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Legal Pluralism and the English East India Company in the Straits of Malacca during the Early Nineteenth Century

Published online by Cambridge University Press:  28 September 2015

Nurfadzilah Yahaya
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Extract

During the early nineteenth century, the English East India Company (EIC) was in a state of transition in Penang, an island in the Straits of Malacca off the coast of the Malay Peninsula. Although the EIC had established strong ties with merchants based in Penang, they had failed to convince the EIC government in Bengal to invest them with more legal powers. As a result, they could not firmly extend formal jurisdiction over the region. The Anglo-Dutch Treaty (also known as the Treaty of London) that officially cemented EIC legal authority over the Straits of Malacca, was not signed until 1824, bringing the three Straits Settlements of Penang, Malacca, and Singapore under EIC rule officially in 1826. Prior to that, the EIC imposed their ideas of legitimacy on the region via other means, mainly through the co-optation of local individuals of all origins who were identified as politically and economically influential, by granting them EIC military protection, and ease of sailing under English flags. Because co-opted influential individuals could still be a threat to EIC authority in the region, EIC company officials eradicated competing loci of authority by discrediting them in courtroom trials in which they were treated as private individuals. All clients in EIC courts including royal personages in the region were treated like colonial subjects subject to English Common Law. By focusing on a series of trials involving a prominent merchant named Syed Hussain Aideed from 1816 to 1821, this article traces how EIC legal authority became pervasive at the eastern end of the Indian Ocean by the early nineteenth century without actual territorial conquest.

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Law and History Review , Volume 33 , Issue 4 , November 2015 , pp. 945 - 964
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Copyright © the American Society for Legal History, Inc. 2015 

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References

1. For more on pervasive legality without corresponding territorial conquest, see Esmeir, Samera, “On the Coloniality of Modern Law,” Critical Analysis of Law 2 (2015): 19–41Google Scholar.

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4. Historian Lauren Benton proposes this shift in perspective for a more nuanced approach to legal history, which is more sensitive to jurisdictional fluidity. Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002). Also see Lauren Benton and Richard J. Ross, “Empires and Legal Pluralism- Jurisdiction, Sovereignty, and Political Imagination in the Early Modern World,” in Lauren Benton and Richard J. Ross, eds. Legal Pluralism and Empires, 1500–1850 (New York: New York University Press, 2013), 1–17.

5. Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge: Cambridge University Press, 2010).

6. Nicholas Dirks, The Hollow Crown: The Ethnohistory of an Indian Kingdom (New York: Cambridge University Press, 1987). David Cannadine argues that the royal monarchy remained the default apex of society well into the twentieth century. David Cannadine, Ornamentalism: How the British Saw their Empire (Oxford: Oxford University Press, 2001).

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12. A legal system is pluralistic in the juristic sense when the sovereign commands different bodies of law for different groups of the population varying by ethnicity, religion, nationality, or geography, and when the parallel legal regimes are all dependent on the state legal system. Merry, Sally E., “Legal Pluralism,” Law and Society Review 22 (1988): 871CrossRefGoogle Scholar.

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14. See Nordin Hussin, Trade and Society in the Straits of Melaka: Dutch Melaka and English Penang (Copenhagen: NIAS Press, 2007); Rollin Bonney, Kedah, 1771–1821: The Search for Security and Independence (Kuala Lumpur: Oxford University Press, 1971); and Lee Kam Hing, The Sultanate of Aceh: Relations with the British, 1760–1824 (Singapore: Oxford University Press, 1995).

15. The VOC made its first foray into Banten in West Java in the Dutch East Indies in 1603. Although VOC authorities continued to maintain a large presence in the region, their profits had declined by the end of the eighteenth century. For more on the Dutch monopoly in the region, see Dianne Lewis, Jan Compagnie in the Straits Of Malacca 1641–1795 (Athens: Ohio University Press, 1995), 114–21; and John Bastin, The British in West Sumatra 1685–1825 (Kuala Lumpur: University of Malaya Press, 1965).

16. For more on the bureaucratic administration of Fort Marlborough during the seventeent century, see Wilson, Kathleen, “Rethinking the Colonial State: Family, Gender, and Governmentality in Eighteenth-Century British Frontiers” The American Historical Review 16 (2011): 1294–322CrossRefGoogle Scholar.

17. Several attempts were made to establish an EIC settlement in 1762 and 1763. Bastin, The British in West Sumatra, 2.

18. After the defeat of a nawab's army in the Battle of Plassey in 1757, the state of Bengal quickly fell into EIC hands and became the launching pad for further territorial expansion farther east. Robert Travers, Ideology and Empire in Eighteenth-Century India, (New York: Cambridge University Press, 2007), 3–5. Country trade was frequently intertwined with the formal trade of the EIC. Emily Erikson, Between Monopoly and Free Trade—The English East India Company, 1600–1757 (Princeton: Princeton University Press, 2014), 169, 173; and Erikson, Emily and Bearman, Peter, “Malfeasance and the Foundations for Global Trade: The Structure of English Trade in the East Indies, 1601–1833,” American Journal of Sociology 112 (2006): 195–230CrossRefGoogle Scholar.

19. “Proclamation of Francis Light,” Journal of Indian Archipelago (1850): 629Google Scholar, British Library (hereafter BL) Add. Ms. 45271/f.10, Letter 1 – Raja Abdullah Ibni Muazzam Shah, Sultan of Kedah to Francis Light of Penang, May 24, 1792, BL Add. Ms. 45271/f.12, Letter 5 – Raja Abdullah Ibni Muazzam Shah, Sultan of Kedah to Francis Light of Penang, March 30, 1793. Kedah was actually a tributary state of Siam at this point, although it acted as an independent sovereign in signing a series of treaties with Francis Light. Roland Braddell, The Law of the Straits Settlements (Kuala Lumpur: Oxford University Press, 1982), 3.

20. Ready to defend Penang, Francis Light himself arrived with 100 untrained marines, 15 artillerymen, 30 lascars, and 14 civilians. Penang Past and Present, 1786–1963 (Penang: City Council, 1966), 1; Lim Chong Keat, Penang Views 1770–1860 (Singapore: Summer Times Publishing, 1986), 18; and Lennox Algernon Mills, British Malaya 1824–67 (Kuala Lumpur: Oxford University Press, 1966), 26.

21. L. A. Mills, British Malaya 1824–67 (Kuala Lumpur: Oxford University Press, 1966), 40.

22. India Office Records, London, (hereafter IOR) G/34/3, Governors in Council to Francis Light, November 16, 1787.

23. Travers, Ideology and Empire in Eighteenth-Century India, 207–49.

24. Ibid., 231–33.

25. Webster, Anthony, “The Role of Robert Farquhar in Penang 1804–1805,” Journal of Imperial and Commonwealth History 23 (1995): 5Google Scholar.

26. Kennedy Gordon Tregonning, The British in Malaya: The First Forty Years (Tuscon: University of Arizona Press), 42.

27. It was only in 1799 that the EIC government in Bengal recognized the value of Penang, after attempts to establish a base in the Andaman islands were finally abandoned in 1796, and after an expedition to Manila was successfully outfitted in Penang in 1797. Lee, The Sultanate of Aceh, 84; L. A. Mills, British Malaya 1824–67 (Kuala Lumpur: Oxford University Press, 1966), 26–29.

28. Fatimah & Ors. V. D. Logan & Ors. [1871] Kyshe’s Reports Volume 1 (Civil Cases).

29. The government in Bengal did not possess the power to establish British courts anyhow, as this was the sole prerogative of the British crown. The 1773 Regulating Act (also known as the East India Company Act of 1773) states that the acquisition of sovereignty by the subjects of the crown is on behalf of the crown and not in its own right. Tregonning, The British in Malaya, 46–47.

30. In her study of the Ottoman Empire in the eighteenth century, Karen Barkey defined ‘regional governance regimes” as networks of large patriarchal families who developed their resources and influence through multiple state and non-state activities and positions, and extended their networks to incorporate clients. In both their local rule and in their understanding of their legitimacy, they mimicked the ruling household of the Sultan. Karen Barkey, Empire of Difference: The Ottomans in Comparative Perspective (Cambridge: Cambridge University Press, 2008), 243.

31. Phillip J. Stern, The Company-State: Corporate Sovereignty and The Early Modern Origins of the British Empire in India (New York: Oxford University Press, 2011).

32. Talal Asad, “Conscripts of Western Civilization,” in Dialectical Anthropology: Essays in Honor of Stanley Diamond, eds. Christine W. Gailey and Stanley Diamond (Gainesville: University of Florida Press, 1992), 335, cited in Esmeir, Samera, “On the Coloniality of Modern Law” Critical Analysis of Law 2 (2015): 19–41Google Scholar.

33. Webster, Anthony, “The Role of Robert Farquhar in Penang 1804–1805,” Journal of Imperial and Commonwealth History 23 (1995): 1–26CrossRefGoogle Scholar.

34. The charter came partly in response to a request by the secretary to the Government of Penang to remove John Dickens from his position because he was a difficult character to work with, further evidence that executive government rarely saw eye to eye with the judicial branch. Penang Past and Present, 1786–1963 (Penang: City Council, 1966), 9–10.

35. This was a huge disadvantage, considering that piracy was rampant in the Straits of Malacca. Common Law covered jurisdiction out at sea but only partially, and certainly not on the high seas.

36. His full name and title was “Syed Sheriff Tunkoo Syed Hussain Ebinee Mewhum, Mewhabib Abdulraman, Mawladid Baluwy.” IOR/G/34/59, Statement by Syed Mohamed, sworn October 30, 1816 (Fort Cornwallis Court Proceedings [hereafter FCCP] November 14, 1816). Translated by Anthony Dragon; and IOR/G/34/50, William Petrie, William Phillips, and John James Erskine, Fort Cornwallis, Prince of Wales Island to Fort William, August 21, 1815 (FCCP August 24, 1815).

37. IOR/G/34/57, petition of Nacoda Pakier, October 25, 1816 (FCCP October 26,1816).

38. IOR/G/34/59, statement by Syed Mohamed sworn October 30, 1816 (FCCP November 14, 1816). In 1816, Syed Hussain stated that he had been staying in the island of 26 years, which means that he might have arrived in 1790 instead of 1789. Syed Hussain might have calculated the number of years according to the Muslim calendar. IOR/G/34/57, translation of a petition from Syed Hussain Aideed to William E. Phillips, Governor of Pulo Penang, October 31, 1816 (FCCP November 14, 1816). Translated by Walter Sewell Cracroft.

39. Winstedt, Richard Olaf, “The Hadramaut Saiyids of Perak and Siak,” Journal of the Straits Branch of the Royal Asiatic Society 79 (1918) 49–54Google Scholar. For more on the Arab diaspora in the Indian Ocean, see Engseng Ho, The Graves of Tarim: Genealogy and Mobility Across the Indian Ocean (Berkeley: University of California Press, 2006).

40. Initially, Francis Light regarded Arabs as a separate community from local Malays, because they were “unwilling to yield to any authority” and enjoyed particular privileges from the Malays. Francis Light to Walter Hamilton, January 25, 1794, in Marcus Langdon, Penang: The Fourth Presidency of India, 1805–1830 (Penang: Areca Books, 2013), 197–201.

41. The agreement or treaty sent by Syed Hussain was written in a neat, refined, and careful hand. It was, however, devoid of the numerous compliments found in his later letters to Francis Light and his successors. Also, the letter lacks a decorative heading, which adorned most letters sent to Francis Light from Malay rulers and merchants in the region. The letter was also missing a seal, or a “chop,” which would indicate the sender's identity. It was clearly, therefore, not intended to be an ordinary letter from one official to another. The treaty refers to four distinct matters enumerated in a logical and matter-of-fact manner. SOAS University of London Library MS 40320/11, f. 22, Syed Hussain Aideed to Dato Penggawa Muda and Francis Light, Rabiulakhir 1206 (Anno hegirae) (November or December 1791).

42. He consistently referred to the superintendent as “Tuan Raja Gurnadur,” a term that meant “governor.” In Re Trebeck. Ishmahel Laxamana v. East India Company [1829] Kyshe's Reports Volume 1 (Civil Cases).

43. See Harold P. Clodd, Malaya's First British Pioneer – The Life of Francis Light (London: Luzac & Company, 1948), 119–20.

44. For more on specific laws and its limits in the Egyptian context, see Esmeir, Samera, “On the Coloniality of Modern Law,” Critical Analysis of Law 2 (2015): 19–41Google Scholar.

45. Lee, The Sultanate of Aceh, 197, 205.

46. Clodd, Malaya's First British Pioneer, 119. IOR/G/34/59, Exhibit no. 6, translation of a letter from Tuan Syed Hussain to Mahomed Putay, July 9, 1816 (FCCP November14, 1816), translated by Anthony Dragon; BL Mss. Eur. D.742/1, ff. 7–8, Syed Hussain Aideed to Thomas Stamford Raffles, November 24, 1810; and BL Mss. Eur. D.742/1, f.10 Syed Hussain Aideed to Thomas Stamford Raffles December 1, 1810. John Anderson, Aceh and the Ports on the North and East Coasts of Sumatra (London: Wm. H. Allen & Co., 1840), 39.

47. IOR/G/34/60, minute by the Governor William Phillips, February 13, 1817 (FCCP February 20, 1817).

48. IOR/G/34/59, Appendix C: Petition of Naquedah Tuckaradeen, Bombay merchant, September 9, 1816.

49. IOR/G/34/59, Appendix C: Petition of Coonjee Hussain, Malabar merchant, September 9, 1816.

50. Nicholas B. Dennys, A Descriptive Dictionary of British Malaya (London: London and China Telegraph Office, 1894), 144.

51. Haji Abdul Rahim told the plaintiff explicitly that he should not worry about conducting business in Aceh because his master, the defendant Syed Hussain Aideed, was a wealthy man, and that he would pay for all their dealings. For his trouble, Haji Abdul Rahim was allowed 5% of all goods by Syed Hussain. IOR/G/34/59, statement of Syed Mohamed, November 7, 1816 (FCCP November 14, 1816), translated by Anthony Dragon; and IOR/G/34/59, sworn statement of Munnuckjee, sworn in open court, November 5, 1816 (FCCP November 14, 1816), translated by Anthony Dragon.

52. Rulers in the Malay world actively participated in trade. Wealth was a means of gaining political influence. Milner, Kerajaan, 27.

53. Anderson, Aceh, 222.

54. SOAS MS 40320/6, king of Aceh to Francis Light, 1818.

55. A monopoly, for example, was granted to John Dunbar for betel nuts, but most Penang merchants were not so fortunate. Monopolies were not usually instituted by rulers in the Malay world except under special circumstances. Ibid., 18.

56. The ship was owned by a man in Nagore. IOR/G/34/40, deposition of Coomba Toomby and Noor Mahomed, July 24, 1813 (August 24, 1813). This incident caused a rift between the Chulia merchant community and the Acehnese king. Lee, The Sultanate of Aceh, 198.

57. IOR/G/34/48, king of Aceh to governor of Penang, January 4, 1815 (FCCP January11, 1815).

58. IOR/G/34/44, memorandum from the merchants, Sayd Mohsen, J. Baird, N. Bacon, Tho. Halyburton, Oglivie Hutton (?), Jenol Abdeen, Tho. Perkins, How. Revdey or Reseley, Lueas, I. or J. Jackson, R. Inadden, A.B. Bane, Adjee Cassim, Anthony Dragon, Sheck Sah, Chee Gee Ho, Che Ang Ho, Che Inang, Kadir Medeen, Syed Harrows, Faheer Momet, A. McIntyre, Johanis Simon, Kewan Marhall, G. Anachell, Mahomed Abdulla, and Caseem Momet to the governor-general of Penang, July 23, 1814 (FCCP July 30, 1814).

59. He claimed to have descended from a former king of Aceh who ruled from 1703 to 1726. Nordin Hussin, Trade and Society in the Straits of Melaka: Dutch Melaka and English Penang (Copenhagen: NIAS Press, 2007), 77.

60. He also rejected an embassy from British India, and refused to receive the letter from the governor-general of Bengal. IOR/G/34/181, government of Penang to Court of Directors, December 13, 1815.

61. Some of the sepoys were supplied by opium merchant John Palmer. Oxford Bodleian Library MS Eng. Lett, c. 88, p. 148, John Palmer, Calcutta to Syed Hussain, Penang, April 17, 1820. IOR/G/34/59, Translation of exhibit no. 4, a letter from Haji Abdul Rahim Shabundar at Aceh to Toonkoo Syed Hussain, undated. (FCCP November 14, 1816); and IOR/G/34/59, Exhibit no. 7, translation of a Malayan paper from Syed Hussain to Syed Mohamed Potee, February 1816 (FCCP November 14, 1816). Translated by Anthony Dragon. IOR/G/34/59, sworn statement by Syed Sallee, sworn in open court November 5, 1816, translated by Anthony Dragon.

62. IOR/G/34/59, sworn statement of Syed Mohamed, translated by Anthony Dragon, October 30, 1816.

63. Charles E. Wurtzburg, Raffles and the Eastern Isles, (London: Hodder and Stoughton, 1954), 49, 132.

64. John James Erskine almost exclusively referred to Sayful Alam as “the Syed's son.” For example, see IOR/G/34/56, minute by John James Erskine, undated (FCCP September 21, 1816).

65. Sultan Seyf Al-Alam to Governor Petrie of Penang. September 21, 1816 (FCCP September 21, 1816).

66. IOR/G/34/56, minute by William E. Phillips, September 20, 1816 (FCCP September 21, 1816).

67. IOR/G/34/50, Translation of a letter from Tooankoo Syed Husayn to Captain J. MacInnes, August 21, 1815 (August 24, 1815). Translated by John MacInnes. Visitation of tombs of family members and saints was a common phenomenon in the Indian Ocean. See Engseng Ho, The Graves of Tarim: Genealogy and Mobility Across the Indian Ocean (Berkeley: University of California Press, 2006).

68. IOR/G/34/57, Translation of a petition from Syed Hussain Aideed to William E. Phillips, Governor of Pulo Penang, October 31, 1816 (FCCP November 14, 1816). Translated by W.J. Cracroft.

69. Petrie was held responsible by Lord Stanley for contributing to “anarchy on land, piracy on sea and the stoppage of all trade.” “The Native States,” Straits Times, January 8, 1876, 1.

70. Petrie's response was an optimistic, resounding ‘yes,’ a huge contrast to his colleagues William Philips and John James Erskine, Assistant Superintendent of Marine who advised caution against involvement in Achenese affairs in their detailed minutes. IOR/G/34/44, minutes of Mr. Petrie, August 9, 1814 (FCCP August 10, 1814).

71. The fort was built by Francis Light in the northern part of the island. IOR/G/34/59, petition of Coonjee Hussain, September 9, 1816 (FCCP November 14, 1816); IOR/G/34/59, petition of Naquedah Tuckaradeen, September 14, 1816 (FCCP November 14, 1816).

72. IOR/G/35/59, petition of Syed Hussain Aideed, FCCP October 1, 1816.

73. Ibid.

74. The junk had sailed from Penang to Aceh, and was supposed to sail onward to Padang. IOR/G/34/66, petition of Che Toah and Che Leong, July 28, 1818 (FCCP August 6, 1818). The term “Chinese” could refer to “any native of China or its dependencies, or of any island in the China Seas, or any person born of Chinese parents.” Straits Government Gazette, February 5, 1858, 41.

75. IOR/G/34/57, Richard Caunter, Superintendent of Police, to William A. Clubley, Secretary to Government, November 12, 1816 (FCCP November 14, 1816).

76. IOR/G/34/57, Richard Caunter, Superintendent of Police, to W.A. Clubley, Secretary to Government, November 12, 1816 (FCCP November 14, 1816); Charles B. Buckley, An Anecdotal History of Old Singapore, Volume 1 (Singapore: Fraser and Neave, 1902), 229; Lauren Benton, A Search for Sovereignty, 137, 158.

77. They claimed that Syed Hussain had been afflicted with a bowel complaint. IOR/G/34/57, translation of a petition addressed to governor in council by Arab, Malabar, and Malay inhabitants of Penang, November 9, 1816 (FCCP November 14, 1816). Translated by W.J. Cracroft.

78. Palmer not only referred to court proceedings as “atrocious” but also believed one of the court's members was “unjust and oppressive.” Oxford Bodleian Library, Ms. Eng. Lett 85, p. 96. John Palmer, Calcutta to Captain Coombs, Penang, December 9, 1816.

79. Ibid.

80. IOR/G/34/48, King of Acheen to Governor William Petrie, Signed by Geo. Thamhorst, 4 January 1815 (FCCP 11 January 1815).

81. This phenomenon developed in India too from the mid-1780s onwards according to Travers, Ideology and Empire in Eighteenth-Century India, 232–233. Outside of the mercantile sector on the island however, European presence actually remained constantly tiny which meant that their representation was, in fact, disproportionate. Penang Past and Present, 10.

82. IOR/G/34/57, William Phillips and John James Erskine to Edmond Stanley, November 9, 1816 (FCCP November 14, 1816).

83. IOR/G/34/57, translation of a letter from Syed Hussain, son of Abdulrahim Aideed, to the governor, November 12, 1816 (FCCP November 14, 1816).

84. IOR/G/34/57, Edmond Stanley to William Phillips, Governor in Council of Prince of Wales Island, undated (FCCP November 14, 1816); to have government policy thwarted by a judicial court, especially with regard to colonial subjects, was generally felt to be humiliating to the EIC government. John Turnbull Thomson, Some Glimpses to Life in the Far East (London: Richardson and Company, 1865), 188.

85. His considerable property later helped to finance educational institutions in the Straits Settlements, such as the Singapore Institution and Penang Free School. The executors of his will were mortified, because the money was supposed to be for prayers and alms, but the Recorder of the Court, Sir William Norris disagreed. Even in death, judges did not see eye to eye with Syed Hussain. Buckley, An Anecdotal History, 714.

86. Whereas imports from Aceh in the year 1813–1814 were valued at $233,935 Spanish Dollars, the following year the amount was down to $150,602 Spanish Dollars. The value of exports suffered more, where the marked decline had begun a year earlier. Exports in 1813–1814 decreased to $165,579 Spanish Dollars, down from $355,355 the previous year, and then further down to $154,801 Spanish Dollars the following year. IOR/G/34/181, Penang to Court of Directors, December 13, 1815; and Anderson, Aceh, 220–227.

87. Lee The Sultanate of Aceh, 231.

88. In March 1819, Stamford Raffles, who had earlier wanted to annex Aceh into an EIC settlement, eventually decided to depose Sayful Alam in 1819 under the auspices of the British government in a joint mission with Captain Monckton Coombs. In 1821, Sayful Alam was persuaded to return to Penang, but not without the promise of an annual pension by the EIC until his death, in exchange for relinquishment of all rights to the throne of Aceh. Buckley, An Anecdotal History, 714.

89. IOR/G/34/79, translation of a letter from the governor in council to Syful Allum, May 30, 1821 (FCCP May 31, 1821).

90. Crimes of piracy could not be tried in EIC courts before 1836, although the Straits of Malacca was notoriously known as a site of piratical acts. “Preface,” Kyshe's Reports Volume 1 (Civil Cases). Historian Lauren Benton warned that the English campaign against piracy in the early eighteenth century should not be taken as representative of policies toward piracy in the long eighteenth century. Benton, Lauren, “Legal Spaces of Empire: Piracy and the Origins of Ocean Regionalism,” Comparative Studies in Society and History 47 (2005): 700–724CrossRefGoogle Scholar.

91. Nairne v. Ahmed Tajudin Bin Sultan Zain Noor Rashid, [Rajah Of Quedah] And Wan Ismail [1861] 1 Ky 145. For more on East India Company's negotiations with the ruler of Kedah over Penang, see R. Bonney, Kedah, 1771–1812: The Search for Security and Independence (Kuala Lumpur: Oxford University Press, 1971).