Commentary

I write this commentary exhausted from another spat on X (formerly Twitter), generated by the current culture war in the UK. This one was prompted by the latest article in the right-wing broadsheet newspaper, The Telegraph, designed, seemingly purposefully, to arouse White ethno-nationalist outrage. The article was based (with pernicious license) on a group of wildlife and conservation charities’ evidence for a parliamentary enquiry. They were speaking about their role in both limiting climate change and improving access to the countryside for all. The Telegraph, however, chose to pick out their observation that Black people might face additional barriers to such access due to the antipathy encountered by some White Britons, who feel that ethnic minorities do not belong in a rural setting. The headline declared in exasperation that even the British countryside was now being called ‘racist’. Quoting the article on X, some of The Telegraph’s readers declared on the one hand that the allegations of racism facing Black people in the countryside were made up, while ‘observing’ on the other hand that the only Black people they had ever seen in rural areas were dealing drugs or breaking into people’s houses. The former Home Secretary and proponent of sending asylum seekers to Rwanda, Suella Braverman, waded in, attacking the charities on the same newspaper’s front page the day after for trying to ‘Make People Feel Guilty for Being White’.¹

The invective sparked in this latest culture war salvo played upon a deeply entrenched, oft-repeated, association between race, criminality and location. The Telegraph and Braverman saw an opportunity for dog-whistle politicking on an issue as seemingly innocuous as access to the countryside because many White Britons have acquired, almost pre-cognitively, a supposition that Black people in the countryside are criminally inclined.

The articles in this forum, it seems to me, do two things in relation to such persistent and pernicious associations. First, they point out the urgency of understanding the long, convoluted and contested genealogy of crime within a world shaped by White European people’s colonisation of people of colour. These associations are difficult to erase from popular consciousness because they have been built through centuries of accretion, and because they remain available for regeneration by populist politicians whenever the global political economy proves conducive. Second, this forum addresses the opportunities and challenges of recovering the lived experiences of people of colour who have been essentialised and criminalised in this way.

The White criminalisation of Black people and its relationship with place dates in part to the Atlantic system of slavery, in which the movements of enslaved people, who were exclusively Black, were policed to ensure the capture of runaways. From the seventeenth century in the English colonies of the Caribbean and North America, Black people were expected to carry permission slips from their owners to be off the plantation and presumed to be runaways unless they could produce them or prove that they were of free status. The British slave code developed in Barbados in 1664 distinguished between ‘Christian’ and ‘Negro’ but the Jamaican Assembly refined this code in 1684 to distinguish between the legal rights of ‘slave’, ‘free negro’ and ‘white’, also mandating death for any slave who ‘struck a “white person”’.²

It was not just the enslaved who were criminalised for mobility, though. Until 1828 the ‘Hottentot’ Codes of the Cape Colony, developed by the Dutch East India Company and inherited by the British Crown, made any Indigenous Khoisan person liable to arrest and sentencing to convict labour if found away from the white-owned farm to which they were bonded by law.³

The Bushranging Act in 1830s New South Wales provides an intriguing example of how race and criminality were associated and yet not entirely congruent in the policing of colonial societies. Ostensibly designed to prevent escaped convicts from plaguing free settlers outside the main settlements, but imposed to control an unruly colonial society of emancipists and lower-class free settlers too, the Bushranging Act contained wide coercive and discretionary powers.⁴ The act placed the burden of proof on any person found armed to show that they intended no illegal purpose, or they could arrest and possibly executed. Concern over the act was aroused not so much because it breached the fundamental principle of English law that assumed innocence until guilt was proven, but rather because it ‘targeted British subjects who were white’.⁵

Judge William Burton thought that the vagrancy laws developed in England – as demobilisation from the Napoleonic War and parliamentary enclosure led to mass underemployment, homelessness and rural unrest – should suffice to control the bushrangers. He felt these laws too ‘required “people with no visible means of support” to give a “satisfactory … account of themselves” to “any person whatsoever” who may apprehend them’, but also provided legal safeguards against wrongful apprehension. NSW legislators rebuffed this interpretation because it was widely believed the English Vagrancy Act didn’t apply in the colony.⁶ Although debated repeatedly in the 1830s, the bushranger legislation remained in force partly because, in the special circumstances of New South Wales, White convicts and troublesome emancipists could effectively be equated with Black people in other colonies.

Lisa Ford explains how Chief Justice Forbes drew the New South Wales Legislative Council’s attention to ‘the numerous laws which have been passed in the American colonies, particularly such as relate to Slavery and the discipline of Slaves’. Such laws had been approved by the British government despite their departure from English legal norms since the seventeenth century ‘because they were deemed to be essential to the king’s colonial peace, ergo the Bushranging Act was necessary to peace in New South Wales’.⁷

Occasionally the relationship between criminal law, race and place was quite explicit. Perhaps the most notorious example is the British government in India’s Criminal Tribes Act of 1871. Here the association between a biological definition of identity and criminality was cast iron, with individuals belonging to whole ‘tribes’ designated criminal by birth and their movements policed regardless of any specific crime. As Andy Kaladelfos and Vicky Nagy point out, though, the concrete designation of a biological predisposition to crime at law is not necessary to ensure the overrepresentation of some population groups in criminal justice systems, in colonial times or indeed today. Most often, racial distinctions are applied in implementation rather than in legislation. Australia’s Indigenous peoples have been overpoliced and criminalised persistently, and any acute understanding of this situation has to trace its genealogy back to colonial ambivalence about Aboriginal people’s status under colonial law (as subjects or aliens) and socially constructed norms of how they should behave and where, in a settler society.

Aside from engaging in a genealogy of the colonialism-race-criminality nexus, this forum encourages us to think more broadly about the role of criminality in colonial and indeed global history. This is something that Clare Anderson has been engaged in for some time, her Carceral Archipelago project emphasising that penal servitude was about more than punishment or rehabilitation.⁸ It was also about an enormous, coercible, transnationally mobile reservoir of labour. The labour of convicted people was vital in carrying out the environmental changes underpinning colonial rule, from harbour development, bridge building and road laying (the primary use of the labour of Khoikhoi men convicted under the Cape Colony’s ‘Hottentot Code’), to the violent ‘clearing’ of Aboriginal people as well as native flora from south-eastern Australia.

Kate Bruce-Lockhardt and Tolulope Akande show that the Ugandan colonial prison service served a similar range of functions beyond those conventionally attached to imprisonment, including the enhancement of European colonial control and providing a source of forced labour. Long after its abolition, incarceration rates were so high among colonised populations at least in part to supply White colonists and their governments with free labour without incurring the taint of slavery. This forum encourages both historians and criminologists not simply to work across each other’s boundaries more seamlessly but also to follow Anderson’s lead in uncovering the histories of ‘punitive mobility’ and ‘punitive relocation’ that have done so much to shape the modern world.⁹

Finally, the articles here encourage us to think of the ethics of our research not as a separate issue from our findings, but as actively informing them. Bruce-Lockhardt and Akande consider the issue of consent for prisoners whose records we might use, not simply because it is the right thing to do, but also because doing so draws attention to prisoners as co-constructors, even if relatively disempowered, of the systems and processes we are studying. Kaladelfos and Nagy indicate that the large-scale, de-humanised statistical work of some criminologists not only neglects the impact of findings on already stereotyped populations but also hides the nuances of interactions between those who are essentialised. Nishant Gokhale and Meg Foster put calls for ethical nuance into practice in their study of Bhils, arguing that too much emphasis on the 1871 Criminal Tribes Act clouds the complex and discerning ways that Bhils engaged with the British before this time. Bhils were not simply treated or labelled as criminal under the Company, but moved between licit and illicit activity to advance their ends.

If this forum does these things, I think it also does something else implicitly, which could be made more explicit. It links colonisation, racialisation and criminalisation but, more subtly, it speaks to the critical geographies that always reify these associations. People of colour have been variously criminalised within colonial and postcolonial regimes, but they have also been variously immobilised. Their bodies were and are criminalised by the space that they occupy at any given time. They become more vulnerable to the operation of colonial-inflected, racialised law only when they are ‘out of place’.

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Alan Lester

Alan Lester is Professor of Historical Geography at the University of Sussex, UK, and Research Professor at La Trobe University, Australia. He is known for his research on imperial networks, colonial humanitarianism and imperial governance.

Notes

1 See The Telegraph, 12 and 13 February 2024, https://x.com/aljhlester/status/1757338857257795862?s=20; and https://twitter.com/petenorth303/status/1755316459985670424 and comments in thread.

2 Lisa Ford, The King’s Peace: Law and Order in the British Empire (Cambridge, MA: Harvard University Press, 2021), 108.

3 See Susan Newton-King, Masters and Servants on the Cape Eastern Frontier, 1760–1803 (Cambridge: Cambridge University Press, 1999).

4 Meg Foster, ‘Protecting the Colony from its People: Bushranging, Vagrancy, and Social Control in Colonial New South Wales’, Law and History Review 40, no. 4 (2022): 655–77, https://doi.org/10.1017/S0738248022000360.

5 Foster, ‘Protecting the Colony’, 655.

6 Foster, ‘Protecting the Colony’.

7 Ford, The King’s Peace, 197–98.

8 ‘The Carceral Archipelago: Transnational Circulations in Global Perspective, 1415–1960’, European Research Council, accessed 7 March 2024, https://cordis.europa.eu/project/id/312542. For the results of this project, see: Clare Anderson, Convicts: A Global History (Cambridge: Cambridge University Press, 2022).

9 Anderson, Convicts.