Post, April 29, 1856. Of course, these codifications always changed earlier practice by the very fact of rigidifying it in legal writing. For instance, in India the recording of ‘‘tradition’’ for use in the courts undermined the position of those who had previously held exclusive knowledge of law and whose power was based on this knowledge. See Cohn, ‘‘Law and the Colonial State in India.’’ On the colonial construction of ‘‘customary law’’ in Africa, see Chanock, Law, Custom and Social Order, and Snyder, ‘‘Colonialism and Legal Form.’’ Dillon, report on St. Ann and Trelawny, in Elgin to Stanley no. 9, June 30, 1842,

242 Notes to Chapter 5

7124 Paton / NO BOND BUT THE LAW / sheet 259 of 308

16

17 18

19

20

21

Tseng 2004.8.31 07:45

22

co 137/263. See also Dillon’s comments the following year, ‘‘[T]he emancipated . . . are litigious, but peaceable—guilty of numerous infractions, but always obedient to the law and fond of appealing to its jurisdicture’’ (enc. in Elgin to Stanley no. 197, December 20, 1843, co 137/275). Charles Lake, reports on Portland in Barkly to Newcastle no. 1, February 21, 1854, pp 1854 (1848) XLIII; see also Lake’s report in Barkly to Molesworth no. 97, October 2, 1855, co 137/327. Falmouth Post, November 29, 1853. The racist stereotype of childish ‘‘litigiousness’’ persisted and found its way into twentieth-century historiography. Burn, for instance, wrote of apprenticeship in the 1930s, ‘‘The negro was thoroughly unsettled. . . . It was not that he was dangerously violent (although many of the female apprentices were viragos) but he was almost unbearably exasperating. His unpunctuality and his casualness were constant factors, but more annoying at first was his litigiousness. No one who has seen a West India court in session will deny the extreme pleasure which the negro takes in witnessing the administration of Justice, as plaintiff, witness, spectator, even as defendant. To him it is literally the drama of the law and a supreme form of entertainment’’ (Emancipation and Apprenticeship in the British West Indies, 179). Report of Daly, enc. in Metcalfe to Stanley no. 18, December 3, 1841, pp 1841–42 (374) XXIX; report of Marlton, enc. in Elgin to Stanley no. 140, July 29, 1843, co 137/274; report of Marlton, enc. in Elgin to Stanley no. 64, December 28, 1842, co 137/264; report of Willis, enc. in Elgin to Stanley no. 197, December 20, 1843, co 137/275. Arguments about the extent to which poor and working-class people found the law to be legitimate have been made for nineteenth-century England by examining the status of prosecutors. See Philips, Crime and Authority in Victorian England, 123–29. A cogent critique of such procedures may be found in Hay, ‘‘Prosecution and Power,’’ 389–94. Court’s Office Records, Half Way Tree, St. Andrew, ja 1A/2/2 (hereafter, Half Way Tree Court Records). The bulk of the cases date from the 1850s and 1860s. There are also a few cases dating from slavery and apprenticeship; these were excluded from the analysis. While researching this study, I was unaware of the existence of the assize records recently analyzed in Dalby, Crime and Punishment in Jamaica. These records include 864 post-emancipation cases. They do not, however, give details of the social background of the prosecutors. Where possible I have allocated the prosecutors to three class groups: 1) members of a fairly broadly defined elite group made up of the planters and merchants (magistrates, or those designated in the records as ‘‘gentleman,’’ ‘‘esquire,’’ ‘‘honorable,’’ or as the owner of an estate; this category also includes prosecutions initiated on behalf of corporate bodies such as sugar estates); 2) a petit bourgeois or ‘‘respectable’’ group of small property holders or skilled tradespeople (people who employed others but who were not designated as gentlemen or honorable and who worked themselves as small shopkeepers,

notes to chapter 5

243

7124 Paton / NO BOND BUT THE LAW / sheet 260 of 308

23

24 25 26

27

28 29

30

Tseng 2004.8.31 07:45

31

244

petty traders, artisans, or in agriculture; in the absence of other indicators, I have generally taken illiteracy, revealed by signing with a mark, when combined with employment of others to indicate respectable rather than elite status); and 3) laborers (identified as ‘‘laborer’’ or illiteracy combined with information suggesting that they did not employ anyone else or own property themselves). These categories are problematic: they necessarily impose classifications on the records that are not inherent in them. While it is obvious that Jamaican society in this period was hierarchically organized along lines of color and property ownership, class groups inevitably blur at the edges. In addition, these records do not always provide sufficient evidence to make certain categorizations. There is, for instance, almost no reference to color in these records. In 167 of the theft cases, a majority, there is simply not enough information to categorize the prosecutor at all. Nevertheless, there is enough information in these records to draw some conclusions. For a discussion of the difficulties of inferring class and status from Jamaican court records, see Dalby, Crime and Punishment in Jamaica, 57–63. Half Way Tree Court Records, cases 85, 130, 174, 321, 323, 327, 335, 346, 356, 386, 403, 411. The owner of Mona estate brought four cases of larceny, including two involving employees who stole rum or sugar (cases 351, 357, 396, 418). George William Gordon brought similar cases (cases 48, 56, 61, 107, 198), although he also prosecuted two planters for theft (case 128). Similarly, Robert Blake Byass, proprietor of Molynes estate, prosecuted people who were likely his workers for stealing sugar, molasses, and rum (cases 138, 292, 300, 308). Ibid., case 160. McDonald, The Economy and Material Culture of Slaves, 40–44; Dirks, The Black Saturnalia, 101–2. Most intra-apprentice cases adjudicated by stipendiary magistrates involved property. See Paton, ‘‘No Bond but the Law,’’ 236–40. During slavery, slaves rarely brought cases involving their property to court, but its significance to them can be deduced in other ways. See Mintz, Caribbean Transformations; McDonald, The Economy and Material Culture of Slaves, 28–36. Robotham, ‘‘The Notorious Riot,’’ 61; ‘‘Return of the Number of Cases, Civil and Criminal, Heard in Petty Session at Bath, in the Parish of St. Thomas in the East, 1863–1865,’’ pp 1866 (3683) XXXI, appendix: pt. II A. Half Way Tree Court Records, case 123. Wilmot, ‘‘Political Developments in Jamaica in the Post Emancipation Period,’’ 142–144; Chutkan, ‘‘The Administration of Justice as a Contributing Factor in the Morant Bay Rebellion of 1865,’’ 80–81; Heuman, ‘‘The Killing Time,’’ 69–73; Robotham, ‘‘The Notorious Riot,’’ 59–62; Stewart, Religion and Society in PostEmancipation Jamaica, 131. Candler, Extracts from the Journal of John Candler Whilst Traveling in Jamaica Part II, 24. For instance, Charles Lake’s half-yearly report on Portland of July 1855, which noted that petty sessions were held less frequently than was necessary because of the difficulty in finding the necessary magistrates to form a quorum (enc. in

Notes to Chapter 5

7124 Paton / NO BOND BUT THE LAW / sheet 261 of 308

32 33 34 35 36

37 38 39 40 41 42 43

44 45 46 47 48 49 50 51

Tseng 2004.8.31 07:45

52

Barkly to Molesworth no. 97, October 2, 1855, co 137/327). See also Charles Lake, report on Portland, enc. in Barkly to Newcastle no. 1, February 21, 1854, Papers relative to the Affairs of the Island of Jamaica, pp 1854 (1848) XLIII; Eyre to Newcastle no. 41, July 8, 1862, co 137/367; Falmouth Post, May 29, 1849, October 10, 1851, March 21, 1854, November 20, 1855, April 25, 1856, October 16, 1857, November 6, 1857; Morning Journal, May 12 and 13, 1847; Manderson-Jones, ‘‘Richard Hill of Jamaica,’’ 285–87. Stewart, Religion and Society in Post-Emancipation Jamaica, 131. Falmouth Post, July 4, 1862. Hay, ‘‘Prosecution and Power,’’ 392. Falmouth Post, February 2, 1842, quoting Jamaica Despatch. Ibid. Mocho John’s crime is not revealed in any of the sources I have found. He clearly became an iconic figure in the early 1840s. Other references to Mocho John occur in Morning Journal, March 28, 1842; Jamaica Standard and Royal Gazette, August 24, 1842. ‘‘Mocho’’ was probably derived from ‘‘Moco,’’ used in eighteenth- and nineteenth-century Jamaica as an ethnic designation for Africans shipped from Bonny. In contemporary Jamaican English, ‘‘moco’’ means ‘‘ugliness or backwardness’’ (Cassidy and LePage, Dictionary of Jamaican English, 302–3). Half Way Tree Court Records, case 230. Ibid., case 153. Report of W. A. Bell, enc. in Barkly to Newcastle no. 1, February 21, 1854, pp 1854 [1848] XLIII. Falmouth Post, September 18, 1857, quoting Colonial Standard. Ibid. Roberts to Grey, April 20, 1850, enc. in Grey to Grey no. 41, May 7, 1850, co 137/306. T. Witter Jackson to Hugh W. Austin, August 6, 1857, enc. in Darling to Labouchere no. 47, March 19, 1858, co 137/336. For other comments about courtroom audiences, see Report of Lawson, enc. in Elgin to Stanley no. 64, December 28, 1842, co 137/264; Falmouth Post, March 19, 1850. Morning Journal, May 13, 1842. Falmouth Post, July 3, 1855. For similar comments see Morning Journal, July 27– 28, 1847, and September 10–11, 1852. Falmouth Post, July 3, 1855. Ibid., August 21, 1863. Ibid., August 15, 1851; emphasis in original. Ibid., May 15, 1855. Ibid., May 12, 1846, August 18, 1846, August 1, 1856, November 18, 1862; Barkly to Russell no. 45, April 26, 1855, co 137/326. Falmouth Post, August 1, 1856; Barkly to Russell no. 45; Falmouth Post, December 1, 1857. For discussion of similar phenomena in eighteenth-century England, see Linebaugh, The London Hanged.

notes to chapter 5

245

7124 Paton / NO BOND BUT THE LAW / sheet 262 of 308

53 54 55 56 57 58 59 60 61 62 63

64 65

66 67

68 69 70 71

Tseng 2004.8.31 07:45

72 73

Burnett’s trial was reported in Falmouth Post, August 15, 1851; Vernon’s trial was reported ibid., November 18, 1862. For example, ibid., June 28, 1843, April 14, 1846. Ibid., January 17, 1854. See the comments of Richard Burton on the common dependence on external ‘‘big men’’ in Caribbean political cultures of resistance: Afro-Creole, 141–55. Report of R. Chamberlaine, Manchioneal, enc. in Smith to Glenelg no. 575, June 12, 1837, co 318/136. Madden, A Twelvemonth’s Residence in the West Indies, 103–7. Falmouth Post, May 18, 1842. Ibid., January 16, 1849. Ibid., July 17, 1857 (case of Henry Fairclough); ibid., November 21, 1862 (case of Frederick Williams). For instance, Half Way Tree Court Records, case 282. P. A. Espeut, ‘‘An Analytical Report of Mr. George W. Gordon’s So-Called Public Meeting Holden at the Native Baptist Meeting House near Morant Bay, on the Evening of Wednesday the 27th August 1862,’’ enc. in Eyre to Newcastle no. 84, September 23, 1862, co 137/367. Ibid. Ibid. Espeut’s description of March continued, ‘‘Cheating blackie whenever he has an opportunity, without a sixpence in his pocket wherewith to purchase a meal, lives in the negro huts about the country, and has no position whatever and only of influence for evil among the lower orders, thoroughly despised by the respectable people, a bird of passage with no settled residence or vocation in the parish or any where else. He can scarcely put half a dozen words together of good English either in writing or speaking, and never could have uttered the speech attributed to him’’ (ibid.). According to Mimi Sheller, March was also a reporter for some newspapers and worked as a clerk for George William Gordon (Democracy after Slavery, 220). Marcus Mosiah Garvey’s father, Marcus Garvey, is another example of such a ‘‘lawyer.’’ According to Sheller (Democracy after Slavery, 238), he was known as ‘‘the village lawyer’’ because he advised local people in their interactions with authority. Sheller also argues that the elder Garvey attended the St. Ann Underhill protest meeting in 1865. Ibid., 214–23, quote on 221. See also Mallon, Peasant and Nation. Heuman, ‘‘The Killing Time,’’ 5. Sheller, ‘‘Quasheba, Mother, Queen,’’ 109; see also Sheller, Democracy after Slavery, 202. Falmouth Post, January 10, 1854 (Surrey Assizes). It is notable that on several occasions when property owners shot at or beat people who stole crops from their land, they were applauded in the press rather than prosecuted (see ibid., October 6, 1857, December 12, 1862, November 13, 1863). Grey to Grey no. 99, November 20, 1849, co 137/303. Falmouth Post, November 13 and 23, 1855.

246 Notes to Chapter 5

7124 Paton / NO BOND BUT THE LAW / sheet 263 of 308

74 75

76 77 78 79

80 81

82 83

84

85

86

87 88

Tseng 2004.8.31 07:45

89

Ibid., April 29, 1840, quoting Morning Journal. I was unable to find any further details of this case. Information on this case is from reports in Falmouth Post, February 21, March 4, July 4, September 19, November 7, 21, 25, and 28, and December 2 and 19, 1862, and in Eyre to Newcastle no. 112, November 24, 1862, co 137/368. Falmouth Post, November 7, 1862. Eyre to Newcastle no. 112, November 24, 1862, co 137/368. Falmouth Post, December 2, 1862. ‘‘Extract from Letter Dated 4 January 1866, from Wm. C. Miller, Esq. J.P. of the Serge Island estate, Blue Mountain Valley, to the Custos of St. Thomas in the East, enclosing Summons of Mock Court of Justice,’’ Appendix: Part VII: Miscellaneous Documents, B, pp 1866 [3683] XXXI, 1161. Jamaica Tribune, July 1865, in Evidence of His Excellency Edward John Eyre, pp 1866 [3683] XXXI, 1010. ‘‘Documents Found Among Paul Bogle’s Papers Produced by Governor Eyre as Tending to Show a Disposition on the Part of the Negroes to Undertake the Administration of Justice by Themselves,’’ Appendix: Part VII: Miscellaneous Documents, B, pp 1866 [3683] XXXI, 1160–64. Evidence of Mr. William Condon Miller, pp 1866 [3683] XXXI, 920. Schuler, ‘‘Alas, Alas, Kongo,’’ 63; Robotham, ‘‘The Notorious Riot,’’ 85. Schuler and Robotham base their claims on the evidence that I have presented here. See also Heuman, ‘‘The Killing Time,’’ 73. Heuman, ‘‘The Killing Time,’’ 73; Holt, The Problem of Freedom, 289; Chutkan, ‘‘The Administration of Justice as a Contributing Factor in the Morant Bay Rebellion of 1865.’’ Stewart, Religion and Society in Post-Emancipation Jamaica, 131–32; Hutton, ‘‘Colour for Colour; Skin for Skin,’’ 189–92; Sheller, Democracy after Slavery, 211–12. Chutkan, ‘‘The Administration of Justice as a Contributing Factor in the Morant Bay Rebellion of 1865’’; Heuman, ‘‘The Killing Time’’; Stewart, Religion and Society in Post-Emancipation Jamaica. For discussion of this role, see Paton, ‘‘No Bond but the Law,’’ 93–99; Patterson, The Sociology of Slavery, 230–31. Carlyle, Thirty-Eight Years’ Mission Life in Jamaica, 52–53. According to his son, Carlile ministered in Brownsville, in the Jamaican parish of Hanover, from 1842 until his death in 1881. The spellings ‘‘Carlyle’’ and ‘‘Carlile’’ are in the original documents. Presumably, the son changed the spelling of his name from the more unusual version used by the father. McKay, My Green Hills of Jamaica, 60–61. For an important recent study of McKay’s early life, including a discussion of his father’s position in the community, see James, A Fierce Hatred of Injustice. On the development of what he calls a ‘‘middle class’’ of the ‘‘respectable peasantry’’ in the second half of the nineteenth century, see Bryan, The Jamaican People 1880–1902, 216–21. This type of independent judicial process organized through religious hierarchy was also

notes to chapter 5

247

7124 Paton / NO BOND BUT THE LAW / sheet 264 of 308

90 91 92 93 94

95

96 97 98

Tseng 2004.8.31 07:45

99 100 101 102 103

used in some of the communities in the 1920s that produced Rastafarianism (Chevannes, Rastafari, 124, 130–31). Falmouth Post, August 18, 1846. Crais, ‘‘Of Men, Magic, and the Law.’’ See also Abel, The Politics of Informal Justice. Holt, The Problem of Freedom, 299–300. For a preliminary analysis of Jamaican ‘‘respectability,’’ see Bryan, The Jamaican People 1880–1902. This is not the place for a full description and analysis of obeah and myalism. In particular, I do not address the issue of these belief systems’ African and Creole origins; nor do I describe in detail the substance of these beliefs. For discussion of these issues, see Alleyne, Roots of Jamaican Culture, 79–86; Bakan, Ideology and Class Conflict in Jamaica, 50–51; Brathwaite, The Development of Creole Society in Jamaica, 1770–1820, 218–20; Burton, Afro-Creole, esp. 99–103; Goveia, Slave Society in the British Leeward Islands at the End of the Eighteenth Century, 245–48; Lazarus-Black, Legitimate Acts and Illegal Encounters, 43–47; Mullin, Africa in America, 175–86; Paton, ‘‘No Bond but the Law,’’ 91–93; Patterson, The Sociology of Slavery, 182–95; Schuler, ‘‘Alas, Alas, Kongo,’’ 32–36, 40–44; Stewart, Religion and Society in Post-Emancipation Jamaica, 136–48; Turner, Slaves and Missionaries, 54–59; Viotti da Costa, Crowns of Glory, Tears of Blood, 107–13. Brathwaite, The Development of Creole Society in Jamaica; Mullin, Africa in America; Patterson, The Sociology of Slavery. On obeah’s influence on Jamaican whites, see Paton, ‘‘Punishment, Crime, and the Bodies of Slaves in EighteenthCentury Jamaica.’’ Tucker, ‘‘Glorious Liberty,’’ 50–51. Lazarus-Black, Legitimate Acts and Illegal Encounters, 40, 54. The distinction between obeah and myalism dates back to Edward Long and is commented on by most historians of Jamaican obeah. Although obeah exists all over the English-speaking Caribbean, the term myalism is specific to Jamaica. A recent assessment of the relationship between the two argues that ‘‘it may be that Obeah and Myalism confront each other less as absolute opposites than as private and public manifestations of the same magicospiritual power’’ (Burton, Afro-Creole, 101). Report of Bell, in Barkly to Newcastle no. 1, pp 1854 [1848] XLIII. Falmouth Post, May 20, 1859. Ibid., July 26, 1859, reprinting from Morning Journal. Lazarus-Black, Legitimate Acts and Illegal Encounters, 259. Falmouth Post, November 20, 1857. See also Thomas Witter Jackson report, enc. in Elgin to Stanley no. 64, December 28, 1842, co 137/264: ‘‘Every infirmity is ascribed to the influence of obeah, fear increases the malady and the myalman is resorted to, who, for a handsome fee, first impiously invoking god’s blessing, undertakes to extract the evil spirit.’’ See also the description of a ‘‘myal doctor’’ in Candler, Extracts from the Journal of John Candler Whilst Traveling in Jamaica Part II, 28–29, and the case of John Liverpool, alias Tuppee, convicted of obeah

248 Notes to Chapter 5

7124 Paton / NO BOND BUT THE LAW / sheet 265 of 308

104

105

106 107 108

109 110 111 112

113 114 115

at Hanover Circuit Court, 1859. Like Hudson, Liverpool had performed a curing ritual, but the patient died (Falmouth Post, July 15, 1859). Falmouth Post, March 20, 1857. This case provides an interesting contrast to the conclusion of Lazarus-Black that in contemporary Antigua and Barbuda it is usually women who ‘‘tie’’ male sexual partners rather than the reverse. In her study of contemporary Jamaica, Sobo explains men are more likely to use obeah to ‘‘tie’’ a partner; women do not need to consult an obeah practitioner, as they can produce the same effect through the use of their bodily fluids (Sobo, ‘‘Menstrual Taboos, Witchcraft Babies, and Social Relations’’). Falmouth Post, July 1, 1845, August 7, 1849. See also prosecution of Scott, a pen keeper who had been dismissed from his job, for consulting an obeahman named Forbes in order to attack the two who were employed in his stead (ibid., September 13, 1850). Tucker, ‘‘Glorious Liberty,’’ 50–51. Kopytoff, ‘‘Religious Change Among the Jamaican Maroons,’’ discusses similar disciplinary uses of obeah among Jamaican maroons in the 1930s. Most scholarship on this movement quotes the descriptions of the events at the Spring estate written many years later by Hope Waddell and Thomas Banbury (see Waddell, Twenty-nine Years in the West Indies and Central Africa, and Banbury, Jamaica Superstitions). Scholars who discuss this incident relying primarily on Waddell and Banbury include Schuler, Burton, and Austin-Broos ( Jamaica Genesis, 51–53). For a contemporary similar account, see Falmouth Post, October 19, 1842. Falmouth Post, October 26, 1842. Schuler, ‘‘Alas, Alas, Kongo,’’ 40–41. Details of the case are given in Falmouth Post, December 5, 1856. The former phrase was used in the 1760 act which first made obeah illegal: ‘‘An Act to Remedy the Evils Arising from Irregular Assemblies of Slaves,’’ 1 Geo. III c. 22. The latter was used in ‘‘An Act for the Punishment of Idle and disorderly persons, rogues and vagabonds, and incorrigible rogues’’ (3 Vict. c. 18), and repeated in later anti-obeah legislation, including ‘‘An Act to Explain the 4th Vict. c. 42 and the 19 Vict. c. 30 and for the More Effectual Punishment of Obeah and Myalism,’’ 21 Vict. c. 24, no. 4214, 1857. Edwards, ‘‘The Development of Criminal Law in Jamaica up to 1900,’’ 263. Roseberry, ‘‘Hegemony and the Language of Contention.’’ On the existence of multiple creole cultures in the Caribbean, see Burton, AfroCreole, 1–7.

conclusion

Tseng 2004.8.31 07:45

1

On post-1865 developments, see Augier, ‘‘Before and after 1865,’’ 170–80; Boxill, ‘‘Developments in Family Law Since Emancipation’’; Bryan, The Jamaican People 1880–1902; Marsala, Sir John Peter Grant; Satchell, From Plots to Plantations; Eisner, Jamaica, 1830–1930.

notes to conclusion 249

7124 Paton / NO BOND BUT THE LAW / sheet 266 of 308

2

3

4

5 6

7 8

9

10

11 12

Tseng 2004.8.31 07:45

13

250

Chevannes, Rastafari, 100–101, 126–27; Hill, ‘‘Leonard P. Howell and Millenarian Visions in Early Rastafari.’’ Alexander Bedward was tried for sedition in 1895 but acquitted; he was then sent to the lunatic asylum (Austin-Broos, Jamaica Genesis, 86). This argument is compatible with that of Austin-Broos in Jamaica Genesis with regard to missionaries, and that of Holt in The Problem of Freedom with regard to British liberalism. Less attention has been given to developments in the political and racial thought of the colored middle class. The radicalism of George William Gordon, which was exceptional for a man of his class, has tended to overshadow the conservatism of many individuals similar to him in economic and social status. For a recent assessment of the contradictory position of free people of color in Barbados, which has implications for the study of Jamaica, see Newton, ‘‘The Children of Africa in the Colonies.’’ Social relations similar to slavery also persisted in the condition of indentured workers from India and Africa, who played a significant, if small in comparison to Trinidad and British Guiana, role in Jamaica’s post-emancipation economy. For studies of these workers, see Shepherd, Transients to Settlers; Schuler, ‘‘Alas, Alas, Kongo.’’ Viotti da Costa, Crowns of Glory, Tears of Blood; Turner, ‘‘The 11 O’clock Flog,’’ 38–58. ‘‘PM: Counter-Attack Time,’’ Jamaica Gleaner, July 12, 1999; Julian Borger, ‘‘Army Ordered to Wage War on Kingston’s Gangs,’’ The Guardian, July 14, 1999; ‘‘Jamaica Alarmed by Crime Upsurge,’’ Caribbean Insight, July 16, 1999. Meeks, Narratives of Resistance, 1–3. Ibid. See also Meeks, ‘‘The Political Moment in Jamaica.’’ By ‘‘hegemonic dissolution,’’ Meeks means the combination of sustained economic crisis with the collapse of the ‘‘political pact’’ and ‘‘social project’’ that had governed relations between rulers and ruled since 1944. Amnesty International, ‘‘Jamaica: Killings and Violence by Police,’’ 3–4; see also ibid., 12, tables 1, 2. This report was extremely controversial in Jamaica. The foreign minister, for instance, condemned it as ‘‘one-sided and biased’’: Jamaica Gleaner, April 14, 2001. See also letters to the editor both criticizing and defending the report in Jamaica Gleaner, April 16, 17, and 19, 2001. ‘‘Braeton Cops Cleared—Coroner’s Inquest Jury Divided Six to Four,’’ Jamaica Gleaner, October 4, 2002; Amnesty International, ‘‘Jamaica: Braeton Inquest,’’ and ‘‘Jamaica: The Killing of the Braeton Seven.’’ Amnesty International, ‘‘Jamaica: Braeton Officers Charged.’’ At the time of writing (February 2004), no date had been set for the officers’ trial. ‘‘This is how the country is, you can shoot the youth and it’s just done so, there is no justice for poor people’’ (anonymous female relative quoted in ‘‘‘No Justice’: Braeton Inquest,’’ Jamaica Star, October 4, 2002). On Edwin Thompson, see the beginning of chap. 5 of this book. U.S. Department of State, ‘‘Jamaica: Country Reports on Human Rights Practices, 2001,’’ March 4, 2002. In the Americas, only Colombia had higher homi-

Notes to Conclusion

7124 Paton / NO BOND BUT THE LAW / sheet 267 of 308

14 15 16 17 18

19

20 21

22

23

Tseng 2004.8.31 07:45

24

cide rates than Jamaica in the 1990s. The worldwide average homicide rate in 1990 was 10.7 per 100,000. For comparative figures, see Pan American Health Organization, ‘‘Statistics on Homicides, Suicides, Accidents, Injuries, and Attitudes towards Violence,’’ and Buvinic et al., ‘‘Violence in Latin America and the Caribbean.’’ Harrison, ‘‘The Politics of Social Outlawry in Urban Jamaica.’’ Pattullo, Last Resorts. Stone, The Political Opinions of the Jamaican People (1976–1981), 56. Americas Watch, Prison Conditions in Jamaica, May 1990; Amnesty International, ‘‘Jamaica: Summary of Concerns October 1997.’’ ‘‘The Commissions of Enquiry Act Commission to Enquire into and Report on Recent Incidents at the St. Catherine Adult Correctional Centre on May 21 to May 25, 2000’’; see also Amnesty International, ‘‘Jamaica: Killings and Violence by Police,’’ 44. ‘‘New State-of-the-Art Facilities for Prisoners,’’ Jamaica Gleaner, December 2, 2001; ‘‘New Jail Breached: Prisoner Flees $400 m[illion] Maximum Security Horizon Remand Centre,’’ ibid., July 8, 2002; ‘‘Soldiers in Charge; Horizon Remand Centre Under Military Control; Superintendent Sent on Leave; Team to Probe Prisoner’s Escape,’’ ibid., July 9, 2002; ‘‘Restricted Visits at Horizon Centre,’’ ibid., July 17, 2002. See, for instance, Kathryn Thompson, letter to the editor, ibid., July 4, 2002. ‘‘Hanging High on pnp Agenda,’’ Jamaica Observer, September 18, 2002; Robert Verkaik, ‘‘Colonial Legacy: Caribbean Nations Prepare to Overturn Historic Right of the Privy Council in London to Act as Their Final Court of Appeal,’’ The Independent, September 19, 2002. ‘‘New game of politics’’ is David Scott’s phrase. See Scott, Refashioning Futures, 195. This sentence draws on Meeks’s optimistic assessment of the possibilities of the current crisis in Narratives of Resistance, 10–14. See also Scott, ‘‘Wi a di Govament.’’ ‘‘Jamaica Tries to Quiet Two Prisons after Riots,’’ New York Times, August 25, 1997. See also Smith, ‘‘Preface to Special Issue on Genders and Sexualities,’’ v–vii. Dearden, ‘‘The e.u. Banana Protocol’’; Clegg, The Caribbean Banana Trade, 170– 73. For a powerful discussion of the mutual imbrication of ‘‘the West’’ and the Caribbean, see Sheller, Consuming the Caribbean.

notes to conclusion 251

Tseng 2004.8.31 07:45 7124 Paton / NO BOND BUT THE LAW / sheet 268 of 308

7124 Paton / NO BOND BUT THE LAW / sheet 269 of 308

Bibliography

primary sources Manuscript Sources – Jamaica national library of jamaica (nlj), kingston

Tseng 2004.8.31 07:45

‘‘An Interior View of a Jamaica House of Correction.’’ Published for the Central Emancipation Society by C. Tilt. Fleet Street, London. P/354. ‘‘A Treadmill Scene in Jamaica.’’ P/983. Beldam, Joseph. Papers. Ms. 321. Grey, Earl. Papers. Letters from Sir Charles E. Grey. Ms. 2108. (Originals in University of Durham Library.) Harmer, Stephen. Letters. Ms. 765. Hart, Richard. Collection. Letters from Earl Grey to Sir Charles Grey. Ms. 1813. Kidd’s New Plan of the City of Kingston, Jamaica, 1854. Map 727.41 edc. 1854. McGeachy, Edward. ‘‘A Map of the County of St. Andrew, According to the Acts of This Island for the Subdivision of Parishes, Constructed by the Orders of the Honble Joseph Gordon Custos, the Rector and Churchwardens, in March 1846.’’ Map 727.43 fa. 1846. Pechon, John Bonett. ‘‘Plan of the City of Kingston, in the Island of Jamaica.’’ 1807. Map 727.41 edc. 1807. Pieterz, J. E. ‘‘Scrapbook, Compiled by J. E. Pieterz. Miscellaneous Newspaper Clippings Dated from 1826–1944.’’ Ms. 227. Pitcarne, John. ‘‘A Plan of the Town of St. Jago de la Vega in the Island of Jamaica.’’ 1786. Map 727.35 edc. 1786. ‘‘Plan de la Ville de Kingston Suivant le projet donne par le Colonel Christian Lilly.’’ 1764. Map 727.41 edc. 1764. Samuel, Rev. Peter. Journal. Ms. 283. Sligo Papers, 1837–38. Letters. Ms. 275 a–g.

7124 Paton / NO BOND BUT THE LAW / sheet 270 of 308

Sligo Private Letter Book. Ms. 281. Sligo to Governor of Tobago. Ms. 1804. Sligo, Marquis of. Letterbooks of Peter Howe Browne, Marquis of Sligo. 8 vols. Ms. 228. Whitelock[e] Collection, 1845–55. Ms. 1633. jamaica archives (ja), spanish town Central Government—Courts

Court’s Office, Half Way Tree, St. Andrew, 1828–85. 1A/2/2. Hanover Courts Office, Lucea. 1A/2/1. 1 Hanover Slave Court. 2 Hanover Court of Quarter Sessions. 3 Hanover Sessions. 6 Lucea Court of Petty Sessions. 11 Miscellaneous. Central Government

Carnaby, William. ‘‘Record of Visitations, Adjudications and Valuations etc. by Special Justice Carnaby, District in Parish of St. James, from 1 January to 30 June 1836.’’ 1B/11/23/9. Local Government

Kingston Common Council. Proceedings 1820–39. 2/6/11–13. Manchester Vestry Minutes 1816–24. 2/17/1. Port Royal Petty Sessions (Record of Convictions) 1834–38. 2/19/31. Port Royal Summary Slave Trials, 1819–34. 2/19/30. Port Royal Vestry Minutes 1819–52. 2/19/4–5. St. George General Slave Court 1822–31. 2/18/6. St. Andrew Vestry Minutes 1831–39. 2/6/42. St. Ann Vestry Proceedings and Orders 1767–1809. 2/9/1–3. St. Catherine Vestry Minutes 1839–49. 2/2/10–12. St. David Vestry Minutes 1785–1867. 2/1B/11/9. St. George General Court of Quarter Sessions 1799–1834. 2/18/7. St. Thomas in the Vale Vestry Minutes. 2/1/2–3. St. Thomas in the Vale Workhouse. Receivals and Deliveries of Slaves 1826–34. 2/1/4. Private Gifts

Hutchfield, Mrs N. J. Letters to and from Thomas Davies, Stipendiary Magistrate, 1834–47. 4/47. Jackson, Thomas Witter. Special Magistrate. Diary, 1863–65. 4/1. Gifts and Deposits

Tseng 2004.8.31 07:45

Grant, J. T. G. ‘‘Address on Early History of the Parish of Manchester, 1816–1838, Delivered at a Meeting Held in Mandeville, on 3rd June, 1946, Under the Auspices of the Manchester Free Library.’’ 7/171/59.

254

Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 271 of 308

Manuscript Sources – Britain angus library, regents park college, oxford

Baptist Missionary Society Archives. Sturge Papers, Fenn Collection. national archives of scotland (nas), edinburgh

Hamilton of Pinmore Muniments Letters, 1800–05. GD 142/35. Alexander West Hamilton Account Book, 1812–16. GD 142/49. Airlie Muniments, Ferry Penn Papers, 1812–73. GD16/27/291–292. national library of scotland (nls), edinburgh

Nisbet Papers Incoming Letters, 1805–12. Ms. 5466. Letterbook of James Chisholme, 1793–1812. Ms. 5476. Airth Papers, 1775–1827. Ms. 10924–5. public record office (pro), kew Chancery Records

C 107/43. Beckford vs. Aylesbury in Chancery, 1780. Colonial Office Records (where no volume number is stated, I have consulted multiple pieces).

co 137. Original Correspondence, Jamaica. co 138. Entry Books, Jamaica. co 139. Acts, Jamaica. co 140. Sessional Papers, Jamaica. co 141. Government Gazettes, Jamaica. co 142. Miscellanea, Jamaica. co 318. Original Correspondence, West Indies. Vol. 136. co 324. General Entry Books, Series 1. Vol. 75. co 854. Circulars to Colonial Governors. Vol. 2. co 884. Confidential Print. Vol. 1. Home Office Records

HO 20. Prisons Correspondence and Papers. Vol. 9. rhodes house (rh), oxford Papers of the British and Foreign Anti-Slavery Society

General. Brit. Emp. S 22 G 45/A. Jamaica. Apprenticeship System. Brit. Emp. S 22 G 59–60. Jamaica, General 1834–39. Brit. Emp. S 22 G 61.

Tseng 2004.8.31 07:45

White, Frederick. ‘‘Diary of a Magistrate in Jamaica, August 1834–February 1835.’’ Mss. W. Ind. r. 1

bibliography

255

7124 Paton / NO BOND BUT THE LAW / sheet 272 of 308

school of oriental and african studies, london

London Missionary Society Archives. Wesleyan Methodist Missionary Society Archives. staffordshire record office, stafford

Papers of Dr. J. R. Hulme as Special Magistrate in Jamaica, 1834–38. D 538/C/16/1–8. University College Library, London

Brougham Papers. Letters from Stephen Bourne, Thomas Clarkson, Charles Harvey, Marquis of Sligo, Joseph Sturge.

Public Documents great britain. parliament. house of commons. parliamentary papers (pp).

Tseng 2004.8.31 07:45

1814–15 (478) VII. ‘‘Papers Relating to Population and Clerical Establishments in the West Indies.’’ 1824 (003) XXIV. ‘‘Papers in Explanation of Measures for Melioration of Condition of Slave Population in West Indies and South America 1823–24.’’ 1825 (157) XV. ‘‘First Report of the Commissioners of Enquiry into the Administration of Criminal and Civil Justice in the West Indies: Barbados, Tobago, Grenada.’’ 1826 (276) XXVI. ‘‘Second Report of the Commissioners of Enquiry into the Administration of Criminal and Civil Justice in the West Indies: St. Vincent, Dominica.’’ 1826–27 (36) XXIV. ‘‘Third Report of the Commissioners of Enquiry into the Administration of Criminal and Civil Justice in the West Indies: Antigua, Montserrat, Nevis, St. Christophers, Virgin Islands.’’ 1826–27 (559) XXIV. ‘‘First Report of the Commissioners of Enquiry into the Administration of Criminal and Civil Justice in the West Indies: Jamaica.’’ 1828 (577) XXIII. ‘‘Second Report of the Commissioners of Enquiry into the Administration of Criminal and Civil Justice in the West Indies and the South American Colonies: Demerara, Essequibo and Berbice.’’ 1829 (334) XXIV. ‘‘Third Report of the Commissioners of Enquiry into the Administration of Criminal and Civil Justice in the West Indies and the South American Colonies: Honduras and Bahamas.’’ 1828 (010) XXVII. ‘‘Papers in Explanation of Measures Adopted for Melioration of Condition of Slave Population in HM Possessions in West Indies, South America and Mauritius.’’ 1830 (673) XXI. ‘‘List of Persons Confined in Gaols and Workhouses of Jamaica, 1829.’’ 1830–31 (91) XVI. ‘‘Copies of All Communications Relative to the Reported Maltreatment of a Slave Named Henry Williams in Jamaica.’’ 1830–31 (231) XVI. ‘‘Information from Jamaica Respecting an Inquiry into the

256

Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 273 of 308 Tseng 2004.8.31 07:45

Treatment of a Female Slave, by the Rev. Mr. Bridges, Rector of St. Ann’s, in That Island; with the Minutes of Evidence Taken by the Magistrates on That Occasion, and the Result of the Inquiry.’’ 1831–32 (009) XLVI. ‘‘Papers in Explanation of the Measures Adopted for the Melioration of the Condition of the Slave Population in His Majesty’s Possessions in the West Indies, on the Continent of South America, and at the Mauritius.’’ 1831–32 (480) XLVII. ‘‘Copy of All Communications Received Relating to the Adoption or Rejection, in the House of Assembly, of a Law for Abolishing the Practice of Punishing Females by the Whip in Jamaica.’’ 1831–32 (649) XLVI. ‘‘Papers in Explanation of the Measures Adopted for the Melioration of the Condition of the Slave Population in His Majesty’s Possessions in the West Indies and on the Continent of South America.’’ 1831–32 (721) XX. ‘‘Report from Select Committee on the Extinction of Slavery Throughout the British Dominions: With the Minutes of Evidence, Appendix and Index.’’ 1835 (177) L. ‘‘Papers in Explanation of the Measures for Giving Effect to the Act for the Abolition of Slavery Throughout the British Colonies. Part I. Jamaica. 1833–1835.’’ 1835 (278) L. ‘‘Papers in Explanation of the Measures for Giving Effect to the Act for the Abolition of Slavery Throughout the British Colonies. Part II. Jamaica—continued, Barbadoes, British Guiana, and Mauritius. 1833–1835.’’ 1836 (166) XLVIII. ‘‘Papers in Explanation of the Measures for Giving Effect to the Act for the Abolition of Slavery Throughout the British Colonies. Part III (1). Jamaica—Continued 1836.’’ 1836 (174) XLVIII. ‘‘Statements and Protest Made by the Agent of Jamaica, in Relation to the Recent Proceedings of the Governors and Assembly of That Colony.’’ 1836 (0.44) XLVIII. ‘‘Papers in Explanation of the Proceedings of the Legislature of Jamaica, in Reference to the Amendment of Their Original Act for Giving Effect to the Act of Parliament for the Abolition of Slavery.’’ 1836 (560) XV. ‘‘Report from the Select Committee Appointed to Inquire into the Working of the Apprenticeship System in the Colonies, Condition of Apprentices, Laws and Regulations, &c; with the Minutes of Evidence, Appendix and Index.’’ 1837 (510) VII. ‘‘Select Committee on Negro Apprenticeship.’’ 1837 (521) LIII. ‘‘Papers in Explanation of the Measures Adopted by His Majesty’s Government, for Giving Effect to the Act for the Abolition of Slavery Throughout the British Colonies. Part IV (1). Jamaica. Barbados. British Guiana.’’ 1837–38 (154) XLIX. ‘‘Papers in Explanation of the Measures Adopted by His Majesty’s Government, for Giving Effect to the Act for the Abolition of Slavery Throughout the British Colonies. Part V. Jamaica.’’

bibliography

257

7124 Paton / NO BOND BUT THE LAW / sheet 274 of 308

1837–38 (596) XL. ‘‘Report of Captain J. W. Pringle on Prisons in the West Indies, Part I: Jamaica.’’ 1839 (107) XXXV. ‘‘Papers Relative to the West Indies.’’ 1839 (523) XXXVI. ‘‘Papers Relative to the West Indies.’’ 1846 (691) XXVIII. ‘‘Papers Relating to the Laboring Population of the British Colonies. Part I: State of the Labouring Population in the West Indies and Mauritius.’’ great britain. parliament. house of lords. parliamentary papers (pp).

1841 Session 2 [344] III. ‘‘Papers Relative to the West Indies. Part II Jamaica.’’ 1841–42 [374] XXIX. ‘‘Papers Relative to the West Indies.’’ 1849 [1065] XXXVII. ‘‘Papers Relative to the Affairs of the Island of Jamaica.’’ 1854 [1806] XLIII. ‘‘Papers Relative to Legislative Proceedings in Jamaica, in Continuation of Papers Presented June 30, 1853.’’ 1854 [1848] XLIII. ‘‘Papers Relative to the Affairs of the Island of Jamaica.’’ 1866 [3683] XXXI. ‘‘Report of the Jamaica Royal Commission, 1866.’’ hansard parliamentary debates. may 14, 1833. Jamaica

‘‘The Commissions of Enquiry Act Commission to Enquire into and Report on Recent Incidents at the St. Catherine Adult Correctional Centre on May 21 to May 25, 2000.’’ United States

U.S. Department of Justice, Bureau of Justice Statistics, Prison Statistics, ‘‘Summary Findings.’’ U.S. Department of State, Bureau of Democracy, Human Rights, and Labor. ‘‘Jamaica: Country Reports on Human Rights Practices, 2001.’’ Washington, March 4, 2002.

Newspapers and Periodicals

Tseng 2004.8.31 07:45

Anti-Slavery Reporter (London), 1828–29. Caribbean Insight (London), 1992–99. Colonial Standard (Kingston), 1850. Cornwall Chronicle and County Gazette (Montego Bay), 1839. Falmouth Post (Jamaica), 1837–40, 1842–60, 1862–65. The Guardian (London), 1999. The Independent (London), 2002. Jamaica Almanack, 1822–67 (selected editions). Jamaica Despatch and New Courant (Kingston), 1837. Jamaica Gleaner (Kingston), 1999, 2001–02. Jamaica Observer (Kingston), 2002. Jamaica Star (Kingston), 2002. Morning Journal (Kingston), 1838–56.

258

Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 275 of 308 Tseng 2004.8.31 07:45

New York Times, 1997. Royal Gazette (Kingston), 1780–1842 (selected years). St. Jago de la Vega Gazette (Jamaica), 1829, 1837, 1839. The Watchman and Jamaica Free Press (Kingston), 1830–36.

Printed Primary Sources Banbury, Thomas R. Jamaica Superstitions; or the Obeah Book. A Complete Treatise of the Absurdities Believed in by the People of the Island. Kingston: DeSouza, 1894. Baptist Missionary Society. Freedom in Jamaica; or the First of August 1838. London: G. Wightman, 1838. Barclay, Alexander. A Practical View of the Present State of Slavery in the West Indies; . . . Containing More Particularly an Account of the Actual Condition of the Negroes in Jamaica. London: Smith, Elder, 1826. Beamont, Gustave de, and Alexis de Tocqueville. On the Penitentiary System in the United States and Its Application in France, trans. Francis Lieber. Carbondale: Southern Illinois University Press, 1964. Beccaria, Cesare. ‘‘On Crimes and Punishments’’ [1764]. 1–113 in On Crimes and Punishments and Other Writings, ed. Richard Bellamy. Cambridge: Cambridge University Press, 1995. Bentham, Jeremy. Panopticon; or The Inspection House. 2 vols. London: T. Payne, 1791. Bickell, Rev. R. The West Indies as They Are; or a Real Picture of Slavery: but More Particularly as It Exists in the Island of Jamaica. London: J. Hatchard and Son, 1825. Bleby, Henry. Death Struggles of Slavery: A Narrative of Facts and Incidents, which Occurred in a British Colony, during the Two Years Immediately Preceding Negro Emancipation. London, 1853. Candler, John. Extracts from the Journal of John Candler Whilst Travelling in Jamaica, Part II. London: Harvey and Dalton, 1841. Carlyle, James Edward. Thirty-eight Years’ Mission Life in Jamaica: A Brief Sketch of the Rev. Warrand Carlile, Missionary at Brownsville, by One of His Sons. London: James Nisbet and Company, 1884. Clark, John. A Brief Account of the Settlements of the Emancipated Peasantry in the Neighbourhood of Brown’s Town, Jamaica. In a Letter to Joseph Sturge. Birmingham, 1852. Clarke, John. Memorials of Baptist Missionaries in Jamaica, Including a Sketch of the Labours of Early Religious Instructors in Jamaica. London: Yates and Alexander, 1869. Coleridge, Henry Nelson. Six Months in the West Indies in 1825. London: William Tegg, 1826. De La Beche, Henry T. Notes on the Present Condition of the Negroes in Jamaica. London: T. Cadell, 1825.

bibliography

259

7124 Paton / NO BOND BUT THE LAW / sheet 276 of 308 Tseng 2004.8.31 07:45

Howard, John. The State of the Prisons in England and Wales, with Preliminary Observations, and an Account of Some Foreign Prisons. Warrington: William Eyres, 1777. Letter from a Merchant at Jamaica to a Member of Parliament in London Touching the African Trade. To which is Added, a Speech Made by a Black of Gardaloupe [sic], at the Funeral of a Fellow-Negro. London: A. Baldwin, 1709. Lewis, Mathew. Journal of a West Indian Proprietor, Kept during a Residence in the Island of Jamaica [1834], ed. Judith Terry, Oxford World’s Classics. Oxford: Oxford University Press, 1999. London Anti-Slavery Society. Punishments Inflicted Under the Apprenticeship System; Extracted from the Appendix to a Report Recently Published by the Committee of the London Anti-Slavery Society, on Negro Apprenticeship, in the British Colonies. London, 1838. Long, Edward. The History of Jamaica, or General Survey of the Antient and Modern State of that Island: With Reflections on Its Situations, Settlements, Inhabitants, Climate, Products, Commerce, Laws, and Government [1774]. London: Frank Cass, 1970. McDonald, Roderick A., ed. Between Slavery and Freedom: Special Magistrate John Anderson’s Journal of St. Vincent during the Apprenticeship. Mona, Jamaica: University of the West Indies Press, 2001. Madden, R. R. A Twelvemonth’s Residence in the West Indies, during the Transition from Slavery to Apprenticeship. Philadelphia: Carey, Lea, and Blanchard, 1835. Marly; Or, a Planter’s Life in Jamaica. Glasgow: Richard Griffin, 1828. Middleditch, Rev. T. The Youthful Female Missionary: A Memoir of Mary Ann Hutchins, Wife of the Rev. John Hutchins, Baptist Missionary, Savanna-La-Mar, Jamaica; and Daughter of the Rev. T. Middleditch of Ipswich, Compiled Chiefly from Her Own Correspondence, by Her Father. London: G. Wightman, 1840. Roughley, Thomas. The Jamaica Planter’s Guide; Or, a System for Planting and Managing a Sugar Estate. London: Longman, Hurst, Rees, Orme, and Brown, 1823. sipd (Society for the Improvement of Prison Discipline). Rules Proposed for the Government of Gaols, Houses of Correction and Penitentiaries. London: T. Bensley, 1820. Sturge, Joseph. Horrors of the Negro Apprenticeship System in the British Colonies: As Detailed at the Public Breakfast Given by the Citizens of Birmingham, to Mr. Joseph Sturge, on Returning from His Benevolent Mission to the West Indies, June 6, 1837. Edinburgh, 1837.  and Thomas Harvey. The West Indies in 1837; Being the Journal of a Visit to Antigua, Montserrat, Dominica, St. Lucia, Barbados, and Jamaica. London: Hamilton, Adams, 1838. Thome, James A., and J. Horace Kimball. Emancipation in the West Indies, A Six Months’ Tour in Antigua, Barbadoes, and Jamaica, in the Year 1837. New York: American Anti-Slavery Society, 1838. Waddell, Hope Masterton. Twenty-nine Years in the West Indies and Central

260

Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 277 of 308 Tseng 2004.8.31 07:45

Africa: A Review of Missionary Work and Adventure, 1829–1858 [1863]. London: Frank Cass, 1970. Whiteley, Henry. Three Months in Jamaica in 1832: Comprising a Residence of Seven Weeks on a Sugar Plantation. London: Hatchard, 1833. Williams, James. A Narrative of Events, Since the First of August, 1834, by James Williams, an Apprenticed Labourer in Jamaica [1837], ed. Diana Paton. Durham, N.C.: Duke University Press, 2001. Wright, Philip, ed. Lady Nugent’s Journal of Her Residence in Jamaica from 1801 to 1805 [1839]. Kingston: Institute of Jamaica, 1966.

secondary sources Books, Articles, and Dissertations Abel, Richard L. ‘‘Western Courts in Non-Western Settings: Patterns of Court Use in Colonial and Neo-Colonial Africa.’’ In The Imposition of Law, ed. by Sandra B. Burman and Barbara E. Harrell-Bond, 167–200. New York: Academic Press, 1979. , ed. The Politics of Informal Justice. New York: Academic Press, 1992. Adamson, Alan H. Sugar Without Slaves: The Political Economy of British Guiana, 1838–1904. New Haven: Yale University Press, 1972. Adamson, Christopher R. ‘‘Hard Labor and Solitary Confinement: Effects of the Business Cycle and Labor Supply on Prison Discipline in the United States, 1790–1835.’’ Research in Law, Deviance and Social Control 6 (1984): 19–56. . ‘‘Punishment after Slavery: Southern State Penal Systems, 1865–1890.’’ Social Problems 30 (1983): 555–67. . ‘‘Towards a Marxian Penology: Captive Criminal Populations as Economic Threats and Resources.’’ Social Problems 31, no. 4 (1984): 435–58. Aguirre, Carlos. ‘‘Disputed Views of Incarceration in Lima, 1890–1930: The Prisoners’ Agenda for Prison Reform.’’ In Crime and Punishment in Latin America: Law and Society Since Late Colonial Times, ed. by Ricardo D. Salvatore, Carlos Aguirre, and Gilbert M. Joseph, 342–68. Durham, N.C.: Duke University Press, 2001. . ‘‘The Lima Penitentiary and the Modernization of Criminal Justice in Nineteenth-Century Peru.’’ In The Birth of the Penitentiary in Latin America: Essays on Criminology, Penal Reform, and Social Control, 1830–1940, ed. by Ricardo D. Salvatore and Carlos Aguirre, 44–77. Austin: University of Texas Press, 1996. Alleyne, Mervyn. Roots of Jamaican Culture. London: Pluto Press, 1988. Altink, Henrice. ‘‘‘An Outrage on All Decency’: Abolitionist Reactions to Flogging Jamaican Slave Women, 1780–1934.’’ Slavery and Abolition 23, no. 2 (2002): 107–22. . ‘‘Slavery by Another Name: Apprenticed Women in Jamaican Workhouses in the Period 1834–1838.’’ Social History 26, no. 1 (2001): 40–59.

bibliography

261

7124 Paton / NO BOND BUT THE LAW / sheet 278 of 308 Tseng 2004.8.31 07:45

Americas Watch. Prison Conditions in Jamaica, May 1990: An Americas Watch Report. New York: Americas Watch, 1990. Amnesty International. ‘‘Jamaica: Braeton Inquest—Getting Away with Murder?’’ News Release, October 4, 2002, AI Index: AMR 38/020/2002. . ‘‘Jamaica: Braeton Officers Charged—Milestone in Ending Police Impunity.’’ Press Release, November 5, 2003, AI Index: AMR 38/020/2003. . ‘‘Jamaica: Killings and Violence by Police: How Many More Victims?’’ Amnesty International Report AI Index: AMR 38/003/2001 (2001). . ‘‘Jamaica: Summary of Concerns October 1997.’’ Amnesty International Report no. 38/07/97. . ‘‘The Killing of the Braeton Seven—A Justice System on Trial.’’ March 13, 2003, AI Index: AMR 38/005/2003. Arnold, David. ‘‘The Colonial Prison: Power, Knowledge and Penology in Nineteenth-Century India.’’ In Subaltern Studies VIII: Essays in Honour of Ranajit Guha, ed. by David Arnold and David Hardiman, 148–87. Delhi: Oxford University Press, 1994. . ‘‘Gramsci and Peasant Subalternity in India.’’ Journal of Peasant Studies 11 (1984): 155–77. Augier, Roy. ‘‘Before and after 1865.’’ In Caribbean Freedom: Economy and Society from Emancipation to the Present [1966], ed. by Hilary Beckles and Verene Shepherd, 170–80. Kingston: Ian Randle Publishers, 1993. Austin-Broos, Diane J. Jamaica Genesis: Religion and the Politics of Moral Order. Chicago: University of Chicago Press, 1997. Ayers, Edward L. Vengeance and Justice: Crime and Punishment in the 19thCentury American South. New York: Oxford University Press, 1984. Bakan, Abigail B. Ideology and Class Conflict in Jamaica: The Politics of Rebellion. Montreal: McGill–Queen’s University Press, 1990. Bauer, Raymond A., and Alice H. Bauer. ‘‘Day-to-Day Resistance to Slavery.’’ Journal of Negro History 27 (1942): 388–419. Beckles, Hilary McD. Natural Rebels: A Social History of Enslaved Black Women in Barbados. New Brunswick, N.J.: Rutgers University Press, 1989. . ‘‘Taking Liberties: Enslaved Women and Anti-Slavery in the Caribbean.’’ In Gender and Imperialism, ed. by Clare Midgley, 137–57. Manchester: Manchester University Press, 1998.  and Verene Shepherd, ed. Caribbean Freedom: Economy and Society from Emancipation to the Present. Kingston: Ian Randle Publishers, 1993. Bender, Thomas, ed. The Antislavery Debate: Capitalism and Abolitionism as a Problem in Historical Interpretation. Berkeley: University of California Press, 1992. Bentley, David. English Criminal Justice in the Nineteenth Century. London: Hambledon Press, 1998. Berlin, Ira. Many Thousands Gone: The First Two Centuries of Slavery in North America. Cambridge, Mass.: Harvard University Press, 1998.

262 Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 279 of 308 Tseng 2004.8.31 07:45

. The Slaves’ Economy: Independent Production by Slaves in the Americas. London: Frank Cass, 1991.  and Philip D. Morgan, eds. Cultivation and Culture: Labor and the Shaping of Slave Life in the Americas. Charlottesville: University Press of Virginia, 1993. Blackburn, Robin. The Making of New World Slavery: From the Baroque to the Modern 1492–1800. London: Verso, 1997. . The Overthrow of Colonial Slavery, 1776–1848. London: Verso, 1988. Blanchard, Peter. Slavery and Abolition in Early Republican Peru. Wilmington, Del.: Scholarly Resources, 1992. Blassingame, John. The Slave Community: Plantation Life in the Antebellum South. New York: Oxford University Press, 1972. Boa, Sheena. ‘‘Discipline, Reform or Punish? Attitudes toward Juvenile Crimes and Misdemeanours in the Post-Emancipation Caribbean, 1838–1888.’’ In Contesting Freedom: Control and Resistance in the Post-emancipation Caribbean, ed. by Gad Heuman and David V. Trotman. London: Macmillan Caribbean, forthcoming. Bolland, O. Nigel. ‘‘The Politics of Freedom in the British Caribbean.’’ In The Meaning of Freedom: Economics, Politics, and Culture after Slavery, ed. by Frank McGlynn and Seymour Drescher, 113–46. Pittsburgh: University of Pittsburgh Press, 1992. . ‘‘Systems of Domination after Slavery: The Control of Land and Labor in the British West Indies after 1838.’’ Comparative Studies in Society and History 23 (1981): 591–619. Bolt, Christine. Victorian Attitudes to Race. London: Routledge and Kegan Paul, 1971. Bourdieu, Pierre. ‘‘The Force of Law: Toward a Sociology of the Juridical Field.’’ Hastings Law Journal 38 (1987): 814–53. Boxill, Eileen. ‘‘Developments in Family Law Since Emancipation.’’ West Indian Law Journal 9 (1985): 9–20. Brathwaite, Edward. The Development of Creole Society in Jamaica, 1770–1820. Oxford: Clarendon Press, 1971. Brereton, Bridget. ‘‘Family Strategies, Gender, and the Shift to Wage Labour in the British Caribbean.’’ In The Colonial Caribbean in Transition: Essays on Postemancipation Social and Cultural History, ed. by Bridget Brereton and Kevin A. Yelvington, 77–107. Kingston: University of the West Indies Press, 1999. Brewer, John, and Roy Porter, eds. Consumption and the World of Goods. London: Routledge, 1993. Brown, Alexandra K. ‘‘‘A Black Mark on Our Legislation’: Slavery, Punishment, and the Politics of Death in Nineteenth-Century Brazil.’’ Luso-Brazilian Review 37, no. 2 (2000): 96–121. Bryan, Patrick. The Jamaican People 1880–1902: Race, Class and Social Control. London: Macmillan Caribbean, 1991.

bibliography

263

7124 Paton / NO BOND BUT THE LAW / sheet 280 of 308 Tseng 2004.8.31 07:45

Buckley, Roger Norman. The British Army in the West Indies: Society and the Military in the Revolutionary Age. Gainesville: University Press of Florida, and Mona, Jamaica: University of the West Indies Press, 1998. Burn, W. L. Emancipation and Apprenticeship in the British West Indies. London: Jonathan Cape, 1937. Burton, Richard D. E. Afro-Creole: Power, Opposition, and Play in the Caribbean. Ithaca: Cornell University Press, 1997. Bush, Barbara. Slave Women in Caribbean Society 1650–1838. London: James Currey, 1990. Butler, Kathleen Mary. The Economics of Emancipation: Jamaica and Barbados, 1823–1843. Chapel Hill: University of North Carolina Press, 1995. Buvinic, Mayra, Andrew Morrison, and Michael Shifter. ‘‘Violence in Latin America and the Caribbean: A Framework for Action.’’ Sustainable Development Department, Inter-American Development Bank, March 1999. Buxton, Charles. Memoirs of Sir Thomas Fowell Buxton. London, 1872. Cardoso, Ciro Flamarion S. ‘‘The Peasant Breach in the Slave System: New Developments in Brazil.’’ Luso-Brazilian Review 25 (1988): 49–57. Cassidy, F. G., and R. B. LePage. Dictionary of Jamaican English [1967]. Cambridge: Cambridge University Press, 1980. Chakrabarty, Dipesh. ‘‘Postcoloniality and the Artifice of History: Who Speaks for ‘Indian’ Pasts?’’ Representations 37 (1992): 1–26. Chanock, Martin. Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia. Portsmouth, N.H.: Heinemann, 1998. Chatterjee, Partha. The Nation and Its Fragments: Colonial and Post-Colonial Histories. Princeton: Princeton University Press, 1993. Chevannes, Barry. Rastafari: Roots and Ideology. Syracuse, N.Y.: Syracuse University Press, and Mona, Jamaica: University of the West Indies Press, 1995. Chutkan, Noelle. ‘‘The Administration of Justice in Jamaica as a Contributing Factor in the Morant Bay Rebellion of 1865.’’ Savacou 11–12 (1975): 78–85. Clegg, Peter. The Caribbean Banana Trade: From Colonialism to Globalization. Basingstoke: Palgrave, 2002. Cohn, Bernard S. ‘‘Law and the Colonial State in India.’’ In History and Power in the Study of Law: New Directions in Legal Anthropology, ed. by June Starr and Jane F. Collier, 131–52. Ithaca: Cornell University Press, 1989. Comaroff, John L. ‘‘Images of Empire, Contests of Conscience: Models of Colonial Domination in South Africa.’’ American Ethnologist 16, no. 4 (1989): 661–85. Conrad, Robert Edgar. The Destruction of Brazilian Slavery, 1850–1888. Berkeley: University of California Press, 1972. , ed. Children of God’s Fire: A Documentary History of Black Slavery in Brazil. Princeton: Princeton University Press, 1983. Cooper, Frederick. ‘‘Conflict and Connection: Rethinking Colonial African History.’’ American Historical Review 99, no. 5 (1994): 1516–45.

264 Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 281 of 308 Tseng 2004.8.31 07:45

. On the African Waterfront: Urban Disorder and the Transformation of Work in Colonial Mombasa. New Haven: Yale University Press, 1987. Coronil, Fernando. ‘‘Listening to the Subaltern: The Poetics of Neocolonial States.’’ Poetics Today 15, no. 4 (1994): 643–658. Corrigan, Philip. ‘‘Feudal Relics or Capitalist Monuments? Notes on the Sociology of Unfree Labour.’’ Sociology 11 (1977): 435–463.  and Derek Sayer. The Great Arch: English State Formation as Cultural Revolution. Oxford: Blackwell, 1985. Crais, Clifton. ‘‘Of Men, Magic, and the Law: Popular Justice and the Political Imagination in South Africa.’’ Journal of Social History 32, no. 1 (1998): 49–72. Craton, Michael. ‘‘Continuity Not Change: The Incidence of Unrest Among Ex-Slaves in the British West Indies, 1838–1876.’’ In Caribbean Freedom: Economy and Society from Emancipation to the Present, ed. by Hilary Beckles and Verene Shepherd, 192–206. Kingston: Ian Randle Publishers, 1993. . Searching for the Invisible Man: Slaves and Plantation Life in Jamaica. Cambridge, Mass.: Harvard University Press, 1978. . Testing the Chains: Resistance to Slavery in the British West Indies. Ithaca: Cornell University Press, 1982.  and James Walvin. A Jamaican Plantation: The History of Worthy Park 1670–1970. London: W. H. Allen, 1970. Craven, Paul, and Douglas Hay. ‘‘The Criminalization of ‘Free’ Labour: Master and Servant in Comparative Perspective.’’ In Unfree Labour in the Development of the Atlantic World, ed. by Paul E. Lovejoy and Nicholas Rogers, 71–101. Ilford, Essex: Frank Cass, 1994. Curtin, Philip D. Two Jamaicas: The Role of Ideas in a Tropical Colony, 1830–1865. Cambridge, Mass.: Harvard University Press, 1955. Dalby, Jonathan. Crime and Punishment in Jamaica: A Quantitative Analysis of the Assize Court Records, 1756–1856. Mona, Jamaica: Social History Project, Department of History, University of the West Indies, 2000. Damousi, Joy. Depraved and Disorderly: Female Convicts, Sexuality and Gender in Colonial Australia. Cambridge: Cambridge University Press, 1997. . ‘‘ ‘What Punishment Will Be Sufficient for These Rebellious Hussies?’ Headshaving and Convict Women in the Female Factories, 1820s-1840s.’’ In Representing Convicts: New Perspectives on Convict Forced Labour Migration, ed. by Ian Duffield and James Bradley, 204–14. London: Leicester University Press, 1997. Davidoff, Leonore, and Catherine Hall. Family Fortunes: Men and Women of the English Middle Class, 1780–1850. Chicago: University of Chicago Press, 1987. Davis, David Brion. The Problem of Slavery in the Age of Revolution, 1770–1823. Ithaca: Cornell University Press, 1975. . The Problem of Slavery in Western Culture. New York: Oxford University Press, 1966. Davis, Jennifer. ‘‘The London Garotting Panic of 1862: A Moral Panic and the Creation of a Criminal Class in Mid-Victorian England.’’ In Crime and the

bibliography

265

7124 Paton / NO BOND BUT THE LAW / sheet 282 of 308 Tseng 2004.8.31 07:45

Law: The Social History of Crime in Western Europe since 1500, ed. by V. A. C. Gatrell, Bruce Lenman, and Geoffrey Parker, 190–213. London: Europa, 1980. De Barros, Juanita. ‘‘Metropolitan Policies and Colonial Practices at the Boys’ Reformatory in British Guiana.’’ Journal of Imperial and Commonwealth History 30, no. 2 (2002): 1–24. Deacon, Harriet, ed. The Island: A History of Robben Island, 1488–1990. Cape Town: David Philip, 1996. Dearden, Stephen. ‘‘The E.U. Banana Protocol.’’ In The European Union and the Commonwealth Caribbean, ed. by Stephen J. H. Dearden, 52–78. Aldershot, Hampshire: Ashgate, 2002. DeLacy, Margaret. Prison Reform in Lancashire, 1700–1850: A Study in Local Administration. Stanford, Calif.: Stanford University Press, 1986. Dirks, Robert. The Black Saturnalia: Conflict and Its Ritual Expression on British West Indian Slave Plantations. Gainesville: University of Florida Press, 1987. Dodge, L. Mara. ‘‘ ‘One Female Prisoner is of More Trouble than Twenty Males’: Women Convicts in Illinois Prisons, 1835–1896.’’ Journal of Social History 32, no. 2 (1999): 907–30. Dore, Elizabeth. ‘‘One Step Forward, Two Steps Back: Gender and the State in the Long Nineteenth Century.’’ In Hidden Histories of Gender and the State in Latin America, ed. by Elizabeth Dore and Maxine Molyneux, 3–32. Durham, N.C.: Duke University Press, 2000. Dusinberre, William. Them Dark Days: Slavery in the American Rice Swamps. New York: Oxford University Press, 1996. Edwards, Adolph. ‘‘The Development of Criminal Law in Jamaica up to 1900.’’ Ph.D. diss., University of London, 1968. Eisner, Gisela. Jamaica, 1830–1930: A Study in Economic Growth. Westport, Conn.: Greenwood Press, 1961. Emmer, Pieter. ‘‘Between Slavery and Freedom: The Period of Apprenticeship in Suriname (Dutch Guiana), 1863–1873.’’ Slavery and Abolition 14, no. 1 (1993): 87–105. Eudell, Demetrius L. The Political Languages of Emancipation in the British Caribbean and the U.S. South. Chapel Hill: University of North Carolina Press, 2002. Evans, Robin. The Fabrication of Virtue: English Prison Architecture, 1750–1840. Cambridge: Cambridge University Press, 1982. Favret, Mary A. ‘‘Flogging: The Anti-Slavery Movement Writes Pornography.’’ In Essays and Studies 1998: Romanticism and Gender, ed. by Anne Janowitz, 19–43. Cambridge: D. S. Brewer, 1998. Ferguson, Moira. Subject to Others: British Women Writers and Colonial Slavery, 1670–1834. New York: Routledge, 1992. Foner, Eric. Reconstruction: America’s Unfinished Revolution 1863–1877. New York: Harper and Row, 1988. Forsythe, William James. The Reform of Prisoners 1830–1900. London: Croom Helm, 1987.

266

Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 283 of 308 Tseng 2004.8.31 07:45

Foucault, Michel. Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan. London: Vintage Books, 1977. Franklin, John Hope, and Loren Schweninger. Runaway Slaves: Rebels on the Plantation. Oxford: Oxford University Press, 1999. Garland, David. Punishment and Modern Society: A Study in Social Theory. Oxford: Clarendon Press, 1990. . Punishment and Welfare: A History of Penal Strategies. Aldershot, Hampshire: Gower, 1985. Gatrell, V. A. C. The Hanging Tree: Execution and the English People, 1770–1868. New York: Oxford University Press, 1994.  and T. B. Hadden. ‘‘Criminal Statistics and Their Interpretation.’’ In Nineteenth Century Society: Essays in the Use of Quantitative Methods for the Study of Social Data, ed. by E. A. Wrigley, 336–96. Cambridge: Cambridge University Press, 1972. Geggus, David. Slavery, War, and Revolution: The British Occupation of SaintDomingue 1793–1798. Oxford: Clarendon Press, 1982. Genovese, Eugene D. Roll, Jordan, Roll: The World the Slaves Made. New York: Pantheon Books, 1972. . The World the Slaveholders Made: Two Essays in Interpretation [1969]. Middletown, Conn.: Wesleyan University Press, 1988. Goffman, Erving. Asylums: Essays on the Social Situation of Mental Patients and Other Inmates. London: Penguin, 1961. Goveia, Elsa V. Slave Society in the British Leeward Islands at the End of the Eighteenth Century. New Haven: Yale University Press, 1965. . The West Indian Slave Laws of the 18th Century. [Bridgetown,] Barbados: Caribbean Universities Press, 1970. Gramsci, Antonio. Selections from the Prison Notebooks, ed. by Quintin Hoare and Geoffrey Nowell Smith. London: Lawrence and Wishart, 1971. Green, William A. British Slave Emancipation: The Sugar Colonies and the Great Experiment, 1830–1865. Oxford: Clarendon Press, 1976. Guha, Ranajit. Elementary Aspects of Peasant Insurgency in Colonial India. Delhi: Oxford University Press, 1983. . ‘‘The Prose of Counter-Insurgency.’’ In Subaltern Studies II: Writings on South Asian History and Society, ed. by Ranajit Guha, 1–42. Delhi: Oxford University Press, 1983. Hadden, Sally E. Slave Patrols: Law and Violence in Virginia and the Carolinas. Cambridge, Mass.: Harvard University Press, 2001. Hall, Catherine. Civilising Subjects: Metropole and Colony in the English Imagination, 1830–1867. Cambridge: Polity Press, 2002. . ‘‘Competing Masculinities: Thomas Carlyle, John Stuart Mill, and the Case of Governor Eyre.’’ In White, Male and Middle Class: Explorations in Feminism and History, 255–95. Cambridge: Polity Press, 1992. . ‘‘Missionary Stories: Gender and Ethnicity in England in the 1830s

bibliography

267

7124 Paton / NO BOND BUT THE LAW / sheet 284 of 308 Tseng 2004.8.31 07:45

and 1840s.’’ In White, Male and Middle Class: Explorations in Feminism and History, 205–54. Cambridge: Polity Press, 1992. . ‘‘Rethinking Imperial Histories: The Reform Act of 1867.’’ New Left Review 208 (1994): 3–29. . White, Male and Middle Class: Explorations in Feminism and History. Cambridge: Polity Press, 1992. . ‘‘White Visions, Black Lives: The Free Villages of Jamaica.’’ History Workshop Journal 36 (1993): 100–32. Hall, Douglas. ‘‘The Apprenticeship Period in Jamaica, 1834–1838.’’ Caribbean Quarterly 3, no. 3 (1953): 142–66. . Free Jamaica 1838–1865: An Economic History. New Haven: Yale University Press, 1959. Harrison, Brian. ‘‘A Genealogy of Reform in Modern Britain.’’ In Anti-Slavery, Religion, and Reform: Essays in Memory of Roger Anstey, ed. by Christine Bolt and Seymour Drescher, 119–48. Folkestone, Kent: Dawson Archon, 1980. Harrison, Faye V. ‘‘The Politics of Social Outlawry in Urban Jamaica.’’ Urban Anthropology 17 (1988): 259–77. Hartman, Saidiya V. Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America. New York: Oxford University Press, 1997. Hay, Douglas. ‘‘Property, Authority, and the Criminal Law.’’ In Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, ed. by Douglas Hay, Peter Linebaugh, John G. Rule, E. P. Thompson, and Cal Winslow, 17–63. New York: Pantheon Books, 1975. . ‘‘Prosecution and Power: Malicious Prosecution in the English Courts, 1750–1850.’’ In Policing and Prosecution in Britain 1750–1850, ed. by Douglas Hay and Francis Snyder, 343–95. Oxford: Clarendon Press, 1989.  and Paul Craven. ‘‘Master and Servant in England and the Empire: A Comparative Study.’’ Labour/Le Travail 31 (1993): 175–84. Heath, James. Eighteenth Century Penal Theory. Oxford: Oxford University Press, 1963. Helg, Aline. Our Rightful Share: The Afro-Cuban Struggle for Equality, 1886–1912. Chapel Hill: University of North Carolina Press, 1995. Henderson, George E. Goodness and Mercy: A Tale of a Hundred Years. Kingston: Gleaner Company, 1931. Henriques, U. ‘‘The Rise and Decline of the Separate System of Prison Discipline.’’ Past and Present 54 (1972): 61–93. Heuman, Gad. Between Black and White: Race, Politics, and the Free Coloreds in Jamaica, 1792–1865. Westport, Conn.: Greenwood Press, 1981. . ‘‘The Killing Time’’: The Morant Bay Rebellion in Jamaica. London: Macmillan Caribbean, 1994. . ‘‘Riots and Resistance at the Moment of Full Freedom in the Anglophone Caribbean.’’ Paper presented at the 31st Annual Conference of the Association of Caribbean Historians, Havana, Cuba, 1999. . ‘‘Runaway Slaves in Nineteenth-Century Barbados.’’ In Out of the House

268 Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 285 of 308 Tseng 2004.8.31 07:45

of Bondage: Runaways, Resistance and Marronage in Africa and the New World, ed. by Gad Heuman, 95–111. London: Frank Cass, 1986. Higman, Barry W. The Jamaican Censuses of 1844 and 1861: A New Edition, Derived from the Manuscript and Printed Schedules in the Jamaica Archives. Mona, Jamaica: Social History Project, University of the West Indies, 1980. . ‘‘Jamaican Port Towns in the Early Nineteenth Century.’’ In Atlantic Port Cities: Economy, Culture and Society in the Atlantic World, 1650–1850, ed. by Franklin W. Knight and Peggy K. Liss, 117–48. Knoxville: University of Tennessee Press, 1991. . Slave Population and Economy in Jamaica, 1807–1834 [1976]. Kingston: University of the West Indies Press, 1995. Hill, Robert. ‘‘Leonard P. Howell and Millenarian Visions in Early Rastafari.’’ Jamaica Journal 16 (1983): 24–39. Hindus, Michael S. Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767–1878. Chapel Hill: University of North Carolina Press, 1980. Hinton, John Howard. Memoir of William Knibb, Missionary in Jamaica. London: Houlston and Stoneman, 1847. Hirsch, Adam Jay. The Rise of the Penitentiary: Prisons and Punishment in Early America. New Haven: Yale University Press, 1992. Hirsch, Susan F., and Mindie Lazarus-Black. ‘‘Introduction: Performance and Paradox: Exploring Law’s Role in Hegemony and Resistance.’’ In Contested States: Law, Hegemony and Resistance, ed. by Mindie Lazarus-Black and Susan F. Hirsch, 1–31. New York: Routledge, 1994. Hobsbawm, Eric J. The Age of Capital, 1848–1875. London: Weidenfeld and Nicolson, 1975. . The Age of Revolution: Europe 1789–1848. London: Weidenfeld and Nicholson, 1962.  and George Rudé. Captain Swing: A Social History of the Great English Agricultural Uprising of 1830. New York: Norton, 1975. Holt, Thomas C. The Problem of Freedom: Race, Labor, and Politics in Jamaica and Britain, 1832–1938. Baltimore: Johns Hopkins University Press, 1992. Hutton, Clinton Alexander. ‘‘ ‘Colour for Colour; Skin for Skin’: The Ideological Foundations of Post-Slavery Society, 1838–1865: The Jamaican Case.’’ Ph.D. diss., University of the West Indies, Mona, Jamaica, 1992. Ignatieff, Michael. A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850. London: Macmillan, 1978. . ‘‘State, Civil Society, and Total Institutions: A Critique of Recent Social Histories of Punishment.’’ In Social Control and the State: Historical and Comparative Essays, ed. by Stanley Cohen and Andrew Scull, 75–105. Oxford: Martin Robertson, 1983. Innes, Joanna. ‘‘Prisons for the Poor: English Bridewells, 1555–1800.’’ In Labour, Law, and Crime: An Historical Perspective, ed. by Frances Snyder and Douglas Hay, 42–122. London: Tavistock Publications, 1987.

bibliography

269

7124 Paton / NO BOND BUT THE LAW / sheet 286 of 308 Tseng 2004.8.31 07:45

James, C. L. R. The Black Jacobins: Toussaint L’Ouverture and the San Domingo Revolution [1938], 2nd rev. ed. New York: Vintage Books, 1963. James, Winston. A Fierce Hatred of Injustice: Claude McKay’s Jamaica and His Poetry of Rebellion. London: Verso, 2000. Johnson, Howard. ‘‘Patterns of Policing in the Post-Emancipation British Caribbean, 1835–95.’’ In Policing the Empire: Government, Authority and Control, 1830–1940, ed. by David M. Anderson and David Killingray, 71–91. Manchester: Manchester University Press, 1991. Johnson, Walter. ‘‘A Nettlesome Classic Turns Twenty-Five (Re-reading Roll Jordan Roll ).’’ Common-Place 1, no. 4 (2001), http://www.commonplace.org/vol-01/no-04/reviews/johnson.shtml. Jones, Gareth Stedman. Outcast London: A Study in the Relation Between Classes in Victorian Society. London: Pantheon, 1984. Joseph, Gilbert M., and Daniel Nugent. ‘‘Popular Culture and State Formation in Revolutionary Mexico.’’ In Everyday Forms of State Formation: Revolution and the Negotiation of Rule in Modern Mexico, ed. by Gilbert M. Joseph and Daniel Nugent, 3–23. Durham, N.C.: Duke University Press, 1994. Kale, Madhavi. Fragments of Empire: Capital, Slavery, and Indian Indentured Labor Migration in the British Caribbean. Philadelphia: University of Pennsylvania Press, 1998. Karasch, Mary C. Slave Life in Rio de Janeiro, 1808–1850. Princeton: Princeton University Press, 1987. Kolchin, Peter. Unfree Labor: American Slavery and Russian Serfdom. Cambridge, Mass.: Harvard University Press, 1987. Kopytoff, Barbara K. ‘‘Religious Change Among the Jamaican Maroons: The Ascendency of the Christian God within a Traditional Cosmology.’’ Journal of Social History 20 (1986–87): 463–84. Landau, Norma. The Justices of the Peace, 1679–1760. Berkeley: University of California Press, 1984. Landes, Joan. Women and the Public Sphere in the Age of the French Revolution. Ithaca: Cornell University Press, 1988. Langbein, John. Torture and the Law of Proof: Europe and England in the Ancien Regime. Chicago: University of Chicago Press, 1977. Lazarus-Black, Mindie. ‘‘John Grant’s Jamaica: Notes Towards a Reassessment of Courts in the Slave Era.’’ Journal of Caribbean History 27, no. 2 (1993): 144–59. . Legitimate Acts and Illegal Encounters: Law and Society in Antigua and Barbuda. Washington: Smithsonian Institution Press, 1994. . ‘‘Slaves, Masters, and Magistrates: Law and the Politics of Resistance in the British Caribbean, 1736–1834.’’ In Contested States: Law, Hegemony, and Resistance, ed. by Mindie Lazarus-Black and Susan F. Hirsch, 252–80. New York: Routledge, 1994. Leps, Marie-Christine. Apprehending the Criminal: The Production of Deviance in Nineteenth-Century Discourse. Durham, N.C.: Duke University Press, 1992. Lichtenstein, Alex. ‘‘That Disposition to Theft, with which They Have Been

270

Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 287 of 308 Tseng 2004.8.31 07:45

Branded: Moral Economy, Slave Management and the Law.’’ Journal of Social History 21 (1987–88): 413–40. . Twice the Work of Free Labor: The Political Economy of Convict Labor in the New South. London: Verso, 1996. Linebaugh, Peter. The London Hanged: Crime and Civil Society in the Eighteenth Century. Cambridge: Cambridge University Press, 1992. Liss, Peggy K. Atlantic Empires: The Network of Trade and Revolution, 1713–1826. Baltimore: Johns Hopkins University Press, 1983. Lynch, John, ed. Latin American Revolutions, 1808–1826: Old and New World Origins. Norman: University of Oklahoma Press, 1994. Mallon, Florencia. Peasant and Nation: The Making of Postcolonial Mexico and Peru. Berkeley: University of California Press, 1995. . ‘‘The Promise and Dilemma of Subaltern Studies: Perspectives from Latin American History.’’ American Historical Review 99, no. 5 (1994): 1491– 1515. Manderson-Jones, Marlene. ‘‘Richard Hill of Jamaica: His Life and Times, 1795–1872.’’ Ph.D. diss., University of the West Indies, Mona, Jamaica, 1973. Mandler, Peter. Aristocratic Government in the Age of Reform: Whigs and Liberals, 1830–1852. Oxford: Clarendon Press, 1990. Marsala, Vincent John. Sir John Peter Grant, Governor of Jamaica, 1866–1874: An Administrative History. Kingston: Institute of Jamaica, 1972. Marshall, W. K. ‘‘Apprenticeship and Labour Relations in Four Windward Islands.’’ In Abolition and Its Aftermath: The Historical Context, 1790–1916, ed. by David Richardson, 203–24. London: Frank Cass, 1985. . ‘‘The Termination of the Apprenticeship in Barbados and the Windward Islands: An Essay in Colonial Administration and Politics.’’ Journal of Caribbean History 2 (1971): 1–45. Masur, Louis P. Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865. New York: Oxford University Press, 1989. McClelland, Keith. ‘‘Rational and Respectable Men: Gender, the Working Class, and Citizenship in Britain, 1850–1867.’’ In Gender and Class in Modern Europe, ed. by Laura L. Frader and Sonya O. Rose, 280–93. Ithaca: Cornell University Press, 1996. . ‘‘Some Thoughts on Masculinity and the ‘Representative Artisan’ in Britain, 1850–1880.’’ Gender and History 1 (1989): 164–77. McConville, Sean. A History of English Prison Administration, Vol. 1: 1750–1877. London: Routledge and Kegan Paul, 1981. McDonald, Roderick A. The Economy and Material Culture of Slaves: Goods and Chattels on the Sugar Plantations of Jamaica and Louisiana. Baton Rouge: Louisiana State University Press, 1993. McGlynn, Frank, and Seymour Drescher, eds. The Meaning of Freedom: Economics, Politics, and Culture after Slavery. Pittsburgh: University of Pittsburgh Press, 1992. McGowen, Randall. ‘‘Power and Humanity, or Foucault Among the Historians.’’

bibliography

271

7124 Paton / NO BOND BUT THE LAW / sheet 288 of 308 Tseng 2004.8.31 07:45

In Reassessing Foucault: Power, Medicine and the Body, ed. by Colin Jones and Roy Porter, 91–112. London: Routledge, 1994. McKay, Claude. My Green Hills of Jamaica. Kingston: Heinemann Educational Books (Caribbean), 1979. McKendrick, Neil, John Brewer, and J. H. Plumb, eds. The Birth of a Consumer Society: The Commercialization of Eighteenth-Century England. Bloomington: Indiana University Press, 1985. Meeks, Brian. Narratives of Resistance: Jamaica, Trinidad, the Caribbean. Mona, Jamaica: University of the West Indies Press, 2000. . ‘‘The Political Moment in Jamaica: The Dimensions of Hegemonic Dissolution.’’ In Radical Caribbean: From Black Power to Abu Bakr, 124–43. Mona, Jamaica: University of the West Indies Press, 1996. Melossi, Dario, and Massimo Pavarini. The Prison and the Factory: Origins of the Penitentiary System, trans. Glynis Cousin. London: Macmillan, 1981. Meranze, Michael. Laboratories of Virtue: Punishment, Revolution, and the Transformation of Authority in Philadelphia, 1760–1835. Chapel Hill: University of North Carolina Press, 1996. Midgley, Clare. Women Against Slavery: The British Campaigns, 1780–1870. London: Routledge, 1992. Mintz, Sidney W. Caribbean Transformations [1974]. Baltimore: Johns Hopkins University Press, 1984. . Sweetness and Power: The Place of Sugar in Modern History. New York: Penguin, 1985.  and Douglas Hall. ‘‘The Origins of the Jamaican Internal Market System.’’ In Papers in Caribbean Anthropology, ed. by Sidney W. Mintz, 3–26. New Haven: Yale University Publications in Anthropology nos. 57–64, 1960. Moitt, Bernard. Women and Slavery in the French Antilles, 1635–1848. Bloomington: Indiana University Press, 2001. Montgomery, David. Citizen Worker: The Experience of Workers in the United States with Democracy and the Free Market during the Nineteenth Century. Cambridge: Cambridge University Press, 1993. Moore, Barrington. Social Origins of Dictatorship and Democracy [1966]. London: Peregrine, 1977. Moore, Brian L. Race, Power, and Social Segmentation in Colonial Society: Guyana after Slavery 1838–1891. New York: Gordon and Breach Science Publishers, 1987. Morrissey, Marietta. Slave Women in the New World: Gender Stratification in the Caribbean. Lawrence: University Press of Kansas, 1989. Mullin, Michael. Africa in America: Slave Acculturation and Resistance in the American South and the British Caribbean, 1736–1831. Urbana: University of Illinois Press, 1992. Murray, David J. The West Indies and the Development of Colonial Government 1801–1834. Oxford: Clarendon Press, 1965.

272

Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 289 of 308 Tseng 2004.8.31 07:45

Myers, Martha A. Race, Labor, and Punishment in the New South. Columbus: Ohio State University Press, 1998. Newbould, Ian. Whiggery and Reform, 1830–41: The Politics of Government. London: Macmillan, 1990. Newton, Melanie Jean. ‘‘The Children of Africa in the Colonies: Free People of Colour in Barbados during the Emancipation Era, 1816–1854.’’ D.Phil. diss., University of Oxford, 2001. O’Brien, Patricia. The Promise of Punishment: Prisons in Nineteenth Century France. Princeton: Princeton University Press, 1982. O’Hanlon, Rosalind. ‘‘Recovering the Subject: Subaltern Studies and Histories of Resistance in Colonial South Asia.’’ Modern Asian Studies 22, no. 1 (1988): 189–224. Oldfield, J. R. Popular Politics and British Anti-Slavery: The Mobilisation of Public Opinion against the Slave Trade 1787–1807 [1995]. London: Frank Cass, 1998. Ortner, Sherry. ‘‘Resistance and the Problem of Ethnographic Refusal.’’ Comparative Studies in Society and History 37 (1995): 173–93. Oshinsky, David M. ‘‘Worse Than Slavery’’: Parchman Farm and the Ordeal of Jim Crow Justice. New York: Free Press, 1996. Pago, Gilbert. Les Femmes et la liquidation du système esclavagiste à la Martinique 1848–1852. Guadeloupe: Ibis Rouge, 1998. Palmer, Stanley H. Police and Protest in England and Ireland, 1780–1850. Cambridge: Cambridge University Press, 1988. Pan American Health Organization. ‘‘Statistics on Homicides, Suicides, Accidents, Injuries, and Attitudes towards Violence.’’ Pashukanis, Evgeny B. Law and Marxism: A General Theory: Towards a Critique of the Fundamental Juridical Concepts [1924], trans. Barbara Einhorn. London: Ink Links, 1978. Pateman, Carole. The Sexual Contract. Stanford, Calif.: Stanford University Press, 1988. Paton, Diana. ‘‘Decency, Dependence, and the Lash: Gender and the British Debate over Slave Emancipation, 1830–1834.’’ Slavery and Abolition 17 (1996): 162–84. . ‘‘The Flight from the Fields Reconsidered: Gender Ideologies and Women’s Labor after Slavery in Jamaica.’’ In Reclaiming the Political in Latin American History: Essays from the North, ed. Gilbert M. Joseph, 175–204. Durham, N.C.: Duke University Press, 2001. . ‘‘‘An Injurious Population’: Race and Slavery in the Transportation of West Indian Convicts.’’ Paper presented at the conference Colonial Places, Convict Spaces: Penal Transportation in Global Context, c. 1600–1940, University of Leicester, December 1999. . ‘‘No Bond but the Law: Punishment and Justice in Jamaica’s Age of Emancipation, 1780–1870.’’ Ph.D. diss., Yale University, New Haven, 1999. . ‘‘Punishment, Crime, and the Bodies of Slaves in Eighteenth-Century Jamaica.’’ Journal of Social History 34, no. 4 (2001): 923–54.

bibliography

273

7124 Paton / NO BOND BUT THE LAW / sheet 290 of 308 Tseng 2004.8.31 07:45

Patterson, Orlando. Slavery and Social Death: A Comparative Study. Cambridge, Mass.: Harvard University Press, 1982. . The Sociology of Slavery: An Analysis of the Origins, Development and Structure of Negro Slave Society in Jamaica. London: Macgibbon and Kee, 1967. Pattullo, Polly. Last Resorts: The Cost of Tourism in the Caribbean. Kingston: Ian Randle Publishers, 1996. Perkin, Harold. The Origin of Modern English Society, 1780–1880. London: Routledge and Kegan Paul, 1972. Philips, David. Crime and Authority in Victorian England: The Black Country, 1835–1860. London: Croom Helm, 1977. . ‘‘ ‘A New Engine of Power and Authority’: The Institutionalization of Law-Enforcement in England 1780–1830.’’ In Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. by V. A. C. Gatrell, Bruce Lenman, and Geoffrey Parker, 155–89. London: Europa Publications, 1980. Philips, Ulrich B. American Negro Slavery: A Survey of the Supply, Employment and Control of Negro Labor as Determined by the Plantation Regime [1918]. Baton Rouge: Louisiana State University Press, 1966. Prakash, Gyan. ‘‘Subaltern Studies as Postcolonial Criticism.’’ American Historical Review 99, no. 5 (1994): 1475–90. Price, Richard, ed. Maroon Societies: Rebel Slave Communities in the Americas. Garden City, N.Y.: Anchor Books, 1973. Rafter, Nicole Hahn. Partial Justice: Women, Prisons, and Social Control, 2nd ed. New Brunswick, N.J.: Transaction Publishers, 1990. Rao, Anupama, and Steven Pierce, eds. Discipline and the Other Body. Special issue of Interventions 3, no. 2 (2001). . ‘‘Discipline and the Other Body: Correction, Corporeality, and Colonial Rule.’’ Interventions 3, no. 2 (2001): 159–68. Robertson, Glory. ‘‘Members of the Assembly of Jamaica from the General Election of 1830 to the Final Session January 1866.’’ Unpublished typescript in the University of the West Indies Library, Mona, Jamaica. Robotham, Don. ‘‘The Notorious Riot’’: The Socio-Economic and Political Base of Paul Bogle’s Revolt. Mona, Jamaica: Institute of Social and Economic Research, University of the West Indies, 1981. Rogers, Nicholas. ‘‘Vagrancy, Impressment and the Regulation of Labour in Eighteenth-Century Britain.’’ In Unfree Labour in the Development of the Atlantic World, ed. by Paul E. Lovejoy and Nicholas Rogers, 102–13. Ilford, Essex: Frank Cass, 1994. Roseberry, William. ‘‘Hegemony and the Language of Contention.’’ In Everyday Forms of State Formation: Revolution and the Negotiation of Rule in Modern Mexico, ed. by Gilbert M. Joseph and Daniel Nugent, 355–66. Durham, N.C.: Duke University Press, 1994. Rothman, David J. The Discovery of the Asylum: Social Order and Disorder in the New Republic [1971], rev. ed. Boston: Little, Brown, 1990.

274

Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 291 of 308 Tseng 2004.8.31 07:45

Rusche, Georg, and Otto Kirchheimer. Punishment and Social Structure. New York: Columbia University Press, 1939. Salvatore, Ricardo D. ‘‘Penitentiaries, Visions of Class, and Export Economies: Brazil and Argentina Compared.’’ In The Birth of the Penitentiary in Latin America: Essays on Criminology, Prison Reform, and Social Control, 1830–1940, ed. by Ricardo D. Salvatore and Carlos Aguirre, 194–223. Austin: University of Texas Press, 1996. . ‘‘The Birth of the Penitentiary in Latin America: Toward an Interpretive Social History of Prisons.’’ In The Birth of the Penitentiary in Latin America: Essays on Criminology, Prison Reform, and Social Control, 1830–1940, ed. by Ricardo D. Salvatore and Carlos Aguirre, 1–43. Austin: University of Texas Press, 1996.  and Carlos Aguirre, eds. The Birth of the Penitentiary in Latin America, 1840–1940. Austin: University of Texas Press, 1996. Santiago-Valles, Kelvin A. ‘‘‘Forcing Them to Work and Punishing Whoever Resisted’: Servile Labor and Penal Servitude Under Colonialism in NineteenthCentury Puerto Rico.’’ In The Birth of the Penitentiary in Latin America: Essays on Criminology, Prison Reform, and Social Control, 1830–1940, ed. by Ricardo D. Salvatore and Carlos Aguirre, 123–68. Austin: University of Texas Press, 1996. . ‘‘Subject People’’ and Colonial Discourses: Economic Transformation and Social Disorder in Puerto Rico, 1898–1947. Albany: State University of New York Press, 1994. Sarkar, Sumit. ‘‘The Decline of the Subaltern in Subaltern Studies.’’ In Mapping Subaltern Studies and the Postcolonial, ed. by Vinayak Chaturvedi, 300–323. London: Verso and New Left Review, 2000. Satchell, Veront M. From Plots to Plantations: Land Transactions in Jamaica, 1866–1900. Mona, Jamaica: Institute for Social and Economic Research, University of the West Indies, 1990. Saville, Julie. The Work of Reconstruction: From Slave to Wage Laborer in South Carolina, 1860–1870. Cambridge: Cambridge University Press, 1994. Scarry, Elaine. The Body in Pain: The Making and Unmaking of the World. New York: Oxford University Press, 1985. Schuler, Monica. ‘‘Alas, Alas, Kongo’’: A Social History of Indentured African Immigration into Jamaica, 1841–1865. Baltimore: Johns Hopkins University Press, 1980. Schwalm, Leslie A. ‘‘A Hard Fight for We’’: Women’s Transition from Slavery to Freedom in South Carolina. Urbana: University of Illinois Press, 1997. Schwartz, Stuart. ‘‘Peasants and Slavery: Feeding Brazil in the Late Colonial Period.’’ In Slaves, Peasants, and Rebels: Reconsidering Brazilian Slavery, 65–101. Urbana: University of Illinois Press, 1992. Scott, David. Refashioning Futures: Criticism after Postcoloniality. Princeton: Princeton University Press, 1999.

bibliography

275

7124 Paton / NO BOND BUT THE LAW / sheet 292 of 308 Tseng 2004.8.31 07:45

. ‘‘ ‘Wi a di Govament’: An Interview with Anthony B.’’ Small Axe 2 (1997): 79–101. Scott, James C. Domination and the Arts of Resistance: Hidden Transcripts. New Haven: Yale University Press, 1990. . ‘‘Everyday Forms of Peasant Resistance.’’ Journal of Peasant Studies 13 (1986): 5–35. . Weapons of the Weak: Everyday Forms of Peasant Resistance. New Haven: Yale University Press, 1985. Scott, Julius Sherrard, III. ‘‘The Common Wind: Currents of Afro-American Communication in the Era of the Haitian Revolution.’’ Ph.D. diss., Duke University, Durham, N.C., 1986. Scott, Rebecca. ‘‘The Battle over the Child: Child Apprenticeship and the Freedmen’s Bureau in North Carolina.’’ Prologue 10 (1978): 101–13. . Slave Emancipation in Cuba: The Transition to Free Labor, 1860–1899. Princeton: Princeton University Press, 1985. Scully, Pamela. Liberating the Family? Gender and British Slave Emancipation in the Rural Western Cape, South Africa, 1823–1853. Portsmouth, N.H.: Heinemann, 1997. Sen, Satadru. Disciplining Punishment: Colonialism and Convict Society in the Andaman Islands. Delhi: Oxford University Press, 2000. Sheller, Mimi. Consuming the Caribbean: From Arawaks to Zombies. London: Routledge, 2003. . Democracy after Slavery: Black Publics and Peasant Radicalism in Haiti and Jamaica. London: Macmillan, 2000. . ‘‘Quasheba, Mother, Queen: Black Women’s Public Leadership and Political Protest in Post-emancipation Jamaica, 1834–65.’’ Slavery and Abolition 19 (1998): 90–117. Shelton, Robert S. ‘‘A Modified Crime: The Apprenticeship System in St. Kitts.’’ Slavery and Abolition 16, no. 3 (1995): 331–45. Shepherd, Verene A. Transients to Settlers: The Experience of Indians in Jamaica 1845–1950. Leeds: Peepal Tree Books, 1994. Simon, Daphne. ‘‘Master and Servant.’’ In Democracy and the Labour Movement: Essays in Honour of Dona Torr, ed. by John Saville, 160–200. London: Lawrence and Wishart, 1954. Smith, Faith. ‘‘Preface to Special Issue on Genders and Sexualities.’’ Small Axe 7 (2000): v–vii. Smith, Raymond T. ‘‘Race, Class, and Gender in the Transition to Freedom.’’ In The Meaning of Freedom: Economics, Politics, and Culture after Slavery, ed. by Frank McGlynn and Seymour Drescher, 257–90. Pittsburgh: University of Pittsburgh Press, 1992. Snyder, Francis G. ‘‘Colonialism and Legal Form: The Creation of ‘Customary Law’ in Senegal.’’ Journal of Legal Pluralism and Unofficial Law 9 (1981): 49–90. Sobo, Elisa J. ‘‘Menstrual Taboos, Witchcraft Babies, and Social Relations:

276

Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 293 of 308 Tseng 2004.8.31 07:45

Women’s Health Traditions in Rural Jamaica.’’ In Daughters of Caliban: Caribbean Women in the Twentieth Century, ed. by Consuelo López Springfield, 143–70. Bloomington: Indiana University Press, 1997. Spierenburg, Pieter. ‘‘The Body and the State: Early Modern Europe.’’ In The Oxford History of the Prison: The Practice of Punishment in Western Society, ed. by Norval Morris and David J. Rothman, 44–70. New York: Oxford University Press, 1995. . ‘‘From Amsterdam to Auburn: An Explanation for the Rise of the Prison in Seventeenth-Century Holland and Nineteenth-Century America.’’ Journal of Social History (1987): 439–61. . ‘‘The Sociogenesis of Confinement and Its Development in Early Modern Europe.’’ In The Emergence of Carceral Institutions: Prisons, Galleys and Lunatic Asylums, 1550–1900, ed. by Pieter Spierenburg, 9–77. Rotterdam: Centrum Voor Maatschappij Aeschiedenis, Erasmus University, 1984. . The Spectacle of Suffering: Executions and the Evolution of Repression. Cambridge: Cambridge University Press, 1984. Spivak, Gayatri Chakravorty. ‘‘Can the Subaltern Speak?’’ In Colonial Discourse and Postcolonial Theory, ed. by Patrick Williams and Laura Chrisman, 66–111. New York: Harvester Wheatsheaf, 1993. Stanley, Amy Dru. ‘‘Conjugal Bonds and Wage Labour: Rights of Contract in the Age of Emancipation.’’ Journal of American History 75 (1988): 471–500. Steinfeld, Robert J. Coercion, Contract, and Free Labor in the Nineteenth Century. Cambridge: Cambridge University Press, 2001. . The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870. Chapel Hill: University of North Carolina Press, 1991. Stern, Steve J. Peru’s Indian Peoples and the Challenge of Spanish Conquest: Huamanga to 1640 [1982]. Madison: University of Wisconsin Press, 1993. Stewart, Robert J. Religion and Society in Post-Emancipation Jamaica. Knoxville: University of Tennessee Press, 1992. Stinchcombe, Arthur L. Sugar Island Slavery in the Age of Enlightenment: The Political Economy of the Caribbean World. Princeton: Princeton University Press, 1995. Stoler, Ann L. ‘‘Making Empire Respectable: The Politics of Race and Sexual Morality in 20th-Century Colonial Cultures.’’ American Ethnologist 16, no. 4 (1989): 634–69. . Race and the Education of Desire: Foucault’s History of Sexuality and the Colonial Order of Things. Durham, N.C.: Duke University Press, 1995. Stone, Carl. The Political Opinions of the Jamaican People (1976–1981). Kingston: Blackett, 1982. Thompson, E. P. ‘‘Time, Work-Discipline and Industrial Capitalism.’’ In Customs in Common: Studies in Traditional Popular Culture, 352–403. New York: The New Press, 1993.

bibliography

277

7124 Paton / NO BOND BUT THE LAW / sheet 294 of 308 Tseng 2004.8.31 07:45

Thornton, John. Africa and Africans in the Making of the Atlantic World, 1400– 1680. Cambridge: Cambridge University Press, 1993. Tomich, Dale W. Slavery in the Circuit of Sugar: Martinique and the World Economy, 1830–1848. Baltimore: Johns Hopkins University Press, 1990. Trotman, David Vincent. Crime in Trinidad: Conflict and Control in a Plantation Society, 1838–1900. Knoxville: University of Tennessee Press, 1986. Trouillot, Michel-Rolph. Peasants and Capital: Dominica in the World Economy. Baltimore: Johns Hopkins University Press, 1988. Tucker, Leonard. ‘‘Glorious Liberty’’: The Story of a Hundred Years’ Work of the Jamaica Baptist Mission. London: Baptist Missionary Society, 1914. Turley, David. The Culture of English Antislavery, 1780–1860. London: Routledge, 1991. Turner, Mary. ‘‘The 11 O’clock Flog: Women, Work, and Labour Law in the British Caribbean.’’ Slavery and Abolition 20 (1999): 38–58. . Slaves and Missionaries: The Disintegration of Jamaican Slave Society, 1787–1834. Urbana: University of Illinois Press, 1982. , ed. From Chattel Slaves to Wage Slaves: The Dynamics of Labour Bargaining in the Americas. London: James Currey, 1995. Van Deburg, William L. The Slave Drivers: Black Agricultural Labor Supervisors in the Antebellum South. Westport, Conn.: Greenwood Press, 1979. Viotti da Costa, Emilia. The Brazilian Empire: Myths and Histories. Chicago: University of Chicago Press, 1985. . Crowns of Glory, Tears of Blood: The Demerara Slave Rebellion of 1823. New York: Oxford University Press, 1994. Walker, Charles F. ‘‘Crime in the Time of the Great Fear: Indians and the State in the Peruvian Southern Andes, 1780–1820.’’ In Crime and Punishment in Latin America: Law and Society Since Late Colonial Times, ed. by Ricardo D. Salvatore, Carlos Aguirre, and Gilbert M. Joseph, 35–55. Durham, N.C.: Duke University Press, 2001. Walvin, James. Black Ivory: A History of British Slavery. London: Fontana Press, 1993. Ward, J. R. British West Indian Slavery, 1750–1834: The Process of Amelioration. Oxford: Clarendon Press, 1988. White, Deborah Gray. Ar’n’t I a Woman? Female Slaves in the Plantation South. New York: Norton, 1985. White, Shane. Somewhat More Independent: The End of Slavery in New York City, 1770–1810. Athens: University of Georgia Press, 1991.  and Graham White. ‘‘Slave Hair and African American Culture in the Eighteenth and Nineteenth Centuries.’’ Journal of Southern History 61, no. 1 (1995): 45–76. Wiener, Martin J. Reconstructing the Criminal: Culture, Law, and Policy in England, 1830–1914. Cambridge: Cambridge University Press, 1990. Wilf, Steven. ‘‘Imagining Justice: Aesthetics and Public Executions in Late

278

Bibliography

7124 Paton / NO BOND BUT THE LAW / sheet 295 of 308 Tseng 2004.8.31 07:45

Eighteenth-Century England.’’ Yale Journal of Law and the Humanities 5, no. 1 (1993): 51–78. Wilmot, Swithin. ‘‘ ‘Females of Abandoned Character?’ Women and Protest in Jamaica, 1838–65.’’ In Engendering History: Caribbean Women in Historical Perspective, ed. by Verene Shepherd, Bridget Brereton, and Barbara Bailey, 279–95. New York: St. Martin’s Press, 1995. . ‘‘Not ‘Full Free’: The Ex-Slaves and the Apprenticeship System in Jamaica, 1834–1838.’’ Jamaica Journal 17 (1984): 2–10. . ‘‘Political Developments in Jamaica in the Post Emancipation Period, 1838–1854.’’ D.Phil. diss., Oxford University, 1977. Wood, Betty. ‘‘Prisons, Workhouses, and the Control of Slave Labour in Low Country Georgia 1763–1815.’’ Slavery and Abolition 8 (1987): 247–71. Wood, Marcus. Blind Memory: Visual Representations of Slavery in England and America, 1780–1865. Manchester: Manchester University Press, 2000. World Corporal Punishment Research Archives (http://www.corpun.com/ archive.htm). Yang, Anand A. ‘‘Disciplining ‘Natives’: Prisons and Prisoners in Early Nineteenth Century India.’’ South Asia 10 (1987): 29–45. Zárate Campos, María Soledad. ‘‘Vicious Women, Virtuous Women: The Female Delinquent and the Santiago de Chile Correctional House, 1860–1900.’’ In The Birth of the Penitentiary in Latin America: Essays on Criminology, Prison Reform, and Social Control, 1830–1940, ed. by Ricardo D. Salvatore and Carlos Aguirre, 78–100. Austin: University of Texas Press, 1996. Zedner, Lucia. Women, Crime, and Custody in Victorian England. Oxford: Clarendon Press, 1991. Zipf, Karin L. ‘‘Reconstructing ‘Free Woman’: African-American Women, Apprenticeship, and Custody Rights during Reconstruction.’’ Journal of Women’s History 12, no. 1 (2000): 8–31.

bibliography

279

Tseng 2004.8.31 07:45 7124 Paton / NO BOND BUT THE LAW / sheet 296 of 308

7124 Paton / NO BOND BUT THE LAW / sheet 297 of 308

Index

Tseng 2004.8.31 07:45

Abel, Richard, 75 Abolitionists: on flogging, 5–7, 16; A Narrative of Events (Williams) and, 106, 112–17, 229 n.73; on religious freedom, 33; Sturge, 106, 110, 116, 229 n.70; treadmills criticized by, 88–90, 93, 106–9, 229 n.74; regard whip as symbol of slavery, 20. See also Slavery; Slaves Act for the Better Government of Prisons in the West Indies (1838). See West India Prisons Act Adamson, Christopher, 25–26 Allweather, Leanthe, 78–80 Amnesty International, 196–98 Apprentices: conviction rate of, 76–78; deaths of, 109–10, 230 n.78; imprisonment of, 96–99, 226–27 n.35, 227 n.36, 227 n.39; legal procedures used by, 75–81; masters’ obligations to, 62– 63; policing of, 59–60, 64, 218 n.24; resistance of, 60–61, 70–74, 78–80, 113–14. See also Women apprentices Apprenticeship: abolished, 59, 83–84, 116, 118, 193, 232 n.119; American opinions on, 57, 217 n.16; emancipa-

tion and, 54–57, 216 n.7; labor and, 78–79, 90, 99, 227 n.39; and ‘‘less eligibility’’ principle, 21, 147–48; under master-servant law, 58; planters and, 60–63, 70–81, 194–95; rule of law and, 66–68; state formation and, 54–55; use of treadmills under, 83–84, 88– 90, 105–6; wage labor compared to, 2, 57–58, 153, 193, 216 n.7; West India Prison Act crisis and, 84, 118–20. See also Flogging; Prisons; Stipendiary magistrates; Treadmills; Women apprentices Austin-Broos, Diane, 250 n.3 Ayers, Edward, 49, 207 n.11 Bakan, Abigail, 241 n.2 Baptists, 60–61, 121, 157, 183 Barclay, Alexander, 33 Bathurst, Earl, 6–7 Baynes, Edward, 106 Beccaria, Cesare, 44, 46, 85, 203 n.25 Beckles, Hilary, 100, 228 n.51 Bentham, Jeremy, 8, 44, 46, 144 Bogle, Paul, 175, 178–81, 182 Bourdieu, Pierre, 158

7124 Paton / NO BOND BUT THE LAW / sheet 298 of 308

Braeton Seven, 196 Brathwaite, Edward (Kamau), 21, 28 Bridewells. See Workhouses Britain: coercion of workers in, 58; Jamaica as colony of, 15; Jamaican House of Assembly and, 118; justice identified with, 156–57; labor in, 91; magistrates in, 64, 66; Morant Bay rebellion, seen in, 152; penal reform in, 46, 150–51; prisons in, 19, 21, 24, 97, 150, 207 n.20, 227 n.37; Ticket of Leave system in, 145; treadmills used in, 111– 12, 139; West India Prison Act crisis and, 84, 118–20. See also Stipendiary magistrates British Abolition Act (1833), 7, 52, 59 British Emancipator, 114 British New Poor Law (1834), 21 British Reform Act (1867), 152, 241 n.140 Bryan, Patrick, 241 n.149 Burge, William, 47 Burn, W. L., 56, 229 n.74, 243 n.18 Bush, Barbara, 206 n.4 Buxton, Thomas, 93

Tseng 2004.8.31 07:45

Candler, John, 165–66 Capitalism, 25, 58, 208 n.31 Carlile, Warrand, 180–82, 247 n.88 Carnaby, William, 73, 75, 222 n.91, 223 n.93, 226 n.35, 227 n.39 Castello, John, 141, 193 Chakrabarty, Dipesh, 204 n.34 Chamberlaine, Richard, 133–34, 172 Civilization: emancipated slaves in, 193; idea of shame in, 149; morality and, 151–52; non-elite Jamaicans and, 151– 52; rehabilitation in, 133; sexuality and, 142; treatment of women as measure of, 7, 202 n.19 Clarendon workhouse (house of correction), 24, 36, 41 Colonialism: customary law and, 161, 242 n.14; intervention of, in national

282

Index

judicial systems, 198; prison reform and, 7, 203 n.22; racial hierarchies in, 15–16 Colonial Office: on apprenticeship, 55, 66–67; archives of, 73, 99; flogging and, 110; Jamaican legislation and, 66–67; Order in Council (1824) and, 6–7, 202 n.16, 206 n.5; prison reform and, 47, 115–17; stipendiary magistrates and, 65; West India Prisons Act and, 117–18 Colonial Standard, 144, 147, 168 Colored middle class in Jamaica: on flogging, 141; planters and, 141; on punishment, 90–91; on rehabilitation, 133–34; social status of, 193, 250 n.3 Commission of Inquiry into Civil and Criminal Justice in the West Indies, 33, 47–48 Consolidated Slave Act (1788), 211 n.61 Cooper, Frederick, 152–53 Cornwall Chronicle, 8 Cornwall county gaol, 22 Corporal punishment. See Flogging; Punishments; Treadmills Corrigan, Philip, 17, 66 Councils of protection, 38 Courts of law: assizes, 37–38, 63, 124, 219 n.39, 238 n.92; behavior in, 170– 71; cost of hearings in, 165; defendants in, 170–72, 175, 184–85, 188; elites in, 163–64; hegemony of, 189; imprisonment of slaves by, 34–35; irregularity of hearings, 165–66; judges’ remarks in, 157–58; laborers’ use of, 163–65; lay counselors in law in, 174–75, 180– 82, 246 n.65, 246 n.67; non-elites use of, 162–66; petty sessions of, 63, 162, 165–66; popular judgments outside, 176–78; quarter sessions of, 37, 63, 156, 163–64, 280; reactions to verdicts in, 170–71; slave courts, 34; social class in, 163–64, 243 n.22; support for

7124 Paton / NO BOND BUT THE LAW / sheet 299 of 308

defendants in, 170–72; theft cases in, 163–64. See also Independent courts; Myalism; Obeah; Popular justice Crais, Clifton, 181 Craven, Paul, 58 Crawford, William, 126, 135–36, 235 n.27, 237 n.59 Creoles, 28, 179, 189–90, 193, 220 n.53 Crime: elite view of poor and, 152–54; Jamaican population and, 151; larceny, 139–43, 152, 163–67; murder, 176; rape, 101–3, 180; sodomy, 131, 140; vagrancy, 37, 160 Customary law. See Myalism; Obeah; Popular justice

Tseng 2004.8.31 07:45

Dalby, Jonathan, 124, 234 n.13, 238 n.92, 239 n.93 Daughtrey, John: apprenticeship system and, 127–28; on convict leasing, 146; gender segregation and, 126–27, 130– 31; penal theory of, 8, 127–32, 154; on prison discipline, 8, 139; accepts racial stereotypes, 132–33; views on religious instruction, 131–32; on separate system, 128, 134–35, 237 n.59; on silence as discipline, 130, 132, 135 Davidson, Robert, 60 Davis, David Brion, 5, 20 De La Beche, Henry, 50 Demerara rebellion (1823), 7, 30 de Tocqueville, Alexis, 235 n.27 Dillon, T., 162 Discipline: as bodily violence, 20, 55, 88, 106–8, 110, 204 n.32; capitalism and, 208 n.31; Foucault on, 25–26; hard labor, 130; as power, 10–11, 25, 204 n.32, 204 n.36; private, 3, 20, 32–34, 49–50, 69, 206 n.3, 210 n.59, 211 n.61; seclusion, 132; separate system, 128, 134–35, 237 n.59; silence as, 130–35; in workhouses, 31 Dunne, Patrick, 79–80

Elites: British penal theory and, 85; on community counsel for defendants, 172; convict leasing used by, 145–46; on non-elite attendance in courtrooms, 169–70; on obeah, 187–88; on popular alienation from the law, 188; punishments discussed by, 85; on subaltern rebellion, 158–59; use of courts by, 163; view poor as inherently criminal, 152–54; West India Prison Act crisis and, 84, 118–20. See also Jamaicans, non-elite Emancipation. See Apprentices; Apprenticeship; Penitentiary, General; Prisons; Slavery; Slaves Emancipation Act. See British Abolition Act The Enlightenment, 5, 12, 46, 85, 224 n.5 Espuet, Peter, 173–74, 246 n.65 Eudell, Demetrius, 4 Evans, Robin, 44, 129 Eyre, Edward John, 151–52 Falmouth Post, 9, 141–43, 147–49; 156–57, 162, 166, 168–69, 172–73 Falmouth riot (1859), 160 Flogging: abolition of, 6–7, 70, 86, 88, 124; district courts and, 143; gender difference and, 6–7, 16, 87–88, 106, 142–43; inefficiency of 86; larceny and, 139–43; legislation on, 6–7, 110, 140– 43, 150, 202 n.16, 206 n.5, 211 n.61, 239 n.93; racism and, 141–42; reports on, 45, 116–17; for sexual crime, 140– 43, 238 n.92; standardization of, 144; stipendiary magistrates on, 7, 87, 110–11; to teach subordination, 35; treadmills and, 83–84, 88–90, 93, 106, 111–15, 119; in workhouses, 33, 43. See also Treadmills; Women, flogging of Foucault, Michel: on carceral society, 154; on discipline, 25–26, 208 n.31; on the impact of prisons, 43; on

index

283

7124 Paton / NO BOND BUT THE LAW / sheet 300 of 308

Foucault, Michel (continued ) modern legal procedure, 75; on modern power, 10, 139, 204 n.32; on penitentiary punishment and state regulation, 153 Freed people, 1, 14, 82, 133–34, 162, 169, 194–95 Free people of color, 14, 29, 37 Gangs, 195–97, 199 Gaol Act of 1834, 91–94, 110, 115, 225 n.24 Gaols: construction of, 19, 22–23, 93–98; imprisonment in, 37–38; parish gaols, 23–25, 138, 207 n.20, 208 n.22 Garland, David, 206 n.3 Garvey, Marcus, 191, 246 n.67 Geggus, David, 30 Gender: elite expectations of, 169–70; flogging and, 6–7, 16, 86–88, 106, 142–43, 225 n.16; prison segregation by, 126–27, 130–31, 138; in West India Prison Act crisis, 84, 119; work assignments by, 47–48, 131–32. See also Men; Sexual offenses; Sexual violence; Women; Women, flogging of; Women apprentices; Women prisoners Glenelg, Lord (Colonial Secretary), 86–87, 90, 115–17 Goffman, Erving, 42 Gordon, George William, 173, 250 n.3 Goveia, Elsa, 20 Gramsci, Antonio, 189 Grant, William, 173–74 Guha, Ranajit, 158–59, 242 n.5

Tseng 2004.8.31 07:45

Haiti, antislavery rebellion in, 29 Half-inch lawyers, 172–74 Hall, Catherine, 152 Hall, Douglas, 14 Hanover: parish, 73; workhouse (house of correction), 24, 34, 36, 109 Hartman, Saidiya, 6, 17, 204 n.36 Harvey, Thomas, 110 Hay, Douglas, 58, 166

284 Index

Heuman, Gad, 175 Higman, Barry, 226 n.35 Hill, Richard, 65, 71 Holt, Thomas, 57, 84, 250 n.3 House of Commons Select Committee on Negro Apprenticeship, 116 Houses of correction. See Workhouses Howard, John, 85, 126 Howell, Leonard, 191 Hulme, John Rhodes, 73 Human Rights Watch, 197–98 Imprisonment: of convicts, 35–36; as enslavement, 8, 203 n.25; flogging and, 34–35; of free people, 37–38; frequency of, 31–33, 39–40, 210 n.53; gender segregation of, 126–27, 130–31, 138; as humanitarian punishment, 192; length of, 33–37, 98–99, 211 n.61, 227 n.39, 234 n.14; life sentences of, 19, 34–35, 37, 39, 51, 234 n.14; loss of labor by, 34; private authorization of, 34, 210 n.59, 211 n.61; for public order offenses, 37; religious instruction in, 44, 48, 131–32; of runaway slaves, 19, 32–39; shamefulness of, 149; of slaveowner, 38; stipendiary magistrates sentences to, 96–97, 226 n.35, 227 n.36; for vagrancy, 37, 160; of women, 16, 38, 47–48, 55–56, 62, 192. See also Flogging; Penitentiary, General; Prisons; Treadmills; Workhouses Independent courts, 178–81 India, 159, 161, 224 n.3, 242 n.5 International Monetary Fund (imf), 197 Ireland, 64–65 Isolation (separate system), 128, 134–35, 237 n.59 Jamaica: British authority in, 4, 13–14, 84, 118–19; colored middle class in, 90–91, 133–34, 141, 193, 250 n.3; creole society in, 28, 189–90, 193, 220 n.53;

7124 Paton / NO BOND BUT THE LAW / sheet 301 of 308

criminal population of, 151; House of Assembly, 13, 23, 118, 143, 232 n.119, 242 n.4; post-emancipation market system in, 14–15; prison construction in, 19, 24–25, 93–98; state formation in, 3, 23, 28–29, 54–55; sugar production in, 14, 23, 138–39; United States and, 128, 199; West India Prison Act crisis and, 84, 118–20; workhouse construction in, 22–24. See also Apprentices; Apprenticeship; Britain; Morant Bay rebellion; Penitentiary, General; Prisons; Slavery; Slaves Jamaica Despatch, 111–12, 130, 166–67 Jamaican Abolition Act, 59–62, 92, 95, 110, 227 n.39 Jamaicans, non-elite: court cases of, 163–66; in courtroom audiences, 157, 168–72, 175, 188–89; as lay counselors in law, 172–75, 180–82, 246 n.65, 246 n.67; litigation of, 160–62, 243 n.18; Native Baptism and, 178, 189–90; otherness of, 152–54; rehabilitative imprisonment and, 152–54; respectability of, 150–52; searches for suspects and stolen property by, 166– 68. See also Myalism; Obeah; Race and racism; Slavery; Slaves Jamaican Slave Rebellion (1831), 30– 31, 61 Jamaica Police Act, 92 Jones, Henry, 176–77 Jordon, Edward, 90–91, 118, 133, 193 Judicial Committee of the British Privy Council, 198

Tseng 2004.8.31 07:45

Kingston: assizes court in, 63; Common Council of, 29, 44–45, 117; gaol in, 19, 22; workhouse in, 23, 27, 31–32, 40– 45, 80, 88, 110–13, 116–117; workhouse population, 36 Kingston District prison, 166 Kirchheimer, Otto, 25 Knibb, William, 121, 157

Labor: of apprentices, 78–79, 90, 99, 227 n.39; convict leasing as source of, 9, 145–46; gang systems of, 40–45, 70, 106–108, 135–36, 213 n.85; Penal Servitude Act (1854) and, 145; for public works projects, 135–36, 213 n.85; for wages, 2, 57–58, 153, 193, 216 n.7 Laborers: chaining of, 43–44, 87, 107, 136; coercion of, 58, 90, 121; drivers of, 40–41, 45, 101–3, 106–7; in prisons, 40–41, 44–45, 101–3, 106–8, 136–37, 145–46, 194; sexual exploitation of, 101–2; women, 106–8 Lake, Charles, 162 Larceny, 139–143, 152, 163–67 Lashing. See Flogging Lawrence, Amelia, 105–6 Lazarus-Black, Mindie, 81, 183–84 Learny, Thomas, 78–80 ‘‘Less eligibility’’ principle, 21, 105, 147–50 Lewis, Matthew, 50 Lichtenstein, Alex, 25 Long, Edward, 23, 27, 248 n.98 Madden, Richard, 70, 172 Mallon, Florencia, 174 Manchester workhouse (house of correction), 24–36 Manchioneal, 24, 100, 179 Manley, Michael, 197 March, William Foster, 173–74, 246 nn.65–66 Maroons, 27–28, 42, 62 Martinique, 124–25 McKay, Claude, 180–82, 247 n.89 Meeks, Brian, 196 Melossi, Dario, 25–26 Men: British New Poor Law (1834) and, 21; flogging of, 87–88, 106, 140–41, 238 n.92; and gender segregation in prisons, 126–27, 130–31, 138; as household heads, 55, 241 n.140; masculinity and, 55, 61, 216 n.7; obeah used by,

index

285

7124 Paton / NO BOND BUT THE LAW / sheet 302 of 308

Men (continued ) 184–85, 249 n.104; sexual deviance of, 140–43, 238 n.92 Meranze, Michael, 204 n.32 Metcalfe, Charles: on flogging, 236 n.51; planters’ reconciliation by, 118–19; prison reforms of, 125–27 Middlesex Gaol (Spanish Town), 22– 23, 26 Miller, William, 179 Mintz, Sidney, 14 Missionaries, 1, 121, 132–33, 157, 180–83 Mitchel, Hector, 92, 116, 131 Mocho John, 167, 245 n.36 Montego Bay, 23–24, 33, 36, 46; assizes court in, 63 Morant Bay, 23, 36, 43, 93, 113 Morant Bay rebellion (1865): abolition of representative government after, 152, 158, 191, 242 n.4; flogging as punishment for, 139, 143; investigation of, 159, 178; Jamaican masses and court decisions on, 158; judicial system and, 175; prison populations prior to, 124; as protest against unfairness of legal system, 159; violent repression of, 154–55 Moresby, Henry, 116–17, 126 Morning Journal, 128, 133–34, 169, 184, 202 n.19 Murray, Mary Ann, 163 Myalism: as alternative judicial process, 161, 182; categorization of, 183–84; obeah compared to, 188, 248 n.98, 248 n.103; suppression of, 186–87, 190, 249 n.112

Tseng 2004.8.31 07:45

A Narrative of Events (Williams), 101, 106, 112–13, 116–17, 229 n.73 Native Baptism, 178, 189–90 Negro-house lawyers. See Half-inch lawyers Newspapers: on court session attendance, 168–71; on flogging, 111–12,

286

Index

144; on mistreatment of prisoners, 114; on obeah’s influence, 184; on penitentiary construction, 128, 130; on prison labor, 8; on rehabilitation of free people, 133–34; on women, 111–12, 202 n.19. See also individual newspapers by title Norcott, William, 71 Obeah: as alternative judicial process, 140, 161, 182, 184–88; categorization of, 183–84; elites on, 187–88; as healing, 184–85, 195, 248 n.103; men and, 184–85, 249 n.104; myalism compared to, 188, 248 n.98, 248 n.103; non-elites and, 161; suppression of, 190, 239 n.93, 249 n.112; women and, 183–85, 249 n.104 Order in Council (1824), 6–7, 202 n.16, 206 n.5 Ortner, Sherry, 159 Osborn, Robert, 90–91, 118, 133, 193 Palmer, Archibald, 79–80 Parishes: financial support of workhouses by, 31; gaols in, 23–25, 138, 207 n.20, 208 n.22; workhouse construction in, 23–25, 207 n.20, 208 n.22 Pashukanis, Evgeny, 26 Patriarchal family, 193 Patterson, Orlando, 210 n.59, 236 n.54 Patterson, P. J., 195–96 Pavarini, Massimo, 25–26 Penal Reform: Act for the Better Government of Prisons in the West Indies (1838), 117–18, 121; architecture and, 122, 128–29; in Britain, 46, 150– 51; colonial government on, 7, 47, 203 n.22; decrease in number of prisons and, 127; employment under, 135; in the Enlightenment, 46, 85, 224 n.5; flogging and, 35, 86; inspections under, 124–25, 136; isolation (separate system) and, 128, 134–35, 237 n.59;

7124 Paton / NO BOND BUT THE LAW / sheet 303 of 308 Tseng 2004.8.31 07:45

religious instruction and, 44, 48, 131– 32; rules and, 125–26; utilitarianism of, 86–87. See also Flogging; Penitentiary, General; Race and racism; Rehabilitation; Treadmills Penal Servitude Act (1854), 145–46 Penitentiary, General: architecture of, 128–29; cells in, 128–29, 135, 235 n.36; escapes from, 137; failure of rehabilitation in, 147–50; food rationing in, 132; gender in, 126–27, 133; health care in, 129, 235 n.36; population of, 124–25, 137, 235 n.36; prisoner classification in, 137–38; religious instruction in, 131– 32; seclusion of, 128, 132–35; sentence length in, 234 n.14; silence in, 130, 132, 135; surveillance in, 128; work in, 128–29, 132, 135 Pentonville Penitentiary, 134 People’s National Party, 197 Philadelphia Penitentiary, 128, 134 Phipps, Donald (Zeeks), 196 Plantations, 2, 9, 34, 49–50, 143, 239 n.106 Planters: and apprenticeship system, 62–63; apprentices’ relations with, 60–63, 70–81, 194–95; authority of, 8–10, 20–22, 28, 161; convict leasing used by, 145–47; discipline by, 20, 32– 34, 69, 206 n.3, 210 n.59, 211 n.61; on flogging, 69, 87; punishment of, 62– 63, 76–77; reaction of, to treadmills, 229 n.74; social class of, 65; stipendiary magistrates and, 64–66, 69, 75–77, 222 n.91, 223 nn.92–93, 232 n.119; and prosecutions for theft, 163–64; wage labor and, 57–58. See also Morant Bay rebellion Police Act (June 1834), 59 Popular justice: half-inch lawyers and, 172–74; in independent courts, 178– 79; lay counselors in law and, 174–75, 180–82, 246 n.65, 246 n.67; punishment and, 176; reactions to verdicts

and, 176–77; sexual assault cases and, 180–81. See also Myalism; Obeah Portland parish, 24, 36–37 Port Royal: parish, 24, 27, 36, 79, 99; workhouse (house of correction), 24, 36–37, 40, 45 Pringle, John: investigation of treadmills by, 106, 109, 113; prison investigations of, 99, 116–17, 198; on separate system of penal reform, 135 Prisons: abolition of slavery and, 123; during apprentice era, 96–97; assignments to, 105; in Britain, 21–24, 93, 207 n.20; character reform in, 21; prisoner classification in, 93, 95, 137– 38; colored middle class in Jamaica on, 90–91; construction of, 19, 93– 98, 128–29, 135, 235 n.36; deaths in, 109–10, 230 n.78; escapes from, 21, 40–42, 137, 166–67, 214 n.98; flogging of women in, 70, 84–85, 106–8, 206 n.5, 224 n.3; food in, 104, 197; gender segregation in, 126–27, 130–31, 138; hair cropping in, 104–7, 228 n.63, 229 n.65; health care in, 113, 129, 235 n.36; homophobia in, 199; investigations of, 45, 116–17, 197; ‘‘less eligibility’’ principle and, 21, 105, 147–49; living conditions in, 104–5, 194; management of, 45–46, 92–94; Marxism on, 25–26; outside communication with, 46, 99–100, 125–28, 136; on plantations, 34, 49–50; populations of, 124–25, 137, 197–98; power and, 10, 25–26; prisoners’ resistance in, 113–15; public funding of, 21; rules and regulations for, 45, 92, 94, 125–26; runaway slaves in, 10–11, 21, 30; sexual exploitation of female slaves in, 101; slaveholder power and, 30; social networks in, 42–44; solitary confinement in, 44, 50, 130, 132, 135; as ‘‘total institutions’’ (Goffman), 42–43; treadmills in, 83–84, 88–90, 93, 105–6, 138; in

index

287

7124 Paton / NO BOND BUT THE LAW / sheet 304 of 308 Tseng 2004.8.31 07:45

Prisons (continued ) U.S. South, 26, 207 n.11; violence in, 197–98. See also Gaols; Penitentiary, General; Treadmills; Workhouses Protectors of slaves, 64, 75 Punishments: chaining as, 43–44, 87, 107, 136; death penalty, 124, 197– 98; efficiency of, 86–88; fines as, 124; hanging, 30; hard labor, 30, 90, 130; silence as, 44, 50, 130, 132, 135; transportation, 30, 37, 124. See also Flogging; Imprisonment Race and racism: Afro-Jamaicans, 133, 141–42; Britishness and, 122; construction of, 15–16; in courtroom proceedings, 156–59; criminality and, 122; emancipation and, 57; in flogging, 141–42; immigration policies and, 199; injustice against blacks and, 157; otherness and, 152–54; poverty and, 63; punishment and, 15– 16; stereotypes of, 132–33, 162, 236 n.54, 243 n.18; and views of black inferiority, 122, 147–48; whiteness and, 122; women and, 84, 224 n.3; in workhouses, 27–28. See also Social class Ramsey, William, 72 Rehabilitation: as sign of civilization, 133; failure of, 147–50; of free people, 133–34; isolation (separate system) and, 128, 134–35, 237 n.59; physical hardship and, 150; prison labor as, 136–37, 194; religious instruction and, 44, 48, 131–32; self-sufficiency and, 133–34; social class in, 153; subordination as goal of, 21, 92, 123, 127–28, 132 Religion: Baptists, 60–61, 121, 157, 183; black churches and, 161; instruction in prisons and, 44, 48, 131–32; missionaries of, 1, 121, 132–33, 157, 180,

288

Index

183; Native Baptism, 178, 189–90; persecution of slaves and, 33. See also Myalism; Obeah Rodney Hall (St. Thomas in the Vale), 33, 105 Roseberry, William, 189 Roughley, Thomas, 49 Runaway slaves: advertisements for, 11, 32–33, 38, 210 n.53, 210 n.59; capture of, 27, 32, 209 n.35; drivers as, 40–41; imprisonment of, 21, 30, 37; as incorrigible, 19, 34–35, 37, 39, 40; maroons, 27–28, 42, 62; owners’ compensation for, 36–37; repayment for, 27, 209 n.35; resistance of, 26–27, 40–42, 214 n.98; transportation of, 37; women as, 38; in workhouses, 27, 32, 36, 209 n.35, 210 n.59 Rusche, Georg, 25 Russell, Robert, 145–46 Russell, Whitworth, 126, 136 Saint-Domingue, 100. See also Haiti, antislavery rebellion in Santiago-Valles, Kelvin, 152 Savanna La Mar, 22, 24, 150–53 Sayer, Derek, 17, 66 Schuler, Monica, 179, 186 Scott, David, 12, 122 Sen, Satadru, 123 Separate system, 128, 134–35, 237 n.59 Sexual offenses: courtroom cases of, 180–81, 239 n.95; flogging for, 140–43, 238 n.92; sodomy, 131, 140 Sexual violence: apprentices on, 100, 102; rape, 101–3, 180; during slavery, 100; against women, 44, 100–107, 228 n.51 Shaw, H. B., 138, 142, 144, 149 Sheller, Mimi, 174–75, 246 n.66 Slave codes, 48–49 Slave courts, 34 Slaveowners: authority of, 7, 30, 49–50, 192; compensation of, for runaway

7124 Paton / NO BOND BUT THE LAW / sheet 305 of 308 Tseng 2004.8.31 07:45

slaves, 36–37; importance of workhouses to, 31, 210 n.53; payment of, for slaves’ imprisonment or punishment, 33; power of, 22; reaction of to slave rebellion, 30; relations of, with slaves, 33; as ruling class, 29–30; slaves committed to workhouses by, 33; women as, 29; workhouse gang labor used by, 40, 213 n.85 Slavery: historiography of, 20–21, 206 n.4, 207 n.11; and idea of free labor, 56–57; imprisonment compared to, 8, 26; Jamaican market system and, 14– 15; ‘‘less eligibility’’ principle and, 21, 147–49; and state discipline, 29; whip as symbol of, 10, 20. See also Slaves Slaves: African identity of, 14; branding of, 11; complaints against masters by, 38; conflict resolution and, 179– 80; manumission of, 48–49; policing of, 60–61; property rights of, 194; rebellion of, 30; reenslavement of, 8; religious persecution of, 33; resistance of, 34; sexual exploitation of, 100, 228 n.51; stereotypes of, 236 n.54. See also Apprenticeship; Runaway slaves; Slavery Sligo, Marquis of: abolition of flogging and, 86–87, 110, 115; on apprenticeship, 55, 61, 72–73, 116, 216 n.7; Gaol Act of 1834 and, 92, 225 n.24; on rule of law, 67–68; as slaveholder, 67; on treadmills, 88, 112–13 Smith, Lionel, 116–18, 123 Social class: in Britain, 150–53; colored middle class in Jamaica, 90–91, 133– 34, 141, 193, 250 n.3; in court records, 163–64; of courtroom audiences, 157, 168–72, 175, 188; creoles, 28, 189–90, 193, 220 n.53; femininity and, 170; free people, 1, 14, 37, 133–34, 162; of halfinch lawyers, 172–74; idleness and, 138, 146, 148, 152–53, 169, 243 n.18;

labor and, 56–57, 151–52, 193; of lay counselors in law, 174–75, 246 n.65; peasantry, 149, 151–52, 162, 172, 216 n.7; prisons and, 8–9, 30, 150–54; respectability and, 150–52, 241 n.140; of slave holders, 29–30; of stipendiary magistrates, 64–65; whiteness and, 65, 220 n.53. See also Colored middle class in Jamaica; Jamaicans, non-elite; Race and racism Society for the Improvement of Prison Discipline (sipd), 45, 88–90, 92–93 Solitary confinement, 44, 50, 130, 132, 135 Spanish Town: apprentices in, 71; assizes court in, 63; Baptist church in, 61; gaol in, 19, 22; Middlesex Gaol, 19, 22–23, 26, 43; recaptured convicts in, 166–68; workhouse, 11, 32–33, 35, 43 Spierenburg, Pieter, 206 n.3 Spivak, Gayatri, 224 n.3 St. Andrew courthouse, Half Way Tree, 162–64, 173 St. Andrew workhouse (house of correction), 24, 36, 40, 45, 96, 101, 111 St. Ann: parish, 23–24, 36, 61, workhouse (house of correction), 24, 36, 40–41, 97, 99–103 St. Catherine parish, 23–24, 35–36, 136. See also Spanish Town St. David: parish, 23–24; workhouse (house of correction), 25, 95, 98 St. Dorothy parish, 23–24, 67, 93 St. Elizabeth workhouse (house of correction), 24, 36, 95, 109 St. George: parish, 24, 36, 73, 78, 151– 52; workhouse (house of correction), 99–100 St. James: parish, 23–24, 33, 36, 46, 186– 87; workhouse (house of correction; Montego Bay), 33, 35, 46 St. John parish, 23–24, 93 St. Mary workhouse (house of correction), 24, 35–36, 43

index

289

7124 Paton / NO BOND BUT THE LAW / sheet 306 of 308

St. Thomas in the East: parish, 23, 36, 43, 113, 174, 178–79; workhouse (house of correction; Manchioneal), 100; workhouse (house of correction; Morant Bay), 23, 43, 94 St. Thomas in the Vale: parish, 24, 33, 36, 43, 105; workhouse (house of correction; Rodney Hall), 33, 35, 43, 105 Stanley, Edward, 53, 56–57 Stephens, James, 67 Stipendiary magistrates: apprentices’ applications to, 76, 79–81, 194–95; attitudes of towards apprentices, 70– 71; on flogging, 7, 87, 110–11; on freed people’s use of courts, 162; hearing records of, 73–75, 222 n.91, 223 nn.92– 93; imperial commitment to rule of law and, 67–68; Marquis of Sligo and, 68; as mediators, 74–77; offenses punished by, 72–74, 113–16; planters and, 64–66, 69, 75–80, 222 n.91, 223 nn.92– 93, 232 n.119; policing of apprentices, 59–60; prison sentences mandated by, 96–99, 226 n.35, 227 n.36, 227 n.39; sexual exploitation reported to, 100; social class of, 64–65. See also individual magistrates by name (e.g., Daughtrey, John) Stoler, Ann, 153 Sturge, Joseph, 106, 110, 116, 229 n.70 Sugar Duties Act, 138 Sugar production in Jamaica, 14, 23, 138–39 Suriname, 100 Surrey county gaol, 22 Swing rebellion (1830), 66

Tseng 2004.8.31 07:45

Taylor, Henry, 60–61 Thomas, Lewis, 175 Thompson, Edwin, 156–58, 188, 197 Tourism, 197 Town Party, 138, 141 Transportation, 30, 37, 124

290 Index

Treadmills: abolitionists’ views on, 93, 109; in Berbice, 88; in British prisons, 89, 93, 111–12; criticism of, 106; field work compared to, 105; flogging and, 83–84, 88–90, 93, 106, 111, 113–15, 119; as hard labor, 90; illustrations of, 106–8, 229 n.74; in Kingston workhouse, 44–45, 88; ‘‘less eligibility’’ principle and, 105; as public entertainment, 100; removal of, 138; resistance to, 83, 111–14; as torture devices, 106, 116, 229 n.70, 229 n.74; in Trinidad, 88; women on, 83, 105–8, 112–16, 119 Trelawny: parish, 23–24, 36, 42, 47–48, 186–87; workhouse, 42, 46 Trouillot, Michel-Rolph, 3 Tucker, Leonard, 183 Turner, Mary, 30 United States: convict leasing in, 9, 145; criticism of apprenticeship in, 57, 217 n.16; imprisonment of slaves in, 21; incarceration rates in, 227 n.36; prison construction in, 128–29, 203 n.23 Vere, 24, 93 Viotti da Costa, Emilia, 81 Wage labor, 2, 57–58, 153, 193, 216 n.7. See also Labor Walvin, James, 206 n.4 The Watchman, 86–87 West India Prisons Act, 84, 117–21 Westmoreland workhouse (house of correction; Savanna La Mar), 24, 36, 46 Whipping. See Flogging Whipping Act (1850), 140–41, 239 n.93 Whipping Bill (1865), 140, 143, 150, 239 n.93 White, Deborah Gray, 236 n.54 White, Frederick, 73–75, 222 n.91, 223 nn.92–93, 226 n.35, 227 n.39

7124 Paton / NO BOND BUT THE LAW / sheet 307 of 308 Tseng 2004.8.31 07:45

Whitely, Henry, 43 Williams, Henry, 33 Williams, James, 101, 106, 112–13, 116–17, 229 n.73 Williams, Janet, 110–11, 115 Wilmot, Swithin, 139 Women: challenges to authority by, 70, 79, 84, 113–15; court attendance by, 169–70; domestic skills training for, 47–48; exclusion from power of, 61; imprisonment of, 16, 38, 47–48, 55– 56, 192; in labor gangs, 106–8; obeah used by, 183–85, 249 n.104; plantation labor and, 2, 143, 239 n.106; position of as measure of civilization, 7, 202 n.19; racism and, 84, 224 n.3; as slave holders, 29; in workhouses, 38 Women, flogging of: abolition of, 6–7, 16, 84–87, 110, 142–43; as bodily violence, 20, 55, 88, 106–8, 110; flogging of men compared to, 16, 62, 114; newspapers on, 111–12; in prisons, 70, 84–85, 106–8, 206 n.5, 224 n.3; stipendiary magistrates on, 7, 110–11; treadmills and, 106, 108, 113–15, 119; in workhouses, 110–11 Women apprentices: flogging of, 70, 84–87, 106–8, 110, 115; resistance to

apprenticeship by, 84; sexual exploitation of, 101–3, 106–7 Women prisoners: children of, 48, 79– 80, 106, 108; gender segregation in prisons, 126–27, 130–31, 138; hair cropping of, 104–7, 228 n.63, 229 n.65; religious instruction for, 131; resistance of, 113–15; sexual exploitation of, 38, 44, 100–104; treadmills and, 83, 105–6, 108, 112–16, 119; work assignments for, 47–48, 131–32; in workhouses, 38 Wood, Betty, 207 n.11 Workhouses: architecture of, 19, 25, 93– 98; authority in, 40–41; expenses for, 34, 211 n.61; flogging in, 33, 43, 110– 11, 211 n.61; free people in, 37; gang systems in, 40–41, 45, 213 n.85; imprisonment in, 32–37, 211 n.61; legal history of, 207–8, n.20; in parishes, 23–25; population statistics on, 32, 210 n.53; racial hierarchy in, 27–28; reformation of, 138; runaway slaves in, 27, 32–33, 36, 209 n.35, 210 n.53, 210 n.59; treadmills in, 44–45; women in, 38, 113–14 World Trade Organization, 199

index

291

7124 Paton / NO BOND BUT THE LAW / sheet 308 of 308

Diana Paton is a lecturer in the Department of History at the University of Newcastle. She is the editor of A Narrative of Events, since the First of August, 1834, by James Williams, an Apprenticed Labourer in Jamaica (Duke, 2001). Library of Congress Cataloging-in-Publication Data Paton, Diana No bond but the law : punishment, race, and gender in Jamaican state formation, 1780–1870 / Diana Paton. p. cm. — (Next wave) Includes bibliographical references and index. isbn 0-8223-3401-1 (cloth : alk. paper) isbn 0-8223-3398-8 (pbk. : alk. paper) 1. Criminal justice, Administration of—Jamaica—History. 2. Punishment—Jamaica—History.

Tseng 2004.8.31 07:45

hv9323.a5p38 2004

I. Title.

364.97292'09'034—dc22

II. Series. 2004007251