¹ Letter No. 31 from S. F. Graham to the Punjab Government (hereafter PG), 21 February 1870, India Office Records, London (IOR), P/442/53, p. 114.

² Ibid.

³ Letter no. 273 from the PG to S. F. Graham, 25 February 1870, Ibid., p. 115.

⁴ ‘Murderous Outrages in the Punjab, Act No. XXIII of 1867’, in Theobold, W. (1868). The Legislative Acts of the Governor General of India in Council, from 1834 to the End of 1867; with an Analytical Abstract Prefixed to each Act, Vol. 5: 1866–67, Calcutta: Thacker, Spink & Co.Google Scholar, Calcutta, IOR, V/8/119.

⁵ The Murderous Outrages Act was extended to Baluchistan in 1881 and its provisions were re-enacted at the creation of the North-West Frontier Province (NWFP) under the auspices of the Murderous Outrages Regulation: National Archives of India (NAI), Foreign/Political A/October 1881/nos. 353–355; and NAI, Foreign/Frontier A/August 1901/nos. 63–72.

⁶ Prior to this law, the maximum punishment for attempted murder was transportation.

⁷ In cases where a commissioner was not available, the deputy commissioner could fill his place, and subordinate officers, including the assistant and extra assistant commissioners, would be called upon to act as the assessors. Executive officers, therefore, could include commissioners, deputy commissioners, assistant commissioners, and extra assistant commissioners. An amendment to the Murderous Outrages Act, following its renewal in 1877, extended to sessions judges the same jurisdiction in these matters as had been previously reserved solely for executive officers: ‘No. 9 of 1877: A Bill to Revive and Amend Act No. XXIII of 1867’, Gazette of India, 1877: Pt. V, IOR, V/11/45. The original intention of restricting these powers to executive officers appears to have been aimed at ensuring that only Europeans would be able to sit on these tribunals. Colonial officials, however, seemed to have been somewhat flexible when it came to adhering to this rule, and there were cases where native Indians were able to serve as members: NAI, Foreign/A. Pol. E/June 1884, nos. 704–714.

⁸ ‘Murderous Outrages in the Punjab, Act No. XXIII of 1867’, IOR, V/8/119, paras 2, 7, 10, pp. 460–62.

⁹ Ibid., para. 5, p. 461.

¹⁰ See Singha, R. (1998). A Despotism of Law: Crime and Justice in Early Colonial India, Oxford University Press, New DelhiGoogle Scholar; Wagner, K. A. (2007). Thuggee: Banditry and the British in Early Nineteenth Century India, Palgrave Macmillan, BasingstokeCrossRefGoogle Scholar; and Freitag, S. B. (1991). Crime in the Social Order of Colonial North India, Modern Asian Studies, 25:2, pp. 227–61CrossRefGoogle Scholar.

¹¹ The Murderous Outrages Act was actually directly modelled on this law, though with certain modifications that made it specific to the particular exigencies of the North-West Frontier. See Letter no. 141 from the Government of India (GOI) to the PG, 6 June 1866, IOR, P/438/13, no. 1, para. 4; and Letter no. 380–1129 from the PG to the GOI, 1 September 1866, IOR, P/438/15, no. 12, paras 4 & 9. For the Mappila Act itself, as well as an outline of the circumstances that led to its creation, see ‘Act No. XXIII of 1854, An Act for the Suppression of Outrages in the District of Malabar’, in Williams, W. P. (1856). The Acts of the Legislative Council of India relating to the Madras Presidency from 1848 to 1855, The Church of Scotland Mission Press, MadrasGoogle Scholar, IOR, V/4589; and Report from T. L. Strange to T. Pycroft, 25 September 1852, Correspondence on Moplah Outrages in Malabar, for the Years 1849–53 (1863), The United Scottish Press, Madras, IOR, V/3212.

¹² Since the 1780s, the idea of a government that both respected and was bound by the law had been central to British attempts to establish the moral supremacy of their brand of rule over the arbitrary sovereignty and ‘personal discretion’ of the regime of ‘oriental despotism’ they were supposed to have replaced: den Otter, S. (2012). ‘Law, Authority, and Colonial Rule’, in Peers, D. M. and Gooptu, N.India and the British Empire, Oxford University Press, Oxford, p. 168Google Scholar; Singha, A Despotism of Law; and Kolsky, E. (2005). Codification and the Rule of Colonial Difference: Criminal Procedure in British India, Law and History Review, 23:3, p. 652CrossRefGoogle Scholar.

¹³ den Otter, S. (2007). ‘“A Legislating Empire”: Victorian Political Theorists, Codes of Law, and Empire’, in Bell, D.Victorian Visions of Global Order: Empire and International Relations in Nineteenth-Century Political Thought, Cambridge University Press, Cambridge, pp. 89–112CrossRefGoogle Scholar.

¹⁴ Difficulties in enforcing a regular judicial system, for example, led to the introduction of a series of special regulations in 1872 known as the ‘Frontier Crimes Regulations’. These Regulations represented an attempt to govern Pashtun society according to what the British believed were their own customs and traditions: Letter no. 440S from the PG to the GOI, 17 September 1886, IOR, L/P&J/6/202, file 776, pp. 301–04. See also Beattie, H. (2002). Imperial Frontier: Tribe and State in Waziristan, Curzon Press, RichmondGoogle Scholar, Chapter 6.

¹⁵ V. J. Patel once described it as a ‘criminal’ law, and S. Satyamurti similarly railed against how such laws were absolutely incompatible with true notions of justice: see, respectively, Legislative Assembly Debates, 19 March 1925, IOR, V/9/68; Legislative Assembly Debates, 20 February 1936, IOR, V/9/131; and Legislative Assembly Debates, 9 April 1936, IOR, V/9/134.

¹⁶ See, for example, Benton, L. (2010). A Search for Sovereignty: Law and Geography in European Empires, 1400–1900, Cambridge University Press, CambridgeGoogle Scholar; Stoler, A. L. (2006). On Degrees of Imperial Sovereignty, Public Culture, 18:1, pp. 125–46CrossRefGoogle Scholar; Mbembe, A. (2003). Necropolitics, Public Culture, 15:1, pp. 11–40CrossRefGoogle Scholar; and Hussain, N. (2003). The Jurisprudence of Emergency: Colonialism and the Rule of Law, University of Michigan Press, Ann ArborCrossRefGoogle Scholar.

¹⁷ See Scott, J. C. (2009). The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia, Yale University Press, New HavenGoogle ScholarPubMed; Guha, R. (1989). The Unquiet Woods: Ecological Change and Peasant Resistance in the Himalaya, Oxford University Press, New DelhiGoogle Scholar.

¹⁸ Robb, P. (1997). The Colonial State and Constructions of Indian Identity: An Example of the Northeast Frontier in the 1880s, Modern Asian Studies, 31:2, pp. 245–83CrossRefGoogle Scholar; Van Schendel, W. (2009). A History of Bangladesh, Cambridge University Press, CambridgeCrossRefGoogle Scholar; Van Schendel, W., Mey, W. W. and Dewan, A. K. (2001). The Chittagong Hill Tracts: Living in a Borderland, The University Press, Dhaka, pp. 54–70Google Scholar. For a recent examination of the use of ‘punitive’ military expeditions in subduing this region, see Guite, J. (2011). Civilisation and its Malcontents: The Politics of Kuki Raid in Nineteenth Century Northeast India, The Indian Economic and Social History Review, 48:3, pp. 339–76CrossRefGoogle Scholar.

¹⁹ Baruah, S. (2005). Durable Disorder: Understanding the Politics of Northeast India, Oxford University Press, New Delhi, p. 61Google Scholar.

²⁰ Nasser Hussain has explained this as a fundamental ‘tension’ that existed at the heart of British colonial legality in India, but, as this article argues, the imposition of the rule of law did not necessarily entail the elimination of powerful executive authority. See Hussain, The Jurisprudence of Emergency, pp. 5, 7.

²¹ See, for example, Mehta, U. S. (1999). Liberalism and Empire: a Study in Nineteenth-Century British Liberal Thought, University of Chicago Press, ChicagoGoogle Scholar; and Pitts, J. (2005). A Turn to Empire: The Rise of Imperial Liberalism in Britain and France, Princeton University Press, Princeton, New JerseyCrossRefGoogle Scholar.

²² India's legal reform movement even outpaced similar reform efforts back home in Britain. These reforms also took place within a wider global movement and engagement with the idea of legal codification which dated back to the adoption of the French Civil Code, or Code Napoléon, in 1804, and the Thibaut-Savigny debates in Prussia in 1814: see Mantena, K. (2010). Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism, Princeton University Press, Princeton, New Jersey, pp. 91–92Google Scholar. Elizabeth Kolsky has also discussed the important global dimension of the debates surrounding codification: Kolsky, Codification and the Rule of Colonial Difference, pp. 632–33.

²³ den Otter, ‘“A Legislating Empire”’, p. 89.

²⁴ Mantena, Alibis of Empire, pp. 90–91.

²⁵ den Otter, ‘“A Legislating Empire”’, p. 107.

²⁶ Mantena, Alibis of Empire, p. 97.

²⁷ Stephen, J. F. (1872). Minute on the Administration of Justice in British India, Home Secretariat Press, CalcuttaGoogle Scholar, IOR, V/23/28, fiche no. 201–206, index 150, p. 85. As he summed up several years later, ‘many persons object not so much to any particular laws, as to the government of the country by law at all’: Stephen, J. F. (1875). ‘Legislation under Lord Mayo’, in Hunter, W. W.A Life of the Earl of Mayo, Fourth Viceroy of India, Smith, Elder, and Co., London, p. 152Google Scholar.

²⁸ Eschewing the ponderous procedural practices and legislative regulations that prevailed elsewhere in India, Governor-General Dalhousie had famously insisted that he had ‘no wish that our voluminous laws should be introduced into this new country’, and that officers should possesses a much ‘larger discretion’ than they possessed in the older provinces: Letter from the Governor-General to the Board of Administration, 31 March 1849, IOR, H/760, paras 12, 17. The Punjab government often enjoyed boasting how ‘no effort has been spared to render justice cheap, quick, sure, simple and substantial . . . every other consideration has been rendered subordinate to these cardinal points’: General Report on the Administration of the Punjab Territories, from 1854–55 to 1855–56 Inclusive (1858), Chronicle Press, Lahore, para. 5, p. 5. For more on the ‘paternalistic’ and authoritarian aspects of Punjab governance, see Major, A. J. (1996). Return to Empire: Punjab under the Sikhs and British in the Mid-nineteenth Century, Sterling Publishers, New DelhiGoogle Scholar; Talbot, I. (1988). The Punjab and the Raj 1849–1947, Manohar, New DelhiGoogle Scholar; and Gilmartin, D. (2009). The Strange Career of the Rule of Law in Colonial Punjab, Pakistan Vision, 10:2, pp. 1–21Google Scholar, University of the Punjab Pakistan Study Centre, Lahore.

²⁹ Johnson, G. (1991). ‘India and Henry Maine’, in Diamond, A.The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal, Cambridge University Press, Cambridge, p. 378Google Scholar.

³⁰ Wagner, K. A. (2013). “‘Calculated to Strike Terror”: Colonial Violence and the Spectacle of Power in British India’, Paper presented at the ReNewing the Military History of Colonial South Asia conference, University of Greenwich, London, 22 August 2013.

³¹ As Kolsky has already pointed out, the processes of codification have historically much more easily taken root in undemocratic, authoritarian, and despotic regimes, such as that which existed in British India: Kolsky, Codification and the Rule of Colonial Difference, p. 634.

³² Stephen, Minute on the Administration of Justice, p. 7. According to Stephen, Punjab had actually provided the first example of a government that operated under codified law anywhere in British India: ‘one of the first acts of the Board of Administration was to draw up what were in substance Codes. Lord Lawrence and his colleagues enacted for the Panjáb a Penal Code, Codes of civil and criminal procedure, and a Code in scope not very unlike the French Code Civil, many years before such a Code had the force of law in other parts of India’: Stephen, ‘Legislation under Lord Mayo’, p. 179.

³³ ‘Men under those circumstances,’ he continued, ‘know the limits of their power, and act within it vigorously’: Stephen, Minute on the Administration of Justice, p. 94.

³⁴ Lauren Benton's recent work has been particularly useful in thinking about empire as a series of sites for the creation and negotiation of various new, uneven, competing, ‘lumpy’ forms of legal and political sovereignty: Benton, A Search for Sovereignty, pp. 285–90. As such, it is overly simplistic to conclude that empire is merely a zone of exception ‘par excellence’: Mbembe, Necropolitics, p. 24.

³⁵ Kolsky, E. (2010). Colonial Justice in British India: White Violence and the Rule of Law, Cambridge University Press, CambridgeGoogle Scholar.

³⁶ Comaroff, J. L. and Comaroff, J. (2006). ‘Law and Disorder in the Postcolony: an Introduction’, in Comaroff, J. L. and Comaroff, J.Law and Disorder in the Postcolony, University of Chicago Press, Chicago, pp. 29–30CrossRefGoogle Scholar.

³⁷ See, for example, Elkins, C. (2005). Britain's Gulag: The Brutal End of Empire in Kenya, Jonathan Cape, LondonGoogle Scholar; Sherman, T. C. (2010). State Violence and Punishment in India, Routledge, LondonGoogle Scholar; Gott, R. (2011). Britain's Empire: Resistance, Repression and Revolt, Verso, LondonGoogle Scholar; Thomas, M. (2012). Violence and the Colonial Order: Police, Workers and Protest in the European Colonial Empires, 1918–1940, Cambridge University Press, CambridgeCrossRefGoogle Scholar; and Kolsky, Colonial Justice in British India.

³⁸ The specific wording of this oft-quoted and paraphrased passage is: ‘war is not merely an act of policy but a true political instrument, a continuation of political intercourse, carried on with other means’: Von Clausewitz, C. (trans. Howard, M.) (2008). On War, Oxford University Press, Oxford, p. 29Google Scholar. Foucault posed a similar question about the operation of power in modern European society in The History of Sexuality Vol. 1 as well as his 1975–76 Collège de France lecture series: Foucault, M. (1990). The History of Sexuality Vol. 1: The Will to Knowledge, Penguin Books, London, p. 137Google Scholar; Foucault, M. (trans. Macey, D.) (2003). ‘Society Must Be Defended’: Lectures at the Collège de France, 1975–76, Penguin, London, p. 15Google Scholar.

³⁹ John Comaroff has noted, for example, how in nineteenth-century South Africa, Tswana-speaking peoples referred to British overrule via law as ‘the English Mode of Warfare’: Comaroff, J. L. (2001). Symposium Introduction: Colonialism, Culture, and the Law: A Foreword, Law and Social Inquiry, 26:2, p. 306CrossRefGoogle Scholar.

⁴⁰ Between 1849 and 1850, it was ‘estimated’ that there was approximately one murder per day in the district (though colonial officials admitted that this astounding figure remained ‘unconfirmed’): Letter No. 302–3254 from G. R. Elsmie to the Commissioner and Superintendent, Peshawar Division, 11 November 1873, IOR, P/137, para. 4, p. 926.

⁴¹ Radhika Singha, for example, has explored how groups such as the Bhils and Pindaris were branded by the colonial state as inherently ‘predatory’, criminal communities to justify the use of often brutal and oppressive measures to control them: Singha, A Despotism of Law. Kim Wagner has examined how similar practices were also employed in suppressing the Thugs during the nineteenth century: Wagner, Thuggee.

⁴² Writing in January of 1852, after reviewing a report compiled by John Lawrence on the state of policing the Peshawar Valley, Governor-General Dalhousie concluded that ‘the people of these hills are not our subjects, [that] they are poor, lawless, reckless and that they and their fathers before them . . . have lived upon plunder and have been accustomed to regard it as a right not as a crime’: Minute by the Governor-General, 16 January1852, IOR, P/SEC/IND/173. Mountstuart Elphinstone's highly influential Account of the Kingdom of Caubul was one of the earliest British works to portray the Pashtuns as ‘predatory’: Elphinstone, M. (1815). An Account of the Kingdom of Caubul, and Its Dependencies in Persia, Tartary, and India; Comprising a View of the Afghaun Nation, and a History of the Dooraunee Monarchy, Longman, Hurst, Rees, Orme, and Brown, Paternoster-Row, and J. Murray, LondonGoogle Scholar.

⁴³ Pashtunwali encompassed an amalgam of different normative traditions and practices, and was adhered to in varying degrees by different Pashtun groups. See Ahmed, A. S. (1980). Pukhtun Economy and Society: Traditional Structure and Economic Development in Tribal Society, Routledge and Kegan Paul, LondonGoogle Scholar, esp. Chapter 4; Beattie, Imperial Frontier, pp. 7–8; and Nichols, R. (2001). Settling the Frontier: Land, Law and Society in the Peshawar Valley, 1500–1900, Oxford University Press, Karachi, pp. 6–7, 25–26Google Scholar.

⁴⁴ James, H. R. (1865). Report on the Settlement of the Peshawur District, Dependent Press, LahoreGoogle Scholar, IOR, W/874, para. 207, p. 70.

⁴⁵ Letter No. 302–3254 from G. R. Elsmie to the Commissioner and Superintendent, Peshawar Division, 11 November 1873, IOR, P/137, para. 9, p. 927.

⁴⁶ Badal (revenge or vendetta) and its closely related concept of tarboorwali (agnatic rivalry) were central precepts of Pashtunwali, and often led to conflicts and internal disputes within Pashtun society: Ahmed, Pukhtun Economy and Society, pp. 90–91.

⁴⁷ Edwardes, H. (1851). A Year on the Punjab Frontier in 1848–49, 2^nd ed., Richard Bentley, London, Vol. 1, p. 71Google Scholar.

⁴⁸ Ibid. See also Political Diaries of Lieut. H. B. Edwardes, Assistant to the Resident at Lahore 1847–1849, The Pioneer Press, Allahabad.

⁴⁹ Political Diaries of Lieutenant Reynell G. Taylor, Mr. P. Sandys Melvill, Pandit Kunahya Lal, Mr. P. A. vans Agnew, Lieutenant J. Nicholson, Mr. L. Bowring and Mr A. H. Cocks, 1847–1849, The Pioneer Press, Allahabad. John Nicholson was also attacked by a fanatic during his tenure as deputy commissioner of Bannu between 1851 and 1856: Letter no. 60 from S. F. Graham to the PG, 6 May 1869, IOR, L/PS/6/566, coll. 198.

⁵⁰ Legislative Council Proceedings, 4 January 1867, IOR, V/9/10, p. 6. Nine Europeans and one Indian official were killed or injured in the Peshawar, Kohat, and Hazara districts between 1851 and 1865: Letter no. 162–611 from the PG to the GOI, 17 April 1867, NAI, Foreign/Political A/May 1867/nos. 30–31, no. 30.

⁵¹ Copy of letter no. 107 from G. Shortt to the PG, 1 March 1866, NAI, Foreign/Political A/March 1866/nos. 131–33, no. 30, paras 2–3.

⁵² Court of the Commissioner of Peshawur Division, 3 March 1866: The Crown versus Summad Afreedee, NAI, Foreign/Political A/March 1866/nos. 137–39, no. 138.

⁵³ Ibid.

⁵⁴ Copy of letter no. 15 from J. R. Becher to the PG, 3 March 1866, Ibid., para. 4.

⁵⁵ Copy of letter no. 107 from G. Shortt to the PG, 1 March 1866, NAI, Foreign/Political A/March 1866/nos. 131–33, no. 132, para. 10.

⁵⁶ Letter no. 118–172 from the PG to the GOI, 5 March 1866, Ibid., no. 131, para. 8.

⁵⁷ Memorandum by His Honour the Lieutenant-Governor of Punjab, D. F. McLeod, 20 November 1866, IOR, P/438/15, no. 14, p. 14.

⁵⁸ Ibid., p. 15.

⁵⁹ Letter from Henry Maine to Charles Wood, 19 February 1864, Charles Wood Collection, IOR, Mss/Eur/F78/114/2, fp. 41.

⁶⁰ Letter from Charles Wood to Henry Maine, 24 March 1864, Henry Maine Papers, IOR, Mss/Eur/C179, fp. 79.

⁶¹ Letter from Henry Maine to Charles Wood, 19 February 1864, Charles Wood Collection, IOR, Mss/Eur/F78/114/2, fp. 41.

⁶² In his view, ‘The peculiar system of the Punjab, the accumulation of diverse functions, political, fiscal, administrative, and judicial, in the same hands, is, no doubt, excellently adapted for countries which are just settling down from the anarchy of Native Government; but it is most unjust to retain such a system after it has ceased to be necessary, and to sacrifice all other considerations to the transient need of concentrated authority’: Minute by H. S. Maine, 26 March 1864, NAI, Foreign/Political A/May 1865/nos. 98–123, no. 109, p. 2.

⁶³ According to the Punjab government, while such ‘elaborate and comprehensive enactments’ were appropriate for sufficiently ‘advanced’ societies, in Spiti and other ‘backward’ areas, they represented nothing but ‘superfluous and bewildering abstractions’. In their opinion, before ‘civilized’ law could be brought to such areas, they first needed to be thoroughly subjected by a more rough-and-ready form of administration: ‘throughout India there must be many tracts into which rules and forms as simple as possible are all that can for many years to come, be profitably introduced, and that it will more conduce to the ultimate subjection of primitive populations to sound legislation to accustom them to temporary regulations adapted to their backward circumstances’: Letter no. 19–22 from the PG to the GOI, 9 January 1864, IOR, P/204/71, no. 287, paras 7–8, pp. 502–03.

⁶⁴ For example, in July of 1866, Maine again had to rebuke the Punjab government following their attempt to apply illegal exemptions for their officers from the Code of Civil Procedure without the consent of the governor-general by using the authority of one law to circumvent another. ‘It is too much the habit in India,’ Maine complained, ‘to suppose that we are bound to submit to all the preposterous or inconvenient consequences which to follow from the inadvertent use of over-general language in legislative enactments’: ‘Minute by Henry Maine’, 6 July 1866, and ‘Minute’, 9 July 1866, in Minutes by Sir H. S. Maine, 1862–69: with a Note on Indian Codification (1892), Office of the Superintendent of Government Printing, India, Calcutta, IOR, V/3130, pp. 85–89.

⁶⁵ ‘Minute by Henry Maine’, 28 January 1864, in Ibid., p. 26. D. G. Barkley made a similar observation in his 1871 compilation of early colonial law in Punjab: ‘There are . . . many indications that for a long series of years the notion was generally current that no enactments, whenever passed into law, or however general in their terms, were applicable to the Punjab, except so far as it was found convenient in practice to act upon them’: Barkley, D. G. (1871). The Non-Regulation Law of the Punjab, Punjab Printing Company, LahoreGoogle Scholar, IOR, V/5507, p. iii.

⁶⁶ Although Maine was willing to concede that some cases of attempted murder did, in fact, merit capital punishment, he pointed out that most of these were ‘so various’ that they required careful consideration on a case-by-case basis: Ibid. Interestingly enough, this view was also expressed by Becher: see Copy of Memorandum by Colonel J. Becher, 11 August 1866, IOR, P/438/15, no. 13, p. 11.

⁶⁷ ‘Minute by Henry Maine’, 11 September 1866, in Minutes by Sir H. S. Maine, p. 93.

⁶⁸ Ibid., p. 94.

⁶⁹ Legislative Council Proceedings, 4 January 1867, IOR, V/9/10, p. 8.

⁷⁰ Legislative Council Proceedings, 22 February 1867, IOR, V/9/10, p. 89.

⁷¹ Legislative Council Proceedings, 21 December 1866, IOR, V/9/9, p. 245; Legislative Council Proceedings, 22 February 1867, IOR, V/9/10, p. 89. For a recent look at the important political and legal debates that sprung up as a result of the Eyre controversy, see Kostal, R. W. (2008). A Jurisprudence of Power: Victorian Empire and the Rule of Law, Oxford University Press, OxfordCrossRefGoogle Scholar. See also Benton, A Search for Sovereignty, pp. 211–12.

⁷² According to Lawrence, ‘it would be better not to allow our officers to act extra vires . . . I think that on the whole it is a lesser evil politically to insist on officers acting in accordance with the law, than to authorize a violation of the law, such violation of the law is understood by the people, and is considered more or less a grievance, and has a tendency to excite compassion for the criminal. Whereas a law however stringent, being limited to special cases, has the effect of upholding the authority of the State, and exciting a just terror in the would-be murderer, while it is not objected to by the people in general. Moreover, in my mind, it has an injurious effect on our judicial officers allowing them thus to exceed their powers: Keep with (K. W.) note by John Lawrence, 11 October 1866, NAI, Foreign/Judicial/March 1867/nos. 12–14. Lawrence reiterated this point again during the Legislative Council debates over the Murderous Outrages Act. It was a ‘very great evil in itself that officers should act above and beyond the law’, he remarked, and was equally ‘fraught with evil and danger that outrages of this description should take place, and yet that there should be no law permitting summary trial and execution in such cases’: Legislative Council Proceedings, 4 January 1867, IOR, V/9/10, p. 8.

⁷³ Legislative Council Proceedings, 21 December 1866, IOR, V/9/9, p. 245.

⁷⁴ Ibid.

⁷⁵ See NAI, Foreign/Frontier A/January 1905/nos. 7–9; NAI, Foreign/External B/October 1894/nos. 53–56; NAI, Foreign/External A/September 1901/nos. 9–21.

⁷⁶ Legislative Council Proceedings, 15 March 1867, IOR, V/9/10, pp. 199–200.

⁷⁷ Ibid., p. 196.

⁷⁸ When the Murderous Outrages Act bill was first introduced, the Legislative Council remarked how they ‘could easily imagine the feeling of utter insecurity, not to say also of vehement indignation, on the part of the small European community, when one of their number lost his life, by the hand of some fanatical miscreant, so long as the murderer remained unpunished’: Legislative Council Proceedings, 21 December 1866, IOR, V/9/9, p. 245.

⁷⁹ Comaroff and Comaroff, ‘Law and Disorder in the Postcolony’, p. 31.

⁸⁰ Legislative Council Proceedings, 4 January 1867, IOR, V/9/10, p. 8; Legislative Council Proceedings, 22 February 1867, IOR, V/9/10, p. 89.

⁸¹ See, for example, Bellew, H. W. (1868). Our Punjab Frontier: Being a Concise Account of the Various Tribes by which the North-West Frontier of British India is Inhabited, Wyman Bros. Publishers, CalcuttaGoogle Scholar; Davies, C. C. (1932). The Problem of the North-West Frontier 1890–1908, with a Survey of Policy since 1849, Cambridge University Press, CambridgeGoogle Scholar; Howell, E., Repr. (1979). Mizh: a Monograph on Government's Relations with the Mahsud Tribe, Oxford University Press, KarachiGoogle Scholar; Caroe, O. (1964). The Pathans 550 B.C.–A.D., Macmillan, LondonGoogle Scholar. Recent scholarly work, however, has attempted to revise this ‘myth’ of perpetual frontier violence and warfare by showing how more pacific, political alternatives existed. See, for instance, Beattie, Imperial Frontier; Tripodi, C. (2011). Edge of Empire: The British Political Officer and Tribal Administration on the North-West Frontier 1877–1947, Ashgate, FarnhamGoogle Scholar; Banerjee, M. (2000). The Pathan Unarmed: Opposition and Memory in the North West Frontier, James Currey, OxfordGoogle Scholar; and Leake. E. M. (2013). ‘The Politics of the North-West Frontier of the Indian Subcontinent, 1936–65’, PhD thesis, University of Cambridge.

⁸² Between 1849 and 1855 alone, no less than fifteen military expeditions were launched by the British: Temple, R. and Davies, R. H. (1865). Report Showing the Relations of the British Government with the Tribes of the North-West Frontier of the Punjab from Annexation in 1849 to the Close of 1855; and Continuation of the Same to August 1864, Punjab Government Press, LahoreGoogle Scholar, IOR, V/27/273/1/1, p. 61. This highly influential report was first compiled by Temple in 1856 and later expanded by Davies in 1865. A great deal of literature has focused on the brutality of these campaigns, but as Gavin Rand has recently pointed out, many of these expeditions saw very little direct fighting and were often more about ‘penetrating’ tribal territory as a ‘performance’ of British power, than they were about razing villages and killing tribesmen: Rand, Gavin ‘“Lifting the Purdah”: The Black Mountain Expeditions’, Paper presented at the ReNewing the Military History of Colonial South Asia conference, University of Greenwich, London, 22 August 2013.

⁸³ This article fully recognizes the problematic nature of the term ‘tribe’ but retains it for the sake of simplicity and because this was the word invariably employed by the British. For scholarly literature deconstructing the meaning and history of this term, see Scott, The Art of Not Being Governed; and Tapper, R. (1983). The Conflict of Tribe and State in Iran and Afghanistan, Croom Helm, LondonGoogle Scholar.

⁸⁴ Although these plains districts retained a strong reputation for being ‘turbulent’ and ‘lawless’, they were nonetheless subject, if only nominally, to more regularized British administrative mechanisms of revenue collection and judicial administration. Pashtuns from the hilly, ‘unsettled’ or ‘tribal’ districts of the frontier, on the other hand, lived largely outside British jurisdiction and control, and continued to be governed by the precepts of Pashtunwali and the rulings of tribal jirgas, or councils: Ahmed, A. S. (1983). ‘Tribes and States in Waziristan’, in Tapper, The Conflict of Tribe and State, p. 196; Christensen, R. O. (1988). ‘Tribesmen, Government and Political Economy on the North-West Frontier’, in Dewey, C., Arrested Development in India: The Historical Dimension, Manohar, New Delhi, p. 171Google Scholar. For more on this subject, see Ahmed, Pukhtun Economy and Society.

⁸⁵ Hopkins, B. D. (2009). Jihad on the Frontier: A History of Religious Revolt on the North-West Frontier, 1800–1947, History Compass, 7:6, p. 1460CrossRefGoogle Scholar.

⁸⁶ Younghusband, G. J. (1898). Indian Frontier Warfare, Kegan Paul, Trench, Trübner and Co., London, p. 1Google Scholar.

⁸⁷ Memorandum by H. B. E. Frere on Systems Pursued in the Administration of the Sind and Punjab Frontiers, 22 March 1876, NAI, Foreign/Political A/February 1878/nos. 149–156, p. 2.

⁸⁸ Legislative Council Proceedings, 15 March 1867, IOR, V/9/10, p. 198.

⁸⁹ Ibid., p. 199.

⁹⁰ Ibid. This was a point made by the Punjab government as well in their initial correspondence petitioning for the creation of a special new law to prosecute such crimes: Letter no. 118–172 from the PG to the GOI, 5 March 1866, NAI, Foreign/Political A/March 1866/nos. 131–33, no. 131, para. 8.

⁹¹ As R. H. Davies put it, ‘the dispatch of an expedition into the hills is always in the nature of a judicial act. It is the delivery of a sentence and the infliction of a punishment for international offences. It is . . . the only means by which retribution can be attained for acknowledged crimes committed . . . and by which justice can be satisfied or future outrages prevented. In the extreme case in which expeditions are unavoidable, they are analogous to legal penalties for civil crime,—evils in themselves inevitable from deficiencies of preventive police, but redeemed by their deterrent effects’: Davies, R. H. (1865). Narrative of our Relations with the Mahommedan Tribes on our North-Western Frontier from the close of the year 1855 to 1864, NAI, Foreign/Political A/March 1865/nos. 11–12, no. 12, pp. 14–15.

⁹² Legislative Council Proceedings, 15 March 1867, IOR, V/9/10, p. 200.

⁹³ According to Benjamin D. Hopkins and Magnus Marsden, it was used mainly to refer to religious ‘excess’: Hopkins, B. D. and Marsden, M. (2011). Fragments of the Frontier, Hurst and Company, London, p. 80Google Scholar.

⁹⁴ W. W. Hunter's infamous The India Musalmans (1871) was central in mobilizing British anti-Muslim hysteria following 1857: Hunter, W. W. (1871). The Indian Musalmans: are they Bound in Conscience to Rebel against the Queen?, Trübner and Co., LondonGoogle Scholar.

⁹⁵ Padamsee, A. (2005). Representations of Indian Muslims in British Colonial Discourse, Palgrave Macmillan, Basingstoke, pp. 56–64CrossRefGoogle Scholar. In this sense, the use of this term was similar to the project of classifying the Thugs and other supposedly criminalized communities: see Singha, A Despotism of Law; and Wagner, Thuggee.

⁹⁶ This was a particularly powerful and enduring trope that reoccurs again and again in colonial discourse. See, for example, Edwardes, H.A Year on the Punjab Frontier; General Report upon the Administration of the Punjab Proper, for the Years 1849–50 & 1850–5 (1854), Chronicle Press, Lahore, paras 42, 88–89, pp. 15, 27Google Scholar; and Bellew, Our Punjab Frontier, p. 12. According to Bellew, ‘The most notable traits in their character are unbounded superstition, pride, cupidity and a most vengeful spirit’: Ibid., p. 207.

⁹⁷ Temple and Davies, Report Showing the Relations of the British Government with the Tribes, para. 106, p. 62.

⁹⁸ Legislative Council Proceedings, 15 March 1867, IOR, V/9/10, p. 198.

⁹⁹ Court of the Commissioner of Peshawur Division, 3 March 1866: The Crown versus Summad Afreedee, NAI, Foreign/Political A/March 1866/nos. 137–39, no. 138.

¹⁰⁰ Ibid.

¹⁰¹ Legislative Council Proceedings, 15 March 1867, IOR, V/9/10, pp. 196–97; Grant Duff, M. E. (1892). Sir Henry Maine: a Brief Memoir of his Life, John Murray, London, p. 259Google Scholar. Derived from the Arabic ghazvah, a word that historically referred to religious warfare against non-Muslims, the use of the word ghazi (religious warrior) was part of a repertoire of religious rhetoric that had been increasingly used to frame anti-imperial struggles against non-Muslim polities along the frontier since the time of the Sikh kingdom: Hopkins, Jihad on the Frontier, pp. 1461–463.

¹⁰² Legislative Council Proceedings, 15 March 1867, IOR, V/9/10, pp. 197–98.

¹⁰³ Copy of letter no. 56 from F. R. Pollock to the PG, 14 August 1866, IOR, P/438/15, no. 13, para. 8, p. 11; and Copy of Memorandum by Colonel J. Becher, 11 August 1866, Ibid., p. 11.

¹⁰⁴ As he argued, ‘the Council [set] out to render easy the business of the Commissioner who was to try offenders under the Act, and not tie him up with a definition which might hereafter cast uncertainty on his acts, and render the proceedings actually liable to the very delay for the avoidance of which the present measure was proposed’: Legislative Council Proceedings, 22 February 1867, IOR, V/9/10, p. 93.

¹⁰⁵ In their eyes, ‘Terms which rightly apply to “holy warfare” serve, when used in connection with foul murder, to keep alive the ignorance and mistaken credulity to which these crimes, in part, owe their origin’: Letter No. 2057F from the GOI to the PG, 11 August 1900, NAI, Foreign/Frontier A/August 1901/nos. 63–72.

¹⁰⁶ Court of the Commissioner of Peshawur Division, 3 March 1866: The Crown versus Summad Afreedee, NAI, Foreign/Political A/March 1866/nos. 137–39, no. 138.

¹⁰⁷ K. W. noted by John Lawrence, 11 October 1866, NAI.

¹⁰⁸ This is a term I have borrowed from Kim Wagner and his recent work on exemplary forms of punishment and the spectacle of public execution in colonial India. In it, Wagner argues that the British were deeply concerned with finding ‘culturally specific’ forms of punishment when conventional methods, such as hanging, were deemed to be ineffective in ‘translating’ British notions of justice into the Indian world: Wagner, “‘Calculated to Strike Terror”’.

¹⁰⁹ Section 3 of the Moplah Outrages Act contained the proviso regarding burning: ‘Act No. XXIII of 1854, An Act for the Suppression of Outrages in the District of Malabar’, in Williams, The Acts of the Legislative Council of India relating to the Madras Presidency, IOR, V/4589, p. 294.

¹¹⁰ As John Lawrence put it, ‘I am in favour of burning the body of a Mahomedan assassin, not that I desire to outrage his corpse, but that knowing that burning it has a deterrent effect on the Native mind, I consider that we are fully justified in making use of such a superstition': K. W. note by John Lawrence, 11 October 1866.

¹¹¹ Wagner, ‘“Calculated to Strike Terror’”. In April of 1900, F. D. Cunningham, the superintendent and commissioner of the Peshawar Division, did actually suggest that fanatics might be executed with cannons, but his recommendation does not seem to have been seriously considered by his colleagues. ‘I am inclined to think,’ Cunningham wrote, ‘that blowing from a gun might be more effectual—it strikes more dread . . . There is nothing inhuman or barbarous in it, and nothing in hanging to compel us to stick to it alone. One nation beheads, another kills malefactors by an electric shock, another by the Garrotte, we hang; I see no reason why we should not blow from a gun’. Note by F. D. Cunningham on the Suggestion for Checking Murders of which the Motive is Religious Fanaticism, 3 April 1900, IOR/L/PJ/6/583, file 2012.

¹¹² In a letter to the Punjab government from November of 1873, D. C. MacNabb, the superintendent and commissioner of the Peshawar Division, wrote that, ‘It is often shown to be a mistake to hand over the bodies of executed criminals to their friends for burial, as the murderer's grave frequently becomes a shrine decorated with flags, and the cowardly assassin comes to be venerate as a “sháhid,” or martyr. Burning the body is a punishment that is often condemned as vindictive, but I confess I have never been able to understand the grounds for this objection. I think, however, that this (to a Muhammadan) terrible aggravation of the sentence of death should be reserved to cases of the greatest atrocity’: Letter no. 183–3254 from D. C. MacNabb to the PG, 14 November 1873, IOR, P/137, p. 925. Burning had yet another benefit as well, since it would ensure that British jails would not be overrun by the bodies of dead fanatics and converted into cemeteries: see K. W. Report on the Question of the Burning of the Dead Bodies of Ghazis by E. H. S. Clarke, 12 June 1895, NAI, Foreign/Secret F/May 1896/nos. 322–332.

¹¹³ Ibid.

¹¹⁴ See Copy of letter no. 56 from F. R. Pollock to the PG, 14 August 1866, IOR, P/438/15, p. 11; and Copy of Memorandum by Colonel J. Becher, 11 August 1866, IOR, P/438/15, p. 11.

¹¹⁵ K. W. Report on the Question of the Burning of the Dead Bodies of Ghazis by E. H. S. Clarke, 12 June 1895.

¹¹⁶ ‘Murderous Outrages in the Punjab, Act No. XXIII of 1867’, IOR, V/8/119, para. 7, p. 462. In leaving out a specific provision about burning, it was also noted how this would enable officers to inflict similarly punitive measures against the bodies of any Hindu fanatics by burying them.

¹¹⁷ There were numerous reported Murderous Outrages Act cases where fanatics' bodies were burned. See, for example, NAI, Foreign/A. Pol. E./June 1884/nos. 704–714; NAI, Foreign/A. Pol. E./July 1884/nos. 5–6; NAI, Foreign/External B/July 1892/no. 150; and NAI, Foreign/External B/October 1894/nos. 53–56.

¹¹⁸ K. W. Report on the Question of the Burning of the Dead Bodies of Ghazis by E. H. S. Clarke, 12 June 1895.

¹¹⁹ Ibid.

¹²⁰ Letter no. 490F from the GOI to the PG, 20 February 1896, NAI, Foreign/Secret F/May 1896/nos. 322–332. See also Letter no. 99 from the GOI to George F. Hamilton, 19 May 1896, Ibid.

¹²¹ ‘Believe me, Sirdars,’ he stated, ‘that the idea that any one can earn the favour of Almighty God by killing some one else against whom he bears no grudge, and who has done him no wrong, simply because he follows another religion—which is only another way of worshipping the same God—is one of the stupidest notions that ever entered into the brain of a human being. If we could lift the purdah of the future world and see what fate has attended these wretched murderers, I do not think that there would be many future ghazis on the Pathan border, or in Baluchistan’: Raleigh, T. (1906). Lord Curzon in India: Being a Selection from His Speeches as Viceroy & Governor-General of India, 1898–1905, Macmillan and Co., London, p. 413Google Scholar.

¹²² In 1901, for example, Curzon briefly considered having prisoners flogged before being executed and then burned, though this was eventually abandoned in light of objections raised by Hugh Barnes, the former revenue commissioner for Baluchistan under Robert Sandeman: K. W. note by Curzon, 8 March 1905, NAI, Foreign/Secret F/July 1905/nos. 178–182. H. A. Deane, the chief commissioner of the North-West Frontier Province (NWFP), for one, was a great enthusiast for this type of punishment, and lamented the fact that flogging was not incorporated into the newly enacted Murderous Outrages Regulation in the NWFP in 1901: ‘I venture to think that it is much to be regretted that the Regulation does not allow flogging, combined with execution, followed by burning. The fanatic may be flogged and sentenced to imprisonment for life, but if flogged for the murder, he must not be hanged. I confess that it has often struck me that a frontier officer might have first tried the murderer, say, for a theft of a cartridge, or similar offence, and flogged him for this; and thereafter tried the man for the murder, and quietly spirited him away to a down country jail to be hanged, as allowed by the Regulation. Flogging on the bare person is absolutely awful disgrace to a Pathan; every frontier officer knows this, and yet it is rarely resorted to. The effect is infinitely more deterrent than the fear of hanging. If we could only flog, hang, and burn, how much more so it would be’: Qtd. in K. W. note by E. H. S. Clarke, 8 March 1905, Ibid. Clarke himself noted how, ‘If it so pleased the Court, there is nothing to prevent the Court from ordering a fanatic to be hanged, drawn, and quartered’: Ibid.

¹²³ Letter from the GOI to H. A. Deane, Chief Commissioner and Agent to the Governor-General in the NWFP, 13 March 1905, NAI, Foreign/Secret F/July 1905/nos. 178–182.

¹²⁴ In April of 1896, following the GOI's decision to ban burning, Major-General James Browne, the agent to the governor-general in Baluchistan, compared frontier fanaticism to a ‘contagious disease’ that was ‘beyond all imagination of legal British opinion’. ‘The burning and supposed annihilation of the body,’ he continued, ‘is the only measure which has the least deterrent effect upon Afghans, or even, under certain circumstances, upon Baluchis . . . The bacillus of the ghazi rabies which can only be fed by the hopes of a future life, can only be starved by the collapse of all future spiritual hopes for the soul, as the result of the annihilation of the body’: Letter no. 2842 (confidential) from James Browne to the GOI, 8 April 1896, NAI, Foreign/Secret F/May 1896/nos. 322–332.

¹²⁵ IOR, P/862, Table B.

¹²⁶ Statement of Fanatical Outrages in the North-West Frontier Province and Baluchistan (1905), Intelligence Branch, Quarter Master General's Department, Simla, IOR/L/PS/20/203. Between 1895 and 1905, there were 23 recorded cases of fanatical outrage along the Punjab (after 1901, the NWFP) frontier. Twelve of these cases resulted in execution, eight saw the attackers killed outright, and there was even one very exceptional case in which the accused was actually acquitted: Ibid.

¹²⁷ Ibid. For further correspondence regarding the improper reporting of Murderous Outrages Act cases, see NAI, Foreign/Frontier B/June 1896/no. 38.

¹²⁸ One particularly ironic example of this occurred in January of 1869, following the murder of a Sikh sepoy outside the fort in Bannu. Acknowledging that the Murderous Outrages Act had not yet been extended to the Derajat Division, Commissioner S. F. Graham petitioned the Punjab government for permission to proceed regardless. T. H. Thornton, the secretary to the Punjab government, noted full well how this ‘would not be legal,’ but concluded that ‘illegality may be risked’. Despite being ‘much vexed’ by the apparent necessity for such an illegal act, Viceroy Lawrence, the man who had hitherto forcefully argued in favour of the Murderous Outrages Act so that officers could try fanatics ‘legally’, grudgingly assented: see Telegram from the PG to D. F. McLeod, Lieutenant-Governor of Punjab, 9 January 1869, IOR, L/PS/6/566, coll. 198; and Telegram from Lt.-Gov. Punjab, to the Secy. to the PG, 11 January 1869, Ibid.

¹²⁹ This problem was so severe, in fact, that the Government of India was forced to ‘impress’ upon its officers ‘that proceedings under the Act should be strictly limited to cases of true fanatical outrage—e.g., cases of men whose object is to gain martyrdom by killing an infidel and who seek that object by assassination—as distinct from acts of guerilla warfare, such as firing into camps, plundering convoys, etc. . . . The Government of India admit that it is difficult to define what is a fanatical outrage, and what is not; but provided that it is clearly understood that the special treatment provided for fanatical outrages is applicable to such outrages only’: Letter no. 490F from the GOI to the PG, 20 February 1896, NAI, Foreign/Secret F/May 1896/nos. 322–332.

¹³⁰ Legislative Assembly Debates, 3 February 1925, IOR, V/9/66, p. 709.

¹³¹ Legislative Assembly Debates, 19 March 1925, IOR, V/9/68, p. 2649.

¹³² Ibid., pp. 2660, 2664.

¹³³ Ibid., pp. 2656, 2660, 2664. The Murderous Outrages Act was officially repealed in Punjab in1901 at the time of the creation of the NWFP and its provisions were immediately re-enacted in the NWFP and Baluchistan under the auspices of the Murderous Outrages Regulation of 1901; however, the original Murderous Outrages Act remained in the statute books: Letter no. 1953F from the GOI to C. E. Yate, 9 August 1901, NAI/Foreign/Frontier A/August 1901/nos. 63–72.

¹³⁴ Legislative Assembly Debates, 3 February 1925, IOR, V/9/66, p. 711.

¹³⁵ Legislative Assembly Debates, 19 March 1925, IOR, V/9/68, p. 2691.

¹³⁶ The full account reads: ‘After dinner—on the evening of the 7^th December 1919, Mrs. E. and her family were sitting in the bed room with Mr. E, station master at the Peshawar Cantonment Railway Station, who was in bed with fever. The eldest boy, aged 17, had occasion to go to the dining room for something and in order to do so had to pass through the sitting room which has three doors leading respectively to the dining-room, bedroom and the garden; as he entered from the bedroom an Indian was coming in from the garden door; the boy at once questioned him as to what he was doing, whereupon the stranger immediately attacked him with an axe which he had hidden behind his back. In parrying the blow the boy's fore-arm was broken. The boy then closed with the man and his shouts for assistance brought his mother into the room. When she arrived the man had dropped the axe and was stabbing her son with a dagger. She rushed at once to the boy's assistance, and threw her arms round the Ghazi to try and prevent him from stabbing her son again. The man then attempted to stab Mrs. E. but the first blow only grazed her nose. She never relaxed her hold, however, and was then stabbed in her side. Even this failed to make her let go, and in spite of her wounds she managed to seize the man by his wrist. At this stage Mr. E. Came from his sick bed to the rescue and the Ghazi wrenched his hand free from Mrs. E. And stabbed her husband in the thigh. Mrs. E. again tried to seize the dagger and at last succeeded in getting hold of the handle, but in so doing received several more wounds on her hand and wrist. Finally with the aid of some servants the assailant was overpowered’: Ibid., p. 2692.

¹³⁷ Ibid., p. 2693.

¹³⁸ S. Satyamurti introduced a bill that was almost identical to Patel's in 1936, but it was still being delayed by 1938: ‘Heavy Programme of Assembly: Ballot for February 6’, The Times of India, 1 February 1936; ‘Assembly Chamber’, Ibid., 14 September 1936, p. 5; ‘Facts and Fiction’, Ibid., 3 September 1937, p. 12; ‘“Present Assembly is the Best”: Mr. Satyamurthy's Broadcast’, Ibid., 7 July 1938, p. 3.

¹³⁹ ‘The Punjab Murderous Outrages Act, 1867’, The Commonwealth Legal Information Institute: http://www.commonlii.org/pk/legis/pj/consol_act/pmoa1867302/, [accessed 28 April 2015].

¹⁴⁰ Hussain, The Jurisprudence of Emergency.

¹⁴¹ Lawfare, as John Comaroff points out, while always attentive to the language of the law, is especially so when it comes to its breaches, suspension, and even outright annihilation: Comaroff, J. L. (2002). ‘Governmentality, Materiality, Legality’, in Deutsch, J-G., Probst, P. and Schmidt, H., African Modernities: Entangled Meanings in Current Debate, Oxford University Press, Oxford, pp. 126–27, 130Google Scholar.

¹⁴² ‘It was quite wonderful,’ Maine argued, ‘that people should not be able to throw themselves sufficiently out of surrounding circumstances, to see that the measure was a striking example of the desire of the Indian Government to impose legal order on its officers under the most trying conditions’: Legislative Council Proceedings, 15 March 1867, IOR, V/9/10, pp. 195–96.

¹⁴³ Ibid.

¹⁴⁴ ‘We must have all over the country real and effective governors,’ he stressed, ‘and no application of the principle of the division of labour ought, in my opinion, to be even taken into consideration which would not leave in the hands of district officers such an amount of power as will lead the people at large to regard them as, in a general sense, their rulers and governors’: Ibid., p. 26. Stephen's advocacy of the separation between judicial and executive duties, therefore, was intended only to remove civil judicial duties, and ensure that district officers retained their ‘sovereign’ power to punish.

¹⁴⁵ This line was included in the original draft of Stephen's 1872 Minute on the Administration of Justice, which was written in September of 1870: Stephen, J.F. ‘Minute on the Administration of Justice’, 13 September 1870, IOR, L/PJ/5/437, p. 14.

¹⁴⁶ Stephen, ‘Minute on the Administration of Justice’, p. 85.

¹⁴⁷ The quotation in full reads: ‘The British Power in India is like a vast bridge over which an enormous multitude of human beings are passing, and will (I trust) for ages to come continue to pass, from a dreary land in which brute violence in its roughest form had worked its will for centuries—a land of cruel war, ghastly superstitions, wasting plague and famine—on their way to a country of which, not being a prophet, I will not try to draw a picture, but which is at least orderly, peaceful, and industrious, and which, for aught we can know to the contrary, may be the cradle of changes comparable to those which have formed the imperishable legacy to mankind of the Roman Empire. The bridge was not built without desperate struggles and costly sacrifices. A mere handful of our countrymen guard the entrance to it and keep order among the crowd. If it should fall, woe to those who guard it, woe to those who are on it, woe to those who would lose with it all hopes of access to a better land. Strike away either of its piers and it will fall, and what are they? One of its piers is military power; the other is justice, by which I mean a firm and constant determination on the part of the English to promote, impartially and by all lawful means, what they (the English) regard as the lasting good of the natives of India. Neither force nor justice will suffice by itself. Force without justice is the old scourge of India, wielded by a stronger hand than old. Justice without force is a weak aspiration after an unattainable end. But so long as the masterful will, the stout heart, the active brain, the calm nerves, and the strong body which make up military force are directed to the object which I have defined as constituting justice, I should have no fear, for even if we fail after doing our best we fail with honour, and if we succeed we shall have performed the greatest feat of strength, skill, and courage in the whole history of the world’: Stephen, J. F. (1878). ‘Letter to the Editor’, The Times, 4 January 1878, p. 3.

¹⁴⁸ Stephen's particular conception of ‘colonial’ was also exemplified in his notorious pronouncements against the Ilbert Bill in 1883: Stephen, J. F. (1883). Foundations of the Government of India, Nineteenth Century, 14:80, p. 563Google Scholar.

¹⁴⁹ Stephen, ‘Legislation under Lord Mayo’, p. 168.

¹⁵⁰ ‘It seems rather a pity,’ he continued, ‘that in a case of this sort the assailant should be taken alive at all’: K. W. note by T. H., 30 August 1881, NAI, Foreign/Political A/October 1881/nos. 353–355.

¹⁵¹ Ibid.