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History and Theory, Theme Issue 44 (December 2005), 28-46 © Wesleyan University 2005 ISSN: 0018-2656

FELLOW CITIZENS AND IMPERIAL SUBJECTS:CONQUEST AND SOVEREIGNTY IN EUROPE’S OVERSEAS EMPIRES

ANTHONY PAGDEN

ABSTRACT

This article traces the association between the European overseas empires and the conceptof sovereignty, arguing that, ever since the days of Cicero—if not earlier—Europeans hadclung to the idea that there was a close association between a people and the territory ithappened to occupy. This made it necessary to think of an “empire” as a unity—an“immense body,” to use Tacitus’s phrase—that would embrace all its subjects under a sin-gle sovereign. By the end of the eighteenth century it had become possible, in this way, tospeak of “empires of liberty” that would operate for the ultimate benefit of all their “citi-zens,” freeing them from previous tyrannical rulers and bringing them under the protec-tion of more benign regimes. In such empires sovereignty could only ever be, as it hadbecome in Europe, undivided. The collapse of Europe's “first” empires in the Americas,

however, was followed rapidly by Napoleon’s attempt to create a new kind of Empire inEurope. The ultimate, and costly, failure of this project led many, Benjamin Constantamong them, to believe that the age of empires was now over and had been replaced bythe age of commerce. But what in fact succeeded Napoleon was the modern Europeanstate system, which attempted not to replace empire by trade, as Constant had hoped, butto create a new kind of empire, one that sought to minimize domination and settlement,and to make a sharp distinction between imperial ruler and imperial subject. In this kindof empire, sovereignty could only be “divided.” Various kinds of divided rule were thusdevised in the nineteenth century. Far, however, from being an improvement on the past,this ultimately resulted in—or at least contributed greatly to—the emergence of the large-ly fictional and inevitably unstable societies that after the final collapse of the European

empires became the new states of the “developing world.”

Ever since it came into being sometime around the first century BC to describea polity, rather than a form of command, the word “empire”—imperium—hasbeen used to characterize societies as diverse as Meso-American tribute-distri-bution systems (the so-called Aztec and Inca empires), tribal conquest states (theMongol and Ottoman Empires), European “composite monarchies” (theHapsburg and Austro-Hungarian Empires), even networks of economic andpolitical clientage (the current relation of the First to the Third world, or the“North” to the “South”) and the British Empire, which combined features of allof these and more.1

1. The historian Sallust (86–35 BC) appears to have been the first to use the phrase Imperiumromanum to describe the Roman state. See P. A. Blunt, “Laus imperii,” in Imperialism in the Ancient World , ed. P. A. Garnsey and C. R. Whittaker (Cambridge, Eng.: Cambridge University Press, 1978),159-191.



Empires thus understood have indeed always been more frequent, more exten-sive human groupings than tribal territories or nations. Ever since antiquity largeareas not only of Europe, but also of Asia, were ruled by imperial states of onekind or another; so too were substantial areas of Africa. Vishanagar, Assyria,Elam, Urartu, and Benin were all, in this broad sense, empires. What the anthro-pologist Marshall Sahlins calls the “quaint Western concept that domination is aspontaneous expression of the nature of society,” is of relatively recent date, andexclusively of European origin.2 All other peoples have recognized that ruler-ship, if it is at all stable, is more often than not exercised by foreigners. The ideathat an ethnic group possesses a natural affinity with a given terrain is also of European origin. Before the rise of nationalism in the nineteenth century, and itsspread to most of the inhabited world, only Europeans ever believed themselvesto be literally autochthonous. The Greeks, and the Greeks alone, as Periclesreminded them in his famous funeral oration, were born of the earth on whichthey lived (the result, characteristically of an erotic misadventure betweenHephaestus, the blacksmith to the Gods, and Athena), whereas all the other peo-ples of the world have come to wherever they happen to be from somewhereelse.3 Because of the European belief in the interdependence of tribe and place,which is also taken to imply that each people has an inalienable right, groundedin nature rather than in the political or civil order, to be ruled only by a memberof their own tribe or clan, “empire,” understood as rulership over others, hasalways presented particular theoretical difficulties for Europeans, which mostother imperial peoples have not had to face.

I would like to suggest that the theoretical history of the modern Europeanoverseas empires (which excludes the Carolingian, the Holy Roman, the Austro-Hungarian, and the Russian empires as well as such short-lived imperial projectsas the Third Reich, the USSR, Mussolini’s Abyssinian empire, or, the “empire”of the United States) can be divided into two distinct phases. There has long beena disputed division between Europe’s “first” empires—mainly those in theAmericas, which all came to an end between 1776 and 1830, and the “second”empires, which began in the late-eighteenth or early-nineteenth century and con-tinued until the middle of the twentieth.4 Against any such neat periodization, ithas been pointed out that the British incursions into Asia and Africa had alreadybegun by the early seventeenth century; that although Spain had lost most of herAmerican possessions by 1830, she retained the Philippines and still clings tooutposts of the north-African coast; that as soon as the Treaty of Paris of 1763had stripped France of most of her possessions in America and India, she begansearching for new opportunities, first in the Pacific and then in north Africa. Itseems obvious that there was indeed a continuous imperial, expansionist ambi-

CONQUEST AND SOVEREIGNTY IN EUROPE’S OVERSEAS EMPIRES 29

2. Marshall Sahlins, Islands of History (Chicago: University of Chicago Press, 1985), 75-76.3. Thucydides, The Peloponnesian War II, 60-65, and see Marcel Detienne, Comment être

autochtone (Paris: Le Seuil, 2003).4. This distinction has generally been applied to Britain but would work as well for France and,

with some qualifications, Holland. For Britain, see the P. J. Marshall “The First British Empire” andC. A. Bayly, “The Second British Empire,” in The Oxford History of the British Empire, ed. RobinWinks, vol. V, Historiography (Oxford: Oxford University Press, 1998), 43-72.



ANTHONY PAGDEN30

tion shared by all the major European powers during the whole period from themid-fifteenth century until the late-nineteenth century. My claim that the earlyempires in America were significantly different from the empires that overlappedand finally succeeded them is based not on organization, social type, objectives,

or economic performance. It is based, instead, on the central conception of sov-ereignty. For one thing that all empires, no matter how distinct they may be insize or type—and there is a bewildering variety—share is that they involve theexercise of a sovereign authority that has usually been acquired, at least in thefirst instance, by force. Since the occupation of lands to which the occupier couldmake no prior claim on grounds of autochthony, spurious or no, necessarilyinvolved some kind of violation, empires were inescapably lands of conquest.Moreover, in view of the fact that most European peoples did generally hold thatthat domination is—or at least should be—a spontaneous expression of the

nature of society, conquest presented a considerable challenge to most notions of sovereign authority.Expansion and conquest might, in fact, have been the outcome of any number

of historical forces: shortage of resources, the quest for raw materials, excesspopulations, or inter-nation rivalry. But since the state was believed to be identi-cal with the people, the tribe, the ethnic group, or what came to be called thenation, it followed that it had to possess natural frontiers, even if it was neververy clear how these were to be defined. The legitimation of violence againstanother people or tribe could only ever be expressed as a bid to preserve these

frontiers. War, that is, was only just when it was defensive. “The best state,” asCicero observed, “never undertakes war except to keep faith or in defense of itssafety.”5 Of course, as Cicero well knew, the Roman state had frequentlyacquired clients, “allies” (socii), the need to “keep faith” with whom could beemployed as a justification for what was in effect a war of conquest.6

The expansion of the major European powers—Spain, Portugal, Britain,France, and Holland—overseas during the sixteenth and seventeenth centuriestherefore created considerable anxiety as to what kind of rights, if any, theymight have in the territories they occupied. The debates to which this anxiety

gave rise turned inevitably on the question of how wars of occupation and dis-possession could be presented as wars of defense.7 None of these were conclu-sive. In the end the question was either simply abandoned or a more lasting andpragmatic solution was found in the Roman law of prescription. This allowed for

5. De Republica 3.34.6. There is also an often-quoted and somewhat ambiguous passage in De Officiis I, 38 where he

speaks of wars conducted in the pursuit of glory, in which case they must be “carried on with less bit-terness,” because in such wars one’s opponent is no longer a personal enemy but a rival. See RichardTuck, The Rights of War and Peace: Political Thought and the International Order from Grotius toKant (Oxford: Oxford University Press, 1999), 201.

7. I have discussed these at length in Lords of All the World: Ideologies of Empire in Britain,France, and Spain, 1400–1800 (New Haven: Yale University Press, 1995); “The Struggle forLegitimacy and the Image of Empire in the Atlantic to c. 1700,” in The Origins of Empire, ed.Nicholas Canny, vol. I, The Oxford History of the British Empire (Oxford: Oxford University Press,1998), 34-54; and Law, Colonization, and the European Background in The Cambridge History of Law in America, ed. Michael Grossberg and Christopher Tomlins (Cambridge, Eng.: CambridgeUniversity Press, forthcoming). See also Tuck, The Rights of War and Peace, 51-78.




long-term de facto occupation (preascriptio longi temporis) to be recognized deiure as conferring retrospective rights of property and of jurisdiction, no matterhow illicit the original occupation might have been. In other words, it came asclose as was humanly possible in historical fact to the existential condition of autochthony. Prescription, wrote Edmund Burke,

is the most solid of all titles, not only to property, but, which is to secure that property toGovernment. . . . It is a better presumption even of the choice of a nation, far better thanany sudden or temporary arrangement by actual election. Because a nation is not an ideaonly of local extent and individual momentary aggregation, but it is an idea of continuity,which extends in time as well as in numbers, and in space.8

This, however, had its obvious difficulties. How long, for instance, was a“long time”? Clearly the British Constitution, to which Burke was referring, hadbeen around for a good many years. But what, for instance, of the British settled

in Virginia? Then there was also the broader and more telling point made by theDutch humanist Hugo Grotius in his attack on the Portuguese claim to be in legit-imate possession of India (and of the Indian Ocean) on the grounds of prescrip-tion, that since prescription was an existential argument, it could only be a mat-ter of civil law. In which case it clearly could not possibly override contractsbetween “kings or between free peoples,” nor could it, for the same reason, beany part of the law of nations.9

By the early seventeenth century most European governments had resolved theproblem by the simple expedient of denying its existence. The French hardly ever

employed the term “conquest” in Canada. The Dutch, although happy to speak of conquest when the conquerors in question were the Spanish or the Portuguese,avoided the term when describing their own activities in Asia and America; theEnglish, despite the fact that all their colonies in America were legally held to be“lands of conquest” and had been so ever since Henry VII’s letters patent to JohnCabot of 1496, tended to agree with John Locke’s condemnation of conquest as“far from setting up any government, as demolishing an House is from building anew one in the place.”10 “The Sea,” declared the Scottish political theorist and sol-dier of fortune Andrew Fletcher in 1698, “is the only Empire which can naturally

belong to us. Conquest is not our Interest.”11

Even the Spanish, whose Americanempire was so obviously based on conquest, and who boasted a rich imaginativeliterature to prove it, banned all official use of the word in 1680.12

8. Edmund Burke, “Speech on the State of Representation of Commons in Parliament,” inWritings and Speeches, ed. J. F. Taylor (New York: Little Brown, 1901), VII, 94-95.

9. Mare liberum: The Freedom of the Seas, or the right which belongs to the Dutch to take part in the East India Trade, transl. with a revision of the Latin text of 1633 by Ralph van DemanMagoffin (Oxford: The Clarendon Press, 1916), 11-12.

10. Second Treatise, 2.175, in Locke’s Two Treatises of Government. A critical edition with intro-duction and notes by Peter Laslett, 2nd ed. (Cambridge, Eng.: Cambridge University Press, 1967),

403.11. “A Discourse on Government with Relation to Militias,” in The Political Works of AndrewFletcher (London, 1737), 66.

12. Nueva Recopilación de leyes de los reinos de las Indias Bk. 4 Tit. I Ley 6, in S. Lyman Tyler,Spanish Laws concerning Discoveries, Pacifications, and Settlements among the Indians: With an Introduction and the First English Translation of the New Ordinances of Philip II, July 1573, and of Book IV from the Recopilación de leyes de los reinos de las Indias relating to these subjects (SaltLake City, Utah: American West Center, University of Utah, 1980).



ANTHONY PAGDEN32

“Empire” was a similarly contentious term. Technically there existed only oneempire: the Holy Roman Empire. This may, as Voltaire said scathingly of it, havebeen neither Holy, nor Roman, nor an Empire, and it had, as early as the fifteenthcentury, begun to be called, oxymoronically, the Holy Roman Empire of the

German Nation, but for all that it remained the sole recognized heir of the Romanimperium in the West. For this reason, after the abdication of Charles V in 1558and the translation of the Empire to his brother Ferdinand, the SpanishHapsburgs never referred to their domains as anything other than a “Monarchy,”although, if the Venetian ambassador is to be believed, in 1563, Philip II thoughtbriefly of adopting the title “Emperor of the Indies.” Similarly, the French kings,in their persistent ideological rivalry with their Hapsburg neighbors, toyed withfar-fetched ideas of an independent claim to the title of the Caesars, and in 1494,Charles VIII went so far as to purchase the title Basileus from Ferdinand of

Aragon, who in turn had bought it from the last impoverished, ByzantineEmperor, although neither ever had the gall to use it.13

The British, at least until the eighteenth century, had similarly ambiguous atti-tudes toward the idea of “empire”—a word that, as John Adams said of it in1755, belonged “not to the language of the common law, but the language of newspapers and political pamphlets”—and maintained a distinction between a“colony,” on the one hand, and a separate though distinct kingdom, such asScotland, Wales, and Ireland, within a “composite monarchy” on the other.14 Theother “imperial” powers of any size, Portugal and Holland, considered their over-

seas possessions, with the sole exception of Portuguese Brazil, to be trading sta-tions, feitorias, not dissimilar to the factories the English later established inAsia, which were under the direct control of governors appointed by either thecrown or the Republic.

If “empire” meant anything in this context it was what the neo-Aristotelianscalled a “perfect community” ( perfecta communitas), one, that is, which is “suf-ficient in providing for life’s necessities.” Crucially, it was also one in which sov-ereignty was undivided.15 The monarchs of Europe had spent centuries wrestingauthority from nobles, bishops, towns, guilds, military orders, and any number of

quasi-independent, quasi-sovereign bodies. Indivisibility became, in particularafter 1648, one of the shibboleths of pre-Revolutionary Europe. When, in 1774,Sir Francis Barnard, the Governor of Massachusetts Bay, declared that “theKingdom of Great Britain is imperial,” he qualified this by saying that what hemeant was that “it is sovereign and not subordinate to or dependent upon anyearthly power.”16

No modern state was eager to relinquish any portion of its hard-won sovereignauthority to any quasi-independent body, even one that lay at a great distancefrom the metropolis. For all the major European overseas powers, the word

13. Alexandre Y. Haran, Le Lyse et le globe: Messianisme dynastique et rêve imperial en Franceaux XVIe et XVIIe siècles (Seyssel: Champs Vallon, 2000), 211.

14. John Adams, Works, ed. Charles Francis Adams, ed. (Boston, 1850–1856), IV, 37.15. St. Thomas Aquinas, De Regimine Principum, I. 1.16. Sir Francis Barnard, Select Letters on the Trade and Government of America; and the

Principles of Law and Polity, applied to the American Colonies (London, 1774), 71.




“empire” could, therefore, only refer to a single community, a single civitas,which included both the territory within Europe and beyond. As ThomasPownall, Governor of Massachusetts, explained in 1752, exhaustively and withcharacteristic laboriousness,

This modelling of the people into various orders and subordinations of orders, so that itbe capable of receiving and communicating any political motion, and acting under thatdirection as a one whole is which the Romans called by the peculiar word Imperium, toexpress which particular group or idea we have no word in English, but by adopting theword Empire. Tis by this system only that a people become an political body; tis the chain,the bonds of union by which very vague and independent particles cohere.17

This, for instance, certainly described the Spanish “Kingdoms of the Indies”( Reinos de Indias). It described, too, the French settlements overseas that were—at least before the invasion of Algeria in 1830—as many of them have remained

to this day, one or another kind of overseas dependency of the French state, gov-erned in the case of Canada by a body of local administrative law called theCoutume de Paris. In 1664 the founding charter of the Compagnie des IndesOccidentales, which administered Canada in the King’s name, went so far as todecree that all American Indians who, in keeping with the principle of cuius regioeius religio, had converted to Christianity, should “be registered and counted asdenizens and French natives, and as such entitled for all rights of succession,goods, laws and other dispositions.”18

The one place that Pownall’s description did not fit, however, was precisely

the place for which it was intended. The British, declared Adam Smith in 1776,had never understood what was implied in the term “empire.” What currentlyexisted in America, in which settlers of British origin (he was unconcerned bythe condition of the Indians) were being denied the same status as residents of Britain itself, was “a manifest violation of the most sacred rights of mankind.”19

Here was no “bond of union,” nothing indeed to keep the “vague and independ-ent particles” from remaining vague and independent. In the continued absenceof anything like the Edict of Caracalla, America would only ever be not anempire, but “a sort of splendid and showy equipage” of an empire. “The rulers

of Great Britain,” he concluded,have for more than a century past, amused the people with the imagination that they pos-sessed a great empire on the west side of the Atlantic. This empire, however, has hithertoexisted in imagination only. It has hitherto been not an empire but the project of anempire.20

It was this conception that allowed Edmund Burke, in condemning the “ori-ental despotism” practiced by the governor-general of Bengal, Warren Hastings,

17. Thomas Pownall, Principles of Polity, being the grounds and reasons of civil empire(London,1752), 93-94.

18. “Établissement de la Compagnie des Indes Occidentales,” May, 1664, in Édits, ordonnancesroyaux, déclarations et arrêts du conseil d’état du Roi concernant le Canada, 3 vols. (Quebec,1854–1856), I, 46.

19. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed. R. H.Campbell and A. S. Skinner, The Glasgow Edition of the Works and Correspondence of Adam Smith(Oxford: Oxford University Press, 1976), II, 582.

20. Ibid ., II, 946-947.



ANTHONY PAGDEN34

to refer in 1785 to the Indians as “this unhappy part of our fellow citizens.”21 ForBurke, as for Smith, empire could only be a single sovereign whole, a state inwhich all subjects were also, in the sense he uses the term, “citizens.” If that werethe definition of empire, then British India was clearly not one. For this was the

crucial distinction between America and India. The settlers who had gone toAmerica had gone to create a new England overseas, while always remainingconstitutionally English. Hence the fiction that “New England lies withinEngland.” The British who had gone to India, however, were like birds of preywho swoop down “wave upon wave . . . [with] nothing before the eyes of thenatives but an endless hopeless prospect of new flights . . . with appetites con-tinually renewing for a food that is continually wanting.” Contrast this, saidBurke, with the conquerors who had preceded them:

the Asiatic conquerors very soon abated their ferocity, because they made the conquered

country their own. They rose or fell with the rise and fall of the territory they lived in.Fathers there deposited the hopes of their posterity; and children beheld the monumentsof their fathers.22

The contemporary Persian chronicler, Ghulam Husain Khan, in a less inflam-matory tone made much the same point: the English, he complained, unlike anyprevious imperial race, had “a custom of coming for a number of years, and thenof going away to pay a visit to their native land, without any one of them show-ing an inclination to fix himself in this land.”23

What Burke called “Indianism”—the peculiar brand of imperial pillage prac-

ticed by the East India Company—threatened not only the existence of the peo-ples of the overseas territories, it threatened the very existence of what Burkethought of as “the civilization of Europe.”24 Like Montesquieu before him, andTocqueville after, Burke had seen that, if an empire was to be a whole, any threatto the lives and well-being of its subjects outside Europe would also one daycome home to threaten those within. The servants of the Company, he warned,“not only bring with them the wealth which they have, but they bring with theminto our country the vices by which it was acquired.”25 The mere fact of distanceshould never be allowed to obscure that fact. “The scene of the Indian abuse is

distant indeed,” Burke told the House of Commons, “but we must not infer, thatthe value of our interest in it is decreased in proportion as it recedes from ourview.”26 Hastings’s tyranny and peculation, and worse still, his defense of his

21. Edmund Burke, “Speech on Nabob of Arcot’s debts, 28 February 1785,” in The Writings and Speeches of Edmund Burke, ed. P. J. Marshall (Oxford: Clarendon Press, 1981), V, 519. He also refersto the “the sufferings of our fellow creatures and fellow subjects in that oppressed part of the world”(549).

22. Quoted in Uday Singh Mehta, Liberalism and Empir e: A Study in Nineteenth-century British Liberal Thought (Chicago: University of Chicago Press, 1999) , 139-140.

23. Quoted in Rajat Kanta Ray, “Indian Society and the Establishment of British Supremacy,

1765–1818,” in The Eighteenth Century, ed. P. J. Marshall, Vol. II, The Oxford History of the BritishEmpire (Oxford: Oxford University Press, 1998), 514.

24. Edmund Burke, On Empire, Liberty and Reform: Speeches and Letters of Edmund Burke, ed.David Bromwich (New Haven: Yale University Press, 2000), 15-16.

25. See P. J. Marshall, The Impeachment of Warren Hastings (Oxford: Oxford University Press,1965), 191.

26. “Speech on Nabob of Arcot’s debts, 28 February 1785,” 488.




methods on the grounds that in India these were normal procedures of govern-ment, was a direct challenge to the principles of the British constitution. “I amcertain,” Burke wrote, “that every means effectual to preserve India from oppres-sion is a guard to preserve the British Constitution from its worst corruption.”27

Burke’s view of empire was based firmly upon the idea that, in the end, whatBritain had to carry to India was the liberty that its constitution embodied. It wasfor this reason alone that it had been “given by an incomprehensible dispensationof Divine providence into our hands.”28 The inescapable paradox that not onlyBurke, but an entire generation of would-be reformers in British India fromCornwallis to Bentinck, faced was how to act if, as was invariably the case, thelocal culture turned out to be at odds with British notions of “Liberty.” “A systemof lib-erty,” the linguist and jurist Sir William Jones once argued, if “forced upona people invincibly attached to opposite habits, would be a system of cruel tyran-ny.”29 With this in mind, in 1788 Jones had set about the colossal task of compil-ing a digest of Hindu, Muslim, and British law. This, he told Governor-generalLord Cornwallis, would give to the people of India “security for the due adminis-tration of justice among them, similar to that which Justinian gave to his Greek andRoman subjects,” and make Cornwallis the “Justinian of India.”30 But for all hisenthusiasm and Jones’s genuine and deep respect for (at least ancient) Indian cul-ture, the distances between, on the one hand, a code based upon custom sanctionedby usage, as was the common law, and on the other, those based on the supposedutterances of gods, as were both the various “Hindu” codes and the Shari’a, wereirreconcilable. Ultimately, if non-Europeans were to be “citizens” of the empiresthat had engulfed them and not merely their subjects, they could only become soby accepting the undivided legislative authority of their distant sovereign.

What finally brought the full force of this paradox to the empire-buildersthemselves, and what finally shifted their conception of the kinds of empires theycould hope to acquire overseas, was the attempt by a European to create an“empire of liberty” within Europe itself. From his final exile on St. Helena,Napoleon told his amanuensis, Las Cases, that his “great design” had been

the agglomeration, the concentration of the same geographical peoples which revolutions and

politics had broken down. I would have liked to make of each of these peoples one and a samenational body. . . . Then perhaps it would have been possible to dream for the great Europeanfamily, the application of the American Congress or of the Amphictyons of Greece.31

27. “Our Government and our Laws,” Burke wrote to Lord Loughborough in 1796, “are beset bytwo different enemies, which are sapping its foundations, Indianism and Jacobinism. In some casesthey act separately, in some they act in conjunction: But of this I am sure; that the first is the worseby far.” The Correspondence of Edmund Burke, ed. Thomas Copeland (Chicago: University of Chicago Press, 1958–1978), VIII, 432.

28. Bromwich, ed., On Empire, Liberty and Reform: Speeches and Letters of Edmund Burke, 15-16.

29. Sir William Jones, “The Best Practicable System of Judicature for India,” in The Collected

Works of Sir William Jones, [1807] facsimile edition (New York: New York University Press, 1993),I, cxxxiii.

30. Quoted in Bernard Cohn, “The Command of Language and the Language of Command,” inSubaltern Studies IV , ed. Ranajit Guha (New Delhi: Oxford University Press, 1985), 295.

31. Quoted in Bianca Fontana, “The Napoleonic Empire and the Europe of Nations,” in The Ideaof Europe from Antiquity to the European Union, ed. Anthony Pagden (Cambridge, Eng.: CambridgeUniversity Press, 2002), 123.



ANTHONY PAGDEN36

However much he might have aspired, as the allusion to the Greek leagues andthe United States suggests, to be the founder of a kind of European Union avant la lettre, what Napoleon had in fact done was to wage prolonged and bloody waragainst peoples who, for the most part, did not see themselves in need of the kind

of liberty and equality that the French Revolution, at least in its Napoleonicguise, claimed to offer.In 1813, when the end of Napoleon’s rule seemed inevitable, Benjamin

Constant, one of Napoleon’s fiercest critics, although later he somewhat reluc-tantly collaborated with him in the hope of being able to transform the FrenchEmpire from within, wrote a long pamphlet entitled De l’esprit de conquête et del’usurpation dans leurs rapports avec la civilisation européenne. Although thispamphlet never mentions empire directly, it was a sweeping condemnation of theNapoleonic empire, and of the principles of empire everywhere. For Constant the

implications for the modern world of Napoleon’s attempt to create in Europe anew civitas, under a single law and a single government, was clear. War, hebelieved, was not in itself an evil, as many of his contemporaries who had livedthrough the carnage of the previous decades had come to believe. At certainstages in human history, it had been a part of the human condition and, as such,had possessed a capacity for developing “the finest and grandest faculties” inhumankind.32 At the beginning of the nineteenth century, however, that time hadlong since past. Now conquest and usurpation—the objective of any war that wasnot simply defensive—had become outmoded, and therefore highly dangerous,

methods of achieving political objectives of any kind. The warrior communitiesof the ancient world that had created the first European (and all the Asiatic)empires had been societies that were, crucially, small. Their customs were sim-ple, they despised luxury and comfort, and valued above all else generosity, hos-pitality, courage, and loyalty—loyalty to each other and loyalty to their leaders.The modern world, as Constant saw it, however, was a very different place.Societies were now large and complex. No-one knew anyone except his neigh-bors. Generosity, hospitality, courage, and loyalty were still looked upon asvirtues, but they had now taken second place to the purely personal ambition to

achieve a prosperous and untroubled life. The “sole aim of modern nations,” hewrote, “is repose and with repose, comfort and as the source of comfort, indus-try.” The only political goods that the moderns required were the peace and secu-rity that would allow them to pursue these essentially private goals unhindered.

What divided the ancient from the modern world in this way was commerce.Commerce, had, of course, long been seen as a universal panacea for resolvinginternational conflict. In Constant’s view, however, commerce had replaced war-fare not because it was benign or because it could “make men gentle,” inMontesquieu’s terms, by “polishing” their rough edges through prolonged con-

tact. For Constant, commerce had not in any way altered the nature of humankind, since commerce and warfare “are only two different means toachieve the same end, that of possessing what is desired.” What the invention of

32. Benjamin Constant, The Spirit of Conquest and Usurpation and their Relation to EuropeanCivilization, in Political Writings, transl. and ed. Bianca Fontana (Cambridge, Eng.: CambridgeUniversity Press, 1988), 51.




commerce had achieved, entirely despite itself, was a radical change in the cal-culation of interests. “War, then, comes before commerce,” he wrote, “The for-mer is all savage impulse, the latter civilized calculation.” And in the new worldof calculation trade had taken over from empire, since the “infinite and complexramifications of commerce have placed the interests of [individual] societiesbeyond the frontiers of their own territories.” Modernity, in other words, cannotbe other than peaceful and global. There was now no space left in it that couldever again give rise to that “narrow and hostile spirit which men seek to dignifywith the name of patriotism.”33 Any modern government that today “wished togoad a European people to war and conquest would be committing a gross anddisastrous anachronism. It would labor to impose upon that nation an impulsecontrary to nature.”34

Moreover, because it would be an anachronism, its impact on its subject peo-ples would be far harder to endure than anything that had existed in the premod-ern world. For ancient empires had been essentially conglomerates, which hadtolerated and even welcomed difference. Napoleon’s empire, any modernempire, however, could not afford to be so lax. It could secure its ends only underthe guise of a crippling uniformity. To his empire, therefore, Napoleon had triedto give

an appearance of uniformity, upon which the proud eye of power may travel without meet-ing any unevenness that could offend or limit its view. The same code of law, the samemeasures, the same regulations, and if they could contrive it gradually, the same language,this is what is proclaimed to be the perfect form of social organization.35

Such an empire inflicts far greater damage upon its subjects than any that hadexisted in antiquity. The ancient emperors had left their subjects to pursue theirown private lives unhindered. The modern imperialist, however, living in a worldwhere the public has ceded much of its former space to the private,

pursues the vanquished into the most intimate aspects of their existence. It mutilates themin order to reduce them to uniform proportions. In the past conquerors expected thedeputies of conquered nations to appear on their knees before them. Today it is man’smorale that they wish to prostrate.36

The transition from warfare to commerce, by altering the ways in which goodswere acquired, had inevitably changed the very nature of the goods desired. Inantiquity men had sought glory and despised luxury. In the modern world, theygave very little thought to glory and sought luxury. “Our century,” wroteConstant,

which values everything according to its utility, and, as soon as one attempts to move outof this sphere opposes its irony to every real or feigned enthusiasm, could not contentitself with a sterile glory, which we are no longer in the habit of preferring to other kinds.37

33. Ibid ., 53-54; and see the famous discourse of 1819, “De la liberté des anciens comparé à celledes modernes” (The Liberty of the Ancients Compared to that of the Moderns) in Political Writings,313, where he makes the same point.

34. Constant, The Spirit of Conquest and Usurpation, 55.35. Ibid ., 73.36. Ibid ., 77.37. Ibid ., 55.



ANTHONY PAGDEN38

In the ancient world, the tribal leader had only to point to the region of theworld he wished to conquer and his warriors would follow him there. The objec-tive was unimportant. In the modern world, calculating and concerned to protectits own interests, the only repose a people would give to a leader who urged them

to follow him and conquer the world would be “to reply with one voice: ‘Wehave no wish to conquer the world.’”38 Men might still be coerced or paid tofight, but the modern conqueror could never mobilize what for Constant was thesource of lasting political power in the modern word: public opinion. “The forcethat a people needs to keep all others in subjection,” he wrote,

is today, more than ever, a privilege that cannot last. The nation that aimed at such anempire would place itself in a more dangerous position than the weakest of tribes. It wouldbecome the object of universal horror. Every opinion, every desire, every hatred, wouldthreaten it, and sooner or later those hatreds, those opinions, and those desires wouldexplode and engulf it.39

In 1813, with Napoleon apparently on his way to becoming his own kind of anachronism, Constant could be confident that the very brevity and bloodiness of his ambition to transform Europe into a series of satellite kingdoms had indeedcreated the “universal horror” necessary to render all such projects unrepeatable.In a sense he was right, at least until 1914, and at least within Europe.40

Beyond Europe, however, things were very different. For what Constant hadnot foreseen was what would follow the final defeat of Napoleon; it would notbe a return to the enlightened world of reciprocating commercial peoples, but

instead the emergence of the modern nation, the political embodiment of that“obscure mystic idea,” as Emile Durkheim once called it, and with the nation,nationalism.41 After the Congress of Vienna the newly self-conscious Europeanstates and subsequently the new nations of Europe—Belgium (founded in 1831),Italy (1861), and the German Empire (1871)—all began to compete with oneanother for the status and economic gains that empire was thought to bestow.

Nationalism transformed the nature of empire by making the acquisition of overseas possessions a source of national pride and a potential instrument of national cohesion in times of crisis. It some sense, of course, it had always been

that. The Roman general Scipio Africanus could evade charges of corruption byappealing to the Roman people in the name of what he had achieved for their empire. The English and French scramble for possessions in the Atlantic in theseventeenth century had been driven overwhelmingly by the desire not to beovertaken by Spain. But the modern nation-state was dependent to a far greater

38. Ibid ., 64.39. Ibid ., 79.40. In 1918, as another European empire was coming to a similarly ignominious end, the great

Austrian economist Joseph Schumpeter made much the same general observations on the nature of imperial expansion as Constant had done. It was, he said, “the purely instinctual inclination towards

war and conquest . . . that has no adequate object beyond itself.” Imperialism and Social Classes [Zur Soziologie der Imperialismen], transl. Heinz Norden (New York: Augustus M. Kelley, 1951), 7, 8.And like Constant, he relegated it to an earlier atavistic period of human history that he now believedhad been overtaken by the age of free trade, the rough equivalent of Constant’s “commerce.” “It maybe stated as beyond controversy,” he declared, “that where free trade prevails no class has an inter-est in forcible expansion as such” (ibid., 99).

41. Quoted in Marcel Detienne, Les Grecs et nous (Paris: Perrin, 2005), 13.




degree than either the ancient world or the early-modern European monarchieshad been on the need to satisfy public opinion, without the support of which, asConstant had seen, no future, post-revolutionary society could hope to survivefor long. “Public opinion,” moreover, far from turning an ironical eye on theimperialistic pretensions of its rulers, embraced them with enthusiasm—provid-ed, that is, they were now conducted at a safe distance beyond their own fron-tiers. The French invasion of Algeria in 1830, for instance, was undertaken inorder to re-establish the image of a France still tarnished by the defeat of Napoleon, and the hope—unfulfilled as it turned out—that a quick victory mightallow the unpopular government of Charles X to succeed at the polls. Elevenyears of unrelenting warfare later, when the French still had only a tenuous holdover large areas of the country, Alexis de Tocqueville was still in favor of theoccupation, for to withdraw, he wrote in October 1841, would “in the eyes of theworld be a certain declaration of the decadence [of France].” If France ever wereto give up Algeria, he added, it certainly should not be at a time like the presentwhen “she seems to be descending into the second rate, and appears to beresigned to seeing the direction of the affairs of Europe pass into other hands.”42

What divided this kind of empire-building from anything that had preceded itwas not, however, only the motives of the imperialists. What made these “sec-ond” empires quite distinct political experiments from the “first” was how thenature of power, and the relationship between the conquered and the conquerors,was conceived. For in the post-Napoleonic world, it became very hard to see howsovereignty, while it might still be indivisible within Europe, could also be sobeyond.43

In 1887 Henry Maine, sometime Regius Professor of Civil Law at Cambridgeand the Law Member of the Viceroy of India’s Council from 1862 to 1869, deliv-ered a series of lectures on “International Law”—still then a novel topic—to theUniversity of Cambridge.44 Sovereignty, he told his audience, was now the keytheoretical and juridical issue facing the new European powers. But sovereigntyhad only ever been imperfectly understood. Throughout the Roman Empire,dominium (commonly thought of as the Roman antecedent to “sovereignty”) hadbeen exercised by the Emperor or the Senate over those territories that lay with-in the Roman imperium. As such they were all subject to the Roman civil law.Relations with those peoples who were, at least for the time being, outside theempire were conducted according to the Law of Nations (ius gentium), a body of law that in time would be transformed into what today is called “internationallaw.” The Barbarian invaders of the Roman Empire, although they were the de

42. Alexis de Tocqueville, Travail sur l’Algérie, in Tocqueville sur l’Algérie, ed. Seloua LusteBoulbina (Paris: Flamarion, 2003), 96-97.

43. On the question of divided sovereignty, see Edward Keene, Beyond the Anarchical Society:

Grotius, Colonialism, and Order in World Politics (Cambridge, Eng.: Cambridge University Press,2002).

44. This develops the arguments in chapter IV of Henry Maine’s immensely influential Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Ideas [1861](London: John Murray, 1878) and in “The Conception of Sovereignty and its Importance inInternational Law,” in Papers Read before the Juridical Society, 1855–1858, (London, 1858) I, 26-45.



ANTHONY PAGDEN40

facto masters of the territories they occupied, had also originally been nomadictribes, and, unlike the Romans, “based no claim of right upon the act of territo-rial possession, and indeed attached no importance to it whatsoever.”45 Before,broadly speaking, the creation of the “Europe of nations” after 1648, sovereign-

ty had therefore been limited to what Maine calls “tribe-sovereignty.” The“state”—in its original sense of the territory of a prince—belonged to the tribe,not to the sovereign. The sovereign thus exercised sovereignty over people, notland. For this reason medieval monarchs styled themselves Rex Anglorum, RexFrancorum—King of the English, King of the French—not Rex Angliae, or RexFranciae, as they subsequently became.

This, argued Maine, in a truly brilliant piece of inference, had left those suchas Charlemagne, who wished to extend the range of their power beyond the lim-its of their initial tribe, with only one option. “The alternative to this peculiar

notion of sovereignty,” he said, “appears to have been—and this is the importantpoint—the idea of universal dominium.” When, that is, a sovereign departedfrom the notion of himself as “chief to clansmen,” the only model that

suggested itself for adoption was the domination of the Emperors of Rome. To adopt acommon quotation he became “aut Caesar aut nullus.” Either he pretended to the full pre-rogative of the Byzantine Emperor, or he had no political status. . . . The chieftain whowould no longer call himself King of the tribe must claim to be Emperor of the world.46

The view of the State that emerged during the religious conflicts that dividedEurope in the sixteenth and seventeenth centuries, however, had changed all this.

Sovereignty (dominium), in accordance with the traditional Roman understand-ing of the term, came to be looked upon as simple ownership. Since the sover-eign is an individual (a view Maine attributes somewhat vaguely to HugoGrotius), “sovereigns are regarded by those lawyers as absolute and not merelyparamount owners of the states which they govern.” Their ownership is nowownership not of persons but of territory. Sovereignty is, therefore, “always asso-ciated with a definite portion of the earth’s surface.” As a consequence, “thesewriters (of the 16th and 17th centuries) regarded the civilized world as a space of soil divided between a number of Roman proprietors.” It was this transposition

of sovereignty from the tribe to the individual that had enabled Grotius and oth-ers to “regard states as moral beings bound by moral rules.”47

If a state were somehow an individual, moral entity, the sovereignty to whichit now laid claim had to be indivisible across all of the sovereign’s territory. Butany such extension of sovereignty beyond both the territory of the proprietor and the traditional habitat of the sovereign’s tribe would be unsustainable.Indivisibility, therefore, concluded Maine, “does not belong to InternationalLaw.”48 For Maine a regime bound by international law shared something of thevision that Constant (and later Kant) had envisaged among the trading nations of

the world: one that is bound not by a common sovereignty, nor one that existed

45. Maine, Ancient Law, 104.46. Ibid . , 100-101.47. Henry Maine, International Law: A Series of Lectures Delivered before the University of

Cambridge 1887 (London: John Murray, 1888), 55-57.48. Ibid ., 58.




in a state of anarchy, but a peaceable union created out of common interest.Maine had himself observed elsewhere that it was not insignificant that “the iusgentium of the Roman Praetor, which was in part a Market law, is the undoubt-ed parent of our International Law.”49

Grotius, as Maine acknowledges, had a very strong sense of state sovereign-ty and had made something of the same point about the possibility of exercisingit in the international sphere. But Grotius had been thinking of the relationshipbetween sovereign states to each other, or—in the case of his celebrated claimthat individuals had the right to wage private war in their own defense—of indi-viduals on, for instance, the high seas, who were beyond the jurisdiction of anysovereign. Maine, however, was thinking primarily of dependent territories, andin particular of India, and of the new empires then taking shape across the globe.In these, unlike the former European overseas empires, no pretense could bemade that there existed one sovereign as “undisputed legislator.”50

Thus a ruler may administer civil and criminal justice, may make laws for all his subjectsand for his territory, may exercise power over life and death, and may levy taxes and dues,but nevertheless he may be debarred from having foreign relations with any authority out-side his territory. This, in point of fact, is the exact condition of the native princes of India;and states of this kind are at the present moment rising in all the more barbarous portionsof the world. In the protectorates which Germany, France, Italy and Spain have estab-lished in the Australasian seas and on the coast of Africa, there is no attempt made toannex the land to found a colony in the old sense of the word, but the local tribes are for-bidden all foreign relations except those permitted by the protecting state. As was thedeclared intention of the most powerful founder of protectorates of this kind, PrinceBismarck, if they were to resemble anything they were to resemble India under the EastIndia Company.51

It did indeed resemble British India under the East India Company. This hadbeen precisely Burke’s complaint, since in the context in which sovereignty wasdivided between conqueror and conquered the outcome could only be whatMaine himself recognized as “the virtually despotic government of a dependen-cy by a free people.”52

Constitutionally there were obvious similarities not only with the de facto sta-

tus of the Raj, but also between Maine’s account and a discussion that had beengoing on since at least the seventeenth century over the legal relationshipbetween the American colonies and the British Crown in terms of a distinctionbetween “internal” and “external” spheres of legislation. In this case, too, theAmericans had insisted—although they did not use that language—that sover-eignty had to be divisible. The American colonies, wrote Richard Bland in 1766,constituted,

a distinct state, independent as to their internal government of the original kingdom, butunited with her as to their external policy in the closest and most intimate LEAGUE AND

49. Henry Maine, Village Communities in the East and the West (London: John Murray, 1881),193.

50. Maine, International Law, 57.51. Ibid ., 57-58.52. Henry Maine, The Effects of Observation of India in Modern European Thought (London:

John Murray, 1875), 33.



ANTHONY PAGDEN42

AMITY, under the same allegiance, and enjoying the benefits of a reciprocal inter-course.53

Needless to say the crown did not agree. The Thirteen Colonies were a part of the royal demesne. The king of Great Britain was, in Maine’s terms, a “Roman

proprietor” and his sovereignty was therefore indivisible across all his domains.A certain amount of legislative freedom had clearly been granted to the coloniesby their various charters. But this did not mean, as Bland supposed, that “the leg-islature of the colony have a right to enact ANY law they shall think necessaryfor the INTERNAL government.”54

The difference between Maine’s use of this argument and Bland’s, and it iscrucial, is that Bland is talking about “English-Americans,” settlers who claim atleast to enjoy the same rights and privileges as native-born Englishmen. Maineis talking about the sovereignty of non-European rulers in conquered—or

usurped, to borrow Constant’s distinction—territories.The recognition of the need to share sovereignty with an indigenous people

inevitably created very different kinds of projects from either the empires of antiquity or the first European overseas empires. Even the terminology of empire, in particular in Britain, was significantly altered. True, Britain still hadcolonies. But most of its overseas possessions were described as something else:dominions, protectorates, mandates. “I know of no example of it either in ancientor modern history,” wrote Disraeli in 1878, “No Caesar or Charlemagne everpresided over a dominion so peculiar.” It was a conglomerate united only in what

he described as the recognition of “the commanding spirit of these islands.” 55

Their policies, too, were different. The “new” empires did not, as their predeces-sors had done, encourage settlement, except in those areas such as southernAfrica and Australia, which were held to be “empty lands,” terrae nullius.56

British India remained until the end a place visited rather than settled. “TheEnglish,” observed the French essayist and art historian Élie Faure in 1931, refer-ring to the Indian railway system, “seem to be camping. One only ever sees themfrom behind a wall of steel.”57 In South Africa as late as 1936, after successiveinter-war migrations, whites accounted for only 21% of the population. In

Southern Rhodesia they accounted for less than 5%.58 Even in such places asAlgeria, which was something of an exception, by 1931 the colons amounted toless than 13% of the population. As Tocqueville had warned the government in

53. Richard Bland, An Enquiry into the Rights of the British Colonies (London, 1766), 16.54. Richard Bland, The Colonel Dismounted: Or the Rector Vindicated [Williamsburg, 1764], in

Pamphlets of the American Revolution, I, 1750–1765, ed. Bernard Bailyn (Cambridge, Mass.:Harvard University Press, 1965) 320.

55. Quoted in Richard Koebner and Helmut Dan Schmidt, Imperialism: The Story and Significance of a Political Word, 1840–1960(Cambridge, Eng.: Cambridge University Press, 1964),

136-137.56. On terra nullius, see Carole Pateman, “The Settler Contract,” in Carole Pateman and CharlesMills, Contract and Domination (forthcoming) and Jacques Frémeaux, Les empire coloniaux dans le processus de mondialisation (Paris: Maisonneuve & Larose, 2002), 168.

57. Élie Faure, Mon périple (Paris: Seghers, 1987), 142.58. For these figures, see Frémeaux, Les empire coloniaux dans le processus de mondialisation,

168-176.




Paris as early as 1841, “without a European population we will be camping inAlgeria.”59

Government in the new empires was also, by comparison with the earlier ones,limited. Instead of creating large settler bureaucracies supervised by visiting met-ropolitan officials, they attempted where possible to govern through what F. D.Lugard, governor and governor-general of Nigeria between 1912 and 1919, wasthe first to describe as “indirect Rule,” but which had in fact been the practice inmuch of Africa since the mid-nineteenth century. A similar policy known as“politique des races” was applied by the French in west Africa and in certainareas of north Africa, and by the Dutch in southeast Asia. The “Orientals,” saidChristiaan Snouck Hurgronje, advisor to the colonial government of theNetherlands East Indies, in 1908 were no different from the Irish, the Finns, orthe Poles: they preferred to be ruled by their own people, for all their faults, thanby foreigners.60

The trouble with “indirect rule” was that it was not always easy to identifywith certainty who the local bearers of sovereignty were. This is most tragicallyobvious in Africa. Unlike India or much of Asia, sub-Saharan Africa before thearrival of the Europeans was a continent with very few large-scale societies. Itwas widely believed, however, on the basis of the large-scale ethnic groups, suchas the Zulu, that did exist that all Africans were similarly divided into what, inhonor of some supposed affinity with early European societies, were called“tribes,” many of which had been constructed following the widespread assump-tion—shared incidentally by Maine—that ethnos was determined by language.61

Most of these “tribes,” however, were either too large or too small to capture thecomplex ethnic divisions in most parts of the continent. The Bangala of Zaire,the Baluhyia and Kikuyu of Kenya, the Bagisu of Uganda, and the Yoruba andIbo of Nigeria were all colonial inventions. The Ibo were a New World fictioncreated by lumping together into a single ethnic, and hence “tribal,” group allslaves speaking any one of the (numerous) Ibo dialects. As the divisions betweenthe administrative areas of British, French, Belgian, and German Africa hard-ened, they in their turn became the boundary lines of the new post-independenceAfrican states. The long-term consequences of this process proved to be disas-trous. The “immaturity and incapacity of African states” cannot be entirely attrib-uted to the ethnic divisions created by the colonial administrations. But they havecertainly been a crucial and determining factor.62

Only in Algeria did the earlier image of empire still persist with any force. Butlike so many exceptions, this one, too, proved the rule. Before the French inva-sion Algeria was not perceived to have been in any sense self-governing, as had

59. Tocqueville, T ravail sur l’Algérie in Boulbina, ed., T ocqueville sur l’Algérie, 126.60. J. S. Furnivall, Netherlands India: A Study of Plural Economy (Cambridge, Eng.: Cambridge

University Press, 1939), 291.

61. See Maine, The Effects of Observation of India in Modern European Thought , 9-11. “Theassumption, it is true, that affinities between the tongues spoken by a number of communities areconclusive evidence of their common lineage, is one which no scholar would accept without consid-erable qualification. . . .There seems to be no doubt that modern philology has suggested a groupingof peoples quite unlike anything that had been thought of before.”

62. See Robert Jackson, Quasi-States: Sovereignty, International Relations and the Third World (Cambridge, Eng.: Cambridge University Press, 1990).



ANTHONY PAGDEN44

most areas of sub-Saharan Africa. It had been part of the Ottoman Empire. Itspeople had for so long been in a state of tyrannical subjection that, inTocqueville’s opinion, they had “entirely lost the habit of governing them-selves”63—not that this had apparently made them any more inclined to allow the

French to replace the Turks. The alternative to the rule of some other imperialpower was anarchy. In the opinion at least of the French there simply was no oneto share sovereignty with. If Algeria were ever to be at peace some order had tobe brought to the enormously varied cultural geography of the place. We shouldnot, Tocqueville warned in 1847, “be proposing for Algeria the creation of acolony properly speaking, but the extension of France itself to the far side of theMediterranean.” But even Tocqueville was prepared to admit that “justice is notconstituted in Africa as it is in France.”64 What he in fact envisaged was a mix-ture of the old and the new. The coastal cities and the surrounding countryside,

since these were the only areas the French had any interest in, would be governedby French officials, under French law. Here Algeria would indeed be a part of France overseas, a true territoire de outre mer . The interior, however, occupiedby warring unstable Bedouin tribes, whose religion made European law andinstitution hard for them to accept, should be allowed within limits to govern itsown affairs. “Partial colonization and total domination,” he called it.65

The idea that sovereignty could be shared between Europeans and non-Europeans could also be adapted to other ideological positions. “Indirect rule,”declared the “functionalist” anthropologist Bronislaw Malinowski in 1929, was the

“complete surrender to the functional point of view” that African society shouldnot be tampered with since their ways of life were “functionally” the best suited tothe conditions in which they had evolved, although it is highly improbable thatLugard, a man not noted for his intellectual curiosity, or anyone else in the ColonialOffice, had ever heard of functionalism.66 Maine, also, persuaded himself that thetraditional Indian village, self-sufficient and to some degree self-governing, con-stituted a living instance of what the German or Scandinavian mark had once been.If he was right, then the “village community,” as he called it, was an example of the kind of society from which the prevailing order of the nations of modern

Europe had developed. Maine himself saw this as one more example of how in“those great and unexplored regions we vaguely term the East . . . the distinctionbetween the Present and the Past disappears.”67 For those who read him, althoughnot for Maine himself, this was a good reason for protecting and, to some degree,preserving these villages, particularly if they also turned out to be convenientadministrative districts. Their supposed similarity with ancient Anglo-Saxon insti-tutions might also serve as a guide as to how they might best be governed.68 This

63. Tocqueville, “Second Lettre sur l’Algérie,” in Boulbina, ed., Tocqueville sur l’Algérie, 57.64. Tocqueville, “Rapport fait par M. Tocqueville sur le projet de la loi relative aux crédits extra-

ordinaires demandés pour l’Algérie,” in Boulbina, ed., Tocqueville sur l’Algérie, 228.65. Tocqueville, Travail sur l’Algérie, in Boulbina, ed., Tocqueville sur l’Algérie,106.66. T. S. Smiley, “Social Advance in Non-Autonomous Territories,” in Principles and Methods of

Colonial Administration, Colson Papers (London: Butterworth Scientific Publications, 1950), 212.67. Maine, Village Communities in the East and the West , 7.68. On this see Clive Dewey, “The Influence of Sir Henry Maine on Agrarian Policy in India,” in

The Victorian Achievement of Sir Henry Maine, ed. Alan Diamond (Cambridge, Eng.: CambridgeUniversity Press, 1991), 353-375.




kind of imperialism then, promised to bring the virtues of benevolent, Christiancivilization to the darker regions of the world, without, as previous empires haddone, destroying all that was valuable in the indigenous cultures, not to mention thepeoples themselves.

Behind all these claims there lurked, as always, another objective. If the newempires were ones in which the conquerors were prepared to share their sover-eign authority with the “native,” they were also intended ultimately to preparehim to take his place among the “civilized nations” of the world. Maine had hada clear and markedly Kantian view of what the “civilized nations” of the worldwere: they were, tautologically, those bound by international law, since interna-tional law itself was not something of immemorial usage “of which the memoryof man runneth not to the contrary,” nor something binding through an act of leg-islation, but precisely “the condition of which a state is originally received intothe family of civilized nations.”69 To join that family, however, one had first toembrace its values. For Kant this had meant adopting a form of government thathe described as “representative republicanism,” because only in such republicswere human beings treated as ends not means, and only there could they devel-op their capacity for moral autonomy. Maine, whose concern was less with moralautonomy than it was with good government, largely agreed but chose to expresshimself in specific cultural-historical terms. “Civilization,” he wrote, “is nothingmore than a name for the old order of the Aryan world, dissolved but perpetual-ly re-constituting itself under a vast variety of solvent influences.”70

The empires of the pre-Revolutionary world had never envisaged a time inwhich either the natives, when they were believed to exist at all as separatenations, or the settlers would be self-governing, nor find themselves enjoying thesame international status as did the nations of Europe. When the RoyalProclamation of 1763 granted to what it described significantly as “the severalNations or Tribes of Indians” living in the lands west of the Appalachians as“under our Sovereign Protection and Dominion,” it was not, as some later com-mentators have suggested, setting those “nations” on the road to eventual inde-pendence. It was merely trying to limit the power of the settlers.71

The later empires, however, made self-determination an inevitable goal. Theobjective of the British in India, declared Lord Macaulay in 1833, was that “bygood government we may educate our subjects into a capacity for better govern-ment; that having become instructed in European knowledge they may, in somefuture age, demand European institutions.” He did not know when this wouldcome about, but he was certain that when it did “it will be the proudest day inEnglish history.”72 What he could not have failed to recognize, however, was thatonce these enviable goals had been achieved, the British Empire would be at an

69. Maine, International Law, 37-38. He is commenting on the view put forward in FrancisWharton’s A Digest of the International Law of the United States, but it is obvious that he alsoendorses it.

70. Maine, The Effects of Observation of India in Modern European Thought , 30.71. In Documents of the Canadian Constitution, ed. W. P. M. Kennedy (Toronto, 1918), 20.72. Quoted by Thomas R. Metcalf, Ideologies of the Raj, vol. II. 4 of The New Cambridge History

of India (Cambridge, Eng.: Cambridge University Press, 1994), 34.



end. By the twentieth century, preserving empire became largely a matter of put-ting off the moment of emancipation until some indefinite future.

But it could never be put off forever. One of the consequences of Maine’s“Roman proprietor” view of sovereignty had been the belief that what came to

be called “national self-determination” could only be achieved with full stateindependence—a belief to which Basque and Corsican extremists still cling. Nolonger content merely to share sovereignty with their conquerors and usurpers,the peoples of the imperial territories came increasingly to demand undividedsovereignty for themselves. It was an ideal that, ironically, had first emerged inEurope itself in the 1870s, as the various nationalities—the Italians, theGermans, the Polish, and the Irish—sought independence from the Austro-Hungarian, British, and Russian empires. It was only a matter of time before thesame ideals and expectations took root in Europe’s overseas dependencies. The

ancient illusion of autochthony had returned, in another guise.

University of California, Los Angeles

ANTHONY PAGDEN46

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