Unfinished Conquest: Residual Sovereignty and the Legal Foundations of the British Empire in India

I. New World Legacies

The acknowledgement of cultural difference in the construction of sovereignty became evident during the Iberian conquest of the New World, perhaps most decisively expressed by Spanish Renaissance theologian and jurist Francisco de Vitoria in his tract De Indis Noviter Inventis, where he claimed that Indian nations were unworthy of the status of sovereign legal entities. As Anthony Pagden has explained, Vitoria’s legal universe was predicated on three essential categories of law: divine, human and natural. All of these were governed by a fundamental relationship between Christians and heathens, following the dispensation of Pope Alexander VI and his partition of the world according to its rightful claimants. ³ Vitoria rejected the prevalent constructions of legal authority and tried to develop a common, rational legal framework that would sustain a differential hierarchy of Spaniards and Indians. Hence implicit in his idea of jus gentium was the establishment of Spanish identity as an external and authentic entity, in direct relationship and opposition to the indigene. ⁴ The predicament of Vitoria’s idea of justice serving the interests of incommensurable political entities illuminates, not just the question of cultural difference, but the premise that sovereignty is never entirely bound by the dictates of reason or legitimacy.

In Vitoria’s world sovereignty was the foundational threshold of political right. Heathen subjects of the crown could not be seen as having an independent source of autonomy prior to conquest and assimilation within the economic logic of the encomienda. The wide dissemination of the ideas of Vitoria and the Italian jurist Alberico Gentili in the sixteenth century led to a resurgence of Roman law in the context of international political rivalry in Europe. Ken MacMillan points out that claims of the English monarchy over territories in the New World were based on the widespread adoption of Roman law, which led to conflicting interpretations of sovereignty. ⁵ Similar arguments were being waged in favor of the extension of English sovereignty over Scotland in this period, where Rome, as David Armitage has argued, once again provided the historic precedent for colonial expansion. ⁶

The case of North America illustrates an analogous situation between the settler and the Native Americans. Standard interpretations of the history of American constitutional law hold that the Revolution of 1776 along with the severance of allegiance from the British Crown, created a new sovereign body whose constitution imposed an unprecedented set of restrictions on the power of the state. This viewpoint has been subsequently challenged. Scholars such as Daniel Hulsebosch have argued that the foundational ideas of the constitution in revolutionary North America were largely indebted to British concepts of sovereignty. ⁷ The Revolution had brought forth political emancipation, substituting the people as the new repositories of legitimate authority for the prerogatives of the British crown. ⁸ At the same time, however, it also led to the foundation of a constitutional legal corpus that enshrined seemingly conventional modes of sovereignty.

There were, to be sure, certain latitudes for reinterpretation. In a recent book, Christopher Tomlins suggests that early exponents of colonial exploration such as Richard Eden deployed Gentili and Vitoria in new ways to frame the discussion of conquest in America. Native Americans were seen as endowed with social and rational faculties, accountable to the law of nations, and obligated to accept commerce and the spread of Christianity. Hostility to European trade and the gospel was deemed as an adequate cause for just war resulting in territorial conquest and enslavement. ⁹ John Dee and Richard Hakluyt used similar arguments to urge the expansion of England’s Atlantic possessions, challenging exclusive privileges claimed by the Spaniards. ¹⁰ Such claims in the long run provided the impetus for Robert Gray and John Winthrop’s ideas for colonial settlements in northern America. The law had to yield to the possession and improvement of colonies, denying Indians substantive claims to their land as property. ¹¹ As Tomlins points out, despite the fact that such laws derived from a multiplicity of sources and entailed competing notions of transatlantic power, they were more than mere justification, and provided the essential tools and framework of colonial governance. ¹² In subsequent decades a more popular, de-territorialized and federalist notion of sovereignty developed in North America, weighted toward the needs and desires of an expansive settler society founded on principles of property and mobility. ¹³

In 1871 a congressional act formally ended the practice of making treaties with native tribes. This marked an extension of federal plenary power over indigenous peoples, and diminution of the original dual legal status that conquest had imposed. ¹⁴ In this regard, it could be construed that the indigene had neither been alienated nor assimilated fully into the full writ of the law. Francis Prucha has delineated how the United States Congress conducted Indian affairs from this point onwards. Some aspects of the old treaty system were resumed through negotiated agreements, while at the same time Indians were brought under direct legislation at par with the rest of white citizens of the country. ¹⁵ The North American experiment in reconstituting a body of law to address the anomalous construction of the sovereignty of the native tribes thus essentially recapitulated the contradiction between the discourse of conquest and the history of assimilation. ¹⁶

This incongruity at the heart of the question of sovereignty, which has been drawn to our attention by legal historians of Iberian America and 19th century United States, is enormously instructive, mutatis mutandis, in the context of the expansion of a primarily non-settler colonial empire, namely, British India. For sure, British colonial ventures beyond the Atlantic were not indebted to monarchical absolutism or revolutionary republicanism. However, much like all histories of colonial expansion, territorial gains in the Indian subcontinent brought similar inconsistencies to the fore. These problems were also compounded by the fact that the reins of administration were in the hands of the East India Company, a chartered corporation often reviled for its trading monopoly and allegations of nepotism, corruption and mismanagement. ¹⁷ It was one among many such chartered joint-stock companies engaged in fierce competition for high risk overseas investments. There was a considerable degree of confusion regarding the legal standing of such corporations and their license for conquest and annexation, especially where their claims directly interfered with the prerogative of the English crown. ¹⁸ In India where the pursuit of advantage over trading rivals and local rulers required added political leverage, new dispensations were devised for the exercise of delegated authority. During the course of the eighteenth century this led to a new and overarching political idiom that animated the discourse of conquest and annexation, namely, the principle of indirect rule. ¹⁹

II. Unrelinquished Sovereignty

As received historiography would have it, indirect rule was initially conceived as a device for the Company to maintain effective power in parts where they had taken up the responsibility of revenue administration without assuming formal power. Contemporaries doubted the salience of this doctrine as a founding principle of governance, especially as it facilitated the speedy installation and removal of “puppet rulers” in both Bengal and the Carnatic without openly flouting the authority of the much-weakened Mughal Empire. ²⁰ Nevertheless, indirect rule evolved into a customary doctrine of imperial governance through the nineteenth century, culminating in a standardized set of expectations after the groundswell of the Mutiny of 1857 had subsided, ending the last major resistance of the regional rulers of India to British rule. The principle of indirect rule was now the standard diplomatic template governing relations between the British Raj as a paramount power and the various native princely states as subsidiaries. ²¹ The preservation of native landed aristocracy was proffered as a token of temperate paternalism espoused by the Queens Proclamation of 1858. Here, I would argue, there was an acknowledgement of an indissoluble residuum of former dignity of the traditional rulers of India, large and small. This was formally articulated much later by the constitutional body known as the Chamber of Princes established in 1920 by royal decree, designed to serve as a forum where Indian princes of the Raj could formally make their political demands and wishes known to the Viceroy and the government of British-India.

The Chamber openly acknowledged that the various princes of the subcontinent were endowed with an independent source of sovereignty irrespective of their political dependency on the British Raj. An official outline sketch of the relationship between the British Crown and the Indian princely states published in 1929 declared that the sovereignty enjoyed by the princes “was their own, not granted to them by the British”. ²² They had simply yielded a portion of their autonomy to the Crown. In fact, the very paramountcy of the British in India had been “created by the cessation of certain sovereign rights to the Crown”. ²³ Thus every state retained in principle the remainder of power that had not been forfeited. In legal parlance, this was the “residuary jurisdiction” vested in them ex necessitate. Sovereignty in this rendition was thus a result of an equation involving two distinct political entities, where rights of the powerful had not been entirely consumed.

This functional residuum of sovereignty was a direct consequence of the cumulative military victories of the East India Company over the native princes, and the formalization of their subjugated status in a series of unequal treaties. Later British commentators such as Edward J. Thompson would trace the historical turning point for such diplomatic practice to the year 1819, when Lord Lake’s military campaigns concluded with the fall of the major Maratha ruling houses in western and central India. After the Maratha opposition to British rule had been routed, wrote Thompson “only stupidity or hypocrisy or an excess of tactfulness could pretend that the East India Company was not the paramount power or that any of the Princes were equal to its status”. ²⁴

If it is indeed true that a circumscribed sovereignty accorded to indigenous political regimes was the product of a particular history of conquest without assimilation, then by the same token, the legal status of subjects within such states would have to be seen as contingent on the successive political treaties signed with their former rulers. In actual practice, even in parts of the former Mughal Empire annexed directly by the British, there was no formal abrogation or resumption of the legal status of transferred subjects. Native princes exercised mandatory justice over its native subjects, but Europeans and other “British Indians” were still subject to the writ of the Political Agent who replaced the Company Resident of old after the administrative reshuffling following the Mutiny of 1857. ²⁵ What then became of the legal status of conquered subjects? Did it matter if their territories were directly or indirectly administered? Since much of the early capitulation of Indian regimes took place under the watch of the East India Company, a mercantile corporation, what kind of rights and obligations remained for the former subjects of the Mughal Empire?

Lauren Benton in her recent book describes in admirable detail the tortuous relationship between forms of legal sovereignty and the contingencies of geography throughout the history of European imperial expansion. For Benton, expressions of imperial sovereignty have not only been historically subject to the forces of uneven geographical expansion, but empire itself can be understood “as an assemblage of variegated legal spaces”. ²⁶ Many such complexities arising from ill-defined rules of territorial sovereignty can be traced to the British Raj in India, and its makeshift political relationships with a patchwork of native princely states. The Indian subcontinent provided the British Empire with a contiguous geographical expanse, a large part of it ruled indirectly through subordinate regimes whose sovereignty remained indeterminate from a strictly legal standpoint. In order to explain the less than fully developed legal status of such relationship, Benton applies the term “quasi-sovereignty” as a functional response of the Raj to the shifting framework of imperial law towards the end of the nineteenth century, increasingly cognizant of its distinctive priorities and constraints, and as an exercise in a peculiar species of “imperial constitutionalism’’. ²⁷

The concept of residual sovereignty ²⁸ outlined here – the undigested remainders of indigenous regimes not fully incorporated within the body polity of the Indian empire – is generally in accordance with such an idea of geographical exception, and the uneven division of juridical power in the body polity of Britain’s Indian Empire. ²⁹ However, I see the problem of legal sovereignty encountered by the Raj, and corollary problems in the definition of the legal status of dependant indigenous regimes, as arising specifically from ambiguities that were not fully addressed in the legal construction of imperial dominion. They resulted from the less than fully understood implications of political conquest itself, dating back to the period of the rule of the East India Company. In the next section of this commentary I would like to elaborate on the problems of ill-defined sovereignty arising from unsystematic conquests of the preceding century.

III. Acquisitions of the East India Company

During the latter part of the 18th century, towards the end of the Seven Years War, and following the eclipse of rival French imperial ambitions in India, the English East India Company had emerged as a preponderant political power in the subcontinent on the merit of its unquestioned military superiority. However, to many contemporary observers the Company was still a trading corporation not quite prepared to enter into the exigencies of warfare and statecraft. Within less than a decade of its first successful military coup in Bengal (1757), it had put up two ‘‘puppet’’ Nawabs on the throne. It had prevailed over the combined military challenge of the deposed Nawab Mir Qasim, the neighboring kingdom of Awadh, and also Shah Alam II the Mughal Emperor. In 1765 the humbled Mughal Emperor had instated the Company in the role of revenue administrators of three major provinces in eastern India. In a letter dated January 27, 1764, Robert Clive wrote to the Board of Directors of the East India Company about the usurpation of power without a formal breach of the law:

We may be regarded as the spring which concealed under the shadow of the Nabob’s name, secretly gives motion to this vast machine of government without offering violence to the original constitution. The increase of our own, and diminution of his power, are effected without encroachment on his prerogative. The Nabob holds in his hands, as he always did, the whole civil administration, the distribution of justice, the disposal of offices, and all those sovereign rights which constitute the essence of his dignity, and form the most convenient barrier between us and the jealousy of the other European settlements. ³⁰

This passage makes it clear that not only was Clive disavowing the military actions of the Company as constituting an act of rightful conquest, recognizing the “sovereign rights” of the reinstituted Nabob, but admitting that in fact there was indeed an “original constitution” from which native kings might have drawn their right to rule.

Harry Verelst, the second Governor of Bengal, who succeeded Clive in 1767, was an active proponent of the view that Bengal was under a functional “diarchy”, i.e. the administrative set up of the Company was one parallel to the extant government of the Nawab of Bengal. Verelst acknowledged that in actual political terms the Nawab had been made entirely subservient to the Governor’s Council in Calcutta. However, the Company did not possess the bureaucratic mandate for an “actual immediate exercise of dominion”. ³¹ The English were unacquainted with local manners, customs or laws, ran their affairs according to the “sordid interests of a trader”, and therefore lacked the foundations for a new legislative state. Verelst was also of the opinion that the Company did not have the rights or the adequate means to introduce English laws in India without express sanction of parliament. Moreover, the state of progress of the inhabitants of Bengal, evident in their customs, habits and manners conditioned by climate and geographical location, rendered them incapable of adapting to English laws. The reception of laws by a body of people, argued Verelst, depended to a large extent on their particular state of civilization. Laws that had been developed in England “by the progressive experience of ages” could and should not be imposed on “a distant people whose religion, whose customs, whose habits of thinking, and manner of life” would render them repugnant. ³² Millions of Hindus, Verelst insisted, could hardly be persuaded to give up their age old customs that their religious faith had taught them to revere. Even if they did, they could hardly be expected to “assume new manners” of the English. “It is difficult to speak with temper of subjecting nations to laws which they cannot understand,” wrote Verelst. ³³ In order to effect a genuine transplantation of English laws “man must be again created”, because minds long “depressed by despotism” whether in India or the wilds of America, were truly incapable of fathoming the “dominion of laws”. ³⁴

Verelst’s contemporary, William Bolts, a Dutch trader who had worked for a few years for the East India Company, subsequently dismissed for charges of interloping in 1768, expressed similar reservations in his partisan but widely circulated indictment of the Company entitled Considerations on Indian Affairs in 1772. Bolts saw the usurpation of power in Bengal as both duplicitous and unlawful. According to Bolts, the Company was nothing more than a despotic oligarchy of merchants who had usurped the status of sovereigns. The Nawab of Bengal was little more than a “stipendiary servant’’ and the Mughal Emperor, a pensioner and a “mere instrument of their power”. ³⁵ The title to collect the revenues of eastern India gained from the Mughals known officially as the Diwani, according to Bolts, was a “mere fiction” invented to legitimize the acquisition of these newly acquired territorial possessions “for the private purposes of the Company and their servants”. ³⁶ This was a thinly veiled disguise for the deceit by which they had seized the sovereignty of the country, subjecting not only the inhabitants of Hindustan to their will, but also other Europeans of differing nationalities who had settled in various parts of the Indian subcontinent.

The legal status of the Company’s possessions in India remained an irritant for legislators as the Company came under the direct supervision of the Board of Control authorized by successive acts of parliament. Framers of the new system of revenue in Bengal such as Philip Francis and Alexander Dow, who sought to negotiate with the local Zamindars, investing them with clearly defined property rights in land, found the dual jurisdiction of the Company and the old ruling house of Murshidabad as a persistent legal problem. The restoration of the landed gentry as intermediaries between the Company state and the peasantry required a formal recognition of the King’s sovereignty in the Company administered territories in India, and most urgently in Bengal recovering from the devastating famine of 1770–1771. Francis wrote to Lord North in 1775 that the King of England must exercise full and undivided sovereignty in Bengal. Without such an express declaration there could “properly be no government in this country”. ³⁷ The people of Bengal “at the present have either two sovereigns, or none” exhorted Francis. ³⁸ How long could the Company continue to issue coins in the name of the Mughal Emperor Shah Alam II, gather revenues by the authority of a Mughal grant, and exercise the right of justice in the Mughal name? Warren Hastings, Francis argued, had tried to abolish the sovereignty of the Mughals without securing the sovereign status of the Company. This was the reason why the English in India now found themselves in a “labyrinth of contradictions and absurdities, both of fact and argument, from which nothing can extricate our government but an immediate declaration of His Majesty’s sovereignty over the Kingdoms of Bengal, Bahar and Orissa”. ³⁹

A trading Company acting on behalf of their King and country had reduced the mighty Mughal Empire in India by the sword, but had not forthrightly acknowledged the legal responsibility of the rightful conqueror. Further complications arising from the ambiguities of territorial extension appeared as new imperatives of conquest and expansion loomed beyond Mughal Delhi. During Warren Hastings’s military campaign against the Rohilla Afghans, which led to the annexation of Hafiz Rahmat Khan’s kingdom, Philip Francis again, along with senior Company officials John Clavering and George Monson, cast serious doubts on the legality of the action, arguing bluntly that the Rohillas were no more usurpers than the English themselves, and ruled under the same criterion of sovereignty by conquest. Francis insisted that the remaining native powers in India had just as much right to resist the encroachment of British arms:

If even the Mahrattas [Marathas] or any other power should engage in a just war with this Government, and (which God forbid) prove victorious, they will acquire an undoubted right to treat the English as the English have treated the Rohillas, and expel them from this country; neither the British nation, nor that of Bengal, will be extirpated by this expulsion. ⁴⁰

The necessity of military engagement and the changing realignment of the frontiers of the Company-state in India kept the thorny questions of territorial acquisition and the abrogation of indigenous kingship alive.

Such problems in the resumption of sovereignty continued to occupy debates concerning the treatment of native potentates long after their defeat and deposition. The house of the Bengal Nawab in Murshidabad, for instance, remained an awkward reminder of the Company’s de jure political status in Bengal as a regime still subordinate to the Mughals on paper. Officials at Fort William almost two decades after the Battle of Plassey were still puzzling over protocol governing the reception of envoys from Murshidabad, searching for specific legal precedents to deny them the status of independents ambassadors of a sovereign prince. The question that occupied the Governor General’s Council was whether the Nawab, now little more than a pensioner, was indeed a princeps sui juris, and whether he could perform “acts of sovereignty independently and without the control” of the Company’s government. ⁴¹ The historical fact of usurpation by force of arms alone, given the legal status of the East India Company’s government, was thus not enough to establish an unequivocal exercise of sovereignty vis-à-vis certain native powers.

IV. Laws of Conquest

The political status of former native potentates in India should have rested on the precise nature of entitlement flowing from rightful conquest. In traditional legal terms, conquest was measured by the principle of debellatio, the complete subjugation of a belligerent nation or people, resulting in an irreparable loss of sovereignty and forfeiture of freedom. Commentators on international law in the nineteenth century such as Henry Halleck were interested in an unequivocal definition of military conquest that would establish beyond reasonable doubt the extirpation of the sovereignty of the ruler and the inhabitants of a conquered territory. Conquest here was the ultimate outcome of war: a definitive act of annexation and incorporation. ⁴² At the same time, there was another and somewhat different meaning ascribed to conquest, pace Montesquieu and his discussion of droit de la conquête. In this version, conquest was also a species of acquisition that implied the preservation and use of the conquered territory and its resources. ⁴³ A legal definition of conquest also entailed the principles of just war and ex injuria jus non oritur. ⁴⁴ Some legal historians have pointed out that from this particular standpoint the long-held claim in North America that all land belonged to Europeans who discovered them – a construction that helped establish settler claims and land purchases following the Royal Proclamation of 1763 – actually violated the spirit of extant international law. ⁴⁵

British acquisitions in India took place incrementally over the course of almost a hundred years. India was not destined to become a settler colony, and military operations seldom resulted in direct annexation of the territory of subjugated native rulers. Rather, the defeated were made signatories to uneven treaties. Such treaties were often not meant to remain in perpetuity, and they rarely produced definitive titles of conquest that could be legally enforced. The very ad hoc nature of military exploits, and persistent ambiguities in the application of the laws of conquest stymied a precise expression of imperial sovereignty. Such anomalies continued through the late eighteenth and early nineteenth centuries, even as juridical definitions of sovereignty became more specific and expansive in the legal discourse.

William Blackstone had put forward the idea that the rights of sovereignty (jura summi imperii) resided in a supreme, irresistible, absolute and uncontrolled authority. ⁴⁶ Legal authority originating from such a sovereign body was vested in sanctions that were declaratory, directory, remedial, and vindicatory, transmitting power directly from the sovereign to the subject. ⁴⁷ Bentham in his discussion of penal jurisprudence understood law essentially as a set of commands or orders emanating from the sovereign authority without mediation: “an assemblage of signs declarative of volition conceived and adopted by the sovereign…” ⁴⁸ One of the most influential nineteenth century commentators on the law of nations, John Austin, anointed sovereignty definitively as the “determinate source” emanating from a fixed and rational authority. ⁴⁹ Austin argued that laws could not be made by subjects, or by men in a state of subjection, but only by a determinate political body or body of persons. ⁵⁰ Later, this view would be effectively challenged by Thomas Lawrence and others who advanced the competing principle of “external sovereignty”, arguing that no state was an entity without reference to others. ⁵¹ Lawrence also pointed out that empires such as Russia, which were large and far-flung, often accommodated their interests to those of neighboring states without any corresponding loss of sovereignty. ⁵² Despite such caveats, however, it is possible to suggest that political relations between European states in this era demanded a precise and contracted definition of sovereignty based on what Lawrence called the “habitual obedience” of subject bodies. ⁵³ The archaic subjects of overseas colonial empires such as British India did not quite fit this description.

V. Imperial Law and the Question of Temporality

All authoritarian regimes are ultimately aware of their transience, and the British Empire was no exception. The salience and applicability of particular bodies of law of Roman or Anglo-Saxon extraction were thus not only vulnerable to the remoteness of geographical latitude but also to peculiarities of historical circumstance and passages of time. In the case of British India the sheer antiquity of the customs and manners of the subject population urged a retrospection of the history and temporality of Britain’s own legal traditions. In 1861, the publication of Henry Maine’s comparative study of the historical evolution of laws in Europe urged a reconsideration of laws in Indian antiquity, providing a renewed justification for the accumulated exceptions and caveats in the direct exercise of sovereignty in British India. In his widely circulated treatise Ancient Law Maine argued that different races were locked in different stages of progress, and that tenets of European jurisdiction dating back to Roman times could be usefully compared to the laws and customs of latter day Asian races. ⁵⁴ Maine was also able to show that legal fictions were essential to the continuity of jurisprudence. ⁵⁵ No law, howsoever ancient, was pure in fact. Thus claims of territorial sovereignty were never universally recognized. In Europe, independent traditions of tribal sovereignty had survived through the middle ages, despite the universal dominium of Rome. ⁵⁶ Such territorial possessions acquired new modes of expression during the rise of feudalism, in which proprietorship of land was inextricably fused with the idea of legal sovereignty. ⁵⁷ Maine’s historical relativism introduced a critical temporal dimension to the appreciation of the uneven progress of jurisprudence in colonial India, where the ruler and the ruled were seen as belonging to entirely different frames of history. In India, Maine argued, legal tenets had not yet been fully extracted from religious precepts, or indeed the rude and primal autonomy of the village republics and their “undivided state of property” had not yet been developed as legal precedents. ⁵⁸

Maine’s comparative, historical vision brings us back to the question of law and its contingent relationship to the territorial and temporal schema of imperial rule. The discourse of sovereignty as a self-reliant category demonstrates the extent to which European empires were aware of the limitations, exceptions and longevity of laws that were devised for specific purposes of rule. This particular point is suggestive of the jurist Carl Schmitt’s controversial and much discussed definition of sovereignty based on a “state of exception”. ⁵⁹ Schmitt argues that the sovereign is essential to the juridical order, but not completely circumscribed by it. Such a definition takes into account the contradiction between nominal power and actual power. In purely minimalist terms, sovereignty is merely instrumental, signifying nothing more than the state’s recognition of certain interests as law. ⁶⁰ Schmitt’s constricted view of the law as a pure instrument of political interest, despite its denial of the moral ends of justice, provides a useful perspective on the imperial ends of legal sovereignty.

As I have suggested before, the imperial state in the era of its ascendancy was repeatedly confronted with the spatiotemporal limits of its own sovereignty. It was this very exteriority that distinguished its troubled legality and its continued quest for legitimacy. The British Empire in India in this regard, unlike the English state to which it was attached, was not a definitive or bounded political unit of the same analytical order. Its many encounters with native regimes further multiplied the demotic renditions of its forms of authority. As it absorbed new subjects it did not extinguish their prior political states, but simply compounded forms of recognition and placed new limits on the legal definitions of imperial subjecthood. Such accommodations rarely produced substantive or effective translations of indigenous tenets of political autonomy that might have redefined imperial sovereignty as a legal concept.

In British India, where Persian had long been recognized as the official language of correspondence with the Mughals and other native regimes, terms close or analogous to “sovereignty” in contemporary Persian or Hindustani usage such as mulkgiri ⁶¹ or iqtidar ⁶² were never seriously considered as substantively equivalent concepts in contemporary debates on the legal validity of East India Company’s territorial acquisitions. The British approached Persian as a functional tool of administration through which the writ of the state could be effectively and unambiguously communicated to the native elite. ⁶³ Thus, while translation remained a fundamental exercise in the establishment of colonial legal knowledge, Orientalist legal scholars following William Jones and Thomas Colebrooke did not pursue any serious inquiry into indigenous conceptions of sovereignty or political rights. The imperial experience in India did however cast an indirect but significant effect on the way Britain’s own legal history was understood. William Blackstone’s reading of the history of English feudal law, and his explication of the relationship between the laws of sovereignty, conquest and commerce, as Kathleen Davis has pointed out, was influenced by contemporary imperial experiments in India. ⁶⁴ Ironically, East India Company officials such Philip Francis sorting out land revenue arrangements in Bengal drew heavily on Blackstone, insinuating India with a feudal past of its own and casting native landholders as vassals subject to a constitutional sovereignty, thus endowing the Mughal Emperor with the legal status of a liege lord much like the Norman conquerors of England.

The deferred admission of sovereign rights of subjugated native powers that defined the parameters of British suzerainty in India also set the temporal limits of imperial justice. ⁶⁵ Sovereignty, it can be argued, rests on the idea of temporal autonomy as much as territorial integrity. ⁶⁶ The rule of law in the British Empire was based on a reconciliation of prior histories that also implicitly challenged the immemorial prerogative of the sovereign enshrined in the maxim nullum tempus occurrit regi (“time does not run against the King”). Colonial regimes in this regard could never fully assimilate the pasts of conquered subjects into the temporal frame of a singular, autonomous set of legal antecedents. Law bears a particular relation to history and cultural memory; it is selective in its recall of events that are relevant to the construction of precedence. ⁶⁷ The legal archives of the British Empire in India provide an intriguing account of the search for a lasting template of legal sovereignty. They not only reveal that there is more than one history of the law to be found in the annals of colonial India, as in most colonial cultures, but that there are fundamental asymmetries in the temporal structure of colonial law. Indeed, the very ephemera of empire in this instance vitiate a simple recapitulation of the chronology of conquest.