Rage for Order: The British Empire and the Origins of International Law, 1800–1850 0674737466, 9780674737464

Citation preview

Rage for Order

Rage for Order The British Empire and the Origins of International Law, 1800–1850

Lauren Benton and Lisa Ford

Cambridge, Massachusetts London, England 2016

Copyright © 2016 by the President and Fellows of Harvard College All rights reserved Printed in the United States of America First printing Library of Congress Cataloging-in-Publication Data Names: Benton, Lauren A., 1956– author. | Ford, Lisa, 1974– author. Title: Rage for order : the British Empire and the origins of international law, 1800–1850 / Lauren Benton and Lisa Ford. Description: Cambridge, Massachusetts : Harvard University Press, 2016. | Includes bibliographical references and index. Identifiers: LCCN 2016006060 | ISBN 9780674737464 (alk. paper) Subjects: LCSH: Law— Great Britain— Colonies—History—19th century. | Law reform— Great Britain— Colonies—History—19th century. | Constitutional history— Great Britain— Colonies. | International law— History—19th century. Classification: LCC KD5020 .B46 2016 | DDC 342/.11241—dc23 LC record available at http://lccn.loc.gov/2016006060

Contents

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2 Controlling Despotic Dominions 3 The Commissioner’s World 4 The Promise of Protection 5 Ordering the Oceans 6 An Empire of States 7 A Great Disorder Notes

148 180

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Acknowledgments Index

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Oh! Blessed rage for order, pale Ramon, The maker’s rage to order words of the sea, Words of the fragrant portals, dimly-starred, And of ourselves and of our origins, In ghostlier demarcations, keener sounds. —Wallace Stevens, “The Idea of Order at Key West”

CHAPTER ONE

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are accustomed to hearing about “untold stories” in history. They are usually small affairs of sharp human interest. This book narrates an untold story of uncommon dimension: a sprawling attempt to reorder the early nineteenth-century world through the redesign of British imperial law. In 1815, Britain emerged from a half-century of war as a global power with a much larger say in setting the terms of engagement for commerce and policing outside the formal boundaries of empire. Both in the context of war and after, a process of enormous significance unfolded: new and old British subjects embarked on a frenetic and polycentric effort to use legal change to order people, places, and transactions stretching from the banks of the Río de la Plata to the Persian Gulf to a vast Pacific archipelago. The British rage for order—though lax in coordination, sustained through staccato bursts of enthusiasm, and troubled by opposition and dissension— shaped governance inside colonies and beyond. It commanded attention at every level of the world’s ascendant superpower. Drawing on legal knowledge and practices across cultural and political divides, the project of reordering the empire through law developed in multiple registers on a global scale. It changed the composition of world regions and installed empire as the ghost in the machine of global governance. The pieces of this ordering project flew together from contests waged in distant corners of the globe. Its architects included captives, convicts, and sailors, as well as elite and non-elite opponents of British rule, and a roving assortment of legal officials. Some presided over whole colonies and some ruled private jurisdictions not much larger than households. Some ruled no one at all, but captured imperial attention through assiduous complaint. 1

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In existing colonies, newly acquired territories, and informal spheres of influence across the world, British agents struggled to make sense of strange new subjects and foreign legal systems by concocting blueprints for legal change. Officials in distant colonies self-consciously responded to perceived crises of order by modeling new systems of rule for wider application. These efforts sometimes reacted to and often prompted explosive conflicts over governance, subjecthood, jurisdiction, rights, and the regulation of commerce. The forces of legal change unleashed by such confl icts shaped the structure of the empire and guided its position on all major issues of the day: the abolition of the slave trade; the legal status of imperial subjects, including slaves and convicts; the scope for autonomous colonial governance; and rationales for British conquests and British foreign policy. The impetus for law reform was systemic, but not systematic. Letters about colonial scandals, trial reports, drafts of law charters and treaties, and proposals for a diverse set of legal reforms bundled information about law in the empire into bits of constitutional commentary. Officials and jurists in London struggled to adapt a limited set of administrative mechanisms to organize this cacophony of law talk into a loosely unified but flexible framework for order. Petitions from the most modest and distant colonial subjects gained surprising traction in the metropolis. The British government launched a host of investigatory bodies—colonial commissions of inquiry—to collect information about the law of the empire and divine its inner workings. The Colonial Office reviewed legislation from the empire’s few remaining legislative colonies with sharpening attention. British officials assiduously sought to shape the peripheries of empire by wresting control of what Thomas Maitland called “middle power.” They did so by supervising entrenched elites with new resolve and by appointing middling officials bound to the metropolis by patronage networks. Not all of these men in the middle were trained in law, but all were participants in a vernacular imperial constitutionalism with regional variants and potentially global reach. Outside the empire, Foreign Office officials, naval officers, and roving bureaucrats collaborated to cast a thin skein of jurisdiction over oceans by stretching municipal (domestic) law to its limit and assembling small states into loose systems to facilitate exchange in extensive commercial networks. Law was everywhere. It was the medium of multiple, parallel projects of imperial change, and it provided the text and subtext of numerous colo-

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nial controversies, including debates about colonial legislative powers and crown prerogative. But it was not gathered up in the tomes of jurists or even Privy Council cases, the usual fi xtures of the field of constitutional law.1 Nor was law reform restricted to or even dominated by proliferating written charters and constitutions.2 By and large, imperial legal commentary was an endemic and eclectic genre, and it was often a tedious one—the stuff of long dispatches and arcane complaints, occasionally leavened by juicy scandal. The traces of this story hide within the pages of untidy commission reports, obscure manuals of colonial administration, and hagiographies of law-minded governors. It is perhaps not surprising that John Manning Ward, some forty years ago, was one of the last historians to take on early nineteenth-century imperial legal change writ large.3 Reading through the vast and unwieldy archive about law now requires the insights of legal anthropology and the tools of the new imperial history. Yet only parts of the law story emerge from even the most insightful studies of sensational cases, such as the fall of Warren Hastings in Bengal or the misdeeds of Thomas Picton in Trinidad, or from deft analyses of key colonial law controversies, such as the constitutionality of martial law in Jamaica or the treatment of indigenous people in New South Wales.4 Such episodes illustrate core tendencies and tensions, but their analysis can also shift attention away from more prosaic and incremental efforts to remake the empire as a whole in the shadow of law. We argue for a broader characterization of this neglected period as a distinctive phase of world history. Christopher Bayly reoriented scholarly attention to the place of empire in the global transformations of the early nineteenth century, but his landmark synthesis downplayed legal change in the empire, enfolding it within an account of a vast political struggle between nascent liberalism and counterrevolutionary autocracy.5 When we place law at the center of the story of global transformation and examine early nineteenth-century imperial legal confl icts inclusively and extensively, we arrive at new and different understandings of empire and world history.6 The imperial constitution emerges as a fluid vernacular— articulated by very different groups of people for myriad ends and resolving, in scattered locations, into calls for the imperial center to safeguard legal pluralism, truncate some and bolster other privileges of colonial legal subjecthood, ensure minimal procedural fairness, and, increasingly, oversee the professionalization and content of colonial law.

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If that list of projects sounds modest, it was not. Legal change affected the most central of colonial processes and institutions. Meddling with the privileges and responsibilities of imperial subjects threatened to transform the everyday interactions between masters and slaves and to alter the relationship of colonial to imperial lawmaking. Reforms of courts and adjustments to the powers of magistrates transformed the administration of law so fundamentally that such projects precipitated a series of legal crises about colonial criminal and civil procedure, the regulation of slavery, and convict management.7 Wresting control of the appointment of middling legal officials altered colonial law in action at every level. Appointing governors, judges, protectors, and attorneys general with humanitarian credentials opened colonial law to scrutiny, reinterpretation, and change.8 More often than anyone expected, seemingly minor legal confl icts generated constitutional upheaval. Whether from the center of the empire or from its peripheries, advocacy of legal reform often turned into calls to extend crown prerogative in empire—an odd outcome for a polity that had killed one king and exiled another for their despotism. Read together, these strands of the new imperial history from Bengal to Trinidad weave themselves into a single narrative about the attempt to change the world through law. Tracking the flow of law talk around the global empire does more than break down boundaries between colonial histories, stories of lived experience, and reform agendas within the empire. It also helps us to understand the role of Britain as a weak hegemon in the complex and fragile global order emerging in the early nineteenth century. The same constraints that have made intra-imperial law reform so hard to analyze shaped jurisdictional politics on the fringes of empire and beyond. Much of this book explores how intra-imperial legal conflicts extruded into global geopolitics and created frameworks for interpolity law.9 We show that the complex interaction between intra-imperial and extra-imperial law cannot be fully explained by attention to the desiderata of interstate relations—treaties, texts about the law of nations, or post-Napoleonic European diplomacy. In the early nineteenth century, when “international law” was an untried term of Jeremy Bentham’s recent creation and the law of nations comprised little more than a series of flexible rules about state comportment in war and treaty, we find that some of the most important conversations about global order were occurring far away from law schools and halls of diplomacy, in

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the course of mundane jurisdictional disputes arising in and on the boundaries of empires. Even treaty-based institutions, like those crafted after 1815 to police the Atlantic slave trade, do not look particularly international: they emerged at the ragged edges of imperial legal orders. The initiatives historians label as humanitarian campaigns to secure human rights (against slavery and piracy), we argue, had less to do with universal principles than with efforts to remake the interface between imperial and municipal structures of authority. The nature and limits of such projects make much more sense when viewed from the vantage point of British imperial reformers who adapted imperial law and practice to secure regional and global order. Britain’s predilection for conjuring functional and legible polities outside the empire to protect its commerce and its traders can also be read as something more than gunboat diplomacy when placed in the context of legal reengineering inside empire. Th is rage for order produced no Pax Britannica. In fact, it operated in much of the world to legitimize British violence. In some places it foundered against newly invigorated European competition, the claims of other resilient empires, and the evasive adaptations of clusters of small polities or fluid commercial networks. Looking outward, British imperial reformers could perceive the outlines of similar programs of legal reordering. A multifaceted project of Spanish legal and administrative restructuring had reshaped that empire at the end of the eighteenth century. Questions about the status and representation of the colonies then roiled debates about the 1812 Cádiz Constitution. As with British imperial reform, Spanish visions of imperial improvement centered on law and legal administration, and local conflicts far from the center drove the shape and pace of institutional change. French imaginations of global order also placed law at the center of a vast imperial project to change the world. Napoleon’s army carried the Napoleonic Code throughout Europe. Further afield, French officials of diverse political persuasions sought to apply French law flexibly in the colonies, in combination with local law and even as a framework compatible with revolution. Iberian and French initiatives matched legal restructuring projects in other powerful empires. In this period of flux, the Ottoman, Habsburg, Mogul, Russian, and Chinese empires recognized the diversity of their subjects and of their constituent polities as they revised elaborate plural legal systems.10 Ambitious reordering projects extended, too, beyond the bounds of empires. Diplomacy and trade quickened across archipelagos of small polities

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where no single empire dominated. Cross-polity relations in such places depended on mutual recognition of legal authority and generated familiar patterns of jurisdictional jockeying and forum shopping. Increasingly, around the turn of the nineteenth century, strands of legal thought and practice threaded across fractured regions—think of the Pacific Islands or the sheikhdoms of the Persian Gulf. On the world’s oceans, meanwhile, merchant and maritime law operated with some similarities in a mostly disconnected network of courts with varied enforcement capacity. Widespread conventions of prize and credit often stood in for the law of nations, while treaties continued to represent the most visible and basic building materials of a world order under construction.11 Among these multiplying examples of imperial legal reordering and cross-polity legal experiment, the British Empire’s legal order took on special significance. In the decades after the Napoleonic Wars, British experiments spilled across regions and drew from interactions with other polities and reform projects. It did so chaotically and unevenly. We use Wallace Stevens’s phrase “rage for order” as the book’s title, but we note, too, that while Stevens’s poem referred to “the maker’s rage,” the British “rage for order” of the early nineteenth century was promiscuous in its borrowings and haphazard in its instantiation. It reflected a complex and fluid world order with many makers. Britain’s reordering project had lasting, if sometimes elusive, effects. In recovering the history of the imperial legal order and tracing examples of its relation to other political formations, we glimpse the outlines of a lost prehistory of international law that is different from the intellectual histories that dominate the field.12 Britain’s endorsement of legal pluralism in its colonies reified nascent constitutional distinctions between center and periphery: its efforts to solve petty despotism by enhancing and reforming colonial autocracies made colonial legal subjects very different from their metropolitan equivalents, laying the groundwork for the gross constitutional inequities of the late nineteenth-century British Empire, and for the separation of “civilized” and “uncivilized” nations within the emerging international legal order. Strategies employed by agents of the British Empire provided both model and anti-model for the punctilious law professors who sat down in Germany and France to draft international law after 1850. Their systematizing efforts sought to do more than craft the normative and legal bases for relations among Eu ropean nation-states: international

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lawyers set out to tidy the messy legal orders created by empires in general and the nineteenth-century British Empire in particular.13 That generative tension deserves our attention. Finally, we think, Britain’s global ordering project helps us to better understand something that late nineteenthcentury international lawyers could neither capture nor excise: the early nineteenth-century rage for order produced jurisdictional tangles inside and outside the empire that would continue to ensnare efforts at international governance.

Middle Power Accusations of despotism coursed around the Anglo world in the age of revolutions—but not as the herald of rights discourse, nor even of the rise of the modern nation-state.14 In the British corners of the globe, despotism usually had a narrower valence: it reflected specific anxieties about abuses of legal authority. Sometimes these concerns centered on the excesses of unsupervised delegates of the Crown. Checks on crown power at home after the Glorious Revolution had little bearing on colonies conquered after 1774, where crown prerogative was carefully preserved.15 In those places, early modern fears of universal monarchy diff used into ubiquitous complaints about the arbitrary power of the king’s representatives—colonial governors, judges, and petty officials.16 At the same time, particularly in self-governing colonies, despotism talk emerged from the dearth of crown power over courts and magistrates.17 Loose juridical hierarchies enabled slave masters to abuse their human property with impunity and gave scope to untrained and corrupt island judiciaries to cheat metropolitan creditors of remedies against planters. The stakes were high. Contemporaries in the colonies and the metropole thought that petty despotism was an organic threat that might infect households, governorships, penal colonies, plantations—any sort of political community in which the delegated power to judge and punish imbued certain people with authority over others. The presence of arbitrary justice in one arena, many thought, could lead to its spread to other parts of the imperial system, or, worse still, despotism might creep from the peripheries to the center. Edmund Burke and Charles Fox famously warned that Warren Hastings’s excesses in Bengal would corrode English liberties.18

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The Lord Chief Justice of England, Lord Mansfield, made a related point about the corrupting despotism of slavery: the institution of slavery was foreign to the common law, “so odious that nothing can be suffered to support it but positive law.”19 The “contagion” of despotism—not of revolution or sovereignty—was what made humble colonial complaints so powerful in the metropolis.20 The resumption of a lease in Sydney, the summary execution of a mutinous soldier on the island of Gorée, the torture of prisoners in Trinidad, the arbitrary exile of English subjects under Dutch law in the Cape—in these and other cases, despotism talk sparked constitutional crises and fueled programs for law reform.21 Slaveholding itself was the ultimate petty despotism. For this reason, not just in colonial contexts but across the globe, complaints about unfair treatment often began with comparisons of other groups—colonists, sailors, convicts, servants, soldiers, vagrants, conquered subjects, women, and others—to slaves. Historians have tended to regard such analogies either as hy pocrisy or as part of a nineteenth-century surge in humanitarian sentiment.22 But for contemporaries, the comparisons carried specific legal meanings connected with anxieties about unconstrained legal power. References to slavery conjured explicit images of summary judgment and punishment. The master’s lash symbolized the private power to make rules, to judge, and to punish without oversight or constraint. Concern for the treatment of subordinates often prompted calls for reform but did not target suffering so much as abuses of power emanating from a particular structure of authority. Reining in petty despotism almost always meant restraining the jurisdiction of some subjects over subordinates and enhancing the jurisdiction of others. The antidote to petty despotism lay in marshaling “middle power.” We borrow the term from Governor Thomas Maitland, who coined it as he struggled to explain his rationale for overhauling the legal system in Ceylon.23 The phrase named the ambition to extend executive authority in the colonies through a restructuring of legal administration—from the summary jurisdiction of magistrates up to the equity jurisdiction of governors. Maitland had noticed the corrosive effects on British authority in Ceylon of the persisting legal power of local elites. Like many other officials, he proposed the restructuring of the legal bureaucracy and courts as the answer. He and his peers imagined a new system that would control petty despotism by staffing new posts with men loyal to the empire. One

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problem with this proposal was that men with legal training were in short supply; another was that men who became judges often used their positions to vie for power with the colonial officials who put them there.24 Yet reformers in the center and peripheries settled on the notion that populating midlevel legal posts with suitable and well-supervised British subjects would bolster legitimate authority. Maitland was vague about the precise vehicles for what he called “some middle power with regard to the Judicial.”25 He was no lawyer, and his fights with Ceylon’s chief justice made it clear that he imagined nothing like what we would now call “the rule of law.” His version of “middle power” would ultimately operate to strengthen his power in Ceylon. Variants of Maitland’s vision of middle power echoed across the British Empire, with repeated proposals to intervene in disordered colonial settings by championing the independent authority of middling officials. In imagining “middle power,” Maitland might have been influenced by ideas that derived, at least indirectly, from Aristotle’s proposal that men of the “middle condition” would stabilize political orders.26 According to Aristotle, middling actors were more likely than others to oppose tyranny, and were also better than the very rich or the very poor at resisting corruption. Aristotelian propositions about the “middle constitution” might have been familiar to British agents immersed as schoolboys in the classics.27 But at its core, their vision was not radical. Nothing in imperial officials’ judicial schemes depended on the redistribution of wealth or the creation of a class of men positioned between rich and poor. Such ideas did find their way into constitutional controversies following the American Revolution, when the virtues of middling sorts informed debates about the most desirable forms of constitutional government. But at the height of counterrevolution in the British Empire, imperial reformers—including abolitionists—often went out of their way to make it clear that their vision of order in the empire did not clash with either the expansion of commerce or the concentration of its fruits in the hands of a few.28 Indeed, it is striking that the main arguments for imperial reordering emphasized not the character of middling sorts but the efficacy of newly proposed structures of law and governance. The revised system itself, with its built-in role for middling officials to contain private jurisdictions and to champion imperial directives in exercising their own authority, was supposed to promote order and defeat despotism.

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The pervasiveness of discourses of despotism in the British Empire—in an arc extending from Edmund Burke’s speeches in the Hastings trial to Jeremy Bentham’s speculations about the governance of colonies and to debates about colonial martial law in the second half of the century—is still only part of the story.29 As critiques of petty despotism blended with accusations of arbitrary justice, they converted colonial controversies into debates about the proper order of the empire. Put simply, the law-centered nature of the critique of petty despotism turned it into a powerful wedge issue for reform. Theories of imperial reordering developed directly out of colonial legal contests. The letters of colonial officials, the arguments of indigenous elites, and the legal strategies of apparently powerless subjects in empire tell us much more about visions of the early nineteenth-century imperial constitution than the writings of jurists or statesmen in London. It is perhaps deeply unfashionable to seek to recover the juridical thought of low- and mid-level bureaucrats and their antagonists and allies in the colonies. But that task is indispensable to characterizing global intellectual trends in the period. Officials circulating in posts throughout the empire developed agendas for intervention in colonial legal bureaucracies, and they carried their faith in—some might say obsession with— order, and routines for chasing visions of order, from colony to colony.30 The same officials linked jurisdictional issues—who and what fell under the legal power of which body, and when—with broader constitutional questions about the reach of imperial sovereign authority, the scope of colonial legislation, and the elements of English law that extended to the colonial world, and beyond. It is fine to challenge historians to be aware of the biases and obfuscations of this colonial archive: dispatches and reports told palatable and self-serving truths, after all.31 But those elaborate obfuscations were also generative. Their shared formulas and appeals form key parts of the story of remaking imperial order. Middle power, it must be said, encompassed more than the creation of hierarchy through the careful empowerment of loyal men in the middle. The empire itself represented a middle sort of power—a structure or set of practices that stood between legitimate species of autocratic rule and illegitimate tyranny. Increasingly officials in London tried to control the distinction between these two versions of executive power by folding colonial critique into colonial commissions of inquiry. Commissions were selfconsciously crafted to interpose the king’s representatives between colo-

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nial executives and colonial informants in order to gather data and mediate disputes. A broad consensus aided these endeavors: almost everyone imagined imperial order to encapsulate strong executive power tempered by impartial justice. This peculiar ideal confounds some of our best historians, sending them off in search of the origins of liberalism or the signs of neo-authoritarianism in the nineteenth century.32 A near fi xation by so many in the empire on law and legal order often made such positions indistinguishable. One could condemn petty despotism and call for institutional fi xes from the left or the right with surprisingly similar reforms on offer. Abolitionists gnawed at the power of slaveholders by strengthening imperial jurisdiction. Ambitious governors seized opportunities for self-aggrandizement (and sometimes territorial expansion) in the name of protecting vulnerable subjects. Litigators excoriated the interference of governors in judicial processes, bemoaned arcane or outmoded colonial doctrine, or complained about the ignorance of their untrained judges.33 All could agree on the fundamental reform required to keep colonial despotism in check—increased crown oversight over petty jurisdictions in the colonies. From some angles this program took on the colors of counterrevolution, a response to the fear of epidemics of French revolutionary fever. Rotated slightly, it looked like something that belonged to the family of liberal reformism, replete with flickers of rights talk. More prism than project, the control of petty despots at times confounded the political divide, turning authoritarian impulses into institution building or reform agendas into instruments of imperial power. There were, of course, efforts to set parameters for the legitimate operation of crown authority. But it is striking the degree to which reformism and antirevolutionary fervor merged in endorsing stronger top-down power and a sharper vision of hierarchical order. The goal of strengthening imperial jurisdiction as a check on arbitrary power activated various smaller objectives: establishing clearer colonial appeals processes; containing the power of local elites, from colonial officials to slaveholders to indigenous lords; and publicizing supposedly foundational standards of procedural justice. The middle power of the empire stood, too, for its imagined capacity to summon regional orders without imposing British rule. The threat of violence, and often episodes of real violence, relied on a different sort of middle power to project order outward: military men and naval officers, both in

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their intra-imperial posts and in their forays over imperial boundaries, acted as committed, if sometimes confused and unabashedly opportunistic, lawgivers.34 Naval captains asserted the legitimacy of their violence against slave traders and pirates without claiming to act on the basis of universal principles, but by invoking their instructions, legislative immunities, or entitlements under bounty legislation. British consuls harangued the leaders of small states and new states to act in ways they might approve, sometimes with iron ships parked off the coast for extra suasion. Imperial agents in such settings worked to conjure familiar structures of sovereignty out of unfamiliar and unstable political materials. They also exhorted locals to adopt systems of rule legible to Europeans and other rivals. Across these engagements, and both before and after 1815 (too often reflexively accepted as the date separating phases of British global engagement), law talk inside the empire reverberated within processes extending outside it. The connections are nowhere more apparent than in the deployment of protection as an incorporative legal strategy in places of growing British jurisdictional ambition. The effort to protect slaves opened a new avenue to police slave masters in the Atlantic world. The project to protect Aborigines served as a platform to cast weak colonial criminal jurisdiction into the distant peripheries of Australia and New Zealand. Similar language about protecting potential new subjects undergirded annexation, as when the promise to shelter Sinhalese subjects in Ceylon from the tyrannies of their king justified the invasion, and immediate legal overhaul, of the Kingdom of Kandy.35 Reordering middle power was only occasionally spectacular. With a few notable exceptions (colonial commissions of inquiry among them), it was seldom articulated as a comprehensively transformative project. It lacked consistency. It tended toward the production of regional rather than panimperial or global orders, and it reflected the efforts of different people in different places for different ends. This is why historians tend to mislabel the early nineteenth century as a period of chaotic indecision, a weak precursor to the more ambitious “empire project” of the second half of the nineteenth century.36 This is why the wending paths from colonial reform to extra-imperial jurisdictional politics before 1850 have (with the exception of the abolition of the slave trade) remained obscure. This is why international lawyers have gleaned so few findings—besides evidence of the intel-

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lectual complicity of their forebears in European imperialism—from early nineteenth-century imperial law.

The Vernacular Constitution There is consensus about very few of the great constitutional experiments of the first half of the long nineteenth century. One influential experiment was the working out of the federal constitution of the United States.37 Another consisted in the state system announced by the 1815 Congress of Vienna, a system that developed into a political formation with growing ideological support and whose history tends to overshadow the increasingly global system of treaties.38 These two phenomena have received far more attention than the multifaceted efforts to build a constitutional order for the British Empire. Historians have only scratched the surface of the history of the imperial constitution. We know that English colonists and their sponsors understood it as a loose framework for colonial ventures in the seventeenth century.39 We know that the imperial constitution was, for them, not a stable construct but the living object of multisited political contests challenging structures of authority, understandings of subjects’ rights, and fundamental ideas about governance in the colonies.40 There were some powerful recurring features, such as appeals to the Privy Council and inconstant legislative review by various bodies in England. There was strategic deference to the principle that colonies should not adopt laws repugnant to the laws of England. Beyond these spare rubrics, variation and improvisation ruled and uncertainty prevailed about the shape and reach of metropolitan legal authority and the role of the common law.41 There was no imperial constitutional convention, and relatively little flashy posturing. The polemics penned before the American Revolution and the growing number of constitutions drafted in its aftermath coexisted with a mass of legal commentary that favored the dull rhetoric of bureaucrats’ reports over exuberant claims about constitutional innovation. This quieter genre of legal discourse had all the glamour of meeting minutes. Our story of imperial reordering in the early nineteenth-century British Empire explores these often-hidden forms of communication about law and constitutions in the empire and traces their transformative effects.

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Power ful vernacular va rieties of political theory developed out of the empire’s legal politics.42 We pay special attention to legal inquiries commissioned in London and in the colonies; the transposition of models of governance and law by midlevel officials, many of whom moved among turbulent sites in the empire and projected influence beyond its limits; and occasional scandals and their influence on debates about imperial authority. All these phenomena fed into constitutional writing that never acquired the name. Worries about petty despotism and arbitrary justice—the forces that pried open the field for legal reform across the empire—moved most swift ly through imperial circuits in the form of stories about excessive or unjust punishment. This was the stuff of scandal.43 The cruelties of slave owners, the indifference of captains to the suffering of captives and sailors, the perversion of justice by despotic governors, the unnecessary violence of rogue officials on the margins of empire—such allegations fi lled colonial correspondence, official and other wise, and peppered the headlines and letter columns of newspapers in England and abroad. Parliament selectively reprinted sources about scandal and offered them up as fodder for reformers and critics. As stories of arbitrary justice entered political discourse from many angles, they could turn minor cases in obscure colonies into the objects of strident street-corner, drawing-room, and parliamentary dispute. The meandering path of news about scandal often had greater and more immediate effects than the conversion of the odd colonial case on appeal into the material of imperial jurisprudence. So it was that a local scandal about the public punishment of slaves on the island of Nevis was recycled first into a justification for crown autocracy in Trinidad and then into a trigger for a broad project of legal inquiry into Caribbean legal practice. Likewise, the sensational deposition of Governor Bligh in New South Wales in 1808 set the terms of a decade-long debate about the administration of justice that resulted, in 1823, in the reconstitution of the colony’s courts.44 Scandal and crisis called for another sort of information process, the more orderly accumulation of knowledge through legal inquiry. The impulse to launch inquiries coursed through the British Empire like a religious movement after 1800. Colonial officials charged British administrators— some trained in law, some not—to inquire into local law so that they could better nest eccentric local systems, including the legal systems left by previous European colonizers, under English law and courts. These projects

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of legal ethnography resulted in detailed compendiums of law and practice. Sometimes legal ethnography informed new law charters, sometimes it languished when the timing or circumstances carried law reform in different directions. In 1810s Ceylon, an able linguist named John D’Oyly was charged with cataloging the law of the Kingdom of Kandy. By the time he wrote his comprehensive guide, A Sketch of the Constitution of Kandy, war, rebellions, and a more politically potent inquiry directed from London had overtaken his efforts and made his Kandyan “constitution” a dead letter.45 London also got into the business of legal inquiry in a big way. A wave of commissions of inquiry between 1819 and 1840 simultaneously aimed to produce new collections of knowledge about colonial law and to intervene, sometimes forcefully, in local legal affairs. Th is global process produced its own genre of constitutional writing, the commissioners’ reports. Their content ranged from banalities about the minutiae of interpersonal disputes to broad schemes to make law in the colonies better comport with the rudiments of law in England. This prodigious commentary did not materialize out of thin air or spread neatly from the center to peripheries. It grew from the experience of its peripatetic authors. Men like Thomas Maitland who came from military backgrounds and had little legal training joined with a motley group of sojourning barristers in maneuvering for career advancement by developing elaborate colonial law reforms as they bounced from post to post. It is logical that such interventions would build on prior experiences and draw on the power of analogy. After Maitland burrowed into Ceylonese legal issues and pushed for a new law charter defining “middle power,” he took this experience with him to Malta and the Ionian Islands, where he met different conditions and refined his law-centered approach into a vision that critics would label “a Despotism under Constitutional forms.” 46 As a former chief justice in Trinidad and twice-appointed law commissioner, John Thomas Bigge worked up his own framework for understanding the legal similarities of colonies as disparate as Trinidad, the Cape, and New South Wales. Transposing legal lessons from one colony to another was no mere theoretical exercise. It resulted from immersion—critics alleged too deep and essentially self-serving—into the muck of local legal politics. As governor in the Leeward Islands, Hugh Elliot used his intervention in a scandal of planter cruelty in Tortola to propel himself to a

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better posting as the governor of Madras, under the East India Company. There he activated his West Indies–acquired understanding of imperial authority in implementing measures outlined in the innocuously titled “Fift h Report”—a legal overhaul that had far-reaching implications for British rule in India. For his part, William Bligh clearly learned very little in his transition from managing ships to managing a convict colony. The language of tyranny and scandal crafted about Bligh by mutineers on the Bounty followed him to New South Wales, where it ripened into a call for colonial constitutional reform. None of these officials developed perspectives on British legal power in isolation. Maitland was a creature of the British military and had begun to form his ideas of proper legal order as early as his encounters with Toussaint L’Ouverture in Saint-Domingue. Elliot had imbibed a heady dose of Scottish Enlightenment before fi nding his way to advancement through abolitionist circles and East India Company patronage networks.47 Other legal schemers became unwittingly entangled with radical politics in London; James Brooke, an adventurer-cum-British-agent in Southeast Asia, found his policies denounced by House of Commons radicals as illegal overreaching. Other influences assembled more chaotically and less visibly out of randomly sequenced postings from one end of the world to the other. London sometimes tried to move legal talent purposefully. Plucking a French-speaking judge from Saint Lucia to oversee the legal system of Mauritius in a moment of crisis represented one carefully plotted (if ineffec tive) attempt to forge a colonial connection of substance.48 One result of these patterns of vernacular constitutionalism was a partly accidental and partly planned regionalism in administering the empire. Despite their legal diversity, colonies were grouped in clusters supposedly belonging to single regimes of rule. The West Indies colonies—both selfgoverning and conquered islands—cohered as the object of a single project of inquiry, while Mauritius, with its entrenched slaveholders and slaverysupporting laws, fell in with the Cape colony and Ceylon to form a triumvirate of crown colonies whose main similarities were a border on the Indian Ocean and a legacy of foreign-imposed law. Maitland’s promotions linked Trinidad, Ceylon, Malta, and the Ionian Islands, while other officials tried somewhat unsuccessfully to bring their experience of Cape reform to the colony of New South Wales, and vice versa.49

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Another product of the staging and restaging of a family of conflicts was the melding of diff use despotism talk into calls for a fairly consistent set of constitutional minima—comprised chiefly of the rudiments of procedural fairness and jurisdictional hierarchy. That fragile consensus reflected what many law-minded folk thought British order predicated on reformed middle power should look like. It marked new and in some cases indelible distinctions between metropolitan and colonial law. And it created an unusual, extended moment in which very diverse pieces of the empire appeared to fit within the same constitutional matrix. Canada, New South Wales, and the Cape shared constitutional space with India, Ceylon, and Sierra Leone, not because race did not matter or because the colonies were deemed equivalent, but because imperial law talk was flexible enough to be inclusive without aspiring to universalism. The vernacular imperial constitution that took shape in colonial conflicts of the period reflected the words and actions of unlikely juridical thinkers. The project lapped against every key pillar of imperial rule, including questions of the legal rights of British subjects in the empire, the legitimacy of imperial expansion to new territories, the imperial right to rule over new subjects, the legal definition of outlaws and pirates, the obligation of other polities to protect British property or persons, the balance of authority between courts and the executive, the legitimate reach of imperial jurisdiction, and the status of prisoners of war, convicts, and slaves. Legal tracts and parliamentary debates scarcely chart the surface of this sprawling constitutionalism. The vernacular constitution boasted British influences as well as eighteenth-century roots in the very different hubs of North America and India—both of which stood as examples of spectacular failures in imperial reordering.50 Efforts by the Stuarts and then by Parliament to bring the American colonies into line were at once too crude and too gentle to cajole American settlers to pay their taxes or to heed their governors or their judges. Both Hastings’s experiments in tempered despotism in India and Edmund Burke’s failed attempt to impeach him or bring Company governance under Parliamentary control revealed in their squeamishness the limits of the late eighteenth-century metropolitan appetite for imperial legal reform. But the ambition of all these failures mattered. Many of the frenetic reforms of the early nineteenth century refer explicitly or implicitly to the formative debates waged about the status of American colonies

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on the eve of revolution, on the one hand, and the concerted attempts to craft a workable plural legal order in Bengal, on the other. Indian and American models traveled, sometimes in the form of cautionary tales, to long-held colonies and newly acquired territories. Yet, refracted through the trauma of American Revolution, metropolitan scandal, the French and Haitian Revolutions, and the Napoleonic Wars, eighteenth-century constitutional politics changed into a different sort of legal discourse in the early nineteenth century. In this unsettled context, a diverse group of actors in London and in sites around the empire began to champion the benefits of fashioning a single, if flexible, imperial legal order. Colonial reporting, correspondence, and the press brought questions of colonial law more fully and consistently into English and Scottish conversations about the colonies. The abolition of the slave trade fused moral arguments with other interests in greater imperial control from the center and raised consciousness about the limitations of treaties as instruments of global change. An ascendant British navy offered itself as both agent and enforcer of imperial interests. In the many crown colonies collected in the fallout from the French Revolution, legal experiment seemed tempting, necessary, and, most impor tant, possible. Few international lawyers were on the job to assist in summing up these parts of the story of empire and law. As a result, the impact and legacy of this grand and multifaceted project have remained largely opaque. Yet its history marks an especially formative and extended “constitutional moment” in the development of global law, and its understanding is essential to ongoing struggles to define the relation between constitutions and international law.51

Imperial Order before International Law Most accounts of the history of international law make a mad dash from late eighteenth-century revolutions to late nineteenth-century imaginings of interstate order. Few international lawyers—other than Henry Wheaton or Friedrich Carl von Savigny—have their names inscribed in the international law canon from the early nineteenth century; few major events, other than the Congress of Vienna, attract notice. The tendency to describe

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international ordering in the nineteenth century as a project of the century’s “last five minutes,” as one scholar has put it, highlights international lawyers’ efforts to constitute themselves as a professional group in this later period, when the field established its object of analysis as a global legal order produced by the actions and agreements of sovereign states.52 This story may acknowledge Britain’s role but usually does so by pointing to Britain’s leadership in forging a European state system in the first half of the nineteenth century and then exporting this model to the rest of the world. In his classic work on phases of international law, Wilhelm Grewe labels the period from 1815 to 1919 as a “British Age” of international law, by which he means an age dominated by Britain’s lead in effecting “the expansion of the European State system into a global State system.” According to Grewe, Britain championed a vision of “world equilibrium” that would closely resemble the European balance of power.53 The colonial or extra-European world has tended to figure in one of two ways in this story. First, empire appears as an intellectual problem for Europeans thinking about global order. International lawyers struggled in the late nineteenth century to reconcile imperial formations of quasi-sovereignty with visions of an international system of sovereign states. Second, Europeans looked to empire for empirical fodder and for antitheses as they tried out ideas about universalist principles and refi ned understandings of the foundations of positive international law. Empire provided the raw material for an emerging “standard of civilization” that would reserve membership in the international community for European states or states approved by them as having met certain conditions.54 There has been some movement toward a history of empire and international law, but a more or less unsystematic assessment of the place of the British Empire.55 Grewe notes that the result of British efforts was a “worldwide unorganised interconnected State system that . . . depended entirely on the interests and requirements of the British global empire.” Noting that the British devised a distinctive imperial strategy of “indirect rule,” Grewe finds its influence at “every turn of European history” in the nineteenth century: in the events leading up to the independence of Greece, Belgium, and Luxembourg; the Crimean War and its aftermath; the unification of Italy; and the Congress of Berlin, with its links to Balkan tensions. Yet the analysis stops there, and it is overshadowed by Grewe’s concern with

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George Canning’s articulation of British foreign policy as an elaborate play to remake the world in the image of Europe.56 Others have sought in British efforts to enforce global prohibitions—in particular, a ban on piracy and the slave trade—the origins of powerful international norms, including the seeds of human rights law.57 This attempt at writing empire back into international law takes a rare detour to the middle decades of the nineteenth century, where abolition and antipiracy had deep roots. In par ticu lar, the historiography emphasizes British orchestration of mixed commissions to adjudicate slave ship captures. Authorized by bilateral treaties, the commissions reflected British resolve and British control, but they operated, we are told, like international institutions charged with a humanitarian mission. Yet evidence is thin that the commissions resulted from widespread views—and certainly they were not official views—that piracy and slave trading constituted crimes against humanity. We argue below that, far from authorizing an international policing regime, bilateral treaties created a series of permissive spaces for imperial enforcement that relied on British municipal law and modified prize law, and produced a patchy regulatory regime. The treaties were doubtful creatures of international justice. Their history links empire and international law, but not because they depended on or produced recognized international norms. Of course, one can always find historians who are untroubled by the lack of clarity about the place of empire in international law. They see an empire as simply a version of a state and discover European plans for a global order of states well before the late nineteenth century. The star of this tale is the jurist Emer de Vattel, whose 1758 treatise, The Law of Nations, instructed a generation of followers that the world order was made up of sovereign states. Whether those states were empires or nations made no difference, according to some interpretations: sovereignty was the currency of Vattel’s law of nations, and new states understood precisely the value of promoting their membership in the club. The wide circulation of Vattel’s work—his book was in Thomas Jefferson’s library and his ideas were on the lips of ex-convict lawyers in New South Wales—has suggested to some historians that the nineteenth century presented an opportunity to work out the details of a system whose contours were already known.58 What many of these approaches have in common is a tendency to place the history of international law solely within the framework of intellectual

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history.59 Eu ropean jurists, with an occasional cameo appearance by Americans and jurists from other regions, carry the story’s plot and exhaust its twists and turnings.60 We propose a different approach marked by a paradox: the history of international law advances by receding as a topic. To make sense of the early nineteenth century as a phase within the history of international law, we must look away from international law and international lawyers and toward processes of imperial legal change. This adjustment in perspective allows us to account for some of the period’s most confusing trends. We observe historical actors making assertions about the proper parameters of regional and global order by projecting imperial legalities beyond empire. We uncover projects of reforming the imperial legal order and fortifying imperial jurisdiction and trace their imprint on relations across polities. And we find that empire framed visions of global order much more than references to natural law principles or to Vattelian visions of sovereignty, in dimensions far beyond the articulation of a standard of civilization from which certain colonial peripheries were tidily excluded. There is an intellectual history associated with these trends. It sits in unusual places: the correspondence of middling officials about colonial legal confl icts and charters, records showing the legal strategies of the empire’s most vulnerable subjects, the reports of commissions of inquiry, notes on colonial scandals, communications across political communities by merchants and sojourners, traces of colonial violence, the rumblings of small wars. In the British Empire, the imperial constitution and its myriad sources addressed questions of global legal significance, such as the legitimate conditions for the acquisition of colonial territory or the way British law extended into extra-imperial spaces. This cacophony occasionally referred to, but usually drowned out, the dry speculations of Vattel and his confreres. Circulating colonial schemes and local debates did draw on often vague and occasionally precise understandings of jurists’ positions on the law of nations, but colonial legal politics also produced new and powerful frameworks with an unstable relation to jurisprudence. Meanwhile, the judgments of admiralty lawyers, or other case-related commentary on particular controversies, were offered up as substitutes for disquisitions on the law of nations, while corresponding more closely to the pressures and demands of imperial politics.61

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The centrality of empire to international politics made sense because imperial governments and their leaders, as well as anti-imperial forces, expected empires to last. Protonationalists actively sought either to nest new and existing political formations inside empires or to present their polities in ways that remained consistent with the imperial world. Promoters of new polities also leaned heavily on representations of political authority that derived from imperial frameworks. It is tempting to look back and see the origins of nationalism at every turn. But some of the most strident antiimperial political movements privileged imperial legal arrangements. The strategy signified more than a clever hedging of bets—a way of preparing for the possibility of continued or renewed dominance by power ful empires. Nationalism arose against and within empires, and complemented an array of other strategies for projecting greater autonomy without spelling the end of imperial hegemony. Conflicts and negotiations about autonomy developed, too, with explicit reference to law and legal pluralism. Just as the control of petty jurisdictions dominated calls for imperial reform, nationalism surfaced in many early nineteenth-century contexts as a cause defined by the defense of local jurisdictional prerogatives, in turn symbolized by control of local courts and the judiciary.62 The resulting institutional schemes were unpredictable and varied. Imperial dependencies announced their independence, republics became empires (and vice versa), and federations inside empires (or polities within federations) declared national ambitions. Historical accounts that emphasize the global impact of eighteenth-century revolutions sometimes see all these movements as reactions to disruptive change ending in state and imperial consolidation over the course of the nineteenth century.63 Contemporaries saw not finality but a dizzying array of political and legal formations, with empires as the consistent point of reference. In our story, we find British imperial agents working hard to domesticate such variations by labeling them as “experiments” and fitting them within a constitutional framework that could tolerate diversity while sustaining and even clarifying the outlines of a known quantity—empire. The intertwined character of empire and states gave rise to a family of legal problems concerning the administration of a par ticu lar class of territories—those regarded as neither fully inside nor permanently outside empires. The international legal personality of such territories and the nature and scope of imperial legal authority over subjects within them—such

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questions could not be decided without blurring the boundary between internal and international (or inter-imperial) law. British officials selfconsciously elaborated legal reform as a project that could simultaneously apply inside colonies and assert claims to legitimate imperial authority over peoples and territories that had been outside empire. The active engagement of officials in restructuring colonial legal institutions bled easily into efforts to devise judicial structures in newly acquired territories. Like interventionist trends in later periods, such projects involved continual redefinitions of the meaning of British protection, the nature and legitimate sources of British authority, and the conditions under which the British might refashion other peoples’ law. It would be a mistake to think of the directions of such projects as determined by British actions alone. Opposition to British imperial authority took many forms and was often the catalyst for shifts toward both more and less meddling in legal systems. Polities and subject groups within and alongside British spheres of influence rebelled, and they also often claimed autonomy, sometimes employing nationalist rhetoric to negotiate improved standing within or alongside the empire. Europeans engaged in what one scholar has called “imperial internationalism” when they sought to mobilize imperial subjects, resources, and rhetoric to position states within the international community of the early twentieth century.64 We might adapt this phrase for the early nineteenth century and label common strategies of opposition to British or other European imperial ascendance as “inter-imperial nationalism.” From maritime raiders claiming sponsorship by the Sultanate of Sulu to South Americans forming confederations to Greek nationalists seeking power ful allies, anti-British forces tilted at imperial structures while recognizing the possibility, or even the probability, of being absorbed into other imperial webs. One result was that in multiple regions from the Pacific to South Asia to the South Atlantic the British styled imperial power as a controlling authority over a field of smaller sovereignties—as the corollary, in other words, of an overarching sovereign power that could never exist (as John Austin would argue) in a global order of sovereign states. There were different ways of defining imperial power. It could consist of the capacity to intervene in and settle conflicts among other polities. It could exist in the influence of British standards and expectations with regard to the protection of property and the disciplining of subjects. It could result from incremental

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interventions in response to acts of arbitrary justice. It could flow from attempts to enforce British bans in areas not under British rule. In the formative decades of the early nineteenth century, the British Empire used all these processes to shape and claim a controlling influence over emerging regional legal regimes. Instead of mining interventions in a search for the origins of international legal norms or doctrines, we explore the intricacies of the regional systems of states and of the oceanic order projected by British agents. In many places where British naval or political control was elusive, powerfully opposed, or too costly to covet, British agents maneuvered to defi ne a legal force field of uneven effect to urge multiple sovereignties to recognize, tolerate, or even support British intervention and commercial exploitation.65 It should be clear now why we comfortably use the term “global” to describe the machinations of an empire that could claim only partial and unstable control of limited portions of the globe. British power was certainly spreading through involvement in commercial networks, the acquisition of new colonies, and the maneuvers of a dominant and emboldened navy. At the same time, the empire met with significant opposition on many fronts, and successive British governments, as well as influential segments of the British public, were skittish about the costs of expanding imperial rule. Still, the global reach—or at least the global ambitions—of the empire acquired new force and direction in this period. Further, the projection of influence through the matrix of politically plural regional formations and through British-engineered prohibition regimes took on the qualities of a truly global project, regardless of the actual territorial extent of British authority. Law featured brightly in the vision of empire as a framework for world order. It also dominated the effects of British schemes on complex political formations outside the empire, from federations to nationalist movements to new regional regimes, and on the coming age of international law.

Conclusion The dearth of attention to Britain’s nineteenth-century rage for order is perhaps not surprising. Its sources are scattered and often pedestrian. Its influence on colonial jurisprudence was uneven. Transformative market

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forces, paired with explosive colonial rebellions, have stolen scene after scene from the empire’s less glamorous legal transformation, even though both capitalism and revolution were locked in intimate embrace with both empire and the law. The story of colonial legal reform fails to satisfy our craving for the arc of drama because it has no obvious end. Institutional fi xes in response to colonial scandals tended to generate new crises in the form of legal panics; sometimes efforts to produce greater order through law had thoroughly disorderly results. No clear lines join the profusion of early nineteenth-century law talk to the emergence of colonial democracies in some of Britain’s settler polities at midcentury. The Indian Rebellion of 1857 transformed imperial governance—but it did so by ossifying some strategies of early nineteenth-century legal ordering rather than others, and we should resist the temptation to label it as a decisive break. Alternative organizing rubrics include oversimplified, but ever fashionable, proofs of imperial indifference to human suffering—easy to come by—or the more uplift ing but misleading fiction of the origins of human rights law. A good deal has been stacked against the telling of this vast but unsuccessful effort to shape a world order through the law of a single empire. The sheer impact and scale of the process of remaking the British Empire by law must make us look again. Our effort to capture the complexities of imperial legal change is necessarily programmatic rather than comprehensive. In Chapter 2 we illustrate the diffuse origins of calls for law reform in two of many colonial scandals, one about a tyrannical governor and another about intemperate and cruel slave masters. We show how both fed into and reacted to pivotal conversations about the future of conquered colonies throughout the empire. Chapters 3 and 4 explore the diverse uses of despotism talk to effect imperial legal reform on a global scale and, more contentiously, to justify jurisdictional imperialism beyond the empire’s boundaries. Chapter  3 explores the most spectacular and understudied mechanism of internal imperial legal reform in the early nineteenth century: colonial commissions of inquiry. Dozens of commissions of legal inquiry launched between 1802 and  1840 gathered evidence of misrule, diagnosed colonial legal pathologies, and recommended the intimate and extensive reconstitution of British colonies around the globe. Commissions were system building, but they were also porous. By interposing the Crown between colonial administrations and colonial subjects and by embracing legal pluralism as a foundational principle of imperial constitutionalism,

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commissions exemplify the polyvocal character of this moment of legal ferment. Commissions imagined a new type of imperial governance while causing new fractures that brought legal reform to a crawl. Internal jurisdictional thinking about the protection of subjects spilled over into jurisdictional gambits outside the boundaries of the empire, as Chapter 4 shows. If the protection of slaves in the West Indies required extending jurisdiction over slave masters and interfering in the legislative process of self-governing slave colonies, then the protection of Kandyans in Ceylon justified the deposition of the Kandyan king and an overhaul of his supposedly unjust legal system. Similar logic could be deployed to insist that the protection of Ionians by treaty required British control of their courts and constitution-making process, while Ionians could extend the same argument to urge British consular jurisdiction over Ionians abroad. Imperial agents insistently confounded categories of protection in ways that quietly linked claims of protection with annexation—a troubling, if mostly silent, legacy haunting later debates about humanitarian intervention. We then turn to the role of imperial law in the emergence of regional regimes that in our period largely constituted global law. Chapter 5 traces Britain’s piecemeal efforts to order oceans by policing slave traders and pirates. We argue that intra-imperial law and inter-imperial compromise— more so than treaties or universal principles derived from the law of nations—shaped policing regimes in the Atlantic and the seaways of Southeast Asia. Understanding that dynamic helps us to read this period not as a prehistory of international law but as a complex and striking example of the function of a weak hegemon in shaping multiple municipal legal practices. Chapter 6 rereads British efforts to order the Río de la Plata and the Pacific archipelago as something more than quasi-imperialism. Making order outside empire was rarely as simple as pushing jurisdiction outward— though carving out tiny jurisdictions became somewhat of a mania in the British Empire from midcentury. For British agents, global order outside empire often meant conjuring other states into existence or corralling existing polities into legible regional orders. It entailed asserting authority over other states’ quarrels, demanding other states’ orderly comportment in commercial disputes, and bullying sovereigns into protecting merchants or compensating them according to vaguely defined British commercial norms. In sum, these chapters suggest that international legal history needs to recognize the deeply generative legal politics of an imperial world.

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Britain’s rage for order affected the framework for colonial politics in fundamental ways. It played a key role in the composition of world regions as multistate formations. And it shaped the very idea of legal order on a global scale. Contemporaries were deeply aware of what historians discovered only later: Imperial law stood at the intersection of the forces of internal and external order—between what we would now call international relations, on the one hand, and rule over composite polities, on the other. In the late nineteenth century, European international lawyers would puzzle over how to reconcile the persistence of empires with the imagined interstate order. Earlier in the century, the quest was different: how to construct world order on the armature of empire. Law was at the center of the British rage for order, and law animated many sources of disorder—chimeric reforms, unmanageable legal conflicts, and clumsy inquiries—within the global empire of law.

CHAPTER T WO

Controlling Despotic Dominions

IN

1810 the worlds of a despot and an antislavery campaigner collided. The great abolitionist and ally of William Wilberforce, James Stephen, stood up before the court of King’s Bench to defend Colonel Thomas Picton. Picton had been accused of the extrajudicial murder of twentynine British subjects, among other crimes, during his short tenure as governor of the island of Trinidad.1 Those accusations did not stick. But in 1806 Picton had been convicted of authorizing the illegal torture of a free black girl named Luisa Calderón. On appeal Stephen assured the court that if the Crown had empowered Picton to order the torture of Luisa Calderón, no court could intervene. Colonial British subjecthood in a conquered colony bore little relationship to the “freeborn rights of Englishmen” that had inspired American colonists to rebel against British rule. Nor did it matter if the law left over from Spanish rule on Trinidad authorized torture. The imperial constitution reserved for the Crown and its delegates exclusive authority to command the island’s legal system, however obnoxious its laws might be. Picton might have been drunk on power, but he broke no laws.2 Evidently embarrassed by the prospect of adjudicating exercises of the Crown’s virtually untrammeled power in conquered colonies, the court retired to consider the case and never reconvened. Picton died a hero at Waterloo.3 Why did Stephen, who had spent most of his career championing the abolition of the slave trade and the reform of slavery, want to shield a cruel governor from punishment for his role in the torture of a teenager? Unlocking this puzzle reveals something important about empire and about antislavery at the turn of the nineteenth century. Far from being agents 28

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of despotism, Stephen and others in a new generation of men involved in governing empire cast extensive crown power as despotism’s antidote.4 Building on a critique of colonial rule championed by the likes of Burke and Bentham, but rejecting their emphasis on parliamentary oversight, reformers argued quietly that crown prerogative was the most sure and efficient way to save conquered slave colonies from the tyranny of masters.5 In older colonies, where the establishment of local legislatures made direct crown rule constitutionally impossible, reformers fought to expand the authority of crown-appointed governors. In a country with a robust tradition of deposing overreaching monarchs, the claim that crown prerogative alone could restrain colonial despotisms should have been jarring. Not so in the decades after the American, French, and Haitian Revolutions. Despotism talk was everywhere, but arguments for liberty, equality, and fraternity were not. The enemies of slavery were most likely to argue openly for the virtues of autocratic governance in newly conquered colonies, but they were not alone. Complainants everywhere invited the enhancement of central authority. Even when they did not request intervention, the very act of writing home generated data to increase metropolitan oversight. The trickle of complaints that fi lls slim volumes of eighteenth-century correspondence became a flood in the first decades of the nineteenth century. Some despotism talk did of course underpin efforts to disperse authority.6 Mostly, though, disaffected people across the empire—whether merchants, sailors, slaves, colonists, soldiers, convicts, religious minorities, or activists—used allegations of petty despotism to advocate the consolidation of power at the top in order to reform, and then expand, the jurisdiction of the middle reaches of colonial legal hierarchies.7 In the age of revolutions, despotism talk about local hierarchies worked well because it harked back to a venerable revolutionary tradition without treading too close to rebellion. It gave complaint the aura of scandal without demanding even the basic negative liberties that Britons liked to think they held under Magna Carta and the 1689 Bill of Rights. Allegations of arbitrary justice featured lurid stories of good men turned bad, of men driven by power to ignore the common good. As the Hastings trials of the 1780s and the Picton trials of the 1800s demonstrated to anyone paying attention, scandal resolved more quickly than mere complaint into transformative constitutional arguments about the relation of colonial to imperial

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authority and about the nature of imperial governance. Whether deployed by conservatives or reformers, the language of despotism thus became a mantra for imperial reconstitution. The resulting processes of reform combined the sometimes contradictory goals of facilitating metropolitan scrutiny of local legal bureaucracies and enhancing the power of those in the middle who might exercise control over public, private, and petty jurisdictions in the colonies. This chapter examines two scandals—one about the tyranny of governors and the other about the despotism of masters—in order to explore the strange relationship of despotism talk with emerging ideas about British imperial legal order in the early nineteenth century. A coup d’état in 1808 in the convict colony of New South Wales set the parameters of debate about the constitutional minima required in British colonies governed under extensive prerogative powers.8 The discussion of despotism in the court-martial of rebel Lieutenant Colonel George Johnston in 1811 comprises one of the most detailed public articulations of colonial expectations of good governance and subjecthood in the empire. Though some of the participants had Jacobin sympathies, complainants did not demand a legislature or even juries for their peculiar colony. Instead, accusations of despotism by and against Governor Bligh focused largely on his interventions in a broken court system. Witnesses called for the rudiments of fairness—protection of property and punishment according to law. The mild treatment of the “Rum Rebels,” furthermore, served to demonstrate the power of their claims. If new colonies were to be autocratically governed, then the British government wanted desperately to avoid the sort of despotism that Britons associated with Napoleon. Meanwhile, scandals about the torture and murder of slaves by two masters in the Leeward Islands in 1810 and 1811 exposed the relationship between imperial reconstitution and antislavery. Too often scholars either ignore the jurisdictional project inherent in calls for the amelioration of slavery or they link it too glibly with contemporary human rights.9 The controversies surrounding the brutality of Edward Huggins on Nevis and Arthur Hodge on Tortola show very clearly that the cruelty of masters was read less as a problem of slave rights than as a sign of deep constitutional disorder. These scandals were transformative, both locally and across the empire. Speculation about the incapacity of magistrates, courts, and planter legislatures to govern the Leeward Islands became a key strand in arguments

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for autocratic rule in conquered slave colonies. It was deployed in debates about the constitution of Trinidad in 1811, and in the 1820s it underpinned calls to investigate and reorder the empire on a global scale. Understanding the way that scandals like these cooked into constitutional debates helps us identify elements that gelled, a decade later, to form a project of inquiry and constitutional reform—the comprehensive rethinking of global order within the confines of the empire. Read together, the coup against Bligh, the trial of two slave masters, and the appeal of Thomas Picton show the gradual solidification of a new type of constitutional thinking in the empire. The new vision turned on the image of expansive crown power tempered ever so mildly by law administered by independent and disinterested officers.

The Despotism of the Crown By some measures William Bligh’s turn of the nineteenth century was even worse than Thomas Picton’s. He had served as governor of the colony of New South Wales for less than two years, when, on January 26, 1808, the New South Wales Corps “gathered on their parade ground” and made their way “to the tune of the British Grenadiers” to Government House to arrest him.10 Having led the arrest party, Lieutenant Colonel George Johnston declared himself acting governor of the colony. His first acts (after declaring martial law for one day) were to reestablish the courts and to reconfigure the magistracy. Johnston declared on January 27: “In future no man shall have just cause to complain of violence, injustice, or oppression. No free man shall be taken, imprisoned, or deprived of his house, land, or liberty, but by the law. Justice shall be impartially administered . . . and every man shall enjoy the fruits of his industry and security.”11 Obviously worried about how to explain the coup, Johnston waited for more than two months to write home. In early April he sent a letter copiously reaffirming his commitment to the Crown and defending the mutiny as an effort to keep the king’s peace in a colony with an obstreperous governor and an unruly populace. He claimed that “Governor Bligh . . . [had] betrayed the high Trust and confidence reposed in him by his Sovereignty, and acted on a predetermined plan to subvert the Laws of his Country, to terrify and influence the Courts of Justice, and to bereave those persons

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who had the misfortune to be obnoxious to him of their fortunes, their liberties, and their lives.”12 To provoke one mutiny was an unlucky fate for any colonial official. Bligh had now caused two. In 1789 most of his crew (including some very well-connected young officers) had seized Bligh’s ship, the Bounty, and put him and nineteen loyal men into an open boat to sail from Tahiti to Timor. The British press and some of the naval command recorded that journey as a triumph of bravery and seamanship; Bligh was honorably acquitted by court-martial for losing command of the Bounty.13 Overall the incident had ended in his embarrassment. Although ten of the mutineers were captured, only three were hanged. Of the others, four were acquitted and three were pardoned. Their stories of Bligh’s tyranny and “bad language” eclipsed his own account of mutiny, treason, and heroic survival.14 It seemed that despotism talk almost excused mutiny in the Admiralty’s courts-martial, though, in the weird alchemy of late eighteenth-century legitimate command, Bligh’s unimpressive pedigree and unlikable personality might have sufficed to save most of his mutineers from the gallows. Bligh’s loss of New South Wales was hardly less humiliating. After alleging that they had found him cowering under a bed to avoid arrest, the mutineers held Bligh under house arrest for months. Eventually he negotiated for possession of the Porpoise by promising to sail it straight home. Instead, in a show of comic petulance that also looked a bit too much like perfidy, Bligh declared himself governor and sailed to the settlement at Van Diemen’s Land to hold court.15 He did not last long there. A stern letter from Colonel William Paterson to Lieutenant Governor David Collins, plus Bligh’s trademark overbearing nature, ensured that within a month Bligh was back on his boat and forbidden contact with island residents. He stayed on his boat in the Derwent River until Governor Lachlan Macquarie arrived to replace him in January 1810.16 No one was held to account for the rebellion until May 1811, when Johnston was court-martialed in London for mutiny. Unlike the legal proceedings against Colonel Picton, which had been limited, and ultimately thwarted, by their awkward fit with legal actions for false imprisonment and official misconduct, Johnston’s court-martial rested entirely on the question of gubernatorial tyranny. In his defense Johnston argued that he had deposed Bligh because the population of Sydney was on the cusp of a rebellion caused by Bligh’s malfeasance. In this narrative, far from being a

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group of rebels, Johnston and the New South Wales Corps had intervened to keep the colony in order. They claimed that Bligh had persisted in the “violation of public justice and private property.” He oversaw “a tyranny which exhibited an extravagant mixture of system and caprice, and perpetual violence, displaying itself both in real injury and gross verbal abuse.”17 At the basis of this tyranny, according to Johnston, lay Bligh’s endemic interference in the administration of law. There was a good deal of scope for tyranny in New South Wales circa 1806. Though it had not been conquered from some nefarious continental bastion of universal monarchy, the colony was established as a site of deep constitutional exception. It was settled in 1788 as Britain’s first and only dedicated convict colony, more than a decade after revolution had closed American ports to criminal exiles and some years after a series of disastrous attempts to deploy convicts as conscripts in Western Africa.18 To facilitate this remarkable colonial experiment, New South Wales was given a suitably truncated constitution. The colony had no legislature—an understandable omission given its convict majority. Governors’ commissions and instructions, in combination with the 1787 Charter of Justice (enshrined in 27 Geo II, c. 2), invested ultimate judicial, military, and administrative power in a governor without the guidance of a council. Though never formally granted the power to do so, governors before 1824 had also exercised extensive legislative powers—another understandable innovation, as New South Wales was very far from home. The governor was supported by a bare administrative infrastructure, including a judge advocate aided in his exercise of criminal jurisdiction by six military officers in a hybrid military court. Commentators who argue that the governor of New South Wales wielded more power than any equivalent in the empire seem not to have looked at the constitutions of Trinidad and Malta. Nevertheless, New South Wales was an autocratic place indeed.19 Yet New South Wales governors did not rule without constraints. First and foremost, Bligh and his predecessors were the object of continual heckling, not least because their instructions ensured that, as former governor King pointed out, “there is no society where the clashing of duty and interest between Governor and the Governed are more violent than in New South Wales, and more particularly so if the Governor does his duty.”20 Crown instructions stipulated that the colony was to be run as an open-air reformatory, wherein convicts would labor in agriculture in order to transform

Samuel John Neele, “New Holland and Its Dependencies” (London: Sherwood, Neely and Jones, Pater Noster Row, 1821). Image reproduction courtesy of National Library of Australia (Rex Nan Kivell Collection Map NK 10630).

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themselves into some parody of a virtuous yeomanry. Convicts were to be kept in the public service—a policy that lasted less than a decade, as it became clear that convicts were better governed and better fed in private ser vice. Most importantly, the population was to be encouraged to stay out of town. Freehold farms of various sizes were readily granted to soldiers and ex-convicts, while no lands at all were granted in fee in early Sydney.21 No amount of gubernatorial power could bring such a chimeric vision into reality. Like almost everyone who left Europe for overseas colonies, marines, soldiers, free settlers, and the ever-growing population of emancipated convicts wanted to make wealth through commerce—by importing and selling goods, by harvesting seal pelts and whale blubber, and eventually by trading in agricultural surpluses. To this end, they clung to Sydney. By 1806, when Bligh arrived, most colonists (4,000 of the colony’s 7,563 residents) lived in town.22 Soldiers and ser vice providers built houses near the governor’s mansion, traders and shopkeepers built homes and businesses around the harbor, while convicts established a thriving township on a rocky outcrop they prosaically called the Rocks.23 The town rose on rickety tenures. Although a small number of fourteen-year leases were granted on Governor Philip’s instructions, most houses in Sydney were built on the basis of “the Governor’s word” or “letters of occupation” overlaid with even more dubious contracts of sale.24 From these tenuous establishments, colonists traded. They preserved their businesses in the face of metropolitan disapproval by making the lives of every governor miserable. It was in trying to force Sydney-siders away from the governor’s residence and the harbor that Bligh first developed his reputation for tyranny.25 Many colonists had loathed Governors Hunter and King, but only Bligh had threatened to evict them from their homes and businesses.26 In correspondence home before the coup, Deputy-Commissary Robert Fitz complained that Bligh’s attack on leases “renders the tenure of property very insecure; for if one Governor can do away the act of a former one, all property of whatever nature must be uncertain.”27 In Johnston’s trial, Bligh was accused of interfering with improvements on land leased in Sydney by David Dickinson Mann, Thomas Whittle, Daniel Mackay, Nathaniel Lucas, and Mr. Gowan—interferences that Bligh justified on the grounds of urban planning.28 John Macarthur gave extensive evidence of his ongoing disputes with the governor over the boundary between his lease and church

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grounds.29 Bligh was also questioned about the destruction of houses of humble folk, including those of John Shee, Frederick Meurant, William Kimber, Mr.  Apsey, and Mrs.  Judith Flinn, who had built ramshackle huts on the governor’s domain. The wife of ex-convict farmer and trader Edward Wills complained to a correspondent, “From some he took good houses and gave them bad ones. From others he took their houses and turned them into the street and made them no recompense whatever. Some he stopped building. Others he made make improvements against their inclinations and on the whole endeavoured to crush every person as much as possible.”30 Johnston’s witnesses also alleged that Bligh interfered with the administration of justice in ways that rendered the courts powerless to defend the colony’s subjects against tyranny. John Blaxland told the court-martial that the “agitation of the town” on the eve of Bligh’s dismissal was caused by “Gov. Bligh’s interfering with the Courts of Justice; the Criminal Court he was attempting to destroy, which was the only security for our lives from his arbitrary power.”31 The defense alleged that on at least three occasions Bligh had directed the double trial or double punishment of offenders: D’Arcy Wentworth was both admonished by a court-martial and dismissed from the office of assistant surgeon;32 two political prisoners from Ireland were acquitted for sedition by the criminal court only to be convicted for the same wrong by the bench of magistrates; and a number of convicts received “3, 4, 5, or 600 lashes” after being acquitted by the officers before the court.33 Bligh was also accused, both in correspondence home and in the mutiny trial, of interfering in the election of officers to the criminal court, “contrary to the usual custom and routine of the Corps,” and of postponing the trial of his ally Provost Marshall William Gore for fraud until Bligh had returned to town to sway proceedings.34 Rebels alleged that Bligh’s appointment of men of bad character to public office had further compromised the administration of justice. Macarthur swore that “the greater part of the people assembled about the Governor were men in very embarrassed circumstances, and considered ready to do whatever they were directed.”35 None of Bligh’s allies was more controversial than the ex-convict attorney George Crossley, who had been transported to New South Wales for falsifying the will of a dead client.36 The defense presented a good deal of evidence that Bligh was intimate with Crossley, or, at the very least, had consulted Crossley on constitutional

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business in the weeks before Bligh’s removal from office.37 Judge Advocate Richard Atkins attested that he himself had relied on Crossley for advice about legal technicalities coming before the court, and that Crossley had been involved in draft ing indictments in the legal disputes about John Macarthur that precipitated rebellion.38 Crossley’s influence, rebels agreed, was the cause of great alarm. Anthony Kemp swore that “no person considered either his life or his property safe under the guidance of so notorious a character.”39 Their objections to Crossley (and to other former convicts) suggest a much more insidious tyranny than the regime of Governor Bligh. Elites in the colony intimate with the officers of the Corps warned of the emerging supremacy of emancipated convicts in commerce, society, and government. Their concern was sincere; as the century progressed, colonists around the empire became increasingly fi xated on social status and propriety, even as they became more fastidious about distinctions of race.40 In New South Wales that concern would soon spill over into intractable divisions among elites—including the judges of new, superior courts—and the new governor, Lachlan Macquarie, together with his ex-convict clients. In the meantime, allegations about ex-convicts were clearly marketable in London, where the colony was defi ned by its moral debauchery in the minds of the public and the government.41 Th is reputation for tyranny, corruption, and debauchery found exquisite distillation in the “bad language” of Governor Bligh.42 Witnesses alleged that Bligh’s intemperance demonstrated contempt for imperial authority. They recounted his angry refusal to honor promises of sizable grants made by Lord Camden and other London patrons to a number of free settlers.43 Former judge advocate Richard Atkins’s evidence was most damning here. Atkins admitted that his “dread” of the governor’s temper “sometimes” led him “to sanction measures that were contrary to my feelings and judgment.” 44 When Atkins warned Bligh about the double punishment of D’Arcy Went worth, Bligh allegedly exclaimed, “The law, sir! damn the law: my will is the law, and woe unto the man that dares to disobey it!” 45 All these allegations of despotism converged in Bligh’s relationship with John Macarthur. Macarthur had exploited the status boost given every smart, free man who had served as an officer in the New South Wales Corps to win favor with powerful men in London. He returned to New South Wales in 1805 newly forgiven for plotting against the last governor and

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bearing promises from Lord Camden of a large grant of land for his sheep. True to form, Bligh refused to give him his land grant. Macarthur reported that Bligh had “answered, with the utmost violence . . . Damn the Secretary of State! . . . he commands at home; I command here.” 46 Bligh offended again when he appointed “principal merchant” Robert Campbell to enforce restrictions on the importation of rum stills into the colony.47 Macarthur imported them anyway. When Campbell sent his nephew to seize Macarthur’s stills without a warrant, Macarthur responded with a suit. He declared in court: “It would therefore appear that a British Subject, living in a British settlement, in which the laws are established by the Royal Patent, has had his property wrested from him by a non-accredited individual, without any authority being produced or any other reason being assigned that it was the governor’s order. It is therefore for you gentlemen, to determine whether this be the tenor on which Englishmen hold their property in N.S.W.” 48 Late in 1807 Macarthur added arbitrary arrest to his growing list of complaints. In an effort to prevent the escape of convicts from the colony, Bligh had passed orders requiring ship owners to pay a bond guaranteeing that they would guard against convict stowaways.49 Things got ugly when the Parramatta (owned by Macarthur and Garnham Blaxcell) smuggled a convict to Tahiti in June 1807. When the boat returned to Sydney in December “laden with 75,660 pounds of pork,” it was seized by Robert Campbell, and its crew was detained on board until its owners paid the ₤900 bond.50 They refused. When the crew sought relief from the judge advocate, Atkins asked Macarthur to appear before him.51 Macarthur refused again, alleging that he had been illegally prevented from entering the ship.52 At this point Atkins issued a warrant for Macarthur’s arrest. On December 15, when Francis Oakes delivered the warrant, Macarthur sent him away with threats of violence, claiming later, “It appeared to me that nothing could authorize or justify such a violation of the Liberty of a British Subject, unless positive oath had been made that he had committed some offence which would submit him to imprisonment.”53 Macarthur was arrested the next day, released on bail, and enjoined to appear before the bench of magistrates. Probably colluding in the growing spectacle of the maladministration of justice, the bench referred the matter to the criminal court. Macarthur then objected to Judge Advocate Atkins’s sitting on his trial. A drunkard and a debtor with no legal training, Atkins

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was an easy target.54 Macarthur demanded that Atkins recuse himself on the grounds that he was the defendant in a suit for debt brought by Macarthur and “cherished a rancorous inveteracy against [him], which has displayed itself in the propagation of malignant falsehoods, and every act of injustice that can be expected to proceed from a person armed with power, against a man whose life and conduct is, I trust, a public satire on his own.”55 After this outburst, Atkins understandably pressed for Macarthur’s arrest for contempt. But the six military officers sitting on the case sided with their former colleague and confidant, demanding that the governor appoint another judge advocate to hear the case. When the governor explained that he lacked the power to do so, and demanded that the case continue, the officers responded with defiance. Bligh summoned them to answer charges “of suspicion of treason.”56 At this point Captain Johnston intervened. He instructed the Sydney jailer to set Macarthur free or to refuse at his peril.57 The very evening of Macarthur’s release, Johnston led the Corps to Government House to arrest the governor. No one knows to what degree Macarthur had conspired with Johnston to orchestrate this sorry mess of judicial proceedings. What is clear, however, is that allegations of the maladministration of justice did—and were expected to do—vital work in mobilizing Sydney against Bligh and in justifying rebellion at home. Accusations of colonial despotism centering on the administration of law mattered. The power of despotism was also clear to Bligh and his supporters. In Johnston’s 1811 court-martial, they tried desperately to cast Bligh as the enemy of despots and the defender of justice. William Gore, provost marshal under Bligh, attested that the few “individuals . . . discontented with the measures of the Governor” had conspired against Bligh because of his efforts to suppress the abuses of middle powers in the colony—serving and former officers and their magistrate cronies. He noted that Bligh had invoked the ire of a small faction by restricting the circulation of promissory notes pegged to unstable local currency; indeed, one settler, in a plaintive letter home, alleged that Bligh “perpetually harassed” traders “by capricious regulations and arbitrary restraints” of this nature.58 Other abuses by rebel magistrates sound more familiar. Bligh had ordered Gore “to permit no man to be imprisoned without a warrant from a magistrate” and to ensure “that no prisoner should be liberated without his discharge being submitted to myself.” Gore testified that Bligh had also tried to restrain

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magistrates from inflicting “severe” punishments on convicts, and ordering their “corporal punishment . . . to obtain confession of supposed crimes.”59 Francis Oakes, the chief constable, described how Bligh had saved the colony from profiteers on his arrival. In March 1806 a flood had devastated Hawkesbury crops, a crisis that was exploited ruthlessly by “the monopoly by certain characters” of the remaining grain supply.60 Shortly after Bligh’s arrival, 135 Sydney-siders and 234 Hawkesbury settlers petitioned him, accusing local elites, including John Macarthur, of price gouging in the crisis.61 Bligh addressed the problem by issuing the petitioners (many of them ex-convicts) with rations during the crisis. He also helped to relieve their debts, a further source of tension with Macarthur, who had lent money to farmers before the flood in return for payments in fi xed quantities of grain. Bligh refused to overturn Atkins’s decision to allow settlers to pay their debts at the pre-flood value of their grain, destroying Macarthur’s hopes of a windfall profit.62 Robert Campbell and John Palmer both claimed that most colonists had been perfectly content on the eve of the coup. Free settler Martin Mason went so far as to allege that the countryside was horrified by the rebellion and that settlers had signed a congratulatory address to Johnston from city and country under duress.63 Charles Walker testified that John Macarthur had publicly criticized Bligh for granting too much land to “a set of rascals” and not enough to “respectable gentlemen of the colony” and had warned well before the rebellion that “the colony had suffered Gov Bligh to reign long enough.” 64 In reality Bligh’s sin was far greater. He had withheld patronage almost entirely, giving out only three land grants during his tenure, amounting to “only 2,180 acres whereas his predecessor had given 73,337.” 65 Tales of elite despotism spun by Bligh’s allies did not sway the court. After conspiring to overthrow a governor with pageantry that implicitly invoked the traditions of the English and French revolutions, Johnston was cashiered, but not hanged. No one else was court-martialed or tried for rebellion. Some of the reasons for this outcome were very personal. Macarthur was a pugnacious bore, but after years of practice, he had a talent for scandal. He and his cronies were also much better connected than the hapless William Bligh, whose history on the Bounty and in a later tyranny charge had left him with more enemies than friends in Admiralty.66 Other reasons for Johnston’s escape from the gallows have real constitutional valence. The Crown had some very specific reasons—constitutional

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reasons—for being careful about accusations of despotism against governors of New South Wales. While most allegations of Bligh’s tyranny focused on the mundane details of legal administration under Bligh, Sydney’s rebellion also invoked structural questions about the governor’s legislative powers and the constitution of the courts. In 1803 Bentham penned an unpublished pamphlet arguing that the whole enterprise of convict settlement in New South Wales was unconstitutional. He noted that New South Wales was not a conquered colony. That being the case, the Crown did not have the untrammeled (if contested) powers that it would later enjoy in Trinidad. Though no one in government argued that New South Wales was a “settled colony” until 1818, it clearly did not fall within the broad powers of conquest confirmed for the Crown by Campbell v. Hall.67 Accordingly, Bentham argued, the Crown had overstepped its authority in the colony. Britons in New South Wales (excluding convicts and serving members of the military, who, he thought, were bound by martial law) should have received the benefits of British law. Instead the colony was improperly constituted under a very odd amalgam of prerogative delegations and acts of Parliament.68 Although no one in government took Bentham’s privately circulated complaints about New South Wales very seriously, his views did filter into constitution talk in the colony. Macarthur met Bentham in London during his temporary exile and apparently read his pamphlet. On his return to the colony in 1805, he warned Governor King of “the illegality of all local Regulations . . . unless sanctioned by an Act of Parliament.”69 King reported this conversation home with an air of unmistakable panic, but nothing was done. Tellingly, the constitutional change Macarthur imagined as a solution was modest. In a letter signed by T. W. Plummer in 1809, Macarthur proposed the establishment of an appointed legislative council, or of one elected by magistrates, to ensure that gubernatorial autocracy was tempered by the most respectable settlers.70 By and large he seemed to agree with Governor King that “the laws of England” were not “sufficient for the government of this colony.”71 Fifteen years after Bligh was deposed, Macarthur’s suggestions formed the kernel of the constitutional reordering effected by the 1823 New South Wales Act.72 Sydney’s rebellion drew on a long revolutionary tradition that spanned the confrontation at Runnymede in 1215 and the Glorious Revolution in 1688. Some of the key participants, notably Thomas Whittle, had clear

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Jacobin proclivities.73 These overtones ought to have damaged Sydney rebels during a global war to roll back the French Revolution. They did not do so in part because the rhetoric of despotism drew considerable power from the English revolutionary tradition; even a counterrevolutionary Crown could not ignore accusations of tyranny. Moreover, in the context of the much more troubling upheavals in America, France, and Haiti, the little rebellion in New South Wales was far from revolutionary. As we have seen, the rebels were not interested in regicide; they sought security of property and a slightly more independent judiciary. This agenda, as the data gathered by the commissions of inquiry in the 1820s demonstrated, formed the substance of demands for liberty throughout the counterrevolutionary empire. Another explanation for the rebels’ escape has to do with the very public scandal over Thomas Picton’s excesses in the Caribbean. In the very year that Johnston stood trial, some in Parliament used Picton’s excesses to demand a legislature for Trinidad. In that context, defending Bligh by hanging rebels must have seemed very dangerous. Johnston’s punishment threatened to serve as an ill-timed and very public example of the failure of experimental crown rule in the empire after the American Revolution. Not just Trinidad’s constitution but a new model of imperial ordering was at stake here. The string of constitutional disasters caused by granting a legislature to Grenada in 1763 taught a generation of policy makers that it was a “mistake” to assume that “the Government & laws, of Great Britain . . . must be equally good, and equally agreeable to foreigners.”74 A minority of Britishborn Protestants in Grenada seized control of the legislature, refused to pay taxes to the empire, then set about oppressing the francophone and free black majority so badly that in 1795 their victims rose in rebellion and offered the colony back to the French.75 That epiphany had underpinned every colonial constitution granted since 1773, when Parliament imposed a governor-general on the East India Company. The shift to crown autocracy modeled in India began a slow-bubbling conversation about the ramifications of growing differences among the metropolitan and colonial constitutions.76 In the early 1780s that conversation shifted decisively against calls for parliamentary oversight of empire and toward enhancing the prerogatives of the Crown. In the lead-up to their attacks on Warren Hastings, Charles

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Fox and Edmund Burke argued that an unsupervised crown representative in India threatened worse misgovernance than Company rule. They proposed that India should be governed instead by a parliamentary committee. In response, opponents to Fox’s bill made what turned out to be a much more impor tant argument about empire. They argued that crown rule in India was safer than governance by parliamentary committee. Making colonial despotism the province of the Crown would quarantine Parliament from infection.77 Distance and constitutional difference could prevent the colonies from exporting tyranny from periphery to center. But distances were collapsing in the early nineteenth century as the misdeeds of colonial governors overflowed into the London press. Imperial autocracy was not only the product of fear and convenience. In colonies like New South Wales and, even more so, in Trinidad, extensive crown prerogative promised to facilitate experiments in good governance. Much talk of imperial reform after 1773 assumed a hard boundary between metropolitan and colonial legal subjecthoods. Abolitionists combined with ambitious administrators to cast autocratic Trinidad as a test space for free labor, or at least for reformed slavery. Whatever Bentham might say, New South Wales was designed to be a space of moral improvement; farm work would turn thieves back into fit subjects.78 It was this promise of autocratic reform that motivated James Stephen to defend Picton’s despotisms in 1810. It was this same promise that the scandalous tyrannies of Bligh and Picton threatened to derail.

The Despotism of Masters Despotic acts through an ordered and layered legal infrastructure could reform empire because real despotism, for metropolitan administrators as well as reformers, lay elsewhere. The project of imperial constitutional reform relied on remediating the evils of disorderly middling officials who failed to make their wayward neighbors answerable to the just laws imposed by a benevolent Crown. So much is clear from a series of controversies that occurred in the Caribbean, even as Picton and Johnston stood before the courts of London. On January 23, 1810, a troubling spectacle took place in the public marketplace of the main town of Charleston on the island of Nevis. Edward

J. W. Lowry and J. Sharpe, “Jamaica—Leeward and Windward Islands,” in Sharpe’s Corresponding Maps (London: Chapman and Hall, 1848). Image reproduction © 2009 David Rumsey Historical Map Collection (Image no. 2175050).

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Huggins and his sons ordered two drivers to flog thirty-two enslaved men and women. The punishment of so many slaves drew a small crowd. No one tried to stop the floggings or protested their severity, but at least one bystander took careful note of the event. John Burke recorded the number of lashes dispensed: nine men had taken the brunt of between 47 strokes and 242 lashes. The nine women fared even worse, receiving between 49 and 291 lashes. He also noted the names of a handful of magistrates who stood by and watched. Burke recorded events, he later claimed, because he thought “the country would take up the business.”79 And so it did. Huggins was wealthy and well connected. He had recently purchased a large sugar estate, and his son-in-law was president of the Council of Nevis. Nevertheless, Huggins was indicted by a grand jury in March for violating the Leeward Islands Slave Amelioration Act by punishing “several of his negroes in a very cruel manner in the public market-place.”80 It was remarkable that this act could bring any island slaveholder to court for his cruelty. Passed by the General Assembly and Council of the Leeward Islands in a rare meeting on Saint Christopher in 1798, the Act offered precious few protections to slaves. The Council had contrived the act in an effort to ward off the growing threat of metropolitan interference in colonial slavery. The Act served mainly to enumerate punishments for trifling wrongs committed by slaves—such as traveling locally without permission or trading from small craft. Abolitionists, including James Stephen, later mocked the claim that the legislation had secured for slaves “the certain, immediate, and active protection of the law.”81 Whatever its flaws, the local Amelioration Act asserted new public authority over slave owners’ private prerogatives to punish. Unlike the Jamaican Amelioration Act of 1788, it did not limit the number of lashes a master could inflict. But it did charge magistrates with responsibility to investigate all allegations of cruelty made against local masters.82 That jurisdiction, however weak, held transformative potential. It contained within it the concession that a slaveholder’s jurisdiction over slaves was not a natural accoutrement of ownership but a privilege delegated by the state.83 In Huggins’s case, the number of victims, the scale of the floggings dispensed by his drivers, and the quiescence of the magistrates in the audience flouted the law’s vague prohibition of cruelty and threatened to peel away the thin veneer of planter self-regulation. So a week after the floggings the Nevis legislature defended its very limited jurisdiction over slave

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masters by passing a resolution condemning Edward Huggins for inflicting punishments so severe that they constituted “an act of barbarity, altogether unprecedented in this Island.”84 In his defense, Huggins and his family promoted a different island order. They claimed that the master’s jurisdiction to punish represented the cornerstone of the local peace. In a statement intended to be transmitted to London, Edward Huggins recited what he regarded as the basic principle that made the public flogging legitimate: the law “entrusted to the master the power of correcting his slave.”85 Huggins and his sons also raised the specter of slave revolt. On the witness stand Peter Huggins recounted growing discontent on his father’s estate. He claimed that the slaves had progressed “from opposition . . . to actual disobedience; from disobedience . . . to riot; and from riot to rebellion.”86 Flogging the slaves had been necessary “to deter other slaves from similar conduct” on other estates—an assertion that the Huggins men directed with sure aim at an audience of tremulous planters consuming news of the Haitian Revolution and worrying that talk of local amelioration and legal protection would tempt their own slaves to rebel.87 Peter Huggins recounted a series of events that doubled as a cata log of planter fears. Petit marronage (slaves’ absconding for short periods) on the newly acquired estate was rampant. “Hunters” dispatched to bring back runaways routinely returned empty-handed, and if punished, they also ran away. Dozens of slaves descended at once on the sick house. Slaves beat a fellow slave who had taken private orders from Huggins, prompting a work gang to show up hours late in protest. On one occasion a “whole gang . . . advanced” on Huggins, and he had to threaten to shoot to get them to stand down. Peter Huggins testified that he soon found that “he could get nothing done when he was out of the field.” He ordered slaves “to carry dung out of the pens for an hour every night” as punishment for refusing to work. That command sparked a week of standoffs during which many men and women continued to refuse the order and some would not work at all.88 Because the practice of carry ing dung out at night was one of very few slave labor tasks banned in the Amelioration Act of 1798, slave refusal to do this work surely indicated captives’ knowledge of the promise of reform and their determination to defend the few privileges that it had already afforded them.89 Local controversy spilled over into imperial scandal when Huggins was acquitted of all charges. Between his indictment in March and the trial in

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May, Huggins’s allies had found a way to stack the petit jury with allies.90 Acrimonious letters appeared in several local papers—leading to allegations of slander by Huggins, and a spirited defense of due process by the island’s legal officers.91 At home, Parliament gathered and published records of the governor’s correspondence, minutes of the council and grand jury, and transcripts of evidence; metropolitan newspapers extracted and published some of these records. This surfeit of critical discourse focused less on the beatings, or the lot of the slaves who received them, than on the failure of several bastions of the British constitution in the colony—the magistracy, the jury, and the courts—to control despotic planter behavior.92 Magistrates in particular came under scrutiny. In March 1810 the Nevis grand jury considered indicting the magistrates who witnessed the event for neglect of duty, but it prepared an indictment only for Huggins, because the magistrates could not be accused of abetting Huggins’s crime unless he was first found guilty of committing one.93 In September the Earl of Liverpool instructed the Leeward Islands’ new governor, Hugh Elliot, “to bring to justice any of the parties” implicated in the flogging, including “any magistrates or other officers who may have been so criminally negligent of their public duties as to have witnessed, or forborne to interfere . . . in so disgraceful a scene.”94 Nearly a year after Huggins was acquitted, London continued to badger Elliot to remove the magistrates from office, “with that degree of publicity that may mark to the community to which they belong, His Royal Highness’s reprobation of such culpable remissness on their part.”95 Behind the failure of the magistracy lay still broader questions about the proper structure of legal administration in the colony. Commentary on the case emanating from the islands focused in part on the dearth of trained legal personnel in the colonies and the resulting injustice not only to slaves but to free subjects. One critic from Nevis subjected himself to a libel charge by writing a letter to the St. Christopher Gazette calling the chief justice “an habitual drunkard, often intoxicated on the Bench” and insinuating that other slaves had died on the Huggins estate without any investigation.96 Local attacks alleging the partiality of the jury, moreover, raised concerns about the fitness of slave-owners to adjudicate the behav ior of fellow masters.97 The reputation of Caribbean institutions took another blow when a delegation from Tortola arrived in 1811 bearing news of a complaint against

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Arthur Hodge for the torture and murder of his slaves.98 The group carried two sworn depositions, one of Pereen Georges, a freed slave who had lived and worked on the Hodge plantation, and the other of Stephen McKeough, a former overseer on the Hodge estate. Their accounts of Hodge’s violence were hair-raising. He was accused of causing the death of two household slaves, Margaret and Else, by having boiling water poured down their throats. He had been seen supervising the vicious flogging of an enslaved man who returned empty-handed from a mission to retrieve runaway slaves.99 And the slave Prosper, who allegedly stole a mango, was said to have lingered for days after a flogging so severe that he never walked again; his body was swept into a shallow grave at the door of his hut. Several children, allegedly including a daughter of Hodge by one of his slaves, also suffered torture. Elliot wrote to his wife that the well-connected Hodge had committed acts “more dreadful than any I ever heard of within the limits of the British Empire.”100 If Huggins was tried because his public cruelty embarrassed laconic legislators, Hodge’s tortures were likely reported because he had made enemies among Tortola’s elite.101 Witnesses at the trial hinted at very personal vendettas, and correspondence suggests that the man who organized the depositions against Hodge, William Cox Robertson, may have done so to further a complicated bid to gain access to the bounties of the Admiralty jurisdiction in Tortola. Ironically, the Abolition Act had enmeshed clerks and government officials of Tortola in the lucrative trade of assigning (probably for a fee) liberated slaves as apprentices, or in some cases inveigling them back into slavery.102 Whatever their motives, Hodge’s enemies chose the right time to act. Smarting from allegations that he had mishandled the Huggins trial and aware of Tortola’s reputation as a hotbed for illegal slave trading, Governor Elliot was eager to put on a show of authority.103 He had little authority to show. Legislative assemblies ruled this corner of the Leeward Islands. The only formal authority of the governors, rarely executed, was to object to legislation that went against the Crown’s interests. Legislatures, not the Crown, chose magistrates and judges. Solicitors general and advocates general were appointed in London, but metropolitan patronage networks were only starting to come under pressure to produce candidates with the will and training to stand with governors against island legislators and judges.104 Despite his limited power, Elliot managed to ensure that Hodge

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was not tried entirely by locals. As the local criminal court was going into recess, he appointed a special commission of oyer and terminer, and sent a stand-in for his sick solicitor general to Tortola to hurry the trial.105 When an unusually obliging jury found Hodge guilty of the murder of Prosper, Elliot rejected the court’s recommendation for mercy and Arthur Hodge became the first British slave owner in the West Indies to be hanged for the murder of a slave. The hanging of a prominent planter demonstrated the benefits of enhancing the power of governors over judicial proceedings in self-governing colonies. At the same time, Hodge’s long career of cruelty served to underscore the endemic failure of West Indian magistrates to exercise their limited powers over masters. In his opening remarks in the trial, the solicitor general placed the issue of magistrates’ complicity at the center of the case. He opposed the idea of a colonial order with a strong magistracy to a state of anarchy in which powerful men would define their own legal prerogatives: “It is to be hoped they [the magistrates] will meet every aid and encouragement in the righteous discharge of their duty, and that their sentences will be respected, and carried into proper effect; other wise we need hold no Courts, but becoming in a state of insubordination, leave every man to assert his own rights, and maintain what he may call, his own privileges in the best way he can.”106 Viewed in this frame, Hodge’s crimes stood for more than a barbarous abuse of the master’s prerogatives; they represented an abnegation of the jurisdiction invested in magistrates to bend the despotism of masters to law. In 1811 and 1812 the despotism of masters in the Leeward Islands was understood by radical reformers and by the men in charge of empire as a much more pressing constitutional problem than the despotism of men like Picton and Bligh. White society in the West Indies, Elliot wrote home in 1810, was composed of “managers, overseers, self-created lawyers, selfeducated physicians, and adventurous merchants,” a motley group given to corruption and without the education or training to responsibly staff the government and courts. The self-interest of masters and their white servants tended to “weigh down the scale of justice” so that “acts of arbitrary and unjustifiable power” would become “cloaked under the semblance, and dignified with the name, of constitutional acts.”107 Disorderly masters made a mockery of the institutions of imperial governance from the magistracy upward. London agreed that legal institutions lay at the heart of the

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problem. In 1811 Liverpool called on Elliot to report the “fullest information” about “the state of the civil and judicial institutions of each Island” so that “His Majesty’s government may be enabled to consider what steps it may be fitting to take for the reform of any abuses that may exist in the administration of justice.”108 In response Elliot recommended the central appointment of magistrates and judges who were independent of local webs of influence.109 He also suggested a uniform slave code: “The day perhaps will come when a British Legislature may think it expedient to define with precision, and with Christian benevolence the extent of the rights which one human being can exercise over his fellow creatures.”110 In his commentary on Hodge’s trial, Abraham Mendes Belisario (a Tortola pundit in search of a sinecure) also advocated the establishment of a more independent judiciary, because “Owners should not be allowed to be Judge and Party to the same cause.”111 Magistrates and judges, he said, needed power to hear and credit the testimony of slaves about the violence of whites or free persons and should be required to approve the severe punishments of slaves. Belisario went on to argue that registries of slaves were key to the supervision of masters. He advocated that registers be collected and sent to England yearly “with the names of Owners annexed”; “that a resident Commissioner be appointed for the specific purpose of watching over the protection of the Slave”; and that better records be kept of slaves “liberated” by vice admiralty courts under the 1807 Abolition Act. A registry alone would bolster the power of the state over masters enormously, simply by making slave deaths a matter of public record. A registry would have tracked the decline in the slave population of the Hodge estate and ended his reign of terror much earlier, Belisario asserted. Belisario was ambitious and Elliot was a client of reformer interests, so it is unsurprising that they lifted their suggestions straight out of the abolitionist playbook.112 In The Crisis of the Sugar Colonies (1802), James Stephen had used very similar arguments to convince the British government to maintain crown autocracy in Trinidad, arguing that crown rule was essential because slavery corrupted not only masters but British institutions of governance. Legislatures could not govern in the interests of a slave majority and the courts could not do justice when legislators and judges were beholden to slaveholder-neighbors.113 News of Huggins and Hodge was deployed in 1811 to do the same work, and it had a much greater impact on imperial policy. Liverpool published Elliot’s letters about scandal

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in the Leeward Islands to counter an attack on crown rule in Trinidad.114 In June 1811, Elliot’s arguments framed the Tory response when an outspoken opponent of abolition in the West Indies, the prominent merchant and MP Joseph Marryat, rose to attack Lord Liverpool’s intention “to continue the same form of despotic government which had so long disgraced the island [of Trinidad]” and called for the “introduction of the British Constitution, and of British laws into the island.”115 George Canning declared that he “wished to see at least one colony dependant [sic] on the legislation of the empire.”116 Henry Brougham also spoke against the motion: “When we talked of English law, we talked of it by reference to English judges, to English juries, and to English feeling and principles . . . It was a mockery to talk of transplanting the English law to the West Indies when only the name was carried thither, and all the true English feeling was left behind. Then the law of England served only as the engine of fraud and oppression, rendered doubly disgraceful, because carried on under the pretence of law and justice . . . The British constitution was to be found in no other part of the world but in this country.”117 In the medium term, the specter of Huggins, Hodge, and other planters flaunting their arbitrary power prompted even more ambitious plans to reconstitute self-governing colonies. The systematic investigation of colonial constitutions that we describe in Chapter 3 was launched in the shadow of discussions about legal despotism in the Leeward Islands. In 1822 Lord Nugent brought a private members’ bill mandating unilateral parliamentary reform of “the administration of justice” in the Leeward Islands. Echoing Elliot, Nugent proposed that “West Indian jurisprudence is surrounded by many and great difficulties”—chief among them the “obvious anomaly of the attempt to introduce the machinery of a free government into a society composed of master and slave” where such a small portion of the population possess “any share of political right.” Th is small, self-interested community must succumb to a “corporate spirit . . . fatal to the fair administration of the laws.” Systemic island tyranny had multiple causes, according to Nugent, but endemic conflict of interest was the most poisonous. “Magistrates,” he claimed, “have frequently to decide in matters of property, so strictly analogous to their own, that the principle of their own case is often involved in their decision on the case of another.” Also important were webs of local accountability: “chief justices of these islands . . . dependent for the greater

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part of their salaries upon annual votes of the assemblies” must interpret law in the interest of slaveholders and slave managers. These problems invited contempt for the law. The result was not just cruelty to slaves but poor conditions for commerce. Nugent claimed that “cases frequently occurred in which merchants and absentee proprietors are forced into the most ruinous compromise by the impossibility [of] obtaining justice against resident planters or managers.” In the West Indies, Nugent argued, “a representative government and trial by jury, are instruments only of oppression and injustice.” The right of slaves and creditors alike to a fair hearing rested on the systematic subordination of colonial legal subjecthood to a centrally supervised legal order, in a curious blending of counterrevolutionary stridency and liberal impulses.118 This cata log of injustice did not defend autocracy in Trinidad (although Marryat used the occasion to call again for a liberal constitution for the island). Nugent withdrew his bill in return for the promise of a commission of legal inquiry into the Leeward Islands. By 1825 that project had broadened to include every colony in the West Indies. These inquiries laid the groundwork for the reconstitution of island courts and systematic legislative review in the Caribbean in the 1830s. The petty despotism of Huggins and Hodge had helped to supply the scripts for imperial constitutional crises that echoed across time and space in the British Empire. The flywheel of this project was the subordination of masters to imperial authority, not the championing of the rights of slaves.

Conclusion The empire swirled with legal analogies: convicts to slaves, property in land to property in slaves, the despotism of masters to the tyranny of governors. As the wheels of colonial controversies turned, they generated constitutional questions—about the legitimacy of lawmaking in the colonies, the reach of British justice, the loyalties and obligations of local magistrates, the nature and limits of martial law, and English subjects’ claims to protection from arbitrary justice. Successive British executive governments groped toward a consistent approach to balance between public avowal of procedural justice and quiet endorsement of crown autocracy.

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One benefit of observing the confluence of discourses about despotism and order, struggles over the authority of magistrates, masters, and governors, and a language and practice of legal experiment in the early decades of the nineteenth century is to revise the chronology of imperial and global political change. In recent years a useful historiographical trend has been the erosion of an artificial divide between studies of “state building” and histories of reconstituting empires.119 But a tendency persists of separating British history into periods of the rise and formation of the “fiscal-military state” and of the bureaucratization of state authority beginning in the 1830s—or, alternatively, with the end of war in 1815.120 Such dividing lines denote “an English story,” one in which problems and experiences of governance in the empire appear as the muffled background to British (and European) debates about the state, even as changes in state theory are reframed as responsive to practices of governance.121 Imperial legal histories complete and complicate this narrative. Messy experiments in legal reform did not wait for the end of the global crisis but began in the context of global war. Historians have already noted the overlap of war with attempts to recast the magistracy in Britain in the long eighteenth century.122 In early nineteenth-century slave colonies in the midst of the Napoleonic conflicts, colonial patronage, prize adjudication, the formation of militias, the role of military and martial law, the punishment of rebels and prisoners—these and other salient themes of wartime colonial administration crystallized around publicly charged struggles over gubernatorial despotism, the petty despotism of masters, the role of magistrates in the protection (though not the equal protection) of imperial subjects, and the scope of direct imperial oversight of colonial society. A second benefit of recovering the focus of critiques of despotism on the administration of law is to reveal that transformative controversies extended beyond immediate institutional change, and even beyond imperial constitutional objectives, to assert the existence of a capacious civil community spanning the empire and encompassing even the most legally disadvantaged subjects. Appeals to the imperial constitution served historical actors well as a way of asserting the wider implications of their claims against despots.123 The fluidity of this constitutional discourse, meanwhile, cautions against attempting to defi ne imperial legal controversies too narrowly—that is, by searching for their doctrinal logic rather than understanding them as dimensions of a wide-ranging legal politics.124 It is useful

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to observe, too, that insistently law-focused discourse about colonial order did not contradict or merely reflect moral and humanitarian global projects. Law framed the imagination of an imperial civil society in which references to natural law or natural rights signaled inclusiveness at the same time that positive law commanded a layered rights regime.125 Arguing that slave masters should be governed by imperial rather than colonial law, or that the governor of New South Wales should not disrupt colonial property rights or court cases, was not the same as arguing that British subjects— free, convict, or enslaved—in the colonies should enjoy the rights and privileges they might wield at home. This perspective prevents us from viewing moral positions about governance as formed outside the law and then acting on legal institutions of state and empire.126 Opportunities for the exercise of arbitrary power emerged from within the legal order and produced dangers that were defined in legal terms, as challenges to a clearly stratified colonial world. In this context, claims about natural rights and debates about rights-asprerogatives developed side by side, and by design. Political actors artfully and insistently avoided choosing between liberal and authoritarian rights regimes in this formative period of the empire of law. The vision of imperial civil society as a single political community inhabited by multiple rightsbearing communities presupposed both strong imperial authority and colonial experiments in governance and law. Putting despotism talk about Huggins, Hodges, Picton, and Bligh together ultimately reminds us that the early nineteenth-century impulse to reorder empire began as a polyvocal and multicentric enterprise focused on law and its administration. Local pundits and malcontents crafted highly effective critiques of executive and middle power in the colonies. Though some spoke the language of Jacobinism, most participated in a more modest discussion about the minutiae of legal administration. Read with debates about the masters, the coup against Bligh reveals the importance and the limits of rights talk in conversations about imperial reform. New South Wales elites wanted their property protected and their courts independent, but none among them seriously argued that the colony should be governed by the same laws that pertained at home. Reading through the Leeward Islands debates about the despotism of masters to the discussion about jurisdiction and the administration of law that bubbled underneath helps us to recognize the amelioration of slavery as a cornerstone of impe-

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rial legal reform without imbuing it with magical humanitarian powers. Amelioration was a cornerstone crafted to defend crown prerogative at the expense of colonial masters, legislators, and magistrates. Whether critics attacked governors or magistrate masters, they focused largely on the need for a superintending authority, one that could control arbitrary justice and bring colonial subjects with different sets of rights into a single imperial legal order. This process performed the parameters of British global order and demonstrated that law lay squarely at its center. Whether emanating from the center or peripheries, efforts to bring order to the global empire revolved around the creation and ordering of a layered system of rule by law.

CHAPTER THREE

The Commissioner’s World

A

Mauritius law restricting the use of chains and collars on slaves came across the desk of James Stephen in the Colonial Office in early 1829. Son of the famed abolitionist and now law counsel in the Colonial Office, Stephen declared the Mauritius law an abomination. He noted that West Indies colonies had already banned “the use of chains and collars for the punishment of slaves,” and he chided the British governor of Mauritius for approving legislation designed merely to regulate “the extent of torture.” A proper law would have banned all use of fetters and would have added “a severe penalty” for any slave owner using such devices to punish slaves under “the domestic authority of the owner.”1 A few weeks earlier Stephen had subjected two laws from the West Indies to a similarly stinging critique. One was a creative response of Nevis lawmakers to instructions to found offices of protector and guardian of slaves. The Nevis act named all the justices of the peace on the island “collectively and individually . . . to be protectors of slaves,” an arrangement that Stephen declared nothing more than a maneuver to “narrow, rather than enlarge, the sphere of action of His Majesty.”2 A Saint Kitts law empowering two magistrates to sentence slaves to six months’ imprisonment and hard labor on the treadmill also earned Stephen’s censure. He labeled the law, which not only sanctioned new powers to punish but also envisioned the creation of a committee of legislators to manage the treadmill, “a serious infringement of the prerogatives of the Crown . . . objectionable not only as disturbing constitutional principles, but as leading to great practical injustice and abuse.”3 From his cluttered corner of the Colonial Office, James Stephen could do little to change law in the colonies. As legal counselor and then perma56

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nent undersecretary in the Colonial Office, from 1813 Stephen implemented a system to review colonial legislation that concentrated in his hands the power to disallow laws and send them back to colonies for alteration.4 The significance of this decades-long Colonial Office project has remained somewhat opaque. Its clear connection to a platform of colonial reform—a link symbolized by the passing from father to son of the mantle of abolitionist leadership— contrasts sharply with the project’s limited effects. Though he could review laws from Indian Ocean and Ca ribbean colonies simulta neously, Stephen was acutely aware of, and often frustrated by, his office’s limited reach into the political worlds that produced colonial legislation. He probed laws for clues to the motives behind them, but his view of local legal politics often remained clouded. Officials of the Colonial Office, including Stephen’s corner of it, were operating with dull tools in the dark.5 The program of legislative review is puzzling only if we view it in isolation, as a metropolitan venture disconnected from other colonial reform efforts. Stephen’s review of legislation belonged to a larger project of constitutional intervention. In seeking to recast the middle reaches of colonial legal systems, imperial officials supervised colonial legislation, massaged their limited patronage networks to appoint sympathetic middling officials in the colonies, and, with attention bordering on obsession, gathered information about colonial law. This chapter explores an important and transformative phenomenon that cut across all three of these projects: colonial commissions of inquiry. Inquiry into empire had inauspicious beginnings. Though ad hoc commissions had investigated colonial disputes before the nineteenth century, the role of commissions in the intensive reform of empire began in 1802. That year a commission of inquiry was sent to Trinidad to prepare a “report . . . of the actual Civil, Naval and Military State of the Island” with a view to “improving its resources and providing for its permanent Security and Protection,” a brief signaling the intimate connection between inquiry and constitutional experimentation in newly acquired colonies.6 The commission failed to reconstitute Trinidad. By including in the commission the hated governor, Colonel Thomas Picton, and by charging it with governance and inquiry, the British government ensured that this first effort at comprehensive inquiry would devolve into farce.7 A decade passed before the Crown dispatched another commission to a colony to inquire into its constitution and laws. In 1812 a commission

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consisting of a diplomat, a retired colonial judge, and another incumbent administrator was asked to write a permanent constitution for the island of Malta, to investigate allegations of despotism against its government, and to diagnose the endemic dysfunction of its courts. The Malta commission succeeded in producing a report, though it was tarnished by allegations of pro-government bias and was never published. Nonetheless, the report proved influential enough to destroy the hopes of a generation of elite Maltese for high office and autonomy.8 The project of colonial inquiry began in earnest a few years later. The Inner Temple–trained lawyer and erstwhile chief justice of Trinidad, John Thomas Bigge, arrived in Sydney in 1819 to investigate the state, constitution, and laws of New South Wales. Starting in 1822 the government charged a series of commissions of inquiry comprised chiefly of London barristers with island connections with reporting separately on courts, laws, and procedure, and on the disposal of slaves emancipated under the Abolition Act in eighteen West Indian colonies.9 Within months the government redeployed Bigge, now paired with a career soldier with extensive Indian Ocean experience, to form the Commission of Eastern Inquiry to examine the state, constitution, laws, and slavery in the Cape Colony, Mauritius, and Ceylon. In 1834 a parliamentary commission of inquiry headed by Thomas Babbington Macaulay set out to codify Indian civil and criminal law.10 Curiously, another two external and three internal commissions staffed by judges and, in one case, by the jurist John Austin, inquired into the laws of querulous Malta in 1824, 1831–1832, 1835, and 1836, making it the most thoroughly investigated colony in the empire. The moment of frenetic inquiry shifted gears when Lord Durham was dispatched to Canada in 1838 in the aftermath of rebellion. His commission recommended selfgovernment for British North Amer ica, marking a turn from the early nineteenth-century project of imperial reordering toward the constitutionally and racially divided empire that crystallized in the aftermath of the 1857 Indian Rebellion.11 From one angle the project of colonial inquiry looks modest. Starting in 1800, hundreds of commissions investigated every conceivable subject of metropolitan governance, from the state of the prisons to working conditions in factories in England and Wales. Hundreds more investigated Britain’s closer peripheries, Ireland and Scotland. Here commissions investigated distinctions between education, factories, agriculture, and policing

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in proximate peripheries and the metropole, even as commissioners sought “national” convergence of a Greater Britain on an unprecedented scale.12 Cast in this light, inquiries are markers of a historically new “governmentality” predicated on the systematic gathering of information about people and public and private institutions at home.13 The vast majority of commissions formed part of a metropolitan-focused project that peaked a decade after the most intensive phase of colonial inquiry ended.14 From another angle colonial commissions of inquiry take the shape of a uniquely ambitious effort to produce a coherent British imperial order of global proportions. The commissions carried London-appointed, mostly law-trained men to investigate and diagnose the system of legal administration from the Ca ribbean to Malta. Unlike prolific and increasingly specific domestic inquiries, colonial inquiries possessed startling breadth. Commissions received different and often internally inconsistent instructions, but sponsors enjoined each commission to examine core elements of colonial law, to consider the constitution and practice of colonial courts, and to evaluate their relationship to colonial legislatures and executives. In newly conquered colonies and in the recently settled convict colony of New South Wales, commissions went further. Whether instructed to do so or not, commissioners took it upon themselves to suggest the replacement of colonial executives, and they reacted to information they gathered from disaffected colonials (ranging from slaves to planters) with recommendations for an array of unsolicited and intrusive reforms. Theirs was an ordering project of open-ended and unprecedented scope. In this chapter we draw out just a few of the many threads of this grossly understudied constitutional moment.15 We start by exploring the role of commissions as royal fact finders, inserting the king into internecine disputes among colonial publics, colonial courts, and governments. Investigations responded to a perceived dearth of information necessary to effect the incorporation of the French, Dutch, and Spanish colonies acquired by Britain from 1798 to 1815. Pundits also complained for decades that the empire’s only convict colony had developed quirky and illegal institutions to fi ll the gaps left by poor metropolitan planning—institutions that the metropole poorly understood. Merchants, abolitionists, and imperial reformers urged the extension of the project of inquiry to include older, selfgoverning colonies rife with controversies over slave laws and arbitrary justice. Working in periods ranging from a few weeks to a year, commissioners

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were asked to provide a complete account of colonial law and courts and, often, to convey the nature of colonial society to metropolitan planners—a seemingly encyclopedic, and also Pyrrhic, endeavor.16 The promise and peril of a present Crown emerged clearly in two of the most colorful commissions of the period—the inquiries led by John Thomas Bigge into New South Wales and the Cape Colony. Bigge’s efforts to shape the muck of colonial scandal into a case for imperial reform gets to the heart of the commissions’ perplexing constitutional role—not just the collection but also the management and distillation of colonial legal information. Since the trial of Warren Hastings, “scandals of empire” swirled in the press; the testimony of interested, disaffected, and exiled colonists hijacked the hearings of parliamentary committees; and personal letters from friends and allies brought the details of small colonial jealousies and large colonial hatreds into the drawing rooms of British elites.17 The government designed commissions of inquiry to cut through the dysfunction of multistranded imperial communication networks. Populated by lawyers, sporting the language and rituals of courtly impartiality, and taking testimony at its source, commissions promised to tell the truth about empire—or more precisely, to construct palatable truths bolstering the imperial executive against its more boisterous critics. This was a fraught endeavor: as the Bigge commissions demonstrate all too clearly, the very processes of information gathering made commissions porous and commissioners susceptible to influence. No matter how biased or exclusive, to some degree commissioners crowd-sourced their recommendations for the imperial constitution. In the second part of this chapter we use the commissions of legal inquiry into the Caribbean to pull at two different threads of the project of imperial investigation. We highlight the contingency of imperial reconstitution by exploring the messy process through which an inquiry into criminal law in the Leeward Islands grew into a comprehensive, regional project. That chaos was enormously empowering. Enterprising Caribbean commissioners Henry Maddock, Fortunatis Dwarris, Jabez Henry, and Henry Coneys exploited their inconsistent instructions to expand the parameters of inquiry and shaped its outcomes by delivering carefully worded questions to carefully chosen informants. Their very movement around the Caribbean bound empire through analogy. Commissioners made constitutional clusters—sometimes by geographical accident (the Commission of

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Eastern Inquiry grouped the Cape, Mauritius, and Ceylon in the Indian Ocean) or the coincidence of appointment (Bigge linked New South Wales and the Cape). In the Caribbean the commissioners drew on one another’s work to flatten new and old colonies into legal conformity with a consistency that they hoped would resemble design while still providing room for persistent local anomalies. In this respect, no matter how ad hoc, how hijacked, or how perfunctory, the Caribbean commissions of legal inquiry open another key aspect of the project of investigation to view. In working to describe and diagnose legal divergence across colonies, commissioners performed a vital constitutional intervention. Displaying the diversity of law in new and old colonies was not an end in itself. It constituted a claim that the empire’s permanent condition would be just that: legal diversity. As James Stephen would remark at the end of his long tenure at the heart of imperial legal machinations, metropolitan interventions coalesced around the goal of ordering the “fift y united States of the British Empire.”18 This embrace of diversity contained an affirmation that British imperial subjects around the world bore different rights and responsibilities. This perspective would prompt challenges almost immediately and would become the focus of metropolitan debates in the 1860s among liberals in London about whether and which rights of British subjects extended throughout the empire.19 In the meantime the commissions’ comprehensive expositions of colonial constitutional exoticism provided powerful tools: by reducing new and old British colonies into variants of constitutional exoticism, commissions laid the groundwork for crown intervention into self-governing colonies and continued crown autocracy everywhere else. That core of illiberalism was packaged tightly with a sincere effort to do justice. The project of inquiry, more than any other vehicle of imperial constitutional reform, posited increased prerogative power as the last defense against colonial despotism.

Commissions, Corruption, and Convicts Inserting the Crown into colonial politics was no simple business, as Bigge’s inquiries into New South Wales and the Cape Colony make very clear. It was absorbing work that pulled commissions in new directions, making them complicit in some colonial despotisms while recasting them as fierce

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proponents of liberal reform in others. This process of entanglement was constitutive. Commissioners sought palatable truths in order to recommend palatable reforms, but their reports brimmed with the minutiae of colonial life and the opinions of colonists. Imperial legal reform was never simply a top-down affair. In New South Wales in particular, Bigge gleaned information about the ailments of empire from peculiar sources. A steady flow of rebels, disillusioned ex-governors, and pundits had made the state of the colony of New South Wales, and its laws and institutions, objects of acute anxiety among reform-minded administrators in London. So it came as no surprise when Commissioner Bigge met a bitterly divided community in Sydney in 1819. Governor Lachlan Macquarie’s policy of reincorporating meritorious emancipated convicts into government ser vice was impinging on the hysterically guarded boundaries of colonial respectability.20 A group of elite free settlers (called exclusivists) sought to remove the governor and to curtail the social mobility and civil rights of emancipated convicts. The movement’s ranks included some of the local economy’s wealthiest businessmen and even some champions of modest liberal constitutional reform, like the erstwhile Rum Rebel John Macarthur.21 Their opponents, a group composed chiefly of emancipated convicts, had also begun to agitate for the liberalization of local government and courts and, to a lesser degree, for the rights of serving convicts. Different parts of the community had some overlapping and many opposing stakes in the commission of inquiry, and they vied openly for Bigge’s attention. Meanwhile Bigge’s instructions ensured that his inquiry would wade knee-deep into colonial scandal. His public commission enjoined him to report on the state of the colony with a view to making transportation of convicts to New South Wales “an Object of real Terror to all Classes of the Community.”22 At the same time, Bigge was told to pry into large and small administrative affairs and to investigate “any individual, however exalted in rank or sacred in Character.”23 Bigge took this broad license a little too seriously. He notoriously declined to take evidence on oath, preferring to collect “candid testimony” from disgruntled elites murmuring in drawing rooms from which emancipated convicts were fi rmly excluded.24 As a result, no other commission report is so inflected with the politics of the dinner table. Confidential whispers related Macquarie’s preferential treatment of freed convicts, his refusal to assign enough convicts to private ser-

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vice, and myriad petty grievances about his manners and methods of governance. It worked like this. Commissioner Bigge’s first confidant in the colony was its new chief surgeon, James Bowman. Bowman had sailed out on the John Barry with Bigge. Bowman’s appointment irked Governor Macquarie, who had wanted to give the post to his friend William Redfern—a former soldier, mutineer, and convict who had served as an assistant surgeon to convicts since 1802. The strained relationship between Redfern and Bowman, the intimate relationship between Macquarie and Redfern, and Bowman’s friendship with Bigge provided a rich tableau of colonial dysfunction that profoundly shaped Bigge’s report on the colony. Hostilities started with an act of kindness: Macquarie tried to salve Redfern’s disappointment by appointing him to the magistracy. If rich residents were happy to hire Redfern to fi x their bunions, they were much less happy to have him sit on the bench. Bigge opposed Redfern’s appointment volubly. Redfern’s conviction, Bigge thought, should be enough to bar him from the magistracy. But his grounds for disapproval were also laced with vicious rumors of Redfern’s malfeasance and poor manners.25 Bigge accused Redfern of misappropriating government medicine, mismanaging the hospital, and sending abusive letters to Bowman.26 Bigge won that fight. Even before Bigge left the colony, Macquarie was officially instructed to remove Redfern’s commission.27 Bigge’s uses for Redfern did not end there, however. The mutineerturned-administrator became a poster boy for Macquarie’s misrule. For Bigge, Redfern demonstrated the morally corrosive overreaching of emancipated convicts in the colony. In formal questions Bigge interrogated Macquarie about his “Treatment of Mr. Bowman after his arrival, and continued refusal of the Smallest accommodation to him . . . when such Indulgences were granted to many favored Individuals, amongst whom was Mr. Redfern.”28 Macquarie’s friendship with Redfern also showed dangers of reintegrating convicts into polite society. Bigge’s report dwelled at length on Governor Macquarie’s efforts to force Redfern onto Sydney’s elites; the maneuvers of various officers and civil dignitaries to avoid sitting with Redfern at dinner occupy several pages of his report. Here, Redfern’s manners mattered as much as his former conviction. They were, Bigge complained, “both forward and obtrusive, and betrayed an entire forgetfulness in himself.”29 Bigge’s solution to the problems that Redfern

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exemplified was to close avenues of advancement in colonial bureaucracy to former convicts. An orderly convict society might allow emancipated convicts to participate in commerce, but they should never participate in colonial rule. Thus a cycle of pettiness spiraled into transformative policy. Snobbish free settlers were not the only people inveigling Commissioner Bigge into their feuds, however.30 One of Bigge’s most formative encounters was with the ex-convict lawyer Edward Eagar. Eagar wrote a long letter to the commission just one month after Bigge’s arrival, outlining systemic problems with the New South Wales government and courts, discussing the colonial economy, and recommending the thorough reorganization of the convict department. Eagar denounced the “enlarged and despotic authority” concentrated in the office of the governor: “He has no Council, consequently there is no check whatever upon him. He exercises absolute and complete Legislative, Executive, and Judicial Authority. His proclamations and general Orders are enforced as Acts of Parliament.”31 The upshot according to Eagar was “a pure and simple despotism” with abuses distributed under ominous headings: “Arbitrary and Illegal Legislation . . . Arbitrary Impolitic and excessive taxes (destroying trade) . . . Vexatious and Illegal Police and fiscal regulations . . . Oppression of Individuals obnoxious to the Government, and depriving them not only of the protection, but even the Common forms of the law . . . Systematic Suppression of all freedom of discussion . . . [and] Denying the People that other great Constitutional right of a free Press.”32 The antidote, for Eagar, was not only an appointed legislative council but an elected assembly.33 Bigge passed this letter on to the Colonial Office, where it had far more impact on the reconstitution of the colony than Bigge’s more conservative recommendations for structural reform of the New South Wales’s government. Eagar had much more success in enfolding Bigge into his campaign against the colony’s civil courts. Eager’s letter cast New South Wales magistrates as the quintessential petty despots. Their ill-defined jurisdiction encompassed policing, wages, and small debts, and they had the power to “inflict the punishments of whipping, Imprisonment, Hard Labour, and Transportation to Newcastle in their discretion” on free people as well as convicts.34 Eagar lambasted the superior courts for “Uncertainty, Delay, and Expence” in civil cases and for “Inattention to the Constitutional rights of the people . . . [and] Subservience to the despotic powers assumed by the Executive Authority” in criminal cases. The entire system lacked checks on

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executive authority and was plainly inconsistent with “the opinions, feelings, habits, usages and customs of Englishmen.”35 Eagar then turned to theater to dramatize the failure of the Supreme Court of Civil Jurisdiction. This court was run by Judge Barron Field, a failed London barrister who sought to augment his modest social status by courting exclusivists and his modest salary by hiking up court fees. To stage his theater, Eagar needed to get himself into court. The problem was that litigants could no longer represent themselves in civil cases, and emancipated convicts had been forbidden from appearing before the court as counsel. Soon after Bigge’s arrival in Sydney, Eager connived with a free settler and newspaperman to challenge the rule that litigants needed counsel. When he won that point, Eagar went on to represent himself in a debt case in which he challenged the legality of Field’s exorbitant court fees.36 Then Eagar set about meddling in a corruption scandal at Parramatta. He helped a local constable, Francis Oakes, accuse Field’s friend Hannibal Macarthur of corruption. Eagar alleged that Macarthur, a magistrate, had conspired with the Parramatta jailer to extract bribes from prisoners in return for good character references before the bench. By now thoroughly incensed by Eagar’s efforts to embarrass him before the commissioner, Judge Field dug in. He installed himself on the Parramatta bench, dismissed Oakes’s charges, and accused Eagar in the strongest terms of bringing frivolous litigation. All the while Bigge sat impassively—but attentively—at the back of the court.37 Eagar followed this performance by bringing a case against Field for “slander, and for demanding illegal fees.”38 Against the explicit advice of Commissioner Bigge, Judge Field retaliated with a historic plea: he requested adjournment of the case in order to obtain proof from London that Eagar was a convict attaint—that is, he sought to argue that Eagar’s conviction in England for felony now deprived him of core legal privileges, including “standing before the court.” One-third of Judge Field’s cases involved former convicts. So in raising this issue, Field threw into question the capacity of almost every emancipated convict in the colony to contract, hold property, or sue—an outcome that even the conservative and intolerant Commissioner Bigge could not countenance.39 Very few of Field’s follies made it into Bigge’s report on the judiciary of New South Wales.40 But Bigge’s observations in Judge Field’s courtroom mattered enormously. His private letters home noted the judge’s “warmth

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of feeling” regarding the “right of remitted convicts to sue in the colonial Courts” and his “contempt and abhorrence of the principles of that part of the Convict Population to which Mr.  Eagar belongs.” Such sentiments showed that Field did “not possess that degree of Temper and Deliberation that are necessary to conduct the Judicial business of such a Colony.” 41 These comments led directly to Field’s dismissal from office, and to the reconstitution of the civil jurisdiction in the colony beginning in 1824. Bigge’s reports on New South Wales groaned with information, some undigested and some indecorously heaped upon the reputations of colonists.42 But even these biased and bloated reports had purpose. Underpinned by a variety of colonial opinion, Bigge’s salacious stories worked to justify a reasonably consistent blueprint for reform. His key recommendation was the thorough overhaul of convict management, including the redistribution of convicts’ labor to frontier settlers, the establishment of a string of sites of secondary punishment, and the closing of civil offices to emancipists.43 This was not exactly the model imagined by the metropolitan government; rather, it combined models suggested by exclusivists and by Edward Eagar. Bigge’s scandalous reports worked less successfully to justify extremely conservative reforms to colonial legal institutions. He reported Eagar’s constitutional critique fully but concluded that the colony could do well without a full bench of Supreme Court judges and that, if magistrates would only keep records, they would be better for the colony than Quarter Sessions. He also saw no reason to tame the governors’ despotism with a council.44 The Colonial Office ignored these recommendations and gave the colony all three: a Supreme Court, Quarter Sessions, and a council.45 Bigge’s detailed reporting of scandal in the fractious colony delivered a qualified victory to the free settler elites of New South Wales. Bigge told their story, and the Colonial Office found that it favored their calls for convict subordination combined with a slightly more liberal despotism. For his part Bigge was rewarded for his collation of scandals with another contentious assignment. He was promptly redeployed with Major William Colebrooke to form the Commission of Eastern Inquiry into the Cape, Mauritius, and Ceylon—an odd triad that included a former Dutch colony with a large number of English settlers, a rebellious nest of francophone slave smugglers, and a populous island whose people had more than once signaled their desire to cast off British rule. Bigge managed only to

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complete the Cape report before returning ill to London. He had earned his rest. After twenty years of vacillation the Cape Colony was finally ceded to Britain in 1814. It had quickly become a hub for the redistribution of illegally traded slaves and a site of intense contestation among Dutch settlers, British newcomers, and Africans inside and outside the colony. The inquiry into the Cape served two key purposes. First, it responded to pressure from evangelists to investigate the state of slavery and allegations about the corrupt distribution of slaves liberated from illegal slave-trading ships (prize slaves).46 The commission dutifully gathered evidence from pundits in the Cape defending and excoriating the state of unfree labor. Significantly, the commissioners also gathered several volumes of evidence from prize slaves detailing their mistreatment. Their voices added to the complaints of other slaves, dozens of whom risked beating and imprisonment to attest in person to cruelty, unfair sale, separation from their families, and illegal detention.47 Th is evidence was deployed to justify far-reaching and immediate intervention. In 1826, while the commissioners were still in the colony, the Cape government appointed a Guardian of Slaves. In 1828, Ordinance 50 established a new code regulating indentured servitude and African labor in the colony.48 Second, the commission of inquiry was charged with answering increasingly vociferous calls from a well-connected British faction—the so-called 1820 settlers—to reform law and administration in the colony. The flamboyant governor Lord Charles Somerset had alienated British emigrants to the Cape by reversing land grants and official appointments they had received from his rival, Lieutenant Governor Rufane Donkin, while Somerset was on leave from 1820 to 1821. Ever since, Somerset’s sexual exploits and aristocratic proclivities had served as a cipher for illiberal policy, the maintenance of Dutch legal institutions, and the institutional stranglehold enjoyed by the Cape’s Dutch elite.49 So while the Cape’s slaves and indentured servants struggled to tell their stories to the king’s commission, a cluster of disgruntled free men set about staging a show of colonial scandal that was at once more entertaining and more profound than Sydney’s equivalents. In 1824 a group of local dissidents—all British born—were tried for criminal libel against the Somerset regime. Bishop Burnett, “a gentleman farmer bankrupted by his attempts to break into the monopoly of military contracts” awarded to

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Somerset’s favorites, was arrested for his trenchant criticism of nepotism and patronage in the colony. Two others, Lancelot Cooke, a merchant, and his notary, William Edwards, were arrested for criminal libel for alleging, in a memorial delivered only to the governor, that the collector of customs had corruptly disposed of prize slaves.50 Edwards was charged again later for publishing pamphlets alleging that Somerset was having a homosexual affair with the infamous Dr. James Barry.51 The Cape libel cases highlighted the particular problems posed by governing British-born subjects schooled by liberals under Dutch law administered by Dutch-speaking administrators. Burnett made this point most clearly when he refused to defend himself against libel charges proffered by a Dutch fiscal who could not properly read English, and in a Dutch criminal legal system in which defendants had none of the basic British procedural rights.52 Burnett’s protest raised a question posed in every conquered colony in some way or other: Was it appropriate to subject free-born (as opposed to new) British subjects to divergent colonial law? In the Cape, as in New South Wales, the question took on especially sharp significance because fi ne distinctions already existed among the legal capacities of various groups: convicts, freed convicts, free settlers, military men, and Aborigines in New South Wales, and in the Cape Colony, Xhosa, Khoisan, Dutch descendants, Britons, slaves, liberated slaves, servants, and convicts. Public debates and individual court cases often boiled complex distinctions into sets of dyadic opposition. But there was nothing simple about a British imperial order that claimed simulta neously to offer the law’s protection to all subjects and to apply laws recognizing distinctions among groups of subjects, many of whom maneuvered to present vociferous objections through the courts. This context explains a good deal about how the libel cases in the Cape unfolded. Instead of refusing to defend himself, the notary William Edwards used the court as a platform to argue that his “arrest was contrary to law—That the necessary preparatory informations have not been taken— That there is an entire absence of any corpus delicti, and that this Court hath no competence in this Case.”53 Edwards’s first arrest (for notarizing a document that was essentially an unpublished petition) had been recommended by the Dutch-speaking fiscal, on the basis of an extremely dubious interpretation of Dutch law. His second trial was more sensational. Edwards argued that the scandalous pamphlets that he had been accused of

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writing were not libelous—a contention that gave him the opportunity to engage in the “the willful & public repetition of the most offensive passages in the presence of a crowded court, and in contempt of frequent & serious warning from the Commissioners that such conduct would be consider’d as an aggravation of his crime.”54 This performance showed up the failures of the Dutch system in other ways. When Edwards declared that the pamphlets were not defamatory, the Dutch-speaking judges thought he was confessing to having written them. This conclusion, the commissioners intimated, arose from a combination of their limited translation skills and the vagaries of Dutch criminal law. Overall, the commissioners thought that the case presented precious little proof of Edwards’s guilt: “points that are likely to attract notice and surprise in England.”55 This was particularly problematic “in the Courts of this colony, where the members, who are constituted the Judges both of the law and the facts, are not in the habit of giving the reasons, upon which their decisions are founded.”56 Both in substance and procedure, then, Edwards’s trials served beautifully to demonstrate the shortcomings of Dutch law in the Cape and its misuse to stifle criticism of the incumbent administration. The Cape commission’s role in the controversy displays the enormous influence of local politics on the project of inquiry. Scandal in the Cape— much more so than scandal in New South Wales—produced spectacular constitutional reform. In New South Wales, scandalous abuse of office by emancipists became a trigger for destroying a governor and closing down the means for convict social advancement. In the Cape, the commission heard and reported scandal in order to tame its more salacious findings into the fi xings of a much more liberal report. Th is role combined crisis management with a search for palatable truths. The commissioners were asked explicitly to look into the trials—the Cooke and Edwards trial alone occupied a volume of correspondence and comment fi ltered through the commissioners.57 They expressed frustration that the controversies would be the object of discussion in Parliament, before they could “notice the connexion in which they stand with some of the most important objects of our public inquiry.”58 Most importantly, they used the scandals to argue that Dutch law and Dutch administration had to be thoroughly overhauled. Even when it was revealed that Edwards was actually an escaped convict and was almost certainly guilty of criminal libel, his pantomime,

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tamed and shaped for the Crown, made the Cape commission report one of the most transformative to be penned in the empire. Somerset was hastily removed as governor even as the commissioners prepared to depart the colony, and he was replaced temporarily by the liberal Richard Bourke (soon to be governor of New South Wales). The commission went on to recommend the immediate replacement of Dutch legal officers with British officials, and the “earliest assimilation” to British civil procedure and law “that can be made compatible with their present condition.” The commissioners also attacked gubernatorial power in the crown colony. Pushing even further than commissions elsewhere, the commission in the Cape recommended that the governor be completely divested of judicial powers and that he be forced to consult a much stronger council.59 Bigge immersed himself in colonial politics in New South Wales and in the Cape to subtly different ends. In both places his commissions absorbed local controversy and repackaged scandal to make very different cases for colonial reform. Those engagements showed the incurable porosity of the project of imperial inquiry. Two men who had been capitally convicted— Eagar was a former convict, and Edwards was an escaped one—had disproportionate impact on legal and political reform in these colonies. Rumors of corruption, spying, homosexuality, and torture were plucked from dinner table gossip and seditious pamphlets and projected into sober cases for imperial reform. The cases demonstrate, too, that the commissions served to magnify the constitutional import of local contests over subjects’ status and procedural fairness—intimately connected issues, everyone agreed. That pattern repeated wherever commissions went. Even very new British colonial populations (such as Sinhalese, Tamil, and Kandyan communities in Ceylon) and even groups with deeply restricted legal standing (convicts, former convicts, slaves, and former slaves) participated in this moment of imperial reordering—triangulating imperial, colonial, and local authorities to promote a revised, but still legally plural, imperial constitution.

Degrees of Freedom in the West Indies By far the most interesting of the empire’s investigations in the 1820s was the commission of legal inquiry into the Caribbean colonies.60 That may

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come as a surprise to anyone who has troubled to read them. Terse, formulaic, and tedious in articulation, these commission reports bear all of the hallmarks of nineteenth-century bureaucratic writing. Even so, the commissions showcase two key dimensions of the project of inquiry in the 1820s. They show the power of commissioners to conjure imperial reform by creatively interpreting instructions and by using standard questions and standard reporting templates. The dullness of ritual lent the commissions an aura of impartiality, guarding against self-governing planters’ wellgrounded suspicions that commissions formed part of a plot to subordinate their legislatures to the Crown. Such obfuscations could never really succeed, because in the end the commissions’ formulaic character served most forcefully to synthesize the West Indies into a constitutionally exotic region in which every colony was in need of some imperially imposed reform. The formulaic nature of the commission of legal inquiry is revealing in part because it was utterly unplanned. The first commission of legal inquiry was announced to quell Lord Nugent’s private members’ bill calling for the comprehensive reform of civil and criminal law and procedure in the Leeward Islands. In return for withdrawing his bill, Nugent was promised an inquiry that would span structural injustices against slaves, merchants, and creditors.61 Instructions to the commissioners traced a project both narrower and broader than Nugent had demanded. In a private letter dated September 20, Secretary of State for War and the Colonies Earl Bathurst privately directed the commissioners of the first legal inquiry to expand their inquiry to include the Windward Islands, but to limit its scope to the “administration of the criminal law as it affects the slaves and the free colored inhabitants, adverting to the case of white persons only where with relation to them there shall be found to be any material departure from the rules & usages of our own Criminal Courts.” 62 Instructions issued publicly to the West Indian commissioners on October 10, 1822, were slightly broader, directing the commissioners to inquire into all criminal law.63 In the meantime, on September 21 Bathurst warned the commissioners that “the present opportunity should not be lost of inquiring into certain points connected with the administration of Civil Justice.” Their focus was to be procedure rather than the content of law.64 Two months later, Bathurst directed the commissioners to “most private[ly]” report on the training of judges in the West Indies—whether they had “a regular legal education”

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and had practiced at the bar before their elevation to the bench; whether their incomes derived from fees; whether they were natives of the islands; and whether they had interests in local trade or plantations.65 Further instructions issued the same day asked the commissioners to report (also privately) on the wisdom of amalgamating the judicial and executive administration of the Windward and Leeward Islands into regions, with Barbados, Saint Vincent, Tobago, and Grenada in one, and Antigua, Montserrat, Saint Kitts, Dominica, Nevis, and the Virgin Islands in another. In this plan each colony would have a single governor, chief justice, and attorney general, each of whom would make circuits through the islands. None of these officers would have land, slaves, or family contacts in the West Indies. This plan was not of the Colonial Office’s drafting, and Undersecretary of State Robert Horton forwarded it to the commissioners with a list of misgivings. He preferred a simpler solution: appointing a chief justice for each of the existing administrative units to supervise existing colonial courts. Neither proposition targeted local legislative assemblies directly, but one proposed a profound reconstitution of West Indian courts and both envisioned significant reform of their judiciaries.66 This mess of instructions bears the mark of a brainstorm rather than an actual plan. Bathurst and his team at the Colonial Office had a busy several days in September and November imagining the future constitution of the self-governing West Indies. The tangle of intention became more snarled as the commissioners of legal inquiry moved through the Caribbean. Their public instructions expanded progressively to incorporate Jamaica (at the commissioners’ own insistence), Berbice, Bermuda, Demerara, Trinidad, and Honduras. Separate instructions attached to most of these inquiries.67 By 1826, the inquiry had grown to include every British settlement in the region. As the commissioners of legal inquiry translated their contradictory instructions into a more or less coherent project, they cast themselves as visionary reformers. The first commissioners, Henry Maddock and Fortunatis Dwarris, were systematizers—perhaps more so than their counterparts in the rest of the British world. In many respects they designed their own commission. They confounded public and private instructions issued by the Colonial Office by insisting that the governor of Barbados not refer to their body as a commission of criminal inquiry. Though their commission labeled them thus, they argued that the title “Criminal Inquiry” gave an

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incorrectly narrow impression of their investigative powers.68 The commissioners defined their project much more expansively, and they proceeded according to this vision. Maddock and Dwarris asked hundreds of questions per colony, varying them only slightly from place to place. The vast preponderance of these questions did not address criminal law or slaves at all but instead probed the constitution and conduct of civil and criminal courts. In their first report, 58 questions pertained to the powers and function of the slave court while 93 questions investigated chancery jurisdiction.69 Questions focused not only on the constitutional basis and jurisdiction of courts and appeals but also on which laws were in force, the powers and responsibilities of judges, the nature of trials, the rights and immunities of various litigants, and the content of the laws of equity, mortgages, bankruptcy, intestacy, foreign debt, and slavery.70 Similar legal questions were posed to newer colonies governed under foreign law. In newer colonies, the commissioners also examined the accoutrements of crown autocracy. In Demerara and Berbice, where Dutch law was in force, of the 469 questions asked, 150 questions probed the major criminal and civil courts and existing laws; another 125 addressed various colonial offices (including that of governor), most of which had some judicial function; and separate heads of inquiry dealt with bankruptcy, foreign judgments, arrests, costs, executions, and appeals. The civil rights of slaves attracted only 34 direct questions, though many more questions about slaves surfaced in the context of specific inquiries about courts.71 Broad instructions and even broader inquiries produced a peculiar genre of constitutional writing in the West Indies reports. All included a summary of laws in force (especially insolvency and testamentary laws), evidence about the colony’s courts, discussion of the key offices with judicial functions (including jailers), and ruminations on the legal status of free colored people and slaves. Most ended with a brief summary of suggested reforms at the level of the colony and occasionally at a subregional level. This formula produced interwoven recommendations for the most disparate of Caribbean colonies. Though colonies in the region were governed under Dutch, Spanish, and English laws, the commissions wove a fabric of legal pluralism that rendered familiar law strange, and strange law familiar. That subtle work is most evident when we contrast the report of the commissioners into Barbados in 1825 with their report on Trinidad in 1827.

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The commissioners arrived in Barbados on December 21, 1822. What the commissioners found in this oldest of British Caribbean colonies cast the mold of every inquiry that followed. Three weeks after their arrival, Maddock and Dwarris were already writing long missives home about the troubled state of law in the colony. They started with the problem of middle power, reporting that “the Persons who act as Judges in this island are very unfit for that purpose.”72 One of them, a puisne (inferior) judge called Best, had gone missing after beating a slave to death over two days. The commissioners hesitated to state it explicitly, but it seems clear that Barbadian planters had concealed the whereabouts of the murderous judge.73 Echoing critiques penned by Governor Edwards a decade earlier, the commissioners complained that Judge Best’s colleagues on the benches of Barbados were utterly incompetent. None had “been prepared by previous professions education and habits, for the Stations they hold.”74 The commissioners reported popular support for centrally appointed and salaried judges “without property in the Island, unconnected with its Inhabitants, and unaccustomed to its irregular proceedings.”75 All appointees should be trained at the English or Irish bar, though Scots might do for colonies with Dutch, Spanish, or French legal systems.76 They went on to endorse the controversial proposition that superior jurisdiction should be centralized into two circuit courts serving all of the Windward and Leeward Islands.77 As Dwarris pointed out in a private letter in 1828 to the new undersecretary of state, Horace Twiss, centrally appointed and paid judges (“your judges”) would be agents of metropolitan will, binding periphery to center.78 Incompetent and corrupt judges were only part of the problem with Barbados and its neighbors, however. Law itself there appeared exotic to commissioners: old-fashioned, corrupted, and obscure. Just six weeks after their arrival in Barbados, Maddock and Dwarris reported incredulously that 247 laws enacted by the local legislature existed only in manuscript form, so that the courts had to wade through imperfect, handwritten bills to ascertain the state of the law. Older printed collections were unofficial, incomplete, and inaccurate.79 Insofar as they could discover the content of law in the colony, the commissioners found benign peculiarities in colonial real property law; huge variations in probate and bankruptcy; and, of course, large and objectionable deviations in property law and master-andservant law on account of slavery. Part of the problem was that English law had been received in Barbados far too long ago (few could agree on the

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date).80 The other problem was that law and procedure had been altered by its corrupt legislature. Two centuries of self-governance, in short, had wrought juridical disorder. Th is problem was shared by every old selfgoverning colony in the region. Wherever they went, Maddock and Dwarris found “a total want of any fi xed principles of colonial jurisprudence.”81 To correct these uncertainties, Maddock and Dwarris demanded that Barbados and other self-governing colonies publish all their laws. They prescribed declaratory legislation extending British common law to be the “certain rule for all descriptions of persons, being subjects of His Majesty; and to obviate all doubts real or pretended upon this head, it might be recited and set forth explicitly in such declaratory law, that all African, or Creole slaves admitted within the King’s allegiance, are, and shall, at all times, be taken and held to be entitled to the protection, and subject to the penalties of the common law.”82 Maddock and Dwarris also prescribed a uniform slave law (distilled from local laws with some reference to Spanish precedents). In a very candid appeal to the Colonial Office to keep him on its payroll after the inquiries had ended, Fortunatis Dwarris went further. He advocated the centralized codification of West Indian law. He argued: “Codification—not its wide Benthamite significance . . . but to a certain limited extent, so as to secure slaves the protection of the Common Law & to put the Statute Law of the colonies upon some rational, intelligent footing must then be resorted to. And who will undertake to frame a law—nicely ascertaining & determining what parts of the Common Law are adapted & what are unsuitable—to these possessions? Who, again, will wade through the English Statute Book & decide what Acts and what parts of Acts shall be received & acted upon in the colonies?”83 The commissioners’ call for law reform in Barbados and neighboring colonies may appear banal. Trained judges, published (and somewhat reformed) laws, and streamlined courts seem rational enough demands to make of colonies exercising some variant of English law and procedure. That banality, however, is deceptive. Each of these demands rested on the reconfiguration of colonial constitutions and, with it, the redefi nition of colonial subjecthood.84 The commissioners did not attack local legislatures in the West Indies directly, but their call for publication and codification of law rested on powerful evidence of West Indian legislative incompetence. The ramifications of that claim were crystal clear to everyone who was paying attention. The commissioners’ call for publication dovetailed

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very neatly with James Stephen’s determination to approve, meddle with, or disallow every colonial law, and, as a result, repugnancy took on new purpose and potency in the era of inquiry.85 Even as Maddock and Dwarris circulated about the Leeward and Windward Islands, West Indian legislatures were barraged with model slave legislation drafted by London law officers and based on the Trinidad Order of 1824. James Stephen vetted (and usually rejected) their amendments. Between 1820 and 1833, most of the laws Stephen reviewed came out of self-governing slave colonies in the Caribbean.86 After Parliament abolished slavery in the empire in 1833, Stephen went on to refine and expand disallowance to effect the “gradual but systematic overhaul” of West Indian penal and master-and-servant laws, and to control newly self-governing settler polities in Australia and Canada.87 Wresting control of judicial appointments and court reforms also involved great constitutional disruption. While the king had unquestioned prerogative to establish courts and to vet judicial appointments, Dwarris doubted that the Crown could abolish the myriad courts established by local legislatures without subtle and protracted negotiation.88 Even the reform-minded Colonial Office lacked the courage to pursue this idea aggressively in the 1820s.89 Someone drafted a bill based on Dwarris’s recommendations, but by April 1829 Horace Twiss was “much grieved to say that there seems little prospect of our being able to effect the important object of a West Indian Judicature.”90 Both James Stephen and the King’s Advocate had objected to the bill’s radicalism.91 It was introduced and passed only in 1836 after a series of constitutional conflicts about West Indian criminal and master-and-servant laws opened the way for a swath of metropolitan legislation aggressively reordering the Caribbean.92 Thus, while no one could deny that Dwarris wrote very boring reports about the state of law in the West Indies, the commission’s diagnoses of the self-governing West Indies as a place of exotic law and dysfunctional courts dramatically reconfigured the relationship between the imperial center and the selfgoverning West Indies. The commission of legal inquiry into Trinidad did different work entirely. Bathurst added Trinidad to the commissioners’ itinerary late in 1823—further testament to the contingency of the project. Maddock and Dwarris arrived there in January 1824 with ten self-governing colonies already under their belt. Jabez Henry joined them in May with instructions to expand the inquiry to include Jamaica, Saint Lucia, the Bahamas, the

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Bermuda islands, Demerara, Berbice, and the British settlement in Honduras. Henry came to give Dwarris time to write up the commission’s findings. He also came to buff the legitimacy of the project in response to complaints that Henry Maddock was too sympathetic to slaves and that Fortunatis Dwarris was too sympathetic to planters.93 Unlike its precursors, the Trinidad commission was assembled to placate planters, not evangelists. On the same day that Lord Nugent had called for the reconstitution of the Leeward Islands, the merchant and parliamentarian Joseph Marryat Sr.  rose (not for the first time) to demand English law and self-government for Trinidad. He alleged that the long-incumbent Governor Woodford had corrupted his office by allowing the judiciary to charge exorbitant fees to hear cases and by imprisoning the mildest critics. He also alleged that Woodford’s ruinous taxes combined with endemic uncertainty of tenure in the island threatened rights of real property without proper redress in the courts.94 Worse than Woodward’s misrule of British subjects, according to Marryat, was the continued application of Spanish law in the island. Old Spanish law had been displaced in Spain by the Napoleonic Code, Marryat lectured. Thus, Trinidad’s antiquated legal system could properly be administered by a dwindling pool of practitioners, most of them underresourced Creoles living in former Spanish colonies. In Trinidad obsolete Spanish law was improperly applied by ignorant British judges, and its content was inefficient and unjust. Spanish law impeded the sale of property by creditors, made it “almost impossible to bring a culprit, to Punishment,” yet allowed years of imprisonment for trifl ing wrongs. Marryat hoped the commissioners would endorse the introduction of British law and a local legislature into Trinidad—a call seconded by British-born residents in the island.95 The British government had been busily averting parliamentary scrutiny of Trinidad since its conquest. When it finally acted on this latest attack, its response was surprisingly compliant. In September 1823 Bathurst instructed the commissioners “to proceed to Trinidad” to investigate Marryat’s claims. They were instructed to inquire into land titles in the colony—successive land grants by the Spanish Crown and various British governors since 1784 had resulted in a titles mess. Bathurst also instructed them to question whether Trinidad should adopt British law: by discovering what the population really wanted; whether Spanish law was indeed

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poorly understood by the island’s British judiciary; whether the system was unduly inefficient, expensive, and severe; and whether it better protected slaves and free people of color than the laws of England. They were emphatically not to inquire into the “question of convening a Legislative Assembly.”96 So it was the commissioners, not Bathurst, who embraced legal pluralism in Trinidad and the other crown colonies of the West Indies. They left Trinidad convinced that modified Spanish law was best for the island’s diverse population.97 They thought it “safer to proceed in the way that has been done since the cession of this island, viz. to remove those defects as they come under the notice of the courts in practice, and application, by progressive orders in council, and by the gradual introduction of such parts of the law of England as are better adapted to the present state of society in this colony, than the old Spanish law.”98 This recommendation drew careful lines between the status of colonial and metropolitan subjects. But the commissioners’ endorsement of legal pluralism in Trinidad was not entirely illiberal. For example, although the commissioners concluded that the demographics of the island (majority free blacks and slaves) prevented trial by jury, they did call for the extension of the writ of habeas corpus.99 They recommended the reform of a number of archaic and “oppressive” Spanish rules: reducing the age of majority from twenty-five to twenty-one; unburdening husbands from the “onerous” obligation to give their wives “a partnership in the property acquired during marriage”; and introducing a Dutch-style registry for wills.100 More importantly, they demanded that criminal law should be immediately revised. First, they insisted on the elimination of all punishments that were not recognized by the law of England or that discriminated on grounds of color.101 Second, they recommended the immediate anglicization of procedure in arguing that “the English mode of trial, and manner of proceeding in criminal cases, be substituted throughout, as well as the law of bail, as amended by Mr. Peel’s bill.”102 Most interestingly, and against their explicit instructions, the commissioners went on to report their sympathy for the “very moderate” demands of the population of Trinidad, not for a legislature, but for a representative “Council” to “confer on them the benefit of a reasonable control over the taxation and expenditure of the colony.”103 The commission also overtly endorsed decades-old calls to curb the power of the governor to intervene in

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courts. It carefully premised this call on “the abstract principle which we wish to see extended to all the colonies and not from any invidious application to this colony.”104 These demands were echoed throughout the empire from the Cape Colony to Malta.105 Only in New South Wales did Commissioner Bigge argue that the governor did not need a council or less judicial power, and Parliament curbed gubernatorial privileges there anyway. If the commissions of legal inquiry from Barbados to Nevis had defined self-governing colonies as spaces of constitutional disorder, their report on Trinidad, and on other crown colonies sought to instill the image of a better empire. This empire would be legally plural—slavery, demography, and distance made legal diversity essential to its constitution. It would be ruled by a tempered prerogative: the Crown’s representative in the colony would legislate and govern with the advice of a council drawn from superior and trustworthy colonial subjects. Exotic colonial law would be modified gradually in this better empire by British judges, paid from home and administering English-style criminal trials governed by the latest in English criminal procedure. Tedious legal detail set the parameters of an autocratic, just, and orderly empire that commissioners imagined arising out of the thicket of legal dysfunction, inequitable power, and plural legal traditions of the British West Indies.

Conclusion As well as being a Benthamite, John Austin was a very pompous man. His intellectual qualifications underpinned his commission to travel to Malta in 1836 to produce yet another report on law and governance in that fractious colony—the third commissioned by London since its acquisition in 1800. His pomposity ensured that his reports became the object of ridicule in the House of Lords and the Colonial Office. One of Austin’s verbose digressions carries the key to the empire’s project of legal inquiry. Empire, Austin reasoned, was a field of sovereign command. Casting faint shadows of the theory of sovereignty that would locate his later writings firmly in the canon of international relations theory, Austin denied “certain dicta of some of the English judges” to the effect that the Crown could not introduce into colonies any “institution

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contrary to ‘natural equity,’ or to ‘the fundamental principles of the British constitution.’ ” He argued that if such dicta were valid, “any Act of the Sovereign, however imperative and precise, would be placed at the mercy of subordinate judges.” And if that happened, imperial governance would be turned upside-down. Austin specified further: “The phrase ‘natural equity,’ or ‘fundamental principles of the British constitution,’ has no meaning generally agreed upon; and they therefore might easily accommodate the positive laws of the Sovereign to their real or pretend conceptions of its genuine import.”106 In short, Austin argued that the accoutrements of colonial subjecthood were mere gifts of the sovereign, whose obligation was not to protect liberty but to govern colonial peoples according to law and in the interests of the empire writ large. The fact that Austin’s was the third commission of inquiry dispatched from London to look into the constitution and laws of Malta in a quarter of a century provides the best proof that the authority he regarded as natural and straightforward—the imperial government’s command over colonies as subordinate jurisdictions—was not so. Colonial administrators and lawyer-commissioners were converging on a view that probing colonial law produced constitutional effects, whatever the intentions. Inquiry asserted the sovereign’s capacity to conjure order, certainly. Yet even if the sovereign was able to generate a modicum of justice in exercising supervision and authority—a pursuit different from pursuing a constitutional obligation to do justice—the result might be greater political flux and more insistent challenges to authority. There is plenty of evidence that visions of an imperially summoned order coexisted with deep anxieties about the disruptive effects of inquiry and investigation. In Ceylon, for example, even before the commissioners’ arrival the outgoing governor, Edward Barnes, complained of the inquiry’s “staggering effects on the minds of the People of this country” and predicted that the commission would “weaken this Government by exciting suspicion that His majesty has reason to apprehend all is not right.”107 Barnes was onto something. The commissioners found themselves swamped with locals’ petitions, a genre that they considered “overcharged” but that they also could not overlook.108 Petitions contained such damning critiques of the British government’s expansion of unfree labor, and of unequal and autocratic administration of justice in the colony, that the commission’s Ceylon report took on the unexpected character of an extended exposé of

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British misgovernment.109 The report described the cultural incapacities of the Ceylonese natives to wield the full privileges and responsibilities of metropolitan subjects. At the same time, it sought to deliver to “mendacious” natives a small presence in a Governor’s Council and to bring them the benefits of trial by jury—benefits the commissions were not willing to extend to the people of Trinidad or to the free settlers or emancipated convicts in New South Wales. In Mauritius in 1829, the arrival of the commissioners pushed longstanding resistance into actual revolt. Though theirs was a conquered colony administered under crown rule since 1810, francophone island planters had steadily opposed attempts by the British to alter their legal system, especially acts aimed at ameliorating the conditions of slaves and halting the slave trade. In this fraught space, the Commissioners of Eastern Inquiry were most unwelcome. In response to the commission, planters sent an “Examen du travail des Commissaires d’Enquête” to London with the sympathetic British governor’s assent. The document made it clear that any legal reforms proposed by the commissioners would be met with systemic noncompliance. Planters asserted that “there was not an Officer of Justice, an advocate, a Judge, or a single individual to be found in the Colony who would dare to render himself instrumental to the execution of the intended measures.”110 The commissioners noted planter intrasigence. Colebrooke and Cameron reported on arrival that “circumstances had occasioned a strong repugnance to prevail against” their inquiry into the slave trade, that they had been excluded from colonial society, and that official informants (with the exception of the governor) only responded to specific questions, formally posed.111 Planter resistance permeated island legal politics. When the imperial slave code of 1830 (a document recommended by commissions in the West Indies) was imposed, planters refused to record punishments, give slaves a day of rest on Sundays, or refrain from using the cart whip for punishment.112 In a case brought against Madame Blanchard in 1831 “for having flogged her Negress Francoise with a cart whip,” the defendant “refused to acknowledge” the authority of the protector and, “declaring the Order in Council of 2d February 1830 to be illegal, announced her intention to resist it.”113 By 1832 Governor Charles Colville reported that the French legal establishment was in open revolt: lawyers and law clerks “have all refused to charge themselves with any suits for the protector of slaves; and those,

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already commenced upon, have been returned.”114 He warned London that very soon the law “will become a nullity.”115 Tax collection had also ground to a halt.116 If that was not bad enough, Colville reported that French residents had formed an armed militia on “the pretext of their being required as Escorts for their families.”117 Here was British constitutional despotism of a particularly vexing kind: Governor Colville had supported his francophone subjects against centrally mandated legal reforms. The Colonial Office had harshly rebuked him for delaying enactment of the order in council banning the use of chains and irons in the punishment of slaves, and expressed concerns about the governor’s issuing of lucrative loans to elite families.118 Writing to remove Colville from office, Viscount Goderich, Colonial Secretary, laid the blame for the crisis of legal authority neatly at the governor’s feet: “You led the way . . . to that extensive and concerted resistance to the Law.”119 Elsewhere commissions foundered in less spectacular fashion. Thomas Babbington Macaulay’s commission arrived in India to codify its law in 1834. He sought unabashedly to conjure just despotism through the rule of law: “We know,” he said in his consultations with the legislative council, “that India cannot have a free Government. But she may have the next best thing, a firm and impartial despotism.”120 Macaulay’s ambitions notwithstanding, it took another twenty-six years for India to get its penal code: the project stalled in the face of acute anxiety about Indian exoticism.121 Other projects stalled because imperial miserliness and caution competed very ably with the rage for order to prevent recommendations rolling into reforms. A key goal of the commissions was to find ways to amalgamate and cheapen colonial administration. Inquiry itself also had to be expeditious—as John Austin learned to his peril in 1838 when the House of Lords ridiculed the length, expense, and circuity of his inquiry into Malta.122 The emphasis on frugality extended to the aftermath of commissions, when no government office—except, indirectly, Stephen’s corner of the Colonial Office—had responsibility for following up on their voluminous recommendations.123 Many recommendations were rejected outright, others gathered dust as the impulse to perfect crown governance surrendered slowly to discourses of racial incompetence in India and the Caribbean, and as rebellion in Canada prompted a very different commission to call for more autonomy than any white settler colony had enjoyed in a generation.124

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Too much focus on ambivalent outcomes can obscure the staggering ambition of this frenetic rage for order. Between 1819 and 1840, inquiries gathered data about most of the empire and plotted its comprehensive overhaul. That process and the recommendations it produced demand our attention. They exemplify a search—however doomed—for legal technologies sufficient to bind a plural, global empire. For Bigge, Dwarris, and Macaulay (though perhaps not so much for Austin), that project was neither simply autocratic nor simply liberal. Charged with empirical inquiry—with cataloguing and diagnosing pluralism—the commissioners stood ready to match foreign legal regimes with poorly articulated “fundamental principles” of British constitutional law. They operated knowingly to diminish the rights and responsibilities of colonial subjects. Yet they adopted, in some cases in defiance of instructions, the cause of containing officials’ arbitrary power over those same subjects, and they selectively expanded, or more precisely rendered, the legal standing of specific groups. Commissioners’ efforts to exoticize colonial law, especially in the self-governing West Indies, drew bright lines separating metropolitan Britons from other varieties of subjects. This was not the same “rule of colonial difference” described by some: commissions worked to partially and conditionally enfold new subjects as well as to discriminate against them.125 At the same time, similarities in the instructions, form, substance, and reports of the commissions helped to compose the empire as a single legal administrative framework. Systematizing proceeded hand in hand with tolerance for degrees of chaos and conflict, and for multiple categories of subjecthood. Some individual commissioners tried to collect information as if they were impartial judges, but most acted, in some degree, as privileged participants in protracted legal spats. From Tortola to Malta to Mauritius, commissions intervened in colonial legal disputes in many registers, responding to accusations of injustice by some colonial subjects and prompting oppositional antics by others. The engagement of commissioners could be subversive. More often than not it empowered the Crown. By interposing themselves—as the king’s emissaries—between disaffected colonists and colonial bureaucracies that included judges and magistrates, commissions operated as more or less effective projections of crown power into the colonies. In their per formances of impartiality, in their social engagements, and by opening their doors to colonial protest, commissions of inquiry served to legitimate

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imperial authority and intervention while quelling metropolitan and peripheral critiques of colonial despotism. This complex effect helps explain their appeal to the men and women who wrote to and visited the commissions. Understanding well that commissions were agents of a metropolitan drive to realign empire, colonial subjects everywhere scrambled to have their say in the process. The ethos of extending metropolitan authority in the interests of a global, imperial order emerged from this complex project of inquiry, and it sketched a vision of empire that would become both more coercive and more tolerant. The resulting colonial jurisprudence brimmed with diversity but contained a coherent formula of tempered autocracy, legal pluralism, and a procedurally constructed rule of law. For James Stephen in London and for commissioners in circuit, British legitimacy and power sprang from an unglamorous, often tedious trinity: the collection and review of legislation, the design and redesign of colonial legal bureaucracies, and inquiry by committees of curious lawyers.

CHAPTER FOUR

The Promise of Protection

AS

William Hull advanced with American forces to attack Canada in July 1812, the general issued a proclamation to the “inhabitants of Canada” promising protection of their “persons, property, and rights” if they would not oppose the American invasion. “I come to protect, not injure you,” Hull declared. Hull knew that his intended audience of white settlers, including British loyalists who had resettled in Upper Canada, would find the language of protection very familiar.1 He used it to assure them that U.S. sovereignty would prevent the same expropriations of property that had sent so many settlers to Canada in the first place. But meanings of protection were notoriously unstable in the region. British agents had for decades used the label “protection” to cast in the best possible light the empire’s relation with Indian polities. The Proclamation of 1763 had promised that Indians would “not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories” that had come “under our Sovereignty, Protection, and Dominion” but were reserved for Indians’ use.2 That contorted formula bound up promises of autonomy with more troubling pretensions to annexation of Indian territories that blossomed after the Revolution. In 1796, when the British government blocked Indians from selling land they controlled under treaty in the Grand River Valley—a twelve-mile corridor running north along the river from Lake Erie—it argued that the Five Nations did not hold the land as a sovereign nation precisely because the Indians had accepted the protection of the Crown. Conditions in the “flourishing” colony now made it impossible, officials argued, to approve the existence in Upper Canada of “so large an extrajudicial Territory across its Center.”3 In this view, coming 85

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under the protection of the British had turned allies into imperial subjects.4 Against this interpretation, Indian leader Joseph Brant asserted that protection meant something different and that the Five Nations remained “a free & independent Nation” living under “His Majesty’s immediate Protection.”5 In clearly linking protection to rule in 1812, Hull was ignoring such nuances. This was a risky strategy because enormous ambiguity persisted about whether accepting protection signaled alliance or submission, or something in between. That ambiguity accounted in part for the appeal of protection as a term of political art and legal argument, an appeal with a very long history. The early modern world teemed with treaties outlining agreements about protection. Most often the treaties referred to security arrangements in which a subordinate polity gave up the right to engage in foreign relations in exchange for the promise of military aid against external enemies. Ming power with regard to Melaka, Ottoman authority in relation to Wallachia, and the Japanese shogun’s permission for the Dutch to trade in Japan—in these and many other interpolity relationships, ser vices of protection came with costs in the form of tribute. Some protecting powers even exacted payments in exchange for restraining the violence of their own agents, a function at the heart of the Portuguese sale of cartazes, for example, to allow ships to sail unmolested in Portuguesecontrolled waters of the Indian Ocean. In most cases parties operated without a clear understanding of the legal relationship between protected and protecting groups. This lack of precision offered strategic benefits. Beneficiaries of protection could, and often did, shift their loyalties and attach themselves to more powerful rivals—as did Indian nations in the Ohio Valley in the Seven Years’ War and the American Revolution. Dominant powers, meanwhile, often wielded the discourse of protection rhetorically, showing greater interest in quickly fortifying claims to legitimate authority than in acquiring new subjects.6 The practice and discourse of protection also ran through jurisdictional politics within European empires. Some jurisdictional arrangements involving protection adapted long-standing claims by the Catholic Church to a special obligation to protect personae miserabilae by retaining jurisdiction over certain especially vulnerable categories of persons, such as orphans, widows, and travelers. The logic of protecting vulnerable subjects formed, for example, the basis for the Spanish Crown’s decision to remove

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Indians from the jurisdiction of the Inquisition and to create protectores de indios, officials charged with advising and representing Indians in the empire’s courts.7 Dutch and Portuguese settlements overseas created similar offices. English colonies did not name crown-appointed officials to represent the interests of Indians or strangers until the nineteenth century, but the theme of protection threaded through discourse about the governance of colonies. Various constituencies claimed the protection of the Crown against abuses by colonial rulers. In New Eng land, for example, Mohegan and Stockbridge Indians made direct appeals to the Crown for protection, and English-born subjects and their descendants invoked protection as a responsibility to Englishmen beyond the realm.8 “Protection” came to mean both the protection of the Crown, as extended to especially vulnerable groups of subjects or to all subjects, and protection from the exercise of arbitrary power—even by those authorized to act for the Crown. Both valences established a space for metropolitan intermeddling in colonial constitutional arrangements that colonists—Americans in particular— alternately cherished and abhorred.9 A history of political and legal relations centering on these slippages differs substantially from the usual narratives of protection in the history of political thought. They trace the origins of twentieth-century doctrines of protection in international law to early modern European political theory, in an arc running from Francisco de Vitoria to Emer de Vattel. Vitoria argued that the protection of rights to travel and trade under natural law provided a rationale for Spanish conquest and colonization in the New World. Hugo Grotius proposed that private as well as public parties could legitimately punish those who violated such rights. Thomas Hobbes highlighted protection as the core function of legitimate sovereigns and the force that created and sustained subjects’ ties to the sovereign. In arguing for a more robust role for the state in determining the justice of acts of intervention or war, Vattel followed others in identifying “externally enforceable responsibilities for the protection of subjects.” Intellectual histories of protection also point to the Treaty of Westphalia as a turning point in the construction of an international obligation of intervention inside other polities to protect religious toleration. Most assert that European political theories of protection derive from understandings of universal principles.10

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We should be careful not to substitute this script for a world history of protection. As Europeans encountered peoples with their own ideas about protection and negotiated with them to create arrangements of layered sovereignty and legal pluralism, imperial officials and their legal advisers combined European and non-European repertoires in novel ways. Hull’s proclamation, combining promises of protection from interference and harm with a coming shift in sovereignty, is an example of the imaginative uses of protection in the early nineteenth-century world. It hints, too, at important innovations in this period that developed in their fullest form within the British Empire soon after. In seeking to understand the ways imperial agents advanced claims about protection in the early nineteenth century, this chapter explores the adaptation of discourses of protection to fit shift ing schemes of imperial administration. Whereas a focus on universal claims with regard to protection illuminates, as Jennifer Pitts has put it, the positioning of “a European order writ large” as a facsimile of “global legality,” our analysis of evolving imperial administrative practices reverses this angle of vision. We begin to see how the British Empire encompassed and structured interpolity legalities under the framework of the imperial legal order in ways that blurred the distinctions between individual and corporate protection, and between intra-imperial and interpolity relations.11 In the process, we fi nd a messier and more ambiguous legal path to that late nineteenthcentury moment when references to protection became little more than a prelude to intrusive and intimate colonialisms excused by international law. Antony Anghie found the root of this collusion between empire and international law in early modern legal theory.12 We find it in much more mundane places—chiefly in promiscuous colonial practice that bled over the geographical and cultural boundaries of distant colonies and into the poky offices of Whitehall. To some degree early nineteenth-century colonial legal conflicts blurred the lines between internal and external legal relations simply by unfolding at the same moment. Conversations about the protection of slaves and indigenous people within the empire formed the background to references to protection as a rationale for territorial expansion after 1815.13 Indeed, these projects were directly connected. British officials self-consciously described schemes to overhaul judicial administration in newly acquired imperial territories as projects to shore up the property rights and privi-

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leges of vulnerable people and / or British traders. Men, sometimes with scant legal training, found themselves charged with overhauling complex colonial legal orders to consolidate imperial power and with commenting on phenomena with an “international” character: Did agreements between the imperial government and local political leaders qualify as treaties between states? Were the conventions of diplomacy governing these relationships the same as those between imperial powers? Who qualified as a British subject? How far and in what ways did British jurisdiction extend? And did British treaties or commercial agreements with other powers also apply to subjects of polities that were partially inside, and also still partially outside, the empire?14 As they grappled with such questions, colonial officials returned again and again to the touchstone of protection. Beginning in the late eighteenth century, the East India Company repeatedly signed treaties with states that ceded control over external affairs in exchange for protection by the Company, an opening gambit in a relationship of increasing, if incremental, legal meddling.15 In places where the British succeeded the Spanish or Dutch as colonial rulers, they often adapted and inserted the office of “protector” into new, hybrid legal systems that nested English practices within existing institutions; the protector of slaves in Trinidad is an example. Abolitionists used the term to describe the enfolding of slaves and free blacks under British law as a function of enhanced imperial legal authority. They did this aspirationally in older West Indian colonies with intransigent colonial legislatures, and more directly in crown colonies where officials in London imposed changes through orders-in-council.16 The office also migrated to regions where British jurisdiction was less certain, as in the protector of Aborigines established in the Port Philip region in southeastern Australia. There protectors functioned to expand jurisdiction geographically over illegal pastoral enterprises on the jurisdictional boundaries of New South Wales and Van Diemen’s Land.17 In blending the promise of shelter from enemies with the rationale of protection against the arbitrary power of despots and tyrants, the British discourse of protection used the term in new ways that carried global legal significance. Imperial references to protection positioned the British Empire, rather than the international community, as an entity uniquely capable of deciding when intervention was called for, both in disputes among

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other polities and in internal contests about how best to order marginal peoples. Discourses of protection could blend with calls to defend the status quo. More often, as the nineteenth century progressed, they connoted something more—advocacy of colonial legal reform, the reordering of the rights and privileges of plantation owners or squatters, imperial expansion, or the exercise of new jurisdiction over foreign polities. For British officials, promises of protection did not rest on the universal rights of those whom British power claimed to protect; they served to reinforce the legitimacy of British imperial jurisdiction. The association between intervention and jurisdiction is no longer an explicit part of the international law doctrine of the “responsibility to protect.” Humanitarian missions are not supposed to resemble conquest or lead to annexation. Yet the stamp of imperial history is subtly apparent in recent international interventions justified on such grounds. This chapter exposes early nineteenth-century protection as a category neatly blending imperial preoccupations with colonial rule and interimperial legalities. We analyze the legal meanings of protection in two settings, Ceylon (modern-day Sri Lanka) and the Ionian Islands. In Ceylon, a dizzying array of plans for restructuring legal administration on the island framed British engagements with the Kingdom of Kandy—an independent polity that controlled the central highlands. Officials represented the conquest of Kandy as a necessary part of the empire’s mission to create a new legal order throughout the island. They also self-consciously manipulated the record of British-Kandyan relations to justify war on the grounds that British subjects and Kandyans needed British protection and British law to shelter them from the arbitrary power of local elites. In the Ionian Islands, British officials struggled to redefine treaty-based protection legally and politically to bolster the British mandate to effect internal legal reforms. The process involved ongoing negotiations with other imperial powers about the degree of authority over Ionian affairs bestowed by the Treaty of Paris, which named Britain as “Protecting Sovereign.” Endemic British intermeddling in the legal affairs of the island, combined with ad hoc calls by Ionians for protection as British subjects abroad, pushed at the boundaries of shared European understandings of treaties of protection, foreshadowing contests about the legal framework of European expansion into Africa in the late nineteenth century. These case studies, read with the proliferation of protection strategies in slave and settler colo-

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nies, demonstrate that protection formed a central theme in ordering the empire and asserting its global reach.

“Some Middle Power” When the Dutch ceded their possessions on the island of Ceylon to the British in 1795, the colony composed an odd geography. British authority replaced Dutch rule in a coastal ring around the island’s perimeter. In the center of Ceylon, in a wet highlands region regarded by Europeans as a zone of epidemiological danger and intriguing botanical richness, the Kingdom of Kandy held tight control, policing movement across a porous border that admitted trade and allowed Kandyans access to the sea. Kandy also housed impor tant religious sites visited by Sinhalese Buddhists throughout the island. Relationships between the Kandyan center and the coast were unsettled, and trading relations on the frontiers of Kandy were volatile. Like the Dutch before them, British governors regarded the Kingdom of Kandy as an obvious object of annexation.18 Beginning in 1795, British efforts to absorb Kandy invoked multiple discourses of protection. The first British governor of Ceylon, Frederick North, began by invoking a very familiar mode of protection in South Asia and Europe—protection by treaty. In April 1802 he pushed the king’s counselors to accept a treaty that confirmed disputed Dutch conquests in Kandy and granted the British a monopoly over the cinnamon trade. North’s treaty also stipulated that the Kandyan king would not converse “with foreigners,” would not allow Europeans or Malays to enter Kandy without the British governor’s passport, and would sponsor and host a British force in Kandyan territory “for the better fulfi llment of His Britannic Majesty’s Engagement to protect the Person and authority of the King of Candy.”19 Kandyan counselors refused to accede to most points. Yet North only expanded his demands: by November 1802 he also pushed the king to give Britain power to wield “direct influence on their Councils.”20 Counselors to the king of Kandy invoked protection, too, but in different ways. When First Adigār (chief minister) Pilima Talauvē met with North in 1800 and 1802, he hinted broadly that Kandy was in chaos and that he wanted North’s help to overthrow the king.21 His grievances centered on the fact that the king was a foreigner. In the mid-1700s the Nayakkar

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“Map of the Island of Ceylon,” in Henry Marshall, Ceylon: A General Description (London: William H. Allen and Co., 1846), ii. Image reproduction courtesy of Ames Library of South Asia, University of Minnesota.

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dynasty ran out of local heirs and had to import monarchs of appropriate caste from mainland India. In the generations that followed, the foreign kings of Kandy settled in, bringing mainland advisers and displacing Sinhalese elites.22 For Pilima Talauvē and his co-conspirators, the king’s foreign origins presented an opportunity to impugn the legitimacy of his rule. Pilima Talauvē alleged that the king displayed his unfitness for rule by persistently affronting local customs: arbitrarily confiscating property, destroying valuable trees, and slaughtering animals outside the Buddhist temple.23 North balked at supporting the adigār’s plans for a coup in 1802. But he did begin casting around for rationales for intervention, and when Kandyans confiscated some areca nuts from two “native subjects” of Britain trading in Kandy in April 1802, North seized on the provocation. It did not matter that the first adigār had probably ordered the confiscation of trade goods from the two Puttalam traders in the hope of provoking a British invasion of Kandy. North fi rst dispatched a commissioner to inquire whether any law or circumstances might excuse the alleged theft. He then threatened military action if the king did not compensate the traders. In his letters to the king in September, North explained that “the protection which I owe to the people subject to my Government” would require him to go to war against Kandy if the king did not settle the claim.24 In January 1803 North expanded his demands to include compensation and submission to his treaty of protection. It seems that the king prevaricated just long enough to give North an excuse to invade. North did not succeed in deposing the king, however. In a move he repeated to lesser effect nine years later, the king simply abandoned the capital of Kandy as British forces advanced. After being detained in Kandy into the rainy season, and falling ill in droves, British troops were routed by Kandyan detachments in June. The Kandyans slaughtered sick men left behind and forced one retreating company to surrender. Ten years later several British officers still languished in Kandyan custody. The festering problem of the Kingdom of Kandy folded into another: how to define British legal order over “native subjects” in British territories. Conversations about legal ordering in British Ceylon and about the legalities of an advance on Kandy ran in intriguing parallel at first. After early interventions in the administration of justice by the Madras government ended in riot and rebellion, North was instructed by London not to

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meddle much with the layered legal administration created under the Dutch.25 Nevertheless, North pressed for the expansion of British jurisdiction in British territories (known as the Maritime Provinces) to fi x a swirl of administrative trouble. In the “litigious province” of Jaffna, a backlog of cases clogged the system, producing a wave of petitions to the governor—too many to handle. No one could come up with any leads when a sitting magistrate appointed by the British was shot and killed on the veranda of his house. Law officers feuded openly, and one magistrate, Alexander Johnston, received a formal reprimand for mixing private trade with public duties and for “arbitrary and violent” actions from the bench. North bemoaned the fact that no British functionary had a deep understanding of Ceylonese law, and in a move that would later be repeated in Kandy, he assigned a junior official with knowledge of local languages to collect information that might form the basis for a “customary code” for the colony.26 His brief romance with law reform met with stern rebukes from the central government, though it was his expensive failed war in Kandy that resulted in his recall. When Thomas Maitland arrived as North’s successor in 1805, he took notice of North’s law reforms, but mainly to complain that North had implemented them “with a laxity . . . bordering on feebleness.”27 North had declared martial law in some settlements, and it was still unevenly in force; Maitland wanted a return to ordinary tribunals but would not resort entirely to civil authority when the settlements were still “threatened with daily invasion.”28 As a self-declared pragmatist and military strategist with no legal training, Maitland focused on getting military costs under control and did not seem at first to have much taste for tinkering with the legal system. Within a few months, though, he began advocating legal reform in the colony with the enthusiasm of a convert. Maitland shifted from criticizing North to blaming the Dutch for creating disorder on the island through their encouragement of arbitrary rule by a class of local elites referred to as Mudaliyārs. The Dutch government, according to Maitland, had thrown “the whole of the power civil and military” into the hands of Mudaliyārs, whose unchecked power represented “the greatest evil that exists in the general administration of this island” and “a perfect Imperium in Imperio.”29 Maitland proposed a suite of measures to strengthen the authority of midlevel judges and to extend the reach of executive authority to the local level.

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Maitland also began to formulate a new vision of British power through law. The first element of this vision involved the magistracy. In his effort to constrain the judicial authority of Mudaliyārs without giving too much power to village headmen, Maitland laid singular emphasis on the importance of magistrates, whose appointment “at every station throughout our extensive yet narrow territory, is (however limited the office itself may be in point of power) of the greatest consequence to the morals, good order, and peace of the inhabitants.”30 Initially characterizing his actions and proposals as improved versions of the system put in place by North, Maitland also began to design more extensive changes.31 He urged abolishing the Provincial Courts and extending the jurisdiction of the Supreme Court, both measures designed to provide greater control by British officials, and he created new posts for sitting magistrates at Colombo, Caltura, Negombo, and Barberya. These actions would, he suggested, fi nally undermine the arbitrary power of the Mudaliyārs while placing “all causes of consequence before the Supreme Court.”32 A second element of Maitland’s evolving theory of rule emerged out of his conflict with British-appointed judges. Even as London officials were bristling at the legal changes on Ceylon and expressing concerned about both the repercussions of disturbing local elites and the wisdom of crafting legal policies so far from the center of the empire, Maitland was discovering an unintended consequence of his program: a strengthened British judiciary now threatened to curb his power.33 At first Maitland’s concerns about the judiciary seemed to flow from personal animosity toward Chief Justice James Lushington.34 But Maitland also began to insist that a strong hand for the governor in legal matters was crucial to maintaining order. He framed a proposal to the imperial government for a new law charter in these terms and, when he met with some initial resistance from his superiors, dispatched Alexander Johnston to London to champion his plans for legal reform. In his instructions to Johnston, Maitland strug gled to describe his vision of “some middle power with regard to the Judicial.” This new configuration of legal power, he explained, should include authorization for the governor to intervene directly when needed in legal affairs. But the vision was not one of simple authoritarianism. Maitland imagined “middle power” as consisting of more than the capacity to suspend the chief justice or declare martial law; it would be embedded in the structure of legal

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administration.35 Admitting to Johnston that he did not know the precise form the system should take or “how far such a power can be given consistently with the general principles of British jurisprudence,” Maitland hoped that Johnston could work with officials in London to devise measures to erect the legal order he imagined.36 The results were not what Maitland had in mind. On one level, the resulting Charter of Justice accomplished most of what Maitland had proposed, reestablishing Dutch courts, the Landraads, in some districts; appointing sitting magistrates in all districts; abolishing provincial judges; and distributing cases either down to the local level or up to the Supreme Court, whose justices would now be required to ride circuit.37 But to Maitland’s dismay, the new charter concentrated oversight of the courts in the hands of the chief justice. The chief justice, not the governor, would have the power to “make what number of courts he pleases, with what jurisdiction he sees fit” and to control “the whole patronage of these courts.”38 On the eve of his departure from Ceylon, Maitland warned that his successor as governor, Robert Brownrigg, would suffer the “evil consequences” of diminished executive power under the charter.39 Why did Maitland, Lushington, and others perceive the stakes of these debates to be so high? Like other colonial officials distributed around the empire at the time, they saw themselves as participants in resolving fundamental constitutional questions about it. They understood, too, that the structure of legal authority would affect not just the prospects for order in the colony but also its possibilities for expansion. Relations with Kandy had settled into a pattern of repressed hostility under Maitland, but the situation was hardly stable. Maitland noted that the British held “a narrow Stripe of Land on the Sea Coast all round the Island” with the center “occupied by a People, we must ever consider our constant and natural Enemies here, on whom no Treaty is binding.” 40 For Maitland, the standoff with Kandy necessitated strong executive control of courts in the Maritime Provinces. To illustrate this point, Maitland cited a case that had recently come before the Supreme Court challenging the power of his government to control trade into Kandy. Maitland thought the case, which dealt with the seizure of a horse by Kandyan officials at the border, would put him in a bad spot. If the unhelpfully independent court found the seizure invalid, “one of two Things must have happened, either I must have made a Legislative Regulation, prohibiting Importation of Horses into Candy; the

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most hostile Act I could have committed to that Court at the Moment; or had I not, the Importation would have immediately taken place, and the greatest Engine I had in my Hands at the time for controlling them wrested out of them.” 41 So he called the owner in and pressured him to drop the suit. It was cases like these, Maitland argued, that demonstrated the need for “a Power vested in the Governor to stay Proceedings in the Supreme Court in any instance where he thought it might have an evil political tendency.” 42 In writing of the seized horse, Maitland was avoiding the more vexing topic of the seized Britons. The disastrous attack on Kandy in 1803 had ended not only in the massacre of soldiers but also in the captivity of the commanding officer, Major Davie, and two others. Letters from Davie smuggled out of Kandy served as a reminder of the lost war and the powerlessness of the British in the interior. This powerlessness did not bother officials in London. They had warned against signing treaties with a Kandy government that had shown no signs of desiring peace—a position reinforced by the 1803 debacle.43 At the same time they urged recognition of Kandy’s autonomy and promoted a vision of pacifying the interior enough to build a road across it, with or without a permanent diplomatic presence.44 The military stalemate of Maitland’s years seemed to suggest the possibility of a lasting balance of power on the island. Castlereagh praised Maitland’s “judicious abstinence from petty warfare” and hoped that the current “state of Neutrality bordering upon Peace” might yet give way to “a real accommodation.” 45 For Maitland and his successors in Ceylon, Kandy’s defiance chafed. Maitland argued that the situation with Kandy called for a combination of legal strategies, dependent on the actions of a strong governor. He begged for power to respond to Kandyan provocations unfettered by “fi xed and invariable rules” and advocated a project of legal ethnography in coastal territories and in Kandy—gathering information that might lead to a “code of customary laws” that would underpin the extension of British authority throughout the island.46 Maitland’s successor, Robert Brownrigg, went further. He charged a Cambridge-educated official named John D’Oyly with acting as intermediary between Kandy and British Ceylon and gathering information about Kandyan disorder.47 D’Oyly’s legal ethnography was not published for more than a decade, but his presence in Kandy opened a new avenue for British ambition.

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In 1814 D’Oyly sent Governor Brownrigg a letter from the new first adigār of Kandy, Ehelapola Nilame, citing great “wrongs and injustices” committed by the king and suggesting that support for him in Kandy was waning.48 Even more expansionist than North, Brownrigg was intrigued by reports of Kandyan tyranny. He wrote to London asking for “some well considered system of policy” that might allow for a posture other than neutrality toward Kandy. He envisioned, for now, nothing more than a “feasible plan of increasing our means of intercourse and information respecting the internal affairs of Kandy,” but he also began to look for opportunities to develop a rationale for war.49 After a group of seventeen families with a force of fift y Malays and 500 armed Kandyans massed along the border, as if poised to seek a place of exile, Brownrigg declared the time “not far distant when the headmen of Kandy may jointly and openly declare themselves determined to resist the oppressions of their Malabar King, or solicit the protection of England.”50 The theme of protection was taking on new life. In a February 1814 letter to the adigār, D’Oyly went further than Brownrigg in promising British protection if Kandyans rebelled.51 D’Oyly coached Kandyan elites to ask for protection, informing one authoritatively that the British government would not come to the people’s aid unless “it saw a distinct and unequivocal proof of the general wishes of the Kandyan people.”52 It was impossible, he explained, “to commence a war . . . without a distinct and manifest proof that the whole Kandyan people . . . are determined to withdraw their allegiance from the present ruler, and take refuge under the protection of the British government.”53 One year later Brownrigg was convinced that the offer of protection provided ample cover for war. He signed a proclamation in January 1815 announcing the invasion of Kandyan territory. The proclamation supplied two main justifications for aggression: the provocation of a series of minor border incursions and the duty to aid Kandyans who had “implored the protection of the British government” from the “tyranny and oppression of their ruler.”54 Brownrigg would offer “to every individual of the Kandyan nation the benign protection of the British government.” In its last paragraph, the proclamation spelled out what this would mean. The British pledged to retain the “ranks and dignities” of the chiefs, not to attack the people’s religion, and to preserve “their ancient laws and institutions.” The proclamation represented these actions as consistent with “the exten-

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sion of the blessings resulting from the establishment of justice, security, and peace . . . under the safeguard of the British Crown.”55 Now protection was being offered to the inhabitants of Kandy as a condition of their submission to British troops and not just against the tyrannous king but also “against all Foreign and Domestic Enemies.”56 A second proclamation issued on the same day advised British troops to respect “the cause of humanity” in dealing with the inhabitants of Kandy and outlined the different basis for interactions with Sinhalese and with both Malabars from the Coromandel Coast and “Moors” (Tamil-speaking Muslims). The former should be told that “their emancipation is the leading object of the war”: the British were rescuing them from the oppression of a foreignborn king. The Malabars and Moors could be promised safe passage back to South India and should be “exhorted to keep in mind” that they were “by their birth and parentage the natural subjects of His Britannick Majesty.” If they opposed British force, they would be labeled “not only as enemies, but as traitors.” Any other classes of people encountered by British forces might be extended “the general offer of protection, and invited to place themselves under the British Standard.”57 Such pronouncements show the flexibility of the language of protection. Acting on their own and without instructions from London, British officials used protection capaciously, allowing them to treat Kandy as a separate polity while also opening the door to the formal integration of Kandy into British Ceylon. The bleeding edges of protection also came into view when D’Oyly drafted the terms of the peace after the king’s arrest.58 D’Oyly prepared and translated a document for presentation at a meeting on March 2, 1815, presided over by the British and attended by Kandyan notables. The “Public Instrument of Treaty” was read in English and Sinhalese, followed by the raising of the British flag and a cannon salute marking “the establishment of the British Dominion in the Interior.”59 The report of the “convention” rehearsed the spectrum of British protections: the king had forfeited the right to rule by committing atrocities, obstinately refusing to establish peace, and pursuing a policy of “general oppression.” 60 But invasion rhetoric also shifted to include a critique of Kandyan law. The first section of the “treaty” explained that the illegitimacy of the Kandyan government flowed from actions “devoid of justice” and lay in “the arbitrary and unjust infliction of bodily tortures and the pains of death without trial, and sometimes without an accusation, or the possibility of a crime,

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and in the general contempt and contravention of all civil rights.”61 This statement prefaced a plan for Kandyan law reform. Reading more like one of Maitland’s early nineteenth-century dreams of gubernatorial legal power than a postconquest settlement, the document outlined a new plural legal order that combined the selected exercise of martial law (with regard to some classes of people and some crimes), executive control of civil and criminal justice “according to established forms,” the sole discretion of the British governor over capital punishment, and a prohibition against torture.62 One day later, the colonial government added further qualifications, including exemptions for non-Kandyans and for British military personnel from the jurisdiction of Kandyan civil and criminal courts. The tensions between the executive and judiciary that had plagued legal policy on the coast intensified in Kandy. Brownrigg sought to block the extension of the Supreme Court’s jurisdiction to the Kandyan provinces, arguing that the charter of 1811 had intended “to reserve for the constituting authority alone to consider and decide, whether at all, and at what time, and in what measure and degree, the system of Law and Form established by these charters would be applicable to a newly acquired territory.”63 Kandy should remain legally anomalous: “I will not conceal from your Lordship my opinion, that a very considerable period must lapse before His Majesty’s new Territory will safely admit the exercise of any Authority political civil or juridical, which does not in a direct and ostensible manner emanate from the Executive Government. And I think it decidedly adverse to the Consolidation of the British Dominion over these Districts, to introduce at present, a judicial establishment which in measure of Power stands in competition with the Executive.” 64 Brownrigg was rebutting the Supreme Court’s assertion that it was “obvious that every person in the newly acquired Provinces whether Native or European is subject to the Criminal jurisdiction of the Supreme Court and entitled to the privilege of a trial by Jury.” 65 The justices wanted to treat Kandyan provinces as part of the British administration in Ceylon, whereas Brownrigg was proposing that the “foreign” quality of Kandy meant that it represented something constitutionally novel—a conquered colony within a conquered colony, a place where representatives of the Crown could wield untrammeled power. The Convention, Brownrigg asserted, was not a directive of the colonial government but a treaty between two governments. As an international agreement, it

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was beyond the purview of colonial judges: “A Political negotiation between two States (according to my Idea of it) may indeed be weak, shortsighted and superficial, and marked with every thing that is imperfect, improvident, and unwise, it may be corrupt, immoral, or even barbarous, but cannot in consistency with any received Ideas be called Illegal any more than a Constitution however much at variance with good Policy, good Judgement or good Sense can with any correctness be declared contrary to Law.” 66 Here we see Brownrigg attempting to project executive authority into a newly acquired territory by placing the relation between British power and Kandy in an international framework.67 At the same time, the mention of a constitution was no mere analogy. In Brownrigg’s imagination, the legal order of the island rested within an imperial constitutional framework that recognized the coexistence of multiple polities under British rule. So his claim was not that relations with Kandy were entirely in the realm of international relations. Rather, they comprised a variety of interpolity relations that fell under the regulation of the British imperial government. If events confirmed the case for a strong executive authority, the outcome was hardly predictable. At the center of evolving British legal policy in Kandy, D’Oyly was pulling hard for a different outcome, a plural legal order in which British authority would merely cap existing Kandyan law without altering it fundamentally. Brownrigg appointed D’Oyly as Resident in Kandy, investing him with judicial authority on behalf of the British government and charging him with cataloging the customary law of Kandy so that judgments could follow local law. D’Oyly undertook this task with gusto, producing A Sketch of the Constitution of the Kandyan Kingdom, a detailed account of the legal order in Kandy. The book was not published until 1832, eight years after D’Oyly’s death. Well before this ethnographic compendium could inform legal policy, Kandy rose in revolt. The revolt followed in many ways the script of the earlier conflicts with the British, with Kandyans using guerrilla tactics to engage selectively with isolated British forces. This time, however, some of the elites who had welcomed British protection joined the cause. British protection had articulated into British sovereignty, complete with the dissolution of the Kandyan monarchy. Neither the British promise to protect Kandyan elite privileges nor D’Oyly’s efforts to create a compendium of Kandyan law as the basis for British rule with a light touch could dispel the opposition of the

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chiefs to British rule.68 They had sought protection of an older kind, the installation of a new monarchy of their choosing, not the imposition of crown rule under the aegis of the British king. For its part, the colonial government used the rebellion to affirm its intention to treat Kandy as a distinctive legal zone: Kandy was ruled by administrative fiat until the Commission of Eastern Inquiry delivered its report in 1833. Rebellious elites in Kandy were cast as another iteration of the power ful local headmen who had threatened to destabilize British rule on the coast a decade earlier. Historians have detailed the lead-up to and engagements of the Kandyan wars, and Sri Lankan nationalists later argued that the British had failed to fulfill their promise in the Kandyan Convention to protect Buddhism.69 Attention to the legal politics of coastal rule and annexation has, in contrast, mainly been relegated to recondite administrative histories.70 Yet for the British, law was a touchtone of policy both inside and outside the confi nes of the crown colony.71 Colonial reform agendas influenced arguments about the legal basis for annexation of Kandy. The same logic that placed Mudaliyārs in the sights of colonial governors as they proposed a new legal charter for British territories in 1810 extended to rationales for intervention in Kandy to depose a tyrannous king in 1815. Legal reform inside the colony commingled with the discourse of protection in diplomacy with Kandy; both projects resolved into plans for the extension of British jurisdiction. Debates of a constitutional character about the relative power of judicial and executive legal authority, meanwhile, carried over into discussions about the legal order of postinvasion Kandy. In representing the Kandyan Convention both as a treaty and as the foundation of a new plural legal order in Kandy, the British used the ambiguous discourse of protection to conjure an unbounded constitutional framework. Kandy served as a site of constitutional experiment in semi-authorized legal reform by gubernatorial autocracy.

A Status “Hitherto Unknown in the History of Nations” The history of law in the empire in the early nineteenth century is less about legislation than about legal strategy. British rule took shape under the guidance of British colonial officials who moved around the empire and served

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as conduits for the flow of information, including policy proposals and reports of legal practices. The career paths of these men threaded together distant and disparate colonies. Thomas Maitland’s career exemplifies this phenomenon. Before arriving in Ceylon as governor in 1805, Maitland had served as brigadier general in the West Indies, where he had negotiated in Haiti with Toussaint L’Ouverture and presided over an interim government in Trinidad in the wake of Colonel Picton’s sudden removal. After he left Ceylon in 1811, Maitland spent a year in England before being appointed the first British governor of Malta, which had been taken from the French in 1800 and was being turned into a colony central to consolidating British naval power in the Mediterranean. It is unclear how Maitland’s experiences in the West Indies colored his views of governance in Ceylon; it is easier to speculate about what Ceylon had to do with Malta, and with the Ionian Islands, Maitland’s next posting. The islands had a turbulent Napoleonic history. Having long been governed by Venice, the Ionians fell under French control for two years from 1797. Liberated by Russia and the Ottomans in 1799, they governed themselves as a republic from 1803 until reconquered by France in 1807. Britain occupied the first of the islands in 1809 and controlled six of them by the end of the war. The islands did not produce much wealth, but combined with Malta they promised Britain significant naval and commercial footholds in the Mediterranean. In August 1815 the British government was preparing to take possession of Corfu and complete its possession of the seven Ionian Islands. In what turned out to be a bout of unfounded optimism, Bathurst supposed that there was “every reason to expect the annexation” of the islands, and he authorized the appointment of Thomas Maitland as the civil governor of all British possessions in the Mediterranean, except Gibraltar.72 Maitland would be expected to work alongside islanders to establish a government like the one on Malta and, presumably, to follow the pattern he had championed on Ceylon and Malta of consolidating crown authority on the islands. By the following autumn, British officials knew that they had miscalculated. Instead of authorizing the cession of the islands to Britain, the 1815 Treaty of Paris awarded England the role of “protecting sovereign.”73 Russia had successfully blocked British acquisition of sovereignty over the islands, citing the emperor’s promise to support Ionian independence. Maitland would still travel to the islands from Malta, but now with a dif ferent

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H. Winkles and J. Rapkin, “British Possessions in the Mediterranean” (The London Printing and Publishing Co., 1851). Image reproduction from author’s collection.

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mission: to create an assembly that would in turn design a new constitutional charter for ratification. The treaty stipulated that the islands would regulate their own “internal organization,” subject to the “approbation of the Protecting Power.”74 The meaning of the latter phrase was vague, leaving British officials confident that they would retain “all the real power.”75 Maitland’s instructions were to begin negotiating with local elites to draft a new constitution for the islands. Bathurst thought the islanders might try to “make a constitution as they would make a pudding according to a British or French receipt,” and he urged Maitland to “get them to slide into a constitution amending the existing form of government.”76 Maitland had demonstrated no gift for gradualism in Ceylon or Malta. Even if he had favored a subtle approach, political and legal forces were soon urging him to accelerate the constitutional project. Greek nationalists fueled islanders’ opposition to British authority. Diplomats and elite Ionians chafed at British meddling in the legal system. As such groups worked to restrict Britain’s interpretations of its duties and prerogatives as protecting power, a series of legal cases pushed to broaden the umbrella of British protection. Maritime cases posed the question whether Ionian subjects in the Ottoman Empire would have the status of British subjects. In demanding treatment as British subjects, Ionians captured by the Ottomans were seeking benefits under the capitulations, extraterritorial arrangements negotiated by Britain that required evidence presented against British subjects and any sentence against them to be recorded before the ambassador or consul.77 The British government had already addressed the issue obliquely. Soon after the Treaty of Paris was signed, it had directed that Ionian ships should be given the same rights as British ships in entering British-controlled ports in the Mediterranean.78 That seemingly simple directive did not end legal ambiguity about the status of Ionian sailors abroad, however. In 1817, British officials were complaining to the Ottoman court about the treatment of an Ionian captain and crew captured at Paros and accused of piracy. The Ionians were transported to Constantinople with a message from the provincial Ottoman government that they were “notorious robbers” and the recommendation “to punish their chief with death and send the rest to the Bagnio.” When Bartholomew Frere, representing the British government, learned that one of the crew had been executed, he argued that “a British subject” should be entitled to defend himself in

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ways permitted by “the laws of his own country” as established by treaty for British subjects in the Ottoman Empire.79 Less than two weeks later, both sides were still disputing the status of the crew, though both sides had also adjusted their arguments slightly. Frere was now identifying the accused crew as “Ionian subjects,” and the effendi (local ruler or lord) had agreed to have them examined before a British official. Despite Frere’s initial claim that the Ionians should be treated as British subjects, he now described the Ionian Islands as a “foreign nation” to which Britain had granted the protection of its flag. Frere explained that he “had claimed for the prisoners the privileges of British subjects”—a subtle difference from asserting without qualification that they were British subjects. In continuing to label the prisoners as pirates and “outlaws,” the Ottomans were implying that the captain and crew had removed themselves from British protection by the nature of their crimes. Ottoman officials also pointed out that the Porte (the Ottoman central government) had still not given its assent to the treaty granting Britain the status of protecting power and that Britain had specifically requested Ottoman approval. That request was proof, according to the Ottomans, that Britain did not have the undisputed right, as the British government was asserting, “to grant her flag to whatever foreign nation she chose” but instead recognized the need for the consent of other imperial powers.80 Both sides now also tied the fate of the prisoners to diplomatic negotiations about broader issues. The Ottomans pointed out that in the past, they had “been willing to appear ignorant” of the “true character” of many Ionians by treating them as British subjects; in this case, the prisoners “were known and had declared themselves to be Ionians,” and it was therefore impossible to treat them as British subjects without also approving the recognition by treaty of Britain as the protecting power—the very issue the Ottomans were being asked to consider. The British ambassador tried to separate these issues but, at the same time, threatened to break off negotiations about the cession of Parga, a territory with a small community of Christians, to the Ottomans unless there was cooperation on the application of broad protections to Ionians.81 While taking what appeared to be a hard line, and continuing to insist that the prisoners could not be declared pirates without laying the evidence before the ambassador to that effect, Frere was now also asserting the right of the British to claim the Ionians’ treatment as subjects without needing to establish proofs of their subjecthood.82 Such hairsplitting did not alter that fact that everyone recognized

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that the nature of the Ionians’ relation to British jurisdiction was a matter of law. But what law? Questions about meanings of British “protection” in relation to Ionians at sea paralleled energetic protests that the British were interfering too much and too directly in internal Ionian governance. Emerging Greek nationalism combined with the Ionians’ brief interlude of self-governance to feed simmering opposition to Britain’s experiments at the boundary of protection and colonial government.83 Even before Maitland’s government was fully established, Ionians lodged complaints about British officials meddling in internal matters, especially by interfering with judicial decisions and removing unsympathetic judges. A notable of the island of Cephalonia, Gerasimo Cladan, whom the British referred to as Count Cladan, petitioned London officials for relief from “illegal” actions by British military commanders, including the execution of an Ionian who had been acquitted by the appeals tribunal and Count Cladan’s own removal as judge of that court. British commanders rejected the count’s complaints, noting that the “unsettled state” of the islands made it impossible to introduce “any material improvements into the practice of the courts of justice.”84 Maitland’s plan to draft a new constitution for the islands brought its own complications. As Russian agents would later point out, there was already a constitution: the 1803 Constitution of the Septinsular Republic, a polity that had operated as a subsidiary entity of the Ottoman Empire under the informal protection of the Russian government. The British refused to recognize that constitution, arguing that the 1803 constitutional framework was a compendium of constitutions that, like the 1803 Constitution of Corfu, applied only to individual islands, not to the islands collectively. Here, as elsewhere, law reform lay at the center of British-led constitution-making; Maitland was instructed to make the Ionians understand the advantages attached to British protection by introducing “an impartial administration of justice.”85 In taking the position that there was no constitutional order in place as a result of the 1803 constitutions, the British were not abandoning the language of constitutionalism. They argued that only the British-drafted 1817 Charter framed all the islands as a single political community. This argument linked the federated quality of the islands—they were called, after all, the United States of the Ionian Islands—to the legitimacy of British power over them singly and collectively. The posture became more important as Ionian opposition gained momentum. In response to violence on Santa

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Maura and the use of military force by the British to suppress it in 1820, Bathurst asserted that the only choices open to the British were “either abandoning the Protection of the Ionian States, or . . . asserting [the] determination unalterably to maintain that authority which the Treaty of 1815 and the Charter have conferred.”86 Put differently, if the British were going to stay at all, they would stay as the controlling power, with the Charter as the embodiment of the international community’s charge. As in Ceylon, Maitland faced opposition both from locals and from British-appointed judges who thought that the 1817 Charter concentrated power too heavily in the hands of the high commissioner. Ioannis Kapodistrias, the Cephalonian-born nobleman who was serving as Russian foreign minister, complained that the charter drafted under Maitland’s direction in 1817 awarded excessive powers to the high commissioner, who would not only control the slate of nominees for election to the Senate and the legislative assembly but also had the power to veto its legislative acts. Kapodistrias argued that the international mandate to Britain did not include such meddling in internal affairs; it called for a constitutional order, a condition that should be fulfi lled by reestablishing the 1803 Constitution. Bathurst’s reply included an intriguing interpretation of the nature of British protection and its authorization by treaty. First, he argued, Kapodistrias was mistaken in thinking that the Treaty of Paris explicitly limited the reach of British authority over internal Ionian affairs. It was true that the allies had “formally disclaimed interference in the internal government affairs of those states,” but the same constraints did not extend to the government “to whose exclusive protection the islands were consigned.” If those limits had applied, then “protection” would mean very little—nothing more than “the duty of garrisoning the fortress and of protecting them for [sic] foreign aggression.” For Bathurst, there was no question that the improvement of the system of justice and of government administration was always contemplated, and “a direct interference” in internal affairs “was always deemed expedient.”87 Soon after, the British judiciary joined the fray. In June 1820 William Henry, a British judge and a member of the Supreme Council, resigned his position and presented “Memoranda of Abuses” detailing “abuses in the administration of justice in the Ionian islands.” Henry reported that the justices of the Supreme Council were utterly beholden to Maitland and that “the doctrine of expediency,” routinely cited, was subverting justice.

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He gave as an example sweeping blocks on litigation brought by people labeled as inconveniently litigious. The judiciary was complicit in such overreaching: “I can only say that under such a system of convenient justice, convenient justices must be sought.” The result was unbefitting “a grand protecting power like England” and was giving rise to “experiments . . . in jurisprudence” such as declaring medical men “ex-officio residents of Courts of Civil and Criminal Justice throughout the islands to try offences” involving public health and quarantine procedures.88 Henry joined a growing chorus of critics accusing Maitland of creating despotic government in the Ionian Islands. Maitland’s actions had attracted the attention of the Radical MP Joseph Hume, who used House of Common hearings on the Ionian Islands in 1821 and 1822 to expose Maitland’s despotism. Hume pointed out that Maitland had been responsible for “arbitrary acts in different parts of the world” before arriving in the Ionian Islands and argued that he had turned the Constitution of 1817 into “a mockery of freedom.”89 Hume’s associate Henry Bennet echoed Hume in calling the 1817 Constitution “a mere mockery, a trick, a juggle” and in deriding it as the kind of constitution the “French were in the habit of giving.”90 Maitland had misconstrued protection, according to his critics; he used it as constitutional cover for the concentration of power in the executive. As in Ceylon, Maitland’s opponents did not get very far; he had the full support of the Secretary of State for War and the Colonies, who was also determined to establish a muscular British oversight of governance in the islands. It was one thing to imagine a completely refashioned judicial system, quite another to implement that vision. By the mid-1830s, little had been done to overhaul the Ionian courts, and a new governor, Howard Douglas, complained about “a mass of dead letter legislation” and a legal system that was “in an embarrassing and even alarming condition . . . after so many years of tutelage and protection.”91 Douglas found himself in a battle of wills with several British judges about the constitutionality of a provisional penal law code promulgated during a legislative recess in 1832. One of the British justices, William Blair, refused to participate in the next criminal case before the court because he could not apply penal laws that were not legally in place. Justice Blair and his ally Chief Justice Kirkpatrick questioned the authority of the Ionian legislature to approve a provisional penal code without its ratification by the British government. In his instructions

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to Douglas about the controversy, Lord Glenelg ruled—he thought definitively—that the penal code was valid because the Supreme Tribunal of the Ionian States had approved it. Glenelg asserted that to rule other wise would be to place the Ionian Islands outside the British imperial constitutional framework; judicial and administrative functions should be separate, “as in every part of the British dominions.”92 To Douglas’s annoyance, the British judges did not now give up their cause but wrote a letter to Glenelg explaining why they thought the penal code was unconstitutional. The logic of their appeal is revealing. If the question was merely about the correct procedure for determining the legality of the penal code, the judges argued, then Glenelg had indeed settled the case. But the peculiar relationship between Britain and the Ionian Islands meant that the issue raised “was not a municipal question merely, but might become an international question also.”93 The code appeared to be unconstitutional given that the 1817 Charter had asserted that “the actual courts of justice” of the islands should be preserved.94 Accordingly, the constitutionality of the code was, by defi nition, open to interpretation according to international understandings of the relationship between Britain and its protectorate. The high commissioner’s ruling about the legality of the penal code was binding on the courts and on the parties before them, but it “was not binding on the Ionian States in their collective and national capacity. It was still open to them to allege that the treaty and charter had been misinterpreted and they were still at liberty to call on the British sovereignty to redress any such error.”95 This statement spotlights the tangle between imperial and international law in the Ionian Islands. Protection exposed all internal matters to evaluation under some external law. While arguing that the Ionian states had a right to advance constitutional arguments different from those of the executive, the judges were affirming that any questions about the nature of the treaty or charter should be referred to “British sovereignty.” The constitutional questions might have the character of international legal questions, in other words, but they could be addressed only by the imperial government acting in its role as regulator of domestic Ionian law—a power awarded under international agreement.96 Perhaps not surprisingly, this circular logic left open major questions about law in the islands. The puzzle of whether Ionians had any rights to British magisterial oversight when accused of committing crimes in Ot-

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toman territories was not settled; London now favored referring such cases from the British consul to the Ionian States executive power as a delegation of British jurisdiction, but one that might result in a less vigorous British defense of Ionian interests.97 When a Turk and a Greek were caught recruiting Albanians “for the Ser vice of the Pasha of Egypt,” Douglas ordered their expulsion, presumably with Ionian approval.98 Because the high commissioner reacted on an ad hoc basis to such incidents, he was aware of the ambiguities of the British position. He traced them directly to the vague understanding of protection, noting that the islands were “in the anomalous condition of being in a sort of middle state between a colony and a perfectly independent country, without, in some respects, possessing the advantages of either.”99 Even as some Ionian elites pushed for the expansion of British protection, opposition to the government convened under the 1817 constitution grew steadily and had reached an acute stage by 1849. A new high commissioner, Henry Ward, faulted prior British administrations for taking a hard line against Ionian supporters of Greek nationalism and for meddling excessively in internal Ionian affairs. Ward deemed reform and some measures of democratization essential to averting the stark choice between abandoning the protectorate and retaining possession “by military means.”100 It was slowly dawning on British officials sequestered at Corfu that ongoing violence by peasants in Cephalonia aimed at “expelling Her Majesty’s troops from Cephalonia, and of ultimately annexing that island to Greece.”101 But Ward remained convinced that elites on all the islands abhorred the idea of “a transfer from the protection of England to that of any other power; but, more especially, a transfer to Greece.”102 He even imagined that the great majority of poor and landless men saw clearly the advantages of British protection. He joined London officials in casting around for measures that would promote “peace, order, and security.”103 Realities on the ground were making a mockery of the best-laid British plans. The disorder made Lord Grey wonder whether the empire might resettle poor and rebellious Cephalonian youths in a colony in Western Australia.104 When reports of another violent uprising in Cephalonia reached Ward at the end of August 1849, his resolve to apply softer measures cracked. He announced that he would proclaim martial law in any district where “insurrection” was taking place or where the British surmised it was brewing. His analysis of the violence against elites on the island linked

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the losing battle to sustain internal order to the vagaries of Ionians’ international position. This juxtaposition, Ward noted, was producing in the peasantry a powerful “double motive” for vengeance, as they responded to Greek encouragement and directed their violence “partly against the proprietors, and partly against the friends, or agents, of the Protecting Power.”105 The revolt had the markings of a civil war—“of tenants against landlords, of contadini [peasants] against signori, or debtors against creditors”—but it was also being led by men “carry ing a large Cross, and a Greek flag” who were accusing the English of various atrocities, such as desecrating an old Greek convent by using it to house troops.106 The crackdown on the insurgency proceeded without apology.107 The “capos” were arrested, convicted, sentenced to death, and executed, and Ward placed the blame for the uprising on a “secret society” on Cephalonia and Corfu.108 At the same time, both in the islands and in London, debates returned to the constitutional meanings of protection. Ward blamed Maitland’s administration for having created “a Despotism under Constitutional forms.”109 In England, Ward’s own campaign of repression prompted a flurry of pamphlets and letters by Lord Charles Fitzroy, who had served as governor of Zante, and an Ionian merchant who lived in London, Georgios Dracatos Papanicolas, decrying the “tyrannical abuse of power” perpetrated by the British in the islands. Fitzroy called repeatedly for what by then had become a familiar salve for colonial legal confusion: a commission of inquiry.110

Conclusion Historians have noticed the role of protection in the extension of British authority beyond the empire, but their accounts often start from the very end of our period. The 1850 Don Pacifico affair features as a key moment when the British government articulated an expansive right to protect its subjects anywhere in the world. When set against the colonial history of protection in the early nineteenth century British Empire, the case takes on a slightly different cast. The Don Pacifico affair grew from a minor local conflict into an international affair because of the letter-writing talents of its protagonist. David Pacifico was a British subject by virtue of his birth in Gibraltar. A Sephardic

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Jew with ties to Portugal, he was living in Athens when an anti-Semitic mob attacked his home in April 1847, looting personal property as well as consular papers that Pacifico was holding to support a disputed claim for payment of ser vices to the government of Portugal. Pacifico appealed for British intervention, and Lord Palmerston directed the British minister in Athens to deliver a detailed list of Pacifico’s losses to the Greek government for compensation.111 Greek government representatives complained that Pacifico had not bothered to seek redress through local tribunals and had in effect appointed himself “judge in his own case,” also fi xing the value of damages on his own. A year later, as the British continued to press for restitution, the Greek government complained that Pacifico had adopted the “strange pretension to be indemnified out of the regular course of justice.”112 Greek officials also pointed out that Pacifico might be a British subject, but he had not corrected anyone’s impression in Athens that he was Portuguese; on one occasion he had sought representation by the Spanish government. He seemed to be shopping for protection.113 Pacifico’s case was unfolding against the background of renewed complaints to the Greek government about the treatment of Ionian mariners and their goods. In December 1846 Palmerston had written to demand compensation for six Ionian boats taken at Slacina, where “Greek robbers and pirates” had taken possession of the customhouse.114 In this attack, too, the Greek government denied responsibility and stated that its “only obligation” was “to do its utmost to bring the culprits to justice.”115 In July 1846 the consul at Patras forwarded a petition from “an Ionian subject” who reported he had been tortured by Greek authorities to get him to confess to a petty theft.116 Other complaints followed, including a report that two Ionians “had been seized, handcuffed together, and thumbscrewed,” then paraded through the streets of Pyrgos for displaying Greek, English, and Ionian flags on a coffee shop awning.117 Forty Ionians signed a petition to the British consul at Patras appealing to “the strong arm of the nation that protects the Ionians” in the face of “unjust menaces and persecutions.”118 In June 1847 the British consul sought depositions in the case of several Ionians who reported having been arrested and then flogged at Pyrgos.119 Greek officials deflected these complaints and responded to the demand for compensation for the flogged Ionians with “astonishment” that the authorities might be taken to task merely for preserving the public peace.120

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In response to the Greek refusal to pay Pacifico compensation, Palmerston ordered British navy ships to blockade Athens. Assailed by critics at home for so bellicose an act, Palmerston delivered a long speech to the House of Commons in defense of the government’s actions. Famously comparing the protection due to British subjects to the protection by Rome of its citizens, the speech prompted contemporaries, and later historians, to elevate the Don Pacifico affair to a watershed moment marking the explicit recognition of a doctrine of British global power based on a limitless prerogative of the imperial government to intervene, militarily when necessary, on behalf of its subjects. Most accounts of the affair forget about the Ionians—and for that matter the rest of the colonial context.121 But Palmerston’s speech was not about British imperial might in a general sense; it was about the authorization of British intervention in foreign jurisdictions by law. The speech in the House of Commons painted a complex picture of protection that followed the outlines of colonial legal politics. Rather than asserting an unconstrained right to act to protect British subjects, Palmerston claimed the authority of the British government to determine when a limited right to intervene might be justified. In this sense the Don Pacifico affair formed an integral part of the colonial legal reform project that had developed over the first half of the century—another effort to make disorderly law comport to imperial standards of fairness. In his speech Palmerston allowed that where legal redress was locally available to British subjects, they should be required to submit to the laws of whatever place they resided in. His particular concern was with “cases in which no confidence can be placed in the tribunals.” He emphasized that “arbitrary or despotic” governments could come in many forms, including merely corrupt constitutional regimes. The right of intervention he was defending was the right to protect British subjects where local justice was not possible according to British standards. He therefore asked: “Who is to be judge in such a case, whether the tribunals are corrupt or not? The British Government, or the Government of the State from which you demand justice?” Note that the choices were narrow. Palmerston did not appeal to broader norms of international law—though one of his supporters did suggest that France and the United States had helped to establish such a norm through actions to protect their own subjects. Palmerston was defending the right of the British government to defi ne despotism, and to act accordingly.122

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Also implicit in Palmerston’s remarks was the right of the British government to determine to whom different levels of protection might extend. Palmerston in fact devoted far more time to discussing injustices committed by Greeks against Ionians than he did to defending the government’s actions to protect Don Pacifico, though published versions of the speech usually leave out the commentary on Ionians. Asserting systemic abuse by the Greek police, Palmerston noted that “in every town in Greece” there existed “a great number of persons whom we are bound to protect—Maltese, Ionians, and a certain number of British subjects.” He distinguished Maltese and Ionians from British subjects but objected, too, that Greek authorities often failed to recognize that Ionians and Maltese were also not the same as Greek subjects. Palmerston did not suggest that Maltese and Ionians in Greece should have the same protections as Britons. Maltese were subjects of a colony, and they clearly carried the protections of British colonial subjects. The strength of the right and duty to protect Ionians flowed from Britain’s treaty obligations, from the depth of Greek injustice, and from the British determination that injustice had taken place. The tyranny of the Greeks brought Ionians (and also Maltese) closer to having the legal status of Englishmen, but not all the way there. The right of the imperial government to decide whether a subject had been treated justly, meanwhile, placed the British government in the role of international arbiter.123 Debates in Parliament about protection worked with the materials at hand: reports from a variety of sources about the legal politics, and some specific legal cases, in such places as Upper Canada, Ceylon, and the Ionian Islands. The issues clearly, on one level, belonged to the stuff of foreign affairs: relations with Indian polities in Upper Canada, with the Kingdom of Kandy in Ceylon, with a crowded field of other empires and an emerging nation-state in the eastern Mediterranean. But on another level the porousness of any division between municipal and international law in the early nineteenth century rendered these problems mainly imperial. Protection talk developed precisely at the blurred border of inside and outside legalities. Internal protection efforts sought to bring exotic legal subjects—masters, slaves, indigenous people, convicts—within imperial jurisdiction. Protection claims across political boundaries reproduced some legal arrangements associated with intra-imperial protection, while also highlighting the cross-polity influence of imperial power. Participants in these projects throughout the empire appealed strategically to

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arguments about the international character of relations between the British Empire and indigenous polities—as officials did in both Ceylon in relation to Kandy and in the Ionian Islands—to claim broad authorization for legal reordering. In doing so, they implicitly promoted empire, and not the international community, as possessing the power to decide protected status and determine the conditions for intervention across and within borders. The resulting vision of protection was hardly liberal, but it was also much more than purely authoritarian. Maitland’s critics called him despotic, but the label that stuck for his brand of imperial administration was “constitutional despotism.” By its very structure—a constitutional structure—the imperial legal order was supposed to corral petty despots within and neutralize tyrants without, all in the interests of protection. British officials imagined that the empire had not just a special responsibility, but also a unique capacity, to discern despotism and temper it through the exercise of imperial jurisdiction. It did not matter that the result might be to fortify executive legal power to such an extent that charges of despotism would rebound. Protection claims were utterly compatible, in this vision, with an increasingly complex and unwieldy legal order with different classes of rights-bearing subjects, imperial constituencies of uncertain legal status, and territories that were simultaneously inside and, for some purposes, outside the imperial legal order.

CHAPTER FIVE

Ordering the Oceans

IN

October 1822 Captain Percy Grace and his crew on HMS Cyrene lay in wait near the mouth of the Gallinas River, West Africa, just south of the free colony of Sierra Leone. The local monarch, King Siaca, was heavily involved in the slave trade, and Grace had heard reports that two ships were in port awaiting a delivery of slaves. One ship, the Aurora, flew a Dutch flag. The other, the Hypolite, appeared to be French. According to Grace, their crews formed part of “a nest of wretches who have lived by this most detestable traffic, and . . . within little more than one hundred miles from a government formed solely for the purpose of its extermination.”1 When the ships sailed from the river mouth, neither had slaves on board. Grace captured the ships anyway. Then he sent a landing party to attack the factory. The “great part of the Crews of both Vessels” as well as “Natives” attacked the British invaders, but Grace’s crew won the day.2 After they took the factory, “such of their opponents as were found . . . were put to death, and the factories and houses burnt to the ground.”3 Grace then demanded 180 slaves from King Siaca. He claimed that the Aurora’s human cargo had been secreted on shore with the king’s collusion, so a ship’s worth of slaves was his lawful prize. Twenty years later, and half a world away, Captain Keppel of HMS Dido attacked a string of villages along the rivers of western Borneo.4 Keppel had been dispatched to Borneo in 1843 with orders “for putting down the different hordes of pirates that have so long infested this coast, to the great detriment of trade, and who are daily committing horrors disgraceful to humanity.”5 A year later he returned, accompanied by the Phelgethon, one of the East India Company’s steamships. The Dido and the Phelgethon 117

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sailed 100 miles up the Skrang River, destroying “piratical” Dayak forts and towns on the way. By his own report, Keppel raided the “private property” of Sheriff Sahib, “as well as vast quantities of ammunition” and destroyed “upwards of 200 boats.” He also burned Sheriff Mulak’s town. He then turned his attention to the “Sakarran Dyaks, the most determined pirates and the most cruel savages in Borneo,” who were said to command “10,000 warriors.” In a messy melee, British forces slaughtered unknown hundreds of “pirates,” as “it was useless to think of either giving or receiving quarter.” 6 Pirates and slave traders are the set-piece villains of the Pax Britannica. The records are full of accounts of enterprising naval captains attacking ships and waging little wars in the name of keeping the oceanic peace. Such tales in part reflect the British navy’s rise to global power after the Napoleonic Wars, when it was overstaffed and in need of things to do.7 Naval officers, many of them self-righteous and even more of them accustomed to receiving bounty money for scooping up belligerent and neutral ships during a half century of war, took avidly to policing pirates and slave traders.8 Their stories detail egregious violence. Like the invasion of Kandy, the expeditions of Grace and Keppel remind us that Britain won its waxing influence in the world and consolidated its position by force, even if that force was framed by law.9 British naval power formed the linchpin of new oceanic jurisdictions in different parts of the globe. Bilateral treaties orchestrated by Britain authorized the navy to capture some slave traders in some parts of the Atlantic, and established mixed commissions to adjudicate their captures. Naval policing and mixed commission hearings liberated 80,000 to 160,000 slaves. They also moved thousands of liberated captives into long indentures, generating profits for their captors and for a web of ancillary agents.10 The British navy spent more money on this effort than on any other project in the nineteenth century.11 By 1860 slave trading in the Atlantic had declined precipitously. Across the same period, British naval forces cruised coastal waters and attacked seafaring peoples with new enthusiasm, citing the need to curb piracy in regions as disparate as the Persian Gulf and maritime Southeast Asia. Combining piecemeal inter-imperial cooperation with steam technology, this drive led to a steep decline in maritime raiding by midcentury. By 1856 a widening consensus about the need to wrest control of maritime violence also produced a multilateral agreement to ban privateering.12

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Historians have struggled to interpret these trends as part of a broader process of international ordering in the nineteenth century. Some have represented chasing slave traders and attacking pirates as parts of a coordinated move by dominant states to criminalize nonstate violence, and the linchpin of the interstate system.13 Others argue that the campaigns against slave traders and pirates established international law doctrine recognizing the rights and responsibilities of states to intervene to protect victims of unlawful violence, in effect marking the beginnings of human rights law.14 The latter view represents the mixed commissions that adjudicated slave ship captures as international courts and emphasizes attempts by British abolitionists to equate slave trading and piracy, thereby linking abolition to a natural law framework extending back at least to the late sixteenth century, when Alberico Gentili referred to pirates as hostes humanis generis (enemies of all mankind). This chapter proposes a different interpretation. We recognize that efforts to foster prohibition regimes in the early nineteenth century marked an important phase in global legal ordering, but not for the reasons usually given. As understood by British lawyers and judges, neither the campaign against slavery nor efforts to curtail piracy derived clearly from the law of nations. Both, in fact, strenuously resisted analogies between the navy’s modest projects of oceanic ordering and talk of universal crimes or rights. Attempts to order oceans in the early to mid-nineteenth century, and Britain’s role within this process, were significant precisely because they developed in the absence of broad-based legal principles and modeled ambitious programs centered on an awkward combination of bilateral treaties, municipal law, admiralty law, and diplomatic negotiation. The prohibition regimes thus crafted were regionally focused and patchy in character, and they remained dependent on imperial bureaucracy and on interimperial cooperation. These haphazard origins make regional prohibition regimes more, not less, interesting as global legal phenomena. They reveal the complex interplay between imperial and interpolity law that continues to characterize the international order—an order that remains grounded in murky international law principles and deeply influenced by the municipal legal strategies of hegemonic powers. Slave trade interdiction was decidedly complex. Its jurisdiction derived from treaties and from British admiralty law, and its success hinged on domestic bounty legislation that rewarded navy crews financially for seizing

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slave ships. The procedures of mixed commissions grew out of war time prize law adapted by gap-ridden bilateral treaties. The resulting policing system was procedurally and ideologically inured to universal claims about the criminality of slave trading or the welfare of slaves. British conversations about the limits of the mixed commission system reinforced its discontinuity with human rights discourse. British law officers and judges sometimes confined naval jurisdiction to seize ships even more narrowly than jealous treaty partners who profited from the slave trade did. As the Foreign Office and the navy became more and more dismissive of Portuguese and Brazilian accusations that British policing breached international law, British law officers, courts, and some commissions provided the only effective restraints on the British navy. The increasingly hermetic character of British law talk about policing does not mean that the mixed commission system was simply an imperial project. Though the British navy almost exclusively policed slave trading until midcentury, the end of the slave trade required (and was consistently imagined to require) the unequal cooperation of domestic jurisdictions. The fact that not all countries had made slave trading illegal prevented British judges and abolitionists from making more expansive claims on the basis of established international norms. The fact that mixed commissions lacked criminal jurisdiction meant that the punishment of slave traders beyond commercial penalties depended on domestic authorities, yet in most places, including Britain, criminal punishment remained a doubtful possibility. It is unsurprising that the nineteenth-century Atlantic slave trade ended only when the world’s largest slave market, Brazil, used its own law to police slave traders. Historians who fashion the story of slave trade abolition into an account of the origins of human rights make an odd choice in resting their case partly on evidence that contemporaries compared slave trading to piracy. Piracy jurisdiction in the nineteenth century was also a crude assemblage. Though some jurists had long argued that accepted understandings of piracy as a crime against mankind established universal jurisdiction to try pirates, British colonial courts were extremely reluctant to try foreign pirates for preying on foreign ships. The same courts did not have to look beyond British law to try British subjects for piracy, and they could invoke other legal frameworks, including self-defense and the laws of war, to justify violent responses to foreign violence against British ships. As we will show in

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the context of British policy about piracy in Southeast Asia, even when colonial courts tentatively experimented with expanding jurisdiction by bringing cases against foreign pirates, they found themselves ill-equipped to deal with the multiplicity of local raiding cultures or with the fluid ways in which rival empires, small polities, pundits, colonial officials, and naval officers deployed piracy talk. Uncertain jurisdiction coexisted with fi xed rewards for action. The broad terms of the Piracy Act of 1825 promised enormous bounties to navy crews for killing pirates on land and water, with only the barest supervision and restraint. The controversy over Keppel’s attacks on the rivers of Borneo put on full display both the centrality of municipal law to oceanic order and its failure to manage the policing of piracy. As with abolition, the murkiness of the legal framework for campaigns against piracy opened up opportunities for enterprising British agents and naval officers to direct policy in action. Vague legal regimes were permissive of violence: as we will see in Southeast Asia, even attacks on foreign territory could be presented as lawful preventative measures against piracy. Also as with abolition, the limits of piracy jurisdiction promoted efforts to strengthen British imperial authority. Various courts and commissions looked for ways to justify broader exercises of jurisdiction, and local pundits advocated signing bilateral treaties to license piracy policing. The results were ill-defined regional legal projects that reflected naval power and produced imperial constitutional commentary, parliamentary politics, and uncoordinated machinations in the Foreign Office. We are not arguing that oceanic ordering boiled down to a narrowly self-interested British policy, one that merely masqueraded as a humanitarian campaign against slave traders or pirates. We do not seek to reveal British condemnation of slave traders and pirates as “cheap talk.”15 We argue instead that neither slave trade policing nor campaigns against piracy invoked or produced clearly articulated international norms.16 Rather, British-dominated oceanic orders operated as regionally specific jigsaw puzzles of law, hastily assembled and under constant internal and external pressure. That insight demonstrates how tentative efforts to regulate others in oceans were. It reminds us also of the alchemy involved in systematizing international law in the late nineteenth and twentieth centuries. In the end, the story we tell here looks much more like a conversation about jurisdictional politics in a modern state system with a weak hegemon than it

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resembles either straightforward imperialism or the origins of international law doctrines. It certainly looked that way to the British lawyers and policy makers who strug gled to imagine jurisdiction on the fringes of empire through the narrow limits set by British legislation, doctrine, and procedure; by British engagement with other polities; and by the logistical challenges of enforcement on the seas.

Capturing Slave Ships The British navy’s jurisdiction to seize foreign slave ships did in fact derive from the closest thing to a body of international legal norms: the early modern laws of wartime search and seizure. The Napoleonic Wars were a boon to abolitionists. That much is clear from the fact that James Stephen Sr. was one of the most effective and widely read advocates of expanding British rights to seize neutral ships trading to French and Spanish colonies.17 British and French policy makers read Stephen’s War in Disguise (1805) as a legal strategy to win a war, but the book also provided means and incentives to naval captains to disrupt foreign slave trading. Foreign slave ships caught by the navy in the Atlantic before 1815 were condemned for sale like any other wartime prize, and profits from the sale of ships and human cargo were distributed among crews and colonial court officials. While the new wartime powers exercised by the British navy vastly expanded the reach of British admiralty courts, they did not disrupt the notion that slaves were human property or suggest that trafficking in slaves was a universal crime.18 The chief justice of the High Court of Admiralty, William Scott (Lord Stowell), described the limited ideological premises of wartime slave trade policing very clearly in 1817 when he explained to the British navy that it had no business capturing foreign slave ships after the Napoleonic Wars had ended. Stowell suggested that only pirate ships could be seized in times of peace—though, as we will see, British courts were tentative about their piracy jurisdiction also. Slave traders, he argued, were not pirates. Notwithstanding the “fervor of opinion which . . . [slave trading] has excited in the minds of many intelligent persons in this country,” Stowell reminded the court that “no lawyer, I presume, could be found hardy enough to maintain, the indictment for piracy supported by the mere evidence of a trading

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in slaves.”19 If slave trading was not piracy, then it was also not a crime in the law of nations “as fi xed and evidenced by general and ancient and admitted practice, by treaties and by the general tenour of the laws and ordinances and formal transactions of civilized States.”20 The Royal Navy, meanwhile, had no jurisdiction to enforce foreign criminal law. Even if France had forbidden Frenchmen to trade in slaves, Britain could not seize French slave ships and return their crew home for trial. For their part, Britain’s own domestic laws prohibiting the slave trade had no bearing on foreigners, except, in some circumstances, in British territorial waters. The system of treaties that replaced war as a basis for British jurisdiction to police Atlantic slave traders served only to reinforce Stowell’s conclusions about the slave trade. From 1817 onward, Britain negotiated bilateral agreements with impoverished European and diasporic states that reestablished a very modest iteration of wartime search and seizure law. In return for substantial loans, dozens of states, including Spain, Portugal, the Netherlands, and (after its independence in 1825) Brazil, signed abolition treaties with Britain. Signatories agreed to outlaw or partially outlaw the slave trade in domestic law at some (not always fi xed) point of time in the future, exchanged limited rights of search and seizure, and established a series of mixed commissions on British and foreign soil to decide whether to condemn slave ships seized under the treaties. The fact that treaty terms stipulated the future criminalization of slave trading in most jurisdictions constituted proof, Stowell argued, that jurisdiction to police the slave trade did not derive from shared legal norms.21 The system itself established a very light skein of jurisdiction over the Atlantic Ocean. Most treaties signed before 1840 gave the commissions power to condemn only those ships caught with slaves on board.22 Nor did treaties allow the navy to intercept ships that had passed into territorial waters.23 Here were only two of the many legal problems that plagued Captain Grace’s engagements in the Gallinas River in 1823. Because slave trade policing was based on bilateral treaties, British officials were troubled constantly by the question of whether and when the British navy could board or seize ships flying the flags of nontreaty partners—another of the problems with Grace’s foray. One of the ships Grace captured, and the master that his men executed, appeared to be French. Yet France did not exchange rights of search and seizure with the British for fifteen years after the peace, and even then it insisted that French slave traders come before French

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courts. The United States stayed out of the system even longer and was so touchy about British naval aggression that it argued for five years that the captain of the U.S. Brig Jones should be compensated, even though his ship was seized in British territorial waters under the British Abolition Act. Tellingly, Britain paid up in the end.24 The most impor tant lacuna, however, was opened up by the AngloPortuguese conventions signed in 1815 and 1817. These conventions allowed slave traders to operate under license from Portuguese colonies between the “Fift h Degree Twelft h Minute to the Eighth Degree South Latitude.” In those lines—which included the world’s busiest slave ports—the navy and commissions had no jurisdiction to seize or to condemn Portuguese slave-trading ships. That jurisdictional gap persisted even after Brazilian independence in 1825, despite Portugal’s promise only to license those trading to its colonies.25 Recent estimates suggest that as many as 1.3 million slaves arrived in Brazil between 1825 and  1850, most of them on ships taking advantage of the Portuguese exemption.26 The patchiness of the system obviously reflected the limits of British power to set international norms regarding slavery. But gaps had other causes, too. Some ideological and procedural gaps stemmed from British prize law as it was developed by Stowell himself in British admiralty courts in the late eighteenth century.27 This system of law was imported with few alterations into the mixed commission system. British-drafted regulations gave mixed commissions the powers of “any Court of Vice-Admiralty” “to enforce any Summonses, Orders, and Precepts.”28 The courts were issued “a Set of general Interrogatories”—twenty-one questions approved by “the Law Officers of the Crown” and modeled on a longer set of prize court interrogatories circulated throughout the empire in the Napoleonic Wars.29 Commissions also received procedural guidelines replete with forms “assimilated, as near as can be, to the proceedings of the High Court of Admiralty” and model declarations by captors, affidavits, minutes, monitions, allegations, claims, and decrees drawn from exemplary admiralty proceedings.30 To make them more “intelligible,” the forms came pre-fi lled with the details of a fictitious Portuguese slave ship “supposed to be captured by His Britannick Majesty’s Ship of War Confiance, and carried to Sierra Leone.”31 This bald legal imperialism was heartily resented by many treaty partners. Dutch members of the Anglo-Dutch commission in Surinam initially

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refused to adopt “the English forms of practice,” and the Brazilian press repeatedly described the system as a British conspiracy against Brazilian sovereignty.32 It did not help that, in practice, slave trade policing was dominated by the British. The British navy was responsible for more than 95 percent of all seizures.33 Eighty-five percent of all cases were heard in the British colony of Sierra Leone, where the disease environment, combined with foreign tardiness in replacing personnel, left British commissioners to adjudicate most cases on their own.34 An 1838 decision by the AngloSpanish mixed commission in Sierra Leone to condemn the Diligente demonstrated the chauvinism that some British commissioners brought to proceedings. The British commissary judge declared in that case that “it would be puerile at this time of day, to quote on such a subject the opinions of Grotius, Puffendorf, and Vattel, the most modern of whom wrote at a time when the commerce of Eu ropean states was yet in comparative infancy . . . From these earlier authors we turn with pleasure to the judgments delivered in the High Court of Admiralty by Sir William Scott.”35 Legal imperialism here was blatant, but the clearest legacy of the admiralty-derived system was that it held few pretensions and no capacity to effect “humanitarian” law reform. British prize law focused on the adjudication of property rights rather than the protection of rescued slaves. The ramifications of this focus are clear at multiple levels in the policing system. At its least subtle, prize law assumed that slave property should be secured for its owners, preferably in the slave ship, until a mixed commission decided whether the ship and its cargo should be condemned. This practice sometimes resulted in horrendous slave mortality. Most notoriously, as many as 110 slave children died in the hull of the Maria da Gloria between late 1833 and mid-1834 as the ship was escorted across the Atlantic to two failed mixed commission hearings before the Anglo-Brazilian commission in Rio and the Anglo-Portuguese commission in Sierra Leone.36 The ideological limits of the prize-based system become even clearer if we look at the way that British admiralty courts instantiated domestic abolition in British colonial courts after 1807. The 1807 Act provided no criminal sanctions for slave traders; these were added four years later by the Slave Trade Felony Act. Even then, a tiny number of slave traders were tried, and their convictions proved difficult to sustain.37 Moreover, widespread corruption in the distribution of slaves liberated by admiralty courts continually demonstrated the enormous gap between abolition as it was

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imagined by radical abolitionists and its instantiation into colonial practice. In the decades after 1807, all liberated slaves were forced into long indentures and large numbers were inveigled back into slavery.38 Britain’s internal slave trade policing system served much better to enhance imperial supervision over colonial legal systems than it did to punish slave traders or protect slaves.39 British legal influence carried those gaps into the bilateral commission system. The patchiness of the mixed commission system also reflected a pragmatic imagination of how an imperially superintended, international oceanic order should and could work. Conversations among ambitious naval captains, Foreign Office officials, and crown law officers show that the lawyers, at least, imagined oceanic order as an amalgam of cooperating, if unequal, municipal jurisdictions. In this view, the abolition of the slave trade would be achieved only through the reform and enforcement of multiple municipal laws. This limited imagination underpinned the thousands of opinions penned by law officers from the time of Grace’s attack on the Gallinas River to midcentury. The opinions served to limit rather than to enhance the jurisdiction of the navy and the mixed commissions. In response to piecemeal queries from the Foreign Office, many of which were prompted by vociferous protests from treaty partners about breaches of treaty terms by the British navy, British law officers ensured that mixed commissions lacked key powers essential to a functional adjudicative process. For example, until the mid-1830s, when a more bellicose British Foreign Office sought to negotiate treaties that radically expanded British jurisdiction to police slave trading, British law officers insisted that mixed commissions had no power to punish perjury because they lacked the general jurisdiction of a court of law to charge witnesses with contempt of court. King’s Advocate Christopher Robinson hoped in 1826 that it would “be sufficient to admonish the party” that their evidence might be disbelieved by the commission.40 For similar reasons, crown law officers argued that neither the navy nor the commissions had power to detain slave traders after their case had been determined. The system contained no mechanism for extradition.41 Indeed, the law officers surmised that not even a British subject could be detained on the authority of a mixed commission after his ship had been condemned. As commissioners were not magistrates or judges with any standing in British law, the evidence they gathered could not underpin a warrant and was inadmissible in a British court.42

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At times, law officers’ disinclination to invest commissions with any extraneous powers of detention surprised even Britain’s treaty partners. In 1830 and 1831 several Spanish crews attacked and killed British naval officers attempting to board their ships. Spanish officials acquiesced in the crews’ detention in colonial prisons until the treaty partners could agree how best to respond. It was British law officers who insisted that British colonial courts had no jurisdiction to try Spanish crews for their violence and that British jails could not detain Spanish crews for surrender to Spain.43 Law officers’ opinions about custody were very controversial and were often disregarded. By the late 1830s, in defiance of the Anglo-Portuguese treaty and of the principles laid down by Lord Stowell in Le Louis, the Foreign Office and Admiralty resolved to keep Portuguese traders captured within Portuguese lines in custody in order to return them to Lisbon for trial.44 In 1838, ignoring long-standing law officers’ opinions and protests from every level of the Portuguese government, the British navy held one slave trader in custody (in chains, in his own leaky hull) for eight months after his case was dismissed by the Anglo-Brazilian commission. Manuel Barboza was released only when a writ of habeas corpus was filed in King’s Bench.45 Even more telling is the reluctance of British law officers and judges to aid in foreign policy efforts to conflate slave trading with piracy in international law. British law declared slave trading to be piracy in 1818.46 From 1826 onward, Britain’s bilateral slave trade treaties included an undertaking that treaty partners would declare the slave trade to be piracy in domestic criminal law. Following the lead of abolitionists, jurists like Henry Wheaton agreed that slave trading might be, like piracy, a “crime against humanity” and sufficient to establish criminal sanctions against slave traders in international law.47 However, treaty terms and theoretical pontifications about new international customs did not enhance the jurisdiction of the navy, mixed commissions, or British courts according to British judges and law officers. Stowell set the tone in 1817 in Le Louis by refusing to call slave traders pirates. But judges and law officers persisted to midcentury in arguing that domestic piracy legislation did not give the British navy any new jurisdiction to seize foreign slave ships under the treaty system. In 1839 the British commissary judge and arbitrator at Rio asked if the piracy clause in the 1826 Anglo-Brazilian Convention, combined with Brazilian criminal

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law, allowed the British navy to seize Brazilian ships fitted out for slavery. Commissioners Jackson and Grigg argued that, by declaring slave trading to be piracy, Brazil had waived its right to object when the British navy seized ships equipped for the slave trade but emptied of slaves. The crown law officers disagreed. When pressed by the Foreign Office for clarification, they conceded that the navy could exercise jurisdiction over empty slave ships if Brazil “acquiesces” in that construction of the piracy term in the 1826 convention.48 As it happened, Brazil did not acquiesce.49 Law officers and judges also insisted that, even in the clearest circumstances, foreign slave traders could not be tried as pirates before British courts.50 In 1845 the Queen’s Bench appeals court held that even the murder of British navy men by foreign slave traders at sea was not a crime. The crews of two Brazilian slave ships (the Echo and the Felicidade) had been confined in the hull of the Felicidade when they combined forces to kill the British crew commanding the ship.51 They were recaptured and convicted of piracy by the Exeter Assizes. In an extremely controversial decision, the full Queen’s Bench overturned the conviction. The problem here was that, while both ships belonged to treaty partners, they had been captured under questionable circumstances: the Felicidade was taken without slaves on board, and the prisoners argued that the Echo was captured by the Britishmanned Felicidade, which, of course, lacked a commission in the British navy. The case turned on the question of whether murderous slave traders detained in circumstances not authorized by treaty could be tried for piracy under British law. In dissent, only Justice Pratt argued that the slave traders’ violent mutiny amounted to piracy under the law of nations. He argued that even wrongful search and seizure by the navy was authorized by bilateral treaty (in this case the Anglo-Brazilian Convention of 1826). The only legal means of resistance against wrongful seizure was to contest its legality before an Anglo-Brazilian mixed commission.52 The chief justice of Queen’s Bench, Lord Denman, argued that even in the absence of a treaty, any foreign ship seized under Admiralty instructions fell under British municipal law. Its violent overthrow by foreign prisoners was therefore piracy under municipal law, that is, a criminal offense.53 The majority of Queen’s Bench disagreed with both Pratt and Denman, holding that neither slave trading nor violently resisting search and seizure by the British navy constituted piracy under the law of nations.54 The judges went on to assert that British mu-

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nicipal law did not apply to the crew of a foreign slave ship even after it had been taken into British custody in conformity with slave trade treaties or Admiralty instructions.55 The Queen’s Advocate, Dodson, explained the ramifications of this decision plainly when the Saint Helena admiralty court convicted a foreign slave crew of piracy in similar circumstances in 1846. While British courts had full power to try foreigners for “an Act, which by the General Law of Nations is deemed Piracy . . . firing at, and killing British Subjects” to avoid capture “would not be held to amount to Piracy by the General Law of Nations.”56 It is possible to overstate the significance of law officers’ opinions and cases like the Felicidade. Most ships that came before mixed commissions were, after all, condemned.57 Moreover, as Grace’s escapades in the Gallinas River in 1823 demonstrate, the navy butted up continually and aggressively against the law officers’ readings of treaty law. In that case, the African station had instructed its captains to seize empty slave ships and to recover slave cargo dumped on shore notwithstanding the fact that the Anglo-Dutch treaty clearly stated that slave ships could be seized only if they had slaves on board. The King’s Counsel, Christopher Robinson, had been complaining for a year of the illegality of these instructions. He was particularly concerned about their tendency to encourage exorbitant naval violence: Grace’s men butchered Africans, Dutchmen, and Frenchmen on the shore of the Gallinas River even after hostilities had ceased. If Grace’s master, Lieutenant Hunter, had not since died in ser vice at the unhealthy African station, Robinson noted, some “ legal inquiry” would have been required into his execution of foreign slave traders.58 In that case, moreover, Admiralty commands authorized Grace to attack a settlement on foreign soil belonging to a nontreaty partner. This act constituted “illegal” “interference with the territorial rights of third Parties, who are not subject to the Powers & Authorities of coercion which are raised only on the Treaty.”59 The law officers’ protests had little bearing on Grace in 1823, however. The Aurora was condemned by the Anglo-Dutch commission despite the dubious circumstances of its seizure, though, tellingly, the commission refused to pay Grace bounties for confiscating 180 of the king’s slaves.60 If it is possible to overstate the impact of legal counsel on Atlantic oceanic policing, then it would be perilous to underestimate it also. Once the law officers gave an opinion, it fell to the Foreign Office to publish, suppress, or query their view. Mostly the Foreign Office endorsed crown legal

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advice and passed it on. Mixed commissions usually (if bitterly) implemented the law officers’ findings. Men like Grace continued to push at the boundaries of the system, whether by attacking factories on foreign soil or by imprisoning foreign slave traders for months after the liberation of their ships by commissioners. But in the end the captains, too, were constrained by the law officers’ version of treaty law. First, captains risked losing bounties for illegal seizures. Second, law officers’ opinions were eventually translated directly into voluminous Admiralty instructions.61 Internal legal discourse ultimately did far more to set the parameters of the Atlantic slave trade policing system than did the many thousands of pages of diplomatic correspondence protesting British breaches of the law of nations. Ironically, perhaps, two acts of extraordinary legal imperialism provide the most impor tant evidence that slave trade policing was imagined by lawyers and by key policymakers as the expansion of composite municipal law into the Atlantic Ocean. Lord Palmerston’s Act (1839) and Lord Aberdeen’s Act (1845) sought to pressure Portugal and Brazil, respectively, to sign new and expansive treaties with Britain to stem the Brazilian slave trade. These acts authorized the navy to capture Portuguese, Brazilian, and (in limited circumstances) flagless slave ships anywhere in the Atlantic and to bring them “to Adjudication in the High Court of Admiralty of England, or in any Vice Admiralty Court within her Majesty’s dominions” as if they were “the Property of British Subjects.” 62 The 1839 Act was repealed when Portugal signed a new treaty, closing the jurisdictional gap established by the conventions of 1815 and 1817. In contrast, the 1845 Act sought to force the Brazilian government to enforce its own domestic laws to stem the slave trade. The Acts served, first, as startling expansions of municipal jurisdiction in defiance of what passed for international law. They indemnified naval officers against trial in foreign jurisdictions for piracy by instructing them to seize foreign ships. Then they gave British courts jurisdiction to condemn foreign ships under British law. This logic underpinned a remarkable brief in 1850 in which the law officers informed the Foreign Office and Admiralty that, because the 1845 Act contained “no restrictions as to the limits within which the search, detention and capture of slave traders under the Brazilian flag or without any nationality are to take place . . . such proceedings may be had at any place within Brazilian waters as well as on the high seas.” 63 A British Act of Parliament, here, formed the sole referent for policing jurisdiction, even within the sovereign territory of Brazil. These

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Acts constituted performances of a peculiar kind of imperial power, but they also did other work. By intruding into Brazilian waters, Britain goaded the Brazilian government into radically reforming its slave trade laws. In the end Brazilian law, not British imperial law or incipient international law, ended the Atlantic slave trade by closing its biggest market.64

Pirates as the Enemies of Some We might think to look to British attacks on piracy outside the context of the slave trade for a more clear-cut example of British activism in propelling new international norms. Yet piracy, too, was a contested jurisdictional trigger.65 While piracy fit snugly within a municipal law framework as a criminal offense, British agents applied the term flexibly in producing justifications for violence aimed at protecting individual, corporate, and imperial interests. As with slave trade enforcement, naval authority to attack mariners as pirates could derive from bilateral treaties to police particular stretches of water, flow from the law of war or principles of self-defense, or belong to routine keeping of the king’s peace in places adjacent to or within imperial territories. All of these bases presented slippages and invited invention. Despite the many incentives to label mariners as pirates, it was rare for naval captains or others to use the term to assert freedom from municipal legal constraints.66 Whether effective or not, campaigns against pirates produced regional variations of a multilayered regulatory order.67 We can view this process clearly in the case of Southeast Asia, where the British identified piracy as a pressing issue in the early nineteenth century. Sea raiding had been ubiquitous in the region in the centuries preceding, although the word “piracy” had no equivalent in most island languages. Eu ropean interlopers in Southeast Asia used accusations of piracy to justify policing in an inter-imperial frame.68 By calling local raiding “piracy,” pundits mislabeled old but dynamic indigenous processes of coercion, predation, and exchange. They also recognized significant changes in local raiding culture, spurred by European trade, that destroyed some power structures, such as the Sultanate of Malacca, and fed the growth of others. Myriad independent or semi-independent communities in the region relied on raiding for income or to maintain their political independence in this time of flux. Most of the orang laut, seafaring

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peoples who preoccupied traders at Singapore and Riau in the 1820s, lived at different times by fishing, trading sea commodities, and raiding, depending on their relationship with ambitious regional sultans and on the profitability of peaceful trade.69 The Sea Dayaks of Borneo made particularly unconvincing pirates. Dayaks from the Saribas and Skrang Rivers raided their neighbors on the west coast in pursuit of local intergenerational confl icts. Their actions were recoded as piracy in the context of efforts by the sultan of Brunei to collect taxes and the aspirations of the British freelancer James Brooke to establish an independent state in Sarawak.70 Elsewhere local rulers deployed raiding against tributary states to expand or to stake new claims to authority.71 Raids ordered by the sultan of Aceh on East India Company–sponsored ships trading for pepper in Western Sumatra sought to turn weak rights to tribute into stronger claims to territorial sovereignty or trade monopoly. What the sultan of Aceh called sovereignty, Penang traders and emissaries of the Netherlands and the United States relabeled as the sponsorship of piracy. In 1814 the British went so far as to send a commission of inquiry to Western Sumatra to puzzle out the distinction.72 Increasingly in this period, raiding fed into the regional slave trade; coastal communities served as a reservoir of unfree workers. This was particularly so in seaways surrounding the Sultanate of Sulu, centered at Jolo, which drew an array of maritime peoples loosely within its sphere of influence.73 Stamford Raffles, presiding for the East India Company over Singapore, blamed increasing predation in the Sulu and Celebes Seas on a power vacuum following the collapse of the sultan of Brunei’s authority.74 But raiding was in part an artifact of growing Sulu power. The sultanate was “a segmentary state patterned on a mosaic principle of ethnic segmentation and economic interdependence.”75 Social and political prestige there depended on the control of slave labor, which had increased in value with growing demand for goods for the China trade. In the fi rst half of the nineteenth century, Iranun and Balangini mariners from the island of Mindanao vastly expanded their raiding in response to this demand.76 With the quiet sponsorship of the sultan of Sulu, who collected tribute when he could from weaker groups and benefited from the flow of captives to Jolo, several hundred thousand people were enslaved between 1800 and 1850. What looked to Stamford Raffles to be chaos and piracy was arguably a bid for a fluid and, to Europeans, mostly illegible authority.

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John Cary, “A New Map of the East India Isles, from the Latest Authorities” (London: J. Cary, 1801). Image reproduction from author’s collection.

These raiding activities responded, in turn, to changing European geopolitics. The Napoleonic Wars diminished the already tenuous power of Spain in the Philippines and temporarily removed the Dutch from the region. This power shift left more space for American incursions into island trade, and for British experiments in trade liberalization. It also fed raiding: some ambitious sultans used raiding to monopolize trade while others intercepted junks laden with trade goods as they floated past their islands. When, in August 1814, Britain returned Java to the Dutch, increased trade and rampant raiding shaped European conversations about how to keep order in the Eastern Seas. The Anglo-Dutch Treaty of 1824 was one product

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of the moment: it divided up the Indonesian archipelago into spheres of influence, even as it pledged mutual aid in the suppression of piracy in the region.77 After midcentury, combating piracy served as a primary justification for the absorption of much of the region under European control.78 In the decades before 1850 the project of controlling pirates had a different valence. In the British sphere, tentative discussions about the limits of criminal jurisdiction over pirates and more bellicose naval actions against raiding communities demonstrate, again, how constrained thinking about oceanic order was by municipal legal boundaries. However broadly the term “piracy” might be deployed by policy makers, naval administrators, or legislators, by 1830 lawyers argued that it comprised only non-statesponsored depredation at sea: pirates stole things from ships at sea without the authorization of a state.79 Moreover, although Gentili had called pirates enemies of all mankind in the late sixteenth century, few agreed that piracy was a universal crime justiciable in any municipal court.80 If British and colonial courts would not find the most violent of Atlantic slave traders to be pirates, then, for the first three decades of the nineteenth century, they were almost as reluctant to assert universal criminal jurisdiction over the clearest cases of predation by foreigners against other foreigners at in Southeast Asian seas. After a spate of piracy convictions in the seventeenth century, British courts seem to have avoided difficult jurisdictional questions about whether piracies not involving British subjects could be tried in British courts. When Lord Stowell went looking in 1819, he found no cases pertaining to the limits of piracy jurisdiction since the reign of Charles II.81 He thought this was so because piracy “was no longer in vogue.”82 The dearth of cases more likely resulted from the fact that British admiralty courts used any excuse not to convict foreigners of piracy.83 In the admiralty court at Calcutta, for example, most piracy cases against Southeast Asian raiders failed unless raiders were caught in the act of non-statesponsored predation.84 British courts were not alone in their hesitation. When Captain Blake visited Manila in 1838 to learn more about the sultan of Sulu, he found that Manila jails held about sixty Iranun “pirates” who had not come to trial because “they were not captured in any act of Piracy.”85 However, British reluctance to convict pirates went further. Calcutta law officers sometimes refused to try foreign pirates even when they

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were caught in the act of attacking British naval ships. When Captain Henry Chads brought nine men to Calcutta for trial in October 1836, he was told that neither their “menacing attitude” nor their attack on his ship, the Andromache, constituted piracy in law.86 In the late 1830s, as the China trade grew and regional predation increased, admiralty courts around the Indian Ocean moved haltingly toward a more capacious interpretation of their jurisdiction over piracy committed by foreigners. In June 1838 the Singapore court tried and convicted eighteen Iranun men for piracy. The men were arrested on May 18 off the coast of Terengganu when the naval sloop Wolf and the steamship Diana attacked six Iranun praus that had been caught raiding a “junk that had sailed a few days before from Singapore laden with valuable cargo for China.”87 In Captain Stanley’s telling, the raiders fired on the Diana as it approached. Captives on the raiders’ ships testified that the praus had merely “endeavoured to get away” and that “the steamer pursued and fi red upon them” first.88 Whatever the order of engagement, the Diana “poured in such a murderous fire on each of the prahus, that their decks were soon cleared.”89 The crew of the Diana claimed to have killed about 90 men and wounded 150 in two hours. They arrested thirty and brought them for trial before Singapore’s new admiralty court. Questions about the culpability of nearly half the prisoners led to their release. Some had been “carried off by violence from their own homes,” others were auxiliary manpower and not fighters, and many were boys, “so very young” that “it is impossible to suppose” that they “would voluntarily embark in such a course of blood and plunder.”90 Even in pressing charges against the remainder, the British took pains not to try them for their aggressions against either the junk or the Diana in mid-May. Instead the men were convicted on the basis of the testimony of one of their captives. A slave called Sabit from “the Dutch Settlement at Pontiana” (now Pontianak, Indonesia) testified that he and his ship had been captured by the Iranun fleet on April 25.91 It is curious that the advocate general was not prepared to act on the testimony of the crew of the Wolf and Diana that they had caught the raiders in an act of piracy against either the junk or the Diana. Perhaps the junk had continued on to China with all of its witnesses. Perhaps the prosecutor was persuaded by testimony from some of the captives that the Diana fired first. Instead the court took a more novel approach—convicting eighteen men for attacking a foreign

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boat on the testimony of a foreign man. Such a jurisdiction over acts in the ocean could only be based on the law of nations. The Iranun pirate case formed no turning point in fi xing universal criminal jurisdiction over piracy. Despite the broad jurisdiction claimed by the Singapore court, policy makers continued to vacillate about whether piracy against foreigners should be policed by British courts or British ships. In discussions about Iranun pirates and Sulu sponsorship, the Supreme Government encouraged the Singapore government to punish “or even” destroy ports that protected raiders, on the grounds that all means should be employed to protect “the lives and property of British subjects” and to punish “the common enemies of all mankind.”92 Admiralty officers were less certain when Chinese mariners bearing Chinese government licenses dating from the First Opium War increased attacks on shipping near Hong Kong in 1841. Some speculated that the navy should have a broader right to attack suspected pirates. But even then the right was narrowly defined in relation to “the duty of protecting the lives and property of Her Majesty’s subjects.” Officials worried, too, about infringing “the independent rights of China.”93 As colonial courts groped toward a more expansive jurisdiction over pirates, the notion that piracy was a crime against all men was still controversial. Nor did the 1838 conviction proceed without pause. After convicting the Iranun pirates, the judges withheld their sentence on the basis that the crew members “appear to consider themselves, in fact, as having been engaged in the lawful discharge of their duties as subjects of his highness of Sooloo.”94 The owner of the captured prau claimed that he had been instructed by the rajah of Sulu to plunder “as far as the coast of Siam.” The recorder, Sir W. Norris, explained the court’s hesitation: “Piracy, as such, cannot be committed by a nation; and should it appear that these men acted under the authority, express or implied, of their Sultan or Rajah, I need scarcely say the case would be beyond the jurisdiction and powers of a Court of Justice.”95 If the sultan of Sulu governed raiders, then those raiders could not be pirates. The East India Company and the Supreme Government had long been troubled by questions about who wielded authority in the Sulu Sea and elsewhere in the Eastern Seas.96 In Singapore, Norris admitted that his own knowledge of the islands was drawn from travel books. To resolve its dilemma, the court sent out urgent queries about the nature of the Sulu gov-

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ernment, its recognition by European nations as a “Sovereign independent state,” the degree to which the sultan actively “encouraged piracy among his subjects for his own benefit,” and whether those convicted by the British were “subjects of the state or acting under the commission” of the sultan.97 The way the court answered these questions speaks volumes about the rising importance of inter-imperial cooperation in shaping jurisdiction over raiders in the region. Captain Blake was dispatched to Manila (not to Sulu) to understand regional geopolitics. His informants in Manila claimed that the sultan had no authority to authorize or restrain raiding: he was “a mere cypher, nominally a Rajah, but possessing no control with his subjects, who regard not his authority and yield him no allegiance.”98 Blake reported as much back to Singapore, but he also reproduced an 1836 treaty between Spain and Sulu that told a slightly different story about Sulu sovereignty. The 1836 treaty acknowledged that the sultan fell within Spanish protection, broadly conceived: Spain promised to help the sultan against foreign enemies and to “subdue any people who may rebel throughout the whole extent of the islands which be within the limit of the Spanish Authority” in the archipelago extending from Mindanao to Borneo. In return the sultan promised to lower taxes for Spanish traders, to assist in the fight against non-European aggressions, and to “put down the piracies of the Illanuns” and others in and around the Philippines.99 However, the treaty subtly bypassed the question of whether Sulu was independent or not and whether or not the sultan sponsored piracy. Instead, following a pattern of treaty making practiced for a decade by the Dutch, the Spanish treaty recognized the sultan as the ruler of a polity with its own enemies, and it secured the sultan’s pledge of “peace with all the vassals of His Catholic Majesty,” with the clear implication that the sultan’s subjects were not already Spanish subjects.100 This treaty might be consistent with the independence of the Iranun raiders, but it did not imagine a sultan devoid of sovereignty. Both the Spanish garrison’s derision of Sulu sovereignty and the treaty’s complex endorsement of it were valuable to the British. One served the purposes of diplomacy: if the sultan of Sulu was a sovereign, then he might sign a treaty giving the British (as well as the Spanish) jurisdiction to police raiders in the Sulu Sea. If the sultan of Sulu had no claim to authority over the Iranun raiders, the court’s jurisdictional problem disappeared: Sulu could not then command the Iranun, and if the Iranun were not

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sovereign themselves, Iranun raiders could be tried as pirates in British courts. Spain’s claim to some sort of imperial jurisdiction over Sulu, in contrast, was much less helpful: in 1844 it served to scupper British plans to attack Iranun settlements in Mindanao and forced Britain to rely on inter-imperial cooperation to order the Sulu Sea.101 On the basis of Blake’s report, the thirteen surviving adult Iranun convicts were “transported to Bombay for life.” The remaining four “mere boys” were transported for seven years.102 None of the adults made it to Bombay, however. Using their hard-won raiding skills, they killed the captain of the Harriet Scott on its voyage to India, and survivors escaped on the quarter boat. They were recaptured, tried, and hanged.103 The story of piracy jurisdiction here highlights several important facets of oceanic ordering in early nineteenth-century Southeast Asia. Efforts to exercise jurisdiction over pirates demonstrate British (and Spanish and Dutch) discomfort with the fluid authority of many Southeast Asian polities. The sentencing of the Iranun pirates in 1838 rested on a strategic refusal to come to terms with the waxing political power of the sultan of Sulu or to acknowledge that independent Iranun raiding communities might themselves constitute states. Most important, for our purposes, conversations about British jurisdiction to try pirates echoed much more explicit debates about the limits of slave trading jurisdiction in the Atlantic. Just as crown legal commentators avoided claiming universal jurisdiction to disrupt foreign slave trading, failed efforts to convict pirates in Southeast Asia suggest that Britain and its European rivals were eager to avoid universal claims to piracy jurisdiction well into the nineteenth century. Indeed, the unwillingness of law officers to bring a case against the Iranun pirates on the basis of naval testimony suggests a different sort of understanding of oceanic order in the region. The locus of British efforts to order the seaways of Southeast Asia lay outside the courts, in naval violence solicitous of inter-imperial politics, but only very loosely restrained by British bounty laws. The Piracy Act of 1825 encouraged British naval vessels “to attack and destroy any Ships, Vessels or Boats, manned by Pirates or persons engaged in Acts of Piracy” by promising crews £20 for “each and every such piratical Person, either taken and secured or killed” and £5 for every other man “not taken or killed.”104 “Boats manned by pirates” was a very broad category as it authorized the payment of bounties even when pirates were not caught in the act of predation. The fact that head money

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decisions were administrative in nature until 1850 made the act even broader, because naval claims to have killed pirates and destroyed pirate ships were seldom tested in court. Naval license was expanded further by the fragmented nature of British presence in the region, which fell within the sphere of the East India Company but was administered by subordinate local governments at Penang, Prince of Wales Island, and, later, Singapore. Local governors lobbied long and hard for Britain to superintend the ordering of oceans in the region. They wanted the Supreme Government to act unilaterally against pirates and to groom local rulers who might help it to do so. But the governors had little say in the matter. The Supreme Government in India was responsible for overseeing negotiations with native sovereigns, and its approach was cautious.105 Company aggression in India had long been the subject of intense parliamentary scrutiny, so the Supreme Government wanted to avoid unilateral violence against pirates. By the 1830s, even when they accepted growing local demands that something needed to be done about raiding, policy makers in Calcutta worried about “the extent of the activities considered politically desirable, legally possible, morally defensible or physically practicable” and about how to supervise naval aggression so far away.106 Naval commanders also worried about how to supervise their men. In 1848 J. D. Dundas instructed Rear Admiral Collier to be circumspect in ordering naval aggression. He was instructed to do “his utmost in checking piracy” but to do so “by enforcing the observance of treaties with the naval chiefs” and eschewing unilateral violence and coercion.107 In a telling performance of fragmented governance, Collier sent Captains Farquhar and Wallage to kill more Dayaks in Borneo just one year after receiving these instructions.108 The dangerous breadth of naval discretion had become apparent long before Keppel went to Borneo in 1843. In 1830 Rear Admiral Owen cautioned naval ships sailing the waters around Singapore not to bother bringing raiders to trial unless they were caught committing piratical acts of “atrocious magnitude.” However, strong suspicion was grounds enough for murderous violence. Though he counseled against “unjust aggression,” Owen also advised that “in ordinary cases, where strong suspicion only rests . . . an opening should be left for the people to escape, which if Piratical they gladly will do, leaving their vessel to be destroyed if you think proper.”109 U.S. Commander Henry James reported rumors that Captains

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Stanley and Congalton—the men who cooperated in the arrest of the Iranun pirates in 1838—had both read this discretion rather broadly. They usually put pirates to death rather than risk them to the porous jurisdiction of admiralty courts.110 They did so in the knowledge that their tales of curtailing piracy would result in a payout, even if they could not sustain a criminal conviction. When the advocate general at Calcutta refused to try Sama Bajau captives brought there from Aroa in 1836 because they had apparently attacked a British warship in self-defense, he nevertheless authorized head money for their capture.111 In the rare instances that admiralty courts were called on to test bounty claims before 1850, they did not add much rigor to the process. In the controversial Serhassen pirates case (1845), the Queen’s Advocate contested Keppel’s right to head money for attacking Dayaks off the coast of Borneo in 1843, “upon the ground that there was no sufficient evidence to establish the fact that the crews of the prahus were pirates.” This plea had no effect. Stephen Lushington accepted Keppel’s testimony that the praus attacked first.112 Keppel and company were compensated for capturing thirty-five pirates, and dispersing eighty-five.113 The system spiraled into scandal when, in response to increasing Dutch aggression against raiders, the Supreme Government and the Foreign Office started to listen to local pundits calling for Britain to play a much larger role in the region—a role predicated on a combination of inter-imperial cooperation, treaties with local sovereigns, and naval violence.114 Key among these pundits was the peculiar James Brooke. Brooke’s career exemplified how accident and ambition could transform into political influence on the peripheries of empire. An Indian-born Oxford dropout, Brooke arrived in Sarawak on the west coast of Borneo in 1839 with a head full of Orientalism, a well-armed ship, and a hull stocked with gifts for local rulers. He used these accoutrements of authority to win over a rising figure in the government of Brunei, Muda Hassim, who was involved in military actions in West Borneo. Through a combination of bluff and luck, Brooke got himself appointed as governor of Sarawak in September 1841.115 The sultan himself agreed to grant Sarawak to Brooke in perpetuity in 1842. From then on, Brooke labeled himself a rajah. Brooke then set about turning widespread British concerns about pirates against his enemies in Brunei. In his “Memorandum on Piracy,” written in 1844, Brooke recommended that Britain stop trying to convict Southeast

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Asian raiders as pirates and start acting more like the Dutch. The Dutch had been signing treaties with local rulers about piracy since they reestablished an outpost in Riau-Lingga in 1824. Since 1833 they had used those treaties to justify unilateral attacks against communities suspected of raiding. Brooke argued that Britain should do this also. He proposed that “a blow should be struck at the piratical communities” in the Sulu Sea and in the vicinity of Sarawak. Naval vessels should destroy raiding communities at home, “for to forbear attacking them until we see them commit a piracy, is a hopeless and an endless task.” Brooke acknowledged openly that he was stretching the term piracy to the breaking point. Piracy in law meant the “plunder or seizure of [any] peaceful or lawful trader on the high seas,” regardless of nationality. He argued that the category included warfare conducted among nonrecognized states: “Chiefs who have seized on territory and arrogate independence (making their independence a plea for piracy), can never be allowed the right of declaring war or entering on hostilities with their neighbours.” Interfering in these conflicts, he asserted, would do “no injustice” because it would be easy to distinguish a war between “native nations, from the piracies of lawless hordes of men.” By signing Dutch-style treaties, British representatives could anoint desirable sovereigns. Carefully drafted treaties, meanwhile, would authorize the British navy to attack piratical communities within the territories of treaty partners. Diplomacy would separate treaty signers from the sponsorship of piracy and gradually eliminate sea raiding.116 Brooke was a little fuzzy about the order of reprisal and treaty—and he needed to be, as he and Keppel had already attacked and killed hundreds of Dayaks in Borneo with only the tacit approval of the sultan of Brunei. Nevertheless, Brooke’s arguments were compelling enough to get him official appointments as the British government’s commissioner and consulgeneral to the sultan and independent chiefs of Borneo, and as governor of Labuan. In 1847, after intervening with naval support in a local political crisis he had caused, Brooke negotiated a treaty with the sultan of Brunei that modeled his approach. The sultan ceded the island of Labuan to Brooke, and guaranteed free access to Brunei for British merchants. He also undertook to cooperate with Britain in the suppression of piracy by withdrawing his protection from “any persons or vessels engaged in piratical pursuits” and investing British officers with power and jurisdiction to enter the “ports, rivers and creeks within the dominions of the

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sultan of Borneo, in order to capture all vessels engaged in piracy or slave dealing . . . and to seize and to reserve for judgment by the proper authorities all persons offending against the two Contracting Powers in these respects.”117 Brooke’s vision for oceanic order started to unravel when competing versions of Keppel’s raids filtered home. Keppel himself published a twovolume narrative of his aggressions in Borneo. But others told a different story. Alexis Chamerovzow and George Foggo authored pamphlets arguing that Dayaks were not pirates at all: they had merely contested Brooke’s growing ambitions in West Borneo.118 The pamphlets claimed that Brooke grouped Dayaks with Iranun and Balangini raiders from the Sulu Seas in order to confound “the innocent with the guilty, to give [his] proceedings some colour of necessity.”119 He thus fooled Keppel and his commanders into murdering innocent people in 1843 and 1844. Afterward critics argued that Brooke had caused the crisis that prompted the temporary British invasion of Brunei in 1847 in order to secure a new treaty legitimizing his aggression against the Dayaks.120 As soon as the ink was dry, Brooke convinced Rear Admiral Collier to send Captain Farquhar with 3,000 men to ambush Dayak ships in the River Saribas.121 Naval expeditions conducted by Keppel in 1844 and Farquhar in 1849 became central dramas in a controversy about Brooke’s conduct as a local pundit, British official, and British subject. In Parliament, Hume, Cobden, and other Radicals cast Brooke as a symbol of growing despotism in empire. The self-styled “rajah” made a delicious target. Radicals pressed two questions. The first was whether Brooke had manipulated the navy to fight against his enemies, not against “enemies of all mankind.” In a blistering (and very long) speech in July 1851, Hume accused Brooke of murder, and the navy of a cover-up.122 The second question was whether Sarawak was a sovereign state. If Brooke was a sovereign, then the navy had no business intermeddling in his affairs. At the same time, as a sovereign-subject, Brooke represented an unacceptable political anomaly. It took Hume and his followers several years of protest to get the attention of the executive, but by 1854 Brooke found himself, and his pirates, under inquiry. Charles Henry Prinsep, the advocate general of India, and Humphrey Bohun Devereux, a government agent in India, led a commission into Brooke’s conduct. On the question of whether Brooke could be a sovereign subject, Prinsep hedged. He thought that Brooke, now Sir James Brooke,

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could be a subject of the Crown and a governor in Sarawak because his position there resembled “the ordinary and frequent case of British subjects engaging in the ser vice of a foreign Power, from which they may legally be recalled by their native Sovereign, on pain of outlawry.”123 However, he noted that while holding this position of vassalage, it would be improper for James Brooke to act as a representative of the British Crown or to call on “her Majesty’s naval forces” to quash pirates.124 Devereux addressed the issue squarely, and after a fascinating exposition on the nature of sovereignty and the attributes of subjecthood, found that Brooke probably did not hold the requisite qualities of a sovereign in any case, but said that if he did, “I should not be inclined to uphold the opinion that Sir James Brooke, or any other British subject, can attain to the position of being an independent ruler of a foreign territory.”125 These findings infuriated Brooke, but they were ambiguous enough not to problematize his “raj”: he continued to rule Sarawak until his death in 1868, and passed his title on to his heirs. To settle the problem of Keppel’s and Farquhar’s raids, the commissioners had to decide whether or not the Dayaks were pirates. To answer this question they interviewed a variety of Singapore residents, who gave extremely inconsistent information. Some signed statements in support of Brooke and his antipiracy actions—though the letter signed by Chinese merchants thanked Brooke for suppressing pirates off Borneo who were not Dayaks.126 Madam da Trongua attested that she had been attacked on the west coast of Borneo by Malays.127 Thomas Owen Crane, Joseph Koek, John Henry, and James Guthrie, established traders in Singapore, swore that they had not heard about any Dayaks accused of piracy until they read about them in the Singapore papers in the 1840s.128 Many related secondhand stories of head-hunting or raiding by Borneo Dayaks against other coastal communities, but were hesitant to call them piracy.129 A string of Borneo residents confirmed sustained hostilities by Saribas and Skrang Dayaks against Sarawak and the Dutch Settlements at Sambas and Pontianak.130 Others reported that Dayaks were involved in reciprocal hostilities with their neighbors—engagements that resembled war rather than piracy.131 A number of witnesses acknowledged Dayak aggression but described a pattern of hostilities that suggested sustained efforts to oust agents of Brunei, including Brooke, from Sarawak.132 Lieutenant John Arnold Rappa gave evidence both of Dayak raids and of ongoing, mutual hostilities between them and the settlement at Sarawak before and after

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Keppel’s attack in 1843. Rappa noted that Brooke had offered private bounties for killing pirate fighters, though in one engagement he had to offer bounties to stop his men from murdering Dayaks after hostilities had ceased.133 Rappa’s testimony about Keppel’s and Farquhar’s raids tracked the very uncertain boundaries among piracy, war, and self-defense.134 He swore that the navy had engaged in no parley before their attack because “they fi red upon us fi rst,” yet he also swore that the steamships fi red “one or two” rockets before hostilities “to frighten the enemy.”135 When they had waded through this mess, the commissioners found that they could not reach a consensus.136 Both agreed that the Dayaks were pirates—of a sort. Prinsep found that “the charge of wrongful and causeless attack and massacre . . . wholly failed of proof.”137 However, he thought the navy’s attacks on Dayaks were ill judged because they punished “injuries sustained . . . by the inhabitants and settlers of Sarawak” rather than “any injuries, or complaints of injuries, sustained by British subjects.” The expeditions ended in excessive bloodshed, moreover, because “native volunteers” took revenge—occurrences that were “much to be lamented, as having taken place in operations effected at the suggestion of a Representative of Great Britain, and by and under the command of British officers.”138 Devereux agreed in large part. If the Saribas and Skrangs were pirates, then they were “merely local pirates, and it might be questioned whether those tribes were proper objects against which to employ Her Majesty’s naval forces,” especially as Great Britain “has no possession on the coast” and “no British vessel has ever been taken by them.”139 As an exercise in governmentality, the commission of inquiry was unimpressive. In its inability to define piracy, its unwillingness to challenge the legal authorization for naval attacks on civilians, and its avoidance of the question of Sarawak’s status, the commission had turned a project of information gathering into a spectacle of official befuddlement. Yet at the same time, like the criminal cases before it, the commission demonstrated stubborn reluctance to claim British jurisdiction to punish pirates who did not directly damage imperial interests. Though they could not agree on the precise wording, the commissioners distinguished between authorization of attacks on pirates as enemies of all under the law of nations—a position the commissioners did not endorse, and a discourse they did not utilize— and authorization by the British government of attacks on pirates as enemies of Britain.

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The only real changes to emerge from the scandal were a decisive shift toward inter-imperial oceanic ordering, and a recasting of the legal framework for adjudicating naval bounties. After signing a treaty with Brunei, Brooke and Keppel visited the sovereign of Sulu to negotiate a treaty boosting trade and facilitating British action against Iranun and Balangini pirates. Spain responded to these machinations with violence—it invaded Jolo in 1851, precipitating a general retreat by Britain from policing within zones of acknowledged European influence or control.140 Thereafter, the overwhelming technological advantage delivered by steamships, combined with a turn toward formal colonization, meant that raiding was quelled through a network of cooperative imperial policing. Meanwhile the huge bounties claimed by Keppel prompted the reform of the Piracy Act to subject naval violence more systematically to the scrutiny of British courts. The High Court of Admiralty had refused to inquire too closely into Keppel’s first raid on Dayak “pirates” in 1843. However, the massive effectiveness of steamships in destroying villages in Borneo’s rivers gave everyone pause. Keppel and his crew had received head money for killing 225 pirates and “dispersing” a further 505, an impressive total of £7,025.141 The scale of this claim (and of the violence it represented) raised questions about the sufficiency of the £100,000 allocated annually to the reward the suppression of piracy. The claims mounted by Wallage and Farquhar were even more alarming. In 1849 they alleged to have killed 500 men and dispersed a further 2,140 in the rivers of Borneo. Under the 1825 Piracy Act, they stood to accrue £20,700 in bounties for their aggressions. Perhaps because of growing scandal about antipiracy activities in Borneo, or perhaps because of the passage of the new Piracy Act, Admiralty did not report a payout.142 From 1850 onward the new Piracy Act required that every claim for head money be adjudicated by an admiralty court.143 From then on, the dispensation of rewards for the policing of pirates in Southeast Asia looked a lot more like rewards for the capture of slave traders in the Atlantic.

Conclusion The geopolitics of Southeast Asia up until 1850 produced a policing regime different in substance and operation from the system erected to control

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slave trading in the Atlantic. Yet oceanic ordering in both places shared some impor tant characteristics. Neither system rested on the logic of crimes against humanity, and neither, strictly speaking, comported to international law. Abolitionists were fond of grand statements about inhumane behavior and the suffering of slaves, and James Brooke, like his Dutch and Spanish contemporaries, certainly knew the power of calling raiders pirates. However, when push came to shove, courts, commissioners, and law officers avoided linking their justifications for ocean policing to universal human rights. Law officers and courts read Britain’s bilateral abolition treaties extremely narrowly. Their opinions about Britain’s treaty obligations and British municipal laws about policing slavery set the parameters of that system. The terms of Lord Palmerston’s and Aberdeen’s Acts of 1839 and 1845, which extended British jurisdiction unilaterally over Portuguese and then Brazilian slave ships, ultimately showed that the enabling terms of municipal legislation trumped even the narrow terms of international treaty law. In Southeast Asia, conversations about the limits of British power to invade foreign territory to quash pirates took place alongside loose accusations of the “piratical behavior” of a diverse set of raiders on sea and land. The easy terms of the Piracy Act aided these elisions, as did the disorganized legal actions of the government and courts. However magical the term “pirate” was, it seldom referred to a crime justiciable in any court, and it was rarely used to invoke universal norms. When they were pressed on the subject, the commission of inquiry condoned violent attacks on pirate villages (especially those in foreign, sovereign territory) only when those pirates had attacked British subjects. Both the prohibition regime against slave trading and regional campaigns against piracy depended on increasingly muscular British interventions justified mainly by British legal immunities or British bounty laws. Oceanic policing took on a decidedly British imperial flavor, partly because of the generative role of British law in interstate practices and institutions and partly through the overweening ambition of the British navy. The resulting regional systems of oceanic ordering represented more than simple legal imperialism, however. Always a motley patchwork of authority, oceanic jurisdiction opened imperial law to the law of other polities, as well as to the influence of strategies adopted by a wide range of interested actors, from agents of other empires to merchants, slave traders, and raiders

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themselves. Even while recognizing the limits of bilateral treaties, British officials were reluctant to give up on them. They negotiated an impressive network of treaties designed to erect in piecemeal fashion what international opinion could not deliver on its own: an international ban against slave trading and piracy. Treaties—whether governing the Atlantic, the China Sea or, for that matter, the Mediterranean and Indian Oceans— functioned less to defi ne British jurisdiction to police pirates and slave traders than to license the extension of British law into oceans. Municipal and admiralty law constituted the necessary touchstones of enforcement, unleashing some forms of violence while constraining others. In the abolitionist Atlantic, slaves figured as cargo under modified prize law, and slave traders could be treated as overreaching commercial agents but not so easily as criminals. In antipiracy campaigns, rooting legal approaches to piracy in municipal law actually magnified incentives to label raiders and even the inhabitants of their villages as pirates deserving of attack. Some men acted like Brooke, Keppel, and, to a lesser degree, Grace to exploit the vagaries of municipal bounty laws in order to turn policing into profit, while others, such as Portuguese and Brazilian slave traders and even crown law officers, busied themselves finding odd angles from which to constrain naval authority in the sea. We do not deny that the resulting prohibition regimes represented international legal formations. Their cobbled-together approaches look a lot like the compromised and constrained international legal frameworks of our own time—an odd amalgam of negotiated principles whose instantiation relies on the laws and the whims of states with hegemonic ambitions but weak and incomplete enforcement powers. But the oceanic order of the early nineteenth century was not simply a variant of patterns that confounded international lawyers in later periods. It was more original than that, and also more influential. Britain’s oceanic empire took shape through the belabored and fitful projections of domestic legalities that changed their character in scattered regions. Law on the seas at times suggested a model of international order and at times smacked of imperial ambition. It colored global order as a clumsy hybrid creation: regional and global, municipal and international, simultaneously beholden to and exempt from imperial sway.

CHAPTER SIX

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ON

June 4, 1814, John Canning arrived on the west coast of Sumatra in search of sovereigns. Canning was no lawyer: he was a captain in the Murshidabad Provincial Battalion who had somehow managed to impress the Supreme Government in Bengal during a failed diplomatic expedition to Burma five years earlier. Resolving the small matter of sovereignty was not the preserve of legal experts in 1814. The sultan of Aceh had seized the Anapoorny and its crew a year before for breaching his blockade of West Sumatran pepper ports. The Penang government (an offshoot of the East India Company) responded to the incident with violence, sending a naval expedition to Sumatra to recover the ship and free its officers.1 The Supreme Government instructed Canning to investigate the seizure of the Anapoorny and to ensure that incidents like it did not happen again. To do so, “of course,” he needed to undertake “an investigation of the real limits of the King’s Dominions on the west Coast of Sumatra.”2 If the sultan had no sovereignty over the pepper ports, then seizing the Anapoorny was an unjustifiable act of aggression, and disappointed investors, East India Company officials among them, could demand compensation for their loss. The riddle of the sultan’s authority clearly captured Canning’s imagination. To the mortification of the sultan, Canning ignored him entirely. Instead of negotiating for compensation, he toured the pepper plantations, finding sovereigns everywhere he went. Sovereignty, Canning claimed, was a relationship of mutual protection and support that had a string of accoutrements: “The principal and most prominent essentials to the Sovereign Prerogative I take to be the possession of Civil, Military and 148

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Criminal Jurisdiction. The right and power of appointing a representative in the person of a Governor—and the right of collecting revenue with the power of appointing a person or persons for the purpose of making such Collections—where these privileges and immunities really exist, it cannot be doubted that such Country or district is under the power and authority of whoever possesses them, whereas the want or absence of them seems to me necessarily to imply the reverse.” The sultan, in Canning’s view, held none of these powers in western Sumatra. Many residents of the region would have welcomed this finding: if they were independent of the sultan, they had no obligation to pay him taxes. However, in Canning’s rendering, even the sultan’s avowed subjects might be sovereigns in disguise.3 The self-serving ends of Canning’s project are much less interesting than the project itself. Canning was not dispatched to find colonies or even political dependents for the East India Company or the British Empire; the Company had repeatedly spurned calls from rebel pepper plantations for British protection.4 His search for sovereigns tapped into a different reservoir of legal strategies that were just as important to the British Empire in the early nineteenth century. Finding, or helping to make, functional sovereigns and cata loging jurisdictional rules of engagement were integral to the pursuit of British-inflected global order. Polities seeking to make their own way in a crowded and chaotic global arena also wanted to demonstrate the capacity for sovereignty. Even the most expansive nineteenth-century maps of the British Empire did not color the whole world red: British colonies accounted for a small fraction of the earth’s surface between 1800 and 1850. China, Japan, Russia, most of the Pacific Islands, the United States, Latin America, the Ottoman Empire, and almost all of western Europe—these places hosted British subjects who struggled to establish extraterritorial legal rights while calling for the protection of their interests by an inconsistently supportive imperial government. Even in areas formally claimed by Britain, subjects of uncertain status within the empire, including captives, convicts, and conquered peoples, outnumbered ordinary British settlers. And although globalized military conflicts among European powers subsided in the decades following the end of the Napoleonic Wars, peace did not mean an end to global rivalries. New spaces for European commercial enterprise and new arenas for inter-European confl ict opened across the world.

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How does it make sense to talk of a vision of British global order in such a context? One approach has been to characterize British strategies outside the bounds of British colonies as the foundations of informal empire. Studies of informal empire often serve as prehistories of Anglo-American global dominance. Another approach traces the evolution of British foreign policy. From Lord Castlereagh’s cultivation of a European balance of power to George Canning’s pragmatic interventions beyond Europe to Lord Palmerston’s embrace of muscular actions to defend free trade, stories about foreign secretaries’ strategies expand a familiar narrative about the influence of British diplomacy on the rest of the world. The leitmotif in the early nineteenth century is British “gunboat diplomacy,” a label that tends to place legal conflicts, and British legal power as distinct from military power, on the margins while muting cacophonous regional politics.5 This chapter takes a different tack by emphasizing the way imperial (and inter-imperial) law framed the emergence of politically plural regions in the early nineteenth century. The prevailing view was that imperial structures could accommodate new political formations. Political actors were operating without the assumption, championed by the jurist John Austin but not widely disseminated until later, that interstate communities must lack an overarching sovereign power. That Austinian idea of international order urges us to regard empires simply as unusually large and complex states whose imprint on international law flows through their relations with other sovereign states.6 In contrast, most early nineteenth-century political actors understood an empire to be a politically plural order of a different sort, a state system in itself rather than merely a state among states. Much like the absent Austinian sovereign, an imperial government was expected to mediate endemic conflicts among an empire’s many political parts.7 This understanding of empires influenced independence struggles and new associations among polities.8 The link between empires and federation ripened in the open-ended political atmosphere of the late eighteenth and early nineteenth centuries. Edmund Burke defined empire as “the aggregate of many States, under one common head.”9 Jeremy Bentham pointed to the federalism of “the German Empire . . . the Dutch Provinces . . . [and] the Swiss Cantons” in framing arguments for layered British sovereignty in North America.10 In the wave of new state creation in the Americas that commenced in 1776, federation was associated simultaneously with the

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project of independence and with attempts to reposition polities within an imperial world.11 The introduction of robust self-government in Victorian settler colonies after 1840, and of legislative councils in many crown colonies after 1820, attests to the power of federative thinking in intra-imperial frameworks.12 Something similar emerges from politically crowded and contested spaces on the margins of empire. The efforts by consuls and merchants to strengthen the authority of foreign governments in order to guarantee repayment of loans and enforce contracts amounted to something more than “informal empire.” It helped bring new states into existence.13 The same states clamored to define and defend their sovereignty in relation to imperial power, and to offset imperial ambitions by forming new federations. The results might have puzzled Austin: politically plural regions within a spotty British force field multiplied. These constellations, often overlooked, represented key parts of the early nineteenth-century global order. This chapter examines the forces at work in the creation of two such imperially inflected regional state systems. We begin with the story of the capture of a small boat and the execution of its crew on a coral atoll in the Tuamotu Islands, 300 miles northeast from the island of Tahiti. The killings and subsequent trial sparked a multisided conversation about the nature of inter-island sovereignty in Polynesia and the role of the British Empire in administering it. Distance and difference give British discourse about this incident a distinctly chaotic feel. “British standards” of law in the Pacific varied depending on which sorts of British subjects were involved: traders, consuls, missionaries, and naval officers had very different views of Tahitian sovereignty and the order it should keep in island peripheries. Like disputes about piracy around Borneo discussed in Chapter 5, the case of the Dhaulli underlines the uneven production of foreign policy on the boundaries of empire, even as it illustrates the importance of state building as a strategy of British global ordering in the early nineteenth century. We then turn to the politics of riverine trade in the Río de la Plata region. There we explore how new states navigated the geopolitics of empire in the southwest Atlantic, as British agents sought to define a species of free navigation guaranteed not by the empire but by local states pledged to protect British traders’ property and investments. In both regions, British insistence on legal order to protect trade involved promoting some measure of

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local jurisdiction over attacks on shipping. In both regions, British actions conjured new sovereignties into existence or reinforced the sovereign claims of new states while urging protections for British commerce and property across a pluripolitical system. In tracing the regional effects of British recognition of sovereigns, these histories illuminate the open-endedness and flexibility of states’ engagement with the British Empire. Strategies that appear to prefigure nationalism—the circulation of pronouncements about sovereignty in South America, for example, or the assertion of claims to control Tahitian local waters—had traction in part because they continued to hold out the possibility of fitting within an imperial sphere of influence. In Polynesia and in the Río de la Plata—and in many other places not discussed here—some local elites angled for recognition as a formal part of the British Empire. Their advocacy of such solutions should not be dismissed as collaboration with imperialists. In an imperial age, even the most radical thinkers saw little contradiction between advancing claims of sovereignty and embracing imperial solutions to problems of local and regional order.14 Tahitians at different moments proposed that Tahiti become a protectorate of Britain; in the newly independent Oriental Republic of Uruguay, elite factions made the same appeal. In both places, too, at different times, courts accommodated British pressures to follow specific procedures and provide recommended remedies in cases involving British subjects. We can regard such acts as giving in to British pressure, but that interpretation would miss the generative role of locals, who also imagined legal change as an effective response to the challenge of ordering systems of states.

Pearls and Sovereignty The British Empire arrived late and tentatively in the Pacific Ocean. With some notable exceptions, British merchant activity in the South Seas developed slowly in the face of East India Company claims to monopoly and in the context of existing commercial networks, some dominated by Iberian, Dutch, and French rivals. Naturalists, traders, convicts, and missionaries trickled into the region in the very late eighteenth century, making the Pacific Islands a fount of all kinds of new knowledge—natural, carnal, political, and spiritual.15 The Nootka Sound conventions, global war, and

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the removal of the Company monopoly in 1813 opened up the region to trade as never before. Even then, Britain did not want South Pacific island colonies. Not for a while, anyway.16 These parameters could not prevent agents of the British Empire from meddling in Pacific legal ordering. Moved by stories of naturalist explorers about the fine bearing and the civilizing potential of Pacific peoples, the London Missionary Society (LMS) rushed into the islands in 1797. The missionaries’ enthusiasm for proselytizing in the Society Islands, Tonga, and the Marquesas posed a sharp contrast to their neglect of Australian Aborigines.17 Godliness, it turned out, required a fair amount of constitution writing, so LMS emissaries also busied themselves in a Pyrrhic attempt to make moral order by codifying island law. The sudden growth of British trading hubs in the region produced additional ordering problems. The New South Wales government sponsored the importation of millions of pounds of Tahitian pork to feed the convict colony between 1801 and 1826.18 The pork trade helped to transform power structures among aspiring chiefs in the islands, and in order to keep its trade partners happy, the New South Wales government had to work hard to manage escaped convicts and other British flotsam in the islands. That flotsam had its own ideas about island order. Escaped convicts, whalers, sealers, castaways, adventurers, and, increasingly, traders seeking valuable commodities like trepang (sea cucumbers), sandalwood, and pearls drifted in and out of island communities seeking to trade and live by rules of their choosing. Interlopers transformed island geopolitics, enriching and empowering some island elites at the expense of others, often concentrating political power in individuals in ways rarely imagined before. Sojourners also brought violence, disorder, and venereal disease, providing missionaries with the fi xings of a moral panic that they relayed home with increasing hysteria. Traders joined the chorus of calls for order but to different ends. The claims of aspiring Pacific monarchs to tax trade and to order Europeans sometimes impeded their access to commodities. With depressing frequency, disagreements over access to resources ended in violence.19 Tales of disorder in the Pacific prompted one of the first nineteenthcentury conversations about exercises of British extraterritorial jurisdiction. The New South Wales charter was ambiguous about British claims to the region, asserting that the boundaries of the colony of New South Wales stretched east into the ocean to encompass “all islands adjacent.”20

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Governor Philip Gidley King seems to have read this ambit claim as jurisdiction when in 1801 he ordered Lieutenant Scott of HMS Porpoise to arrest convicts and deserters in the Society Islands. In 1802 King appointed a missionary, Rev. John Jefferson, as a justice of the peace in Tahiti.21 He also sought a good behav ior bond from traders visiting the islands. (A similar bond imposed by Governor Bligh to punish ship owners for smuggling convicts to Tahiti provoked John Macarthur to rebel in 1808.) Governor Lachlan Macquarie expanded the toolkit of Pacific ordering again in 1813 and 1814. He asserted that the islands were under British protection and consequently imposed a good behav ior bond of £1,000 on traders, authorized some ship captains to arrest ne’er-do-wells in the islands, acknowledged the authority of some chiefs to police European interlopers, and sent more justices of the peace to the Bay of Islands and Tahiti. His efforts rested on bluff and credulity rather than authority, however: when a very few malefactors were tried in New South Wales courts, the Sydney magistrates declared that they had no jurisdiction to try Britons for wrongs committed in the islands. At this point Macquarie threw up his hands and joined the LMS missionaries in writing home for assistance.22 The result was a halfhearted parliamentary effort to push British jurisdiction over British subjects into foreign territory. Parliament had two very old models to choose from here. One involved assigning legal authority to British consuls, merchant communities, and companies; another extended British jurisdiction through courts and special commissions. Richard III had appointed a merchant of Florence to settle disputes among English merchants in 1485. This arrangement was reprised in the Ottoman Empire from 1640. A royal charter and a concession from the Ottomans gave the Levant Company power to make laws for the “government of the Company as of other British merchants.”23 Tellingly, these arrangements came under Colonial Office scrutiny in 1812, and again from 1833, when critics pointed out that consuls to the Ottoman Empire wielded little effective jurisdiction over Britons, especially when Britons committed crimes against locals.24 Alongside such arrangements, the British government asserted the jurisdiction of British courts over some actions by British subjects in foreign territories or on the high seas. In 1541 and 1543, Henry VIII’s Parliament had passed two acts bringing murder and treason committed outside the realm within the reach of a specially constituted English commission.25 These acts were extended in 1803 to include accessory to murder and man-

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slaughter.26 In 1817 Parliament commissioned colonial admiralty courts in “any of His Majesty’s Islands, Plantations, Colonies, Dominions, Forts or Factories” to try murder or manslaughter cases brought against Britons “on Land” in the Pacific Islands and Honduras.27 Th is method of extending British jurisdiction faced high hurdles in the early nineteenth-century Pacific. The legislation covered only violence ending in death. It did nothing about other festering causes of confl ict, including breach of contract, destruction of property, theft, and assault. It was virtually unenforceable, too, in distant regions far out of the way of courts; until 1824 the nearest admiralty court to the South Pacific was in Ceylon. Even after the New South Wales Supreme Court was given admiralty jurisdiction, the Act did not provide adequate means to keep Britons in order, because it provided no legal means to arrest wrongdoers. It did not create consular jurisdiction in islands, and the Foreign Office would not negotiate with locals to establish it.28 After 1824, as before, the very few cases against Britons that made it to New South Wales petered out in the courts—a sign to the Home Government of indifference bordering on malfeasance in the colony.29 At the heart of the problem of order in the islands lay the changing nature of island sovereignty. Island monarchs were eager for authority, but the nature and limits of their aspirations were not always legible to chauvinistic Britons. This was so in part because the British encountered island authority structures of enormous variety—the very old, the very new, and those undergoing rapid change. Foreign trade was transforming island orders, allowing ambitious families to make something like monarchies out of chiefdoms, as we shall see. Europeans of every variety promised island governments access to technology, resources, trade partners, and power. The same British actors threatened local order, public health, and efforts at self-determination. In engaging with European interlocutors, savvy islanders had to craft their claims carefully. For example, island monarchs did not always want exclusive territorial sovereignty in the high nineteenth-century sense of the term. Understanding the practical limits of their authority over foreigners, a string of Tahitian rulers in the 1820s even courted some manner of British “protection” of the islands— seeking permission to use the British flag or inviting regular visits from naval vessels to control British and other European aspirants to power.30 Similarly, monarchs claimed authority over adjacent islands in order to

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monopolize access to European trade, but they did not and often could not control the internal politics or external aggressions of their putative subjects. As if island sovereignty was not vexing enough in its own terms, Britons could not agree on its character. Consuls, naval officers, missionaries, and resident traders played an outsized role in constituting British policy in the region—and each produced a vision of island statehood to suit their ends. Some missionaries and naval officers reasoned that legible island monarchs could and should order European sojourners. Others (malefactors in particular) argued trenchantly that they could not be governed by island law. Britons could not even agree how much power island monarchs had over their subjects. Monarchs with extensive jurisdiction were useful to wronged traders who wanted compensation for lost ships and lost cargos. Local jurisdiction was much less useful when it limited access to pearls or other tradable commodities. These various interests came into contact when, in the summer of 1831 or 1832, a British subject named George Ward Cole sent the brig Dhaulli to the Society Islands on a pearling mission. Cole had been a lieutenant in the Royal Navy and now lived in the island of Woahoo in the Sandwich Islands (Hawaii). The Dhaulli sailed under the Sandwich Islands flag to an uninhabited atoll in the “dangerous” or “low” islands in the enormous Tuamotu island chain. The brig could not access the shallow pearl lagoons of the atoll, so the crew of the Dhaulli dispatched a small schooner, the Truro, to gather pearls while the brig sailed to a nearby island for provisions. When the Truro was out of reach of the brig, a raiding party of Chain Islanders (from the island of Anaa) attacked. One version of events penned by missionaries stationed on Tahiti stated that Chain Islanders killed most of the crew of the Truro before giving the schooner back to the master and mate, who sailed it to Tahiti. Undaunted, the unlucky pair sailed the Dhaulli and the Truro to another “Low Isle” in search of pearls. This time Chain Islanders captured the schooner, hauled it onto land, and burned it. They put the master and mate to sea in a leaky whaleboat. Forced to ground on a nearby island, master and mate were immediately killed.31 Meanwhile, unknown parties attempted to capture the Dhaulli and detained most of its crew on shore.32 Missionaries were particularly troubled because the attacks on the Dhaulli were not isolated incidents. British ships visiting the Society Islands had come under attack intermittently since 1802. Violence against

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A. Findlay, “Oceanica,” in Modern Atlas . . . (London: T. Tegg, 1843). Image reproduction from author’s collection.

foreign pearling ships was increasing in the 1820s. Just a few months after the attack on the Truro, Chain Islanders assaulted the barque Pomare at Bow Island. British merchants had also sponsored that expedition, which sailed under Chilean colors from Valparaiso. Captors spared the crew, but missionaries and merchants feared that the Chain Islanders had set a pattern of predation that only British intervention could break. The missionaries told a visiting naval captain: “It is our opinion that unless a check be given to these proceedings the evils will increase. We most sincerely hope that from the statement you will be able to give of the evils that frequently arise in this part of the world, the British Government will be disposed to send a Ship of War at least annually to settle these difficulties and protect British Subjects, and British Property.”33

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As sponsor of the Dhaulli, George Cole wanted compensation. He contacted the British consul, Richard Charlton, who also lived in the Sandwich Islands. Charlton set about “demanding satisfaction for outrages committed on the persons and property of British Subjects.”34 Like the missionaries, Charlton reasoned that “if no notice is taken of this outrage . . . in a short time no flag will be a protection to vessels visiting those islands.”35 But who could or should be held to account for attacking British subjects in a ship sailing under the Sandwich Islands flag in a lagoon adjacent to an uninhabited atoll in the Tuamotu Islands 300 miles from Tahiti? Who could settle difficulties encountered by merchants there? Answers were complicated. Atoll lagoons were subject to a variety of islander claims—some ancient, some modern. Europeans had first noted the widespread use of pearl shell in local jewelry and tools in 1722, and subsequent travel narratives reported sporadic confl icts between local and European-sponsored pearlers—conflicts that suggest sustained, local claims to the lagoons.36 Tuamotu pearling lagoons may already have been objects of conflicting claims at the time of contact. But struggles over access to the pearl lagoons certainly intensified when islanders themselves started to harvest pearls for trade with Europeans.37 Some combination of European trade and local ambition had led the Chain Islanders into protracted conflict with their Tuamotuan neighbors over pearl fields.38 By the 1830s the people of Anaa “owned more canoes than all other islands combined”39 and “had subjugated most of the atolls in this part of the group.” 40 The rise of the Pomare dynasty in Tahiti further roiled disputes over the pearling fields. The power of the Pomares in the Society Islands sprang in part from the complex genealogies binding various clans in the island cluster. Sustained European contact radically augmented that power. From their first arrival, Europeans figured in the political ambitions of aspiring Tahitian chiefs. Captain Wallis thought he had met the queen of Tahiti in 1767, but he had only met a very ambitious young woman called Purea, who planned, with her husband Amo, “to establish their son Teri-i-reree as the most highly titled and the most politically significant figure on Tahiti.” The pair used Wallis’s spectacular strangeness—his flags, bits of his clothes— to undergird their growing prestige.41 The first Pomare, Chief Tu, thwarted these ambitions. He, too, used European artifacts (including someone’s red hair), along with the savoir faire provided by communities of European beachcombers aggregating in Tahiti, to overstep traditional limits on

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chiefly authority.42 The dynasty’s power was also fed by the pork trade with New South Wales, which the Pomares sought to monopolize by claiming pork as tribute from nearby islands.43 Not surprisingly, their demands for tribute met opposition: clans on Tahiti and proximate islands combined to depose Pomare II between 1808 and 1815, with the tacit encouragement of local missionaries critical of his growing despotism.44 The same missionaries had a change of heart when Pomare changed his religion. In return for missionary support, Pomare II forcibly converted the inhabitants of Tahiti and nearby islands to Protestant Christianity in 1812.45 Missionaries then sent about drafting a constitution that consolidated the Pomare dynasty’s power at home and cast the Tahitian polity as a state legible to European and Pan-American interlocutors (many of whom were busy writing constitutions of their own). The 1819 constitution redefined existing island authorities in interesting ways, craft ing an executive government and transforming subordinate chiefs into governors or judges charged with keeping the peace.46 Tahitian state-building efforts included the drafting of laws that required visiting ships to pay taxes and that regulated the activities of all Europeans who sojourned in the islands. If distant admiralty courts could not keep British drifters in line, Pomare and his missionary allies reasoned that the Tahitian monarchy should. Other Britons disagreed with the missionaries’ ideas about Tahitian statehood. When the English whaling ship Venilia arrived in Tahiti in late 1831 and its captain tried to leave thirteen recalcitrant sailors behind, the Tahitian governor objected, pointing to two local laws passed by King Pomare. The fi rst stipulated, “No Commander of a vessel is to discharge any seamen, without permission from the Governor of the place, under a penalty of thirty Spanish dollars” and established criminal penalties for deserters and their accomplices. The second added a system of compulsory pilot fees and port fees for all ships visiting the islands of Tahiti or Eimeo.47 The captain said that he “would not regard the law” and refused to either reboard the mutinous sailors or pay the penalty fee. He would not even leave a record of the crimes of which “these mutineers” were accused. After a string of confusing and apparently disingenuous discussions, the ship departed without the crew, and with its bills unpaid.48 This incident displayed the inefficacy of both island and British law. The whaling captain and Tahitian resident Joshua Hill warned the captain to no avail that it was “by no means agreeable to the laws of Britain that you should discharge, or

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in any manner turn away, your men in a foreign land.” 49 Enforcing island law over Europeans had much more disastrous consequences just a few years later. When George Pritchard (a missionary and soon to be British consul) convinced Queen Pomare to expel French-sponsored Catholic missionaries from the American consul’s house, he precipitated French compensation claims so large that the queen had to surrender the island to French “protection” in 1843 to avoid bankruptcy or war.50 Islanders and missionaries in older power centers like the islands of Raiatea and Huahine had different ideas again about the scope of Tahitian sovereignty.51 Missionaries Charles Barff and Lancelot Threlkeld complained about Tahitian efforts to monopolize the pig trade from the islands. In 1822 Threlkeld also lamented Pomare II’s attempt to wrest control of the islands by sending “native preachers . . . to govern in the church.”52 The missionaries helped their flocks on Raiatea and Huahine to draft their own constitution and laws bolstering the islands’ precontact claims to spiritual and political preeminence, and to build local institutions of governance parallel to (and largely independent of) those of the Tahitian Crown.53 Their efforts had an impact: Consul Charlton confirmed the independence of Raiatea and Huahine in an 1826 letter to Canning. The same year, the American Catesby Jones, captain of the Peacock, signed separate treaties with Raiatea, Huahine, and Tahiti.54 The Chain Islanders who attacked the Truro had much stronger political bonds to Tahiti, though they lived much farther away. The Tahitian word for the islands, Tuamotus, means “distant.” However, in 1830 the islands were also called the Paumotus (subservient or conquered).55 They had very recently acquired this status. Pomare II had visited the Tuamotus in 1810– 1811 (one of his many breaches of tapu) in a vessel constructed and manned by Eu ropean beachcombers.56 After his return to power in Tahiti, he offered asylum to warrior chiefs expelled from Anaa for warmongering, then sent them back, evangelized, in 1817—adding Christian proselytization to his growing political sway. In 1820, at an inter-island conference, Pomare II brokered peace in the island and “is said to have assumed government of the eastern Tumatus.”57 He then sent relatives to “govern” the islands of Anaa and Taravaia. Anecdotal evidence suggests that these men controlled and taxed some centers of pearl harvesting, sending tribute to Tahiti.58 In a letter to Canning in 1826, Charlton claimed that Tahiti, Eimeo, the Chain Islands, Teteroa, and Miatea were “subject to Pomare.”59

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The growing international demand for pearls and sea cucumber— “Biche-de-mer (an article of great demand in China)”—strengthened the urgency of the Pomare dynasty’s claims to the Tuamotus in the mid-1820s.60 Frederick William Beechey, Captain of HMS Blossom, reported in 1825 that Queen Pomare, “seeing the estimation in which the pearl oyster-shells were held by Europeans, imagined that by levying a duty on them she would greatly increase her revenue.” She ordered “all the tributary islands to seize every vessel trading in shells, which had not previously obtained the royal license to procure them.” 61 According to Beechey, Chain Islanders sacked the brig Dragon in 1825 in pursuance of this order. In response, Charlton demanded that the queen pay compensation and immediately repeal the law. In his account of the episode, Beechey noted that “Her majesty was exceedingly unwilling to abandon this source of revenue, and strenuously urged her indubitable right to levy taxes within her own dominions, maintaining her arguments with considerable shrewdness, and appealing finally to the chiefs.”62 However, with HMS Blossom in harbor with its guns trained on the capital, the chiefs supported the consul, and the Tahitian ruler had to yield. With protests and “tears,” the queen ordered Chain Islanders “not to molest or interfere with any ships or vessels visiting the Paumotu Islands for the purpose of trading, procuring shells, refreshments, or other wise, but to give them every assistance in your power” and to refer any disputes “to the authorities at this place.” 63 When the Chain Islanders attacked Cole’s crew in 1831, Charlton assumed that the queen had reneged on her promise.64 The British consul’s demands illustrate the contradictions within British views of island sovereignty. By demanding that disputes between Chain Islanders and British pearling vessels be referred to the authorities at Tahiti, Charlton assumed that the queen exercised authority over Chain Islanders and / or the pearl lagoons of uninhabited atolls in the archipelago. In contrast, by demanding that she repeal her law authorizing the use of force to raise taxes in the lagoons, he suggested that the queen’s territorial and maritime jurisdiction extended only over Tahiti and its immediate environs; she had no right to make law for an uninhabited island “upwards of 300 miles to the east-north-east of Otaheite.” 65 By the time he arrived in Tahiti in 1834, Charlton had developed broader demands. He not only insisted that the queen “immediately withdraw all your orders given either verbally or in writing, relating to vessels trading to the low islands [the Tuamotus].”

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He went on to assert generally that “no right of levying a tribute upon the trade of His Majesty’s (the King of Great Britain) subjects will ever be allowed, nor will any hurt, hindrance, or molestation toward them be permitted to take place with impunity.” Nor did the chief of Otaheite “have any just right to prevent vessels from visiting it or any of the islands in the Dangerous Archipelago.” 66 The atolls remained outside the reach of Tahiti and part of the ocean commons, to be plundered by all. Captain Hill, who interceded in the affair in the clear hope that someone would give him a formal consular appointment, was also fi rmly of this view. In an 1832 letter he drafted for Captain G. L. McMurdo of HMS Zebra, Hill demanded to know “upon what authority and right, if any, does the Tahitian Government usurp the intire trade among the said ‘lo & chain Islands.’—to the prejudice, to say the least, of its best friends and protectors, the English? Again, allow me to ask, upon what ground does the Tahitian government grant licenses, to A.B.C. to trade exclusively among the Said ‘low islands.’ I am authorised therefore, to inform your Majesty’s Government through me, what has already been done upon a former occasion, by Captn Beechey, R.N. that these being illegal acts ought not—nay must not, any longer be tolerated.” 67 Curiously, Captain McMurdo did not pass this letter on to the queen. Like most other naval officers embroiled in the affair, he was more interested in using Tahitian authority to keep inter-island order than in extracting compensation. McMurdo and his colleagues pressed the queen to treat the Chain Islanders as pirates and to exercise sovereignty in the form of domestic criminal jurisdiction. Even the inconsistent Hill seemed to share this point of view to some degree. His letter to the queen demanded that she investigate the matter and, more importantly, that she keep the “chief or King of the Chain Islands . . . who, I understand, is at this time on Tahiti, may be kept with you” as a hostage until Hill could travel with the Zebra to the Chain Islands to investigate the crimes and bring the perpetrators to justice.68 McMurdo’s much kinder note to the queen enjoined her to “seek diligently into that business, that the offenders might be brought to justice . . . try the offenders, and thereby show to the British Government your zeal to punish all pirates.”69 The queen promised to send a vessel to the islands as soon as it was built to bring “the offenders . . . to Tahiti” to be “judged by the laws of my land, and punished accordingly.”70

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Still the queen delayed. Six months later, Captain Freemantle threatened that if she did not investigate, the English king would think “it is with your consent these piracies are committed.”71 Captain Freemantle wrote home something quite different: “I am satisfied that the Queen Pomare would put on board any man-of-war visiting the islands some of her chiefs, to assist in apprehending the offenders, and they could be brought to Tahiti to be tried by its laws; at present, I think, whatever her wishes may be, that she has not the power to do what she has promised.”72 Some time between 1832 and 1834, when Charlton arrived in Tahiti to demand that the queen relinquish authority over the islands, a number of Chain Islanders were brought to Tahiti and tried for murder. After the court convicted the prisoners, the queen promptly pardoned them—events that annoyed Charlton and served to confirm Freemantle’s suppositions about the limits of her jurisdiction.73 On Charlton’s demand in 1834, the queen agreed to “withdraw my government of those islands, and take back my laws. I cast them all from me, that their misconduct may not be imputed to me.” What is more, she renounced any privileges of tribute, declaring that “should Tahitian vessels go to the Pamoutu Islands . . . [they] shall not use any influence among the Pamoutuans to induce them to fill the Tahitian vessels in preference to others. It is by giving property that the shells will be obtained . . . not by my power or authority.” She also relinquished jurisdiction over the pardoned murderers—offering to hand the pirates to the Seymour and Charlton to “hang them on board your ship, or take them to England and hang them there.”74 Several years later Captain Fitzroy reported seeing piles of pearl shells in the ports of Tahiti, suggesting that, whatever she told Charlton, the queen continued to collect tribute from the Chain Islands.75 What can we make of this inconsistent swirl of British attempts to shape Tahitian legal authority? The murder case and its jurisdictional tangles reveal the stakes involved in sorting out lines of legal authority in the archipelago. The extent and nature of jurisdiction over Europeans composed just one element of a broader set of issues involving the reach of Tahitian law and the methods by which British agents might seek to shape the regional order. British agents regarded propping up Tahitian rule as desirable, but only up to a point. They desired legal mechanisms for limiting Tahitian authority in nearby islands while leaving open the possibility that Tahitian law might serve selectively to counter threats to British interests. The

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British government sought legal dominance without legal responsibility. J. M. Ward asserted that this strong endorsement of Tahitian sovereignty was cynical, crafted to allow the empire to bully islanders into compensation while abdicating responsibility to stop its own beachcombing population from disturbing the peace on the Pacific Islands.76 Jane Samson has argued that the men who tried to implement this approach—British naval officers—were often deeply invested in the welfare of islanders.77 Yet neither cynicism nor humanitarianism can fully explain Britain’s approach to island sovereigns from the 1820s. British Pacific policy mirrored its post-Napoleonic preoccupation with lawfulness across the globe. Missionaries, merchants, captains, and consuls disagreed at times about how to strike the balance, and Tahitian rulers and Chain Islanders had their own ideas about justice and the limits of British influence. All parties recognized that the regional order under construction was comprised of pervasive British influence and persisting, if sometimes novel, local sovereignties. The new order (barely imagined before it collapsed into a European and American scramble for colonies, protectorates, and condominiums) relied on a peculiar view of island sovereignty. It diminished the queen’s authority in relation to other islands; reinforced her status as the head of a state less powerful than, but still independent of, the British Empire; and held her, and not British agents, responsible for regional order.

New States Upriver The prospect of opening Latin American markets to British trade in the early nineteenth century prompted a frenzy of activity of merchants and investors that dwarfed British incursions into the South Seas.78 The economic historian D. C. M. Platt argued several decades ago that the excitement amounted to a speculative bubble. Disappointed merchants wrote home about being stranded with their wares in Latin American port cities, where elites had disappointingly little money to spend on mahogany furniture and pianos.79 Mining expeditions chased invisible deposits in the Andes and returned home with nothing to show for their efforts.80 The multisided wars wracking the region created dangerous conditions at worst, and high transaction costs at best, for merchants who had to pay for safe

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passage for themselves and their goods if they wanted to seek elusive markets in the interior. Even without such expenses, the costs of moving goods along rough roads to remote towns where there was little buying power discouraged many English merchants from straying far from limited coastal markets. According to this narrative, informal empire in Latin American began with all the glamour of an unsuccessful foray of peddlers into a poor neighborhood.81 Scholars have already argued that this image—of frustrated British penetration of a backward area—does not do justice to the region’s integration into global markets.82 Debates about the appropriateness of the label “informal empire” take up this issue but cannot account for the rich interplay of Latin American state making with British global legal reform in the period.83 It is important to view the project of Latin American “independence” as unfolding within a shift ing regional framework, one that reflected open-ended processes of imperial adjustment as much or more than programs of nation-state formation.84 The period marked a moment of possibility in which political configurations later viewed as “incoherent” represented seemingly viable ways of organizing sovereignty.85 Iberian and Latin American liberalism flourished in this context alongside monarchism and neo-authoritarian experiments. Republican visions built on structures of colonial and imperial bureaucracy, including and especially systems of law. Some strands of influence reflected continuities of late Scholastic thought; others responded to the imperial sections of the constitution drafted by the Cádiz Cortes during the Peninsular War; others drew selectively from  U.S. constitutional discourse; and still others emerged from local reformist projects that, as one historian has observed, were “animated by a profound desire to avoid revolution.”86 South American leaders found advantage in this flexible approach to sovereignty.87 Even without belonging formally to confederations, provinces could cohere for international purposes: the United States and Britain lumped together newly formed Latin American states by declaring them belligerents in a civil war with Spain. At the same time, some foreign interlocutors and some South American elites located sovereignty in port cities. Arrangements about trade also stood in for political recognition. The British government would not formally recognize new Latin American governments, yet it signed commercial treaties awarding de facto recognition to polities-in-formation, such as the government seated in Buenos

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Aires, which had aspirations to build a regional empire but functioned chiefly as a trading port with an uncertain grasp on its immediate hinterland.88 The circulation of constitutional and revolutionary documents from the United States, France, and Haiti, together with a wealth of commentary on Enlightenment ideas about governance, influenced leaders’ arguments and actions. But no one possessed a clear guide to the political character of new states. Latin Americans had to improvise in assigning state capacities to new republics, in interpreting meanings of “confederation” and “federalism,” and in negotiating with existing, powerful empires. These conflicting forces, and their global imprint, were on bright display in the Río de la Plata throughout the early nineteenth century, especially in political developments under the leadership of José Gervasio Artigas in the Banda Oriental. In the territory on the east bank of the Río de la Plata that would later become Uruguay, Artigas mobilized gaucho and popular forces to pursue open-ended political goals. In the process he contributed to the suppleness of sovereignty talk in the region. That flexibility is especially clear in the “Instructions” Artigas issued to delegates to a Constituent Assembly called by a transitional government in Buenos Aires in early 1813. The twenty articles of Artigas’s Instructions sought to define the relationship between “pueblos” and provinces, among provincial governments, and between the Provincia Oriental and the outside world. Drawing from a variety of U.S. constitutional documents, the text announced the independence of the colonies from Spain and sought to establish the Banda Oriental’s own government, the Provincia Oriental, as a sovereign entity.89 It stated that the Provincia Oriental would retain all sovereign capacities not assigned to the United Provinces and referred to the pact among the provinces as a “firm league of friendship.”90 The language of confederation favored by Artigas grew out of the language of empire. Spanish political theory had developed within a composite monarchy and regarded sovereignty as residing in subjects who were entitled to assume sovereign capacities in the absence of a legitimate ruler.91 Artigas took this line of thought to its logical conclusion in insisting that “los pueblos” formed the foundation of the emerging political regime. He instructed one delegate that the “particular sovereignty of the pueblos will be explicitly declared and sustained as the singular object of our revolution.”92 The phrase “pueblos libres” referred simultaneously to an abstract principle (“ free peoples”) and to the political importance of the settlements

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G. and J. Cary, “Carta geographica que comprende los rios de la Plata, Parana, Uruguay y Grande y los terrenos adyacentes” (London: G. and J. Cary, 1827). Image reproduction © The British Library Board (Cartographic Items, Maps, CC.5.a.383).

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(“ free towns”) that together composed the political community of the province. Even the smallest settlements could become repositories of the sovereignty residing in subjects if ties to the monarch were dissolved. The insistence on this possibility formed the basis for the movement’s opposition to the centralization of power in Buenos Aires.93 The same principle meant that small political units might nestle within larger political formations—provinces, confederations, states, or empires—and they might also achieve recognition on their own. External capacities such as war-making or foreign relations could inhere in political units as small as towns without challenging the legitimacy of confederations and empires.94 These views of sovereignty corresponded to the open-endedness of political change in the region. Leaders like Artigas who became figures in national origin stories were operating with ideas that—much like the federalism of the new United States—had evolved out of empire and emphasized familiar structures of divided sovereignty within new constitutional frameworks. They fought local, decolonizing wars without prophesying the demise of a world of empires. Flexible strategies matched this expectation. Artigas simulta neously sought confederal alliances with the riverine provinces of Entre Ríos and Santa Fe; represented the Banda Oriental as a sovereign entity; strengthened institutions of rule inside the province; fought to repel Portuguese invasion; opposed the centralization of power in Buenos Aires; and warily courted commercial relationships with British traders.95 The sheer inventiveness of his political maneuvering is stunning. Consider as an example Artigas’s enthusiasm for issuing privateering commissions on behalf of the Banda Oriental, an entity with no navy and, for much of its history, no deepwater port. Artigas sought to disrupt Portugueseflagged shipping, and he found a healthy demand for his commissions among mariners sailing under the flag of the United Provinces government in Buenos Aires who wanted legal cover to attack Portuguese ships.96 In 1817 Artigas supplied a cache of blank commissions to Thomas Lloyd Halsey, the United States consul in Buenos Aires, no doubt in the hope that Halsey would provide the commissions to mariners in U.S. ports and thus intensify the disruption to Portuguese trade. Halsey obliged. Commissions signed by Artigas as “El Jefe de los Orientales y Protector de los Pueblos de la República Oriental” began to circulate widely in the Atlantic world.97 Even after Artigas fell from power, mariners used these documents to good

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effect in prize courts far from the Río de la Plata. Much more than a gaucho commander, Artigas was positioning the Banda Oriental as a sovereign entity through maritime warfare and “lawfare” while enfolding it into multiple confederal, local, and regional formations.98 Trade was another mechanism for asserting contingent sovereignty. Artigas and other leaders in the region understood that control of trade— especially command over maritime and riverine routes—constituted the primary mechanism for gaining political power and rewarding followers. Up and down the Río de la Plata basin, port elites vied to attract foreign trade, and the duties it produced, in order to reinforce local political prestige. At the river’s wide mouth, the deepwater port of Montevideo and the shallow but politically stronger port of Buenos Aires competed for Atlantic and upriver trade, while Brazil claimed the natural extension of its territory to the banks of the river. The allure of trade on the region’s rivers contrasted with the poverty of actual commercial prospects. The mouth of the Río de la Plata was the widest in the world, but only small vessels could navigate its narrow channels or call at its sandy river ports.99 And although Paraguay eventually opened an alternative trade route through Brazil, the most profitable export from the interior remained yerba mate, which had not caught on in European markets, and hides, whose supply was hardly reliable. Conflicts between city and hinterland, and between Montevideo and Buenos Aires, continually disrupted trade, and the reliance on the river brought its own dangers because upriver traders depended heavi ly on downriver ports, which could easily block traffic in either direction. British merchants were key pawns, and also key actors, in this regional struggle. They reported their trials and tribulations to London officials and penned public accounts in an effort to align British foreign policy with their interests. The writings of two Scottish traders, John and William Parish Robertson, are prime examples. The brothers sent home embellished, if not partly invented, tales of trade along the river from the 1810s that played on familiar themes of petty despotism to advocate implicitly for British supervision of regional trade. The Robertsons noted with characteristic exaggeration that “Artigas, without having crossed to the western side of the Paraná, [had] obtained jurisdiction over nearly the whole territory between that river and the eastern base of the Andes.”100 They described the tangles of influence they had to negotiate in order to gain commercial

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advantage. On sailing upriver from Buenos Aires, John Parish Robertson had obtained a sailing license from the British naval commander in the River Plate, Captain Jocelyn Percy, expecting that it would provide protection from Artigas since there was no state of war and Robertson was “a neutral and private individual engaged in commercial pursuits.”101 Echoing Artigas’s own endorsement of pueblos’ sovereignty, Robertson imagined he was entering into a place where every “ little town succeeded in achieving its own petty independence . . . at the expense of all order and law,” and he found himself searching for a guarantor of his safety and ability to trade. Having won (by his own account, we must remember) and then lost official welcome to trade in Paraguay, Robertson solicited protection from Artigas and one of his followers, an Irish-born deserter from the British invasion force of 1806–1807.102 The Robertsons claimed that they used their license from Artigas to build a profitable riverine trade in hides from Corrientes, and then Goya, stimulating the production of hides by extending cheap credit and paying higher prices than competitors. When their trade of goods and gold from Buenos Aires to exchange for the hides generated a significant surge in duties, they claim to have enriched powerful men in Corrientes and positioned the town as a more significant political broker on the river.103 Part self-serving adventure story and part cautionary tale, the Robertsons’ boastful accounts of their upriver commercial empire depicted a chronically unruly Río de la Plata in which multiple regimes of authority competed. British merchants like the Robertsons were happy to navigate the overlapping regimes of rule so long as those regimes served their interests.104 When they did not, traders vilified caudillos as tyrants. In doing so, they used familiar strategies: conflating the arbitrary justice of provincial rulers with their stranglehold on trade to invite imperial intervention. Recalling their need to purchase Artigas’s protection, the Robertsons described his “lawless sway” as he “robbed, pillaged, [and] plundered” across the region.105 The Robertsons reserved their harshest judgments for Paraguayan head of state José Gaspar Rodriguez de Francia y Velasco, portrayed by them for their British audience as a “capricious and jealous tyrant” responsible for casting a “despotic gloom” on a land of promise.106 The Robertsons denounced Francia’s wavering policies on trade: “On some frivolous pretext [Francia] would declare the port of Assumption to be rigorously shut, and all active trade was immediately para lyzed. With as little osten-

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sible cause he would, after a season, open the ports.”107 There were wrenching stories, too, about arbitrary criminal judgments and punishments of Francia’s political foes, including the internal banishment of foreign merchants and the imprisonment of the established commercial elite. The implication was that arbitrariness was a vice that infected criminal justice as well as commercial policy: “The prisons were groaning with their inmates; commerce was paralyzed; vessels were rotting on the river-banks, and produce going to decay in the warehouses.”108 Such stories of abuse allowed British observers and their audiences at home to generalize about caudillos, whose power posed dangers to enterprising British merchants through instability and capriciousness, and through reliance on uncouth and volatile militants.109 Historians usually recount that, in the face of such dangers, the British government gradually developed and applied a policy of supporting free trade in the region through military action, reproducing in the Río de la Plata a posture that would soon become a signature of the British government under Palmerston.110 The story has a satisfying arc that moves from the first frustrating attempts to build commercial empire along the river system to free trade’s denouement in a botched Anglo-French expedition to open commerce on the Paraná River in the early 1840s.111 But British policy in the region was not so coherent, and to the extent that it had clear aims, the British favored regional stability over “the imperialism of free trade.”112 In par ticu lar, the claim that British intervention aimed at protecting the free navigation of the rivers requires a closer look. Although British merchants relentlessly criticized caudillo justice, the British government valued and cultivated strong local governments. Free trade made sense for the British executive only when combined with a concern for law and order—not mere orderliness but legal conditions that reassured British subjects that their property and persons would not be endangered as they moved across borders.113 The British appetite for order often matched local tactics and aspirations. For Britain, as for aspiring polities in the region, the goal of erecting a political framework conducive to commerce depended not on an abstract or generalizable right to trade but on creating the conditions to offset Argentine ascendance, neutralize French and Brazilian influence, and appease British creditors.114 No one knew what sort of political order could deliver these results. Federalism, political autonomy inside imperial spheres

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of influence, resurgent monarchist schemes, and the creation of formal protectorates or even formal colonies—these alternatives presented themselves to South Americans and Britons alike, and at every moment during the chaotic “wars of independence” the outcome was far from certain.115 British traders advocated for inconsistent solutions to the escalating regional crisis in the second quarter of the nineteenth century. After the Portuguese invasion of Montevideo sent Artigas into exile in 1820, Portugal, Brazil (after 1823) and the United Provinces of the Río de la Plata struggled to dominate the Banda Oriental. National histories in the region often focus on the mobilization of horse-riding gauchos and attempts to consolidate national institutions, but privateering and naval blockades produced the most interesting international conversations about sovereignty and order.116 The conflict between the United Provinces and Portugal that erupted in 1826 over the Banda Oriental began with a Portuguese blockade of Buenos Aires. The naval retaliation of the United Provinces included privateering that ensnared significant numbers of British ships. Even after the treaty with Brazil, correspondence with British agents was full of references to captures and demands for restitution. The British consul, Woodbine Parish, repeatedly registered objections to rampant sea raiding and presented demands on behalf of mariners filing complaints with his office.117 The conflict ended in a British-brokered truce between Brazil and Buenos Aires in 1828 that led to the creation of the independent República Oriental del Uruguay. Uruguay then became a crucible of conflict. The federalist Juan Manuel de Rosas’s assumption of extraordinary powers as governor of Buenos Aires in 1829 opened a period of maneuvering by the French and British governments to force the dictator into treaties ensuring Uruguayan independence and the protection of foreign rights and commercial interests. Blockades tempted all sides. Controversies over the treatment of French nationals in Buenos Aires and demands, supported by Britain, for restitution prompted a French blockade of the port in 1835. As France pressed a defiant Rosas for concessions, Britain complained about the effects of the standoff on British commerce. Over 300 merchants in England signed a petition objecting to the blockade. It is difficult to miss the hy pocrisy of British objections to a tactic the British government had often embraced.118 British merchants blamed France for their losses, but a French settlement with Rosas did little to calm the region. Confl ict continued to center on

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Uruguay; a faction backed by Argentina warred against another sequestered in Montevideo and supported by a coalition of foreign groups. British legal pressures operated on two fronts. In the region as a whole, the British government unsystematically groped toward a regulatory order that would end disruptions wrought by the routine reliance on two perfectly legal tactics: privateering and blockade. In Montevideo and Buenos Aires, merchants hectored British agents to intercede to secure their property and transactions. Britons in Buenos Aires called for diplomacy rather than force in order to end the French blockade, and to protect British property from its ramifications. Merchants remonstrated in 1845 “against any measure calculated to impair the position we at present enjoy.” They protested, “Some of us have resided for a great number of years and to all of us during the period of our residence in this country the most ample, generous and efficient protection has been afforded and especially so during the administration of His Excellency Brigadier General Don Juan Manuel de Rosas Governor and Captain General of this province.”119 Factions within Uruguay joined British merchants in calling for a very different British intervention in the region. Some appealed to the British government to take on a more formal role by assuming the status of protector, imperial overlord, or proprietor of a port on Uruguayan territory. Samuel Fisher Lafone, a Liverpool merchant who transferred his interests from Buenos Aires to Montevideo, envisioned forming a riverine federation as a British protectorate, a slightly distorted Artiguista fantasy of federation.120 Uruguayan ministers, it seems, made similar overtures to the French, asking them also to become Uruguay’s protector and to take on joint occupancy of the Banda Oriental.121 The appeal to European empires to protect Uruguay is not one that features prominently in Uruguayan national histories. But the requests help us puzzle through what sort of regional legal regime was taking shape. Remembering Artigas’s fluid strategies, we need to understand the request as something more complicated than an offer to cede sovereignty. The British government wanted to intervene to restore regional order, but it was not looking for protectorates: it was operating with a vision of regional order policed by an array of functional and independent states. To this end, in 1845 the Earl of Aberdeen, then Foreign Secretary, instructed Britain’s “minister” at Buenos Aires, William Gore Ouseley, to work to contain the power of Buenos Aires. Aberdeen made it clear that preserving the

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independence of Montevideo against “the interference of a foreign power” (here, Buenos Aires) might warrant military intervention.122 However, he also noted explicitly that forcibly opening the Río de la Plata or the Paraná River to trade was not a legitimate military project. Free navigation of the region’s rivers would be a great boon to Britain, but it was “only indirectly connected with the chief object of our intervention,” and “H.M’s Govt are not at present prepared to recommend that, in the event of Genl Rosas refusing to recognize the free navigation of the Tributaries of the River Plate, the Combined Forces should on this account alone occupy those Rivers, for the purposes of maintaining the Freedom of their Navigation.”123 Aberdeen’s weak resolve could not control events on the ground. Ouseley had been dispatched to act in concert with Baron Deffaudis from France to negotiate a peace among General de Rosas, Montevideo, and the townships of the Uruguayan hinterland. Ouseley was authorized to blockade Buenos Aires if the mission failed. However, as in so many other places, commissioners far from home made crucial decisions about British (and, in this case, French) policy that did not conform with their instructions. Once in Montevideo, Ouseley despaired of winning over the willful general. Instead he and Deffaudis hatched the plan of sailing up the Paraná River in a convoy of naval and merchant ships to open riverine commerce and direct it through Montevideo in order to save the besieged city from ruin. Merchants in Corrientes helped the cause by requesting British intervention “in their favour.” News from Paraguay also suggested that the upriver polities were eager to trade and might join forces against Rosas.124 Distressed merchants and eager Paraguayan traders enabled Ouseley and Deffaudis to claim that their “expedition into the Parana is exclusively commercial” and did not bear a “political character.”125 The long trip upriver brought more confusion in its wake. As if consoling the ghost of Francia, the mission arrived in Asunción ready to recognize Paraguay. But one of the conditions the Paraguayans proposed was that Britain guarantee free navigation on the Paraná and Paraguay Rivers, as well as Paraguay’s independence from Argentina. This was precisely the sort of bargain the British government had been studiously avoiding, so no treaty resulted. Treaty or no, the fift y merchant ships that joined the naval convoy upriver did a good deal of trading, and a considerable bulk of trade persisted in the decades that followed.126 The convoy, in Ouseley’s telling, destroyed thousands of Argentinian defenders, but the impact of the expe-

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dition on Argentine politics is unclear. In the short term, it made Rosas dig in further. He would neither recognize Uruguay nor admit language affirming anything other than sole Argentine control of river navigation. To general alarm, Rosas declared all foreign ships on the river to be pirates.127 In the medium term, the expedition eroded Rosas’s prestige and hurried his fall from power.128 But the outcome is not the point. The episode reveals the degree to which imperial policy was predicated on incubating states, not on forcibly opening rivers. Aberdeen wrote to Ouseley with “anxiety” about the engagement, not “from any doubt as to the power of the British and French Force employed . . . but because Her M’s Govt wished to avoid the carry ing on of Active hostilities against the forces of Buenos Ayres in waters which are subject solely to the Argentine Confederation or over which the State of Uruguay at least has no claim of jurisdiction.”129 While acknowledging that “the large amount of Property which is said to be locked up” in the Paraná is of “great importance to British interests,” Aberdeen concluded that Ouseley’s expedition bore “the character of an aggression upon the territory of the Argentine confederation.”130 This was less a change of policy than an endorsement of a core tenet of British notions of global order. Soon after, seizing an opportunity to criticize the former government, Palmerston groused that even the initial blockade of Buenos Aires had been “from the fi rst illegal” because “blockade is a belligerent right” and the states were not at war.131 Ouseley was recalled and the British recanted. There was little muscular rhetoric about a goal of free navigation; in fact, treaty terms that Palmerston’s Foreign Office now offered to the states arrayed along the river specified the shared control of navigation.132 The 1845 expedition has been read as a simple instance of British and French military intervention to protect European commerce and free trade: in 1824 George Canning said free Spanish America should be “English” and that, a few missteps notwithstanding, the navy made it so.133 The reality is more complex and more interesting. To be sure, the ultimate objective of the British Foreign Office was to support and protect British commerce. But the river expedition’s first objective was to solidify polities whose existence would splinter Argentine power and multiply havens for British merchants. The imagined result was an archipelago of riverine states, preferably with Montevideo as its hub. In the course of the ad hoc development of this policy, the British government rejected overtures to create a

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formal protectorate and blocked the French from considering the same move. British consuls continued, meanwhile, to advocate on behalf of merchant communities with strikingly different interests. The resulting regional regime would be politically plural. It had to be. The pattern reflected not just British preferences but also the long-standing South American penchant for shaping splintered sovereignties into an antidote and a complement to imperial power.

Conclusion If the British Empire transformed law within its boundaries, it also played a role in constituting polities outside those boundaries in places as different as Uruguay and Tahiti. British agents—merchants, missionaries, naval officers, escaped convicts, and consuls—extended British influence without endorsing or expecting the implantation of British jurisdiction. They favored a policy of not just permitting but also promoting the sovereign claims of small and new states. At the same time, British power tilted against alternative regional hegemons by blocking their jurisdictional reach and insisting on the autonomy of weaker states. The result in the Río de la Plata and in the Society Islands—and in other politically plural regions like the West African coast and the Persian Gulf—was the construction of a diffuse imperial presence, a legal force field rather than a jurisdictional net. British agents, formal and informal, pressured sovereigns to order not just their polities but also their neighborhoods.134 Bringing British influence over regional state systems to the foreground need not push law into the background. Our intention is just the opposite: to trace the legal inflection of regional politics. The claims and aspirations of the people of Anaa and the government of Tahiti, the constitutional philosophies of Artigas and his followers, and the attempt by riverine and island groups in both regions to capture trade as a means of consolidating political and legal power—these phenomena sculpted regional legal regimes that took shape not merely in response to British designs but as alternatives to subordination to imperial power. The Pomare dynasty had acquired a new kind of influence in the Tuamotu Islands and mobilized that influence to stake a claim in the pearl trade, in part by deploying new agents (a “governor” and native missionaries) to represent their interests

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hundreds of miles away. The people of Anaa had fought with Europeans and their neighbors for decades to defend their stake in the pearl trade. With or without the imprimatur of the queen regent of Tahiti, these groups sought to expel European competitors from the pearling lagoons or at least to share in the profits. They wanted the atoll lagoons to be like islands, claimable and defensible. While responding to violence against British ships, British agents had other—but not radically different—legal objectives. They sought to pressure Tahiti to enforce regional order without hogging jurisdictional claims. Island populations might be governed, but pearl atolls should remain part of the ocean commons. In the Río de la Plata, anti-imperial struggles like the one championed by José Gervasio Artigas drew strength from imperial ideologies that posed political communities as small as towns as seats of sovereignty. Such visions drew directly from imperial notions of divisible sovereignty. Opposition to outside power blended with a philosophical and practical recognition of the possibilities of building independence through creative political configurations nested within an inter-imperial frame. In response, as in Tahiti, Britain sought stability by preserving a politically plural region and insisted on the responsibility of local powers to guarantee order within, and also across, borders. A focus on regional legal formations helps us to make sense of the cacophony of sovereignty talk that erupted in the early nineteenth century. Any Uruguayan schoolchild would say that Artigas’s most impor tant legacy was the founding of the República Oriental del Uruguay in the territory of the province where he mobilized an army of peons against the forces of empire. But statehood is a narrow interpretation of the significance of Artigas’s vision and tactics. He imagined a confederation of provincial governments. Quasi-independent states might conduct foreign affairs, in common and separately, while remaining open to accommodation with powerful empires. That vision corresponded to a loosely configured political community more than a nation-state. The political philosophy behind it had the power to fuel breakaway movements as well as to reinforce centralizing impulses. Artigas’s political legacy might be properly traced to the emergence of an array of states as a regional formation. Their sovereignty reflected struggles over maritime and riverine trade—a strategy that Artigas modeled in ghostwriting privateering commissions for ships that never touched Río de la Plata waters.

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If some historians have emphasized such regional struggles as generative of new nation-states, contemporaries kept empires in mind as systems of states. Overtures to Britain to assume a formal role as protector—by Uruguayans fending off Argentine forces, Paraguayans advocating free trade, or Tahitians fighting for control of resources—clearly did not betray a desire to pursue independence at all costs. Polities advanced their interests by proposing that an array of states act together as the guardians of commerce. Regional elites, as much as British agents, saw advantage in disorganized systems of fractured sovereignty that were loosely joined by the recognition of British (and European) power. The processes surrounding the birth of these regional formations were political as well as fundamentally centered on law. Sponsorship of maritime violence as a legal maneuver allowed the Provincia Oriental to act like a state without the infrastructure of a state. The tactic had the unexpected effect, too, of encouraging other Atlantic powers to identify new Latin American governments as part of a collective category, even in the absence of a stable confederation. By recognizing the commissions of the United Provinces and failing to challenge those of Artigas, courts in the United States, the British Empire, and other Atlantic powers elevated those polities above the level of rebellious provinces and awarded them partial recognition as sovereign states.135 The courts were, in effect, corroborating the claims of Artigas that the Banda Oriental—regardless of the nature of its political association with other provinces or the occupation of its main ports by Portugal—possessed the capacity to make war and had some standing in “international” law.136 Meanwhile, the pluripolitical regional regime emerging to protect river trade emanated from political and legal maneuvering by local and imperial agents up and down the river system. In the Pacific, inter-imperial and intra-imperial legal politics intersected to produce another variant of a regional legal order. In Tahiti the murder of a British master and mate surfaced jurisdictional questions that activated arguments over Tahitian sovereignty, the international status of proximate islands, and the responsibility to guarantee regional order. Jurisdictional matters did not simply stand in for broader political questions. For participants on all sides, jurisdictional issues were at the heart of issues of order and rule. The growing importance and profitability of island resources placed new pressure on complex legal arrangements, but this did

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not mean that law figured merely as an instrument of commerce. Legal strategies spanned commercial and political considerations and absorbed the imagination of Europeans and Polynesians alike. The disorganized evolution of Britain’s policy in the Río de la Plata region and in the archipelago around Tahiti adhered to broader patterns. Regional state systems connected to global commerce, absorbed British legal influence, reflected inter-imperial frameworks, including French designs, and nurtured the exercise of legal authority by some new, and some very small, political communities. The trends gave rise not just to new nations but to new regional orders. Britain’s commercial empire depended on them.

CHAPTER SEVEN

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has become commonplace to blame colonialism for the horrors of the present. There is much cause for blame. Colonial powers hastily assembled polities that contained within them the seeds of conflict across ethnic and religious lines. They devised and reinforced enduring structures of inequality. They were responsible for searing, precedent-setting violence. Against this record, some scholars direct our attention to the positive legacy of the British Empire: the influence of antislavery campaigns on global humanitarianism, for example, or the empire’s role in establishing the institutional framework for capitalist growth.1 Alternative stories of good and evil are rarely satisfying. They too often flatten history by turning it into a morality play. Fortunately there are other, better ways to take the measure of influence of British imperial formations in world history. In this book, we have looked for a different sort of legacy. Systemic shifts in our story emerge from widely distributed sources, and from multiple contact points between law inside and outside the empire. Analysis of the polycentric conflicts, practices, and processes of the British imperial legal order reveals important, if often hidden, elements of the empire’s influence and legacy in the world. The early nineteenth-century effort to reengineer British imperial law aimed first at securing order within the empire. Contemporaries realized, too, that law inside the empire had some real and important purchase on relations beyond the edges of empire. Legal authority could travel through naval policing, modified admiralty law, the annexation of new territories, diplomatic pressures on other polities to adopt British-favored legal positions, and extraterritorial jurisdictional gambits. Rather than anticipating 180

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British global domination, the vision of a global legal order centered on the British imperial constitution at times encouraged the strengthening of legal authority in other polities, including new states and imperial rivals. Regional legal regimes formed around plural state systems infused by British legal influence, but not under British law. At the same time, even enthusiasts of the empire grasped the limits of imperial law as a framework for global order. The most familiar limits arose as disruptions of imperial authority, from the overt opposition of rebellions to maneuvers in colonial courts. The debilitating intricacies of legal mechanisms for projecting British authority—so often neglected in big histories of the British Empire—were enormously impor tant. Slave trade policing stumbled through a maze of prize law and constitutional confusion about the purchase of parliamentary versus local legislative authority. Administration in crown colonies struggled to define the relationship between local, British, and other foreign law. Annexationist projects invoked protection without a clear understanding of its legal implications. Calls for maritime order to enhance regional commerce exposed the costs and uncertainties of projecting British legal influence in the absence of British control. Other powerful empires not only refused to go away but often implemented parallel measures of reform aimed at strengthening their own legal purchase in politically plural regions. The result was less a discernible British global legal order and more a global legal order with British imperial coloring, of varying intensity, across world regions. This messy history invites us to think about the patchy character of global legal order in other periods, focusing anew on the disorganized legal routines that other, aspiring hegemons have deployed in their flawed attempts to project power. In this chapter, we first trace the limits and ambiguous legacies of legal reform in and around the British Empire. Then we examine the continuing relevance of this history for understanding the volatile relationship between municipal and international law. Rather than searching for the origins of principles of international law, we identify patterns of regional and global law that derived from the British Empire’s partial and Pyrrhic efforts to order the world. In contemplating the limits, violence, and gaps of British global order, we turn again to Wallace Stevens: “A. A violent order is disorder; and / B. A great disorder is an order. These / Two things are one.”2

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The Limits of Middle Power A rage for order gripped the British Empire in the decades after 1780. It grew in curious symbiosis with the age of revolutions. A remarkable array of bureaucrats and colonial subjects around the empire reworked the language of despotism into a series of interrelated demands for order through law. Despots came in many forms in the early nineteenth-century empire, from the Malabar elites of Ceylon to French planters in Mauritius. British men of influence in the colonies, from established slaveholders in the West Indies to opportunistic sojourners like the self-styled rajah James Brooke, appeared to fit the pattern. The characteristic they all supposedly shared was their exercise of arbitrary justice. This interpretation of petty despotism meant that actions to control their authority became legal interventions. Calls for reform and debates about the imperial constitution attempted to shift jurisdiction out of the hands of grasping elites and into the hands of imperial agents. The thrall of despotism in this moment of frenetic reform lay only partly in fears of its collapse into the disorder of revolution. While liberal thought emanated throughout the early nineteenth century empire, the real work of accusations of despotism was to legitimize imperial intervention.3 In the shadow of the English, American, and French Revolutions, and of pervasive disquiet about the potential of colonial despots to corrupt Parliament, the rage for order served mostly to enhance the power of the Crown. This pairing of despotism talk and the impulse to strengthen crown authority differed from the constitutional debates about parliamentary power that prefigured the American Revolution and underpinned Edmund Burke’s critiques of East India governance. Reformers argued explicitly that crown colonies, not colonies with legislatures or colonies supervised by Parliament, would lead the drive to imperial reform. They argued, too, that a more just empire required the erosion of self-governance in slave colonies. Their answers to colonial despotism served to draw sharper lines between colonial and metropolitan subjects and widened some distinctions among classes of colonial subjects. Tyrants roamed the earth beyond the empire, too. The misdeeds of the Kandyan king became the centerpiece of British justifications of the annexation of Kandy in Ceylon, and the despotism of Francia and Rosas featured prominently in British calls for political

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and legal intervention in the Río de la Plata. Slave traders and pirates tyrannized vulnerable people on distant shores. Beyond the boundaries of empire, complaints about despotism underpinned new kinds of courts, including mixed commissions, at the same time that they justified exorbitant naval violence. It is small wonder, then, that the rage for order raised difficult constitutional questions for which the British had incomplete answers. Reformers sometimes struggled to defend the constitutional basis of their plans for colonial legal change. Strengthening imperial jurisdiction meant clarifying the way that British law extended into colonial realms, a chronically unsettled question. Officials looked to create an imperial magistracy and to convert middling judicial officials from colonial apologists into agents of imperial power. Neither project was straightforward. Both stirred muddy questions about the proper mix of rights possessed by different classes of imperial subjects, and both depended on volatile interpretations of which colonial or imperial agencies, offices, or courts should have the power to enforce restrictions on the actions of those labeled as petty despots. Such uncertainties balanced against the certainty that information gathering might help. Constitutional interventions in the colonies often took the form of commissions of inquiry charged with reporting on exotic colonial law and also given wide license to meddle in legal administration however commissioners saw fit. It should come as no surprise that accusations of petty despotism often took on a life of their own. From Burke’s speeches on the floor of the House of Commons about the overreaching and corruption of Governor Warren Hastings to a host of smaller colonial scandals, despotism talk could be turned against British agents and the Crown. In Trinidad the label of petty despotism attached to the autocratic colonial governor Thomas Picton, as critics equated his arbitrary punishments with the amoral overreaching of slaveholders. In the Ionian Islands, Maitland acquired a reputation as the author of “constitutional despotism”—a phrase critics used to point to the tyrannical potential of colonial legal reform, especially when it served to augment the power of the Crown. If reform opened the Crown to accusations of tyranny, the resolution of political crises did not always produce new institutional structures capable of containing arbitrary power. Increasingly, British officials came face to face with the limitations of middle power in empire. It was not just that

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jurisdictional orders under imperial sway were difficult to conjure. They were also very unstable. Empire vetted its middling officials with increasing care, but that did not make them reliable emissaries of metropolitan will, which was, after all, wildly changeable over the course of the nineteenth century. Commissioners ignored their instructions, governors made and changed laws without authority, judges engaged in both profound and petty battles with their fellow bureaucrats. Systemic legal change was a risky business, too. It could provoke colonial publics into frenzied resistance, as in the American colonies or in Mauritius. It made new winners and losers in the struggle over law. Schemes of imperial law had never imagined a radical redistribution of rights or authority. But forces of change were notoriously difficult to calibrate, and they emerged from all angles. Reform mea sures brought demands for further change from below, from slaves in Mauritius and Trinidad seeking justice in British courts or from convicts in New South Wales petitioning to curtail specific punishments or to recast the system of convict labor. Challenges to British justice also materialized in the form of proposals for alternatives to imperial-led governance, including the conversion of weak colonial legislatures into bodies with greater authority and autonomy. Oppositional forces did not have to articulate or champion entirely new political philosophies. Theories of legitimate sovereignty in empires, critiques of despotism, and notions of proper jurisdictional ordering— these ideas informed imperial reformers while also inspiring their opponents, from Latin American republicans to Greek nationalists. Large and small challenges to British power had real consequences for the project of imperial reordering. Colonial instability made agents of empire worry about the limited capacity of empire to sustain order. It is striking to read statements by middling officials at midcentury wondering about the shelf life of the British imperial legal order. In the Ionian Islands, Maitland’s successor speculated that it might be time for Britain to give up its role as protecting power—or else simply to annex the islands and assert more direct control. In Singapore, British officials hoped that the limits of their authority in Southeast Asia might find a solution in the spontaneous emergence of a European condominium on the seas, with the Spanish and Dutch acting to impose an acceptable, if not British, order, even while the same officials remained distrustful of alternatives to growing British influence. In combating the slave trade, British agents jolted away from the

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careful staging of a network of British-orchestrated bilateral treaties and sought to act unilaterally in seizing Portuguese and Brazilian slave ships. The recognition of the limits of imperial strategies to solve problems of regional disorder, enforce global prohibitions, and champion British commercial interests materialized fitfully, most often in relation to individual crises rather than in connection with a unified ideological position or political program. The rage for order broke against proliferating anti-imperial revolts. In some places the British responded to revolutionary violence by conspiring to cultivate new sovereignties, as they did in the Río de la Plata by recognizing new states and rejecting explicit claims to regional hegemony. Even when revolts drew the British to assert more direct forms of rule, as occurred in the aftermath of the Indian Rebellion in 1857, jurisdictional puzzles remained, and the tenuousness of British control became, if anything, more salient. Increasingly such revolts prompted unthinkable British violence perpetrated under cover of martial law. More often than not, that violence led, in turn, to intense (if short-lived) introspection about the proper boundaries of imperial jurisdiction. One of the least expected and also plainly unstoppable pressures for change came from squarely within the empire, in the form of calls for British recognition of “responsible government” by white settler polities. The federative empire that resulted was still a variant of empire, to be sure, and it had some kinship with the regional state systems of the kind described in Chapter 6. But it is important to recognize that the formation that became the British Commonwealth had its roots in a violent struggle about the proper location for, and extent of, imperial jurisdiction. The Canadian rebellions of 1837 that led to Lord Durham’s call for responsible government produced convictions of a hundred rebels sentenced to transportation to Australia—a very imperial punishment—and the execution of two of the rebellions’ leaders for breaking their allegiance to British sovereign authority.4 It is good to keep these actions in mind so as not to exaggerate either the ease of the transition to self-government or its antiimperial nature. The Durham Report established a platform for Canadian national government, but those participating in and responding to the revolts sought the reform of empire—not its end. It makes sense to think of such stumbling blocks less as the beginning of the end of empire and more as events that foreclosed certain possibilities

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of global legal ordering and made other outcomes more likely. Not only did efforts to remake the imperial legal order continue, but they also heated up in some arenas at midcentury. Codification found its champions as the logical next move to improve colonial law; customary law, including the invented kind, attracted new enthusiasts. Both programs depended on the imperial reordering of the previous era. Codification made sense precisely because of the dominance of imperial law.5 The same was true of the creation and celebration of customary law; it appealed to imperial agents only when they felt certain that it would not rival state-centered law but would nest safely inside the empire’s legal order.6 It was in this context that several sharp, well-documented controversies of colonial law developed in the second half of the nineteenth century. Decades of jockeying to strengthen imperial jurisdiction had produced a recognizable, if contested, British-supervised legal order. Imperial policy makers, middling officials, and colonial subjects had transformed themselves into experts on questions of the proper structures of the plural legal order. The extent and reach of imperial legal authority continued to feature as subjects of controversy and comment, but now the issues commanding public attention boiled down to just a few. One set of questions revolved around persisting jockeying over jurisdiction. How was it possible to reconcile the vision of a constitution for the empire with the continual production of dif ferent legal zones and groups with dif ferent legal capacities? Were imperial legal subjects potentially equal to subjects at home, and to what extent could the empire command and enforce their allegiance? Consider the legalities of violence surfacing in a high-profi le case stemming from the Morant Bay rebellion in Jamaica in 1865. In the aftermath of the rebellion, the Jamaican governor, Edward John Eyre, declared martial law in parts of the island. Several hundred executions followed, including the hanging of George William Gordon, the son of a Scottish plantation owner and an enslaved woman. An outspoken opponent of Eyre, Gordon was arrested in a portion of the island under civilian law and moved to a part of the island under martial law. The ensuing debate in England about these events highlighted doubts about the constitutional legitimacy of an imperial legal order in which subjects could hold different sets of rights and in which the same subjects might also hold different sets of rights in different parts of the empire. Liberals in London took up these questions with enthusiasm. The Jamaican Committee, under John Stuart

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Mill’s leadership, energetically pursued Eyre’s prosecution for murder. In many ways the controversy played out in the same register as the fraught questions of petty despotism already in circulation decades before in the prosecution of Thomas Picton. The results were not terribly different, either, since Eyre ultimately escaped conviction and punishment. Yet Eyre’s critics were more explicit about their wider constitutional concerns. No one had to make a case for regarding the structuring of authority in the colonies as a project rightfully under the purview of London politicians and, also, as part of a broader set of concerns about the proper ordering of government authority over subjects. The legal questions surrounding Eyre’s actions were far from settled, but the framework for their consideration was widely recognized as one pertaining to the empire, and to an extensive British polity that encompassed the empire.7 Later in the century, when a revolt took place in Manipur, India, in 1891, law-minded British officials faced the challenge of crafting a legal rationale for intervention in a protectorate. Realizing that the British had no criminal jurisdiction in an Indian princely state—and thus no ability to ensure the prosecution of those responsible for killing the British-supported Manipur ruler— officials justified military intervention by claiming that British protection meant that princely state subjects owed allegiance to the queen. Resisting British attempts to arrest murderous insurgents, therefore, amounted to treason. The legal basis for British intervention in quasisovereign zones of the empire had already been the subject of extensive debate among British and international lawyers, in part prompted by several decades of jurisdictional tangles involving Indian princely states.8 The government of India now assured Parliament unequivocally, “The principle of international law has no bearing upon the relations between the Government of India as representing the Queen Empress on the one hand, and the Native States under the suzerainty of Her Majesty on the other.”9 The international lawyer John Westlake argued later that the Manipur case, in prompting British officials to assert the subject status of all inhabitants of Manipur without having criminal jurisdiction over them, completed the transition of quasi-sovereignty from an international to an imperial footing.10 The Jamaica and Manipur cases did not signify a sharp shift toward the consolidation of an imperial legal framework. They were episodes among many that called attention to a gradual but real realignment, a sharpening

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divide between legalities inside and outside the empire. Looking back, we might make the mistake of supposing this result to be the inevitable culmination of a long project of strengthening imperial legal authority. But a story of gradually fortifying imperial authority misses the mark. Despite many attempts to clarify the relation between inside and outside law, the puzzle remained a source of political tension and a problem for jurists; in some ways and by some accounts, it still constitutes an unsolved riddle of international political theory.11 Midcentury transitions in the British Empire evolved within and against the dynamics of imperial world ordering of the first half of the century.

The Ghost in the Machine We know that empire played a central role in the emergence of international law. As international law became a distinctive field in the late nineteenth century, jurists built membership criteria for the international legal community summarized by the “standard of civilization.” The concept served as a blunt tool for characterizing non-Western societies as outsiders that could join the international legal community only when Western powers deemed them to be sufficiently civilized. The history of this idea has joined the problem of quasi-sovereignty as one of the core themes that historians point to in linking empire to international law in the nineteenth century.12 Additionally, historians have debated the degree to which Europeans promoted claims about universal norms and standards in the nineteenth century. One view characterizes universalizing tendencies as a handmaiden to colonial violence. Another, more positive, suggestion is that nineteenth-century European, and especially British, humanitarianism— epitomized by the campaign for the abolition of the slave trade—marked the development of human rights law as a universal project.13 Most of these discussions belong to the realm of intellectual history and take place without attention to the interior legal workings of empires.14 The tendency is to regard international law as something that developed largely outside the bounds of empire, with empire as an object of analysis and antimodel, capable of shaping ideas about international law and order, but only for a short time.15 Historians of international law also give great weight to the impact of the European state system on the rest of the world. Britain

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figures prominently in this account, supposedly pursuing “world equilibrium” as an analogue to the European balance of power, while the intricacies of British extra-European engagements and volatile imperial and colonial policies remain on the margins of the story.16 An instructive alternative (though one that has also remained largely within the purview of intellectual historians) has emerged through the study of international law as it related to another rising empire: the United States. Historians have described the  U.S. Constitution as a document deeply influenced by ideas and practices related to the law of nations. The Declaration of Independence went beyond its invocations of natural law rights. In asserting the legitimacy of rebellion to break away from an empire, it projected an intrapolity act as having the character of positive international law. Essentially a peace treaty among multiple states, the Articles of Confederation and the 1787 Constitution that replaced it built on understandings of federalism as a cousin of layered imperial sovereignty, a tradition with deep European roots that itself married “inside” and “outside” frameworks of multipolity ordering.17 These founding documents circulated widely, and they spawned adaptations and imitations, even within instruments designed precisely to oppose U.S. imperial power.18 We have shown that the British imperial constitution marked another very significant attempt to bridge domestic and international law. Formative legal influences flowed from the inside out—from scattered legal confl icts and debates within the empire, to regional and global legal patterns. Constitutional debate encompassed local politics and vernacular political theory across the globe. This claim works with, not against, intellectual histories. It redefines intellectual influences as much more diff use— distributed across the empire in the writings, utterances, and acts of myriad participants in legal conflicts, all of whom understood their contests to have wider implications. The shorthand assertion that imperial law was operating as if standing in for international law in the early nineteenth century can be broken down to reveal several patterns of imperial-global influence. This book has explored three such patterns in particular. The first involved the effects of legal reform agendas inside the empire on designs for imperial engagement and expansion outside. The second derived from imperial attempts to construct prohibition regimes to curtail piracy and slave trading. And the third resulted from British efforts to create new sovereignties in regions that

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historians have typically described as areas of informal empire. These were interconnected projects. They were related to the logic of imperial legal reform but had consequences that were truly global. The results included a handful of politically fragmented regional legal regimes, sustained in part by inter-imperial tensions and shaped by the efforts of the British Empire to exercise a controlling legal influence. We identify these regimes and trace their emergence without asserting that they generated clear principles or doctrines of international law. They did generate frameworks for cross-polity law, and British involvement in their creation often prompted statements at many levels—and not just by British agents—about the desirability of establishing still broader regimes to enforce standards such as free navigation, the prohibition of slave trading, and a ban on peacetime blockades and maritime raiding. Not surprisingly, given ascendant British naval power, themes of maritime order threaded through regional legal politics. The resulting (though sometimes shortlived) constellations framed legal relations among European empires and also between empires and emergent states. These regional formations deserve our attention as powerfully formative forces in the history of international law.19 Recent studies teach us that international law is not a corpus of doctrines but consists in such diff use phenomena as nongovernmental networks and administrative procedures.20 Our account of the influence of the British Empire on international law in the early nineteenth century draws attention to the law-producing capacities of imperially organized networks and practices. In campaigns against slave traders and pirates, British officials and jurists sometimes referred to natural law principles, but they acted on the basis of a combination of municipal law, treaties, vaguely defined (and often aspirational) customary usage, and assertions about a British right to intervene that itself derived largely from imperial contexts. Even, or especially, where the British could not pretend to have political dominance and could assert only limited jurisdiction, British agents sought to mold regional systems in which multiple polities, ranging in scale from other empires to microstates, would assist in enforcing British-supported rules. In general, too, the “inside” project of experimenting with changes to enhance imperial jurisdiction in the empire worked to undergird the “outside” projection of British influence by authorizing British intervention (for example, to combat foreign despotism). British agents referenced law

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in describing violence as enforcement measures or staging aggression as a prelude to annexation. It is not trivial to shift attention away from a search for the origins of principles of international law in the nineteenth-century to an account of constitutive patterns of global legal politics, including imperial jurisdictional politics.21 The reorientation upends some historians’ claims about the British Empire’s role in global political and legal change. Britishcentered humanitarianism and British constitutionalism are often characterized as cradles of emerging international norms. Abolition gets paired with human rights, constitutionalism with a universalizing duty to govern for the common good, or even to govern democratically. Such stories map awkwardly onto jurisprudence and case law in the nineteenth century. They make an even more discordant fit with reformers’ descriptions of their own objectives, and with the confl icts their strategies responded to or set in motion. As we saw in the case of abolitionists urging the end of the slave trade, the goal of protecting the rights of the enslaved paled in comparison to the drive to control private jurisdictions and regulate colonial regimes. The British-led effort to curb slave trading tended to bypass universalist claims about human rights in favor of a messy attempt to fill treaty gaps with circumscribed extensions of municipal law. The attempt to craft a British global empire of law generated unsteady, multistate legal regimes. It converted protection talk into a framework for imperial consolidation, intervention, and annexation. It linked international enforcement powers with legitimate authority to order regional political formations. Colonial confl icts connected these phenomena to debates about the imperial constitution, but we should not regard their legacies as ending with the turn toward written constitutions or a world order of sovereign states. Imperial influences persisted—and persist still— in the flawed prohibition regimes, regional formations, and opportunistic interventions of the twentieth and twenty-first centuries. We need not look far for examples. One surprising illustration of the persistence of imperial modes of thinking about global order is the extreme reluctance of the United Nations (until very recently) to claim criminal jurisdiction to try crimes against humanity—a deficit that various nation’s courts have sporadically and halfheartedly sought to fill. Continuities with imperial law also show up in food policy debates before the World Trade Organization that echo arguments presented by British policy makers in

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the late nineteenth century to justify standing by while famines took the lives of millions of Indians.22 Another clear example of the persistence of imperial perspectives is in the fluid use of protection to justify interstate violence, and even annexation, in the twenty-first century.23 When Vladimir Putin cited, for example, the need to protect Russian subjects as a justification for Russian intervention in Crimea, he was both drawing on twentieth- and twenty-first-century language of a responsibility to protect human rights and invoking an older imperial notion of protection; unlike human rights talk, the appeal to protection contained within it the seeds of authoritarian meddling and permanent annexation. More broadly, when international actors engage in debates today about when and under what conditions humanitarian intervention is permissible, or when they dispute the legalities of “small wars,” they do so using language and categories elaborated within the British global order—but without the support of a grasping imperial legal bureaucracy to adjudicate those disputes. Habits of imperial engagement surround us, and debates about the relation between domestic and international law contain echoes of imperial imperatives.

A Great Disorder Is an Order Like the idea of rights, the idea of order is very old. In the late sixteenth and early seventeenth centuries, Scholastic discourse characterized order, along with union, as a key dimension of the commonwealth. Embedded in the idea of order was rule by magistrates, because left to itself, as Domingo de Soto put it, “the commonwealth thus congregated could in no way govern itself, drive off enemies, and check the temerity of malefactors.” The body required a head. But that head, for the Scholastics, was required to rule in pursuit of the common good.24 Individuals are always subject to the commonwealth, according to Scholastic thought, without being “entirely subject to it.”25 The weight of obligation of the individual is to conform to the civil law and to obey the commands of the sovereign. But selfpreservation is a right and a moral obligation, and the duty to self-preserve leaves the door open to resist subjection. From a legal standpoint, there is cover for individual noncompliance with the ruler’s commands.26 More significantly for our purposes, Scholastic thought pointed toward the space beyond the commonwealth. This space could be notional, the ef-

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fect of individuals exercising their obligations under natural law. The law of the commonwealth might also bind individuals traveling outside it, or foreigners traveling within it. Both theory and practice suggest that individuals do not exist merely in relation to the law of one commonwealth or exclusively in relation to the law of one commonwealth combined with principles of natural law. They exist in the context of many commonwealths, and they recognize a field of law constructed across multiple polities. Thus, there is a permanent structural relation between inside and outside legalities. In Annabel Brett’s characterization of late Scholastic thought on this point, “the properly public international sphere is an interplay between the demands of local situation and of the juridical relations that go beyond it.”27 Scholastic understandings are valuable to our discussion, not because they remained unchanged or guided global patterns of legal interaction— though their influences are clearly apparent in later episodes, such as the Latin American discussions of legitimate revolt surveyed in Chapter  6. Their value lies more generally in the recognition of the “inside/outside” relation of law as an early and persisting theoretical and practical concern. The problem of order and its relation to inside and outside law—indeed, the problem of characterizing law as having radically different inside and outside arenas—has continued to haunt our thinking about the relation of empires to international law. As one scholar has observed, the distinction became foundational to international relations theory, with dire warnings of the dangers of “domestic analogy” in international relations and the insistence that interstate relations possessed a dynamic so different that it required a separate science.28 The formula clapped epistemological blinkers on international relations theorists for a time, separating justice from order as objects of study and leading them to favor a rigid account of the rise of state systems. The result was to shift attention away from the productive role played by analogies between inside and outside in the construction of theories of global order.29 In our account of the British Empire and law, we find active analogies at work between imperial and global order. Empires as composite polities, or systems of states, whose working required the specification of jurisdictional arrangements, prefigured regional systems of states and, notionally, a global system of states operating within the ambit of a dominant power. In this sense, the British global legal order, as imagined and incompletely

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instantiated, carried forward familiar imperial frameworks while also modeling interpolity law in the post–Cold War, “unipolar” era.30 Both the example of British juridical power and the history of U.S. global influence confirm that “a unipolar world is not peaceful.”31 Not unlike the unstable and merely aspirational dominance of British legal authority in many of the corners of the empire, the contemporary global order takes its shape from largely hidden hierarchies.32 In addition to this structural link between the British campaign to order the empire and its aspiration to order the world, we also encounter in the history we have told such a degree of interplay between “inside” and “outside” law that it becomes at times difficult to separate one from the other. One connection consisted in the simultaneous extension of imperial jurisdiction within and without the empire. Some of the projections of imperial legal authority beyond the bounds of empire passed through the door identified by the Scholastics. By insisting on legal protections for British sojourners and merchants, the British government and its agents asserted municipal jurisdictional claims on the sea and in foreign territories in ways that carried British legal claims outward in disorganized ways not captured by histories of extraterritoriality or accounts of informal empire. British consuls sought legal influence in places where treaties recognized their role and in places they did not. Their actions in South America and Southeast Asia bear this out. Various groups and individuals claimed British protections by identifying themselves as British subjects, or as subjects under British protection. Ionians appealing to the British consul for representation in Ottoman courts were invoking legal privileges that were imperfectly captured under the capitulations regime.33 Global interactions also extruded British law beyond the empire in ways more difficult to see and so less often analyzed by historians. In urging separate polities to join in enforcing prohibition regimes or protecting commerce, British agents endorsed an extension of British legal practices by proxy, by imitation, and through bilateral agreement. Such mechanisms did not depend on arguments about extending legal protections to British subjects, nor did they rely on universal principles, as we have seen. In fact, in many settings, British agents discouraged such arguments. The prohibition regime against Atlantic slavery emerged in spite of an absence of universal jurisdiction over slave traders. In Southeast Asia, British officials regarded universal claims as dangerously available to all.

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As order became an end in itself, empire spanned domestic and interpolity spaces on its own terms, with its built-in structure of legal pluralism, its adaptive jurisdictional strategies, and its studied openness to the acquisition of new territories and subjects. Historians have located an empire-centered vision of global order in Victorian Britain and have noted, too, British reticence with regard to universal claims.34 They have also observed the continual autocriticism of empire and the suspicion that the project of bolstering imperial legal authority would not bring justice, but would strip away the rights of British subjects in colonial spheres.35 Whether viewed as constitutional disaster or opportunity, by the second half of the nineteenth century—consider, again, the debates about martial law in Jamaica and British interventions in Manipur—observers in London did not question the appropriateness of regarding law in empire as the architecture of a constitutional framework that simultaneously looked inward and opened specific doors to the world beyond. The rage for order mobilized a wide variety of forces inside and outside the empire: order, after all, was not a British idea. As we have shown in analyzing the arguments of Joseph Brant for the Five Nations’ rights over land and in surveying José Gervasio Artigas’s theories of sovereignty, visions of order informed strategies from all sides of legal controversies and in all regions of the world. Indeed, precisely because locals, including legally vulnerable captives and convicts, understood the stakes of redesigning law to be high, they participated actively in bringing suits, mounting protests that contemporaries understood as legal engagements, and at times calling for imperial intercession to contain colonial authority—all strategies that could flow from self-interest as well as intricate designs on justice and order. The slaves who organized the protest on Edward Huggins’s estate, the freed woman who testified against Arthur Hodge, the slaves in Mauritius who flooded the protector’s court, the convicts who urged advocates to champion the removal of legal constraints, the Kandyan elites who argued for, then turned against, British intervention, the Ionians who insisted on British protection, the Chain Islanders who toyed with assertions of territorial sovereignty over pearl lagoons on uninhabited atolls, the colonial witnesses who plied commissioners with information and complaints— these and many others who engaged actively in imperial legal conflicts shaped the British Empire and its structures as well as the empire’s place in the world. The porousness of the barrier between imperial and global law

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was evident not only to elites or their agents but also to other legal actors around the world who sought advantage in the local application and adaptation of imperial models. The resulting legal order did not prevent violence or produce equality of states. In fact, in several of the examples we explore, the regional regimes shaped by British imperial legal politics nurtured chronic violence. They also reified inequality. In considering these realities, we can learn something from Eurocentric analyses of the global order as it developed after the Congress of Vienna; many analysts assumed that a semblance of global order would depend on “a customary predominance of the Great Powers in matters of regulating the states system.”36 The influence that grew out of imperial legal reforms in the empire’s politically, legally, and culturally plural colonies staked a claim for British authority in all international matters. At its heart, that expectation helped to naturalize international inequalities. It also encouraged British officials to regard even sharp rivalries with other powers as temporary and so to imagine that a greater degree of inter-imperial coordination existed than was the case in most places. In this sense, too, British imperial legal reordering shaped international law and order: it gestured at a world that John Austin thought could never emerge, one in which some entity (a single empire-state or a group of polities) would assert an open-ended authority over the confl icts of other political communities. The British Empire mattered as a legal force in the world in the early decades of the nineteenth century, when natural law rhetoric waned, positive law visions were inchoate, and the British Empire seemed poised to become powerful enough to impose its own order on the world. Imperial agents and their interlocutors struggled over the details and objectives of legal change, and the world’s many small and scattered legal conflicts added up to something like a global legal order. Within imperial borders, governors and masters were beset by accusations of despotism that brought their actions under new imperial scrutiny. Commissioners roamed the earth in search of constitutional minima—a better balance among autocracy, procedural fairness, and pluralism. Reformers conflated old and new technologies of protection to push British reform into new jurisdictional spaces in colonies and across imperial boundaries. Naval officers built new, regional regimes of violence in small seas and large oceans by precariously combining imperial law, treaty law, and inter-imperial politics. Consuls, mer-

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chants, and naval officers argued about how best to motivate new states to protect British interests with foreign law. Porous and malleable, coopted and coopting, this lost empire of law constituted a distinctive, formative phase in the legal history of the world. Its recovery reveals the contingent forces always at play in the making of global law.

Notes

Abbreviations AHR AHS BFSP HCPP HRA HRNSW JRAHS TNA

American Historical Review Australian Historical Studies British and Foreign State Papers House of Commons, Parliamentary Papers Historical Records of Australia Historical Records of New South Wales Journal of the Royal Australian Historical Society The National Archives (United Kingdom)

Chapter One: A Global Empire of Law 1. Compare Duncan Bell, “Empire and International Relations in Victorian Political Thought,” Historical Journal 49, no. 1 (2006): 289–291, praising Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cambridge University Press, 2002). 2. On constitution writing as a global trend, see Daniel Hulsebosch and David Golove, “A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition,” NYU Law Review 85, no. 4 (2010): 932–1066; Linda Colley, “Empires of Writing: Britain, America, and Constitutions, 1776–1848,” Law and History Review 32 (2014): 237–266, at 237. The nineteenth century is labeled a “constitutional age,” although until recently “transnational and comparative perspectives have been largely underrepresented in historically-focused constitutional scholarship.” Kelly L. Grotke and Markus J. Prutsch, “Constitutionalism, Legitimacy, and Power: Nineteenth-Century Experiences,” in Creating Community and Ordering the World: The European Shadow of the Past and Future of the Present; Report 199

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4.

5.

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Notes to Pages 3–4 from the Research Project “Europe between Restoration and Revolution, National Constitutions and International Law: An Alternative View on the Century, 1815–1914,” ed. Martti Koskenniemi and Bo Stråth (Helsinki: University of Helsinki, 2014), 136–145, 136, 141. John Manning Ward, Colonial Self-Government: The British Experience, 1759– 1856 (London: Macmillan, 1976). Recent assessments of Britain and world order have focused on the late nineteenth century; for example, Duncan Bell, The Idea of Greater Britain: Empire and the Future of World Order, 1860–1900 (Princeton: Princeton University Press, 2007). When the nineteenth-century story of imperial global power is told, it is most often narrated as one of commercial expansion; see, for example, Jeremy Black, The British Seaborne Empire (New Haven: Yale University Press, 2004), chap. 5. Robert Travers, Ideology and Empire in Eighteenth Century India: The British in Bengal, 1757–93 (New York: Cambridge University Press, 2007); Nicolas B. Dirks, The Scandal of Empire: India and the Creation of Imperial Britain (Cambridge, MA: Belknap Press of Harvard University Press, 2006); James Epstein, Scandal of Colonial Rule: Power and Subversion in the British Atlantic during the Age of Revolution (Cambridge: Cambridge University Press, 2012); R. W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2009); Amanda Nettelbeck, “ ‘A Halo of Protection’: Colonial Protectors and the Policy of Aboriginal Protection as Punishment,” Australian Historical Studies (AHS) 43, no.  3 (2002): 396–411; Alan Lester and Fae Dussart, Colonization and the Origins of Humanitarian Governance: Protecting Aborigines across the NineteenthCentury British Empire (Cambridge: Cambridge University Press, 2014); Zoe Laidlaw, Colonial Connections, 1815–45: Patronage, the Information Revolution and Colonial Government (Manchester: Manchester University Press, 2005); John McLaren, Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto: University of Toronto Press, 2011); Kirsten McKenzie, Imperial Underworld (Cambridge: Cambridge University Press, 2016). Christopher Bayly, Imperial Meridian: The British Empire and the World, 1780–1830 (London: Longman, 1989); Christopher Bayly, Empire and Information: Intelligence Gathering and Social Communication in India, 1780–1870 (Cambridge: Cambridge University Press, 1999). Contrast Paul G. McHugh’s argument that the “ legal archive” should be read narrowly: Paul G. McHugh, Aboriginal Societies and the Common Law: A History of Sovereignty, Status, and Self-Determination (Oxford: Oxford University Press, 2004), 24–28. Lisa Ford and David Roberts, “Legal Change, Convict Activism and the Reform of Penal Relocation in Colonial New South Wales: The Port Macquarie

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Penal Settlement, 1822–26,” AHS 46 (2015): 206–222; Lauren Benton and Lisa Ford, “Magistrates in Empire: Convicts, Slaves, and the Remaking of the Plural Order in the British Empire,” in Legal Pluralism and Empires, 1500– 1850, ed. Lauren Benton and Richard J. Ross (New York: NYU Press, 2013), 173–198. 8. Our use of the word “humanitarian” here reflects common usage of this label by historians for many reformist agendas of the period. But as we explain in Chapters  2 and  5, reform often targeted jurisdictional arrangements and aimed at strengthening imperial authority and accompanied muted or desultory talk of universal human betterment. 9. The term “interpolity law” is preferable to “international law” when we are discussing law across polities of various sizes, from empires to microstates to political communities of uncertain status. On the term and its uses in analyzing early modern global interactions, see Lauren Benton and Adam Clulow, “Legal Encounters and the Origins of Global Law,” in The Cambridge World History, vol. 6, pt. 2, ed. Jerry Bentley, Sanjay Subrahmanyam, and Merry Wiesner-Hanks (Cambridge: Cambridge University Press, 2015). 10. On the colonies in the Cádiz Constitution, see M. S. Mirow, Latin American Constitutions: The Constitution of Cádiz and Its Legacy in Spanish America (Cambridge: Cambridge University Press, 2015), chap. 3; Josep M. Fradera, Colonias para despues de un imperio (Barcelona: Bellaterra, 2005); and Scott Eastman and Natalia Sbrevilla Perea, eds., The Rise of Constitutional Government in the Iberian Atlantic World: The Impact of the Cádiz Constitution of 1812 (Tuscaloosa: University of Alabama Press, 2015). Miranda Spieler argues that debates about the French constitution and the colonies helped to frame the suspension of French rights in the colonies as an act consistent with the constitution; see Spieler, Empire and Underworld: Captivity in French Guiana (Cambridge, MA: Harvard University Press, 2012), chap. 2. Malick Ghachem notes that in the first stages of the Haitian Revolution, revolutionaries sought to preserve and reform the Code Noir; see Ghachem, The Old Regime and the Haitian Revolution (New York: Cambridge University Press, 2012). On the Napoleonic Code outside France, see John Savage, “Atlantic Codes: The Impact of Napoleonic Law in the Nineteenth-Century Atlantic World,” in Napoleon’s Atlantic: The Impact of Napoleonic Empire in the Atlantic World, ed. Christophe Belaubre, Jordana Dym, and John Savage (Leiden: Brill, 2010). As in the British Empire, French and Spanish legal reordering connected powerfully to the question of the constitutional framework for abolition and slavery. See Rebecca Hartkopf Schloss, Sweet Liberty: The Final Days of Slavery in Martinique (Philadelphia: University of Pennsylvania Press, 2009); and Josep M. Fradera and Christopher Schmidt-Nowara, Slavery and Antislavery in Spain’s Atlantic Empire (New York: Berghahn Books, 2015). On

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13.

14.

Notes to Pages 6–7 attempts to redefine legal pluralism in Austria-Hungary, see Natasha Wheatley, “Law, Time, and Sovereignty in Central Europe: Imperial Constitutions, Historical Rights, and the Afterlives of Empire” (PhD diss., Columbia University, 2015). The best overview of shift ing attempts to reorder imperial systems of rule remains Jane Burbank and Frederick Cooper, Empires in World History: Power and the Politics of Difference (Princeton: Princeton University Press, 2010); on legal pluralism in the Ottoman Empire, see Karen Barkey, “Aspects of Legal Pluralism in the Ottoman Empire,” in Legal Pluralism and Empires, 1500–1850, ed. Lauren Benton and Richard Ross (New York: NYU Press, 2013). We analyze law in politically fractured regions in Chapters 5 and 6, and probe the international significance of maritime regimes in Chapter  5. Jennifer Pitts, in “Empire and Legal Universalisms in the Eighteenth Century,” American Historical Review 117, no. 1 (2012): 92–121, presents a careful analysis of European thinkers’ attempts to fashion a jurisprudential framework for colonial diversity in the eighteenth century. Recent influential examples of intellectual histories of international law include Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2005); Martti Koskenniemi, The Gentle Civilizer of Nations; Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton: Princeton University Press, 2005); and David Armitage, Foundations of Modern International Thought, (Cambridge: Cambridge University Press, 2013). The problems of some intellectual histories of international law may be compounded by a reliance on methods of dialectical philosophical history; Ian Hunter warns of the distortions of the method in “The History of Dialectical History: The Case of International Law,” James Burns Memorial Lecture, St. Andrews Institute of Intellectual History, University of St. Andrews, October 30, 2015. An excellent, balanced assessment of the literature linking political theory to empire is Jennifer Pitts, “Political Theory of Empire and Imperialism,” in Empire and Modern Political Thought, ed. Sankar Muthu (Cambridge: Cambridge University Press, 2012), 351–376. Compare David Armitage’s argument that, of key dates in early modern British history (1688, 1707, 1765, 1776, 1801, 1832), only 1688 and 1776 had much to do with the history of international law, but other years, less celebrated as British milestones, loomed large in the international story: 1713, 1748, 1757, 1763, 1802, and 1815. Note that many of these years were also significant dates in the expansion of the British Empire. Armitage, Foundations of Modern International Thought, 136. Despotism talk in the British Empire reacted to the identification of Napoleon as a despot and drew influences, at the same time, from French discourse

Notes to Pages 7–8

15. 16.

17. 18.

19.

20.

21.

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about despotism, ranging from Montesquieu’s writings on the dangers of arbitrary unitary power to Benjamin Constant’s and Germaine de Staël’s visions of administrative pluralism as an antidote to centralized authority. See K. Steven Vincent, “Liberal Pluralism in the Early Nineteenth Century,” in Pluralism and the Idea of the Republic in France, ed. Julian Wright and H. S. Jones (New York: Palgrave Macmillan, 2012). James Millette, The Genesis of Crown Colony Government: Trinidad, 1783–1810 (Curepe, Trinidad: Moko Enterprises, 1970). See, for example, Epstein, Scandal of Colonial Rule; and Kirsten McKenzie, “ ‘The Laws of His Own Country’: Defamation, Banishment and the Problem of Legal Pluralism in the 1820s Cape Colony,” Journal of Imperial and Commonwealth History 43, no. 5 (2015): 601–645. Benton and Ford, “Magistrates in Empire.” An Impartial Report of the Debates in the House of Commons on the East India Reform Bills (London: G. Kearsley, 1783), as discussed by Robert Travers, “ ‘The Magna Charta of Hindostan’: Constituting the British Empire in Eighteenth Century India” (paper presented at the annual meeting of the American Historical Association, New York, January 2015). “Somerset v. Stewart cite report,” in A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, vol. 20, ed. Thomas B. Howell (London: R. Bagshaw, 1814), 82. Note how Mansfield talks about a master’s jurisdiction to sell / punish: “the return stated that the slave departed and refused to serve; whereupon he was kept, to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used.” David Armitage argues that the Declaration of Independence set in motion a “contagion of sovereignty” by demonstrating the legitimacy of a break from imperial authority. David Armitage, The Declaration of Inde pendence: A  Global History (Cambridge, MA: Harvard University Press, 2007), 103– 104. An emphasis on the spread of revolutionary ideas has dominated much recent scholarship on the Atlantic revolutions. Recent scholarship on the Haitian Revolution has sought to strike a balance between the study of circulation news, people, and ideas and analysis of institutional change. See, for example, Malick Ghachem, The Old Regime and the Haitian Revolution; Rebecca J. Scott and Jean M. Hébrard, Freedom Papers: An Atlantic Odyssey in the Age of Emancipation (Cambridge, MA: Harvard University Press, 2012); and Ada Ferrer, Freedom’s Mirror: Cuba and Haiti in the Age of Revolution (Cambridge: Cambridge University Press, 2014). For the case of Sydney property, see George Johnston, cross-examination of Bligh, in A Charge of Mutiny: The Court Martial of Lieutenant Colonel George Johnston for Deposing Governor William Bligh in the Rebellion of 26 January

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1808, ed. John Ritchie (Canberra: National Library of Australia, 1988), 57–60; and Grace Karskens and Richard Waterhouse, “ ‘Too Sacred to Be Taken Away’: Property, Liberty, Tyranny and the ‘Rum Rebellion,’ ” Journal of Australian Colonial History 12 (2010): 1–22. For the Gorée case, see The Trial of Joseph Wall, Esq., Late Governor of Goree, for the Wilful Murder of Benjamin Armstrong, a Serjeant [sic] of the African Corps, at the Old Bailey, on Wednesday, January 20, 1802 (London: A. Macpherson, 1802). For the cases of torture, see “Picton v R,” in State Trials and Proceedings for High Treason and Other Crimes, vol. 30, ed. Thomas Howell (London:  R. Bagshaw, 1822), 225–956; “Report of Enquiry by the Council on Alleged Illegal Punishments,” in Brisbane to Bathurst, 27 September 1825, Historical Records of Australia (HRA), ser. 1, vol. 11 (Sydney: Library Committee of the Commonwealth Parliament, 1917), 854–861. For the Cape Colony case, see Case of L. Cooke and W. Edwards, Libel on the Governor, The National Archives (TNA), Kew, United Kingdom, CO 48/95. For taxation in Bengal, see Travers, Ideology and Empire, chap. 2. 22. Jenny S. Martinez, The Slave Trade and the Origins of International Human Rights Law (New York: Oxford University Press, 2012); Michael N. Barnet, Empire of Humanity: A History of Humanitarianism (Ithaca, NY: Cornell University Press, 2011); Gary  J. Bass, Freedom’s Battle: The Origins of Humanitarian Intervention (New York: Random House, 2008). Some nuanced engagements with the surge in humanitarian sentiment, by some leading scholars in the field, are gathered in Empire and Humanitarianism: Journal of Imperial and Commonwealth History 40, no. 5 (2012): 727–896. Historians of the politics of subordination have noticed the power of the analogy of slavery to other subjugated groups. Consider, for example, Denver Brunsman on the contemporary comparison of sailors to slaves in The Evil Necessity: British Naval Impressment in the Eighteenth-Century Atlantic World (Charlottesville: University of Virginia Press, 2013). 23. Now Sri Lanka. For a full account of the context of Maitland’s intervention, see Chapter 4. 24. McLaren, Dewigged, Bothered and Bewildered. Many of the men who fi lled middling legal administrative posts in this period were Scots. They joined a broader wave of Scottish professional sojourning in the empire, a topic with a rich literature but not one that extends to a broad consideration of Scots in imperial legal posts in the early nineteenth century; the ten chapters of John M. MacKenzie and T. M. Devine’s Scotland and the British Empire (Oxford: Oxford University Press, 2011) do not include one on law. We do know that Scots made key contributions to imperial administration in the period, advocating the importance of agrarian foundations for the empire and other Scottish Enlightenment ideas. See Martha McLaren, British India and British

Notes to Pages 9–10

25.

26.

27. 28.

29.

30.

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Scotland, 1780–1830: Career-Building, Empire-Building, and a Scottish School of Thought on Indian Governance (Akron, OH: University of Akron Press, 2001); and, on the influences of William Fullarton, see Epstein, Scandal of Colonial Rule. Maitland’s instructions to Johnston, enclosure in Maitland to Castlereagh, 25 January 1809, TNA, CO 54/31. See also Chapter 4 of this book. On shifts in the magistracy in the period, see Benton and Ford, “Magistrates in Empire,” 173–198; Brendan Gillis, “Conduits of Justice: Magistrates and the British Imperial State, 1732–1834” (PhD diss., Indiana University, 2015). Aristotle, “Politics,” in Complete Works of Aristotle, vol. 2, The Revised Oxford Translation, ed. Jonathan Barnes (Princeton: Princeton University Press, 1984), 2047–2059. Ibid., 2057–2058. There was, to be sure, an impor tant strand of critique of empire, and even of global commerce, as sources of debilitating and infectious corruption as well as other ills. See Jennifer Pitts, A Turn to Empire; and Sankar Muthu, “Conquest, Commerce, and Cosmopolitanism in Enlightenment Political Thought,” in Muthu, Empire and Modern Political Thought, 199–231. Dirks, Scandal of Empire; Jeremy Bentham, A Plea for the Constitution: Shewing the Enormities Committed to the Oppression of British Subjects, Innocent as well as Guilty, in Breach of Magna Charta, the Petition of Right, the Habeas Corpus Act, and the Bill of Rights; as Likewise of the Several Transportation Acts; in and by the Design, Foundation and Government of the Penal Colony of New South Wales: Including an Inquiry into the Right of the Crown to Legislate without Parliament in Trinidad and other British Colonies (London: Mawman, Poultry, and Hatchard, 1803); Kostal, A Jurisprudence of Power, chap. 5; Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2003), 46–58. For Bentham and the colonies, see David Armitage, “Globalizing Jeremy Bentham,” History of Political Thought 32, no.  1 (2011): 63–82; Jennifer Pitts, A Turn to Empire, chap. 4; and Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (New York: Cambridge University Press, 2010), 191–196. For a recent analysis of the intersection of place, ambition, and humanitarianism in the transformation of governance in the early nineteenth-century British Empire, see Lester and Dussart, Colonization and the Origins of Humanitarian Governance. See also David Lambert and Alan Lester, Colonial Lives across the British Empire: Imperial Careering in the Long Nineteenth Century (Cambridge: Cambridge University Press, 2006); McLaren, Dewigged, Bothered and Bewildered; Laidlaw, Colonial Connections. For an impor tant biographical study of one official’s circulation, see Julie Evans,

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32.

33.

34. 35. 36.

37.

38.

Notes to Pages 10–13 Edward Eyre: Race and Colonial Governance (Dunedin, New Zealand: University of Otago Press, 2005). Catherine Hall reminds us to look both at individual officials’ formation as they moved through colonial postings in different parts of the world and at their connections to, and time spent in, the metropole; see Hall, Civilising Subjects: Metropole and Colony in the English Imagination, 1830–1867 (Chicago: University of Chicago Press, 2002); and Hall, Macaulay and Son: Architects of Imperial Britain (New Haven: Yale University Press, 2012), esp. chap.  5 on Thomas Macaulay as an “imperial man.” Family connections also framed movements around the empire; see Emma Rothschild, The Inner Life of Empires: An Eighteenth-Century History (Princeton: Princeton University Press, 2011). Ann Laura Stoler, Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense (Princeton: Princeton University Press, 2009); Antoinette Burton, Empire in Question: Reading, Writing and Teaching British Imperialism (Durham, NC: Duke University Press, 2011), 94–105. Historians of liberalism in empire have engaged with this puzzle most insistently: either by fi nding authoritarianism clothed in liberalism, as in Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999); or by insisting on the complexity of liberal thought, as in Pitts, A Turn to Empire; Eric Stokes, The English Utilitarians and India (Oxford: Clarendon Press, 1959); Bell, “Empire and International Relations,” 284–289; and Andrew Sartori, Liberalism in Empire: An Alternative History (Oakland: University of California Press, 2014). Case of L. Cooke and W. Edwards, libel on the governor, TNA, CO 48/95; John Shaw to Charles Telfair, 8 and 16 February 1815, Mauritius: enclosures respecting Mr Shaw, TNA, CO 167/28. Bayly, Imperial Meridian, 194–216; Laidlaw, Colonial Connections, 102–117. See Chapters 4–6. John Darwin, The Empire Project: The Rise and Fall of the British WorldSystem, 1830–1970 (Cambridge: Cambridge University Press, 2009); Helen Taft Manning, British Colonial Government after the American Revolution, 1782–1820 (New Haven: Yale University Press, 1933). Hulsebosch and Golove, “A Civilized Nation”; David C. Hendrickson, Peace Pact: The Lost World of the American Founding (Lawrence: University Press of Kansas, 2003); Peter Onuf and Nicholas Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolutions, 1776–1814 (Madison, WI: Madison House, 1993). On novelty, see Paul W. Schroeder, “The 19th-Century International System: Changes in the Structure,” World Politics 39, no. 1 (1986): 1–26; Mark Mazower, Governing the World: The History of an Idea (New York: Penguin, 2012); and

Notes to Pages 13–14

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42.

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Jennifer Mitzen, Power in Concert: The Nineteenth-Century Origins of Global Governance (Chicago: University of Chicago Press, 2013). For a recent history, including an excellent bibliography on Congress of Vienna scholarship, see Mark Jarrett, The Congress of Vienna and Its Legacy: War and Great Power Diplomacy after Napoleon (London: I. B. Taurus, 2013). See also Tim Chapman, The Congress of Vienna: Origins, Processes, and Results (London: Routledge, 1998); Christopher John Bartlett, Peace, War and the European Powers, 1814– 1914 (Houndmills: Palgrave Macmillan, 1996); Carsten Holbraad, The Concert of Europe: A Study in German and British International Theory (London: Longmans, 1970); René Albrecht-Carrié, The Concert of Europe (New York: Walker, 1968); Harold Nicolson, The Congress of Vienna: A Study in Allied Unity, 1812–1822 (London: Constable, 1946); Charles K. Webster, The Congress of Vienna, 1814–1815 (London: Thames and Hudson, 1934). Ken MacMillan, The Atlantic Imperial Constitution: Center and Periphery in the English Atlantic World (New York: Palgrave Macmillan, 2011). Daniel Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 15–70. Robert Travers explores “the notion of an empire of interlinked constitutional idioms” and “the porous boundaries between legal cultures”; see Robert Travers, “Constitutions, Contact Zones, and Imperial Ricochets: Sovereignty and Law in British Asia,” in Britain’s Oceanic Empire: Atlantic and Indian Ocean Worlds, c. 1550–1850, ed. H. V. Bowen, Elizabeth Mancke, and John G. Reid (Cambridge: Cambridge University Press, 2012), 98–129, 103. MacMillan, The Atlantic Imperial Constitution; Hulsebosch, Constituting Empire; Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, MA: Harvard University Press, 2004); Lauren Benton and Kathryn Walker, “Law for the Empire: The Common Law in America and the Problem of Legal Diversity,” Chicago-Kent Law Review 89, no. 3 (2014): 937–956. A single impor tant writ and its uses created patterns of both continuity and discontinuity between England and the colonies; see Paul Halliday, Habeas Corpus: From England to Empire (Cambridge, MA: Harvard University Press, 2012). On vernacular histories of political thought, see Sartori, Liberalism in Empire, 7. Our approach to cultures of imperial constitutions differs in this emphasis on the vernacular from Linda Colley’s tracing of the proliferation of documents called constitutions, many reflecting British influence (see Colley, “Empires of Writing”). We agree with Markus Prutsch’s caution against “a romanticising concept of ‘constitutionalism’ ” that embeds within it “the teleological assumption of there having been a breakthrough of liberal democracy” that accompanied constitutional discourse. Markus J. Prutsch, “Crisis,

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44. 45.

46.

47.

48. 49. 50. 51.

Notes to Pages 14–18 Populace and Leadership: Reflections on ‘Modern Caesar ism,’ ” in Koskenniemi and Stråth, Creating Community and Ordering the World, 123–135, at 123. Dirks, Scandal of Empire; Epstein, Scandal of Colonial Rule; Kirsten McKenzie, Scandal in the Colonies: Sydney and Cape Town, 1820–1850 (Carlton: Melbourne University Press, 2004). See Chapter 2. “A Sketch of the Constitution of the Kandyan Kingdom. By the late Sir John D’Oyly.— Communicated by Sir A. Jobxston, Vice-President, R.A.S., F.R.S. Read May 7, 1831. To Graves C. Haugston, Esq., M.A., F.R.S., Honorary Secretary to the Royal Asiatic Society. December 31, 1831,” Transactions of the Royal Asiatic Society 3, no. 2 (1833): 191–252. Ward to Grey, 4 June 1849, TNA, CO 136/131. The label “constitutional despotism” seems to have come into vogue in the late eighteenth century: for instance, in describing the reforms of James II, Catherine Macaulay, The History of England from the Accession of James I to that of the Brunswick Line, vol. 1 (London: J. Nourse, 1763), 216; or describing the ramifications of an armed citizenry in Britain, William Paley, The Principles of Moral and Political Philosophy (London: R. Faulder, 1786). It is much more frequently deployed after 1800. Andrew Dewar Gibbs, Scottish Empire (London: Alexander Maclehose, 1937); John MacKenzie, “Essay and Reflection: On Scotland and the Empire,” International History Review 15, no.  4 (1993): 714–739;  T.  M. Devine, Scotland’s Empire and the Shaping of the Americas, 1600–1815 (London: Penguin, 2012); for recent discussion, see Epstein, Scandal of Colonial Rule, 46–89; and Douglas Hamilton, Scotland, the Caribbean and the Atlantic World, 1750–1820 (Manchester: Manchester University Press, 2005). See Chapter 3; McLaren, Dewigged, Bothered and Bewildered, chap. 9. Zoë Laidlaw, “Richard Bourke: Irish Liberalism Tempered by Empire,” in Lester and Lambert, Colonial Lives across the British Empire, 113–144. P.  J. Marshall, The Making and Unmaking of Empires: Britain, India, and America, c. 1750–1783 (Oxford: Oxford University Press, 2007). The label “constitutional moment” has been used in the history of international law to describe discrete events such as the draft ing of the U.N. Charter and the September 11 attacks on the United States. See Jenny S. Martinez, “ Towards an International Judicial System,” Stanford Law Review 56, no. 2 (2003): 429–529; and Anne-Marie Slaughter and William W. Burke-White, “An International Constitutional Moment,” Harvard International Law Journal 43, no. 1 (2002): 1–21. Scharf uses the term “Grotian moments” to label shifts in customary international law in Michael P. Scharf, Customary International Law in Times of Fundamental Change: Recognizing Grotian Moments

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(Cambridge: Cambridge University Press, 2013). The extended constitutional moment we are pointing to here neither involves a discrete turning point nor denotes a change in customary international law. It unfolded across several decades and involved a reorganization of an administrative order with global reach and constitutional aims. One of its effects was to shift political conflict into the judicial realm. For the “judicialization of politics,” see C. Neal Tate and Torbjorn Vallinder, eds., The Global Expansion of Judicial Power (New York: NYU Press, 1995), 1. Our study also shares some features with works on “global administrative law” and with broadly related efforts to characterize the international legal system as a constitution. See Benedict Kingsbury, Nico Krisch, and Richard Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68, no. 15 (2005): 15–62. 52. The phrase is David Kennedy’s, in “International Law and the Nineteenth Century: History of an Illusion,” Nordic Journal of International Law 65 (1996): 391. Kennedy argues that for international lawyers the nineteenth century appears more distant than the early modern period and that what international lawyers think about the nineteenth century, too, “is connected only very loosely with anything that happened or was thought between 1800 and 1900” (386). On the importance of recovering the nineteenth-century foundations of international law, see also Luigi Nuzzo, “History, Science and Christianity: International Law and Savigny’s Paradigm,” in Constructing International Law: The Birth of a Discipline, ed. Luigi Nuzzo and Miloš Vec (Frankfurt: Vittorio Klostermann, 2012), 25–50; and Liliana Obregón, “The Civilized and the Uncivilized,” in The Oxford Handbook of the History of International Law, ed. Bardo Fassbender and Anne Peters (Oxford: Oxford University Press, 2012), 917–941. Koskenniemi broadens the canon of early nineteenth-century jurists in the history of international law in “Ruling the World by Law(s): The View from Around 1850,” in Koskenniemi and Stråth, Creating Community and Ordering the World, 16–32. 53. Wilhelm G. Grewe, The Epochs of International Law, trans. Michael Byers (New York: Walter de Gruyter, 2000). More broadly, the emergence of international society through the expansion and diff usion of a European system of sovereign states has been described by the so-called English School; see Hedley Bull and Adam Watson, eds., The Expansion of International Society (Oxford: Oxford University Press, 1985). There is a large literature critiquing and amending this approach, but some international relations scholars argue that the critique has not fully corrected the implicit representation of the West as the font of “progressive agency, rationality, order and sources of (universal) values and norms” that bind the global order and the characterization of the non-West as holding “regressive properties and at the receiving end of the benefits of Western civilization.” Shogo Suzuki, Yongjin Zhang, and

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55.

56. 57. 58.

59.

60.

Notes to Pages 19–21 Joel Quirk, “Introduction: The Rest and the Rise of the West,” in International Orders in the Early Modern World, ed. Shogo Suzuki, Yongjin Zhang, and Joel Quirk (New York: Routledge, 2014), 3. Anghie, Imperialism, Sovereignty; Shogo Suzuki, Civilization and Empire: China and Japan’s Encounter with European International Society (New York: Routledge, 2009); Edward Keene, “The Standard of ‘Civilisation,’ the Expansion Thesis and the 19th-Century International Social Space,” Millennium 42, no. 3 (2014): 651–673; Koskenniemi, The Gentle Civilizer of Nations. Recent examples of works addressing the problem of empire and international law include Anghie, Imperialism, Sovereignty; Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press, 2002); Lauren Benton, A Search for Sovereignty, chap. 5; Lauren Benton and Benjamin Straumann, “Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice,” Law and History Review 28, no. 1 (2010): 1–38; and Andrew Fitzmaurice, Sovereignty, Property and Empire, 1500–2000 (Cambridge: Cambridge University Press, 2014). Grewe, The Epochs of International Law, 451. See, for example, Martinez, The Slave Trade, 158–170. See Ian Hunter’s critique of juridical history in Hunter, “Vattel in Revolutionary America: From the Rules of War to the Rule of Law,” in Between Indigenous and Settler Governance, ed. Lisa Ford and Tim Rowse (Abingdon: Routledge, 2013), 12–22. For a nuanced discussion of the use of and strains on Vattel’s Law of Nations in this period, see Onuf and Onuf, Federal Union, Modern World. This is true of most contributions to the field, from the scholars of liberalism cited above, including Mehta, Liberalism and Empire, Bell, “Empire and International Relations,” Pitts, A Turn to Empire, and Hunter, “Vattel in Revolutionary America,” to law school scholars such as Anghie, Imperialism, Sovereignty, and Koskenniemi, The Gentle Civilizer of Nations. Some intellectual histories do recognize the influence of colonial politics; a fine example is Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton: Princeton University Press, 2010). This is not to belittle the importance of recent studies that widen the circle of key writers on international law. Examples of works tracing the contributions of non-European jurists to international law include Liliana Obregón, “Completing Civilization: Creole Consciousness and International Law in Nineteenth-Century Latin America,” in International Law and Its Others, ed. Anne Orford (Cambridge University Press, 2006), 247–264; Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History, 1842–1933 (Cambridge: Cambridge University Press, 2014); and, in a move to include

Notes to Pages 21–28

61.

62.

63.

64.

65.

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non-elite actors, Saliha Belmessous, ed., Native Claims: Indigenous Law against Empire, 1500–1920 (Oxford: Oxford University Press, 2012). Some intellectual historians have started looking for the interface of high theory and practice. Jennifer Pitts has elevated Lord Stowell, a judge of the High Court of Admiralty, to the ranks of an influential theorist of the law of nations: Pitts, “Empire and Legal Universalisms in the Eighteenth Century,” American Historical Review 117, no. 1 (2012): 92–121. See also Ian Hunter on the noted barrister and law textbook writer Joseph Chitty’s “assimilation of Vattel to British politics and English law”: Hunter, “Global Justice and Regional Metaphysics: On the Critical History of the Law of Nature and Nations,” in Law and Politics in British Colonial Thought: Transpositions of Empire, ed. Shaunnagh Dorsett and Ian Hunter (New York: Palgrave Macmillan, 2010), 22–24. Andrew Fitzmaurice’s interest in Travers Twiss also contributes to this endeavor: Fitzmaurice, Sovereignty, Property and Empire, 229–239, 276–284. For a recent exploration of this approach in the context of decolonization of French Africa, see Frederick Cooper, Citizenship between Empire and Nation: Remaking France and French Africa, 1945–1960 (Princeton: Princeton University Press, 2014). For a critique of the concept of an “age of revolutions,” see Jane Burbank and Frederick Cooper, Empires in World History: Power and the Politics of Difference (Princeton: Princeton University Press, 2010), 219–223. Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations (Princeton: Princeton University Press, 2009), 23–24. See Chapters  5 and  6. We are grateful to Paul Schulte for suggesting the analogy of a force field to describe this type of regional influence.

Chapter Two: Controlling Despotic Dominions 1. The full range of despotisms are discussed in William Fullarton’s introduction to and in his précis of evidence given before the Privy Council trial: William Fullarton, Substance of the evidence delivered before the . . . Privy Council, in the case of Governor Picton . . . (Edinburgh: Murray and Cochrane, 1807). This hearing took place under 33 Hen. 8, c. 23; the very interesting inquiries undertaken by the court into the matter (many of them outside the confines of the trial) are gathered in The National Archives (TNA), Kew, United Kingdom, CO PC1/3557. The council’s opinion was delivered in Privy Council to the King, January 5, 1807, TNA, CO PC1/3557. 2. Howell, A Complete Collection of State Trials . . . , vol. 30 (Longman, Hurst, Rees, Orme, and Brown, 1822), 931–937. The text of Stephen’s plea is lost, but

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4.

5.

6.

7. 8.

9.

Notes to Pages 28–30 his arguments are summarized (no doubt very partially) by counsel for the Crown. See James Epstein, Scandal of Colonial Rule: Power and Subversion in the British Atlantic during the Age of Revolution (Cambridge: Cambridge University Press, 2012). In his writings about the future of Trinidad in 1802, Stephen argued passionately that the island should not receive a legislature because slaveholders could not do justice to a slave population whose interests were so opposed to their own. James Stephen, Crisis in the Sugar Colonies: Or, an Enquiry into the Objects and Probable Effects of the French Expedition to the West Indies (London: J. Hatchard, 1802). Jennifer Pitts, “Legislator of the World? A Rereading of Bentham on Colonies,” Political Theory 31, no. 2 (2003): 200–234; Pitts, “Empire and Legal Universalisms in the Eighteenth Century,” American Historical Review (AHR) 117, no. 1 (2012): 92–121. Marryat’s Speech, Commons Sitting of Thursday, 25  July 1822, House of Commons Hansard, HCPP, ser. 2, vol. 7; W. C. Went worth, A Statistical, Historical, and Political Description of the Colony of New South Wales and Its Dependent Settlements in Van Diemen’s Land (London: G. and W. B. Whittaker, 1819), 162–165, 327–329. In addition, see Edward Eagar’s representations to Commissioner Bigge, discussed in this chapter. Lauren Benton, “Just Despots: The Cultural Construction of Imperial Constitutionalism,” Law, Culture and the Humanities 9, no. 2 (2013): 213–215. Compare James Spigelman, “Bicentenary of the Coup of 1808,” Legal History 12, no. 1 (2008): 1–18, who argues that the illegal rebellion, predicated on the defense of soldierly honor, precipitated a reactive investment in the rule of law. Lynn Hunt attributes great influence in debates on slavery to the “bulldozer force of the revolutionary logic of rights.” Lynn Hunt, Inventing Human Rights (New York: Norton, 2007), 160. See also Robin Blackburn, The American Crucible: Slavery, Emancipation and Human Rights (London: Verso, 2011). Against this story of the rise of human rights, see Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press of Harvard University Press, 2012); and on the reflexive linking of the impact of the Haitian Revolution with rights talk, see David Geggus, “The Caribbean in the Age of Revolution,” in The Age of Revolutions in Global Context, ed. David Armitage and Sanjay Subrahmanyam (New York: Palgrave Macmillan, 2010). Ada Ferrer threads between these positions, fi nding in the Haitian Revolution continuities in understandings of rights as assigned and flowing from authority and in some respects “a robust redefinition of a space of rights.” Ferrer, Freedom’s Mirror: Cuba and Haiti in the Age of Revolution (Cambridge: Cambridge University Press, 2014), 334.

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10. Alan Atkinson, “The Little Revolution in New South Wales, 1808,” International History Review 12, no. 1 (1990): 65. Bligh was appointed in 1805 but did not arrive in the colony until mid-1806. 11. Court Martial, appendix 19, quoted in Alan Atkinson, “The British Whigs and the Rum Rebellion,” Journal of the Royal Australian Historical Society (JRAHS) 66, no. 2 (1980): 85. 12. Major Johnston to Viscount Castlereagh, 11 April 1808, in HRA, ser. 1, vol. 6, 1806–1808 (Sydney: Library Committee of the Commonwealth Parliament, 1916), 208–221, at 209. 13. A. G. L. Shaw, “Bligh, William (1754–1817),” in Australian Dictionary of Biography. Available at http://adb.anu.edu.au/biography/bligh-william-1797. 14. There are many studies of the mutiny on the Bounty. One of the most celebrated is Greg Dening, Mr Bligh’s Bad Language: Passion, Power and Theatre on the Bounty (Cambridge: Cambridge University Press, 1992). For Bligh’s own account, see William Bligh, Bligh and the Bounty: His Narrative of the Voyage to Otaheite, with an Account of the Mutiny and of His Boat Journey to Timor (London: Methuen, 1936). 15. Bligh had designs on the ship since its arrival: Lt Colonel Foveaux to Under Secretary Cooke, 21 October 1808, HRA 1, no. 6, 669, but took command in March 1809: Lt-Governor Paterson to Viscount Castlereagh, 26 March 1809, HRA 1, no. 7, 72–73; for Bligh’s account, see Bligh to the Hon. William Pole, 3 June 1809, HRA 1, no. 7, 90–94. 16. Ross Fitzgerald and Mark Hearn, Bligh, Macarthur and the Rum Rebellion (Kenthurst: Kangaroo Press, 1988), 116–117; related in Bligh to Viscount Castlereagh, 10 June 1808, HRA 1, no. 7, 125–127. 17. John Ritchie, ed., A Charge of Mutiny: The Court Martial of Lieutenant Colonel George Johnston for Deposing Governor William Bligh in the Rebellion of 26 January 1808 (Canberra: National Library of Australia, 1988), 143–144. 18. Emma Christopher, A Merciless Place: The Lost History of the Convicts sent to West Africa and the Settlement of Australia (Crows Nest, NSW: Allen and Unwin, 2010); A. Roger Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1718–1775 (Oxford: Clarendon Press, 1987). 19. Bruce Kercher, “Resistance to Law under Autocracy,” Modern Law Review 60, no. 6 (1997): 780–781; Alex Castles, An Australian Legal History (Sydney: Law Book Co., 1982), 32–35. 20. Quoted in Brian H. Fletcher, Landed Enterprise and Penal Society: A History of Farming and Grazing in New South Wales before 1821 (Sydney: Sydney University Press, 1976), 101. 21. Grace Karskens and Richard Waterhouse, “ ‘Too Sacred to Be Taken Away’: Property, Liberty, Tyranny and the ‘Rum Rebellion,’ ” Journal of Australian Colonial History 12 (2010): 1–22.

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Notes to Pages 35–37

22. Ritchie, introduction to A Charge of Mutiny, xvii. 23. See Karskens and Waterhouse, “ ‘Too Sacred to Be Taken Away’ ”; Grace Karskens, The Rocks: Life in Early Sydney (Carlton, Vic.: Melbourne University Press, 1997). 24. Alan Atkinson, The Europeans in Australia: A History, vol. 1, The Beginning (Melbourne: Oxford University Press, 1997), 274; Kercher, “Resistance to Law under Autocracy,” 787. 25. Spigelman, “Bicentenary of the Coup of 1808,” 8; Richard Atkins, evidence, in A Charge of Mutiny, 175. 26. John Macarthur, evidence, in A Charge of Mutiny, 180–186. 27. Robert Fitz to William Chapman, 15 October 1807, in Historical Records of New South Wales (HRNSW), vol. 6, King and Bligh, 1806, 1807, 1808, ed. F. M. Bladen (Sydney: William Applegate Gullick, 1898), 305. 28. George Johnston, cross-examination of Bligh, in A Charge of Mutiny, 57–60. 29. John Macarthur, evidence, in A Charge of Mutiny, 180–187. 30. Quoted in Atkinson, The Europeans in Australia, 273. 31. John Blaxland, evidence, in A Charge of Mutiny, 298. 32. D’Arcy Wentworth, Memorial to Viscount Castlereagh, 17 October 1807, HRNSW 6:314–328, 336–349; and see Atkins, evidence, in A Charge of Mutiny, 160–161. 33. Lt. William Minchin, evidence, in A Charge of Mutiny, 238. 34. Fitz to Chapman, 15 October 1807, HRNSW 6:305–306; Richard Atkins, evidence, Anthony Fenn Kemp, evidence, and John Blaxland, evidence, in A Charge of Mutiny, 164, 218, 321–322. 35. Macarthur, evidence, in A Charge of Mutiny, 210. Allegations against Gore: Macarthur and Judge-Advocate, in A Charge of Mutiny, 190, 188; Kemp, evidence, in A Charge of Mutiny, 218. Allegations against Mason: Col. Johnston, cross-examination of Martin Mason, evidence, in A Charge of Mutiny, 127–129. Corruption of Hawkesbury settlers: Richard Atkins, evidence, in A Charge of Mutiny, 174. 36. K. G. Allars, “George Crossley: An Unusual Attorney,” Journal and Proceedings (Royal Australian Historical Society) 44, no. 5 (1959): 261–300. 37. Robert Campbell, evidence, and Richard Atkins, evidence, in A Charge of Mutiny, 87, 165. 38. Richard Atkins, evidence, in A Charge of Mutiny, 165–168. 39. Anthony Fenn Kemp, evidence, in A Charge of Mutiny, 219. 40. Kirsten McKenzie, Scandal in the Colonies: Sydney and Cape Town, 1820–1850 (Carlton: Melbourne University Press, 2004), 11–12. 41. For a series of rich examples of attitudes to Botany Bay among the London literati, see Ron Coleman Solomon, “Barron Field and the Supreme Court of Civil Judicature: Law, Personality and Politics in New South Wales, 1816– 1824” (PhD diss., University of New South Wales, 2013), 51–52.

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42. Dening, Mr Bligh’s Bad Language. 43. Anthony Fenn Kemp, evidence, in A Charge of Mutiny, 228–229. These included grants to John Blaxland and to John Townson and his brother: See Fitzgerald and Hearn, Bligh, Macarthur and the Rum Rebellion, 86; John Townson to  W. Windham, 23  September 1807, HRNSW 6:286–287; John Townson to W. Windham, 10 October 1807, HRNSW 6:299–301; John Blaxland to [?], 16 October 1807, HRNSW 6:308–313. 44. Richard Atkins, evidence, in A Charge of Mutiny, 161. 45. Ibid. 46. John Macarthur, evidence, in A Charge of Mutiny, 179. 47. Hearn and Fitzgerald, Bligh, Macarthur and the Rum Rebellion, 85–86; Fitz to Chapman, 15 October 1807, HRNSW 6:306. 48. Report of Proceedings, HRNSW 6:335. 49. Escape by sea was not uncommon in the early colony. Grace Karskens, “ ‘This Spirit of Emigration’: The Nature and Meaning of Escape in Early New South Wales,” Journal of Australian Colonial History 7 (2005): 1–34. 50. Fitzgerald and Hearn, Bligh, Macarthur and the Rum Rebellion, 88 (they say ₤800); Macarthur, evidence, in A Charge of Mutiny, 191. 51. Fitzgerald and Hearn, Bligh, Macarthur and the Rum Rebellion, 88. 52. John Macarthur to Richard Atkins, 14  December 1807, in A Charge of Mutiny, 464. 53. Macarthur, evidence, in A Charge of Mutiny, 193. 54. Contemporaries disagreed about whether Atkins was ever drunk on duty: A.  T. Yarwood, Samuel Marsden: the Great Survivor (Carlton: Melbourne University Press, 1977), 64–65. 55. Macarthur threatened Atkins with a suit for false imprisonment if he was not found guilty in this prosecution. “Copy of the Protest against Judge Advocate Atkins, Read by Mr. John McArthur, to the Members Composing the Criminal Court Assembled the 25th of January 1808,” in A Charge of Mutiny, 466–467. 56. Macarthur, evidence, in A Charge of Mutiny, 196. 57. Quoted in William Bligh, Account of the Rebellion of the New South Wales Corps, ed. John Currey (Malvern: Banks Society Publications, 2003), 30–31. 58. William Gore, evidence, in A Charge of Mutiny, 97; see John Townson to W. Windham, 10 October 1807, HRNSW 6:301. 59. Gore, evidence, in A Charge of Mutiny, 98. 60. Francis Oakes, evidence, in A Charge of Mutiny, 91. 61. Fitzgerald and Hearn, Bligh, Macarthur and the Rum Rebellion, 71. 62. Karskens and Waterhouse, “ ‘Too Sacred to Be Taken,’ ” 11. 63. Mason, evidence, in A Charge of Mutiny, 125–126. 64. Walker, evidence, in A Charge of Mutiny, 136. 65. Ritchie, introduction to A Charge of Mutiny, xiv.

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Notes to Pages 40–42

66. Joseph Banks told Bligh that the Board of Admiralty had laughed him out of the room when he told them that “Bounty Bligh” had been appointed to the governorship of New South Wales: Banks to Bligh, 21 April 1805, ML A78-4. The Bounty business, combined with an 1805 court-martial finding that Bligh had treated an officer on the Warrior in “a tyrannical and oppressive and unofficerlike manner,” left him with few supporters in London. They were also the wrong supporters, according to Atkinson. Bligh’s reputation with the Admiralty worsened with the trial of Joseph Short in 1807. Short had quarreled with Bligh about rank on their voyage out to New South Wales. His family died on the trip back to England, after Bligh refused to let him land in the colony and sent him off for trial by court-martial for his insubordination. Elizabeth Bligh (who wisely refused to move to Sydney with her husband) reported that judges, former governors, and witnesses in the Short trial colluded to turn the trial into a campaign to “recall and ruin Bligh.” Mrs. Bligh to Banks, undated (10 February 1808), ML A78-5. Though he had fired over the bow of Bligh’s ship at one point, Short was honorably acquitted by the court. These events are discussed in depth in Atkinson, “British Whigs and the Rum Rebellion.” 67. Campbell v Hall (1774) 1 Cowp 204, 98 ER 1045, found that the Crown held enormous powers to govern and to make law for a conquered colony until it settled a postconquest constitution. Once a legal system limiting crown power was settled, only Parliament could alter it. In that case, the fact that the Crown gave Grenada a legislature with powers of taxation prevented the Crown from levying tax. 68. Alan Atkinson, “Jeremy Bentham and the Rum Rebellion,” JRAHS 64, no. 1 (1978): 2. 69. Ibid., 4. 70. T. W. Plummer to Colonel Macquarie, 4 May 1809, HRA 1, no. 7, 197–200. Atkinson reasons that it was in fact penned by Macarthur, or at least reflects his opinions closely: Atkinson, “Jeremy Bentham and the Rum Rebellion,” 7. 71. King wrote: “When it is considered that three-fourths of the inhabitants have been spared from an ignominious death by the humanity of the laws of England, and that the greater part of that number are so rooted in wickedness and vice . . . joined to the very little amendment that is seen in those who have either expiated their crimes . . . the necessity of restrictive local Regulations must be visible to everyone.” Memorandum by Governor King on the Legality of Government and General Orders, 2 January 1806, HRA, ser. 4, Legal Papers, vol. 1, 1786–1827 (Sydney: William Applegate Gullick, 1922), 44. 72. 4 Geo. IV c. 96. 73. Atkinson, “British Whigs and the Rum Rebellion.” 74. Quoted in D. J. Murray, The West Indies and the Development of Colonial Government, 1801–1834 (Oxford: Clarendon Press, 1965), 51.

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75. Kit Candlin, The Last Caribbean Frontier, 1795–1815 (New York: Palgrave Macmillan, 2012), 123. 76. Robert Travers, “ ‘The Magna Charta of Hindostan’: Constituting the British Empire in Eighteenth-Century India” (American Historical Association, New York, January 2, 2015). 77. An Impartial Report of the Debates in the House of Commons on the East India Reform Bills (London, 1783) as discussed by Travers in ibid. 78. John Gascoigne, The Enlightenment and the Origins of European Australia (Cambridge: Cambridge University Press, 2005), 9–13. 79. “No. 4, in Letter from Governor Elliot to the Earl of Liverpool, 25 November, 1810,” House of Commons, “Papers relating to the West Indies: viz. correspondence relating to punishments inflicted on certain Negro slaves, in the island of Nevis; and to prosecutions in consequence,” May 1811, House of Commons, Parliamentary Papers (HCPP), no. 204, XI 353 (hereafter “Papers relating to the West Indies: Nevis”), 23. 80. “No. 10, Letter from Governor Elliot to the Earl of Liverpool, 25 November, 1810,” House of Commons, “Papers relating to the West Indies: Nevis,” 36. 81. C. Ellis, 14 December 1796, speaking for the West India Committee, quoted by The Edinburgh Review: or Critical Journal, October 1824, 221. 82. David Barry Gaspar, “Ameliorating Slavery: The Leeward Island Slave Act of 1798,” in The Lesser Antilles in the Age of European Expansion, ed. Robert L. Paquette (Gainesville: University Press of Florida, 1996), 241–258, at 242. It is interesting to note that the Act followed a wave of legislation in the Leeward Islands focused on controlling slaves and protecting masters’ prerogatives. That legislation had included provisions for the trial by magistrates of slaves accused of serious crimes. Elsa Goveia, Slave Society in the British Leeward Islands at the End of the Eighteenth Century (New Haven: Yale University Press, 1965), 176. 83. Malick Ghachem develops this point nicely and quotes Montesquieu, who defined slavery as “the establishment of a right which makes one man so much the owner of another man that he is the absolute master of his life and his goods.” Ghachem, The Old Regime and the Haitian Revolution (New York: Cambridge University Press, 2012), 64. 84. “No. 10, Letter from Governor Elliot to the Earl of Liverpool, 25 November, 1810,” House of Commons, “Papers relating to the West Indies: Nevis,” 19. 85. “No. 10, Letter from Governor Elliot to the Earl of Liverpool, 25 November, 1810,” House of Commons, “Papers relating to the West Indies: Nevis,” 36. 86. “No. 7, Letter from Governor Elliot to the Earl of Liverpool, 25 November, 1810,” House of Commons, “Papers relating to the West Indies: Nevis,” 29. 87. Ibid. 88. Ibid., 29–31.

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Notes to Pages 46–47

89. “An Act more effectually to provide for the Support, and to extend certain Regulations for the Protection of Slaves, to promote and encourage their Increase, and generally to meliorate their Condition,” in The Laws of the Island of Antigua: Consisting of the Acts of the Leeward Islands, Commencing 8th November 1690, Ending 21st April 1798; and the Acts of Antigua, Commencing 10th April 1668, Ending 7th May 1804, vol. 1 (London: Samuel Bagster, 1805), no. 36, 20–43. It was often referred to as the Melioration Act. Similar legislation had passed in Jamaica, the empire’s premier sugar-producing colony, nearly a decade before. Natalie Davis reminds us that the plural legal order of slavery extended to the legal practices of slaves; Davis, “Judges, Masters, Diviners: Slaves’ Experience of Criminal Justice in Colonial Suriname,” Law and History Review 29, no. 4 (2011): 925–984; see also Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002), 59–66. 90. J.  W. Tobin to Governor Elliot, 7  September 1810, Leeward Islands: Despatches, 1810 Oct–Dec; Offices and Individuals, TNA, CO 152/96; “No 2. in Governor Elliot to the Earl of Liverpool, 24 August 1810,” House of Commons, “Papers Relating to the West Indies: Nevis,” 6. 91. “Letter from John Dasent Smith to Governor Elliot, Nevis, August 31, 1810,” Leeward Islands: Despatches, 1810 Oct–Dec; Offices and Individuals, TNA, CO 152/96; “No 3. in Governor Elliot to the Earl of Liverpool, 24  August 1810,” House of Commons, “Papers Relating to the West Indies: Nevis,” 7. 92. For local protest, see “No 2. in Governor Elliot to the Earl of Liverpool, 24 August 1810,” House of Commons, “Papers Relating to the West Indies: Nevis,” 6. 93. “Letter from J. W. Tobin to Governor Elliot, 7 September, 1810,” TNA, CO 152/96. 94. “Letter from the Earl of Liverpool, to Governor Elliot; 20 September 1810,” House of Commons, “Papers Relating to the West Indies: Nevis,” 1. 95. “Letter from the Earl of Liverpool, to Governor Elliot, 12 April, 1811,” House of Commons, “Papers Relating to the West Indies: Nevis,” 2. 96. “Letter from  J.  W. Tobin to Governor Elliot, 7  September, 1810,” TNA, CO 152/96. Tobin also complained that two of the people on the jury had conducted the flawed inquest in the case, including “one of the Magistrates who, with unconcern beheld the flogging in the market place,” and that most of the lawyers appearing in the trial were “men overwhelmed by debt.” An extract of the letter was printed in the London Chronicle, prompting complaints to Elliot by the Chief Justices of Saint Christopher and Nevis, and one of the lawyers present at the trial, who defended his advanced training in law. House of Commons, “Papers Relating to the West Indies, viz. Letters to Governor Elliot from Mr. Garrett, Mrs. Weekes and Mr. Peterson,” January 1812, HCPP, no. 30, X 311. 97. “Letter from J. W. Tobin to Governor Elliot, 7 September, 1810,” TNA, CO 152/96.

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98. Letter from Governor Elliot to the Earl of Liverpool, 1 April 1811, in House of Commons, “Papers Relating to the West Indies: Viz. Correspondence between the Earl of Liverpool and Governor Elliot;—In Reference to the Trial and Execution of Arthur Hodge for the Murder of a Negro Slave,” June 1811, HCPP, no. 254, XI 397 (hereafter “Papers Relating to the West Indies: Hodge”). 99. Belisario, Report of the Trial of Arthur Hodge, 17–19. 100. The National Library of Scotland, MS 12960, 190–193. 101. Hodge’s main ally, William Musgrave, wrote to the governor of a “foul conspiracy” behind the charges. Letter from William Musgrave to Governor Elliot, 2 April 1811, in “Papers Relating to the West Indies: Hodge,” 10, 11; see Lauren Benton, “The Melancholy Labyrinth: The Trial of Arthur Hodge and the Boundaries of Imperial Law,” Alabama Law Review 64, no. 1 (2012): 91– 120. Musgrave’s accusations of perfidy were overshadowed by his loose talk in defense of brutality toward slaves, a position no one else was prepared to defend; he told the court that “it was no greater offence in law for his owner to kill [a negro] than it would be to kill his dog.” A. M. Belisario, A Report of the Trial of Arthur Hodge, Esquire (Late One of the Members of His Majesty’s Council for the Virgin-Islands) at the Island of Tortola, on the 25th April, 1811, and Adjourned to the 29th of the Same Month; for the Murder of His Negro Man Slave Named Prosper (Middletown: Tertius Dunning, 1812), 77. It is not possible to know whether Musgrave in fact uttered this line. The prosecutor quoted his statement at the bail hearing at the trial. It was then repeated in various summaries of the case circulating in Britain. See, for example, “Publications on West Indian Slavery,” Edinburgh Review 19 (November 1811–February 1812): 129, 144; “West Indian Slavery: Abstract of the Affidavits on the Table of the House of Commons, Relating the Circumstances Which Led to Mr. Hodge’s Trial,” Pol. Rev. & Monthly Mirror of the Times 10 (August 1811–January 1812): 367, 371. The quote remained a central focus of commentary on the case five years later. See West-Indian Sketches, Drawn from Authentic Sources: The Nature of West-Indian Slavery Further Illustrated by Certain Occurrences on the Island of Tortola (London: Ellerton and Henderson, 1816), 39; “Antidote to ‘West Indian Sketches,’ Drawn from Authentic Sources,” Colonial Journal 3 (March  1818): 47, 52; Bryan Edwards, The History, Civil and Commercial of the British Colonies in the West Indies (Cambridge: Cambridge University Press, photographic reprint 2010 [1819]), 458–460. 102. Abolition had created a windfall: the possibility of receiving bounties for captured slaves as well as profiting from their assignment as servants or their covert sale. Benton, “The Melancholy Labyrinth”; Benton, “Abolition and Imperial Law, 1780–1820,” Journal of Commonwealth and Imperial History 39, no. 3 (2011): 355–374. On profit taking in the wake of the Abolition Act in Sierra

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103.

104.

105. 106. 107.

108. 109. 110. 111. 112.

113.

Notes to Pages 48–50 Leone, see Padraic Scanlan, “MacCarthy’s Skull: The Abolition of the Slave Trade in Sierra Leone, 1790–1823” (PhD diss., Princeton University, 2013). Tortola’s reputation as a lawless place was not entirely new. George Suckling had been appointed by the Crown to serve as the first chief justice of the Virgin Islands in 1777, and he described the island as “tumultuous and lawless” and under the control of a corrupt majority that was blocking the establishment of courts while “arrogating to themselves an unconstitutional authority over the rights of their fellow-subjects.” George Suckling, An Historical Account of the Virgin Islands, in The West Indies: From their Being Settled by the English near a Century Past, to their Obtaining a Legislature of their Own in the Year 1773; and the Lawless State in which His Majesty’s Subjects in those Islands Have Remained since that Time, to the Present (London: Printed for Benjamin White, 1780), 49, 65, 34. Murray, West Indies and the Development of Colonial Government, 13–24. Zoë Laidlaw, Colonial Connections, 1815–45: Patronage, the Information Revolution and Colonial Government (Manchester: Manchester University Press, 2005), 61–89. Letter from Governor Elliot to the Earl of Liverpool, (1 April 1811), “Papers Relating to the West Indies: Hodge,” 1–2. Belisario, Report of the Trial of Arthur Hodge, 36. “Letter from Governor Elliot, to the Earl of Liverpool, 21  November 1810,” House of Commons, “Papers relating to the West Indies: Nevis,” 13. An account of the trial was published in London and in Middletown, Connecticut: Belisario, A Report of the Trial of Arthur Hodge. “Letter from the Earl of Liverpool, to Governor Elliot, 12 April 1811,” House of Commons, “Papers Relating to the West Indies: Nevis,” 2. Letter from Governor Elliot to the Secretary of State, 15 May 1811, TNA, CO 152/97. Letter from Governor Elliot to the Earl of Liverpool, 18 May 1811, The National Library of Scotland, MS 13055, 122–122v. Belisario, Report of the Trial of Arthur Hodge, 88. As a member of Parliament, James Stephen led a campaign to create a slave registry for the British West Indies; he and his allies were ultimately successful only in establishing one for Trinidad. The registry, abolitionists claimed, would create a way to measure contraband trade and open slave conditions to scrutiny. Stephen, Crisis of the Sugar Colonies, 133–134, 137, 189. Stephen worried that the sugar islands were doomed to deliver “a pigmy model of the British Constitution” in which slaveholding legislatures must always govern against the interests of the slave majority (190). For more on Stephen’s pessimism about rule for the common good in the West Indies, see Lauren Benton and Aaron Slater, “Constituting the Imperial Community: Rights, Common Good and

Notes to Pages 51–53

114. 115. 116. 117. 118. 119.

120.

121.

122.

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Authority in Britain’s Atlantic Empire, 1607–1815,” in Revisiting the Origins of Human Rights, ed. Pamela Slotte and Miia Halme-Tuomisaari (Cambridge: Cambridge University Press, 2015), 140–162. Liverpool to Elliott, January 1812, Leeward Islands: Despatches, 1810 Oct–Dec; Offices and Individuals, TNA, CO 152/99. Marryat, 13 June 1811, HCPP, ser. 1, vol. 20. Canning, 13 June 1811, House of Commons Hansard, HCPP, ser. 1, vol. 20. Henry Brougham (Camelford), 13 June 1811, House of Commons Hansard, HCPP, ser. 1, vol. 20. Lord Nugent, Commons Sitting of Thursday, 25 July 1822, House of Commons Hansard, HCPP, ser. 2, vol. 7. A helpful shorthand aid is offered by Burbank and Cooper, who suggest the label of “empire-states” for the dominant polities of the period. Jane Burbank and Frederick Cooper, Empires in World History: Power and the Politics of Difference (Princeton: Princeton University Press, 2010), 8, 179, 235, 245. Bayly noted decades ago the “significant growth of the power and aims of the British imperial state” in the first decades of the nineteenth century, but the phenomenon, and especially its legal dimensions, has still received insufficient attention; C. A. Bayly, Imperial Meridian: The British Empire and the World, 1780–1830 (London: Longman, 1989), 115. Standard periodization has also been slow to change. Note the end date in the title of John Brewer’s The Sinews of Power: War, Money, and the English State, 1688–1783 (Cambridge, MA: Harvard University Press, 1990). Even Bayly, who resists this tendency to isolate the effects of war from changes in governance in Imperial Meridian, characterizes the period from 1780 to 1820 as one of “world crisis,” and elsewhere he reverts to 1815 as a dividing line between crisis and a chaotic period of state dislocation and institutional change; see C. A. Bayly, The Birth of the Modern World, 1780– 1914 (Oxford: Wiley-Blackwell, 2004). The period between 1783 and the 1830s gets short shrift in Janet McLean’s Searching for the State in British Legal Thought: Competing Conceptions of the Public Sphere (Cambridge: Cambridge University Press, 2012), even though McLean aims specifically to debunk the idea of a sharp change in understandings of the British state from Blackstonian representation of the Crown as embodied sovereign authority to a Benthamite view of the state defined purely by and through the exercise of power (19). McLean, Searching for the State in British Legal Thought, 21. In the same paragraph McLean observes that “colonial experiments informed the English debate” about the state, but she does not focus on their influence. See especially Joanna Innes, “The Domestic Face of the Military-Fiscal State: Government and Society in Eighteenth-Century Britain,” in An Imperial State at War: Britain from 1689 to 1815, ed. Lawrence Stone (New York: Routledge, 1994); and Peter King, Crime, Justice, and Discretion in England: 1740–1820 (New

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123.

124.

125.

126.

Notes to Pages 53–57 York: Oxford University Press, 2003). Brendan Gillis argues that already by the middle decades of the eighteenth century, magistrates were regarded across the empire as uniquely placed to connect projects of local order and broader political agendas; see Gillis, “Conduits of Justice: Magistrates and the British Imperial State, 1732–1834” (PhD diss., Indiana University, 2015). Linda Colley suggests that magistrates in part made such connections for themselves; magistrates and other Scottish officials angled for political advantage by positioning themselves as loyalists in the American Revolution; see Colley, Britons: Forging the Nation, 1707–1837 (New Haven: Yale University Press, 1992), 140–141. For example, Epstein, Scandal of Colonial Rule, 272–275; Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 194–202. On “legal politics,” see Lauren Benton, “Introduction: Forum on Law and Empire in Global Perspective,” AHR 117, no. 4 (2012): 1092–1100. And on the fluidity of imperial constitutional discourse, see Hulsebosch, Constituting Empire. This formula could be said to reflect a Hobbesian understanding of the relation between natural law and civil peace. See Martin Loughlin, “The Political Jurisprudence of Thomas Hobbes,” in Hobbes and the Law, ed. David Dyzenhaus and Thomas Poole (Cambridge: Cambridge University Press, 2012), 16–19. A deeply insightful analysis of a layered rights regime in empire that downplays the importance of natural rights talk is Jane Burbank, “Th inking Like an Empire: Estate, Law, and Rights in the Early Twentieth Century,” in Russian Empire: Space, People, Power, 1700–1930, ed. Jane Burbank, Mark von Hagen, and Anatolyi Remnev (Bloomington: Indiana University Press, 2007). Threats to order were not perceived as arising outside the law; even bandits, pirates, and rebellious slaves lived inside. See Benton, A Search for Sovereignty, 140–161, 279–300.

Chapter Three: The Commissioner’s World 1. Stephen to Governor, 21 February 1829, TNA, Kew, UK, CO 323/46, 215v, 216v. 2. Stephen to Governor, 27 January 1829, TNA, CO 323/46, 80, 81, 81v. Stephen did note that the Nevis act had the redeeming feature of providing “the most ample and liberal concession which has hitherto been made in any part of the West-Indies” for recognizing the testimony of slaves (82v). 3. Stephen to Governor, 27 January 1829, TNA, CO 323/46, 70, 70v. 4. Every reference to James Stephen in this chapter is to the son of the abolitionist James Stephen. We write about the father in Chapter 2. James Stephen Jr. was appointed legal adviser to the Colonial Office in 1813 and until 1825

Notes to Pages 57–58

5.

6.

7.

8. 9.

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continued in private practice while working for fees in the Colonial Office. In 1825 he left private practice and became law counselor to the Colonial Office. Between 1836 and 1847 he served as permanent undersecretary of the Colonial Office, continuing also to work as legal counselor until 1846. In 1849 he was appointed Regius Professor of Modern History at Cambridge University. For a useful overview of the Stephen family, see Paul Knaplund, James Stephen and the British Colonial System, 1813–1847 (Madison: University of Wisconsin Press, 1953), chap. 2. A detailed description by Knaplund concentrates on rescuing Stephen’s reputation from the damage done by critics such as Edward Gibbon Wakefield and Charles Buller. Knaplund attributes to Stephen’s fair-mindedness and balanced views his refusal “to express opinions on broad issues of colonial policy” and to affirm colonial autonomy in most areas of governance. Knaplund’s study insists on the importance of Stephen’s role without succeeding in placing his Colonial Office project at the heart of the history of imperial governance (21). See also  D.  B. Swinfen, Imperial Control of Colonial Legislation, 1813–1865: A Study of British Policy towards Colonial Legislative Powers (Oxford: Clarendon Press, 1970). For a discussion of the limits of Stephen’s power, see Helen Taft Manning, “Who Ran the British Empire, 1830–1850?,” Journal of British Studies 5, no. 1 (1965): 88–121. For more-recent explanations of legislative review, see Russell Smandych, “ ‘To Soften the Extreme Rigor of Their Bondage’: James Stephen’s Attempt to Reform the Criminal Slave Laws of the West Indies, 1813–1833,” Law and History Review 23, no. 3 (2005): 537–588; and, particularly, Damen Ward, “Legislation, Repugnancy and the Disallowance of Colonial Laws: The Legal Structure of Empire and Lloyd’s Case (1844),” Victoria University of Wellington Law Review 41 (2010): 381–402. Ward argues that by the 1840s, legislative review had become one of the most important tools of imperial governance. Hobart to Picton, 5 July 1802, TNA, CO 295/2, 142; see instructions to commission: Hobart to William Fullarton, Thomas Picton and Samuel Hood, Esqs, 16 October 1802, TNA, CO 295/3, 3–10. Note that commissions were not a new institution: see the various commissions sent to investigate the claims of the Mohegan Indians in Connecticut: Mark Walters, “ ‘Mohegan Indians v. Connecticut’ (1705–1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America,” Osgoode Hall Law Journal 33, no. 4 (1995): 785–802. James Epstein, Scandal of Colonial Rule: Power and Subversion in the British Atlantic during the Age of Revolution (Cambridge: Cambridge University Press, 2012). Report of commissioners for inquiring into the affairs of Malta, TNA, CO 158/19. We neglect the slave trade commissions here, though they are very interesting and deserve more investigation. None produced printed reports, and a

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10.

11.

12. 13.

14. 15.

16.

17.

18. 19.

20.

Notes to Pages 58–62 number of them dissolved in acrimony over the propriety of inquiring into the relationship between masters and indentured servants in the colonies: Anita Rupprecht, “ ‘When He Gets Among His Countrymen, They Tell Him that He Is Free’: Slave Trade Abolition, Indentured Africans and a Royal Commission,” Slavery and Abolition 33, no. 3 (2012): 425–455. This initiative sits oddly in the colonial oeuvre, as it mirrored the establishment of a “Royal Commission on Criminal Law” to consider codification of criminal law in Britain: Lindsay Farmer, “Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45,” Law and History Review 18, no. 2 (2000): 397–425. Though constitutionally transformative commissions were sent around the empire after 1840, with few exceptions they investigated specific crises, such as the brutal suppression of rebellion in Jamaica in 1865: R. W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2008). Hugh McDowall Clokie and J. William Robinson, Royal Commissions of Inquiry (Stanford: Stanford University Press, 1937). Graham Burchell, Colin Gordon, and Peter Miller, eds., The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press, 1991); Oz Frankel, States of Inquiry: Social Investigations and Print Culture in Nineteenth- Century Britain and the United States (Baltimore: Johns Hopkins University Press, 2006). Clokie and Robinson, Royal Commissions of Inquiry, 26–53. The only recent attempt to examine more than one of these commissions is Zoë Laidlaw, “Investigating Empire: Humanitarianism, Reform and the Commission of Eastern Inquiry,” Journal of Imperial and Commonwealth History 40, no. 5 (2010): 749–768. Note that some went longer: more than one year in New South Wales (1819– 1821). The commission also requested permission to stay longer than a year in the Cape: Unsigned to commissioners, 6 January 1824, TNA, CO 414/12. Nicholas B. Dirks, The Scandal of Empire: India and the Creation of Imperial Britain (Cambridge, MA: Belknap Press of Harvard University Press, 2006); Zoë Laidlaw, Colonial Connections, 1815–45: Patronage, the Information Revolution and Colonial Government (Manchester: Manchester University Press, 2005), 94–168. Quoted in Knaplund, James Stephen and the British Colonial System, 21. Lauren Benton and Kathryn Walker, “Law for the Empire: The Common Law in America and the Problem of Legal Diversity,” Chicago-Kent Law Review 89, no. 3 (2014): 937–956. See Kirsten McKenzie, Scandal in the Colonies: Sydney and Cape Town, 1820– 1850 (Carlton: Melbourne University Press, 2004).

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21. See Chapter 2 on the Rum Rebellion. 22. Bathurst to Bigge, 30 January 1819, HRA, ser. 1, vol. 10 (Sydney: Library Committee of the Commonwealth Parliament, 1917), 7. 23. Bathurst to Bigge, 6 January 1819, HRA, ser. 1, vol. 10, 8. 24. John Kennedy McLaughlin, The Magistracy in New South Wales, 1788–1850 (Sydney: University of Sydney, 1973); John M. Bennett, “The Day of Retribution: Commissioner Bigge’s Inquiries in Colonial New South Wales,” American Journal of Legal History 15, no. 1 (1971): 85–106. 25. Bigge to Macquarie, 2 November 1819, HRA, ser. 1, vol. 10, 218–219; Macquarie to Bathurst, HRA, ser. 1, vol. 10, 215; John Douglas Ritchie, Punishment and Profit: The Reports of Commissioner John Bigge on the Colonies of New South Wales and Van Diemen’s Land, 1822–1823; Their Origins, Nature and Significance (Melbourne: Heinemann, 1970), 116–119. 26. Report of the commissioner of inquiry into the state of the colony of New South Wales, 1822, HCPP, no. 448, XX 539, 83–90 (hereafter Bigge, NSW Report 1). 27. Bigge to Bathurst, 20 November 1819, TNA, CO 201/142, 16–18; Ritchie, Punishment and Profit, 116–119. 28. John Douglas Ritchie, ed., The Evidence to the Bigge Reports: New South Wales under Governor Macquarie, vol. 2 (Melbourne: Heinemann, 1971), 206. 29. Bigge, NSW Report 1, 88–89. 30. This is a subtlety missed by his most trenchant critics, then and now. See, for example, Bennett, “The Day of Retribution,” 85–106. 31. Ibid., 4. 32. Ibid., 8–9. 33. Ibid., 11–12. 34. “[Magistrates] take cognizance of all Breaches of the peace and matters of police in general, have jurisdiction in matters of Labour and wages, Small debts under forty shillings, in several Cases have authority to punish by fi ne and imprisonment and transportation free persons for certain Offences created by Government orders. The Magistrates have also the Superintendance of Convicts, Hear and determine all matters whatever, capital felonies excepted, wherein Convicts are parties or accused, and inflict the punishments of whipping, Imprisonment, Hard Labour, and Transportation to Newcastle in their discretion; and in all Cases whatever, where Jurisdiction is given to the Magistrates whether it relates to Prisoners or the free Inhabitants, there lies no appeal from their decision.” Ritchie, Evidence to the Bigge Reports, 1:5–6. 35. Ibid., 16. 36. Eagar lost this challenge both before Field and on appeal before the governor. However, afterward Macquarie commanded the judge to revise his fees. For

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37. 38. 39. 40. 41. 42.

43. 44.

45. 46.

47. 48.

Notes to Pages 65–67 a very full account of the controversy, see Ron Solomon, “Barron Field and the Supreme Court of Civil Judicature: Law, Personality and Politics in New South Wales, 1815–824” (PhD thesis, University of New South Wales, 2013), 163–187. Solomon, “Barron Field,” 174–180. Bigge, NSW Report 1, 137. Ibid., 137–138. Eagar to Bathurst, 6 November 1822, in Ritchie, Evidence to the Bigge Reports, 2:200–214. Ritchie, Evidence to the Bigge Reports, 1:171; Bigge to Bathurst, 22 September 1822, TNA, CO 210/142, 171–222. One historian has characterized the reports as “corrupted by captiousness, sophistry and overwhelming prejudice against Macquarie and his supporters.” Bennett, “The Day of Retribution,” 91. In a sixty-page critique penned in November 1822, Eagar charged Bigge with having “partially garbled and misstated facts . . . suppressed and passed over in perfect silence other Impor tant facts . . . made false statements . . . made representations of private Individuals confessedly founded on mere suspicion . . . [and] having by his conduct and example in the colony revived encouraged and extended, that Spirit of insult and oppression” pervading the politics of convict reform. Ritchie, Evidence to the Bigge Reports, 2:257–258. Bigge, NSW Report 1, 174. Bigge’s judicial report engaged carefully with recommendations made by liberal reformers like Eagar and the colony’s only two trained judge advocates: John Wylde and his predecessor Ellis Bent. For some examples, see Report of the Commissioner of Inquiry, on the Judicial Establishments of New South Wales, and Van Diemen’s Land, 1823, HCPP, no. 33, X 515, 9–11, 34–37; on Bigge’s recommendations about gubernatorial power, see 82. New South Wales Act (4 Geo 4 c.96), 1823. Laidlaw, “Investigating Empire.” For more on the politics of prize slaves and charges of corruption surrounding their distribution, see Chapter 2. See also Lauren Benton, “This Melancholy Labyrinth: The Trial of Arthur Hodge and the Boundaries of Imperial Law,” Alabama Law Review 64 (2012): 91–122; and Padraic Scanlon, “MacCarthy’s Skull: The Abolition of the Slave Trade in Sierra Leone, 1790–1823” (PhD diss., Princeton University, 2010). Commissioners of Eastern Inquiry, Cape of Good Hope (Cape Colony): Slaves and Slavery; Prize “Negroes” and Free Blacks, TNA, CO 414/1–6. The Dutch slaveholders complained to the commissioners about this change: Burgher Senate (Truter, secretary) to Richard Bourke, 30 June 1826, F508–518; Burgher Senate’s Address to the Lt. Gov. Richard Bourke in Council, 27 June 1826, F498–499; and Memorial, Cape Town, to the Presidents and Members

Notes to Pages 67–70

49.

50.

51.

52. 53.

54. 55. 56. 57. 58. 59.

60.

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of the Burghers Senate of this Town, signed by 370 Inhabitants, translated from Dutch by Truter, conveyed to LG’s Office, 3 July 1826, F520–528 (all from Commissioners of Eastern Inquiry, Cape of Good Hope [Cape Colony]: Slaves and Slavery, TNA, CO414/4). J. B. Peires, “The British and the Cape, 1814–1834,” in The Shaping of South African Society, 1652–1840, ed. Richard Elphick and Hermann Giliomee (Middletown, CT: Wesleyan University Press, 1988), 473; Kirsten McKenzie, Imperial Underworld: An Escaped Convict and the Transformation of the British Colonial Order (Cambridge: Cambridge University Press, 2016). Edwards claimed to have merely notarized the first document. His subsequent prosecution and his correspondence suggest other wise: McKen zie, Imperial Underworld, 216–236. James Barry’s servant claimed after his death that he was a woman. Others claimed that he was a hermaphrodite: McKenzie, Scandal in the Colonies, 3. Regarding the petition and Edwards’s trial, see McKenzie, Imperial Underworld, 213–244. Peires, “The British and the Cape,” 478. Case of  L. Cooke and  W. Edwards; Libel on the Governor, Cape of Good Hope Colony (Cape Colony), Original Correspondence, TNA, CO48/95 F606–643. Bigge and Colebrooke to Bathurst, 23 March 1825, Case of Cooke and Edwards, TNA, CO48/95, F578–579. Bigge and Colebrooke to Bathurst, 23 March 1825, Case of Cooke and Edwards, TNA, CO48/95, F572–573. Ibid., F578. Case of Cooke and Edwards, TNA, CO48/95. Quoted in McKenzie, Imperial Underworld, 60. “Report of  J.  T. Bigge, Esq., to Earl Bathurst upon Courts of Justice,” ed. George McCall Theal, Records of the Cape Colony, vol. 28 (London, 1903), 13– 17; and “Reports of the Commissioners of Inquiry upon the Administration of the Government at the Cape of Good Hope,” 1826–1827, HCPP, no. 282, XXI 203, 14. This section’s heading reflects the characterization by other historians of the region’s legal politics in the long nineteenth century as centered on defi nitions of degrees of freedom rather than on the binary of free and unfree labor. See especially Rebecca J. Scott, Degrees of Freedom: Louisiana and Cuba after Slavery (Cambridge, MA: Harvard University Press, 2008); and Rebecca J. Scott and Jean M. Hébrard, Freedom Papers: An Atlantic Odyssey in the Age of Emancipation (Cambridge, MA: Harvard University Press, 2012). More generally, Christopher Leslie Brown urges a sharp distinction between abolition and emancipation movements, with the category of “freedom” entering

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61. 62. 63. 64. 65. 66. 67.

68.

69.

70.

71.

72. 73.

74.

Notes to Pages 71–74 abolition discourse only obliquely, and almost always with shaded meanings; see Brown, Moral Capital: Foundations of British Abolitionism (Chapel Hill: University of North Carolina Press, 2006). And see our discussion of jurisdictional tensions over the control of slaves in Chapter 2. See Chapter 2. Nugent and Wilmot, 25 July 1822, House of Commons Hansard, HCPP, ser. 2, vol. 7. Bathurst to Maddock and Dwarris, 20 September 1822, TNA, CO 319/27, 9–21. Instructions, 10 October 1822, TNA, CO 319/27, 5–8. Bathurst to Maddock and Dwarris, 21  September 1822, TNA, CO 319/27, 21–32. Bathurst to Maddock and Dwarris, 9  November 1822, TNA, CO 319/27, 32–34. Wilmot-Horton to Dwarris and Maddock, 9 November 1822, TNA, CO 319/27, 34–40. Maddock and Dwarris were asked to pursue “a similar course of inquiry” in Saint Lucia, Demerara, Berbice, Bermuda, and Jamaica in Bathurst to Maddock and Dwarris, 18 March 1824, TNA, CO 319/27, 75–78; Instructions, 8 May 1824, ibid., 65–94. Dwarris and Maddock to Bathurst, 17 January 1823, TNA, CO 318/57. However, note that in 1824 Bathurst still described their commission as being “to enquire into & report upon the administration of Criminal Law”: Bathurst to Maddock and Dwarris, 18 March 1824, TNA, CO 319/27, 74. They were rebuked for exceeding the scope of inquiry: Hay to Henry and Dwarris, 28 April 1828, CO 319/27, 278–281. “First Report of the Commissioner of Inquiry into the Administration of Civil and Criminal Justice in the West Indies,” 1825, HCPP, no. 517, XV 233, 211–245. See “List of Questions to Justices of Peace, Provost Marshall and Coroner,” in “Th ird Report of the Commissioner of Inquiry into the Administration of Civil and Criminal Justice in the West Indies,” 1826–1827, HCPP, no. 36, XXIV 1, 122–125. “Second Report of the Commissioners of Inquiry into the Administration of Criminal and Civil Justice in the West Indies and South American Colonies,” 1826, HCPP, no. 577, XXVI 37, 51–206. Maddock and Dwarris to Robert Wilmot, Esq., Undersecretary of State, 10 January 1823, TNA, CO 318/57. Compare Maddock and Dwarris to Robert Wilmot Esq, Undersecretary of State, 10 January 1823, TNA, CO 318/57, with Maddock and Dwarris to Robert Wilmot Esq, 12 February 1823, TNA, CO 318/57. Maddock and Dwarris to Robert Wilmot Esq, Undersecretary of State, 10 January 1823, TNA, CO 318/57.

Notes to Pages 74–76

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75. Maddock and Dwarris to Robert Wilmot Esq, 12  February 1823, TNA, CO 318/57. 76. Results and General Conclusions, in “Third Report of the Commissioner of Inquiry into the Administration of Civil and Criminal Justice in the West Indies,” 1826–1827, HCPP, no. 36, XXIV 1, 105; “Second Series: Second Report of the Commissioners of Enquiry into the Administration of Criminal and Civil Justice in the West Indies and South American Colonies. United Colony of Demerara and Essequebo, and Colony of Berbice,” 1828, HCPP, no. 577, XXIII 507, 22. 77. Results and General Conclusions, in “Third Report of the Commissioner of Inquiry into the Administration of Civil and Criminal Justice in the West Indies,” 1826–1827, HCPP, no. 36, XXIV 1, 105. 78. Dwarris to Twiss, 22 December 1828, “Commissioner of Legal Enquiry in the West Indies,” vol. 15, TNA, CO 318/72. 79. Maddock and Dwarris to Robert Wilmot Esq, 12  February 1823, TNA, CO 318/57. 80. “Third Report of the Commissioner of Inquiry into the Administration of Civil and Criminal Justice in the West Indies,” 1826–1827, HCPP, no. 36, XXIV 1, 97–98. 81. Ibid., 97. 82. Ibid., 98. 83. Dwarris to Twiss, 22 December 1828, TNA, CO 318/72. 84. Note also that the commissioners disagreed about the radicalism of some of these measures: Dwarris’s and Maddock’s replacements, Jabez Henry and Henry Coneys, issued a private commentary on Dwarris’s reports (Maddock died in 1824 before any were drafted), qualifying some of his grander calls for law reform: Henry and Coneys to Bathurst, 9 December 1826, CO 318/61. 85. Knaplund, James Stephen and the British Colonial System; Henry Lindsay Hall, The Colonial Office: A History (London: Longmans, 1937). At the same time, it is impor tant to note that Stephen was increasingly attracted to the benefits of colonial self-government in settler colonies: Manning, “Who Ran the British Empire?,” 100, quoting Stephen to Howick, 28  December 1837, Grey of Howick Papers, Durham University, 124. On repugnancy as an existing foundational rubric of the imperial constitution, see Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, MA: Harvard University Press, 2004); and Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005). 86. Smandych, “ ‘To Soften the Extreme Rigor of Their Bondage,’ ” 581. Stephen reviewed and commented on “about 530” colonial laws in 1826 alone.

230

Notes to Pages 76–78

87. Ibid., 37; Damen Ward, “Legislation, Repugnancy and the Disallowance of Colonial Laws: The Legal Structure of Empire and ‘Lloyd’s Case’ (1844),” Victoria University of Wellington Law Review 41 (2010): 381–402; Ward, “Civil Jurisdiction, Settler Politics, and the Colonial Constitution, circa 1840–1858,” Victoria University of Wellington Law Review 39 (2008): 497–532. Stephen claimed to have reviewed 21,000 laws during his tenure in the Colonial Office. William A. Green, “James Stephen and British West India Policy, 1834–1847,” Caribbean Studies 13, no. 4 (1974): 34. 88. Dwarris offered his ser vices in facilitating this sensitive political change. “Negotiation with the legislatures of the different islands; for many of the courts—& the regulations of their practice in almost every instance being established by confirmed Acts of Assembly, it will be impossible to effectuate the object without their concurrence. And the assistance of lawyers . . . familiar with colonial proceedings too will be indispensable to the remodeling what are generally called the Court Acts, that is the Acts containing the rules of procedure & practice.” Dwarris to Twiss, 22 December 1828, “Commissioner of Legal Enquiry in the West Indies,” vol. 15, TNA, CO 318/72. 89. Stephen to Under Secretary of State, 13 February 1829, TNA, CO 318/77, 6v. 90. Twiss to Dwarris, 4 April 1829, TNA, CO 310/27, 294v. 91. Henry and Dwarris to George Murray, 7 July 1828, TNA, CO 318/72. See Stephen’s markup and unsigned letter in his hand: Stephen to Twiss, 13 February 1829, TNA, CO 318/77. 92. Manning, “Who Ran the British Empire?,” 108. Administration of Justice, West Indies Act (1836) 6&7 Will. IV, cap. 17. 93. Maddock to Horton, 3 July 1824, TNA, CO 318/57; Dwarris to Twiss, 1 May 1829, CO 318/77, F65–72. 94. Marryat, 25  July 1822, vol. 7, House of Commons Hansard, HCPP, ser. 2, vol. 7. 95. Ibid. 96. Bathurst to Maddock and Dwarris, 3  September 1823, TNA, CO 319/27, F20–28. 97. “Report of His Majesty’s Commissioners of Legal Inquiry on the Colony of Trinidad,” 1826–1827, HCPP, no. 551, XXIII 285, 33. 98. Ibid., 36. 99. Ibid., 56. For context regarding the writ in the empire, see Paul Halliday, Habeas Corpus: From England to Empire (Cambridge, MA: Harvard University Press, 2012). 100. “Report of His Majesty’s Commissioners of Legal Inquiry on the Colony of Trinidad,” 1826–1827, HCPP, no. 551, XXIII 285, 34. 101. Ibid., 57, 42–43. 102. Ibid., 55–56.

Notes to Pages 78–82

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103. Ibid., 37. 104. Ibid., 55. 105. Report of Commissioners for inquiring into the affairs of Malta, TNA CO 158/19, 27–33; “Cape of Good Hope. Reports of the Commissioners of Inquiry; I. Upon the Administration of the Government at the Cape of Good Hope: II. Upon the Finances at the Cape of Good Hope,” 1826–1827, HCPP, no. 282, XXI 203, 14. 106. “Copies or Extracts of Reports of the Commissioners Appointed to Inquire into the Affairs of the Island of Malta, and of Correspondence Thereupon, Part I,” 1837–1838, HCPP, nos. 141–142, XXIX 311, 389, 10; Wilfred E. Rumble, The Thought of John Austin: Jurisprudence, Colonial Reform, and the British Constitution (London: Athlone Press, 1985), 144–192. 107. G. C. Mendis, The Colebrooke-Cameron Papers: Documents on British Colonial Policy in Ceylon, 1796–1833, vol. 2 (Oxford: Oxford University Press, 1956), 24. 108. Ceylon Report, TNA, CO 54/122, 4 and 12. Petitioners were using a fi nely tuned mechanism of political complaint. See Robert Travers, “Indian Petitions as a Literature of Complaint in Early Colonial Bengal,” American Historical Association, Washington, DC, January 2014. 109. Mendis, introduction to The Colebrooke- Cameron Papers, 1:i–lxiv. Compare Sujit Sivasundaram, Islanded: Britain, Sri Lanka, and the Bounds of an Indian Ocean Colony (Chicago: University of Chicago Press, 2013), 286–288. 110. This is Goderich’s description, also quoting from the document. Goderich to Colville, 4 April 1823, CO 168/17, 181v–182. 111. “Report of the Commissioners of Inquiry upon the Slave Trade at Mauritius,” 1829, HCPP, no. 292, XXV 49, 3–4. 112. Appointed by the British in 1829 to replace a recalcitrant French official, the protector Roger Thomas reported massive noncompliance on the part of Mauritius planters, who refused to furnish him with records of punishments, as required. He estimated that as many as 1,320 slave owners were “defaulters,” with as many as 70,000 or 80,000 slaves under their charge, while he had received records pertaining to only 75 slaves and 89 punishments. Report of the Protector of Slaves of Mauritius from 1 January to 30 June 1831, CO 172/28. 113. Ibid. 114. Colville to Goderich, 22 February 1832, CO 167/159. 115. Letter from Thomas, 18  February 1832, enclosed in Colville to Goderich, 18 March 1832, CO 167/159. 116. Colville to Goderich, 18 March 1832, CO 167/159. 117. Ibid. 118. Goderich to Colville, 15 January 1832, CO 168/17. 119. Goderich to Colville, 4 April 1823, CO 168/17, 173.

232

Notes to Pages 82–85

120. Legislative Consultations of 28 March 1836 (IOR P/206/81), quoted by Elizabeth Kolsky, “Codification and the Rule of Colonial Difference: Criminal Procedure in British India,” Law and History Review 23, no. 3 (2005): 656. 121. Officials were also distressed by the limited capacity of Indian courts to bring European merchants and speculators to justice: Kolsky, “Codification and the Rule of Colonial Difference,” 632–633. The literature on legal politics in British India is vast. For trenchant analyses mainly outside our period, see Robert Travers, “Constitutions, Contact Zones, and Imperial Ricochets: Sovereignty and Law in British Asia,” in Britain’s Oceanic Empire: Atlantic and Indian Ocean Worlds, c. 1550–1850, ed. H. V. Bowen, Elizabeth Mancke, and John G. Reid (Cambridge: Cambridge University Press, 2012), 98–129; Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (Oxford: Oxford University Press, 1998); on the challenges of bringing rogue British subjects under control, see Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge: Cambridge University Press, 2010). 122. Earl of Ripon, 3 May 1838, House of Lords Hansard, HCPP, ser. 3, vol. 42; and note Colonial Office officials’ annotations on Austin to Stephen, 25 May 1840, TNA, CO 158/118; Laidlaw, “Investigating Empire,” 749–768. 123. Indeed, by the 1830s, radical critiques of crown autocracy and simultaneous calls for massive retrenchment in colonial expenses meant that many Commission reports were abandoned. Th is helped to speed the move to selfgovernment: Peter Burroughs, “Parliamentary Radicals and the Reduction of Imperial Expenditure in British North America, 1827–1834,” Historical Journal 11, no. 3 (1968): 446–461. 124. Stephen to Twiss, 19 May 1830, CO 318/77, F183–184; Report on the Affairs of British North America, from Early of Durham, Her Majesty’s high commissioner &c., 1839, HCPP, no. 3, XVII 1. 125. Contrast Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton: Princeton University Press, 1993), 14–34.

Chapter Four: The Promise of Protection 1. “Proclamation Issued by William Hull,” in Select Documents of Canadian War of 1812, vol. 1, ed. William Wood (Toronto: Champlain Society, 1920), 26, emphasis in original. 2. “Royal Proclamation of 1763,” in As Long as the Sun Shines and the Water Flows: A Reader in Canadian Native Studies, ed. A. L. Getty and Antoine S. Lussier (Vancouver: University of British Columbia Press, 1983), 29–37. 3. Russell to Duke of Portland, 28 January 1797, TNA, Kew, United Kingdom, CO 42/321, 46v.

Notes to Pages 86–87

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4. Robert  S. Allen, His Majesty’s Indian Allies: British Indian Policy in the Defence of Canada, 1774–1815 (Toronto: Dundurn Press, 1992), 94. 5. Brant’s statement is quoted in Russell to Duke of Portland, 21 July 1797, TNA, CO 42/321, 108. 6. Lauren Benton and Adam Clulow, “Legal Encounters and the Origins of Global Law,” in The Cambridge World History, vol. 6, pt. 2 (Cambridge: Cambridge University Press, 2015), 80–100; Benton, “Shadows of Sovereignty: Legal Encounters and the Politics of Protection in the Atlantic World,” in Encounters Old and New: Essays in Honor of Jerry Bentley, ed. Alan Karras and Laura Mitchell (Honolulu: University of Hawai‘i Press, 2016). 7. Excellent regional studies of the Protectors of Indians include Mauricio Novoa, The Protectors of Indians in the Royal Audience of Lima: History, Careers and Legal Culture, 1575–1775 (Leiden: Brill, 2016); Diana Bonnett, Los Protectores de Naturales en la Audiencia de Quito, siglos XVII y XVIII (Quito: Facultad Latinoamericana de Ciencias Sociales, sede Ecuador, 1992); and Charles R. Cutter, The Protector de Indios in Colonial New Mexico, 1659–1821 (Albuquerque: University of New Mexico Press, 1986). More generally, see Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (New York: Cambridge University Press, 2002), chaps. 2 and 3. 8. Craig B. Yirush, “Claiming the New World: Empire, Law, and Indigenous Rights in the Mohegan Case, 1704–1743,” Law and History Review 29, no. 2 (2011): 333–373; Patrick Frazer, The Mohicans of Stockbridge (Lincoln: University of Nebraska Press, 1992). 9. Richard L. Bushman, King and People in Provincial Massachu setts (Chapel Hill: University of North Carolina Press, 1985); Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (Athens: University of Georgia Press, 1986); Jenny Hale Pulsipher, Subjects unto the Same King: Indians, English, and the Contest for Authority in Colonial New England (Philadelphia: University of Pennsylvania Press, 2005); Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005). 10. Luke Glanville, Sovereignty and the Responsibility to Protect: A New History (Chicago: University of Chicago Press, 2014), 32–33, 45–48; Anne Orford, International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press, 2011), 112–125. For a valuable discussion of Vattel’s views in context, see Ian Hunter, “Law, War, and Casuistry in Vattel’s Jus Gentium,” Parergon 28, no. 2 (2011): 87–104; Hunter, “Kant and Vattel in Context: Cosmopolitan Philosophy and Diplomatic Casuistry,” History of European Ideas 39, no. 4 (2013): 477–502. According to Brendan Simms, “the Westphalian treaties of 1648 were nothing less than a charter for intervention: by fi xing the internal

234

11. 12. 13.

14.

15.

16.

Notes to Pages 88–89 confessional balance between German principalities and within the empire, they provided a lever for interference throughout the seventeenth and eighteenth centuries.” Simms, Humanitarian Intervention: A History (Cambridge: Cambridge University Press, 2011). Luke Glanville makes a similar argument, stating that the “Peace of Westphalia now confirmed in treaty law the responsibility of states to ensure the protection of their religious minorities, and it bound neighboring states to enforce this responsibility.” Glanville, Sovereignty and the Responsibility to Protect, 54. The phrase “externally enforceable responsibilities for the protection of subjects” appears on 59. Jennifer Pitts, “Empire and Legal Universalisms in the Eighteenth Century,” AHR 117, no. 1 (2012): 98. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005). Referring to the expansion of the East India Company in the early nineteenth century, Partha Chatterjee writes that “the principal justification for annexation became the plea that the people living under various Indian rulers needed to be protected from misgovernment.” Chatterjee, The Black Hole of Empire: History of a Global Practice of Power (Princeton: Princeton University Press, 2012), 190. British Honduras is an excellent example here: Alan Lester and Fae Dussart describe it as an important bridge between the office of protector of slaves and protector of aborigines; see Lester and Dussart, Colonization and the Origins of Humanitarian Governance: Protecting Aborigines across the NineteenthCentury British Empire (Cambridge: Cambridge University Press, 2013), 37–76. Much more interesting, for our purposes, are the rich, continual discussions about the limits of British jurisdiction in the settlement: e.g., Liverpool to Lt Col. Smyth, 31 May 1811, TNA: CO 124/3, 17–21; Liverpool to George Arthus, 9 January 1815, 8 July 1815, 30 September 1816, 5 July 1818, 16 March 1822, ibid. These concerns became the object of a private commissioners’ report in 1829: Commissioners of Legal Enquiry 1829: Honduras and Bahamas Reports &c, TNA: CO 318/77, F167–181. See Pamela Nightingale, Trade and Empire in Western India, 1784–1806 (Cambridge: Cambridge University Press, 1970); H. V. Bowen, The Business of Empire: The East India Company and Imperial Britain, 1756–1833 (Cambridge: Cambridge University Press, 2008), 260–272; Chatterjee, The Black Hole of Empire, 185–195. For a contemporary account that also directly engages the uncertain relationship between imperial protection and protection in international law, see Charles Lewis Tupper, Our Indian Protectorate (London: Longmans, 1898). See Lauren Benton and Lisa Ford, “Magistrates in Empire: Convicts, Slaves, and the Remaking of Legal Pluralism in the British Empire,” in Legal Pluralism

Notes to Pages 89–94

17.

18.

19. 20. 21. 22.

23. 24. 25.

26. 27.

28.

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and Empires, 1500–1850, ed. Lauren Benton and Richard Ross (New York: NYU Press, 2013), 173–198; on abolitionist discourse and imperial jurisdiction, see Benton, “This Melancholy Labyrinth: The Trial of Arthur Hodge and the Boundaries of Imperial Law,” Alabama Law Review 64 (2012): 91–122. Jessie Mitchell, In Good Faith? Governing Indigenous Australia through God, Charity and Empire, 1825–1855 (Canberra: ANU E Press, 2011), 30–32, 89–97. At the same time, Protectors of Aborigines were sent to the new colonies of New Zealand, South Australia, and Western Australia. They performed subtly different functions in each place: Lester and Dussart, Colonization and the Origins of Humanitarian Governance; Amanda Nettelbeck, “ ‘A Halo of Protection’: Colonial Protectors and the Policy of Aboriginal Protection as Punishment,” Australian Historical Studies 43 (2012): 396–411. The Portuguese had controlled the coast before the Dutch. For a full and insightful analysis of colonial representations of the central region, see Sujit Sivasundaram, Islanded: Britain, Sri Lanka and the Bounds of an Indian Ocean Colony (Chicago: University of Chicago Press, 2013); see also Roshan de Silva Wijeyeratne, Nation, Constitutionalism and Buddhism in Sri Lanka (New York: Routledge, 2014), chap. 5. See Terms of Treaty enclosed in North to Hobart, 16 April 1802, TNA, CO 54/6, F98–101. North to Lord Hobart, 21 November 1802, TNA, CO 54/7, F126–131. De Silva, Nation, Constitutionalism and Buddhism, 78. The position was similar to that of regent. It seems certain that not all Kandyans regarded the Nayakkar dynasty as “foreign,” though the Dutch and British accepted this label and incorporated it within a confused and shift ing set of classifications of social difference. See John  D. Rogers, “Early British Rule and Social Classification in Lanka,” Modern Asian Studies 38, no. 3 (2004): 625–647, esp. 637. Transcript of negotiations, 5 February 1802, enclosure in North to Hobart, 16 April 1802, TNA, CO 54/6, F94–97. North to the King of Kandy, 9 September 1802, TNA, CO 54/6, F185. Nira Wickramasinghe, “Many Little Revolts or One Rebellion? The Maritime Province of Ceylon / Sri Lanka between 1796 and 1800,” South Asia: Journal of South Asian Studies 32, no. 2 (2008): 170–188. North to Camden, 10 July 1805, TNA, CO 54/18. Maitland to Camden, 19 October 1805, TNA, CO 54/18. Besides complaining about North’s impenetrable proclamations, Maitland observed that the government had based the design of the courts on “mere theoretic principles” rather than a deep understanding of locals. Camden to Maitland, 21 February 1807, TNA, CO 55/62, F115. Camden to Maitland, 19 April 1805, TNA, CO 55/62, F111.

236

Notes to Pages 94–98

29. Maitland to Camden, 19 October 1805, TNA, CO 54/18. 30. Ibid. The recommendations accompanied a list of nearly two dozen measures, ranging from changes with regard to the use of stamped paper to the creation of a new circuit court to be presided over by a judge of each Provincial Court. Enclosure in Maitland to Camden, 19 October 1805, TNA, CO 54/18. 31. Maitland characterized the changes as minor adjustments to the system put in place by North: “The number of Sitting Magistrates have been indeed considerably increased, but I have left the Provincial Courts very much as they stood, and have not interfered with the limits of the Jurisdiction of the Supreme Court and settled by my Predecessor Mr.  North.” Maitland to Windham, 28 February 1807, TNA, CO 54/25. 32. Ibid. 33. Castlereagh worried that the reforms would “greatly indispose the Modeliars” and warned Maitland that such major reforms should come before the government for approval. Castlereagh to Maitland, 29 February 1808, TNA, CO 55/62, F209. 34. Lushington had left and then returned to Ceylon, where he publicly challenged Maitland’s authority over various judicial matters. Maitland astutely appealed to London for support, and Castlereagh sided with him, chiding the Chief Justice and urging him to show “more consolidation towards the governor.” Castlereagh to Lushington, 6 October, 1809, TNA, CO 55/62, F237. 35. Maitland’s instructions to Johnston, enclosure in Maitland to Castlereagh, 25 January 1809, TNA, CO 54/31. 36. Ibid. 37. Liverpool to Maitland, 30 September 1810, TNA, CO 54/62. 38. Maitland to Peel, 30 August 1811, TNA, CO 54/41, F84. 39. Ibid. 40. Maitland’s instructions to Johnston, enclosure in Maitland to Castlereagh, 25 January 1809, TNA, CO 54/31. 41. Ibid. 42. Ibid. 43. Hobart to North, 14 May 1803, TNA, CO 55/62, F69–70. 44. Ibid., F70–72. 45. Castlereagh to Maitland, 14 April 1807, TNA, CO 54/62. 46. Maitland’s instructions to Johnston, enclosure in Maitland to Castlereagh, 25 January 1809, TNA, CO 54/31. 47. On D’Oyly, see Brendon Gooneratne and Yasmine Gooneratne, This Inscrutable Englishman: Sir John D’Oyly, Baronet, 1774–1824 (London: Cassell, 1999). 48. Enclosure in Brownrigg to Bathurst, 10 February 1814, TNA, CO 54/51, F122v. 49. Brownrigg to Bathurst, 10 February 1814, TNA, CO 54/51, F119, 120. 50. Brownrigg to Bathurst, 20 March 1814, TNA, CO 54/51, F175.

Notes to Pages 98–99

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51. D’Oyly seemed to be acting on his own in making promises on behalf of the British government. D’Oyly to First Adigār, 28 February 1814, TNA, CO 54/51, F179. 52. The meeting with a chief of the Jaff ragam district took place at D’Oyly’s house; when the chief told him of the willingness of Kandyans to join English troops in opposing the king, D’Oyly told him that the government would not come to the people’s aid unless “it saw a distinct and unequivocal proof of the general wishes of the Kandyan people.” Report by D’Oyly on meeting with Edkneylogoada Koditurwakka Milame, 4 March 1814, TNA, CO 54/51, F132. 53. It is very likely that D’Oyly’s interlocutor was already well informed about the discourse of protection. Ibid. 54. “Proclamation by His Excellency Lieut. Robert Brownrigg Governor and Commander in Chief and over the British Settlements and Territories in the Island of Ceylon with the Dependencies Thereof,” enclosure in Brownrigg to Bathurst 15 March 1815, TNA, CO 54/55. Brownrigg cited both specific and general evidence that the king of Kandy was unfit to rule. The specific act of “atrocious barbarity” was the excessively brutal punishment of “ten innocent subjects of the British empire.” Kandyan forces had intercepted a group of “Moorish” traders from British-controlled territory and had cut off an arm of each one of them; several of the traders had died and the rest were sent to make the trip back across the border with severed arms hanging around their necks. Alongside these acts of brutality and aggression, Brownrigg noted that the king of Kandy was individually responsible for “the rejection of all relations of amity.” There appeared no possibility of negotiating with him as a legitimate sovereign in the context of “a state of relations unsettled and precarious beyond all precedent” in which the king had rejected all possibilities of establishing “relations of amity.” Some uncertainty about whether the impulse to protect Kandyans sufficed as a reason for hostilities seems to have prompted Brownrigg to list an additional grievance: the “irruption of an armed Kandyan force into the British territory.” The raid was not a significant incursion, but Brownrigg seized upon it as a factor that “supersedes every deliberative consideration” in justifying a British military response. Brownrigg to Bathurst, 16 January 1815, TNA, CO 54/55. 55. “Proclamation by His Excellency Lieut. Robert Brownrigg Governor and Commander in Chief and over the British Settlements and Territories in the Island of Ceylon with the Dependencies Thereof,” enclosure in Brownrigg to Bathurst, 15 March 1815, TNA, CO 54/55. 56. Brownrigg and other officials continued to add detail and nuance to their understanding of the nature and extent of projected British authority as their forces were advancing on Kandy. One proclamation of February  11, 1815,

238

57.

58.

59. 60. 61. 62. 63. 64.

65. 66. 67.

68.

Notes to Pages 99–102 declared three of the “occupied” Kandyan provinces to be “integral parts of the British possessions in the island of Ceylon.” “Proclamation by His Excellency Lieutenant General Robert Brownrigg Governor and Commander in Chief in and over the British Settlements and Territories in the Island of Ceylon with the Dependencies Thereof,” enclosure in Brownrigg to Bathurst, 15 March 1815, TNA, CO 54/55. Ibid. On the broader set of shift ing British categories of difference on the island, see John D. Rogers, “Colonial Perceptions of Ethnicity and Culture in Early Nineteenth-Century Sri Lanka,” in Society and Ideology: Essays in South Asian History Presented to Professor K. A. Balhatchet, ed. Peter Robb (Delhi: Oxford University Press, 1993), 97–109. D’Oyly later fell out of favor with Brownrigg, but at the moment of taking possession of Kandy, the governor plainly admitted his dependence on D’Oyly for formulating policy toward the kingdom, even writing to Bathurst that he was “not prepared to present to your Lordship any connected view of the complicated and impor tant considerations of a Political and Civil nature which arise out of this great change” while D’Oyly was with the deposed king and had not yet joined Brownrigg in Kandy. Brownrigg to Bathurst, 25 February 1815, TNA, CO 54/55, F103. Ceylon Government Gazette, 6  March  1815, enclosure in Brownrigg to Bathurst, 15 March 1815, TNA, CO 54/55. Ibid. Ibid. Ibid. Brownrigg to Bathurst, 15 March 1815, TNA, CO 54/55, F122. In advancing this position, Brownrigg was forced to argue both that the charter of 1811 was constitutionally authoritative and that it was a document created for a “decidedly foreign” context so that most of its substance was inapplicable to Kandy. Ibid., F122–122v. Gifford to Brownrigg, 11 March 1815, TNA, CO 54/55, F172v–173v. “Notes respecting the Proceedings in Council on the reading of the Convention,” 1 April 1815, TNA, CO 54/55, F201v–202. It is worth noting that Brownrigg might have made a similar argument by claiming Kandy was a conquered colony and that executive power should continue until a new constitution was settled. That argument would have referenced Campbell v. Hall (see our discussion in Chapter  2). But there was little talk of conquest, perhaps because it would have clashed with the protection language and the idea that the British had come to the aid of opponents of the king. Robert Aldrich, “Out of Ceylon: The Exile of the Last King of Kandy,” in Exile in Colonial Asia: Kings, Convicts, Commemoration, ed. Ronit Ricci (Hono-

Notes to Pages 102–105

69.

70.

71.

72. 73.

74.

239

lulu: University of Hawai‘i Press, 2016); De Silva, Nation, Constitutionalism and Buddhism, 84–87. Accounts of the Kandyan wars include Geoff rey Powell, The Kandyan Wars: The British Army in Ceylon, 1803–1818 (London: Leo Cooper, 1973); and Channa Wickremesekera, Kandy at War: Indigenous Military Resistance to European Expansion in Sri Lanka, 1694–1818 (New Delhi: Manohar, 2004). On Sri Lankan nationalist interpretations of the convention, see Michael Roberts, Collective Identities, Nationalisms, and Protest in Modern Sri Lanka (Colombo, Sri Lanka: Marga Institute, 1979), 234; and De Silva, Nation, Constitutionalism and Buddhism, 168. For example, Tambyah Nadaraja, The Legal System of Ceylon in Its Historical Setting (Leiden: Brill, 1972). An exception is Sivasundaram’s Islanded, which, while not centering on law, describes the efforts to design a new law charter and links legal talk about Kandy to its representation as a dangerous and exotic zone. See esp. 119–132. And see also De Silva, Nation, Constitutionalism and Buddhism. There is considerable evidence that Kandyans, too, were very focused on the law. Not only were the elites who engaged in negotiations with British officials clearly very savvy about making appeals for protection, but also D’Oyly found willing informants to complete his survey on Kandyan law. In presenting the manuscript of A Sketch of the Constitution of the Kandyan Kingdom to the Royal Asiatic Society in 1831, Alexander Johnston suggested that Kandyans had furnished D’Oyly with information about Kandyan law because “the principal officers of the former Kandian government . . . at that time had no motive to suppress the truth, and were perfectly competent to give him an authentic account of all that related to the nature and the constitution of their former government.” They had, of course, plenty of motives to suppress the truth but were choosing to provide the information, probably as a self-conscious strategy designed to influence British policy. “A Sketch of the Constitution of the Kandyan Kingdom. By the late Sir John D’Oyly.—Communicated by Sir A. Johnston, Vice-President, R.A.S., F.R.S. Read May 7, 1831. To Graves C. Haugston, Esq., M.A., F.R.S., Honorary Secretary to the Royal Asiatic Society. December 31, 1831,” Transactions of the Royal Asiatic Society 3, no. 2 (1833): 191–252. Banberry to Maitland, 18 August 1815, TNA, CO 136/300. “Treaty between Great Britain and Russia &c, Respecting the Ionian Islands; Signed at Paris,” 5 November 1815, in Parliamentary Debates, 1st ser., vol. 32 (London: T. C. Hansard, 1816), 294–297. Bathurst to Maitland, 29 August 1816, TNA, CO 136/300; the full article of the treaty reads: “The United States of the Ionian Islands shall, with the probation of the Protecting Power, regulate their internal organization; and, in order to give all the parts of this organization the necessary consistency and

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75. 76. 77.

78. 79. 80. 81. 82.

83. 84. 85. 86. 87. 88. 89. 90.

91. 92. 93. 94. 95. 96.

Notes to Pages 105–110 action, his Britannic Majesty will employ a par ticu lar solicitude with regard to the legislation and the general administration of those States, his Majesty will therefore appoint a Lord High Commissioner to reside there, invested with all the necessary power and authorities for this purpose.” “Treaty between Great Britain and Russia &c, Respecting the Ionian Islands,” 296. Banberry to Maitland, 26 November 1815, TNA, CO 136/300. Bathurst to Maitland, 2 December 1815, TNA, CO 136/300. Bruce Knox, “British Policy and the Ionian Islands, 1847–1864: Nationalism and Imperial Administration,” English Historical Review 99 (1984): 506–529; Eleni Calligas, “Radical Nationalism in the British Protectorate of the Ionian Islands (1815–1864),” in The Making of Modern Greece: Nationalism, Romanticism, and the Uses of the Past, ed. Roderick Beaton and David Ricks (Farnham, UK: Ashgate, 2009), 151–160. Bathurst to Maitland, 2 December 1815, TNA, CO 136/300. Ibid. Frere to Castlereagh, 24 May 1817, TNA, CO 136/300. Ibid. Frere asserted the requirement that accusations of piracy be supported by evidence presented before him in Frere to Castlereagh, 9 June 1817, TNA, CO 136/300. Knox, “British Policy and the Ionian Islands”; Calligas, “Radical Nationalism.” Count Cladan to Bathurst, 17 October 1816, TNA, CO 136/300; Bunberry to Count Cladan, 30 August 1816, TNA, CO 136/300. Ibid. Bathurst to Maitland, 3 February 1820, TNA, CO 136/304. Bathurst to Capodistria, 19 February 1820, TNA, CO 136/304. Bathurst to Maitland, 6 June 1820, TNA, CO 136/304. “Ionian Islands, Conduct of Sir Thomas Maitland,” 7 June 1821, in Parliamentary Debates, new ser., vol. 5 (London: T. C. Hansard, 1822), 1149, 1132. Quoted in Maria Paschalidi, “Constructing Ionian Identities: The Ionian Islands in British Official Discourses, 1815–1864” (PhD thesis, University College London, 2009), 114. Douglas to Glenelg, 19 June 1835, TNA, CO 136/75; Douglas to Glenelg, 8 July 1835, TNA, CO 136/75. Glenelg to Douglas, 9 September 1835, TNA, CO 136/75. Douglas to Glenelg, 2 October 1835, TNA, CO 136/75. Kirkpatrick and Blair to Glenelg, 30 September 1835, TNA, CO 136/75. Douglas to Glenelg, 2 October 1835, TNA, CO 136/75. Kirkpatrick and Blair’s objections were regarded as more than a mere annoyance in part because imperial officials were eager to put other new codes in place, including a new Martial Code that would aid the response to increas-

Notes to Pages 111–112

97. 98. 99.

100. 101. 102. 103.

104.

105. 106. 107.

241

ingly frequent disturbances. London wanted the British Meeting Bill and Articles of War to be adopted as the Ionian Martial Code; Assembly members balked, citing especially their abhorrence of the code’s approval of flogging to punish soldiers. British respondents worried that adopting one code of laws for British soldiers and another for Ionians would create a condition in which soldiers serving side by side might be subject to different punishments. The debate prompted the president of the Legislative Assembly to remind the high commissioner that “British Law is not permanent” and its legitimacy as a single and unifying framework was not a goal to which all did or should subscribe. President of Legislative Assembly to Douglas, 28  November 1835, TNA, CO 136/75. Douglas to Glenelg, 23 August 1837, TNA, CO 136/75. Douglas to Glenelg, 22 June 1838, TNA, CO 136/88. Douglas to Glenelg, 21 June 1838, TNA, CO 136/88. Douglas noted that the lack of clarity extended to whether or not Ionians could enter into their own commercial agreements, a point of considerable importance to island traders. (Ibid.) Commercial questions also posed other challenges. With the price of grapes and currants plummeting, and “extreme misery” in grape-growing regions, farmers signed a petition in 1843 asking the British government to reduce the duty on currants imported from Cephalonia, Tante, and Ithaca (Senator for Laute to Seaton, 4 May 1843, TNA, CO 136/120). Advocates argued that this privilege would attach some value to the islands’ relationship with Britain. In the same months this proposal was under consideration—it was roundly rejected in London—there were reports of violence on Cephalonia that British officials attributed to low prices for crops and farmers’ inability to pay their debts to landowners (Ward to Grey, 4 June 1849, TNA, CO 136/131). Ward to Grey, 4 June 1849, TNA, CO 136/131. Ward to Grey, 20 June 1849, TNA, CO 136/131. Ward to Grey, 9 July 1849, TNA, CO 136/131. Grey to Ward, 13 August 1849, TNA, CO 136/131. When an outbreak of violence in Cephalonia resulted in the death of a British captain, Ward extended amnesty to the participants in the uprising, except for those actually responsible for the captain’s death. Ibid. Ward noted explicitly that “the general state of excitement throughout Europe, in 1848” was probably having an influence in the islands, and he continued to champion a softer approach than previous administrations had adopted. Ward to Grey, 3 August 1849, TNA, CO 136/131. This equanimity dissolved with the uprising in Cephalonia in August 1849. Ward to Grey, 1 September 1849, TNA, CO 136/132. Ibid. Compare Ward to Grey, 4 June 1849, TNA CO 136/131.

242

Notes to Pages 112–115

108. Ward to president of the Senate, 8 October 1849, TNA CO 136/132; Ward to Grey, 19 October 1848, TNA, CO 136/132. 109. Ward to Grey, 4 June 1849, TNA, CO 136/131. 110. Charles Fitzroy, Letters Showing the Anomalous Political and Financial Condition of the Ionian Islands (London: James Ridgway, 1850), iii. See our Chapter 3 on commissions of inquiry. 111. Viscount Parlmerston to Sir Edmund Lyons, 19 July 1847, in Correspondence Respecting the Demands Made upon the Greek Government (hereafter cited as CRD); and Respecting the Islands of Cervi and Sapienza (London: Harrison and Son, 1850), 55. Pacifico took advantage of the opportunity to present another complaint against the Greek government for land of his taken for the adjacent royal garden, and the British representative added this to the list of requested compensation for Pacifico. Sir Edmund Lyons to  M. Glarakis, 22 November 1847, in CRD, 93–94. For a good summary of the case that places it in the context of the politics surrounding Jews in the eastern Mediterranean, see K. E. Fleming, Greece: A Jewish History (Princeton: Princeton University Press, 2008), 24–31. 112. M. Glarakis to Sir Edmund Lyons, Athens, 27  December / January 8 1848; and M. Colocotronis to Sir Edmund Lyons, Athens, 16/28 July 1848, in CRD, 96, 136. 113. Colocotronis to Sir Edmund Lyons, Athens, 16/28 July 1848, in CRD, 18. 114. Viscount Palmerston to Sir Edmund Lyons, Foreign Office, December  16 1846, in CRD, 186. 115. Sir Edmund Lyons to Viscount Palmerston, Athens, April 9 1847, in CRD, 190. 116. Consul Crowe to Sir Edmund Lyons, Patras, July 29 1846, in CRD, 197. 117. Consul Wood to Sir Edmund Lyons, Patras, May 31 1847, in CRD, 239. 118. Petition of Forty Ionian Residents at Patras to Consul Wood, in CRD, 246. 119. Deposition of A. Sigouros, Deposition of N. Sigouros, Deposition of L. Markesini, in CRD, 258–267. 120. M. Coletti to Sir Edmund Lyons, Athens, 2 October 1847, in CRD, 269. 121. See, for example, Laurence Fenton, Palmerston and The Times: Foreign Policy, the Press and Public Opinion (London:  I.  B. Tauris, 2012), 108–111; David Brown, Palmerston and the Politics of Foreign Policy, 1846–55 (Manchester: Manchester University Press, 2002), 101–111. For an account focusing on the status of Jews in the eastern Mediterranean, including Ionian Jews, compare Fleming, Greece: A Jewish History, 23–27. 122. “Speech by Palmerston on the Affairs of Greece,” 25  June 1850, in British Prime Ministers of the Nineteenth Century: Policies and Speeches, ed. Joseph H. Park (New York: NYU Press, 1916), 155. 123. Ibid., 159.

Notes to Pages 117–118

243

Chapter Five: Ordering the Oceans 1. No. 9 extract of a letter from Captain Grace of His Majesty’s ship Cyrene, to Commodore Sir Robert Mends, dated of Gallinas River, 25  October 1822, British and Foreign State Papers (BFSP), 10:545. 2. Gregory and Fitzgerald to Canning, 11 December 1822, BFSP, 10:423. 3. “Factory” refers to a trading settlement, usually on foreign territory. No. 9 extract of a letter from Captain Grace of His Majesty’s ship Cyrene, to Commodore Sir Robert Mends, 25 October 1822, BFSP, 10:543. 4. Benedict Sandin, The Sea Dayaks of Borneo before White Rajah Rule (East Lansing: Michigan State University Press, 1967), 59–90. 5. Th ird enclosure in no. 1, Hon. Henry Keppel to the Governor of Prince of Wales Island, &c 4 September 1844, Borneo, in Borneo: Additional Papers respecting the Operations against the Pirates on the North-West Coast of Borneo, House of Commons Parliamentary Papers (HCPP), no. 1351, LVI Pt. I 123, 5–8. 6. Ibid. 7. Note, however, that funding was halved in the fifteen years after the Napoleonic Wars: Miles Taylor, introduction to The Victorian Empire and Britain’s Maritime Worlds, 1837–1901: The Sea and Global History, ed. Miles Taylor (New York: Palgrave Macmillan, 2013), 7–8. 8. Christopher Lloyd, The Navy and the Slave Trade: The Suppression of the African Slave Trade in the Nineteenth Century (London: Longmans, 1949), 79–88; Andrew Lambert, “Slavery, Free Trade and Naval Strategy, 1840– 1860,” in Slavery, Diplomacy and Empire: Britain and the Suppression of the Slave Trade, 1807–1975, ed. Keith Hamilton and Patrick Salmon (Eastbourne: Sussex Academic Press, 2009), 65–80. 9. Richard Gott, Britain’s Empire: Re sistance, Repression and Revolt (New York: Verso, 2011); Ranajit Guha, “Chandra’s Death,” in Subaltern Studies 5, ed. Ranajit Guha (New Delhi: Oxford University Press, 1987), 134–165; Guha, A Rule of Property for Bengal: An Essay on the Idea of Permanent Settlement (New Delhi: Orient Longman, 1982); Julie Evans, Edward Eyre: Race and Colonial Government (Dunedin: University of Otago Press, 2005); R. W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2005). 10. The estimate of 80,000 is taken from Jenny Martinez, The Slave Trade and the Origins of International Human Rights Law (Oxford: Oxford University Press, 2012), 99–101. The higher estimate of 160,000 is from John Oldfield, “After Emancipation: Slavery, Freedom and the Victorian Empire,” in Taylor, The Victorian Empire, 55. The campaign against the slave trade also spawned a network of treaties between Britain and African polities, erecting a regional

244

11.

12.

13.

14. 15.

16. 17.

Notes to Pages 118–122 regulatory framework for abolition. Edward Keene, “The Construction of International Hierarchy: A Case Study of British Treaty-Making against the Slave Trade,” International Organization 61 (2007): 311–339; Lauren Benton, “Abolition and Imperial Law, 1780–1820,” Journal of Commonwealth and Imperial History 39, no.  3 (2011): 355–374; Padraic Scanlan, “MacCarthy’s Skull: The Abolition of the Slave Trade in Sierra Leone, 1790–1823” (PhD diss., Princeton University, 2013). Taylor, introduction to The Victorian Empire, 5. Note that naval resources were also “seriously undermined” after 1815: Jeremy Black, “The Victorian Maritime Empire in Its Global Context,” in Taylor, The Victorian Empire, 168. For the full text of the Paris Declaration, see Thomas Gibson Bowles, The Declaration of Paris of 1856 (London: Sampson Low, Marston and Co., 1900). See also Jan Martin Lemnitzer, Power, Law and the End of Privateering (New York: Palgrave Macmillan, 2014). Janice E. Thomson, Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe (Princeton: Princeton University Press, 1996). The clearest example of this tendency is Martinez, The Slave Trade. See Eric Posner and Jack L. Goldsmith, “Moral and Legal Rhetoric in International Relations: A Rational Choice Perspective,” University of Chicago, John  M. Olin Program in Law and Economics Working Paper no. 108 (2000); Posner and Goldsmith, The Limits of International Law (Oxford: Oxford University Press, 2006), chap.  7. On the importance of taking humanitarian concern seriously in this period of British Imperial reform, see Alan Lester and Fae Dussart, Colonization and the Origins of Humanitarian Governance: Protecting Aborigines across the Nineteenth-Century British Empire (Cambridge: Cambridge University Press, 2014). Keene, “The Construction of International Hierarchy.” Some have argued that his immaculately well-timed War in Disguise (1805) precipitated the mutual blockade of colonial ports and, consequently, the War of 1812 with the United States. James Stephen, War in Disguise; or, the Frauds of the Neutral Flags (London: C. Wittingham, 1805), 70–71. For an excellent account of Stephen’s trace, see Ann M. Burton, “British Evangelicals, Economic Warfare and the Abolition of the Atlantic Slave Trade, 1794–1810,” Anglican and Episcopal History 65, no. 2 (1996): 197–225. The value of blockades for antislavery became apparent in the case of the Amedie in 1810. The British High Court of Admiralty declared that a neutral American slave ship could be seized in war time. Though the Amedie case has been remembered by historians of human rights law as the case that declared that “no claimant can be heard in an application to a court of prize for the restoration of the human beings he carried unjustly to another country for the purpose of disposing of

Notes to Pages 122–124

18. 19.

20. 21. 22.

23. 24.

25.

26. 27.

28.

29.

30.

245

them as slaves,” the American slaver was actually captured and condemned in 1808 for seeking to run a British blockade. The Amedie, (1810) 12 Eng. Rep. 92. See Benton, “Abolition and Imperial Law,” 361. Benton, “Abolition and Imperial Law,” 355–374. John Dodson, A Report of the Case of the Louis, Forest, Master: Appealed from the Vice-Admiralty Court at Sierra Leone and Determined in the High Court of Admiralty (London: J. Butterworth and Son, 1817), 39. Ibid., 40–41. Ibid., 43–44, 51–54. This rule was constantly challenged by the Navy and the Foreign Office. See, for example, John Dodson to Palmerston, 3 April 1839, TNA, Kew, FO 83/2348, F45–47. Th is advice reiterated that Brazilian ships without slaves could not be condemned by the Anglo-Brazilian commission. The Foreign Office asked them to reconsider: unsigned draft to Queen’s Advocate, 26 April 1839, TNA, FO 83/2348, F63–64. Robinson to Castlereagh, 28 June 1822, TNA, FO 83/2343, F88–90. Law officers to Palmerston, 31 December 1846, TNA, FO 83/2353, F270–272. Contrast their approach to the Senegambie: Dodson to Aberdeen, 30 September 1841, TNA, FO 83/2349, F231–233. Portugal: An alvará (permit) dated 26 January 1818, in Papers Relative to the Slave Trade: Class A. Correspondence with His Majesty’s Commissioners at Sierra Leone, 1829–20. Class B. Correspondence with Foreign Courts Relative to the Execution of Treaties Contracted by them with Great Britain for the Prevention of Illicit Traffic in Slaves, and Correspondence with His Majesty’s Commissioners in the Colonies of those Powers, 1817–20. Class C. Correspondence with France Relative to the Slave Trade, 1817–20. Class D. Correspondence with the United States of America Relative to the Slave Trade, 1819–20, HCPP, no.4, XXII 165, 16–19. Estimates database, 2009, Voyages: The Trans-Atlantic Slave Trade Database. Available at http://www.slavevoyages.org/tast/assessment/estimates.faces. Holger Lutz Kern, “Strategies of Legal Change: Great Britain, International Law, and the Abolition of the Transatlantic Slave Trade,” Journal of the History of International Law 6, no. 2 (2004): 240; Benton, “Abolition and Imperial Law.” “Commission for a British Commissary Judge, a Commissioner of Arbitration, and a Secretary or Registrar, to reside at Sierra Leone, under the Treaty with Spain of 1817,” BFSP, 8:9. Castlereagh to commissioners, 19  February 1819, BFSP, 8:13–17; compare thirty-four interrogatories from British Prize Courts printed in Notes on the Principles and Practice of Prize Courts by the Late Judge Story, ed. Frederic Thomas Pratt (London: William Benning and Co., 1854), 177–186. Enclosed in Castlereagh to commissioners, 20 February 1819, BFSP, 8:25–40.

246

Notes to Pages 124–126

31. Enclosed in Castlereagh to commissioners, 20 February 1819, BFSP, 8:30. 32. No. 78 C. E. Lefroy to the Marquess of Londonderry, 1 May 1822, in Class B. Correspondence with the British Commissioners at Sierra Leone, the Havannah, Rio de Janeiro, and Surinam, Relating to the Slave Trade, 1822– 1823, 127. Regarding press, see, for example, appendix to Fox to Palmerston, 20 September 1834, TNA, FO 84/156, F116–135; and Wellington, 18 May 1835, TNA, FO 84/174, F237–252. 33. Leslie Bethell, “The Mixed Commissions for the Suppression of the Transatlantic Slave Trade in the Nineteenth Century,” Journal of African History 7, no. 1 (1966): 83. 34. Ibid., 84; Jenny Martinez, “Antislavery Courts and the Dawn of International Human Rights Law,” Yale Law Journal 117 (2008): 550–580. Two-thirds of Brazilian cases at Sierra Leone were heard solely by British commissary staff. For a detailed account of the functioning of the Sierra Leone mixed commissions, see Scanlan, “MacCarthy’s Skull.” 35. Subenclosure 10, “Judgment Given in the Case of the Spanish Brig Diligente, Miguel Sierra Master,” 12  October 1838, in Class  A. Correspondence with the British Commissioners, at Sierra Leone, the Havana, and Rio de Janeiro, Relating to the Slave Trade (Further Series), HCPP, no. 188, XLIX 99, 17. 36. Leslie Bethell, The Abolition of the Brazilian Slave Trade: Britain, Brazil and the Slave Trade Question (Cambridge: Cambridge University Press, 1970), 136. The British tried to prevent this from recurring: The British consul-general offered a hulk to receive Africans detained pending trial in 1838—Brazil refused. No. 196, Ouseley to Palmerston, 10 July 1838, and no. 199, Ouseley to Palmerston, 26 July 1838, in Class B. Correspondence with Spain, Portugal, Brazil, the Netherlands, and Sweden, Relative to the Slave Trade Correspondence, 1838–1839, HCPP, no. 180, XLVIII 1, 383, 388–389. In the Flor de Loanda case in 1838, Brazilian authorities even refused to take sickening slaves on shore during the prolonged detention of the ship: First Enclosure in no. 208, Commodore Sullivan to Ouseley, 13 September 1838, ibid., 405. 37. Emily Haslam, “Redemption, Colonialism and International Criminal Law: The Nineteenth Century Slave Trading Trials of Samo and Peters,” in Past Law, Present Histories: From Settler Colonies to International Justice, ed. Diane Kirkby (Canberra: ANU E press, 2012), 10; Marika Sherwood, After Abolition: Britain and the Slave Trade since 1807 (London: I. B. Tauris, 2007), 172–173. For more on the procedural issues with the act, see the discussion of R v John MacQueen, 1813, TNA, HO 17/1/1, in Benton, “Abolition and Imperial Law,” 364. See also a discussion of the problems with the act in the article “Trials of the Slave-Traders . . . ,” Edinburgh Review 21 (1813): 72–93. 38. Sherwood, After Abolition, 119–120. 39. Benton, “Abolition and Imperial Law.”

Notes to Pages 126–127

247

40. Robinson to Canning, June 1826, TNA, FO 83/2344, F49–50. However, perusal of the records suggests that witnesses had been placed in the custody of the marshal before for “prevarication”: Enclosure no. 31, E Gregory and Edward Fitzgerald, Abstract of the Case of the . . . Santo Antonio de Lisbon, in Class B. Correspondence with the British Commissioners at Sierra Leone, the Havannah, Rio de Janeiro, and Surinam, Relating to the Slave Trade, 1822–1823, 81. Note that the law officers had earlier argued strongly that commissions needed power to punish perjury or power to surrender malefactors for punishment by local courts: Robinson to Castlereagh, 14 July 1820, TNA, FO 83/2343, F31–32; and see Crown Law officers to Castlereagh, 23 Jan 1818, TNA, FO 83/2343, F4–6, regarding the need to give power to administer oaths and punish perjury. 41. Palmerston to HM commissioners (Sierra Leone), 26 July 1841, in Class A. Correspondence with the British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, 1841, 23–24. 42. Law officers, Robinson, Shepherd, and Gifford to Castlereagh, 9 March 1819, TNA, FO 83/2343, F13–15. 43. An example of such jurisdictional complications can be seen in the events following the attempted search of the Spanish slave ship Veloz Pasagera. During this encounter the crew killed a number of British men to prevent them from boarding. After being processed by British magistrates in Sierra Leone, the crew members were sent to England to stand trial. This decision was subsequently overruled and the men were instead handed over to Spanish authorities. See Findlay and Smith (commissioners) to Palmerston, 8 March 1831, in Class A and B. Correspondence with the British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, 1831, HCPP, no. 10, XLVII 533 681, 7–9, 42; Findlay and Smith to Palmerston, 9  July 1831, ibid., 35–42; Findlay and Smith to Palmerston, 3  October 1831, ibid., 35–42. A similar occurrence took place in the case of the Spanish brig Marinerito, the crew of which violently resisted British boarding, as described by Findlay and Smith to Palmerston, 4 June 1831, ibid., 25–28. See also the case of the Portuguese slave vessel Nympha, laid out in Findlay and Smith to Palmerston, 20 December 1831, in Class A. Correspondence with the British commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, 1832, HCPP, no. 7, XLIII 1, 34. 44. John Dodson, A Report of the Case of the Louis. 45. Gordon to Monteiro, 16 April 1838, no. 186, in Class B. Correspondence with Spain, Portugal, Brazil, the Netherlands, and Sweden, Relative to the Slave Trade Correspondence, 1838–1839, HCPP, no. 181, XLVIII 213, 370; Gordon to Palmerston, 15  June 1838, ibid., 381–383; no. 146, Carvalho to Palmerston, 15 November 1838, ibid., 326–328; Law officers, J. Campbell, Will Rolfe, H. J. Shepherd, 18 January 1839, TNA, FO 83/2348, F18.

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Notes to Pages 127–129

46. An Act to explain and amend an Act passed in the Fift y first Year of His Majesty’s Reign, for rendering More Effectual an Act made in the Forty seventh Year of His Majesty’s Reign, for the Abolition of the Slave Trade 1818 (58 Geo 3, cap 98). This act merely stated that slave trading should be “inquired into” under piracy legislation. Section 9 of An Act to amend and consolidate the Laws relating to the Abolition of the Slave Trade 1824 (5 Geo. 4, cap. 113) much more clearly declared slave trading to be piracy. 47. Quoted in Martinez, The Slave Trade, 115. 48. Queen’s Advocate Dodson to Palmerston, 19 August 1839, Law Officers Reports: Slave Trade, TNA, FO 83/2348, F184; Strangeways to Dodson, 2 April 1839, 17 April 1839, and 26 April 1839, TNA, FO 83/2348, F42, F57, and F63; Dodson to Palmerston 3 April 1839, TNA, FO 83/2348, F45. 49. First enclosure in no. 165, George Jackson and Frederick Grigg to Palmerston, 23 September 1839, in Class A. Correspondence with the British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, 1839–40, HCPP, no. 265, XLVI 9, 258–261; and sixth enclosure in no. 189, Sentence Pompeo, 1841, in Class A. Correspondence with the British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, 1840, HCPP, no. 330, XXX 1, 348. 50. Queen’s Advocate Dodson to Palmerston, 19 August 1839, Law Officers Reports: Slave Trade, TNA FO83/2348, F184; Strangeways to Dodson, 2 April 1839, 17 April 1839, and 26 April 1839, TNA, FO 83/2348, F42, F57, and F63; Dodson to Palmerston 3 April 1839, FO83/2348, F45. First enclosure in no. 165, George Jackson to Ouseley, 30 August 1839, in Class A. Correspondence with the British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, 1839–40, 260; and sixth enclosure in no. 189, Sentence Pompeo, 1841, in Class A. Correspondence with the British Commissioners at Sierra Leone, the Havana, Rio de Janeiro, and Surinam, Relating to the Slave Trade, 1840, 348. 51. Enclosure in No. 282, M. Lisboa to Earl of Aberdeen, 29 July 1845, Class B. Correspondence on the Slave trade with Foreign Powers, Parties to Treaties, under which Captured Vessels are to be tried by Mixed Tribunals, 1845, HCPP, no. 724, LI 1, 317–319. 52. “R v Serva et al,” in Reports of Cases in Criminal Law argued and Determined in all the Courts in England and Ireland, vol. 1, 1843–46, ed. Edward W. Cox (London: J. Crockford, 1846), 335–356. 53. Ibid., 335. 54. A similar principle underpinned the law officers’ opinions about the detention of Spanish crews for attacking British naval ships in 1831, as described above. 55. “R v Serva et al,” 292–336. 56. Dodson to Palmerston, 26 September 1846, TNA, FO 83/2353, F173–176.

Notes to Pages 129–132 57. 58. 59. 60. 61. 62.

63. 64.

65.

66.

67.

68.

69.

249

Martinez, “Antislavery Courts,” 590. Robinson to Canning, 27 May 1823, TNA, FO 83/2343, F119. Robinson to Canning, 28 October 1823, TNA, FO 83/2343, F157. “The Case of the Aurora,” enclosure in no. 42, E. Gregory and Edward Fitzgerald to Canning, House of Lords Sessional Papers, 1801–33, vol. 158 (1823), 92–94. Instructions for the Guidance of Her Majesty’s Naval Officers Employed in the Suppression of the Slave Trade (London: T. R. Harrison, 1844). An Act to amend an Act, intituled An Act to carry into execution a Convention between His Majesty and the Emperor of Brazil, for the Regulation and final Abolition of the African Slave Trade 1845 (8&9 Vict, c. 122). This Act was modeled on An Act for the Suppression of the Slave Trade 1839 (2&3 Vict, c. 73), which was directed at Portugal. Stanley to Hamilton, 22 April 1850, TNA, FO 84/823, 95–96 (emphasis added). Leslie Bethell, “Britain, Portugal and the Suppression of the Brazilian Slave Trade: The Origins of the Lord Palmerston’s Act of 1839,” English Historical Review 80 (1965): 782–784; Bethell, Abolition of the Brazilian Slave Trade, 327–363. Anthony Reid, “Violence at Sea: Unpacking ‘Piracy’ in the Claims of States over Asian Seas,” in Elusive Pirates, Pervasive Smugglers: Violence and Clandestine Trade in the Greater China Seas, ed. Robert J. Anthony (Hong Kong: Hong Kong University Press, 2010), 16–19. For example, Joseph  N.  F.  M. à Campo, “Discourse without Discussion: Representations of Piracy in Colonial Indonesia, 1816–25,” Journal of Southeast Asian Studies 34, no. 2 (2003): 213. The literature on piracy campaigns in the nineteenth century is vast. Barbary piracy has received the most attention, and recent studies on other regional cases have rounded out the picture. See especially Thomas Panzac, The Barbary Corsairs: The End of a Legend, 1800–1820 (Leiden:  E.  J. Brill, 2002); Gonçal López Nadal, “Mediterranean Privateering between the Treaties of Utrecht and Paris, 1715–1856: First Reflections,” in Pirates and Privateers: New Perspectives on the War on Trade in the Eighteenth and Nineteenth Centuries, ed. David J. Starkey et al. (Exeter: Exeter University Press, 1997), 106–125; Matthew S. Hopper, Slaves of One Master: Globalization and Slavery in Arabia in the Age of Empire (New Haven: Yale University Press, 2015). Reid, “Violence at Sea,” 16–19. See also the discussion of Dutch understandings of piracy in Joseph N. F. M. à Campo, “Discourse without Discussion: Representations of Piracy in Colonial Indonesia, 1816–25,” Journal of Southeast Asian Studies 34, no.  2 (2003): 199–214; and Simon Layton, “Discourses of Piracy in an Age of Revolutions,” Itinerario 35, no. 2 (2011): 81–97. Ota Atsushi, “The Business of Violence,” in Elusive Pirates, Pervasive Smugglers: Violence and Clandestine Trade in the Greater China Seas, ed. Robert J. Anthony (Hong Kong: Hong Kong University Press, 2010), 127–141. See also

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70. 71. 72.

73.

74. 75. 76. 77. 78. 79. 80.

81.

Notes to Pages 132–134 Timothy P. Barnard, “Celates, Rayat-Laut, Pirates: The Orang Laut and Their Decline in History,” Journal of the Malaysian Branch of the Royal Asiatic Society 80, no. 2 (2007): 33–49. Sandin, The Sea Dayaks of Borneo. Reid, “Violence at Sea,” 18–19. Canning Report on Aceh, British Library, IOR/G/35/27; Kam Hing Lee, The Sultanate of Aceh: Relations with the British, 1760–1824 (Kuala Lumpur: Oxford University Press, 1995), 160–163. James Francis Warren, The Sulu Zone, 1768–1898: The Dynamics of External Trade, Slavery, and Ethnicity in the Transformation of a Southeast Asian Maritime State, 2nd ed. (Singapore: NUS Press, 2007), 149–211. “Mindanawi,” in Memoir of the Life and Public Services of Sir Thomas Stamford Raffles, ed. Sophia Raffles (London: James Duncan, 1830), 63. Warren, The Sulu Zone, 255. Regarding the dispersal of the Iranun, see Barnard, “Celates, Rayat-Laut, Pirates,” 45–46. H. R. C. Wright, “The Anglo-Dutch Dispute in the East, 1814–1824,” Economic History Review, new ser., 3, no. 2 (1950): 229–239. Reid, “Violence at Sea,” 22–23. Alfred  P. Rubin, The Law of Piracy, 2nd ed. (Irvington-on-Hudson, NY: Transnational, 1998), quoting Richard Woodeson, at 126. The sixteenth-century jurist Charles Molloy could not bring himself to say that English jurisdiction extended over English pirates in English boats beyond English seas. Others, like Sir Leoline Jenkins in the late seventeenth century, made much broader claims that English courts could exercise jurisdiction over Scottish pirates, for example. But most jurists were more conservative. By the late eighteenth century English jurists accepted that piracy was a natural crime but were reluctant to argue that it could be tried by any court. Richard Woodeson, third Vinerian Professor of English Law at Oxford, noted in 1777 that a “charge of piracy may properly be exhibited in any country, to which either the party accused, or the owner of the goods, belongs.” This approach was affirmed by the British Foreign Office in the context of Mediterranean privateering in the 1820s. Exercising jurisdiction over foreigners was also complicated by the fact that, from 1700, English criminal added mutiny and “barratry” to the domestic crime of piracy. Thereafter the British law of piracy diverged from the law of nations. Rubin, The Law of Piracy, 95–98, 113–114. See also Lauren Benton, “Toward a New Legal History of Piracy: Maritime Legalities and the Myth of Universal Jurisdiction,” International Journal of Maritime History 23, no. 1 (2011): 1–15. “The Hercules,” in Reports of Cases Argued and Determined in the High Court of Admiralty, vol. 2, 1815–1822 (London: A. Strahan, 1828), 374.

Notes to Pages 134–139

251

82. Ibid. 83. See Rubin, The Law of Piracy, 122–123, 232–233. Compare U.S. jurisdiction: ibid., 131–213. 84. See, for example, Nicholas Tarling, Piracy and Politics in the Malay World: A  Study of British Imperialism in Nineteenth- Century South-East Asia (Melbourne: F. W. Cheshire, 1963), 46. 85. Blake to Maitland, 13 August 1838, British Library, IOR 4/1978/86974, 7. 86. Tarling, Piracy and Politics, 100. 87. “Singapore,” Calcutta Monthly Journal and General Register . . . 1838, 302. 88. “The Piracy and Slave Trade of the Indian Archipelago,” Journal of the Indian Archipelago and Eastern Asia 4 (1850): 622. 89. Asiatic Journal and Monthly Miscellany 27 (1838): 165. 90. Ibid. 91. W. Norris, recorder, to Bonham, TNA, ADM 125/133, F30–36. 92. Marine Department, Calcutta, no. 1 of 1839, TNA, ADM 125/133, F70. 93. Davis to Cochrane, 25 January 1845, TNA, ADM 125/133, 24v. 94. Asiatic Journal and Monthly Miscellany 27 (1838): 165. 95. Quoted in Journal of Indian Archipelago 4 (1850): 622. The Oxford law professor Richard Woodeson argued that the Barbary states were not piratical in any shared understanding of the term because they were recognizable states with “a fixt domain, public revenue, and form of government.” Rubin, Law of Piracy, 126. 96. Tarling, Piracy and Politics, 149–152. 97. Norris to Bonham, 20 June 1838, TNA, ADM 125/133, F36. 98. Blake to Maitland, TNA, ADM 125/133, F66. 99. Extract from a treaty entered into between the Spanish government and the sultan and datus of Sooloo, 23 September 1836, TNA, ADM 125/133, F2–3. 100. Ibid., F2. 101. Parker to Ellenborough, 12 January 1844, ADM 125/133, F89. 102. “Mere boys” is from Asiatic Journal and Monthly Miscellany 27 (1838): 165; account of sentence from Journal of Indian Archipelago 4 (1850): 623. 103. Owen Rutter, The Pirate Wind: Tales of the Sea-Robbers of Malaya (Singapore: Oxford University Press, 1986), 41–42. 104. Piratical Ships Act 1825 (6 Geo. 4 c. 30). 105. Nicholas Tarling, “The Superintendence of British Interests in South-East Asia in the Nineteenth Century,” Journal of Southeast Asian History 7, no. 1 (1966): 97. 106. Tarling, Piracy and Politics, 13. “So much must in any case be left to the discretion of Commanders of Cruizers, that it seems wholly unnecessary to afford them any pretext for detaining vessels, of the peaceful character of which there might be no reason to doubt.” Marine Department, Calcutta, no. 1 of 1839, 4 January 1839, TNA, ADM 125/133, F70.

252

Notes to Pages 139–143

107. J. D. Dundas to Sir F. Collier, 16 June 1848, in Piracy (Borneo): Copies or Extracts of any Despatches relating to the Suppression of Piracy off the Coast of Borneo (London: Harrison and Son, 1850), 5. 108. No. 9, Lord Eddisbury to the secretary of the Admiralty, 9 November 1849, ibid., 11–12. 109. Quoted in Tarling, Piracy and Politics, 47. 110. Ibid., 99–100. 111. Ibid., 101. 112. Reports of Cases Argued and Determined in the High Court of Admiralty, vol. 2, 1843–1847 (London, 1853), 357–358. 113. This amounted to £40 each, as 176 crew members were involved in the claim. “Head Money, Borneo,” Paper No. 967 in Accounts and Papers, vol. 5 (London: 1852–1853), 279. 114. See, for example, Raffles, Memoir, 71, 379; Fullerton, Minute, 22 October 1823, quoted in Tarling, Piracy and Politics, 35–37. 115. Nigel Barley, White Rajah: A Biography of James Brooke (London: Little, Brown and Co., 2002), chaps. 4–5. 116. James Brooke, Memorandum on piracy, in Borneo: Additional Papers, 15–16. 117. Article 9 Treaty of Friendship and Commerce . . . 1847, in BFSP, vol. 35, pt. 1, 16. 118. Sandin, The Sea Dayaks of Borneo, 59–90. 119. Alexis Chamerovzow, Borneo Facts versus Borneo Fallacies: An Inquiry into the Alleged Piracies of the Dyaks of Serebas and Sakarran, 2nd ed. (London: Charles Gilpin, 1851). See also George Foggo, Adventures of Sir  J. Brooke, Rajah of Sarawak (London: Effingham Wilson, 1853), 6. 120. Chamerovzow, Borneo Facts, 27. 121. Enclosure in no. 2, copy of letter from Captain T. Wallage to Captain J. H. Johnstone, 26 August 1849, Piracy (Borneo) 378 (2–4); Accounts and Papers, vol. 26, pt. 1, Piracy: the Slave Trade (1851). 122. Hume, House of Commons Debate, 10 July 1851, vol. 118, cc436–503, available at http://hansard.millbanksystems.com/commons/1851/jul/10/borneo-sir-james -brooke. 123. Prinsep to GG India, 13 January 1855, in Borneo: Reports of the Commissioners Appointed to Inquire into Certain Matters Connected with the Position of Sir James Brooke, HCPP, no. 1976, XXIX 1, 5. 124. Ibid., 6. 125. Devereux to GG India, 13 January 1855, in Borneo: Reports of the Commissioners, 19. 126. Sims et  al., 26  September 1854, Borneo. Commission of Enquiry: Sir James Brooke, TNA, FO 12/20, F93; Guan Ho et al., 23 September 1854, ibid., F95–97. 127. Madam da Trongua, 7 October 1854, TNA, FO 12/20, F9.

Notes to Pages 143–150

253

128. Thomas Owen Crane, October 1854, TNA, FO 12/20, F12; James Guthrie, 29  September 1854, ibid., F33; Joseph Keok, 23  September 1845, ibid., F175; James Henry, 23 September 1854, ibid., F177–181. 129. Wee Guan Wee, 4 October 1854, TNA, FO 12/20, F4–5. 130. Mataipl, Qiang et  al., 11–12  October 1854, TNA, FO 12/20, F238–267; See Borneo: Reports of the Commissioners, 4. 131. Tan Kim Inree, TNA, FO 12/20, F 7–8; William Napier, law agent Singapore, 29 September 1854, ibid., F63–76; Robert Hentig, 24 September 1854, ibid., F201–213. 132. Moosahl, 11 October, 1854, TNA, FO 12/20, F228–233; Abdultrassinl, 11 October 1854, ibid., F233–238; Mataipl, 11 October 1854, ibid., F238–239. 133. Lt. John Arnold Rappa, October 1854, TNA, FO 12/20, F28. 134. See also Pangeran Serail, 10 October 1854, TNA, FO 12/20, F221. 135. Lt. John Arnold Rappa, October 1854, TNA, FO 12/20, F26. 136. Prinsep to GG India, 13 January 1855, in Borneo: Reports of the Commissioners, 2–3. 137. Ibid., 4. 138. Ibid., 5 139. Ibid., 25–26. 140. Reid, “Violence at Sea,” 24; Warren, The Sulu Zone, 104–106. 141. “Head Money, Borneo,” in Accounts and Papers, vol. 61 (London: 1852–1853), 279. 142. Certificate of Record, no. 12 in Piracy (Borneo): Copies or Extracts, 14. Note that in correspondence from their commanding officer Wallage and Farquhar claimed to have killed 1,000 Dayaks in the rivers of Borneo. (See enclosure in no. 2 copy of letter from Captain T. Wallage to Captain J. H. Johnstone, 26  August 1849, Piracy (Borneo) 378 (2–4); Accounts and Papers, vol. 26, pt. 1, Piracy: The Slave Trade (1851); “Head Money, Borneo,” in Accounts and Papers, vol. 61 (London: 1852–1853), 277. 143. Piracy Act 1850 (13 & 14 Vict c 26).

Chapter Six: An Empire of States 1. Kam Hing Lee, The Sultanate of Aceh: Relations with the British, 1760–1824 (Kuala Lumpur: Oxford University Press, 1995), 174–189. 2. Canning Report on Aceh, British Library (BL), London, IOR/G/35/27, np. 3. Ibid. 4. Ibid. 5. John Gallagher and Ronald Robinson, “The Imperialism of Free Trade,” Economic History Review 6, no. 1 (1953): 1–15. Th is perspective presents one of several repeating rubrics relied on by historians to characterize British

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imperialism; others include informal imperialism, free-trade imperialism, and civilizational imperialism; see James Tully, “Lineages of Contemporary Imperialism,” in Lineages of Empire: The Historical Roots of British Imperial Thought, ed. Duncan Kelly (Oxford: Oxford University Press, 2009), 3–29. To Tully’s list we might add “ legal imperialism” as described, for example, in Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge: Cambridge University Press, 2010). Alongside other emblems of informal empire, arrangements of extraterritoriality are often presented as the main vehicles for projecting legal influence inside other polities in the nineteenth-century world. See W. Ross Johnston, Sovereignty and Protection: A Study of British Jurisdictional Imperialism in the Late Nineteenth Century (Durham, NC: Duke University Press, 1973); Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (Oxford: Oxford University Press, 2012); and Martti Koskenniemi, “Ruling the World by Law(s): The View from Around 1850,” in Creating Community and Ordering the World, ed. Martti Koskenniemi and Bo Stråth (Helsinki: University of Helsinki Press, 2014), 16–32. We discuss some struggles over extraterritoriality in this chapter and in Chapter  4, but our purpose is to point toward other, less studied conduits for the influence of British law. 6. Austin was writing in our period, but his ideas became broadly influential only later in the century. John Austin, The Province of Jurisprudence Determined (London, 1832), 146–147, 222–224, 249–267. As an example of the lasting effects of the view that empires were merely variants of states, consider Alexander Wendt’s statement that “premodern” European political formations comprised only three forms: states, city-states, or city-leagues. Alexander Wendt, Social Theory of International Politics (Cambridge: Cambridge University Press, 1999), 9. 7. In light contrast, Immanuel Kant imagined a world in which no government would hold this responsibility but federation itself would produce order. He envisioned “a federation of peoples in which every state, even the smallest, could expect to derive its security and rights not from its own power or its own legal judgement, but solely from this great federation (Fœdus Amphictyonum), from a united power and the law-governed decisions of a united will.” Kant, “Idea for a Universal History with a Cosmopolitan Purpose” (1784), in Kant: Political Writings, ed. H. S. Reiss (Cambridge: Cambridge University Press, 1991), 41–53, at 47. 8. David Armitage, The Declaration of Independence: A Global History (Cambridge, MA: Harvard University Press, 2007); Alison LaCroix, The Ideological Origins of American Federalism (Cambridge, MA: Harvard University Press, 2010); Jane Burbank and Frederick Cooper, Empires in World History: Power

Notes to Pages 150–153

9.

10. 11.

12.

13.

14.

15. 16.

17. 18.

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and the Politics of Difference (Princeton: Princeton University Press, 2010), chap. 11. David P. Filder and Jennifer M. Welsh, eds., Empire and Community: Edmund Burke’s Writings and Speeches on International Relations (Oxford: Westview Press, 1999), 131. Quoted in David Armitage, Foundations of Modern International Thought (Cambridge: Cambridge University Press, 2013), 177. See our discussion of continuities of imperial and republican thought in this chapter; and see especially José Carlos Chiaramonte, Nación y Estado en Iberoamérica: El lenguaje politico en tiempos de las independencias (Buenos Aires: Editorial Sudamericana, 2004). John Manning Ward, Colonial Self-Government: The British Experience, 1759– 1856 (New York: Macmillan, 1976); Robert Aldrich and Cindy McCreery, eds., Crowns and Colonies: European Monarchies and Overseas Empires (Manchester: Manchester University Press, 2016). Such advocacy was an accepted part of “gentlemanly capitalism”; see P. J. Cain and A. G. Hopkins, British Imperialism: 1688–2000 (New York: Routledge, 2013), 167–193; see also James Belich, Replenishing the Earth: The Settler Revolution and the Rise of the Anglo-World, 1783–1939 (Oxford: Oxford University Press, 2009); Gary B. Magee and Andrew S. Thompson, Empire and Globalisation: Networks of People, Goods and Capital in the British World, c. 1850– 1914 (Cambridge: Cambridge University Press), 177–231. Compare Frederick Cooper’s analysis of twentieth-century West Africa. Cooper, Citizenship between Empire and Nation: Remaking France and French Africa (Princeton: Princeton University Press, 2014). In Europe, too, “for much of the nineteenth century the question for many small nations, and some large ones, was not how to conserve a political independence they had already lost, but how to negotiate the experience of empire.” (Thomas Hopkins, “Ordering the World in the Nineteenth Century,” in Koskenniemi and Stråth, Creating Community and Ordering the World, 33–43, at 40). See also Richard Whatmore, “ ‘Neither Masters nor Slaves’: Small States and Empire in the Long Eighteenth Century,” in Kelly, Lineages of Empire, 53–81. John Gascoigne, Encountering the Pacific in the Age of the Enlightenment (Cambridge: Cambridge University Press, 2014). Ibid.; O. H. K. Spate, The Spanish Lake (Canberra: ANU Press, 1979); John M. Ward, British Policy in the South Pacific, 1796–1893 (Sydney: Australian Publishing Co., 1948). See, for example, Meredith Lake, “Samuel Marsden, Work and the Limits of Evangelical Humanitarianism,” History Australia 7, no. 3 (2010): 57.1–57.23. H.  E. Maude, Of Islands and Men: Studies in Pacific History (Melbourne: Oxford University Press, 1968), 178–222.

256

Notes to Pages 153–156

19. Dorothy Shineberg, They Came for Sandalwood : A Study of the Sandalwood Trade in the South-West Pacific, 1830–1865 (Melbourne: Melbourne University Press, 1967). On sojourners and the transformative cultural capital they brought with them, see Maude, Of Islands and Men, 134–177. 20. Instructions to the governor of New South Wales, April 1787, TNA, PC 1/62/16. 21. Ward, British Policy in the South Pacific, 35. 22. Ibid., 31–40. 23. Report of Messrs. Freshfield and Kay, solicitors to the Levant Company, 8 June 1812, Consular Jurisdiction in the Levant, TNA, FO 406/1, 3. Philip Stern argues that the legal authority of the British East India Company, together with other capacities of rule, made it the equivalent of a state. Philip Stern, The Company-State: Corporate Sovereignty and the Early Modern Origins of the British Empire in India (New York: Oxford University Press, 2011), 173. On corporate jurisdiction within the British plural legal order more generally, see Philip Stern, “ ‘Bundles of Hyphens’: Corporations as Legal Communities in the Early Modern British Empire,” in Legal Pluralism and Empires, 1500–1850, ed. Lauren Benton and Richard Ross (New York: NYU Press, 2013). 24. See British Consular Jurisdiction in the Levant, TNA, FO 406/1 and FO 406/2. 25. An Act to proceed by Commission of Oyer and Terminer against such Persons as shall confess Treason, &c. without remanding the same to be tried in the Shire where the Offence was committed (33 Hen 8, c. XXIII); Treason Act 1543 (35 Hen 8, c. 2). 26. An Act for the more effectually providing for the Punishment of Offences in wilfully casting away, burning, or destroying Ships and Vessels; and for the more convenient Trial of Accessaries in Felonies; and for extending the Powers of an Act made in the thirty-third Year of the Reign of King Henry the Eighth, as far as relates to Murders, to Accessaries to Murders, and to Manslaughters 1803 (43 Geo 3, c. 113). 27. An Act for the more effectual Punishment of Murders and Manslaughters committed in Places not within His Majesty’s Dominions 1817 (57 Geo 3, c. 53). 28. Ward, British Policy in the South Pacific, 171–172. 29. Ibid., 50–57. 30. Hitoti (regent) to Marquess of Londonderry, 26 August 1822, Correspondence Relative to the Society Islands, 1822–1843, 1:37–38, held in the Mitchell Library, Sydney, New South Wales, Q999.5/G; Pomare to King George IV, 5 October 1825, ibid., 4; “Apaapa, Secretary of State to the King and Government of Great Britain,” enclosure 1 in no. 29, 6 January 1832, ibid., 27. 31. Pritchard to Freemantle, ibid., 37–38. 32. For another, simpler, version of the story, see Charlton to Early of Aberdeen, 8 March 1832, ibid., 30.

Notes to Pages 157–160 33. 34. 35. 36. 37. 38. 39. 40. 41.

42. 43.

44. 45. 46. 47. 48. 49. 50. 51.

52.

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George Pritchard to Freemantle, 24 December 1832, ibid., 37–38. Charlton to Palmerston, 6 August 1834, ibid., 31. Charlton to Aberdeen, 8 March 1832, ibid., 30. Moshe Rapaport, “Oysterlust: Islanders, Entrepreneurs, and Colonial Policy over Tuamotu Lagoons,” Journal of Pacific History 30:1 (1995): 39–40. Ibid., 40. Bengt Danielsson, Work and Life on Raroia (London: Novellow and Co., 1956), 78. J. L. Young, “Names of the Paumotu Islands, with the Old Names so far as They Are Known,” Journal of the Polynesian Society 8, no. 4 (1899): 268. Danielsson, Work and Life on Raroia. Greg Dening, “Possessing Tahiti,” Archeology in Oceania 21, no. 1 (1986): 110– 111. Purea and Amo were defeated by the Tu. Both used European artifacts as part of their ritual attire. Neil Gunson, “Pomare II of Tahiti and Polynesian Imperialism,” Journal of Pacific History 4, no. 4 (1969): 65–82. For a remarkable analysis of the pork trade, see Maude, Of Islands and Men, 178–222. And see, for example, Th relkeld in Rurutu, 1821, cited in Gunson, “Pomare II,” 76. Gunson, “Pomare II”; Douglas L. Oliver, Ancient Tahitian Society, vol. 3 (Honolulu: University of Hawai‘i Press, 1974). Gunson, “Pomare II,” 69. Ibid., 69; Threlkeld to Marsden (unclear), Eimes, 26 May 1818, LMS, South Sea Missions Correspondence, the Mitchell Library, A381/CY877, p. 121. Enclosure, Hill to Palmerston, no. 29, Correspondence Relative to the Society Islands, 1:29–30. The laws were undated. Queen of Tahiti to the king of England, no. 29, 6 January 1842, ibid., 26–27. Queen of Tahiti to the king of England, no. 29, 6 January 1842, ibid., 26. Ward, British Policy in the South Pacific, 122–125. For example, the undated printed legislation establishing a pi lotage fee for visiting foreign ships applied only to the islands of Tahiti and Eimeo. “Regulations for Masters of Vessels Entering the Ports on the North-West Side of the Islands of Tahiti and Eimeo,” no. 29, Correspondence Relative to the Society Islands, 1:29; but see the more general prohibition on leaving crew behind in Regulations for Masters of Vessels, et al., ibid., 29. Th relkeld and Williams, 8  July 1822, quoted in Gunson, “Pomare II,” 68. Threlkeld’s career linked New South Wales and Polynesian legal politics. See Anna Johnston, “A Blister on the Imperial Antipodes: Lancelot Edward Threlkeld in Polynesia and Australia,” in Colonial Lives across the British Empire, ed. David Lambert and Alan Lester (Cambridge: Cambridge University Press, 2006), 58–87.

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Notes to Pages 160–162

53. Barff to Hill, 7 August 1819, Huahine, South Sea Missions Correspondence, the Mitchell Library, A381, CY877, 136. 54. Colin Newbury, “Te hau Pahu Rahi: Pomare II and the Concept of Interisland Government in Eastern Polynesia,” Journal of the Polynesian Society 76, no. 4 (1967); enclosures 4–10 (undated) in Hankey to Dudley, no. 22, 13 June 1827, Correspondence Relative to the Society Islands, 1:15–19. 55. Danielsson, Work and Life on Raroia, 39. 56. The Pomare dynasty had some clan ties to the Tuamotuan islanders, but “with the possible exception of Makatea . . . [they] were all independent of the Tahitian rulers” until 1817. Gunson, “Pomare II,” 72–73; Danielsson, Work and Life on Raroia, 77. 57. Ibid., 74. 58. Though “how much of this tribute reached Pomare is not stated.” Gunson, “Pomare II,” 75; compare Danielsson, Work and Life on Raroia, 80. 59. Charlton to Canning, 12 May 1826, Correspondence Relative to the Society Islands, 1:7. 60. Charlton to Earl of Aberdeen, 8 March 1832, ibid., 30. 61. Frederick William Beechey, Narrative of a Voyage to the Pacific and Beering’s Strait . . . (Philadelphia: Carey and Lea, 1832), 281. 62. Ibid., 283, 284. 63. Ibid., 283. In 1831 the push for compensation from the queen for the loss of the Truro depended directly on interpretations of the status of the 1825 order to attack ships without royal licenses to trade. Mr. Bancroft, master of the Dhaulli, very helpfully procured an admission in writing from Queen Pomare that she had renewed “orders to cut off all vessels that visited the low islands in the Dangerous Archipelago without paying her the sum of 2000 dollars.” Charlton to Aberdeen, 8 March 1832, Correspondence Relative to the Society Islands, 1:30; Charlton to Hon. W. Waldegrave, 22 September 1831, ibid., 31. Some more generous souls ignored this dubiously acquired written admission, but Charlton used it as clear evidence of the queen’s perfidy. Clearly, he complained, he “had no sooner left the island” in 1825 “than the former order was sent up again to Anaa.” Charlton to Waldegrave, 22 September 1831, ibid., 31. 64. Beechey, Narrative of a Voyage, 281. 65. Carleton to Earl of Aberdeen, 8 March 1832, Correspondence Relative to the Society Islands, 1:30. 66. Charlton to Queen Pomare, 14 September 1834, Correspondence Relative to the Society Islands, 1:32. 67. Hill to the queen of Tahiti, enclosed in Hill to Palmerston, 12 May 1832, TNA, FO 84/14. To Hill’s express dissatisfaction, McMurdo took a milder course. He was influenced, it seems, by the missionaries who, Hill complained, “having

Notes to Pages 162–165

68. 69. 70. 71. 72. 73.

74. 75.

76. 77.

78.

79. 80.

81.

259

[e]ntirely lost their influence, wished it to be believed, that Strong Language would give offence.” Hill to Palmerston, 12 May 1832, TNA, FO 84/14, F178. Hill to the queen of Tahiti, enclosed in Hill to Palmerston, 12 May 1832, TNA, FO 84/14. McMurdo to Queen Pomare, 23 April 1832, no. 35, Correspondence Relative to the Society Islands, 1:38. Queen Pomare to McMurdo, 23 April 1832, no. 34, ibid., 39. Freemantle to Queen Pomare, 25 December 1832, no. 34, ibid., 39. Freemantle to the Captain or Commander of any of His Majesty’s ships who may arrive in Tahiti, 26 December 1832, ibid., 40. Captain Robert Fitzroy, Narrative of the Surveying Voyages of His Majesty’s Ships Adventure and Beagle between the years 1826 and 1836, vol. 2 (London: Colburn, 1839), 533. Queen Pomare to Captain Seymour, 22 September 1834, Correspondence Relative to the Society Islands, 1:33. Fitzroy, Surveying Voyages of Adventure and Beagle, 2:532. He claimed the islands were “still considered (though nominally given up by her), as under her authority and particular influence” and indeed, arrived to find thirty-six tons of pearl shells from the islands sitting as tribute in the docks of the islands. Also, when they took over Tahiti, the French assumed authority without hesitation over the Tuamotus. Quoted in Newbury, “Te hau Pahu Rahi,” 483; Papers Relating to Tahiti, and to the Leeward, or Society Islands, in the Pacific, 1847 (London: T. R. Harrison, 1847), 5–6. Ward, British Policy in the South Pacific. Jane Samson, Imperial Benevolence (Honolulu: University of Hawai‘i Press, 1998). Note that Samson’s “humanitarians” patrolled the Pacific later in the nineteenth century. Trade with the region had been coveted by Britons for some time: John Campbell, An Account of the Spanish Settlements in America (Edinburgh: A. Donaldson and J. Reid, 1762), 324–336. D. C. M. Platt, Latin America and the British Trade, 1806–1914 (London: Adam and Charles Black, 1972), chap. 1. On enthusiasm (and dashed hopes) for mining in Chile, for example, see Desmond Gregory, Brute New World: The Rediscovery of Latin America in the Early 19th Century (London: I. B. Tauris, 1993), 48–49. Dependency theorists pushed against this account by arguing instead that if market saturation was quick to develop in some areas, it was heroically resisted in others. The parts of the region most isolated from market penetration, we were told, prospered most in the period, through a combination of homegrown investment and import substitution. Paraguay became the

260

82. 83.

84.

85.

86.

Notes to Page 165 poster child of this idea of isolated polities that benefited mightily from being left to their own devices. Economic historians challenged the evidence in support of this idea, in par ticu lar showing that Paraguayan growth was stymied by stagnant demand made worse by insularity. However we judge this debate, it has had the odd effect of reinforcing the notion that the first half of the nineteenth century was a period of slow and uneven integration of Latin America, and the Río de la Plata region, in global processes. Thomas Wigham, The Politics of River Trade: Tradition and Development in the Upper Plata, 1780–1870 (Albuquerque: University of New Mexico Press, 1991), 27–29. See David McLean, War, Diplomacy and Informal Empire: Britain, France and Latin America, 1836–1852 (London: I. B. Tauris, 1995). See Ann Stoler, “On Degrees of Imperial Sovereignty,” Public Culture 18, no. 1 (2006): 125–146; David Rock, “The British in Argentina: From Informal Empire to Postcolonialism,” in Informal Empire in Latin America: Culture, Commerce, and Capital, ed. Matthew Brown (Oxford: Wiley-Blackwell, 2008), 49–77. Leading the way in exposing the flaws of narratives tracing progressions toward nationhood, José Carlos Chiaramonte insisted that the shared framework of natural law was compatible with “any kind of political formation” (“cualquier tipo de organización política.”) Chiaramonte, Nación y Estado en Iberoamérica, 12. José M. Portillo Valdés, Crisis Atlántica: Autonomía e Independencia en la Crisis de la Monarquía Hispana (Madrid: Marcial Pons Historia, 2006), 116 (“incoherencias políticas”). Following Chiaramonte, Jeremy Adelman has stressed the imperial roots of the political crisis and the connections between constitutionalism and the challenges of establishing sovereignty. Jeremy Adelman, Sovereignty and Revolution in the Iberian Atlantic (Princeton: Princeton University Press, 2006), esp. 345–346. New attention to the circulation of genres of political writing in the Atlantic world has, meanwhile, complicated earlier interpretations of a unidirectional spread of Anglo-American constitutionalism. On new genres of political writing, see Armitage, The Declaration of Independence. Jeremy Adelman, Republic of Capital: Buenos Aires and the Legal Transformation of the Atlantic World (Stanford: Stanford University Press, 1999), 51. And see Jorge Cañizares-Esguerra, How to Write the History of the New World: Histories, Epistemologies, and Identities in the Eighteenth-Century Atlantic World (Stanford: Stanford University Press, 2001); Josep Maria Fradera, Colonias para después de un Imperio (Barcelona: Edicions Bellaterra, 2005); Gabriel B. Paquette, “The Dissolution of the Spanish Atlantic Monarchy,” Historical Journal 52, no. 1 (2009): 175–212; David M. Golove and Daniel J. Hulsebosch, “A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition,” NYU Law Review 85, no. 4 (2010): 932–1066.

Notes to Pages 165–168

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87. This point is particularly well developed by Chiaramonte, Nación y Estado en Iberoamérica, and by Portillo, Crisis Atlántica. 88. Seeking to postpone a formal aff ront to the Spanish government in Cádiz, Britain at fi rst groped toward recognition by making commercial treaties. The first such overture came in the form of a commission to Mexico with instructions to negotiate a treaty for the entrance of British ships in Mexican ports. The British would extend an offer of a commercial treaty later to Argentina and, still later, to Paraguay: see, for instance, Hertslet’s Commercial Treaties: A Collection of Treaties and Conventions, and Reciprocal Regulations, at Present Subsisting Between Great Britain & Foreign Powers, vol. 3 (London: Butterworth, 1827), 247–256; Hertslet’s Commercial Treaties, vol. 9 (London: Butterworth, 1827), 182–188. 89. The documents included the Declaration of Independence, the Articles of Confederation, the Constitutions of Virginia and Massachusetts, and the U.S. Constitution. Hector Miranda, Las Instrucciones del año XIII (Montevideo: A. Barreiro y Ramos, 1910), 411–417. 90. The polity would retain “su soberanía, libertad e independencia, todo poder, jurisdicción y derecho que no es delegado experesamente por la Confederación á las Provincias Unidas juntas al Congreso.” Miranda, Las Instrucciones del año XIII, 413. Artigas’s choice of the language of “confederation” is significant, given the tenor of debates before and after 1789 about tyranny in the  U.S. Constitution. See Gordon Wood, The Creation of the American Republic, new ed. (Chapel Hill: University of North Carolina Press, 1998), esp. chaps. 10 and 12. The phrase in Spanish is una firme liga de amistad. Miranda, Las Instrucciones del año XIII, 413. 91. See André A. Alves and José M. Moreira, The Salamanca School (London: Bloomsbury, 2009). In Iberia the authority of the Crown sat atop a layered structure of multiple political communities, dubbed a composite monarchy by J. H. Elliot in “Europe of Composite Monarchies,” Past and Present 137 (1992): 48–71. In addressing his followers, Artigas proclaimed that his authority “emanates from you and it ceases in your sovereign presence” (“autoridad emana de vosostros y ella cesa por vuestra presencia soberana”); from the speech of 4 April 1813 to the Congreso de Abril. José Gervasio Artigas and Lucía Sala de Touron, José Gervasio Artigas: Obra Selecta (Caracas: Fundación Biblioteca Ayacuch, 2000), 22. 92. “La soberanía par ticu lar de los pueblos sera pecisamente declarada y ostentada, come objeto único de nuestra revolución.” Juan Antonio Rebelle,  Lo hispánico en la acción y en el pensamiento político de Artigas (Montevideo, 1953), 16–17. 93. This point was “the essence of Artiguista thought” (“la esencia del pensamiento artiguista”) according to Rebelle, Lo hispánico, 20. And on the central

262

94.

95.

96.

97.

Notes to Page 168 role of towns and cities in the Río de la Plata revolution, see José Carlos Chiaramonte, Ciudades, provincias, estados: Orígenes de la Nación Argentina, 1800–1846 (Buenos Aires: Espasa Calpe, 1997), esp. 145–147. The “proyecto de constitución para la Provincia Oriental” of 1813 begins by listing the “pueblos . . . que forman la Provincia Oriental.” They are Canelones, Piedras, Pando, Minas, Maldonado, San Carlos, Rocha, Santa Teresa, Santa Lucía, Pintado, San José, el Colla, Colonia, Espinillo, Víboras, Santo Domingo, Soriano, Mercedes, Porongos, Paysandú, Cerro Large, and Belén. Felipe Pigna, ed., José Gervasio Artigas: Escritos politicos y económicos (Buenos Aires: Grupo Editorial Planeta, 2010), 51–52. Artigas recognized towns’ autonomy in this regard by designating Maldonado and Colonia as ports of free access in Articles 12 and 13 of the Instructions (see chap. 6 in Miranda, Las Instrucciones del año XIII, esp. 331–332). His position was consistent with the efforts of Montevideo and Buenos Aires to develop foreign policies of their own by deciding whether to invite neutral European nations to trade. Some political actors in the region welcomed the possibility of being absorbed into the British Empire. The general and sometime supreme director in Buenos Aires, Carlos Alvear, in 1815 requested British intervention to bring order to the region by imposing its government and laws. The letters were not delivered by his agent. Carlos  A. Pueyrredon, “Gestiones diplomaticas en America, 1815–1817,” in Academia Nacional de la Historia (HNA), Buenos Aires, Argentina, vol. 6, 626–635; cited in Sujay Rao, “ ‘Plowing the Sea’: Provincial Elites and the Evolution of Federalism in Argentina’s Littoral, 1810– 1829” (PhD diss., Harvard University, 2002). On Artigas’s efforts to strengthen institutions inside the Banda Oriental, see Ana Frega, “La virtud y el poder: La soberanía par ticu lar de los pueblos en el proyecto artiguista,” in Caudillismos Rioplatenses: Nuevas Miradas a un Viejo Problema, ed. Noemí Goldman and Ricardo Salvatore (Buenos Aires: Eudeba, 1998), 101–133. Because the government of the United Provinces was not at war with Portugal, its patent letters authorized raids against Spanish shipping only. Captains sailing out of Buenos Aires began to offer their ser vices to Artigas, a trend that was slow to change even after it became clear that Provincia Oriental commissions were unwelcome in Buenos Aires prize courts so that captured ships and their goods could not be taken there to be condemned and sold. Some of the account of Artigas’s privateering draws on Lauren Benton, “Una soberanía extraña: La Provincia Oriental en el mundo atlántico,” 20/10: El Mundo Atlántico y la Modernidad Iberoamericana, 1750–1850 1 (2012): 89–107. And see Agustín Beraza, Los Corsarios de Artigas (Montevideo: Imprenta Nacional, 1949). Between 1817 and 1820, Artigas’s commissions circulated among mari ners in U.S. ports, especially in Baltimore but also in Savannah, Norfolk, Charleston,

Notes to Pages 169–170

98.

99.

100. 101. 102. 103.

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and Providence, and were employed on cruises against Iberian shipping across the Atlantic and Ca ribbean. Just one ship, the Irresistible, sailed from Baltimore and, in a cruise lasting only fourteen months, captured between sixteen and twenty-nine prizes, operated unhindered in a handful of ports, and claimed captures successfully in at least three prize courts. On the Irresistible, see Beraza, Los Corsarios de Artigas, 107–115; and Fred Hopkins, “For Freedom and Profit: Baltimore Privateers in the Wars of South American Independence,” Northern Mariner / Le Marin du Nord 18, nos. 3/4 (2008): 93– 104. Other ships sailing with commissions from Artigas showed up in Caribbean prize courts. The General Artigas arrived in 1817 in the port of Galveston with two prizes, one a ship carry ing 287 slaves. William C. Davis, The Pirates Laffite: The Treacherous World of the Corsairs of the Gulf (New York: Houghton Miffl in, 2006), 320–321, 326. See also Kevin Arlyck, “Plaintiffs v. Privateers: Litigation and Foreign Affairs in the Federal Courts, 1816–1822,” Law & History Review 30, no. 1 (2012): 245–278; Sean T. Perrone, “John Stoughton and the Divina Pastora Prize Case, 1816–1819,” Journal of the Early Republic 28, no. 2 (2008): 215–241; Benton, “Una soberanía extraña.” We have no record of explicit statements by Artigas that he was seeking to position the Banda Oriental as a state among states in issuing privateering commissions, but it seems clear that this was the case. The patent letters authorized their holders to cruise against enemies and “respect the Flag of the Republic and attack its enemies in the manner judged most opportune according to the Law of Nations” (our translation). See, for example, Beraza, Los Corsarios de Artigas, 32. Like the Buenos Aires government, Artigas burnished the official nature of the act of issuing the patent letters by producing a document called the “Reglamento del Corso,” which outlined procedures for privateers and adjudication of prizes. Together with the commissions, Artigas provided Halsey with a letter for President James Monroe written as a communication from one head of state to another. The letter appears in Beraza, Los Corsarios de Artigas, appendix 9, 219. The anonymous author of A Five Years’ Residence called it the “hell of navigators.” A Five Years’ Residence in Buenos Ayres, during the Years 1820–1825, Containing Remarks on the Country and Inhabitants, and a Visit to Colonial del Sacramento (London: G. Herbert, 1825), 4. John P. Robertson and William P. Robertson, Francia’s Reign of Terror, Being the Continuation of Letters on Paraguay, vol. 3 (London: John Murray, 1839), 107. Ibid., 91. Ibid., 99–110. Thomas Whigham, The Politics of River Trade: Tradition and Development in the Upper Plata, 1780–1870 (Albuquerque: University of New Mexico Press, 1991), 31.

264

Notes to Pages 170–171

104. For a colorful account of the British residents of Buenos Aires, see A Five Years’ Residence, 35–49. 105. John P. Robertson and William P. Robertson, Letters on South America: Comprising Travels on the Banks of the Paraná and Rio de la Plata, vol. 1 (London: John Murray, 1843), 23. 106. Robertson and Robertson, Letters on Paraguay, 3:48, 39. 107. Ibid., 32. 108. Ibid., 128. 109. Ibid., viii. See also the popu lar English edition of Rengger and Longchamp, The Reign of Doctor Joseph G. R. De Francia in Paraguay: Being an Account of Six Years’ Residence in That Country (London: Th. Hurst, 1827). The dangers of expulsion and property loss increased over time: see Copy of Petition from British Merchants, 12 July 1845, TNA, FO6/106, F94–97; Ouseley to Aberdeen, 27 December 1845, TNA, FO6/107, F181–184. 110. A good summary of Palmerston’s foreign policy in general is found in David Brown, Palmerston and the Politics of Foreign Policy, 1846–55 (Manchester: Manchester University Press, 2002); on Latin America, see Martin Lynn, “British Policy, Trade, and Informal Empire in the Mid-Nineteenth Century,” in The Oxford History of the British Empire, vol. 3, The Nineteenth Century, ed. Andrew Porter (Oxford: Oxford University Press, 1999), 101–121. 111. To contemporary observers, British actions had the unmistakable ring of parallel policies in China and India. Francia’s overtures to Montevideo for a commercial treaty had a “Chinese-like nature” and aimed at transforming the Paraguayan port of Ytapua into “the new South American Canton.” Robertson and Robertson, Letters on Paraguay, 3:282; Robertson and Robertson, Letters on South America, 1:20. 112. Indeed, similar British policies in Colombia highlight the preference for stability and efforts to avoid military intervention. Malcolm Deas, “ ‘Weapons of the Weak?’ Colombia and Foreign Powers in the Nineteenth Century,” in Brown, Informal Empire in Latin America, 183. 113. For other discussions of British restraint in the region, see H. W. V. Temperley, “The Later American Policy of George Canning,” AHR 11, no. 4 (1906): 779–797; David McLean, “Trade, Politics and the Navy in Latin America: The British in Paraná, 1845–46,” Journal of Imperial and Commonwealth History 35, no. 3 (2007): 353. This was an enduring theme in British–Latin American relations: See Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (New York: Cambridge University Press, 2001), chap. 6. 114. British agents in Montevideo shared an unease about the French. Mandev ille complained in 1839 that French mobilization in Montevideo to fight in the Banda Oriental demonstrated that they were “treating the Oriental Country

Notes to Pages 172–175

115.

116. 117. 118.

119.

120.

121. 122.

123. 124.

125. 126. 127.

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as a department of France”; Mandev ille to J. Back house, 29 July 1839, private, TNA, FO 6/70, F54. For many examples of movements to propose such political outcomes, see Chiaramonte, Ciudades, provincias, estados; and Adelman, Sovereignty and Revolution. Clifton B. Kroeber, “Naval Warfare in the Río de la Plata Region, 1800–1861,” Wisconsin Academy of Sciences, Arts and Letters 45 (1956): 91–109. For example, Brig Florida, William Hastings, TNA, FO 446/3 F43–47; Brig Concord, Stewart Leith Master 1827 FO 446/3 F49–53. The petition was presented by Viscount Strangford to the House of Lords. Writing in the Times, Viscount Strangford denounced “the factious eagerness with which the most trifling and frivolous circumstances are taken up and magnified, and converted into questions of national importance to the profit, territorial, financial, political, and commercial.” Quoted in John Cady, Foreign Intervention in the Rio de la Plata, 1838–50 (Philadelphia: University of Pennsylvania Press, 1929), 65. British residents to Aberdeen, 31 July 1845, TNA, FO 6/108, F92–93. For an example of a request for intervention to protect British property in Corrientes, see Ouseley to Captain Hotham, enclosure in Ouseley to Aberdeen, 26 November 1845, TNA, FO 6/106, F78–80. On the appeal for protection, see Cady, Foreign Intervention, 95; on Lafone, see David Rock, “The Rio de la Plata in the 1840s,” in The British Abroad since the Eighteenth Century, vol. 2, ed. Martin Farr and Xavier Guégan (New York: Palgrave Macmillan, 2014), 163–164. The strategy was not new; the United Provinces had made the same appeal in 1815 in an attempt to stave off anarchy. See John Street, Artigas and the Emancipation of Uruguay (Cambridge: Cambridge University Press, 2008), 211. Mandev ille to Granville, 15 September 1839, TNA, FO 6/70, F80; Mandev ille to Palmerston, 21 September 1839, FO 6/70, F94–95. Aberdeen to Ouseley, 5 November 1845, TNA, FO 6/102, F64. Curiously, the virtual occupation of Montevideo by France had not bothered him nearly so much, though British agents in the city had written home in some alarm when the French navy raised a fighting force in the city to fight in the Banda Oriental (Mandev ille to J Back house, 29 July 1839, private. FO 6/70, F54). Aberdeen to Ouseley, 20 February 1845, TNA, FO 6/102, F17–18, F24–27. Ouseley to Aberdeen, 26 November 1845, TNA, FO 6/106, F80; and copy of Colonel Supremo gobierno de la Republica del Paraguay, 1 June 1845, TNA, FO 6/106, F81–89. Memorandum of conference: Expedition to Paraná, FO 6/106, F120. Contrast McLean, “Trade, Politics and the Navy,” 351–370. British residents to Ouseley, 9 May 1846, TNA, FO 6/118, F251–257.

266 128. 129. 130. 131.

132. 133.

134.

135.

Notes to Pages 175–178 McLean, “Trade, Politics and the Navy,” 364–366. Aberdeen to Ouseley, 27 December 1845, TNA, FO 6/102, F82–83. Ibid., F85. Palmerston in private correspondence took a striking position—the opposite of an expansive advocacy of free navigation. He declared that the British and French blockade had been not just unauthorized, it was an act of piracy, “equivalent to stopping neutral vessels on the high seas and making them pay blackmail.” Quoted in Cady, Foreign Intervention, 231. This position had the advantage, too, of matching the British position with regard to navigation on the Saint Lawrence River in Canada. John Gallagher and Ronald Robinson, “The Imperialism of Free Trade,” Economic History Review 6, no. 1 (1953): 1–15; John Gallagher and Ronald Robinson, “The Imperialism of Free Trade,” South African Journal of Economic History 7, no. 1 (1992): 35. For dissent from their thesis, see Stoler, “On Degrees of Imperial Sovereignty,” 125–146; Rock, “The British in Argentina,” 49–77. Edward Keene, “The Construction of International Hierarchy: A Case Study of British Treaty-Making against the Slave Trade,” International Organization 61 (2007): 311–339; Keene, “The Standard of ‘Civilisation,’ the Expansion Thesis and the 19th-Century International Social Space,” Millennium 42, no. 3 (2014): 651–673; James Onley, “The Politics of Protection in the Gulf: The Arab Rulers and the British Residents in the Nineteenth Century,” New Arabian Studies 6 (2004): 30–92; Matthew S. Hopper, “The African Presence in Eastern Arabia,” in The Gulf in Modern Times: People, Ports, and History, ed. Lawrence Potter (New York: Palgrave Macmillan, 2014), 327–350. Several notable cases before the U.S. Supreme Court involved ships sailing with Artigas commissions—one of which was captured after Artigas was in exile and no longer a head of state. In a case involving a dispute over the profits generated by a ship sailing from Baltimore, the Irresistable, the Court sidestepped the question of whether Artigas was a legitimate head of state or a “mere adventurer,” but arguments in the case aired the view that the Banda Oriental was de facto a sovereign state. (The Gran Para. The Consul General of Portugal, Libellant, Supreme Court of the United States, 20 U.S. 471; 5 L. Ed. 501; 1822 U.S. LEXIS 268; 7 Wheat. 471). In the case of the Antelope, a ship captured entering Florida coastal waters with an illegal cargo of slaves, the Court also refused to affirm the legitimacy of the privateering commission signed by Artigas but did not challenge its legality, either, in turning its attention to the nationality of the ships that had been plundered. The Antelope. The Vice- Consuls of Spain and Portugal, Libellants. Supreme Court of the United States 23 U.S. 66; 6 L. Ed. 268; 1825 U.S. LEXIS 219; 10 Wheat. 66. On U.S. policies and the pressures on courts, see Arlyck, “Plaintiffs v. Privateers”; Perrone, “John Stoughton and the Divina Pastora.”

Notes to Pages 178–186

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136. The categorization by the United States and Britain of “the Spanish provinces of this hemisphere” as co-belligerents grouped together Venezuela and the Banda Oriental in a way that Bolivar and Artigas would have approved of—and certainly intended. Artigas wrote to Bolívar in 1819 to request his recognition and protection of Oriental privateers. Letter from José Artigas to Simón Bolívar, 29 July 1819, in Pigna, José Gervasio Artigas, 104–105. Perhaps it is not surprising that when the Confederate government in the southern United States sought to justify its policy of privateering nearly four decades later, Southern leaders cited Artigas’s Banda Oriental as a model of a breakaway republic that had successfully claimed its right to sponsor privateering, implicitly garnering international recognition in the process. Abolitionists remembered Artigas, too—not as a revolutionary who insisted on the sovereignty of the common people but as a sponsor of slave traders. See the previous note on the case of the Antelope.

Chapter Seven: A Great Disorder 1. For example, Daron Acemoglu and James A. Robinson, Why Nations Fail: The Origins of Power, Prosperity, and Poverty (New York: Crown, 2012), esp. chap. 1; on the British Empire as a supposed harbinger of global modernity, see Niall Ferguson, Empire: The Rise and Demise of the British World Order and the Lessons for Global Power (New York: Basic Books, 2004). 2. Wallace Stevens, “Connoisseur of Chaos,” in The Collected Poems of Wallace Stevens (New York: Random House, 1990), 215. 3. Compare Christopher Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire (Cambridge: Cambridge University Press, 2011); Uday Sing Mehta, Liberalism and Empire: A Study in Nineteenth- Century British Liberal Thought (Chicago: University of Chicago Press, 1999). 4. Allan Greer, The Patriots and the People: The Rebellion of 1837 in Rural Lower Canada (Toronto: University of Toronto Press, 1993), chap. 11. 5. Jeremy Bentham prescribed codification to cure the disorder of all polities and offered to write codes of laws for the United States, Russia, the Spanish government at Cádiz, and others. Jeremy Bentham, The Collected Works of Jeremy Bentham: “Legislator of the World”: Writings on Codification, Law, and Education, ed. Philip Schofield and Jonathan Harris (London: Clarendon Press, 1999); Philip Schofield, Utility and Democracy: The Political Thought of Jeremy Bentham (Oxford: Oxford University Press, 2006), chaps. 8 and 9; Jennifer Pitts, A Turn to Empire: The Rise of British Imperial Liberalism in Britain and France (Princeton: Princeton University Press, 2005), chap. 4; David Armitage, Foundations of Modern International Thought (Cambridge: Cambridge University Press, 2013), 172–187.

268

Notes to Pages 186–188

6. On this point see Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History (Cambridge: Cambridge University Press, 2002); Lisa Ford traces the way settlers’ jurisdictional claims developed against customary law in Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, MA: Harvard University Press, 2011); and more generally, on the way customary law fit within plural legal orders in empires, see Lauren Benton and Richard Ross, eds., Legal Pluralism and Empires, 1500–1850 (New York: NYU Press, 2013). 7. Kostal remains the best source on the constitutional debates surrounding the Eyre case and the response of liberals to the controversy. Rande Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2008). See also Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1500–1900 (New York: Cambridge University Press, 2010), chap. 4. 8. See Benton, A Search for Sovereignty, chap. 5. 9. Quoted in East India (Indian States), Report of the Indian States Committee, 1928–1929, cmd. 3302 (London: H.M.S.O., 1929), 17–18. 10. John Westlake, “The Indian Empire,” in The Collected Papers of John Westlake on Public International Law, ed. L. Oppenheim (Cambridge: Cambridge University Press, 1915), 222–223. 11. R. B. J. Walker, Inside / Outside: International Relations as Political Theory (Cambridge: Cambridge University Press, 1993). 12. On the standard of civilization and late nineteenth-century international law, see Gerrit W. Gong, The Standard of “Civilization” in International Society (New York: Oxford University Press, 1984); Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge: Cambridge University Press, 2005). On empire and international law, see Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2007); Edward Keene, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press, 2002); Benton, A Search for Sovereignty, chap. 5; Lauren Benton and Benjamin Straumann, “Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice,” Law and History Review 28, no.  1 (2010): 1–38; Andrew Fitzmaurice, Sovereignty, Property and Empire, 1500–2000 (Cambridge: Cambridge University Press, 2014). 13. For a balanced appraisal of both approaches to universalism and international law, see Jennifer Pitts, “Empire and Legal Universalisms in the Eighteenth Century,” AHR 117, no.  1 (2012): 92–21. See also Richard Drayton, “Beyond Humanitarian Imperialism: The Dubious Origins of ‘Humanitarian Intervention’ and Some Rules for Its Future,” in The History and Practice of Humanitarian Intervention and Aid in Africa, ed. Bronwen Everill and Josiah

Note to Page 188

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Kaplan (New York: Palgrave Macmillan, 2013), 217–230; Ian Hunter, “Global Justice and Regional Metaphysics: On the Critical History of the Law of Nature and Nations,” in Law and Politics in British Colonial Thought: Transpositions of Empire, ed. Shaunnagh Dorsett and Ian Hunter (New York: Palgrave Macmillan, 2010), 11–29. 14. Intellectual historians have critiqued their own field’s tendency to analyze jurists’ writings out of context, and some have analyzed colonial and imperial influences. Karuna Mantena, for example, notes that “studies of liberalism and empire have only unevenly addressed the question of how justifications of empire historically evolved in relation to the practices and politics of imperial rule on the ground.” Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton: Princeton University Press, 2010), 8. For an analysis of Grotius’s writings that seeks to measure the influence of information from the East Indies as well as diplomacy in Europe, see Martine van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights Theories and the Rise of Dutch Power in the East Indies, 1595–1615 (Leiden: Brill, 2006). For an illustration of the uses of analyzing European thought in the context of colonialism and colonial practice as an iteration of European thought, see Benton and Straumann, “Acquiring Empire by Law.” Yet often, and perhaps not surprisingly, the context that intellectual historians consider is a widening circle of European or American production and circulation of ideas rather than the “politics of imperial rule on the ground.” Even attempts to read theorists’ writing in such contexts have come under attack; Anne Orford upbraids historians for remaining entrapped in a Skinnerian world of immediate and contemporary context. Orford, “The Past as Law or History? The Relevance of Imperialism for Modern International Law,” International Law and Justice Working Papers (2012/2), New York University School of Law. For examples of the types of contextualizing works that prompt surprisingly virulent attacks, see Ian Hunter’s analyses of Vattel in the context of the political and intellectual milieus in Europe and the nascent United States: Ian Hunter, “Kant and Vattel in Context: Cosmopolitan Philosophy and Diplomatic Casuistry,” History of European Ideas 39, no. 4 (2013): 477–502; Hunter, “The Figure of Man and the Territorialisation of Justice in ‘Enlightenment’ Natural Law: Pufendorf and Vattel,” Intellectual History Review 23, no.  3 (2013): 289–307; Hunter, “Vattel in Revolutionary America: From the Rules of War to the Rule of Law,” in Between Indigenous and Settler Governance, ed. Lisa Ford and Tim Rowse (London: Routledge, 2012), 12–22. Our own view is that contextual readings not only are historically valid but produce new insights about contemporary international legal debates. However, contexts should be widened to include both broader elite intellectual circuits and the legal politics of empire and the intellectual production of non-elite actors.

270

Notes to Pages 188–190

15. On international lawyers’ perceptions of empire, see Anghie, Imperialism, Sovereignty, and Keene, Beyond the Anarchical Society. Recent attempts to rectify this imbalance include Mantena, Alibis of Empire; Benton, A Search for Sovereignty, esp. chap. 5; Saliha Belmessous, ed., Native Claims: Indigenous Law against Empire, 1500–1920 (Oxford: Oxford University Press, 2012); and Saliha Belmessous, ed., Empire by Treaty: Negotiating European Expansion, 1600–1900 (Oxford: Oxford University Press, 2015). Some contributions have remained within a European-focused intellectual legal history by tracing the participation of mainly elite non-Westerners in debates about international law; see, for example, Arnulf Becker Lorca, Mestizo International Law: A Global Intellectual History, 1842–1933 (Cambridge: Cambridge University Press, 2014). Becker reproduces a periodization in which European discourse dominated until 1842, with the signing of the Treaty of Nanjing, whereafter non-Western states appropriated and modified European discourse. 16. The classic account of the British view of international global order is presented by Wilhelm  G. Grewe, The Epochs of International Law, trans. Michael Byers (New York: Walter de Gruyter, 2000) 451. 17. David C. Hendrickson, Peace Pact: The Lost World of the American Founding (Lawrence: University Press of Kansas, 2003); Alison L. LaCroix, The Ideological Origins of American Federalism (Cambridge, MA: Harvard University Press, 2011); Jack P. Greene, Peripheries and Center: Constitutional Developments in Extended Polities of the British Empire and the United States, 1607– 1788 (Athens: University of Georgia Press, 1987). On the persistence of the global and imperial context of U.S. sovereignty, see Charles Maier, Among Empires: American Ascendancy and Its Predecessors (Cambridge, MA: Harvard University Press, 2006); and Eliga Gould, Among the Powers of the Earth: The American Revolution and the Making of a New World Empire (Cambridge, MA: Harvard University Press, 2012). 18. David Armitage, The Declaration of Independence: A Global History (Cambridge, MA: Harvard University Press, 2008). On the influence of the U.S. Constitution internationally, see Daniel Hulsebosch and David Golove, “A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition,” NYU Law Review 85, no. 4 (2010): 932–1066. 19. A now-classic work by Janice Thomson argues that interpolity collusion to contain nonstate violence, especially on the seas, accounts for the turn toward an international order of states in the long nineteenth century. Thomson, Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe (Princeton: Princeton University Press, 1994). Thomson’s material supports our analysis of regional formations preceding global shifts, though she pays relatively little attention to regions and to extraEuropean politics. Thomson’s approach stands against (and to some degree

Notes to Pages 190–192

20.

21.

22. 23.

24.

25. 26.

271

also builds on) a much more powerful tradition of characterizing the main shift in international ordering in the nineteenth century as the change from the dominance of natural law to positive law. David Kennedy, “International Law and the Nineteenth Century: History of an Illusion,” Nordic Journal of International Law 65 (1996): 385–420. A similar approach can be used to retell the old story of the global influence of the Concert of Europe. Rather than “rock solid legal norms,” the Concert of Europe created a repertoire of routines and normative frameworks, such as arbitration, that came to have global reach. See Matthias Schulz, “ ‘Defenders of the Right’? Diplomatic Practice and International Law in the 19th Century: An Historian’s Perspective,” in Constructing International Law: The Birth of a Discipline, ed. Luigi Nuzzo and Miloš Vec (Frankfurt: Vittorio Klostermann, 2012), 258–261; and, more generally, Herbert Butterfield, “The Balance of Power,” in Diplomatic Investigations: Essays in the Theory of International Politics, ed. Herbert Butterfield and Martin Wight (London: Allen and Unwin, 1966), 132–148. For recent approaches to international law in the twentieth and twenty-first centuries that characterize networks or procedures as the stuff of international law, see Anne-Marie Slaughter, A New World Order: Government Networks and the Disaggregated State (Prince ton: Princeton University Press, 2004); and, especially, Benedict Kingsbury, Nico Krisch, and Richard Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68, no. 15 (2005): 15–62. David Armitage foreshadows this move somewhat in his discussion of dates of British expansion that produced international engagements, but elsewhere he stops short of arguing that imperial politics was generative of international law: Armitage, Foundations of Modern International Thought (Cambridge: Cambridge University Press, 2013), 136, contrast 40. On jurisdictional politics more generally, see Benton, Law and Colonial Cultures; and Ford, Settler Sovereignty. Anne Orford, “Food Security, Free Trade, and the Battle for the State,” Journal of International Law and International Relations 11, no. 2 (2015): 1–67. Jessica Whyte, “ ‘Always on Top’: Sovereignty, the ‘Responsibility to Protect’ and the Persistence of Colonialism,” in The Postcolonial World, ed. Jyotsna G. Singh and David D. Kim (New York: Routledge, 2017). Our discussion of Scholastic thought on these points relies on the original and compelling analysis in Annabel S. Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural Law (Princeton: Princeton University Press, 2011), quote at 125. Ibid., 168. As Brett observes, the commonwealth “can live with the anomalous situation of one who does not have a just war against the state but yet has rights to avoid the coercive power of the state if he can.” Ibid., 157.

272 27. 28. 29. 30. 31. 32.

33.

34.

35. 36.

Notes to Pages 193–196 Ibid., 192. Walker, Inside / Outside, 84. Ibid., 70, 95, 97. See Nuno P. Monteiro, Theory of Unipolar Politics (Cambridge: Cambridge University Press, 2014). Ibid., 5. In arguing that hierarchy “remains a core . . . feature of international relations,” David Lake notes that “hierarchy today is cloaked, submerged, and itself undisciplined because both dominant and subordinate states prefer not to acknowledge its existence.” Lake, Hierarchy in International Relations (Ithaca, NY: Cornell University Press, 2009), xiii. See also Patrick T. Jackson and George Lawson, “Hierarchy in World Politics,” Journal of International Relations and Development 14, no. 2 (2011): 151–152; Alexander Cooley, Logics of Hierarchy: The Organization of Empires, States, and Military Occupation (Ithaca, NY: Cornell University Press, 2012). See Chapters 4, 5, and 6 in this volume. On ad hoc consular intervention, see Benton, Law and Colonial Cultures, chap. 6. There is a rich historiography on extraterritorial jurisdiction, and some studies highlight inter-imperial dynamics. One study examines the ways European powers reinforced one another’s jurisdictional meddling in the late nineteenth and early twentieth centuries: Mary Dewhurst Lewis, Divided Rule: Sovereignty and Empire in French Tunisia, 1881–1938 (Berkeley: University of California Press, 2013). The histories we have told of Anglo-French legal influence (the Río de la Plata, Tahiti); British, Dutch, and Spanish antipiracy interactions (Southeast Asia); or even Anglo-Portuguese negotiations over Atlantic slave trade containment show that in the early nineteenth century, too, parallel or combined imperial meddling shaped extraterritorial claims and practices. Duncan Bell, ed., Victorian Visions of Global Order: Empire and International Relations in Nineteenth-Century Political Thought (Cambridge: Cambridge University Press, 2007); and see especially Pitts, “Empire and Legal Universalisms.” Pitts, A Turn to Empire. Schulz, “ ‘Defenders of the Right’?,” 260.

Acknowledgments

In writing a book that covers so much territory, we have incurred many debts of gratitude. The Australian Research Council (projects DP110103832 and DE120100593), Vanderbilt University, the University of New South Wales, and New York University facilitated our travel for the writing and research of this book. The excellent facilities at the National Archives of the United Kingdom, the British Library, and the National Archives of Scotland made the research for this project unimaginably easy. Our sincere thanks to the staff who make the materials at those collections so accessible to researchers. We are enormously grateful to the wonderful colleagues who have read parts of our work, talked us through the hard bits, recommended readings, and cheered us along, including Robert Aldrich, David Armitage, Álvaro Caso Bello, Annabel Brett, Christopher Brown, Jane Burbank, Trevor Burnard, Fred Cooper, Robert Cribb, James Epstein, Paul Halliday, Ian Hunter, Benedict Kingsbury, Martti Koskenniemi, Peter Lake, Alan Lester, David Lieberman, Kirsten McKenzie, Matthew Mirow, Philip Morgan, Gabriel Paquette, Jennifer Pitts, David Roberts, Sujit Sivasundaram, Aaron Slater, Miranda Spieler, Robert Travers, and Larry Wolff. We could not have completed the research and writing without Misha Ewen, Leah Grolman, Ebony Jones, Jeppe Mulich, Lisa Plotkin, John Rambow, Gabriel Rocha, Doris Sher, Kelsey Sheridan, Rebecca Swatz, Amy Tan, Priscilla Varsanyi, and Kathryn Walker—all of whom assisted at different points in the project finding needles in haystacks, photographing fi les, helping us spot patterns in the chaos, or hunting for typos. We learned a great deal from colleagues who listened to presentations and asked good questions in Zu rich, Cambridge, Brisbane, Sydney, Frankfurt, Macerata, Singapore, Hong Kong, and Dunedin, as well as in Ann Arbor, Philadelphia, Nashville, Minneapolis, Baltimore, Princeton, and many other places. 273

274

Acknowledgments

Thanks to Joyce Seltzer and the team at Harvard for their intelligence and patient efficiency. Love and thanks to our families for cheerfully or other wise letting us travel the world to research, eat, drink, laugh, and write. If all collaborations were as much fun as this one, historians might never work alone.

Index

Aberdeen, Lord, 173–174, 175 Abolition Act (1807), 48, 50, 58, 124, 125 abolitionists, 9, 11, 16, 28, 59, 120, 146; colonial practice of abolition, 125–126; protection of slaves and, 45, 89; slave trading equated with piracy, 119. See also slave trade: abolition of Aborigines, Australian, 12, 68, 89, 153 Aceh, sultanate of, 132, 148–149 Admiralty, Board of, 40, 130, 216n66 admiralty courts, 48, 122–123, 125–126, 135–137, 155. See also High Court of Admiralty American Revolution, 9, 17–18, 29, 42, 182; constitutions drafted after, 13 Anaa (island), 156, 158, 160, 176, 177, 258n64 Anapoorny, seizure of, 148 Anglo-Brazilian Convention (1826), 127 Anglo-Dutch commission, 124, 129, 133–134 Anglo-Portuguese conventions (1815, 1817), 124, 127 annexation, 12, 26, 85, 181, 191; of Kingdom of Kandy, 91, 93–102, 182; protection as justification for, 93–102, 192 Argentina, 171, 173, 175 Artigas, José Gervasio, 172, 176, 261nn90–91, 262n94; privateering commissions of, 168, 178, 263n98, 266n135, 267n136; sovereignty and, 166, 168–169, 177 Atkins, Richard, 37, 38–39, 215n55 Austin, John, 23, 58, 79–80, 82, 150, 151, 196, 254n6

Australia, 12, 76, 89, 111, 185, 235n17. See also New South Wales Balangini “pirates,” 132, 142, 145 Banda Oriental, 166, 168, 172, 178, 263n98, 267n136. See also Provincia Oriental Barbados, 72, 73–75, 79 Barry, James, 68, 227n51 Bathurst, Earl, 71, 77, 103, 105, 108, 238n58 Bayly, Christopher, 3, 221n120 Beechey, Capt. Frederick William, 161, 162 Bengal, 3, 4, 7, 18 Bentham, Jeremy, 4, 10, 29, 267n5; on convict settlement in New South Wales, 41, 43; on layered British sovereignty in North America, 150 Bigge, John Thomas, 15, 58, 60, 61, 83, 226n42, 226n44; Commission of Eastern Inquiry and, 66–67, 69–70; New South Wales commission and, 60, 61–66, 70 Bill of Rights, English (1689), 29 Blair, William, 109, 240n96 Blake, Captain, 134, 137, 138 Blaxcell, Garnham, 38 Blaxland, John, 36, 215n43 Bligh, William, 43, 49, 54; accusations of tyranny against, 30, 32–33, 35–37, 39–40, 41; Board of Admiralty and, 40, 216n66; Bounty mutiny and, 16, 32, 40; coup against, 31–32, 154; deposed as governor of New South Wales, 14

275

276

Index

blockades (naval), 148, 190, 244n17; Don Pacifico affair and, 114; in the Río de la Plata, 172–173, 174, 175, 266n131 Borneo, 117–118, 121, 139, 140–145, 151 bounty laws (piracy), 138, 146, 147 Brazil, 120, 125, 147, 245n22; British policing of slave trade and, 130–131; independence, 123, 124; Río de la Plata and boundaries of, 169 Brooke, James, 16, 132, 140–145, 146, 147; “Memorandum on Piracy,” 140–141; as “rajah” of Sarawak, 140, 142, 182 Brownrigg, Robert, 96–101, 237–238n56, 237n54 Brunei, sultanate of, 132, 140, 141, 142, 143, 145 Buenos Aires, 165–166, 173, 174; British merchants in, 170, 172, 173; centralization of power in, 168; French blockade of, 172–173, 175; rivalry with Montevideo, 169, 174 bureaucrats and bureaucracies, 8–10, 47, 50–52, 57, 74–76, 83, 84, 95–6, 119, 126–130, 165, 174, 192. See also “middle power” Burke, Edmund, 7, 10, 29, 43, 150; critiques of East India governance, 182; failed attempt to impeach Hastings, 17 Canada, 17, 58, 76; American invasion force (1812), 85–86; rebellion (1837) in, 82, 185 Canning, George, 20, 150, 160, 175 Canning, John, 148–149 Cape Colony, 8, 15, 79; ceded to Britain, 67; Commission of Eastern Inquiry and, 58, 61, 66; commission of inquiry in, 60, 61, 66–67, 69–70; Dutch legal institutions, 68–70; illegal slave trading in, 67; reform in, 16, 69–70 capitalism, 25, 180 Castlereagh, Lord, 150, 236n34 Cephalonia, 107, 108, 111, 112, 241n99, 241n103 Ceylon, 8, 9, 115, 116; ceded to Britain by the Dutch, 91; Commission of Eastern Inquiry and, 58, 61, 66, 80–81; law charter, 95–96, 100; map of, 92; Mudaliyār elites, 94–95, 102, 182; protection discourse and, 12, 90, 91, 98–100; Sinhalese population, 66, 91, 92;

vernacular constitution and, 17. See also Kandy, Kingdom of Chain Islanders, attacks on European ships by, 156–157, 160, 161, 163, 195. See also Anaa (island) Charlton, Richard, 158, 160, 161–163, 258n64 Charter of Justice (New South Wales, 1787), 33 China/Chinese Empire, 5, 136, 149 China trade, 132, 135, 161 civilization, standard of, 19, 21, 188, 210n63 civil rights, 62, 73, 100 codification, 75, 82, 186 Cole, George Ward, 156, 158 Collier, Rear Admiral, 139, 142 Colonial Office, 2, 56–57, 64, 75, 79; Levant Company and, 154; planter revolt in Mauritius and, 82 Commission of Eastern Inquiry, 58, 60–61, 66–67, 80–81, 102 commissions of inquiry, 10–11, 15, 21, 25, 52, 57–84; into activities of James Brooke, 142–144; in Barbados, 74–76; in the Cape Colony, 67–70; in Ceylon, 80–81; imperial authority legitimated by, 83–84; imperial governance and, 25; in India, 82; in Malta, 57–58, 79–80; in Mauritius, 81–82; in New South Wales, 60, 62–66; slave trade commissions, 119–120, 123–130, 183, 223n9; in Trinidad, 57, 76–79; in Western Sumatra, 148–149 Coneys, Henry, 60, 229n84 confederation, 23, 165, 166, 168, 177, 178, 261n90; Argentine Confederation, 175; Articles of Confederation in United States, 261n89 Congress of Vienna (1815), 13, 18, 196 constitutionalism, 2, 25, 107, 191, 207n42, 260n85 constitutions, 3, 199n2, 207n42; British, 80, 181; Cádiz Constitution (1812), 5, 165; of the Cape Colony, 69–70; “constitutional moment,” 18, 208–209n51; French, 201n10; imperial constitutional reform, 61, 56–84; of Ionian Islands, 105, 109; of Malta, 33, 58, 80; metropolitan versus colonial, 42; “middle constitution,” 9; of New South Wales, 33; of Trinidad, 31, 33,

Index 42; U.S. Constitution and constitutional discourse, 165, 166, 189, 261n90; “vernacular constitutions,” 13–18 convicts, 1, 8, 37, 152, 176; in Cape Colony, 68; former convicts, 37, 64, 65, 70; legal status of, 17; in New South Wales, 33, 35, 41, 184 Cooke, Lancelot, 68, 69 counterrevolution, 9, 11, 42, 52. courts, 6, 9, 14, 22, 23, 183; in Cape Colony, 68–70; in Ceylon, 95, 96, 100; criminal court (New South Wales), 36, 38–39, 65–66; French, 123–124; Indian, 232n121; international, 119; in Ionian Islands, 109; military, 33; piracy and, 120–121; restructuring of, 8, 66, 72, 74–76; in West Indies, 46–47, 49, 72, 74–76 crimes against humanity, 20, 191 crown autocracy, 14, 41–43, 50, 52, 61, 73, 79, 196, 232n123 crown colonies, 16, 18, 70, 89; imperial reform led by, 182; legislative councils in, 151; of the West Indies, 78 crown prerogative, 3, 4, 7, 29, 30, 41, 42–43, 55, 56, 62, 148–149 Dayaks, 118, 132, 139, 141–145, 253n142 despotism, 6, 7, 17, 61, 190, 196, 202–203n14; administration of law and, 53; of caudillos in Latin America, 170–171, 182–183; commissions of inquiry and, 83–84; in constitutional form, 15, 114, 116, 183, 208n46; of the Crown, 31–33, 35–43; crown power as antidote to, 29, 182; gubernatorial, 53; imperial legal reform and, 25; liberal, 66; of magistrates, 64, 225n34; Napoleonic, 30; of Pacific Island sovereigns, 159; on peripheries of empire, 142; pervasive discourses of, 10; perversion of justice by, 14; reform with goal of defeating, 9; of slave masters, 43, 45–52, 54 Devereux, Humphrey Bohun, 142, 143 Dhaulli, attack on, 151, 156, 158, 258n64 diplomacy, 4, 5, 89, 119, 148; gunboat diplomacy, 5, 150; slave trade and, 130 Don Pacifico affair (1850), 112–115 Douglas, Howard, 109–110, 241n99 D’Oyly, John, 15, 97–101, 237nn51–53; A Sketch of the Constitution of the Kandyan Kingdom, 101, 239n71

277

Durham Report (Canada), 58, 185 Dutch colonies, 59, 87, 152; in Ceylon, 91, 94; in Southeast Asia, 133, 141, 143 Dutch law, 8, 68–69, 73, 74, 96 Dwarris, Fortunatis, 60, 72–77, 83, 229n84, 230n88 Eagar, Edward, 64–66, 70, 225n36, 226n44 East India Company, 16, 42, 43, 136; claims to monopoly, 152; fragmented British presence in Southeast Asia and, 139; Penang government and, 148; pepper ports of Sumatra and, 149; raids on ships of, 132; steamships of, 117; treaties signed by, 89 Edwards, William, 68, 227n50 Eimeo (island), 159, 160, 257n51 Elliot, Hugh, 15–16, 47, 48–51, 218n96 English Revolution, 40, 182 extraterritoriality, 105, 149, 153–155, 180, 194, 254n5, 272n33 Eyre, Edward John, 186, 187 Farquhar, Captain, 139, 142, 143–145 federalism, 166, 168, 171 Felicidade (slave ship), 128, 129 Field, Judge Barron, 65–66, 225n36 Fitzroy, Capt. Robert, 164, 259n75 Foreign Office, 2, 120, 129–130; abolition treaties and, 126, 127; piracy in Southeast Asia and, 140; protection of British commerce as ultimate objective of, 175 Fox, Charles, 7, 42–43 France, 6, 114, 123, 166; ambitions in Río de la Plata, 172–174, 176, 264n114, 265n122; Tahiti taken over by, 160, 259n75 Francia, José Gaspar de, 170–171, 174, 182, 264n111 free blacks, 28, 42, 78, 89 Freemantle, Captain, 163 French colonies, 59, 152 French law, 5, 74 French Revolution, 11, 18, 29, 40, 42, 182 Frere, Bartholomew, 105–106, 240n82 Gentili, Alberico, 119, 134 Gibraltar, 103, 112; map of, 104 Glenelg, Lord, 110 Glorious Revolution (1688), 7, 41

278

Index

Gore, William, 36, 39–40 Grace, Capt. Percy, 117, 118, 123, 126, 129, 130, 147 Greece, 19, 111, 113, 115, 184 Grotius, Hugo, 87, 125, 269n14 Haitian Revolution, 18, 29, 103, 166, 201n10, 203n20; planters’ fear of, 46; rebellion in New South Wales and, 42; rights talk and, 212n9 Halsey, Thomas Lloyd, 168, 263n98 Hastings, Warren, 3, 7, 42, 183; despotism of, 17; trial of, 10, 29, 60 Henry, Jabez, 60, 76–77, 229n84 High Court of Admiralty, 122–123, 124, 140, 145, 211n61, 244n17 Hill, Capt. Joshua, 159–160, 162 Hodge, Arthur, 30, 48–51, 52, 54, 195, 219n101 Honduras, British, 72, 77, 155, 234n14 Huggins, Edward, 30, 43, 45–48, 50, 51, 52, 54, 195 Hull, William, 85, 86 human rights, 5, 120, 191 Hume, Joseph, 109, 142 imperial law, 1, 5, 13, 17, 150, 180; British law in extra-imperial spaces, 21, 119, 121, 126, 128–129, 130–131, 134–136, 146–147, 153–155; codification of law and, 75, 186; French, 5; interpolity law and, 4, 86–91, 93–94, 102–116, 119, 127–131, 145; legal commentary, 2–4, 7–8, 11–12, 13–18, 56–84, 121, 166; legal crises, 4, 80–82, 183–188; patterns of imperial-global influence and, 189–190 India, 16, 192; codification of law in, 82; Indian Rebellion (1857), 25, 58, 185; Manipur revolt (1891), 187; shift to crown autocracy in, 42, 43; vernacular constitution and, 17 Indians, American: British Empire and, 85–86; Spanish Empire and, 86–87 informal empire, 150, 151, 165, 190, 254n5 international law, 4, 6–7, 88, 114, 201n9, 209n51; British policing of slave trade and, 119–120, 122–124, 127–129, 131; constitutions and, 18; criminal sanctions against slave traders, 127; empires and, 20–21, 150; historians of, 188–189; imperial order before, 18–24; Manipur

revolt and, 187; municipal (domestic) law and, 2, 4–5, 6–7, 12, 26, 110, 115, 181, 190, 192, 194–194; order and, 193; origins of, 122, 188; piracy and, 120–121, 131, 136, 141; protection as doctrine in, 87 international relations theory, 79, 193, 272n32 interpolity law, 4, 88, 119, 194, 201n9 Ionian Islands, 15, 16, 102–112, 113, 115, 116, 194; Britain as “protecting sovereign,” 103, 107–112, 184; British consular jurisdiction over, 26; constitution of, 105, 109; map of, 104; Napoleonic Wars and, 103; in Ottoman Empire, 105–106; protection discourse in, 90 Iranun “pirates,” 134–135, 137–138, 140, 142, 145 Jacobinism, 30, 42, 54. See also French Revolution Jamaica, 76, 218n89; map of, 44; martial law in, 3, 186, 195; Morant Bay rebellion (1865), 186, 224n11 Jamaican Amelioration Act (1788), 45 Jamaican Committee, 186–187 Johnston, Alexander, 94, 95–96, 239n71 Johnston, Lt. Col. George, 30, 31, 32–33, 39; escape from capital punishment, 40; trial of, 35–36, 42 judges, 9, 17, 51, 119, 184; abolition of slave trade and, 128–129; appointment of, 4, 48, 50, 95; arbitrary power of, 7; in Ceylon, 94, 95, 96, 101; commissions of inquiry and, 58, 73, 75, 80, 83; Dutch judges in Cape Colony, 69; exotic colonial law and, 79; incompetent and corrupt, 74; in Ionian Islands, 107, 108, 109, 110; legal pluralism and, 77; in New South Wales, 37, 66; slaveholders’ influence on, 50; untrained, 11; in West Indies, 46–47, 49, 71, 72, 74–76 jurisdiction, 2, 10, 54, 176; abolitionists and, 11; abolition of slave trade and, 120, 126; antislavery movement and, 30; boundaries between, 89; crimes against humanity and, 191; hierarchy of, 17; intervention and, 90; local, 152, 156; order outside empire and, 26; piracy policing and, 121, 134, 136, 138; private, 1, 9; reining in of despotism and, 8; slave traders and questions of, 122–131; in Tahiti, disputes over, 153–155, 161–163

Index jurisprudence, 14, 21, 24, 51, 75, 84 jurists, 20, 21, 58, 188, 250n80 justice, 14, 20, 50, 108, 193 Kandy, Kingdom of, 12, 26, 115, 116; British annexation of, 91, 182; “constitution” of, 15; defiance of British legal order, 93–98; map of, 92; Nayakkar dynasty, 91, 93, 235n22; protection discourse and conquest of, 90, 98–102, 237n54, 238n58. See also Ceylon Keppel, Captain, 117, 118, 121, 139, 145; municipal bounty law and, 147; raids on Dayaks, 141, 142, 143, 144, 145; Serhassen pirates case (1845) and, 140 King, Philip Gidley, 33, 41, 154, 216n71 Kirkpatrick, Chief Justice, 109, 240n96 Latin America, 149, 164, 165, 184, 193, 260n81 law, 2–3, 24, 27; administration of, 54; admiralty law, 21, 119, 147, 180; codification of, 75, 82, 186; common law, 8, 13, 75; constitutional law, 3, 83; customary law, 97, 186; diversity of, 61; human rights law, 20, 25, 119, 244n17; law charters, 2, 15; legal commentary, 3, 13; legal panics, 25; positive, 8, 54, 80, 196, 271n19; prize law, 20, 120, 124, 125, 147, 181; reform of, 56–84, 93–96, 106–108; treaty law, 129, 130, 146, 196, 234n10. See also imperial law; international law; martial law law of nations, 4, 6, 21, 119; abolition of slave trade and, 128, 129; piracy policing and, 136, 144 law reform (legal reform), 2–4, 15, 23, 25, 55, 62, 90; amelioration of slavery as cornerstone of, 54–55; in Cape Colony, 69–70; centrally mandated, 82; in Ceylon, 93–96, 102; commissions of inquiry and, 26, 56–84; in context of global war, 53; crown prerogative and, 4; despotism talk and, 8, 25; Don Pacifico affair and, 114; in Ionian Islands, 90, 106–108; in Latin America, 165; limits of appetite for, 17; in New South Wales, 66; petty despotism and, 14; in West Indies, 71, 74–79 lawyers, 7, 12, 84, 119, 147, 230n88; admiralty, 21; commissions of inquiry and, 60; constituted as professional

279

group, 19; “constitutional moment” and, 18; ex-convicts, 20; legal basis for intervention in quasi-sovereign territories and, 187; persistence of empires and, 27; planter revolt in Mauritius and, 81; self-trained, 49 Leeward Islands, 15, 43–51, 54, 72, 74; commissions of inquiry in, 52, 60; legal reform in, 71; map of, 44; planter legislatures in, 30–31; reconstitution of, 77 Leeward Islands Slave Amelioration Act (1798), 45, 46, 51, 217n82 legal imperialism, 107–112, 124–125, 130–131, 146 legal pluralism, 3, 6, 73, 79, 256n23; protection and, 88; in West Indies, 78 Levant Company, 154, 256n23 Le Louis (slave ship), 127 liberalism, 3, 11, 165, 206n32, 269n14 Lushington, James, 95, 96, 236n34 Macarthur, John, 35, 37–39, 62, 154, 215n55 Macaulay, Thomas Babbington, 58, 82, 83 Macquarie, Gov. Lachlan, 32, 37, 62–63, 154, 226n42 Maddock, Henry, 60, 72–77, 229n84 magistrates, 4, 7, 30, 39–40, 45, 47, 49–55 Magna Carta (Runnymede, 1215), 29, 41 Maitland, Thomas, 2, 8, 9, 16, 116, 235n27; as brigadier general in West Indies, 103; Ceylonese legal issues and, 15, 94–97, 236n31; Ionian Islands governed by, 103, 105, 184 Malta, 15, 79, 82, 83, 115; constitution of, 33, 58, 80; map of, 104 Mansfield, Lord, 8, 203n19 Marryat, Joseph, 51, 52, 77 martial law, 10, 52, 53, 95, 185; in Jamaica, 3, 186, 195; in New South Wales, 31, 41 Mauritius, 83, 182, 184, 195; Commission of Eastern Inquiry and, 58, 61, 66, 81; francophone planter resistance in, 81–82, 231n112; laws on treatment of slaves, 56; legal system of, 16 McMurdo, Capt. G. L., 162, 258–259n67 merchants, 21, 49, 146, 176, 196–197; allegations of petty despotism and, 29; British merchants in Southeast Asia, 141; British trade in South America, 164–165, 169, 170–171; Chinese, 143;

280

Index

merchants (continued) commissions of inquiry and, 59; European merchants in India, 232n121; legal authority assigned to, 154; legal protections for, 194 “middle power,” 2, 7–13, 15, 17, 54, 74, 93–96; abuses of, 39; limits of, 182–188. See also bureaucrats and bureaucracies; courts; judges missionaries, 152, 159, 164; British policy and, 156; London Missionary Society (LMS), 153, 154; sovereignty in Pacific Islands and, 151, 160 mixed commissions, 20, 119–120, 123–130, 183, 223–224n9; admiralty courts and, 124; bilateral treaties and, 118; human rights law and, 119; prize law and, 120; seizure of slave ships and, 129 Montevideo, 169, 172, 173, 174, 175, 265n122 municipal law, 20, 119, 147, 181, 190; abolition of slave trade and, 126, 128–129, 130; imperial law and, 5, 20, 119, 121, 131, 134, 146, 147, 181; international law and, 2, 4–5, 6–7, 12, 26, 110, 115, 181, 190, 192, 194–194; oceanic order and, 121; piracy and, 131, 138–140 Napoleon I, 5, 30, 202n14 Napoleonic Code, 5, 77 Napoleonic Wars, 6, 18, 53, 124, 149; as boon to abolitionists, 122; British navy’s rise to global power and, 118; changes in geopolitics brought by, 133; Peninsular War, 165 nationalism, 22, 23, 111, 184 natural law, 21, 54, 190, 222n125, 260n84, 271n19; Scholastic thought and, 193; waning of rhetoric about, 196 natural rights, 54, 222n125 navy/naval power, 18, 24, 114, 118–119, 190; abolition of slave trade and, 118–120, 122–130; naval officers/captains, 2, 11–12, 14, 118, 122, 126, 127, 129–131, 139, 154, 156, 162, 162, 164, 167, 196–197; piracy and, 136, 141, 142, 144 Nevis, island of, 14, 30, 72, 79, 217n83; laws on treatment of slaves, 56, 222n2; punishment of slaves in, 43, 45–46, 217n79 New South Wales, 3, 15, 81, 184; Bigge’s commission of inquiry in, 60, 61–66;

constitution of, 33, 58; coup d’état (1808), 30, 31–32; crown prerogative in, 43; escaped convicts in, 153; ex-convict lawyers in, 20; jurisdictional boundaries of, 89, 153–154; map of, 34; overthrow of Gov. Bligh in, 14, 31–32; population of colony, 35; pork trade with Tahiti, 159; settler elites of, 54, 66; Supreme Court of, 155; vernacular constitution and, 17. See also Australia New Zealand, 12, 235n17 North, Frederick, 91, 93–94, 98, 235n27, 236n31 Nugent, Lord, 51–52, 71, 77 Oakes, Francis, 38, 65 Ottoman Empire, 5, 86, 103; British subjects in, 149; Ionian Islands and, 105–106, 110–111, 194; Levant Company and, 154 Ouseley, William Gore, 173, 174–175 Pacific Islands, 6, 149, 152–164, 157 Pacifico, David, 112–113, 242n111. See also Don Pacifico Aff air Palmerston, Lord, 113, 114–115, 150, 171, 175 Paraguay, 169, 170–171, 174, 178, 259–260n81 Parliament, 14, 17, 41, 79, 182, 187; abolition of slave trade, 48, 50, 58, 124, 125; House of Commons, 16, 109, 114, 183; House of Lords, 79, 82; Huggins’s trial in Nevis and, 47; imperial despotism opposed in, 142; jurisdiction over British subjects in foreign territory, 154–155 Picton, Col. Thomas, 3, 28, 31, 43, 54; on commission of inquiry for Trinidad, 57; despotism of, 49, 183; excesses of, 42; prosecution and trial of, 29, 187; removal from power, 103; thwarted legal proceeding against, 32 Pilima Talauvē, 91, 93 piracy, 5, 17, 120, 183; in Borneo, 117–118, 132, 140–145, 151, 253n142; Britain’s piecemeal efforts to police, 26, 131–145; colonial courts and, 121; global prohibition of, 20; local raiding in Southeast Asia as, 131–132; natural law and campaigns against, 119, 134–137 190; Serhassen pirates case (1845), 140; slave trading compared to, 122, 123, 127

Index Piracy Act (1825), 121, 138, 145, 146 Pomare dynasty, in Tahiti, 158–163, 176–177, 258n64 Portugal/Portuguese Empire, 86, 87, 235n18; abolition treaty with Britain, 123, 130; Banda Oriental and, 168, 171, 262n96; slave traders, 147 privateering, 118, 168, 177, 250n80, 267n136 Privy Council, 3, 13, 211n1 property, protection of, 23, 30, 42, 54, 88 protection, 12, 115, 192; annexation of Kandy and, 91, 93–102, 182; British relations with American Indian nations and, 85–86; Catholic Church and, 86; in history of political thought, 87–88; of Ionian Islands, 107–112; Latin American factions in favor of British protection, 173, 2762n95; as rationale for territorial expansion, 88; of trade and property, 151–152, 157; treaty-based, 90 Provincia Oriental, 166, 178, 262n96; map of, 167. See also Banda Oriental revolutions, 5, 18, 203n20; capitalism and, 25; desire to avoid, 165; despotism talk and, 29; global impact of, 22 Río de la Plata, 1, 26, 166, 169, 177, 179; despotism in, 182–183; map of, 167; new sovereignties in, 185; slow integration into global economy, 260n81 Robinson, Christopher, 126, 129 Rosas, Brig. Gen. Juan Manuel de, 172, 173, 174, 175, 182 “Rum Rebellion,” 31–43; “Rum Rebels,” 30, 62 Russian Empire, 5, 103, 149 sailors, 1, 8, 14, 29, 105, 159 Sandwich Islands (Hawaii), 156, 158 Sarawak, 140–141, 143 scandals, 2, 3, 21, 60, 140; Bounty mutiny, 16; in the Cape Colony, 67–69; imperial jurisprudence and, 14; in New South Wales, 62–65; planter cruelty in the West Indies, 15, 28–29, 43–52; reform and, 25, 69, 70; in Trinidad, 28–29 Scholastic thought, 192–193, 194 Scott, William. See Stowell, Lord Scottish Enlightenment, 16, 204n24 Sierra Leone, 17, 117, 124, 125, 246n34

281

Singapore, 135, 136, 139, 143, 184 slaveholders, 11, 16, 43, 45–52, 212n4, 226n48 slavery, 4, 73; abolition in British Empire (1833), 76; defined, 217n83; despotism of, 8; reform of, 28, 47, 49–52, 75; slave labor in Southeast Asia, 132 slaves, 2, 8, 29, 72, 78; amelioration of conditions for, 49–52, 81; chains and collars used on, 56; common law and, 75; emancipated slaves, 70; everyday interface with masters, 4; justice of British courts and, 184; legal status of, 17, 75; petit marronage of, 46; protection of, 12, 25, 88, 89; public punishment of, 14, 45, 56, 217n79; punishment of, 81–82, 231n112; rights of, 52, 73; testimony of, 222n2; torture and murder of, 30, 48–51 slave trade: abolition of, 2, 12, 18, 28, 183, 190; absence of universal jurisdiction and, 194; African polities and, 243n10; bounties for captured slaves, 219n102; Brazilian law and, 120, 127–128; Britain’s piecemeal policing efforts, 26, 131–145; decline of Atlantic slave trade, 118; as global prohibition, 20; human rights paired with, 191; illegal slave trading, 48; natural law and, 119–120, 122–123, 190; naval policing of, 117, 128, 145–146, 181; seizure of slave ships, 119–120, 122–131. See also abolitionists; mixed commissions sovereign states, 19, 20, 23, 150, 178, 191, 209n53 sovereignty, 8, 10, 110, 168, 221n120; British imperial authority over smaller sovereignties, 23; cultivation of new sovereignties, 152, 185, 189–190; “incoherent” political formations and, 165, 176; inter-island sovereignty in Polynesia, 151, 152–164; layered imperial sovereignty, 88, 189; local, 152; protection and, 87, 148–149; of pueblos (free towns), 166, 168, 170, 177; quasi-sovereignty, 19; sea raiding in Southeast Asia and, 132; state system and, 150 Spanish Empire, 5, 59, 145; abolition treaty with Britain, 123; Latin American independence from, 166; Napoleonic Wars and decline of, 133; protection as practice and discourse in, 86–87

282

Index

Spanish law, 28, 74, 77–78 spheres of influence, 2, 23, 171–172 Sri Lanka. See Ceylon; Kandy, Kingdom of state systems, 119, 121, 188, 193; “British Age” of international law and, 19; Congress of Vienna (1815) and, 13; empires as, 150, 193; regional, 151, 176, 179, 181, 185 Stephen, James, 28–29, 43, 45, 212n4; The Crisis of the Sugar Colonies, 50, 220n113; slave registry for West Indies and, 220n112; War in Disguise, 122, 244n17 Stephen, James, Jr., 61, 76, 82, 84, 223–224n4; colonial laws on treatment of slaves and, 56–57; colonial self-government and, 229n85 Stowell, Lord (William Scott), 122–123, 124, 127, 134, 211n61 Sulu, sultanate of, 23, 132, 134, 136–137, 145 Supreme Government of India, 136, 139, 140, 148 Tahiti, 38, 152, 162, 176, 179, 257n51; Australian convicts smuggled to, 154; British attempts to shape legal authority of, 163–164; Pomare dynasty, 158–163, 176–177, 258n64; sovereignty of, 151, 160, 164, 178; surrendered to French “protection,” 160, 259n75 tax collection, 78, 82; excessive, 64, 77; in North America, 17; in Pacific Islands, 159; refusal to pay, 42; in Southeast Asia, 132, 137; sovereignty and, 149 Tortola, 47, 48, 83, 220n103 treaties, 4, 13, 20, 89, 190; abolition of slave trade and, 123; institutions based on, 5; limitations as instruments of change, 18; with local sovereigns, 140, 141; naval policing of slave traders and, 118, 147, 185; ordering of oceans and, 119; piracy policing and, 121, 147; with polities-in-formation, 165–166; protection by, 91 Treaty of Paris (1815), 90, 103, 105, 108 trial by jury, 52, 78, 81, 100

Trinidad, 3, 4, 15, 41, 51, 72; commissions of inquiry in, 57, 73, 76–79; constitution of, 31, 33, 42; crown autocracy in, 14, 50; crown prerogative in, 43; despotism of Picton, 49, 183; law left over from Spanish rule, 28, 77–78; legislature for, 42, 212n4; protector of slaves in, 89; slaves seeking justice in British courts, 184; torture of prisoners in, 8 Truro, attack on, 156, 157, 160, 258n64 Tuamotu Islands, 151, 156, 158, 161, 176–177, 259n75 United Provinces of the Río de la Plata, 166, 168, 172, 178 United States, 114, 149, 165, 178; Articles of Confederation, 189; Declaration of Independence, 189, 203n20; federal constitution of, 13; federalism of, 168; Supreme Court of, 266n135; “unipolar” global influence after Cold War, 194 universalism, 17, 19, 191 Uruguay, Oriental Republic of, 152, 166, 172, 175, 176; appeal to European empires for protection, 173; founding of, 177 Vattel, Emer de, 20, 21, 87, 125 violence, 11, 118, 153, 180, 196, 241n103; campaigns against piracy and, 121, 140, 147; justified by fight against despotism, 183; as legal maneuver, 178; of nonstate actors and containment, 118, 270n19; revolutionary, 185 war, 1, 4, 87, 90, 152. See also Napoleonic Wars Ward, Henry, 111–112, 241nn103–104 Ward, John Manning, 3, 164 Went worth, D’Arcy, 36, 37 West Indies, 83, 103; degrees of freedom in, 70–79; opponents of abolition in, 51; protection of slaves in, 26; slave owner hanged for murder of slave, 49; vernacular constitution and, 16 Westphalia, Treaty of (1648), 87, 233–234n10 Wheaton, Henry, 18, 127 Windward Islands, 71, 72, 74; map of, 44. See also Barbados