Courts and the Colonial State

After arriving on the island of Java in the seventeenth century, the Dutch gradually interfered in, and ultimately overruled, the different existing Javanese kingdoms and sultanates. In the nineteenth century a colonial state in Java was still in the making, as was an economy built on the large-scale export of agricultural products deemed essential for the Dutch economy. Sugar factories, tea plantations, and a growing rural Javanese population as the labour force dominate histories of this century, but the daily lives of the Javanese were shaped by the developing colonial state in other ways as well. Driven by an urge for organising the colonial state in a uniform manner while simultaneously securing the position of the Javanese elites, the Dutch significantly transformed local courts and laws. In return, the colonial state was itself continuously transformed by various local dynamics.

State formation is a complicated process in general. After all, the state doesn’t exist and its process of formation is never linear, as states consist of several sources, institutions, and layers of power that often contradict and compete with each other.Footnote ¹² Moreover, colonial state formation followed a unique path, being a particularly diffuse process of interacting local and colonial sources and layers of power caused by the conflicting aims of metropole and colony, of different colonial state institutions, and of colonial and local elites.Footnote ¹³ The tensions between the colonial governments in The Hague and Batavia, regional administrators, and the colonial Supreme Court and local pluralistic law courts all shaped the state in Java. Research into colonial state formation leads to questions about indirect and direct rule, brokerage, and colonial knowledge.Footnote ¹⁴

These questions are certainly relevant regarding nineteenth-century Java, where the colonial state was characterised by a system of dual rule—a policy between direct and indirect rule—in which the administration was divided into two branches.Footnote ¹⁵ The Javanese branch consisted of local Javanese elite families whose members were appointed as officials (priyayi). They governed the Javanese population, were responsible for police affairs, and executed colonial policies. The Dutch branch consisted of Dutch officials, who were temporarily appointed in the residencies. They governed the European population and directed the priyayi in their responsibilities. The priyayi were traditional local elites—the position of the regent (the highest priyayi) was made hereditary under Dutch rule—but functioned simultaneously as colonial officials who could be transferred and dismissed by the colonial government.Footnote ¹⁶

The division of labour between the Javanese priyayi and the Dutch officials, however, did not lead to two completely separated worlds, since there were, inevitably, moments of contact, encounter, and collaboration in order to establish and maintain rule.Footnote ¹⁷ In the courtroom these complexities became visible and the courts themselves were also part of the process of the formation of dual rule and the colonial state. Even though in principle, according to the ideal of dual rule and a segregated legal system, Javanese priyayi administered justice over cases in which no Europeans were involved, an exception was made for law cases considered to be important for the reinforcement of colonial rule—mainly criminal cases. These were administered by pluralistic courts—such as the landraden—presided over by a Dutch official who decided the verdict together with at least two Javanese priyayi. The complexity of the colonial state in Java—based on dual rule (priyayi and Dutch officials) and the collaboration with other local elites such as Chinese captains and Islamic penghulus—is reflected in the landraden and its legal pluralities.

A focus on the encounters between officials from different backgrounds at the pluralistic landraden and the related moments of contact and conflict offer opportunities to study the “tensions of empire” on a regional level and, moreover, provide insights into how these tensions shaped the colonial state itself.Footnote ¹⁸ Pluralities were not odd singularities of a centralising state, but a phenomenon that was part of the state processes, or in the words of legal historian Paul Halliday, “the early modern state was not simply a site of pluralities. It was made by them.”Footnote ¹⁹ At the same time, the process did move in the direction of more state control over jurisdictions, and consequently local authorities and laws were identified and written down, with alterations and codification as a result.Footnote ²⁰ The tensions between the various layers of the colonial state that were striving for uniformity, or for the maintenance of local pluralities, provide insights into colonial state practices and the complex formation processes of dual rule from below.

The First Landraden in Java

The VOC accepted and applied legal pluralities early on when administering justice over local populations in the areas they controlled in the Indian Ocean world. Although at the centre of VOC power in Batavia an official policy stated that European law and VOC-regulations would judge all inhabitants, in practice this was also a plural world. Non-European witnesses in the Schepenbank (Court of Aldermen) took an Islamic or Chinese oath, and during the early seventeenth century Chinese members were seated in the court.Footnote ²¹ Outside Batavia, the Dutch encountered various legal landscapes that had their own trajectories of development and contestations, such as jurisdictional co-existence as well as conflicts between Islamic and local judges, the penghulus and jaksas. All this was not an entirely unfamiliar encounter, however, since legal pluralities and regional differences were common in the Dutch Republic itself. In 1813, there were no less than 128 criminal law courts in the province of Holland that allowed different systems of adjudication.Footnote ²²

Outside of the directly governed VOC-areas, the Javanese legal systems formally remained the full responsibility of the local rulers, but several attempts to codify local laws occurred and some meddlesome VOC officials intervened in local law courts.Footnote ²³ The first official landraad in Java was set up in 1747 for the rural areas in the Semarang area, due to expanding VOC influence on the Northeast Coast of Java in the mid-eighteenth century. The inhabitants of the city of Semarang remained subject to Dutch laws and the Council of Justice, whereas the landraad administered justice over all Javanese who resided in the large Northeast Coast region and were not subjected to the Mataram kingdom. The landraad decided over civil and criminal cases between Javanese and Javanese exclusively.Footnote ²⁴

The Semarang landraad drew from the VOC experience in Ceylon both in the figure of Governor General Gustaaf van Imhoff (1743–50), who was a recent arrival from Ceylon, and the structure of these courts. However, the landraad of Semarang was not an exact copy, but adjusted to Javanese circumstances. At the landraad of Galle (South Ceylon), for example, the emphasis was on civil law, as in this region land law was important for the VOC.Footnote ²⁵ In Semarang, maintaining order and peace was the incentive to establish the landraad, and the emphasis was on criminal justice. Another difference was that the local chiefs of Ceylon were attached to the landraad as advisers, whereas in Java the Javanese regents voted on the verdict. The landraad of Semarang consisted of at least seven Javanese regents and was presided over by the European governor. The chief jaksa was the public prosecutor. The cases had to be decided according to the “Javanese laws” insofar as they were “acceptable” to the Dutch.Footnote ²⁶ The regulations mention nothing about a role for the penghulus in the Semarang landraad, although the Dutch asserted that the Semarang Compendium, a code compiled especially for the landraad, was drawn from Islamic law.Footnote ²⁷

The Dutch would continue collecting customary Javanese and Islamic laws during the eighteenth century to be used by the local courts as sources of law. By doing so the Dutch created static archives that were considered to be Javanese or Islamic. In Batavia, the supposedly Islamic Frijer Compendium would be compiled in 1761, whereas in the sultanate of Cirebon (West Java) local laws were collected and published as the Javanese Pepakem Cirebon in 1765.

The influence of the VOC on criminal law practice in Cirebon dated back to the early eighteenth century. A judicial-administrative council—the meeting of the sultans—dealing with criminal cases consisted of Javanese members and was presided over by the Dutch resident. The resident was entitled to make the final decision over the verdict if he received orders from Batavia to do so, or on his own initiative. Another indicator of the influence of the VOC in Cirebon was a change in the procedure for presenting evidence. According to local traditions, evidence was offered by oral expert witness accounts, historical information, and natural landmarks. Around 1740 this system of evidence in Cirebon was completely replaced by written documents that referred to a proces-verbaal and Javanese-Dutch legal texts.Footnote ²⁸ Simultaneously, however, Islamic law was increasingly influential in Cirebon, causing the religious penghulu courts to become more important than the Javanese jaksa courts.Footnote ²⁹

Thus, halfway through the eighteenth century the VOC had transformed the administration of justice in Java through the establishment of a landraad in Semarang and through interventions in the administration of justice in Cirebon. Given the major differences between Semarang and Cirebon, the courts that the VOC altered or introduced were also distinct. In Cirebon, there were four sultans. In Semarang, the seven regents of the Northeast Coast were important. However, despite regional differences, there were also important similarities between the courts of the two regions. First, they were pluralistic, with Javanese judges in the majority. Second, in both instances, justice over the Javanese population was administered according to local laws and customs, though influenced by European laws and customs. Third, in both councils the emphasis was on criminal cases, which were deemed to be of the highest importance for colonial rule in Java. Fourth, there was no separation of powers and the courts were subject to political influence. Finally, in Java there was a slow but steady increase in the number of colonial courts.

A Persistence of Pluralities

Political instability, the arrival of the VOC, the growth of Islam, and local circumstances all altered the Javanese legal systems in different ways during the eighteenth century. This dynamic process was still ongoing when the VOC collapsed in 1799. The Dutch government adopted the VOC possessions in the Indonesian archipelago and—with a short but important British interlude from 1811 until 1816—transformed them into a colonial state during the nineteenth century. This process of colonial state formation involved the introduction of an extensive uniform colonial legal system in Java. Yet the continuities with the VOC period are notable.

In 1803 a transitional commission presented the Asian Charter that laid out the foundations of the “new” colonial state. The Charter’s advice on the legal system regarding the local population was threefold. It urged an increase in the number of law courts; it recommended that the local population be judged according to their own laws and customs; and it called for the removal of political influence from the legal system.Footnote ³⁰ The Charter was never implemented in practice, but Governor General Herman Willem Daendels (1806–1810) would use it as an inspiration for his reforms.

Daendels’s rule has been designated as a “turning point”Footnote ³¹ for his administrative centralisation reforms, but with regard to the law courts it is important to note that he decided to maintain the regional diversities inherited from the VOC period. Each landraad retained its own characteristics. The landraad of Semarang was in the early nineteenth century still active in the same setting as during the eighteenth century. Smaller courts were established at the northeast coast area of Java to administer justice over smaller cases. The landraad in Cirebon seems to have been a continuation of the judicial-administrative council presided over by the resident, although Islamic legislation and advisers were incorporated into the court.Footnote ³² New landraden were established in Surabaya and Banten, each also adjusted to local circumstances. In the landraad of Banten, for example, which had been brought under Dutch rule in 1808, the Javanese members were the rijksbestierder (local “prime minister”) and two kliwongs (districts chiefs). The penghulu offered advice.Footnote ³³ Whereas the landraad in Banten judged solely in criminal cases, the landraad of Cirebon also administered justice in civil cases.Footnote ³⁴

From 1811 to 1816, the British controlled Java. Governor General Thomas Stamford Raffles attempted to further curb the power of the Javanese elites. He attacked the palace of the sultan of Yogyakarta; the sultan of Banten was forced to cede land; and the sultans of Cirebon surrendered their remaining independence.Footnote ³⁵ Regarding the legal system, whereas Daendels had adjusted the pluralistic law courts according to regional differences, Raffles imposed a significantly more uniform court system by introducing identical landraden, where the Javanese members were demoted to the role of assessors in an advisory role and the colonial resident became the single judge.Footnote ³⁶ Whereas Daendels had merely appointed the Islamic penghulus as legal advisers, Raffles decided to ask both the penghulus and the jaksas for their advice in landraad cases. Another important reform was the introduction of circuit courts for capital crimes, since these travelling courts were presided over by trained lawyers instead of an administrative official.Footnote ³⁷ In this court, the British jury system was introduced and the jurors of the circuit court were at least five men who “ought to be as near on an equality, as to rank in life, with the prisoner, as possible.”Footnote ³⁸ Although the introduction of circuit courts caused the legal system to become more independent in capital cases, regarding the landraden there was no abandoning of the Dutch policy of acknowledging Javanese rulers and chiefs and maintaining local customs.Footnote ³⁹ Despite Raffles’ vigorous attempts to introduce a uniform legal system in Java, he did not let go of the pluralistic character of the colonial courts, although the Javanese court members became advisers in the landraad rather than judges.

This last reform was reversed when Java was regained by the Dutch, who were quick to rehabilitate the Javanese priyayi as court members entitled to vote in the landraad.Footnote ⁴⁰ Javanese priyayi were also installed as court members in the circuit courts, and the jury system—unfamiliar to Dutch legal culture—was abolished. The Dutch maintained the double advisory role of the penghulu and jaksa. The increase of pluralistic courts also continued and in 1824 the landraden were even introduced in urban Java (Batavia, Semarang, and Surabaya).Footnote ⁴¹ This also marked the completion of the segregated legal system, because now all non-Europeans went to different law courts than the European population.Footnote ⁴² In 1846, Chinese captains were added to the landraden and circuit courts as advisers in cases in which a Chinese was involved.Footnote ⁴³

In the first half of the nineteenth century, the number of landraden in Java rapidly increased from two in 1800 to sixty-two in 1848.Footnote ⁴⁴ In that year, it was decided that landraden would also be established outside of the capital towns of the residencies wherever necessary, and by 1874 there were eighty-nine landraden in Java.Footnote ⁴⁵ The frequency of court sessions also intensified. Whereas during the eighteenth century the landraad of Semarang only gathered once a year, in 1838 Pfyffer zu Neueck mentions in his travel account that landraad sessions in Java were held “almost every month.”Footnote ⁴⁶ The landraad of the crowded Batavian suburb of Meester Cornelis shows an even higher frequency; in 1834 court sessions were held each Wednesday.Footnote ⁴⁷ From 1848, all landraden were obliged to hold sessions at least once a week and besides that as often as possible.Footnote ⁴⁸ In the early twentieth century, many landraden held sessions on a daily basis, and due to the introduction of landraad vice-presidents, two sessions could be held simultaneously.Footnote ⁴⁹

During the first decades of the nineteenth century, Daendels and Raffles laid the basis for an extended network of landraden organised according to a similar design. Yet there was no clean break with the eighteenth-century practices of criminal justice, since basic principles of the landraad remained the same: justice was applied by a majority of Javanese judges in the pluralistic law courts, the Javanese population was theoretically still tried according to their ‘own’ laws and customs, and the emphasis remained on criminal law. There was also still no separation of powersFootnote ⁵⁰ and, finally, the increase in the number of landraden continued, although taking place at a much higher pace. Altogether, the eighteenth-century landraden in Cirebon and Semarang were a direct prelude to, first, the segregated dual legal system as it expanded during the early nineteenth century and, secondly, to the existence of pluralistic courts within the “native branch” of this segregated system.

Pluralities in Practice, 1819–48

Since the landraden were firmly rooted institutions in Java, studying their pluralistic practices offers insights both into dynamics at the local level and into the interactions between the various layers of the colonial state. Procedural documents of landraad cases easily debunk the stereotypical Dutch depictions of local officials and bring to the fore their importance, but also show their marginalisation, their struggles, and their agendas. The penghulus, for example, were often portrayed by Dutch officials as always recommending cruel punishments. Islamic law was depicted as particularly cruel, and this was used as an excuse to ignore the penghulus’ advice. Procedural documents show, however, that it was certainly not always the case.Footnote ⁵¹ On 16 January 1826, for example, there was a difference of opinion between the penghulu and the jaksa of the landraad in the West Quarters of the environs of Batavia (Tangerang). The penghulu recommended a (relatively mild) punishment of no more than thirty rattan strokes for the farmer Oetan Bappa Leha, who had stolen food to feed his family, who had not eaten for five days. The jaksa pleaded for three years of chain labour. Due to a positive statement by a local overseer, Oetan Bappa Leha was sentenced by the three local court members and the Dutch president to a punishment milder than the jaksa’s recommendation, although the verdict was still harsh: thirty rattan strokes, to be executed at the bazar of Tangerang, and chain labour for one year. He also had to return the stolen rice.Footnote ⁵²

The abovementioned case, and the criminal case described at the start of this article, show that different actors were involved in the process of coming to a verdict, and also that the legal advice provided by the penghulu might be contested, yet still was sought. Sources from the early nineteenth century expose how local dynamics were further complicated by jurisdictional and political conflicts among layers of the colonial state. The application of local laws, although formally required, came under pressure because of legal supervision by the Supreme Court in Batavia. The official policy of separated jurisdictions for Europeans and non-Europeans was derived from the belief that it was best to administer justice over the Javanese population according to their “own” laws and customs. This requirement would be secured in Article 121 of the Regulations of 1819, and in Article 75 of the Regeringsreglement (colonial constitution) in 1854.Footnote ⁵³ There was a tension, however, between the use of local laws in the courtrooms of the pluralistic court and a “longing for certainty” on the other hand, on the part of the Supreme Court.Footnote ⁵⁴

Although based in Batavia, the Supreme Court’s activities impacted the practices of the regional courts because each criminal verdict was sent to the Supreme Court for review, a policy dating back to VOC times, when all verdicts of the landraad of Semarang were sent to the Supreme Court for confirmation.Footnote ⁵⁵ The Supreme Court held the power to reduce the imposed punishment or even vacate the judgment.Footnote ⁵⁶ The Supreme Court also circulated guidelines to the lower courts on creating uniformity in the application of criminal law for the local population. They sent their disgruntled remarks on sloppy verdicts to the residents in an effort to achieve more uniformity in the legal system and leave less room for regional diversity.

We must be careful, however, not to see all Supreme Court members as of one mind. In particular, the prominent jurist Pieter Merkus spoke against too much uniformity. He was convinced of the advantages for the Javanese population of a justice system that applied local laws. This was one of the reasons he had pleaded for the introduction of pluralistic courts in the cities. During discussions on this topic he provided the example of buffalo theft, which was to be punished with flogging, branding, and four years on a chain gang labour to colonial regulations. Javanese laws, however, prescribed that if an owner had left his buffalo unsupervised and let them walk around freely in the meadow, buffalo theft would be punished with a mild fine.Footnote ⁵⁷ Other judges of the Supreme Court were not convinced by this argument. For them the lack of uniformity among landraad verdicts was a major source of concern and they thought it “incomprehensible” that Merkus was not concerned about these regional differences. They gave the example of burglary: one landraad decided on fifty rattan strokes and six months on the chain gang for this crime, whereas another imposed three years of forced labour in similar cases. The Supreme Court also denounced the Regulations of 1819 for leaving too little space to overrule local laws. According to the Supreme Court, this led to “ridiculous verdicts.”Footnote ⁵⁸

The Supreme Court has been praised by Dutch legal historians for attempting to moderate the extremely harsh verdicts given to Javanese convicts.Footnote ⁵⁹ However, it is to be doubted whether this was the incentive of the review system, which rather seems to have been an attempt to maintain some control over the regional colonial administrators. The Supreme Court members were not necessarily against the segregated legal system itself, with its simpler procedures and harsher punishments for the Javanese population, but they were often formalists striving towards uniform practices by the landraden and therefore not in favour of the pluralistic character of the courts. A remarkable aspect of this effort from the perspective of the pluralistic courts was the complete disregard of local Javanese laws and customs, which differed among different Javanese regions. By urging for uniformity throughout Java and beyond, the Supreme Court in Batavia actively disregarded the formal colonial policy of applying local laws to the local population.

At the same time, inside the regional courtrooms of the landraden, other dynamics also led to a limited knowledge of local laws and customs on the part of the Dutch residents. References to local laws in court case files seldom go any further than vague descriptions such as “according to the Islamic laws” or “according to the native laws.” From the preserved procedural documents, it seems that local advisers advised the Javanese members of court, after which the voting started. Therefore, the Dutch resident probably only communicated with the Javanese court members—the priyayi—about the verdict and not with the advisers directly. The Dutch relied on Javanese intermediaries such as the penghulu, but mainly on the Javanese court members who held the right to vote on the verdict. This might have taken away the necessity for the Dutch to obtain in-depth knowledge on local legal traditions themselves.

Anchoring Colonial Rule

Despite the Supreme Court’s longing for uniformity, and the limited understanding of local legal traditions on the part of Dutch officials and lawyers in general, the pluralistic character of the landraden proved persistent. Until the end of the colonial era the pluralistic colonial courts continued to operate, the Javanese members retained their right to vote on the verdict, and the penghulu continued to provide advice on “native and religious” laws and customs.

This persistence of pluralities at the landraden is exemplary for the policy of dual rule in which Dutch administrators and Javanese priyayi were both responsible for keeping the “peace and order” in the residencies of Java. The landraden could simply not function without the Javanese court members, prosecutor, and religious, Javanese, and Chinese advisers; suspects were only caught with help from the spies of the local priyayi. If the regional elites were not given any influence in the landraad, the court could not function properly. The courtrooms of the landraad were the only place all regional elites met and actively worked together; where they represented and confirmed their power, and possibly even actively influenced their agendas. Historian James Rush, who wrote about the Chinese and opium smuggling, accurately describes the landraad as a site designed for “channeling influences.” The interests of the regional elite—in his case the interests of the Chinese Captain in the opium trade and, sometimes, in the smuggling itself—were at least partially represented, because of the Captain’s position as an adviser in court.Footnote ⁶⁰

The pluralistic law courts continued to exist, although simultaneously there was an increasing use of criminal codes based on Dutch colonial laws. Similarly, in often overlapping processes, the dual-rule system of Javanese priyayi and Dutch officials continued to exist while a more centralised colonial state was formed. The Dutch were committed to their official policy of dual rule, and thus relied on the local elites and advisers in administering justice, while simultaneously increasing their direct economic and political influence in Java in the course of the nineteenth century. A firm grip on the Javanese population was in particular seen as necessary after the introduction of the cultivation system in 1830, an economic system that relied on the control of the priyayi over the regions.Footnote ⁶¹

Legal pluralities were indirectly used by the colonial power to establish their rule and a way of pragmatically using the existing legal systems for the colonial agenda. The early modern history of Europe also shows that regional legal systems were tolerated by centralising powers in order to gain acceptance from the regional and local notables for unification processes. Moreover, legal pluralism was not rejected ideologically either. Therefore, as argued by Philip Stern and Richard Ross, legal pluralism “was not simply about the tension between forward-looking centralising theorists and resistant, pluralistic conditions ‘on the ground.’”Footnote ⁶² A similar process took place in the landraden of Java during the nineteenth century, where pluralities were promoted by colonial administrators and where the regulations explicitly mentioned that the local population would be tried according to their own laws and customs. Over the course of the nineteenth century, the pluralistic landraden would be under discussion every now and then, but until the end of the colonial era, pluralistic colonial courts continued to operate. The jaksa lost his position as an adviser, but still acted as a public prosecutor, and the penghulu continued to provide advice. The Javanese members retained their right to vote on the verdict.

The landraad sessions were visible gatherings, held in white court buildings in the cities or—as happened often in the countryside—outside near the regent’s residence or near the site where the crime had been committed. Then, a procession approached on muddy roads, its members on foot or horseback. Former landraad judge C. W. Wormser recalled such an event in his memoirs:

When the party arrived, a courtroom was improvised with the use of a folding screen and a green tablecloth. “We held sessions in an open pondok, constructed beforehand of bamboo, … or in the open meeting room of the village, or in the porch of the village chief, or in the courtyard of the house where the crime was committed.”Footnote ⁶⁴ Regardless of the exact location of the court session, by spreading a “faded green cloth” on a table, a courtroom was created at once.Footnote ⁶⁵ Improvised or not, with their green table cloths, court members, advisers, and officials, the pluralistic courts made colonial rule visible in all corners of Java.