A new book examines the jurisprudence of plunder and British imperial expansion in India

The book establishes that the East India Company’s conquests in the subcontinent can only be comprehended in terms of long-standing royal authority in relationship to the Company – more precisely through royally sanctioned Prize charters. Prize laws [royal charters or legal rules established by courts or statutes confirming the original royal rights and subsequent rights by armed personnel over the acquisition and distribution of property plundered in hostilities and war] formed an aspect of the King’s rights of conquest, historically traced in Part I, though statutes emerged on the matter from the very end of the seventeenth century, particularly in the contexts of war.

Part II establishes the fact that royally sanctioned Prize charters form a crucial aspect of the constitutional and jurisprudential bases of the English East India Company’s fabled conquests of the Indian subcontinent from the middle of the eighteenth century onwards. More specifically, the royal letters-patent granted to the Company at their request in 1756–57 enabled the Company not merely to appropriate prize and plunder, but simultaneously both treaty with as well as conquer native polities. These letters-patent were part of a specific channel of jurisdiction whose source was royal authority, notwithstanding the existence of statutes on the subject. In this context, it is important to note, as is discussed in Part II, that when the East India Company applied to be given the rights to prize under an existing statute, they were advised to directly apply to get such a grant from the King.

Therefore the letter-patent of 1757-58 granting rights to prize, war and treaty was of enormous importance to the rights of the East India Company, emerging as they did from royal authority, not parliamentary statute. The Prize cases of the 18th century and even the 19th century therefore were adjudicated by royal channels reaching up to the privy council, not parliament. On the other hand, the Company’s very corporate identity, apart from specific powers of governance and adjudication, depended on forms of royal jurisdiction notwithstanding the existence of statutes to legitimate them broadly.

If war-booty provides a clue to the constitution of international relations, this will only strike the practitioners of international law today as odd or embarrassing. Eminent jurists of the 19th century were well aware of the originary function of Prize jurisdiction, focused on the seas, maritime commerce as much as war. Little more than the fact that the so-called founder of international law, Hugo Grotius, had cut his teeth in crafting a mammoth work of advocacy, Commentary on the Laws of Prize and Booty, to the cause of plunder, is necessary to whet the appetite. Such was the jurisprudential matrix of an evolving “common” – civil but not always to – law between European empires, whether monarchical or republican. Here germinated the precise procedures and principles involved in the rights to appropriate the properties of enemies and neutrals during conditions of war and hostility. It is through war and its principles – seen as constitutive of sovereign activity – as much as its effects on populations and countries, that the present thesis argues for the construction of the sovereign state as much as the global order therein spawned.

Prize jurisdiction certainly had an ancient history going back to Greek and Roman writers, as much as Biblical scripture, which the seventeenth-century writers were well aware of and scrupulously built upon. From this early modern period, it was largely an affair of the seas, jurisprudentially and militarily nourishing the growing commercial trades across the oceans of the globe. Such a history of Prize will turn out to be a double of a history of trade and commerce, that “cunning civility” of Europe. Modern international conventions regarding the rules of warfare, commerce, neutrality and nationality, it will be argued, cannot be grasped outside their historical and institutional emergence from the framework of royal authority, military warfare and Prize jurisdiction.

If citizenship is what defines political identity in terms of rights and obligations as norms today in democratic nation-states, allegiance would have to be considered the equivalent of this concept for the period between the seventeenth and nineteenth centuries. Allegiance to the natural person of the King (and heirs) in a spatial order of diverse and diversifying jurisdiction, as much as temporally changing authorities, was unmistakable, and constitutionally as much as jurisprudentially enshrined [in the British empire].

What is called the Anglo-Maratha wars gave rise to two interlocking judicial cases on prizes, which form the subject of this section. The first case studied here was known as the Deccan Prize Money case, and was much celebrated in its time. The issue to be decided was, who precisely was entitled to prize money: the actual captors directly involved in the war, or even those military divisions who played a more indirect role in victory?

Implicitly, this legal dispute also sheds light on the responsibility, if any, of the victors towards the vanquished, and therein the rules of engagement between parties during a war and thereafter. The second case involved an issue that emerged directly from one of the battles within the Anglo-Maratha wars, i.e. the capture and conquest of Pune. Here the issue to be decided was the exact limits of the rights to acquire the prize. More specifically, since the prize was linked to war, the question to be decided concerned the moment when the right to take the prize was to have ceased, which in turn involved the question of how one was to discern the end of war.

[In the second case] Ammerchund, executor of Narrabo Outia, against the United Company and the Company officers Elphinstone and Robertson in the Supreme Court of Bombay, a case that was later heard on appeal by the King in Council (privy council). The Supreme Court of Bombay heard the case for 22 days, examining witnesses and evidence from both sides. From this, the following facts were inferred by the court. On 17 July 1818, Lieutenant Robertson got his men to bring Narrabo Outia from his home in Pune, and had his men search Outia’s house. Robertson had been appointed provisional Collector and Magistrate of Pune and the adjacent country in February 1817, a position that was delegated to him by Elphinstone who was himself appointed as Commissioner in December 1817 in the aftermath of the conquest of Pune which had just taken place in November 1817. Narrabo Outia was an important official in the Peshwa administration and held the position of treasurer. Robertson was in charge of civil and criminal matters, and his men confiscated 28 bags of gold mohurs and venetians (forms of currency) which were found in Outia’s house. While Outia was detained under duress, along with his gomastha, Robertson claimed that the money found in the house was the Peshwa’s money. Outia and his gomashta were released only after close to four months, at the end of which the venetians were given to Robertson. While they were being detained, Robertson was approached by the prize agent about the money that he had found in Outia’s house.

Robertson in his response appeared to be uncertain as to whether the confiscated money could be characterised as a prize or not. While Outia, under detention, had written in his own hand that the money was the Peshwa’s, the judges of the Supreme Court did not consider this statement as having any value, since they inferred from the facts of the case that it was extracted under conditions of duress.

The properties seized from Outia were to be characterised as prizes, according to the defendants, because this was the same money that Outia had brought with him to his house in Pune from the fort of Rygheur where he had surrendered to the Company’s forces. Thus, the defendants claimed, Outia, on surrender, had broken the terms of the capitulation and the treaty then entered into by fleeing the fortress and reaching Pune with the money of the Peshwa. That it was the Peshwa’s money meant that it could be treated as the enemy’s property and prize money; as the proceeds of war, it was a rightful and lawful acquisition. In one sense, the defendants argued, that since the state of war did not end by July 1818 even though the Peshwa had surrendered in June, the seizure from Outia’s house constituted an act undertaken in the course of war. This argument was justified because notwithstanding the surrender at Pune by the Peshwa, hostilities still existed in the countryside, and Outia’s money, seized in Pune, was to be understood as enemy property.

These assets included treasure (gold coins, jewels, shawls and property) from the fort of Rygheur which had been taken by Colonel Prother after the capture of the fort; the treasure confiscated in Pune had five bags of venetians which were subsequently taken by Robertson. In the course of the proceedings, the claims regarding the assets confiscated at Rygheur were given up. The value of the entire confiscated properties calculated with interest amounted to 36,56,00,07 rupees. In response, the Company as well as Elphinstone and Robertson argued on the principle that the properties seized were lawful prizes by right of war and conquest. This was an issue as matters of war and prize directly concerned His Majesty, and the Supreme Court of Bombay had no proper jurisdiction over these.

[On appeal, in of the Privy Council] In the final judgment Lord Tenterdon, the judge, agreed with the solicitor general. He stated that “hostile seizure” was made, “if not flagrante” then “nondumcessanto bello” with regard to time, place and person. This meant that the municipal court had no jurisdiction and its decision was therefore overturned, and any appeal only lay with the government. While this was the decision of Lord Tenterdon, in the course of the arguments he made another fundamental point that is germane to the set of issues being discussed. The lawyers of Outia argued that the property entrusted to Outia was the private property of the Peshwa and therefore not subject to seizure as a prize, the war having come to a close a while ago.

In response, Tenterdon stated as a matter of fact that in the case of an “absolute sovereign”, one could not make a distinction between private and public property. While public property meant the property of the state, “in the property of the absolute sovereign, who may dispose of everything at any time, and in any way he pleases, is there any distinction”. This implies that not only is the private property of the absolute sovereign “public”, but also that which is public or any individual’s (private) property can also be termed as in fact his own (public) property. It would thus render all property that exists under the absolutist sovereign public property in fact and therefore prize.

On the other hand, accepting the “fact” of war without providing any sign that might indicate its cessation or peace, the territories of India are once again defined as a state of war. Hence the question as to whether a (military) officer could at any time seize anyone’s property would have to be answered in the affirmative.

Excerpted with permission from The King’s Plunder, The King’s Bodies: Prize Laws, the British Empire and the Modern Legal Order, Rahul Govind, Tulika Books.