A number of works have recently been published that seek to re-narrate colonial histories, with a particular emphasis on the role of law in at once creating and marginalizing colonial subjects.1 Focusing on mid-twentieth century detention camps in the British colony of Kenya, this article illuminates a colonial history that was deeply buried in a Foreign and Commonwealth Office (FCO) building for many years. As such, the analysis supports the revelatory work of David Anderson and Caroline Elkins, who highlighted the violence that underpinned British detention and interrogation practises in Kenya.2 In particular, the article explores recently declassified colonial files, and pieces together a picture of administrative subterfuge, suppression of facts, and whitewashing atrocities, threaded through with official denial, which long outlived its colonial genesis. Against the hypothesis that detention laws created an architecture of destruction and concomitant custodial violence in Kenya, the article establishes that an accountability deficit is the legacy of detention without trial as it was practiced in colonial Kenya. By untangling a complex web of colonial records and government papers relating to Kenya, this article reveals the often insurmountable pressure that was exerted to conceal evidence of detainee violence, and the role of a highly sophisticated propaganda machine that controlled the public narrative of a violent incident when outright denial was impossible.

In 1706, Jamaica's provost marshal received a writ of escheat from the island's Supreme Court of Judicature. The writ directed him to empanel a jury of “Twelve and Lawful Men of the Neighbourhood” who would determine whether the slaves of James Whitchurch, a Jamaican merchant, should be escheated—returned—to the Crown. Did the “Negro Woman Slave Commonly Called Catalina” and her “Seaven Pickaninny” belong to Whitchurch, or could Queen Anne claim her prerogative right to an escheat because the previous owner of the slaves, Charles Delamaine, had died without an heir? The jury found in the Crown's favor, but a dissatisfied Whitchurch petitioned Queen Anne for relief, asking her to return the slaves and quiet his title. Whitchurch's petition, the first Jamaican escheat case to come before the Queen, sparked a transatlantic legal controversy as colonists, Assembly members, and imperial officials weighed the Crown's prerogative right to escheats against local political grievances and the Board of Trade's desire to encourage West Indian settlement and trade. This seemingly mundane conflict over property law quickly acquired constitutional significance, generating the kind of rights talk so familiar to early American historians: Jamaican colonists claimed the rights of Englishmen, and the Jamaican Assembly asserted an institutional capacity akin to Parliament. In this article, I contextualize colonists' rights talk, rooting their claims to English rights in concerns about the administration of property law during a crucial liminal moment in Jamaican history. As the colony transitioned from a small-scale to a large-scale plantation economy and from a society with slaves to a slave society, property and the law that governed it became the focus of intense political conflict.

The urbanization of nineteenth century America led to enormous changes in American criminal justice, as the rise of this dramatically more complex kind of human settlement posed new problems for legal regulation. Some of those problems are familiar. Many reformers emphasized the way cities eroded traditional controls on predatory crime, and they viewed modern police forces, public prosecution, and the modern penitentiary as a means of substituting formal social control for the informal controls of the past. But cities posed a different problem as well. In the city people made their homes in dense mixed-use environments that had not yet been sorted out and segregated along the lines of the modern metropolis, and when they ventured out of them they came together in the crowded streets, squares, and parks that proliferated in the nineteenth century. This complex environment made new demands on their behavior, as conduct that would have bothered no one in sparsely occupied rural spaces became problematic in the densely shared environments of the city. This change did not involve the collapse of old strategies for controlling familiar forms of bad behavior; it involved a shift in what sort of behavior counted as “bad” in the first place. The continued evolution of the urban environment, in turn, depended upon the ability of criminal justice institutions to grapple with these challenges. Shared environments require those who use them to develop and enforce rules to regulate the sharing.

One of the most striking changes in the penal culture of fin-de-siècle Europe was England's reform of adjudication and punishment. In this “de-moralization of criminality,” the system began to shed its punitive sentencing, which often saw minor offenders imprisoned with hard labor for weeks or months, to adopt a more moderate system of penalties. These concrete changes were intertwined with a broader shift in British criminological thinking from a “classical” view to a “positivist” one. The former held offending to be a rational, individual choice that required severe deterrents, whereas the latter saw criminality as a product of harsh economic and social conditions. This shift in dominant understandings of criminality prompted reformers, judicial officials, police, and policymakers to refocus on the causes of crime and its prevention, the offender as a subject, and the potential for treatment and rehabilitation through state intervention. A central practice of the resultant “penal-welfare complex” was supervised probation as a substitute for imprisonment. Scholars of penal reform have argued that the passage of the Probation of Offenders Act 1907, which initiated the professionalization of the probation service, was a key moment in this transition. With it, such arguments hold, England took a substantial step from having a discretionary, moralized criminal justice system toward having a standardized, bureaucratic one.

It was a simple tale of betrayal. In 1950, a Pennsylvania husband returned home from a business trip to find his wife—known to us today only by her initials CD—having sex with the female athletic director of a local school. This wife was only one of many women caught having sex with other women in the era following World War II. Although many closeted men and women enjoyed vibrant sexual and social lives in gay and lesbian communities, sometimes commanding officers, bosses, and police officers caught and punished men and women engaging in “deviant” sexual activity. Punishments ranged from arrests during a bar raid to a dismissal from a job. A double life in the public sphere was fragile. Scholars have paid less attention, however, to the insecure closeted lives of husbands and wives such as CD. Although certainly not all men and women who engaged in same-sex encounters entered traditional heterosexual marriages, many did. Their motivations for marrying ranged from the hope that marriage would cure same-sex desire to financial concerns. Sometimes, a husband or wife discovered his or her spouse's homosexual infidelity. A potential punitive outcome for this encounter was not an arrest, pink slip, or a dishonorable discharge; instead a spouse could end up in divorce court. Like the federal government, the military, the local police, and private employers, then, divorce courts also had to devise strategies and philosophies with which to deal with the problem of homosexuality.

On August 28, 1919, Brazil's most famous pediatrician, Dr. Carlos Arthur Moncorvo Filho, addressed his colleagues at the illustrious National Academy of Medicine in Rio de Janeiro, reminding them that consanguineous marriage was the topic of the moment. Dr. Moncorvo Filho's insistence that “everyone knew why” was a reference to a proposal made before the Senate just three months prior by Senators Eloy de Souza of the state of Pernambuco and Álvaro de Carvalho of São Paulo. The senators proposed that language prohibiting marriage between blood relatives in the recently ratified Brazilian Civil Code be amended to allow for special juridical or medical dispensation. Souza and Carvalho, with the backing of the Catholic Church and a minority of members of the Brazilian Institute of Attorneys, supported permitting marriage between third-degree relatives under special circumstances. At issue for the attorneys was how the law would deal with situations in which couples had a compelling need to marry within the third degree of kinship. A recent case of an uncle who had “deflowered” his niece and then offered to “remedy the damage” through marriage brought this issue to public debate. Marriages between uncles and their nieces and aunts and their nephews (third-degree relations) were traditional in Brazil, and Brazilian law had a long history of yielding to custom and context. However, under the new laws of the 30-year-old republic, this type of marriage was no longer legal, having been specifically prohibited by the 1916 Civil Code. Senators Souza and Carvalho, both lawyers by training, proposed reforming the Code, while their ultimately unsuccessful amendment sparked vigorous debate in both legal and medical circles on the validity of marriage restrictions within the third degree of consanguinity. As a result, physicians at Brazil's leading medical schools and their jurist counterparts at the law schools took sides on this critical issue, dividing themselves into rival camps of consanguinistas and anticonsanguinistas.