by Jon Wilson
Friends and fellow subjects
In the months of 1879 when Vasudev Balwant Phadke’s revolt against British power was raging around Pune, an article questioning the British rule of law in India was published in the Calcutta Review. Written by the 29-year-old north Indian lawyer Sayyid Mahmood, the piece asked whether British rule in India ‘owe[s] its origin to conquest, and its maintenance to physical force’. Phadke, like James FitzJames Stephen and Henry Maine, would have definitively answered yes; the Maratha revolutionary thought the British regime was founded on violence and could only be held to account by countervailing forces. Sayyid Mahmood disagreed. But his argument was no less of a challenge to British power than Phadke’s.
Mahmood argued that the British were not the sole rulers of India. British authority depended on ‘native agency, native friendship, native counsels, native valour’. ‘[T]he vast majority of Englishmen’, he argued, ‘take delight in the fallacious idea of being “the conquerors of India”.’ In fact, he argued, India had not been conquered at all. Turning British stories about conquest on their head, Mahmood argued that British pride in ‘the glory and rights of conquest’ underestimated the virtue of British rule. A Muslim himself, Mahmood castigated the ‘Muhammaden [i.e. Mughal] period [as] one long narrative of assassinations and cold-blooded butcheries’. The British had been invited to rule by Indians frustrated by anarchy and violence, bringing ‘order and good government, peace and civilization’; their power rested not on force or technological superiority but Indian will. Mahmood’s belief that the empire was founded on consent not force led him to argue Indians had rights, and that the British had the duty to share power. There was a time, he imagined, ‘when laws will be framed with the consent of the country’, and whole districts ‘administered by native efficiency’.
In his essay, Mahmood made the same argument the Regius Professor of History Sir John R. Seeley would expound four years later in perhaps the most famous nineteenth-century rationalization of Britain’s empire, The Expansion of England. Seeley was friends with British officials who had recently returned to pen their own justifications of British rule, most notably Sir John Strachey. Much of Seeley’s work offered a typically imperial defence of the pacifying, civilising effect of British rule empire at a time of crisis. The difference was that Seeley played down the importance of violence to Britain’s government throughout the world. Seeley’s empire was based on migration and consent, not force. Like Mahmood but unlike most of his British compatriots, Seeley argued that the British empire relied on Indian cooperation.
The similarity between Seeley and Mahmood’s arguments was probably more than a coincidence, for the two men spent two years in close proximity at the same Cambridge college, when Seeley had just been appointed Regius Professor of Modern History and Mahmood was a young student. Like Seeley, Mahmood argued that the East India Company had ‘brought order and good government’. Seeley, however, was barely interested in the consequences of his arguments for the nature of British rule; his point was only that it was largely pacific and good. Mahmood, by contrast, used it to vehemently condemn the arrogance of India’s purported ‘conquerors’, and thought it meant the British were not entitled to rule India alone.
Born in 1850, the son of the Muslim political leader Sir Sayyid Ahmad Khan, Mahmood was sent to England to study English to enable him to argue persuasively against what his father regarded as false views of Islam being propagated by Europeans. Mahmood’s sociable personality inclined him towards public life and perhaps also public glory. While reading Latin, Greek and Arabic at Cambridge, Mahmood studied law and was called to the Bar in April 1872.
Having experienced the 1857 uprising first-hand, Mahmood’s father thought India’s elites needed to accept the fact of British domination. But Sir Sayyid did not think there could be a close connection between the two peoples. His son was more optimistic, developing a conception of an Anglo-Indian political order which exceeded the limited bounds for collaboration laid out by his father. At a dinner for British officers hosted in Allahabad to celebrate his return in 1872, the 22-year-old Mahmood made the case for a liberal empire based on a common conviviality as well as shared ideals. His aim, he said, was ‘to unite England and India socially even more than politically’. Unlike his father, Mahmood argued that Anglo-Indian sociability could create the foundation for a virtuous form of political power. ‘English rule in India’ could create an ethical state. But this state, he said, ‘in order to be good, must promise to be eternal’. Mahmood argued that such a regime was impossible ‘until the English people are known to us more as friends and fellow subjects, than as rulers and foreign conquerors’.18
In 1879, when he published his Calcutta Review article, Mahmood had just been appointed a district judge, a position usually given to European civil servants. Over the following years, he was asked to officiate on the bench of the Allahabad High Court, before being appointed to the permanent position of puisne judge in 1887. Mahmood’s rise was part of the broader involvement of Indians in the institutions of British rule occurring during the 1870s and 1880s.
This was a moment when ‘the administrative grid’, as historian Anil Seal calls it, ‘was pressed down more firmly’ on Indian society than ever before, and the extension of governmental power could not rely on expensive and unenthusiastic British bureaucrats alone. During the last thirty years of the nineteenth century new institutions were created to enlist Indian elites to work for imperial ends. Municipal corporations were formed for local notables to deliberate and fund apparently low-level improvements like waterworks and roads, usually with the District Collector in the chair. District boards were instituted with a similar function in rural areas. Indians were increasingly involved in teaching and management in universities. Small numbers of Indians were being recruited into the Indian Civil Service, with the government primed to appoint Indians to one-sixth of each year’s positions from 1879. But it was the law that saw the greatest Indian involvement. The legal profession was dominated by Indians soon after 1857, and a few judges were appointed from the late 1870s. The law was attractive partly because income was independent of the whim of imperial paymasters, and partly because its abstraction and neutrality allowed Indians to think they could find places within it exempt from the British effort to dominate Indian society. But none of these changes gave Indians any great executive power. Indians could be judges but not lawmakers, and they always earned less than Europeans.19
Despite the limits of Indian involvement, tensions became increasingly apparent. With their ever-embattled sense of unease about being a tiny minority in an alien society, Europeans in India insisted the law was a tool for asserting their violent dominance over Indian society. The legal system was, for example, used to protect their ability to inflict violence on employees and subordinates with more or less impunity. The killing of servants was not rare, but the murder of a ‘native’ was always treated far more lightly than the murder of a European. The greatest perpetrators were European men using violence to direct Indian labour hundreds of miles from the nearest town or cantonment, plantation owners and other managers scattered throughout the countryside. Judges acquitted killers by claiming that Indians had naturally frail bodies. Lord Lytton, Viceroy between 1876 and 1880, claimed that ‘Asiatics are subject to internal disease which often renders fatal to life even a slight external shock.’ The ‘diseased spleen’ was a classic defence, used to suggest that death was caused by the failure of internal organs not a kick from a metal-capped boot. A tea planter talking to the writer Wilfrid Scawen Blunt in 1882 claimed that ‘natives’, when struck, were ‘capable without any exaggeration of dying to spite you’.20
These were men and women who, to Sayyid Ahmed’s frustration, did indeed celebrate Britain’s conquest of India, and thought conquest gave them the right to resist the involvement of Indians in the judicial system. Until the early 1880s, they were reassured by the fact that only Europeans could try Europeans in the countryside, even th
ough, ‘by a strange anomaly’, Indians could sit in judgment of Europeans in the presidency towns. In 1882 an Indian judge in Bengal was promoted to a position in the countryside and so lost his jurisdiction over Europeans, and had his complaint passed on to the government by Maharaja Sir Jotindra Mohun Tagore, one of the most ‘eminent’ of Calcutta’s Bengali upper class. The complaint led Lord Lytton’s successor as Viceroy, the liberal Lord Ripon, to propose to abolish such an anomaly. Ripon’s argument was that it was too expensive to try all Europeans in the High Court, and that Indians would not apply to join the civil service if they did not have the same powers as Europeans.
This minor administrative move led to a ‘storm of passion’ in both India and Britain. Mass meetings were held in every Indian town with a sizeable European population, and a campaign in Britain was led by The Times. In London Tory British newspapers complained of the onset of ‘anarchy in India’. James FitzJames Stephen used the debate to reiterate his belief that British rule was founded on the violence of conquest, and that empire meant nothing without the will to impose British ways of doing things on an alien society. When the liberal anti-imperial Blunt travelled to India in 1882, he found himself journeying with people who held similar opinions and recorded their outrage. Apart from the Muslim crew and a man appointed to run the Calcutta mint, Blunt’s companions on the crowded, disease-ridden steamship Gurkha were a ‘rough set of Colonial English and planters’ who angrily complained about the measure. One ‘intelligent young planter’ thought there was ‘a new rebellion brewing in India’. Indians had started to curse and throw stones at the British, he said. ‘India would be lost’ if the bill was passed, as it would prevent Europeans from suppressing Indian dissent with violence. Blunt himself believed the Ilbert Bill was ‘a very poor instalment’ in the equality that successive British governments had promised between the Queen’s English and Indian subjects. But the men on the Gurkha all thought it was a ‘revolutionary measure, which would put every Englishman and every Englishwoman at the mercy of native intrigue and native fanaticism’. The oldest and rudest planter told Blunt that India ‘was a conquered country, and the niggers were all rogues from the first to the last’.21
In 1883, the year he returned to India to work for an English newspaper in Lahore, Rudyard Kipling wrote that ‘old stagers say that race feeling has never been so high since the mutiny’. Kipling would go on to become the most popular poet of Britain’s late imperial age. He was eighteen during the Ilbert Bill controversy. The debate shaped Kipling’s attitude to empire for the rest of his life, helping him forge an idea of the English in India as an embattled but chosen people, whose ‘dominion’ over ‘lesser breeds without the Law’ was always endangered by Indian plots and weak-willed British politicians. The law was central to Kipling’s conception of British rule, but his idea of law was racial and spiritual, not based on any actual judicial process. Sometimes, he thought it needed to be imposed by lawless violence. Kipling’s rule of law was about action not reason and logic. It was run by officers who were ‘neither saint and sage / But only men who did the work’, as he wrote in his poem ‘Wage-Slaves’. ‘Self-exiled from our gross delights’ their peculiar predilection for efficiency and order gave the British the right to rule the world. Here, Kipling was not reproducing the official view of viceroys and council members. His writing connected with the feelings of embattled minor administrators, merchants and plantation managers who felt they performed the labours of empire for insufficient reward.22
It was this British understanding of the law as a practical system of European domination which Indians in the imperial legal system came up against. The official ideology of imperial justice allowed plenty of space for Indians to officiate as lawyers and judges, as long as they swore allegiance to the Queen and were educated in British India’s rules and codes. But there was much more than the official view, far more to law than obeying written orders. The practice of imperial law was governed by tacit conventions which Indian justices were not part of. Racial social hierarchies cut across the supposed equality of the court room. Business was discussed at European-only gatherings; many Britons resented any suggestion Indians could be their social equals. The Bengali nationalist leader Surendranath Banerjea was dismissed as a magistrate in Sylhet after claiming an equal position in the civil lines he shared with European officials. Indian judges took more time and wrote longer opinions than their British colleagues, and were criticized for not being efficient or impartial when they did so. It seemed that the law was governed by double standards, where subscription to formal rules was never enough to make one part of the system.
Sayyid Mahmood was appointed a judge in the wake of the Ilbert Bill controversy. Unable to resist the storm of protest, Lord Ripon backed down, giving Europeans the right to be tried by a jury of Europeans; the measure in fact meant they were more likely to be acquitted in cases involving violence against Indians. Indian opinion was universally outraged. In an attempt at pacification, the government decided the next vacant High Court seat would go to a ‘native’ lawyer, and in 1886 Sayyid Mahmood was appointed puisne judge at Allahabad. He lasted seven years in a position which was intended to be permanent. His relationship with his ‘brother judges’ gradually deteriorated until he was dismissed after being accused by the Chief Justice for being drunk and late in submitting his judgments. Mahmood himself thought he was the victim of a chain of events that proved that his ‘brother judges’ were not willing to treat him as an equal member of the court.23
Throughout his time on the bench, Mahmood became increasingly frustrated with his British colleagues’ lack of serious interest in the law. Their judgments were cursory and short, based on the quickest route to a secure decision rather than detailed contemplation of the law on a particular point. They often relied on British statutes rather than traditions of pre-British Indian jurisprudence. Mahmood riled his colleagues by criticizing their translation of Arabic, Persian or Sanskrit sources. He often argued that their clumsiness caused them to ‘import foreign ideas’, and illegitimately interfere in areas of life supposed to be governed by indigenous norms.
For example, in a case heard in February 1885, Mahmood defended the right of a neighbour to purchase land from a Muslim landlord instead of an outsider using a complex set of arguments drawn from Islamic law. He argued that Muslim law was rooted in ‘Republican’ principles, and was concerned to ensure the maintenance of peace among a society of equal small proprietors. One principle was that members of a particular community should have the right to resist ‘the intrusion of a stranger’ if they were able to buy land put up for sale instead. Mahmood’s judgment in the case was a 15,000-word essay on the history of Islamic law and ethics. His ‘brother judge’ John Oldfield agreed with Mahmood’s decision, but for very different reasons. In a 200-word text he dismissed his colleague’s references to Islamic history, arguing that imperial statutes allowed European judges to decide such cases with their sense of ‘equity’ or common sense. Instead of being bound by Indian principles which he did not trust or understand, Oldfield wanted to rely purely on the efficient, rational British imperial mind.
Mahmood thought these attitudes were bound up with the British belief that they were India’s conquerors. Mahmood’s pains-taking effort to explain India’s indigenous legal principles began as an effort to undo conquest, and create the friendly, collaborative kind of Anglo-Indian political order he had proposed in his 1879 Calcutta Review piece. In fact, his experience in the court played out in precisely the way he discussed the emotional breakdown between Britain and Indian in that article: ‘Under the influence of supposed grievances on the one hand, and the effect of injured pride on the other, the political and social relation of the Englishman with the people of this country becomes a matter of national insult or of personal insult and provocation.’ Against Mahmood’s seeming insolence, the British asserted their wounded pride by refusing to let him decide criminal cases, excluding him from decision-making meetings, sn
eering at him for his legal nit-picking and then, when he complained about not being involved, drowning him under a deluge of petty paperwork. Mahmood was attacked by English lawyers for obsessing over the meaning of ancient texts and accused of introducing ‘new rules of law’ as he did. Mahmood himself became prickly and hostile, and probably started to drink more and more. By 1892, both sides were engaged in a hostile exchange of letters. The Chief Justice should, Mahmood wrote in October 1892, ‘have allowed himself enough time to understand the Indian laws and the facts of Indian life, before assuming the position of veni, vidi, vici’. Eventually, the Governor of the United Provinces recommended he not be allowed to return to the court after an extended period of leave. His argument was that Mahmood had slowed down the Allahabad court’s efficiency; there would be no hope of working through its huge backlog if Mahmood was allowed to return to work. North India’s only Muslim High Court judge had been sacked.24
British-ruled India’s legal system relied on Indian participants to function; judges often claimed Indians were treated fairly within it. Yet the law’s British functionaries found it difficult to practically acknowledge Indians as equal partners within the law. Events at the Allahabad court, just like the Ilbert Bill controversy, demonstrated that British administrators saw British rule very differently from the way Mahmood imagined it. It was not a system of global governance in which Britons and Indians worked to maintain peace and justice under the imperial authority of the British Queen Empress. It was, they thought, a system based on the forceful subjugation of one people, one race even, by another.
