Penal History in Colonial Society:
New Issues in the Sociology of Punishment
John Pratt
In this paper I want to examine the influence of cultural values on the form
that punishment takes in modern Western societies. Apart from anything
else, this new theoretical dimension would seem to render problematic some
of the implicit functionalism to be found in Foucault's Discipline and Punish.
What, though, is so special about penal history in a colonial society, in this
particular case, New Zealand?1 The answer to such a question is that it
allows us to see the duality of the role of punishment in modem society, both
as a cultural "signified" and a "signifier"; in effect, punishment is both the
product of deeply held beliefs and sensibilities, while at the same time, it
helps to inform and confirm these same values.
Its historiography in former colonial societies is likely to contain two separate
histories. Alongside that which charts the development of Western ideas and
strategies, there is another history. I have referred to this "other" as a history
of silence, since it refers to the manner in which the punishment ways of the
indigenous peoples of these societies (in this particular case, the Maori in
New Zealand2) were gradually eroded and dismantled as part of a more
general assimilation process: the accommodation of these peoples within
predominantly European standards and cultural values. In New Zealand, the
cultural values and practices of the Maori, including their modes of
punishment, were unacceptable in the new society that was being created in
J Pratt, Punishment in a Perfect Society: the New Zealand Penal System 1840-1939, Victoria
University Press, Wellington, 1992.
Formal colonization of New Zealand by Britain began in 1840. The indigenous Maori now make
up about 12 per cent of the population.
3
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the South Pacific. And punishment, British style, became one of the ways
of asserting the cultural identity of this new society. Furthermore, if this
inherent duality of punishment has shaped the past, it also shapes and
informs the present in relation to contemporary struggles over first
ethnic/indigenous rights, including the right to culturally appropriate justice
and punishment, and secondly the (implicit) shift towards some of these very
practices as a way of remedying recognized deficiencies in the Western
model of punishment.
Punishment in modern society
Cultural values would seem to influence punishment in modern Western
societies in two particularly important ways. The first of these relates to:
(i) the disappearance of punishment itself
The restriction of public participation in the process of punishment and the
virtual disappearance from public view of punishment itself has a long
history and is one that predates modem industrial society.
As Pieter
Spierenberg3 has shown, from around the early 14th century to the beginning
of the 19th, the infliction of legal punishment in Europe gradually became an
altogether more "civilised" affair. In the early modern period, punishment
was likely to involve the infliction of, at least, discomfort to the bodies of
offenders, at worst, excruciating pain (and in full view of the public at large).
It might involve maiming, flogging or execution; or humiliation, through
putting the offender on the ducking stool or in the stocks or pillory. The
public would come along to watch (here are the origins of many local public
holidays in Britain) and often participate. Nor, in cases of execution, need
the punishment just end with the death of the offender: the body might be
further mutilated and then put on public display.4
Nonetheless, the extravagant spectacle that punishment was in those days
began to diminish in two ways. First, the infliction of bodily pain became
steadily more restricted. Even at the start of this period, it was not supposed
to be administered gratuitously, but had an order and protocol to it, as
Langbein indicates. Or such punishment might simply be delivered in a
symbolic fashion: for example, the executioner’s sword could just be waived
over an offender’s head, where it was thought that this was sufficient penalty.
3
P Spierenberg, The Spectacle of Suffering, Cambridge University Press, Cambridge, 1984.
4
M Foucault, Discipline and Punish, Allen Lane, London, 1977, pp 1-4.
4
PENAL HISTORY IN COLONIAL SOCIETIES
As it was, the opportunity to inflict pain on the body of offenders became
progressively limited in the pre-industrial era, as has continued from the 19th
century to the present day. Whipping and floggings were steadily eliminated
(in Britain, for example, public floggings were prohibited in 1862 and
corporal punishment of offenders was abolished altogether in 1948): and the
death penalty continued to be restricted to fewer and fewer offences to the
extent that in most Western countries it now looks to have been finally
abolished. Even so, this distaste for physical punishment has not ended here.
Corporal punishment in schools has largely disappeared, and in Sweden it is
even prohibited for parents to physically chastise their children.
But we have to remember that, if, in the modem period, the prison came to
replace corporal sanctions; prior to the 19th century, forms of penal
confinement co-existed with them. For much of that time, the prison was
used primarily for the purposes of detaining offenders; to await trial,
execution, or, in the case of debtors, discharge (even if, as is illustrated later,
penal confinement then was a qualitatively different experience from what it
came to be during the 19th century). The presence of the penal institution
seems to have been subject to the same forces that led to the steady
diminution of the visibility of corporal sanctions. In the 14th century, for
example, it was reported that "two aldermen of Colchester, taking pity upon
the prisoners constricted in the stocks in the town gaol, set up two posts
outside the entrance to the gaol to which the prisoners might be chained. So
chained, the prisoners might stand, sit, or lie and beg their sustenance from
passers-by".5 What we find here is an understandable concern for "the
suffering of others" which the aldermen attended to in a way that was
appropriate to the cultural beliefs of their time. Evidently the sight of the
prisoners per se, in the street, and having to beg, did not trouble these
by-passers.
If we now move to the late 18th century, we find that the prisoners have
been removed from the street. Access to the public at large must be made
through "the begging grate" which was built into the wall of the prison. The
inmates were now to be confined and would only have this opportunity to
attract the attention of sympathetic passers-by. But if the prisoners had all
but disappeared by now, at least the public were still generous to them.
John Howard was thus told by the "keeper" of Rochester gaol that "the
liberality of the public is so great that we cannot keep the prisoners sober.
Persons have even desired to be confined to have the liberty of the begging
R Pugh, Imprisonment in Medieval England, Cambridge University, Cambridge, 1968, p 327.
5
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grate".6 The point is, there is still a lack of division between criminal and
non-criminal populations in the pre-19th century period. Hence the visibility
of various aspects of the punishment process (if no longer the prisoners) to
the public at large and the lack of architectural distinction between penal
institutions and other public buildings.7 Furthermore, the point of mutual
contact that the prison grate represented brought prison and public life
together: "the interior of the prison extended directly onto the street".8
That this in itself was soon to be an anachronism is evident from Dickens:9
"most of our readers will remember that, within a very few years past, there
was a kind of iron cage in the wall of the Fleet Prison, within which was
posted some man of hungry looks who, from time to time, rattled a money
box, and exclaimed in a mournful voice, ‘Pray remember the poor debtors.
Pray remember the poor debtors’". In effect, the possibility of daily,
unsupervised contact between prisoners and public had now ceased. And the
prison itself was to become a secret and closed off institution, its "meaning"
and purpose to be signified by the developments in 19th century penal
architecture: external fortification and castellation, decorated with symbols
such as chains, fetters and irons.10
During the second half of the 19th century, such other forms of visibility that
the prisoners had now acquired, began to disappear. From the time of formal
colonization by Britain in 1840, prisoners in New Zealand had been deployed
on public works: road-making, building bridges and fortifications. Such work
necessitated that they be marched daily out of their prison and into the public
domain. From the outset, concern was expressed at the wretched spectacle
this daily "march of shame" created.11 Nonetheless, in the early years of
colonization, these were minority sentiments, overridden by the more
utilitarian values this free supply of labour presented. For example, in
Wellington in 1842 it had been agreed that "an application should be made
to the Sheriff, to direct the Constables or other Officers in charge of the
labour gangs of prisoners in his custody to receive instruction from the Town
Council as to the improvement of such parts of the public roads or works as
6
M Ignatieff, A Just Measure of Pain, Macmillan, London, 1978, p 34.
7
D Rothman, The Discovery of the Asylum, Little, Brown, Boston, 1971; R Evans, The Fabrication
of Virtue, Cambridge University Press, Cambridge, 1982.
8
Evans, above, n 7, p 28.
9
C Dickens, The Pickwick Papers, Oxford University Press, Oxford, 1837, 1969, p 595.
10
Evans, above, n 7.
11
EG Wakefield, Adventures in New Zealand, Whitcombe and Tombs, London, 1945, p 218.
6
PENAL HISTORY IN COLONIAL SOCIETIES
they shall from time to time deem most conducive to the public benefit".12
From the 1860s, there was a growing feeling against this sight, although not
necessarily out of sympathy for the prisoners. It had become offensive for
a variety of reasons. The Daily Southern Cross, 30 December 1863
suggested that "when the convicts cannot rest for a quarter of an hour upon
the handles of their picks and spades to criticize the dresses of ladies who
may chance to be passing, and cannot sleep as long as nature indulged to the
utmost may permit, then will our cases of lawlessness and stabbing begin to
grow more rare." The Royal Commission on Prisons13 complained that "the
habit of permitting prisoners to work in the streets of the town in which the
gaols are situated is admitted by almost all the witnesses on the subject to be
most objectionable, as regards both prisoners and the public ... great criminals
by this practise become objects of curiosity and the subjects of exhibition to
the public, and especially the younger members of it, with the persons, deeds
and characters of those who ought to be put out of sight of society
altogether". "The work in the streets", a Visiting Magistrate complained, "is
most objectionable".14
In 1883 it was claimed that "it is most objectionable to have criminals under
any circumstances in the midst of a numerous and crowded population, so as
to be brought from time to time in the way of temptation and under the
wandering gaze of children; and it so happens that the large schools of
[Wellington] are situated in this neighbourhood".15 In an 1899 debate on
moves to send prisoners to unsettled parts of the country, it was hoped that
"they might be put to useful work without the humiliation of publicity".16
Prime Minister Seddon justified the shift from urban prison to rural camp on
these same grounds: "the difficulty was that there was so much traffic along
that road that the prisoners would be exposed to public gaze to such an
extent as to dishearten them; and there was the greater opportunity for
escape on the part of the prisoners. The more humane way to deal with these
men would be to put them away in the bush".17 Then, "the influence of
prisoners in the cities is not good and when we see children in front of the
Terrace Gaol at Wellington playing at prisoners it showed a familiarity with
12
13
New Zealand Colonist and Port Nicholson Advertiser 1 November 1842.
1868, p 15.
14
Report of the Gaols Management Committee, A to J. i-4, Wellington, 1878, p 14
15
NZPD 1883 vol 45 p205.
16
NZPD 1899 vol 137 p 227.
17
NZPD 1899 vol 137 p 229.
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the system which could not be for good. For the same reason I do not like
to see criminals in prison garb marched through the streets".18 In 1912 it
was reported that "the gang of prisoners with attendant warders marching to
and from work through the public streets affords an unedifying spectacle.
It seems apparent that [The Terrace gaol] will have to be abandoned for one
built to an approved plan on a more suitable site. Most civilized countries
are considering the reorganization of their prison systems and all are agreed
that the design of the buildings is a most important factor in any scheme. Our
neighbours in New South Wales have realised this to the extent of
abandoning large and substantially built prisons." Ultimately, in 1915, the
Department of Justice was able to refer to "the cessation of the daily march
of a large gang of prisoners through some of the streets of Wellington".19
In this way, the prisoners were finally taken off the public works programmes
and hidden out of sight.
But it was not just the prisoners who were taken out of view; it was the
penal institutions themselves. Opposition to the presence of the Terrace Gaol
had begun from the late 1870s, when the area became an affluent residential
area for civil servants working in the nearby parliament buildings.20 Thus,
in 1883, it was suggested that "it is impossible to avoid pointing out the
deplorable mistake made by the Government in setting down a convict
establishment in the centre of this city ... It is objectionable from every point
of view - objectionable as opposed to all good taste or propriety in placing
a criminal lazar-house on the finest site in the whole town, where a public
building dedicated to some noble or benevolent purpose should stand as the
cynosure to the public eye"21 With this prison again in mind, it was later
claimed that the presence of gaols in cities "was like a man having a rubbish
tip on his front lawn".22 Equally, its intended replacement, Mount Cook,
had had to be left "lying idle" because of "local agitation" against any
housing of prisoners amongst that community".23 It would thus appear that,
far from ever wanting to visit the prisons for educative purposes, it was now
more the case that the public preferred such buildings to be hidden away
from view. The prison should be hidden away, they seemed to be saying, so
18
NZPD 1907 vol 140 p 191.
19
Report of the Under Secretary for Prisons, A to J, H 20, Wellington, 1915. p 1.
20
D Hamer, "Wellington on the Urban Frontier" in The Making of Wellington 1800-1914 D Hamer and
R Nicholls (eds), Victoria University Press, Wellington, 1990.
21
NZPD 1883 vol. p 205.
22
NZPD 1900 vol 113 p 599.
23
Report of the Inspector of Prisons, A to J, H 20, Wellington, 1900, p 3.
PENAL HISTORY IN COLONIAL SOCIETIES
that it could be forgotten about, rather than remain as the centre-piece of any
modem town or city. The death knell of the Terrace Gaol was finally
sounded in 1924 when it was reported that "[this prison] has been obsolete
for some years past, and fully ten years past the site upon which it stands
was promised to the Wellington Education Board for school purposes. An
infants school has already been built on a part of the reserve adjoining the
prison itself ... [and] it became obvious that the prison could not be allowed
to remain permanently on the fine site it occupies, to the possible detriment
of the present scholars and of others for whose accommodation the remainder
of the site is very badly required".24
What also seems clear is that a good part of the impetus for this privatization
of punishment came from the public, not government. The secrecy that this
has since produced may well suit governments now - it can hide the reality
and inhumanity of prison and so on, but the fact remains that this initial
development seemed to be what the public wanted. The sight of convicts and
even of prisons themselves had become distasteful and offensive to public
mores. These same sentiments would seem to have important consequences
for and effects on the determination of the nature and form that punishment
takes today. For example, governments may well wish to open after-care
hostels or "half-way" houses, whether this be for economic (wanting to
provide a cheap alternative to prison) or humanitarian reasons (wanting to
reintegrate former prisoners back into society in this way). But these
initiatives are likely to be vote losers and will make them think very carefully
about pursuing them. Any such plans will almost certainly be met by waves
of protest from the communities which have been chosen to house them.
Local citizens will prefer not to have to live alongside formally designated
and known ex-prisoners. If they are to be reintegrated, so it might be
thought, do not involve us in the process. Let it be done secretly and
anonymously so that we do not have to come face to face with the socially
embarrassing questions of criminality and punishment. We prefer our
experiences of these matters to be restricted to the television, magazines, film
and so on.
In this way, public involvement in the process of punishment has come to be
minimized; the apparatus of punishment has largely disappeared from public
view and has come to be administered and managed by Justice Department
bureaucracies. By the same token, this detachment of the public has meant
that its only recourse, when emotions are stirred, is to join protest marches
24
Report of the Under Secretary for Prisons, A to J, H 20, Wellington, 1925, p 5.
9
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petitioning for the return of the death penalty and so on. Yet these remain
nothing more than symbolic gestures, made without any realistic likelihood
that the sensitivities which recoiled from such sanctions will ever be offended
by their re-emergence.
(ii) the Less Eligibility Principle
So far we have considered the long term historical trend that involves the
disappearance of punishment. Now I want to consider the influence of
sentiments of a rather shorter duration, and in fact which seem specific to
modem industrial society. Here, I am referring to that cornerstone of 19th
century British social policy, which was also exported to New Zealand, the
less eligibility principle. In relation to law-breaking, this meant (and still
does mean) that criminals should not be "let off" but should be punished in
such a way that disadvantages them. This may take the form of a financial
burden, or disqualification as the consequence of conviction or, most
dramatically, the loss of freedom through imprisonment. Crime must be
shown not to pay: criminals who are caught must be penalised in such a way
that it reduces their status to below those of free people. Thus, confiscate
their money, so that they cannot enjoy wealth dishonestly acquired; prohibit
them from gaining access to the "professions", ensuring that these are the
domains only of the honest; imprison them, if necessary, and ensure through
the privations that they meet, that they will never wish to return.
Sentiments such as these only began to emerge during the course of the 19th
century. Prior to this time, if we take prison life as an example, there were
"no significant barriers between the prisoners and the public".25 It seems
that prison life was then rather similar to life in the rest of society: there
would be all kinds of facilities and services available within the gaol if one
had the money to pay for them. One’s status remained very much as it had
been outside the prison, and comfort was dependent on income. It was only
in the 19th century that a barrier came down between the public and the
prison, and that prison life began to be made, deliberately, as unpleasant as
possible, in the manner of more general changes to British social policy after
the repeal of the Poor Laws in 1834. Thus, in the prison, we see the
introduction of afflictive labour, as exemplified in the regime of Pentonville
prison in London, opened in 1840. Labour was made back-breakingly hard,
was made completely pointless in that it produced nothing, and which had
payment of just a few pence as its reward, establishing a differentiation
Ignatieff, above, n 6, p 34.
10
PENAL HISTORY IN COLONIAL SOCIETIES
between the wages, currency and values of the prison and the outside world
which survives to this day. This was then followed in the 1860s by Colonel
Jebb’s regime of "hard work, hard bed and hard fare".26 In New Zealand,
the Report of the Royal Commission on Prisons supported the introduction
of this new penal strategy there. One of the problems with prison life as it
then was, it was claimed, was that "the tendency of regularity in diet and
work, of due ventilation, &c., is to make the comfort of prisoners greater
than is usually enjoyed by the masses of the innocent working community
out of doors, and it is to be feared that in some prisons, the apparent
excellence of their discipline, and the absence of prison punishments and of
complaints by prisoners, are in no small degree attributable to the ease and
comfort, the lightness of labour, the sufficiency of exercise and food, and the
absence of pain and personal and family cares and anxieties which prisoners
enjoy in prison; the probable effects of all which can scarcely be to make the
punishment deter the convicts, after their return to society, from again
yielding to temptation, or to give the recital of their experiences to previously
innocent or unconvicted persons an appalling or exemplary effect".27 The
remedy for such problems would be to make prisons more unpleasant - and
this became a prescription which circumscribed the entirety of prison life.
As such, any subsequent attempt to introduce reform to prison that would
improve conditions would now attract criticism, once it crept close to the
border between prison and normal life that less eligibility had established.
For example, attempts in the 1880s to teach New Zealand prisoners a trade
seemed to be in breach of it. Might this not give prisoners an unfair
advantage over non-prisoners? Might this even make prison an attractive
option and thus encourage crime? One parliamentary critic claimed that
"when I looked through the Lyttelton Gaol [in Christchurch] last year I was
very much pleased at first sight. It was a hive of industry, men working
busily, and even cheerfully, at their various trades, tailors, printers,
bootmakers and others. But that was not punishment. They were not
performing hard labour. Hard labour I take to mean sound physical exertion,
taxing a man’s energies and muscles to the fullest extent compatible with
health. That is punishment. These men were not punished. Positively some
were much more comfortable, much more well-to-do in gaol then they would
have been out of it. I take it that by teaching them trades in gaol you truly
give a premium to dishonesty. You deprive imprisonment of its terrors. It
should have terrors. A man should not go to gaol with the expectation of
26
Report of the Select Committee on Prison Discipline, Parliamentary Papers, London, 1864, p IX.
27
Report of the Select Committee on Prison Discipline, above, n 26 p 21.
11
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coming out a far better and more skilled man then he went in. It should be
sufficient for him to go there and get a wholesome terror of ever going back
again. The proper course should be to make his hands hard and his back to
ache with good hard work. It is not at all fair to the honest men, skilled or
unskilled, to send men out of goal to compete with them on more favourable
terms than are open to those who have always conducted themselves
honestly" (my emphasis).28
Such criticisms greatly constrained the scope of prison reform. To offset
them, the purpose of such training, the Inspector of Prisons explained, was
not directed at the prisoners’ reform and to provide them with "disciplinary
training" and so on. Instead, in accordance with the less eligibility principle,
it would make prison life more arduous for them than had previously been
the case. They would bring order and routine where none had existed before.
Prior to these reforms, the prisoners had had opportunities to idle away their
time, make friends, read books and so on, it was now intended, under the
new system, to prohibit any possibility of congeniality at all. Training would
much more effectively regulate the prisoners’ working hours. Furthermore,
their association was intended to be greatly restricted: "to make prisons
deterrent and reformatory the inmates must be entirely separated from one
another when not at labour, and located in separate cells instead of in
association".29
By the same token, prison rations were cut: "that the scale of rations is far
too liberal I gather from the fact that as a general rule prisoners increase in
weight considerably during their sentences, and further, from the amount of
which is not eaten but thrown to waste daily by the prisoners. This time last
year I introduced a special scale of rations for boys under 16 years of age,
curtailing considerably the daily supply of bread and meat, and the result has
been most satisfactory, and has without doubt prevailed some from
committing offences which were likely to cause their return to gaol". And
a further cut in rations was ordered in 1895 for all prisoners serving three
months or less "with a view to making imprisonment more rigorous for
vagrants who make prisons their homes".30 Here, then, was evidence
enough of less eligibility. Prison training and the regime in which it would
take place would not make the life of the convicts any easier, nor give them
28
NZPD 1883 vol 43 p 207.
29
Report of the Inspector of Prisons, A to J, H 7, Wellington, 1889, p 3.
30
Report of the Inspector of Prisons, A to J, H 20, Wellington, 1895, p 2.
12
PENAL HISTORY IN COLONIAL SOCIETIES
unfair advantages, indeed, it was anticipated that it would have just the
opposite effect.
This legacy from the penal values of Victorian society permeated "the
modem penal complex" which we see emerging in New Zealand, as in
Britain, in the early part of the 20th century.31 As part of this process, the
philosophy of punishment underwent change: prisons were now intended to
rehabilitate, to train convicts for "citizenship", through their participation in
a range of reform programs that would be drawn up to match the needs of
specific criminal types.
Again, in New Zealand, there was opposition to any form of training, even
if it might assist in the rehabilitation of the prisoners, which might in some
way advantage them over non-prisoners. The point was raised in the debate
on the 1910 Crimes Amendment Bill that "where there is the slightest
possibility of education and healthy refining influences helping to bring them
back to proper ideas of life, it is a good thing that the State should employ
them in any way it can. But it is a very different thing if we are going to
make our gaols factories to train men who, after they come out of gaol, are
going to look for employment in the walks of life where they have to rub
shoulders with men who have never seen the inside of a gaol".32 Similarly:
"we must always remember that our prisons are places of punishment, and
not encourage people to go there for the sake of getting through the
winter"33; "in furthering the principle of reformation, we should not lose
sight altogether of that other principle - a necessary one in our legislation,
necessary in the interests of public morality and public safety - that due
punishment shall be meted out to that person who commits a crime";34 "the
primary object of sending a man to prison was to punish him as a personal
deterrent and as a deterrent to others, not to reform him".35
To offset such criticisms, the New Zealand Justice Minister had to give a
familiar set of assurances. It was intended that this training would be of a
very basic nature, such as rudimentary agricultural work or labouring; women
convicts would be taught social etiquette and given the opportunity to learn
a useful trade in such areas as "domestic service", "cookery", and
31
D Garland, Punishment and Welfare, Gower, London, 1985; in Pratt, above, n 1.
32
NZPD 1910 vol. 151 p 538.
33
NZPD 1910 vol 151, p 541.
34
NZPD 2920 vol 151 p 510.
35
NZPD 1910 vol 151 p 538.
13
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"dressmaking". In this way, the prisoners would only gain a very limited and
introductory knowledge. This would qualify them to return to society, but
was not intended to give them a qualification per se since this would give
them an unfair advantage over non-lawbreakers and would be counter to the
less eligibility principle.
It is obvious that these feelings are still evident today - as reflected in the
periodic outbursts against prisoners having access to colour television, sexual
relations, Christmas dinners or even (a recent incident36) being fed chicken.
But even more significant, perhaps, is the way in which this sentiment
constrains the way in which governments can actually go about the process
of penal reform. The possibilities for character transformation through
punishment envisaged by Foucault, for example, have, at least in New
Zealand, always been limited because of the determination to ensure that
prisoners will not be "advantaged" by breaking the law. This presents us
with the following paradox. To be a success, to ensure that prisoners do not
keep coming back soon after their release, managerial logic actually demands
that they, and offenders in general, should receive certain benefits, education,
training for employment, skilled counselling and so on, in a bid to remedy
all those personal deficiencies which, particularly since the reforms of the
early 20th century, have been accredited with responsibility for their criminal
behaviour. Yet the reality is that governments can provide hardly any of this.
They can only make patchwork repairs to the system. They are constrained
by financial stringencies, the lack of staff sufficiently skilled in the high
levels of expertise that changing people’s behaviour actually requires and so
on. But they are also constrained by public opinion which demands
punishment and not what appears to be "treats". In effect, and as was evident
in relation to the subsequent consequences of the privatization of punishment,
it is as if the form that it takes today is mediated through "[the] two
contrasting visions at work in contemporary criminal justice: the passionate,
morally toned desire to punish and the administrative, rationalistic
normalizing concern to manage".37 Given these inherent tensions and
contradictions within it, the subsequent failure of the penal system in general
and the prisons in particular, should hardly come as any surprise to us.
The Minister of Police was outraged to hear that chicken was a feature of the New Zealand prison
diet; nor was he assuaged by the fact that a number of prisoners went down with salmonella
poisoning after being fed their chicken.
D Garland, Punishment in Modern Society, Oxford University Press, Oxford, 1990, p 180.
14
PENAL HISTORY IN COLONIAL SOCIETIES
Nonetheless, the desire of the public to have punishment hidden away and
managed by professionals has become convenient for governments. It means
they will seldom be called into account for what happens within modem
It also helps to explain why, despite all its
punishment systems.
shortcomings and apparent failures, there is little public opposition to the
prison per se, so long as it is kept out of sight. Imprisonment might well
lead to the remorseless decay of the human spirit, but it is unlikely to now
involve real physical suffering. This helps to ensure that the prison for the
most part remains publicly acceptable as a sanction today. The secrecy that
envelops it serves a useful function for both governments and the public
alike.
The Western way of punishing
So far, we have examined the way in which cultural factors have helped to
shape the formation of punishment in modem society. I now wish to
examine the way in which punishment is also a cultural signifier. In 19th
century colonial New Zealand, it seems clear that the replication of the
British mode of punishment that took place helped to assure the settlers that
they remained part of the Western cultural world, at whatever distance they
might be from it or however fragile their new society might be. By the same
token, commitment to the West signified that alternative world views such
as those of New Zealand’s indigenous Maori people were not permissible.
They thus had to be nullified and silenced. Certainly, in the 19th century, it
was quite inconceivable that the cultural beliefs and practices of such peoples
could in any way have supplanted those of Britain and her emigrant settlers.
Indeed, one of the justifications for colonization in the mid to late 19th
century was that it would "civilize" the "noble savages" to be found in distant
lands. Assimilation into the British way of life was to be the gift of
civilization, wherever it took place: "it is ours to supply them with a system
where the humblest may enjoy freedom from oppression and wrong equally
with the greatest; where the light of religion and morality can penetrate into
the darkest dwelling places. This is the real fulfilment of our duties; this,
again, I say, is the true strength and meaning of imperialism".38 As such,
the gift of civilization would mean that such peoples would have to gift up
their own cultural identity and institutions and take on those of Britain.
Earl of Carnavon 1878, quoted by C Eldridge, Victorian Imperialism, Hodder and Stoughton,
London, 1978, p 2.
15
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(1995) 11
Thus, in the example of New Zealand, formally colonized in 1840, the
British imperial frontier was pushed out to one of its farthest and most
remote boundaries. Even so, the settlers were determined to recreate a
"Britain of the South Pacific". Thus the Canterbury Association wanted "to
set an example of a colonial settlement in which, from the first, all the
elements, including the very highest, of a good and right state of society shall
find their proper place and their active operations".39 Later on in the
colonization of this country, it was as if a new Great Britain (free of its
social problems) was being established: "New Zealand is an integral part of
Great Britain, an immense sea-joined Devonshire. An Englishman going
thither goes among his countrymen, he has the same queen, the same laws
and customs, the same language the same social institutions and save that he
is in a country where trees are evergreen, and where there is no winter, no
opera, no aristocracy, no income tax, no paupers, no beggars, no cotton mills,
he is, virtually, in a young England".40 Similarly, the "Englishness" of New
Zealand was conjured up by Baden Powell: "our eyes are refreshed with
green, real English green; hedgerows, and plenty of water and cottages and
small houses of every description, surrounded by clumps and soars of
poplars, hawthorn and other English trees; Christchurch nestles all hidden in
English trees, whilst round and about run magnificent roads, shut in on either
side by hedgerows, gorse, thome and broom". Not only did the availability
of land conjure up an idyllic setting but, in addition, Wakefield himself in a
letter of 1841, envisaged that "in all probability New Zealand will be the
most Church of England country in the world". By the same token, the
Canterbury Association itself wanted their settlement to be "a colony which
would accord the Church a distinctive part in the social organisation, [and]
which would reproduce the graduation of English society ..."; and Governor
Grey claimed that the ideal of the Canterbury Association was a colonial
settlement which would reproduce "an English county with the Cathedral
city, its famous University, its Bishop, its endowed clergy, its ancient
aristocracy and its yeoman farmers, its few necessary tradesmen, its sturdy
and loyal labourers".41
And, of course, what had made New Zealand appear such an arcadian
paradise when advertised by the British emigration companies had been the
39
Association for Forming the Settlement of Canterbury in New Zealand 1848.
40
C Hurthouse, New Zealand or Zealandia, Vol 2, Edward Stafford, London, 1857, p 637.
41
G Baden-Powell, New Homes for the Old Country, Richard Bentley and Son, London, 1872, p 73.
H Purchas, Bishop Harper and the Canterbury Settlement, Whitcombe and Tombs, Christchurch,
1903,p 32.
16
PENAL HISTORY IN COLONIAL SOCIETIES
promise of land. This struck a particular cord with potential immigrants from
Britain: "their imagination is employed in picturing the colony generally, and
in all sorts of particulars. The glorious climate, the beautiful scenery, the
noble forests, the wide plains of natural grass interspersed with trees like an
English park; the fine harbour, the bright river, the fertile soil; the very
property on which they mean to live and die, first as it is now, a beautiful
but useless wilderness, and then as they intend to make it, a delightful
residence and profitable domain’".42 Thus by means of land purchase and
redistribution, it was envisaged that the country could be transformed from
uselessness to utility; from an anarchic wilderness to an orderly "Britain of
the South Pacific",43 with a legal and penal code to match.
As such, not only were the same forces that shaped the format of modem
penalty present in New Zealand, as in Britain, but specific ideas and
initiatives were deliberately imported from Britain (irrespective of the
differing nature of crime problems). For example, the new plan for
Wellington gaol in 1843 copied the Pentonville prison design of 1840; the
New Zealand Offences against the Person Act 1867 (prescribing inter alia
whipping for the offence of "garrotting") followed the English Offences
Against the Person Act 1866; the Naval Training Schools Act 1874 was
passed in the aftermath of a similar British initiative: "the object of the Bill
was to establish industrial schools for neglected and in some cases criminal
children. If we were to be the Britain of the iSouth and hoped to rule the
waves of the Pacific, we should train up the youth of our Arab class to the
service of the sea";44 in 1886, the Probation of Offenders Act was
introduced (the first in the world) following a visit from the London
representative of the Howard League who advocated such legislation.
By the same token, this particular commitment to "the British way" of doing
things denied legitimacy to the Maori criminal justice and punishment
system. Because it was "different", of the new world, of native peoples, it
was written off by early travellers as consisting of "quaint customs",
"peculiarities" and so on. In reality, the system was founded on the belief
that socially harmful behaviour (hara), whether of a civil or criminal nature
in Western terms, had been caused by an imbalance to the social equilibrium
of some kind or other.
E G Wakefield, A View of the Art of Colonization, Whitcombe and Tombs, London, 1914, p 129.
43
Huithouse, above, n 40.
NZPD 1874 p 743.
17
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(1995) 11
In addition to providing sanctions for behaviour that would be recognized as
"wrong" in any European jurisdiction (for example, theft, rape and murder)
infringement of tapu (sacred areas) would be rigorously sanctioned (lest the
offended ancestors take revenge on those meant to police the tapu). And it
also sanctioned civil matters (in Western terms) such as adultery (puremu)
and trespass, and those of a religious nature such as sorcery.
The purpose of the justice system, usually in the form of a hearing which
would take place on the marae (area in front of the communal meeting house
or wharaenui) or inside a special wharenui called the wharerunanga, was to
investigate the matter and by so doing, attempt to restore the balance that had
been disturbed. This usually meant redressing the harm done to the victim.
The quantity of redress would be dependent on the degree of the offence: a
form of compensation (utu) for some, with mediation to remove causes of
tension. Other offences, say, some breaches of tapu, would be seen as so
serious that death would be demanded. Whatever, the interests of the victim
and his or her family or tribe were central to the administration of justice.
Indeed, the victim’s "right" to justice could be handed down from one
generation to another and could be pursued against the wrongdoer and their
next of kin or tribe. Hence the importance attached to dispute proceedings,
which might last for days while a resolution was being negotiated. Here, as
well, the justice system did not exist in isolation from the rest of society (as
with the elitism and professional dominance to be found in the European
model) but was completely integrated within it, rooted in the everyday
experiences of Maori people.
The most prevalent sanction seems to have been utu., and the usual method
of securing satisfaction in this way would be for the offended party with his
kinsmen to act as a raiding party, taua mum, and plunder the offender and
his kin, the scope and extent of which would have been agreed in advance.
Shortland45 describes the mechanics of this process as follows: "it is
generally well understood beforehand how the affair is to be settled, whether
by giving and receiving compensation in property, or by single combat. In
the former case, even the amount of compensation, or, at least, the more
considerable items have probably been agreed on beforehand, through the
assistance of mutual friends going between the two parties, to learn and
report the nature of the terms likely to be demanded by one, or likely to be
E Shortland, The Southern Districts of New Zealand, Longmans, London, 1852, p 236.
18
PENAL HISTORY IN COLONIAL SOCIETIES
accepted by the other." Similarly, Earle46 comments on one instance where
"the Chiefs first sat down to discuss [the muru] amongst themselves; and
their deliberations ended in their being satisfied with destroying the village
of Matowe ... which had been the residence of Pomaree’s son, whose death
was the cause of all the late turbulent events". Nonetheless, restitution could
be a bilateral affair. Ward47 suggests that it might be agreed that a Chief
should kill a slave who had seduced his wife; but if the Chief had caused her
to stray, then the wife’s kin might, in addition, muru the Chief.
Furthermore, the lack of formal agreement beforehand as to the extent of the
plundering would mean feuding between the parties.
It would also appear that the Chiefs themselves had considerable
discretionary power in relation to the infliction of punishment. In 1814, the
early missionary, the Reverend Samuel Marsden recorded how he prevented
a Chief from summarily executing a "common man" who had committed a
small theft; in its place a banishment was imposed. He states that "I pointed
out to them that there was no comparison between a man who would steal
a potato and another who committed murder. And yet their punishment was
the same, for they will as soon kill a man for stealing potatoes as for murder.
The Chief has the power of life and death over his people"48 Furthermore,
it would seem that the death penalty and the public spectacle associated with
it, was a commonplace feature of Maori society at this time: "on passing up
the River Koua Koua I observed upon the summit of a very high hill a
Roman cross, and asked the natives what it was for. They told me it was to
hang thieves on, whom they first killed and then hung up their dead bodies
till time or the vultures destroyed them".
It will be evident that the Maori way of punishing obeyed very different
principles from those emerging in Britain and Europe around the mid 19th
century. Against the kinship responsibility built in to Maori beliefs about
punishment, we have the individual responsibility of British penology; the
blood and body sanctions prevalent in Maori society were beginning to
disappear in Britain and the West (and to be replaced by imprisonment);
sanctions could be diffuse and uncertain in Maori penology at a time when
there was growing demand for order, certainty and efficiency in British
penology; the Chiefs had considerable discretion when, as Foucault (1977)
46
A Earle, Narrative of a Residence in New Zealand, Whitcombe and Tombs, Christchurch, 1966, p
185.
47
A Ward, A Show of Justice, Victoria University Press, Wellington, 1974, p 8.
48
R McNab, Historical Records of New Zealand, Government Printer, Wellington, 1908, p 381.
19
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(1995) 11
has shown, the early 19th century in Europe was the era of the penal code,
prescribing an exactitude of punishments to be imposed; punishments in
Maori society were of a public nature, in the West they were beginning to be
removed from view altogether.49 The most significant contrasts are
represented in tabular form below.
TABLE 1 - CONTRASTS IN PUNISHMENT IN THE MID 19TH
CENTURY
Indigenous
Societies
European
Societies
Criminal responsibility
kin
individual
Predominant modes of
sanction
corporeal/compensatory
imprisonment/fine
Power to punish
chiefly discretion
determined by penal code
and administered by judges
Place of punishment
public
increasingly private
Purpose of punishment
redress the balance
deterrence; make retribution
on individual offenders
Prosecutor
victim
State
The onset of formal colonisation in New Zealand and the importation of a
British penal system meant that the Maori way of punishing would be
submerged beneath its weight. In the mid 19th century, the pace of
assimilation of native peoples into "the British way of life" (and the
concomitant decline and dismantling of their own culture and institutions)
would vary from colony to colony. This process, as it related to criminal
justice and punishment, took around sixty years. For reasons of population
distribution, geography and Maori resistance, there was some initial
recognition of Maori penal practises. In 1846, this was almost immediately
restricted to intra-Maori crime; subsequently, the spread of European
settlement and increased levels of population, allied to pacification of the
Maori in the aftermath of the 1860’s land wars, led, in 1867, to any such
recognition being restricted to specific parts of the country. In 1893, when
the assimilation process seemed complete, the very limited provision that still
49
20
Spierenberg, above, n 3.
PENAL HISTORY IN COLONIAL SOCIETIES
existed for Maori to deal with disputes "in their own way" was abolished
altogether under the terms of the Magistrates Courts Act of that year.
What helped to drive this process was cultural antipathy. For Europeans, the
Maori system represented anarchy. Any concessions to Maori penology
meant that Maori wrongdoing would go unpunished and that lawlessness,
which muru seemed to represent, would be the result. This, in turn, led to
more fear and suspicion on their part. In European criminal law, it was the
offender who was punished; in Maori penology, the muru sanction secured
compensation for victims and their kin from offenders and their kin, but
which, in European culture, seemed to involve nothing more than
indiscriminate plunder.50 It was thus claimed that "the settler is exposed to
daily provocation. His cattle for example stray from his paddock; he follows
them to a neighbouring Pa, and is compelled to redeem them by an
exorbitant payment. In the course of the altercation, a musket is perhaps
pointed at him, or a tomahawk flourished over his head. On the other hand,
should he try the experiment of driving Native cattle to the public pound for
trespass on his cultivations, a strong party of Maori, with loaded muskets,
breaks down the pound and rescues them. He has to maintain party fences
without contribution from his Maori neighbour. Herds of native pigs break
through his crops. The dogs of the Pa worry his sheep. To save his own
farm he has to pay for the extermination of thistles on the neighbouring
native land. Redress in the Courts of Law is not to be attained because it
would be dangerous to the peace of the country to enforce the judgment.
On the other hand, Natives freely avail themselves of their legal remedies
against Europeans".51 The imposition of sanctions in the Maori way was
alarming for the settlers. Instead of restoring order, it seemed to lead only
to further disorder.
As such, Maori punishment practices seemed to be the antithesis of European
trends. At the same time, in the aftermath of missionary influences, biblical
frames of reference seemed to dominate Maori thought, in contrast to the
more secular enlightenment values of Europeans.52 In the initial stages of
colonization, the Maori had been sympathetic to the public features of the
European system that still remained at this stage; this was, of course, in line
with their own cultural beliefs. Other than this, they found it irreligious:
thus, in relation to "cases of adultery, seduction, drunkeness and swearing ...
50
Pratt, above, n 1.
51
Further Papers Relative to Native Affairs, A to J E, Wellington, 1860.
52
R Porter, The Enlightenment, Macmillan, Basingstoke, 1990.
21
AUSTRALIAN JOURNAL OF LAW AND SOCIETY
(1995) 11
at present there is practically no redress, which is, of course,
incomprehensible to a savage".53 Even so, the utu principle still dominated
their conceptual basis of punishment. Wrongdoing demanded compensation
- commensurate to the quality of harm done. And payment had to be made
to the victim. There was no place for the State in the punishment process,
nor any concept of penal confinement. Indeed, in Wellington in 1843, after
a Chief had been convicted of theft, he is reported to have told the court that
"as to any thing which could be done to him now, he was indifferent. He
had been degraded by being handcuffed and kept in gaol and did not care for
anything ... then, on hearing the sentence [two month’s imprisonment with
hard labour] he loudly complained of the degradation of imprisonment and
requested most earnestly to be killed with a tomahawk".54
In this respect, in the early days of colonization, there were reports of cases
from various parts of the country where sanctions against Maori defendants
were not enforced or which were subsequently nullified. Thus: "on the
establishment of British Government in New Zealand, petty thefts were of
frequent occurrence in European settlements, but it was found difficult to
apply the punishments usually inflicted by our law for such offences. Sons
of powerful chiefs were every now and then the offenders, and their tribe
would not submit to the indignity of their being imprisoned in a common jail,
although they were always willing to give compensation".55 Similarly,
Chief Te Heu Heu asked "why do you keep a prisoner for days and days
awaiting his trial? If anyone commits a crime here I knock him on the head
at once. Then, too, you put people in prison for such small things. Now,
Judge, listen to me. If a man were to dare to take one of my wives or to
take this (a beautiful hatchet made of greenstone and highly polished which
he carried in his hand), I should kill him, of course, at once; but if he pilfers
little things I take no notice".56 In 1862 it was reported that a Hawkes Bay
Chief rescued one of his hapu (tribe) from the Clive lock-up, after he had
been detained for theft.57 Long sentences of imprisonment might still be
resisted. In the same year, after a case of attempted rape, the representatives
of the local tribe would not surrender the Maori defendant but instead
proposed a £50 fine and banishment, and offered to become responsible for
Report of the Waikato Committee, A to J G, Wellington, 1860, p 112.
New Zealand Gazette and Wellington Spectator, 30 December 1843.
Shortland, above, n 45, p 241.
M Martin, Our Maoris, London Society for Promoting Christian Knowledge, London, 1884,
p 59.
Despatches from Governor Sir George Grey, A to J, E, Wellington, 1863, p 4.
22
PENAL HISTORY IN COLONIAL SOCIETIES
his conduct in the future, which the authorities accepted: "they offered a
willingness to pay for the crime, even begging me to receive it, but stating
at the same time that they would not give up the youth, being ignorant that
such crime was punishable by imprisonment; that many cases had occurred
in which Native women had been roughly handled by Europeans when no
imprisonment had been inflicted".58
Even when, some years later, European sanctions seemed to have more
acceptability amongst the Maori people as a whole and were coming to be
seen as "the normal way" of punishing, the cultural significance of these
sanctions was likely to carry a different weight for Maori recipients, as in the
following example: "a half-caste from Kawhia, who was sentenced to
imprisonment for a short term, was set to work to cut up firewood for the
court and offices. While he was employed at this work, it was ludicrous to
observe the many procedures he resorted to, to hide his position from the
Native passers-by. He would, as soon as he observed them, cease work and
endeavour to make believe that he was simply there at his own will. At
other times, when out for exercise, in charge of the constable, if he perceived
any natives coming in the direction of the office, he would run into the
court-house lobby and conceal himself behind the door, in order to prevent
them seeing him. It has often appeared to me that to fine a Native for theft
means to punish some of his relatives, as the burden of paying the fine
invariably devolves upon them, and the thief really suffers nothing. The
above case clearly shows that the Natives consider it a disgrace to be
imprisoned, but a fine is nothing".59 Here, then, although European
sanctions might prevail, Maori culture meant that responsibility for fine
payment could still be a shared one and that imprisonment carried particular
shame. Prison, it would seem from this example, completely destroyed the
mana (esteem) of the convict.
Assimilation into the British way of life meant that the Maori mode of
punishment, like the rest of Maori cultural practises and institutions came to
be formally silenced. For the most part, by the end of the 19th century,
Maori penal practises existed only in outlying areas; other than this, they
were reduced to the status of a cultural memory, or as a point of resistance
to European dominance. Equally, as if in recognition that the "threat" to
Western civilization that Maori culture had been thought to pose was now
Papers Relative to an Outrage Committed by a Maori at Mataure, A to J, D, Wellington, 1863,
p4Reports from Officers in Native Districts, A to J, F, Wellington, 1876, p 7.
23
AUSTRALIAN JOURNAL OF LAW AND SOCIETY
(1995) 11
over, subsequent discoveries of Maori penal practises still taking place were
now treated as a kind of joke. Thus: "[the Maori] appears to look upon the
mutual agreement to go to war as a sort of good humoured civil contract to
a sort of shooting match, regarding it more in the light the Europeans would
a football or cricket match. They played Eru Hiki’s side, and beat them one
day, and were quite ready to play the return match on the following Monday.
The "war" was evidently a sort of red-letter event, and although they played
with guns and bullets instead of cricket bats and balls, that was more the
choice of the game than any bitter animosity with which it was contested.
Accidents will occur, however, and just as in a football match, or a horse
race, several men might lose their lives; so in the rifle match between the two
hapus, some of them came to grief'.60
Overall, they now seemed to be largely acquiescent to European sanctions.
This is confirmed by examination of Resident Magistrates’ reports for the late
19th century. In 1880 we thus come across the case of four "natives"
charged with breach of the Dog Nuisance Act: "although they expressed great
indignation on being served with the summonses, which they tore in pieces
as soon as they received them, they all appeared in court and upon
conviction, paid a fine of 5 shillings and costs each, besides taking out
collars for their dogs. They behaved so well that the Bench expressed
surprise at their calm submission to the order of the court, this tax being so
very distasteful to the Natives".61 The general picture seemed to be that
"the Natives have shown every disposition to submit to the decisions of the
court".62 In all the reports from the Resident Magistrates in this year there
is only one reference to muru being considered, from Gisborne: "a dispute
which might have had serious consequences has arisen between the Aitonga-a
Mate and the Te Whanau-a-rua, the subject of the quarrel being the
ownership of a piece of land. The former hapu, to assert their right, buried
a child of rank upon it and on the counter-claimants threatening to disinter
it, [the former] seized their arms and would have resented the outrage with
death, had not the other desisted".63 Even so, the same magistrate was able
to report that "the greatest Chief of Ngatiporou ... was arrested on a warrant,
and imprisoned for two months, without the slightest opposition from his
people by whom he was surrounded".64
New Zealand Herald, 30 July 1888.
Reports from Officers in Native Districts, A to J, F, Wellington, 1880, p 1.
Reports from Officers in Native Districts, A to J, F, Wellington, 1880, p 6.
Reports from Officers in Native Districts, A to J, F, Wellington, 1880, p 10.
Reports from Officers in Native Districts, A to J, F, Wellington, 1880, p 11.
24
PENAL HISTORY IN COLONIAL SOCIETIES
By 1885 we find the magistrates reporting that "when cases do arise requiring
the intervention of the authorities, [we], as a rule, meet with the greatest
assistance and cooperation at the hands of the leading natives, and it is
seldom indeed that [we] find any difficulty in effectively carrying out the
law".65 Similarly, "a remarkable charge of highway robbery was brought
before me, seven natives being accused of taking by force from another
Native a considerable sum of money ... on the charge coming before the
Supreme Court it was dismissed on a technical point ... The case is curious,
as it shows how the law failed to punish what was regarded by Europeans
and Natives as a serious offence - an offence that would doubtless, if
committed a few years ago, have caused bloodshed amongst Native people"
(my emphasis).66
This acquiescence was repeated in relation to more general aspects of
European culture. For example, "on the 13th August 1877 [council rooms
were] opened [at Putiki Pa], and a number of European ladies and gentlemen
attended by invitation from Mete Kingi, and partook of a most substantial
luncheon, served up in true English style, with Maori young ladies, dressed
in the height of fashion as waiters, under the supervision of Victoria
Kemp".67 This was one report amongst a range of others in the 1870’s,
now drawing attention to, for example, plans for the introduction of private
boarding schools for Maori, and "partial adaptation of European dress and
habitation". By the 1890’s we find a report that, through their manifest
adaptation of European cultural practises, the Maori could now be seen more
as "good sports’ than a threat: "the Natives seem to be remarkably sober;
they take great interest in European sports, and were, I understand, successful
in carrying off the prizes in the tug-of-war both at Christchurch and Dunedin.
I believe they display the utmost good humour on these occasions whether
successful or otherwise".68 By 1900 it was claimed that "what better
instance could be found of Maori adapting themselves to European manners
than the brass band we have seen in our streets here for the last two or three
weeks? Where these Natives came from there were very few Europeans, that
was in the Waikato - but yet we found a most advanced state of civilization
amongst them, a refined civilization of which no higher existed - the
civilization of music".69
Reports from Officers in Native Districts, A to J, F, Wellington, 1885, p 3.
Reports from Officers in Native Districts, above, n 65, p 3.
Reports from Officers in Native Districts, A to J, F, Wellington, 1878, p 13.
Reports from Officers in Native Districts, A to J, G, Wellington, 1892, p 9.
NZPD 1900 vol 115 p 203.
25
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(1995) 11
For much of this period, the Maori themselves had not constituted a
significant crime problem. Resident Magistrates reports contained regular
references to the law-abiding nature of the Maori. For example: "I have the
honour to state that the Kaipara Natives have maintained their character for
order, peace and a desire to conform to the Law in a manner worthy of
imitation by their neighbours; as the very few cases between themselves
have, hitherto, been settled without the necessity of appealing to Court";70
"their personal conduct has been remarkably good during the past year, and
I am glad to report that they still deserve the character of being the best
behaved and the most sober tribes of any that I have ever been amongst. I
would here state that since my last years report only three Natives have been
brought before the court - one for drunkenness, one for furious riding, and
one for petty larceny".71 This is reflected in the crime statistics of the time.
TABLE 2 - CONVICTIONS IN RESIDENT MAGISTRATES AND
MAGISTRATES COURTS72
I860
1870
1880
1890
1900
1910
European
Maori
2,963
11,990
15,078
13,885
19,241
32,435
103
114
245
243
253
455
During this same period, the population balance changed from being roughly
equal in 1860, to approximately 11:1 European to Maori by 1880 and 21:1
by 1910. Such crime figures must, of course, be treated with a great deal of
caution. Clearly, until pacification was complete, Maori were only under the
partial jurisdiction of the colonial authorities. Even so, a significant amount
of Maori wrongdoing will continue to have been dealt with in "the Maori
way" and will thus not feature in the official statistics. Taking this into
account, though, and population differences, Maori law-breaking coming to
official attention (and in contrast to what the settlers might have thought)
seems to have been a fairly insignificant problem, as the prison statistics over
70
Reports from Officers in Native Districts, A to J, G, Wellington, 1872, p 24.
71
Reports from Officers in Native Districts, A to J, F, Wellington, 1875, p 7.
72
Statistics of New Zealand 1861-1911.
26
PENAL HISTORY IN COLONIAL SOCIETIES
the same period confirm: in 1872, Maori constituted only 2.3 percent of
distinct prisoners received; by 1902, 2.8 percent; 1912, 3.1 percent.
Overall, it seems clear that if the sole purpose of punishment was designed
to ensure order and control offenders, Maori penology, despite the inroads
made to Maoridom itself, was largely successful in achieving this. This,
though, is to ignore the consequences of the cultural values and meanings
that a particular mode of punishment carries with it. At this time, the Maori
punishment system, as seen through European eyes, only symbolized and
encouraged disorder and crime. The taua muru, for example, seemed to
resemble armed robbery; community participation in the punishment process
represented anarchy. Colonial mentalities thus demanded that the European
system of punishment only, with its emphasis on individual responsibility, its
growing remoteness from the public and preference for non-corporeal
sanctions and so on, would be permissible.
The formal assimilation of the Maori into Mthe British way of life" was
completed around the end of the 19th century: it would now be against this
yardstick that their conduct would be judged, regulated and sanctioned, and
by the array of government institutions such as the modern penal complex.
And it was only when put under its scrutiny that Maori offending and
imprisonment began to accelerate. In contrast to the earlier imprisonment
rates, by 1934, this figure for Maori had climbed to 8.9 percent of the prison
population, and in 1992 it stands at around 50 percent.
Punishment, culture and identity
What, then, can we learn from the way in which these various cultural factors
have influenced the form and content of modern punishment? First, such
emotions and sensibilities are likely to impose considerable restraints on any
attempts to redraw the penal estate in such a way that the prison not only
fades out of the physical background but, in addition, it begins to disappear
from the cultural milieu as well. In this respect, it is not that there has ever
been any hidden purpose behind the continuous failure of the prison. Indeed,
in any "rational" penal system, it would "make sense" for much of the public
funds it soaks up to be deployed on more humanitarian, non-custodial
programmes; it would thus "make sense" for prisoners, some time prior to
their discharge, to be located in after-care hostels situated in local
communities, so that they might more readily attune themselves to the
demands of living in "normal society" again. Yet, as we have seen, and we
know, what public reaction is likely to be hostile to any such suggestions:
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outrage, in the first instance, that prisoners should be "let out" early; and
then at the suggestion that they should be placed amongst law-abiding
members of the community. In many such cases, these feelings are likely to
provide insuperable barriers to reform. They insist that prisoners have to be
maintained in their own surroundings and subjected to an array of
criminogenic forces. This makes it much more likely that they will offend
again on their release - and so the whole process begins over again.
Secondly, and as was suggested at the outset, if cultural beliefs thus help to
define punishment, punishment itself is also a definer. The continued
presence of our existing penal framework, for all its manifest failures, is a
signifier of cultural identity with the West and everything that that entails.
As such, this particular aspect of the Western culture helps to differentiate,
for citizens of such countries, the Western way of life from that of the
Islamic world or of indigenous societies (and, formerly, the Eastern bloc).
"The Western way" of doing things is regarded as "natural"; that to be found
in other societies is then written off as "backward" or somehow "less
civilized". Hence, for example, the derogatory overtones that have become
associated with Weber’s depiction of "kadi justice" in Islamic society. For
Westerners, it can appear to be founded on arbitrariness, religiosity and
tyranny. In contrast, modern Western societies have penal codes, are secular
and democratic. Thus, from the 19th century, as Rosen73 suggests, "as
western jurisprudence shifted from a concern with natural law and its own
romanticized projections of the natural justice of the folk to an emphasis on
procedure, code and appellate hierarchy, the image of the qadi necessarily
[and unfavourably] changed as well". Equally, the public display of
’emotions’ that Islamic punishments can involve, for example, their corporeal
nature and the involvement of "the crowd", can seem barbaric to Western
sentiments, where we have become used to "order" and decorum over such
matters. In the Western way of punishing, it is most unlikely that there will
be any infliction of bodily pain; and its delivery takes place, for the most
part, out of the public gaze. We regard any departures from this standard
(and in spite of all its "failures") as uncivilized, unrestrained, as allowing
more primitive sentiments of vengeance to dictate the way we punish.
As such, this has come to be regulated and circumscribed by modem penal
bureaucracies. Occasionally, community sentiments may be so powerful that
73
28
L Rosen, Law as Culture in Islamic Society, Cambridge University Press, Cambridge, 1989,
p 58-9.
PENAL HISTORY IN COLONIAL SOCIETIES
private citizens decide to avenge themselves after particular incidents.74 By
and large, this is avoided by the subsuming of public sentiments into Justice
Department penal policies. As such, the Western way of punishment, by its
avoidance of these unsettling and "foreign" features, confirms how "civilized"
its societies have become. Indeed, the apparent convergence of state interests
and public passions that informs the Islamic penal code appears frightening
to us in the West; here, we expect the state to organize and administer
punishment divorced from any collegiance with the public. The involvement
of the latter, by and large, can only take place through indirect routes.
When emotions are roused, this division between public and state interests
means that we can voice our anger, or give rein to our curiosity, but at a safe
distance, which prevents other sensitivities prevalent in modern society from
being disturbed.
Thirdly, punishment does not just define its recipients as offenders and its
administrators and dispensers as authority figures. Its form also helps to
define and confirm our personal and national identity. Thus European
settlers in New Zealand continued to look to "the home country", Britain, for
a sense of identity and belonging. They took their identity from Britain
simply because New Zealand itself, at that point in its history, could not
provide any sense of continuity, security, familiarity and so on, in such a way
as to constitute a legitimate and recognisable national identity for them. The
prevailing colonial mentality led them to disparage and oppress Maori
culture: they could only make sense of the circumstances around them by
reference back to Britain, which was able to provide those values and
sentiments necessary for cultural identity. The settlers and their way of life
thus represented Imperial Britain; the Maori and theirs represented the values
of aboriginal people particularly fine examples of "noble savages",75 but
"savages" all the same.
Their culture and values would be threatening and likely to make the settlers,
although now fragmented from Britain itself, cling all the more rigorously to
"things British". Indeed, they would come to see themselves as "exclusive
defenders] of the Western faith ... ",76 This would give "the citizen a
glowing sense of nationhood, a national anthem to sing and to communicate
In November 1990, the home of New Zealand’s biggest mass killer was burnt down at
Aromoana in what was clearly an act of revenge by member(s) of the aggrieved community.
Nobody was ever apprehended for this offence.
W Pember Reeves, The Long White Cloud, Marshall, London, 1898.
L Hartz, The Founding of New Societies, Harcourt, Brace & World Inc., New York, 1964, p
19.
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to his children ... [it would] provide the citizen with a shield against the
Saracen, the only imaginable moral way of dealing with the man outside the
West" (idem). Accordingly, "British justice" was important to the settlers not
just, as it seemed to them, for reasons of necessity and efficiency but as
another aspect of this process of social re-creation. New Zealand was not to
be known by its Maori name, Aoteoroa, but as "the Britain of the South
Pacific". And it is this signifying ability of punishment that explains the
ferocity of the rejection by most Europeans in countries like New Zealand to
any attempts to put "the right to punish" in a culturally appropriate manner
on the political agenda. Despite the ever-increasing rate of imprisonment in
New Zealand (in 1993 around 135 per 100,000 of population), it is as if the
issue of how to punish can only be expressed in European terms. What is
the solution to be, the New Zealand Justice Minister recently asked. More
money spent on prisons or on community based sentences? Let the public
decide. Yet it must also be recognized that European penology seems so
deeply embedded in modern and post-colonial societies that significant
numbers of indigenous people would share this same conceptualisation of
punishment.
Fourthly, ironically the punishment system of the Maori (as with those of
many other pre-industrial societies) had features that some reformers see as
an alternative to or as a remedy for our Western systems: there was no
imprisonment, it was not dominated by criminal justice professionals, and it
attempted to address the needs of victims. These kinds of ideas and
strategies seem to coincide very closely, for example, with Braithwaite’s
work on "reintegrative shaming".77 And yet where we do find initiatives to
informalise the procedure of criminal justice with a view to giving the public
an enhanced presence, these are likely to bring to light feelings of
embarrassment and discomfort amongst those participating. This appears to
be so in the juvenile justice system of New Zealand. The current practice
(after the Children, Young Persons and Their Families Act 1989) is to have
cases resolved at a Family Group Conference rather than formal court. All
parties involved, offender, family, victim, social worker and police, are
invited and are likely to attend. Whatever might be said about the outcome
of the cases, it seems clear that this sense of discomfort and unease is felt not
just by the family, having to discuss the problems and trouble caused by their
child(ren), but, in addition, the victims and the police. Perhaps the very
structure, protocol and procedure of the court had in the past provided some
distance between such parties and allowed them to remain detached from one
J Braithwaite, Crime Shame and Reintegration, Cambridge University Press, 1989.
30
PENAL HISTORY IN COLONIAL SOCIETIES
another. Without this "protection", they are asked to participate in a process
of justice that has become quite unfamiliar to us in most Western countries
over the course of the last two centuries. As with the visibility of
punishment, Braithwaite78 suggests that scenes involving the public in the
criminal justice process, public displays of punishment and the shaming (and
ridiculing) of offenders have largely disappeared from the Weltanschauung
of modern societies. Hence the discomfort of the various participants in the
above example. Equally, these sensitivities would seem likely to limit the
possibilities for further reforms in this manner.
Ultimately, the Western mode of punishment, for all its cost in human and
financial terms, is still seen as the only legitimate and acceptable way
forward. There are a number of reasons why this should be so (such as the
power of penal bureaucracies to sustain themselves and so on); here, I have
tried to indicate that, in part at least, this has been because of the cultural
values which have shaped and are embedded in its form.
Braithwaite, above, n 77, p 60.
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