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CHAPTER 1
The Free Sea: A Juridical Space
Modern steamship traffic and cheap passages have brought the Asiatic into contact with the new continents that are being peopled. — JOHN COWEN, "Race Prejudice," 1910
The visions of men are widened by travel and contact with the citizens of a free country will infuse a spirit of independence and foster yearning for freedom in the minds of the emasculated subjects of alien rule. — GURDIT SINGH, Voyage of the Komagatamaru, 1928
Gurdit Singh's turn to the sea was preceded by a much longer history of Indian maritime travel. From the seventeenth century onward, thousands of men left the subcontinent as lascars working on vessels that expanded the commercial, political, and legal reach of the East India Company and subsequently the British Crown. Indian seafarers, G. Balachandran writes, were among the first global workers. They "manned decks on the world's ships, and crewed engine rooms, saloons, cabins, and galleys." Though many were drawn to oceans as sites of freedom and adventure, they "inhabited a world deeply marked by race which determined what they could do, how much they could be paid, and how they could be treated." To be sure, British vessels were ordered and regulated through rigid hierarchies of race, caste, and religion. With increased maritime traffic, imperial control expanded from the ship outward, creating planetary divisions between land and sea and inaugurating new spatial, temporal, and civilizational orders. This juridification of the sea did not deter Indian travelers, however. In the last decades of the nineteenth century, advances in steam technology offered unprecedented opportunities to Indians and other "Asiatics." It was no longer only lascars and seafarers who crossed the seas, but also merchants, soldiers, and laborers. Ordinary men (and women), including the Komagata Maru passengers, sought opportunities to see and experience the world, though not often in conditions of their own choosing. Others pursued maritime routes to escape from British imperial rule. By the early twentieth century, colonial authorities and their supporters feared that "cheap passages" would avail the seas and open the "new continents" to "Asiatic" peoples. And they did.
The Komagata Maru was not the only ship to carry Indian migrants and travelers to Canada's west coast. Many real and imagined journeys preceded it. In 1913, Canadian authorities received news of an Indian merchant in Seattle who had plans to hire a steamer to transport his countrymen from India to Vancouver. But the report was unfounded. One year later, these fears were materialized with the Komagata Maru's arrival along British Columbia's coast. This was the only vessel to be chartered and commanded by a British/Indian subject and the first to be turned away from Canadian waters. The ship's ingress, which coalesced with wider speculations on the dangers of Indian seafaring, spawned two interrelated concerns. One centered on the presumed maritime ambitions of Indian men who many feared were newly asserting their rights to mobility as British subjects. The other revitalized European debates on the freedom of the sea. Increased outbound migration from the subcontinent to the white Dominions was met with greater restrictions, prohibitions, and increased surveillance. These contests over transoceanic travel produced a renewed interest in the racial and legal status of the seas: were they open or closed and for whom?
Until the early twentieth century, Indian migration to Canada was relatively insignificant. From 1905 onward, rates of outbound passage increased slowly and steadily. Like their counterparts in Australia and Natal, Canadian officials responded with calls for tighter immigration laws. Efforts to control Dominion borders were tightly bound up with maritime governance. In 1908, fearing a sharp rise in ocean travel from India to Canada's Pacific coast, the Dominion government passed the continuous journey regulation. Written without explicit reference to race or nationality, the law required all prospective immigrants to make a direct journey from their place of birth or naturalization to their port of entry. In its objectives and in practice, the law was openly and unabashedly aimed at excluding Indian migrants. To ensure its successful enforcement, Canadian officials halted the Calcutta-Vancouver route almost entirely. They also instructed steamship companies not to grant passage to Indian travelers seeking to leave the subcontinent or from ports of call in East and Southeast Asia. In so doing, Dominion authorities transformed a seemingly race-neutral law into one with markedly racial effects. Between 1908 and 1914, following several successful legal challenges, the Dominion revised and reenacted the continuous journey provision, adding further restrictions on the seabound passage of Indians and other "Asiatics." Together, these prohibitions extended Canadian jurisdiction outward, from land and littoral into the Pacific and Indian Oceans.
Though Gurdit Singh's efforts to charter the Komagata Maru and lay claims to the sea were unprecedented, it is important to note that his maritime ambitions were established upon and shaped by the struggles of many others. One of the first and most significant challenges to the Dominion's continuous journey provision came from Husain Rahim (see fig. 1.1). Rahim arrived in Vancouver in 1909 and immediately began initiating legal measures aimed at defying the Dominion government. In 1914, he quickly rose to prominence as the leader of the "shore committee." Composed of fifteen men — mostly, but not only, Sikhs from Punjab — the group accumulated a considerable sum of money to assist Gurdit Singh and the other passengers to disembark. Their campaign began with an appeal for financing, issued by Husain Rahim and Bhag Singh, and which I discuss in the introduction. Although these men eventually assumed the Komagata Maru's charter, their efforts to secure the vessel's disembarkation was ineffective and even disastrous.
On account of his own discontinuous itineraries and his ongoing legal troubles, Rahim was deeply sympathetic to those aboard the ship. To begin, his journey from India to Canada did not follow a continuous or direct route. Rather, Rahim left the subcontinent in 1895, ten years after Gurdit Singh, and lived in Kobe for over a decade. Though the two men resided in different ports — in Malaya/Singapore and Kobe, respectively — and though they came from distinct regions in India, their travels followed similar patterns, animated by commercial aspirations, itinerant movements, and legal restrictions. Because of Rahim's "great capacity for business," particularly his experience in the cotton trade, he was recruited as a working partner in a newly established Kobe firm owned by Jamshedi Manekji Nanporia, a Bombay Parsi. Seven years later, when Nanporia left Kobe and returned home for a brief visit, Rahim allegedly "made a huge speculative business and incurred heavy responsibilities." He "paid up the firm's dues and left Japan under the [Muslim] name of H. Rahim partly to avoid Jamshedi and partly to avoid further prosecution." He then boarded a steamer and "bolted" to Hawai'i. On 28 December 1909, after residing in Honolulu for nearly two years, Rahim embarked on another ship, the SS Moana. This time, he landed in Vancouver, where the vessel made its regular stop en route from Sydney.
By the early twentieth century, seaborne Indian men raised questions and generated suspicions among colonial and imperial agents. In Rahim's case, his seemingly fraudulent business practices combined with his mutable religious identities and his multiple aliases incited concerns for authorities in India, Canada, and the United States. "There has been a certain amount of distrust in the Hindu colony with respect to Rahim," wrote William Hopkinson, the Dominion's immigration inspector in Vancouver. Hopkinson assumed a key role in the Komagata Maru's detention and deportation, and was eventually assassinated for his involvement. "No one has yet been able to ascertain his village address in India," he reported, "and many suspect that he is not a Mahomedan [sic], as he claims, but is a Hindu and comes from the province of Bambay [sic]." Rahim's arrival in Vancouver would only incite further speculation: Was he Hindu or Muslim? Did he come from Bombay or elsewhere? By some accounts, he was a revolutionary from Bengal. By others, he was a trader from Gujarat, a princely state in the northwest region of the subcontinent that was widely known for its merchant and seafaring classes. According to J. W. Mattoon, the superintendent of Bombay Police, Rahim's given name was "Changan Khairaj Varma," though many knew him as "Changan Lal." He was a forty-six-year-old Hindu from the "Lohana Bania" caste and a "native of Porbander State in Kathiawar." When Rahim fled Kobe for Hawai'i, he carried with him "a large sum of money," which he allegedly stole from Nanporia's firm. In Honolulu, he became "the owner of considerable property." But following his arrival in Vancouver, Rahim's commercial interests quickly turned political. The legal actions he waged on behalf of his countrymen in British Columbia and those not yet arrived, would hold far-reaching consequences, radically altering the fate of the Komagata Maru passengers and the futures of hundreds of others seeking passage from India to Canada. It was these political and legal disputes that set the conditions for the Komagata Maru's unsuccessful journey and transformed Gurdit Singh into a supposedly dangerous radical.
The Komagata Maru was the first and last ship to carry a full complement of Indian passengers into Canadian waters. However, the global conflicts it engendered over the freedom of the sea were not new. Questions regarding the racial and legal status of oceans emerged in the early seventeenth century, coinciding with the travels of Indian lascars, and growing out of European inter-imperial struggles over "free trade" in the East Indies. These discussions were formalized in 1609, with Hugo Grotius's Mare Liberum, which centered on a maritime dispute in the Straits of Singapore. This well-traveled waterway was a meeting point between the Pacific and Indian Oceans and a region that featured prominently in the race for European control. More than three hundred years later, the Komagata Maru would pass through those very same waters as Gurdit Singh sought to disembark at Singapore.
To be clear, these seventeenth-century debates on the "free sea" were never referenced directly by colonial authorities or by Indian passengers for that matter. In telling a maritime and legal history, however, I situate the Komagata Maru's voyage — including the threats it posed through Indian seafaring, commerce, and mobility — in these longer racial and juridical contests over oceans and ships. Given nineteenth-century advances in steam technology and the growing accessibility of maritime travel, observers in Canada, London, India, and elsewhere queried whether the sea, which was free for European navigation and commerce, now included "Asiatics." Repositioning the Komagata Maru's voyage as a conflict over oceans, rather than a contest over arrival and immigration, foregrounds the vessel and its passage as a disputed site of law, order, and authority. Struggles over the ship, I suggest, were not limited to national or territorial borders but also expanded Dominion and imperial jurisdiction unevenly into the sea. British imperial control over oceans and maritime worlds increasingly took the form of intersecting and overlapping global lines, as evidenced in navigation, longitude, and global time. These impositions generated new spatial, temporal, and legal orders, which were vociferously challenged by Indian travelers and equally by an aspiring white Canada.
Using oceans as method, this chapter situates the Komagata Maru's voyage in a longer history of the free sea. Specifically, I juxtapose European and non-European chronologies of oceans as juridical spaces and, in so doing, present a set of competing accounts of their racial and legal significance. Part one begins with Grotius, whose writings on "The Free Sea" established the land/sea divide as an elemental and legal distinction, one that grounded a new global European order in maritime imperial legality. In part two, I move to the work of Carl Schmitt. Though Schmitt was not writing until the 1940s, long after the Komagata Maru's voyage was completed and forgotten, his discussion of "firm land" and "free sea" as elemental, juridical, and geopolitical, offers an important historical critique of British maritime power and a useful counterpoint to Grotius. Here, I expand and elaborate on Schmitt's spatial nomos through a discussion of global time. In the final section, I return to Husain Rahim. Through his personal experiences of seaborne travel, Rahim viewed oceans as sites of increased regulation and surveillance but also as lucrative spaces of trade, commerce, and freedom. The legal and political challenges he waged against the Dominion government were informed by a counter-nomos of the earth, one that he envisaged from the decks of the Moana, and one that sutured land/sea, space/time, and east/west. These planetary visions also shaped and animated the anticolonial imaginaries of Gurdit Singh. Seaborne travel, Singh urged, "fostered [a] yearning for freedom in the minds of the emasculated subjects of alien rule." Oceanic struggles, especially the elemental, juridical, and racial distinctions they inscribed between aqueous and terrestrial spaces, established a legal architecture for the Komagata Maru's failed journey and spawned a global and transoceanic vernacular of anticolonial critique.
Land/Sea
European debates on the legal status of the high seas — whether they were open or closed, held in common, or under imperial control — did not originate in Europe or the colonies. For Grotius, they grew out of European struggles over trade, commerce, and maritime control that centered on moving ships, cargos, and strategic waterways in Southeast Asia. In his early twenties at the time, the young jurist and humanist was commissioned by the Dutch East India Company (VOC) to consider a maritime dispute that would have far-reaching historical, political, and legal consequences: could oceans, like land, be subject to proprietary claims or were the seas to be held in common by all? These questions emerged from the capture of a ship. On 25 February 1603, three Dutch vessels surrounded and attacked the Santa Catarina, a Portuguese-flagged carrack. The Portuguese officers and its polyglot crew — including Arab, Turkish, and Indian men — departed Macao and were en route to Goa along the Straits of Singapore, when the assault took place. Portugal declared the attack to be illegal as the shipping channel, authorities claimed, was under its sovereign control. The carrack, which was traveling with a larger fleet of ships, turned out to be a treasure trove. It carried a handsome cargo of raw silks, damask cottons, porcelain, and other high-value items. Though Jakob van Heemskerk, the commander of the Dutch fleet, was not formally authorized to attack, either by the company that employed him or by the VOC, he did so opportunistically and on his own accord. The seizure of the Santa Catarina initiated a series of legal questions on the competing jurisdictions of imperial control and the dividing line between legitimate and illegitimate commercial activities at sea. The results of the case held far-reaching consequences: the VOC profited enormously from the ship's cargo; van Heemskerk was promoted to admiral; and most significantly, the Santa Catarina established a basis for international law, one that entrenched Grotius's land/sea distinction.
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Excerpted from "Across Oceans of Law"
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