There is a particular kind of frustration well-known to historians. Sometimes, while reading a primary source or working one’s way through an archival collection, folder by folder, box by box, the story coheres. The characters of the past acquire a tangible presence in the mind and on the page, and connections and patterns sharpen into clarity, as details and analysis come together. Suddenly, the trail goes cold. The drama ends before its conclusion. A central actor disappears, never to be located in another source again. The archive does not yield even another speck of information, and a domestic, commercial, criminal, or political event remains unresolved. Worse, sometimes a yawning gap characterizes the archive itself, and a whole series of events and encounters that had been documented before or after this gap are simply missing from the archival sequence. These missing sources and gaps in the archive shape our work just as much as the sources we do cite. For historians, minding the gap means stepping into it.
Consider the case of a young man named Peroumal, who in 1730 was accused of theft and brought before a French-run court called the Chaudrie, a legal forum in which French officials settled disputes among local actors using local legal customs. Peroumal was only fifteen years old at the time, the son of small-scale rice farmers from the Vellala caste. He had moved in European circles from an early age, first delivering rice to French households and then as a domestic servant for French traders. His employer, the French East Indies Company trader M. de La Farelle, had accused him of stealing. Unaccountably, one Séchassalachetty Soucourama, an Indian merchant, used his credit and reputation to vouch for Peroumal’s mother while she gathered the money to pay back the stolen sum.Footnote 1 He also persuaded de La Farelle to withdraw the complaint and release Peroumal from the prison of the Chaudrie. We only know about this event because it is briefly mentioned in the documents generated in 1733, when Peroumal again faced charges of stealing from his employer, another French trader named Nicolas Le Facheur, this time before the Superior Council, the highest court of the French colony of Pondichéry on the Coromandel Coast of India. No records of the Chaudrie from 1730 exist.Footnote 2 Indeed, for most of the eighteenth century there are no extant sources produced by the Chaudrie court.
The 1733 accusation produced a lengthy investigation and a case dossier comprised of nineteen separate items—multiple interrogations, witness testimonies, deliberations, and meetings, covering 151 manuscript folios.Footnote 3 However, another powerful man intervened on Peroumal’s behalf: the Superior Council received a request from no lesser personage than “Imam Sahib, chief minister to the Nawab of Arcot,” asking for Peroumal’s release in the name of the Muslim ruler.Footnote 4 The Council agreed, showing how clearly the political and commercial calculus trumped the judicial and legal authority claimed by the French Council.Footnote 5 Nonetheless, here the historian falls into the gap again, as the archive provides no information on the context or logic of this decision or Peroumal’s ultimate fate. The archive sheds no light on why a young servant had the Nawab of Arcot’s very considerable clout at his disposal.
Peroumal’s case points just as clearly to what we do not know as to what is knowable. We do not know what forms of clientship this alleged petty thief had with his powerful patrons, nor how or even if his employers received compensation for their alleged losses, although the reference to allowing Peroumal’s mother opportunity to raise funds three years later suggests the first accuser may have received them.
This essay considers the phenomenon of the historical gap and its theoretical and methodological implications for legal history by examining the Chaudrie court and the gaps in its documentation in the eighteenth century and beyond. I examine the Chaudrie’s archive, or more precisely its non-existent archive, over a period of roughly sixty years leading up to the 1760s. The Chaudrie was a forum managed by French officials of the Compagnie des Indes orientales, aimed at resolving conflict between local litigants, using local legal methods. In the Chaudrie, French traders who served as judges were meant to mete out justice “according to the ways and customs of the country.”Footnote 6 The Chaudrie was under French control from the very beginning of the eighteenth century until judicial restructuring shuttered it in 1827.Footnote 7 However, in the first decades of the eighteenth century, French colonial officials used the Chaudrie in an effort to become part of local legal fora, rather than the other way around. While the court did stake a claim to the right to inflict violence on those who came before it, this right emanated not from the French Crown, as we might expect, but from judges’ ability to “nest” the workings of the court within existing modes of resolving disputes in the Tamil region. It is this approach to the law enacted in the Chaudrie in the first half of the eighteenth century which also explains the archival gap in its sources and history.
The fact that the Chaudrie’s records of cases heard and decisions rendered begin only in 1766, after its existence under French rule for at least six decades, poses a challenge for historians. The National Archives of India, Puducherry Record Centre holds most of the extant records, which begin with a case in which a widow of a Brahmin man sued for financial support on 31 October 1766. Jean-Claude Bonnan has assembled a vital collection containing roughly 10 percent of the cases beginning in 1766, and historians have begun to plumb this late eighteenth-century documentation.Footnote 8 However, the question of “the archive” of the Chaudrie is more complicated for the earlier period.
By considering the Chaudrie court’s records, and especially the lack of a formalized archive for the first six decades in which it was under French authority, this study integrates problems that are specific to the study of legal history—questions pertaining to jurisdiction, codification, evidence, and sovereignty—with issues all historians face regarding power and the making of archives. It juxtaposes an account of the specific archival conditions of the Chaudrie and their relation to the broader context of colonial power with an examination of the legal arena of the Chaudrie and its methods of decoupling jurisdiction from sovereignty. As I will show, the Chaudrie’s early history makes visible a relationship between law and its archive that is paralleled by approaches to colonial governance in the early modern French Empire.
I argue that the Chaudrie did not generate a state-managed and preserved archive of court records for itself until the 1760s because up to this period the court was an instrument of the state that attempted to deploy jurisdiction, but not in order to claim sovereignty. Much of the scholarship on colonial legal regimes has focused on the law as a tool of sovereignty, but law had other functions in both the Chaudrie and Pondichéry’s better-documented court, the Superior Council.Footnote 9 The Chaudrie’s history reveals that an understanding of the law that largely severs it from sovereignty also severs the relationship between law and its attendant documentary bureaucracy. For law was also a service and a resource, which French newcomers used in a field dense with competing political and commercial interests, to draw a diverse group of agents and practices into its sphere of influence. From its inception to the 1760s the Chaudrie relied strictly on local modes of resolving disputes, particularly mediation by brokers and caste chiefs and collective arbitration. Across the French Empire homogenization remained little more than an aspirational agenda for much of the eighteenth century, due to the distribution of power at the local level, which vested much local authority in the hands of non-French actors. Jurisdictional similarity—such as the existence of Superior Councils in the metropole, the Atlantic, and the Indian Ocean colonies—did not mean judicial uniformity, because of the reliance on local legal cultures, a fact which the Chaudrie reveals with particular clarity.Footnote 10 The archive of the Chaudrie came into being as France instituted legal reforms around the empire to create greater legal and bureaucratic conformity. The lack of a documentary record for the Chaudrie before the 1760s is therefore less a limitation than an opportunity to understand its difference from other imperial legal institutions, most importantly the Conseils Supérieurs, which existed in Pondichéry and across the early modern French Empire. As Marie Houllemare has shown in important recent work, judicial archives offer insight into the development of French empire, and so does their absence.Footnote 11
The lack of documentation for the Chaudrie’s first six decades under French control appears like a puzzle or a mystery if we assume that sovereignty, or at least claims for sovereignty, precede and underlie the creation of legal jurisdiction. But as Shaun McVeigh and Sundhya Pahuja have recently suggested, it is a mistake to assume the sovereign a priori. The claim to pass judgement and settle disputes (jurisdiction) does not emerge from an underlying claim to authority (sovereignty); rather, the causality is often reversed, as it was in the legal arena in Pondichéry in the first half of the eighteenth century. Jurisdiction preceded sovereignty as what they call “a mode of authorization,” in effect creating the sovereign as a product of jurisdiction, rather than the other way around.Footnote 12 Ilana Feldman has argued that the decision to make limited and restricted claims about governmental authority could be a tactical one, a response to on-the-ground limits to state legitimacy, a situation mirrored in colonial Pondichéry.Footnote 13 State-directed archive creation after the 1760s went hand in hand with the claim for sovereignty; but once we see that sovereignty might depend on jurisdiction, as in the earlier example of the Chaudrie, the missing archive becomes an explanation, rather than a problem.
French courts ceded their authority to determine Peroumal’s fate on two different occasions, reflecting a French legal regime in which the authority of local actors could exceed the authority of French judges. This form of jurisdictional capaciousness was of a piece with the limits of French control over their colonial project in India. Likewise, a formal, bureaucratized archive did not emerge until the state made an explicit claim to sovereign oversight and control. The unknowable portions of Peroumal’s story and the gaps in the archive reflect the broader judicial contexts in which his actions were judged. They serve as metonyms for the shifting nature of relationships between record keeping and governance, between event and record, between case and law, and between jurisdiction and sovereignty.
A Typology of Historical Gaps
How are historians to write an institutional account of an institution, like the Chaudrie, whose archive is characterized by missing, non-existent, or disrupted archives? Over the past two decades or so, historians and other scholars have increasingly examined the limits, boundaries, and parameters that shape archives, and in turn shape the knowledge which historians try to wrest from these archives, particularly state-produced documentary archives.Footnote 14 More recent work, especially on enslaved people and specifically women, by Marisa Fuentes, Saidiya Hartman, Sowande' Mustakeem, Sue Peabody, Jessica Marie Johnson, Sophie White, and others has demonstrated that explicitly accounting for the ways archives have bound those represented in them, and limit the stories that can be told using them, can lead to methodological and theoretical innovations and new frameworks for rethinking longstanding debates about agency, power, and the practice of doing history.Footnote 15 This body of work could be described as instituting a knowledge crisis of sorts—a very productive crisis, which has encouraged historians to reconsider their approaches to the collected documents that are the bedrock of our practice, and how those documents are constituted as “sources,” “evidence,” and “archives.”Footnote 16
This article identifies and addresses three kinds of historical gaps: the physical, the historiographic, and the epistemological. The Chaudrie’s non-existent records from its inception to 1766 represent a physical gap. While these records likely never existed, materials that once existed but have disappeared or been destroyed also represent a physical gap. As well as historical actors, archivists who organized and preserved (or did not preserve) the materials may create such a gap.
The second kind of gap, and the one usually given the most attention, is a gap in the scholarship, a historiographic gap. Such gaps exist when the archive contains materials that have been disregarded, usually because they were considered unimportant. Whole fields of scholarship—the histories of indigenous people, the history of women, and in the context of French history until the 1990s, the history of empire and colonialism—have been victim to this kind of historiographic gap. It is a product of neglect; for example, the history of women was long neglected until the flourishing of the field beginning in the 1960s and 1970s.Footnote 17
The third kind of gap, the epistemological, is what the historian and anthropologist Michel-Rolph Trouillot, in his work on Haitian history and its unthinkability, has clarified so influentially: certain kinds of histories disrupt commonly held narratives so profoundly, in a manner so unsettling, that it becomes very difficult to see that a gap even exists.Footnote 18 Unlike the neglect that produces the historiographical gap, the epistemological gap stems from unknowability. Trouillot has described the revolt by enslaved people in St. Domingue at the end of the eighteenth century as being a “history of the impossible.” The unthinkable is “that which one cannot conceive within the range of possible alternatives, that which perverts all answers, because it defies the terms under which the questions were phrased.”Footnote 19 For example, the history of people of non-binary gender was, for too long, unknowable in the historical scholarship; it was fundamentally invisible to most historians, as the majority was unaware of the category of non-binary identities. Only new structures of thought about gender identity have made clear the fact that such a gap even exists. Epistemological archival gaps might manifest both in how historians utilize available materials and whether documents are even available at all.
Even with historiographic and epistemological gaps, recognition that a gap of any kind exists does not immediately translate to its closing or disappearance. The openness of the gap is precisely what makes it so generative, as historians try to chart its creation, limits, and constitution. As the flourishing of scholarship about colonial Haiti and the Haitian revolution over the past decade demonstrates, the recognition of the gap that once existed can be profoundly productive.Footnote 20
All three kinds of gaps—the physical, the historiographic, and the epistemological—are inevitably linked and can constitute one another and the archives in which they appear in various configurations. And all three kinds of gaps are created by human actors, even if natural occurrences or disasters play a role in shaping them.Footnote 21 The history of French India in the eighteenth century is replete with all three kinds of historical gaps. To begin with the physical gaps, these entered the archive even as it was created: throughout the eighteenth century, colonial administrators in Pondichéry regularly claimed that orders from the metropole took too long to arrive in India for them to comply. The recurring complaint by colonial officials about missing information is a reminder that archival gaps are experienced (or in this case, strategically deployed) by contemporaneous historical actors.
Natural and man-made physical gaps proliferated in the archive of French colonialism in India, and especially the bureaucratic archive created by employees of the Compagnie des Indes, in the nineteenth and twentieth centuries. Clerks copied huge swaths of documents and the originals of many archival series disappeared. In 1916 a typhoon that struck Pondichéry ruined many documents held in the city archives.Footnote 22 At mid-twentieth century, following Indian independence, most of the materials from Pondichéry’s archives were moved to Paris. However, most of the extant original records of the Chaudrie court as well as some others remained in what today is the Puducherry Record Centre of the National Archives of India. This created a permanent split in an archive that had been conceived very differently.Footnote 23 In the 1990s the archive of French India was removed from the Archives nationales in Paris to what are now the Archives nationales d’outre-mer (ANOM) in Aix-en-Provence, as part of a national reckoning with the history of French Empire, when the archives of all French colonies were collected under one roof. The process of physical gap-making continues apace to this day: a few years ago, the archivists at ANOM made the decision to withdraw from open circulation the reports sent by colonial administrators in India from 1649 to 1835 due to their state of preservation.Footnote 24
The historiographical gap into which the history of French India falls is an issue which is central for any scholar working on this neglected history. The marginalization of French India in the literatures of both France and South Asia is largely relative to other imperial formations.Footnote 25 This history has the potential to illuminate global processes of commercial, political, and legal transformations in the French Empire.Footnote 26 Yet much of its significance remains unknown because, in contrast to the political and cultural behemoth of the British Raj on the one hand, and the violence and trauma of independence movements in the twentieth century, most notably in Algeria, the tiny, “failed” colonies of French India are considered unimportant.
Finally, the epistemological gap manifests itself in an inability to even consider the French project in South Asia as a colonial one, relegating it to “mere” merchant capitalism, and effectively erasing it from the colonial history of France and South Asia. The epistemic challenge French India poses emerges from the fact that this was a colonial and colonizing effort that did not initially pose hegemony as its aim, thereby complicating commonly held conceptions about the forms and aims of imperial and colonial projects.
While the history of French India may have a particularly large number of gaps of all three types, a whole or complete archive cannot ever exist. An archive without gaps would be the equivalent of Borges’s map of the empire the size of the entire empire: a delusion of exactitude and absolute representation which only calls attention to the limits of knowledge.Footnote 27 Leslie Harris has noted that the idea of archival silences acts to implicitly posit the existence of a “perfect archive.”Footnote 28 All archives, even those that appear especially cohesive and complete, such as court records, must be examined in light of the gaps they contain, obscure, or create.
The history of the Chaudrie can similarly be examined in light of the gaps it contains, and how these gaps structure what we know and do not know about the Chaudrie. The physical gap might appear, at first glance, to be the most straightforward one. We know little about the early iterations of this court because records prior to 1766 have not survived, perhaps due to the fact they were kept on palm leaves, perhaps because litigants brought necessary documents in and out of the court as needed to pursue their cases, or perhaps because cases in the Chaudrie were not documented at all.Footnote 29 Yet there is nothing straightforward about this gap: political, ideological, and bureaucratic beliefs about the value of the court’s work and the importance of the litigants and their conflicts informed decisions to either refrain from keeping records or not to safeguard and preserve them. Decision may also have been made in accordance with local scribal custom, or to fulfill a desire of litigants to keep their own records rather than surrender them to a French official. The result in any case precludes a full account of the Chaudrie’s early years.
The historiographic gap is also on full display in regards the Chaudrie, about which very little has been published.Footnote 30 This is clearly linked to the physical gap of the non-existent sources, as well as to the material fact that most of the extant Chaudrie sources, held in the archive in Puducherry, are on darkened paper, rendering them less legible. Likewise, while the history of French India has been marginalized, the Chaudrie has been marginalized within what scholarship exists on the subject relative to the Superior Council. And the kind of institution the Chaudrie was, with its combination of French merchant councilors reliant on local custom, a forum which took on the shape of local institutions but was integrated into the world of the Sovereign Councils, does not fit neatly within the two central narratives of colonial legal history: either the transition toward abstract rule of law and European hegemony, or the narrative of legal pluralism, which allows litigants choice among discernible, separate legal units.
As for the epistemological gap—the unthinkability of an event, institution, or an archive—here we have to return once again to the physical gap, the missing sources from at least the late seventeenth century to 1766. The French East Indies Company was a very document-producing kind of operation, yet it did not produce an archive for what may well have been thousands of cases, perhaps conceiving of them as not deserving of an archive. A history of the workings of the court during this period must battle against the reality that the court was not deemed worthy of documenting in the eighteenth century, and as a result, remains difficult to understand in the twenty-first century as well. What the Chaudrie clearly demonstrates is that physical, historiographic, and epistemological gaps continually constitute each other.
Fragmented and Missing Legal Archives
For scholars of colonial and imperial projects, bureaucratic archives directed by the state have long been a central concern. Historians and anthropologists alike have called for an examination of bureaucratic records in all their materiality, not merely as receptacles of information to be extracted.Footnote 31 This literature has demonstrated the importance of reckoning with the fact that documents are not neutral transmitters of information, but artifacts that require their readers to interrogate the circumstances of their production, the form of their representation and mediation of the world from which they emerge, and the politics and tactics of their use.Footnote 32
Somewhat counterintuitively, I argue that the insights brought to bear on the study of documents as artifacts of the cultural and political contexts of their creation also apply to documents that are lost or never existed.Footnote 33 That is, the absence of documents is just as constitutive of institutions as extant practices and materials. If writing is implicated in relations of domination, as Brinkley Messick has argued, then so is the lack of writing.Footnote 34 While documents “are constitutive of bureaucratic rules, ideologies, knowledge, practices, subjectivities, objects, outcomes, and even the organizations themselves,” the same is true for documents that a bureaucratic institution failed to create or allowed to be lost.Footnote 35 Much like representations of things are material, representations of non-things are material as well. In other words, the representation of documentary gaps in the archive has its own material, political, and social history.
The relationship between bureaucratic documents and the development of both state power and systems of law has been of interest to social theorists dating back to Max Weber. Nevertheless, as Renisa Mawani has noted in a lucid account of the archival turn and its import for legal scholars, legal studies is yet to center this archival reckoning.Footnote 36 But recent transformations in this field have been driven by the examination of legal history through the insights of the archival turn and the epistemological questions concerning archival gaps.Footnote 37 Given bureaucratic documents’ ability to bolster claims of state sovereignty, the lack of such documents can reveal instances where this sovereignty is tenuous or contested.Footnote 38 The anthropologist Veena Das has posited that states foster a “paradox of illegibility,” one characterized by the fact that “it is in the realm of illegibility, infelicity, and excuses that one sees how the state is reincarnated in new forms.”Footnote 39 In Das’s account, such reincarnation of the state, its claims to sovereignty, and its laws, takes place in written forms, in documents of the state.Footnote 40 But the paradox of illegibility holds just as true for nonexistent documents, sources that reveal the shape of the state or an institution by virtue of their very absence. Whether the signs and representation of state authority exist or not, it is the instability and slippery nature of signs and representation that enable “the possibilities of a gap between a rule and its performance.”Footnote 41
More broadly, the function of law in colonial contexts, and the general relationship between law and colonialism, has much occupied scholars since the 1990s. This scholarship has placed three questions at its center: first, the ability of colonized subjects to act as litigants; second, the prevalence of legal arrangements characterized by “legal pluralism”; and third, the distinction between law and custom in colonial courts and in imperial ideology. A history of the Chaudrie and its missing archive contributes to all three debates by considering how colonial legal systems could claim jurisdiction in a manner decoupled from sovereignty, and by critically examining the archive of law and law’s reliance on documentary archives.Footnote 42
A growing body of work on indigenous claims-making in colonial courts has insightfully revealed how colonized litigants used colonial law to their advantage, and have done so from the very inception of colonial legal systems.Footnote 43 Examples include showing how enslaved people in St. Domingue drew on the Code noir to bolster their claims of subjecthood vis-à-vis the French Crown, as Malick Ghachem has done; or in revealing how illiterate litigants produced a law-centric culture in the Iberian Empire, as in Bianca Premo’s recent work.Footnote 44 The Chaudrie’s history is especially intriguing in relation to this body of work, given its institutional imperative to provide a forum and justice not only to local litigants, but according to “the custom of the country.”
As for legal pluralism, legal hybridity, “legal polyjuralism,” and legal diversity—these have all been productive analytic frameworks for considering the coming together of different systems of resolving disputes, particularly in the colonial context.Footnote 45 In the context of Indian Ocean scholarship, Islamic and British legal regimes have recently drawn attention, and scholars have collectively demonstrated that law across the region was plural and mobile.Footnote 46 As a result, colonial legal historians have increasingly recognized the need to consider what Nandini Chatterjee and Lakshmi Subramanian have termed “alternative, non-dominant legal visions and the sources of their reasoning” in imperial contexts.Footnote 47
In South Asia more specifically, scholars have acknowledged the extent to which a tapestry of jurisdictions and legal practices was very much the norm.Footnote 48 Important work on law and the state in colonial India has unearthed the strongly political nature of judicial practices and institutions in the context of the British Raj, in which reliance on supposedly traditional moral claims furthered the commercial and political hold of the British on Indian agrarian society.Footnote 49 Other scholars have objected to the presentation of the judiciary as an external force imposed on locals by the colonial state and its agenda.Footnote 50 Sumit Guha has noted that legal diversity relied on a willingness on the part of officials to turn a blind eye of sorts to persistent local structures.Footnote 51 Yet the case of the Chaudrie is most emphatically not one of “tacit non-interference,” but a much more active and deliberate integration of local fora of dispute resolution into the formal judicial structure and vice versa.
In Pondichéry, with the capital-hungry French East Indies Company continually struggling to maintain its tenuous hold on the colony, judicial efforts were largely aimed at maintaining the status quo, not at creating new hierarchies. Neils Brimnes notes that while judicial uniformity increased in the nineteenth century in French India, in the eighteenth century both colonial authority in general and its legal and judicial applications were much more ambiguous and multivalent.Footnote 52 As Lauren Benton and Richard J. Ross suggest, the “ism” of legal pluralism denaturalizes what was a widely accepted and unremarkable legal plurality of the early modern colonial world, and the distinction between state law and custom elides the extent to which state law was itself plural.Footnote 53 In fact, the “problem” of legal pluralism, which has tended to pit jurists and legal scholars against humanists and social scientists in a debate about where law is located and what counts as law, seems like yet another iteration of the debate about law versus custom, in that the division posited by scholars seems to be not much of a problem at all in various historical contexts.Footnote 54
Colonizing actors (and their histories) tended to create a split between the formalized law of empire and “customary” law of their indigenous subjects. In the case of French India in the eighteenth century, the separation between the Chaudrie and the Superior Court bolstered this analytical distinction between “law” and “custom.”Footnote 55 The Pondichéry Sovereign Council and the Chaudrie would appear, at first glance, to fall along the lines that divide formalized law from custom, and the materials they drew on—imported French legal codes (the Criminal Ordinance of 1670 and the Coutume de Paris in the Superior Council) and various modes of resolving disputes in the Tamil region (such as reliance on opinions by caste chiefs and village councils in the Chaudrie) would seem to make the distinction between “Parisian code” and “local custom” a meaningful one. Yet legal historians have long called into question the distinction between law and custom, in a body of work which owes much to Clifford Geertz. And of course, as Geertz would remind us, the distinction between law and custom (or between rule and case) is itself a product of cultural meaning-making. Footnote 56 Everything we know about these two legal institutions suggests that the Chaudrie was a colonial, global, and in many ways a metropolitan institution given its staffing by French traders as judges and a diverse group of litigants, as was the Superior Council decidedly a part of the local landscape, with local power brokers providing arbitration and mediation for cases heard by the Council.
The Workings of the Pondichéry Chaudrie
Given the intersecting physical, historiographic, and epistemological gap affecting the Chaudrie’s archive, trying to trace the documentary and judicial practices related to cases heard in the Chaudrie before 1766 is no simple matter. Theorizing about the gaps themselves is all well and good, but historians still need to say something about a thing that existed. In such cases historians have used a variety of methodological approaches. The first would borrow a methodology from ethnohistorians and “backstream,” using later practices to hypothesize about a less knowable past.Footnote 57 The Chaudrie’s extensive sources from the 1760s onward make this possible: with some judicious guesswork and imaginative hypothesizing, we can use these sources to suggest what practices might have remained constant from the earlier period to the later one.
A second approach is to look for traces, to archivally cross-reference the shadows of our phantom Chaudrie sources, looking for instances where fleeting, passing mentions of the early Chaudrie appear in cases heard by other courts, in letters sent by missionaries and by Compagnie des Indes officials, or in accounts by other residents or travelers through Pondichéry.Footnote 58 By reading in what might be described as a margin-centered approach, we can learn a fair amount from sources in which the Chaudrie appears only momentarily.
We can also learn much about the workings of the Chaudrie by placing it in its institutional and regional contexts. The existence of the Chaudrie court in Pondichéry aligned with long-established legal traditions of dispute resolution in the subcontinent, and South India more specifically. Throughout the region, legal practices were carried out through arbitration at the caste group and village level for local disputes and at various regional assemblies in cases demanding a higher authority or jurisdiction.Footnote 59 In its reliance on arbitration and other local forms of knowledge, the Chaudrie was both an adaptation of pre-existing South Indian institutions such as village panchayats, and a forum that resonated with metropolitan French traditions of arbitration, and therefore a site that drew on both well-established and novel judicial modes in its integration of such local knowledge within the French colonial legal system.Footnote 60 The Chaudrie’s reliance on vernacular knowledge systems—some oral, some documented on palm leaf and mostly lost today—explains how what appears as a gap when examined through the colonial archive was in fact densely filled with material of various sorts and media in the eighteenth century.
The terms choultry, chawaadi, chaudrie, or chaudhuri had multiple meanings in Telugu, Tamil, and Sanskrit, referring to a resting place for travelers, a meeting point, a space in which to carry out public business, or the office or role of a chief of a community or a locality.Footnote 61 The over-determination of the word hints at the richness of roles the institution and the actors associated with it could fill. Choultries or chaudries, in addition to their association with legal resolution and the settling of disputes, particularly among merchants, could also be sites of meeting, rest, lodging, and the distribution of relief and charity.Footnote 62
In English-ruled Madras there was an equivalent institution to the Pondichéry Chaudrie, known in the Anglo-Indian archives as the Choultry, in existence until 1800.Footnote 63 The Madras Choultry carried out duties similar to those of the Pondichéry Chaudrie, and mention of the institution from 1678 notes that it met twice a week and would “do the common justice of the town as usuall, and do take care that the Scriven of the choultry do duly Register all Sentences in Portuguez as formerly.…”Footnote 64 Before 1680, the Madras Choultry records were kept in Portuguese, and after that in English. In Madras in the first half of the seventeenth century, the judges were Brahmins, and only later in the century did Englishmen begin to fill these roles.Footnote 65 In the French colony, itself only established at the end of the seventeenth century, Frenchmen were the judges from the very start, indicating that perhaps the English institution served as a model.
Evidence shows that the Chaudrie court operated in Pondichéry before the early days of French settlement in the late seventeenth century, and certainly before the 1701 creation of the Superior Council. This is verified by a reference made in 1719 in the French judicial record to judgments passed by the Chaudrie dating back to 1 October 1699.Footnote 66 Pondichéry was divided into a “Black Town” and a “White Town,” and the Chaudrie, unlike the Superior Council court which met in the French East Indies Company’s waterfront offices, was in “Black Town,” opposite Pondichéry’s central market. The location of the Chaudrie in the town reflected the ways in which this institution connected Pondichéry to the surrounding region; as Joy Varkey has pointed out, the Chaudrie was situated at the intersection of roads from Madras, Cuddalore, and Villenour and the main road from Pondichéry’s waterfront fort.Footnote 67 Dutch plans for the city dating from the last decade of the seventeenth century also make note of a tribunal situated next to the market.Footnote 68 While the Chaudrie appears in French-drawn maps as early as 1702, the cartographic evidence replicates the same documentary lacuna as the court’s records. Like the court’s written archives, the first map that contains detailed information about the interior of the Chaudrie dates to 1766.Footnote 69
French officials heard cases there each Monday and Friday morning, with the services of interpreters, and decisions were made “according to the customs of the country.” This body of law was therefore an additional source of authority to the imported French codes that governed judicial decisions made in the Superior Council—the Coutume de Paris for civil matters and the Criminal Ordinance of 1670 in criminal ones. The traders who served as judges in both the Conseil and in the Chaudrie had no formal legal training, and in the Chaudrie they relied on local intermediaries for their accounts of what constituted the “customs of the country.” A Company employee, M. de Chalonge, resolved disputes with the help of an interpreter as early as 1701, shortly after the town was returned to French control after a period of Dutch occupation. In 1701 the French Governor, François Martin described M. de Chalonge’s work in the Chaudrie as happening “in the place where justice is dispensed,” suggesting that the French assumed control over an already existing judicial site.Footnote 70
The earliest mention of the Chaudrie in the Superior Council’s official records dates to 1703, when the Councilors referred to a judgment by the Chaudrie earlier that year.Footnote 71 In 1707, the Superior Council appointed a Councilor to fill an empty seat on the Chaudrie, describing the Chaudrie’s mission as “to provide justice for the [local] inhabitants of Pondichéry.”Footnote 72 Other brief mentions in the Superior Council records, which usually referenced staffing decisions, include this on 24 November 1713: “Sieurs Cuperly, Dulaurans and Bongré [all Company traders who also served on the Council] will in the future serve every Monday and Friday on the seat of the Chaudrie, in order to judge there all matters that demand quickness.” Thus, we can conclude that the Superior Council considered hasty resolution a priority for the Chaudrie.Footnote 73
At some point the Chaudrie must have fallen into disrepair, since a 1728 Council decree notes that a “place where justice is dispensed to blacks [noirs in the original, meaning Indians], in the grand bazaar, popularly called the chaudry, has for a long time been in ruins.” In order to provide a place to accommodate the scribes and store merchandise and a prison, the Council ordered the construction of a new building, also located in the central market.Footnote 74 This cost the significant sum of 1,000 pagodas (5,250 livres tournois).Footnote 75 A Père Louis drew up the plans.Footnote 76
Such Council notes indicate a second du commerce, an employee of the Company, presided, and the Chaudrie also had two assesseurs, chosen among the conseillers, sous-marchands, and commis. The second du commerce also supervised the naïnard, the Indian charged with policing, and his pions. Footnote 77 Ananda Ranga Pillai’s diary provides more about the Chaudrie’s Tamil employees. A commercial broker, employed by the French, Pillai made numerous references to the Chaudrie in his diary, often when recounting proclamations and their disseminations by the Superior Council. For example, of a decision about currency from 1739: “Four copies of the notice were drawn up in French, Telugu, and Tamil.… It was also proclaimed by the [Chaudrie] court accountant Wandiwash Rangappan who, accompanied by a drummer, read and explained the rule in the different quarters of the town.”Footnote 78 Unlike the French sources, Pillai’s diary typically mentions the court’s Tamil employees by name, thereby giving clues as to their social affiliations.Footnote 79
The Council’s references and Pillai’s indicate the early Chaudrie imposed six types of punishments: afflictions, such as the mutilation of ears; slavery in the Mascarenes islands (limited term or in perpetuity); making amends to the injured parties; confiscation of goods; banishment from French territories; and lashes of the whip.Footnote 80 There is evidence to suggest that local residents considered these punishments, as well as those of the Superior Council, to be extreme and excessive. For example, when the caste chiefs requested the Council turn over a Brahmin man accused of forging financial accounts on palm leaf in 1725, they commuted his death sentence to exclusion from his caste, confiscation of his goods, and banishment from Pondichéry.Footnote 81 If French punishments were indeed more severe, the question arises of how such punishment might affect the Chaudrie’s success in drawing local actors into the French sphere of influence. It reveals a tension between imperial French desire for greater political, judicial, and religious authority, often driven by metropolitan directives, and the limits to the exercise of such authority. This dynamic was demonstrated when French judges decided on a sentence and then obviated their sentence and ceded the decision elsewhere.Footnote 82
Some French officials also argued for the pragmatic need for milder punishments. A high-ranking French official, Mahé de La Bourdonnais, implied in a letter that the Chaudrie was dispensing excessively harsh judgments toward Indian defendants and called on the Company Directors in Paris to constrain them from “mutilating or ruining” the locals.Footnote 83 Chaudrie judges appear to have abused their power throughout the eighteenth century, and a letter the French King wrote to the new Governor and Naval Commissioner in India in 1776 described accusations against former Chaudrie judges of both bias against and excessive brutality toward local residents.Footnote 84
The Chaudrie and the Superior Council
Although the original decree creating the Superior Council’s court in 1701 makes no mention of a relationship to the Chaudrie, the connection between the two courts unfolded in various dimensions in the ensuing decades. The Superior Council served as a court of appeals for decisions made in the Chaudrie, sometimes very quickly: the Council reviewed an August 1703 decision in a contractual dispute in September.Footnote 85 Almost every judge who served on the Chaudrie was simultaneously a Councilor on the Superior Council. When the Council decreed orders it wanted distributed widely, it might order that “the present order be published… in the Chaudrie and in the whole town, so that no one could claim to be ignorant of it.”Footnote 86
Document preservation was assiduous in the Superior Council. Cases heard by the conseil supérieur were documented on paper and stored in the Compagnie des Indes’ offices in India, and later in archives in France. Some of these materials were published in print, while others became the subject of detailed finding aids produced by historians and archivists.Footnote 87 The 1701 royal decree creating the Superior Council today exists in multiple printed accounts, online, and in the manuscript archives in multiple locations.Footnote 88
While the Chaudrie was meant to hear mostly civil disputes concerning locals, no bright line distinguished Superior Council cases from those that began in the Chaudrie. Occasionally Indians gained direct entrance to the Council, as in a 1702 case involving two Indian merchants, one from Madras and one from Pondichéry.Footnote 89 The Council considered relevant palm leaf accounts and had them translated into French.Footnote 90
Peroumal’s employers were not the only French to seek redress in the Chaudrie. The records of the 1733 Superior Council case of Peroumal briefly mention the Chaudrie more than a dozen times. Together they reveal much of the workings of this judicial institution. First, Tamil interpreters who were “sworn scribes of the chaudrie, who understand and speak both the Malabar [Tamil] and French language, and who took an oath to faithfully interpret” the proceedings, might serve the Council, as in this case.Footnote 91 Likewise although Nicholas Le Faucheur filed suit in the Superior Council, when he called in the police to arrest Peroumal they marched him over to the Chaudrie for detention.Footnote 92
One of the men who took Peroumal to detention in the Chaudrie gave a deposition that provides a glimpse into the social world of these employees: he was a thirty-two-year-old native of Pondichéry, of the so-called Pariah caste, a practitioner of the local religion, and deposed in Tamil.Footnote 93 Three of the guards of the Chaudrie gave depositions, and their answers to the formulaic preliminary questions reveal that all had moved to Pondichéry from the surrounding countryside.Footnote 94 The list of questions prepared in advance for Peroumal’s interrogation makes several references to the Chaudrie.Footnote 95 For example, he was asked to confirm that he had been brought to the Chaudrie before this instance under accusation of theft and he confirmed and described the outcome of that case.
The handful of sentences among the many dozen pages of the case dossier from the 1733 case reveals how the work of local people blurred the boundaries between what had been conceived of as separate institutions, the Superior Council and the Chaudrie, one “French” and one “local.” Likewise, the description of the earlier case when Peroumal’s employer brought him before the Chaudrie indicates that French residents of the town saw it as a resource upon which they could draw. The detailed questions about Peroumal’s prior arrests in the Chaudrie suggest that some records of those proceedings existed at that time to which French councilors had access, either directly or through interpreters, thereby allowing them to recreate Peroumal’s criminal history.
The fact that all three guards who testified were born outside Pondichéry suggests it was not unusual for Indian migrants to find their way into the French orbit through work in the Chaudrie. That the outcome of both of the cases against Peroumal depended on powerful local actors indicates that such men were able to direct decisions in both courts. This supports a broader argument about French colonial law in India: local modes of dispute resolution and legal knowledge were nested in French colonial courts, with the explicit agreement of French administrators, and the courts in turn were nested within the realm of legal authority and sovereignty of both Mughal rulers and even wealthy local merchants.
Local Legal Knowledge
Legal culture in Pondichéry relied on the knowledge and intervention of three local groups that all supported the weaving of the French judicial system itself into regional judicial practices. These were the village councils, or panchayats, who settled disputes at the village level; the caste heads and influential merchants who negotiated trade and urban policies with the French East Indies Company; and the interpreters who made possible almost all commercial and legal exchanges in the colony.Footnote 96 All three institutions played a crucial role in the work of the Chaudrie, though references in both the court’s own archive and other sources are usually fleeting. Collectively, they introduced French judges to the contours of the legal world they attempted to recreate or at least mimic, as they promised to deliver in the Chaudrie decisions that relied on the “customs of the country.”
Ascertaining what French judges understood to be the legal “customs of the country” is difficult, since no efforts to collect or codify legal custom occurred until late in the eighteenth century.Footnote 97 The documentation of the Chambre de consultation in Pondichéry, composed of eight Indians charged with providing legal advice, which began in 1778, provides much of what we know. Julie Marquet has recently provided the first in-depth scholarly examination of its successor, the Comité consultatif de jurisprudence indienne, a committee of Indian experts of law in Pondichéry that was created in the 1820s to assist French officials in their judicial decision making.Footnote 98 French colonial judges eventually began making explicit attempts to codify and disseminate their understanding of Hindu law, for example the 1856 volume compiled by a judge in Chandernagore and later procureur général in Pondichéry.Footnote 99 Indeed, such legal codification was common in both the French and English colonial projects in India in the late eighteenth century and much of the nineteenth century.Footnote 100
While earlier understandings by French judges about local legal practices remain opaque, we can recover the three central mechanisms they used to learn of these practices: legally informed language interpretation, arbitration, and expert witness testimonies. Judges relied on local interpreters and scribes, who both translated the proceedings and, according to a French administrator who disapproved, influenced decisions. Mahé de La Bourdonnais deplored the reliance on interpreters at the Chaudrie, writing in a letter that “the Malabar scribes who serve as interpreters … give an explanation so that matters are resolved in the way they wish.” This manipulation, he wrote, leads to miscarriages of justice, which in turn “disgusts the Indians” under French rule.Footnote 101
French observers of arbitration saw it in a more positive light. Reliance on local arbitration was incorporated into the French conceptualization of the Chaudrie from the very beginning, and was part of a broader ideology of the Compagnie des Indes’ commitment to bolstering an existing status quo.Footnote 102 The first French Governor in Pondichéry, François Martin, wrote a letter to the Directors of the Company in 1701 about the legal system in the new colony that championed the practice: “When differences occur among the gentiles [non-Christians], who have laws and customs that are different from our own, we oblige the two parties to name arbitrators for each side, and we then make a decision based on their reports. We don’t find it necessary to establish jurisdiction in all its forms at this early stage, we can still leave things as they are, and thus open the way to attract people to Pondichéry.”Footnote 103 This suggested the French took a very open-ended and pragmatic approach to jurisdiction and by extension to reconceptualizing sovereignty involvement in the Chaudrie. This position was one that clearly developed in India in response to local conditions and in opposition to metropolitan plans, since the charter Louis XIV gave to the Compagnie des Indes in 1664 ordered the use of the “laws and ordonnances of our kingdom in France” to settle disputes.Footnote 104 It was also of a piece with the legal strategies deployed in other European colonies in India, as Leonard Hodges’ recent work on arbitration in the English court in Bombay has revealed.Footnote 105
French Chaudrie judges also called upon community leaders and caste chiefs to provide social and religious contexts for disputes heard in the Chaudrie, thereby replicating under French auspices the model of dispute resolution by village councils. The bulk of the evidence about the testimonies of caste chiefs appears in the post-1766 records of the Chaudrie. But the frequency with which such appearances occur as a matter of course, from the earliest records available, suggesting it was long-established. For example, in an inheritance dispute heard in 1766, no fewer than twenty-one caste chiefs were brought into the court to testify, and asked to provide their opinions in writing, so that the court would “know once and for all the usages, mores and customs of the Malabars.”Footnote 106 Reliance on the opinions of caste chiefs occurred not only when the litigants were what we would today gloss as Hindu, but also for local Christians who came before the court. For example, the judge invited the opinion of a visiting caste chief from St. Thomé with knowledge of the litigants and several “principal malabars of various castes” who happened to be sitting in the audience that day, to opine on local usage regarding betrothal in a case concerning a Christian woman jilted by her fiancé.Footnote 107 The records of an inheritance dispute that came before the court in 1771 indicate the Chaudrie judge relied on the opinions of the caste chiefs to render his decision.Footnote 108
If the exact content of the customs’ interpretation, arbitration, and expert witness testimony introduced into the French court structure remains elusive in the archive, it is perhaps a feature of the very shaky grasp French judges in the Chaudrie themselves had of these practices. The nonexistent archive frustrates the historian’s desire to determine exactly what French judges knew and believed of local law. The approach utilized here, of reading the history of the Chaudrie through and across adjacent sources, is unsatisfying, since it brings to forefront the limits of historical knowledge. Identifying these limits and the inability of our methodologies to overcome them returns us to the concept of gaps, how they have been formed in the archive of French India in general, and in the Chaudrie specifically.
Conclusion
Passing, fleeting mentions of the Chaudrie in sources produced by other colonial institutions allow us to discover some of the court’s procedures and its approach toward jurisdiction and local legal knowledge, and hypothesize about others. But even as we reach toward what can be unearthed, as I have done here, thinking about the history of the Chaudrie under the French necessarily entails thinking about absence, in multiple registers: the actual sources that did or did not exist, and the legal practices plaintiffs brought into the court that were only faintly visible in the extant French judicial archive, which is nevertheless the main archive in which the Pondichéry Chaudrie can be glimpsed. Grappling with archival gaps must inevitably lead to an admission of at least partial defeat. Ultimately, the gaps are always larger than the knowledge, even when we pretend otherwise. The creation of any archive entails an ongoing and inevitable process of erasure, regardless of the archive’s pretensions of coherence of representation.Footnote 109
The most unknowable portion of the Chaudrie’s early history is also perhaps the most intriguing. The paucity of sources from the Chaudrie’s early days forces us to acknowledge that two bodies of knowledge maintain only a ghostly presence in the archive: the beliefs of French judges about local modes of dispute resolution, and the legal practices of local Tamil judicial personnel, the mediated basis of the judges’ knowledge. Much like the French judges’ knowledge of local legal practice was surely patchy and mediated, so is our ability to unearth the workings of the court. But if gaps of various kinds characterize the archive of the Chaudrie, this is all too fitting: as an institution, the Chaudrie under French rule was explicitly engaged in creating gaps, attempting as it did with its reliance on French judges, Tamil scribes, caste chiefs, and arbitrators to leave clear seams and even holes between French jurisdiction and existing power structures.
The Chaudrie’s archive is replete with phantom sources. We can compare them to phantom limbs, the sensation of amputated body parts.Footnote 110 The physician Silas Weir Mitchell was the first to name phantom limbs as such, describing the sensation of amputated body parts as “a constant or inconstant phantom of the missing member, a sensory ghost of that much of himself.” He was the first to demonstrate that phantom limbs reflected the same brain patterns as actual limbs. As the neurologist Oliver Sachs notes, missing limbs are “phantom, indeed, but real, effectual, and certain.”Footnote 111 This is how we should also think about phantom sources, severed by archival and bureaucratic decisions, but nevertheless there in an immaterial but real way.
In her study of free Black women in the eighteenth century, Jessica Marie Johnson has suggested the framework of “null value” to grapple with these women’s place in imperial archives. “Instead of pausing at imperial silence or accepting it at face value,” she writes, “surfacing silence in the empirical, imperial archive as having a value—a null value—imbues absence with disruption and possibility.”Footnote 112 Documents also generate and produce social relations in institutions and states, as Matthew Hull has noted, “not only directly as instruments of control but also as vehicles of imagination.”Footnote 113 The null value of the archive or the ability of nonexistent documents to constitute social relations are two different ways to think about what I term here phantom sources. Legal archives are an artifact of the state and those who come in contact with it, but so too are missing archives. In their non-presence they reveal the state’s historical development, priorities, and tactics.
The metaphor of a phantom source highlights the reality of absence in archival choices, archival lacuna, and archival power inequalities. Chasing phantom sources makes us admit not only the limits to our knowledge, but also brings forth a texture of the colonial past which is smoothed over by our very natural tendency to work with sources that exist. The phantom source, by its very absence, teaches us about the body of the archive as a whole.
