Paper Empires: Layers of Law in Colonial South Asia and the Indian Ocean

Abstract

Anthropologists and historians have recently underscored the ways in which European colonialism created novel regimes of legality and record-keeping, associated with ambitious and exclusive state-centered claims to both truth and rights, while being inevitably and constantly sucked into eddies of forgery and corruption. However, attention so far has been focused on English/European-language records and the colonial institutions that produced, stored, and deployed them. This has communicated a monolithic sense of power and normativity that unwittingly replicates the aspirations of colonial states. Drawing on eight case studies from in and around South Asia from the eighteenth to the twentieth centuries, we propose instead that the law of empires was rooted in the highly localized, often multilingual, and fragmented bureaucracies that produced its records. Here, historians of pre-colonial Indian regimes join hands with historians of British, Dutch, and French colonialism in order to unearth the genealogies of records written in Bengali, Marathi, Persian, Sinhala, and Tamil, as well as in French, Dutch, and English. This special issue collectively excavates the many layers, regimes, and languages in which legally effective records were produced by imperial regimes in South Asia and its much larger watery penumbra, the Indian Ocean.

Since the 2010s, colonial bureaucracy has burst forth from its musty underground chambers into the attention of historians of empires in South Asia. Talking to the literature on law on one hand and of archives on the other, anthropologists¹ and historians² have underscored the way in which European colonialism created novel regimes of legality and record-keeping, associated with ambitious and exclusive state-centered claims to both truth and rights, which continue to disempower governed populations in post-colonial nation-states.

Historical attention has so far been focused on English/European-language records and the colonial institutions that produced, stored, and deployed them. This focus has communicated a monolithic sense of power, normativity, and law that unwittingly replicates the aspirations of colonial states. To some extent, this is a product of classical sociological theory. If we follow Max Weber, we would see bureaucracy as rule-bound governance in an increasingly disenchanted world, a product of progressive rationalization, and achieved only with modernity, in the Western world.³ Colonial modernity might entail differences such as racialized governance, constant suspicion of low-level indigenous functionaries and the specter of corruption, and heightened disempowerment of populations subjected to suspicious governments and invasive paperwork. But all these insights only allow us to view colonial bureaucracy as the inescapable tool of monolithic colonial states. In addition, a sociological focus on colonial intermediaries as small, suspect cogs in the larger bureaucratic machinery tends to divert attention from the distinct histories and material identities of colonial paperwork.

Since the 2000s, and as part of the new imperial history, however, historians of law and empires have been presenting us with a very different vision of imperial regimes. Lauren Benton's work has revealed potholed landscapes of sovereignty, created by colonial regimes inserting themselves unevenly along maritime routes, riverine pathways, and other negotiated inroads while chasing pirates or profits.⁴ Taking this cue, historians in the past decade have already shown how colonial people in South Asia utilized these jurisdictional conflicts to pursue their own interests and visions of justice, often unintentionally offering the incipient colonial regimes further opportunities for extension. Moreover, these scholars have highlighted the continuity and resilience of pre-colonial legal cultures, again countering the Weberian thesis of a unilinear modernization process.⁵

The story of colonial and imperial bureaucracy has yet to catch up with this story of imperial legal pluralism. Empires may have been made up of jurisdictional islands and wiggled along uneven pathways, but the picture of imperial bureaucracy remains that of a behemoth, grinding people down with regularized record-keeping that penetrated into all aspects of their lives. It is now time to draw together the somewhat divergent literatures on colonial and post-colonial bureaucracies and the insights gained from jurisdictional studies of law in empires. If paperwork was not just the by-product of laws, but actually generative of legality, and if, on the other hand, imperial law was known to be full of jurisdictional holes, what might we learn by looking carefully at colonial records, opening ourselves to the great diversity in their languages, scripts, and appearances, and despite our repeated reference to paperwork, materials? We are encouraged to pursue this approach by the exciting work of Kalyani Ramnath and other scholars who published in the Law and History Review forum on The Everyday Materials of Colonial Legal Spaces in 2022.⁶ Where these scholars explored how law and legality was produced by spaces, bodies, textiles, stones, maps, and drawings, and performances around all of these, we keep ourselves confined to words written on paper or palm leaf. We open up a different set of complexities and richness by reading words in many languages and scripts, especially non-European ones, and interpreting them in situ. The multilingual and multiform picture of colonial bureaucracy we present is relevant because we are minded, as one of our key contributors writes, to attend to the “media architecture” of law.⁷ Law (and empires) are what they are instantiated by, and as we shall see, imperial law was created by records that have been discarded as exotic debris for far too long.

Our case studies are from South Asia and its environs, studying the highly localized, often multilingual, and competing records that underlay colonial bureaucracies, and produced regimes of legality that were not imported from imperial metropolises, but produced in situ. This does not entail a belief in the harmlessness of colonial regimes. On the contrary, fragmented and hybrid regimes could be, and were vicious and violent, their locally generated legal arrangements resistant to the modicum of ethical restraint that metropolitan populations could increasingly hope for.

A note here on the collective coverage of this volume is that it is unusual for a collection of essays on South Asia to contain a significant volume of scholarship on Sri Lanka and the Indian Ocean worlds. That Sri Lanka is often overlooked in South Asian historical scholarship can partly be explained through its colonial trajectory, becoming a Crown Colony soon after the British conquest of the island's coastal areas in 1796. As a result, Sri Lanka's littoral bureaucracies and its local agents were no longer directed by the East India Company (EIC) headquarters, but by the Colonial Office. The island's strong political, cultural, and economic entanglements with the subcontinent and the broader Indian Ocean world were severed, and Sri Lanka—and its historiography—became isolated, or as Sivasundaram framed it “islanded.”⁸

Sri Lanka's post-independence and nationally oriented historiography reinforced that colonial perception of maritime boundaries as cultural, political, and economic borders. In more recent years, historians, anthropologists, and archaeologists have addressed this problem. Some of them did so by emphasizing the open and cosmopolitan character of the pre- and early colonial Lankan world, while others have explicitly connected and compared Lankan historical processes with the broader Indian Ocean region.⁹ This special issue continues in their footsteps, and frames Sri Lanka as an integral and necessary part of South Asian historiography.

In joining the aqueous to the terrestrial, we attempt to dislodge the centrality of polities that appear to be territorially bounded, at least in retrospect. In our collection, Sri Lanka, the Rajput states and the Indian Ocean dhows create a penumbra larger than any putative core, forcing us to rethink the location of empire. Law, and legal documentation from these very large margins of the Indian Raj, appears as a very different beast than if studied with sole reference to legislation produced by directly British-ruled Indian territories.

Layers of Empire

The eight articles in this issue collectively excavate the many layers, regimes, and languages in which legally effective records were produced by imperial regimes in South Asia and its much larger watery penumbra, the Indian Ocean. Here, historians of pre-colonial Indian regimes join hands with historians of British, Dutch, and French colonialism in order to unearth the genealogies of records written in Bengali, Marathi, Persian, Sinhala, and Tamil, as well as French, Dutch, and English. The articles in this issue deal with contexts from the eighteenth to the twentieth centuries, thus dealing with the period of protracted “transition” as well as “high” colonialism, and taking into account the multiple layering produced by regime changes from pre-colonial to European (from Persian to Marathi to English under South Indian princely states and British government) as well as transitions between different European powers: Portuguese to Dutch to British in Sri Lanka, for example.

In studying such layering, we set aside facile ideas of documents written in indigenous languages as “indigenous.” All of the materials that we present were part of, and in many cases, created by, the colonial context. At the same time, in characterizing such materials, we resist the lure of concepts such as “hybridity,” which to us also suggest a strict chronological divide, whereby the history of the indigenous ends before colonial rule begins to generate hybrids. Our collection of articles shows how South Asian regimes co-emerged and competed with incipient European company-states, creating new forms of power and politics, and indeed, a whole gamut of novel record-making and record-keeping strategies, in line with evolving ideas of legality.

In the world we describe, nothing, as two contributors note, was what it seemed to be at first sight.¹⁰ South Asian royal or noble titles may be sported by European businessmen; documents of order may have been extracted from formal authorities by force or compulsion. This pushes us to consider what such layering—often literal—means for such multi-lingual and multiform colonial archives and the legality that they produced. The conclusions are various with the various case studies. In some cases, the layering is a part of the process of subordination, such that older documents are physically and legally transcended by colonial documents and registers. In others, old-style documents are produced afresh, by new entities, with different ends in view. And in yet others, entirely new forms of documents are created, literally conjuring forms of constraint out of thin air, or from far away. The implications for the “law” thus created are similarly various: in some cases the self-consciously European version of law and legality is asserted, in others it is equally loudly concealed. In all cases, however, the older records and the norms that they encoded and embodied prove persistent, demanding attention even as they validated the new forms of legality that supplanted them.

Written Artefacts as Historical Heroes

In this collection, we have adopted a deliberate strategy of displacing human actors from the center stage of our stories, and have focused instead on the trajectory and biography of our written artefacts. Various articles explain how paperwork could live different lives in different political and social contexts. A journal kept by a shipmaster could contain important information about contractual relations between people encountered on board and in the harbors, as Fahad Bishara shows. This private legal maritime sphere was normally kept outside the formal legal world created by the British Empire, but one could impinge on the other, and if they did, the norms in such a notebook would come into play. This tension between the colonial and autonomous legal spheres—whether it concerned business partners, family members or neighbors—is a returning theme is this issue. A land transaction between two Sinhalese brothers inscribed on a palm leaf could become a crucial piece of evidence in a colonial court case among their offspring decades later, as Dries Lyna and Luc Bulten Lyna show. The formal colonial institutional context, such as the courtroom, the revenue board, or the governor's office, is where tensions over these autonomous contracts surface and are played out. From Bombay to Colombo and every colonial office in between, this led to an explicit panic over the role and function of indigenous language records within their paper empires. The anxieties over authenticity and legal validity led colonial officials to intervene actively in household archives, either through the effort to transform localized and/or household archives into centralized registers, and/or through the translation and absorption of such documents into the colonial archives, or simply by replacing them in acts of symbolic violence. Indigenous intermediaries and specialists called upon to evaluate such materials in the process of absorption could find themselves being squeezed by the twin colonial imperatives of securing local knowledge and neutralizing indigenous agency, as Dominic Vendell shows in his article on records extracted by the British East India Company from the Maratha Empire.

Empire Spilling out of Offices

The focus on paperwork also helps bring clarity to the bureaucratic particularities of European empires, which otherwise often remained disguised. Local officials as cogs in the larger machinery could serve goals other than the ones that we might expect them to do: Dutch merchants in South Asia that fulfilled middle- to high-rank administrative functions with indigenous titles such as disava and zamindar-fiscal in reality spent much of their time solving interpersonal disputes at the village level, as Alicia Schrikker and Byapti Sur show. Mutatis mutandis the paperwork of these local officials could transgress the initial boundaries of their specific bureaucratic departments. We see this in Bente De Leede and Nadeera Rupesinghe's article on eighteenth-century parish registers in Sri Lanka that recorded baptisms, marriages, and deaths; however, in practice, these compiled lists made the labor market legible and controllable for the Dutch East India Company and at the same time offered local elites access to status.

There was much corporeal and ceremonial performance that surrounded the paperwork of empires; rituals remained intrinsic to writing. There were specific church ceremonies in Colombo associated with thombo-writing, that included the transition of children into adulthood, as De Leede and Rupesinghe have shown. Schrikker and Sur describe the tri-yearly registration of people and land in the thombos in Jaffna as a theatrical moment, in which social hierarchies at the village level were (re-)confirmed. In Nandini Chatterjee and Leonard Hodges’ article on Mughal Persian parwanas, we not only see how these documents offering grants of lands and other benefits came to function as crucial diplomatic tools between Indian and European regimes in the eighteenth century, we also note the lavish public performances— processions, receptions and so on—undertaken by all parties to establish the value of their documents. Materiality and performativity also met in the form and formulation of administrative regulations laid out by the Rajput ruler Banni Singh in mid-nineteenth Alwar, a princely state influenced but not entirely controlled by the neighboring British colonial regime. In her work, Elizabeth Thelen shows how the Persian language was a vehicle for the twin aspirations of Mughal authority and modern governance. While the form of these manuals remained practical, the regulations were printed in such a way that they could easily be folded and carried along. Sensitivity for the practical, the political, and the socio-linguistic context in which documentation—on paper, parchment or palm leaf—was produced and used characterizes all the articles in this special issue.

In undertaking that reveal, our aim is not to depict a colorful world of multi-linguality and exotic materials for writing documents on. Of course, our documents are not boring. Although many of the articles in this collection do relate to everyday governance, it is hard not to see palm-leaf olas and Persian documents sprinkled with gold dust as something rather out of the ordinary, belonging precisely to that enchanted world that Weber thought modern bureaucracy would replace. People also seem to behave dramatically around them, seizing ships at sea if they lack a pass (Raman), knocking kings off of their thrones (Chatterjee and Hodges), or at the very least, raiding people's homes in search of valuable deeds (Schrikker and Sur). Are the documents discussed in this collection therefore qualitatively different from the kinds of materials that epitomize the banality of bureaucracy that make people act in mindless, pointless, and “stupid” ways?¹¹

Actually, there is nothing delightfully exotic about our documents. Written on paper, parchment, or palm-leaf, in French, Sinhala, or Persian, the documents we discuss are about hard-nosed business: taxes, property, inheritance. and enslavement. The delight we might take in the plurality of their form or appearance is not one that was necessarily shared by contemporaries, when these materials were indeed legally effective. The dramatic actions that some of these documents appear to inspire, at least some of the time, is a reminder, on the one hand, that the history of routinization of governance, commerce, and kinship (to name just three key areas of social life) has been ongoing for long before the advent of colonialism in South Asia and elsewhere. On the other hand, materiality, performativity, and personal investment remain inseparable from paperwork right until the present day.¹² In this issue, we open up a particular constellation of these processes, over a long period when European and South Asian regimes jostled with each other, producing a plethora of paperwork that is imperial, but not European.

Into Paper Empires: Eight Case Studies

All contributions to this special issue point to the shape-shifting nature of the materials under study. Writing on land registration in coastal Sri Lanka Dries Lyna and Luc Bulten show how different types of documents coexisted on the island throughout the seventeenth and eighteenth centuries in a system of material pluralism. Although the Dutch from the start showed a clear preference for paper land grants and registers, private land transactions kept on being recorded on palm leaf deeds or olas. Time and again the Dutch authorities tried to discredit these olas as illegal evidence through legislation, and when this proved ineffective, they even infringed on the materiality of these physical documents. In an attempt to establish the sovereignty of their paper empire, Dutch clerks performed acts of symbolic violence on palm leaf deeds, by carving or stamping Dutch East Indies Company (VOC) logos and signatures before they were allowed to enter the Dutch Asian empire as valid legal documents. Two VOC-driven exchange operations to substitute palm leaf land grants in favor of paper copies proved unsuccessful, as olas were used to record land transactions until the very end of the eighteenth century.

The durability and even reflorescence of older forms of paperwork were nowhere more striking than in the Mughal-style orders that proliferated in eighteenth-century India, as new Indian regimes, such as Hyderabad and Arcot in southern India, jostled with European trading companies and with each other in the quest for power, resources, and legitimacy. Leonard Hodges and Nandini Chatterjee show how the Mughal empire, although practically ineffective, remained a source of legitimacy such that Mughal style orders—parwanas—could be issued and used by regimes such as Hyderabad, which were looking to buy up European partners. While such orders offered direct resources, for example in the form of access to land and tax revenues, their value as political currency crucially depended on the extent to which they were able to insert the recipient into a theoretical framework of Mughal legality and sovereignty. In this highly fluid and fractious context, however, players raised the stakes by trying not just to hoard currency, but also to own the bank itself, or, in this case, to endorse or challenge the authority of the kings who issued such grants. Indeed, there was nothing novel about the language, form, or phrasing of the many grants that circulated all over India at this time; their significance and functions were, however, of a piece with the new political landscape of the eighteenth century.

From a much less elevated socio-political level, Alicia Schrikker and Byapti Sur observe the same process when studying the paperwork of the eighteenth-century colonial offices of the zamindar-fiscal in Chinsura and the Dutch disava in Jaffna. In taking a local view of what constituted the Dutch empire, they problematize the current debate on the nature of that empire, as functioning either as a centrally steered unity, or as a fragmented entity that was kept together by a group of Dutch regent-families. Rather than viewing the Dutch empire from above, through sets of imposed regulations, or through memoirs and writings of governors and directors, Schrikker and Sur look at the writings that were produced in office and that mattered locally: the bilingual pattas in Bengal and the thombo registers as well as Dutch “authorized” olas in Jaffna. And they show how this kind of paperwork played a crucial role in the relationship between the local populations of Bengal and Jaffna and the Dutch, and hence in the local perception of the Dutch empire. In their analysis, Schrikker and Sur focus on practical questions of translation and performativity of the paperwork, in which the act of writing, claiming, and complaining is included. They unveil a world in which colonial paperwork was embedded in local practice, open to use and abuse by various interested parties. In Jaffna, the daily work of the Dutch disava involved authenticating locally produced paperwork, such as dowry-olas, which could give rise to conflict. In Bengal. we find the Dutch zamindar-fiscal appropriating pattas to undermine land claims, Yet at times claims and complaints would reach the central office of the VOC in Batavia, which signifies a degree of imperial consciousness from below.

Taking another look at thombos, Bente De Leede and Nadeera Rupesinghe showcase how these parish registers were in fact complex tools in Sri Lanka's coastal territories under Dutch rule, rooted in existing scribal networks and village-level registration practices. At the same time these so-called school thombos were more than merely bureaucratic administration of religious rites de passage such as baptisms, marriages, and deaths, which the VOC could use as a repressive instrument to regulate local family life through their religious counterpart, the Dutch Reformed Church. The authors make it abundantly clear that these school thombos were sites of negotiation between colonial institutions and subjects, and moreover that they cemented legal identities that were transferred to other legal arenas where questions arose on legitimacy, inheritance practices, and opportunities for social mobility. Moreover, as the VOC used these lists as tools to make the caste-structured labor market legible, the school thombos proved crucial arenas for bilateral identity registration.

Turning back to peninsular India, Dominic Vendell examines the documentary aftermath of the federated and sprawling Maratha empire being defeated by the British East India Company in a crucial battle in 1818. As prior Maratha territories came under British control, there also arose the need to evaluate pre-existing land titles, especially those that their holders claimed entitled them to exemption from taxation. Vendell shows how the Inam Commission, formed in 1852, labored to collect, collate, evaluate, and control a vast corpus of records—in many languages including Marathi, Persian and Kannada—and to extract the truth about rights from them. As this commission on land titles sat in judgment on the validity of documents, it pushed its officials to examine infinitesimal details about materials, writings, letters, dates, and even stray strokes of pen. Legality was here clearly tied not only to materiality, but also to expert knowledge that could accurately interpret it. Since such expertise was often embodied by embattled Indian scribes, suspect to their British bosses, legality proved to be fragile and elusive.

Just before the Inam Commission began wading through the Aegean Stables of Maratha records, a semi-independent princely state in northwestern India—Alwar—started producing compact manuals aimed at instituting modern tax administration, but in the Persian language. In a wonderful exploration of a process that she calls “Mughal modernity,” Elizabeth Thelen shows how these manuals were the product of the ambitions of the ruler Banni Singh, who by instituting centralized, routinized fiscal governance, hoped to disempower kinfolk of his lineage who claimed a share in political power and fiscal resources. What is striking is that the Rajput ruler Banni Singh found his model of modernity in late Mughal Delhi, and invited Persian and Urdu-writing Muslim administrators, experienced in working in the mixed regime of the Mughals overseen by the British East India Company, to create his modern bureaucracy, focused on routinized village administration. In any event, the reforms failed and the invited experts proved corrupt; however, the Persian manuals of administration, modeled on earlier Mughal manuals but adapted to nineteenth-century needs, remained as evidence of the wildly multiform nature of what we might consider colonial records.

While paperwork traveled across empires, to sustain a great variety of locally embedded legal claims, mobility of persons was restricted by similar paper regimes. Rather than focusing on one empire, or one or two regions of South Asia, Bhavani Raman takes a global view in her exploration of the genealogy of the travel pass and the register as a legal genre. She provides us with a fascinating reflection on the inter-legal nature of the pass, which enabled, and restricted, travel across empires. She shows how global use of slave passes and travel permits was transformed in the nineteenth century into intricate intelligence and information systems that policed the mobility of laborers, be they emancipated slaves, convict workers, or indentured laborers. Raman's long-term reflective analysis includes cases from the Dutch Caribbean, as well as from British Mauritius, and reveals the layered and inter-legal nature of this paperwork. Furthermore, she engages with current debates on legal pluralism and empire, which in her view tend to overemphasize imperial hybridity and underestimate the violent workings of law through the creation of racial categories and social hierarchies. In her words: “The pass was the material medium that circumscribed mobility in Indian Ocean according to laws of racial and caste hierarchy.”

In the last contribution to this special issue, Fahad Bishara follows the trans-imperial narrative set up by Raman, and takes the reader beyond the terrestrial grounding of regimes of legality, exploring the movement of law outside of the framework of empire. Starting from the ship notebook of an early twentieth-century nakhoda or sea captain that connected different port cities around the Western Indian Ocean, Bishara invites the reader to reflect on the “sea of paper” that existed next to the imperial paper regimes of South Asia discussed elsewhere in the special issue. By reflecting on a series of model contracts alongside a host of navigational records in these notebooks, he highlights the neglected role of such nakhodas in the circulation of legal knowledge in the Indian Ocean world. Moreover, Bishara convincingly showcases the captains’ agency to influence processes of contracting and contract-making in a transregional commercial arena beyond the direct political influence of imperial authorities.

Paul Halliday concludes this special issue with an elegant article in which he ties together the eight articles and reflects on the interaction between local legal practices, knowledge, and technologies of writing, and the colonial bureaucratic legal sphere. Through a discussion of the practice of writing olas, pattas, and parwanas, and the persistence of these practices against the colonial odds, he emphasizes how the study of material forms and routines of the law brings to life the dynamic functioning of “the law” in everyday practice, in often unexpected ways.