by Jon Wilson
The King’s Court threatened to call out Bombay town’s local militia to free Moro Raghunath from this luxurious kind of confinement. In response Malcolm enlisted the support of the vast majority of officers and politicians in India and Britain. The new Governor-General, Lord William Bentinck, had just arrived. Bentinck saw himself as a Whig reformer, but he backed the arch-Tory John Malcolm in his battle with the King’s Court wholeheartedly. Malcolm was supported by the Privy Council in London, too. Despite receiving petitions from Bombay merchants and lawyers, including one signed by 4,000 people, the United Kingdom’s senior law body decided that the Bombay court had exceeded the bounds of its jurisdiction and forced it to pull back.11
Other cases in these years seemed to demonstrate the dangerously fractured character of British power, too. In one dispute after another heard before courts in Calcutta and Madras as well as Bombay the Company’s authority was repeatedly challenged: convicts were released, property transferred, children were liberated from the hands of the guardians they had been assigned to by British officials. These controversies were built on the increasingly assertive attitude of Indian traders and their metropolitan European allies. Both groups wanted the rule of English city courts, not the Company’s authoritarian hierarchy, to extend into the countryside. The result was, as one Company officer complained, that ‘a native of the snowy Himalaya’ could be dragged 800 miles ‘to the swamps and jungles and stifling heat of Bengal’ merely to prove he was not subject to the King’s Court’s rule. A stream of increasingly anxious letters ricocheted around the Company’s capitals in India, by 1830 feeding their way on to the Company’s offices in Leadenhall Street and eventually to Parliament. Conflict between the law courts and the Company was getting get out of hand, ‘feelings’ were inflamed and British power seemed to be corroding. The slow speed of communication meant there was nothing anyone in London could do before a crisis got out of hand.12
The trail of correspondence which followed the Moro Raghunath case from Pune to Bombay and then London comprised 200 dense pages when it was printed by the House of Commons. The document describes how a minor incident escalated into a moment that changed the character of British rule in India. The legal disputes of the 1820s fused with British fear about the fragile basis of their regime, creating a debate about how the East India Company might assert its sovereign authority over every inch of British-ruled space in the subcontinent. Judges, Company officers and British politicians offered different answers, but their diagnosis of the problem was the same. Doubts about who had power over whom had caused ‘alarm to our native governments, embarrassment to the local Governments, and discredit to our Country’. The law was disordered, vague, complicated and confused. It was hardly surprising that the East India Company’s courts were more than 100,000 cases in arrears.13
The consequence was the 1833 Charter Act. Passed in the year between the first ever reform of Parliament and the abolition of the slave trade, the Act ‘marked the beginning of a system of government for the whole of India’. It wound up almost all of the East India Company’s trading functions. It centralized law-making and finance, giving absolute power over all British ‘territories and revenue’ to the ‘Governor-General of India-in-Council’. It gave his council a new power to make laws that every court had to obey. It insisted that law in India was systematically restructured in a series of codes, which would define neatly and efficiently everyone’s duties and rights. It directed the East India Company to appoint its officials by merit, assessed through competitive exams. Overall its purpose was to bring unity and order to the chaotic aggregation of institutions with which the British tried to rule India.
All-directing and leading rule
The effort to rationalize and codify is often traced to the influence of progressive European ideas. Writing in one of the most important books written in the twentieth century on the history of India, Eric Stokes saw the 1830s as a moment when imperial government was shaped by the ‘utilitarian’ ideas of Jeremy Bentham and his band of followers in London. ‘It is remarkable’, Stokes said, ‘how many of the movements of English life tested their strength and fought their early battles upon the Indian question.’ Written when Britain’s empire was chaotically unravelling in the 1950s, Stokes’ book projected the idea of a liberal, improving Britain onto the past. But his argument was wishful thinking. In fact, the paths that led the East India Company to assert its authority more systematically over India were far more unsteady and anxious than Stokes suggested. British officers read Bentham but the arguments of utilitarian philosophers did not persuade them to think new thoughts. British philosophy only helped them put their existing ideas into practice.14
The 1820s and 1830s were an age of anxiety in Britain. British society was undergoing a process of rapid industrial change. Many thought that the social relations which held society together were breaking down. The growth of factories, the rise of working-class protest, a new sense of the importance of middle-class opinion all created a moment of political and philosophical ferment. Utilitarianism was just one fairly insignificant response to Britain’s relatively short-lived moment of crisis. It connected to the mentality of British government in India because it shared the same view of government and human nature.
Both the English utilitarians and British officials in India took a very bleak view of the chaotic and disordered state of society without systematic structures of command. English utilitarianism’s starting point was a pessimistic understanding about how people would act if their conduct was not continually scrutinized. Jeremy Bentham and his main ally, James Mill, were venomously critical of invisible pockets of power where they thought fraud could thrive, in England as well as in India. The complexity of the English law was a particular target. With its arcane network of courts and titles, England’s legal institutions seemed to be plagued by ‘tautology, technicality, circuity, irregularity, inconsistency’. Words spoken in court did not mean what they seemed to. The law was ruled by ‘the pestilential breath of fiction’, as Bentham famously put it. This system of unaccountable power allowed lawyers to enrich themselves ‘through bigotry and artifice’, Bentham argued. The answer was to minimize discretion and define every act of government in clear rules.15
This critique of British institutions was based on the same almost visceral set of fears that had dominated the thinking of British administrators about India from the seventeenth century: of chaos, uncertainty, the possibility that bad things were happening beyond their sight. The utilitarians imagined that corruption (the word appeared 290 times in Bentham’s Constitutional Code) was always rife unless exposed to the sanitizing scrutiny of an enlightened overseer. To suppress corruption and chaos, the utilitarians wanted to create a geometrical system of command in which power cascaded perfectly and evenly from a single authority. Bad government would only be done away with if the staff who worked in the different branches of the state had no freedom to act in their own interest. There needed to be, Bentham argued, an ‘all-directing and leading rule – minimize confidence’ in the subordinate officers of government. His was a ‘system of distrust’, which required authority to emanate from one all-seeing point.16
The connection between the utilitarian critique of English government and British rule in India began in 1806, when James Mill began to write his History of British India. Mill was a poor, embittered Scottish immigrant who arrived in London in 1802 to make his fortune. Four years later he was still trying to scrape together a living. Mill had trained for the clergy but failed to find a parish (he was a very poor preacher), and then took up work as a tutor to aristocratic children and a hack writer. A clever and charming man, Mill saw that India would become politically more important, and thought a book on the subject would be a route to prosperity and power. In 1806, knowledge about ‘this scene of British action’ was in a mess, ‘scattered in a great variety of repositories’, he noted. Mill thought that producing the first systematic account of the history of British India would
get him a job. The gamble paid off. Mill was appointed as a senior official in the East India Company’s officers in Leadenhall Street from 1818.17
Described by one popular publisher in 1857 as ‘the beginning of sound thinking on the subject of India’, Mill’s History argued that India was, intrinsically, a land of chaos and disorder. This was particularly true of its government. In ‘the skilful governments of Europe’, Mill wrote, power was centralized at a single point. Officers dispersed throughout the land ‘together act as connected and subordinate wheels in one complicated and artful machine’. But in India, Mill said, power was not exercised systematically. The authority of each king was fragmented among officers who squabbled, argued and fought. There was no regular system of law, so property was not secure. The disorder of government rested on the chaotic character of Indian society, particularly its religion, Mill argued. ‘No people’, he splenetically wrote,
have ever drawn a more gross and disgusting picture of the universe than what is presented in the writings of the Hindus. In the conception of it no coherence, wisdom, or beauty, ever appears: all is disorder, caprice, passion, contest, portents, prodigies, violence, and deformity.
Indian law books were ‘all vagueness and darkness, incoherence, inconsistency, and confusion’. On page after page Mill repeated his main point, that there was no effort in India to govern life through rational, coherent systems. The solution was for the British to create a systematic body of law and a centralized and absolute structure of command.18
In reality, Mill was projecting the disordered character of British institutions onto Indian society. Here, Mill’s History drew upon the sense of unease growing among Europeans in India about the unstable basis of their authority. Mill was meticulous in reading every report from British officers he could lay his hands on. His footnotes were full of references to judges and revenue collectors, clergymen and surveyors who complained about the disordered character of Indian social relations and the fragile grip of British power on Indian society. These were men whose experience of Indian society came from moments of fracture and breakdown, from arguments in court or disputes about who should pay revenue. Where they did travel, it was to investigate places that had recently been conquered. Mill’s account of the poor state of Indian agriculture came from Francis Buchanan’s description of Kanara in the aftermath of the Anglo-Mysore war, his account of property rights from a judicial official stationed in southern Bengal. Not surprisingly, his story emphasized political crisis and social breakdown, and failed to notice that the disorder they observed was brief, and exacerbated by British violence.19
With its angry critique of British institutions, utilitarianism was usually associated with political radicalism and the liberal politics of reform. But as Stokes pointed out, utilitarianism found its earliest echoes in India among officers from the Wellesleyan tradition of authoritarian imperialism, men like Mountstuart Elphinestone, Charles Metcalfe and John Malcolm whose approach to governing India grew amidst the fighting of the Mysore and Maratha wars. In British politics these men were either Tories or conservative Whigs, interested most of all in preserving the established political order, particularly the authority of the aristocracy. The connection with utilitarianism came through Bentham and Mill’s viscerally hostile rhetoric towards pockets of invisible power, and their unease about the fragmented, continually endangered character of government if everything was not visible. In Britain, those instincts opposed the political establishment. In India, they justified the more emphatic assertion of absolute British power.20
John Malcolm’s predecessor as Governor of Bombay, Mountstuart Elphinstone, was one of the few people who enjoyed Jeremy Bentham’s turgid prose. A man who otherwise read Greek, Latin or Persian before breakfast every day, Elphinstone suggested that this abstruse and abstract philosopher’s arguments were simply common sense, and tried to put them into practice. When he became Governor of Bombay in 1819, Elphinstone concluded that an effort to transcribe and systematize Indian law in newly conquered Maratha territory was necessary. Indian law in western India was ‘vague’, ‘unknown’ and could easily be controlled by whoever had the most money, he argued, echoing the utilitarians’ lack of faith in the virtue of officials and judges to act without every rule of conduct being precisely defined. As with many descriptions purporting to represent the enduring characteristics of Indian society, Elphinestone took the broken state of institutions in the immediate aftermath of conquest as the norm. He spoke fondly of Maratha panchayats (councils), but did not notice that, before the war, these bodies lay at the centre of sophisticated systems for adjudicating disputes. In their place, Elphinstone gathered a committee of Indian lawyers and British officers, instructing them to distil local customs and laws into a single book. The code was never finished, but Elphinstone did consolidate British regulations and create a complete body of criminal law.21
Similar efforts proliferated in other regions, in Bengal and the south-east of India, as well as Bombay. By the middle of the 1820s, printing presses were pouring out texts which purported to reduce the complexity of Indian law to a set of pithy rules: digests, codes, Principles and Precedents, translations of Indian law texts. Ostensibly, their efforts were driven by a desire to understand, sometimes even to preserve native Indian law. But they betray the belief that nothing had authority in India without the interposition of British power. With no faith in Indian institutions, the British thought only their own power could create certainty and order. Men like Elphinstone thought Indian judges were corrupt unless they made decisions under the scrutiny of British officers, and that scrutiny required the law to be translated into terms Britons could understand. The texts officials produced were thoroughly utilitarian in purpose. Their aim was to ensure that human actions were governed by a certain system of authority in which ‘sovereignty was single and indivisible’, as Stokes put it. But the motive of Elphinestone and Malcolm was neither ‘improvement’ or reform. It was to retain a grip on what seemed to them a fragmented and easily shocked system of power.
Until the late 1820s, this coalescence of Tory and utilitarian arguments was very controversial. For a large section of the British press and public opinion the East India Company was a despotic power which needed to be checked and challenged. Its authority was contested by radicals and Whigs who spoke the same language that had been used to criticize the East India Company’s corporate power since the 1680s at least. Free traders won the argument in 1813, when the Company’s monopoly was abolished in everything other than tea. But the Company could still be criticized as an essentially commercial organization acting as an accountable sovereign power, whose growing territories ‘had become a constant burden and grievance to the nation’. In the 1810s India was only mentioned in the House of Commons when politicians praised British generals for their great victories over Marathas and Pindaris, or condemned the Company for its incompetent and despotic administration.22
Such criticism connected to the voice of non-official Britons and wealthy Indians in India who made common cause against the ‘despotism’ of the East India Company, and created a short-lived Anglo-Indian opposition movement in the cities of Bombay, Calcutta and Madras. This was the public which had celebrated the fall of Spanish and Turkish absolutism with raucous dinners, and thought a similar revolution could take place in the subcontinent. It was centred in the presidency towns’ judicial institutions. In the mid-1820s it campaigned in favour of press freedom and trial by jury, and against the extension of taxation without representation. Freedom of speech was particularly important. The newspaper proprietor James Silk Buckingham was expelled from India for criticizing the East India Company’s power; his defence of the freedom of the press in India became a liberal cause. European and Asian participants in these debates believed that the subjects of British rule should have the capacity and the power to hold the Government of India to account.
These liberal positions were articulated in the dominant languages of British politics. Th
ey emphasized the importance of historical precedent and the need for a balance of powers. In contrast to the utilitarian case for concentrating authority Indian political leaders like Rammohan Roy in Calcutta and Ram Raz in Madras suggested that the East India Company had violated the standards for dialogue and balance set by the Mughals and other pre-British rulers. European settlers and their supporters in Britain claimed the Company had undermined the spirit of British government, and violated the rights of freeborn Englishmen. The King’s Court in Bombay defended its effort to free Moro Raghunath from the Company with reference to Magna Carta. In the same year, 1828, merchants in Calcutta condemned the Company’s attempt to introduce a stamp duty in Calcutta as an encroachment on their historic liberties.