Read an Excerpt
Imperial Connections
India in the Indian Ocean Arena, 1860â?"1920
By Thomas R. Metcalf UNIVERSITY OF CALIFORNIA PRESS
Copyright © 2007 The Regents of the University of California
All rights reserved.
ISBN: 978-0-520-93333-0
CHAPTER 1
Governing Colonial Peoples
As new colonial territories around the Indian Ocean were brought under British rule, the varied governing strategies formulated in the India of the Raj made their way across the sea. This is not surprising. By the late nineteenth century the India of the Raj, first under the East India Company and then under the Crown, had existed for a century and had developed an array of administrative practices, well known and easily accessible, that provided exemplars of how an empire might be organized and run. The legal and administrative structures of the Raj were the most predominant and visible such export, but the influence of the Raj extended as well to such disparate matters as landholding, forest management, and the design of irrigation systems. These institutions and practices traveled across the ocean in several different guises. One was the diffusion and adoption of "Indian" ideas of governance with little avowed acknowledgement of their Indian origin. Among these were such administrative constructs as "indirect rule" through princes and the notion of "martial races." On occasion, as we will see, Indian precedents were acknowledged only to be contested or, more commonly, to be taken as a jumping-off point for a transformed administrative structure in the new colonial context. A second mode of transmission was the movement of Indian officials, bringing Indian strategies of governance with them, to places as different as Egypt, Iraq, and the Straits. Finally, newly appointed colonial officials who had no experience of India frequently looked to the India of the Raj as a reservoir of useful practices and precedents as they struggled to set up their own governments.
Constructing Colonial Legal Systems
Two fundamental concerns shaped all discussion of law in the colonies. One was a belief that imperial rule could be justified only by a commitment to the rule of law. An avowed "despotism," which the British saw as a mark of the regimes they had supplanted, had at all costs to be avoided. At the same time, the law had to take into account and in some degree respect those customs and traditions that the British saw as central to the peoples over whom they ruled. These two objectives were not wholly compatible, nor did they by themselves dictate any particular legal strategy. Fitting the law to the people ruled out any wholesale adoption, in India or elsewhere, of the case-based English system with its precedents coming down from the Middle Ages; yet to a very large degree, the English prided themselves on possessing a rule of law surpassing in its perfection that of other peoples. The result of this extended struggle was the establishment throughout the colonial world of complex and varied regimes of legal pluralism. It is not possible here to investigate the working even of the colonial Indian legal order, much less that of colonies elsewhere. My objective is to show how colonial "Indian" law, as well as "indigenous" and "English" law, could shape colonial legal systems. Following the suggestive insights of Lauren Benton, I argue that "the law worked both to tie disparate parts of empires [together] and to lay the basis for exchanges of all sorts between political and culturally separate imperial or colonial powers."
In India, from the time of Warren Hastings (governor-general, 1772–84) onward, the British determined that the substantive civil law should incorporate what they regarded as the traditional personal rights of the people; these they defined as embodied in the ancient texts of the two religions of Hinduism and Islam. In civil suits regarding marriage, inheritance, and the like, Hastings wrote, "the laws of the Koran with respect to Mahomedans, and those of the Shaster with respect to the Gentoos [Hindus] shall be invariably adhered to." The British thus began the practice, subsequently extended throughout the empire, of defining "tradition" so as to create bounded self-contained communities, and then enforcing these definitions upon those who were subject to them. The British recoiled, however, from enforcing the criminal laws of their Mughal predecessors. Many of these punishments they found abhorrent, while too much, in their view as they sought a rule of law, was left to the discretion of individual officials. Punishment for serious criminal acts had also to be taken out of the hands of aggrieved individuals and made crimes against the state. The result was the creation of what became known as "Anglo-Muhammadan" law blending elements of British and of Mughal legal cultures. The British endeavored to restrict the use of English law to British subjects, who were placed under the jurisdiction of a Supreme Court created in 1772. But the separation of jurisdictions could not be strictly maintained as Indians appealed to the Supreme Court and the Anglo-Muhammadan law became infused with the English practice of citing cases and precedents in decision making.
By the 1830s the British had determined to create by codification an alternative basis both for the substantive criminal law and for procedure more generally, and to make all residents of India subject to these codes. (The substantive civil law, with its distinction between Hindu and Muslim, was not codified.) The impetus for change came from the utilitarian philosophers in Britain, most notably Jeremy Bentham, who sought to make the law simple, uniform, and rigorous in its application in place of the complexity and arbitrariness that characterized so much of the English legal system in the late eighteenth century. Bentham's influence on the English legal system was to be negligible, with only occasional and piecemeal reforms enacted during the early Victorian era. In India, however, where powerful vested interests did not cumber the stage, codification could be brought to a successful conclusion. Even so, this was to be a contentious and extended process. Thomas Macaulay, as law member of the governor-general's council in the 1830s, took the first step with the drafting of the Indian Penal Code. Inspired by Bentham, Macaulay set out to create a code marked by "uniformity where you can have it; diversity where you must have it; but in all cases certainty." He explicitly rejected as a model the English criminal law as administered by the Indian Supreme Court. The result, as Eric Stokes described it, was "a code of law drawn not from existing practice or from foreign law systems, but created ex nihilo by the disinterested philosophic intelligence."
Bureaucratic inertia, with the decline of utilitarian enthusiasm, delayed enactment of the penal code until 1860. The process of codification spurred by the upheaval of the 1857 revolt, the penal code was joined by the enactment in 1859 of the civil procedure code and in 1861 of the criminal procedure code. Although less rigorously based on Benthamite principles than Macaulay's penal code, the two codes of procedure still showed the effects of Bentham's conviction that the law must be made simple, efficient, and certain. As John Stuart Mill wrote of the draft code of civil procedure, it promised to secure "so far as judicial institutions can secure that blessing, as good and accessible an administration of civil justice as the lights of the age are capable of conferring on it."
The Indian codes, then, as enacted were not in principle compilations of existing, and for the most part still unreformed, English law. Indeed, Bentham and his followers, as we have seen, repudiated the law of England as the basis on which Indian law should be constructed. Nor were these codes "Indian" in any obvious fashion. Although adapted to Indian conditions in part and drafted for use in India, they were not designed to embody Indian legal practices, either those of the Mughal Empire or its successor state of the Company Raj. Rather, especially with Macaulay's penal code, they were founded upon universal principles of jurisprudence, which took legislative form in India only because of the opportunities provided by British colonialism. That colonialism provided an unparalleled opportunity to introduce such a reform was not lost on Benthamite legal scholars. As Macaulay told the House of Commons in 1833, "A Code is almost the only blessing — perhaps it is the only blessing — which absolute governments are better fitted to confer on a nation than popular governments."
Given the character of the new codes, how can they be said in any way to be the product of an Indian legal culture? These codes were, after all, drafted by Englishmen, and Macaulay notwithstanding, much of their substance was, in practice, as David Skuy has argued, derived from English legal usage and embodied in English legal precepts. Yet whether in Kenya or the Straits, Iraq or Nigeria, the attempt to enact these codes into law outside India, as we will see, triggered immense controversy. Time and again these codes were perceived by local colonial officials and not least by white settlers as fundamentally different from and at odds with English law. They were, in appearance if not reality, incontestably Indian. In sum, whatever the content of the codes, their adoption overseas visibly involved the export to Britain's colonies of a legislative culture crafted in India, and by the Raj for India. Macaulay might describe the Indian Penal Code as the work of a disinterested philosophic intelligence, and scholars like Skuy might find "English legal principles" embedded in it. For many in Britain's colonies at the time, however, these codes, because they were not the familiar common law of England, embodied "Indian" jurisprudence and were scorned or embraced accordingly.
One might start with the Straits Settlements. Singapore, with its ancillary outposts of Penang and Malacca, had been placed under the rule of the East India Company from its founding in 1819. The enactment of the Indian Penal Code by the Raj therefore provoked a flurry of discussion as to whether it ought appropriately be extended to the Straits as well. These initial discussions in 1861 promptly precipitated antagonism between, on one hand, the members of the Straits executive government, all of whom from the governor down to the local magistrates favored the use of the code, and, on the other, the local legal community, which opposed it. In the face of this divided opinion, together with an ongoing reconsideration of the status of the Straits Settlement following the abolition of the East India Company, no action was then taken. In 1867 the Straits Settlements become a Crown colony under the Colonial Office. No longer tied to India, the Straits government was now free to chart its own legal course.
The very next year, in 1868, T. Braddell, the colony's attorney general, raised the question of whether the Straits criminal law ought to be reformed. As he pointed out in a memorandum for the legislative council, without the "advantage of the improvements introduced by the penal code," the Straits criminal law remained frozen where it had been in 1829, when the last Indian act prior to codification had been enacted. As a first step toward reform, Braddell recommended extending to the colony some half-dozen 1861 English acts amending and consolidating the criminal law. These, he pointed out, had been brought into force in Hong Kong in 1865.
Emboldened by Braddell's proposal, a group of private attorneys, advocates at the Singapore Supreme Court, endeavored to quash at the outset any effort to introduce the Indian code into the Straits. As their spokesman, R. C. Woods, argued, the Indian codes were simply not suited for a colony possessing an established bar and professional legal practitioners. The Indian code, he wrote, "was originally intended for the guidance of mofussil [district] judges and magistrates who had not the advantage of a professional training in legal sciences, and who did not possess more than an elementary knowledge of law." By contrast, "the judges in the Straits Settlements are chosen from the Bar, and doubtless all future magistrates will be also." Hence, the government ought to introduce into the colony the "improved criminal acts of England," for they offered the "advantage of a continued series of decisions of the most eminent judges who have made law the study of their lives." Criminal legislation, Woods concluded, "is progressive; it cannot be confined within the limits of any code." Speaking on behalf of this proposal in the legislative council, the chief justice of the Singapore court insisted that "our criminal law is in general very accurate and well defined and perfectly understood" by the lawyers and judges from England who practiced in the colonial courts; hence no purpose would be served by substituting for that "familiar" system one to which the English lawyer was "a stranger." In short, the Straits Settlements, in their legal culture, should be a colony of England, not of India. With these remarks, battle was joined in an enduring contest — pitting the Indian codes against the common law — for control of the legal system in Britain's new colonies.
Woods's argument did not evoke much enthusiasm either in the Straits government or in the Colonial Office. Concisely capturing the self-interested motives of Woods and his fellow petitioners, one official wrote simply, "I presume lawyers, like other people, do not like to make useless knowledge which they possess, and create a necessity for knowledge which they have not." Larger issues were, nevertheless, at stake. As Braddell, now converted to the Indian code, told the legislative council, to adopt the 1861 English acts would leave untouched all the heads of law not included in those acts. By contrast, enacting the Indian Penal Code would have, he said (in words that echoed Bentham), the "great advantage of having the whole body of our criminal law in a shape easy of access, easily to be comprehended, and in his opinion more efficient than the criminal law of England." The code was enacted as Straits Ordinance 5 of 1870.
Braddell, with the other members of the legislative council, had no doubt as to the radical departure from English practice that use of the Indian code entailed. Indeed, for this very reason, he refused to accept any alteration of the Indian act. "We were," he wrote, looking back on the debate, "about to cast off from the English law and in consequence lose the guide to interpret the law which we had in English text books and law reports, and to adopt a new system for the interpretation of which we must rely on Indian text books and law reports and it seemed desirable that we should alter the form of the new law as little as possible from the form used in India." The Straits government should do no more than "follow in the footsteps of the Indian legislature as to amendments." From 1870 onward, in its legal culture the Straits Settlements were, to extend Braddell's metaphor, firmly moored in Indian waters.
Enactment of the Indian Penal Code was followed almost at once by enactment of the Indian Code of Criminal Procedure. This ordinance (20 of 1870) was, so the governor told the Colonial Office, "rendered necessary by the enactment in this colony of the Indian Penal Code" and was "virtually a copy" of the Indian act. These acts did not end Indian influence on the process of legal reform in the Straits. To the contrary, Indian enactments remained both models to be emulated and examples of what ought to be avoided. Revision of the criminal procedure code in 1892, for instance, provided an occasion to consider afresh whether Indian precedent ought to be adhered to. In this case, controversy revolved around whether the drafting committee had introduced too many "departures from Indian practice." Grumbling that none of the committee members had ever seen the criminal procedure code "in practical working in India," W E. Maxwell, the colonial secretary, charged that the revised code unduly restricted magistrates' powers, while multiplying "needless formalities" and opportunities for appeal. In particular, he insisted, while ostensibly "imitating Indian procedures," the committee "have apparently ignored the Indian practice of allowing magistrates to try summarily a very numerous class of cases." The Straits civil service, he pointed out, "is recruited from the very class of men who as judicial officers in India have very extended powers"; hence, "it is in my opinion a distinct waste of power to refuse to employ them in this Colony as freely as is done in India." One detects in this discussion an echo of the enduring tension between the colonial executive, which saw in adoption of Indian practices opportunities for a more unfettered exercise of power, and judges and lawyers committed to a more English conception of the rule of law, with its rules, regulations, and appeals. As Maxwell described the members of the drafting committee, they exhibited a "natural perhaps unconscious dislike on the part of a body of lawyers to cheap law."
Meanwhile the British had been, since 1875, extending their control into the states of the Malay Peninsula. Although these states remained under the technical sovereignty of their Malay sultans, their day-to-day governance, as will be discussed presently, was gradually taken over by the states' newly appointed British residents and magistrates. Not surprisingly, given the novel situation in which they found themselves — under the Malay sultans but not subject to their authority — these British officials were uncertain as to the principles on which they should administer justice. Hugh Low, as resident in Perak, reported in 1877 that "the law administered in the courts is the law prevalent in Mahomedan countries, supplemented, when necessary, by the laws of Great Britain." By contrast, T. C. S. Speedy, assistant resident in Durian Sabatang, said that, as he had been "up to the present [1877] furnished with no code as definitely applicable in the Malay States," he had "endeavoured as nearly as possible in consonance with Malay custom to follow the Indian Penal Code." In similar fashion, the residents in Selangor and Sungei Ujong reported having brought into force in their states the Straits Penal Code and other ordinances in force in the Straits, but "without the lawyers." So far as procedure was concerned, as a later legal adviser observed of Perak, "except in cases of trial by jury, there was no criminal procedure code of any kind. So far as I can ascertain, the magistrates followed either the English or the Indian procedure, each according to his own taste and fancy."
(Continues...)
Excerpted from Imperial Connections by Thomas R. Metcalf. Copyright © 2007 The Regents of the University of California. Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
