“Lost in Translation”: Extraterritoriality, Subjecthood, and Subjectivity in the Anglo–Yemeni Treaty of 1821

Abstract

In 1821, an expeditionary force of the Bombay Marine imposed an unequal treaty upon the imam of Sana‘a, sovereign of the Yemeni port of Mocha. Previous accounts, depicting the incident as a standard rehearsal of British gunboat diplomacy, have overlooked an important legal innovation enfolded in the treaty wherein the East India Company's claim for extraterritorial jurisdiction over British subjects in Mocha was expanded to include not only British European subjects of the Crown and certain native dependents of the factory, but also the entire Indian merchant population of the port. Bombay's claim stood on shaky ground, however, as the legal boundaries of British subjecthood in the Indian subcontinent were anything but clear, not least to colonial administrators themselves. Prosaically enough, the intervention was foiled by an inaccurate translation of the treaty from English to Arabic, demonstrating the extent to which Company officials were at the mercy of non-Western middlemen and translators who brokered between them and local rulers and administrators. A second line of inquiry in this article thus looks at the structural vulnerabilities of legal imperialism, reflecting upon the potential of contradictions and untranslatabilities between British-imperial and Arab-Islamic legal and epistemological assumptions in shaping the outcomes of the imperial encounter in the western Indian Ocean.

“Bheemjee is a treacherous and perfidious man,” an envoy from Mocha vehemently protested in Bombay. “At present he carries on much business and has many dealings within the Mocha territories and acts as Broker to nearly all those who frequent these parts; [but] when the duties on Brokerage are demanded from him, he declares that he is a servant of your government.”¹ The envoy was sent to Bombay in October 1821 by Amīr Fatḥulla, the daula (governor) of Mocha, to inveigh against the personal conduct of Bhimji Kalyanji, an affluent Gujarati merchant who served as the East India Company's principal broker in Mocha. More than a simple mercantile disputation, however, as the daula's appeal to British metropolitan authority suggests, Bhimji's claim to Company protection was embedded in a heated ongoing dispute about imperial jurisdiction and the right to exercise sovereignty in southwestern Arabia, fanning anxieties in Mocha, Sana‘a, and Istanbul about the looming threat of British “legal imperialism.”²

Commonly couched in claims of extraterritorial jurisdiction over its subjects, the imposition and enforcement of British legal authority, principles, and institutions in foreign territories played a significant role in the expansion of Britain's informal empire.³ Claims to protection based on ethnicity, religion, or shared moral values provided a basis on which to establish arrangements of layered sovereignty and legal pluralism, often evolving into “intrusive and intimate colonialisms,”⁴ which in turn allowed political and economic ends to be effected without recourse to territorial conquest.⁵ Indeed, as Callie Wilkinson has recently argued, no less significant than histories of colonial seizure and exploitation was the “nebulous” history of Britain's “empire of influence.”⁶

In the Indian Ocean, a battery of fortified coastal trading posts known as “factories” served as islands of domestic jurisdiction, allowing Europeans to trade while remaining insulated from unfamiliar and potentially unfavorable local legal systems.⁷ While Europeans in the domains of the Ottoman Empire enjoyed extraterritorial privileges based on blood lineage (jus sanguinis) or place of birth (jus soli), in the Indian Ocean factory context, the corporeal premise of the Capitulations was mapped onto a spatial logic whereby any European merchant trading in a foreign territory would fall under the jurisdiction of the nation whose factory they were operating in, regardless of their own nationality.⁸ By the mid-nineteenth century, however, events like the First Opium War (1839–42) and the Don Pacifico affair (1850) had vividly demonstrated that extraterritorial rights could be militarized and, when politically expedient, enforced at the barrel of a gunboat.⁹

In this evolving landscape, British Indian subjects—namely Gujarati Muslim, Hindu, and Parsi merchants and administrators—served as vital conduits carrying British law into “frontiers” of informal empire where ethnic Britons could not or would not operate.¹⁰ The politics of protection could be a double-edged sword, as when Indians “embarrassed” the British vis-à-vis local authorities, or appealed to the latter to evade British law.¹¹ Indians had good reasons to both assert and deny their ties to the British, moving within and across jurisdictions as it suited their interests.¹² As this suggests, the politics of protection were often barbed and contentious.¹³ In Zanzibar, for example, Britain struggled for more than three decades to impose its jurisdiction over a resistant Gujarati merchant community disinclined to forgo access to enslaved labor, until an act of parliament passed in 1876 put the matter to bed by formally making the subjects of Indian Princely States into British Indian subjects in East Africa.¹⁴ There was more than abolition at stake for Britain, as “the transformation of the Indians from an indigenised merchant class to an entrenched alien body through which [to] go for the economic jugular of the Omani state” facilitated the de facto subjugation of the Sultanate of Zanzibar, several decades before the formal institution of the East Africa Protectorate in 1895.¹⁵

While significant scholarship has been devoted to extraterritoriality in the western Indian Ocean, southwestern Arabia has not received much treatment in this literature, despite the region's deep and long-standing ties with India. The Mocha trade, crucial to financing Bombay's struggling treasury, was so thoroughly in the hands of Gujarati merchants that officials in India would have considered Viscount Valentia's 1805 remark that banias “nearly monopolise [Mocha's] trade” as mundane and obvious.¹⁶ Valentia had been sent by Bombay to southwestern Arabia with the objective of expanding British influence in this consequential commercial and strategic hub, but, like a previous mission dispatched by the Foreign Office in 1802, the Irish peer's efforts had come to nought.¹⁷ Consequently, it should come as little surprise that a decade after Valentia's failed expedition, Mocha, along with its entrenched Indian merchant communities, became an experimental site for the development of new typologies of British legal imperialism.

This article traces an early attempt at the extraterritorial penetration of southwestern Arabia. In the wake of an “outrageous attack” on the British factory in July 1817, an expeditionary force of the Bombay Marine was dispatched to blockade and bombard Mocha; subsequently, an unequal treaty was imposed upon Imam al-Mahdī ‘Abdullāh of Sana‘a, the sovereign of Mocha, restructuring commercial relations and jurisdictional boundaries in the port. Previous accounts have depicted the incident as a standard rehearsal of British gunboat diplomacy, overlooking an important legal innovation enfolded in the Anglo–Yemeni treaty wherein the Company claimed jurisdiction not only over Britons and other dependents of the factory, but also over the entire Gujarati merchant population of the port—a full two decades before similar claims would first be made in Zanzibar.¹⁸

Prosaically enough, however, Bombay's intervention was foiled by an inaccurate translation of the treaty from English to the Arabic. That something as seemingly banal as a document's translation was enough to throw a spanner in the works of the imperial legal apparatus brings into sharp relief the degree to which Company officials were at the mercy of non-Western middlemen—often drawn from the same groups and communities co-opted as instruments of legal imperialism—who brokered between them and local rulers and administrators.¹⁹ Indeed, as in the field of commerce, so too did cross-cultural political intercourse require native mediators to bridge epistemological gaps, rendering one set of values legible to another “so as to produce commensurability and allow for conversions to take place.”²⁰ A second line of inquiry in this article thus looks at the structural vulnerabilities of informal empire, reflecting without aiming to be definitive upon the potential of contradictions and untranslatabilities between British-imperial and Arab-Islamic legal and epistemological assumptions in shaping the outcomes of the imperial encounter in the western Indian Ocean.

Brokering Empire: Banias and the East India Company in Mocha

Situated at the mouth of the Bab al-Mandab Straits in the southern Red Sea, the port of Mocha (Arabic: al-Mukhā) rose to prominence in 1538 following the Ottoman conquest of Yemen, propped up as the empire's primary Red Sea foothold and a key administrative, commercial, and communications hub.²¹ The port continued to thrive under the Qāsimī imams of Sana‘a, who threw off the Ottoman yoke in the seventeenth century.²² A regional entrepôt of consequence, Indian Ocean merchants flocked to Mocha to participate in the trade of Arabian coffee, Indian textiles, and South and Southeast Asian spices, aromatics, medicinal products, and bulk metals.²³ English and Dutch trading establishments had been present in Mocha already by the seventeenth century, but it was only in the eighteenth century that the port became marked by the presence of settled Europeans, including the English, Dutch, and French East India companies.²⁴

Serving as the primary redistribution center for markets in southwestern Arabia as well as Abyssinia and the Horn of Africa, Mocha provided a key outlet for Indian and European manufactures in the Arabian Sea. In addition to the highland Yemeni coffee trade, the bulk of the merchandize bought and sold in Mocha was imported by the predominantly Bohra (Ismā‘īlī Muslim) merchants from the Gujarati port of Surat, whose mercantile fleet departed India every fall laden with foodstuffs, bulk metals, European manufactures, and textiles from Gujarat, of which only a small portion was consumed in Mocha itself, the rest being reexported to regional hubs such as Jeddah, Massawa, and Berbera on returns of skins and hides, incense, ivory, and bullion.²⁵

Consequently, throughout the early-modern period, Mocha was deeply imbricated in the colonial economy of western India. The port was indispensable for the financial viability of Bombay, as the Red Sea trade brought in large annual consignments of bullion which were then transmitted from Surat through native remittance networks. So complete was Bombay's reliance on Red Sea bullion that Company authorities provided armed convoy services to Gujarati merchant fleets in the transportation of bullion from Mocha to Surat.²⁶ By the middle of the eighteenth century, however, a protracted civil war in Yemen significantly reduced Mocha's trade, while the emergence of first cotton and later opium as lucrative export commodities to China relieved Bombay of its dependence on Mocha's diminishing markets.²⁷ By the end of the century, the decline of its interests in the region prompted the Company to significantly reduce its presence in the Red Sea.

In addition to the Surat merchants who traded seasonally with the port, a settled community of banias from Gujarat and Kachchh lived permanently in Mocha.²⁸ Bania merchants carried an extensive trade in export items, most notably in piece-goods, conducted through a system of cash advances funneled down a hierarchical chain of middlemen, extending from the productive inlands of western India to port cities throughout the western Indian Ocean. Bania shroffs, the region's most considerable purchasers of bullion and foreign coin, built up elaborate transregional networks, with credit in the form of hundis (a financial instrument similar to a bill of exchange) traveling through its sinews to finance oceanic trade ventures and remit its proceeds.²⁹ Bhimji Kalyanji's operations in Mocha are instructive here: his firm was known in Mocha by the appellation Bheemjee & Co., but the bania was in fact an agent of the prominent Bombay shroff Nanji Seskurn. Like other “portfolio capitalists,” that is, entrepreneurs who spread their investments into many areas, including banking and shipping as well as trade in a host of commodities, Seskurn did not travel himself but rather deployed a network of agents like Bhimji across the port cities of the Indian Ocean, from Mocha to Canton, who handled an extensive import/export trade and provided financial services to companies and private merchants to facilitate their trade.³⁰

As in other major ports in the Arabian Sea, banias like Bhimji ran the show in Mocha, handling all the land-based functions of the trade and its accounting through a monopoly over various commercial functions, including brokerage and banking.³¹ Barring coffee, all commercial transactions at the port were conducted exclusively in the Mocha dollar, a fiduciary coin of account devised by bania brokers whose value was fixed at 21% below the port's favored currency, the Spanish dollar, while the schedule for clearing accounts was regulated by the Gujarati monsoon-based nowruz calendar.³² Banias in Mocha provided an interface between the Indian Ocean and the burgeoning world economy, mediating sales of Yemeni coffee and Indian goods between an eclectic array of terrestrial merchants and maritime customers, including Arab, American, and European buyers. European East India companies employed brokers like Bhimji to conduct their affairs, inspect potential goods for sale, make bids and arrange delivery of purchased items, and lend capital for purchases upon bills to be repaid in India.³³

At the same time, being wealthy, foreign, and easily othered as “heathen,” banias were easy prey for rapacious daulas seeking to replenish their perennially pinched government coffers or to line their own pockets. Viscount Valentia observed the daula's habit of “squeezing money from the Banians,” employing a cruel repertoire of extortion mechanisms ranging from beatings to confining merchants in a room and fumigating them with sulfur until they complied with his demands.³⁴ Another European observer described banias as the “milk cows of the Arab government.”³⁵ The “duties” evaded by Bhimji according to the daula's envoy to Bombay referred to such ad hoc levies exacted on Gujarati brokers and merchants who were compelled “to contribute whatever sums may be annually required to meet the exigencies of the state.”³⁶ Bhimji had been compliant in the past, but had recently begun to refuse these impositions. Amīr Fatḥulla was inclined to make him comply “by harsh measures,” but upon the intercession of the British resident decided to take up the matter with Bombay.³⁷ The daula was furious that Bhimji should invoke British protection to shirk his charges. In fact, it was thought by some in Bombay that Amīr Fatḥulla and his counselors believed that Bhimji himself was “the very instrument” which occasioned Bombay to blockade and bombard Mocha the year before.³⁸

British Subjecthood and the Politics of Protection: The 1821 Anglo–Yemeni Treaty

A serious diplomatic incident had taken place 4 years prior involving, in the words of its hapless protagonist, “the grossest villainy and cowardice that ever were known perhaps in the annals of modern history.”³⁹ On October 10, 1817, in reprisal for an attempt to thwart an act of collusion between the nakhoda (captain) of a Arab-flagged vessel chartered to the Company and the incumbent daula, Ḥajjī Fātiḥ, Lieutenant Bartholomew Dominicetti of the Bombay Marine was brutalized by a mob of the daula's soldiers who stormed into the British factory, severely beat and bludgeoned him, and dragged him half-naked through the streets of Mocha to the daula's residence where he was further humiliated, spat on, and “saluted by the name of coffer [sic, kāfir] and dog.”⁴⁰ Nearly 3 years had elapsed in fruitless negotiations, but in August 1820, emboldened by the recent naval rout of the Gulf sheikhdoms and the signing of a “General Treaty” with its Arab rulers, Bombay dispatched Captain William Bruce, the Company's resident in Bushire, to demand indemnification and an apology from the imam for the indignities shown to the British flag at his port.⁴¹ Bruce was instructed to employ any means necessary to secure these objectives, but Bombay had no intention of simply reverting to the status quo ante upon satisfaction of its demands, determined instead to use the affair to restructure commercial and political relations in the region.

After having largely vacated the Red Sea in the late eighteenth century, the British had recast their eyes on the region following the French conquest of Egypt and prospective move on India in 1799. The affairs of the Government of India in the Arabian Sea were subordinated to an imperial geostrategic policy of employing British trade as leverage to compel local rulers in the Red Sea and Persian Gulf areas to align with British interests.⁴² Mocha emerged as a key site in the prospective Red Sea network, but successive missions dispatched by the Foreign Office and Bombay to extract trade concessions from the imam of Sana‘a had failed comprehensively to secure any advantage for Britain.⁴³ Although strategically Britain was left pleased with the conclusion of the Napoleonic Wars, which had left its navies unrivaled in the Red Sea, the factory in Mocha proved ineffective in projecting British might through commerce, largely due to the port's coffee trade having fallen into the hands of American merchants who enjoyed a favorable tariff schedule not extended to their British counterparts.⁴⁴ The attack on the factory presented Bombay with a window of opportunity and a convenient pretext to compel Imam al-Mahdī to sign a commercial treaty favorable to British interests, including a reduced 2.25% flat duty on all imports and exports, down from 3.5% and 7.5% levied on Britons and Gujaratis, respectively.

Forcing unequal commercial treaties upon foreign polities was by then an established British practice, but Bruce was sent to Mocha with more than just commercial imperialism on the agenda. Rather, Bruce's treaty was to stipulate that the imam recognize British legal custodianship not only over British European subjects of the Crown and certain native dependents of the factory, but also over the entire Indian community of Mocha. The assertion of extraterritorial jurisdiction over non-Britons was not new in itself: in the Ottoman context, subjects of the sultan recruited as dragomans (interpreters), warehousemen, brokers, and moneychangers had for centuries shared certain fiscal and juridical privileges afforded to their European employers⁴⁵; crucially, however, these privileges (berats) extended only to non-Muslim subjects of the sultan.⁴⁶ Bruce's treaty, in contrast, demanded jurisdiction over all Indians—from settled banias like Bhimji to the itinerant, predominantly Muslim merchants of Surat.

The novelty of the treaty can be gleaned by comparison with a treaty signed in southwestern Arabia 18 years prior. Following one of the aforementioned failed missions to the imam of Sana‘a, the Company's “Ambassador to Arabia,” Sir Home Popham, left Mocha in 1802 for neighboring Aden to strike terms of amity with the port's independent sultan.⁴⁷ As with Bruce's later treaty, Popham's objectives were to secure for British subjects in Aden a favorable tariff regime, assurances for personal safety, and jurisdiction for a British resident to oversee their legal affairs. In Popham's formulation, “British subjects” referred specifically to ethnic Britons and European subjects of the Crown, as implied by an article dedicated to securing their freedom to employ “a broker or interpreter [of] their own choice.” Moreover, British protection over “natives” was articulated as a form of patronage or sponsorship, requiring certificates issued in “either of the Presidencies in India” to be registered “in the office[s] of the Cadi and the British Resident.”⁴⁸

Popham's formulation, then, distinguished between two separate notions of subjecthood: a “natural,” ethnic subjecthood and an acquired (and, implicitly, impermanent) subjecthood contingent upon a declaration of association to be ratified by both Islamic (the qadi) and imperial (the resident) legal authorities. By 1820, however, the two-tiered approach was jettisoned: in listing the beneficiaries of “the protection of the British flag,” Bruce notes “all subjects of the British Government trading to Mokha, and particularly the merchants of Surat,” explicitly demarcating Indians as British subjects proper, doing away with contingent procedure such as registration or, for that matter, personal consent.⁴⁹ The unwavering confidence of Bruce's assertion, however, belies a far more nebulous legal reality, as the conceptual boundaries of British subjecthood in the Indian subcontinent were anything but clear, not least to colonial administrators themselves.⁵⁰

The ambiguity over the legal identity of Indians stemmed from the East India Company's own peculiar legal standing: the Company owed its constitutional status to the British Crown and Parliament, but as its legitimacy as a governing power was invested by the power of Mughal sovereignty, the determination of subjecthood—which presupposes the question of sovereignty—remained equivocal or, as Suparna Sengupta argues, kept deliberately vague by the Company-as-state.⁵¹ Judges in the Calcutta Supreme Court of Judicature wrangled over the legal status of European, Hindu, and Muslim residents,⁵² while the “uncertainty of colonial law” saw debates about the proper (and desired) interpretation of subjecthood as a legal category rage on even after the imposition of Crown rule and the dissolution of the Company in 1858.⁵³ Bruce's treaty thus stood on shaky ground as it sought to extend the scope of subjecthood—and, with it, the legal premise of extraterritoriality—to encompass not only ethnic nativity or personal prerogative but also a looser, novel construction one might term “mandated territorial affiliation.” The state of legal ambiguity in the subcontinent meant that Indians in Mocha were in effect to be made British subjects by imamic fiat rather than acknowledged as such—ironically reproducing the very process by which non-Muslim Indians were afforded subject status in Yemen under Islamic law.⁵⁴

Bombay instructed Bruce to stipulate a dual system of arbitration by which all internal disputes involving Britons and Gujaratis trading in Mocha would be adjudicated by the resident under British law. Even in arbitration of cases involving a subject of the imam, the treaty posited, British subjects would hold the right to trial by a mixed tribunal including the Company resident.⁵⁵ Owing to the Mocha government's habit of leaning heavily on the merchant community, the authority to represent Indians trading in the port would secure Britain unprecedented power to intervene in disputes potentially involving the highest echelons of Mocha's administration, up to and including the daula. Crucially, the treaty stipulated that all individuals employed by the Company, “from broker downwards,” were to come under the exclusive control of the resident who alone would possess the power of punishing them and redressing complaints against them, thus fully excising men like Bhimji Kalyanji from the juridical remit of the daula and qadi. If an earlier commercial imperialism was intended to foster dependence on Britain, legal imperialism in Arabia amounted to a direct challenge to the authority of local rulers.

Bruce arrived in Mocha in October 1820, where he was met by a delegation of the incumbent daula, Faqih Hassan, followed shortly by a representative from Sana‘a who assured Bruce that all demands would be acceded to. When it quickly became clear that the Sana‘a delegation was merely filibustering, a blockading squadron proceeded to bombard the town. After 2 weeks of shelling, a second representative from Sana‘a, Amīr Fatḥulla, conveyed Imam al-Mahdī's disavowal of the daula's conduct and tendered an unconditional surrender. On January 6, 1921, Ḥajjī Fātiḥ was delivered to Bruce who, to the surprise of the crowd present and not least to the erstwhile daula himself, proceeded to pardon him. A week later, Amīr Fatḥulla, officially instated as daula, produced a letter from al-Mahdī enclosing a firman reducing duties to 2.25%. Over the course of the next day, copies of Bruce's treaty were returned, signed, and sealed by the imam and the members of his council. Bruce returned to Bushire, and Lieutenant George Robson of the Bombay Marine was left in charge as temporary resident.⁵⁶

It quickly came to light, however, that there had been some major discrepancies between the wording of the English and Arabic versions of the treaty regarding the scope of its remit and the identity of its beneficiaries.⁵⁷ The reduced rates of duty to be levied on “the English and all their subjects,” for one, applied in the Arabic version to “the English Government [and] the English merchants” alone. The crux of incongruity lay however in the formulation of jurisdictional boundaries: the clause stipulating that “all differences among [British subjects] shall be decided by the Resident” was omitted, while the proposed dual system of arbitration was circumscribed in a peculiarly phrased Arabic translation stating that in any dispute concerning the people (jamā‘ah) of the resident and a subject of the imam, “a person may come (be present) on the part of the Resident” to the court of the qadi who alone would decide “in what manner the wrong has been committed and by whom;” should “the English military” (uskur) be found guilty, the resident was empowered to determine the offender's punishment, but only following a criminal procedure conducted by the qadi according to shari‘ah law. Finally—and, as we shall see later, crucially—the stipulation that all individuals employed by the Company “from the broker downwards” were to come under the exclusive control of the resident was omitted entirely.⁵⁸

The Anglo–Yemeni treaty thus neither extended a tariff reduction to the Gujarati merchants nor bore any mention of extraterritorial jurisdiction over anyone other than Britons.⁵⁹ To Francis Warden, chief secretary of the Government of Bombay, every advantage held out by the original treaty seemed to have been lost: “It may be questioned,” he wrote acerbically to Bruce in Bushire, “whether the British trade is not left in a worse state than it was before the treaty.”⁶⁰

How did an ostensibly straightforward process of translation end up producing a document so widely at variance with the original? For Bruce, the answer was clear: he had fallen victim to an act of subterfuge. Writing to Bombay from Bushire, he insisted that he had painstakingly gone over every stipulation with Amīr Fatḥulla, and that the Arabic version of the treaty being anything other than an exact copy “could only have arisen from my being deceived by the Arabic Moonshee who accompanied me, and who no doubt has had his reasons for deviating so much from the original draft.”⁶¹

(Mis)translating Empire: Epistemologies of the Imperial Encounter

British expansion into maritime Asia was fraught with the pitfalls of incommensurability. From the Malay Archipelago to the shores of coastal southern Arabia, the Company needed to navigate alien political, legal, linguistic, and cultural landscapes in which it had to “find ways of ‘making joins’ between different systems of laws, regulations, or just ‘ways of doing things’ where they encounter[ed] them.”⁶² British officials in the western Indian Ocean were thus dependent upon an elaborate human infrastructure comprising a cadre of non-Western middlemen possessing the knowledge and practical skills required to articulate and render legible local idioms and practices.⁶³ Like their counterparts in India, British officials in Arabia—commonly possessing some command of vernacular languages but seldom of their epistolary form nor the cultural proficiency to directly engage local officials—were dependent on munshis to mediate their interaction with foreign environments.⁶⁴

Like other largely faceless Indian Ocean literate intermediaries, munshis were “simultaneously everywhere and nowhere,” rarely imprinting their name on the written record while shaping nearly every document in the archive.⁶⁵ The omnibus term munshi—derived from the Arabic verb inshā, meaning “to compose” (as in a written document) and “to educate” (as in a youth)—denoted a wide array of literary, political, and scholastic functions in the Company's administrative apparatus, including writer, secretary, political assistant, adviser, interpreter, translator, and language instructor.⁶⁶ Munshis employed by the Company in the Gulf and Arabia hailed from merchant families boasting extensive social and commercial contacts throughout the region.⁶⁷ Men like the Mocha residency's Arabic munshi were thus key personages in spaces of informal empire, capable of reading and drafting materials in particular languages (e.g., Arabic munshi, Persian munshi, etc.), possessing in-depth knowledge of social etiquette, political norms, and literary conventions, and holding a firm grasp over the realities and dynamics of regional politics.⁶⁸

More than simply translators and informants, however, as the Anglo–Yemeni treaty reveals, as they received information in one language and translated it to another, munshis actively shaped the meanings and, ultimately, the outcomes of the imperial encounter. By dint of a set of non-transposable, embodied knowledge, munshis often acted in the stead of their employers who mostly lacked the requisite lingual and cultural proficiency to carry out official affairs unmediated, revealing an inherent structural vulnerability in the administrative apparatus of Britain's informal empire: echoing the logic of material infrastructures, the legal and cultural work of translation across boundaries and spheres of value formed transmission chokepoints, rendering munshis into “nodes of [knowledge] circulation, but equally importantly of capture and constriction.”⁶⁹ Bruce's suspicion of the Mocha residency's Arabic munshi, an Indian Bohra named Sayyid Hussein, was thus anchored in widely held anxieties by Company officials of being misled or misrepresented by their munshis.⁷⁰

The Bushire resident had, somewhat vaguely, stated in his dispatch to Bombay that Sayyid Hussein “had his reasons” for deviating in his Arabic translation from the English original. Given the circumstances, it was not beyond reason for Bruce to suspect that Amīr Fatḥulla, presumably conscious of the checks on his powers that the treaty's articles would impose, might have attempted to convince Sayyid Hussein to doctor and defuse the document. We have already seen the capriciousness with which oppression was meted out by the daula; possessing equally unchecked powers of patronage, the daula had a wide remit of benefits to bestow upon the munshi and his commercial network in return for collaborating, ranging from exclusive government contracts and access to premium buyers and sellers, to differential tariffs at the customs house and exemptions from the ad hoc levies sporadically demanded of Indian merchants at Mocha.

Yet, even with the potential motivation of currying favor with the governor of the region's primary commercial hub, how likely was Sayyid Hussein to have willfully deceived his employer, as the resident insisted? Hailing from an entrenched regional commercial elite, and almost certainly an economic actor in his own right, the munshi would have been keenly aware of the tremendously advantageous position he held as regulator of information flows to and from Britain's senior-most officer in the region.⁷¹ Moreover, as an expert in southern Arabian politics, he would have known about the rapid turnaround in governance at the port, and that future governors would not be bound by the incumbent daula's personal pledges. It seems unlikely then that the munshi would have jeopardized his privilege for such marginal benefits, knowing full well that once word of the tampered treaty had reached Bombay he would immediately be dismissed from Company service.⁷²

Perhaps rather than an act of deliberate subterfuge, Sayyid Hussein's mistranslation was simply down to human error. After all, it was not without precedence that a munshi should unintentionally misrepresent or “fail to give the force” of a treaty article he was drafting.⁷³ But the scope of the munshi's elisions in this instance exceeded mere accentuation. Unlike South Asian munshis who, owing to a long precolonial history of bridging regional Brahmanical traditions and a wider Indo-Islamicate culture, were accustomed to negotiating religious and cultural difference, Company munshis in the Gulf and Arabia operated in an emphatically Muslim landscape.⁷⁴ If indeed “any comparison of two languages implies an examination of their mutual translatability,” it is worth considering then whether the incongruity between the Arabic and English document might have arisen not from incompetence but rather from substantive contradictions and untranslatabilities between British-imperial and Arab-Islamic legal and epistemological assumptions.⁷⁵

For one, the very word “subjects” as the Bushire delegation would have understood it had no natural Arabic equivalence: the word, appearing four times in the treaty, was translated alternatingly as “dependents” (tābiʿūn), “people” (jamā‘ah), and “merchants” (tujjār), and only once, in reference to subjects of the imam, as raʿiyyah (pl. raʿāyā)—a collective noun best translated as “subjects” invoking a paternalistic relation of the ruler as shepherd (rāʿī) and that of his subjects as flock (raʿiyya).⁷⁶ Moreover, territorial conceptions of sovereignty and the attribution of subjecthood to secular notions of blood lineage and land of birth, as understood in British common law and in extrajudicial approaches practiced in colonial settings,⁷⁷ was fundamentally at odds with Islamic political theology, wherein subjecthood emanated from one's belonging to the community of believers (ummah) and residing in the domains of a temporal ruler sanctioned by- and adhering to the precepts of Islamic law (dār al-Islām).⁷⁸ Nor was this temporal ruler sovereign in the sense of “having a free hand to make laws” but rather, according to Usaama al-Azami, operated within “a legal framework that was in the charge of jurists who worked in concert with the ruler but maintained their independence.”⁷⁹

Certainly, there was much more to Muslim political history than strict adherence to doctrinal theory,⁸⁰ but such a division of labor between religious and royal authority was particularly pertinent to Qāsimī Yemen during the period under review, conforming to the 40-year reign of Muḥammad bin ‘Ali al-Shawkānī (d. 1834) as the imamate's qāḍī al-quḍāt (Arabic: “the judge of judges”). A scholar, judge, and reformer who played a central role in reshaping the religious landscape in Yemen in the early nineteenth century, according to historian Bernard Haykel, Shawkānī rivaled (if not exceeded) Imam al-Mahdī in influence, his judgments carried out “whatever they may be and whomever [they concern], even if the imam himself was implicated.”⁸¹ A towering figure of Islamic reform,⁸² Shawkānī’s scriptural conservativism permeated every walk of Yemeni political life: “not an order by the imam was promulgated,” Haykel recounts, “without Shawkānī’s advice being taken.”⁸³ Shawkānī instituted his reforms by placing his students in positions of influence across the imamate; it is reasonable to speculate then that one such disciple, the qadi of Mocha, held equal sway over his political counterpart, the daula. Considering the symbiotic conservative alliance between ʿulamāʾ (Islamic scholars) and rulers, how legible would Sayyid Hussein have found the stipulations of Bombay's treaty—conceding legal authority over Hindu and Muslim subjects to a Christian officer whose very rights to reside and trade at the port were invested by imamic fiat—within the religio-political lexicon of early nineteenth-century Yemen?

To Warden, such questions were moot either way, as mistakes “such as [this] could only originate in corruption or a degree of neglect which on an occasion so important is nearly equally culpable.” Bruce offered to return to Mocha in order “to tender a literal translation” of the contested article, but was instructed by the governor, Mountstuart Elphinstone, to remain in the Gulf.⁸⁴

“A Faithless and Ambitious Government”: Foregoing Protection

Upon discovery of the discrepancies, Robson immediately applied to Imam al-Mahdī to amend the treaty, but the latter dismissed the request out of hand.⁸⁵ The extended scope of the treaty would be difficult to claw back, but Bombay was unwilling to cede its basic claim for jurisdiction over dependents of the factory, a claim which Warden argued “did not depend on any treaty but on the laws and usages of all civilized nations.”⁸⁶ Robson's permanent replacement, Captain Gideon Hutchinson, wrote to Imam al-Mahdī, enjoining that since Governor Elphinstone had agreed to relinquish significant portions of the treaty “in token of […] friendship and cordiality,” he might “be actuated by the same sentiments” and agree to the disputed clauses.⁸⁷

Any such hopes were dashed, however, upon the arrival from Sana‘a of Hussein Gulla, a representative of the imam deputized to confer with Hutchinson about the omission. All disputes involving non-Britons, he informed the resident, including dependents of the factory and certainly the Gujarati merchant community, would be adjudicated by the qadi according to Islamic law. Were all complaints of brokers and merchants like Bhimji Kalyanji “alone to be cognizable by the resident,” they would be “rendered independent of the [qadi] and [daula].” Undoubtedly echoing Shawkānī’s voice in Sana‘a, Gulla concluded that conceding this point would not simply contravene “the laws of Yemen [but] the precepts of the Koran” and would be “an abrogation” of the imam's duty and of “the authority of the [shari‘ah].”⁸⁸

In an attempt to break the deadlock, Elphinstone wrote directly to the imam. Changing tack from an appeal based on imperial subjecthood to one anchored in international diplomatic law, the governor argued that the British resident in Mocha was in fact performing an ambassadorial role and was therefore entitled to the privileges of a public minister, to which the imam tersely and conclusively replied: “It is my resolution to hold by what is written in Arabic […] The tenor of the Arabic version may not be contravened by either [you nor I] and that which has not been written cannot now be inserted.”⁸⁹

While this triangulated legal debate was being hashed out between Sana‘a, Bombay, and Mocha, events on the ground deepened and broadened the scope of the affair. Shortly after Bruce's arrival in Mocha, Bhimji had appealed to the officer about an outstanding debt owed to him of $31,500, adding that daulas had habitually exacted yearly loans of $1,100 which they never repaid.⁹⁰ When a request for a further loan of $20,000 was later made upon the broker, this time from the imam himself, Bhimji notified Hutchinson that he intended to refuse the loan, petitioning for protection against the imam's anticipated wrath.⁹¹ It was against this backdrop that Amīr Fatḥulla’s envoy left Mocha for Bombay to protest Bhimji's conduct and dispute his appeal for British protection—ironically taking up the bania's case in Bombay while refusing British jurisdiction over Indians in Yemen.⁹² Bhimji's petition, however, could hardly have come at a less opportune time. While Bombay and Sana‘a were wrangling over the fine print, the bombardment of Mocha and the stipulations of the treaty that followed were the subject of uproar and controversy in Istanbul.

The ground had for some years been shaking under the feet of Sultan Mahmud II (r. 1808–39). The young sultan endured a tumultuous first decade to his reign, beginning with the loss of the mouths of the Danube and Bessarabia to Russia in 1812; the assertion of Serbian independence between 1804 and 1815; and the commencement of the Greek War of Independence mere months prior to the signing of the Anglo–Yemeni treaty.⁹³ The specter of territorial reversal boded even more menacingly in Arabia, where an ascendant Saudi emirate occupied in 1803 and 1804 the sacred sites of Mecca and Medina—the main source of legitimacy for a sultan claiming spiritual overlordship over the global Muslim ummah.⁹⁴ Ottoman–Egyptian forces dispatched by Mahmud II managed to quash the Wahhabi insurgency (albeit well over a decade later), but for the beleaguered sultan, the purported encroachment on Arabian soil by Britain, an imperial power governing more Muslims around the globe than did the sultan-caliph himself, was interpreted as the opening gambit of a broader move to unseat the Ottomans in Arabia.

The Porte warned the British ambassador, Viscount Strangford, that the sultan, who retained a contented claim to sovereignty over the Yemen, perceived the affair to be an indication of Britain's ambitions in Arabia. An Egyptian–Ottoman agent in Mocha, one Rustam Āghā, had sent alarm bells ringing in Istanbul by reporting that Bombay had imported chains to Mocha in a bid to block the Bab al-Mandab (a rather fanciful idea, considering the distance) and that the resident attempted to bribe the imam with an annual stipend of 100,000 piasters to allow the Company to extend its authority over both Muslims and non-Muslims. Bombay and Calcutta categorically rejected the accusations, but Mahmud II, distrustful of an Indian government “as faithless and as ambitious as that of Russia,” was at pains to stress that he would not yield an inch of territory “which has been sanctified by the footsteps of the Prophet.”⁹⁵ The Porte demanded the British government disavow its resident in Mocha and acknowledge full and exclusive Ottoman sovereignty over the Yemen, leaving London scrambling for explanations from Bombay.

As historians of the late Ottoman Empire have shown, the acceleration of imperial expansion in the latter decades of the century forced Mahmud II's successors into an urgent and increasingly elaborate engagement with international law and Western claims for extraterritorial jurisdiction over foreign (i.e., non-Ottoman) Muslims.⁹⁶ For the time being, however, the sultan could breathe easy as Britain, long eager to facilitate “a more liberal commercial intercourse […] in the Black Sea,” had much more to lose than to gain.⁹⁷ It was feared in London that the Ottomans, who straddled the maritime chokepoints regulating vital flows of Black Sea grain to Europe, might attempt (as they ultimate did) to hurt the Greek insurgents by checking the trade carried by Greek merchants and ship-owners.⁹⁸ Had Bhimji's claims for British protection stood on a more solid legal footing, it is plausible that Britain might have been dragged into a conflict it wished to avoid; in the event, however, Bombay quietly retracted its claim for jurisdiction over Bhimji and other Indians in Mocha for fear of further antagonizing the Porte, heeding Viscount Strangford's warning that the disputation could have “a most serious effect” on British influence and credit at Istanbul.⁹⁹

Anglo–Yemeni relations had thus been left in a state of ambiguity, but the matter of protection over Indians in Mocha persisted.¹⁰⁰ The new resident, Captain Michael Bagnold, reported in 1825 that not only were injustices being carried out in the customs house—the daula had overtaxed the Surati merchants’ goods and requisitioned a portion of their merchandize under the assurance that he would repay later in the season, a promise he then reneged on by staling until the shifting monsoon forced the merchants to depart Mocha for Surat—but that loans were again forcefully exacted from banias at the port.¹⁰¹ According to the resident, the daula was “emboldened” by “silly reports” that the Burmese War being fought on the other side of the Indian Ocean was keeping the British navy fully occupied.¹⁰²

Periodic exactions and oppressive conduct against Gujaratis had forced successive residents to intervene,¹⁰³ but in 1826 Bagnold's vigilante action to claim redress for Gujaratis at the port nearly ended in another diplomatic collision with the Porte.¹⁰⁴ To Bombay's relief, the incident passed without notice in Istanbul,¹⁰⁵ but still was enough to make the governor rethink the cost–benefit trade-off of its Red Sea commitment. Finally, in October 1827, Bagnold was informed that Elphinstone had decided to withdraw the residency from Mocha and to leave British commercial interests under charge of a native agent.¹⁰⁶ The resident was instructed to facilitate the withdrawal and to appoint a successor agent, for which position he designated a young Bohra merchant “of respectable standing in Surat” whose character and reputation, it was hoped, would place British interests “on a more respectable footing than our late useless Banyan broker,” Bhimji Kalyanji.¹⁰⁷

On March 15, 1828, nearly a decade after Bruce's expedition had first reached the Mocha roadsteads, the removal of the residency was finalized. The failure of British gunboat diplomacy to impose itself on the political landscape of southwestern Arabia and the inability of successive residents to cultivate vested interests devoted to the elevation and preservation of British supremacy in Mocha meant that the Red Sea region remained for Britain a disordered arena offering little scope for influence. The reassertion of direct Ottoman sovereignty over Mocha in 1833 further limited Britain's maneuverability, just as strategic stakes in the region were increasing.¹⁰⁸ By the end of the decade, the failure of British legal imperialism to bring Mocha to heel left Bombay with little choice but to change course and establish a colony to be administered under direct rule in the nearby port of Aden.¹⁰⁹ To Bombay's dismay, negotiations in Aden were impeded by the sultan's appeal for nested sovereignty, insisting that while the British could control the harbor, he would retain jurisdiction over the Arabs, Jews, and banias of the port; the Company officer negotiating the transfer immediately rejected the sultan's proviso, rejoining that it was inconceivable that two legal regimes might exist side by side—the irony clearly having escaped him.¹¹⁰

Conclusions

Alongside standard commercial clauses regulating customs charges and anchorage fees, the provisions of the 1821 Anglo–Yemeni treaty aimed to exempt “British subjects”—intended by Bombay to include Indian Hindu and, provocatively, Muslim merchants—from the jurisdiction of the daula and qadi in Mocha. A case of mistranslation, however, followed by Sana‘a's obdurate refusal to relitigate the treaty and Istanbul's emphatic demurral meant that, unlike the juridico-political dynamics that developed in the western Indian Ocean later in the century, British primacy could not be established, nor could the Indian community of Mocha be co-opted as an instrument of legal imperialism.

While recognizing the imam's and the sultan's agency helps rehabilitate a history of empire in the Indian Ocean persistent in prioritizing British perspectives, viewing the affair strictly through the prism of governors, residents, imams, and sultans nevertheless perpetuates a reading of history anchored in the actions and decisions of political leaders, governments, and elites. In this article, in contrast, I have argued that local agents and merchants played an outsized role in shaping and determining the outcomes of imperial interventions. Recurrent petitioning by the Surat merchants and the Company's bania broker's insistence on invoking British protection serves to illustrate that, rather than just passive beneficiaries, non-Western merchants, brokers, and other intermediaries were in fact key agents of legal imperialism, in that by holding the Company up to its own claims regarding territorial sovereignty in India and its attendant legal obligations abroad, they pushed the British to take on additional diplomatic responsibilities beyond the subcontinent.¹¹¹ Moreover, as the treaty's contested clauses demonstrate, knowledge gaps and linguacultural barriers meant that works of translation were indispensable at every level of imperial operation. Munshis, brokers, and agents formed nodes of knowledge circulation as well as of capture and constriction, serving not only as the eyes and ears but often as the mouths of imperial administrators; their sparse mention in the colonial record thus belies an underlying ubiquity.

Bearing this in mind, the foregoing allows us to throw into relief an understudied facet of legal imperialism, namely that the imposition of legal systems, structures, and practices on colonized or otherwise influenced regions was predicated upon legal and cultural works of translation. The influence of British authority, then, while crucial, can only be fully understood in the context of its dependence upon networks of indigenous commercial, political, and legal brokers to empire. The imposition of verbal constructs could, and did, shape outcomes with equal force to the violent coercion of a gunboat.

The disruptive consequence of linguistic contestations should not however be perceived as belonging to an earlier, unripened stage of empire: more than a century after Bruce and Imam al-Mahdī put pen to paper in Mocha, a treaty signed in Sana‘a in 1934 between the British Political Resident in Aden and the seventeenth successor of the imam again rehearsed a semantic divergence, this time revolving around differing interpretations of the Arabic word ḥudūd (understood as “border” or “frontier” by the British and as “region” by the imam) a “subtle and perilous difference” which nevertheless militated against Anglo–Yemeni accommodation for decades to follow.¹¹²