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Empires and protection: making interpolity law in the early modern world*

  • Lauren Benton (a1) and Adam Clulow (a2)

References to protection were ubiquitous across the early modern world, featuring in a range of transactions between polities in very different regions. And yet discourses about protection retained a quality of imprecision that makes it difficult to pin down precise legal statuses and responsibilities. It was often unclear who was protecting whom or the exact nature of the relationship. In this article, we interrogate standard distinctions about the dual character of protection that differentiate between ‘inside’ protection of subjects and ‘outside’ protection of allies and other external groups. Rather than a clear division, we find a blurring of lines, with many protection claims creatively combining ‘inside’ and ‘outside’ protection. We argue that the juxtaposition of these ‘inside’ and ‘outside’ meanings of protection underpinned the formation of irregular, interpenetrating zones of imperial suzerainty in crowded maritime arenas and conflict-ridden borderlands across the early modern world.

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A version of this article was presented at the ‘Protection and Empire’ workshop held at Harvard University in April 2016 and cosponsored by Vanderbilt University. The authors would like to thank all the participants for their many helpful remarks and suggestions, as well as the editors and reviewers of the Journal of Global History for their comments. Part of this research (Clulow) was funded by an Australian Research Council Discovery Early Career Researcher Award.

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1 On the distinction, more generally, between ‘inside’ and ‘outside’ sovereign capacities, see Walker, R. B. J., Inside/outside: international relations as political theory, Cambridge: Cambridge University Press, 1993 . For an analysis of the relation between these registers of protection in the British empire of the early nineteenth century, see Benton, Lauren and Ford, Lisa, Rage for order: the British empire and the origins of international law, 1800–1850, Cambridge, MA: Harvard University Press, 2016 , ch. 4.

2 Benton and Ford, Rage for order, ch. 4. On protection as a framework for the reach of multiple European empires inside a colony from the late nineteenth century, see Lewis, Mary, Divided rule: sovereignty and empire in French Tunisia, 1881–1938, Berkeley, CA: University of California Press, 2013 ; Orford, Anne, International authority and the responsibility to protect, Cambridge: Cambridge University Press, 2011 ; Glanville, Luke, Sovereignty and the responsibility to protect: a new history, Chicago, IL: University of Chicago Press, 2014 .

3 On debates about quasi-sovereignty, see Anghie, Antony, Imperialism, sovereignty and the making of international law, Cambridge: Cambridge University Press, 2005 ; and Benton, Lauren, A search for sovereignty: law and geography in European empires, Cambridge: Cambridge University Press, 2010 , ch. 5. On protected states and protectorates, see Anghie, Antony, ‘Finding the peripheries: sovereignty and colonialism in nineteenth-century international law’, Harvard International Law Journal, 40, 1, 1999, 1–81, esp. pp. 48–51.

4 For example, Games, Alison, The web of empire: English cosmopolitans in an age of expansion, 1560–1660, Oxford: Oxford University Press, 2009 ; Ward, Kerry, Networks of empire: forced migration in the Dutch East India Company, Cambridge: Cambridge University Press, 2008 ; Barkey, Karen, Bandits and bureaucrats: the Ottoman route to state centralization, Ithaca, NY: Cornell University Press, 1994 .

5 Readman, Paul, Radding, Cynthia, and Bryant, Chad, eds., Borderlands in world history, 1700–1914, Basingstoke: Palgrave Macmillan, 2014 ; Giersch, C. Patterson, Asian borderlands: the transformation of Qing China’s Yunnan frontier, Cambridge, MA and London: Harvard University Press, 2006 .

6 Lauren Benton, ‘Shadows of sovereignty: legal encounters and the politics of protection in the Atlantic world’, in Alan Karras and Laura Mitchell, eds., Encounters old and new: essays in honor of Jerry Bentley, Honolulu, HI: University of Hawai‘i Press, forthcoming.

7 Mancke, Elizabeth, ‘Early modern expansion and the politicization of oceanic space’, Geographical Review, 89, 2, 1999, pp. 225236 .

8 Vink, Markus, ‘Passes and protection rights: the Dutch East India Company as a redistributive enterprise in Melaka, 1641–1662’, Moyen Orient & Ocean Indien, 1990, pp. 73101 .

9 Thomaz, Luis F. F. R., ‘Precedents and parallels of the Portuguese cartaz system’, in Pius Malekandathil and Jamal Mohammed, eds., The Portuguese, Indian Ocean, and European bridgeheads, 1500–1800: Festschrift in honour of Professor K. S. Mathew, Tellicherry, India: Fundação Oriente and Institute for Research in Social Sciences and Humanities of MESHAR, 2001, pp. 6785 ; Prange, Sebastian R., ‘A trade of no dishonor: piracy, commerce, and community in the western Indian Ocean, twelfth to sixteenth century’, American Historical Review, 116, 5, 2011, p. 1276 . For a restatement of the older view that the legal regime emerging in the sixteenth century in the Indian Ocean represented a merging of northern European and Mediterranean practices and their thrust into non-militarized space, see Steinberg, Philip, The social construction of the ocean, Cambridge: Cambridge University Press, 2001, pp. 8689 .

10 This characterization runs from Lane to more recent accounts: Lane, Frederic, Profits from power: readings in protection rent and violence-controlling enterprises, Albany, NY: State University of New York Press, 1979 ; Pearson, Michael, Indian Ocean, London and New York: Routledge, 2003, p. 121 .

11 For a similar argument about the influence of British imperial law on the seas in the early nineteenth century, see Benton and Ford, Rage for order, ch. 5.

12 Thomaz, ‘Precedents and parallels’, p. 68.

13 Russell-Wood, A. J. R., The Portuguese empire, 1415–1808: a world on the move, Baltimore, MD: Johns Hopkins University Press, 1992, p. 43 .

14 On the Portuguese empire as a network or set of networks, see Erik Lars Myrup, Power and corruption in the Portuguese world, Baton Rouge, LA: Louisiana State University Press, 2015; Victoria Garcia, ‘From plunder to crusade: networks of nobility and negotiations of empire in the Estado da India 1505–1515’, unpublished paper, Wesleyan University, 2012.

15 Earle, T. F. and Villiers, John, eds., Albuquerque: Caesar of the East: selected texts by Afonso de Albuquerque and his son, Warminster: Aris & Phillips, 1990, p. 57 .

16 Ibid., p. 103.

17 Ibid., p. 111.

18 Ibid., pp. 117–19.

19 Ibid., p. 119. Albuquerque clearly regarded control of the ports and of adjacent waters as an interlocking system. Returning to the theme of the need for more forces and arms sent from Lisbon, he explained in a letter to the king that Portuguese enforcement in and around specific nodes such as Goa had a ripple effect. Foreign traders and their sponsors bowed to Portuguese demands even in adjacent areas where enforcement was less sweeping (ibid., pp. 135–7).

20 ‘Letters patent of Captain-Major and Governor of India issued to Lopo Soares’, Almeirim, 10 February 1515, in Documentos sobre os Portugueses em Moçambique e na Àfrica Central, 1497–1840, vol. 4, Lisbon: Centro de Estudos Históricos Ultramarinos, 1965, p. 213.

21 Disney, A. R., A history of Portugal and the Portuguese empire, vol. 2, Cambridge: Cambridge University Press, 2009, pp. 189190 .

22 For Albuquerque’s treatment of Diogo Mendes, see Earle and Villiers, Albuquerque, p. 143.

23 Garcia, ‘From plunder to crusade’, makes the point that historians have exaggerated the divide between a ‘formal’ and ‘informal’ Portuguese empire; fidalgos (noblemen) operated across these spheres and manoeuvred through ‘networks of nobility’.

24 Robert Innes, ‘The door ajar: Japan’s foreign trade in the seventeenth century’, PhD thesis, University of Michigan, 1980, p. 112.

25 Charles Boxer, The Christian century in Japan, 1549–1650, Berkeley, CA: University of California Press, 1951, pp. 430–1. The supposed infringement can be traced back to 1608. In that year, a shuinsen belonging to Arima Haranobu, a prominent lord in Kyushu, arrived in Macao on its way back to Japan from a successful voyage to Cambodia. When the Japanese crew became involved in a violent riot, Portuguese authorities responded by executing at least one of the offenders. After Tokugawa officials learned of this incident – almost certainly via a doctored version of events that emphasized Portuguese culpability – they determined to take action for what was seen as an assault on Arima’s trading licence. In an important new book that puts forward a different interpretation, Reinier Hesselink argues that the infringement was in fact nothing more than an excuse and that the Tokugawa Bakufu was trying to exert control over the wider Portuguese trade. See Hesselink, Reinier, The dream of Christian Nagasaki: world trade and the clash of cultures, 1560–1640, Jefferson, NC: McFarland Publishers, 2016 .

26 W. P. Coolhaas, ed. Generale Missiven van Gouverneurs-generaal en Raden aan heren XVII der Verenigde Oostindische Compagnie, 9 vols., The Hague: M. Nijhoff, 1960–, vol. 1, p. 149; University of Tokyo Historiographical Institute, ed., Diary kept by the head of the English factory in Japan: diary of Richard Cocks, 1615–1622, 3 vols., Tokyo: University of Tokyo, 1978–80, vol. 3, p. 60.

27 In November 1617, for example, the head of the English factory in Japan sold a ‘junk w’th the goshon [shuinjō], for 1200 tais [taels]’ (ibid., vol. 2, p. 204).

28 See Clulow, Adam, The Company and the shogun: the Dutch encounter with Tokugawa Japan, New York: Columbia University Press, 2014 , ch. 4 and 5.

29 This happened even as the Tokugawa regime moved to end the shuinjō system in 1635, when it prevented most Japanese ships from leaving the archipelago. Laver, Michael, The Sakoku edicts and the politics of Tokugawa hegemony, Amherst, NY: Cambria Press, 2011 .

30 Viallé, Cynthia and Blussé, Leonard, eds., The Deshima dagregisters, volume 13, 1660–1670, Leiden: Centre for the History of European Expansion, 2010, p. 162 ; Wills, John E. Jr, Pepper, guns, and parleys: the Dutch East India Company and China, 1622–1681, Cambridge, MA: Harvard University Press, 1974, p. 62 .

31 Vink, ‘Passes and protection rights’.

32 J. E. Heeres and F. W. Stapel, eds., Corpus diplomaticum Neerlando-Indicum, 6 vols., The Hague: Martinus Nijhoff, 1907–55, vol. 1, pp. 123–4.

33 Cheng, Weichung, War, trade and piracy in the China Seas (1622–1683), Brill: Leiden, 2013, pp. 6465 ; Andrade, Tonio, ‘The Company’s Chinese pirates: how the Dutch East India Company tried to lead a coalition of pirates to war against China, 1621–1662’, Journal of World History, 15, 4, 2004, p. 428 .

34 University of Tokyo Historical Institute, Diary of Richard Cocks, vol. 2, p. 257. Cocks makes use of the Julian calendar; this date corresponds to 9 March in the Gregorian calendar.

35 Ibid., vol. 2, p. 258.

36 Ibid., vol. 2, p. 261.

37 Of course, the English were hardly strangers to pass systems or the politics of maritime protection. On the English uses of protection in the early modern Mediterranean, see Tristan Stein, ‘The Mediterranean and the English empire of trade, 1660–1748’, PhD thesis, Harvard University, 2011.

38 Farrington, Anthony, The English factory in Japan, 1613–1623, London: British Library, 1991, p. 1190 .

39 Nadri, Ghulam, Eighteenth-century Gujarat: the dynamics of its political economy, 1750–1800, Leiden: Brill, 2009, p. 59 .

40 Benton, Search for sovereignty, ch. 3.

41 Pearson, Michael, Merchants and rulers in Gujarat: the response to the Portuguese in the sixteenth century, Berkeley, CA: University of California Press, 1976, p. 99 . Note that the practice of carrying multiple flags and commissions signed by several sovereigns extended into the Atlantic: see Benton, Search for sovereignty, ch. 3.

42 H. T. Colenbrander, ed., Jan Pietersz. Coen: bescheiden omtrent zijn bedrijf in Indië, 7 vols, The Hague: M. Nijhoff, 1919–53, vol. 7.2, p. 938.

43 For one example, see Foster, William, ed., The English Factories in India, 1634–6, Oxford: Clarendon Press, 1911, pp. 239240 .

44 Da Gama explained that for ‘the freedom of sailing in the Seas of India offered by Your Majesty [and] as recognition, and as a kind of vassalage they buy a cartaz’. Quoted in João Melo, ‘Lords of conquest, navigation and commerce: diplomacy and the imperial ideal during the reign of John V, 1707–50’, PhD thesis, Swansea University, 2012, p. 133.

45 Ames, Glen, Renascent empire: Pedro II and the quest for stability in Portuguese monsoon Asia ca.1640–1682, Amsterdam: Amsterdam University Press, 1999, p. 151 .

46 The subsequent fight over the nature of the connection created by the Hamedy’s licence extended to Europe, where the French ambassador at Lisbon protested the seizure. Melo, ‘Lords of conquest’, pp. 146–8.

47 Stern, Philip, The company-state: corporate sovereignty and the early modern foundations of the British empire in India, Oxford: Oxford University Press, 2011, p. 44 .

48 Adam Clulow is grateful to Ghulam Nadri for directing him to this case. Ghulam Nadri, ‘Interdependence, competition, and contestation: the English and the Dutch East India Companies and Indian merchants in the seventeenth and eighteenth centuries’, unpublished paper for ‘Global Company’ conference, Heidelberg, 3–5 December 2015. The records for this case can be found in British Library, India Office Records, Home Miscellaneous, IOR/H/108, pp. 83–125, 151–83.

49 Ibid., p. 85.

50 Ibid., p. 171.

51 Ibid., pp. 165–6.

52 Ibid., p. 100.

53 Ibid., p. 181.

54 Ibid., p. 168.

55 Ibid., p. 179.

56 Ibid., p. 154.

57 Heeres and Stapel, Corpus diplomaticum, vol. 1, pp. 37–8.

58 Ibid., vol. 1, p. 162.

59 Melo, ‘Lords of conquest’, p. 101.

60 See ‘Carta d’el-Rei do Congo para Portugal informando que ali tinha chegado Álvaro Lopes (4 de Março de 1516)’, Documento 9, António Luís Ferronha, ed., As Cartas do Rei do Congo D. Afonso, Grupo de Trabalho do Ministério da Educação para as Comemorações dos Descobrimentos Portugueses, 1992, pp. 45–7.

61 Thornton, John, ‘Early Kongo-Portuguese Relations, 1483-1575: A New Interpretation’, History in Africa 8, 1981, p. 195 .

62 Elbl, Ivana, ‘Cross-cultural trade and diplomacy: Portuguese relations with West Africa, 1441–1521’, Journal of World History, 3, 1992, p. 193 .

63 R. Jovita Baber, ‘The construction of empire: politics, law and community in Tlaxcala, New Spain, 1521–1640’, PhD thesis, University of Chicago, 2005, p. 67.

64 Ibid., pp. 85, 95, 103, 105.

65 Ibid., p. 134.

66 Ibid., pp. 157–60.

67 Quoted in Winichakul, Thongchai, Siam mapped: a history of the geo-body of a nation, Honolulu, HI: University of Hawai‘i Press, 1994. p. 85 .

68 Chandler, David, A history of Cambodia, Boulder, CO: Westview Press, 1992, p. 119 . Such relations recurred in different parts of Asia. The Tai state of Sipsongpanna occupied a similar position between Qing China and Burma. As Giersch, Asian borderlands, p. 87, notes, in ‘this political world, it was acceptable to be a “son” of one or two distant suzerains’.

69 Erika, Masuda, ‘The fall of Ayutthaya and Siam’s disrupted order of tribute to China (1767–1782 )’, Taiwan Journal of Southeast Asian Studies, 4, 2, 2007, p. 117 .

70 Roberts, Luke, Performing the great peace: political space and open secrets in Tokugawa Japan, Honolulu, HI: University of Hawai‘i Press, 2012, p. 5 .

71 Roberts, Performing the great peace, pp. 6–8.

72 William Bolts, Considerations on Indian affairs; particularly respecting the present state of Bengal and its dependencies, London, 1772, p. 30.

73 Travers, Robert, ‘A British empire by treaty in eighteenth-century India’, in Saliha Belmessous, ed., Empire by treaty: negotiating European expansion, 1600–1900, Oxford: Oxford University Press, 2014, p. 142 .

74 On the British empire and treaties in India, see Bowen, H. V., The business of empire: the East India Company and imperial Britain, 1765–1833, Cambridge: Cambridge University Press, 2008, pp. 260272 ; and especially Travers, ‘British empire’. On protection language in the consolidation of British authority in Ceylon, see Benton and Ford, Rage for order, ch. 4.

75 Martin, Robert, ed., The despatches, minutes, and correspondence, of the Marquess Wellesley, K.G., during his administration in India, London: J. Murray, 1836–1837, vol. 4, p. 156. This move was prompted by a desire to make sure that the emperor, and hence Mughal legitimacy, could not be seized by one of the Company’s rivals.

76 Buckler’s classic 1922 article observes that Wellesley ‘professed to proclaim a protectorate’ when addressing European audiences but for Mughal consumption represented the Company’s role as a ‘vassal’s protection of his lord’. F. W. Buckler, ‘The political theory of the Indian mutiny’, Transactions of the Royal Historical Society, 4th series, 5, 1922, p. 91. Note, however, that Buckler argues that relations between the EIC and the Mughal empire were dominated by misunderstanding. More recently, historians have observed that the layered qualities of Asian and European sovereignty created common ground; the EIC itself was, after all, a state operating with the authorization of another state. See Stern, Company-state; Travers, ‘British empire’; Benton, Search for sovereignty, ch. 5.

77 The quote comes from the charges laid against Bahadur Shah. Lucinda Bell, ‘The 1858 trial of the Mughal emperor Bahadur Shah II Zafar for crimes against the state’, PhD thesis, Melbourne University, 2004, 259.

78 ‘Trial of Muhammed Bahadur Shah, titular king of Delhi, and of Mogul Beg, and Hajee, all of Delhi, for rebellion against the British Government, and murder of Europeans during 1857’, Selections from the records of the government of the Punjab and its dependencies, new series, no. 7, Punjab Printing Company, 1870, p. 221.

79 Richter, Daniel, Facing east from Indian country: a native history of early America, Cambridge, MA: Harvard University Press, 2001, p. 166 .

80 Ibid., p. 148.

81 Witgen, Michael, An infinity of nations: how the native New World shaped early North America, Philadelphia, PA: University of Pennsylvania Press, 2012, p. 293 .

82 Ibid., pp. 276–8.

83 Clulow, Company and the shogun, ch. 3.

84 Hämäläinen, Pekka, ‘The shapes of power: Indians, Europeans, and North American worlds from the seventeenth to the nineteenth century’, in Julianne Barr and Edward Countryman, eds., The contested spaces of early America, Philadelphia, PA: University of Pennsylvania Press, 2014, pp. 3168 ; Rushforth, Brett, Bonds of alliance: indigenous and Atlantic slaves in New France, Chapel Hill, NC: University of North Carolina Press, 2012 ; Ford, Lisa, Settler sovereignty: jurisdiction and indigenous people in America and Australia, 1788–1836, Cambridge, MA: Harvard University Press, 2011 .

85 Benton, Lauren and Clulow, Adam, ‘Legal encounters and the origins of global law’, in Jerry H. Bentley, Sanjay Subrahmanyam, and Merry E. Wiesner-Hanks, eds., The Cambridge world history, volume 6: the construction of a global world, 1400–1800 CE, part 2: patterns of change, Cambridge: Cambridge University Press, 2015, pp. 80100 .

86 Alexandrowicz, C. H., An introduction to the history of the law of nations in the East Indies, Oxford: Oxford University Press, 1967 ; Pitts, Jennifer, ‘Empire and legal universalisms in the eighteenth century’, American Historical Review, 117, 1, 2012, pp. 92121 ; Alexandrowicz, C. H., The law of nations in global history, ed. David Armitage and Jennifer Pitts, Oxford: Oxford University Press, 2016 .

87 Benton and Clulow, ‘Legal encounters’, p. 82.

* A version of this article was presented at the ‘Protection and Empire’ workshop held at Harvard University in April 2016 and cosponsored by Vanderbilt University. The authors would like to thank all the participants for their many helpful remarks and suggestions, as well as the editors and reviewers of the Journal of Global History for their comments. Part of this research (Clulow) was funded by an Australian Research Council Discovery Early Career Researcher Award.

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