7. Strange company: the Zamindar and the Englishmen of Calcutta
Macaulay's Indian Penal Code of 1837 was an exercise in liberal hypocrisy, provoking odd alliances in opposition, and a public row between Dwarkanath Tagore and Eliza's father, Abercromby Dick.
This is the second chapter in a three-part story that begins with The Machine in the Garden.
In January 1838 Thomas Babington Macaulay was ready to depart Calcutta. He had submitted a complete draft of his Penal Code to the Council of India in October. His work was done, but not to universal acclaim. The Prinsep family had just held their New Year’s party where William Prinsep recorded that his brothers — three of whom were senior Company servants — had mocked the result as ‘so truly Benthamite and ingenious in its illustrations that it was called the Comical Code.’1 The comedy — a black one — lay in the contradiction between the theoretical internal consistencies of the Penal Code and the messy, racist reality of justice in the East India Company’s colonial possessions.
This contradiction was embodied in the lifespan of the ship in which Macaulay sailed away to London; it was Eliza Ogilvy’s ‘dear old tub that was built of Teak’, the Lord Hungerford. In August of that year Eliza would be boarding the same vessel at the quayside at Blackwall for her own voyage to Calcutta, but the more significant journey was made by the Lord Hungerford seven years later, from Calcutta to the Caribbean. On, 4 May 1845 the ship dropped anchor off Guyana to disembark 500 Indian ‘cooly’ labourers destined for the sugar plantations, to fill a labour shortage created by the abolition of chattel slavery; they would be working in conditions not unlike slavery. This new form of colonial exploitation expanded rapidly, and between 1838 and 1917, 239,000 labourers were transported across the kaala paani — the Black Water — from India to British Guiana.2 In total, some 1.3m workers left India for colonial plantations across the British empire.3
Macaulay had written to his father Zachary (an abolitionist and member of the Clapham Sect) about the aims of the Penal Code: “We shall also get rid indirectly of everything that can properly be called slavery in India. There will remain civil claims on particular people for particular services, which claims may be enforced by civil action; but no person will be entitled, on the plea of being the master of another, to do anything to that other which it would an offence to do to a free man.”
The reality, as ever with Macaulay, was very different. The Penal Code did nothing to prevent indenture, a form of enforced and coercive servitude in a new guise but one considered under the law to be free labour. This was the ‘Great experiment’ hailed by the 8th Lord Elgin, governor of Jamaica, to provide the West Indies plantations with a regular supply of labour from India, mainly ‘hill coolies’, indigenous village people from Northern Bengal and Assam, using a contract system originated by a West India planter and former owner of enslaved people named John Gladstone; he was the father of the future British Prime Minister. Macaulay’s ‘liberal’ law reform was never at odds with Britain’s new imperial labour policy and practice across the Indian Ocean and Caribbean, or in the way it affected India’s landless farmers through coerced labour on colonial crops in Bengal and Bihar. There were noisy protests against the Penal Code from ‘unofficial’ white colonial planters in Calcutta and its hinterland — the Mofussil; they feared the so-called Black Acts might alter the inequalities before the law that enabled their own iniquitous labour practices, but their angst was a storm in a teacup. Had the Code been enacted it might have provided a veneer of legitimacy to British rule, but the neglect of the machinery of law by the East India Company, and the impotence of magistrates in the Mofussil, would have ensured continued immunity from prosecution for the planters’ oppressive and exploitative labour practices.
The reality of inequality before the law and its impact on Indian plantation workers in Bihar and Bengal, as well as those shipped overseas, was evident in the experience of Eliza’s family members and their business associates. The transportation of indentured workers had begun well before Macaulay left Calcutta, and had quickly become a cause of controversy in Calcutta as a result of the forced capture and false imprisonment of labourers and their families. In 1838 a Calcutta Committee of Enquiry was set up into the unregulated system of Indian labour migration to Mauritius. Dwarkanath Tagore was called on to give evidence, in his capacity as a Justice of the Peace for Calcutta and landowner with direct experience of the crimes associated with the system. He gave the example of the capture of the brother of a man who was William Prinsep’s groom.
“The Syce of my partner, Mr. William Prinsep, came to me to complain that his brother was kept in confinement by the Duffadars with the view of being sent to the Mauritius – I sent him to Mr. McFarlan the Chief Magistrate, and after a great deal of trouble his brother was brought to the Police. The other party alleged that the man had received an advance of a rupee and the Magistrate decided that he could not release him till the rupee was paid, and as the brother could not afford to pay it Mr. Prinsep sent it from his own pocket.
“I know of several other cases. The brother of a servant in the employ of Baboo Neel Rutton Holdar, came to me complaining that some of the Duffadars had forcibly taken his brother to the Mauritius, but nothing could be done in this case as the ship was gone.”4
It was well known that the Duffadars — the gang masters charged with recruiting labour — would lie, coerce, bribe village elders and hold captive village people to offer them up to merchants with contracts to fill the holds of ships like the Lord Hungerford, for transit to colonial plantations on the other side of the world. This was Tagore’s opinion: “From what I know of the lower class of natives, I am persuaded that they would be easily induced by the village Gomastha or the Mundel of the village, or any other influential people, to leave their homes and come to Calcutta, or any other distant place, but if they perfectly understood that they would be required to go a voyage of a month or six weeks it would be difficult to get their consent …. They are as much attached to their families as any civilized people.”
There’s no evidence other than his own assertions that Macaulay’s Penal Code was intended to curb the trade, and if there had been it would have put ‘progressive’ law reform at odds with imperial labour practices; it was already at odds with white settler interests, creating a conflict that the ruling Council was unwilling to provoke by putting the law onto statute; and so until 1860, when the Penal Code was enacted with its equalising teeth drawn, it remained merely an aspiration or a threat, depending on one’s point of view.5 One such, damning:
‘‘Traditional slavery practices in India continued for decades as enforced abolition was deemed impolitic, especially after the crisis of the Mutiny. And it was during Macaulay’s time in India that indentured plantation labour recruitment expanded rapidly … The reform shortcomings on colonial servitude might also be attributed to liberal hypocrisy in the exercise of power. Robert Sullivan’s recent biography identifies an inherent authoritarianism in Macaulay that exemplifies the duplicity, privileged paternalism and contradictory political ethos of nineteenth-century British liberals’6
Sailing away on the Lord Hungerford, the First Law Member of the Governor General’s Council left a noisy and rebellious minority in his wake, a movement that would fester and grow until the so-called White Mutiny of 1882 against the Ilbert Bill, a successor to his Penal Code intended, tentatively, to remove the white privilege baked into the law. The Penal Code, or ‘Black Acts’ had also attempted to remove certain of these rights — not all: specifically, British-born citizens would lose the right to appeal to the Supreme Court against unfavourable decisions of the courts in the Mofussil (the countryside beyond the Presidency cities). As the law stood, British subjects holding land were virtually untouchable for any breach of regulations, because magistrates had very limited jurisdiction over them, and the judiciary was corrupted through bribery and blatant racial privilege.7 A white man could kill a black man with impunity because, if he was brought to court at all, he could be sure the case would be heard by an all-white jury.8
Here’s an example of how the law operated in the Mofussil to oppress Indian labourers and tenant farmers on British owned, leased or contracted plantations.9 In November 1838 an indigo planter in the district of Tirhut named Neville Wyatt was - he claimed - walking the land of Bhugwanpore indigo factory with a friend when he saw two sheep across a sugar cane field, and ‘made a wager’ that he could shoot the black one with his fowling piece. Instead he shot dead a farmer named Faqueerah Noortagg who was in dispute with Wyatt: a matter that was mere coincidence, according to Wyatt, but evidence of motivation according to Faqueerah’s friends and family. In court, under oath, his wife accused Wyatt of murder. A local magistrate investigated and took numerous witness statements from other farmers, indigo workers and family members, none of whom saw any sheep grazing where Faqueerah was shot, black or white, and many casting doubt on Wyatt’s version of events. A report was sent to Calcutta, but the case rumbled on for many months until a decision was made that no charges be brought, not even for manslaughter. In London, the Court of Directors fumed: "The unsatisfactory manner in which this case was disposed of affords an additional instance of the urgent want of Tribunals for the trials of British born subjects in the Mofussil charged with heinous offenses. We trust that at no distant period this defect may be supplied”.10 But it was not, the ultimate result of which was an uprising in 1860 of tenant farmers against their overlords, the indigo planters.
Wyatt’s account had been supported — guardedly — by one witness, a young planter who had arrived in Bengal in 1829 as a 14-year old. He was the scion of a London coachmaking family that numbered half a dozen directors of the East India Company among its clients. Through this circumstance, and by obtaining a £500 bond as surety against his good behaviour, he had gained the right to live and work in Bengal, and so make his fortune. Many years later, as a successful planter with his own indigo factory, he was also witness to the marriage of his eldest son to Eliza Ogilvy’s youngest daughter, Violet, at the Anglican church in Muzzafarpur, the town in which Eliza was born. The parents of bride and groom were near contemporaries: the planter was the senior by seven years having been born in 1815 and he lived to 1905, Eliza to 1912. They led curiously different but parallel lives across a century of great change, and we shall return to this planter and his prominent social, political and military activities in Tirhut in a later chapter.11
These ‘non-official’ planters in Tirhut, in the province of Bihar, and others in East Bengal —now Bangladesh — along with non-official residents in Calcutta, were vocal in their opposition to the Penal Code before and after Macaulay’s departure. As a result of the 1833 settlement, and consequently Act IV passed in 1837, they could now live in India without Company permission and for the first time own the land on which grew the crops they processed and sold — mostly indigo. They were determined to protect their immunities from prosecution (in truth, never seriously threatened by the Penal Code) and retain a right to appeal to the Supreme Court, which operated under English law and was seen as independent of the East India Company. They were not subject to trial by officiating magistrates for certain offences, instead having a right to trial in Calcutta before the Supreme Court, and yet still they ‘retained the right to refuse to be bound over to either prosecute or to attend, after being duly subpeoenaed’. Had Wyatt been called to court in Calcutta, he could in theory have refused to attend. The Penal Code had the potential (no more) to undermine this ‘heads we win: tails you lose’ approach to the appeal courts. They would instead become subject to the Company’s highest civil and criminal courts, the Sadar Diwani and Nizamut Adilawt, which had been set up by Warren Hastings according to the old policy of respecting Muslim, Hindu and Armenian legal norms. This threat was real, but its significance was mainly symbolic because it did nothing to overcome the impotence of the magistrates in the Mofussil, who had no jurisdiction over British-born landholders’ neglect or breach of obligations under the law.12
The ‘non-officials’ were strange partners for Dwarkanath Tagore, Bengal’s pre-eminent zamindar (landowner) and businessman, in a united front against the Penal Code. Tagore shared their contempt for the East India Company and their desire to trade freely and remove press restrictions, but he would also find himself defending their white privileges by default. Tagore protested that the directors of the Company were ‘desirous of executing absolute and despotic power’. They led an organisation he regarded as corrupt and out-dated, fit for mercantilism but not for capitalism, nor for his great undertaking which was the industrialisation of Bengal. His alliance with the planters of the Mofussil commenced in 1836 with a tumultuous public meeting in Calcutta at which he spoke out against the perceived levelling down of the Black Acts. “The natives have hitherto been slaves; are the Englishmen therefore to be made slaves also? This is the kind of equality the government are seeking to establish. They have taken all which the Natives possessed; their lives, liberty, property and all were held at the mercy of Government and now they wish to bring the English inhabitants of the country to the same state!" To Macaulay this appeared a disingenuous argument, given the intention of the Penal Code to equalise access to the highest courts; however if you had experienced, as Tagore had, of the corruption of the lower courts on an almost daily basis, and you understood that the source of that corruption was not the wording of the law but the weakness of police powers and the absence of an educated class of Indian court officials with equal career opportunities as their white colleagues, then you would have no faith in theoretical equalities before the law imposed from the top down. Tagore was frustrated, angry at corruption and determined to score a point against the EIC.13
Tagore later testified before the Committee on Improvement of the Mofussil Police, which investigated corruption and the application of the law, such as it was. With justification, he ‘described district society as divided into two classes; those who bribed and those who received bribes, and he freely admitted that, like every other zamindar, he bribed local Indian officials.’14 This is what raised the hackles of Eliza’s father, the mild-mannered Abercromby Dick, although what spurred him to action may have been Tagore’s earlier statement that the judges and magistrates of the mofussil courts were "college boys without any experience who were led around by corrupt amlas.”15 Aber had been a college boy at Addiscombe and Fort William, now he was a judge: this was a personal attack.
On 1st December 1838, Dick shook off years of quiet service as Civil & Sessions Judge in the Zillah of Midnapore, and penned his letter to the Englishman which landed loudly and reverberated for the next three weeks across the pages of the Englishman, the Bengal Herkaru and the Calcutta Courier, shot back and forth by replies to the Editors written by anonymous planters in the mofussil, with nom de plumes such as ‘Moffussilite’, ‘Smoke’, ‘Anti-humbug’ and ‘No sophister’
Abercromby’s was a long letter, which protested no personal motivation, merely a defence of those not in a position to defend themselves. The nub of it was this:
‘Baboo Dwarkanaath Tagore, in his speech, gave expression to sentiments that influenced him in supporting the European portion of the community of Bengal, which must be deemed highly creditable and generous. Was, however, his unmeasured reprobation of his own countrymen, without a single fact in substantiation thereof, equally generous?’
Not according to Abercromby Dick. In his experience, ‘not a single specific charge of bribery and corruption has ever been preferred to me, against the principle Sudder Ameen, the Sudder Aumeen, the Moonsiffs, or my Amla [court official]; save in one instance, in which the charge was not proved.’
There was one additional important piece of information that Eliza’s father was able to broadcast to his peers and superiors. ‘I will now advert to what induced me to come forward. I am one of the oldest Mofussil judicial servants in the country, having spent nearly a quarter of a century in the judicial branch, exclusively of the civil sevice. I am certainly the oldest Zillah Judge having been judge of this district thirteen years next January consecutively [he was 44]. I therefore feel it incumbent upon me to come forward as a witness in favour of those who have for so long served under me, so far as I am aware, honestly.’
And in case the message hadn’t got home, it is repeated. ‘I have been, as I said, thirteen years judge and magistrate, judge and session judge of Midnapore and Hidjelle … Its population by two separate census, lately prepared by the magistrate and myself, amounts to about a million and a quarter.’ So, greater than half the size of London’s population at the time, and considerably larger than the City of Calcutta. It would be an unfair imputation to say that Abercromby Dick put his head above the parapet for entirely personal motives, but it was not long after this letter was written that the Government took notice and awarded him three quick promotions. On 7 January 1839 he was appointed Officiating Special Commissioner of Calcutta Division. Soon after (having completed a six week stint as Post Master General) Aber, as he was known in the family, was made Temporary Judge of the Sudder Dewany and Nizamut Adawlut, an exalted position that soon became permanent. For the Dick family it was goodbye Midnapore. They would have been ecstatic, and ready for a new life in Calcutta.
Dick’s concern for his Indian staff was genuine. He may have been ‘gulled by his amlah’, as a critic supposed in an anonymous letter to the Englishman, yet he was well known for supporting the careers of Indian lawyers. ‘With an expression of sympathy and a paternal solicitude rarely evinced by Englishmen in these days, Mr. Dick was on terms of something like intimacy with Baboo Hurrish Chunder and knew the Mookerjee family of Pathuriaghutta. He ‘vituperated Hurrish Chunder for allowing Onoocool Chunder to take so execrable an employment as a Nazirship, and advised him to nurture his brother for the Bar.’ Which he did, with Mr. Dick’s support.16 Likewise, Prince Ghulam Mohammed, the youngest son of Tipu Sultan, reminded Dick in a letter from London that he had defended his family from the oppression of unjust magistrates in Calcutta, where they were living in poverty and in exile from Mysore. ‘Mr Dick has stood up for the weak against the strong, with firmness if without judgement’ according to a mixed testimonial at the end of his career.17 He was known as a fastidious judge, reading court papers with great care, to the extent that in 1856 he was accused of ‘dilatory habits’ and of holding up the business of the courts.
Dwarkanath Tagore’s response came on 6th December in the the next edition of the Englishman, his personal platform. The weekly was owned and edited by Joachim Stocqueler, an independent-minded man, assisted in his role of speaking truth to East India Company power by financial backing from Tagore and by press reforms introduced by Macaulay. Tagore’s reply illustrates the awkwardness of the alliance with ‘non-officials’ that he had entered into, and appears designed to influence the complex dynamic of different interests in which he was acting — Hindu, Moslem, colonial settler, Company — and to position his target differently, away from a direct attack on the EIC. Here is a brief extract: “… if Mr. Dick wishes me to specify what I deem to be the present characteristic failings of natives, I answer that they are, a want of truth, a want of integrity, a want of independence. These were not the characteristics of former days, before the religion was corrupted and education had disappeared! It is to the Mahomedan conquest that these evils are owing, and they are the invariable results of the loss of liberty, and national degradation. The Mohomedans introduced into this country, all the vices of an ignorant, intolerant and licentious soldiery. The utter destruction of learning and science was an invariable part of their system, and the conquered, no longer able to protect their lives by arms and independence, fell into the opposite extremes of abject submission, deceit and fraud.’
None of this reflects well on Tagore, until he reintroduces a persistent theme, the demand for rationalist education and Indian entry into higher positions in the machinery of state: ‘… education, so long neglected, is rapidly extending its powerful influence, a gulph is no longer placed between the enlightened Englishman and the benighted native; they are gradually mingling into one people, and the appointment of my country men to posts of confidence, is the last stimulant to integrity and independence.’
And he mollifies the offended Dick, who: ‘must not judge of every court by his own, for I believe it would be difficult to find another which is so well ordered or skilfully managed.’
Tagore’s attitude towards the East India Company is at best described as ambivalent: he despised its corrupting influence, but he needed to live with it to achieve his aims. His description of the state of education speaks to aspiration rather than fact, and the truth of the matter was that corruption existed at every level and was generally to the benefit of non-official colonialists and Company men acting on their own behalf. Tagore bribed, like any other, and recognised the cost: ‘Bribes amounted to twenty times authorized fees, and the courts were so inefficient that Dwarkanath claimed to have four lakhs of long-standing decrees unrealized.’18 Abercromy Dick had recounted in his letter how, “Baboo Dwarkanauth Tagore possesses a large estate in this district, which was lately sold for arrears of public revenue by the collector, and purchased for Government, and it has, I hear, been restored to him.” This was one reason for Tagore’s anger and frustration: a corrupt practice by which, with no public announcement or private forewarning, an estate could be sold in lieu of tax owed. The collector (a white EIC employee) would sell it at a knock down price to himself, his family or his friends, pocketing the difference between the true value and the sum used to offset the tax owed. Tagore had, as Aber said, very nearly become a victim of this practice, and it may go some way to explaining his counterintuitive support for white settler privilege against the lawlessness tolerated by the EIC.
The Company had created an environment in which casual fraud and corruption thrived in the Mofussil, allowing both civil and criminal illegality. John Stuart Mill, a Company man who had never been to India, could say: ‘When an Englishman in India, beyond the bounds of the Presidency, borrows or lends, or enters into contracts of any other kind with natives, he must be understood to do so according to native laws, the only ones which are known to the parties he contracts with. An Englishman has no right to go up to the country and say to the natives, I will regulate my transactions with you by the laws of my own country, and if you think I have injured you, you shall not have the redress your own laws would give you, but shall be satisfied with that given by the laws you know nothing of.’19 In theory, yes; and in theory this was enshrined in the Penal Code, which provided redress through the Sader courts, which had a basis in local laws, not English; and yet in the absence of a fair and effective legal structure and enforcement the reality was entirely different. The reality in the Moffusil was that a zamindar could pass on his land to a white planter, without the planter taking on the obligations that came with the land, a state of affairs that corrupted the core of civilised life in an agrarian society. Macaulay’s Penal Code had omitted to provide any redress to this situation, instead providing a top-down solution that would have granted equal rights to final appeal to a court that used the standards of Indian law, but relied on a failed and toothless judiciary to enforce Indian rights.
Tagore’s solution, proposed to the Committee on Improvement of the Mofussil Police, was to appoint educated Europeans and Indians as a new class of Deputy Magistrates, ‘well versed in both the law and the language of the people’, to listen directly to complaints and read petitions. In parts of the Mofussil, this was introduced with some success. Tagore was a determined proponent of reform in law, education and commerce; and because he was active during a period of transition when the Company was handing over rule to the Crown, room for manoeuvre opened up; but ultimately, as we shall see, the logic of imperial domination stifled the emergence of equality in each of these domains. At no time in the next 100 years was a solution enacted that would equalise Indian and English rights under the law; instead, there were further attempts to mask the reality of the relationship in 1860 and 1883. With the passage of the Rowlatt Act of 1919, which enshrined powers of imprisonment without trial and indefinite detention, the mask of liberal imperialism was at last torn away.
Next chapter: The Bengal renaissance - great expectations, strangled at birth
© William Owen 2025 - All rights reserved
Prinsep, William: Memoirs Vol 3, BL. This was a party attended by William and his brothers on January 1st 1838: “a large New Year’s family dinner party at Charles’ house the chief amusement of which being the fun that Thoby and others made of Macaulay’s new [penal] code, which had just been issued by the Commissioners, which was ‘so truly Benthamite and ingenious in its illustrations that is was called the Comical Code.’
Kaala paani is the hindu proscription against crossing the seas, causing the loss of caste and putrefaction of one’s character.
Evan Radhay Persaud, Guyana Chronicle 5 May 2009.
Record of the Calcutta Committee of Enquiry [CCE] into the unregulated system of Indian labour migration to Mauritius was set up. The Committee was composed of Theodore Dickens, a barrister and planter, the Reverend James Charles, J P Grant, William Dowson, a merchant and Russomoy Dutt, 9th November 1838, in ‘Becoming Coolies - Rethinking the origins of the Indian labour diaspora 1772-1920.
The Code was not passed into law until 1860 as the Code of Criminal Procedure, which retained the right of ‘European-born British subjects’ to be tried by a British judge or magistrate and a jury with a white majority and limited punishment; it came into effect on 1 January 1862.
Wright
Macaulay’s Penal Code had made ‘European’ landholders subject to the law, but failed to give magistrates the power to enforce it, or to pass over the duties of zamindars who sold, leased or rented their land to them. “The advocate-general, who was consulted on the subject, submitted his opinion that by the terms of Act IV. of 1837, British subjects becoming landowners or renters were subject to the laws, regulations and customs of the country, which affect persons in those characters. But he remarked that the magistrates, for want of jurisdiction in such cases, could exercise no penal authority for any of the defaults to which penalties are attached by the Regulations.” Reports of the Indian Law Commissioners 1841 re. Act IV p327 and and 1843 p335. BL
The Code of Criminal Procedure replaced ‘all white’ juries with a European majority and also removed certain anomalous omissions that exempted European British from the jurisdiction of magistrates in the Mofussil.
There is a description of indigo planters’ activities in Chapter 1, Life and death across the great world belt
Halliday, F: Secretary to the Government of Bengal, quoting extract of Letter from the Honorable the Court of Directors, No 9 of 1841, dated 18. 8. 1841. In Special Reports of the Indian Law Commissioners 9 August 1844 BL
Bhagwanpore is near present-day Kesariya, about 50 miles north east of Muzzafarpur. The young planter whose son married Eliza’s daughter returned to London soon after the incident, but resumed his life in the indigo business in 1858, when he purchased the Doudpur indigo factory, which today forms a large part of the campus of Muzzafarpur university.
Copies of the Special Reports of the Indian Law Commissioners 29 July 1844, see letter from T. R. Davidson, Esq. Oficiating Secretary to the Government of India, to Secretary Law Commissioners. 21 June 1843
Kling, B: Partner in Empire, Calcutta 1981
Kling, B
Kripalani, Krishna: Dwarkanath Tagore, a forgotten pioneer,
Mookerfee, M: Memoir of the late Honorable Justice Onoocool Chunder Mookerjee, Calcutta 1876
Allens Indian Mail, 2 Jan 1857
Kripalani
Mill, J.S.: Writings on India, Ed. Robson et al, London 1990, p.13