Do lawyers and historians think differently about history? Claims have recently been made, in the context of debates on the history of international law, that the way that lawyers treat historical texts is quite different from the way historians treat them. According to this argument, while historians think about concepts in their historical contexts, lawyers turn to history to understand the nature of present concepts and obligations. Questioning whether there is such a distinct historical method, this chapter suggests that lawyers turning to history should apply the methods of the contextual historian, just as historians examining legal matters should draw on the conceptual insights of jurists. When lawyers attempt to use a distinct lawyerly version of history, the results may not only be anachronistic but also unsatisfactory for explaining law. At the same time, the methods of history can be fruitfully drawn on by jurists, both in testing and rethinking modern juristic concepts, and in explaining the genealogy and nature of doctrines built on long precedents. For the historian, the tools of legal analysis can help identify what past societies considered to be ‘law’ and to understand the specialist languages associated with matters of governance, property and family.

This chapter explores the use of martial law courts to punish and remove a number of chiefs after the Zulu rebellion of 1906. It focuses on the debates generated by two controversial trials under martial law: that of twenty Africans for the murder of two white policemen at the start of the unrest, and that of chief Tilonko for public order offences, which led to his deportation to St Helena. Taking place at a time when the colony was at peace, these episodes raised questions both about how far civilian courts could review military powers exercised under a proclamation of martial law and about the nature and purpose of indemnity legislation. In addressing them, the Privy Council once again took a very executive-minded view of emergency powers. Although officials at the Colonial Office were more sensitive to the demands of the rule of law, they were also prepared to defer to the political demands of a self-governing colony for severe action. Comparing the response to martial law in the Cape in 1899–1902 and Natal in 1906 reveals how much fidelity to the rule of law depended on how far its targets were perceived to be part of the political community whose rights needed protection.

This chapter explores the contrasting use of ordinances to detain two men thought to be Britain’s principal political enemies in West Africa in the 1890s. It begins with the deposition and exile of Prempeh of Asante in 1896. Under Prempeh, the Asante kingdom began to revive after its decline since the war of 1873–1874. Britain now sought to bring it under its influence, by inducing Prempeh to sign a treaty of protection. When he persistently refused to accept a Resident, colonial officials in Accra generated a pretext to invade Asante. Once there, Governor Maxwell decided to detain Prempeh, though he was no rebel, had not engaged in war, and had breached no treaty. His detention and ultimate exile was the result of pure imperial aggression and the perception that he needed to be removed to secure British control of Asante. It was unconstrained by any conception of the rule of law. By contrast, Bai Bureh, who was held responsible for the outbreak of the Hut Tax revolt in Sierra Leone in 1898, was held under an ad hominem ordinance after the Law Officers reported that he could not be tried for treason or rebellion in the newly proclaimed protectorate, not being a subject.

This chapter looks at the use of martial law to detain and try British subjects in the Cape and Natal in the Anglo-Boer War, and the legal questions raised. Since the legal nature of martial law was still contested, its ambit was a matter of negotiation between various parties, military and civilian, imperial and colonial. This is shown through the debates over the creation and role of a special court to deal with rebels, and over the introduction of a limited form of martial law in the Cape ports. The right of the military to detain under martial law was repeatedly challenged in litigation which revealed that the attitude of the judges in the Cape courts was often much more liberal than that of those in the Privy Council. The Cape legislature was also unwilling to indemnify the military for its actions unless the sentences of those held in prison as a result of martial law trials were reviewed and revised. This chapter shows that, while Cape politicians often sought to rein in martial law powers by subjecting them to common law tests, both the military authorities and judges in London were more prepared to concede the executive exceptional powers in times of perceived emergency.

This chapter explains the notion of the rule of law which Victorian jurists associated with the English constitution. It examines the role of habeas corpus in securing personal liberty, and explains the debates over martial law which followed the Jamaica revolt of 1865, in which common lawyers sought to subject emergency rule to the rule of law. Despite this strong commitment to the rule of law at home, British rulers in the empire regularly introduced emergency regimes or detained political prisoners through ad hominem legislation, as was done in 1877 in the case of Abdullah, Sultan of Perak. Whereas in India, general legislation was passed to allow the detention of political prisoners and the introduction of martial law, in most of Africa, the colonial authorities used either specially enacted ad hominem ordinances or uncodified martial law powers. This was done even in East Africa, when Mwanga of Buganda and Kabagera of Bunyoro were detained and deported, even though legislation following Indian forms had been passed there. This chapter considers questions raised by the use of such emergency legislation for British perceptions of and fidelity to the rule of law.

This chapter explores the influence of public opinion on official policy towards detention, by looking at the cases of two leaders removed in the 1880s from Egypt, which was neither a colony nor a protectorate, but was under de facto British control after the invasion of 1882. The first case involves Ahmed Urabi Pasha, the Egyptian nationalist leader whose removal from power was the aim of the invasion. Given that the invasion itself represented a political volte-face for Gladstone, and in view of the support Urabi had attracted from influential Britons, the British wanted to ensure that Urabi was seen to have a fair trial in an Egyptian court. They consequently used their influence to broker a settlement under which Urabi was expelled from Egypt, and lived in voluntary exile in Ceylon. By contrast, in the second case, that of the Sudanese leader and notorious slave trader Al-Zubayr Rahma Mansur, the Foreign Office and Colonial Office were content to hold him in detention under an ad hominem ordinance at Gibraltar, at the behest of the military. With no political supporters to defend his case in London, the British authorities had no qualms about detaining him without trial.

This chapter examines the detention of African chiefs who stood in the way of British expansion in the Niger Delta in the era of the Berlin Conference. At a time when the legal conception of protectorates was being rethought, Britain began to claim more extensive jurisdiction over chiefs with whom it had signed treaties. This chapter concerns the cases of three rulers – Jaja of Opobo, Nana Olomu and Ovonramwen of Benin – each of whom had signed the standard form treaty of protection first taken to the region in 1884. Jaja had struck out a clause permitting free trade, and, when he continued to insist on controlling his rivers, he was removed to Accra. After an inquiry into his conduct, he was removed under an ordinance. In the following decade, after the creation of the Niger Coast Protectorate, Nana, who had also blocked trade after reserving his rights, was tried by a career soldier in a consular court, before also being exiled by ordinance. Ovonramwen’s deposition and removal (after an ambush of a British party on its way to Benin City) was made without trial or authorising ordinance, but by a simple assertion of power which was not legally validated until 1911.

This chapter examines the beginnings of the use of ad hominem detention laws in West Africa, in an era during which Britain sought to expand its influence over areas in which the nature of its jurisdiction was often uncertain or contested. In the 1860s and 1870s, a number of African leaders were detained without any lawful authority, at the behest of local officials. In 1881, the Colonial Office began to insist that legal mandates for such detentions were necessary, in the form of ordinances. A raft of such ordinances followed. They were used for a number of purposes: in Sierra Leone, they were used to deal with African leaders who attacked areas under British protection, or engaged in local wars. In the Gold Coast, they were used for political purposes, notably to deal with agitators who threatened to unsettle British policy towards Asante. Detention by means of ordinance was used not only where the nature of British jurisdiction was in doubt, but also where there were doubts over whether convictions could be secured of those over whom there was jurisdiction. With little political pressure in the metropolis to counter such policy, detention by ordinance became routine.

This chapter examines the use of martial law powers during four frontier wars against the Xhosa people, in 1835, 1846, 1850 and 1877, and two rebellions by mixed-race ‘Hottentot’ and Griqua people, and discusses the debates over the nature of martial law which followed. During the first two wars, martial law powers were largely used to facilitate the raising of troops, but questions were raised about whether martial law could be used to govern newly acquired areas. As the debates over the status of the territory east of the Keiskamma river showed, martial law could not be used to govern land incorporated into the colony, but it could be used to administer conquered lands. Martial law powers were also used to conduct trials and imprison rebels in 1851 and 1878, which led to debates between law officers in London and Cape Town regarding the nature of these powers. In these debates, the law officers endorsed the English common lawyers’ view which had emerged after 1865. A strong commitment to the rule of law was also expressed by the Cape Supreme Court when dealing with the case of Griqua prisoners, detained without trial at Cape Town after the rebellion of 1878.

This chapter explores the various reasons why an imperial power ostensibly committed to the rule of law frequently resorted to detention without trial in Africa. In some cases, the use of ad hominem laws reflected jurisdictional ambiguities, when the authorities were unsure over their jurisdiction to put political prisoners on trial. In others, they were a means of giving formal validity to acts of executive power, in order to prevent prisoners making habeas corpus applications. While imperial acts often went against a substantive notion of the rule of law, officials sought to give them formal legal validity, and not justify them as acts of state. This chapter reflects on what this tells us about Victorian and Edwardian understandings of the rule of law. For lawyers in the metropolis, the formal and substantive versions of the rule of law were not in tension: the sovereign lawmaker would pass emergency legislation or indemnity acts only in cases where a common lawyer would agree to its necessity. In the empire, however, the tension between the rule of law and rule by law became evident: and how far the rule of law prevailed depended more on politics and culture than on law itself.

This chapter turns to the use of ad hominem legislation to authorise the detention in the Cape of Zulu political prisoners, removed from Natal. It examines the cases of the Hlubi chief Langalibalele and the Zulu kings Cetshwayo and Dinuzulu. Each attracted the support of the family of Bishop J. W. Colenso, who drew the attention of the public in Britain to their cases. Langalibalele was banished from Natal in 1874, after a ‘customary’ trial presided over by Governor Benjamin Pine for rebellion. Although the trial attracted much criticism from the Colonial Office for violating the rule of law, political sensibilities ensured that Langalibalele remained in detention. He was soon joined by Cetshwayo, who was initially held as a prisoner of war but then detained at the Cape under another special ordinance. His subsequent release owed more to his importance for the political settlement of Zululand than to concerns about the rule of law. However, concerns that the rule of law be seen to be upheld – and the experience of Langalibalele not be repeated – informed British attitudes towards the trial of Dinuzulu for rebellion in 1889, which ended in his exile to St Helena under sentence.

This chapter considers the first cases arising from African detentions in which courts in London considered the legality of ad hominem ordinances. The first case taken to the Privy Council was that of the Mpondo chief, Sigcau, who was detained in Griqualand East in 1895. Although the Privy Council rejected the Cape government’s appeal from Chief Justice de Villiers’s decision to free him, it confirmed that a sovereign legislature could authorise ad hominem detention laws. In the second case, that of chief Sekgoma Letsholathibe, the Court of Appeal upheld a detention proclamation, rejecting arguments which claimed that the detainee had common law rights confirmed by Magna Carta, by holding that parliament had validly delegated its legislative power through the Foreign Jurisdiction Act. In the third case, that of Saad Zaghlul Pasha, the Privy Council also rejected a claim for common law rights of liberty, on the ground that, in crown colonies, the crown had full power to detain under its prerogative. These cases show that, when questions of the liberty of Africans came before English judges, they opted for a formal vision of rule by law over a substantive vision of the rule of law.

As Lobban explains, Austin thought of jurisprudence as the study of concepts, principles and distinctions that are common to various, possibly only mature, legal systems. He considers Austin’s command theory and concept of a sovereign and Austin’s thoughts on the relation between law and morality and on legal reasoning and judge-made law. On Austin’s analysis, laws properly so-called, as distinguished from rules of positive morality, are commands issued by the sovereign to the subjects, and that something is a command only if there is a sanction behind it. Lobban considers the objection that the idea of a habit of obedience cannot account for the legal authority of the lawmaker, for the idea of a succession of lawmakers or for the idea of a legally limited lawmaker. Austin argued that there is no necessary connection between law and morality, defended a version of rule-utilitarianism and held that the principle of utility is a good index to divine law. He advocated a textual approach to the interpretation of statutes, holding that the law in a precedent is to be found in its ratio decidendi and that customary rules do not become legal rules until they are recognised by courts.