General Will or Public Order? The Debate on Criminal Justice Policy in Early Colonial Himalaya, 1815–1816
Keywords:
conquered, determining, strategically, arguments, regardingAbstract
When the British East India Company (EIC) conquered the West Himalaya region in the 1810s, it faced a critical challenge commonly encountered by colonial empires: determining the extent of intervention in intracommunity criminal matters among colonized subjects. This article examines the archived correspondence of colonial officials regarding this challenge and scrutinizes the various arguments made for and against intervention. It shows that the alterity of the subject population was strategically employed by both sides of the debate, who simultaneously promoted contradictory agendas: for those advocating intervention, alterity rendered involvement in criminal matters necessary and just, whereas those averse to intervention employed the very same notion to justify the opposite stance. This dual usage is explained by exposing the contemporary ideas about criminal justice that underlay each of these positions: that criminal law should represent the general will of society, and that it must be executed by a centralized power so as to maintain public order. While these two tenets are commonly perceived as supporting one another, the analysis reveals their decoupling in colonial settings. The debates of EIC officials thus demonstrate how the colonial setting distorts ideas foundational to modern criminal law systems, casting doubt over whether they were ever truly in harmony to begin with.
References
1
British Library, Asian and African Studies, India Officer Records (hereafter IOR), F/4/572/13999, Records of the Board of Commissioners for the Affairs of India, Board’s Collections, “Question as to what type of judicial administration should be used in the British possessions in the Simla Hills - cases of murders committed in Jaunsar and Keonthal etc.”, Nov 1815–May 1818, Walker to Ross, 12 November 1816, f. 109. Unless otherwise specified, correspondences cited in this paper are from this file only.
2
Ibid, f. 108.
3
Ibid, f. 110.
4
Ibid, Ross to Ochterlony, 30 November 1816, f. 70.
5
Ibid, f. 71–74.
6
On the war between British India and Nepal, see John Pemble, Britain’s Gurkha War: The Invasion of Nepal 1814–16 (London: Frontline Books, 2008). For an illuminating study of low- to mid-level EIC officials during this period, see James Lees, Bureaucratic Culture in Early Colonial India: District Officials, Armed Forces, and Personal Interest under the East India Company, 1760–1830 (London: Routledge, 2019).
7
The earliest Settlement Report of the region is available in manuscript form at the British Library, see IOR F/4/571/13998(2), Bengal Secret Consultations, Appendix to Collection no. 10, 1819/20: “Statistical and Geographical Memoir of the Hill Countries situated between the Rivers Tamas (or Tonse) and Sutlej, compiled by Lieut. Robert Ross”.
8
Gorkha expansion west of the Mahakali River began in 1791, reaching the Shimla Hills in 1803, and was then pushed back by the EIC in late 1814. For useful reviews of the area’s modern history, see Aniket Alam, Becoming India: Western Himalayas under British Rule (Delhi: Cambridge University Press, India Pvt Ltd, 2007), Chaman Lal Datta, The Raj and the Simla Hill States (Jalandhar: ABS Publications, 1997), Arik Moran, Kingship and Polity on the Himalayan Borderland: Rajput Identity during the Early Colonial Encounter (Amsterdam: Amsterdam University Press, 2019), and Chetan Singh, Himalayan Histories: Economy, Polity, Religious Traditions (Albany: State University of New York Press, 2018). On the contribution of colonial policies to the creation of “Tribal” and “Hindu” identities in the hills, see Arik Moran, “God, King and Subject: On the development of composite political cultures in the Western Himalaya, circa 1800–1900,” Journal of Asian Studies 78(3) (2019): 577–600; on the political potency of these categories today, see Nilamber Chhetri, “Elusive identities, enduring demands: the Haatis’ struggle for recognition in the trans-Giri region, Himachal Pradesh,” European Bulletin of Himalayan Research 60 (2023), DOI: https://doi.org/10.4000/ebhr.1305.
9
The impetus for claiming these tracts was primarily strategic. Subathu served as headquarters, Kotgarh protected the frontier, Jaunsar-Buwar was conceived as a buffer between British India and Tibet, while the future capital of the British Raj at Shimla began as a hill station for convalescent soldiers. On indirect rule, see Michael H. Fisher, Indirect Rule in India: A Study of the Residency System (Bombay: Oxford University Press, 1995).
10
For a review of the political and jurisprudential history of the Shimla Hills under colonialism, see Datta, The Raj and the Simla Hill States. On the legal mechanisms of “Tribal” polities, see William S. Sax, In the Valley of the Kauravas: A Divine Kingdom in the Western Himalaya (New York: Oxford University Press, 2024), and idem, God of Justice: Ritual Healing and Social Justice in the Central Himalaya (New York: Oxford University Press, 2009).
11
The criminal justice system in British India then featured a mixture of EIC regulations and Islamic law. Indian judges presided over the lower courts, while British officials served as judges in the higher courts. This hybrid system lasted until the Indian Penal Code Act of 1860, on which see Elizabeth Kolsky, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge: Cambridge University Press, 2010) and Radhika Singha, A Despotism of Law: Crime and Justice in Early Colonial India (Delhi: Oxford University Press, 1998).
12
For prominent examples, see Kolsky, Colonial Justice in British India; Benjamin D. Hopkins, Ruling the Savage Periphery: Frontier Governance and the Making of the Modern State (Cambridge, Mass.: Harvard University Press, 2020); Cathy Evans, “Heart of Ice: Indigenous Defendants and Colonial Law in the Canadian Northwest,” Law and History Review 36 (2018): 199–234.
13
Anthony J. Draper, “Cesare Beccaria’s influence on English discussions of punishment, 1764–1789,” History of European Ideas 26.3–4 (2000): 177–199.
14
Lauren A. Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002), 2.
15
Keally McBride, Mr. Mothercountry: The Man who Made the Rule of Law (Oxford University Press, 2016).
16
For a useful introduction, see John Griffiths, “What Is Legal Pluralism?” The Journal of Legal Pluralism and Unofficial Law 18 (1986): 1–55. On legal pluralism in imperial settings, see Lauren Benton and Richard J. Ross (eds), Legal Pluralism and Empires, 1500–1850 (New York: NYU Press, 2013). For representative studies, see Benton, Law and Colonial Cultures; Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (Cambridge, MA: Harvard University Press, 2016); Barry Godfrey, Clive Emsley, and Graeme Dunstall (eds), Comparative Histories of Crime (Devon: Willan Publishing, 2013); and, most recently, the special issue on legal pluralisms in Law and History Review 41.2, May 2024.
17
For examples of these processes in and outside of British India, see Godfrey et al. Comparative Histories of Crime; Sandra den Otter, “Law, Authority and Colonial Rule,” in India and the British Empire, ed. Douglas M. Peers and Nandini Gooptu (Oxford: Oxford University Press, 2012), 168–90; Samera Esmeir, Juridical Humanity: A Colonial History (Stanford, CA: Stanford University Press, 2012), which discusses Egypt under British rule; Paul G. McHugh, “A Pretty Gov[ernment]!”: The “Confederation of United Tribes” and Britain’s Quest for Imperial Order in the New Zealand Islands during the 1830s,” in Benton and Ross, Legal Pluralism and Empires, 233–58; Singha, A Despotism of Law; For a useful theorization of “Colonial Governmentality”, see David Scott, Refashioning Futures: Criticism after Postcoloniality (Princeton, NJ: Princeton University Press, 1999), 23–52.
18
Michael Mann, “State Formation in India: From the Company-State to the Late Colonial State,” The Routledge Handbook of the History of Colonialism in South Asia, ed. Harald Fischer-Tiné and Maria Framke (Abingdon: Routledge, 2021), 36–47; McBride, Mr. Mothercountry. On the colonial construction of local legal regimes as despotic, see Nasser Hussain. The Jurisprudence of Emergency: Colonialism and the Rule of Law (Ann Arbor: University of Michigan Press, 2019).
19
Equivalent terms for dacoit include armed robber, bandit, or highwayman.
20
Eric Lewis Beverley, “Frontier as Resource: Law, Crime, and Sovereignty on the Margins of Empire,” Comparative Studies in Society and History 55 (2013): 241–72.
