A Moral Reckoning of the British Empire

The subject of the British Empire, and the complex intellectual and emotional responses of contemporary Britons to its history, is a vast topic of nearly unfathomable material and enormous importance. It is important because the ordinary lives of British people are now daily assailed by an expanding clique of anti-colonialist activists, in academia and in key institutions throughout the country, from Parliament to community organisations, whose representation of the empire as essentially racist, violent and unlawfully acquisitive threatens to permanently poison the well of national contentment and the capacity for future leadership in the world. But the significance of any work on this topic is broader than that, for the debate about the morality of the British Empire overshadows all of the current cultural/historical disputations being conducted in Canada, Australia and New Zealand, especially in relation to racism and the occupation and settlement of land in those and other former colonies.

This review appears in the latest Quadrant.
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In his marvellous new book, Colonialism: A Moral Reckoning, Nigel Biggar, the Regius Professor of Moral and Pastoral Theology at the University of Oxford, brings his considerable forensic talents to bear in explaining pithily and with clarity why many of the accusations made against the empire are wrong and where the true moral assessment should lie. He has some skin in the game because in 2017 he and his evaluative research project, “Ethics and Empire”, were denounced by students, and then by two statements signed by about 150 academics, as a toxic defence of the empire, who urged a boycott of Biggar and his project, which was successful for a period. Biggar writes that his only crime was to have published in an article in the Times a view that the British have reason to feel pride as well as shame about the imperial past. But even that was sufficient to disturb the complacent network of post-colonial academics in university history departments. The intensity of the reaction and the tawdry and ludicrous manner of its engagement can be gauged from one email a Cambridge history professor sent his familiars: “OMG. This is serious shit … We need to SHUT THIS DOWN”.

The book Biggar has written was also threatened when Bloomsbury, which had approached him to write it, suddenly suspended publication in 2021 because, they said, “conditions are not currently favourable”, a reason which Biggar has been unable to have explained further to him by the publisher other than that in its view “public feeling does not currently support the publication of the book”. Biggar was told by a knowledgeable source that the younger staff at Bloomsbury had found the book objectionable and had protested[1]. Another failure of leadership in an erstwhile respected corporation.

Fortunately for the wider public around the world this book survived. Apart from the personal motivation to answer his professional colleagues, Biggar is eloquent as to the more general and urgent importance of the task: 

So the task of making an overall moral judgment about it presents a major challenge. Yet it is a challenge that I and others like me have to face. What forces the challenge upon us is the fact that so many have evidently rushed to judgment and condemn British colonialism as a whole for its racist, rapacious, exploitative, violent “logic”, talking of “colonialism” and “slavery” in the same breath as if they were identical. Those of us who dissent from this judgment are bound to come up with a better, more complicated, more discriminate one.

Because 

… this is not about nostalgia. Rather, it is about discriminate identification with liberal, humanitarian principles and endeavours of the colonial past that deserve to be admired, owned and carried forward into the future. And it is about not letting what Elie Kedourie called “the canker of imaginary guilt” cripple the self-confidence of the British—together with Canadians, Australians and New Zealanders—in their role as important pillars of the liberal international order.

Biggar is an ethicist and the book is written to discern the correct ethical assessment of the conduct of the empire, not to review its history. He encounters objections from historians because he is not an academic historian, but, as he told the New Culture Forum in a recent interview, he is quick to point out that the objectors are not ethicists, even though they are apparently prepared to make large moral judgments without the requisite academic training, and he also points to the clamorous endorsements of his book by many respected historians with which it is embellished. There is also the fact that the book was number ten in the Sunday Times best-seller list about two weeks after publication. That is not surprising and is indicative of another shameful effect of the politicised and impoverished nature of school and university history teaching in the United Kingdom (and in Australia): the hunger of the general public to be informed of the facts and arguments which the established institutions of learning are reluctant to teach them.

Biggar has, however, informed himself extensively from secondary sources as to the historical record, taking pains to ensure he has read both the conventionally motivated objective histories and the contemporary post-colonial inspired histories, his capacious research documented in the extensive notes consolidated into 131 pages at the back of the book. These notes are not only a safeguard against his objectors, but are well worth reading, for in them Biggar details, sometimes amusingly, but always with an amount of restrained outrage, the skirmishes with some of his more oleaginous critics, and exposes some of the more stupefying falsities, omissions, evasions and errors of the more dubious post-colonial historians.

Of great value are the ethical insights which Biggar introduces into the familiar and platitudinous debates about the empire which insightfully flip our expectations and provide an extended and constructive revaluation of tired oppositions. He tells us, for example, that the Easter Rising in Ireland in 1916 did not reflect widespread opposition to Ireland’s connection with the empire but was intended by a revolutionary elite to disrupt the growing contentment of the people with the existing political settlement. Of the frequent saw that we should not judge the past by the standard of the present, Biggar says it is true and untrue: untrue if it means we should not judge at all, but true if it means some moral truths were not evident to our ancestors and moral judgments should take into account the very different circumstances of the past. Thus, the institution of slavery, which had existed from time immemorial around the known world before doubts began to be expressed, mainly by British Christians and politicians, in the late eighteenth century, was not an obvious evil to those who engaged in it. The use of violence, even accepting the maxim that it would only ever be morally justified if restricted to the minimum required, may differ as to its degree of acceptability in the generally peaceful current, post-Holocaust age of mutually binding universal treaties as opposed to the unstable collisions between weak states or vastly different cultures which occurred in the nineteenth and early twentieth centuries.

A belief in basic human equality does not mean that all cultures are equal or that social hierarchies are immoral. A culture that can write is superior, says Biggar, in that technical respect to one that cannot, and a culture that abhors human sacrifice is superior in that moral respect to one that practises it, and every large-scale human society has to work out an efficient division of labour to the overall benefit of all. Biggar is also not a pacifist, as he believes that the maintenance of just law and order sometimes requires physical coercion, and the basic moral responsibility of government, local or imperial, is to maintain law and order. It is not to the point to criticise imperial governors or proconsuls, like Sir Alfred Milner in South Africa, for being interested only in power:

While some may take that to be morally damning, it is in fact, banal. Anyone desiring to achieve something naturally wants the power to achieve it. Wanting power is, as such, morally neutral. In order to evaluate it, we need to know what Milner wanted to achieve through the establishment of supreme British power in South Africa.

As Biggar convincingly shows, Milner was motivated in his attempt to create a federation of states under British suzerainty, as he stated many times in writing, to ensure stability in Africa between dissident states, despite Boer intransigence concerning racial policy, and to give black Africans protection from oppression and wrong, something the British felt duty bound to provide. In the case of South Africa, ultimately this endeavour failed as the British were unable to obtain agreement from the Boer republics to guarantee the voting franchise to black Africans in those republics, as they had in the Cape Colony, in the Treaty of Vereeniging of 1902, leading in due course to the Union of South Africa adopting apartheid in later years. Biggar says that this was a morally justifiable compromise at the time, recognising the limits of imperial power, avoiding having peace undermined in the near future in the hope that change would be worked on Boer culture while being absorbed into the British imperial network.

The power that came with the establishment of British sovereignty, by cession, through just war or otherwise, was necessary to impose law and order for all subjects and to ensure as best officialdom could that the course of settlement did not descend into racial conflict and anarchy. That was bad for business, but what was bad for business was also bad for the humanitarian mission that the British believed came with free trade and the foundation of the rule of law. George Orwell regarded the empire as a money-making exercise, but he also wrote in 1942 in his essay on Rudyard Kipling that it was a mistake to assume that the officials and officers who administered the empire in the nineteenth century, during its greatest phase of expansion, were motivated purely by power. That view, he thought, was a result of the conditioning of the modern mind through having experienced the serious consequences of the rise of militarised states for whom military power was their raison d’être, and the necessarily violent response that they called forth during two world wars. The British imperialist had believed that there was a “Law” which he had a responsibility to impose for the long-term betterment of everyone’s condition of life under British supervision. In saying this Orwell was not ignoring the jingoism and occasional brutality of the empire: “one is merely saying that the nineteenth-century outlook and the modern gangster outlook are two different things”. Biggar’s work goes a long way to persuade us that this is the better moral assessment of the empire. Ultimately, as Biggar points out, the allegedly “racist” empire exhausted itself defending liberal civilisation by staying in the field, for a period virtually alone, against history’s most murderous attempt at aggressive conquest by real racists and genocidals.

In his chapter “Land, Settlers and ‘Conquest’”, Biggar unpicks the fraught debate about whether the colonists stole the land from indigenous people to which they assert in contemporary times a right of ownership. Imperial declarations of sovereignty over discovered lands were necessary for the exclusion of other European powers and for the making and enforcement of laws and the maintenance of internal order, including the regulation of dealings between settlers and native populations. Given that in places like Africa, North America, Canada and New Zealand the possession of lands by indigenous people was usually the result of internal wars of acquisition and enslavement, the decision of colonisers, once sovereignty was established, to apply their laws to the question of land ownership and occupation was usually a better deal for those people than they would have been afforded by their indigenous enemies. Moreover, the European “doctrine of discovery” recognised that native peoples should have a legal right to possess, occupy and use their lands according to their local laws, if they existed, and Europeans could only come to possess them by consent, or through the conduct of a just war resulting in conquest. Thereafter, the introduction of the English common law of land ownership could be effected by exercising sovereign law-making powers to override local laws. Sovereignty and settlement expanded in those countries most of the time through treaty-making.

Captain Cook’s instructions from the Admiralty were to take possession of convenient situations in Australia with the consent of the native peoples, but Australia turned out to be a special case of a land in which no sovereignty was being exercised by an aboriginal nation through legislative, executive or judicial organs, like those of the Cherokee nation in America, as it was put by Justice Gibbs in 1979 in Coe v The Commonwealth when dismissing a pleaded claim to the pre-existence of a sovereign aboriginal nation[2]. This view is consistent with authorities such as Emerich de Vattel in his Law of Nations (1797) that allowed for annexation of territory that was inhabited but uncultivated. It was therefore open to the colonists, according to the prevailing law of nations at the time, to acquire sovereignty by annexation even though there were inhabitants. But there was a separate principle in English law for determining whether upon annexation of such a territory the English common law was planted by the settlers when carrying out the necessary acts of occupation by cultivation and settlement to effect annexation.

Blackstone in his Commentaries of the Laws of England (1824) stated that it was a pre-condition of the sub-plantation of the common law that the new colony be “uninhabited”, though he also used the slightly more ambiguous phrase of “desert and uncultivated”. By 1883 the Privy Council laid down in Cooper v Stuart that if there was “a tract of territory practically unoccupied, without settled inhabitants or settled law” with “no land law or tenure existing”, as Lord Watson described New South Wales, then the common law was introduced to the extent it was applicable in local conditions[3].

Where there was a settled law discernible amongst inhabitants, though they had no unified political authority, there was space in this principle to recognise those laws upon annexation. The problem in New South Wales was that the governors and settlers could not discern any system of settled law, in particular any law relating to the ownership of land. As Biggar says, the land was found to be populated only with foragers, not farmers settled on bounded land. The settlers no doubt saw these matters through the lens of the Enlightenment philosophers, like John Locke, who thought that for a system of land ownership and possession to exist there needed to be evidence of labour mixed with the land through agricultural activity, cultivation and construction. Because New South Wales had no such discernible system of “settled law” it was thought, as stated in Cooper v Stuart and by the New South Wales court in 1847 in Attorney-General v Brown, that the common law of England, including its land law, became established by the settlement of the colony to the exclusion of any native title[4].

As a matter of international law, then, that is, the only coherent law that was available to apply to it, Australia’s acquisition by the empire proceeded by what was known as peaceful annexation and settlement, not by cession or conquest. That need not necessarily have deprived the Aboriginal people of rights to the land, even at that time, but the lack of any political authority with whom to engage and negotiate was mirrored in the lack of any discernible proprietary presence in the land. It might be thought, and was probably generally imagined by the imperial authorities in 1788, that it was unlikely that a system of enforceable land law could exist without a unified political system, but the possibility was not excluded by English law.

Biggar also says that the British settlement proceeded on the assumption that the land was terra nullius—belonging to no one. Though he does not mention the case, this was the approach taken by the High Court in Mabo in 1992[5]. That translation of terra nullius suggests the doctrine was about land ownership. Another translation is “nobody’s land”, more ambiguous as to whether it concerns ownership or occupation. After all, nullius means zero or nothing in Latin. The phrase more truly refers to an uninhabited land. That is the sense in which it was used by Justice Brennan in Mabo. But the later international law doctrine of terra nullius was concerned with sovereignty and was not the same as the law of England in 1788 relating to whether or not the common law of land ownership was introduced.

None of the authorities mentioned above except Mabo referred to the doctrine of terra nullius, nor did the instructions given to Captain Cook or Arthur Phillip. It was a concept first written about by international law scholars in the late nineteenth century. Yet the doctrine was discussed by the High Court in Mabo as if it had been consciously and even disingenuously applied to the annexation of Australia by imperial authorities by adopting a fictional assumption that the land in Australia was uninhabited, or as if the doctrine was illegitimately extended to apply to land that was inhabited by “backward peoples”[6]. Justice Brennan stated that the British acquisition of New South Wales was dependent on the settlement of territory that was terra nullius consequent upon discovery, citing Cooper v Stuart[7]. However, as mentioned above, in that case Lord Watson did not mention terra nullius and was dealing not with the question of sovereignty, but with the question of whether the common law of England was introduced into New South Wales at the time of annexation. Lord Watson accepted that where there was “settled law” the common law of England would not immediately apply, but if not (even if inhabited) it would.

It is reasonably arguable that by its manner of introducing the concept of terra nullius into this debate, the High Court elided the issues of sovereignty and whether or not English law should recognise any local land law, which had the effect of suggesting that by a sleight of hand the colonists impermissibly used an “enlarged notion of terra nullius” to treat inhabited land as uninhabited land for the purposes of introducing the common law to the exclusion of any existing law of native land use or ownership, when all the court had to do was apply the available common law principles to recognise what was by then accepted as a system of law by Australian courts that should be recognised. The evidence in the case about the Murray Islands, the actual land with which Mabo was concerned, was that the native population, while lacking any organised political authority, did have customs which recognised that particular people who cultivated areas of land “owned” that land. That might have been the end of it, but the High Court extended its consideration to what had happened in New South Wales in 1788, and by the time of Mabo perceptions had changed and Australian courts had discovered “a subtle and elaborate system” of Aboriginal customs that regulated Aboriginal life such that it was thought that New South Wales should have been regarded in 1788 as a settled or occupied territory[8]. As Justice Brennan said, the facts had changed, and, like Lord Keynes, when the facts change, the Australian common law changes its mind. Biggar does not explore the intricacies of Mabo but would presumably agree that despite its revaluations, the legal process of acquisition of New South Wales and the assumptions that accompanied it were not freighted with moral iniquity.

Of course, the High Court was not about to invalidate the sovereignty of the Australian Crown, and did not have the power to do so, and the fundamental problem remained, about which the facts did not change, that the Aboriginal people had no political unity or authority with whom the colonists could have negotiated a treaty, thus permitting annexation, but the mantra that terra nullius was applied as a central plank of imperial racism that flowed into public discourse after Mabo has engendered a good deal of the more recent offence felt by Aboriginal people against the empire for the settlement of Australia. If one takes the doctrine out of the equation and accepts that annexation was a consequence of there being no existing society united permanently for political action (that is, exercising sovereignty), the annexation of Australia was perfectly consistent with the modes of acquisition of new lands as it was understood under international law at the time. It may be justifiable to complain, as Justice Brennan did in his influential judgment, that a manner of annexation that involved violent expulsion of indigenous people from the land they used or the massacre of their populations, is repugnant, but that action does not necessarily flow from the valid act of annexation. That is a separate topic, which Biggar addresses in his chapter, “Cultural Assimilation and ‘Genocide’”.

In Mabo “native title” itself was found to have a kaleidoscopic scope, and could be proprietary, usufructuary or otherwise in nature, according to the laws and customs of the indigenous people in relation to the land. Current attempts by activists to create for the Aborigines advanced agricultural technologies and other connexions to the land, and to equate the frontier fighting between settlers and Aborigines with European notions of formal “wars”, in order to suggest the existence of some unity or central national organisation in the Aboriginal peoples, are part of a political campaign to characterise native title as being as proprietary in nature as possible and integral to a united political organisation, such that it can be more persuasively suggested that the Aboriginal people were in fact exercising a form of sovereignty which justifies the current complaint that the land was “never ceded”. These efforts may backfire on Aboriginal interests: the first patronises and undermines the value of the actual skills of their stewardship of the bush by acknowledging that Western techniques are superior; and the loss of the “Aboriginal Wars” would have the consequence that the Aborigines were conquered and therefore forfeited any title they may have had in the conquered lands upon the exercise of sovereignty by the King.

Biggar mentions a more general moral precept, or principle of “natural law”, that was thought by authorities such as Locke and Vattel to apply regardless of whether there were in existence legal systems to determine rights to discovered land or the capacity to make treaties with native peoples on such land: the moral duty to develop and make the best of land available to you, which if you refuse to fulfil, allowing abundant but uncultivated land to lay fallow, there would be a risk of it being taken by others whose needs dictated that it be possessed. Justice Brennan mentions this principle in Mabo[9] only to say it would not apply in the Murray Islands, though whether it had application to New South Wales was not canvassed.

When it comes to assimilation, Biggar makes the point that no culture has a moral right to immunity from change or even survival, and that it is not inappropriate to regard the coming of European white colonists as any different from the waves of immigration that brought indigenous people to a territory in the first place. The consequences of technically superior cultures engaging with technically inferior ones is bound to result in the erosion of one by the other. Biggar insists this is not “cultural genocide”, and its inevitability should not be equated with an intentional racist strategy to exterminate indigenous peoples or forever condemn them to an inferior level of existence, as some anti-colonialists assert. Biggar cites examples of native people recognising the superiority of European culture and technology and expressing gratitude for the efforts made to educate them in that culture.

What of physical genocide? Again, Biggar rejects the notion that there existed, even in the oft-cited example of Tasmania, a deliberate plan to extirpate the Aborigines, and that while there were clashes with settlers and deaths, many Aborigines died of disease or at the hands of other Aborigines, as they had been doing prior to annexation. Biggar finds the work done by Quadrant’s editor, Keith Windschuttle, endorsed by Geoffrey Blainey, persuasive in this regard, though he does not accept that the Aborigines were not fighting to resist invasion of the land which they used for hunting and gathering.

The Aborigines did not give up their living space without some fighting, and Biggar accepts that the endeavours of the Colonial Office and the governors to restrain settler violence and the taking over of land used by Aborigines often failed, but argues that this was not morally delinquent because moral principles must adjust to circumstances in order to maintain prudence, and that the practical, military and political constraints upon the authorities meant that the enforcement of the authorities’ policy of protection was beyond their capability. One example he gives is the alleged “ethnic cleansing” by Governor Arthur using a cordon of settlers to drive Aborigines into different territory, which Henry Reynolds has claimed Arthur did because he feared the “extirpation of the Colony”. In fact, the cordon was intended to stop a cycle of frontier violence because Arthur, as he recorded, but Reynolds misquoted, feared the “extirpation of the aborigines”.

As part of his conclusion on colonialism, Biggar makes what is surely a cardinal point with relevance to the controversy in Australia over the Voice and the growing claims for political independence for Aborigines and potential reparations based on past injustices of the type Biggar concludes largely never occurred (quoting the legal philosopher Jeremy Waldron):

… our focus should lie on addressing present injustices rather than trying to untangle historic injustices: “it is the impulse to justice now that should lead the way … not the reparation of something whose wrongness is understood primarily in relation to conditions that no longer obtain. Entitlements … fade with time, counterfactuals … are impossible to verify, injustices … are overtaken by circumstances … It may make more sense … to argue for a distributive—or redistributive—account of aspects of justice, which seeks action to redress present disadvantage, whatever its origins.”

Biggar investigates the six alleged worst instances of colonial violence: the First Opium War of 1839, the suppression of the Indian Mutiny in 1857, the military invasion of Benin city in 1897, the Boer War of 1899 to 1902, the shooting of civilians at Amritsar in 1919, and the suppression of the Mau Mau rebellion in Kenya between 1952 and 1960. Of these he concludes that the attack on Canton was not justified, as the mere slighting of imperial honour by the Chinese blockade of the British and seizure of their opium stocks was not a just cause for war, that the initial administration of “camps of refuge” during the Boer War involved culpable negligence, and that during the Indian Mutiny, at Amritsar and in Kenya there were instances of disproportionate and indiscriminate violence, but that otherwise the violence involved in these engagements was justified and proportionate.

Biggar’s arguments are persuasive in clearing the officials and politicians responsible for imperial management from accusations of systemic and essential racism, greed and violence, even though he finds some instances of culpability with regard to particular incidents. If he does not successfully exculpate many anonymous settlers and businessmen who emigrated, settled and exploited the colonies, theirs is not the case he aims to meet, and he freely admits the private endeavours of colonists were sometimes exploitative and unfair to the local population. But emigration to the colonies and the pursuit of trade in them was not a matter usually controlled by the state. His main concern is the allegation that the empire, as an institution directed from the imperial centre of government in London, was essentially vicious.

He accepts that the worst infringements of decency usually occurred at the periphery of the empire, and were more prevalent as the number of settlers and military occupiers grew and the Victorian sense of cultural superiority was fostered. When Biggar assesses whether the Raj was subjected to economic exploitation, his response is similar to the “What did the Romans ever do for us?” scene from Life of Brian. And when the state had to step in, it did, as when it cancelled the formal rule of the East India Company after the Indian Mutiny in 1857 and by the many and constant investigations and reports commissioned by imperial authorities into the worst incidents of abuse, after which reform followed. Biggar finds the empire had a salving “built-in capacity for self-criticism” and a “self-corrective mechanism of a type unknown to earlier … conquerors”.

In attempting a moral reckoning, Biggar assays a debit and credit list for the empire but concludes: “Such varied goods and evils cannot be easily weighed against each other, so that we can conclude that one set was more evil than another. Here, as often elsewhere, a utilitarian calculation cannot be conducted rationally.” The available conclusion is:

… as my moral analysis of the British Empire has shown, it is entirely inappropriate to liken it to Nazism. Nor was it essentially racist or disproportionately violent. Nor, with respect to Marxist critics, was it essentially exploitative. From early decades of the nineteenth century its natural, innocent concerns to promote trade and maintain strategic advantage were increasingly supplemented and tempered by Christian humanitarianism, a commitment to public service and a liberal vision of political life.

In his Epilogue, Biggar seeks to understand the motivations of the anti-colonial activists and historians, and finds that the likely drivers are material political interests, moral cowardice, a lack of a proper historical and ethical education and a degenerate Christian sensibility in which a masochistic exaggeration of the empire’s sins is broadcast as a self-righteous display of repentance.

Reading this analysis, in the context of the material about the empire presented in this book, the reader might be forgiven for considering that there is another sneaking motivation for the current fashion of denigration of the empire and its participants. Is the refusal to accept that any good can be salvaged from the imperial phase just a form of envy, dressed up as moral indignation, at what appears to us to be an extraordinary but alien race of people: British people who had a better sense of who they were, what they stood for and where they were going, than we do; people who stuck to plans, indeed, who actually had plans, and long-term plans at that, with an ambition that gave them the persistence to see them through, and which they more often than not did see through; people whose ambitions for the empire and its subjects were accompanied by a fair degree of success; people who had hope and self-confidence of a type which our amoral, ethically addled age of unbelief and superstition finds difficult to muster. But this is not a counsel of despair, for one of the consequences of the appalling superficiality of anti-colonialism is that it will reach, and has perhaps already reached, a nadir leading to an inevitable reaction, one prefiguring of which is this impressive work of research, labour, erudition and pedagogic skill, delivered in the great English tradition of the fearless Awkward Squad.

Colonialism: A Moral Reckoning
by Nigel Biggar
William Collins, 2023, 428 pages, $34.99

Matthew White SC is a Sydney barrister. He discussed Niki Savva’s Bulldozed in the March issue and Duncan Smith’s novel Conquest by Concept in April.

[1] Anatomy of a Book Cancellation, Nigel Biggar, Compact 3 February 2023

[2] (1979) 53 ALJR 403

[3] (1883) 14 App Cas 286 at 291

[4] (1847) 1 Legge 312 at 316

[5]Mabo v Queensland (No 2) (1992) 175 CLR 1

[6] Brennan J at 32-33

[7] At 34

[8] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 267

[9] At 33