How NZ’s colonial government misused laws to crush non-violent dissent at Parihaka

Armed constabulary gather at Parihaka.
Wikimedia Commons, CC BY-ND

Alexander Gillespie, University of Waikato

This week, Māori in the Taranaki region remembered the “day of plunder” – the 1881 government invasion of Parihaka, the small settlement that had come to symbolise peaceful resistance to the confiscation of Māori land.

It was one of the most brutal events in New Zealand’s past. Government troops marched into Parihaka and took control of the settlement. They systematically destroyed the community’s ability to sustain itself, suspending the ordinary course of law and imprisoning people without trial for participating in what was a justified act of non-violent resistance.

Almost 140 years later, New Zealand is beginning to make amends for this low point of civil liberties, biculturalism and tolerance in the history of the nation. The Crown has formalised its apology with the signing of the Te Pire Haeata ki Parihaka/Parihaka Reconciliation Act last week. A succession of recent governments acknowledged and apologised for “unconscionable actions at Parihaka” and a NZ$9 million reconciliation agreement was signed last year “to heal the relationship between Parihaka and the Crown”.

While it is important that we apologise and reconcile, it is equally important that we learn from the experience so it is never repeated. This is why I have looked back at how law has been wrongfully applied as an instrument of power to crush non-violent dissent.

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Justifiable non-violent action

Te Whiti o Rongomai was one of the leaders of peaceful protests at Parihaka.
Wikimedia Commons, CC BY-ND

This story began in 1866 when Te Whiti o Rongomai and Tohu Kākahi established a settlement at Parihaka on land confiscated by the government in the 1860s as a penalty against “rebels” in the Taranaki wars. Te Whiti and Tohu began to develop a community which adopted non-violent measures to resist further land loss. It quickly grew to more than 2,000 inhabitants.

Matters started to come to a head when Governor Grey’s government began opening the area for European settlement in 1878. Te Whiti resisted, rightly claiming that Māori land reserves promised in 1865 within the confiscations process had not been set aside.

Accordingly, after surveyors failed to mark out reserves promised to Māori in southern Taranaki, in March 1879 Te Whiti ordered the surveyors to be peacefully evicted. In May of the same year, followers of Te Whiti and Tohu began to plough land across the disputed areas, as an assertion of their rights to it. By the end of July, 182 ploughmen had been arrested.

Worst land laws in NZ’s history

The government responded in early August with the Māori Prisoner Trials Acts. This enabled their continued imprisonment “for offences against public order” until a date was set for their trial.

The crime of removing survey pegs or ploughing was liable for a penalty of up to two years in jail. The date for trial was continually postponed and the numbers continued to build up. Between July and September 1880, 223 more Māori were arrested for placing fences across the road in an attempt to protect their cultivations.

Only 59 fencers received a trial, but all were sent hundreds of kilometres away to prisons in the South Island. In late July, a new Māori Prisoners Act of 1880 deemed it lawful to hold people in custody. To avoid any confusion (or questioning of what was going on), a text was added that said:

All the said Natives so committed for and waiting trial … shall be deemed and taken to have been lawfully arrested and to be in lawful custody, and may be lawfully detained.

The West Coast Settlement Act 1880 allowed any armed constable to arrest without warrant anyone interfering with surveys, engaged in unlawful ploughing or fencing, or obstructing a road.

The settlement of Parihaka.
Wikimedia Commons, CC BY-ND

In 1881, a commission set up to examine the matter concluded that the Crown had failed to fulfil promises about Māori reserves. It recommended some be granted. The government started creating new reserves by late September 1881, but these were not returned to Māori outright and instead placed under the administration of a public trustee. Many were sold or leased in perpetuity by European farmers.

The new law did not resolve the situation. People in Parihaka continued to erect fences around traditional cultivation sites. The government decided to use direct action.

Fearing that the non-violent resistance was a prelude to armed conflict, the government called up 31 units of the volunteer militia and five companies of the armed constabulary and a naval brigade (655 troops and nearly 1,000 settler volunteers). They entered the site on November 5 1881.

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Passive, peaceful resistance

The troops found the road blocked by 200 children singing songs. The troops carried groups of older girls off the road and finally met residents sitting in the centre of the marae (meeting area). After reading out the Riot Act and telling those gathered to disperse, some 1,600 Parihaka inhabitants were expelled and dispersed throughout Taranaki without food or shelter.

The remaining 600 residents were issued with government passes to control their movement. Soldiers then destroyed most of the buildings at Parihaka. The government issued an indemnity order for all of those acting on behalf of the Crown at Parihaka.

Te Whiti and Tohu were arrested and charged with sedition for saying that “the land belongs to me”. They were held without trial for 16 months. With the West Coast Peace Preservation Act of 1882, the Crown decided not to prosecute the case, but the governor was given the right to retain them in custody, or free them with, or without, conditions if deemed necessary.

Local Māori were also prohibited from gathering in groups of more than 50. Anyone threatening to breach the peace could be jailed for 12 months.

A few months later the government gave itself the authority to proclaim amnesties for “offences … more or less of a political character … during the insurrections … committed by Māoris”, but Te Whiti and Tohu were not covered by this. Not until 1883 was a truly general political amnesty issued for all Māori in this matter – as if it was them who were at fault.

Alexander Gillespie, Professor of Law, University of Waikato

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Mythbusting Ancient Rome: cruel and unusual punishment

It is commonly thought that anyone in ancient Rome who killed his father, mother, or another relative was subjected to the ‘punishment of the sack’. But is this true?
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Shushma Malik, University of Roehampton and Caillan Davenport, Macquarie University

Early Roman history is full of stories about the terrible fates that befell citizens who broke the law. When a certain Tarpeia let the enemy Sabines into Rome, she was crushed and thrown headlong from a precipice above the Roman forum.

Such tales not only served as a warning for future generations, they also provided a backstory for some of Rome’s cruellest punishments. Tarpeia is one of many legendary figures who appear in Livy’s History from the Foundation of the City; regardless of whether she was a real person, it became established practice to throw traitors from the “Tarpeian Rock”.

However, not all of the cruel and unusual punishments we associate with the Romans were carried out in practice or uniformly enforced, and some changed significantly over time.

Obey thy father

Roman society was fundamentally hierarchical and patriarchal. A Roman paterfamilias (the family’s oldest living male) had, in theory, the power to kill someone within his household with impunity. This included not only those physically living under his roof, but the wider family of brothers, sisters, nieces, and nephews as well.

However, historians have debated whether the power may have been largely symbolic and little used in practice. Filippo Carlà-Uhink has argued that the power did exist, but didn’t give heads of the household carte blanche to act as they pleased. For example, the senator Quintus Fabius Maximus Eburnus is said to have killed his son for his “dubious chastity”. But punishing a crime of a sexual nature was not seen as the proper use of a father’s power, so Quintus himself was tried and exiled.

In order for the use of such power to be justified, the son had to have committed a crime against the state. When Aulus Fulvius was killed by his father for his involvement in the conspiracy of Catiline (63 BC), the head of the household was not prosecuted. This was because Catiline and his followers had committed treason by plotting to murder the consul Cicero and seize power for themselves.

A watery and crowded grave

One of the most pervasive misconceptions about Roman criminal justice concerns the penalty for parricide. Anyone who killed his father, mother, or another relative was subjected to the “punishment of the sack” (poena cullei in Latin). This allegedly involved the criminal being sewn into a leather sack together with four animals – a snake, a monkey, a rooster, and a dog – then being thrown into a river. But was such a punishment ever actually carried out?

The epitome of Livy’s History from the Foundation of the City records that in 101 B.C.:

Publicius Malleolus, who had killed his mother, was the first to be sewn into a sack and thrown into the sea.

In practice, the penalty for parricide often just involved feeding the offender to wild beasts.
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There is no mention here of any animals in the sack, nor do they appear in contemporary evidence for legal procedure in the late Roman Republic. In 80 B.C., Cicero defended a young man called Sextus Roscius on a charge of parricide, but the murderous menagerie is conspicuously absent from his defence speech.

The animals are attested in a passage from the writings of the jurist Modestinus, who lived in the mid-third century A.D. This excerpt survives because it was later quoted in the Digest compiled at the behest of the emperor Justinian in the sixth century A.D.:

The penalty of parricide, as prescribed by our ancestors, is that the culprit shall be beaten with rods stained with his blood, and then shall be sewed up in a sack with a dog, a rooster, a snake, and a monkey, and the bag cast into the depth of the sea, that is to say, if the sea is near at hand; otherwise, he shall be thrown to wild beasts, according to the constitution of the Deified Hadrian.

The snake and the monkey feature in the satirical poems of Juvenal (writing during the age of Hadrian), who suggested that the emperor Nero deserved to be “sacked” with multiple animals for murdering his mother Agrippina. But the dog and the rooster do not appear until the third century A.D., when Modestinus was writing.

The punishment fits the (Roman) crime

So was anyone ever actually punished with all these creatures? The emperor Constantine’s penalty for parricide only specified that snakes should be added to the sack. Parricides were commonly punished in other ways such as being condemned to the beasts, which was very popular in the Roman world.

One of the four animals that was said to have been placed in the sack was a snake.
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Many historians have thought that the practicalities of sewing up a dog, a monkey, a rooster, a snake, and a human in a sack together indicates that the penalty was never actually enforced – for one thing, it would be as much a punishment for the executioners as it would for the condemned.

The Romans themselves believed the poena cullei was an ancestral custom – but as with many customs, it was based on preconceptions about the nature of ancient punishments. The best-known version of the penalty for parricide, with all the ferocious fauna included, was a product of the later Roman empire. It was designed to terrify, rather than to be enforced.

The poena cullei entered the standard accounts of Roman criminal law because it fascinated medieval scholars who tried to identify the symbolism of the animals. Florike Egmond has shown that this inspired the introduction of the sack filled with creatures as a punishment in Germanic law, reflecting the belief that a civilized society should follow Roman judicial practices.

To the relief of Germans in the medieval and early modern period, such punishments were rarely carried out. On one occasion, images of the animals were sewn into the sack, as they were considered sufficient substitutes for the real thing.

Thinking of dodging the census?

There was a steep price to pay if Romans did not take part in the census.
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Taking part in the Roman census was compulsory as the state needed a complete record of citizens’ property for tax purposes. According to the first-century B.C. historian Dionysius of Halicarnassus, the sixth king of Rome Servius Tullius decreed that anyone who did not participate in the census would lose their property and be sold into slavery.

But questions remain over whether this punishment actually happened – Dionysius was writing centuries after the sixth king’s reign, and Servius Tullius was probably fictional anyway. Dionysius’ contemporary, Livy, records a different penalty – citizens who failed to register were threatened with death and imprisonment.

There is no recorded example of either penalty being enforced. Ancient historian Peter Brunt has proposed that this may have been because Romans always turned up to be registered in order to ensure that their rights as citizens would be guaranteed. It’s worth noting, however, that neither Dionysius nor Livy suggested that the law was still in use in their own time – the harsh punishments may have reflected a later conception of cruelty in early Rome, rather than any historical reality.

Writing in the late Republic, the famous lawyer and politician Cicero states that one man, Publius Annius Asellus, decided not to present himself at the census in order to circumvent an inheritance law – and he only lost the right to vote. The Roman authorities had bigger problems as they were rarely able to carry out the census effectively in the first century B.C. (the first #censusfail). Besides, if you were fighting abroad, living outside of Italy, or unable to travel owing to extreme poverty, the Romans in charge could be quite lenient.

The penalties of census slavery, the power of the father, and the punishment of the sack reflect the Romans’ own conception of their ancestors and the idea that authorities must impose harsh penalties in order to deter offenders. But we need to be careful in reconstructing the histories of such punishments. As the case of parricide shows, the versions we are familiar with today are often a collage of sources from different periods assembled to create one specific punishment that seems authentically “Roman”.

Shushma Malik, Lecturer in Classics, University of Roehampton and Caillan Davenport, Senior Lecturer in Roman History, Macquarie University

This article was originally published on The Conversation. Read the original article.