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Colonizing Crime Control

From: Reviews in American History
Volume 39, Number 2, June 2011
pp. 274-279 | 10.1353/rah.2011.0071

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In my youth I went to courthouses in western Kentucky, looking for the oldest documents I could find. Years later, remembering the excitement I felt when finding those aging pages, I took my students to courthouses, assigning them to write papers about what they found. That was when I understood just how difficult it can be to connect the ordinary business of the courts to larger historical issues. In Kentucky, I found some cases involving Indians, but not very many, and they seemed peripheral to the main business of the courts. Reading Settler Sovereignty makes me realize I should have paid a lot more attention to those cases. I had no idea I was seeing the spread of state authority over indigenous peoples through its criminal justice system.

Settler Sovereignty is local history, rooted in detailed examinations of court records in Georgia and New South Wales, Australia. Lisa Ford skillfully uses these local accounts to tell a global narrative, "a peculiar chapter in Lauren Benton's story about the global drive of colonial states to control plural regimes of law" (p. 4). Lauren Benton's Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (2002) makes the connection between colonizing and law; colonizers tolerated indigenous systems of justice, passing through a period of pluralism, before imposing their legal systems on conquered peoples. In Ford's telling of the story, settlers perfected their power over indigenous peoples by claiming the right to rule everyone within their jurisdictions. She recognizes Locke, Blackstone, and Vatel's influence, but argues that well-read and well-traveled bureaucrats did the real work of colonial conquest in courthouses scattered around the world. In Georgia and New South Wales, many small-scale interactions, prosecutions for ordinary crimes, exemplified a global shift in British legal practices, a change from pluralism in favor of territorialism.

The first portion of Settler Sovereignty describes the pluralism that preceded territoriality. Ford writes precisely, taking unusual care in the words she chooses. Hers is a limited lexicon; she knows the right words, and not many synonyms will do. The word "lynching," for example, appears just one time, on page 109. "A posse of settlers," she writes, made an attempt on a jail holding a Creek chief charged with raping a white woman. Ford cites a "rumor" to suggest that the posse did not intend to lynch the chief, but to release him. So, the sole time she utters the word "lynch," it is to describe something the mob may not have intended to do. It is not clear from the text if the word came from the settlers or from Ford. More often she is much more careful. Before the 1820s, she writes, courts did not uniformly try either the settlers or the indigenous peoples for their violence. Authorities did not often construe either settler violence against indigenous people, violence of indigenous people against the settlers, or indigenous violence against other indigenous people as a crime (p. 3). Ford gives a fuller explanation later when she discusses "retaliation," which, she says, "underpinned crucial aspects of southeastern indigenous social discipline." For the Creek and Cherokee Nations, murder required the kin of the deceased to kill the murderer. If the government could not "do justice," then the kin of the deceased "took satisfaction." The state tolerated this, in part because these native tenets of reciprocity resonated with English common law (p. 35). In the years between first contact and the 1820s, settlers and indigenous peoples developed their similar, but historically distinct, ideas about retaliation "into a body of syncretic, uneven, and at times mutually misunderstood practices" (p. 36). Settlers and indigenous peoples informally negotiated their violence in ways that limited the space for government intervention. "Negotiate" is the right word: the settlers lacked the power to simply assert control; they had to use diplomacy, thereby acknowledging indigenous behaviors and customs. Indigenous people ordinarily acted outside any formal law to control crime. Ford quotes "mid-nineteenth-century observers" in New South Wales as saying that Aborigines administered "collective punishment" to miscreants. Ford herself says they formed armed parties to retaliate for crimes committed (p. 75). Later she writes that "the limited nature of state...