Abstract
Writing to a friend in London in 1773, the young John Shore articulated his confident ability to decide property disputes in Bengal. ‘Though you will judge this more properly the province of an able lawyer’, the 22 year-old suggested,
a tolerable knowledge of the language, and the being somewhat conversant with the religious and judicial customs of the natives (which are never infringed in our decisions) are sufficient qualifications for exercising the business.1
At the time British officials had produced no written texts about Indian law, nor had the Company’s regulations been transcribed in an orderly form. As the last chapter showed, even in the early 1770s Shore articulated his anxious and unhomely relationship with India in letters home. But these sentiments don’t seem to have affected his attitude towards his public responsibilities. The imperial crises of the early 1780s made the tone of Shore’s later discussion of his official duties anxious as well. But in 1773 he wasn’t concerned about administering justice without a body of textual rules.
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Notes
John Shore to Bury Hutchinson, 20 October 1773, Charles John Shore Teignmouth, Memoir of the Life and Correspondence of John, Lord Teignmouth (London, 1843), I, p. 49.
Daniel J. Hulsebosch, ‘Writs to Rights. “Navigability” and the Transformation of the Common Law in the Nineteenth Century’, Cardozo Law Review 23, 3 (2002), p. 1053; also
Michael Lobban, The Common Law and English Jurisprudence, 1760–1850 (Oxford, 1991).
James Mill, The History of British India (London, 1826) V, p. 141. See Chapter 6 below for a more detailed discussion of this passage.
Richard W. Lariviere, ‘Justices and Panditas: Some Ironies in Contemporary Readings of the Hindu Legal Past’, Journal of Asian Studies 48, 4 (1989), p. 759.
‘Plan for the Administration of Justice’ (1771), G.W. Forrest, Selections from the State Papers of the Governors-General of India: Warren Hastings (Oxford, 1910), II, p. 290;
G.R. Gleig, Memoirs of the Life of the Right Hon. Warren Hastings (London, 1841), pp. 399–404.
For accounts of these debates, see J.D.M. Derrett, Religion, Law and the State in India (London, 1968);
P.J. Marshall, British Discovery of Hinduism in the Eighteenth Century (Cambridge, 1970), pp. 9–11;
Werner Menski, Hindu Law. Beyond Tradition and Modernity (New Delhi, 2003);
Rosane Rocher, Orientalism, Poetry, and the Millennium: The Checkered Life of Nathaniel Brassey Halhed, 1751–1830 (Delhi, 1983). For a discussion of the relationship between theology and nationality in Britain, see
Colin Kidd, British Identities Before Nationalism. Ethnicity and Nationhood in the Atlantic World, 1600–1800 (Cambridge University Press, 1999).
Jones to Cornwallis, 19 March 1788, Garland Cannon (ed.), The Letters of William Jones (Oxford, 1970) II, p. 795.
T.E. Colebrooke (ed.), Miscellaneous Essays [of H.T. Colebrooke], with Life of the Author (London, 1873), p. 12.
H.T. Colebrooke (ed.), A Digest of Hindu Law on Contracts and Successions, with a Commentary (Calcutta, 1798).
Rosane Rocher, ‘British Orientalism in the Eighteenth Century: The Dialectics of Knowledge and Government’ in Carol Breckenbridge et al. (eds), Orientalism and the Postcolonial Predicament (Philadelphia, 1993);
Rosane Rocher, ‘Weaving Knowledge: William Jones and the Pandits’ in Garland Cannon et al. (eds), Objects of Inquiry: The Life, Contribution and Influence of Sir William Jones (1746–1794) (New York, 1995), pp. 63–70;
Ludo Rocher, Jimutavahana’s Dayabhaga. The Hindu Law of Inheritance in Bengal (New York, NY, 2002).
H.T. Colebrooke (ed.), A Digest of Hindu Law on Contracts and Successions, with a Commentary (London, 1801), III, p. 276. Colebrooke drew a similar distinction elsewhere –for example, in commenting on Jagannatha’s discussion of the ceremonies performed after death, he notes the difference between mithila and gaudiya practice, where Jagannatha had identified none. Colebrooke (ed.), A Digest of Hindu Law on Contracts and Successions, with a Commentary, III, p. 460.
David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge, 1989), pp. 113–15;
James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill, NC, 1992), pp. I, 91–9, 242–9.
H.T. Colebrooke (ed.), Two Treatises on the Hindu Law of Inheritance (Calcutta, 1810), p. v.
Pandurang Vaman Kane, History of Dharmasastra: Ancient and Medieval Religious and Civil Law in India (Poona, 1968), III, pp. 304–7.
Krishna Kamal Bhattacharyya, The Law Relating to the Joint Hindu Family (Calcutta, 1885).
S. Chandrasekhar, ‘The Hindu Joint Family’, Social Forces 21, 3 (1943), p. 327.
Alexander Fraser Tytler, Considerations on the Present Political State of India (London, 1815), II, p. 198. Elphinstone to Edward Strachey, 3 September 1820, Mss Eur F128/166; ‘Minute of Governor of Bombay’, July 1823 in
Thomas Edward Colebrooke, Life of the Honourable Mountstuart Elphinstone (London, 1884), II, p. 115.
David Kopf, British Orientalism and the Bengal Renaissance: The Dynamics of Indian Modernization 1773–1835 (Berkeley, 1969).
Bernard S. Cohn, ‘Anthropological Notes on Law and Disputes in India’, American Anthropologist 67, 6 (1965), pp. 111–12; a similar statement can be found in
Bernard S. Cohn, ‘Law and the State in Colonial India’ in Colonialism and Its Forms of Knowledge (Princeton, NJ, 1996), p. 69.
Michael S. Dodson, Orientalism, Empire and National Culture. India, 1770–1880 (Basingstoke, 2007), p. 39.
Ross Harrison, Bentham (London, 1983);
Gerald J. Postema, Bentham and the Common Law Tradition (Oxford, 1986).
William Hay MacNaghten, Principles and Precedents of Hindu Law (Calcutta, 1828), pp. i, v.
William Hay MacNaghten, Reports of Cases Determined in the Court of Sudder Dewanny Adawlut (Calcutta, 1827), ‘Advertisement’.
Rupert Cross and J.W. Harris, Precedent in English Law (Oxford, 1991), pp. 3–10.
Lobban, Common Law, pp. 258–9; John James Park, A Contre-Projet to the Humphreysian Code (London, 1828).
John Cochrane, A Defence of the Daya-Bhaga (London, 1872), pp. 5–35.
Herbert Cowell, The Hindu Law, Being a Treatise on the Law Administered Exclusively to Hindus in the British Courts in India (Calcutta, 1870–1871);
John D. Mayne, A Treatise on Hindu Law and Usage (Madras, 1878);
H.D. Cornish, A Short Manual of Hindu Law (London, 1937).
For the new Bengali interest in texts such as the Dayabhaga and Mitaksara, see Jogendra Nath Bhattacharya, A Commentary on the Hindu Law of Inheritance (Calcutta, 1885).
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© 2008 Jon E. Wilson
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Wilson, J.E. (2008). Colonial Indecision and the Origins of the Hindu Joint Family. In: The Domination of Strangers. Cambridge Imperial and Post-Colonial Studies Series. Palgrave Macmillan, London. https://doi.org/10.1057/9780230584396_4
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