Indian Settlements & the British Law 1726-73

A review of “They Have Travailed into a Wrong Latitude:” The Laws of England, Indian Settlements and the British Imperial Constitution 1726-1773, by Arthur Mitchell Fraas.

This dissertation is a detailed exploration of the early history of British law in India, most particularly in the port settlements of Bombay, Madras, and Calcutta. Through his study of the workings of legal institutions in these three cities, Mitch Fraas argues that the ways in which they were conceptualized and functioned were similar to other parts of the British empire in the eighteenth century. Thus, what existed in locales as diverse as Philadelphia and Madras was the framework of British law — its language, rhetoric and procedures tailored to particular circumstances — along with local legal forums and practices. The latter functioned in a variety of ways — the participation of community elites in policing and regulating social conflicts; the privileging of custom in the resolution of disputes; the attention paid to social status in the adjudication of cases, to name but a few instances. Importantly, Fraas emphasizes that far from being merely ad hoc or opportunistic, East India Company rule in these three enclaves was thought out and coherent and that their plural legal contexts was the accepted principle that animated the imperial constitution of the larger British empire.

This is a long and detailed dissertation. Chapter 1 provides the background to the story that follows by arguing that the East India Company governed Bombay, Madras, and Calcutta with a high degree of autonomy in the early eighteenth century and was for the most part unsuccessful in the imposition of metropolitan norms and practices of law. Chapter 2 discusses the increased involvement of the British government in the Company’s administrative affairs, and focuses in particular on the Constitution of 1726 which attempted to bring India into a legal world shared by both metropolitan England and the rest of its empire. Chapters 3, 4, 5, and 6 are the meat of the dissertation; Fraas looks at a variety of cases, civil and criminal, to delineate the links–in terms of personnel, ideas and institutions — that connected India to a wider legal order. At the same time, he demonstrates that the anglicizing trends within British governance were always mitigated by deference to local institutions and customary legal practices. The final couple of chapters examine the emergence of a racialized civilizational discourse in the mid-eighteenth century that would ultimately result in demands for an exclusionary legal establishment in India that would sever its links with the wider world of British law.

The most interesting part of Fraas’s work deals with what he considers the bestowal of the status of British subject-hood on the English and most significantly, non-English inhabitants of Madras, Bombay and Calcutta. Remarkably this was a situation that often appeared to transcend the barriers of race, as Hindu, Muslim and Parsi merchants forged alliances with Europeans, used English lawyers as well as the language and rhetoric of metropolitan law, and made appeals to the Privy Council in London. Further, the questions that were thrown up by the legal cases that they were involved in meant that they were drawn into discussions about the nature of British subjecthood and governance, as well as the limits of empire. Fraas also forefronts the issue of agency which he believes has been elided in studies of colonial law which largely focus on the period of high colonialism in South Asia, and which sees law in terms of an authoritarian imposition rather than the negotiations between the local populace and the state. The most impressive manifestation of native agency for Fraas was in the form of “forum shopping” done by Indian merchant litigants who moved between European and non-European legal forums to their own advantage. On the one hand, Fraas removes the South Asian case from its historiographical isolation and puts it into conversation with the rest of the British empire; on the other, he also questions the teleological assumption inherent in studies of advanced colonialism in the nineteenth century that a racialized and coercive state was the only possible outcome of the British encounter with India. Instead, Fraas delineates a story of an inclusive idea of British subjecthood in the early eighteenth century.

I have here condensed Fraas’s complex narrative that discusses the different phases in this history, the nature of the legal institutions that emerged in these cities, the relationship between the East India Company and the British Parliament, the global circulation of texts and legal personnel and the details of the cases themselves. This is not because these particulars are unimportant; indeed the commitment to empiricism is one of the major strengths of this work. Fraas has consulted archives in the United States, United Kingdom and India and the records he has looked at range from Mayor’s Court Records, Privy Council Records, selections from the India Office European Manuscripts section (including various Letter Books, the Orme Manuscripts and the Mackenzie Manuscripts) and an impressive collection of private papers and correspondence. His work, while strikingly original, is in constant conversation with the framework outlined by historians like Lauren Benton (Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400-1900. Cambridge: Cambridge University Press, 2002) who study colonial law in a global perspective. At the same time with its close attention to detail, this dissertation avoids the pitfalls of the generalizations inherent in broad comparative studies which rely heavily on secondary sources. Indeed, given the paucity of scholarship on the administrative history of this early period in British India, Fraas’s painstaking reconstruction of the legal institutions of the time is a formidable achievement in itself.  Empirical research of this kind along with provocative and important conceptual questions make this work a valuable and important addition to the corpus of literature on law in South Asia, and the British empire.

Aparna Balachandran
Department of History
University of Delhi
aparna_balachandran@yahoo.com

Primary Sources

Manuscript sources from: University of Minnesota; Historico Arquivo Ultramarino, Lisbon; Yale University; Oxford University; British Library; The National Archives at Kew; Cambridge University; Guildhall Library, London; Historical Society of Pennsylvania; Cleveland Public Library; Library of Congress; Maharashtra State Archives, Mumbai; Norfolk Record Office; Duke University; Society of Antiquaries of London; Tamil Nadu State Archives; Torre do Tombo, Lisbon; William Salt Library, Stafford.
Various print archival and manuscript sources
Printed case reports
Printed works prior to 1800

Dissertation Information

Duke University. 2011. 520 pp. Primary Advisor: Edward Balleisen.

Image: “Old Court House and Writers Buildings in Calcutta” (1786), no. 2 in Thomas Daniell’s series Views of Calcutta. The Calcutta Mayor’s Court met in the building to the far right. British Library Asia, Pacific, and Africa Collections P-95.

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