I may use the opportunity of expressing my wishes, my confident hopes, that no English, grand or petty jury, will ever consider aught but the crime and its circumstances, and never suffer the distinction of colour, country, or religion, to operate in the slightest degree to their determination. (William Dunkin, “Charge to the Jury,” second session of Oyer, Terminer and Gaol Delivery, 3 December 1791, Supreme Court of Judicature, Calcutta)
The identity of Britons in the long eighteenth century remained a subject of vigorous and sustained public debate, especially during the Georgian period, when images of John Bull, the quintessential Englishman, jostled with caricatures of people of other races and creeds in the print literature, indicating uncertainty about the hierarchy of subjects in the kingdom.Footnote 1 The latter half of the century proved to be an era of upheaval, when the assertion of political rights of disenfranchised groups opened up new and fiercely contested questions of national and patriotic belonging. Such questions also had a significant impact on the legal definitions of subjecthood and citizenship, not only in Britain, but also across the Empire. This essay proposes that the history of the struggle for the assimilation of Jews, Catholics, and Dissenters in England is of considerable relevance to the study of the normative definitions, and especially legal constructions, of Indian subjects of the British Empire in the same period. During the last three decades of the eighteenth century, legal identities of British subjects in India were debated in the law courts set up by the English East India Company under the premises of the Regulating Act of 1773, and these deliberations provide an intimate look at normative societal ascriptions of the English, the British, and the Indians.
British commentators commonly viewed Indians in the later eighteenth century as heathen Gentoos (Hindus), as autochthonous inhabitants of the subcontinent subjugated by conquering Moors and reduced to quasi-slavery and, thus, as waiting for the panacea of good laws, able governance, and moral direction.Footnote 2 As victims of a peculiar oriental despotism, Indians were hardly ideal as subjects, but their supposed fear and sloth certainly seemed to justify an authoritarian and paternalist government. Here it is worth comparing the sketches and caricatures of Moors and Gentoos to other benighted inhabitants of the British Empire in need of reform. As the two main archetypes of Indian subjects they would continue to engage the attention of political commentators from Orme and Dow to Mill and Macaulay.Footnote 3
Beyond the stereotype of the passive and effeminate Gentoo as the autochthonous Indian subject, there were other depictions of Indians that paid much more attention to their relative states of wildness and timidity. In this regard, they were at times compared to the Irish Catholics and even Scottish Highlanders. John Carr, writing about his sojourn of the south and southwest parts of Ireland at the turn of the century, opened his narrative comparing the Irish in their own haunts to the unruly Polygar warrior chiefs of Southern India. Carr attempted to persuade his readers that Ireland had been unfairly portrayed as a dismal nation of hedges snared with pikes and blunderbusses, plagued with “famine and bogs, bog-trotters, salmon leaps, and restless spirits, so barbarously ignorant.”Footnote 4 The Indian peninsula, he claimed, had been similarly misrepresented. English commentators had been too hasty in condemning the southern Indian plateau as nothing more than a “brown and bladeless waste” and its people wild and savage, who “banquet upon human flesh.”Footnote 5 It was very much possible for these poor souls, wrote Carr, to harness the prodigal bounty bestowed on them by nature and to aspire to a polished, cultivated, and gentle state. Carr was not the only one who saw the warlike Polygars (Tamil palayakkarar) as a kind of Indian “Irishmen,” wild and untamed. During the Company's southern Indian campaigns, many described them as men from “the uplands” and also as “Indian Highlanders.”Footnote 6 Such comparisons reveal that at least in the era of military conquest, Indians appeared to be much like other unruly subjects of an expanding Britain.
Although one would not usually expect a direct correspondence between the categorization of domestic and imperial subjects, the impressions above provide a broader context for the possibility of transposed identities in Britain's imperial centuries. They cut against the grain of accepted and recurrent themes in the history of English identity formation, which still seem to insist that India was somehow a special case, an empire unto itself.Footnote 7 In India, as in other parts of the British Empire, the colonial legislative state's need for exacting definitions of expatriates vis-à-vis the natives created a specialized set of privileges and restrictions. However, such legal distinctions were not simply fabricated de novo. The very terms that delimited the rights of Jews, Catholics, and Dissenters in this era had features in common with terms that set Hindus and Muslims as subjects of British India. Histories of these emergent legal and governmental classifications in Britain and British India are worth considering together.
Legal Rights and the English Confessional State
In Georgian England, the legal status of subjects was closely tied to their religious denominations. The natural liberties of the subject had long been compromised by the differentiae of religious affiliation and practice. Catholics, Jews, nonconformists, and Dissenters had often been treated with suspicion, and their affiliation to king and country subject to scrutiny. The problems of dissent and intolerance continued to fester throughout the eighteenth century, with minority communities denied access to political office, freedom of worship, or higher education, and without equal status under the law.Footnote 8 A series of political and religious storms raged in the latter half of the eighteenth century, in which the inequities, ambiguities, and contradictions in the legal classification of British subjects came to the fore.Footnote 9 Among these one may count the controversy over the Jewish Naturalization Bill of 1753, the Wilkite agitation for liberty in 1769, the protest over Articles of Religion in the 1770s, the anti-Catholic Gordon Riots of 1780, and also the outrage over the repeal of the Test and Corporation Acts (1787–90).Footnote 10
Such inconsistencies followed no doubt from unresolved controversy over questions regarding the freedom of conscience and political acquiescence of lesser-represented groups. Historians have debated these issues as well. The most forceful argument in favor of a close convergence of dynastic loyalty, religious conformity, and aristocratic values has been advanced by Jonathan Clark, who shows at great length how the religious battles of the seventeenth century made way for a Protestant political order supported by the hegemony of the Anglican Church. These were the very forces of political conservatism that seem to have shored up English society against the uncertainties of radical reform.Footnote 11 England, according to Clark, was indeed a “confessional state” that elicited much more that outward compliance from its subjects in matters of worship.Footnote 12
It is not possible to offer here a full account of the criticism leveled at this particular view of the Anglican Church as a dominant and conservative force in the social and political life of the nation. No matter how pervasive the imperatives of national faith might have been, it is enough to say that genuine compliance was always hard to track. Many historians assert that English society had evolved through the eighteenth century as a reasonably tolerant one, generally accepting of religious difference, despite the authoritarian presence of the Anglican Church. In comparison with other countries on the continent, England was more likely to allow its inhabitants the liberty of private worship.Footnote 13 Religious riots, although they happened on occasion, did not threaten life and limb as they had in the previous century. There was also an established tradition, dating back to the era after the Restoration, of strategic concessions for religious minorities calculated toward relatively narrow political ends, such as dispensations for Catholics in exchange for greater toleration extended to Dissenters.Footnote 14 As Michael Braddick has contended, at no point in the seventeenth century did the national government lay exclusive claim to the apparatus of the church, nor was it in any position to prevent the rise of sectarianism and heterodoxy. Although the legitimacy of rule was supposed to reside in the defense of the “true religion” based on the right doctrine and liturgy, political tranquility in effect depended much more on consensus than on outright coercion.Footnote 15
Thus the question of toleration was a far from simple matter, especially given the fact that political and legal aspects of toleration were often entangled; furthermore, there was an added discrepancy between official policy and local enforcement of often uneven penal laws.Footnote 16 The Anglican Church had a long history of demanding political quietism and manifest obedience from nonconformists and recusants, dating back to the Elizabethan era.Footnote 17 The Clarendon Codes of 1661–65 and the Test Acts of 1672 and 1678 mandated an oath of supremacy to the king for public office, which recognized the sovereign as the supreme governor of the Anglican Church. The Test Acts did not necessarily multiply charges of treason, but they did bar prominent Catholic families from taking public office, from commissions in the army and the navy, and from admission to the bar.Footnote 18 Deep-seated religious conformity helped maintain the legacy of 1688, limiting monarchical succession, preserving the force of royal allegiance, and upholding the law that only Protestants, and certainly not Catholics, could hold public office.
Although over subsequent centuries many of these strictures lapsed, such as the Oath of Supremacy in Ireland (1691) by which justices of the peace could summon adults to appear before their courts and take an oath to show that they were faithful to the king under the penalty of praemunire, some were revived and indeed brought back in force.Footnote 19 While the Toleration Act (1689) gave freedom of worship to Roman Catholics and Protestant Dissenters as long as they did not question the Trinity and registered their places of congregation, the Corporation Act (1661) also remained in effect, which meant that participation in borough elections required acceptance of the Anglican sacrament.Footnote 20 The Oath of Abjuration (1703) reinforced the question of allegiance by rendering unlawful any sympathy toward Catholic pretenders to the throne of England.Footnote 21 Some restrictions were reintroduced in the mid-eighteenth century, such as the Clandestine Marriage Act of 1735 designed to prevent the prejudicial effects of intermarriage between Catholics and Protestants and the 1755 act that disqualified Catholics from service in the jury.Footnote 22 At the same time, although penal laws against Catholics remained on the books from the time of the Anti-Popery Act (1700), courts and local magistrates routinely disregarded them; by the 1790s, the heaviest penalties had been lifted from the code, allowing the purchase of land and license to worship.
Jews in England had a better legal standing than in other European countries. Those born in England were generally considered genuine subjects of the realm, although with some limitations. Like other non-Anglicans, they did not have access to university degrees and public office; however, they did not have to pay additional taxes and were free to settle and trade throughout the kingdom.Footnote 23 Nevertheless, the marginalization and vilification of Jews in this era have been well documented.Footnote 24 Their right to hold lands was subject to periodic scrutiny and legal dispute, encouraged by detractors who wished to revive the medieval status of Jews as vassals on the strength of common law, an issue that became a focal point in the dispute of 1753.Footnote 25 Foreign-born Jews faced many more difficulties. They were denied access to land, saddled with alien mercantile duties, and excluded from trade with the colonies. Very few were naturalized; even those in a position to solicit an intervention from the Parliament were required to take the Oath of Supremacy and Allegiance and to accept communion. How far the Jewish community faced deliberate exclusion in public life is again a matter of debate; Thomas Perry asserts that the virulent caricatures in political debates stemmed from partisan ideology rather than anti-Semitic discrimination, while Frank Felsenstein stresses the continuity of prejudice.Footnote 26
Despite the preponderant influence of the confessional state, the quest for religious uniformity remained illusive in England. At moments of national political crisis it was the capricious will of the majority rather than the state or church that seemed to demand a public avowal of conformity and obedience. During the French Revolution, the unfortunate Joseph Priestley fell victim to the fury of “church and king” mobs.Footnote 27 In the realms of popular religion, antipopery sermons, parades, pope effigies, and puppet shows abounded, as did antipapist sentiments in ballads, almanacs, prints, and cartoons. The Test and Corporation Acts were finally repealed in 1828, and yet, as John Wolffe has shown, the acrimony and mistrust from the era of Catholic emancipation continued well into the nineteenth century.Footnote 28 While it may still be true, as Norman Sykes once insisted, that sectarians and dissenters assimilated into mainstream society much more readily in the eighteenth century, it is also difficult to ignore the fact that intolerance, religious strife, and animosity remained part of the English common experience as well.Footnote 29 In the countryside, as Jan Albers has shown in a richly detailed essay on Lancashire, popular religion remained mired in bigotry and sectarianism, as evident in the profusion of stereotypes and caricatures of people of less common religious persuasions.Footnote 30
The tortuous relationship between tolerance and rights bears importantly on the articulation of the rights and obligations of subjects and their representation in the courts of law. Although, as John Gunn has argued, a common idea of liberty as a cardinal political virtue had long been inherent in the status of freeborn Englishmen, ensured through institutions such as trial by a jury of one's peers or the security of property against the government, the line between liberty and conformity continued to be a fine one.Footnote 31 During the emancipation debate, there were many who groused that Catholics, almost a state unto themselves, were beyond the law of the realm; Dissenters were often seen as compromising the sovereignty of the parliament.Footnote 32 More commonly, law was seen as a conservative force, not only the ultimate safeguard against life, liberty, and property, but also as countervailing against forces of radicalism and revolution.Footnote 33
Law and the Measures of Blood
The history of political and religious discrimination in England is critical to an understanding of the hierarchy of imperial subjects in British India, for the indeterminacy in the classification of the English, Britons, and the rest in part derived from the ongoing political and legal struggle to define the terms and obligations of both territorial and extraterritorial citizenship. Legal and political terms identifying Jews, Catholics, and Dissenters as differentiated citizen subjects of the Hanoverian state also appear from time to time in distinctions drawn between different categories of subjects in the Indian empire. Similarly, controversies surrounding the legal status of immigrants, foreigners, and the newly naturalized all bear upon the rights and obligations of Britons migrating to India. It may be argued that the fear of foreign immigrants at home led to a restricted legal construction of Anglo-Briton subjecthood, with significant revisions being made to the procedures of naturalization and denization.Footnote 34 Although the incorporation of aliens became more standardized by the eighteenth century, they hardly bestowed full legal entitlements of native English subjects.Footnote 35 In India, by contrast, the travails of a conquest state run by a chartered mercantile corporation, the circumstance of racial difference, and an exigent sense of legal entitlement created more expansive, if not more imprecise, subject positions. Problems in the definition of the legal status of British imperial subjects in India must be placed in the context of a string of political exigencies in the eighteenth century that influenced the laws of nationality in England. Most urgent among these were the dissolution of the connection to the Netherlands, persecution in France and the Palatinate that led to new waves of Protestant immigrants, the union of Scotland, the acquisition and settlement of colonies abroad, and protracted colonial wars overseas.Footnote 36
The prevalent distinction between denizens and naturalized citizens is important here. According to contemporary legal lexicons that were also in use at the Supreme Court of Judicature, Calcutta, in the 1780s, a denizen was a person who dwelt within a particular country and who was more that just an expatriate or a foreigner outside the borders of his native country.Footnote 37 In a more restricted sense, denizens lived in a country of which they were not born as citizens. Denizens thus had limited rights, including the right to reside in Great Britain, but from a legal standpoint were aliens who could be admitted to citizenship by royal letters patent but not allowed to inherit or to hold public office. The term “denizen” also referred to a plant or an animal that was introduced to a country, not according to its own particular volition, but that subsequently succeeded in maintaining itself “as if native.” A naturalized subject, however, was an alien admitted to the position and privilege of a native-born subject. A naturalized entity was manifestly not indigenous but rather akin to a foreign word, notion, or practice that had been admitted into general usage.
The Act of Anne (1709) had already provided for the naturalization of foreign-born Protestants. The British Nationality Act of 1730 clarified that all children born within the “ligeance of the Crown of England or of Great Britain” to fathers who were natural-born subjects at the time of such birth were indeed natural-born subjects of the crown.Footnote 38 This amendment facilitated the naturalization of a child with only one native-born parent, although in later constructions, it devolved principally on the identity of the father and rarely the mother, contrary to the much older expansive writ of De natis ultra mare, which had in the past provided for the rights of British subjects born overseas.Footnote 39 It also enabled the naturalization of a child whose parents were Britons but not necessarily subjects of England. The British Nationality Act of 1772 was potentially much more expansive. It deemed that the United Kingdom should not lose diverse “natural-born Subjects of Great Britain, who profess and exercise the Protestant Religion” residing in foreign cities, especially for the sake of commerce, where they had contracted marriages and brought up families.Footnote 40 Their children and grandchildren, it was stipulated, should continue under the king's allegiance and be allowed to return to Britain.
These constructions of subjecthood were based on an understanding of legal inheritance that stressed the importance of both place of birth under the sovereignty of the monarch (jus soli) and the claim of parental descent (jus sanguinis). The legal distinction between these criteria of origin remained contentious. English medieval law distinguished blood from allegiance.Footnote 41 Blood alone, without the benefit of parents born under the allegiance of the English crown, did not confer Englishness on an individual.Footnote 42 Thus, the rule of jus soli, which recognized the rights of one born within the limits of the sovereign's dominion, and that of jus sanguinis, rights and obligations derived from descent from liege parents, were never fully separated and remained in effect during the era of imperial expansion. Overseas and colonial contexts complicated matters further, with the proliferation of wars, conquests, and treaties, making it difficult to determine the true extent of royal dominion.Footnote 43 In such a context, blood and descent assumed far greater importance in the definition of imperial subjects. New territorial acquisitions urged new qualifications of the category of “natural born,” complicated by the laws of extraterritoriality. In the plantations of West Indies and the settlements of North America, for instance, colonial authorities exercised far less discretion in granting subject status to foreigners and immigrants, urged no doubt by considerations of commercial and practical expediency.Footnote 44
In territories annexed by the East India Company it was indeed blood over and above geography that became the most visible measure of distance between Indians and Britons. However, blood merely subsumed, and did not dissolve, other distinctions of race and religion, which remained crucial to the question of allegiance of British-Indian subjects. During the first decades of British rule in India, the political and legal status of subjects residing in the subcontinent continued in a state of uncertainty. Indians themselves in the territories governed by the Company had acquired the dubious distinction of being subjects of two empires, one in its twilight, the other keen to establish its political supremacy. As nominal subjects of the “Great Mogul,” from whose association the British fabricated the legality of their acquisitions in India and derived their right to land revenue as a species of property, they might not have been subject to the writ of English law, and yet they were rendered into British subjects by the law of territoriality. Cumulative royal charters empowered the Company to raise armies, sign treaties, and even establish courts of civil and criminal law. At the same time, however, they left much room for doubt. For one thing, the diplomatic and political connection with Indian powers could not be relinquished easily, and they certainly did not address the vexing problem of subjects transferred from one regime to other. I have argued elsewhere that a precise definition of sovereignty remained elusive in India, and thus in the British-held territories the essential difference between the rights and privileges of freeborn Englishmen, other people from the British Isles, Europeans at large, and the native inhabitants could not be settled for a long time.Footnote 45
Even more contentious perhaps was the case of people of mixed extraction, usually referred to as Eurasians or East Indians. By 1791, a whole set of measures had been passed, prohibiting the miscegenated offspring of Company servants from holding positions in the civil and military establishments.Footnote 46 The idea of blood as the rightful source of national origin (European, Asiatic, or African) came to dominate both the rhetoric and practice of colonial administration in India.Footnote 47 In England, beyond the specific writ of jus sanguinis, blood was often considered as a vital substance that determined inheritance, social rank, and identity, and recognized as such in legal usage. Such founding notions had been enshrined by William Blackstone, the preeminent jurist of eighteenth-century England, in his Commentaries on the Laws of England, where he asserted that every man's blood was compounded of the blood of his respective ancestors.Footnote 48 It is debatable how far Blackstone's ideas of blood translated into practice in respect to the legal status of nonwhites. People of full- or part-Indian “blood” and their children, often from marriage with Britons, were often assimilated, without questions about their legal status being raised.Footnote 49 However, as we shall see below, the discourse of sanguinary inheritance both within and outside the purview of the law ultimately affected the relative status of British and Indian subjects.
In India, distinctions had to be cast in a more rigid mold.Footnote 50 Here, application of the rule of blood shaped not only the racial disposition of the Company administration toward subjects of Indian origin but also helped reassert the fine line between the English and other Britons. In practice, “blood” often functioned as a metonym for various other identifiers, including race, nationality, religion, and class. The very category “British” was fraught with the idea of racial degeneration, especially as the possibility of a mixed society on the Ibero-American model had been ruled out as too dangerous. These ideas of racial purity and contamination were emboldened, as Kathleen Wilson has argued recently, by the assertion gaining ground in the eighteenth century that England was indeed populated by a special and dominant race exclusive to the island.Footnote 51 Early in the nineteenth century, when Indians began to settle in visible numbers in Britain itself, various inconsistencies emerged regarding their status as subjects in relation to their gender, class, and origin. As Mike Fischer has recently brought to light, there was a conflict of interest in this regard between directors of the Company and the Parliament that led to further confusion regarding the proper legal identification of Indians.Footnote 52 Parliament defined the term “Indian” in the broadest geographical sense, concerned mostly about the potential financial burden of indigent Indians on Britain's streets, while the directors tried equally to relinquish their responsibility for these people by closely limiting the definition. At the same time, the Company was also expanding the category “Indian” so that they could exclude from its service “all people of questionable British identity,” based on constructions of ancestry, culture, geographic origin, and physical appearance. Indian wives and children of British men who settled in the Islands remained largely dependent on those men for support and were identified according to the social class of their husbands and fathers. Depending on the position of their spouses, some Indian women assimilated into British society, but others who were abandoned struggled or returned to the subcontinent. Their cultural identities were perceived as more pliable than those of men.
Fused ideas of nation, race, and blood, although shifting and conflicted, were nevertheless important to a self-perception of Britons in India, and at times they translated into clearer racial distinctions, setting the conquerors apart from the rest. The struggle to restrict racial intimacy was hardly new in the era of European expansion in the greater Atlantic. Measurement of the exclusivity of blood had been a feature of British North American society in the preceding century. It was also common across the French Atlantic, including the Caribbean, where—as new work is beginning to show—metropolitan discourses of social and moral hierarchy were translated during the seventeenth and early eighteenth centuries into ideas of sang, mésalliance, and anxieties of purity and pollution vis-à-vis native Indian and African slave populations.Footnote 53 However, in many respects, the use of blood as a quasi-medical and legal category in British India anticipated colonial policies of a much later period, such as those of French Indochina in the early twentieth century, when the blood and physical features of the métis were routinely screened by medical and legal authorities before the métis could be considered fit for French citizenship.Footnote 54
What makes the British-Indian case notable is that these issues related to blood were articulated and debated at length in Calcutta's Supreme Court of Judicature in order to distinguish Britons from Indians. These legal trials open a window into the use of language in the courtroom, providing a plainer view of the functional and administrative use of racial classification. In courtroom debates over the legal status of British subjects of Indian settlements, two fundamental identifiers emerged: place of origin and purity of blood. Notions of Englishness and Britishness remained necessarily complex, multivalent, and shifting. However, in the context of certain specific legal questions, including patrimony, inheritance, and crime, identities were measured by a simple sanguinary arithmetic. A species of informal “blood” certificates became the functional equivalents of national-imperial classification of subject population, with a lasting impact on the racial configuration of the Indian Empire.
National and imperial identities have been the subject of much contention in recent scholarship, and there is little scope in this article to address the larger debate concerning the British Empire across the greater Atlantic.Footnote 55 Imperial identity, much like any other identity, can be regarded broadly as a descriptive category tied to the ontology of selfhood. However, the law was obliged to consider individual identity in a much more prescriptive and constricted sense. In British India, for instance, legal distinctions made among various classes of British subjects had the ultimate power of determining life and death in a criminal matter. This is not to say that such determinations were easy, given the complex, problematic, and essentially unstable social hierarchy of early colonial India comprised of Englishmen, Irishmen, Scotsmen, Anglo-Indians (Britons settled in India), EastIndians and Eurasians (of mixed stock, blood), Asiatics, Africans, and Indians, both Hindu and Muslim. The British-Indian law courts were confronted with the unenviable task of straightening out these often unclear distinctions and arriving at an unambiguous, consistent, and instrumental division of imperial subjects. In doing so, it also affected in turn the wider social and cultural order and the identities of people residing therein.
Native Laws and English Justice
The city precincts of the imperial capital, Calcutta, in the last quarter of the eighteenth century marked off a new Indo-British frontier society, where colonial law courts attempted to tabulate racial descriptions of defendants and plaintiffs. This was particularly evident in the realm of criminal law, where a distinction had to be made as to who would be tried under Islamic law as practiced in the courts of the Qazi, and who would be tried under the laws of England. Indigenes were supposed to have been left to their own devices in matters of religion, custom, manners, and so on, so long as the revenue was yielded and law and order maintained. Toward this very purpose, native legal institutions were subject to administrative scrutiny and reform. Governor General Warren Hastings (1773–84) was particularly emphatic on the point that the natives were “not to be tried by our notions of justice, but by the established law of the country,” and the Company government would honor their “ancient usages and institutions.”Footnote 56 In this endeavor, he was supported by the distinguished Orientalist scholar and jurist Sir William Jones, who proposed that English judges should be proficient in the Hindu and Muslim legal traditions, to which end copious digests were to be compiled from Sanskrit and Arabic originals.Footnote 57 Blackstone's dictum was that the lawfulness of punishing criminals could only be founded upon the principle that the law by which they suffer was made by their consent. To that effect, Indian natives too were regarded as “formed for society,” notwithstanding their decadent mores and moribund institutions.
Such a conviction set up lasting ambiguities in the legal framework of British India. In the case of the Bengal Presidency, which was to become the bridgehead and centerpiece of the East India Company's regime in India, indigenous courts of law were appropriated from the old Nawabi establishment, styled as the Sudder Dewanny Adawlut (court) for matters civil and the Sudder Nizamut Adawlut for matters pertaining to crime and punishment. The president and members of the East India Company's council, a body that would eventually be accountable to the board of control established by act of parliament, was now appointed to supervise these newly reconstituted courts. There was, however, little uniformity in the understanding and practice of law beyond grand imperial prescripts of the Mughal court and its lawgivers. This had to do both with the time-honored interpretive traditions of the several branches of Islamic law in India (based on scholarship in Arabic and Persian) and with the various contending schools of Nyaya and Smrti (based on scholarship in Sanskrit), lumped under the dubitable rubric of “Hindu law.” Ostensibly, all matters criminal, or against the interest of the imperial realm, came under the Hanafi school of Islamic law as patronized by the Mughals. Indo-Islamic laws were not widely translated or codified, unlike Hindu laws that English legal scholars such as William Jones, Nathaniel Halhed, and Henry Thomas Colebrooke had interpreted and digested under the patronage of the East India Company. In regard to criminal law, the British resigned themselves to the idea that Indians should be subject to the Islamic code and its barbaric sanguinary code for an indefinite period of time, albeit under the ameliorating custodianship of a new generation of British judges and magistrates in the Nizamat Adawlut and circuit benches.
Only the native population came directly under the writ of Islamic criminal law, administered in the Indian countryside by officers of the East India Company. It would have been preposterous to imagine that any Briton, let alone a freeborn Englishman, should suffer the consequence of their crimes under a despotic and arbitrary legal system. To this end, the Supreme Court of Judicature at Fort William replaced the Mayors Court of Calcutta on 26 March 1774. Natives from other parts of British India, if they were involved in a criminal suit with Englishmen or other Europeans, were also subject to English law. In the city itself, the mayors court had operated since the early decades of the eighteenth century, dispensing civil and criminal justice for the English and the resident native population that had grown within the city precincts. In fact, one of the main bones of contention between the English Company and the Nawab of Bengal, which had led to the Battle of Plassey (1757) and the subjugation of Bengal, was precisely over the allegation that the British were insisting on extraterritorial immunity from the writ of the Mughal Empire for their Indian dependents. In fact, they had even sheltered fugitives from the Nawab's dominion, which was a violation that provoked, in part, the attack and siege of Calcutta in 1756.
Curiously enough, the Maratha ditch, a makeshift defensive moat around the city of Calcutta, was destined to become the de facto boundary for the writ of the supreme court. From early on in the eighteenth century, the East India Company had been keen to secure its trading outposts in Bengal from the depredations of the Marathas, a rising confederate power in western India. In 1740, a wave of Maratha cavalry had advanced toward eastern India and for a while threatened to take over and even lay waste to prime cities and markets in the provinces of Bengal, Bihar, and Orissa.Footnote 58 The Nawab of Bengal, Alivardy Khan, eventually contained them in 1751. There are remnants of a ditch today in present-day Kolkata that was dug by the British to stop the vanguards of Maratha cavalry from attacking Fort William. Known simply as the “Maratha ditch,” within a few decades it became the symbolic and functional dividing line between the English city and the Indian countryside. English residents of Calcutta connected with the East India Company were labeled with the ungainly epithet of “Ditchers” by more adventurous Britons in missionary, trading, and plantation posts in the interior.Footnote 59
The native inhabitants of Calcutta, however, continued to pose a vexing problem of jurisdiction. Indians—Hindu or Muslim—living within these precincts were obliged to accept the full benefits of English law in all matters, except of course that none were allowed to share the ranks of judges, lawyers, and the petty or grand juries. Taxation without representation was, after all, the very stuff of the Indian empire. Equally important, after 1776, Indian natives involved in any affray with Britons leading to criminal prosecution were increasingly required to appear in the Calcutta Supreme Court as defendants, plaintiffs, or witnesses and subject to the full extent of English law.
The details of many such criminal cases can be found in the archival records from the early decades of Company rule in north India, especially in Calcutta, which became the administrative center of British India and remained so throughout the nineteenth century. Dockets kept at the present-day Calcutta High Court dating back to the inaugural years of the Supreme Court of Judicature, although incomplete and damaged, provide clues to the length and frequency of criminal cases. Many of these are corroborated and more fully fleshed out in some 73 volumes of legal diaries kept by Justice John Hyde in longhand for about twenty-one years (1775–95), known as the Hyde Papers or the Hyde Report. Hyde was an indefatigable keeper of case records and took copious notes on witness accounts and statements of counsel and of his brother judges, among them, Elijah Impey, Robert Chambers, Stephen Caesar Lemaistre, and, subsequently, William Jones and William Dunkin. Among these, I have drawn from the sessions of oyer and terminer and general gaol delivery, which list almost all the cases before the grand and petty juries.
Problems of Jurisdiction
From the very first trials, one can detect a concern over whether the defendants brought to justice in the Supreme Court were indeed bona fide subjects of the king and the realm of Great Britain. The right of such true subjects to be tried by the laws of England was succinctly argued for in the case of one Thomas Boileau of the city of Dublin, Ireland, who came to Calcutta in 1780 hoping to be accepted as an attorney of law and a prosecutor to the supreme court. His application for admittance was viewed with caution by officers of that court on the basis of the fact that he had never been admitted to a court of law in England or Ireland nor had he served in a clerkship for a minimum of three years. The motion in his favor was based on the very words of the charter of 1774 authorizing the Court at Fort William, Calcutta, that the “powers and authorities hereby given and granted, for the due administration of justice, in the most beneficial manner, to all our loving subjects” applied not only in Calcutta but in all provincial districts in the possession of the Company where Britons resided. In ordinances and bylaws made by English inhabitants of Calcutta, one finds an even stronger sentiment expressed in a case brought before the Supreme Court of Judicature on 14 November 1780: “Englishmen in all countries seem to expect to be governed exactly as they are in England: `ubi imperator, ibi Roma.' They carry an atmosphere of liberty about them wherever they go, they are such enthusiasts for liberty they will not by compulsion be saved from being burnt or drowned, but call it Tyranny.”Footnote 60 England, like ancient Rome, had assumed the status and insignia of a universal Empire whose laws were seen to stand above country, creed, color, and rank. Any acknowledgment of a separate legal status for Englishmen, and, by extension, Britons, would have been seen at this time as repugnant to the very idea of an enlightened legal tradition. And thus the British residents of Calcutta and also the inhabitants of undisputed European extraction—Italians, Portuguese, Greek, and French—became subject to the writ of England by virtue of the protection offered under the delegated authority of the East India Company. However, the fate of the Indian inhabitants of the city and its environs remained unclear. As we have seen, Indians living within the infamous Maratha ditch were subject to the jurisdiction of the British courts. Yet, on the exact point of law it was not easy to determine the status of newly recognized Indian residents in the law court. According to sovereign law, people born before the formal assumption of Diwani (1765) by the East India Company were not necessarily considered as naturalized subjects of Britain amenable to British laws.
An alarming degree of ambiguity in the subject status of Indians was revealed during the infamous trial of Raja Nandakumar (Nuncoomar in the British records), a high-ranking servant of the Nawab of Bengal and also a Brahman and raja holding his rank from the Mughal emperor in Delhi. Nandakumar, framed by Hastings and his associates, was hanged in Calcutta on account of forgery.Footnote 61 This was a charge associated with treason in England; however, by contemporary Indian standards, the penalty of death was unthinkable in its severity for what was considered to be a relatively minor transgression. Nandakumar had become involved in the dispute between members of the supreme council appointed to watch over the conduct of the governor general. He was a convenient stooge for Hastings’ detractors, who put him up to filing charges of corruption against the governor general. In retaliation, Hastings and his supporters accused Nandakumar of forging official documents. However, the raja was wealthy and influential and employed Englishmen as counsel in his cause at the supreme court. In his petition to the governor general and council prepared by attorneys Farrer and Brix, he pleaded ignorance of the English law of forgery and its penalty, appealing against the circumstance that “a municipal law, calculated and made for the meridian of Great Britain and its native inhabitants” was being introduced into India “to make this offense punishable with death in a Hindu native of Bengal.”Footnote 62 Moreover, the raja was a Brahman and, by the status accorded to his caste, was not liable to capital punishment. In fact, after the raja's hanging, a majority of Brahmans deserted the left bank of the river Hugli, including the city of Calcutta, on the grounds that the murder of an innocent Brahman had indeed defiled the entire area. Nandakumar's case became something of a cause célèbre, indicative of the popular assertion that the British conquest had brought a particularly severe kind of penal code to the region. Partially responding to widespread native outrage, the British turned away from hanging Indian Brahmans in cases of capital offense and began transporting them into lifelong exile, often in the new penal colony on the island of Penang (Prince of Wales Island) off the coast of the Malay Peninsula.
The Nandakumar case also raised the question of who should be tried as a British subject. As one of the main historians of the case, H. Beveridge, observed, Chief Justice Elijah Impey's unequivocal pronouncement that a jury consisting only of “British subjects” should try the raja betrayed a profound ambiguity in the stance of the supreme court. It could be reasonably argued that the whole population of Bengal, Bihar, and Orissa, provinces administered by the East India Company, were British subjects by virtue of the Company charter. At the same time, some contemporary observers suggested that one could only be tried as a British subject insofar as one was a “true-born” Englishman. Yet others argued that the inhabitants of Calcutta, in contradistinction to those of the rest of Bengal, could claim to be rightful subjects of Britain by virtue of the Company's “conquest” of Bengal independent of its obligation to the Mughal Empire.Footnote 63 From the arguments advanced during Raja Nandakumar's trial, it is clear that opinion was divided at the time on the hierarchy as well as the territorial jurisdiction of His Majesty's imperial subjects in India. It highlighted the potentially fraught and uncertain premises surrounding the legal status of Indians under early British rule.
It came to pass in subsequent years that every soul residing within the precincts of Calcutta (120,000 by 1750), as well as Company servants and Britons at large in northern India, or indeed anyone involved in a criminal matter connected to subjects construed as “British,” was liable to be tried at the Calcutta Supreme Court. Thus, the language and terms of indictment for a criminal offense continued in many ways just as they had been under the mayors court. A typical, lengthy indictment from the years 1769–72 reads thus:
Jurors for our Lord King upon the oath present that James Miller late of the Town of Calcutta, merchant on the twenty-fifth day of November in the thirteenth year of the Reign of Our Sovereign Lord George III King of Great Britain with force and arms at the Town of Calcutta … upon one William in the Peace of God and Our Lord the King, then and there being did make an assault and him the said William then and there, and did beat and wound and ill treat so that his life was greatly despaired of and other wrongs to the said William then and there did to the great damage of the said William and against the peace of the said Lord King His Crown and Dignity.Footnote 64
Terms of the above charge would have been exactly similar to indictments at the contemporary Old Bailey.
Merchants from other European countries within the city limits were also considered as belonging to the same jurisdiction.Footnote 65 Persons employed by the Company, including soldiers, were in like manner subject to the writ of the Supreme Court. Thus, in 1816, Thomas Perth, charged with manslaughter in Mirzapore, a town on the Ganges at a considerable distance from Calcutta, in the province of Benares, was brought to trial at the supreme court on account of the fact that the said place had been annexed lately and “made subject to the Presidency of Fort William.”Footnote 66 Often, a verbal testimony or oath given in the court by a military sergeant without anything in writing was accepted as requisite legal evidence to establish the court's jurisdiction.Footnote 67
The Question of Allegiance
The definition of a “British subject” on the point of law, however, remained vexatious. In a little more than a decade after Nandakumar's trip to the gallows, this very point was debated extensively in a case involving debt bonds between an Indian merchant Chait Gir Gossain and Michael de Rozario, a Portuguese.Footnote 68 In his testimony, Gossain did not hesitate to declare himself under the jurisdiction of the court. But the case of De Rozario was more contentious. De Rozario's lawyers advanced that not only had he lived in Calcutta all his life but his family had been there for a period before the city was retaken by the British from Siraj, the Nawab of Bengal. The fact that this Portuguese family had at one time been under the aegis of the Nawab, and had been residents of his abortive regime in Calcutta (which he renamed Alinagar after his grandfather), presented a potential problem. Mr. Martin for the defense argued that, although by established regulations the Supreme Court of Calcutta could hear and determine against any inhabitant of India residing in the Company provinces, the construction “any of His Majesty's subjects” very likely conflicted with the received description of “British subjects.”Footnote 69 A man born in Calcutta before the British recaptured it thus did not fall within either of these descriptions. William Dunkin for the plaintiff countered that the expression “British subject” was not to be constricted and limited to “native British subjects.” “If words were so restrained,” he argued, “there would be a manifest failure of justice.”Footnote 70 All “British subjects” thus unambiguously referred to any of “His Majesty's subjects.” The very fact of conquest bestowed a right to “those who remain” to be governed by the civil and criminal laws of Britain. In fact, the court itself had taken these very words from the Company charter in the case of the selection of the jury “in the most extensive sense.”
The court, presided over by Sir Elijah Impey (Chief Justice), Justice William Jones, and Justice John Hyde, eventually dismissed the motion of a nonsuit. Yet the judges felt it necessary to explain the substantive nature of subjecthood as commonly and expressly understood in a court of law. This explanation is an important clue to the tangled question of the identification of subjects of the United Kingdom in a distant but significant outpost of empire. The term that the court chose to fix the meaning of a legal subject was “allegiance.” Allegiance was first and foremost “perpetual” to the indelible laws of England (as indeed William Blackstone had interpreted). Second, it could be rendered as “temporary,” in the case of (1) foreigners resident occasionally in Great Britain and Ireland and (2) foreigners resident in “dominions beyond the sea.”Footnote 71 Such allegiance devolved to persons residing in any place annexed to the empire, so long as they remained there and so long as the said place continued in the possession of the king. Such was the status of the remaining Dutch, French, and Portuguese settlements in British India.
Impey, Hyde, and Jones entertained a clear and unambiguous view of allegiance as unalloyed fidelity to the crown; they understood it further as a definable substance in relation to the body and the body politic of the kingdom. This was based on the legal principle that a “man cannot abjure his native country nor the allegiance which he owes to his sovereign” (Nemo patriam in qua natus est exuere nec ligeantiae debitum ejurare possit).Footnote 72 Renunciation or neglect of allegiance was tantamount to high treason, for allegiance was the ligamen that bound subjects to their sovereign liege lord the king in return for the protection afforded. Refusal to take the oath of allegiance was subject to the charge of praemunire, the acknowledgment of any spiritual authority other than the court of the reigning monarch, especially that of the Vatican, tantamount to sedition.Footnote 73 A natural-born subject withdrawing from allegiance in favor of the pope, or any other prince or state, also accrued the guilt of treason. For example, the natives of Hanover were forever pledged to the person and the majesty of the monarch. An oath of allegiance was implicit in the very understanding of a royal subject; jurists such as Leoline Jenkins, writing in the seventeenth century, held that the king had the perpetual right to prevent subjects from leaving the kingdom and also to command them to return. Further, one could not sever one's allegiance to the crown merely by leaving for a foreign country.Footnote 74 As late as the reign of Charles II, people were occasionally punished for refusing to take the oath of allegiance, although the clause of praemunire was rarely applied in English courts of the eighteenth century.Footnote 75
Notions of allegiance to the king, and thus, by extension, to the imperial state, were thus resurrected in the context of early British India. As argued in the aforementioned case at the Supreme Court of Judicature, Calcutta, allegiance was due from British subjects within the United Kingdom who were (1) native born, (2) naturalized, or (3) denizens. Foreign, overseas subjects were considered (1) natural-born subjects at places that have “long belonged to the King and His ancestors in Right of the Crown,” such as the islands of Jersey, Guernsey, Jamaica, and so on, and (2) persons born in places, but subsequent to the acquisition of such places by the crown. At the farthest end of the hierarchy were aliens devoid of inheritable blood according to established principles of nation and society. In feudal law, aliens were at par with bastards; only an alien made a denizen by the king would have been able to pass on his property to a son born after the fact, while a parliamentary act of naturalization was intended to absolve all prior defects.
I consider this debate over terminology to be of much significance in fathoming the depth of issues surrounding the hierarchy of subject races emerging in the Indian settlements of the British Empire. These were not simply innovations contingent upon an unforeseen extension of empire but were based on a reconsideration of intimate institutions and practices of the old Hanoverian state. Colonial law was not created tabula rasa in this regard but rather through a reassessment of the relation between domestic and imperial law, with a careful attempt not to subvert established jurisprudence. The Calcutta Supreme Court attempted strenuously in this regard to safeguard the essential continuity of legal practice along the established doctrines of res adjudicata and stare decisis, building on the established tripartite classification of “alien,” “denizen,” and “natural born.”Footnote 76
As I have suggested above, legal and historical constructions of allegiance had long informed national and patriotic constructions in England, and popular expressions of sectarian, exclusionary sentiments had often come to the fore when called to question. Yet these distinctions were also changing during the late eighteenth century as the British empire was expanded and redefined. In 1753, a large section of the public took exception to the very idea that Jewish immigrants could become citizens without having to conform to the Church of England in the Jewish Naturalization Act, which led to such vicious campaigning and sexualized slander that eventually it had to be repealed.Footnote 77 In this instance, popular outrage had a direct bearing on the fate of legislation. In 1778, Lord North's government sought to revise some of the strictures against Catholics by allowing them to buy and inherit land; priests could open schools, and Highland Scots could enlist for war (below the rank of officers) against the American Colonies and the French. But those who took to the streets in London, Hull, Bath, and Edinburgh in the Gordon riots saw these concessions as one freedom too many. Quite apart from the mob latching on to what Dickens would later describe as a “confederacy among the Popish powers to degrade and enslave England,” driving people to “common fear” and blind “resistance of they knew not what, they knew not why,” a paramount issue was the question of allegiance to the King and the realm of England.Footnote 78 This was because the Act of 1778 had tacitly dissolved a much older rejection of the papacy's “attempts upon the crown” and its potential derogation of English regality.Footnote 79 In fact, it replaced the ceremonial denunciation of the pope enforced before by a simple oath of loyalty to the king.Footnote 80 Equally important was the language deployed in the charge of treason famously read to Lord George Gordon, indicting him for not “weighing the duty of his allegiance, but being moved and seduced by the instigation of the devil and entirely withdrawing the love and true and due obedience that every subject of our said Sovereign the Lord the King should and of right ought to bear.”Footnote 81 The Gordon riots are but one indication of what Linda Colley has described as the vast and foundational prejudices of eighteenth-century England that led to the vilification and scapegoating of those “who were not allowed to be British so that others could be.”Footnote 82 Fear of popery and Catholicism contributed to a shared sense of national unity across class and privilege.Footnote 83 The enduring antipathy toward all things French was also tied to such feelings.Footnote 84
Questions of allegiance and loyalty related to the issue of religious tolerance and the genealogy of legal sovereignty also affected the status of British Indian subjects, although in different ways. Historians of Ireland and the Irish in England have long pointed out that Irish Catholics continued to be viewed and discriminated against as “aliens” and “outsiders.”Footnote 85 But in India, the subnational distinctions of Irish, Scottish, and English did not matter to the same degree, beyond the commonly accepted connotations of class and provenance. A career in India, after all, was much sought after by the Irish and the Scots—both subsumed under the category of “Anglo-Indian.” By the early nineteenth century, Scottish and Irish pupils from grammar schools all over Britain were applying in large numbers to join the Fort William College (1800) in Calcutta and later the Haileybury College (1806) set up to train civil servants before their departure for India. Subject to the demographic demands of imperial expansion, settlement, and mercantile opportunity, it is possible that certain subnational and sectarian differences began to matter less.
In 1790, when John West and John Peak were brought to trial for the murder of a native man Puran Krishna in Dayanagar, Bengal, they were charged as subject to the jurisdiction of the Calcutta Supreme Court, based on the fact that they were “British subjects resident in Bengal by the Statute of 26th George III, chapter 57, section 29, liable to be tried in the Court for murder or any other offense committed within the Company's Limits of Trade.”Footnote 86 Judges William Jones and John Hyde heard and accepted in this case the verbal testimony of William Cotton, a piper in the King's 73rd Regiment who submitted that to the best of his knowledge one of the accused hailed from Shropshire and the other had been a drummer in Somersetshire. In the year 1791, when James Clarke, a soldier in the service of the East India Company, was indicted for the murder of Goursay (possibly a man of African descent) at the cantonment of Dinapore in Bihar, there was some confusion at the supreme court about the appropriateness of its jurisdiction. The court accepted the verbal testimony of a sergeant in the Company service, without adducing any written contract between the defendant and the Company or any written evidence of his being in active duty. The presiding judges stated clearly that they had “no doubt such verbal evidence of service is not only the usual evidence of the fact, but legal evidence.”Footnote 87 Their opinion was based on the Act of Parliament, 13th George III, chapter 63 and the Company charter of 25 March 1774, which stated that persons not only in the service but actually “employed by the Company” were subject to the writ of the Calcutta Supreme Court. Since the sergeant had seen James Clarke actually mustered, the jurisdiction was established. That summary and often cursory, verbal testimony submitted to the judges and the jury in Calcutta was accepted without further inquiry points to the fact that the question of blood was often settled by acquaintance, common knowledge and appearance, rather than rigorous genealogical and medical proof. More important, however, the presence of millions of Indian subjects set apart by appearance, creed, race, language, and history urged a sense of belonging that was expansive, expatriate, and decidedly Christian.
Law and the Colonial Divide
The history of the evolution of common patriotic distinctions between Britons and outsiders in the latter part of the eighteenth century, inhering to the denominational as well as secular hierarchies of subjects, deserves much further discussion in the context of British domestic history. This much seems to be true, however: the relationship between religious majorities and minorities in England—between Anglicans, Presbyterians, Independents, Baptists, Quakers, Unitarians, Methodists, Catholics, and Jews—shaped the disposition of Georgian society and thus also the intimate idioms of English legal culture. There are, however, still more significant, although less commonly visited, aspects of the relationship between legal discourse and subject formation in the colonial context, especially in situations where there must have reigned a great divergence between the language of law and the language of everyday speech.Footnote 88 Clearly, nonconformity, dissent, and reaction did not affect jurisprudential orientation and exercise of the law in the British Indian law courts in the same way they did in Georgian England. Yet it is possible to suggest that the required stringency in the exercise of law in this era of colonial expansion, which produced in its wake a racially besieged sense of citizenship, created a new species of legal subject in the courtrooms of the Company Raj. One needs to be particularly attentive here to the association between the language of administration and the language of the law, a question much debated in contemporary studies of legal discourse and critical legal theory, which continue to remind us that the rule of law cannot be studied in isolation from normative social relationships.Footnote 89 An apt analogy is that of the relationship between language and speech. As legal critic Robert Gordon argues persuasively, specific legal practices of a culture are derived from an original body of law as much as dialects draw upon a parent language: “Even a legal system clotted with technicalities is unlikely to depart drastically from the common stock of understanding in the surrounding culture in the methods it uses to categorize social realities, the arguments about facts and values it recognizes as relevant and persuasive, and the justifications it gives for its exercise of power.”Footnote 90 Of course, in the case of British India, such common understanding was complicated by the peculiarities of a diasporic legal culture, beleaguered with the administrative burden of millions of newly acquired subjects who did not speak or understand English or Latin. In this regard, the alienation of language reinforced the separation of race and religion.
In legal records, the figure of the native emerges as a doubtful recipient of the benefits of such alien laws. Court dockets and legal diaries such as the one kept by Hyde give us a glimpse into the deliberation, methods, and functions of judges, lawyers, and juries, but not much about court reporters, petty functionaries, and, most important, interpreters. In any case, no matter how rich or detailed the archival record might be, it is hard to investigate in depth the relational subjectivities brought into play in the duration of an actual legal trial, not to mention the shifting and transitory forms of subimperial and subnational legal identities. In this regard, the question persists: how did the newly established law courts affect the attitude of those who found themselves drawn into lawsuits alongside the English? This essay cannot provide a full answer to this question. However, it is worth rehearsing Lauren Benton's signal point that colonial law did not merely exist in a realm of disconnect, cognitively and epistemologically cut off from the society at large.Footnote 91 Of particular importance was the location of colonial intermediaries, described by Benton as agents of legal administration “who were not fully subjects of the law,” both within and outside of the court.Footnote 92 As more Britons became embroiled in lawsuits with Indian subordinates, intermediaries, and servants, and put them on occasion on an equal footing with other native subjects, the everyday hierarchies of British-Indian society were increasingly refracted and reconstituted through the instruments and procedures of colonial law.
At the same time, however, the legal establishment of the Calcutta Supreme Court remained in the hands of a colonial, expatriate, and racially distinct community that did not entertain local ideas of justice and retribution. Its particular discursive formations, conventions of trial, and instruments of authority were not readily amenable to translation, leaving a space of indeterminacy and misrepresentation, and thus also of potential subversion. It has been the argument of this essay that this irreducible distance engendered new legal entitlements as much as did the proximity of radically different subjects of empire. The fleshing out of these terms at the mayors court or the Supreme Court of Judicature in Calcutta indicates that the king and the country of Great Britain were inserted at the very center of an expanding imperial formation. They also suggest that Britons in India, toward the last decades of the eighteenth century—in the era of the American Revolution and the Seven Years War—despite the fact that their own immigrant settler status had hardly been secured in the Indian subcontinent, viewed their distant possession as yoked to the very core of their nation-state. And although India by the turn of the century had been designated as a dependency rather than a settler colony, the racial hierarchy of subjects in the context of law seems to suggest that the British had already begun to regard their Indian settlements as permanent acquisitions. Imperial Calcutta in this regard provided a sustained arena of legal experimentation and trial. Thus, in one of the farthest reaches of the British Empire in the eighteenth century, in territories governed essentially by a mercantile corporation, formulations of native, naturalized, and resident subjects had become precociously functional.
The archives of the first major court in India dispensing English law indicate an assertion, sometimes uncertain, sometimes more confident, of the term “British subject” as a centrally inscribed entity, as part of a new, involuted state, where the recently arrived ruling minority formed the principal core of subjects around which others could be arranged. It is hard also to overlook the fact that this was fueled by a sense of patriotic duty to king and country as much as an implicit faith in Protestant Christian virtues; these were unspoken attributes around which racial lines were drawn between subjects national and imperial. In this regard, the native inhabitants of India who found themselves in the close proximity of AngloBritons—especially, in this case, the precincts of Calcutta, a city that had been reclaimed in the late seventeenth century by an Englishman, Job Charnock—discovered their status as inhabitants of their own country reversed, with or without their consent.
