1. For a general account of the trial, see Marshall, P. J., The Impeachment of Warren Hastings (London: Oxford University Press, 1965).Google ScholarAlso see The Impeachment of Warren Hastings: Papers from a Bicentenary Commemoration, ed. Carnall, Geoffrey and Nicholson, Colin (Edinburgh: Edinburgh University Press, 1989)Google Scholar.

2. Indeed, some historians of eighteenth-century England and India, most prominently P. J. Marshall, have argued that Burke's vision of an empire of justice had little significance for the British empire as it evolved over the nineteenth century and, in fact, “was already beginning to look irrelevant to the British empire of the 1790s.” See his Introduction in The Writing and Speeches of Edmund Burke, vol. 6,India: The Launching of the Hastings Impeachment, 1786–1788, ed. Marshall, P. J. (Oxford: Clarendon Press, 1991), 35–36Google Scholar.

3. In the course of the nineteenth century, liberal historians like Macaulay and Morley defended the truth of Burke's accusations against Warren Hastings. SeeMacaulay, Thomas Babington, Warren Hastings (New York: Chautauqua Press, 1886)Google ScholarandMorley, John, Edmund Burke, a Historical Study (New York: A. A. Knopf, 1924).Google ScholarOn the other hand, in the late nineteenth and early twentieth centuries, a series of imperial historians like Fitzjames Stephen, John Strachey, Sophia Weitzman, Lucy S. Sutherland, and Keith Feiling dismissed Burke's accusations that Hastings had been personally corrupt and argued that his arbitrariness was justified by the necessities of maintaining empire in the east, a view that Hastings himself articulated in the trial. SeeStephen, James Fitzjames, The Story of Nuncomar and the Impeachment of Sir Elijah Impey, 2 vols. (London: Macmillan and Co., 1885)Google Scholar; Strachey, John, Hastings and the Rohilla War (Oxford: Clarendon Press, 1892)Google Scholar; Weitzman, Sophia, Warren Hastings and Philip Francis (Manchester: Manchester University Press, 1929)Google Scholar; Sutherland, Lucy S., The East India Company in Eighteenth-Century Politics (Oxford: Clarendon Press, 1952)Google Scholar; Feiling, Keith Grahame, Warren Hastings (New York: St. Martin's Press, 1954)Google Scholar.

4. Peter Stanlis, for example, whose work has been invaluable in bringing attention to the centrality of natural law doctrine in Burke's works, does not explore the implications of the fact that the discourse of natural law and the law of nations found its sharpest articulation in Burke's speeches in the impeachment trial. He concludes that Burke's understanding of international relations was limited to the European context, his intervention in India being merely an exception to his deep-seated convictions about European solidarity based on a common cultural inheritance. As a result, Burke emerges in his analysis primarily as a European conservative. His unprecedented use of natural law and the law of nations for the defense of an alien, non-European people against colonial oppression passes unnoticed. SeeStanlis, P. J., “Edmund Burke and the Law of Nations,” The American Journal of International Law 47 (1953): 400–401.CrossRefGoogle ScholarAlso see hisEdmund Burke and the Natural Law (Ann Arbor: University of Michigan Press, 1958)Google ScholarandCanavan, Francis P., The Political Reason of Edmund Burke (Durham: Duke University Press, 1960).Google ScholarAgain, scholars like Coniff have used the Indian case only to prove the inadequacy of Burke's political categories such as trusteeship, that, in Conliff's view, fail the test of universality when applied to a non-European people lacking the political culture of the west. SeeConniff, James, “Burke and India: The Failure of the Theory of Trusteeship,” Political Research Quarterly 46 (1993): 291–309.CrossRefGoogle ScholarAlso seeDreyer, Frederick A., Burke's Politics: A Study in Whig Orthodoxy (Waterloo, Ontario: Wilfrid Laurier University Press, 1979).Google ScholarThe most significant works that have attempted to establish Burke as a theorist of liberal utilitarianism are John Morley, Edmund Burke, a Historical Study andMacpherson, C. B., Burke (New York: Hill and Wang, 1980).Google ScholarSome excellent works in the recent past have departed from this general tendency and have emphasized the centrality of Burke's writings on empire, particularly on India, for an understanding of his political theory. SeeWhelan, Frederick G., Edmund Burke and India: Political Morality and Empire (Pittsburgh: University of Pittsburgh Press, 1996)Google ScholarandMehta, Uday Singh, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999).Google ScholarAlso seeSuleri, Sara, The Rhetoric of English India (Chicago: University of Chicago Press, 1992).CrossRefGoogle ScholarFor connections between Burke's writings on India and other parts of the British empire like Ireland, seeJanes, Regina, “At Home Abroad: Edmund Burke in India,” Bulletin of Research in the Humanities 82 (1979): 160–74Google Scholar, andO'Brien, Conor Cruise, The Great Melody: A Thematic Biography and Commented Anthology of Edmund Burke (Chicago: University of Chicago Press, 1992)Google Scholar.

5. Darby, Phillip, Three Faces of Imperialism: British and American Approaches to Asia and Africa, 1870–1970 (New Haven: Yale University Press, 1987)CrossRefGoogle Scholar; Lieven, D. C. B., Empire: The Russian Empire and Its Rivals (London: John Murray, 2000)Google Scholar; Ferguson, Niall, Empire: The Rise and Demise of the British World Order and the Lessons for Global Power (New York: Basic Books, 2003)Google Scholar; Eric Hobsbawm, “America's Imperial Delusion: The US Drive for World Domination Has No Historical Precedent,” The Guardian, June 14, 2003Google Scholar; Ignatieff, Michael, “The Burden,” New York Times Magazine, January 5, 2003Google Scholar.

6. Works that have focused on the relation between capitalism and imperialism includeHobson, J. A., Imperialism: A Study (London: J. Nisbet, 1902)Google Scholar; Lenin, Vladimir Il'ich, Imperialism, the Highest Stage of Capitalism: A Popular Outline (New York: International Publishers, 1933)Google Scholar; Dobb, Maurice Herbert, Studies in the Development of Capitalism (London: G. Routledge and K. Paul, 1946)Google Scholar; Gallagher, John and Robinson, Ronald Edward, “The Imperialism of Free Trade,” Economic History Review, 2d ser., 6 (1953): 1–15CrossRefGoogle Scholar; Fieldhouse, D. K., Economics and Empire, 1830–1914 (Ithaca: Cornell University Press, 1973)Google Scholar; Cain, P. J. and Hopkins, A. G., British Imperialism, 2 vols. (London: Longman, 1993).Google ScholarRecent works that have brought attention to the question of political sovereignty in a globalizing world areSassen, Saskia, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996)Google Scholar; Luard, Evan, The Globalization of Politics: The Changed Focus of Political Action in the Modern World (New York: New York University Press, 1990)CrossRefGoogle Scholar; Ohmae, Kenichi, The End of the Nation State: The Rise of Regional Economies (New York: Free Press, 1995)Google Scholar; Albrow, Martin, The Global Age: State and Society beyond Modernity (Stanford: Stanford University Press, 1997).Google ScholarFor a sophisticated theoretical analysis of the relation between nation and empire, seeBenoist, Alain de, “The Idea of Empire,” Telos, nos. 98–99 (Winter 1993–Fall 1994): 81–98Google Scholar.

7. Hardt, Antonio and Negri, Michael, Empire (Cambridge: Harvard University Press, 2000).Google Scholar

8. Some significant works on Warren Hastings's life and times includeLyall, Alfred Comyn, Warren Hastings (New York: Macmillan and Co., 1894)Google Scholar; Moon, Penderel, Warren Hastings and British India (New York: Macmillan, 1949)Google Scholar; Trotter, Lionel J., Warren Hastings (Oxford: Clarendon Press, 1890)Google Scholar; Bernstein, Jeremy, Dawning of the Raj: The Life and Trials of Warren Hastings (Chicago: Ivan R. Dee, 2000).Google ScholarAlso see Macaulay, Warren Hastings and Feiling, Warren Hastings.

9. The predominant tendency among historians of empire in general and of the empire in India in particular has been to arrive at a single essence of empire, thus reducing what was complex and contained within it differences, contradictions, and even conflicts to a homogenous phenomenon. While one of the oldest traditions of imperial historiography, which I identify as the pedagogical school, developed a seamless narrative of the spread of progress and enlightenment from the imperial center to the colonies, economic histories of empire have similarly constructed the development of empire in terms of homogenous narratives of the development of capitalism.Elphinstone's, MountstuartThe Rise of the British Power in the East, ed. Colebrooke, T. E. (London: J. Murray, 1887)Google Scholar, Seeley's, John RobertThe Expansion of England: Two Courses of Lectures (London: Macmillan, 1895)Google Scholarand, more recently,Low's, D. A.Eclipse of Empire (Cambridge: Cambridge University Press, 1991)CrossRefGoogle Scholarare representative of the first school, while Dobb's Studies in the Development of Capitalism and Fieldhouse's Economics and Empire, 1830–1914 are good examples of the second. In fact, even Marx who constructed contradiction as a driving force of history described the process of colonization in India very much in pedagogical terms, as the spread of the capitalist mode of production and also the values and knowledge systems of the enlightenment to the colonies. For a general Marxist interpretation of empire, seeKiernan, V. G., Marxism and Imperialism: Studies (London: Edward Arnold, 1974).Google ScholarIt was only later Marxists like Lenin and other economic historians like Hobson who, in their studies of imperialism, focused on conflicts and the fact of economic exploitation rather than on pedagogical transfers of ideas, values, and institutions. See Hobson, Imperialism: A Study; Lenin,Imperialism, the Highest Stage of Capitalism. Cain and Hopkins's British Imperialism: A Recent Economic History of Empire has also developed some of the arguments of Hobson. However, the problem with these studies is that they confined contradictions to the economic domain at the expense of potential and real contradictions in other institutional domains, such as the judicial, bureaucratic, military, intellectual, educational, etc. In the process of privileging the economic over other domains, they also tended to dismiss most discourses of empire and even those of nationalism as either false consciousness or ideology that, as such, has no history. It is only recently under the rubric of postcolonial studies that works on empire have focused on the study of discourse in the analysis of empire. SeeSaid, Edward W., Orientalism (New York: Vintage Books, 1979)Google ScholarandAfter Colonialism: Imperial Histories and Postcolonial Displacements, ed. Prakash, Gyan (Princeton: Princeton University Press, 1995).Google ScholarOne of the important works that has brought attention to the contradictions within empire in the recent past isTensions of Empire: Colonial Cultures in a Bourgeois World, ed. Cooper, Frederick and Stoler, Ann Laura (Berkeley: University of California Press, 1997)CrossRefGoogle Scholar.

10. Naoroji, Dadabhai, Poverty and Un-British Rule in India (London: S. Sonnenschein, 1901).Google Scholar

11. Burk's writings and speeches were extremely popular with Indian nationalists in the late nineteenth and twentieth centuries, so much so that the British colonial administration in India, believing that his works encouraged disloyalty, interdicted his writings at Calcutta University. Many of Burke's famous speeches were memorized by leading Indian National Congress members and frequently recited in political meetings. SeePrashad, Ganesh, “Whiggism in India,” Political Science Quarterly 81 (1966): 412–31CrossRefGoogle Scholar.

12. Bowen, H. V., “British Conceptions of Global Empire,” The Journal of Imperial and Commonwealth History 26 (1998): 1–27.CrossRefGoogle ScholarFor a comprehensive comparative analysis of ideologies of empire in Britain with those in Spain and France in this period, seePagden, Anthony, Lords of All the World: Ideologies of Empire in Spain, Britain and France c. 1500–c. 1800 (New Haven: Yale University Press, 1995)Google Scholar.

13. Armitage, David, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000), 8.CrossRefGoogle ScholarAlso seeGreene, Jack P., “Empire and Identity from the Glorious Revolution to the American Revolution,” in The Oxford History of the British Empire, vol. 2, The Eighteenth Century, ed. Marshall, P. J. (Oxford: Oxford University Press, 1998), 208–30Google Scholar.

14. Shannon, Timothy J., Indians and Colonists at the Crossroads of Empire: The Albany Congress of 1754 (Ithaca: Cornell University Press, 2002), 57–113.Google Scholar

15. Greene, Jack P., Understanding the American Revolution: Issues and Actors (Charlottesville: University Press of Virginia, 1995), 72–73.Google ScholarAlso seeBailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press, 1967)Google Scholar, andReid, John Phillip, The Concept of Representation in the Age of the American Revolution (Chicago: University of Chicago Press, 1989)Google Scholar.

16. Onuf, Peter S., ed., Maryland and the Empire, 1773: The Antilon-First Citizen Letters (Baltimore: Johns Hopkins University Press, 1974), 29.Google Scholar

17. Greene, , Understanding the American Revolution, 85.Google Scholar

18. Mukherjee, Ramkrishna, The Rise and Fall of the East India Company (New York: Monthly Review Press, 1974), 222–83.Google ScholarOther works on the East India Company includeSen, Sudipta, Distant Sovereignty: National Imperialism and the Origins of British India (New York: Routledge, 2002)Google Scholar; Keay, John, The Honourable Company: A History of the English East India Company (New York: Macmillan Publishing Co., 1994)Google Scholar; Lawson, Philip, The East India Company: A History (London and New York: Longman, 1993)Google Scholar; Marshall, P. J., East Indian Fortunes: The British in Bengal in the Eighteenth Century (Oxford: Clarendon Press, 1976)Google Scholar; Bayly, C. A., Imperial Meridian: The British Empire and the World, 1780–1830 (London: Longman, 1989)Google Scholar; Philips, C. H., The East India Company, 1784–1834 (Manchester: Manchester University Press, 1961)Google Scholar; Sutherland, The East India Company in Eighteenth-Century Politics.

19. Philips, , The East India Company, 1–22.Google Scholar

20. Mukherjee, , Rise and Fall, 299–385.Google Scholar

21. Bowen, , “British Conceptions of Global Empire,” 14.Google ScholarParallels between the corruption that the East India Company's servants were introducing into England (particularly through the practice of buying seats in Parliament and thus threatening the existing political balance in the House of Commons) and the corruption in the days of the declining Roman Empire were not hard to imagine. Edward Gibbon in his The Decline and Fall of the Roman Empire, published between 1776 and 1788, attributed the ruin of the Roman Empire to “immoderate greatness,” specifically, to the destruction of the virtue of the republic by the corruption that was the inevitable result of the acquisition of an extensive empire. It was the opportunity that empire provided to military commanders and economic speculators to acquire power that could not be controlled by law and conflicted with the virtue of equality, and the inevitable corruption that arose out the governance of the empire by military commanders, independently of the republic that ultimately resulted, in Gibbon's view, in the absorption of the city of Rome by the empire and thus in its ultimate decay. To contemporaries of Gibbon, the East India Company's emerging system of governance in the new colony in the east threatened to plunge the British state down a similar path of decline. SeeGibbon, Edward, The Decline and Fall of the Roman Empire (New York: The Modern Library, 1932)Google Scholar.

22. Setalvad, Motilal Chimanlal, The Common Law in India (London: Stevens, 1960), 1–62.Google Scholar

23. Sutherland, , The East India Company in Eighteenth-Century Politics, 365–415.Google Scholar

24. Philips, , The East India Company, 20.Google Scholar

25. Patronage referred to a system wherein the Directors of the East India Company had the right to dispose of appointments in the East India Company's administration in India, such as those of civil servants, writers, cadets, and assistant surgeons for the Company's armies, and barristers and attorneys for the Company's courts. Each Director had at his disposal at least six or seven appointments in a year, and often, some Directors sold their patronage to buy and maintain seats in Parliament. SeePhilips, , The East India Company, 14–17Google Scholar.

26. The Parliamentary History of England from the Earliest Period to the Year 1803: from which last-mentioned epoch it is continued downwards in the work, entitled “Hansard's parliamentary debates,” ed. Cobbet, William and Hansard, T. C. (London: T. C. Hansard, 1814), 23:1210.Google Scholar

27. This claim needs to be seen in terms of a long history of contentious debates in late seventeenth and early eighteenth-century England between the supporters of English settlers and planters in America, intent on expanding British possessions in the new colony on the one hand, and opponents of colonization of America on the other. The opponents argued that, besides unfairly dispossessing the Native Americans of their land, colonization was enfeebling England, and, even if allowed to continue, the colonies ought to be kept in a position of strict dependence to the mother country. SeeArneil, Barbara, John Locke and America: The Defence of English Colonialism (Oxford: Clarendon Press, 1996)CrossRefGoogle ScholarandTully, James, An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993).CrossRefGoogle ScholarTo a large extent the East India Company was reformulating the same contention in the context of the newly developing colony in India. This colonial claim that property rights in the new colony could not be interfered with by the Crown was closely tied to the Lockean argument that property was essentially grounded on man's labor and preceded the state. The state's only function was the protection and preservation of property and any attempt to interfere with property was an exercise in tyranny. SeeLocke, John, Second Treatise of Government, ed. Macpherson, C. B. (Indianapolis: Hackett Publishing Co., 1980), 18–30, 65–68Google Scholar.

28. This right to revenue collection, or Diwani, was obtained from the Mughal Emperor Shah Alam at the conclusion of the battle of Buxar (1764) in which the East India Company's army under Robert Clive defeated the combined troops of the Mughal emperor and the Nawab of Awadh. Rather than declare themselves the new sovereigns of Bengal and Awadh, the East India Company persuaded the emperor to grant them the right to the land revenues of the province of Bengal on the payment of a small annual tribute, thus taking on the role of a tributary under the de jure sovereignty of the Mughal emperor. As a result of this settlement with the Mughal emperor, sovereign power in Bengal was split, with the East India Company controlling the reins of power by controlling the machinery of revenue collection, and the puppet ruler of Bengal continuing to bear the responsibilities of maintaining law and order and criminal administration. SeeMukherjee, , Rise and Fall, 268–84Google Scholar.

29. Burke, Edmund, Speeches on the Impeachment of Warren Hastings (Delhi: Discovery Publishing House, 1987), 1:483–84.Google Scholar

30. Bernard S. Cohn has interpreted the emphasis given by Hastings to indigenous legal traditions as reflective of the fact that the East India Company's administration under Hastings in Bengal followed the model of a “theocratic state.” See“Law and the Colonial State” in his Colonialism and Its Forms of Knowledge: The British in India (Princeton: Princeton University Press, 1996), 65–67.Google ScholarAlso seeBrockington, J. L., “Warren Hastings and Orientalism,” in The Impeachment of Warren Hastings, 91–108Google Scholar.

31. For an analysis of Burke's understanding of state necessity, seeGreenleaf, W. H., “Burke and State Necessity: The Case of Warren Hastings,” in Staatsrason: Studien zur Geschichte eines politischen Begriffs, ed. Schnur, Roman (Berlin: Duncker and Humblot, 1975), 549–67Google Scholar.

32. Burke, , Speeches, 1:484–85.Google Scholar

33. Hobbes, Thomas, Leviathan, ed. Macpherson, C. B. (New York: Penguin, 1985), pt. 1, chap. 13, 185–86.Google Scholar

34. In making this claim, Hastings was also asserting the need to remove the institutional checks that the East India Company had imposed on his authority by making his decisions as governor-general subject to the approval of the members of the Council. In seeking the concentration of authority in his own hands, he claimed that, as governor-general, he was ultimately the representative of the British Crown and, therefore, had to exercise royal sovereignty in India in accordance with the interests of the king. These, he contended, were absolute and subject neither to the interests of a commercial body, the East India Company, nor to Mughal power. SeeSen, Neil, “Warren Hastings and British Sovereign Authority in Bengal, 1774–80,” The Journal of Imperial and Commonwealth History 25 (1997): 68–70CrossRefGoogle Scholar, andMarshall, P. J., “The Making of an Imperial Icon: The Case of Warren Hastings,” The Journal of Imperial and Commonwealth History 27 (1999): 5CrossRefGoogle Scholar.

35. Hastings to D. Anderson (13 September 1786) inGleig, G. R., Memoirs of the Life of the Right Hon. Warren Hastings, first governor-general of Bengal (London: R. Bentley, 1841), 3:303Google Scholar.

36. Hastings toSir Macpherson, John (1 November 1781) in Hastings, Warren, Letters to Sir John Macpherson, ed. Dodwell, Henry (London: Faber and Gwyer, 1927), 99–100Google Scholar.

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39. See the discussion of “oriental despotism” inMontesquieu, Charles de Secondat, The Spirit of the Laws, ed. Cohler, Anne M., Miller, Basia Carolyn, and Stone, Harold Samuel (Cambridge: Cambridge University Press, 1989), 5.14–19.Google Scholar

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41. Ibid., 104–26.

42. SeeThe Writings and Speeches of Edmund Burke, vol. 7, India: The Hastings Trial 1789–1794, ed. Marshall, P. J. (Oxford: Clarendon Press, 2000), 285Google Scholar.

43. In opposition to the Hobbesian theory of absolute sovereignty that discursively framed Hastings's defense, the political thinker John Locke had proposed that the state of nature, rather than being characterized by chaos and anarchy, was a state in which people had property and rights. These rights were only conditionally surrendered to the monarch and the people had an obligation to obey only so long as the state worked for their good. In claiming that the rights of the people of India were prior to the state, Burke was resorting to this political tradition in England that prioritized the liberty of the people against claims of absolute power of the sovereign. As the king was subordinate to the law in England, as the Mughal and Hindu rulers in India were subordinate to the laws in India, so Burke argued, Hastings and the Company's government in India had to necessarily be subordinate to law.SeeLocke, John, Second Treatise of Government, 101–24Google Scholar.

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45. Ibid., 19.

46. Ibid., 18.

47. Ibid., 94.

48. Significant works on natural law includeTuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999)Google Scholar; Buckle, Stephen, Natural Law and the Theory of Property: Grotius to Hume (Oxford: Clarendon Press, 1991)Google Scholar; Strauss, Leo, Natural Right and History (Chicago: University of Chicago Press, 1953)Google Scholar.

49. Burke, , Speeches, 1:504.Google Scholar

50. All these authors have interpreted the importance that Burke gave to “expediency” as reflective of a form of conservative utilitarianism and a contempt for natural law.Vaughan, Charles E., Studies in the History of Political Philosophy before and after Rousseau (New York: Longmans, Green and Co., 1925), 3–4Google Scholar; MacCunn, John, The Political Philosophy of Burke (London: E. Arnold, 1913), 193Google Scholar; Stephen, Leslie, History of English Thought in the Eighteenth Century (London: Smith, Elder, and Co., 1881), 2:225–26Google Scholar.

51. Stanlis, , Edmund Burke and the Natural Law, 231–33.Google ScholarStanlis sees no inherent contradiction between Burke's appeal to common law on the one hand and to natural law on the other. Rather, in his interpretation, the two have a “close reciprocal relationship” in Burke's thought. See hisEdmund Burke: The Enlightenment and Revolution (New Brunswick, N.J.: Transaction Publishers, 1991), 11.Google ScholarThis interpretation prevents Stanlis from seeing the critical historical shift from common law to natural law in the impeachment trial and the role it fulfilled in Burke's discursive construction of empire.

52. Holdsworth, William Searle, A History of English Law (Boston: Little, Brown and Company, 1922–72), 12:330–583.Google Scholar

53. Blackstone maintained that there was a root connection between natural law and common law: “For [God] has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former.… The law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other. … [No] human laws are of any validity, if contrary to this and such of them as are valid derive all their force, and all their authority … from this original.” SeeBlackstone, William, Commentaries on the Laws of England (facsimile of 1st ed., 1765–69; Chicago: University of Chicago Press, 1979)Google Scholar, 1: Introduction, 2:40–41.

54. Stephen, , The Story of Nuncomar, 2:205.Google ScholarAlso seeSetalvad, , The Common Law in India, 1–62Google Scholar.

55. Speech on Bengal Judicature Bill in Parliament, 27 June 1781, inThe Writings and Speeches of Edmund Burke, vol. 5, India: Madras and Bengal, 1774–1785, ed. Marshall, P. J. (Oxford: Clarendon Press, 1981), 140–42Google Scholar.

56. As late as 1883, when Sir Courtney P. Ilbert, a Law Member of Lord Ripon's legislative council, proposed a bill to end the judicial privilege of Europeans not to be tried by Indian justices, Europeans in India launched a massive agitation that forced the government to withdraw the bill and substitute a much weaker act that permitted the defendant to insist on a jury trial, where half the jurors were European. SeeStein, Burton, A History of India (Oxford: Blackwell Publishers, 1998), 272–73Google Scholar.

57. This is why, in America, efforts by people like James Otis to ground colonial rights in natural law did not succeed. Colonists preferred to resort to the much stronger and more easily defended argument that they were protected by English common law. In making this argument, they excluded non-British inhabitants of North America such as slaves and native Americans from the claim to equal rights. SeeOtis, James, “The Rights of the British Colonies Asserted and Proved,” in Pamphlets of the American Revolution, 1750–1776, ed. Bailyn, Bernard (Cambridge: Belknap Press of Harvard University Press, 1965–), 1:409–82.Google ScholarAlso seeShannon, , Indians and Colonists, 99Google Scholar.

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64. Francisco de Vitoria was one natural law writer who had emphasized equality between Christians and non-Christians in international law, in reference to the rights of Indians in South America. See hisDe Indis et de Iure Belli Relectiones (1557), ed. Nys, Ernest and trans. Bate, John Pawley (Washington: Carnegie Institution, 1917)Google Scholar. However, ultimately, he justified the Spanish occupation and annexation of territory and the subjugation of indigenous people on grounds of just war (if right of free passage and free missions was denied). For a rich analysis of the development of European thinking on international law and the rights of the colonized, seeCavallar, Georg, The Rights of Strangers: Theories of International Hospitality, the Global Community, and Political Justice since Vitoria (Burlington, Vermont: Ashgate Publishing Company, 2002)Google Scholar.

65. For a comprehensive history of the application of the principles of the law of nations to India from the sixteenth to the eighteenth centuries, seeAlexandrowicz, C. H., An Introduction to the History of the Law of Nations in the East Indies (16th, 17th and 18th Centuries) (Oxford: Clarendon Press, 1967)Google Scholar.

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73. Burke, Edmund, The Works of the Right Honourable Edmund Burke (London: Henry G. Bohn, 1854–1856), 6:147.Google Scholar

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77. Leibniz, Gottfried Wilhelm, Leibniz: Political Writings, ed. Riley, Patrick (Cambridge: Cambridge University Press, 1972), 165–83.Google ScholarThe only other natural law theorist to envision an ad hoc supranational authority capable of conducting collective sanctions against lawbreaking nations was Emmerich de Vattel. See his The Law of Nations, 154.

78. British historiography has in the past paid little attention to the critical role of the House of Lords and the Crown in the creation and preservation of empire. This neglect can be attributed to what David Armitage has called the “persistent reluctance of British historians to incorporate the Empire into the history of Britain.” SeeArmitage, , Ideological Origins of the British Empire, 13.Google ScholarAlso seeBurton, Antoinette, “Who Needs the Nation? Interrogating ‘British’ history,” in Cultures of Empire: Colonizers in Britain and the Empire in the Nineteenth and Twentieth Centuries: a Reader, ed. Hall, Catherine (New York: Routledge, 2000), 137–53.Google ScholarBritish historians have assumed a separation between the British nation that is seen as domestic and the empire that is viewed as external to the nation. They have either completely ignored the empire in their analysis of the growth of the British nation or assumed that intellectual, political, and institutional developments in England occurred independently of empire and were not in any significant way affected by its existence. So that while the British state did formulate policies for its imperial possessions, it was not in any way seen to be constituted by empire. As P. J. Marshall put it, “… the needs of empire led to no structural reform of the British state. It developed on its own with little regard to what was happening in the empire.” SeeMarshall, P. J., “Imperial Britain,” The Journal of Imperial and Commonwealth History 23 (1995): 382–83.CrossRefGoogle ScholarThus, while the role of institutions like the Crown, the Privy Council, the House of Lords, or the House of Commons has been studied exhaustively in relation to English politics, little is known about how these institutions responded to imperial needs, or, indeed, of any attempts at reconstructing or realigning these institutions in terms of empire.

79. In the context of the empire, the king was not simply a national sovereign but was also an imperial sovereign, for it was common allegiance to him that united the empire as a whole. SeeHoldsworth, , A History of English Law, 10:340–76.Google ScholarThis point was emphasized in no uncertain terms during the American revolution by colonists who claimed that what bound them to England was their loyalty and allegiance to the Crown, and not any form of subservience to the House of Commons. SeePocock, J. G. A., “Political Thought in the English-Speaking Atlantic, 1760–1790: The Imperial Crisis,” in The Varieties of British Political Thought, 1500–1800, ed. Pocock, J. G. A., Schochet, Gordon J., and Schwoerer, Lois G. (Cambridge: Cambridge University Press, 1993), 262.Google ScholarThis imperial role as the arbiter of justice in the empire already placed the Crown in an ambivalent position in which any narrow consideration of national interests could be construed as a betrayal of imperial trust and responsibility.

80. Turberville, Arthur Stanley, The House of Lords in the XVIIIth Century (Oxford: The Clarendon Press, 1927), 10.Google Scholar

81. Hansard's Parliamentary Debates (London: T. C. Hansard, 1853), 999.Google Scholar

82. Armitage, , Ideological Origins of the British Empire, 7.Google Scholar

83. Holdsworth, , A History of English Law, 11:6, 26.Google Scholar

84. Pike, Luke Owen, A Constitutional History of the House of Lords from Original Sources (New York: Macmillan and Co., 1894), 308.Google ScholarThe difference between the institutions of the House of Lords and the Privy Council was that, while the House of Lords was a representative judicial body that included representative peers from Ireland and Scotland, the Privy Council was a royal council, adjudicating on behalf of the Crown. The Privy Council's “judgement” was more in the nature of a recommendation on which the Crown made the final decision. Also, a clear hierarchy was instituted between these two courts, with the Privy Council serving as the ultimate court of appeal for the colonies, while appeals from the United Kingdom itself were heard only by the House of Lords and were not subject to the jurisdiction of the Privy Council. SeeSwinfen, D. B., Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–1986 (Manchester: Manchester University Press, 1987), 1–21Google Scholar.

85. Blackstone, , Commentaries, vol. 4, chap. 19, 258.Google Scholar

86. The independence of the House of Lords has been noted by the foremost constitutional scholars of England. As Walter Bagehot observed, the House of Lords was more independent than the House of Commons because, having “no consituency to fear or wheedle,” it was best placed to form disinterested judgments.Bagehot, Walter, The English Constitution: and Other Political Essays (New York: D. Appleton and Company, 1911), 180.Google ScholarHistorians of the House of Lords have commented on the fundamental role that the upper House was seen to play in the mixed and balanced government of the eighteenth century by serving as the “equipoise” of the constitution. SeeTurberville, A. S., The House of Lords, 33Google Scholar; Weston, C. C., English Constitutional Theory and the House of Lords, 1556–1832 (New York: Columbia University Press, 1965), 1–8Google Scholar; McCahill, Michael W., Order and Equipoise: The Peerage and the House of Lords, 1783–1806 (London: Royal Historical Society, 1978), 12–38Google Scholar.

87. Charles Howard McIlwain points out that Parliament as an institution itself developed as a judicial body, a high court, and it was only later in its history that the functions of adjudication and legislation were separated, with the House of Commons becoming primarily a legislative body, and the House of Lords continuing to have both a legislative and an adjudicative role. See hisThe High Court of Parliament and Its Supremacy: An Historical Essay on the Boundaries between Legislation and Adjudication in England (New Haven: Yale University Press, 1910).Google ScholarThis historical role made it possible in Burke's view for the Parliament to split itself into two judicial roles with respect to empire, the House of Commons taking on the role of a lawyer and the House of Lords taking on the role of an impartial judge.

88. Burke, , Speeches, 1:19.Google Scholar

89. Ibid., 17.

90. Pocock, , “Political Thought in the English-Speaking Atlantic,” 246–82.Google Scholar

91. Burke's proposition of reconstituting the House of Lords as a supranational tribunal, while not implemented in Britian in the eighteenth century, became a critical issue for the empire in the late nineteenth and early twentieth centuries. It was in this period that nationalists in Australia, Canada, and other colonies demanded that the distinction between the Privy Council and the House of Lords be abolished and a common imperial tribunal be created. This would include colonial representatives and render judgments impartially on appeals from the courts of all commonwealth countries including the United Kingdom itself. See Swinfen, Imperial Appeal, 1–112, 178–218.

92. Burke, , Speeches, 1:16.Google Scholar

93. Burke saw a clear connection between the loss of the American colonies and the need for preserving empire in the east. As early as 1777, criticizing the policies of the English government and the East India Company in India, he wrote, “Some people are great lovers of uniformity—they are not satisfied with a rebellion in the West. They must have one in the East: They are not satisfied with losing one Empire—they must lose another. …” SeeMarshall, , Writings and Speeches, 5:40Google Scholar.

94. Ibid., 11.

95. Burke, Edmund, Reflections on the Revolution in France, ed. Mahoney, T. H. D. (Indianapolis: The Bobbs-Merrill Company, 1955), 242.Google Scholar

96. Burke, , Speeches, 1:58.Google Scholar

97. This explains why Burke refused to interpret the English Revolution of 1688 in political terms as a popular revolution that brought people to political power but rather in juridical terms as an attempt at the restoration of the constitution that had been violated by the Crown.Burke, , Reflections on the Revolution in France, 35.Google ScholarAlso seeStanlis, , Edmund Burke: The Enlightenment and Revolution, 216–50Google Scholar.

98. Marshall, , Writings and Speeches, 7:694.Google Scholar

99. Burke, , Speeches, 1:58.Google Scholar

100. Ibid., 11.

101. Ibid., 17.

102. Burke, Edmund to Addington, Henry (8 January 1795) in The Correspondence of Edmund Burke, ed. McDowell, R. B. (Cambridge: Cambridge University Press, 1969), 8:110.Google Scholar

103. Ibid., 110.

104. The major book in this regard was James Mill's History of British India, originally published in 1820. It became a textbook for British administrators in India in the nineteenth century and was to be the intellectual foundation of British colonialism. SeeMill, James, The History of British India, 10 vols. (London: J. Madden, 1858)Google Scholar. It is one of the ironies of history that while Burke, who has been characterized as a leading conservative thinker, sought to defend the rights of Indians against the arbitrariness of the colonial state, it was leading liberal intellectuals like James Mill and John Stuart Mill, who resolutely defended the absolutist nature of the East India Company's government. This demonstrates how misleading a decontextualized and uncritical use of terms like “conservative” and “liberal” could be. For further discussion of the relationship between liberal thought and empire, seeParekh, Bhikhu, “Decolonizing Liberalism,” in The End of “Isms”?: Reflections on the Fate of Ideological Politics after Communism's Collapse, ed. Shtromas, Alexander (Oxford: Blackwell, 1994), 85–103Google Scholar, andMehta, , Liberalism and Empire, 46–114Google Scholar.

105. The Queen's Proclamation of 1858 that followed the Indian Revolt of 1857, a national conflagration that had threatened the very foundation of British rule in India, sought to stabilize imperial control over India by resurrecting once again Burke's discourse of imperial justice. Declaring an end to the East India Company's rule in India, the Queen's Proclamation pledged justice and equity to the native population and promised to uphold the ancient rights, usages, and customs of India. SeeReadings in the Constitutional History of India, 1757–1947, ed. Char, S. V. Desika (Delhi: Oxford University Press, 1983), 299–300.Google ScholarIt is significant that the British government brought out an edition of Burke's impeachment speeches soon after the Indian Mutiny in 1857 to enable the public to understand the deeper causes of the conflict between the colonizers and the colonized. SeeSpeeches of the Managers and Counsel in the Trial of Warren Hastings, ed. Bond, Edward Augustus (London: Longman, 1859–1861)Google Scholar.

106. See the debates over dominion status and the establishment of a commonwealth court in the first half of the twentieth century in Swinfen, , Imperial Appeal, 88–218Google Scholar, and McWhinney, Edward, Judicial Review in the English-Speaking World (Toronto: University of Toronto Press, 1956), 49–60Google Scholar.