Lisa Ford - The Kings Peace : Law and Order in the British Empire

H istorians love to write about war, but the peace deserves more of our attention. The peace is something we notice in its absence, in the wee hours of Sunday morning when our neighbors are disturbing it. We lie awake wondering whether to call the policean armed, paramilitary force in the service of the state. Centuries of jurisprudence and practice are bound up in that impulse. It should give us pause.

We should pause because the details of the peace mark the limits of our citizenship and subjecthood. People in most liberal democracies cannot march or even gather in large numbers in a public place without a permit. When I was growing up in Queensland, Australia, in the 1980s, a notoriously corrupt police force was authorized to charge groups of three or more perfectly orderly people with disturbing the peace. In the United States today, most marches, however peaceful, are closely guarded by police with military-grade weapons. Indeed, in gun-saturated America, African American adults and children alike have reason to fear the use of deadly force by police in the course of routine traffic stops, for nonviolent crime, or even for playing cops and robbers at the park. Native Americans and Aboriginal Australians are more likely than most people in the world to end up in a jail cell for appearing drunk and disorderly in publica common breach of the peace. Aboriginal Australians are more likely than most people in the world to die there. The Indian state stands by while citizens violently breach the peace of Muslim minorities and has kept other regions of the diverse federation under martial law for generations in defense of everyday order. In the modern world, the blurred line between order and disorder resolves consistently into differences of race, religion, gender, and wealthparameters that bound everyones liberty.

The peace deserves our attention because, as a legal idea, it comprehends all of the mysteries of medieval and early modern state-making in the British Isles, and many of the deepest constitutional questions about empire abroadmysteries that were hotly debated in the local and global cataclysms of the seventeenth and eighteenth centuries. Though the kings peace is a vague term that has long passed into common use as a kind of ornament of speech, without any clear sense of its historical meaning, it invokes the sovereigns authority to order people in and sometimes beyond the realm. Gradually the sovereign came to be understood as the protector of the realm, preserving the life and property of his subjects by keeping the peace. He might do this by administering justice according to law (through judges and magistrates wielding delegated power), or by suspending courts and raising armies to protect the polity from internal rebellion or external attack. States still announce their arrival in international law by securing the willing or terrified adherence by citizens and subjects to the rituals of everyday order. Then and now the parameters of the peace define modern sovereignty.

But those parameters have shifted. Two seventeenth-century kings lost their thrones and one his head in disputes over when they might raise armies to bring England to order. In the late eighteenth century, George III lost thirteen American colonies not only because Parliament asserted its power to tax, but because his own power to keep the peace in unruly American port towns, Indian Country, and Quebec was deeply disputed. Such restraints are laughable in the twenty-first century. Their unraveling cannot be understood without empire.

The Kings Peace tracks the changing parameters of colonial peacekeeping in the Age of Revolutions, and through it, the fraught transformation of the British imperial constitution.

This book also explores the unfolding of some of the earliest experiments in autocracy. The first of these was partial and peculiar. In 1773, Parliament intervened to give the king some control over the enormous and growing power wielded by the East India Company in the name of the Mughal Emperor. This intervention carried all the license of imagined foreign tyranny. The Regulating Act of 1773 refined a model of gubernatorial autocracy already established in the Indian subcontinent by the East India Company. The act established a governor-general-in-council and made it answerable (albeit temporarily) to a crown appointed supreme court. From 1784, governors-in-council were overseen by the kings privy councillors, though on paper they ruled for and were employed by the Company. The third departure was quirky and important for other reasons. The convict colony of New South Wales was established in 1788 with a crown-appointed naval or military governor and military-style courts. There, the governor ruled without a council until 1824.

These experimental constitutions were not the first of their kind: early efforts to eviscerate Jamaicas assembly and Sir Edmund Andross brief reign in New York and New England demonstrate the appeal of prerogative rule in restoration England, while eighteenth-century garrison governments in the fortresses of Gibraltar and Minorca remind us that many imperial outposts operated perennially under some species of military rule. Nevertheless, the constitutional settlements in Quebec, Bengal, and New South Wales marked the advent of a new kind of empire. In Bengal and New South Wales that constitutional shift blossomed into experimental modes of policing and the militarization of the colonial peace in the early nineteenth century. All showcase sudden and massive legal divergence between the center and periphery of empiredivergence that changed empire and shaped modern states.

Eighteenth-century legal divergence unfolded within new and old constitutional praxes. It invoked, directly or indirectly, the only stable constitutional principle of empirethat colonial law should not be repugnant to metropolitan law unless local circumstances demanded it. Of course, this principle could be deployed to set powerful limits on colonial courts and legislatures. It carried within it implicit metropolitan power to review law, appeal decisions, and supervise colonial governmentto limit what could be done to the kings subjects and their interlocutors in the defense of the peace. Most of the time this maxim had a very different effect, authorizing the bastardization of basic procedural safeguards and, with it, the transformation of subjecthood. Until the end of the eighteenth century, the ramifications of this rule of colonial legal exception were nowhere more evident than in the horrifying details of British new-world slavery.