AuthorDavis, Seth

INTRODUCTION 1986 I. EQUITY AND POLITICAL POWER 1990 II. CONTESTS FOR EMPIRF. 1991 A. Imperial Conflicts on Two Continents 1993 B. The Mughal Empire and the East India Company 1994 III. EMPIRE IN THE ENGLISH COURT OF CHANCERY 1996 A. Too Indebted to Tail? 1997 B. A Bill for a Fair Account 1999 C. "I am sorry, that such a cause must be determined in this manner". 2002 IV. NABOB OFTHE CARNA TIC CROSSES THE ATLANTIC 2006 A. A Case of Many Propositions 2007 B. The Political Question Doctrine's Foundation ? 2012 CONCLUSION: THE POLITICAL ECONOMY OF EQUITY IN EMPIRE 2014 "[T]he contest is distinctly a contest for empire." INTRODUCTION

Justice William Johnson often dissented and rarely cited case law. (2) This time, though, he concurred and had a citation ready. When a claim for equitable relief "is one of a political character altogether," a "court of justice" may not "take jurisdiction of the questions made in the bill." (3) Under that principle, the bill before the U.S. Supreme Court in Cherokee Nation v. Georgia was, Justice Johnson figured, just as if not more objectionable than the bill that had been before the English Court of Chancery in Nabob of the Carnatic v. East India Company? Equity, as he put it, may not intervene in a "contest for empire." (5)

Both contests for empire involved bills to enforce colonial powers' treaty promises. In 1791, attorneys for Muhammad Ali Khan Wallajah, the Nawab of the Carnatic, filed a bill in the Court of Chanten seeking an accounting of rents and profits from the Company, which possessed part of his territory in southeastern India as security for a loan. (6) After denying the Company's plea to bar the action in a 1791 decision, the Court dismissed the bill in 1793 because the Company's answer showed that the underlying contract was a "political" treaty between sovereigns. (7)

Forty years later, the Cherokee Nation filed a bill in the original jurisdiction of the U.S. Supreme Court, seeking to protect the Nation's territory in the southeastern United States from the State of Georgia. (8) The Supreme Court held that the Cherokee Nation was not a "foreign state" entitled to invoke to the Court's original jurisdiction. (9) Justice Johnson would have dismissed the bill instead for the same reason that the Court of Chancery dismissed the bill in Nabob of the Carnatic. (10)

This Essay tells the story of Nabob of the Carnatic and its subsequent citation by American lawyers and courts. It is a story about the relation between equity and politics, a relation no less vexed than that between equity and law, and a relation no less important in the United States today than it was in the British Empire in the eighteenth century. Specifically, it is a story of imperial politics that allows us more deeply to evaluate judicial reluctance to opine upon questions of political power.

The history of the Court of Chancery's decision is not, however, one that can dispel today's debates about the proper role of the U.S. federal courts. The U.S. Supreme Court has held that the traditional jurisdiction of the Court of Chancery in 1789 is a guide to the authority of the federal courts to issue equitable relief today." The 1793 decision in Nabob of the Carnatic is relevant to that tradition, yet it was not clear then, as it is unclear now, how broadly or narrowly one should read Chancery's dismissal of the bill in that case.

The Court's brief reported decision stated a rule against judicial enforcement of "political" treaties." (12) It said nothing about political questions or political rights. The ground of decision was consistent with a traditional understanding of treaties as a matter of the Crown's prerogative. (13) A "treaty between two sovereigns," the Court reasoned in Nabob of the Carnatic, "is not a subject of private, municipal jurisdiction." (14) Over the course of the nineteenth century, however, Nabob of the Carnatic became a case about political rights and political questions. American lawyers and judges debated its proper interpretation in some of the century's highest-profile controversies over political power. (15) Courts cited it in cases having nothing to do with international relations. (16) By the early-to-mid twentieth century, the case was cited as a--even the--foundational political question case. (17) Justice Felix Frankfurter called it a "celebrated decision" in his 1962 dissenting opinion in Baker v. Carr. (18) After the Baker Court held that political rights were justiciable, (19) however, Nabob of the Carnatic all but disappeared from discussions of the jurisdiction of the federal courts. (20)

Even so, the federal courts have not entirely shaken the notion that equity should stay out of contests for empire. It echoes in the modern political question doctrine, which holds that partisan gerrymandering, while "nothing new," is nothing that the courts can review. (21) And though the nineteenth-century distinction between civil and political rights has faded, (22) the influence of the principle that equity will not protect political rights still lingers in the law of standing in the federal courts. (23)

The principle that equity should not settle contests over political power sounds sensible enough. Yet Nabob of the Carnatic and its subsequent citations are evidence that, as with any principle, this one takes some of its sense from the politics that shaped--and sustain--it.

In 1793, those politics were imperial politics. Nabob of the Carnatic contributed to the development of doctrine that aimed (and struggled) to distinguish political rights, which equity would not protect, from property rights, which equity would vindicate. (21) This doctrine tried to avoid questions of sovereignty beyond equity's capacity to address. But far from avoiding questions of sovereignty, the Court of Chancery addressed them in Nabob of the Carnatic, Most obviously, in dismissing the bill, the Court held that the East India Company had authority to act as "independent state" within India. (25) As Muhammad Ali Khan Wallajah's court chronicler once put it, the Company began as "merchants" and ended up as "rulers." (26) More subtly, but no less importantly, the Court's holding that "political" treaties are not "a subject of private, municipal, jurisdiction" (27) supported the British Empire--an empire that was built through treaties (28)--against colonized peoples' competing claims of sovereignty. As we shall see, the Court addressed questions of political power in the course of disclaiming jurisdiction. (29) In avoiding a contest for empire, equity lent a hand to its construction.


    In 1916, the editors of Ruling Case Law, a once-widely-cited treatise billed as "a compendium of the entire body of law," (30) stated a "general rule that a court of equity has no jurisdiction in matters of a political nature," and, therefore, that "no injunction to protect a person in the enjoyment of a political right or to assist him in acquiring such a right will be granted." (31) The first citation for this general rule was the U.S. Supreme Court's 1867 decision in Georgia v. Stanton, which in turn offered Nabob of the Carnatic as its first citation for the "distinction between judicial and political power." (32)

    Nabob of the Carnatic thus plays an important role in the story' that equity tells itself about political power. The Court of Chancery's traditional office was to protect property rights. (33) This was a necessary constraint on equity's sweeping authority to craft remedies. Political rights--that is, rights that "pertain solelv to the political administration of government"--are not property rights. (34) Therefore, they are not within the traditional jurisdiction of equity.

    In this story, Nabob of the Carnatic, decided only four years after the Judiciary Act of 1789, is relevant to the jurisdiction of the federal courts today. Article III of the U.S. Constitution extends the federal "judicial Power" to various "Cases" and "Controversies," including "to all Cases, in Law and Equity" arising under federal law. (35) Among the earliest federal statutes, the Judiciary Act of 1789 afforded federal courts "cognizance" of some "suits of a civil nature... in equity." (36) The Supreme Court has stated that "[t]he suits in equity of which the federal courts have had 'cognizance' ever since 1789 constituted the body of law which had been transplanted to this country from the English Court of Chancery." (37) Both the Court and lower federal courts have cited Nabob of the Carnatic as evidence of that the Court of Chancery traditionally would not have answered political questions or protected political rights. (38)


    The Court of Chancery decided Nabob of the Carnatic in a time of turmoil for the British Empire. The decade before, Britain lost thirteen of its North American colonies. Since then, it had allied with some Indian sovereigns and battled with others who had in turn allied with the French. (39) January 28, 1793, the date of Chancery's final decision in Nabob of the Carnatic, (40) was one week after revolutionaries executed Louis XVI in France, and just a few days before the French Republic declared war on Britain. (41) Already by this time, the rank corruption of the British Fast India Company and many of its leading officials had become apparent and politically explosive in the imperial metropole. (42)

    At the center of much this controversy was Muhammad Ali Khan Wallajah, the Nawab of the Carnatic. By the account of Tuzak-i Wallajahi, the Nawab's official court chronicle, he had "helped and protected the English whenever they were in trouble," drawing them into the complex hierarchies of political power within the Mughal Empire. (43) The "bond of union between" him and the British "was a brotherly treaty," one that the British Crown had promised would be "permanent and firm." (44)

    In the late 1740s and early 1750s, Muhammed Ali battled with Chanda...

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