Despotism and the rule of law

Bibliographic Information

Other Title
  • 専制と法の支配
  • 専制と法の支配 : 一八二〇年代ボンベイにおける政府と裁判所の対立
  • センセイ ト ホウ ノ シハイ : イチハチニ〇ネンダイ ボンベイ ニ オケル セイフ ト サイバンショ ノ タイリツ
  • 一八二〇年代ボンベイにおける政府と裁判所の対立
  • Conflict between the EIC Government and the King's Court in Bombay in the 1820s'

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Abstract

The present article argues that the jurisdictional conflicts between the King’s Court and the East India Company Government in Bombay in the 1820s led to the construction of a more despotic political structure in colonial India, on which the Government retained the power to politically intervene in judicial affairs in cases of emergency. This new arrangement was conducive to the most important shift that occurred in the character of the British Empire during the early nineteenth century from rule centred on the maritime commercial cities to governance based on the sovereign control of the vast inland territories. <br> The immediate background to the conflicts in Bombay was the political, economic and social crisis in the newly acquired territories of the presidency during the mid-1820s. The main concern of the Government was raids staged by the “wild tribes” in the hills and their alliance with the princes on the plains. The Government tried to deal with this problem by a form of indirect rule relying on Indian chiefs and aristocrats and implemented conciliation policies, among which their exemption from the EIC’s courts of law was the most important. But the King’s Court obstructed this policy by issuing warrants and writs to the chiefs, which were supposed to weaken their authority and respectability in local society and thus impede the indirect rule envisioned by the Government. In addition, by overturning the decisions of the EIC Courts and trying to punish governors and other officials, the King’s Court endangered the EIC’s sovereignty in the provinces. <br> These legal cases were brought to the King’s Court by Indians who were fully aware of the advantage to be gained from the Court's jurisdictional conflict with the Government. The Court judges criticised the Government on the basis of their logic of law, which assumed that the regular courts of law should exercise judicial sovereignty in the conquered territories. The governors and provincial administrators, on the other hand, believed that the Government should retain its supreme authority over the judiciary, because of India's constant state of emergency, even after the conquest. <br> This tension exploded in one case of habeas corpus in 1828, where the Court’s exercise of jurisdiction was disputed in Bombay, Calcutta and London. Consequently, the British Parliament established a legislative council in India by amending the EIC’s charter in 1834, under which the King’s Court was subjugated to the governor-general’s legislative authority. The author concludes from these facts that the driving force in the development of British despotism in early nineteenth-century India lay in those Indians who were utilising the jurisdiction claimed by the King’s Court and the government’s anxiety over its endangering sovereignty in the aftermath of the conquest.

Journal

  • SHIGAKU ZASSHI

    SHIGAKU ZASSHI 127 (1), 1-34, 2018

    The Historical Society of Japan

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