The King’s Plunder,the King’s Justice: Sovereignty in British India,1756–76

Introduction

The following article is an attempt to contribute to an understanding of sovereignty in late eighteenth-century Britain and British India. It does so by examining the role of the King in his sovereign authorization of the East India Company. This sovereign authorization is illustrated through a study of the articulation of two elements from within the King’s prerogative in Britain between the 1750s and the 1770s as it applied to the East India Company: (a) the authority to sanction prize money, itself derived from the war and peace making authority of the King and (b) the authority to set up the ‘King’s Bench’, that is, the Supreme Court in 1773, where the King is virtually present and from which supreme juridical writs may be issued. In measuring the nature and scope of the King’s sovereignty, the article hopes to further the understanding of empire and its adumbrations in the Age of Enlightenment. It does so by arguing that on the one hand, the conquests of the subcontinent will have to be related directly to a conceptualization of the King’s sovereignty, specifically, war and peace making authority, and the laws of prize. And on the other hand, what is broadly seen as ‘custom’ cannot be understood outside the constituting ambit of sovereignty, that is, that by which laws were ultimately authorized. The specific implications of this for the development of laws in the subcontinent are sketched out later in the article.

The vast extant literature on the East India Company has not adequately recognized the role of the King in the authorization and legitimization of the Company. Representative is Philip Stern’s recent work The Company State, which echoes J. R. Seeley in arguing that ‘the “conquests” in India, became British only when Parliament asserted its rights to them, and the Company, after the fact’. ⁴ On the contrary, as we show in what follows, even as central an event as the reconquest of Calcutta and the Battle of Plassey has to be understood only through what the legal officers of the Crown called the King’s ‘right of sovereignty’. This legitimization of the Company’s conquests was in fact to be justified, as this article will argue, among other things, by a specific branch of the war and peace making authority of the King, that is, the law relating to prize. Prize laws themselves could also be specifically related to an Act of the Parliament passed in 1754, which extended the Mutiny Act to the East Indies, thereby once again declaring that the Mutiny Acts and martial law applicable in the East India territories were derived from the King’s prerogative, his war and peace making authority, even as this in effect meant that British India was fixed in a permanent state of martial law, while the Isles were not. ⁵ In an analogous way, the setting up of the Supreme Court as a ‘King’s Bench’, with supreme authority only subject to the King-in-Council, was a measure of the role of the King in the authorization of the framework of justice established in the subcontinent.

To insist on the role of the King in the matters of conquest, that is, war and peace making authority, and justice, is not to belittle the role of the Parliament. The extant authoritative scholarship from Maitland to Pocock and Halliday ⁶ has shown that the conception of a neat separation of powers between the legislative, executive and judiciary did not exist in the late eighteenth century. And neither did the logical implication—that an increase in the powers of one automatically meant a decrease in the powers of the other(s)—exist. One could not simply separate the King from the Parliament, as though they were discrete entities. However, in matters of war and peace and justice, the King as a figure, ⁷ and not as an individual mortal, was indeed the immediate authority. This article is an attempt to contribute to an understanding of sovereignty through a study of the two aspects of the King’s sovereignty—conquest and justice—as it related to the East India Company. This will be of relevance for a general conceptualization of British sovereignty, as well as its specific institutional expressions, in the late eighteenth century.

By underlining the role of the King in the legitimization of the Company, this article reveals something about the nature of conquest and the operations of law. In this context, in the third section of the article, we will critique a recent line of enquiry in contemporary historical scholarship on the East India Company, to be found in, among others, the work of Robert Travers and Jon Wilson. ⁸ These works argue for the subcontinental law and custom as being of constitutive importance in the framing of the Company’s laws. On the other hand, we argue that since the East India Company’s conquests and juridical settlements were ultimately authorized by the King, it is the latter rather than any putative native custom or tradition which would need to be held as constitutive. In fact, according to eighteenth-century jurisprudence, custom itself had to be reasonable, that is, ‘of artificial and legal reason, warranted by authority of law’. ⁹ This is a fact that has also been documented by the extant scholarship on eighteenth-century English law, showing the opposition of custom to law to be a false one. It is within this orientation that customs of the subcontinent were treated; they were legitimized only by competent authority, an authority that was ultimately derived from the King. This will be elaborated upon, through an examination of some contemporary works on the subject, in the concluding section of the article.

At this juncture, it is important to examine the King’s prerogative, which was always linked to the question of sovereignty. ¹⁰ Prerogative, in so far as it was directly related to war and peace as well as justice, ¹¹ and thereby of critical relevance to the East India Company’s activities in the East, requires precise delineation. Blackstone’s authoritative Commentaries on the Laws of England may be taken as an orienting frame. Blackstone writes that prerogative, as the word itself suggests, means ‘over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity’. ¹² The King has the ‘sole prerogative of making war and peace’, and the declaration of war is important not merely as a means by which to give advance warning, but to make clear that it is the sovereign at war and not a private subject. All the same a caveat is proposed.

When discussing our second concern, justice, the Commentaries have the following to say:

A court is defined to be a place wherein justice is judicially administered. And, as by our excellent constitution the sole executive power of the laws is vested in the person of the king, it will follow that all courts of justice, which are the medium by which he administers the laws, are derived from the power of the crown. ¹⁴

Among the councils of the King, the highest of the land are the Parliament (King-in-Parliament), the House of Lords, the Judges and what is mostly referred to as The Council, that is, the Privy Council.

The King’s Prize ¹⁵ Money

In 1804, Lieutenant General George Harris, of Srirangapatnam fame, sat down to write to the President of the Board of Control and the Court of Directors of the East India Company, in defence of his past conduct. Harris was accused of illegally apportioning to himself one-eighth of the prize money, that is, 324,907 pagodas or what came to approximately 130,000 pounds that was acquired in the Battle of Srirangapatnam in 1799. ¹⁶ To get a sense of perspective, one may say that this amount was slightly over 4 per cent of the entire revenue collected from Bihar, Bengal and Orissa in the highly revised, and inflated, rental amount of 1793; the entire prize money amounted to approximately 33.5 per cent of the latter. Lieutenant Harris, in the defence of what he considered his right to one-eighth of the prize money, was filled with righteous indignation, writing:

…thus devoted to the cause of my king and country you my lord may judge of my feelings when I accidentally learn that the court of directors think fit to draw me from that shade to which I had retired, to impeach the propriety of my conduct in regard to the prize money of Srirangapatnam and to question my right to the share allotted to me. ¹⁷

While the prize money and its distribution were recognized in right and practice, the point of contention was whether the claim that Lieutenant Harris, as a commander-in-chief, had the right to one-eighth of the plunder—as prize was interchangeably called—followed the established norms. The dispute lay in clarifying the rules of prize distribution where ‘established usages’ were invoked, even while it was not entirely clear what these were. The Court of Directors of the East India Company held that the ‘established usages’ had to refer to the rules found in the distribution of naval prize, where, if there were more than one commander, the one-eighth share had to be divided between the commanders, whereas for Lieutenant Harris, the ‘established usages’ stood for the actions of British land forces in the subcontinent, where from ‘immortal Clive’ onwards, one-eighth of the share fell solely to the commanding officer. ¹⁸

In the Battle of Srirangapatnam, while the commander-in-chief was awarded over three-and-a-half lakh pagodas as prize, ‘private native troops’ were awarded twelve pagodas, the European rank and file eighteen pagodas, the general officers on the staff 27,000 pagodas each, and the generals got a third more. ¹⁹ Other than citing precedent in the many wars fought in India, as well as the recently concluded conquest of Delhi by Lord Lake, Harris argued in his defence that not only had Governor General Wellesley explicitly delegated to him the task of prize distribution after the war, he himself had followed strict protocol in constituting a committee that was elected by officers and the rank and file which had taken charge of prize distribution. Furthermore, he suggested that to be governed by the precedents in naval prizes did not take into account the fact that the wars in the subcontinent involved native troops, and the strict application of naval prize procedures would, in effect, erase the distinction between native troops and the British unfairly, notwithstanding the fact that British soldiers were, rightly, more highly paid than native sepoys. ²⁰ On the other hand, apart from the accusation of having exceeded his share, the Court of Directors also accused Lieutenant Harris of denying prize money to Col. Reed and Col. Brown, and this denial was seen as but further evidence of the illegality involved, an illegality that the Court of Directors wished Lieutenant Harris to correct, five years after the event.

Most works on the East India Company and its conquests in the eighteenth century appear to leave little thought to prize, prize money and plunder. ²¹ However, the specific dispute discussed above regarding the rules to be followed in prize distribution takes us to the very heart of an understanding of the nature of British sovereignty and the nature of the conquests in the subcontinent. While Harris refers to the long history of prize distribution amongst the land forces in the subcontinent, he also highlights that he had recourse to such precedent only because he was unable to initially ascertain what precisely was meant by the ‘established usages’ of prize money and its distribution. He writes to the Court of Directors that he could not initially find an instance that did not involve the navy, even if the one-eighth share was uniformly taken by commanders-in-chief in the various wars on subcontinental land. The Court of Directors, on the other hand, cited the 1793 law regarding the naval prize distribution as well as His Majesty’s letters patent of January 1758, that property captured by joint operations of His Majesty’s and the Company’s forces were solely reserved to His Majesty’s pleasure. The Battle of Srirangapatnam was conducted by the joint forces of His Majesty and the Company. This was the case even in the crucial Battle of Buxar, where commander-in-chief Hector Munro had apportioned to himself one-eighth of the prize/booty. ²² Prior to this, the crucial legitimizing and governing law on prize money, sealed by His Majesty King George II, could be traced to September 1757 and January 1758, where the Company was granted powers to ‘cede, restore or dispose of any fortresses or any fortresses districts or territories, acquired by the conquest from any of the said Indian princes or governments’. ²³

So it is to these all important letters patent that we have to turn; the letters patent of September 1757 and January 1758 did not emerge in vacuo but was the response to applications that the East India Company had made in 1756 to the Attorney and Solicitor Generals, the pre-eminent law officers of the Crown, who in turn had forwarded the application with suitable recommendation and comment to William Pitt, one of the secretaries of the Crown, to be in turn forwarded to the King. ²⁴ With the application, the law officers appended their own draft of what would become in essence the letters patent of 1757 and 1758. In the applications of the East India Company, and the response of the Attorney and Solicitor Generals, one might glean the germ of the problems that resurfaced again in the dispute between Lieutenant Harris and the Court of Proprietors; and of course the fraught nature of sovereignty that was the British Empire.

The United East India Company had written to His Majesty on 11 October 1756. ²⁵ Alluding to the war with the Kingdom of France and the collusion—possible, actual and imaginary—between the latter and the local powers in Bengal, the petitioners pointed to the fact that in the course of such war, which has or may occur, in so far as all conquests were vested directly in His Majesty, His Majesty in His sovereignty kindly grant the right in the event of war to capture and recapture

for their own use, all such plunder and booty, ships, vessels, goods, merchandize, treasure and other things whatsoever, which may be taken by any of your petitioners land or sea forces from any of your Majesty’s enemies, or from the Indian enemies of your petitioners. ²⁶

Unless such right was granted, the petition argued, it would be difficult to maintain the armies that were required for the carrying out of such trade in the East. Encouragement to trade was conditional on the encouragement that could be given to those engaged in the arts of war. ²⁷ This requesting of powers over the use and disposition of territories and objects in the course of war, treaty or grant with local principalities, was of course always subject to His Majesty’s ‘right of sovereignty’. ²⁸ The Company in its applications also had more concrete questions regarding the norms to be followed, specifically in the distribution of prize between Admiral Watson, as representative of His Majesty, and the Company officers. ²⁹

From the response and considered suggestions of the law officers, it is clear that the Company asked whether its actions were governed by the lately promulgated Act of 1756, which was passed in the context of the war with France. Writing on 16 August 1757, the law officers were responding to requests regarding the retaking of Calcutta, and not a post-Plassey settlement. ³⁰ They wrote that in their considered opinion, the said Act of 1756 referred only to the war in question (with France) and could not be applicable to the case of the Company’s relations with powers in the subcontinent. And so the most apposite way to deal with the Company’s question regarding its authority in such relations with local powers, in the event of war and with regard to prize, would be to receive the requisite letters patent from His Majesty. With regard to what is retaken, the law officers took the view that as far as the territory of Calcutta was concerned, it would be restored to the Company. However, ‘[a]ll places newly conquered accrue to his sovereignty and is vested in his majesty by right of conquest’. ³¹ All movable goods that had been altered while in possession of the enemy as well as newly acquired movable goods would belong to His Majesty, ‘in whose name and under whose protection, and by the assistance of whose fleet, the same is regained’. ³² These suggestions led to the letters patent issued in September 1757. However, in response to further petitions and requests for clarification, on 24 December 1757, the law officers elaborated on the urgent questions of sovereignty and prize.

While making no specific reference to Plassey—although writing in a vein that would encompass actions such as the Battle of Plassey—the law officers reiterated that all conquests, as such, were vested with His Majesty, as did specific goods and items acquired therein. However,

[I]n respect to such places as have been or shall be acquired by treaty or grant from the Mogul or any of the Indian princes or governments, your majesty’s letters patent are not necessary, the property of the soil vesting in the company by the Indian grants, subject to only your majesty’s right of sovereignty over the settlements as English settlements, and over the inhabitants as English subjects, who carry with them your majesty’s laws, wherever they form colonies and receive your majesty’s protection, by virtue of your royal charters. ³³

This was an important and fine distinction that had legal precedent. ³⁴ While laws and customs could and did vary with place and/as property, the Company as English settlements and English subjects were subject to His Majesty’s right of sovereignty. The law officers clearly wanted to deny the Company the sovereign authority to carry out conquest and make peace, which ultimately vested in His Majesty, specifically His Majesty’s prerogative. At the same time, they had to respond to the questions posed by the Company in the unfolding situation in the subcontinent and therefore recorded the fact that the Company was petitioning His Majesty for directions and rules, and such petitioning was evidence of their ‘honourable intentions’. ³⁵

The above suggestion that ‘the property of the soil’ was all the same subject to ‘His Majesty’s right of sovereignty’ applied to those places that have, or would have, been acquired by treaty or grant. Not for conquest, where ‘the property as well as the dominion vests in your majesty, by virtue of your known prerogative and consequently the company can only derive a right to them, through your majesty’s grant’. This, notwithstanding the fact that His Majesty had on previous occasion through his charters empowered the Company to make war in defensive circumstances, that is, ‘only to recompense themselves for losses or to repel invaders’. The question to be settled is not who is sovereign as defined by the authority to make war and peace but whether in the circumstances that the Company finds itself there may be some way in which the latter would not have to apply to His Majesty after each and every acquisition of place, whether by treaty, grant or conquest. It is to obviate this that the letters patent of 1757 and 1758 are granted, closely following the drafts prepared by the law officers of the Crown. Prize money is the delicate joint that joins authority, war and peace and is therefore crucial to an understanding of the nature and scope of sovereignty.

To better understand this more general problem of sovereignty through prize money and the initial petition of the Company in 1756 that wished to be governed by the Act of 1756, ³⁶ as well as the later dispute between the Court of Directors and George Harris on prize money and its relation to maritime and territorial war, it would be incumbent to study the said Act. This Act was proposed to encourage the seamen of Great Britain to participate in the war against the French in April 1756, prior to an official declaration of war. The earlier Act of 1739 (the Naval Prize Act) had ensured that British seamen in His Majesty’s vessels or privateers in their own ships had the sole right to the prize money in their captures, subject to the commissions that were granted by the courts of admiralty after a war had been declared. The application for such commissions and the payment of a fee guaranteed such a right. However, the Bill under discussion in 1756, before the outbreak of actual war with the French Kingdom, suggested that prize could be claimed and (re)distributed in the context of ‘reprisals’ and without the formal declaration of war. Such a law, it was believed, would help counter or minimize the violence of the press gangs that were at large, necessary as they were during war time or in anticipation of war. Captured ships from France or captured goods retaken from the French would therefore not merely lie idle at the ports awaiting formal clearance, but could be legally redistributed to those involved in the expedition even without war being declared. While parliamentarians saw the merit in such a Bill, which they deliberated upon in a context of what they perceived as unmitigated French aggression, especially in the Americas, they also pointed to the fact that such a Bill, if made an Act, might itself be construed as a declaration of war and might not in itself withstand legal scrutiny from the larger European community. Among the acts of hostility mentioned—indications of the existence of a war already underway—was the construction of garrisons and fortresses by the French in British territories in America. ³⁷

One of the issues discussed was the issue of ‘reprisals’ and its exact nature before a declaration of formal war, that is, whether a legal distribution of the prize or plunder could take place before the declaration of war. For instance, Welbore Ellis, a parliamentarian, argued in the Parliament that reprisals per se were not to be treated as acts of war and there were firm procedures in place to be taken into account for reprisals to be initiated. Letters of reprisals, as an example, could only be issued after four months of the demand for satisfaction. The working of reprisals into treaties ensured that they had a status within the European community of sovereigns. ³⁸ On the other hand, the argument against pressing—as one of the merits of the Bill—is countered by the assertion that pressing was coeval with monarchy, an assertion that was backed by historical evidence. ³⁹ It was also held to be in conformity with common law and statute. Charles Townshend, another parliamentarian, added a new angle to the discussion by arguing that reprisals were to be understood as those acts that were undertaken in response to injury done to a private party, and only when the state was involved in such circumstances could such an act be construed as an act of war. ⁴⁰ The Bill was finally rejected and among the many reasons for its final rejection was the argument that for the legality of the distribution that was prize, a formal declaration of war would have had to have been announced. The Act was passed within a month, when formal war was declared, almost confirming the position. ⁴¹

In the light of the above, one is in a better position to appreciate the Company’s demand for legal sanction from the King for the distribution of prize after the reconquest of Calcutta, a sanction whose wording could then continue seamlessly to sanction the conquest of Bengal and other provinces, subject as always to His Majesty’s ‘right of sovereignty’. The law officers were keen to specifically add a clause in the letters patent to ensure that the rights to make peace would not only be entailed in the distribution of prize, but would also give the powers of cessation (transfer) to the Company, in treaty, grant or conquest with the native powers. The transfer to the terrestrial of what conventionally had its dominion in the maritime element of the seas—prize money—is what was expressed acutely in the dispute between Lieutenant Harris and the Court of Proprietors in the first decade of the nineteenth century. The initial applications for prize of the Company in 1756, in the case of the retaking of Calcutta, is not cause for surprise because the Company’s forces were operating in conjunction with Admiral Watson’s naval command, the latter directly representing His Majesty’s forces. Watson’s cooperation as a naval force was in fact crucial for the recapture of Calcutta.

It was not only prize but the recapture or retaking of Calcutta that needs to be uniquely kept in mind for an understanding of this gravid moment in history. None of these terms—prize or recapture—is used in a conventional sense and we have to probe them to better apprehend the lexicon of such politicio-military terminology. Towards this end, we enlist Marten’s An Essay on Privateer, Captures and Particularly on Recaptures (1801) and T. H. Horne’s A Compendium of the Statute Laws and Regulations of the Court of Admiralty Relative to the Ships of War, Privateers, Prizes, Recaptures and Prize Money (1803). To begin with, Martens argues that ‘privateers’, who came up in the discussion on the legislation with regard to the ‘encouragement’ of seamen, were to be strictly distinguished from pirates in that they had commissions from their sovereigns to conduct war with enemies, which in turn accorded them the right to prize after following due process. Pirates, as conventional and legal wisdom of the time had it, were the common enemies of mankind, that is, the enemies of a common mankind. ⁴²

Martens gives a history of this practice of privateering and commissions, arguing that after Roman times, it was not possible to maintain the principle that the right of war solely belonged to the sovereign. Private wars were undertaken, and at sea, merchants formed associations to fight off pirates as well as other powers. While conventions existed—such as the Consolato del mare (collection of maritime usages)—‘private’ parties could attack and appropriate plunder without any special permission from any sovereign. From the fourteenth century onwards, treaties between sovereigns ensured that this was no longer sanctioned. And towards this end, a whole legal apparatus that included commissions, and letters of marquee—‘from the antiquated word marche, which signified boundary, authorized the seizure of them beyond the confines of his territory and reprisal’ ⁴³ —were instituted. Legislation to this effect in the kingdoms of France, Spain and England could be documented from the fourteenth and fifteenth centuries onwards. ⁴⁴ Martens then makes an important distinction between land and sea wars, which will be of immense importance to our own story. He argues that from the sixteenth century onwards, treaties and conventions ensured that, in land wars, minimal respect towards the property of the subjects of the enemy were respected; such was not the case in maritime confrontations. This distinction and the doing away of this distinction is precisely that which is probed in the dispute between Lt. Harris and the Company, which had led us in the first place to an examination of the grant of prize money for the recapture of Calcutta, thereby laying the groundwork for a capture of Bengal as other regions.

But to return to Martens, other than details regarding the application for sanctions of prize money and their various forms, there were also procedures regarding the evaluation of prize that had to be followed. Furthermore, in Europe the King often claimed deductions that were progressively reduced over time. For instance, in Holland it was reduced from 30 per cent to 10 per cent to none at all. Britain, according to recent legislation, did not make any deduction for the sovereign when its own forces were not involved. ⁴⁵ However, according to English law, privateers had to receive legal sanction from the sovereign for making any claims on captures or recaptures.

In all cases, there was a distinction made between capture and recapture. This distinction will have relevance for the applications made by the Company—in their preparation to recapture Calcutta—to the King via the law officers. According to Martens, in cases of recapture, the sovereign had the right to decide; this was the position of the law officers in 1756–57. Yet, neither was the rationale of such decisions nor the exact procedures at all clear. To further examine this question, he resorts to the natural law of war, derived from Roman law: that the captor derived the right of that which he has captured from the capture itself. However, ambiguities persist. For it is not clear from which point in time the captor has acquired ‘full property’ or legal title. Would it be from the time of acquisition? The time of reaching the port? Or after a certain specified duration? These lines of pursuing the question are jettisoned because, Martens argues, time, or rather the arbitrary segmenting of time, cannot define natural law. The only reasonable way out of the impasse would be to say that while war gives the capturer the right to dispose property, it does not give full proprietorship of the sort that erased every trace of the right of the original proprietor. This extinction of every trace can only be achieved through, and in the establishment of, peace. Documenting this discussion with reference to statute, Martens writes:

The first law which I could find on this subject and which has served as a basis to many succeeding laws, is the act of parliament of 1692 which enacts that if any ship vessel or bark belonging to their majesties subjects who continue to live under their protection and obedience, after having been captured by their majesties enemies shall be recaptured, that ship and its cargo or part of it shall be restored by decree of the court of admiralty to the first proprietors, who shall pay for salvage, if the recapture is made by a ship of war, one eighth of the value which shall be delivered to the captains, officers, seamen of the said ship of war to be divided among them agreeably to the present act of parliament concerning the share of prizes belonging to them. ⁴⁶

The statutes were very clear that all persons had to apply for commissions and had to apply in writing, reflecting the fact that all captures could acquire title only through authority derived from the sovereign. In Horne’s A Compendium of the Statute Laws and Regulations, detailed specifications on prize money and its distribution are given. ⁴⁷

We are perhaps now in a better position to understand the circumstances under which the Company applied for prize and the distribution of prize before the recapture of Calcutta. An important aspect of this expedition was that this would be a joint operation with Admiral Watson of His Majesty’s naval forces. The statute regarding the shares and distribution of prize, which appeared at variance with the practice of the land armies of King and Company, also allowed for the dispute between Lieutenant George Harris and the Court in 1804. It is worth remembering that after 1757, the next major battle in Company history, the Battle of Buxar, was led by Hector Munro, also of His Majesty’s armed forces and commander-in-chief. After victory, Munro was offered the diwani, which he refused. But he did take one-eighth of the prize money, 0.4 million rupees from the merchants of Benaras as well as 80,000 rupees from one Balwant Singh. Lieutenant George Harris, over three decades later, in another major victory, was also from His Majesty’s service. Prize money, and its maritime habitat, while having something to do with the recapture of Calcutta, where the naval fleet was required, had imperceptibly and indiscernibly come to occupy the terrestrial order: Musheerabad, Buxar, Srirangapatnam and all those in between. ⁴⁸ In a sense, the land had become the sea.

But the full story of His Majesty’s forces and its role in the Company’s conquest is far from over. The disputes between Aldecron as representative of the King’s forces and the East India Company before the recapture of Calcutta do not however leave in doubt that the position of Aldecron as King’s representative ensured his superiority over the Company’s soldiers. After the takeover of Calcutta by the Nawab, when an expedition and recapture was being planned in Fort St. George, the Council of War had requested that Aldecron not lead it. The reason given was that as commander-in-chief, he was not subject to their command. The select committee of the Company conveyed their view that they would therefore rather send an employee of the Company so as to have greater control over the expedition. It is also made clear that if in the retaking of Calcutta, the Nawab refused to pay for the damages demanded, the Company would have to engage in ‘reprisals’, and these expeditions would best be undertaken by a Company officer. Piggot, Clive, Orme et al. then wrote to Aldecron that they hoped the Nawab would come to terms with the Company, but in fact they expected an attack, in which case the Company should be prepared to go to war with the Nawab: ⁴⁹ ‘We are of the opinion that the expedition should not finish until whether he comes to terms or that his capital or Murshidabad be destroyed.’ ⁵⁰ It was around the same time that an application is made to the secret Committee in England for legal sanction. In addition, the distribution of prize, which was sent in 1756 (before the recapture of Calcutta), was received in London only in June 1757, when the law officers of the Crown discussed the requests. In this application, demands were made in relation to: (a) what is retaken and (b) reprisals. While the settlements and the effects of that which is retaken was to lie with the Company, one-half of the reprisals was to be deposited with His Majesty until his pleasure be known; the other half was to be distributed as prize money. All this was of course in the form of an application to His Majesty. These applications were routed through the Court, and then sent to the Solicitor and Attorney Generals, the pre-eminent law officers of the land, leading ultimately to the letters patent of 1757 and 1758.

This initial application, made before the recapture of Calcutta, sketched the possibility of recapture and reprisal and made demands commensurate with such possibilities. Never before has legal reasoning kept such perfect pace with acting on the ground, for when received in England, not only had Calcutta been recaptured, the Nawab had been defeated in the Battle of Plassey. But based on an initial request on the possibility or recapture and reprisal, the law officers advised that His Majesty in any case sanction the authority of the Company to transfer authority to itself in the case of grant, treaty or war, subject as always to His Majesty’s right of sovereignty. The Company was recognized as owners of property and empowered with an authority that was all the same subject to His Majesty’s sovereignty. Thus, the King’s sovereignty was reaffirmed, because by its very nature reconquests and conquests brought up the issue of sovereignty, which could only be that of the King’s (specifically both his war and peace making authority as well as authority in justice) or that of the King-in-Parliament (in more broadly legislative terms). We now turn to examine the role of the King in the establishment of the judicial framework by the Company.

The King’s Justice

The Regulating Act of 1773 was expressly enacted to prevent violence and injustices carried out by the East India Company upon natives and to regulate the trade and politics of the Company, so as to ensure that the latter was a financially viable instrument of power and profit for the English public at large. The Supreme Court was founded as a King’s Bench and invested with civil, ecclesiastical, admiralty and jurisdictions. It could try Europeans without a jury and assess damages. It had ‘local’ as well as ‘personal’ jurisdiction. The former was literally well defined in so far as it referred to territory, whereas the latter was the source of contention, since it referred to whosoever was a ‘subject’ of His Majesty. Returning to the wording of the law commissioners above in relation to the applications for prize money, we might recall that the Company was treated as subject to His Majesty as ‘English Settlements’ and ‘English subjects’. The latter naturally included officials of the East India Company, but it also includes those who could be characterized as being in ‘direct or indirect’ employment of the Company. ⁵¹ Proleptically, one might say that Bahadur Shah Zafar, was accused of treasonous behaviour on the basis of the fact—or claim—that he was under the employment of the Company. ⁵² In this section of the article, we hope to delineate the nature of justice as it was articulated and enforced so as to better grasp the nature of sovereignty of which it was understood to be an all-important attribute. By focusing on the Supreme Court in India and its interrelations with Company governance, the measure and scope of sovereignty as emanating from the King, and the nature of the ‘subject’ is explored. It will be found that the nature of the subject—what will later be called ‘culture’—can by no means be abstracted from the prior and primary question of sovereignty.

The first series of confrontations between the Governor General and Council, and the Supreme Court ⁵³ flared up in precisely deciding the issue of whether natives such as zamindars could be said to be subject to the Court and its jurisdiction. This was a complex issue on many counts. First, the Hastings Plan of 1772 had already explicitly laid down the judicial structure of an appellate court system. The Plan had specified that for the purposes of civil issues (inheritance, debt, religion and caste), the relevant scriptural authority would be resorted to. ⁵⁴ In the case of the inheritance of zamindaris and talukdaris, the President and Council would hold sway. Clearly, this provision would be a blatant violation of property rights if zamindari rights (of inheritance) were seen as a form of property. The post-diwani settlement seemed to suggest that the Company as diwan was the superordinate of the zamindars and therefore in a sense, whether directly or indirectly, their employer. This would mean that they were subject to the Supreme Court as established in 1773, which had authority over those employed by the Company. Hastings had in effect repudiated the Mughal emperor by (a) stopping the payment of tribute and (b) not taking either his or the local nawab’s sanction for the judicial plan. Furthermore, even though the diwani grant might give some semblance of the local authorization of the Company’s formulation of ‘civil’ justice (related to revenue), the Company also took control of the criminal justice system. All of this showed that the Company had gone far beyond the scope of the diwani grant, de jure and de facto.

Simultaneous with the cases of the zamindars was the cause celebre of Raja Nandakumar who, in August 1775, was sentenced to death by the Supreme Court on account of fraud, that is, forging a bond. The arguments that Governor General Hastings initially used against the Supreme Court’s jurisdiction—as one that was held to interfere with the judicial system established in 1772—was that it was not cognisant of or conversant with the laws of the natives and so it would be unjust for the latter to be subject to its jurisdiction; notwithstanding the fact that the control exercised by the Company over the court system established in 1772 was exercised by Company (English) officials, almost wholly untrained in law, Indian or English. For the Plan of 1772 had made it clear that there would be two parallel hierarchies of courts divided by subject matter; one for ‘civil causes’ and the other for ‘trials of crimes and misdemeanours’. The former, the diwani adalat, would include, ‘disputes concerning property, whether real or personal; all causes of inheritance, marriage, and caste; all claims of debt, disputed accounts of contracts, partnerships and demands of rent’. Under the latter, faujdari adalat, ‘all trials of murder robbery and theft and all other felonies, forgery perjury and all sorts of frauds and misdemeanours assaults frays quarrels adultery and every other breach of the peace or violent invasions of property’ would be included. Under each, there would be two courts—an inferior and a superior. In the diwani adalat, the collector ‘in the quality of the King’s diwan’ will sit alongside the provincial diwan, appointed by president and council, along with other officers of the cutchery. In the inferior court of the faujdari, a qazi and mufti of the district and two moulvis shall sit to expound the law, and determine how far the delinquents shall be guilty of a breach thereof, but the collector would sit to ensure due process. In the superior diwani adalat, ‘the president with two members of council shall preside therein, attended by the dewan of the khalsa, the head of the canongos and other officers of the cutchery’, while in the nizamat adalat, notwithstanding the native jury-consultants and officers, ‘a similar control shall be lodged in the chief and council’. ⁵⁵ Apart from all this, when it came to the inheritance of zamindaris and talukdaris, the President and Council’s decision would be supreme; ⁵⁶ this too is clearly traceable to the King’s prerogative in English history, ⁵⁷ which is replete with precedents for this establishment. ⁵⁸ Additionally, this juridical power has to be directly linked to the revenue settlements that Hastings was intent on making. The juridical power cannot be traced to the Emperor’s grant of diwani, since no such power was granted ⁵⁹ and its only possible source could be the anointing of the President and Council as Justices of Peace by the King’s charter of 1729. It was the supremacy of the President and Council—that had even exercised control over the Mayor Courts—that would be challenged by the establishment of the Supreme Court.

In the light of the above, the argument cannot be one where the Company stands for and supports native custom against the ‘foreign’ and therein unjust imposition of English laws, for the simple reason that the Company in fact controlled the juridical system that was established in 1772. Derret, and more recently Nandini Bhattacharya-Panda have demonstrated conclusively that what came to be known as ‘Hindu scriptural law’, or the bastardized Anglo-Hindu law, served the commercial and governmental agenda of the Company. ⁶⁰ On the other hand, in late eighteenth-century English legal culture, it was not necessary that a specific religious or cultural identity meant per se exclusion from the King’s bench. One must also remember that Glannvil’s dictum of the King making laws and customs, which was common law, was in theory and practice relevant for the eighteenth century. ⁶¹ Mansfield had recently allowed non-Christians to participate in English juridical processes, just as ‘aliens’ could well be ‘subjects’ in that they could appeal for protection to the King. ⁶² Jenks, Baker, Hussain and most recently Halliday ⁶³ have amply demonstrated the fact that when it came to the King’s prerogative—especially that of Habeas Corpus—no specific national or cultural identity per se disqualified one from being subject to the King’s laws. Thus, while the Nandakumar instance was often used as the justification for the argument that English laws should not be applicable to natives—and therefore the synecdoche for culture is a qualification or disqualification for the application of the King’s law—things turned out to be more complicated when looked into with greater analytical and historical probity. That there was no perceived contradiction between the juridical rationale of the Supreme Court and local custom and/or religion is fully congruent with the way the law was understood and practised in England as well as evidenced by the fact that two years after its establishment, native pandits were attached to it for providing advice on matters relating to Hindus. ⁶⁴ For instance, Impey’s initial correspondence makes it clear that natives were all too eager to use the Supreme Court to defend themselves against the rapaciousness of Company officials and their agents. Before getting ahead of ourselves, however, let us return to Maharaja Nandakumar.

Nandakumar, placed in confinement in the custody of the Supreme Court in response to a charge ⁶⁵ had pleaded that, since he was confined in a place that included Muslims and Christians, by the customs and religion of the country he would lose caste and would have no option but to starve himself to death. This was communicated to the Supreme Council (Governor General and Council) and in turn conveyed to the judges of the Supreme Court. After conducting his own investigations, Chief Justice Impey concluded that no such demands on the ‘natives’ were made by their religion or customs. Basing this conclusion on consultations with natives, Impey wrote to the Supreme Council that ‘they [the natives] added it was no easy matter to lose caste, a Brahmin must eat 8 times of the meat of a musselman before he can lose his caste’. ⁶⁶ Impey further argued that indeed the law would take into account the religious sentiments of the natives, but not to such an extent as to, in effect, annul the very course of justice. If this were done, he wrote, the very rationale for setting up the Supreme Court of judicature would be defeated. There were many of a higher caste than Nandakumar who had been confined without such a complaint, and taking Nandakumar seriously would render ineffective the law in relation to the Brahmans who were a numerous caste in and around Calcutta. To this, the Supreme Council in its own reply stated that according to its own investigations the claims of Nandakumar were true, and confirmed by the head of a local caste council. Impey, however, remained confirmed in his views, writing that he had himself read the relevant extracts of the shastras and there was nothing in them to authenticate his claims, and the president of the caste council who was to have allegedly advised Hastings, in fact, did not support Nandakumar’s views. When Impey demanded written evidence for the views of those native dignitaries that Hastings (and the Supreme Council) claims had supported Nandakumar’s position, he was met with silence. In reply to which Impey exclaims, surely such evidence would have to be submitted if it were expected to take effect. ⁶⁷

As Justices of the King’s Bench, the Supreme Court judges were also Justices of Peace, and therefore invested with powers of magistracy. Nandakumar was confined as part of a civil suit but insofar as it involved the accusation of forgery, it was a criminal case. While this case originated a while ago, after the establishment of the Supreme Court forged documents were found, and it was in said court that he was brought to trial. While Nandakumar was taken into the custody of the Supreme Court in May, just two months previously in March, he had approached Philip Francis and handed him a letter accusing the Governor General, Warren Hastings, of embezzlement. Francis brought the letter and charge to the newly established Supreme Council. Hastings, as Governor General, refused to take cognizance of the charge, and ended up dissolving the Council. Stephen, who had studied the case in detail in the end of the nineteenth century, writes that this was not the first time the Governor General had used his power to dissolve the Council in response to a charge; ‘on a previous occasion there was a charge that he and his banyan between them received 40000 rs a year of the salary of 72000 rs paid by the company to the foujdar or native head of the criminal justice and police at Hoogley’. ⁶⁸ Hastings had then similarly dissolved the Council. While Nandakumar himself was very soon accused of forgery, tried, found guilty and hanged all in the course of four months, it is not clear whether Impey and the Supreme Court judges knew of his charges against Hastings. Stephen, in his detailed study of the subject, concluded that there was no evidence of a conspiracy between Impey and Hastings, and that the trial was fairly conducted following due procedure without malice. ⁶⁹ Here, the narrative dramatized by Burke and Macaulay that Impey and Hastings had colluded and conspired in the ‘judicial murder’ of Nandakumar is reversed. ⁷⁰

While the Nandakumar case has at times been taken as the paradigmatic sign of the absurdity and injustice of transferring English laws to Calcutta, an absurdity that found expression in native resentment, the issues brought up are significantly more subtle and elusive. On at least one previous occasion, in 1756, Radhachandra Mitra was pronounced guilty of forgery and given the death sentence, even though he was finally granted mercy after a petition by a group of eminent natives. Derrett, in his own study of the Nandakumar case, argues that Calcutta and its denizens would have believed—even if erroneously—that the statute on forgery would be applicable in Calcutta. ⁷¹ In the Nandakumar case, in the month of July, no less than four addresses to the Supreme Court judges expressed their appreciation of the Court, one of which is signed by ‘natives’, the other by Armenians. ⁷² The issue to be examined is whether the idea of the Supreme Court legislating was all that absurd or whether it was well within the scope of a legal culture that recognized the King’s laws to determine and protect custom. It was in such a context, Impey writes, in lines cited by almost every recent study on the subject, that the natives are ultimately under the protection of the laws, more fundamentally than that of the Company’s government. ⁷³

Two things may be kept in mind. The King’s Bench, where the King was to be virtually present, was by its very nature not to be limited by custom. This was the case as much in England as in any of the other dominions or beyond. Impey in his initial correspondence had made this clear. On the other hand, the Company’s claim that it protected and represented native custom—this in no way meant a disavowing of its own subjection to the King—has been successfully refuted at various levels. ⁷⁴ In this context, the claims that the Supreme Court was merely fulfilling its function in protecting natives from the illegal authority of the Company may well be examined.

On 1 April 1777, the Chief Justice had written to the Lord Chancellor:

The court is increasing daily in business we are beginning to make the vultures of Bengal disgorge their prey—cases kept back by the timidity of the natives which had been much increased by assurances from those who should have supported the court that the foundation of it was unstable should be destroyed and therefore that they could receive no permanent protection from it are now bringing forward and I am now convinced we shall in a great measure give redress for the past injuries. ⁷⁵

Impey goes on to outline a rather frightening state of affairs where Company officials and their native subordinates appear to hold all else in thrall through their ‘cruelties and extortions’. He reports an instance where a native of ‘uncorrupted integrity’ and ‘diligence’, who was assisting the Court with petitions of various sorts, had been offered money to keep away from his duties, which he refused. He however paid with his life, for he was found murdered with none of his ornaments stolen, by one who had disguised himself as a sitar maestro and was teaching this man lessons in the art. ⁷⁶ Such an incident was by no means unique, and Impey goes on to detail the rapine and loot that had, according to him, become second nature to British officials, drunk with power. In another letter to Lord Weymouth Impey continues to complain about the ‘despotic principles to which British subject long resident in this country have been naturalized from early youth’. ⁷⁷

It was in such a context, Impey argued, that it would be most unjust to accept the demands of certain elements within the British population of demanding a trial by jury, or by their peers, that would naturally be other Englishmen. For this, demand to be tried by a jury of one’s peers was made in the name of the rights of an English subject. The organizers of this demand included those charged with acts such as assault, battery and the illegal confinement of natives. And it was clear in Impey’s mind that the demand for rights as an English subject and the rights to a jury were merely attempts to support and protect what cannot be distinguished from institutionalized and unjust discrimination. Speaking of those tried and convicted of assault, battery and illegal confinement as ‘prickly’ Englishmen demanding their rights, as has been done in a recent study, is a simplification so gross as to amount to inaccuracy. ⁷⁸ Rather, here might be found one of the sources and points of origin of the argument that freeborn Englishmen in India would not submit to Company governance, which resulted in a historical record where they did (and would) commit the greatest of violence on natives with impunity in a system where ‘rule of law’, that is to say ‘equality before the law’, did not prevail. ⁷⁹

Chief Justice Impey also claimed that the judicial system established by the Company was corrupt and manipulated by Company officials so as to exploit the native population; just as he was keen to argue that in its conquests of new territory, London should be sure to establish new courts to ensure justice. ⁸⁰ Equally significantly, the course of the Nandakumar trial ‘demolished the myth of the Nawab’s sovereignty’, and therein the fiction of ‘double government’. ⁸¹ This fiction was at root because sovereignty was such that it dissimulated itself so as to lack any accountability in its actions. Rather than detail the subsequent career of Impey, the accusations against him, and the judicial reforms of the 1780s, ⁸² we end this section with a court case in London, more germane to the subject of our investigation, the ‘fact’ of double government and its propensity for injustice and violence.

If one could characterize law as having its function in scrutinizing the authority by which an act was committed, we find in the metropolis too the important recognition of the violence ingrained in double government. The specific case concerned the illegal confinement of Rafael, an Armenian merchant, by Henry Verelst, governor of the Company. This case, not unusual for the time, had originated in the subcontinent but reached Chief Justice De Grey in London. Rafael accused Henry Verelst of illegally confining him and forcibly bringing him from Oudh, nominally under Nawab Shuja Ud Daula, to Calcutta. Even so, the judges, including Blackstone, found Verelest guilty of ‘trespass’. That Rafael was an ‘alien’ did not matter since this was an injury against the person, that is, trespasses. Whatever the defendant’s arguments about the suzerainty of the Nawab, these did not apply because it was recognized that Shuja Ud Daula was subservient to the English, as there was a company of soldiers in Oudh under the command of Colonel Harper, though under the pay of the Nawab. ⁸³ Since the Nawab was not seen to be the actor in the case—being in awe and under the influence of Verelst—the latter would need to be seen as principle actor, that is, the one who commanded or procured the act. ⁸⁴ What the King’s Bench in London, in a reiteration of Impey’s finding in Calcutta, was prepared to admit and act upon in an individual case—as could only be done—was recognizing and demanding a more open declaration of British sovereignty. Whether it was Impey or Francis, both wanted a clear declaration of His Majesty’s sovereignty over the regions of Bengal that the Company had power and delegated authority over. Even Hastings in effect did this when he stopped the tribute due to the Mughal emperor, pronouncing that such sovereignty or right was not Clive’s in the first place to be given away.

Sovereignty and the Laws

Eminent historians of the twentieth century have declared that eighteenth-century Britain had ‘rule of law’—and its implicate ‘property’—while the subcontinent had none. ⁸⁵ Colonialism was the modus operandi of its transfer. More recently, the work of Jon Wilson and Robert Travers ⁸⁶ have argued in different ways for an easy, seamless traffic in ideas between London and Bengal by emphasizing ‘custom’ or ‘constitution’ as the primary signifier for law and property. This literature ignores the fact that the East India Company’s conquest and juridical frameworks were fundamentally legitimized by the King’s authority specifically and the King-in-Parliament more generally.

The deep-rooted cause of this unawareness of the authorization of the East India Company lies in not appreciating the nature of law as it was understood and operated in Britain. This is evident by the fact that in writing about law and its practice, the English doctrine of ‘actions’ as the essence of law is not fully comprehended. ⁸⁷ To invoke Blackstone again, ‘law signifies a rule of action…and it is that rule of action which is prescribed by some superior and which the inferior is bound to obey’. ⁸⁸ The doctrine of actions emerges from, historically and conceptually, the ‘writs’ that could be purchased from the Royal courts to compel the accused to appear for trial. ⁸⁹ The development of common law was the development of procedures and jurisdictions which were initiated by, as well as enunciated, a clear chain of authority that led to the King, notwithstanding their complexity.

‘Custom’ was that which was recognized and a ‘right’ was that which was claimed to be enforceable by competent authority. If enforced, it would have with it legal authority as well, until further contested or challenged. Scrupulous work by legal historians has demonstrated the institutional and ideological centralization achieved by the Royal courts through and as common law overcoming and/or subordinating other forms of jurisdiction. While claims were consistently made on the basis of liberty and right throughout English history—sources of which could range from the Bible to established practice—they were intelligible and realizable only during the course of a defence (the ‘action’) or through statute or ruling.

E. P. Thompson’s rich work has documented the way in which ‘use’ rights that might have been part of the conventions of everyday living and recognized by local laws were, from the seventeenth century onwards, increasingly voided in the name of ‘improvement’. ⁹⁰ Here, one has to be careful to not merely conflate laws and customs—as recent work on the subcontinent appears to have done—and recognize that ultimately the latter were beholden and subject to the King’s sovereignty. ⁹¹ In the light of nuanced studies by the British Marxist tradition—E. P. Thompson, D. Hay, P. Linebaugh, among others—on the increasing brutality of law and its voiding of customary rights, it would be beyond naive to characterize the eighteenth-century English polity as being made up of ‘communities of sentiment’. ⁹² Similarly, it would not be quite accurate to assert that in the eighteenth century, ‘English law depended on the role of shared adjudicative practices able to neutrally uphold property rights’. ⁹³ From the increasing number of statutes declaring the death penalty (160 in the 1770s to 223 in 1819) ⁹⁴ for ‘crimes’ that ranged from petty theft to forms of industrial rebellion, Thompson also reminds us of the punishment for one charged with high treason in 1794: ‘he should be hanged by the neck, cut down while still alive, disembowelled (and his entrails burned before his face) and then beheaded and quartered’. ⁹⁵

The misunderstanding of the place of ‘custom’ and the ultimate reliance on ‘law’ for its status in the ‘metropolis’ has implications for a study of the nature of colonial laws and their establishment in the Indian subcontinent. Recently, Jon Wilson has focused on the anxieties of the conquerors and how they might have felt out of place in faraway lands, and has proposed that this extreme anxiety ⁹⁶ was the birthing of law as we understand it today, that is, modern law. Others have rushed into the complexity of the eighteenth-century situation, and have been brave enough to characterize Roman, English and subcontinental law in a single sentence. ⁹⁷ None of these approaches examine the central issue that we have been insistently concerned with in our study: how does the so-called ‘rule of law’—in procedures and doctrine—authorize itself? On the basis of the evidence collected, one cannot evade the King or forget the fundamental way in which it is the King specifically and King-in-Parliament generally and their sovereignty that legitimize the Company’s conquests and modes of governance.

These issues are similarly not recognized in Robert Travers’ recent study Ideology and Empire, where the discussion of revenue arrangements is made without discussing the question of sovereignty. Travers’ argument that Philip Francis was fundamentally arguing for a restoration of the ‘ancient constitution’ is unconvincing for two related reasons. First, the use of ‘ancient constitution’ as a category does not take into account its differing meanings in the eighteenth century, something that is noted from the classic work on the field, that is, J. G. A. Pocock. ⁹⁸ Second, when he discusses Francis’ Plan of Revenue, while he cites the discussion of the ancient constitution, he does not mention the fact that in the introductory sections of said plan, Francis argued that the King’s sovereignty needed to be declared. Therefore, Travers does not accurately contextualize the argument of the ‘ancient constitution’. Sovereignty is thus recognized by Francis as anterior to, and responsible for, the strict regulation of forms of property that might be differentiated, place to place. Revenue collection might well try and incorporate local customs, but were ultimately justified and legitimized by the King’s sovereignty. This distinction was one that was well recognized by Mathew Hale in the previous century, and emphasized by C. Yorke and C. Pratt in their authoritative legal opinions, with specific reference to the conquests of the Company, which was expressed by the letters patent of the King in 1757–58. The fact that even when the Company undertakes conquest such conquests are subject to His Majesty’s ‘right of sovereignty’ is not recognized by Travers in a monograph entirely devoted to ideology and empire. ⁹⁹ In fact, as Ranajit Guha had argued, Francis—and here he was no different from Hastings—recognized the form of Company government as based on conquest. ¹⁰⁰

Francis’ argument that in so far as the Company’s conquests as conquests were necessarily subject to the King and King-in-Parliament’s sovereignty, is echoed by James Eyre, one of the eminent jurists of the time. Discussing Clive’s claim to the famous jagir, Eyre writes in May 1764: ‘I am inclined to think that the plaintiff’s true title is the sword; but this he could not rest upon because the benefit of it in that case, must go, according to the law of nations, to those whose sword it was.’ ¹⁰¹ Jurisprudence, the legal officers of the Crown and figures as diverse as Hastings, Impey and Francis, recognized that the Company could not claim sovereignty, and therefore its conquests were legitimate only in so far as they were legitimized by the King. This relationship between sovereignty and conquest therefore is not recognized in much of the historiography of ‘colonial’ India. ¹⁰²

In claiming an authority to protect the customs and religions of the realm, Hastings’ court system (1772) constructs custom and religion as a correlate of the Company’s commercial and political interests; the latter is the nomos. ¹⁰³ This changing correlation is ironically stabilized as the marker of the native so as to eviscerate any accountability on the part of the Company, that is, the coercive politics of its making. ¹⁰⁴

One may end with the court case known as the Indian Chief, ¹⁰⁵ to tie together justice and prize, and shed light once again on the darkly deceptive turns of empire. Prize law dictated that in the event of a war, traders residing within specific countries were, for all practical purposes, considered subjects of that country. Consequently, if they traded with hostile parties—members of nations with which the country was at war—their goods could be condemned as prize. In 1801, when Britain was at war with Holland, an American trader named Miller found his goods to be condemned and confiscated as prize due to the fact that he was trading with a belligerent. Miller argued that as a resident in Calcutta he could not be considered British, because Calcutta was under the sovereignty of the Mughal emperor and not Britain. Lord Stowell, chief justice of the high court of admiralty, however judged otherwise.

What is of particular interest to us concerns two aspects of his judgement: one, not directly concerned with the effective part of his judgement, the other precisely with the latter. With regard to the first aspect, Stowell makes a distinction between traders residing in the East, and traders in western nations, professing that in the western parts of the world traders were welcomed and therefore treated as native inhabitants, they were to be construed as such in times of war as well, and therefore in consequence, for the application of prize law. In eastern nations however, ‘an immiscible character was kept’, traders were not allowed and therefore traders had to conform by their own laws. Nothing could be sweeter irony for the historian of Company rule.

In giving the reasoning behind his effective judgement supporting the condemnation of Miller’s goods, Stowell pronounces that even if the sovereignty of the Mughal emperor were ‘occasionally brought forward for the purposes of policy…this country exercises declaring the power of war and peace, which is among the strongest marks of actual sovereignty’. ¹⁰⁶ Thus, the judgement emphasized that the ‘actual sovereignty’ of Britain was altogether evident not only in the nature of the Company’s governing institutions, but also in Acts of the Parliament and public treaties, which spoke of the relevant territories of the subcontinent as ‘British territory’. ¹⁰⁷ That Hindus and Muslims were allowed to have their own laws could not hamper issues because such was the case with the Jews in England too.

Identity, howsoever construed, was realized, recognized and regulated only through concrete procedures and sources of authority and power. In this sense, even Schmitt’s powerful argument in Nomos of the Earth, that in the eighteenth century, there occurred a momentous shift in the justification and perception of war making, from ‘just cause’ to the recognized ‘sovereign’ ¹⁰⁸ will have to be interminably qualified by the changing modes of sovereignty, such as could be seen in British India under the East India Company. More revealing is a little-known passage in a less-well-thumbed book by Schmitt, Land and Sea, where he elucidates the distinction between the maritime and terrestrial orders. Schmitt argues that in Europe from the sixteenth century onwards, land warfare was being regulated so as to attempt to ensure that only those parties in the field were considered enemies and therefore legal targets. However, maritime wars were wholly different in that no distinction was made between person and property (property could be captured as part of war), and every inhabitant of the enemy nation, including non-combatants and their property was liable for condemnation. Included in naval warfare was the naval blockade, and ‘as such, sea war tactics were directed against enemy combatants and non-combatants. Thus a starvation blockade indiscriminately affected the entire population of the involved territory; soldiers, civilians, men, women, children, old people.’ ¹⁰⁹

Schmitt does not further explore this facet or how this would in fact qualify the thesis presented in Nomos of the Earth, about the changing nature of war and sovereignty in the eighteenth century. Therefore, he does not explore prize laws, or how the retaking of Calcutta from the Hooghly in effect may achieve sanction for the conquest of the subcontinent. Or the fact that the extension of the Mutiny Acts in effect meant that the Company in its very existence signalled the lack of distinction between peace and war. The woeful lack of clarity about the precise channels of jurisdiction in the subcontinent encouraged and protected the rapaciousness of the Company’s policies. Rarely in history would so much territory have been conquered, as under Company Raj. Even though in his evaluation of land and sea, of the violence of the marine and of the necessary link between it and ‘trade’, he comes very close to his eighteenth-century predecessor Matens, who we examined before, and the actual institutional legitimization of the East India Company. ¹¹⁰ The experience of the subcontinent tells us of the untenability of the distinguishing between land and sea and that the maritime pervades the terrestrial through sovereignty, through conquest. And prize law—where no distinction is made between person and property—pervades in every sense the conquests in the subcontinent, as dramatically indexed by the case of Lt. General Harris.

By scrutinizing these powers of the King as well as the nature of such authority as refracted through the East India Company, one can trace well into the eighteenth century the canny persistence of a ‘medieval’ sense of empire. Empire is understood as a form of authority—irreducible to a fixed given territory—well into the ‘Enlightenment’, and beyond. ¹¹¹ This is in line with Lauren Benton’s discussion of Bodin’s conceptualization of sovereignty, which according to her is extendable to the nineteenth century, where ‘subjects could be located anywhere and the tie between sovereign and subject was defined as a legal relationship, legal authority was not bound territorially’. ¹¹² One could add that such legal authority was also not justified according to any specific culture or custom, but decisions were undertaken by various authorities that found their final source in the sovereign King-in-Parliament. ¹¹³ In tracing the system of laws that were ultimately derived from such sovereignty, it is to be emphasized that what appeared as custom or culture could not remain independent of the actions of the various courts, requiring the latter in one form or the other so as to preserve any legal status.

Through this study of prize, war and justice, it has been argued that sovereignty has to be understood as that which authorizes laws, or cultures and customs as sources of law, and cannot itself be fully reduced to them. In the case of Britain and British India in the eighteenth century, sovereignty remained with the King-in-Parliament generally, and with regards to specific authorities, the King. Jurisdictional conflicts existed, as that between the Company and the Supreme Court or the East India Company and ‘private’ traders, but these conflicts and differences were articulated with reference to a notion of sovereignty that was univocal and constitutive of these various jurisdictions as jurisdictions. It is worth emphasizing that key legal documents of the nineteenth century, such as the minutes of Chief Justice Grey (1829) and the Report of the Law Commissioners (1837), emphasize the subjection of the Company to the Crown and the Parliament. ¹¹⁴ When discussing the prohibition of Sati, the Court of Director’s made explicit reference to the trial of Nandakumar, declaring that the British government had the right to enact laws on natives, who were characterized as ‘innocent subjects of His Majesty’. ¹¹⁵

Through an excavation and analysis of material that has demonstrated the importance of the King in the legitimization of the East India Company in the eighteenth century, it is hoped that there is room to reflect upon both the standard distinction between Company and Crown rule as well as upon the conceptualization of sovereignty. The East India Company’s attempt to achieve absolute autonomy in its functioning in India was never successful in its time, but it has been successful in finding as its legatees a range of recent historical studies that pay little attention to the ways in which the Company was in fact subject to the Crown. The result has been a doubling misrecognition of the nature of colonialism in India as well as the history of the British Isles in so far as they are treated as separate and separable histories. ¹¹⁶ The legal and administrative univocity of empire forcefully articulate the constitution of the subject in his subjection to sovereignty, even while the construal of custom so as to conceal conquest as a strategy of the Company has won more adherents among historians today than amongst its own contemporaries. The subject—even when framed as culture or custom—acquires reality through specific acts of authorization through concrete legal instruments and their contexts rather than a priori fixed territories or a priori fixed cultures (or customs) that informs a later ideology of nationalism, sans historical basis. ¹¹⁷ The consequence of scrutinizing the univocal framework of empire would mean that no triumphalist narrative of liberties earned and won in eighteenth-and nineteenth-century Britain, including that of enlarged ‘franchise’, can inoculate itself from the brutal warmongering of imperial violence and the wilful indefiniteness of subjecthood. Such indefiniteness in fact defined the scope of sovereignty through prize laws, the virtual presence of the King in his court, and through the ‘fictitious’ sovereignties through which lives were controlled and conquered. And so in that great prize of modernity that is democratic representation, any neat correlation between representation and territory—or its captive, culture—conceals as much as it reveals.