Submission for the Jay I. Kislak Student Prize in History or Anthropology
Title of Paper: "The Penalties of Freedom:Punishment and the 'Rule of Law' in Post-Emancipation Jamaica."
Address:16 Strand Building
29 Urswick Road
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Institutional affiliation:Yale University (PhD student)
Sponsoring professor: Professor Gilbert Joseph
The Penalties of Freedom:Punishment and the "Rule of Law" in Post-Emancipation Jamaica.
The readiness with which a [released convict], not notoriously and habitually vicious, obtains his usual employment and admission again to something like his former status among his fellows, is probably one cause of the smaller number of reconvictions in this country.
– John Daughtrey, General Inspector of Prisons, Jamaica, 1845.
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.
– H. B. Shaw, General Inspector of Prisons, Jamaica, 1865.
Both John Daughtrey and H. B. Shaw, who between them filled the position of General Inspector of Prisons for Jamaica for thirty years after slavery ended, believed that Jamaicans differed from the populations of "other countries" (by which they primarily meant Britain) in their failure to stigmatize former prisoners.Yet they drew diametrically opposed conclusions from their parallel observations.Although Daughtrey referred to this behaviour as "a sad proof of the prevalence of a low and depraved moral standard," he integrated his view into a broadly optimistic framework, believing imprisonment in a modern, well-run prison to be an effective tool for the transformation of criminals into non-offending members of society.Shaw, on the other hand, understood the Jamaican population as a whole to be inherently criminal and irreformable, and thus interpreted Jamaicans' failure to stigmatize convicts as a sign that penitentiary punishment could never be sufficient to prevent crime.While Daughtrey aimed to alter the Jamaican prison system to provide a calm and orderly environment in which reform would take place, Shaw successfully advocated the reintroduction of corporal punishment as the only way of solving the problem of agricultural larceny.Both men understood themselves to be dealing with a racially different population to which they were superior, but while Daughtrey believed that penal practice could help bring Afro-Jamaicans "up" to the standards of white civilization, Shaw believed that black people required a completely different penal policy to whites.
Although Daughtrey's opinions were more controversial, both these men spoke for large sections of the political elites of their times.What had changed in twenty years?Since they used the same generalization about behaviour to support opposing policy proposals, we cannot conclude that the main change was in the behaviour or attitudes of the mass of Jamaicans.Rather, we must seek its causes in the conjunction of shifts in metropolitan attitudes towards subject peoples with struggles among multiple groups – planters, peasants, urban workers, and colonial officials – in the local context. At the same time, Daughtrey and Shaw's comments provide a starting point for investigating how Jamaican peasants and workers thought about the criminal justice system to which they were subject.
In this paper I argue that what Daughtrey and Shaw described as a low level of civilization, we should understand as the failure of the colonial state's efforts to establish hegemony and support for the rule of law.This failure, along with the contrasting success of a similar project in Britain, accounts for the increasing divergence in the second half of the nineteenth century between British and Jamaican penal policy and practice.In the 1830s and 40s penal reform in Jamaica appeared to be closely following what was occurring in Britain, the island's colonial ruler.Daughtrey in 1845 believed that Jamaicans were not like Britons, but believed that this was a direct result of slavery, and that freedom and the progress of time would allow them to become so.By the 1860s optimism about the potential for reforming prisoners had diminished in both islands, but whereas in Britain it was replaced with closer surveillance and differentiation of the "criminal class" from the "respectable" working class, in Jamaica the population as a whole were written off as criminal.Beginning in the early 1850s, corporal punishment was re-introduced, and private individuals and organizations were enabled to directly benefit from and control the labour of prisoners.
These developments were cross-cut by struggles around gender conventions and ideologies, which had their own impact on penal practice.During the last years of slavery the Colonial Office, under pressure from abolitionists, had struggled to persuade Jamaican planters to abandon the practice of flogging women.This discursive and political struggle had the effect of naturalizing the idea that corporal punishment of women was intrinsically worse than the same punishment inflicted on men.In response, planters drew on an older discourse which stated that women slaves were more difficult to control and, especially, more "insolent," than were men.During the four-year "apprenticeship" period of gradual abolition, when flogging of women was outlawed, planters intensified their reliance on this discourse, frequently attributing the women's "insolence" to their lack of fear of physical punishment.In the 1850s and 60s, however, while the laws reintroducing corporal punishment all specified that only men could be whipped, the idea that women were worse than men rarelyreappeared.The debate around the re-introduction of flogging presented itself as being about universal questions of penal policy, but in fact applied only to men.The question of whether women were implicitly understood to be more responsive to imprisonment than men, or whether they were simply no longer thought of as requiring punishment, lies outside the scope of this paper.It is clear, though, that male and female experiences of penality in this period differed considerably, as a result of the gendered ideological foundations on which the penal system rested.
After Slavery: Restructuring and Reformation
In December 1840 the Jamaican legislature allocated £30,000 for the building of a General Penitentiary for the island.This decision marked the beginning of a period of relative optimism among Jamaican reformers and elites with regard to the prospects for controlling crime and reforming criminals.In the 1830s, hard-fought political battles over jurisdiction within prisons had dominated penal discourse.By the early post-emancipation period, planters submitted to gubernatorial control over penal policy, having gained an implicit bargain with the Colonial Office in which no restraint was put on their efforts to direct state resources as a whole towards their interests.
The full abolition of slavery in 1838 had led to considerable change in the function of prisons.During slavery, prisons served mainly to supplement the autonomous disciplinary system of the plantations.In 1834 more than three-quarters of the 490 slaves serving sentences in the island's twenty-plus gaols and houses of correction were undergoing punishment for running away.Prisons also held slaves committed without trial, on the authority of their masters, runaway slaves who had been apprehended and committed to prison while the authorities waited for theirmasters to claim them, and, occasionally, slaves incarcerated in order to protect them from their owners.With the end of slavery, prisons ceased to be used to punish breaches of slave discipline.Masters lost the power to commit their slaves to prison without trial in 1834, at the start of the apprenticeship period.The governor, Lionel Smith, ordered that 176 slaves serving prison sentences for a variety of offences be released on August 1 1838, the first day of full freedom.By 1840, while the prison population had expanded dramatically, all prisoners (with the exception of debtors) were held under the criminal law, which now made no overt distinctions between people by race or former slave/free status.
In 1838 the British parliament passed the West India Prisons Act, giving the governors of Britain's Caribbean colonies direct power to make regulations governing prisons and to appoint prison inspectors and officers.After a period of high political drama, a modus vivendi was established between Jamaica's plantation-based political elite and the imperial government, in which the planters accepted the loss of their direct power to punish their workers, but maintained, through their representatives in the Jamaica Assembly, considerable control over legislation and fiscal policy.In the period of relative political calm that followed, successive governors and Assemblies followed a programme of prison reform largely modeled on dominant practice in Britain and the US.As in those countries, the stated goal of imprisonment was to reform inmates through labour and religious reflection.Towards this end, an effort was made to control every aspect of the prisoner's experience of incarceration.At the same time, the island's prison systemunderwent reorganization.The Kingston house of correction became the island's general penitentiary for men, and prisoners convicted of felonies throughout the island were transferred there.A separate female 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.The remaining gaols and houses of correction now confined only debtors, untried prisoners, and those serving short sentences.
Gender was a structuring principle in this period of prison reform, in that part of the definition of a properly run prison was one in which male and female inmates were kept entirely separate.Prison rules also specified that female prisoners were always to be attended by female warders.The main purpose in separating prisoners (and staff) along gendered lines was to remove the potential for sexual expression within the space of the prison, and thus to emphasize the institution's separation from the world outside.This was especially important given the relative brevity of most Jamaican prison sentences.Like many prison reforms, gender segregation aimed to empower the prison management over both subordinate staff and inmates, by removing space for acts outside of the prescribed prison regime.Yet for women prisoners it also lessened the dangers of imprisonment.Evidence from the 1830s shows that, as in most prison systems, coercive sex – sometimes with other prisoners, but more commonly with male prison officers – had been a common part of women's prison experience.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.
In the new gender-segregated prisons, prisoners were required to enact their gender in particular ways.This was most apparent in work assignments: women washed clothes, cooked, and cleaned the prison buildings, while men built and repaired roads, broke stones, or performed agricultural labour.Religious teaching emphasized the particular attributes of manliness and femininity thought to be appropriate for a newly free population.The efforts of prison reformers to reconstruct the gender identities of inmates should 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.
John Daughtrey, who had come to Jamaica during the apprenticeship period to serve as a special magistrate, oversaw the prison reform programme immediately after slavery ended.Daughtrey was appointed Jamaica's first General Inspector of Prisons in 1841, and filled this position for the next twenty years, greatly influencing the direction of Jamaican penal reform.He paid most attention to the Penitentiary, which rapidly came to overshadow the other prisons in size and in the attention it received from policy makers and other commenters.Daughtrey – and through him the Jamaican prison system – was deeply influenced by US and British models of penal reform.Like many of his counterparts in Europe and Latin America, he visited North American prisons and attempted to apply the lessons he took from them to the penal institutions under his jurisdiction.He had the plans for the new penitentiary building, construction of which began in 1845, drawn up in the US on the "radiating principle, so advantageous for inspection and supervision."
Daughtrey was by no means a racial egalitarian.He understood himself to be working with a population racially distinct from, and inferior to, that of Britain and the US.In later years, colonial penal theorists would argue that the racial inferiority of the population meant that metropolitan penal theories could not be applied in colonial situations.However, the particular racial discourse which dominated Daughtrey's thought led him to advocate the thorough-going adoption of European and North American penal ideologies, rather than their rejection.His reports from his time as a stipendiary magistrate show that he believed that black people 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 Africans were "a race proverbially talkative."In sum, he subscribed to the stereotype of "Quashee" or "Sambo" that historians have recognized as a common view of enslaved people in many slave societies.In Daughtrey's interpretation, this child-like passivity was primarily induced by slavery, rather than biology, and thus would be replaced by responsibility given enough experience of freedom.This made Afro-Jamaican criminals excellent candidates for rehabilitative imprisonment.Daughtrey and his allies would have liked the Kingston penitentiary to adopt the "separate system" used at Pentonville and Philadelphia.Financial constraints meant that this system, in which prisoners were kept in individual cells throughout their period of confinement and never saw one another, was never attempted in the Jamaican penitentiary.However, Daughtrey understood this to be the result of a regrettable lack of resources, and occasionally as an adaptation to the requirements of the Jamaican climate.He never argued that black inmates would not respond to such a system.
At first, the effort to Jamaican prisons faced severe pragmatic problems.When the Kingston house of correction first became a penitentiary it grew so fast that its ability to achieve reformatory goals was undermined.As felons from other island prisons were sent to Kingston, the penitentiary's population increased from around 80 to over 300 in a few months, without any corresponding change in its management or physical structure.Around eighty prisoners escaped within a short period, including one mass escape of 17 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."
By 1844, though, Daughtrey was satisfied with the improvements he had made.In his 1844 and 1845 reports on the penitentiary he described these advances.Prisoners now worked silently in various open-air workshops within the prison walls, which had themselves been rebuilt using convict labour.Instead of receiving money to buy food, they were given a strictly measured daily ration.Infractions of prison discipline were no longer punished by flogging; instead, prisoners were subjected to solitary confinement.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."The Jamaican recidivism rate now stood below that of England and the US, showing the penitentiary's success.
Daughtrey's confidence notwithstanding, some problems were already evident.The construction of the new penitentiary building was slow: the foundation stone was not laid until 1845, and in 1856 the building remained incomplete.The principle of classification of prisoners began breaking down almost immediately it was established.In 1844 an act was passed setting 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.The female penitentiary, created to receive serious female offenders in 1842, was combined with the male (the "General Penitentiary") in 1853.Extensive discussions of the relative merits of the separate and silent systems of prison discipline had ended with the full adoption of neither.Most of these problems resulted from the Assembly's reluctance to provide funds for public expenditure of any sort.
Nevertheless, a snapshot of the Jamaican penal regime in the mid 1840s would show a system following the path described in the standard "revisionist" histories of punishment.To be sure, much remained of the unreformed prison system, especially in the minor prisons, but this was hardly a peculiarity of Jamaica.If anything, the changes in Jamaican penality were more dramatic than those in the metropolis.By 1845, Jamaican law actually permitted less corporal punishment than did British.Flogging had been abolished as a punishment for crime in 1840.In the same year it was replaced as a punishment for infractions against prison discipline, except in rare cases.The treadmill, which had been introduced as a rationalizing move but had come to be seen as an instrument of corporal punishment inflicting pain, was removed from all Jamaican prisons in 1840 – but continued to be used in British prisons until the 1870s.By several of the penal reformers' measures, and in their own gendered metaphor, the colonial "daughter" had outgrown her "mother" country.
The Return of the Repressive
A snapshot of Jamaican penality twenty years later would show a very different picture.In 1865 military and civil power was mobilized to an extraordinary degree in response to the peasant rebellion at Morant Bay.Four-hundred-and-thirty-nine people were killed, 600 flogged, and over 1,000 homes burnt.The event taught Britons that Jamaica was an irredeemably uncivilized place, although they differed in their opinion as to whether the mass of the population or the authorities showed the greater barbarism.
The repression following Morant Bay was exceptional.However, it took place at the end of a period in which state violence had been increasingly directed at the population.Beginning in 1850, corporal punishment for male offenders had increasingly been re-incorporated into Jamaican penal mechanisms.A series of acts passed the assembly allowing for the flogging of men convicted of a variety of crimes.By 1860 the crimes of arson, burglary, rape, sodomy, bestiality, carnally knowing and abusing children, obeah, and maliciously cutting, maiming, or destroying cattle or sheep could all be punished by up to 117 lashes, in addition to a prison sentence, when committed by men.In 1865 a law was passed making all except first convictions of larceny – the most commonly prosecuted crime – punishable by up to 50 lashes for those over 16, and 25 for juveniles.Floggings were to take place in addition to, rather than instead of, imprisonment.
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 towards corporal punishment.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 offences of praedial larceny, of whatever value.
Women could not be flogged under any of these new laws.This seems to have been generally accepted during the debates around their introduction.Despite alarmist arguments being made about the necessity of the power to inflict corporal punishment, I have not found any evidence of anxiety that this new form of punishment could not be applied to women.This indicates a shift from the 1830s, when women were frequently asserted to be more disorderly than men.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 is surprising, given that women continued to be prominently involved in popular protest in this period.The direct relationship between crime and punishment was less important to the planting and middle-class public than the sense that something was being done.The flogging of men could achieve this, without the necessity of directly confronting newly-adopted but widely-accepted ideologies about femininity.One might also speculate that women's withdrawal from the paid labour force meant that planters were less concerned with controlling their behaviour than that of men.As a result, the 1850s and 60s saw a growing differentiation between penal approaches to women and to men.Practical attempts to reform men were abandoned, but they continued for women.In the discursive realm, women no longer figured the debate around punishment.
In practice imprisonment remained the most frequent punishment for men as well as women.The larceny law was never likely to lead to large numbers of whippings, since most of those convicted were first time offenders, and even if they had past convictions they were usually tried in petty sessions courts, which could not order corporal punishment. Nevertheless, commentary on the new law implied that it would dramatically change the pattern of crime.Governor Eyre believed that "the enactment of a law to punish certain offences by the infliction of Corporal Punishment, will, ... have a most salutary effect in repressing crime," while his General Inspector of Prisons suggested 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."Eyre and those who shared his point of view believed the lash to have symbolic power that outweighed its actual use.Court reports show that, while judges did impose floggings, they did not do so especially commonly, and not primarily in defense of property.In 1850 several convicted arsonists were punished by flogging.However the most common use of flogging as a judicial punishment in the 1850s seems to have been for sexual crimes.For instance, at the Surrey Assizes of August 1854, Charles Brown was convicted of bestiality, and sentenced to twelve months in the penitentiary with hard labour, accompanied by 24 lashes on his first day inside, and a further 24 one month later.In October of that year the judge sentencing James Miles to flogging and imprisonment for bestiality declared that he did so as a response to a crime that was "disgracing this country from East to West," while William Smith received two years imprisonment plus 39 lashes for the rape of a young girl.Courts seem to have been using corporal punishment as a response to crimes that intimately involved the body of the criminal – responding to the convicts' illicit – and coercive – corporeal pleasure with the infliction of bodily pain.The idea that Jamaicans were especially prone to crimes against the sexual order also fit easily with the dehumanizing form of racism becoming more prominent in this period.
This reintroduction of flogging should not be understood as a return to the days before penal reform.Rather, corporal punishment was integrated into a modernized penal system.The same attention to uniformity, centralized control and precise ordering was applied to corporal punishment that had earlier been used in reforming the prisons.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 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.H. B. Shaw reported that this whip weighed 9 ounces, with the handle weighing 6 3/4 ounces and the tails 2 1/4.Its 9 cord tails, on each of which were 3 knots, were 33 inches long, while the handle measured 19 3/4 inches.
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.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 policy makers now disregarded the other aspects of the penal reformers' 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.This disregard is not surprising, since by this time those in power had given up on the effort to reform criminals.Deterrence, rather than reform, had become the goal of punishment, and it was argued that the racial nature of the Jamaican population meant that the prospect of imprisonment could not deter them from crime, but that of flogging would.
The Privatization of Punishment
At the same time as flogging was reintroduced, various experiments took place which allocated direct authority over significant numbers of convicts, along with the product of their labour, to private individuals.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 labourers 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.
The Jamaican Penal Servitude system was similar to the British Ticket of Leave system, introduced in 1853.This system was designed to replace transportation to the Australian colonies: New South Wales had stopped accepting convicts in 1842, and Van Diemen's Land (Tasmania) took no more after 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 labour, were not assigned to any one employer, nor were their rates of pay and conditions of employment established by law.
In the first year of its operation 159 convicts were released under the Jamaican penal servitude act to 14 different employers, who took between 2 and 20 men at a time. Between them these employers, who were drawn overwhelmingly from the island's political elite, acquired more than 27,000 days of cheaper-than-usual labour.Probably more important to them than the cost of this labour was its reliability.Ever since slavery ended, Jamaican planters had complained incessantly about the unreliability of the labour supply.Particularly galling was the workers' refusal to subordinate the labour needs of their own land to those of the estates and plantations, and their consequent practice of undertaking wage labour for intermittent periods.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."While he attributed this to the beneficial influence of their experience in the penitentiary, it is more realistic to understand the planters' comments (assuming that Daughtrey accurately reflected planter opinion) as a reflection of the compliance of forced relative to free workers.The ticket-of-leave system thus functioned similarly to the state-subsidized immigration of indentured workers from India and Africa that was prevalent in the same period.
Young offenders were especially likely to be turned over to the authority of private individuals.Reformatories for boys and girls were established in 1858 and 1857 respectively.In 1864 the St George's Home and Reformatory for Boys accommodated an average of 169 inmates, roughly half of whom had been convicted of crimes, the other half being described as orphans or destitute.The Reformatory was a privately managed institution, although most of its income came from the government, through fees paid to support each inmate sentenced to its custody.In 1864 Governor Eyre reported that of several experiments in cotton cultivation, the only one he expected to succeed would utilize the labour of the boys at the Reformatory.The next year the Assembly passed an act allowing magistrates to apprentice for up to five years children under sixteen who were convicted of stealing, or destroying and damaging with intent to steal, property worth less than 10 shillings, so long as they were proven "to be leading an idle and vagrant life, not attending any school or being sufficiently under the control of their parents."This law was eventually disallowed by the Colonial Office, but not until it had been in force for over a year.The management committee of the Boys' Reformatory noted in its 1865 report that 48 boys had been apprenticed under its terms.Two of the people to whom they were apprenticed took twenty and eighteen boys respectively, indicating that "apprenticeship" in the sense of learning a trade was as much a misnomer here as it had been during the 1834-1838 "apprenticeship" period.
The Kingston and St Andrews Girls' Reformatory had been established one year before the boys' institution, with many of the same stated goals.Its practice with regard to the new apprenticeship law illustrates another aspect of the growing divergence between penal treatment of males and females.In contrast to its brother reformatory, the Girls' Reformatory does not seem to have apprenticed any of its inmates under the 1865 Act, probably because employers wanted male rather than female labour.The Girls' Reformatory accommodated 17 girls in its first year of operation, and had expanded to 87 inmates by 1863.Rather than use its inmates for agricultural work, it aimed to train the girls in the work skills required for domestic service.However, the Ladies' Reformatory Association found it difficult to find enough outlets for the labour they had available.Its members were aware that many would be reluctant to employ their former inmates as domestics.Reports emphasized that they would only recommend suitable girls, and that the association's members were the first to make use of them.Their 1860 report noted that "the want of suitable employment for the female youth of Kingston has been long keenly felt and bitterly deplored," and argued that this was a major cause of the "vice and crime in our midst."The gendered structure of the labour market both made it harder for young women to find suitable employment and made it harder for those involved in attempting to reform them to profit by their labour.
Race, Colonialism, and the "Rule of Law"
Thus by 1865 the reformatory ideal had been largely replaced.Efforts at reforming criminals persisted with regard to particular groups of the population, most notably young women.The island's prisons continued to contain large, and growing, numbers of prisoners, but nobody expected them to emerge reformed.Most of those who publicly discussed penal policy had concluded that Jamaicans would never voluntarily become good wage labourers.Earlier penal ideals that aimed indirectly to benefit employers by teaching criminals the positive value of work were superseded by mechanisms that directly supplied the planters with labour, while serious offenders received punishment through bodily pain.
How and why had this change come about?Jamaican opinion was congruent with a general trend in European and North American thought about crime and penality in this period.The utopian – or from another point of view, dystopian – belief that convicts could be completely transformed through the application of the proper disciplinary technologies reached its peak in the mid 1830s.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 including extensive treadmill labour 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.In 1863, following a moral panic around violent robbery, termed "garroting," a "Garrotter's Act" introduced whipping as a punishment for this crime.However, this did not establish a trend towards the reintroduction of corporal punishment in Britain, although it did feed into the discourse which facilitated the tightening of prison regimes.
Jamaica's penal system could not have changed as it did without this 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 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."Thus, during the 1862 garroting panic an article in the Observer contrasted the honest workers of Lancashire with London's morally degenerate garrotters:
if we look at the distressed artisans of Lancashire who are starving, and have poor weeping wives and hungry children looking up to them 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 nota bad one, after all, to put up with.
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.
In contrast, in Jamaica the whole 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.In a sense, it was precisely their independence that was the problem: because they had access to other sources of livelihood apart from wage labour, they were unreliable as plantation workers and insufficiently deferential as political subjects.In this discourse, the Jamaican population as a whole filled the conceptual space of the "residuum" in Britain, as "other" to the respectable.Politicians gave overwhelmingly penal responses to widespread social and economic problems.Governor Eyre's answer to a memorial from peasants in the parish of St George's, which complained of badly maintained roads, unemployment, and destruction of the petitioners' crops due to livestock trespass and theft, implied that the problem was due to a low level of morality and "civilization" among the petitioners:
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 continue to be the case unless the small settlers and other residents in the country districts, improve in civilization.
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 the entirety of the Jamaican population, including the most "respectable" property-holding group.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.
Why did Eyre and his contemporaries not perceive the Jamaican population in the same way as they saw the British?Thomas Holt has persuasively argued that the heart of the answer to this question lies in contradictions within the liberal idea of freedom.Holt argues that nineteenth-century liberalism proclaimed the all-importance of the value of freedom, but that this freedom did not include the freedom to reject liberalism's goals.He connects this contradiction to a series of ideological developments during the second half of the nineteenth century, including a decline in liberal confidence, a growth in racism, and the perception that abolition had failed because the sugar economy had declined.Bearing Holt's analysis in mind while we look specifically at changes in case of penal policy, we can attribute the divergence between British and Jamaican practice at least partly to the failure, in Jamaica, of the project of establishing the hegemony of the rule of law.
For British and elite Jamaican observers, a key marker of the Jamaican population's failure to achieve respectability was its response to those who committed crime.Ever since emancipation, commentators on the Jamaican penal system had noted the failure of the population to stigmatize those who committed crimes or were subject to punishment.For instance, in 1840, stipendiary magistrate W. A. Bell decried the lack of "moral courage" among the peasantry in his area, evidenced by their refusal to report suspicions about who had perpetrated crimes to the authorities.Similarly, another magistrate commented that Jamaican communities would welcome back a member who had been imprisoned, "more as a martyr than a criminal."Over time, such observations hardened into the opinion expressed by H. B. Shaw, that "a thief ... does not lose caste from having been in the penitentiary," and therefore that penitentiary punishment could not work in Jamaica.
In contrast to the 1840s obsession with perfecting the internal regime of the prison, in the new logic what took place inside the penitentiary ultimately had little to do with its effectiveness as a deterrent.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.The opposition revolved around the idea of shame.In civilized societies, according to this argument, the mere fact of having been in prison was shameful, and the fear of being shamed by being marked out as a former prisoner (that is, a criminal), rather than the fear of what will happen in prison per se, was what deterred most people from committing crime.In Jamaica (and, by extension, other uncivilized and/or colonial places) going to prison was not shameful, because the population in general did not understand having been sent to prison as a sign of wrong-doing, but rather as signifying resistance (or "martyrdom").In such a society, however harsh the experience of imprisonment, it did not deter people from committing crime, since fear of the penitentiary itself was not sufficient to deter.Deterrence – or "dread" as Jamaican commentators often put it – could only be established through terror: through fear for the body, rather than rational calculations of self-interest.
Such logic implicitly accepted that once a person had been imprisoned, he or she was likely to reoffend.It admitted that the penitentiary's primary function was the discipline of those outside, rather than within its walls.It was thus significantly removed from the reformatory logic of the early to mid nineteenth century.It lent itself easily to an argument for corporal punishment, whose deterrent effect was assumed to be self-evident.As a colonial office official commented in 1864, "When thieving reaches a point at which it interferes with production, it certainly seems to me time to whip, and to whip well."
In this discourse, "civilization" stood in for what scholars now call "hegemony."Jamaicans were (literally and figuratively) castigated for not backing the moral and legal judgments of the state.If, as Foucault argues, 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, in Jamaica the projectsignally failed.There is real evidence that, by the late 1860s, Jamaica lacked the relatively stable hegemonic outcome that had been reached in Britain.There was truth to Daughtrey's, Shaw's and Bell's observations about Afro-Jamaicans' responses to the penal system.Perhaps most tellingly, popular protest in Jamaica in this period frequently targeted the symbols of the criminal justice system.Thus in 1859, a serious riot at the town of Falmouth took place during the trial of a group of people for disturbances arising out of disputed possession of land nearby.The riot began when a crowd liberated those awaiting trial from the custody of the police who were escorting them to the court house.In the course of the day, the crowd released more prisoners from the local gaol, and prevented the court's proceedings from continuing.It also attacked various symbols of the criminal justice system, including the court house, the gaol, the police station, the houses of justices of the peace, and the police barracks.Similarly, the Morant Bay rebellion was precipitated by a court-room disturbance, in which a crowd refused to allow the arrest of one of their number.The town's prison and court-house were early targets during the rebellion itself.The rebels liberated all fifty-one of the prisoners in the gaol.
In rejecting the hegemony of the penal system Jamaicans confounded all expectations on the part of abolitionists and optimistic observers of the transition from slavery to free labour.There has probably never been a moment in which British imperialism was better placed to win the trust of the Jamaican population than in the years immediately following abolition.In the imperial imagination freed slaves were filled with deferential gratitude for their freedom.Nor was this gratitude entirely imaginary.In the years following emancipation former slaves made frequent use of a political language which positioned themselves in deference to the Queen who had granted them their freedom.The fact that the figure of the Queen was being strategically used in contrast to more immediate authority figures does not mean that the sense of gratitude and respect for British authority was fabricated.
The Colonial Office tried to capitalize on this presumed good will.Beginning in 1834, its agents embarked on a project of attempting to legitimize the state in the eyes of Jamaican workers.They tried to eradicate the abuses identified in the penal and disciplinary systems of slavery, both of procedure and of type of punishment.The Colonial Office aimed to establish the rule of law in Jamaica.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."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.
While the reformers – Governors Sligo and Smith, Colonial Office Secretary James Stephens, and significant numbers of the stipendiary magistrates – were sincere in their hostility to slavery, their efforts to establish a "rule of law" were also explicitly part of an attempt to persuade the working population of Jamaica to trust their masters and potential future employers, that is, to win hegemony for the plantation system.The stipendiary magistrate Patrick Dunne expressed an important goal of the apprenticeship when he wrote of his efforts, "to introduce those grateful and good feelings which should subsist between master and man, and of inducing the latter to look up to the former with respect and regard."What is more, the law whose "rule" magistrates aimed to establish was the law of apprenticeship.
The apprenticeship law removed the power to punish from the planters, but did not institute any market mechanism to take the place of the driver's whip as persuasion or coercion to work.In this lay the fundamental contradiction of the apprenticeship scheme.The gap in labour discipline was filled by the law: stipendiary magistrates were responsible for ensuring that apprentices worked the 40.5 hours per week that the law required of them, and for ordering the punishment of those who refused.Thus there was an extensive penal response to acts which were not criminal.The apprenticeship tried to translate into the idiom of the law a whole series of work-related struggles, which during slavery had been clearly recognizable as power struggles between masters and slaves.It presented the stipendiary magistrates as if they played the state's role in liberal theory of disinterested and neutral arbiter, yet required them to administer a law which was not even formally neutral.Like slavery and feudalism, apprenticeship defined a person's legal rights and responsibilities according to his or her membership of a particular group within the population.Its distribution of punitive responses was particularly uneven.Planters who broke the law were to be fined.Apprentices were to be imprisoned or flogged.The Colonial Office dearly wanted to establish among the apprentices trust in the law (and through this, trust in the employers), yet its representatives were magistrates who were responsible for sending people who left the field early to be flogged or put on the treadmill.Thus at the height of the colonial state's efforts to portray itself as the protector of the interests of the masses, the daily experience of Jamaican workers in their interactions with state representatives undermined this representation. 
Even had they been scrupulously fair in adjudicating cases, it is unlikely that regular magistrates would have provided a judicial system effective enough to win the consent of the population.Planter magistrates were highly irregular in their court attendance.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 a petty sessions court which did not take place because there was only one magistrate present. Complaints about this problem became frequent from the late 1840s on.Several attempts were made to get the assembly to pass legislation to provide for more salaried magistrates, but the atmosphere of retrenchment meant that none succeeded until the Crown Colony period.Several of the stipendiary magistrates also noted the inaccessibility of legal resolutions of conflicts, due to expense.Furthermore, the migration of freed people after emancipation away from the sugar parishes, combined with the decline in the sugar industry, meant that a growing proportion of the population lived beyond the reach of the entirety of the state's institutions of penality, including police, courts, prisons and whippings.
Revisionist historians have established a dominant narrative about the modernization of punishment, focusing on the shift away from corporal and spectacular punishment towards incarceration.For Jamaica, this narrative needs to be complicated.After a brief period in which penal reform along the same lines as took place in Britain was dominant, new forms of corporal and privately administered punishment were integrated into the penal system.Corporal punishment dominated penal thought, if not penal practice, by the 1860s, but incarceration remained the commonest form of judicial punishment.Corporal and carceral forms of punishment did not function as opposites following consecutively upon one another, but rather were complementary, and understood to be so.
Penal reform as it was implemented in Britain and the US could not be achieved without winning cooperation from the mass of the population.In the apprenticeship and early post-emancipation Jamaican rulers made a real attempt to win such cooperation. The effort failed, in part because of lack of resources and lack of willingness on the part of the planters, but most fundamentally because of a contradiction at the heart of the effort to portray the inherently coercive system of apprenticeship as fair and rule-bound.Failing to win easy consent to their penal decisions, the Jamaican elite rapidly gave up the attempt to gain it.Instead, the penal system became a symbol of the continued injustice of the emancipation settlement.
Abbreviations used in the notes
COPublic Record Office, Kew, Colonial Office papers.
NLJNational Library of Jamaica
PPBritish Parliamentary Papers
Most historians of Britain argue that a majority of British workers, including trade union and political leaders, accepted the parameters of the social order by the last third of the nineteenth century – although they disagree over the extent of contestation within this acceptance.As new work is beginning to show, this was significantly determined by respectable working-class men's investment in the rewards of a powerful shared imperial and gendered identity.See Hall, "Rethinking Imperial Histories"; Keith McClelland, "Rational and Respectable Men: Gender, the Working Class, and Citizenship in Britain, 1850-1867," in Gender and Class in Modern Europe, ed. Laura L. Frader and Sonya O. Rose (Ithaca: Cornell University Press, 1996), 280-93; V. A. C. Gatrell, "Crime, Authority, and the Policeman-State 1750-1950," The Cambridge Social History of Britain, 1750-1950, ed. F. M. L. Thompson.(Cambridge: Cambridge University Press, 1990) 3:Social Agencies and Institutions: 243-310, and Michael Ignatieff,"State, Civil Society, and Total Institutions: A Critique of Recent Social Histories of Punishment," Crime and Justice3,(1981).Robert Storch has argued that a lack of open resistance to policing should not be taken to imply active consent.See "The Policeman as Domestic Missionary: Urban Discipline and Popular Culture in Northern England 1850-1880," Journal of Social History9,(1976): 481-598.Linda Colleytakes up similar themes for an earlier period in Britons: Forging the Nation 1707-1837 (New Haven: Yale University Press, 1992).