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“They Have Travailed Into a Wrong Latitude:” The Laws of England, Indian Settlements, and the British Imperial Constitution 1726-1773 by Arthur Mitchell Fraas Department of History Duke University Date:_______________________ Approved: ___________________________ Edward Balleisen, Supervisor ___________________________ Janet Ewald ___________________________ Philip Stern ___________________________ David Gilmartin ___________________________ Holly Brewer Dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of History in the Graduate School of Duke University 2011 ABSTRACT “They Have Travailed Into a Wrong Latitude:” The Laws of England, Indian Settlements, and the British Imperial Constitution 1726-1773 by Arthur Mitchell Fraas Department of History Duke University Date:_______________________ Approved: ___________________________ Edward Balleisen, Supervisor ___________________________ Janet Ewald ___________________________ Philip Stern ___________________________ David Gilmartin ___________________________ Holly Brewer An Abstract of a Dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of History in the Graduate School of Duke University 2011 Copyright by Arthur Mitchell Fraas 2011 Abstract In the mid-eighteenth century the British Crown claimed a network of territories around the globe as its ―Empire.‖ Through a close study of law and legal instutions in Bombay, Madras, Calcutta, as well as London, this dissertation examines what it meant to be a part of that Empire. These three cities on the Indian subcontinent were administered by the English East India Company and as such have often seemed abberant or unique to scholars of eighteenth-century empire and law. This dissertation argues that these Indian cities fit squarely within an imperial legal and governmental framework common to the wider British world. Using a variety of legal records and documents, generated in both India and England, the dissertation explores the ways in which local elites and on-the- ground litigants of all national, religious, and cultural backgrounds shaped the colonial legal culture of EIC India. In the process, the dissertation shows the fitful process by which litigants from India, Company officials, and London legal elites struggled over how to define the limits of Empire. The dissertation argues that it was this process of legal wrangling which both defined the mid eighteenth-century Empire and planted the seeds for the more exclusionary colonial order in nineteenth century British India. iv Contents Abstract .............................................................................................................................. iv List of Tables ..................................................................................................................... vi List of Figures ................................................................................................................... vii Acknowledgements .......................................................................................................... viii Introduction ......................................................................................................................... 1 1. ―By down right dint of authority:‖ Law and Power in early EIC Bombay, Madras, and Calcutta ............................................................................................................................. 17 2. ―Depending on the Crown:‖ The Constitution of 1726 and the introduction of English law ..................................................................................................................................... 77 3. The Chartered Courts in Action, 1727-53: Process, Procedure, and Paperwork ........ 108 4. Litigants, Tribunals, and Elites: Local Legal Dynamics in the Era of the Charter Courts ......................................................................................................................................... 182 5.―Like practice in the Plantations:‖ The Imperial Constitution, Indian Subjects, and Local Difference ............................................................................................................. 235 6. The Rhetoric of English law: Subjecthood and Power ............................................... 291 7. ―They Would Rather Die than Deviate the Least:‖ Opposition, Authority, and Constitutional Change ..................................................................................................... 336 8. Expansion and Constitutional Change 1753-1773 ...................................................... 382 Epilogue: Metropolitan Debate and a New Legal Era, 1772-73 ..................................... 449 Conclusion ...................................................................................................................... 471 Works Cited..................................................................................................................... 478 Biography ........................................................................................................................ 509 v List of Tables Table 1: Litigants in the Mayors‘ Courts during their first year of operation ................ 184 Table 2: Litigants in the Mayors' Courts 1744 ............................................................... 185 Table 3: Litigants at the Bombay Mayor's Court 1755 and 1766 ................................... 385 Table 4: Litigants at the Madras Mayor's Court 1755 and 1766 ..................................... 391 Table 5: Litigants at the Calcutta Mayor's Court 1755 and 1766 ................................... 407 vi List of Figures Figure 1: Map of the Indian Subcontinet with key cities highlighted............................... 16 Figure 2: The City of Madras as it appeared in 1726 ....................................................... 23 Figure 3: The Bombay Territory c. 1710 .......................................................................... 31 Figure 4: Calcutta and its Surroundings............................................................................ 65 Figure 5: Forms of Indictment .......................................................................................... 97 Figure 6: Grand Jury Summons ...................................................................................... 101 Figure 7: Law Books Sent to India in 1727 .................................................................... 104 Figure 8: Court Documents ............................................................................................. 143 Figure 9: Central Calcutta in 1756 .................................................................................. 199 Figure 10: Court Seals .................................................................................................... 294 Figure 11: Jurisdiction of the Supreme Court as Established in 1773 ............................ 466 vii Acknowledgements This dissertation would not have come into being without the assistance, generosity, and support of so many. Despite persistent myths of the solitary historian working away in archives, there is no such thing as sole authorship. I am first of all indebted beyond recompense to Ed Balleisen, Jan Ewald, Phil Stern, David Gilmartin, and Holly Brewer. It would be difficult to explain to an outside observer just how much time and effort Ed put into helping me finish this dissertation. As a historian of American legal and business history he‘s waded through the unfamiliar territory of EIC law with hardly a complaint and has encouraged me at every step to think broadly about what law meant and continues to mean for the ways in which we relate to the state and one another. For putting up withy abberant Capitalization alone he deserves more thanks than I can provide. Likewise, I would not have begun this project or come to Duke in the first place without Jan Ewald‘s generosity. From our first meeting at prospective student‘s weekend she has encouraged me to pursue those projects that interested me the most. She was the one who urged me to look closely at the India Office records as sources for understanding the history of the early modern Indian Ocean. I am truly thankful for her enthusiasm, kindness, and curiosity. I recall vividly the day prior to my preliminary exams when I first stumbled across Phil Stern‘s dissertation. I was both overwhelmed with envy and a sense of possibility. Other people clearly saw how mis-understood and fascinating the EIC could be! I never guessed at the time that Phil would come to Duke. There is not enough room here to describe just how receptive, encouraging, and generous he has been towards my work. viii Likewise, I‘ve been lucky to have David on my committee all these years, his knowledge of the big picture of Indian law and his unfailing good humor have helped me immensely. I also am incredibly grateful to Holly Brewer who has adjusted her schedule and made time for me and my work in ways that stretch credulity. Beyond my committee I'd like to thank the many people who‘ve been part of this project over the years: Susan Thorne for all of her suggestions and thoughts as well as her generosity throughout my years at Duke. I also owe a debt of gratitude to the late John Richards who read many of my earliest attempts at getting a handle on what would become the dissertation. Cynthia Herrup too played an important