A Global Empire of Law€¦ · Chapter 3 explores the most spectacular and understudied mechanism of internal imperial legal reform in the early nineteenth cen-tury: colonial commissions

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WE are accustomed to hearing about “untold stories” in history. Th ey are usually small aff airs of sharp human interest. Th is 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 bound aries of empire. Both in the context of war and aft er, a pro cess of enormous signifi cance unfolded: new and old British subjects embarked on a frenetic and polycentric eff ort 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 Pacifi c archipelago. Th e British rage for order— though lax in coordination, sustained through stac-cato 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 knowl-edge and practices across cultural and po liti cal divides, the proj ect of reor-dering 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.

Th e pieces of this ordering proj ect fl ew 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 offi cials. Some presided over whole colonies and some ruled private jurisdictions not much larger than house holds. Some ruled no one at all, but captured imperial attention through assiduous complaint.

C H A P T E R O N E

A Global Empire of Law

Benton, Lauren, and Lisa Ford. Rage for Order, Harvard University Press, 2016. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unimelb/detail.action?docID=4717129.Created from unimelb on 2018-06-19 16:22:41.

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2 A Global Empire of Law

In existing colonies, newly acquired territories, and informal spheres of in-fl uence across the world, British agents strug gled to make sense of strange new subjects and foreign legal systems by concocting blueprints for legal change. Offi cials in distant colonies self- consciously responded to perceived crises of order by modeling new systems of rule for wider application. Th ese eff orts sometimes reacted to and oft en prompted explosive confl icts over governance, subjecthood, jurisdiction, rights, and the regulation of com-merce. Th e 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 gover-nance; and rationales for British conquests and British foreign policy.

Th e impetus for law reform was systemic, but not systematic. Letters about colonial scandals, trial reports, draft s 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. Offi cials and jurists in London strug gled to adapt a limited set of administrative mech-anisms to or ga nize this cacophony of law talk into a loosely unifi ed but fl exible framework for order. Petitions from the most modest and distant colonial subjects gained surprising traction in the metropolis. Th e British government launched a host of investigatory bodies— colonial commis-sions of inquiry—to collect information about the law of the empire and divine its inner workings. Th e Colonial Offi ce reviewed legislation from the empire’s few remaining legislative colonies with sharpening attention. British offi cials assiduously sought to shape the peripheries of empire by wresting control of what Th omas Maitland called “ middle power.” Th ey did so by supervising entrenched elites with new resolve and by appointing middling offi cials 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 poten-tially global reach. Outside the empire, Foreign Offi ce offi cials, naval offi cers, 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 commer-cial networks.

Law was everywhere. It was the medium of multiple, parallel proj ects of imperial change, and it provided the text and subtext of numerous colo-


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A Global Empire of Law 3

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 fi eld 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 commen-tary was an endemic and eclectic genre, and it was oft en a tedious one— the stuff of long dispatches and arcane complaints, occasionally leavened by juicy scandal. Th e traces of this story hide within the pages of untidy com-mission reports, obscure manuals of colonial administration, and hagiog-raphies 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 sen-sational cases, such as the fall of Warren Hastings in Bengal or the mis-deeds of Th omas 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 analy sis can also shift at-tention away from more prosaic and incremental eff orts to remake the em-pire 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 re oriented 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 po liti cal strug gle between nascent liberalism and counterrevolutionary autocracy.5 When we place law at the center of the story of global transformation and ex-amine early nineteenth- century imperial legal confl icts inclusively and extensively, we arrive at new and diff er ent understandings of empire and world history.6 Th e imperial constitution emerges as a fl uid vernacular— articulated by very diff er ent groups of people for myriad ends and re-solving, 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 proj ects sounds modest, it was not. Legal change aff ected the most central of colonial pro cesses 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 rela-tionship of colonial to imperial lawmaking. Reforms of courts and adjust-ments to the powers of magistrates transformed the administration of law so fundamentally that such proj ects 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 offi cials altered colonial law in action at every level. Appointing gov-ernors, judges, protectors, and attorneys general with humanitarian cre-dentials opened colonial law to scrutiny, reinterpretation, and change.8 More oft en than anyone expected, seemingly minor legal confl icts gen-erated constitutional upheaval. Whether from the center of the empire or from its peripheries, advocacy of legal reform oft en 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 Trin-idad weave themselves into a single narrative about the attempt to change the world through law.

Tracking the fl ow of law talk around the global empire does more than break down bound aries between colonial histories, stories of lived experi-ence, 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. Th e same constraints that have made intra- imperial law reform so hard to analyze shaped jurisdic-tional politics on the fringes of empire and beyond. Much of this book ex-plores how intra- imperial legal confl icts extruded into global geopolitics and created frameworks for interpolity law.9 We show that the complex in-teraction 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 Eu ro pean 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 fl exible rules about state comportment in war and treaty, we fi nd that some of the most impor tant 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 bound-aries of empires. Even treaty- based institutions, like those craft ed aft er 1815 to police the Atlantic slave trade, do not look particularly international: they emerged at the ragged edges of imperial legal orders. Th e initiatives historians label as humanitarian campaigns to secure human rights (against slavery and piracy), we argue, had less to do with universal princi ples than with eff orts to remake the interface between imperial and municipal structures of authority. Th e nature and limits of such proj ects make much more sense when viewed from the vantage point of British imperial re-formers who adapted imperial law and practice to secure regional and global order. Britain’s predilection for conjuring functional and legible pol-ities outside the empire to protect its commerce and its traders can also be read as something more than gunboat diplomacy when placed in the con-text 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 vio lence. In some places it found ered against newly invigorated Eu-ro pean competition, the claims of other resilient empires, and the evasive adaptations of clusters of small polities or fl uid commercial networks.

Looking outward, British imperial reformers could perceive the outlines of similar programs of legal reordering. A multifaceted proj ect of Spanish legal and administrative restructuring had reshaped that empire at the end of the eigh teenth century. Questions about the status and repre sen ta tion 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 confl icts 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 proj ect to change the world. Napoleon’s army carried the Napoleonic Code throughout Eu-rope. Further afi eld, French offi cials of diverse po liti cal persuasions sought to apply French law fl exibly in the colonies, in combination with local law and even as a framework compatible with revolution. Iberian and French initiatives matched legal restructuring proj ects in other power ful empires. In this period of fl ux, the Ottoman, Habsburg, Mogul, Rus sian, and Chinese empires recognized the diversity of their subjects and of their constituent polities as they revised elaborate plural legal systems.10

Ambitious reordering proj ects extended, too, beyond the bounds of em-pires. 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 Pacifi c 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. Wide-spread conventions of prize and credit oft en stood in for the law of nations, while treaties continued to represent the most vis i ble 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 signifi cance. In the de cades aft er the Napoleonic Wars, British ex-periments spilled across regions and drew from interactions with other poli-ties and reform proj ects. 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 refl ected a complex and fl uid world order with many makers.

Britain’s reordering proj ect had lasting, if sometimes elusive, eff ects. In recovering the history of the imperial legal order and tracing examples of its relation to other po liti cal formations, we glimpse the outlines of a lost prehistory of international law that is diff er ent from the intellectual histo-ries that dominate the fi eld.12 Britain’s endorsement of legal pluralism in its colonies reifi ed nascent constitutional distinctions between center and periphery: its eff orts to solve petty despotism by enhancing and reforming colonial autocracies made colonial legal subjects very diff er ent from their metropolitan equivalents, laying the groundwork for the gross constitu-tional inequities of the late nineteenth- century British Empire, and for the separation of “civilized” and “uncivilized” nations within the emerging in-ternational 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 aft er 1850. Th eir systematizing eff orts sought to do more than craft the normative and legal bases for relations among Eu ro pean 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 par tic u lar.13 Th at generative tension deserves our attention. Fi nally, we think, Britain’s global ordering proj ect helps us to better understand something that late nineteenth- century 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 eff orts at interna-tional 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 refl ected specifi c anx i eties about abuses of legal authority. Sometimes these concerns centered on the excesses of unsupervised delegates of the Crown. Checks on crown power at home aft er the Glorious Revolution had little bearing on colonies conquered aft er 1774, where crown prerogative was carefully preserved.15 In those places, early modern fears of universal monarchy diff used into ubiquitous com-plaints about the arbitrary power of the king’s representatives— colonial governors, judges, and petty offi cials.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.

Th e stakes were high. Contemporaries in the colonies and the metro-pole thought that petty despotism was an organic threat that might infect house holds, governorships, penal colonies, plantations— any sort of po-liti cal community in which the delegated power to judge and punish im-bued certain people with authority over others. Th e 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 pe-ripheries to the center. Edmund Burke and Charles Fox famously warned that Warren Hastings’s excesses in Bengal would corrode En glish liberties.18


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Th e Lord Chief Justice of Eng land, Lord Mansfi eld, 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 suff ered to sup-port it but positive law.”19 Th e “contagion” of despotism— not of revolution or sovereignty— was what made humble colonial complaints so power ful in the metropolis.20 Th e resumption of a lease in Sydney, the summary ex-ecution of a mutinous soldier on the island of Gorée, the torture of pris-oners in Trinidad, the arbitrary exile of En glish subjects under Dutch law in the Cape—in these and other cases, despotism talk sparked constitu-tional 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 treat-ment oft en 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 poc risy or as part of a nineteenth- century surge in humanitarian sen-timent.22 But for contemporaries, the comparisons carried specifi c legal meanings connected with anx i eties about unconstrained legal power. Ref-erences to slavery conjured explicit images of summary judgment and pun-ishment. Th e master’s lash symbolized the private power to make rules, to judge, and to punish without oversight or constraint. Concern for the treat-ment of subordinates oft en prompted calls for reform but did not target suff ering so much as abuses of power emanating from a par tic u lar structure of authority. Reining in petty despotism almost always meant restraining the jurisdiction of some subjects over subordinates and enhancing the ju-risdiction of others.

Th e antidote to petty despotism lay in marshaling “ middle power.” We borrow the term from Governor Th omas Maitland, who coined it as he strug gled to explain his rationale for overhauling the legal system in Ceylon.23 Th e 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 gov-ernors. Maitland had noticed the corrosive eff ects on British authority in Ceylon of the persisting legal power of local elites. Like many other offi -cials, 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 staffi ng new posts with men loyal to the empire. One


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prob lem with this proposal was that men with legal training were in short supply; another was that men who became judges oft en used their positions to vie for power with the colonial offi cials who put them there.24 Yet re-formers 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 Judi-cial.”25 He was no lawyer, and his fi ghts 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 set-tings by championing the in de pen dent authority of middling offi cials. In imagining “ middle power,” Maitland might have been infl uenced by ideas that derived, at least indirectly, from Aristotle’s proposal that men of the “ middle condition” would stabilize po liti cal orders.26 According to Aris-totle, 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 offi cials’ judicial schemes depended on the re distribution of wealth or the creation of a class of men positioned between rich and poor. Such ideas did fi nd 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— oft en 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 mid-dling sorts but the effi cacy of newly proposed structures of law and gov-ernance. Th e revised system itself, with its built-in role for middling offi cials 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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Th e 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 de-bates 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 ac-cusations 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 power ful wedge issue for reform. Th eories of imperial reordering developed directly out of colonial legal contests. Th e letters of colonial offi cials, the arguments of in-digenous elites, and the legal strategies of apparently powerless subjects in empire tell us much more about visions of the early nineteenth- century im-perial 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 midlevel bureaucrats and their antagonists and allies in the col-onies. But that task is indispensable to characterizing global intellectual trends in the period. Offi cials 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 Th e same offi cials 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 legis-lation, and the ele ments of En glish law that extended to the colonial world, and beyond. It is fi ne to challenge historians to be aware of the biases and obfuscations of this colonial archive: dispatches and reports told palatable and self- serving truths, aft er all.31 But those elaborate obfuscations were also generative. Th eir 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. Th e empire itself represented a middle sort of power— a structure or set of practices that stood between legitimate species of autocratic rule and ille-gitimate tyranny. Increasingly offi cials in London tried to control the dis-tinction between these two versions of executive power by folding colonial critique into colonial commissions of inquiry. Commissions were self- consciously craft ed to interpose the king’s representatives between colo-


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nial executives and colonial in for mants in order to gather data and me-diate disputes. A broad consensus aided these endeavors: almost every one imagined imperial order to encapsulate strong executive power tempered by impartial justice. Th is peculiar ideal confounds some of our best histo-rians, 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 oft en made such positions in-distinguishable. One could condemn petty despotism and call for institu-tional fi xes from the left or the right with surprisingly similar reforms on off er. Abolitionists gnawed at the power of slaveholders by strength-ening 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 pro cesses, 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 des-potism in check— increased crown oversight over petty jurisdictions in the colonies. From some angles this program took on the colors of counter-revolution, 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 fl ickers of rights talk. More prism than proj ect, the control of petty despots at times confounded the po liti cal divide, turning authoritarian impulses into institution building or reform agendas into in-struments of imperial power.

Th ere were, of course, eff orts to set par ameters for the legitimate opera-tion 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. Th e goal of strengthening impe-rial jurisdiction as a check on arbitrary power activated vari ous smaller objectives: establishing clearer colonial appeals pro cesses; containing the power of local elites, from colonial offi cials to slaveholders to indigenous lords; and publicizing supposedly foundational standards of procedural justice.

Th e middle power of the empire stood, too, for its imagined capacity to summon regional orders without imposing British rule. Th e threat of vio-lence, and oft en episodes of real vio lence, relied on a diff er ent sort of middle power to proj ect order outward: military men and naval offi cers, both in


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their intra- imperial posts and in their forays over imperial bound aries, acted as committed, if sometimes confused and unabashedly opportu-nistic, lawgivers.34 Naval captains asserted the legitimacy of their vio lence against slave traders and pirates without claiming to act on the basis of universal princi ples, but by invoking their instructions, legislative im-munities, or entitlements under bounty legislation. British consuls ha-rangued 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 po liti cal materials. Th ey also exhorted locals to adopt systems of rule legible to Eu ro pe ans and other rivals. Across these engagements, and both before and aft er 1815 (too oft en refl exively accepted as the date separating phases of British global engage-ment), law talk inside the empire reverberated within pro cesses extending outside it.

Th e connections are nowhere more apparent than in the deployment of protection as an incorporative legal strategy in places of growing British jurisdictional ambition. Th e eff ort to protect slaves opened a new ave nue to police slave masters in the Atlantic world. Th e proj ect to protect Ab-origines served as a platform to cast weak colonial criminal jurisdiction into the distant peripheries of Australia and New Zealand. Similar lan-guage about protecting potential new subjects undergirded annexation, as when the promise to shelter Sinhalese subjects in Ceylon from the tyran-nies of their king justifi ed 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 proj ect. It lacked consistency. It tended toward the production of regional rather than pan- imperial or global orders, and it refl ected the eff orts of diff er ent people in diff er ent places for diff er ent ends. Th is is why historians tend to mislabel the early nineteenth century as a period of chaotic indecision, a weak pre-cursor to the more ambitious “empire proj ect” of the second half of the nineteenth century.36 Th is 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. Th is is why interna-tional lawyers have gleaned so few fi ndings— besides evidence of the intel-


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

Th e Vernacular Constitution

Th ere is consensus about very few of the great constitutional experiments of the fi rst half of the long nineteenth century. One infl uential 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 po liti cal formation with growing ideological support and whose history tends to overshadow the increasingly global system of treaties.38 Th ese two phenomena have received far more attention than the multifaceted eff orts 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 En glish colonists and their sponsors under-stood 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 po liti cal contests challenging structures of authority, understandings of subjects’ rights, and fundamental ideas about governance in the colonies.40 Th ere were some power ful recur-ring features, such as appeals to the Privy Council and inconstant legisla-tive review by vari ous bodies in Eng land. Th ere was strategic deference to the princi ple that colonies should not adopt laws repugnant to the laws of Eng land. 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 Th ere was no imperial consti-tutional convention, and relatively little fl ashy posturing. Th e polemics penned before the American Revolution and the growing number of con-stitutions draft ed in its aft ermath coexisted with a mass of legal commen-tary that favored the dull rhe toric of bureaucrats’ reports over exuberant claims about constitutional innovation. Th is quieter genre of legal dis-course had all the glamour of meeting minutes.

Our story of imperial reordering in the early nineteenth- century British Empire explores these oft en- hidden forms of communication about law and constitutions in the empire and traces their transformative eff ects.


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Power ful vernacular va ri e ties of po liti cal theory developed out of the empire’s legal politics.42 We pay special attention to legal inquiries com-missioned in London and in the colonies; the transposition of models of governance and law by midlevel offi cials, many of whom moved among turbulent sites in the empire and projected infl uence beyond its limits; and occasional scandals and their infl uence 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 fi eld for legal reform across the empire— moved most swift ly through imperial cir cuits in the form of stories about excessive or unjust punishment. Th is was the stuff of scandal.43 Th e cruelties of slave owners, the indiff erence of captains to the suff ering of captives and sailors, the per-version of justice by despotic governors, the unnecessary vio lence of rogue offi cials on the margins of empire— such allegations fi lled colonial corre-spondence, offi cial and other wise, and peppered the headlines and letter columns of newspapers in Eng land and abroad. Parliament selectively re-printed sources about scandal and off ered them up as fodder for reformers and critics. As stories of arbitrary justice entered po liti cal discourse from many angles, they could turn minor cases in obscure colonies into the ob-jects of strident street- corner, drawing- room, and parliamentary dispute. Th e meandering path of news about scandal oft en had greater and more immediate eff ects 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 fi rst into a justifi cation for crown autocracy in Trinidad and then into a trigger for a broad proj ect of legal inquiry into Ca rib bean 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 pro cess, the more orderly accumulation of knowledge through legal inquiry. Th e im-pulse to launch inquiries coursed through the British Empire like a religious movement aft er 1800. Colonial offi cials 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 pre-vious Eu ro pean colonizers, under En glish law and courts. Th ese proj ects


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of legal ethnography resulted in detailed compendiums of law and prac-tice. Sometimes legal ethnography informed new law charters, sometimes it languished when the timing or circumstances carried law reform in diff er ent directions. In 1810s Ceylon, an able linguist named John D’Oyly was charged with cata loging 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 po liti cally potent inquiry directed from London had overtaken his eff orts 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 si mul ta neously aimed to produce new collections of knowledge about colonial law and to in-tervene, sometimes forcefully, in local legal aff airs. Th is global pro cess produced its own genre of constitutional writing, the commissioners’ reports. Th eir content ranged from banalities about the minutiae of inter-personal disputes to broad schemes to make law in the colonies better comport with the rudiments of law in Eng land.

Th is 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 Th omas Maitland who came from mili-tary backgrounds and had little legal training joined with a motley group of sojourning barristers in maneuvering for career advancement by devel-oping 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. Aft er Maitland burrowed into Ceylonese legal issues and pushed for a new law charter defi ning “ middle power,” he took this experience with him to Malta and the Ionian Islands, where he met diff er ent conditions and refi ned 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 commis-sioner, John Th omas 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 al-leged too deep and essentially self- serving— into the muck of local legal politics. As governor in the Leeward Islands, Hugh Elliot used his inter-vention 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 Com pany. Th ere he activated his West Indies– acquired understanding of imperial au-thority in implementing mea sures 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. Th e lan-guage of tyranny and scandal craft ed 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 offi cials 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 Com pany patronage net-works.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 radi-cals as illegal overreaching. Other infl uences 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 pur-posefully. 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 in eff ec 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. Th e West Indies colonies— both self- governing and conquered islands— cohered as the object of a single proj ect of inquiry, while Mauritius, with its entrenched slaveholders and slavery- supporting laws, fell in with the Cape colony and Ceylon to form a triumvi-rate 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 offi cials 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 confl icts was the melding of diff use despotism talk into calls for a fairly consistent set of constitutional minima— comprised chiefl y of the rudiments of procedural fairness and jurisdictional hierarchy. Th at fragile consensus refl ected 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 un-usual, extended moment in which very diverse pieces of the empire ap-peared to fi t 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 fl exible enough to be inclusive without aspiring to universalism.

Th e vernacular imperial constitution that took shape in colonial con-fl icts of the period refl ected the words and actions of unlikely juridical thinkers. Th e proj ect lapped against every key pillar of imperial rule, in-cluding 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 defi nition of outlaws and pirates, the obli-gation of other polities to protect British property or persons, the balance of authority between courts and the executive, the legitimate reach of im-perial jurisdiction, and the status of prisoners of war, convicts, and slaves. Legal tracts and parliamentary debates scarcely chart the surface of this sprawling constitutionalism.

Th e vernacular constitution boasted British infl uences as well as eighteenth- century roots in the very diff er ent hubs of North Amer i ca and India— both of which stood as examples of spectacular failures in imperial reordering.50 Eff orts 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 Com pany gover-nance 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 explic itly or implic-itly 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 diff er ent 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 benefi ts of fashioning a single, if fl exible, imperial legal order. Colonial reporting, correspondence, and the press brought questions of colonial law more fully and consistently into En glish and Scottish conversations about the colonies. Th e abolition of the slave trade fused moral arguments with other interests in greater imperial control from the center and raised consciousness about the limi-tations of treaties as instruments of global change. An ascendant British navy off ered itself as both agent and enforcer of imperial interests. In the many crown colonies collected in the fallout from the French Revolu-tion, legal experiment seemed tempting, necessary, and, most impor tant, pos si ble.

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 proj ect have remained largely opaque. Yet its history marks an especially formative and extended “constitutional mo-ment” in the development of global law, and its understanding is essential to ongoing strug gles to defi ne the relation between constitutions and in-ternational 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 interna-tional law canon from the early nineteenth century; few major events, other than the Congress of Vienna, attract notice. Th e tendency to describe


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international ordering in the nineteenth century as a proj ect of the century’s “last fi ve minutes,” as one scholar has put it, highlights interna-tional lawyers’ eff orts to constitute themselves as a professional group in this later period, when the fi eld established its object of analy sis as a global legal order produced by the actions and agreements of sovereign states.52

Th is story may acknowledge Britain’s role but usually does so by pointing to Britain’s leadership in forging a Eu ro pean state system in the fi rst 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 eff ecting “the expansion of the Eu ro pean State system into a global State system.” Ac-cording to Grewe, Britain championed a vision of “world equilibrium” that would closely resemble the Eu ro pean balance of power.53

Th e colonial or extra- European world has tended to fi gure in one of two ways in this story. First, empire appears as an intellectual prob lem for Eu ro pe ans thinking about global order. International lawyers strug-gled in the late nineteenth century to reconcile imperial formations of quasi- sovereignty with visions of an international system of sovereign states. Second, Eu ro pe ans looked to empire for empirical fodder and for anti theses as they tried out ideas about universalist princi ples and re-fi ned understandings of the foundations of positive international law. Empire provided the raw material for an emerging “standard of civiliza-tion” that would reserve membership in the international community for Eu ro pean states or states approved by them as having met certain conditions.54

Th ere has been some movement toward a history of empire and inter-national law, but a more or less unsystematic assessment of the place of the British Empire.55 Grewe notes that the result of British eff orts was a “world- wide 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 fi nds its infl uence at “ every turn of Eu ro pean history” in the nineteenth century: in the events leading up to the in de pen dence of Greece, Belgium, and Luxembourg; the Crimean War and its aft ermath; the unifi cation of Italy; and the Congress of Berlin, with its links to Balkan tensions. Yet the analy sis 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 Eu rope.56

Others have sought in British eff orts to enforce global prohibitions—in par tic u lar, a ban on piracy and the slave trade— the origins of power ful in-ternational norms, including the seeds of human rights law.57 Th is attempt at writing empire back into international law takes a rare detour to the middle de cades of the nineteenth century, where abolition and antipiracy had deep roots. In par tic u lar, the historiography emphasizes British or-chestration of mixed commissions to adjudicate slave ship captures. Au-thorized by bilateral treaties, the commissions refl ected British resolve and British control, but they operated, we are told, like international institu-tions charged with a humanitarian mission. Yet evidence is thin that the commissions resulted from widespread views— and certainly they were not offi cial 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 modifi ed prize law, and produced a patchy regulatory regime. Th e treaties were doubtful creatures of international justice. Th eir history links empire and international law, but not because they depended on or produced recog-nized international norms.

Of course, one can always fi nd historians who are untroubled by the lack of clarity about the place of empire in international law. Th ey see an empire as simply a version of a state and discover Eu ro pean plans for a global order of states well before the late nineteenth century. Th e star of this tale is the jurist Emer de Vattel, whose 1758 treatise, Th e 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 diff erence, 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. Th e wide circulation of Vattel’s work— his book was in Th omas Jeff erson’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 ro pean jurists, with an occasional cameo appearance by Americans and jurists from other regions, carry the story’s plot and ex-haust its twists and turnings.60 We propose a diff er ent 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 pro cesses of imperial legal change. Th is 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 par ameters of regional and global order by projecting imperial legalities beyond empire. We uncover proj ects of reforming the im-perial legal order and fortifying imperial jurisdiction and trace their imprint on relations across polities. And we fi nd that empire framed visions of global order much more than references to natu ral law princi ples 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.

Th ere is an intellectual history associated with these trends. It sits in unusual places: the correspondence of middling offi cials about colonial legal confl icts and charters, rec ords showing the legal strategies of the empire’s most vulnerable subjects, the reports of commissions of inquiry, notes on colonial scandals, communications across po liti cal communities by merchants and sojourners, traces of colonial vio lence, the rumblings of small wars. In the British Empire, the imperial constitution and its myriad sources addressed questions of global legal signifi cance, such as the legiti-mate conditions for the acquisition of colonial territory or the way British law extended into extra- imperial spaces. Th is cacophony occasionally re-ferred to, but usually drowned out, the dry speculations of Vattel and his confreres. Circulating colonial schemes and local debates did draw on oft en vague and occasionally precise understandings of jurists’ positions on the law of nations, but colonial legal politics also produced new and power ful frameworks with an unstable relation to jurisprudence. Meanwhile, the judgments of admiralty lawyers, or other case- related commentary on par-tic u lar controversies, were off ered up as substitutes for disquisitions on the law of nations, while corresponding more closely to the pressures and de-mands of imperial politics.61


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Th e centrality of empire to international politics made sense because im-perial governments and their leaders, as well as anti- imperial forces, ex-pected empires to last. Protonationalists actively sought either to nest new and existing po liti cal formations inside empires or to present their polities in ways that remained consistent with the imperial world. Promoters of new polities also leaned heavi ly on repre sen ta tions of po liti cal authority that de-rived from imperial frameworks. It is tempting to look back and see the origins of nationalism at every turn. But some of the most strident anti- imperial po liti cal movements privileged imperial legal arrangements. Th e strategy signifi ed more than a clever hedging of bets— a way of preparing for the possibility of continued or renewed dominance by power ful em-pires. Nationalism arose against and within empires, and complemented an array of other strategies for projecting greater autonomy without spelling the end of imperial hegemony. Confl icts 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, nation-alism surfaced in many early nineteenth- century contexts as a cause de-fi ned by the defense of local jurisdictional prerogatives, in turn symbolized by control of local courts and the judiciary.62

Th e resulting institutional schemes were unpredictable and varied. Im-perial dependencies announced their in de pen dence, republics became em-pires (and vice versa), and federations inside empires (or polities within federations) declared national ambitions. Historical accounts that empha-size 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 Con-temporaries saw not fi nality but a dizzying array of po liti cal and legal for-mations, with empires as the consistent point of reference. In our story, we fi nd British imperial agents working hard to domesticate such variations by labeling them as “experiments” and fi tting them within a constitutional framework that could tolerate diversity while sustaining and even clari-fying the outlines of a known quantity— empire.

Th e intertwined character of empire and states gave rise to a family of legal prob lems concerning the administration of a par tic u lar class of territories— those regarded as neither fully inside nor permanently outside empires. Th e international legal personality of such territories and the na-ture and scope of imperial legal authority over subjects within them— such


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questions could not be deci ded without blurring the boundary between internal and international (or inter- imperial) law. British offi cials self- consciously elaborated legal reform as a proj ect that could si mul ta neously apply inside colonies and assert claims to legitimate imperial authority over peoples and territories that had been outside empire. Th e active engage-ment of offi cials in restructuring colonial legal institutions bled easily into eff orts to devise judicial structures in newly acquired territories. Like inter-ventionist trends in later periods, such proj ects involved continual redefi -nitions 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 proj ects as de-termined by British actions alone. Opposition to British imperial authority took many forms and was oft en the catalyst for shift s toward both more and less meddling in legal systems. Polities and subject groups within and alongside British spheres of infl uence rebelled, and they also oft en claimed autonomy, sometimes employing nationalist rhe toric to negotiate improved standing within or alongside the empire. Eu ro pe ans engaged in what one scholar has called “imperial internationalism” when they sought to mobilize imperial subjects, resources, and rhe toric 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 Eu ro pean imperial ascendance as “inter- imperial nationalism.” From maritime raiders claiming sponsor-ship 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 proba-bility, of being absorbed into other imperial webs.

One result was that in multiple regions from the Pacifi c to South Asia to the South Atlantic the British styled imperial power as a controlling au-thority over a fi eld 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. Th ere were diff er ent ways of defi ning imperial power. It could consist of the capacity to inter-vene in and settle confl icts among other polities. It could exist in the infl u-ence 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 fl ow from attempts to enforce British bans in areas not under British rule. In the for-mative de cades of the early nineteenth century, the British Empire used all these pro cesses to shape and claim a controlling infl uence over emerging regional legal regimes. Instead of mining interventions in a search for the origins of international legal norms or doctrines, we explore the intrica-cies of the regional systems of states and of the oceanic order projected by British agents. In many places where British naval or po liti cal control was elusive, powerfully opposed, or too costly to covet, British agents maneu-vered to defi ne a legal force fi eld of uneven eff ect to urge multiple sover-eignties 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 signifi cant opposition on many fronts, and successive British governments, as well as infl uential 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 em-pire acquired new force and direction in this period. Further, the projec-tion of infl uence through the matrix of po liti cally plural regional forma-tions and through British- engineered prohibition regimes took on the qualities of a truly global proj ect, 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 eff ects of British schemes on complex po liti cal formations outside the empire, from federations to na-tionalist movements to new regional regimes, and on the coming age of in-ternational law.

Conclusion

Th e dearth of attention to Britain’s nineteenth- century rage for order is perhaps not surprising. Its sources are scattered and oft en pedestrian. Its infl uence on colonial jurisprudence was uneven. Transformative market


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forces, paired with explosive colonial rebellions, have stolen scene aft er 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. Th e 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 eff orts 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 democra-cies in some of Britain’s settler polities at midcentury. Th e Indian Rebel-lion 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 organ izing rubrics include oversimplifi ed, but ever fash ion able, proofs of imperial indiff erence to human suff ering— easy to come by—or the more uplift ing but misleading fi ction of the origins of human rights law. A good deal has been stacked against the telling of this vast but unsuc-cessful eff ort to shape a world order through the law of a single empire.

Th e sheer impact and scale of the pro cess of remaking the British Empire by law must make us look again. Our eff ort to capture the complexi-ties of imperial legal change is necessarily programmatic rather than comprehensive. In Chapter 2 we illustrate the diff use 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 eff ect imperial legal reform on a global scale and, more contentiously, to justify jurisdictional imperialism beyond the empire’s bound aries. Chapter 3 explores the most spectacular and understudied mechanism of internal imperial legal reform in the early nineteenth cen-tury: 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 princi ple of imperial constitutionalism,


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commissions exemplify the polyvocal character of this moment of legal fer-ment. 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 bound aries of the empire, as Chapter 4 shows. If the protection of slaves in the West Indies required ex-tending jurisdiction over slave masters and interfering in the legislative pro cess of self- governing slave colonies, then the protection of Kandyans in Ceylon justifi ed 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 pro cess, while Ionians could extend the same ar-gument to urge British consular jurisdiction over Ionians abroad. Impe-rial 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 eff orts to order oceans by policing slave traders and pi-rates. We argue that intra- imperial law and inter- imperial compromise— more so than treaties or universal princi ples derived from the law of nations— shaped policing regimes in the Atlantic and the seaways of South-east 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 prac-tices. Chapter 6 rereads British eff orts to order the Río de la Plata and the Pacifi c 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 oft en meant conjuring other states into existence or corralling ex-isting 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 defi ned 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 aff ected 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 discov-ered only later: Imperial law stood at the intersection of the forces of in-ternal 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, Eu ro pean international lawyers would puzzle over how to reconcile the per sis tence of empires with the imagined interstate order. Earlier in the century, the quest was diff er ent: how to con-struct 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 confl icts, and clumsy inquiries— within the global empire of law.


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Documents

A Global Empire of Law€¦ · Chapter 3 explores the most spectacular and understudied mechanism of internal imperial legal reform in the early nineteenth cen-tury: colonial commissions