V
•X
** '
OBSERVATIONS
ON THE
AW AND CONSTITUTION
AND
PRESENT GOVERNMENT
OF
INDIA.
OBSERVATIONS
ON THE
LAW AND CONSTITUTION,
AND
PRESENT GOVERNMENT
OF
INDIA,
ON THE NATURE OF
LANDED TENURES AND FINANCIAL RESOURCES,
AS RECOGNIZED BY THE
MOOHUMMUDAN LAW AND MOGHUL GOVERNMENT,
\VITH
AN INQUIRY
INTO THE
I
ADMINISTRATION- OF. JUSi:iC^ilFAraNUE, AND POLICE,
AT PRESENT EXISTING IN BENGAL.
BY LIEUT.-COL. GALLOWAY,
OF THE HONOURABLE EAST-INDIA COMPANY'S SERVICE.
SECOND EDITION, WITH ADDITIONS.
LONDON:
PARBURY, ALLEN, & Co., LEADENHALL STREET.
1832.
HENRY
Printed by
J. L. COX AND SON, GREAT QUERN STKKKT.
Lincoln's-Inn Fields.
CONTENTS.
Page
PREFACE vii
Chap. I. — On the Law and Constitution of India 1
Chap. II. — On the Nature of Tenures, according to the
Law of India, under the Moohummudan
Government 32
Chap. III. — On Taxation and Revenue under a Moohum-
mudan Government 107
Chap. I V. — On the Present System of Revenue, Permanent
Settlement 164
Chap. V. — On the Judicial Administration 286
Chap. VI.— On the Police 424
Chap. VII.— On the Government of India , 463
APPENDIX ,. 498
PREFACE TO THE FIRST EDITION.
IT is by no means unusual with writers to com-
mence their Preface by telling the public the
motives which induced them to undertake their
prefaced work, as if motives alone were a suffi-
cient justification of an author for claiming public
attention.
But the public do not believe one-half of what
they are told on such occasions. I shall there-
fore not endanger a moiety of my veracity, by
following, in this, the footsteps even of the great-
est professors of patriotism .
It is nevertheless right I should intimate, that
particular pursuits, both public and private, in
which I have been engaged during a very long
residence in India, demanded acquirements which,
I presume, have given me some advantages in dis-
cussing the subjects contained in the following-
sheets ,
Vlll PIIEFACE.
sheets. To how small an extent I have exhibited
those advantages, without the slightest affectation,
I really am perfectly aware. But so much has
been already written on the affairs of India, that
the reader will not, I trust, expect any very
great addition to the general stock of information.
Yet, considering the jarring opinions which have
been held, regarding the government of India,
by men of the highest reputation as scholars,
statesmen, historians, as functionaries both of the
oriental and occidental branches of that govern-
ment, I cannot but think that an attempt to trace
the nature of that constitution through the long-
prevailing aberrations of the administration of that
country to its original place in the ancient system
of India, whence the whole was precipitated by
the convulsion which produced the decline and
ultimate fall of the Moghul government, will not
be deemed uninteresting nor void of importance.
Those who have written on India affairs, whether
as to the administration of the law or of the reve-
nue, have, generally speaking, got entangled in
the jungles (to use an Eastern phrase) both of
" Hindu and Mahometan " antiquity; some look-
ing
1'llEFACK. IX
ing to Sanscrit, some to Arabic, to guide them
through the labyrinth : sometimes to Hindoo law,
known to be obsolete ; sometimes to Hindoo history,
known to be fiction; sometimes to Moohummudan
law, not understood ; sometimes to Moohummudan
history, not to be believed ; till bewildered, and
yet obliged to write, it is no wonder that they have
been unable to explain intelligibly the nature of
the institutions they attempted to describe, or to
fix upon the real source whence those institutions
were derived.
The whole fabric of the Moghul constitution
must have been supposed, not only to have been
demolished, but even the ruins so completely dis-
sipated, that they were irrecoverably lost ; for,
otherwise, the humanity of the English government
would have induced them to examine its nature
and try its value, before it was thrown aside to make
way for new laws and regulations, which, with
the most benevolent intention, nevetherless over-
threw the ancient institutions of the country.
It is consolatory, however, to reflect, that the
only irretrievable step of great moment that has
yet been taken, is the permanent limitation of the
land
X PREFACE.
land revenue of the Bengal Provinces and districts
on the coast permanently settled. In other mat-
ters (and elsewhere, with respect to the revenue
also), the door of improvement is not yet fully
shut.
The recent accession of territory to the Bri-
tish dominions renders the more important what
information is contained in the following pages.
To those who are entrusted with the administra-
tion of India, it is hoped that it may prove useful.
In legislating for the future, they have at least
the benefit of knowing the effects of the past ; and
should this volume assist them, it will fulfil the
intentions of its author.
PREFACE TO THE SECOND EDITION.
SINCE the period at which the first edition of
this work was published, the affairs of India have
attracted more attention, in England, than in
former times they experienced. The discus-
sion now in progress, relative to the renewal
of the Company's Charter, gives to every thing
that has been or can be written on the govern-
ment of our Asiatic dominions, a special impor-
tance. The author is far from entertaining an
opinion, that his work, even with the additions and
corrections which it has received, will be deemed
of great value, nevertheless he trusts it will be
found not unworthy of the reperusal of that por-
tion of the public who think at all of India.
The author has read with great attention what
has been written, both for and against the opi-
nions he has ventured to entertain. That those
who take a view of the affairs of India different
from
Xll P HE FA OK.
from his have failed to convince him, will be
manifest. He hopes for their candour in admit-
ting that his sentiments are as honestly enter-
tained as their own.
In addition to the original work, a chapter on
the government of India has been added, to
which the author solicits attention. How far it
may be deemed of value remains to be seen.
The importance of the subject at this particular
crisis, however, will be confessed. The author
can only say, that the opinions he has ventured to
express are such as he has formed after mature
reflection, founded on observation extending
through a service in India of thirty years ; during
almost the whole of which period his mind has
been more or less directed to the subject on which
he has written.
The author entertains no overweening estimate
of the opportunities he has had of forming a judg-
ment on the various topics he has attempted to
discuss ; but this he may venture to say, that a
knowledge of India, really valuable, and of the
practical effects of our government, is not to be
attained by those who have never mixed with the
people
PREFACE. Xlll
people beyond the limits of Calcutta, Madras, and
Bombay, or who have traversed the country
merely as travellers. On such easy terms, it
may be boldly averred, that no accurate notion
of the character of any people can be formed by
the individual himself; and if he shall never-
theless venture to delineate, he must give the
opinion of others, and not his own : in point of
fact, he communicates nothing but the second-
hand sentiments of other men, of whose accuracy
of knowledge he can hardly judge, the same
being, moreover, extracted from the informant off
hand, perhaps in answer to questions on subjects
requiring the exercise both of refreshed memory
and serious reflection. The author is far from
desiring to misappreciate such information ; but
he would decidedly wish to discriminate between
such, and that which is the result of experience
acquired by the acute and discerning practical
man.
It is the want of knowledge, experimentally, of
India, which betrays many into the egregious
error of propounding schemes for the better go-
vernment of that country : some of them indeed,
in
XIV PREFACE
in the abstract, excellent ; but inapplicable, per-
haps, on account of their very excellence. To
produce good fruit, the soil, as well as the seed,
must be suitable. The very best of our English
institutions could no more prosper in India, in her
present condition, than they could have done in
England in the days of Canute the Dane. To fit
them for such institutions, the people of India
must be carefully led out of their present condi-
tion, and by degrees ; but no nation was ever
driven out of a state of intellectual darkness.
The ephemeral tenure of our supreme rulers,
both in India and in England, is of itself capa-
ble of retarding the improvement of India. In
India the head of the government is usually with-
drawn about the time he has, by personal expe-
rience, acquired sufficient knowledge, and suffi-
cient confidence in himself, to do any thing ; and
in England, the superiors there rest on the fate of
the minister of the day. The consequence is
that some, and those the very best men, im-
pelled by their very virtues to hasten ameliora-
tion, fall upon inappropriate remedies, which ra-
ther aggravate than assuage the evils they would
remove.
PREFACE. XV
remove. Others again, looking to their transient
sojourn, despair of doing much good, and attempt
none. But men are too apt to identify every thing
with themselves. They are anxious to do good,
but it must be done quickly : yet who does not
know that, in national affairs, nothing but the most
trivial matters can be so managed. For the go-
vernment of India, he who lays down one good
principle need hardly require greater praise. The
road to the improvement of India must not be
precipitous. The acclivity, gentle yet uniform,
must be such as to lead the people in the easiest
manner out of the cherished track of ancient
error. It must commence there, and terminate
by the most gradual ascent, in that eminence,
both of moral and religious elevation, to which
we desire to raise them.
If the government, in principle as it now is,
shall be suffered to remain for India— if it shall
escape the demolition of visionary reformists— if
the affairs of India shall continue to be adminis-
tered by men who have her welfare so earnestly
and sedulously at heart, as even their most bit-
ter enemies accord to them, it is impossible to
conceive
XVI PREFACE.
conceive but that, under the guidance of the all-
wise ruler of nations, such integrity of purpose
will lead to the adoption of measures which must
ultimately secure the true interests both of India
and of England.
January 1st, 1831.
OBSERVATIONS,
CHAPTER I.
On the Law and Constitution of India.
THE British Legislature has declared that " the Indian
" subjects of Britain shall be protected in their rights
u according to the laws and constitution of India." But
what " laws and constitution" are here meant, the law-
givers themselves knew not. It is assumed, indeed, that
laws and a constitution do exist; but that a matter so
important should remain ambiguous — that the " laws and
" the constitution," by which the rights of so large a portion
of the human race are here commanded to be protected,
should not be known, is truly marvellous.
After so many years of British government of India,
one might expect that there had been, at least, no want of
endeavour, on the part of its rulers, to discover what
" laws and constitution1' did exist in India, and to
expound the law, for the guidance of their subjects in
obeying, and of their judges in administering it ; and we
accordingly find that some of its greatest governors have
been most anxious in the attempt. But, whether the
means adopted were inadequate, I know not : certain it
is, they have failed ; for when we turn for information
B to
3 f •
CONSTITUTION
to what has been written on the subject, we are forced
to lay down the unsatisfactory volumes in profound mor-
tification.
Almost any kind of regular government, following the
distracted and tyrannical misrule which pervaded India
during the decline and fall of the Moghul empire, could
not fail to be hailed as a blessing by the inhabitants of
that kingdom; and to this it is, probably, we owe the
acquiescence of our Indian subjects in our judicial system,
more than to any real excellence of its own. Assuredly,
however, it is unworthy of the high character justly
maintained by the Indian government in other depart-
ments, to rest satisfied, in this, with the mere acquiescence
of their people, — a people, too, but little skilled in the
affairs of government (or, if informed, only taught in the
school of anarchy and corruption) ; and to suffer them
to be governed by laws, and by " regulations and laws,"
such as those now prevalent in India; enacted, doubtless,
with the very best intention, but being founded on no
system, have been made to partake of all, and are now
become a compound of legislation to which no parallel is
to be found.
So long ago as the year 1807, a " Digest of the Re-
" gulations and Laws enacted by the Governor-General
" in Council for the Civil Government of the Territories
" under the Bengal Presidency," was published by Sir
J. E. Colebrooke. This " Digest" consists of no less than
three ponderous folio volumes. We may conjecture the
enormous mass whence so copious a digest was produced.
But the reader will be still more surprised, when he is
told that this immense body of " rule and regulation,"
instead
OF INDIA. S3
instead of defining rights, is principally taken up with
settling forms of procedure and judicial formulae ; and
that it contains not one word, or scarcely one, of the
law of India, which, indeed, the British Government,
in these Regulations, professes to administer to its native
Indian subjects : so that, after wading through this
waste of legislative wisdom, the student of law, suppos-
ing him previously qualified in Arabic and in Sanskrit,
has to commence his legal studies of Moohummudan and
Hindoo jurisprudence : a field not less extensive, nor
perhaps less beset with thorns, than that which he has
passed through.
In short, the rules which are to govern so many millions of
the natives of India, with our well-known maxim of igno-
rantia juris non excusat staring them in the face, are, if not
incomprehensible, certainly unknown. They may be said
to be, as laws, totally unintelligible. Existing partly in
English, partly in Arabic, partly in Sanskrit, they seem
as if enacted to be concealed rather than promulgated ;
the former language being unintelligible to the governed,
and the two latter to the governors. And to increase
this chaotic confusion, the codes of Menu and of Moo-
hummud are to be expounded by native expositors, who
profess, indeed, but do not understand them ; and to be
administered by European judges, who do not even profess
to understand either.
This, as a judicial system, can be approved by no in-
telligent being. So far, indeed, as separating the ex-
pounding and administering functions, I think I can see
in it a humble copy of the Moohummudan establishment
of a Kazee or judge, with a Mooftee to assist him: the
projector forgetting, however, that under the prototypi-
B 2 cal
4 LAW AND CONSTITUTION
cal system, the Kazee was himself a Mooftee, and equally
eminent with his coadjutor, or more so, for his know-
ledge of the law.
Were the fact unknown, it would appear incredible,
that the laws which are administered under the British
Government in India should, at this day, remain a mys-
tery, even to the judges who preside over their adminis-
tration; that there is no establishment under Govern-
ment, either in India or in England, in which the laws
and constitution of India are taught to their servants,
destined to sit as judges of the law : nay, that there is no
book, treatise, or other work, from which a competent
knowledge of the law may be acquired, as yet rendered
into our vernacular language.
It is, consequently, not much to be wondered at, if the
information of the general reader, relative to the " law
" and constitution of India," be extremely limited. Par-
ticular pursuits have led me to consider the subject ; and
although I do not hope to be able to satisfy all my readers,
yet I am confident that, whatever my success may be, an
endeavour to shew what " law and constitution" formed
the law and constitution of conquered India, at the period
of the statute in question, and was consequently alluded
to in it, will be favourably received.
Although, in strong and unreserved terms, I have ex-
posed imperfections known to exist, let it not be imagined
that my design, in the following pages, is only to criticise
or condemn. No one can be more fully sensible than I
am, how much necessity has been the parent of many
defects, and of the difficulty, perhaps impracticability, of
remedying them. Most confidently do I believe that there
is
OF INDIA. 5
is no individual connected with the Indian Government,
either at home or abroad, who does not make the welfare
of that country, and the prosperity of the British Govern-
ment over it, the most anxious wish of his heart. I am
sure, therefore, that those worthy and patriotic individuals
will not deny me the same benevolent motives, but will
ascribe my strong, plain, perhaps occasionally unmeasured
style and manner of expression, to the anxiety I feel to
co-operate with them, as far as my humble talents will go,
in the same most worthy cause, by endeavouring to point
out to those in power where and how to improve the sys-
tem of administration as adopted for India. To discover
defects is the first step towards improvement : and an im-
portant one it is, when, as in this case, those who have the
power have also the will to improve.
My first object of inquiry, then, is — What is the " law
" and constitution of India?" There are, I apprehend,
only two sources whence a satisfactory answer to this fun-
damental question is to be obtained ; namely, the law of
the conquerors, and the history of the country. From
these I purpose to draw such information as the compass
of my work may enable me to submit.
I am then to inquire into the nature of tenures, with
reference to the question, so often agitated, " In whom
" vests the property of the soil under the British govern-
" ment in India ; whether in the Sovereign, in the Zu-
" meendar, or in the Cultivator ?" In doing which, I
shall, first, shew the law applicable to the question ; and
secondly, note such historical records as may serve to
explain what, de facto, was the nature of such tenures
under our predecessor, the Moslem government of India.
I shall
6 LAW AND CONSTITUTION
I shall notice, also, the different kinds of tenure recog-
nized by the law : whence it will be seen what are heritable,
what are resumable ; how far the ancient tenures in ex-
istence at the Moohummudan conquest are good, and
what parts and portions of the soil could, at that period,
have been matter of transfer or settlement ; or to which a
proprietary right could otherwise be legally acquired.
I shall then advert to the tenures recognized by the
British Government, their origin and nature; whether
permanent or limited, free or liable to be assessed towards
the revenues of the state.
I shall afterwards shew the nature of taxation, and extent
thereof, as recognized by law under a Moohummudan go-
vernment ; what was levied by the Moslems in other con-
quered countries, as in Syria, Iraak, &c., and held by law
as precedents in case of future conquest ; what by law was
leviable in India ; and what de facto they did levy.
To these will be added observations on the permanent
settlement, and on the present revenue and judicial admi-
nistration, and system of police, as established under the
British Government in Bengal ; concluding with remarks
on the system of government formed by Great Britain for
India.
What is the " law and constitution of India," to which
the Legislature refers, as above ; by which it declares that
u the rights of the natives shall be protected ?" There
are two codes of law or constitutions known to us in India,
the Hindoo and the Moohummudan ; totally distinct, how-
ever, in themselves : so that, as they never could have been,
and certainly never were, combined, either the one or the
other
OF INDIA. 7
other must be distinctly pointed at. Is it the Hindoo " law
" and constitution," then, or the Moohummudan " law and
" constitution," that is meant by the Legislature as the law
and constitution of India ?
I must, however, pause here, and observe, that when we
speak of a " Hindoo law of India," we assume the pre-
vious existence of a paramount Hindoo government ; a fact
which ought first to be established. I ask for records, to
shew that there ever was a regular Hindoo government
established over India. We know that a number of petty
states, or Rajahships, existed at a late period, and even
now exist. These have been magnified into kingdoms
and independent principalities. Independent, indeed, they
may have been who held them, as in a rude state of society
every head of a family is independent, every chief absolute ;
but we have no authentic account of a Hindoo paramount
monarchy : whilst, on the contrary, Mr. Ward notices the
names of " fifty-three separate kingdoms" in India (vol. iii.).
Arrian tells us, according to Megasthenes, who lived about
300 years before the Christian era, " India was divided
into one hundred and twenty-two several nations ;" and we
are told that, so long ago as 1450 years before Christ,
India was conquered by the Persians ; and, as Dow states,
" paid tribute, and was ever after in some measure de-
" pendent on Persia."
" At the era of the war of the Mahabarut, the province
" of Bengal Proper formed three separate kingdoms,"
according to Hamilton. We speak of India as of a
single state ; but the Indians are not thus indiscriminate.
The various European nations are not better known and
distinguished, than are the kingdoms of " Dacshen,"
44 Dravira," " Ayodhya," " Pratishthana," " Magadha,"
" Gour,"
8 LAW AND CONSTITUTION
" Gour," &c. by their ancient writers. These had their
different laws and their different usages. What were those
usages? Who shall define the limits of those ancient
states, so as to tell us where those usages began, where
they terminated ? And, unless this were done, a new
law would be no less obnoxious because it might claim
to be " Hindoo law ;" for all history assures us, that the
yoke of the schismatic is not less galling than that of the
stranger.
Ferishta declares, that the Hindoos have no written
history better than the heroic romance of the Mahabarut ;
and Wilford says of them, that " with respect to history, the
" Hindoos have really nothing but romances — their works,
" whether historical or geographical, are most extravagant
" compositions, with little regard to truth." It is, indeed,
contrary to the analogy of history to believe, if there had
been a regular government over India, that in the course of
two thousand years, no one prince should have appeared to
rescue his country from the Persian yoke ; for that is the
period between the eras of the Persian and Moohummudan
conquest of India by Mahmood.
But supposing that their Persian conquerors suffered the
Indians to rule themselves by their own laws, to which of
the fifty-three separate kingdoms, according to Mr. Ward,
or one hundred and twenty-two several nations, as Me-
gasthenes has it, are we to go for the " constitution of
India?1' This is a question which must be answered,
before those who appeal to the laws of the Hindoos can ad-
vance one step ; since no extent of concession would satisfy
such a multitude of claimants. Is it, then, Hindoo Law of
Kingdom No. 1, or of Nation No. 122, we are to call " the
Law of India?"
Whether
OF INDIA. U
Whether we look to the laws of the Hindoos (I mean
those which have been given to us as such) for more than
we reasonably ought to do, I shall not say ; but assuredly
their real value is not great. Even their antiquity has
been questioned ; perhaps justly. It must be admitted,
however, by their most strenuous advocates, that, judging
of what may be yet to unfold of the Hindoo law by that
which has been translated, no high opinion of it can be enter-
tained. I will not speak irreverently of their code, as a late
historian does, who says, the laws of the Hindoos are
" puerile, and worse than puerile, stained with brutality11
(Mill.) ; but I am constrained to think that the law of
the Hindoos, as given to us, is neither so ancient nor so
valuable, " and certainly not so familiar to the people, as
There is a propensity in man to magnify the value of
whatever is rare or unknown that happens to be discovered
by himself. Sir William Jones was unquestionably an
eminent man, but he was occasionally addicted to the
above-mentioned propensity. Many of his followers, too,
have been somewhat enthusiastic ; and there is little doubt
that the fame of the Hindoo law and literature has been
augmented thereby. The propensity I advert to runs
strongly towards antiquity ; and, accordingly, we find that
Sir William takes some trouble to raise the value of his
Hindoo code in this respect.
" Of the Law of Menu," (or, as it is also written, Mun-
noo), Sir William Jones tells us, " we have some evidence,
" partly extrinsic and partly internal, that it is really one
" of the oldest compositions existing." Then he states
his evidence (which, however, amounts to little more than
mere conjecture), that the " original of this book must
" have
10 LAW AND CONSTITUTION
" have received its present form about 880 years before
u Christ :" and then, in a very significant manner, he adds,
" whether Menu, or Menus in the nominative, Menos in
" the oblique case, be the same person with Minos, let
" others determine."" But why did Sir William rest satis-
fied with this ? for it would have been just as easy to
prove, by etymology, a much higher antiquity for the Laws
of Munnoo, thus aptly enough : mun or min, " from," and
Noo, " Noah ;" that is, Minnoo, or Min-noo, from Noah ;
meaning that the work was, really, the production of the
second father of the human race, whom the Asiatics call
Noo, but subsequently converted into a proper name, as
is not very unusual. Thus, " the law Men-nod" may be
translated, " the law of Menu" or the law from, or of,
Noah. A lawyer ought not to have been satisfied with
such evidence.
All that Sir William asks, however, though granted,
would be very little satisfactory ; when, at best, he would
only establish the origin of the Hindoo law to be posterior
to the period when India ceased to be an independent
state, and became " tributary to Persia," on the authority
of the Mahabarut and of the historian above mentioned ;
that event having taken place 1450, instead of 880 years
before Christ, the date assigned by Sir William to the code
of Menu. It is averred, however, by Mr. Colebrooke, that
there is no such law as the Law of Menu, for that Menu
never wrote, or delivered, one word of that law. " Thus,"
says Mr. Colebrooke, " the two principal Codes of Hindu
" Law are usually cited as Menu's and Yajnyawalcya's.
" But, in the codes themselves, those are dialogists, not
" authors, and the best commentators expressly declare,
" that those Institutes were written by other persons than
" Menu and Yajnyawalcya." (Asiatic Res. vol. viii.)
Here
OF INDIA. 11
Here then the divine origin is gone, and the antiquity
rendered very doubtful !
But according to JElian (Var. Hist. lib. 4, chap. 1.) and
Alex, ab Alex. (lib. 4, chap. 17, quoted by Purchas), " the
" laws of the Indians are not written :" another difficulty
in the way of their antiquity. Sir W. Jones, indeed, at
another time, calls the compiler of a digest, who lived a
few centuries ago, " the Trebonian of India." The work
of this sage, whose name is Raghunundun, Sir William
tells us, is the grand repository of all that can be known
on the subject of Hindoo Law. (As. Res. vol. i.)
But for the sake of avoiding the discussion of a question
of difficult solution and of little consequence to my investi-
gation, and supposing the Hindoos to be in possession of an
authentic body of law, the point to be ascertained would
still remain : Is it the Hindoo " law and constitution,"
or the Moohummudan " law and constitution," which is
the " law and constitution of India ?"
That it is not the former I have undertaken to prove.
All must deem this, at least, probable, who advert to the
mere fact, that for the last six to eight centuries, the country
was ruled by the triumphant and intolerant Moslems. We
cannot believe, indeed, that a Moslem, who had the power,
even the legal power, to exterminate the Hindoos as idola-
ters, would have the will to adopt and to administer their
law and constitution, and to subject his victorious Moslems
to it. It is impossible to suppose that a Moslem, by exer-
cising, would contribute to the permanence of the laws and
constitution of an idolatrous and conquered people. The
Moohummudan prince, who should have attempted this,
would, by the sacred law of his saviour, have subjected
himself to the pains of apostacy ; and by the ordinary laws
of
LAW AND CONSTITUTION
of the human mind, to the contempt and execration of those
in whom alone he was powerful.
During the whole period of the Moohummudan history
in India, though we have seen that Hindoos were employed
even at the head of other departments, we have never heard
of a Hindoo judge ; and assuredly no Moohummudan
Kazee could ever have been found to administer the
laws of Menu. We find a Tudur Mull at the head of
Akbur's Treasury, but we have yet to hear of a Hindoo
judge.
The public law (I mean that publicly administered, as
well as that to which the sovereign could be a party, that
between the sovereign and the people), I conclude, there-
fore, was indisputably Moohummudan ; and that is the
only law with which, in a question of this nature, we have
any thing to do. The more tolerant princes may have
sanctioned indulgencies in cases of private succession, where
the interests of the Hindoos alone were the subject of dis-
cussion; but, in foro justitite, a question of private right,
even of inheritance, among Hindoos, could not have been
decided except by the Moohummudan law, which accord-
ingly provides for such questions, and declares that " they
" are to be determined as between Moslems," with
certain limitations, however, which are applicable alike to
all non-Moslem subjects, as well Hindoos as others. Even
on the delicate point of inheritance, the Moohummudan
law says, " a non-Moslem subject shall not take (inherit)
" in virtue of a marriage which by our law is illegal."
Zeylaaee, Surauj, Moheet, &c.* It would, indeed, be
absurd
* These are celebrated commentaries on the Moohummudan law,
as well as the Jaumeaa-oor-rumooz and Zauhedee, mentioned in the
following paragraph.
OF INDIA. 13
absurd to suppose, that questions of property in lands, of re-
venue, finance, police, where the rights, interests, or regula-
tions of the sovereign were involved, could ever have been re-
mitted to the decision of any tribunal but that of Islaum.*
Let us see what the law of the conquerors is.
By the Moohummudan law, the Daur-ool-Hurb, as a
foreign country or province is termed, becomes the Daur-
ool-Islaum, that is, becomes annexed to the Moohum-
mudan dominions, " by the mere act of conquest, and the
" exercise of even a part of the law of Islaum in it."
" That country is the Daur-ool-Islaum," says the Jau-
meaa-oor Rumooz, " in which the laws of the Mosle-
" meen prevail ;" and, adds the same writer, " it is stated
" by Zauhedee, that according to the unanimous opinion
" of the learned, the Daur-ool-Hurb becomes the Daur-
" ool-Islaum, by the exercise of even some of the laws of
" Islaum in it."*)" Profession of the Moohummudan faith on
the part of the inhabitants is not a condition necessary to
constitute their country a Moohummudan province. There-
fore, by the Moohummudan law, India undoubtedly was
the Daur-ool-Islaum : nay, is held by law to be so now ;
for it is not a necessary condition even that the sovereign
be a Moslem.
If
* It has been maintained by a learned orientalist, in a review of
tbe first edition of this work, that the Hindoo Law prevailed among
Hindoos during the Moohummudan government. But, if so, how
could they be declared amenable to the Moohummudan law too ? Yet
they are so, by all the Indian lawyers who have written on Moohum-
mudan law.
t Jaumeaa-oor Rumooz, voce " Seeur" or the military and poli-
tical law.
14 I,AW AND CONSTITUTION
If then, by law, the empire of India, by virtue of the
Moohummudan conquest, became the Daur-ool-Islaum,
that is, a part of the Moohummudan dominions, it would
have been absolutely contrary to law, even an heresy, in
its most formidable shape, to have suffered any law or con-
stitution to exist in India but that of Islaum. Every law,
even private right and interest, which existed in the country,
in the person of an individual even, prior to the conquest,
by that act alone perished ; and so strong is the Moohum-
mudan law on this point, that supposing even a Moohum-
mudan subject to have previously taken up his abode, and
to have acquired lands or houses, in India, by the mere act
of subsequent conquest by the Moslems, the lands of their
domiciled brother would fall to the conquerors, along with
those of the conquered infidel, although his personal pro-
perty would be secure to him.
" Nay, even (say the learned Zeylaaee and others) if a
" Moslem subject went into a foreign country (the Daur-
" ool-Hurb), and therein purchased lands, and that country
" were subsequently conquered by a Moslem army, such
" lands would be held as conquest, like those of the other
" subjects who are infidels.""
" Nay, if a Hurbee (an alien unbeliever) enter the
" Moohummudan dominions under a passport, leaving a
" wife and children, old or young, and property in trust,
" in his own country, whether in the hands of a Hurbee
" or of a Moslem therein, and were he to embrace the faith
" in the Moohummudan dominions, should a Moslem army
" conquer his country, all these (his wife, children, and
" property) are prize to the conquerors."*
Here,
* Surauj.
OF INDIA. 15
Here, then, we have not only the destruction of all
public law, but of all private rights, by the mere act of
conquest of an infidel country by a Moslem army. How
then can it be imagined, that the Hindoo law can have sur-
vived the Moohummudan conquest of India ?
The Moohummudan law of conquest is explicit ; and
the first act of the conqueror is required to be to carry the
law into effect, either by partitioning the spoil and lands
among the conquerors, or by fixing the khurauj, or public
revenue, on the lands, and the capitation-tax on the heads of
the conquered. The inhabitants are first called to embrace
the faith. If they become converts, they enjoy all the pri-
vileges of Moslems ; if they refuse, they are then called
upon to pay the capitation-tax ; for if they consent to this
and to pay the khurauj, it is not lawful to put them to
death ; but they have no rights which do not, thencefor-
ward, emanate from the Moohummudan law.
The following is the concise and emphatic rule of law
applicable to Moslem conquest :
" All land conquered by force of arms and suffered to
remain in the hands of the people, the Imaum shall fix
the capitation-tax upon the inhabitants (lit. on their
.. necks), if they do not embrace the faith ; and on their
lands the khurauj, whether they embrace the faith or do
16 LAW AND CONSTITUTION
This is the M oohummudan law of conquest ; and it is
mandatory, and not optional, to establish the law of
Islaum within the Moohummudan dominions. Even
questions of inheritance among non-Moslem subjects, as
I have before stated, are not left to the decision of any
other than a Moslem tribunal, but must be decided ac-
cording to the Moohummudan law, and by Moslem'
judges ; for every judge must be a Moslem, as is stated by
all writers on the law.
And it is of importance to note that in the u Futava-ool-
Aalumgeeree, a celebrated work on the Moohummudan
law, compiled in India under the patronage of Aurung-
zebe, expressly for the government of his Indian subjects,
the chapter of the Law of Inheritance, entitled " of inhe-
ritance among non-Moslem subjects," is preserved entire,
as compiled from the original law of Arabia. " They
" shall take? says this work, " among themselves, by
u blood and by compact, as Moslems take among them-
" selves. The progeny of a marriage which is legal by
" their sacred books, though illegal by our law, shall not
" be debarred from inheriting ; but the parties to a mar-
" riage which is illegal by our law, shall not take in virtue
" of such marriage.1" And the test of an illegal marriage,
as we find in the Surauj, is, " were the parties to become
" Moslems would the marriage be legal ?" Here, then,
the Moohummudan law, on the most delicate point, is main-
tained, and an exemplary liberality at the same time shewn
to the innocent progeny. The same is found in the other
works on the Moohummudan law ; but I mention this
work in particular, on account of the peculiarity of its
origin, being, in fact, a code of the law and constitution of
India, drawn up and compiled by the Emperor : not en-
acted
OK INDIA. 17
acted as a body of new law, but compiled and promulgated
as the old and established law of the land.
This is the written " law and constitution of India,"" as
published under the sanction of the Emperor himself, little
more than fifty years before the English power became
paramount in Bengal.*
We now come to the historical part of this branch of the
subject ; and I trust that I shall be able to corroborate,
from history, my position, that the " law and constitution
" of India" is Moohummudan.
From the time of the conquest of that country by
Mahmood the First, or about the year of our Lord 1000,
the Moslem power prevailed in India ; and we are told by
Ferishta, that this said Mahmood " was a virtuous prince,
" and reflected glory upon the faith of Islaum." And in
the year 1008, after he had destroyed the idols of Nagra-
cote, his answer to Annundpal of Lahore, when he begged
him to spare Tannesir, is well known. " I have resolved,11
said he, " by divine aid, to root out idolatry from Indiav
(( and why should I spare Tannesir ?" So also may I
refer to the congratulatory letter from the Khalif of
Baghdad, who was then the Moohummudan Pontiff, to
this same prince, on his success against the infidels, in
which he confers on Mahmood the title of " Guardian
" of
* After this, it was certainly a very gratuitous act of the British
government to get up another code for their Indian subjects, which
never before had any general currency, and had, at all events, been
silent for six hundred years, the revived law being, moreover, utterly
worthless in itself.
c
18 LAW AND CONSTITUTION
" of the faith of Islaum." It is not likely that such a
conqueror would hesitate to establish his laws.*
We then come to the conquest of Moohummud in the
year of our Lord 1192 ; to the history of his defeat of the
Hindoos, when Candi Rai, King of Dehly, was slain ; of
Cutub ood deen having been left as his lieutenant ; of the
successes of that warrior ; of the return of Moohummud
from Ghazna ; of his defeat of Rai Joy, Prince of Canoge
and Benares ; of his victorious march to the latter city,
where he destroyed above one thousand temples, which he
purified and consecrated to the true God. Cutub was then
confirmed viceroy of India ; and having defeated Himrage,
a relative of the King of Ajmere, he proceeded to Gooze-
rat, which he conquered, having defeated Bim Deo. Cutub
died in 1210 ; and we are told by the Moohummudan
historian, " that he regulated his kingdom according to
" the best laws of policy and wisdom till his death."
(Ferishta.)
The successor of Cutub, Altumsh, an usurper, marched
his army toward Bahar, and Bengal not, however, against
the Hindoos, for then Bahar was in the possession of Yeas-
ood-deen, a Moohummudan, and Bengal in the hands of
Nasir, also a Moohummudan. He then proceeded to Gua-
liar, which he took ; afterwards to Bilsay and Oojeyn, where
he plundered the temple of Makal, carrying from it the
image
* " It is evident," says Maurice, " that during the reign of
" Mahmood (1022), and through the whole of the Gazneean, Gourjde,
" and Charizmian dynasties, India boasted no supreme imperial head.
" If the Maharajah sat on the throne of Canoge, or Dehly, his rank
" could be only nominal."
OF INDIA. 19
image of Bickermajeet, which he ordered to be broken in
pieces in front of the great mosque at Dehly. Altumsh
died in 1235, esteemed a virtuous Moslem ; and, at this
time, so great was the influence of the officers of the laws,
that the Chief Justice, the Kazee-ool Koozzaut, having first
countenanced a conspiracy of the Omrahs, who met at his
house, to remove the vizier, was able thereafter successfully
to counteract the conspirators.
The youngest son of Altumsh succeeded to the throne,
under the title of Mahmood II. He was a virtuous and
learned prince, the patron of the learned. Mahmood II.
died in 1265, and was succeeded by Balin, a prince of
the most eminent virtue ; whose court at Dehly was then
reckoned the most polite and magnificent in the world. It
was, moreover, adorned by the accomplished Shuheed, the
heir apparent, whose mansion, in the language of modern
times, was every evening thrown open for the reception of
the learned of all classes, and where the philosophers, poets,
divines, &c. &c. assembled. Balin was, from the office of
prime minister, called to the throne by the unanimous voice
of the Omrahs. Such was his high character, that his
friendship was coveted by the kings of Persia and of Tar-
tary. He took especial care that none but men of merit
should be admitted to any of the offices of the state. " The
" festivals were kept with wonderful pomp, and he never
" forgot that he was the Guardian of the Laws." — " He
" prohibited the drinking of wine within his dominions."
(Ibid.)
Balin, as Dow tells us, " observed the Moohummudan
" law, and ordered the Soobahdar of Badown, Malik,
" to be put to death, in retaliation for the murder of a
" poor woman's son." Here is the Moohummudan law
c 2 observed
20 LAW AND CONSTITUTION
observed to the strict letter, in the most severe and exem-
plary manner ; the governor of a province suffering the
punishment of the law for the murder of the poorest
individual. Is it possible that the sovereign, who had
firmness to do this, would want either inclination or nerve
to enforce obedience to the laws ?
It was about this time (I e. about A.D. 1260) that the
Moghul Emperor of the neighbouring kingdom of Persia,
Ghazan Khan, having called a diet or assembly of the
most eminent sages and principal military commanders,
assisted by the learned professors, theologians, Kazies,
and superiors of the several religious orders in his empire,
ordered them to prepare a code of regulations for his
dominions, prefacing his orders with an address full of
the most magnanimous sentiments, which proved alike the
liberality of the individual prince and the regard of
Moslem potentates to their established faith in those times.
See Kirkpatrick's Institutes of Ghazan Khan, published in
the New Asiatic Miscellany, page 171.
Feroxe //., again, in the case of the celebrated Seyud
Mullah, prohibited among his subjects the ordeal by fire,
" because it was contrary to the Moohummudan law."
(Dow.) This was about 1290.
Allah /. was a tyrant ; and Ferishta tells us " he broke
" through all the laws and customs which were by the
" Moohummudan law left to the decision of the courts of
<€ justice: he, however, studied the law himself, under
" the tutelage of a Kazee." This was in the year 1300.
So we are told that Moohummud III. was strict with respect
to public and private worship, and ordered the five daily
prayers to be read in the mosques. " He sent an em-
" bassy
OF INDIA. 21
" bassy to Mecca, to procure the confirmation of his title
" to the empire from the Khalif." Reigned from 1324
to 1351.
Timour I. invaded India in 1327. The Soobadars of
the provinces had rendered themselves independent during
the previous troubles. Timour confirmed all those who
submitted to him, and determined to hold possession of the
empire.
It is to be observed, that at this time the Soobadars were
all Moslems.
Of Guzerat the Soobadar was Azim.
Malwa Dilawer.
1 Khaja Jehaun, who call-
" \ ed himself King of the
j East.
Khurrah
Juan pore
Lahore ^j
Debalpore /Khezzar.
Moultan .J
Samana Ghaleel.
Biana Shums.
Moliabah Moohummud.
Mewat Mobarik and Buhadoor.
And it is stated by Timour himself in his Institutes,
" that he established his kingdom on the religion and
" law of Islaum ; that the first of his regulations was to
" promulgate the religion and law of Moohummud in every
" town, city, and province; and that he regulated his
" empire by the Moohummudan religion and law."*
" I appointed.11
* Page 176.
%% LAW AND CONSTITUTION
" I appointed," says he, " one of the descendants of
" Aalee, a man of talent, to the office of Suddarut (equi-
" valent to our Lord Chancellor), to take charge of ap-
" propriations by wukf, and to appoint incumbents to
" those benefices, and to nominate to every city and pro-
*e vince Kazees and Mooftees, and police officers, and to
" assign sey-oor-ghaul (public funds) and maintenance to
" the descendants of the Prophet, to the learned, the holy
4< men, and those to whom the law gives a claim for public
" maintenance."
In 1291 the Deccan was conquered by Allah, and
Moohummud III. made Dowlutabad the capital of his
empire.
" In the reign of Secundur I. a Moohummudan had a
" dispute with a Brahmin on the subject of his idolatry,
" in which the Brahmin said he believed the same God to
" be the object of worship of both, and that the Moohum-
" mudan and Hindoo religions were equally good. The
" Moohummudan summoned the Brahmin before the
" Kazee. The case made a great noise in the country,
" and the Emperor called together all the Moohummudan
" doctors of fame in the empire to decide the question.
" The decision was that the Brahmin should be allowed
u the option of the faith or the sword. He chose the
" latter and was put to death, A.D. 1499-"*
Saber, who settled in India A.D. 1525, assumed the
title of Gha%ee, which signifies fighter for the faith.
Akbar, in 1556, succeeded his father Hoomayoon, the
son
* Dow.
OF INDIA. T6
son of Baber. This prince, celebrated for his wise govern-
ment, framed his " Institutes" almost literally after those
of his renowned ancestor, Timour ; and both institutes, as
well as the code of Ghaznan Khan, the Moghul Emperor
of Persia, in A.D. 1260, are inall essential points strictly
conformable to the Moohummudan law. The whole esta-
blishment of a Moohummudan government is clearly seen
in those Institutes, combined, however, with other regula-
tions suitable to the times and to the mixed population of
the empire: a power which the Moohummudan law ex-
pressly recognizes and vests in the sovereign.
The capitation-tax on the Hindoos, the most ignominious
lawful impost of Islaum, existed as late as the fortieth
of the reign of Akbar, who was the most liberal, if not
enlightened, prince of his time. It was remitted by that
most tolerant monarch, though contrary to his religion and
law, probably at the intercession of his celebrated financial
minister Rajah Tudur Mull. It was revived, however,
again by Aurungzebe. Akbar died in 1605 ; and his son,
Selim, afterwards Jehaungeer, succeeded him by consent of
the nobles, " after having taken the oath to maintain the
law of Mahomet." *
Between Akbar and Aurungxebe, two princes in lineal
descent intervene, Jehangeer and Shah Jehan. Aurungxebe
deposed his father, Shah Jehan, in 1658, and ascended
the throne. He reigned about fifty years: and Orme
states " that he may be esteemed one of the ablest princes
" who have reigned in any age or country." His devoted
attachment to the religion and law of his fathers has pro-
cured him from some the appellation of bigot ; which
opprobious
* Methwold.
LAW AND CONSTITUTION
opprobrious epithet, however, in its common acceptation,
implies a degree of weakness altogether at variance with
the character of so great a prince.
The affecting story of his brother, Prince Darashekoh,
is well known, and furnishes us with a strong proof of the
scrupulous attention paid in those days to the forms of law.
In his flight to escape from Aurungzebe, this prince took
refuge, by particular invitation, with Malik Juwan (or as
the translator of the Seir-ool Mootuakhereen has it, Malec
Djeven), a Zemeendar on the western confines of India,
who had been condemned to die, but was pardoned by
Shah Jehan, at the intercession of the young prince, now
his guest in distress. The wretched Afghan delivered
Darashekoh, with his infant child, into the hands of his
brother and persecutor, Aurungzebe ; for which most per-
fidious act he rewarded Malik with the title of Bukhtear
Khan, and the rank of commander of a thousand horse.
This man made his appearance at court amid the execra-
tions of all. He had the temerity to pass through the
streets of Dehli in the day ; but having been discovered
by the populace, he was pelted with dirt and stones, and
an affray took place in which some lives were lost. It
might be expected that the Emperor would himself have
punished the ringleaders of this riot. No ; " so scrupu-
" lously was he attached to the forms of law," says this
writer, " that he did not, but delivered them over to the
" law. They were condemned by the Mooftees and
" other law officers, and executed with all the forms of
" law." — " Nor did he put to death the prince without a
" legal sentence passed upon him, and attested by the
" signatures and seals of all the doctors." — " Darashekoh
" was condemned and executed for apostacy." This hap-
pened about the year 1658.
This
OF INDIA. 25
This prince (Aurungzebe), as well as his great pro-
genitors, Abkar and Timour, gave his subjects a code of
laws Those of the former were imperfect. Aurungzebe
(also called Aalumgeer) collected the most learned lawyers
from all parts of India, and employed them for years in
preparing a code of law for the use of his judicial and
revenue officers, and of his subjects; on which he is said
to have expended ^500,000. This celebrated work, after
his own name, was called the " Futavah-ool Aalumgeeree ,-"
the greatest, and certainly the most lasting, monument of
his reign. This is, perhaps, the most valuable work on the
Moohummudan law extant. It is a collection of decisions
on supposed cases of the highest authority in India, and
not less so throughout the Turkish dominions, where it is
better known by the name of " Futavah-ool Hind," or
" Indian (collection of) decisions."
The " Futavah-ool Aalumgeeree " is the last work on
the law of India promulgated by royal authority ; and
ought, therefore, to be considered as part of the written
law and constitution of that empire.
Aurungzebe died in 1707 : only fifty-eight years before
the provinces of Bengal, Behar, Orissa, and Benares, were
ceded to the Company.
So great was the influence of the law officers under
the government of Aurungzebe, that even the governors
of the provinces in which they were placed were obliged
to court and to succumb to them : a remarkable instance
of this is mentioned in the Seir-ool Mootuakhereen, in
the case of the governor of Boorhanpoor, an illustrious
nobleman, and allied both to the Emperors of Iraun and
Hindoostan. " The governor charged two witnesses, on
" the
26 LAW AND CONSTITUTION
" the evidence of whom the Kazee had previously de-
" cided a suit, with perjury, which they confessed ; on
" which the governor said, ' these are the men on whose
" evidence you have deprived a poor man of his house."*
" The Kazee, in a rage, charged the governor with per-
" sonal enmity, and a desire to make him appear ridi-
" culous; but, added he, ' I inform you that you have
" rendered the law itself ridiculous, and have conse-
" quently fallen under its lash, and merit its punish-
" ment. The credit of these witnesses is not yet affected ;
" so far from it, that if those very men were now to
" stand up in court and give evidence that you drank
" wine yesterday, I should sentence you immediately to
" the punishment which the law awards for that offence.*1
" The Kazee, however, resigned in disgust ; but so strong
" was this kind of influence at court, that the governor of
" the province thought it expedient to visit the Kazee, and
" to beg of him to resume his office, which he did with as
" much overbearance as before."
But this influence of the officers of the law could only
exist through the veneration in which the law itself was
held, although the will of the monarch did occasionally
oppose the judicial authorities; for it is recorded of Au-
rungzebe, that his chief law officer was obliged to resign
his office, and to quit the kingdom, for giving a decision
contrary to the wishes of the King, on the question, " how
" far it was lawful for his Majesty to prosecute his con-
" quests arid wars against the King of Beejapore and
" Haiderabad" (Moslems). Nevertheless, the successor
of the banished judge, Kazee- Abdoolla, pronounced the
same opinion, adding, " that the Kings of Haiderabad
" and Beejapore, as well as their troops, were Moslems ;
" and that the imperial army being also Moslems, the
" continual
OF INDIA. 27
" continual massacre which took place was repugnant to
" the sacred law."" He also was banished the court, and
disgraced. But these facts exhibit in a striking light the
estimation in which the law was held by the nation ; and
shew how vain it is to suppose that such inflexible officers
of the law, who declared its precepts in the face of the
King, would compromise it for the code of the Hindoos,
whom they despised as a degraded people, and detested as
idolators !
Ferukhsere continued the capitation-tax ; and we are
told that, " at the supplication of Adjeet Sing and Rut-
" tunchund, his successor, Ruffee-ood-durjaat, relieved the
" Hindoos all over the empire from the opprobrium of the
" capitation-tax." This was about the year 1720.
And this said Ruttunchund is stated by Ferishta, " in
" the reign of Moohummud Shah, to have so usurped the
" powers of every office, that he nominated the Moohum-
" mudan Kazees of the provinces," 1720.
The capitation-tax seems afterwards to have been levied,
as it is stated to have been again repealed at the interces-
sion of Maharaja Jay Sing, " much to the satisfaction of
" the Hindoos,"" by Moohummud Shah, after Ruttunchund
was put to death ; and Moohummud Shah was the last
emperor of Hindoostan who possessed any real authority.
He was succeeded, in 1748, by Ahmud Shah, who in 1753
was succeeded by Aalumgeer II., who was in 1 760 suc-
ceeded by the late emperor Shah Alum.
Thus, I have endeavoured to corroborate the written
law, by a chain of historical facts and events, through a
period of nearly eight hundred years, from which it is
obvious
28 LAW AND CONSTITUTION
obvious that no other law but the Moohummudan had any
existence within the Moghul dominions in India. No
Moohummudan lawyer can read the history of India with-
out conviction on this point ; which, had our English his-
torians of India possessed any knowledge of that law, could
not now have required any proof. But the fact is, that
they were all totally ignorant of the Moohummudan law
and constitution, and could therefore not discriminate what
usages arose out of it. They could give no distinct ac-
count of them, nor explain in intelligible language the
nature of the offices under government, of the taxes levied,
or tenures by which the lands were held ; yet they have
not hesitated to give their opinions ; and Mr. Mill, even at
this day, on the authority of Orme, tells us that " after the
" Moohummudan conquest, the Hindoos continued to be
" governed by their own laws and institutions.11* Dow
again says, " the Hindoos are governed by the laws of
" the Koran, or by the arbitrary will of the prince."-f-
But if the Moohummudan law and constitution did not
exist in India when the government of that country fell
into the hands of the English, let me ask what law and
constitution did exist ? Was it the law of the Maharattas ;
for they were, during the decline and fall of the Moghul
empire under the successors of Aurungzebe, the most
powerful state in India ? But their origin is scarcely so
early as our own in India.
The first time they were recognized as a power was in
the reign of Buhadoor Shah, A. D. 1701 (A. H.) 1121,
who made an agreement with Simbajee and his sons, Ram
Rajah and Rao Rajah, that they should have a tenth or
tithe of the husbandman^s share of the crop over the pro-
vinces
* Vol. i. p. 437. t Preface, p. 36.
OF INDIA. 29
vinces south of the Soobah of the Dukun (viz. Poonah,
the Conkan, Sec.) This they called the Dus Mukhee, or
tenth handful.*
Or if the Hindoo law is to be maintained, is it to the
provincial school of Bengal, as Mr. Colebrooke calls it,
or to that of Benares, we are to go for Hindoo law ? For
the Hindoo law of Benares is different from the Hindoo
law of Bengal.
The Edinburgh Reviewers say, and on that point we
are agreed, " the Act of Parliament, which enjoined that
" the natives should be protected in their rights according
" to the laws and constitution of India, meant unques-
" tionably such rights as existed when the India Company
" obtained possession. It certainly never entered into the
" imagination of any one, at home or abroad, (but it
" certainly did,) that it was necessary to revert to laws,
" institutions, and rights, (meaning Hindoo laws,) which
" a lapse of six centuries had obliterated from the minds
u of the natives,"11'!' meaning six centuries since the Moo-
hummudan conquest. And again, " that the civil and
" military institutions, the judicial and financial arrange-
" ments of these courts (of the princes of the Deccan),
" were formed on the model of those adopted by the Maho-
" medan emperors of Dehli. Nearly six centuries have
" elapsed since the Hindoos have been accustomed to
" those institutions and arrangements of the Mahome-
" dans, which have not only superseded, but condemned
" to oblivion, the system of justice and taxation congenial
" with the ancient habits and prevalent superstition of
" the natives."! And again : " It is sufficient to observe,
« that
* Seir-ool Mootuakhereen. f Vol. xviii. p. 359.
I Vol. xviii. Review of Wilks's Mysore.
30 t.AW AND CONSTITUTION
" that for many centuries all knowledge of those laws
" (Hindoo laws) has been effaced from the memories of
" the natives."
Finally, in the firmaun, or deed, executed by the late
king, Shah Alum, dated the 29th October 1764, convey-
ing to the English Company the province of Ghazeepore
and the rest of the zumeendarry of Rajah Bulwaut Sing
(Benares), it is expressly stipulated by his majesty, " that
" the Company must use their best endeavours to pro-
" hibit the use of things of an intoxicating nature, such
" as are forbidden by the law of God, in driving out
" enemies, in deciding causes and settling matters agree-
" ably to the rules of Moohummud and the law of the
" empire ,-" meaning clearly, agreeably to the law of
Moohummud, which is the law of the empire. I have
only to add, that universal tradition confirms what I
maintain. There is not one native of India, that knows
the difference between one law and another, who is not
as perfectly aware that the Moohummudan law was the
law of India, as that the king of India was a Moohum-
mudan sovereign.*
* I am aware that a late writer, in a review of the first edition of
this work, has disputed the point maintained by me, that the Moo-
hummudan law was the law prevalent in India under the Moohum-
mudan government ; but he has not supported the assertion by any
authority, or proof, whatsoever ; and he has been so unguarded as to
yield the following concession, which in truth gives up the whole
question. He says, " We have no objection to admit, with our
" author, that, under the Moslem princes, the Mahomedan was, in
" a general sense, the public law of India. It was the law which the
" conquerors brought with them, and the conquered were supposed
" to conform to it." Though, indeed, he afterwards " denies that
" no other law had any existence within the Moghul dominions in
" India." I dissent from this. But, in the present inquiry, " it is
" the
OF INDIA. 31
" the public law" that is important; it is the "public law of a
country which denotes its " law and constitution:" and this is what
is here maintained. Let me ask, what Aurungzebe, in 1668, thought,
when he issued the following decree : " We have deemed it expedient
" to issue our royal edict to all officers intrusted with the manage-
" ment of affairs throughout Hindoostan, directing them to levy the
" khurauj in the mode and proportion enjoined by the holy law and
" the tenets of Aboo Huneefah ?" Here, then, is a positive edict,
as far as the revenue-laws are concerned, declaring that the law of
the land is Moohummudan, and according to the tents of the Hunee-
feeah Soonnees.
But independent of all other proof, is the treaty just adverted to,
a document of no importance ? It is a common article of treaties,
to stipulate for the continuance of the laws of the conquered pro-
vince ; and is such a stipulation not held binding ? On what prin-
ciple, then, are we to deny the same obligation to lie on us, in a
treaty with the Moghul Emperor, which we should hold sacred with
all other monarchs ? Nay, even by the law of England, this doc-
trine is borne out ! For Blackstone, in treating of what countries
are subject to the law of England, says: " But in conquered or ceded
" countries, that have already laws of their own, the king may, in-
" deed, alter or change those laws ; but till he does actually change
" them, the ancient laws of the country remain, unless such as are
" against the law of God ;" as in the case of an infidel country, it
might so be, that such laws existed as are against the law of God.
TENURES UNDER THE
CHAPTER II.
ON THE NATURE OF TENURES, ACCORDING TO THE LAW
OF INDIA, UNDER THE MOOHUMMUDAN GOVERNMENT.
THUS I conclude that I have established beyond contro-
versy, that the Moohummudan law and constitution was
the established " law and constitution of India," at the
time the authority of the British became paramount in that
Empire ; and that it is that system of laws to which the
British Legislature must be held to have alluded, as above,
seems to be a necessary consequence.
To the Moohummudan law, therefore, the question of
law, with respect to the second branch of our inquiry, must
be referred, viz. What is the nature of landed tenures
under a Moohummudan government; more particularly,
what is the nature of such tenures under a Moohummudan
Huneefeeah government ? For it was and is the law of
the Huneefeeah sect of Soonnee Moslems which, it is uni-
versally admitted, prevailed in India.*
In whom does the real and indefeasible right of property
in the lands of Bengal vest ? In the sovereign, or in the
zumeendar, or in the cultivator ? This is a question which
has puzzled, in no small degree, many who are well " versed
" in India affairs."
The learned body (Edinburgh Reviewers), to which I
have
* It may be noticed, that the Turks are of this sect of Moslems.
MOOHUMMUDAN GOVERNMENT. 33
have referred, rest the whole question upon this: — Are
these zumeendars, by the laws of the country, the proprie-
tors of the soil ?* And all must admit that they are right
so far ; that the law of the country must decide the point :
for to what other tribunal can such a question be referred ?
It is my intention, believing that I have shewn what law
is the law of the country, to point out what that law says
on the case.
But before proceeding to discuss a question of this nature,
it is necessary we should define what we understand to be
the meaning of the terms which are important in it : the
sovereign, the xumeendar, the cultivator.
What is meant by a sovereign every one knows ; but the
learned in the East define him to be " that power, than which
there is none higher, and to which there is no equal in a state."
The word Zumeendar, generally rendered land-holder, is a
relative and indefinite term ; and does no more necessarily
signify an owner of land, than the word Poddar signifies
an owner of money under his charge ; or an Aubdar, the
proprietor of the water he serves up to his master ; or a
Soobahdar, the owner of the province he governs, or in
military language, the owner of the company of sepoys he
belongs to ; or Kellaadar, the proprietor of the fort he
defends ; or Thanadar, the owner of the police-post he
has charge of. On the contrary, I might venture to assert
that the affix dar, according to the idiom of the Persian
language, has more of a temporary signification : it imports
more an official or professional connexion between the
person
* Edinburgh Review, vol. xv., Review of Voyage aux Tndes
Orientales.
34 TENURES UNDER THE
person and thing connected, than a real right in the former
to the latter ; as Fojdar, though the foj, or troops, are the
king's ; Tehseeldar, though the rents collected belong to
the government; Amildar, though the Amil acts for
government ; Beldar, Tubldar, though the spade or axe
are the property of the master. I say, the word Zumeen-
dar imports nothing more necessarily r, than that a rela-
tion exists between the person and the %umeen, or land.
What that relation is, forms part of the subject to be
discussed.
The word cultivator I understand to mean the person
who, by his own labour, or that of his family or of his
hired servants, causes the ground to produce, and reaps
the crop ; who receives no wages, who has not hired the
land, neither borrowed it from any one; or at least,
there is no record or tradition, or any existing evidence of
his having done so. These are the significations I would
be understood to give to the terms defined.
A cultivator of the above description stands, as man
originally did, " the lord of the earth/' All rights claimed
over such a man are incidental ; or, as the eastern logicians
.#
term it, liijU- " hadesun : " and upon him who sets up an
incidental claim, the burden of proof lies, because his plea
sets forth that which is contrary to the radical order,
or state, of the subject-matter of claim.
But it will be said, this cultivator gives something to
another, in name of the lands which he holds, and there-
fore he cannot be the real owner ; for paying is an acknow-
ledgment of a superior, and the act of a vassal. I appre-
hend that this is a feodal idea, and that necessarily it has no
real foundation. Let it be remembered, that paying for
an
MOOHUMMUDAN GOVERNMENT. 35
an equivalent, as in a purchase and sale, or in discharging
a debt, is exchanging one commodity for another ; that
paying or giving without an equivalent, is an act which
rather denotes superiority in the giver; and that only
when it is to appease and to avert an evil, which we dread,
is giving indicative of inferiority.
But admitting that the giving of something by the cultr
vator is an acknowledgment of a right existing in another,
we shall find that all the claimants, from the cultivator to
the sovereign, are equal in this respect. To whom does
the cultivator pay ? To the zumeendar. But does this
constitute him the proprietor? Certainly not. If the
zumeendar were actual owner of the lands from which the
something is paid, it is clear that he might either retain
what he receives or give it to whom he pleases ; because
the right to the proceeds of actual property must be
indefeasible, like actual property itself. But we find, on
the contrary, that the zumeendar, in name of those very
lands, must pay either all or part of what he receives,
also, to another ; in this point of view, then, his right is
not stronger than that of the cultivator : he receives from
one and pays to another; and, therefore, can only be
deemed a channel through which the produce of the soil
flows from the cultivator to the public treasury of the
sovereign. But even here it does not rest. Though we
cannot so easily trace it, yet its transmission through the
sovereign for the exigencies of the state, is no less certain
than its course through the channel by which it flowed to
him. If this be true, then it follows that payment is as
little a test of vassalage as receipt is a proof of property.
For whose benefit, then, does this stream flow which
contains the produce of the soil ? Unquestionably for the
D 2 benefit
36 TENURES UNDER THE
benefit of the people. All contribute towards relieving the
public wants, all enjoy their share of public prosperity.
Some give their aid in one way, some in another. One
man serves the state in person, one gives so much from
his land, another gives so much from his flock ; and it
would appear as reasonable to say that the sheep producing
wool or lambs are not the property of him who contributes
a lamb or a pound of wool (or their equivalent in money),
as that the land producing wheat or barley is not the pro-
perty of him who contributes a bushel of wheat, or a mea-
sure of barley, or an equivalent in money.
But as by the Moohummudan law the sovereign is con-
sidered only the trustee of the people, we must identify
him with them. The people, by law, claim only a portion
of the produce of the soil as their right ; and as no trustee
can have a stronger claim than his constituent, the right
of the sovereign must also be limited to a portion of
the produce, and a right in the produce is not a right
in the soil.
And with regard to the zumeendar, who resembles the
sovereign merely in receiving and paying, if the right of
the sovereign on these grounds (of receiving and paying)
may not be admitted to the soil, that of the zumeendar
must fall of course ; for since we have seen that both are
merely instruments, or channels, through which its pro-
duce is collected, both claiming on the same grounds, if
the greater fall the lesser cannot stand.
This seems the natural state of the case, and of the rights
of the parties claimants. Let us see how far it is conformable
to the law of the land ; and if historical facts should cor-
respond, the corroboration will be so far at least satisfactory.
We
MOOHUMMUDAN GOVERNMENT. 37
We must not forget that the conquerors of India had
a written laiv, by which, in other matters at least, we know
and admit they were guided. That law is extremely
minute on this particular subject, and particularly speci-
fies the mode of settlement of other conquered countries ;
might we not therefore assume, even without farther proof,
that the settlement of conquered India was influenced by
that law ?
Hindoostan was subject to a Moohummudan govern-
ment for more than seven hundred years before that of the
English was established over Bengal. The laws which
existed during that period were, as I have shewn, Moohum-
mudan, and according to the tenets of Huneefeeah Soon-
nees. By the doctrine of this sect, therefore, I conclude
the question of law must be determined. To appeal to the
laws of the Hindoos on this point, would be just as satis-
factory as reference would be to the laws of the Britons,
administered by the Druids, for the nature of tenures of
land now in England.
India was conquered by the Moslems by force of arms.
If so, by law, the land must either have been partitioned
among the conquerors ; in which case every individual who
bore arms would be entitled to an equal share without re-
spect to rank, but a horseman to double the share of a foot-
soldier, and the land would be subject to a tenth of its
produce, and thence termed ooshree, or tithe-land, from
o ?
ooshr jZ~z tenth: or it must have been settled on the con-
quered inhabitants, and the khurauj, or land-tax, imposed
on their lands, and thejixeeah, or capitation-tax, on their
heads, as the Moohummudan lawyers express themselves.
If, then, the land had been divided among the troops, no
one
38 TENURES UNDER THE
one who is not a Moslem, or who has not purchased from a
Moslem, or received by some other legal mode of con-
veyance, can be a lawful proprietor of land. I say, con-
veyance; for it could not descend by inheritance from
a Moslem to a Hindoo or other non-Moslem. " There is no
" inheritance between a Moslem and an unbeliever.1' The
Hindoos admit of no proselytes ; and if they did, by the
Moohummudan law, the crime of apostasy would occasion
forfeiture of property. If the land were settled on the
inhabitants, as was done when the Moslems conquered the
sitwaud of Irauk, Syria, and Egypt, (and doubtless
India also), the land would be termed khuraujee, or sub-
ject of the khurauj ; and the law regarding it would be
as follows:
" The land of the suwaud of Irauk is the property of
" its inhabitants. They may alienate it by sale and dis-
" pose of it as they please ; for when the Imaum conquers
" a country by force of arms, if he permit the inhabitants
" to remain on it, imposing the kurauj on their lands
" and the jizeeah on their heads, the land is the property
66 of the inhabitants ; and since it is their property, it is
" lawful for them to sell it, or to dispose of it as they
" choose." — SuraTij-ool VTihaT/j. That is, by any mode of
transfer legal by the Moohummudan law.
The word khurauj, and almost all the other revenue,
judicial, and financial terms, remaining in use at this day in
India, throw some light on the subject. La khurauj (or
as it is more generally written, lackerage) is one of those,
and denotes a right in the soil, u without any impost.1''
The word is £J/£* ^ not subject to khurauj. Khurauj f^/*- ?
from *gjj£*khoorooj " to come out of, or " be out,"" Heb. :nn
fchuruj,
MOOHUMMUDAN GOVERNMENT. 39
khuruj, " coming out of a narrow place." Psalms xviii,
verse 45.
The meaning of the word suwaud A\y+ of Irauk, is
" the lands of the province,"11 as the same author informs
us ; adding, that this province is called suwaud " on ac-
" count of the verdure of its trees and of its cultivation.""
" The Hebrews have TO sud, also HTO sudah, " land, the
" ground."" The word in the above quotation, translated
o
" property," is in the original LL£Lc milky which in law
signifies indefeasible right of property ; and the word
rendered " inhabitants" is in the original J>&\ ahl, the
import of which is simply that of dwelling, residing on the
lands; as they say, *pdl Jjb\ ahl-ool-busrah, the inhabi-
tants of Busrah.
From this we see, that if the inhabitants of India were
suffered to remain on their lands on paying the above
impost, the right of property in the sovereign is gone at
once ; and if it was partitioned among the conquerors, the
alienation is equally complete. The question at issue,
therefore, is shortened by one claim at least. But, in
order to determine the other two claims, we must see what
persons are meant by the ahl9 who are thus vested with
indefeasible right of property: for it may be said that
these were tlie former proprietors of the soil, and that, by
this settlement, is meant merely a confirmation of former
rights. But to show that this is not the case, it is only neces-
sary to say that, by the Moohummudan law, when a Moo-
hummudan army conquers a province by force of arms,
every right and interest, which the conquered inhabitants
before possessed, ceases and determines, by the very act of
conquest ; that the sovereign has, by law, the power even
of
40 TENUHES UNDER THE
of carrying the conquered inhabitants into captivity, and
reducing them to slavery, or of suffering them to remain
free as zimmees, as was done with the inhabitants of Irauk,
abovementioned ; or of removing the former inhabitants,
and placing another people in it, as zimmees. By suffer-
ing the ahl, the inhabitants, however, to remain under
the conditions required by law, viz. as zimmees, and to pay
the khurauj and capitation- tax, the property of the soil is
established in them, not continued.
But who are the ahl here spoken of ? This is the only
question now remaining: and I answer, it will appear
that they are those who cultivate the land. They, the
00^-, -i
cultivators, pay the khurauj, and are termed yofl \ <~->j
rubb-ool-arz, or masters of the soil. This would be suffi-
ciently apparent merely by attending to the circumstance
above related, viz. that the Imaum, when he conquers an
infidel province, has the power of removing the ahl or for-
mer inhabitants, and of placing another people in it as
zimmees.
But the great Huneefeeah lawyer, Shums-ool-Aymah-
oos-Surukhsee, in speaking of khurauj, on the question, —
what is the utmost extent of khurauj which land can bear ?
— says, " Imaum Moohummud hath said, regard shall be
" had to the cultivator, tejj ^ to him who cultivates.
" There shall be left for every one who cultivates his land
" as much as he requires for his own support till the next
" crop be reaped, and that of his family, and for seed.
" This much shall be left him : what remains is khurauj,
" and shall go to the public treasury ." Here there is no
provision made for, no regard paid to, a zumeendar, who
contributes nothing to the produce of the soil. We have
here
MOOHUMMUDAN GOVERNMENT. 41
here no ten per cent, malikana to u recusant zumeen-
" dars."
Farther, the rate of khurauj leviable from land was
fixed ; not, however, with reference entirely to the soil,
but to the kind of crop which it produced : for instance,
by one mode of settlement, a field which produced wheat
paid a kufeez of wheat and a dirhum in money, for every
" jureeti" of sixty measures square, whatever the quantity
of the produce might be ; a vineyard or field which pro-
duced grapes, paid ten dirhums ; and so on. But the same
author says, " if the cultivator choose to cultivate a more
" valuable crop in a field which before produced one
" less valuable, he shall pay the khurauj of the superior
" crop :" and again, " when the possessor of khurauj ee
" land is unable to cultivate it," Aboo Yoosuf hath said,
" the sovereign shall lend him, from the public treasury, as
" much as will enable" him to cultivate, taking from him a
" surety, and he shall enter into a bond to cultivate;
" and when the grain is ripe, government shall take the
" khurauj ; but that which was lent him from the public
" treasury shall be a debt against the person (of the pos-
" sessor) : or government may sell the land to another
" who can and will cultivate it. This, however, only
" when such possessor (jojficl^ is unable to cultivate by
" being in poverty ; for when he is wealthy, the sovereign
" shall call him into his presence and say to him, Why
" have you not cultivated your land ? He shall not, how-
" ever, compel him to labour ; but he shall take from him
u the khurauj, because he left his land uncultivated when
" he had the power of cultivating,"
Here there is no reference to any one but the cultivator,
who is emphatically styled rubb-ool-arz, the master of the
land,
TENURES UNDER THE
land, and the Imaum: and what is here meant by the
imaum is the sovereign, or his officers appointed to collect
the tax.
The same author adds : " It is proper that the sovereign
" appoint an officer for the purpose of collecting the khu-
" rauj from the people in the most equitable manner. He
" shall collect the khurauj to the best of his judgment, in
" proportion as the produce is reaped. When lands
" produce both a rubeeaa crop and a khureef crop, when
" the rubeeaa crop is gathered, he shall consider, according
" to the best of his judgment, how much the khureef crop
" is likely to produce ; and if he think it will yield as
" much as the rubeeaa he shall take half the khurauj from
" the produce (lit. c the grain1) of the rubeeaa, and post-
" pone the other half to be taken from the produce of the
u khureef" Here we see the minutest detail : and who
are the parties ? the sovereign, or his servant, and the
cultivator.
The truth is, that between the sovereign and the rubb-
ool-arz fjoj^Lljj (who is properly the cultivator), no one
intervenes who is not a servant of the sovereign : and this
servant receives his hire, not out of the produce of the
lands over which he is placed, but from the public treasury,
as is specially mentioned by every lawyer.
But should a possessor of land ^j^j rubb-ool-ar%,
choose to cease from cultivating the land himself, he may
let it for hire to another, or lend it to him : because, if he
had not this power, his right as a proprietor would be de-
fective ; but having this power, of giving the lands he cul-
tivated himself to another, without reference to any third
party, as a zumeendar for instance, his right in them is
complete.
MOOHUMMUDAN GOVERNMENT. 43
complete. " But though he let his lands, or give the use
" of them voluntarily to another by any contract, the
" khurauj is still due by the lessor, for he is held the culti-
66 vator, because he has the power of cultivating ; which is
" proved by the lessee (lit. ' hirer ') being able to cultivate.
" Should the lands, however, be seized by force by another
" and cultivated by him, then the khurauj is due by the
" usurper ; for, in this case, the rightful owner did not give
" the use of them away voluntarily, and he has not the
" power of cultivating.1"
What is above stated, however, it is necessary to repeat,
is the law of the Huneefeeahs : that which was, and now is,
the law prevalent in Hindoostan. It is almost superfluous
to offer proof of the tenets of the Moghuls ; but the fol-
lowing introduction to &firmaun of Aurungzebe's, dated in
1668, may be quoted : " We have deemed it expedient to
" issue our royal edict to all officers intrusted with the
" management of affairs throughout Hindoostan, directing
" them to levy the khurauj, in the mode and proportion
" enjoined by the holy law and the tenets of Aboo Hu-
« neefah."*
The " Huneefeeahs" are one of the four great Moslem
sects, known by the general name of Soonnees. The other
three sects of Soonnees are the Shaufaaeeahs, the Mau-
likeeahs, and the Humbuleeahs, the founders of which
were Imaum Shaufaaee, Imaum Maulik, and Imaum
Ahmud Humbul. These sectaries, though none of them
have ever thought of three claimants to the property of the
soil, yet, with regard to the question whether the right of
property in the soil vests in the sovereign or in the inhabi-
tants,
* Mcerat Ahcmudce.
44 TENURES UNDER THE
tants, they have differed in opinion, not less than the
learned gentlemen of our own faith. I shall state shortly
the law of the different sects abovementioned on the sub-
ject.
Aboo Huneefah, and the Huneefeeahs, hold, that when
the Imaum conquers a province by force of arms, first, he
may, if he judge it expedient, partition the land among
the conquerors, and it becomes their property by partition ;
or, secondly, he may settle the inhabitants upon it, and it
becomes their property by his doing so ; or, thirdly, he may
remove them, and give it to others, and it becomes the pro-
perty of those others. But the Imaum has no power to
make it (as the Moohummudan lawyers express themselves)
" wukf for the use of the Moslemeen. What is meant
by wukf is, that like lands appropriated by wukf, or endow-
ment, to a particular pious purpose, it remains, according
to Aboo Huneefah, the property of the endower, but the
use thereof is transferred to another as a loan : for example,
it may be retracted by the appropriator, according to Aboo
Huneefah, at any time before a judicial decree has con-
firmed it, or seisin has been had of it by the incumbent ;
and if retracted, then it reverts to its former state, and
may be disposed of by him like his other property. Or,
fourthly, the Imaum may enter into compromise before
conquest, and settle the land upon the inhabitants, on pay-
ing a certain specified sum in money, according to the
quality of the land and the state of population.
Shaufaaee, and the Shaufaaeehs, hold it incumbent on
the Imaum to partition the lands of a conquered province
among the conquerors, as it is incumbent upon him thus to
partition all other kinds of property captured from the
enemy, unless the captors forego their right ; in which case
the
MOOHUMMUDAN GOVERNMENT. 45
the lands shall be deemed wukf for the Moslemeen. That
the conquered inhabitants have no right of property in the
soil ; but if they hold it, they hold it merely as tenants (lit.
' hirers'), and may not dispose of it, more than an in-
cumbent may of a benefice appropriated by wukf.
Maulik, and the Maulikeeahs, hold, according to one
report, that the Imaum may not lawfully partition con-
quered lands among the conquerors ; but that, by the mere
act of conquest, the lands become wukf for the Moslemeen,
the inhabitants retaining them, but the right of property
vesting in the state.
By another report, however, Maulik holds that the
Imaum may either partition the lands among the con-
querors, or make them wukf for the benefit of the state.
Humbul and his followers are reported to have held three
different opinions. By the most authentic report, however,
he is said to hold that the Imaum may either partition the
lands of a conquered province among the conquerors, or
he may make them wukf for the Moslemeen, if he deems
the latter more advantageous for the state.
Adverting to this difference of tenets among the Soon-
nee Imaums, the learned Huneefeeah Surukhsee observes
that " the learned have differed in opinion with regard to
" land conquered by force of arms, on which the Imaum
" has suffered the inhabitants to remain on paying the
" khurauj and jizeeah. Some say that the lands are the
" property of the Moslemeen (i. e. of the state), and that
" the inhabitants are slaves, Ju-^c aabeed, of the Mosle-
" meen, upon whom may be imposed whatever burden the
" liege shall determine, as a master may on his slave. But,
" according
46 TENURES UNDER THE
" according to our law (the Huneefeeah), the inhabitants
" are freemen, as zimmees ; their lands are their indefea-
" sible property, and that which is exacted from them is
" khurauj."
This is THE LAW OF INDIA ; and besides being an ex-
plicit declaration of the law, it will, I hope, throw some
more light, if more can be required, on the question of who
are the ahl, or inhabitants, to which the law alludes, when
it says that " the land is the property of the inhabitants."
Can it be meant by those who hold the inhabitants of a
conquered province " slaves of Moslemeen," that those
only shall be slaves who are in that class of society in which
we choose to place the persons we call zumeendars ? And
can it be imagined that those who maintain that " the in-
" habitants shall be freemen and their lands their own
" property,11 mean that only those shall be freemen, and
own their lands, who are of the rank we choose to confer on
our zumeendars ? The answer is obvious.
On the whole, then, according to the Huneefeeah law, if
a Moslem army conquered a non-Moslem province or king-
dom by force of arms, and the conqueror chose to suffer the
inhabitants to remain in it, his duty would be, either him-
self, or by commissioners (as Omr did in settling the khu-
rauj of the province of Irauk), to partition the lands
among them, and to fix the land-tax. Those who share in
this partition are the proprietors of the soil for ever ; and
may not be disseised of it, without their consent, so long
as they pay the land-tax.
The above is the Moohummudan law of India on the
question. I shall now notice a few historical facts connected
with it. The reader must, however, avoid an error into
which
MOOHUMMUDAN GOVERNMENT. 47
which many have fallen, viz. that of confounding the law
of the different sects of Moohummudans. The error is
equally great, as quoting the law of France would be to
prove the nature of tenures in England, because both the
French and English are Christians, and the laws of both
nations have the same origin.
The Moohummudan law has been brought forward by
the disputants, who favour the claim of the sovereign and
of the cultivator, in support of their doctrine. The Edin-
burgh Reviewers* think they have destroyed the opinion
of Sir William Jones, by quoting the law of the Sheeah
Persian (on the authority of Ibn Haukal and Sir William
Ouseley), to prove that of the Soonnee Moghul. They are
polite enough, indeed, to suggest an apology for Sir William
Jones; but I will tell them that, on the subject of either
Moohummudan or Hindoo law, that amiable, philanthropic,
and learned judge, was less likely to be misinformed than
on any other point of oriental research ; for it was, above
all others, the chiefest object of his pursuit to make himself
master of these codes ; his highest ambition, as he every
where tells his friends, to superintend the compilation
and translate digests of Moohummudan and Hindoo law
for the use of the judges, " to enable them to control and
" to check the opinions of the native law officers,1' which
digests he declares to be " indispensable to the due adminis-
" tration of justice to our Asiatic subjects ;" and in his
endeavour to attain this object he ultimately sacrificed his
valuable life.
Sir William Jones, unfortunately, did not live to com-
plete his great undertaking ; and the Moohummudan law,
which
* See Reviews before noticed.
48 TENURES UNDER THE
which is doubtless the law of India, yet remains unknown.
But Sir William Jones's authority, on the point in question,
is not to be shaken by the opinions of the Edinburgh Re-
viewers, founded on such documents. Nor will Mr. Jona-
than Scott's doctrine avail them much, when he says, in his
note, vol. ii. page 148 of his " Dekkan," quoted by the
Reviewers, " the property of the soil is all in the emperor,
" and the landholders are removable at pleasure,11 till we
have some proof of Mr. Jonathan Scott's knowledge of the
law and constitution of India.
Mr. Hastings says, " the public in England have of late
" years adopted very high ideas of the rights of the
" zumeendars in Hindoostan. Our government, on grounds
" which more minute scrutiny may perhaps find at vari-
" ance with facts, has admitted the opinion of their right-
" ful proprietorship of the lands. I do not mean to contest
" their right of inheritance to the lands, while I assert the
" right of government to the produce thereof. The Moo-
" hummudan rulers continually exercised the power of
" dispossessing the zumeendars. The zumeendarry of
" Raj shay, the second in rank in Bengal, and yielding
" twenty-five lakhs of rupees of revenue annually, has
" risen to its present magnitude within the last eighty
" years, by accumulating the property of a vast number
" of dispossessed zumeendars ; though the ancestors of the
" present possessor had not, by inheritance, a right to a
" single village in the zumeendarry."*
The zumeendars may purchase property, like other in-
dividuals ; but that the name of zumeendar is an official
designation there can be no doubt. The commission, or
sunnud,
* Hastings' Memoirs of the State of India, 1786.
MOOHUMMUDAN GOVERNMENT. 49
sunnud, of a zumeendar is quite explicit on this point. A
translation of the sunnud of zumeendaree granted to
Chytun Sing of the zumeendaree of Bishenpore, which
office was held by his grandfather, to whom he was ap-
pointed in succession, is well known. As a common work,
i refer the reader for it to Patton's Asiatic Monarchies,
Appendix No. I. The sunnud is addressed to the mutu-
suddees, chou dries, canoongoes, talookdars, ryots, and
husbandmen of Bishenpore, setting forth " that the office
" of xumeendar has been bestowed on Chytun Sing," and
certain conditions are specified. He is to pay a peshcush
of one hundred and eighty-six mohurs and two anas ; to
be conciliatory to the ryots, so as to increase cultivation and
improve the country ; to pay the revenue of government
into the treasury at stated periods ; to keep the high roads
in repair and safe for travellers ; to be answerable for the
property of travellers if robbed ; to render and transmit
the accounts required of him to the presence every year,
under his own and the canoongoes signature. Then the
jumma of rent to government is stated :
Rupees.
Purgunna of Bishenpore, one mehal, 37,529 400
Do ...... of Shapore, one mehal ... 96,374 912
Total jumma or gross revenue... 1,29,903 13 1 2
We are then given the muchulcah, or written obligation
given in by the nominee. He promises to be diligent in
the discharge of his office, to be mild and conciliatory to
the ryots, to increase the cultivation, to pay the revenue
to government regularly into the treasury at the stated
periods, to transmit the accounts, signed by himself and
the canoongoe, regularly. We have finally the security
for his person, of the canoongoe of Bengal, " that the
E " office
50 TENURES UNDER THE
office of zumeendar having been bestowed upon Chytun
Sing, I will be security for his person," &c.
So far, therefore, as the holders of large zumeendarees,
such as many of the zumeendars of the province of Bengal
are, it will probably not admit of dispute, that their tenure
was official, and that the bond Jide milkeeut (ownership)
of the soil did not vest in them.
The Hindoo law is also quoted, to establish or destroy
the right of the zumeendar, the cultivator, or the crown.
I have no great faith in the purity of what we have given
us as Hindoo law. I doubt very much whether the origin
of any Hindoo law extant can be shewn to be antecedent
to the Moohummudan conquest of India. At all events,
after the lapse of eight hundred years since the government
of India was wrested from the Hindoos, to quote Menu in
proof of what the law of India respecting landed tenures
was at the English conquest, or even before the dismember-
ment of the Moghul government, is at least not very satis-
factory. Those who have attempted to clear up this noted
question, have relied too much upon the Hindoo law and
authorities.
How many generations of men have been swept away,
since the laws of Menu were held up to execration by the
triumphant and intolerant Moslems ? The very names of
the principal municipal officers, the technical terms and
phrases of their law, are forgotten by the Hindoos them-
selves. The Reviewers, indeed, admit this, as I have before
shewn.
In confirmation of this, I beg leave to submit the follow-
ing
IMOOHUMMUDAN GOVERNMENT. 51
ing names and appellatives of the principal municipal offi-
cers of Government in a Hindoo state in the centre of the
Company's dominions, as copied from a grant of land
engraved on a plate of copper, dated twenty-three years
before Christ, and dug up from the ruins at Mongyr in
Bengal; translated by Mr. Wilkins in 1781. — (Asiatic
Researches, vol. ii. page
Anticnt Names, now altogether Modern Names for the same
unknown. offices.
Omatyo — Prime minister ............ Vizier, Deewan.
Rajastaneeyo — Viceroy ............... Nuwab, Soobadar.
Bysopotee — Governor of the city... Ameer, Walee, Nazim.
Maha-karata-kreeteeko— Chief in-
vestigator of all things ............ Kazee-ool-Koozzat.
Maha - dow - Sadhun - Sadhuneeko —
Chief obviator of difficulties ...... Mooftee, Ameere, Adil.
Dasaradheeko — Investigator of
crimes ................................. Kazee.
Maha-dondo-Nayek — Chief officer
of punishments ..................... Kutwal, Mohtussib.
Promatree— Keeper of the records Kanoongoe, Putwaree.
Chow-rod-dhoroneeko - Thief-
catcher ................................. Kutwal.
Dondo-paseeko— Keeper of the in-
struments of punishment ............ Koraburdar.
DandhSeko — Mace-bearer ............ Chobdar.
Maha-Samonto — Generalissimo ...... Sepah Sillar, Sire-Ask ur.
Koth-to-palo — Commander of a fort Kelladar.
Kyotropo — Supervisor of cultivation Amilguzzar.
Saul-Keeko— Collector of customs Thesildare amwal § Tujarut.
Maha - koomara - MatyS— Chief in- T Moodurris, Mooillim, Oostad,
structor of children .................. / Meeajee.
OopSreeko— Superintendant ......... Nazir, Sirkar.
Kandarokyo — Guard of the ward of
a city ................................. Thana, Chokey.
Maha-protee-har— Chief keeper of
the gates ............ . ................. Sirdare, Durbanan.
E 2 Gowlmeeko
0* TENURES UNDER THE
Antient Names. Modern Names.
Gowlmeeko— Commander of a small
party Naek, Thanadar.
Soro Chongo— Patroles Pasban, Deedban.
Prantopalo— Guard of the suburbs... Chokey, Thana.
Todajook toko— Chief guard of the
wards Kutwalee, Chubootra.
Beeneejook toko — Director of affairs Karkoon, Goomashta.
Dootoprysoneeko — Chief of the spies Sirdare, Goinda.
Goomagomeeko— Messengers Hurkara, Elchee.
Obheevoromano— Swift messenger... Hurkara, Shootrsuwar.
Toropotee — Superintendant of rivers
Toreeko— Chief of the boats Mulla bashee, mangee.
Here, then, in a long list of public functionaries, not
one name is now to be recognized. So complete a proof of
absolute annihilation never was before adduced of the
whole fabric of the Hindoo government, as this antient
record seems to afford. Mr. Colebrooke, I am aware, does
not admit so great antiquity to this document ; but the
less the antiquity, the more powerful must the change
have been which produced the effect in the shorter period
of time.
But before I have done with the Reviewers, I must take
notice of another of their " proofs." Shere Khan, before
he usurped the throne of India, on the occasion of a dis-
pute between him and his brothers about their father's
jageer, when it was proposed to partition it, replied " that
" there were no hereditary estates in India among Moo-
" hummudans, for that all lands belonged to the king,
" which he disposed of at pleasure." This the Reviewers
quote, leaving us to believe it the authority of the India
historian ; while, in fact, it is nothing more than an
anecdote, or at most the opinion of Shere himself, who,
though a very good soldier, was probably not a very pro-
found
MOOHUMMUDAN GOVERNMENT. 53
found constitutional lawyer. But this is not all. The
land in dispute was a " jageer ,•" which, in fact, by the
Moohummudan law is not hereditary : and, besides, it so
happened, that Shere's opinion here is liable to great
suspicion ; for he had himself privately got a grant of the
jageer from the king. He says, indeed, " that as he
" himself had got a personal grant of his estate, his
" brothers were out of the question ; but he would give
" his brother Soleyman a part of the money and moveables,
" according to law."*
That the law suffered to exist in this country, on all
matters between the sovereign and the people, was Moo-
hummudan, there is, I presume, no doubt. The revisal
of the assessment on the lands in Akbar's reign, by Rajah
Tudur Mull and Muzuffur Khan, was evidently made on
the principle of the Moohummudan law. It was, in some
districts, founded on the principle of the settlement known
in the Moohummudan law by the name of mookawsumah,
or a division of the crop between the husbandman and
sovereign, from kismut, which signifies partition, division,
&c. The fractional value of the share was fixed as one-
half, two-thirds ; but the amount arising therefrom to the
revenue varied, of course, with the quantity of produce.
" Thus," say the Reviewers, " it (the revenue) was fixed
u in principle but varied in amount." The principle ad-
verted to the circumstances and nature of the crop as well
as of the cultivator. " We fully admit," say they, " that
" the settlement of Tudur Mull was not concluded with
" the zumeendars, but with the tenants."")* But generally
the Mookauteaa settlement prevailed.
That the settlement made by Tudur Mull was accord-
ing
* Dow, vol. ii. page 164. t Dow, vol. ii.
54 TENURES UNDER THE
ing to the Moohummudan law, we must infer from the
testimony of Aurungzebe himself, in his firman dated in
1676, in which he directs " that in collecting the revenue,
" they shall advert to the settlement in the reign of his
" Majesty, when Rajah Tudur Mull was Deewan ;" and
no one will accuse Aurungzebe of breaking through the
law of Islam. In point of fact, he expressly ordered
the Khurauj to be levied according to the Moohummudan
law.
Akbar, who, for liberality of sentiment, has few equals
even in this age, was less rigid. He remitted the capitation-
tax, which was an infringement of the Moohummudan law.
He was particular, however, in other respects. By the
Moohummudan law, the revenue is fixed with reference to
the coin of Arabia. In order to ascertain the exact weight
of the legal coin, by which the revenue was to be fixed,
we are told in the Futawah Mukhtussur Shaufee, that
from the Shureef of Mukkah a dirhwm and a miskaul of
the legal standard were brought to Akbar by Khaujah
Bhaoo-ood-deen-Abdoolah of Moultan. The dirhum, on
trial at the mint of Dehly, was found to weigh three
mausha, four and a quarter barley-corns ; and the lowest
taxable amount of the property tax (which, for silver, is
two hundred dirhums) was fixed at fifty-four tolah, five
mausha, two jow (though some say fifty-two and a half
tolah). Here we see the most minute attention paid to
the law. How came it, then, that so much obscurity arose
with respect to the most valuable rights, at least in our
estimation, the right in the soil ?
It so happened, in India, that there was infinitely more
arable land than there were husbandmen to cultivate. The
wants of the husbandman were few, those of the state
many.
MOOHUMMUDAN GOVERNMENT. 55
many. The interest of the sovereign was, therefore,
greater to encourage cultivation, than of the cultivator to
take the grant and to cultivate. Thus the value of landed
tenures in India being extremely small to the ryot, they
probably seldom became matter of dispute, or afforded
much room for legislation. We ought, consequently, to
expect to find in the law, and in the political, fiscal, and
financial regulations handed down to us, more of the
nature of encouragement from a landholder to cultivate
the soil, than of definition of landed tenures so little valued.
We accordingly see their wisest princes exert their utmost
endeavours to protect the cultivator and to encourage cul-
tivation. " Let the Amelguzzar," says Akbar, " learn
" the character of every husbandman, and be the immediate
" protector of that class of our subjects. Let him endea-
" vour to bring the waste lands into cultivation, and be
" careful that the arable lands are not neglected. Let him
" promote the cultivation of such articles as will produce
" general profit and utility ; with a view to which he may
" allow some remission from the general rate of collection.
" If a husbandman cultivate a less quantity of land than
" he engaged for, but produces a good excuse, let it be
" accepted. Let him (the Amelguzzar) give no cause for
" disgust ; but, on the contrary, let him (the Amelguzzar)
" transact his business with each husbandman separately?
" and see that the revenues are demanded and received
" with affability and complacency." And again, " let
" him agree with the husbandman to bring his rents him-
" self, that there may be no plea for employing interme-
" diate mercenaries. When a husbandman brings his rent,
" let him have a receipt for it signed by the treasurer."*
When so much encouragement was required to take
lands
* Ayeen Akburee.
56 TENURES UNDER THK
lands and cultivate them, we can hardly expect to see much
on the law of ejectment. But here we see nothing at all":
and although the Moohummudan law, which declares the
property of lands to vest in the cultivator, allows the sove-
reign to eject a cultivator who does not cultivate, and give
his lands to another, yet there is not a single word on that
head in the whole of the instructions of Akbar to his re-
venue, or judicial, or fiscal officers. No ; the soil was the
property of the cultivator as much as it could be. Law
gave no power, policy gave no motive, to remove or to
disturb him, so long as he paid his taxes. When he did
not, his lands could be attached ; and so can those of the
first peer, holding by the firmest tenure of the English law.
The Hindoo law, on the contrary, admits the right of
ejectment even for the sake of a higher rent. " If the
" cultivator has no agreement for a specific period to hold
" his land, he may be ousted by the king, and the land
" given to another who offers a higher rent ; for the earth
" (land) is held by powerful conquerors, and not by sub-
" jects cultivating the soil." Colebrooke's Digest. — This
was not the law of India, though it be the Hindoo law.
The low of India was, therefore, not Hindoo law.
The right of the Indian husbandman is the right of pos-
session and of transfer ; and the rate of his land-tax was
faced ; often, indeed, the amount. In what respect, then,
is his right of property inferior to that of the English
landholder ? I answer, instead of the rate, the amount of
part of the land-tax of the English landholder is always
fixed, and so far he has the advantage. I say " part," for
his land is subject to tithes and to poor^s rates, which are
only rateable, as the whole of the land-tax was in India.
And we have lately seen, that in some parts of England, so
burthensome
MOOHUMMUDAN GOVERNMENT. 57
burthensome were the imposts of tithes and poor's rates,
that the value of the landed tenure was in reality as little
there as it could ever have been in India. At the period I
allude to, in some parts of England, no cultivator (that is,
farmer) could be found to take the land and to cultivate,
paying the poor^s rates and tithes, the English khurauj.
Had this state of things continued and become general
in England, government must either have relinquished the
revenue leviable from lands, or have confiscated such lands ;
and all this, by the laws of England, to pay the revenues
of the state; and having done so, they could not have
sold the lands, for they would have yielded no rent ; they
must have employed their officers to give the lands to culti-
vators and to collect the land-revenue, the khurauj. Who-
ever should have witnessed this state of things, and knew
no better, might well have said, " all the lands of Eng-
" land belong to the king," &c., as those of our Indian
historians, ignorant of the Moohummudan law, have said
of India.
Every government, whether despotic, monarchical, mixed,
or democratical, must possess a right, whatever may be its
name, over all the property of its subjects, whether real or
personal : I might indeed add, over their lives as well as
property. And this is proved by its having the right of de-
priving them of the one, either partially or wholly, or taking
away the other. The subject holds his property, and even
his life, by the tenure of his conforming to the will of the
laws framed by government, as they may be from time to
time promulgated. This right government has : and I say
it is a right, although the " owner" of the land, &c., as he
is termed, has it in his power to prevent its exercise, by
his compliance with the will of the law.
How
58 TENURES UNDER THE
How very difficult it is then to discriminate precisely,
whether the right of property in the soil is the right of go-
vernment or of the holder ! If the paramount authority
in a state have the right of imposing a burden upon pro-
perty, and to levy the sum imposed even by the ejectment
of the holder, it seems by no means an easy matter to prove
that the right of government is not paramount over that
property. Hence the conflicting opinions as to the right of
property in the soil.
I must now endeavour to remove a prejudice which I
think exists against the doctrine I maintain ; namely, that
the admission by us of an indefeasible right of property in
the soil to exist in any one except the sovereign, would
tend to excite dangerous feelings of independence. If their
right of property were held indefeasible and absolute, the
people might, in time, come to think that there was no
absolute necessity for giving away any of it. But no such
danger would exist, if we followed the law and constitution
and the example of the Moohummudan rulers of India.
If a jureeb of land was cultivated, and an ascertained rate
was fixed and paid ; if fifty were cultivated, fifty times the
revenue arose to the crown. The admission of a right of
property, with the assertion of the power of increasing
taxation of the soil, carries with it nothing likely to en-
gender a feeling of dangerous independence.
But to proceed. Though the law be explicit as to the
right of the cultivator, and although it be equally doubt-
less that the zumeendarry right is official ; yet that any
given individual may be zumeendar, in the sense in which
that word is loosely understood, and also a malik, or real
owner of the soil, such as I have defined the " cultivator'1
to be, it is scarcely necessary for me to say, because the
original
MOOHUMMUDAN GOVERNMENT. i>9
original tenure of milkeeut being transferable, might be
purchased by the individual official zumeendar, and thus a
large estate might be acquired : and doubtless many con-
siderable properties thus grew up, and many more were
unjustly got possession of. But then the difference between
two individuals, claiming, the one as a cultivator in posses-
sion of the soil, and the other as a zumeendar, just de-
scribed, claiming the right of a malik over him, is, that the
latter must prove his purchase or lawful acquisition, and
shew that the cultivator-possessor holds under him ; for the
law has vested the original or radical right to the soil in the
cultivator. Of this right no individual can divest himself
legally, but by sale or gift ; and no individual can acquire
it from him, but by gift, purchase, or inheritance. The
sovereign may grant to his favourite a sunnud of zumeen-
daree, or jageerdaree, or altumghadaree over the lands, and
the grantee will draw the government revenue, the khurauj;
but the property of the soil remains with the owner, the
malik) who may nevertheless sell, or let, or give it, to whom
he pleases.
But we are told " that all the lands in Bengal, and the
" greater part of those of Orissa and Behar, are in the
" hands of great zumeendars, who claim to be the owners
" of them in absolute right of property." From what has
been said, however, it is obvious that the titles of these
persons to the right of the soil will not bear investigation
by the sure test of the law ; nor, indeed, by any other
standard whatsoever. On the contrary, it is beyond doubt,
and a fact, a matter of undoubted history, that at a com-
paratively late period there was no such thing as a great
zumeendar, either in Bengal or Behar.
" It is not," says the author of the Ayeen Akburee,
" customary,
60 TENURES UNDER THE
" customary, in the soobah of Bengal, for the husbandman
" and government to divide the crop. The produce of
" the lands is determined by nussuk ; that is, by estimate
" of the crop. The ryots (husbandmen) in the soobah
" of Bengal are very obedient to government, and pay their
" annual rents in eight months, by instalments, themselves
" bringing mohurs and rupees to the places appointed for
" the receipt of the revenue."" And of Behar the same
author says, " it is not customary in Behar to divide the
" crop. The husbandman brings the rent himself; and
" when he makes his first payment he comes dressed in his
" best attire.1'*
The date of this authentic record is little more than two
hundred years ago ; and we have before quoted the edict
of Aurungzebe, as late as the year 1668, directing the
khurauj to be levied agreeably to the forms, and in the
proportion, fixed by the Moohummudan law, throughout
all India. How, or by whom, has the right of property
in the soil been totally subverted, throughout a country
containing twenty-five to thirty millions of people, in so
short a period? If these, the great zumeendars, have
acquired lawful right to the soil, it must have been sub-
sequent to this. Let them shew the deeds by which they
hold ; for except by inheritance, a regular instrument is
required to establish their title. Sunnuds from the king,
as late as the middle of the eighteenth century, are quoted
by Lord Teignmouth as establishing undoubted right in
the soil. One in favour of the zumeendar of Rajshahy was
granted, he tells us, " in consequence of the neglect of the
u former zumeendar to discharge his revenue." This may
be good as a sunnud of zumeendary ; but this was not a
grant
* Ayeen Akburee.
MOOHUMMUDAN GOVERNMENT. 61
grant of the soil ! not more than a commission, after super-
seding one collector of land-tax by the King of England,
would be a grant of the estates within the district specified.
So also the " zumeendary of Dinagepore was confirmed by
" a firmaun of Shah Jehan about 1650." So the origin of
the " Burdwan zumeendary may be traced to the year
" 1680, when a very small portion of it was given to a
" person named Aboo." Nuddea and Lushkurpore zu-
meendaries are of later date, about 1719. See Mr. Shore's
minute.
We have seen above, that at the very end of the seven-
teenth century the " husbandmen paid their rents to the
" crown" This goes to prove, that whatever be the an-
tiquity of the families of the zumeendars just mentioned,
they were, at the date of the Ayeen Akburee^ considered
" husbandmen :" and we know that the Viceroy of Bengal,
Jaafur Khan, " dispossessed almost all the zumeendars."
I would again ask, how this vast accumulation of property
has arisen ? Some of those zumeendars pay half a million
sterling of public revenue. Did they purchase the lands ?
The value, at ten years'* purchase, would be five millions !
The malikana of ten per cent, at ten years' purchase, would
amount to (four millions) four crores of rupees. Where
was the capital to purchase this ? It is evident no purchase
ever took place ; that, consequently, no transfer of the soil
was ever made ; and that, therefore, those zumeendars are
not owners of it.
I shall conclude these remarks on the zumeendary tenure
(referring to what I have said on the question of the law)
by quoting the authority of an intelligent native, questioned
by Mr. Shore (the present Lord Teignmouth), on the re-
ceived opinion and custom of India with respect to the
right
62 TENURES UNDER THE
right of a zumeendar in the soil, and of the sovereign to
confer such right. This intelligent person was the son of
the former Nazim of Behar, and author of the Seir-ool-
Mootuakhereen, Gholam Hoseyn Khan. Query. " How
" is a zumeendar appointed?" Answer. " According to
" the strict right, no person can become the proprietor of
" land but by one of the three above-mentioned modes,
" vi%. by purchase, by gift from the proprietor, or by
" inheritance ; though, by usage, the emperor or his re-
" preservative may displace him (a zumeendar) for con-
" tumacious and refractory behaviour, and appoint another
" by sunnud in his room. The person so appointed is by
" usage considered as zumeendar and proprietor of the
" soil, though according to strict right he be not so." — Q.
" Is a zumeendary hereditary ?" A. " Whatever land a
" zumeendar may have become the proprietor of by any
" one of the three above-mentioned modes (viz. purchase,
" gift, inheritance), descends in the line of inheritance ;
" but whatever is not actual property) is consequently not
66 of an hereditary nature" (alluding to his official capacity
of zumeendar which is not " actual property" doubtless).
" If a zumeendary be the actual property of any person,
** his heir has an undoubted right to succeed without the
" sanction of the ruler."
Now here it is evident a distinction is intimated between
lands the " actual property" which may be called the
f6 hereditary" estate, and lands belonging to the zumeen-
daree, not " actual property." For example, by sunnud
from the king, the zumeendar might be vested with the
management of the revenue of his own hereditary lands,
and other lands adjacent, and the charge of the police, &c.
(for that was an essential part of a zumeendar's duty) ; also
the care of extending the cultivation of waste land, &c. :
and
MOOHUMMUDAN GOVERNMENT. 63
and it is worthy of remark, that, throughout the whole
series of answers to Mr. Shore's queries, Gholam Hoseyn
invariably keeps this essential distinction in view ; though
from the questions, that great distinction seems to be
entirely overlooked by Mr. Shore, who appears to take it
for granted that an imperial sunnud is a full title to the
actual property of the soil, as it is to the official rights of
zumeendaree.
But a sunnud, firmaun, or by whatever name a grant
from the crown may be called, can convey no right but
what is vested in the sovereign ; and that is, the collection
of the public revenue : I mean over lands held by culti-
vators, such as I have defined. And let it be observed,
that this distinction is marked by the names given to
the allowances which government granted to zumeendars,
" malikana" and " nan/car :"" the former meaning the
dues belonging to a " malik? or real owner of land, the
latter to a manager. " Malikana? says Gholam Hoseyn,
" is the unalienable right of proprietorship ; but nankar
" depends upon fidelity, and a due discharge of the public
" revenue. Nankar is expressly the reward of service.
" If a zumeendar is displaced, it would be undoubtedly
" taken from him. But malikana is the right of the
" proprietor of land, who receives it (malikana) under the
" ruler ; and, therefore, if he receive it (malikana) under
" the ruler, how can an altumghadar, jageerdar, &c. with-
" hold it from him ?"
Here then, notwithstanding the king's sunnud of al-
tumgha, &c. the owner's right remains entire. The sunnud
conveys the king's right, and no more; and that is the
khurauj. There are, indeed, instances of the sovereign
purchasing land from a xumeendar. On this point Gholam
Hoseyn
64 TENURES UNDER THE
Hoseyn is asked : Q. " Why did the king purchase lands,
" since he was lord of the country, and might therefore
" have taken by virtue of that capacity ?" A. " The
" emperor is not so far lord of the soil as to be able, con-
" sistently with right and equity, to sell or otherwise
" dispose of it at his mere will and pleasure. These are
" rights appertaining only to such a proprietor of land as
" is mentioned in the first and second answers. The em-
" peror is proprietor of the revenue, but he is not pro-
" prietor of the soil. Hence it is, when he grants aymas,
" altumghas, and jageers, he only transfers the revenue
" from himself to the grantee."" How different this from
the Hindoo law ; how different from our ordinary notions
of sovereign right in India !
It may not be unedifying to note in conclusion, what, in
1772, was the estimation in which the zumeendars and
their titles were held by the English government. The
government proclamation on this point is dated llth May
1772, notifying the determination of the English govern-
ment to assume the Dewanee, by order of the Court of
Directors ; and enumerating the several branches of busi-
ness appertaining to the Dewanee, among which are : " the
" constituting and dismissing of xumeendars, with the
" concurrence of the Nazim."
They then, 14th May 1772, proceed to divide the
country into farms of purgunnahs ; but so as not to
exceed one lac of rent per annum. In this document the
zumeendars appear to be understood merely as government
officers. " That in like manner the zumeendars, talucdars,
" shicdars, and other officers of government, be forbid to
" lend money to the ryots."*
How
* Proclamation of 1772.
MOOHUMMUDAN GOVERNMENT. 65
How far, under the Moohummudan kings, the practice
of India coincided with the law, in the system of govern-
ment generally in matters of revenue and finance, in coun-
tenancing the right of the sovereign, or of the zumeendar,
or of the cultivator, to the property of the soil, may be
farther seen, in addition to what I have already quoted, by
referring to the Institutes of Timour, which are formed so
closely on the model and principles of the Moohummudan
law, that it is impossible to mistake their origin. The
Institutes of Akbar, in the Ayeen Akburee, are evidently
formed from those of Timour ; and are, in fact, in their
most material parts, a copy of the former.
From the Moohummudan law, down through those
two works, the eye of a Moohummudan lawyer has a
view of the whole system of Indian government : obscure
latterly, it must be confessed, but still sufficiently marked
to admit of his tracing the original. There is also the
code of the Moghul emperor of Persia, Ghaznan Khan,
above mentioned, promulgated about the year of our
Lord 1260; all, as indeed might be looked for, scions
from the same stock. Where, indeed, at that early
period of Moohummudanism, may it be supposed a Mos-
lem prince would go for law, save to the sacred repository
of his faith ?
But there are other documents extant, of still greater
force and of recent date. Among these, I shall again
mention Aurungzebe's firmaun, dated in 1668, directed to
Moohummud Hashim, containing instructions for col-
lecting the khurauj. These are eighteen in number, and
profess to be issued " that the mutusuddees and amils,
" from one end of Hindoostan to the other, may be in-
" formed in all points regarding the khurauj, as directed
F " tO
66 TENURES UNDER THE
" to be levied in the enlightened law of the pure and holy
" religion, and as approved by the good and authentic
" traditions." These rules for the collection of the khurauj
are entirely copied from the writers on the Moohummudan
law ; following the practice adopted by Omar, when he
settled the conquered provinces of Irauk and Syria, before
alluded to.
There is also another firmaun of Aurungzebe, issued
about the year 1676, addressed to Rishuk Doss, contain-
ing the minutest orders respecting the collection of the
revenue, the encouragement of cultivation, the keeping
and transmission of regular accounts, formed after the
rules of Akbar ; to which he indeed specifically refers :
" You are to inform yourself of the usage with regard to
" the customs in the time of his majesty, when Rajah
" Tudur Mull was Dewan."
This order contains fifteen regulations. It is collected
in the Rumoo%at-e Alumgeeree ; and a translation of it and
of the former may be seen in Patton's Asiatic Monarchies,
furnished to that author, I believe, by the present Lord
Teignmouth.
" It is proper," says the learned Shttms-ool-Aymah,
" that the sovereign appoint collectors to collect the
" khurauj in the most equitable manner from the people.'1
These collectors were called amil-een (^^- (the plural of
^o\z amil) ; and accordingly Akbar appointed a col-
lector over every crore of dams, who was called J*«U
amil, or amilguzzar ;* and the name is preserved to this
day in the province of Oude, and other parts of India
beyond the Company's territories.
« And,"
* Ayeen Akburee.
MOOHUMMUDAN GOVERNMENT. 67
" And," says Abkar, " let the amilguzzar agree with
" the husbandman to bring his rents himself, that there
" may be no plea for employing intermediate merce-
" naries."
Here the written law says, the people shall pay to the
government-collectors, " and the practice of India was
" such." No intermediate mercenaries shall be suffered,
says Akbar, to come between the sovereign and culti-
vator.
" There shall be," says the Moohummudan law, " sepa-
" rate treasuries established ; the first for the khurauj, and
" the ji%eeah or capitation-tax ; the second, for the ooshr,
" or tithes, and the zukaut, or charitable imposts ; the
" third, for thejifth of captured property, plunder, mines,
" and of treasure-trove; the fourth, for waifs, escheats,
" &c. All these shall be kept separate, because these deeut,
" different branches of the revenue are appropriated by
" law to different purposes. The sovereign, however, in
" case of necessity, may borrow from one treasury, to
" replace the same, if in his power."*
Timour had seven establishments of this kind, " seven
" wuzeers or ministers, all under the dewanbegee, to
" regulate the affairs of the revenue and to lay them be-
" fore him : one for the affairs of the ryots, the state of
" cultivation, population, and police; one for the sub-
" sistence and pay of the troops, assignments or jageers
" granted for this, &c. ; one to take charge of the pro-
" perty of absentees, defuncts, escheats, customs and
" zukat, duties on cattle and pasture ground, &c. ; one
" for
* Zeylaaee.
F 2
68 TENURES UNDER THE
" for the expenses of the imperial household, arsenal,
" &c. There are three others placed over the frontier
" provinces, the khalsah lands, &c., all under the dewan-
" begee."*
Akbar established " provincial treasuries to receive the
" khurauj from the husbandman, and one grand treasurer
" in the capital." There were also " treasuries for pesh-
" cush, reversions (or escheats), offerings, charitable
" donations, and for money for weighing the king. The
" fauzdar, when he captures a place, must act with fidelity
" in the division of plunder, a fifth part of which he shall
" send to the royal exchequer."
The khurauj, and the jizeeah, or capitation-tax, See.,
shall be appropriated, says the Moohummudan law, to
the use of the troops, in building and maintaining forti-
fications, guarding the highways, digging canals, main-
taining those who devote their lives to the good of the
people (as kazees, mooftees, mooazzins, public teachers) ;
in feeding the poor, paying collectors of the taxes, building
and repairing mosques, bridges, &c. " Finally, every mos-
" lem in want has a claim on the public treasury, accord-
" ing to his exigencies, for himself, wife, and children
" under age, for decent food and raiment ; but holy men,
" and those learned in the law, the descendants of Aalee,
" and the nobles, have a claim to a greater share, because
" dignifying them , dignifies the sons of Islaum." F. M. S.
" I appointed," says Timour, u as suddur (or chief
" priest) a man of holiness and of illustrious dignity, to
" watch over the conduct of the faithful, established in
<6 every city and town a kazee and a mooftee, a supervisor
" of
* Institutes, 305.
aiOOHUMMUDAN GOVERNMENT. 69
" of markets, also a judge of the army (termed, as in
" the Moohummudan law, kazee-ool-askur), and sent
" into every province an instructor in the law, superin-
" tendants to watch over the cultivated lands and the
" husbandman, ordered the ruined bridges to be repaired,
" new ones to be built, and placed guards to watch the
" roads, &c. &c. Also ordered that the descendants of
" the Prophet, the oolma, the foozla, the mushauekh,
" the durveshes, the gosha nusheen, should have
" C^iLc seyoor ghulaut, and &**&} wuxeefah, and
" mursoom, assigned them ; also that the \j& fookra, the
" \jsF- aajza, the ^^ft-** musakeen, should have <^U* jk>«X«
" muddudo maaush, and that the mausoleums and sepul-
" chres of the great should have (J~ji fursh, and (j£\ ash^
" and c5^jj roshnaee, allotted them."*
" Four classes of men," says the Ayeen Akburee, " have
" land or pensions granted them for their subsistence.
" 1st, the learned and their scholars ; 2d, those who have
" retired from the world, holy men and goshanusheen ;
" 3d, the needy, who are not able to help themselves;
" 4th, the descendants of great families [an error in the
" translator for descendants of Alee\, who, from false
" shame, will do nothing for themselves ; besides the army,
" the pay of which amounted to rupees 77,29,652." -f-
But by the Moohummudan law, the land-tax is assessed
by measurement ; so much per jureeb of sixty measures
square. The measure was settled to be the gu%, or cubit,
of the king Nosherwaun, which is said to have been seven
hands' breadth including the thumb, or nine hands'* without
the thumb : " accordingly," says the Ayeen Akburee, " his
" majesty, Akbar, adopted Nosherwaun's measurement
" of
* Page 359, Institutes. t Ayecn Akburee.
70 TENURES UNDER THE
" of sixty squares, which he made to consist of that num-
" her of ilahee guz ; settled the gu%, the tenaub and the
" beegah ; after which he ascertained the value of the land
" and fixed the revenue accordingly."
Timour ordered this before him. " The khurauj is to
" be settled," say the Institutes, " according to the pro-
" duce of the cultivated land. The lands irrigated by
" water constantly flowing should pay one-third ; if only
" by rain-water, therefore uncertain, to pay one-third or
" one-fourth. That the land should be measured and
'* divided into three classes, an average taken, and to pay
" so much."* The^w*, or yard, settled by Akbar, was
forty-one fingers ; and he called it the ilahee gu%, in-
stead of the badshahee (the guz of the king, meaning
Nosherwaun) as the Arabs did theirs.-f-
Akbar's beegah, or jureeb, consists of 3600 (or sixty
square) guz : the same number specified by the Moohum-
mudan law.
By the Moohummudan law, there are two modes of set-
tlement of the khurauj : the mookautuaah, and the moo-
kausumah, which will be explained below ; but the khurauj
o
of green crop (kbj rutbah, signifying fresh, moist, green ;
which some commentators have translated by the word
Jj& bukool, green vegetables, pot-herbs) was always paid
in money : five dirhums for every jureeb which produced
green crop. This crop is explained to be " all kinds of
" green vegetables, flowers, roses, green dates, sugar-cane,
" turmeric, melons, cucumbers, bazunjaun, marygold, and
" the like."J
" Accordingly,"
* Institutes. t Ayeen Akburee. 1 Jaumeaa-oor-Rumooz,
MOOHUMMUDAN GOVERNMENT. 71
cc Accordingly," says the Ayeen Akburee, " from dry
" crops one-third of the produce from each harvest was
" levied as revenue ; but for musk melons, ajwayn, onions,
" and other greens, ready money at fixed rates was pay-
" able." And again, " the revenue for indigo, kuknar,
" pan, turmeric, singarhar, hemp, kutchalu, kuddoo, henna,
" cucumbers, badinjan, radishes, carrots, kerelah, tyn-
" dus, and ketcherah, was ordered to be paid in ready
money1
Besides these, an infinite number of examples might be
adduced, to shew the identity between the regulations of
the India Moohummudan government and the Moohum-
mudan law. What I have quoted, however, must be fully
sufficient.
Having, as I am persuaded I have, without doubt,
established that the Moohummudan law and constitution
is the " law and constitution of India ;" that the Moohum-
mudan law prevailed during the whole period of the Moo-
hummudan government ; that by that law, the right of
property in the soil does vest in the cultivator, such as I
have above defined, and not in the crown or zumeendar,
above described ; that the usages which prevailed, distinctly
shew that neither the sovereign, nor the person whom we
call zumeendar (not owning land by inheritance, purchase,
or gift), was ever understood to have had the shadow of
proprietary right in the soil, and that the usages with re-
spect to tenures, taxation, &c.5 are no where adverse but
for the most part conformable, to the principles and rules of
the law in their leading features, I shall now notice the dif-
ferent kinds of tenures or modes., by which property in lands
can be acquired, as recognized by the Moohummudan law.
These
t Vol. i. page 361.
72 TENURES UNDER THE
These are, 1st. partition among the conquerors, when the
lands are conquered.
2d. By fixing the khurauj upon the lands of con-
quered inhabitants, by specific assessment (and imposing
also the capitation-tax), they being suffered to remain upon
the lands.
3d. By compromise entered into with the inhabitants of
a country before conquest.
4th. By the cultivation of waste land, when with the
express sanction of government. These four are the
original tenures of land.
5th. Purchase, exchange, or other mutual compact for
equivalents.
6th. Dower.
7th. Gift, bequest.
8th. Inheritance.
9th. Wukf, or endowment.
It is unnecessary to notice loan and lease, because these
are temporary tenures, further than to state that they not
only depend on the time for which they are granted, but
are void of themselves by the demise of either party.
The 1st. vi%. Original partition at the conquest of a
country. This is the strongest of all rights. It can, how-
ever, only exist in the person of a Moslem, or one who has
acquired by purchase, or other legal mode of conveyance,
from a Moslem. It cannot descend to an unbeliever by
inheritance; for an infidel cannot inherit of a Moslem.
Consequently, had the lands of Hindoostan been divided
among the conquering soldiers, no Hindoo could be in legal
possession, without a formal title from a Moslem ; for by
the simple act of conquest, as above shewn, every right of
a non-Moslem subject ceased and determined.
I say,
MOOHUMMUDAN GOVERNMENT. 73
I say, right by original partition is the strongest of all
tenures, because it conveys a right of which the owner can-
not divest himself, namely, that of treasure-trove. If a
person, says the Jaumeaa-oor Rumoox, find hidden trea-
sure in the lands of another, and it is not known to whom
it belongs, a fifth shall go to the crown, the remainder to
the proprietor of the land. And the proprietor here meant
is the person to whom the Imaum (the sovereign) assigned
the lands when first conquered, or his heirs ; not the
owner to whom the lands may have devolved by purchase
from the original proprietor, or his heirs. Such treasure
shall not go to a purchaser, but shall rather escheat to the
crown. This is also mentioned in the Moheet. The object
of this statute is evidently to create escheat. Even now,
probably, no land is to be found in the possession of an
original owner or his heirs ; consequently, all treasure-trove
escheats to the crown.
Sd. Assessment of khurauj. The Moslem conqueror
has the legal right of suffering the conquered inhabitants
to remain on their lands as freemen, but only on condition
of their paying the khurauj and the capitation-tax. On
the khurauj being fixed (which must be by allotment and
assessment), the land becomes the property of the indivi-
dual, saleable and transferable, in the same way that, in the
case of partition among the conquerors, the share of each
individual becomes his property, as the law says, on par-
tition.
3d. By compromise; as the Prophet did with several
powerful Arabian tribes before conquest, on their paying
a fixed tribute ; for after conquest there can be no com-
promise.
4th,
74 TENURES UNDER THE
4th. A grant of waste land to cultivate. The grant is
permanent. The sovereign has the power of making such
grant, on condition that the grantee pay the assessment to
which such land is liable for what he does cultivate. The
nature of assessment, if the grantee be a Moslem, is regu-
lated by situation as to water for its irrigation. But the
crown cannot make any such grant without stipulating for
the legal land-tax, seeing that, by law, the sovereign is
merely a trustee for the community, whose property the
land, before partition, is held to be ; and a trustee cannot
give away the property of his constituent without an equi-
valent. If the grantee cultivate within a reasonable period
(which the law limits to three years), well ; if not, the land
may be given to another. Timour allowed the ryot, in this
case, the land for the first year rent-free ; the second he
took what the ryot chose to give ; but the third year the
full public tax was levied.
5th. Purchase, or exchange for equivalents, by any of
the legal compacts.
6th. Dower, on marriage ; which is also, by the Moo-
hummudan law, held to be a civil compact, for an equiva-
lent, namely, the connubial society of the bride.
7th. Gifts, with seisin, from an owner who is competent
to give; and bequests. These are compacts without an
equivalent. So also is,
8th. Inheritance. All unbelievers may inherit among
themselves, whatever their creeds may be, but none of them
can inherit of a Moslem, nor. can a Moslem inherit of a
non-Moslem.
The
MOOHUMMUDAN GOVERNMENT. 75
The 5th, 6th, 7th, and 8th, are all private contracts, and
therefore do not weigh in this investigation.
9th. Wukf, or endowment, for some charitable or pious
purpose. This tenure is absolute as to the usufruct, but
does not convey the full right of property to the incum-
bent ; though, as the law says, it annuls that right in the
endower. The benefice lands, however, even though the
endowment be from the crown, are liable to the land-tax.
This is a most important rule of law as applicable to India;
I shall, therefore, give it in the original. The law says,
" if tithe-lands, they are liable to the tithe ; if khuraujee-
" lands, to the khurauj :""
" The tenth (ooshr) is due from all benefice lands, if
" ooshree : if khuraujee, then khurauj is due ;" that
is, according as the ooshree or khuraujee assessment may
have originally been applicable to the lands, so shall the
public revenue be continued to be demanded, notwithstand-
ing the endowment.
But an endowment by wukf would not be valid, even
from the crown, unless granted for the purposes sanc-
tioned by law, and to some one or other of the descrip-
tions of persons or establishments which the law recognizes
as the objects of endowment. For example, a grant of
lands by wukf to an individual who is wealthy, would be
null as a wukf, according to all the lawyers, though ac-
cording to some it would be held to be a gift. The object
or purpose of endowment must be of a permanent, as well
as
76 TE NUKES UNDER THE
as a pious or charitable nature. This is doubtless the
sound law ; though in some books, it is stated as legal to
appropriate, by wukf, in favour of individuals, and of
people who are not poor. But this is mere difference of
terms ; for in these cases the grant is, by a legal fiction,
held to come under the law of gifts, and not of benefices ;
and then the law of donation will rule the case, which
of course does not cancel any public or private demand
against the land given ; and if a tenure by wukf flowed
from a subject, it would a fortiori be good, quoad the
profits only : the land would still be subject to the reve-
nues of the state.
These, together with tenures by loan and lease, both of
which expire with the demise of either party, are those by
which landed property may be acquired and held, accord-
ing to the Mooliummudan law.
It will be perceived that none of those tenures convey
any right whatever to exemption from the public revenue.
There is, however, a power vested in the sovereign by the
Moohummudan law, which is too important in its con-
sequences to be omitted here, viz., that of appropriating
the khurauj of a man's own land to the owner of the
land. The sovereign cannot make a donation of the khu-
rauj of the lands of an individual to the owner, unless
the donee be of those to whom the law assigns a public
maintenance (literally " an object of, or one entitled to a
share of, the khurauj"). But should the sovereign assign
the khurauj to the owner, and leave it with him, the
owner, being of those who are entitled by law to share
in the khurauj, it is legal, according to Aboo Yoosuf's
opinion ; and this is decided law, as Kazee Khan states.
I man in
MOOHIIMMUDAN GOVERNMENT. 77
Imaum Moohunimud dissents.* This, however, it is evi-
dent, can only be a personal grant ; and must, at all events,
cease with the existence' of the individual to whom it is
made, inasmuch as the qualities, or circumstances, which
render one individual an object entitled to share in the
khurauj, vi%. his being a soldier, kazee, mooftee, teacher,
collector of revenue, police officer, or other public func-
tionary of government, a learned or holy man, are alto-
gether personal.
And I may add, more for the purpose of shewing that
I have not overlooked it, than on any other account, that
in some books on the law (for it is, in its very principle,
strongly opposed in the most authentic works), a mode
is stated, by which, as some interpret it, the khurauj may
be cancelled by the sovereign ; and thus an estate would
become lakhuraujee, or exempt from the assessment of re-
venue.
It is this. Lands escheat to the crown by the demise
of last heirs, or otherwise. If government should sell
these lands to any one, it is said by some lawyers, the
khurauj would be annulled, and could not thereafter be
levied from that land. This I have stated on the autho-
rity of some writers: but it is, at best, a mere evasive
interpretation ; for even these admit that the lands are
nevertheless liable to government for rent, oojrut. It is
maintained, however, by all the authentic writers, that
escheats may not be legally sold at all by the crown without
extreme necessity ; in the same way as it is unlawful for a
guardian
* Aboo Yoosuf and Imaum Moohummud were disciples of Aboo
Huneefah, the head of the Huneefeeah Soonnees : their authority
therefore is great on points of law.
78 TENURES UNDER THE
guardian to sell the property of an orphan ward, without
such necessity.
First, then, the sale of escheated land by government
is not countenanced ; and, secondly, the lands sold are
still liable to the public assessment, under the name of
oojrut.
In the Futh-ool Kudeer, after stating, in conformity
with other books, that the land of Egypt is khuraujee,
the author says, " the revenue collected from the lands of
" Egypt, now-a-days is oojrut (rent) not khurauj, for now
" the cultivators are not proprietors of the soil. It so
" happened, that for want of heirs it fell without owners,
" and thus escheated to the crown ; what is paid, therefore,
" is not khurauj, but (oojrut) rent."*
Here then, if we admit the legality of sale, is one way
by which, technically speaking, the khurauj may be an-
nulled ; but then it is, as I have observed, a mere change
of terms : " rent" is paid. The crown cannot remit the
rent ; and the only effect, even under a Moohummudan
government, which would be produced, is that, in case the
government chose it, they might oust the cultivator and
give the land to another, or sell the land to another,
or release themselves from the legal restraint of appro-
priating the revenue, received under the name of rent,
to the purposes specified by law for the appropriation of
the khurauj.
My object, in dwelling upon this subject, is to shew
that there are no legal means of emancipating the soil
from
* Moon. Ghnff.
MOOHUMMUDAN GOVERNMENT. 79
from the government revenue permanently ; and conse-
quently, that the multitude of lakhurauj tenures, which
have been trumped up during the imbecility and decay
of the Moohummudan government, and the no less imbe-
cile infancy of that of the English, are in themselves illegal,
and could not by law have been granted as permanent
rent-free tenures, and that their ever having been con-
sidered as such by our government, must have been the
consequence of ignorance on the one hand, and of imposi-
tion on the other.
I shall, in this place, take notice of the variety of illegal
and fictitious tenures which have been erroneously recog-
nized by the local governments of India.
By the Moohummudan law, the sovereign, as we have
seen, has no power to give away public property, of any
kind, without an equivalent. He cannot bestow a lakhu-
rauj grant in any other way than that above-mentioned,
m%. by an appropriation of the khurauj of one's own
estate to the owner himself, with the condition attached, of
that owner being one of those classes of persons to whom
the law assigns a public provision. An appropriation of
this kind would be necessary to accompany even a religious
endowment, if exemption from revenue were designed ; and
this would be permanent, if the body or class endowed
continued to exist as objects of benefice ; but would cease
to be so with the existence of the last incumbent, who
might come under the description of persons entitled by law
to the benefit of a public maintenance.
So little power is, by the Moohummudan law, vested in
the sovereign to give away the property of the public,
that although, on the eve of a battle, he may hold out
special rewards of an additional share of plunder in order
to
80 TENURES UNDER THE
to encourage the troops, yet, after the battle is over, he
cannot give away an atom of prize property, beyond the
regular share ; except, indeed, from the share of the
crown, which is a fifth of prize property.
In the above power, which the Moohummudan law re-
cognizes in the sovereign, of assigning the khurauj of one^s
own lands to the proprietor, however, I can see the seeds
of the variety of anomalous tenures, which are recognized
by our government in India as lakhuraujee, or rent-free
and permanent, without such tenures having ever been
traced to their origin ; and, in fact, without their nature
ever having been ascertained ; to the enormous diminution
of nearly three millions sterling, perhaps, of the public
revenue, under the Bengal presidency alone,
Setting out, therefore, with this, as a principle of sound
law to be kept in view, that no permanent lakhuraujee
tenure can, by law, exist in the person of an individual
under a Moohummudan government, let us examine the
India tenures as they are known to our government.
1st. Altumgha *s . This tenure, I think, owes its
rank more to its sound than to its sense. One who has
read Latin is immediately reminded of something high ;
and when he is told that it is a " royal grant," he is pre-
pared to believe any thing of it. The truth is, however,
that the word conveys no idea of the nature of the tenure.
l*& tumgha, or as it is also written UXb , signifies <jliJ
nushan, " a distinguishing mark ; a mark they put on the
hip of a horse, especially of the royal stud." U^J tumgha
signifies j^o ^liJ nushane mohur, the impression of a seal.
Turkish Dictionary. U^cJl Altumgha is a compound of J I
MOOHUMMUDAN GOVERNMENT. 81
«/, a crimson colour, c^&j *y £y^> and U*J tumgha, a seal;
j^J«, in Turkish, alfcjbj^i, the seal of the king: and some-
times they drop the word \**3 tumgha, and the word Jl al
alone is used to signify the royal seaL*
The meaning which the British Government attaches
to an altumgha grant is, that it is a royal grant ; not only
in perpetuity to the grantee and his heirs, but that it is a
transferable and perpetual lakhuraujee or rent-free tenure.
It is certain, however, that it by no means necessarily im^
plies either permanence or exemption from revenue, or
right of transfer* " And," says Timour, " I ordered that to
" twelve of the forty ouymauk (heads of tribes of soldiers)
" which had submitted to my government, U^J tumgha
" should be given, that they might be classed among my
" khas servants/1 Inst. 309. "The other twenty-eight ouy-
" mauk, who had not received tumgha, I appointed over
" their own tribes ; that in time of war they might attend
" with their quotas." 313.
&d. Muddud maaush fjo JJ^c: this compound word sig-
nifies subsistence (lit. assistance in living), from £±* mud*
dud, aid, and ^tW< maausH, living. It is also stated to be a
royal grant in perpetuity, to be transferable, and to con-
vey a rent-free tenure ; but it was probably nothing more,
originally, than the grant of a pension to an individual
in distress. " I ordered," says Timour, " that to the poor
o /
" ir" fookra, the helpless ^^ aajzah, and the indigent
" ^j-J^Ll^ musakeen, ^U^ J.x« muddud maaush should be
" fixed." Inst. 357.
3d. Aeemah. <U->1 aeemah is the plural of /*U1 imaum,
which
* Furhung Rusheedee, voce <J \
€
OX TENURES UNDER THE
which is, I believe, the" true etymology. If so, it was proba-
bly, nothing more originally than the grant of a small
living to maintain a priest, or imaum, at the neighbouring
mosque, to preside over the people at prayers ; the person
who guides the people at their public devotion being the
imaum, or leader for the occasion. Or it may have taken
its name from the donor, the sovereign, in his capacity of
imaum. They are grants to Moohummudans.
The celebrated Bengal financier, Mr. Grant, tells us,
that " aeemah is the popular general term for all charitable
" or religious donations made by the sovereign to Moo-
" hummudans in Hindoostan ; and, technically, in forms
" of sunnud, as well as of the exchequer, always more
" particularly distinguished by the words altumgha, or
" muddud maaush"* It (aeemah) is always supposed
by our government to be a regular form of grant, con-
veying from the crown a free and perpetual transferable
title.
When the prince, the shahzaadah, came to Bengal, he
took upon himself to give away large grants of land, for
charitable or religious purposes, under this appellation ;
but the grants were so extensive, that the king, though he
did not choose not to ratify them, imposed a small land-tax
on the lands granted ; and they, in consequence, got the
appellation of "aeemah bazyauft" lands, or aeemah re-
sumed lands, from ^pVjV > to get back.
4th. Jageer, j\=r from U- jau, a place, and
geruftun, to lay hold of. This is known to be merely a
life-rent tenure, but it is stated to convey a rent-free title.
A jageer, when given in land, is known, in the Moohum-
mudan
* Grant's Analysis,
MOOHUMMUDAN GOVERNMENT. 83
^ x o x
mudan law, by the name of ULi! auktaa, from kutaa, to
cut ; signifying a portion cut off for a particular purpose.
Jageer may be said to be a military tenure. Their origin
in India may probably be traced to the following practice
of Timour. " He ordered the whole of the revenues of
" the country to be divided into lots of different amount,
" and that these lots should be written on a royal assign-
" ment j^f yurleegh. These assignments were brought to
" the Dee wan khana (exchequer, to be entered perhaps).
" Each of the omrahs and mingbaushees (officers of horse,
" who received sixty times the pay of a trooper) received
" one of these assignments. If the amount was greater
" than his own allowance, he was to share it with another ;
" if less, he got another to make up the amount." Timour
directed, however, " that no ameer or mingbaushee should
u collect more from the subject than the established revenue
" and taxes : and for this purpose, and to keep an account
" of the jumma, and of the payments and shares of the
" ryots, &c. to every province on which royal assignments
" were granted, he appointed two wuzeers ; one of whom
" was to take care that the jageerdar should not oppress
" the ryots. The jageerdar got the grant first for three
" years ; at the end of that period the country was in-
" spected. If it was found in a flourishing condition, and
" the peasantry were contented, the jageerdar was con-
66 tinued : otherwise, it (the jageer) was resumed, and the
" jageerdar was punished, by withholding from him his
" subsistence tij& for the three years following.1'* Here,
then, we see the jageerdar received a grant of no more than
" the established revenue;" no right in the soil. An accu-
rate account was kept with the cultivators. If the jageerdar
oppressed
* Inst.
84 TENURES UNDER THE
oppressed them, he forfeited his grant. This is utterly
inconsistent with permanent property in the soil.
These four are stated by our writers to be the only
tenures derived immediately from the crown : and in the
province of Behar alone, in the year 1784, the present
Lord Teignmouth mentions the amount of the annual
produce of rent-free lands held under the above titles to
be Rupees 13,08,786 (about ^130,000 sterling). Besides
which, there are stated to be other alienated lands in the
same province to a large amount, under the titles of : —
Nuzxere durgah *\^>J j& (lit. an offering at a sacred
place), for maintaining places of worship.*
Kharije jumma £-*>• fZJ^*' 0*k out °t or excluded from,
the public revenue), excluded from the revenue, and sold
by the zumeendars.-f-
Maafee ^^ 0^* exempted, privileged, or revenue
exempted lands), exempted on the authority of the nazim
or the zumeendar.J
Sir shikun J>*&j* (Ut broken-headed, but stated to be)
land broken or separated from the capital or head ;
granted in charity, by zumeendars, chowdries, canoon-
goes.§ It is, however, a grant of parcels or portions of
land to some public functionary of the village ; the priest,
or perhaps the village washerman or plough-maker, to
induce him to reside there. It is taken a little and little
from each zumeendar or head ; i. e. breaking a little off
each head to give for the above purpose : so called (^»j^
head-breaking.
Khyrautee ^\^>- (lit. alms-meaning, that which is
given voluntarily with a good intent), land given in charity
by the amil, zumeendar, or nazim. |)
Nankar
* Lord Teignmouth's minute, t Ibid. J Ibid. § Ibid. || Ibid,
MOOHUMMUDAN GOVERNMENT. 85
Nankar jlCU (lit. bread for work), stated to be land
given by the amils or nazim, or the zumeendars, chowdries,
talookdars, for some service performed.* It was, however,
an allowance received by the zumeendar, while he admi-
nistered the concerns of the zumeendary, from govern-
ment, without reference to proprietary right. When he
did not administer the affairs of the zumeendary, no
nankar was allowed.
Enaam /»U3l (lit. gift, present), land given by zumeendars
or amils as a favour.-)-
Land held by all these tenures is stated, in the docu-
ment to which I refer (Lord Teignmouttfs minute), to be
in practice transferable, except lands held by nu%%ere
durgah tenure : but as the right of transfer does not ap-
pear to be well-founded, even of altumgha, jageer, and
muddud maaush, &c. tenures, I shall deem it necessary to
inquire into these hereafter.
Besides these, however, there are a variety of other
modes known in India, by which lands have been appro-
priated, and now escape paying revenue, to the great loss of
the state. As 1 chakuran, 2 mohteran^ 3 peeran, 4ifukeeran,
5 cheraghee, 6 burmootur, 7 bhoguewitter, 8 bhatotur,
9 bishnotter, 10 dewotter, 11 nijjote.
1st. Chakuran ^^U-, service lands, from chakur, a
servant. This grant may be by a Hindoo or Moslem.
2d. Mohturan (^fyZe, from Sanscrit c^^> muhut, great,
and ti\j3 turana, to cherish ; i. e. lands set apart for the
maintenance of a great or revered person or place. A
Hindoo grant.
3d. Peeran (J^ from peer, a confessor or spiritual
guide. Lands set apart for a peer. A Moslem grant.
4th.
* Lord Teignmouth's minute. t Ibid.
86 TENURES UNDER THE
4th. Fukeeran J^w from fukeer, a mendicant (Moo-
hummudan law fookra T/&), to maintain the poor. A
Moslem grant.
5th. Cheraghee ^\tf~ from j]^~ churaugh, a lamp :
to maintain lamps burned at the shrines of saints. (Inst.
Tim. tjU-ijj roshnaee.) A Moslem grant.
6th. Burmootur j*+&j> a compound of bruhm, a brah-
min, and oottur, fit for, belonging to : a grant of land to
a brahmin. A Hindoo grant.
7th. Bhoguewitter j/ytf from bhogu, enjoyment, pos-
session, and oottur, as above : a maintenance to any person.
A Hindoo grant.
8th. Bhatotur J^^^> from bhaat, a class of brahmins :
meaning a maintenance for the bhaat brahmins. A Hin-
doo grant.
9th. Bishnotter (should be Vishnoottur jjjJ*j) from
Vishnoo and oottur, i. e. a grant of land for the worship of
Vishnoo. A Hindoo grant.
10th. Dewotter J*j)£ , from devu, a god, and oottur,
as above ; translated by my brahmin etymologist " a grant
" of land for the expense of a deity." A Hindoo grant.
llth. Nijjote CJ>j^srf (but I think it ought to be
C^>- -0j neechjote) from neech, under, and jote, to
plough : i. e. land reserved by the zumeendar, and excluded
from the jumma, for cultivation under himself. Either
Hindoo or Moslem grant.
It is evident that these tenures are not, in their nature,
necessarily hereditary ; and, by law, they are clearly not :
nor does it follow that any one of them conveys a rent-free
grant.*
For
* The reviewer of the first edition has objected to the etymology of
some of these terms, but I do not admit his etymological criticisms.
They are, at all events, quite unimportant.
MOOHUMMUDAN GOVERNMENT. 87
For example, the altumgha tenure. " Timour ordered
" all the beggars to be collected, and maintenance to be
" assigned to them, Jcj£ U*J 5/U^lj and that they should
" be distinguished by a mark, that they might not, there-
" after, be permitted to beg any more : U*j j\ Axj j and if
" after tumgha they should be found begging, they should
" be banished."* We cannot suppose by such altumgha
grants that his majesty designed to constitute a body of
hereditary beggars.
The grants of altumgha, aeema, jageer,muddud maaush,
were by law nothing more than grants of the khurauj or
revenue, the property of the lands remaining unaffected
by them, whether belonging to the grantee or to others ;
and so far were these grants of altumgha, aeema, jageer,
&c. from being considered by the Moohummudan govern-
ment of India to be grants of a proprietary nature in the
soil, that they were generally, perhaps, latterly, univer-
sally, made over the lands of others, over the lands of a
hundred different proprietors, perhaps, whose right, as
bondjide owners of the soil, was never questioned. And
thus two distinct interests might exist in the same pro-
perty: that of the altumghadar, or aeemadar, or jageerdar,
to the extent of the khurauj or public revenue ; and of the
malik, or real owner, to the surplus collections from the
ryots, after paying the khurauj. This constituted the ma-
likana, or malik's (owner's) share; of which the altum-
ghadar could not deprive him. And here we have an
easy explanation of the fact hitherto, so far as I know, un-
explained, of altumghadar s, jageer 'dars, and aeemadars in
Behar, in many instances, paying malikana to xumeendars
(meaning owners of land) : a fact adduced by Mr. Shore
as a proof of claims of the zumeendars to the ownership of
the
* Inst.
88 TENURES UNDER THE
the soil, and equally adduced against him as a proof that
that right vested in the sovereign ; seeing, as they saidy an
altumgha grant is hereditary and a royal grant, and were
the right of property not vested in the crown, the crown-
could not have granted it. But both parties were wrong.
They confounded the real zumeendars, the real owners of
the soil, with zumeendars, the managers of the revenue of
villages, tracts^ &c» ; and mistook the grant of the khurauj*
or revenue, for a grant of the soil. For example, suppose
A. to have an altumgha grant of the khurauj of B/s land,
and afterwards to get possession of the land from B., on
paying him ten per cent, (or any sum) yearly. Here A*,
an altumghadar, pays B., a malik, for the same land
over which he (A.) holds an altumgha title*
If any argument were required to shew the necessity of a
patient inquiry into the rights of the people, before final
arrangements are completed in fixing the land revenue,
it may he assuredly gathered from this.
Mr. Shore, on this subject, had good information, but
did not avail himself of it. Gholam Hoseyn Khan, the
intelligent and acute author of the Seir-ool-Mootuakhereen
before-mentionedy being questioned on various- points, in
answer to Question 19th, " When any land was given
" as altumgha, jageer, muddud maaush, &c. out of
" the zumeendarry, did the proprietor of the land re-
" ceive malikana from the person receiving the grant ?"
says : " Certainly. Malikana is the right of the pro-
" prietor of land ; and if he, the proprietor, received it
** (malikana) from the ruler (government), how can an
" altumghadar, jageerdar, &c. withhold it?" And this
intelligent man again says, in answer to the 29th Question,
* The emperor is proprietor of the revenue issuing out of
" his
MOOHUMMUDAN GOVEENMENT. 89
" his territory, but he is not the proprietor of the soil.
" Hence it is, that when he grants aymas, altumghas, and
u jageers, he only transfers the revenue from himself to
" the grantee." Nothing can be more clear than this, as
far as the property of the soil is concerned ; that it was
never, even in practice, conveyed to an altumghadar or
jageerdar, &c. And, by law, even the revenue could not
be alienated, except under conditions, as before explained,
even by the monarch himself.
It has been above stated, that Lord Teignmouth under-
stood that lands held by the tenures of altumgha, jageer,
muddud maaush, See. were transferable in practice ; but
we now find that the lands were not understood to be con-
veyed at all by such grants of the crown, but only the
revenue transferred by the crown ; and a grant of revenue
(khurauj) is not a grant of land, nor is a grant of revenue,
by law, transferable by the grantee, though it may be in-
herited under certain conditions. Nor does it appear in
practice that such grants were understood to be transfer-
able. The words of the grant by altumgha, &c. are ad-
verse to the construction put upon them by his lordship.
1 1 is not a grant to assignees, but from father to son, in
lineal succession : and the reason of this is, as the answer
to the 49th Question of the document just quoted plainly
shews, " the clause, from father to son* in lineal succes-
" sion, is inserted in an altumgha sunnud, in order to secure
" the grant to the posterity of the original proprietor
" (grantee)." But the right to transfer would be vesting
any individual of that posterity with power to defeat the
right of all the rest ; and this would be defeating the ob-
ject of government in making the grant, which was to
reward the faithful services of an individual, by a perma-
nent and certain provision for himself and HIS OFFSPRING.
We
90 TENURES UNDER THE
We have seen that, by the law of India, the right or in-
terest conveyed by an altumgha, jageer, or muddud maaush
tenure, is not transferable by sale, gift, or bequest, or by
any other mode of transfer ; and the tenor of the grant, as
well as the understanding and practice of the Moghul go-
vernment, appears to have corresponded with the law. It is
scarcely necessary to remark that the admission, by our go-
vernment, of the altumgha tenure as being hereditary, by
no means implies a right to transfer by sale or otherwise.
The altumgha, therefore, may be considered in the light of
an entail upon the grantee and his heirs for ever. In de-
fault of heirs, the lands themselves, if there be no malik,
and at all events the public revenue of the lands, will
revert to the crown. We must conclude, consequently, from
these premises, that every estate held by an altumgha, &c.
title, that has ever been transferred by any deed of transfer
whatsoever, is, .at this moment, both by the law and the
usage of the country, liable to the revenue of the crown,
the khurauj.
Mr. Shore himself, indeed, who states the altumgha title
to be transferable in practice, tells the government dis-
tinctly, in his letter to the Committee of Revenue, 29th
January 1784, " that the altumgha is a grant to the ori-
" ginal grantee and his heirs in perpetuity, but devolving to
" government in default of heirs?
It is necessary to take farther notice of the due here
termed malikana, so confidently pronounced, in these ex-
tracts, the proprietor's right. This is supposed to be a
due belonging to the real proprietors of the soil, to which
they were entitled though their lands should have been
subjected to the right of an altumghadar, jageerdar, &c.
by the crown. Malikana, however, is a mere innovation,
neither
MOOHUMMUDAN GOVERNMENT. 91
neither authorized by. the law, nor was it by the practice
of the Moghul government, till the latter days and disor-
ganized state of the empire. It had no existence, probably,
till oppression was practised over the maliks (owners), by the
sovereign granting assignments, under the name of altum-
ghas, jageers, muddud maaush, &c., to an oppressive ex-
tent over their lands. We hear nothing of malikana till
then : for, during the regular government, a malik himself
paid his khurauj to the officers of government ; the residue
was his own. This was his. Farther than his khurauj, he
neither gave nor received from government.
There is, indeed, a way in which a malikana might have
arisen ; but then it would not be at all definite as to rate :
nor, in many instances, might there be any at all. If an
owner cannot cultivate his land and will not pay the khurauj,
government, by law, may give the land to another person
to cultivate for hire, or on paying the khurauj. In this
case, the surplus, if any, is the right of the owner (malik),
and may, agreeably to the Persian idiom, be called mali-
kana. But, then, observe that this is not paid from the
public revenue or government share, but from the profit,
after the khurauj is paid. There is no possible way
by which malikana, be it what it may, CAN BE DUE BY
GOVERNMENT.
The possibility of its being an allowance made in lieu
of the wages payable to official collectors (amilguzzars),
and to those owners who paid their rents into the trea-
sury, is, strictly speaking, not admissible ; because the
officers of the revenue are, by law, ordered to be paid,
not from the lands, but out of the public treasury. Ma-
likana has, therefore, its origin doubtless in the necessity
of providing for the oppressed owners (maliks), whose
lands
9 TENURES UNDER THE
lands were usurped from them by royal assignees, as be-
fore described; who, wringing from the ryots the last
farthing, would necessarily be compelled to maintain the
starving maliks, and to pay them something, which might
be called malikana, from their own funds ; and hence it
has been thought to be payable from the government share,
or jumma, of the lands.
The dewanee, as it is called, of Bengal, Behar, and
Orissa, is held by the Company " in perpetuity, as a free
" gift and tumgha ;" but it was not granted " rent-free :""
and the words, " from generation to generation and for
" ever and ever," form a clause of it.
So far from being considered a rent-free grant, though
the deed itself calls it " a free gift," and no mention is
made in the body of the instrument of any payment, yet
twenty-six lakhs of rupees annually were stipulated to be
paid to the king out of the revenues of those provinces,
by an agreement expressly referring to (and, in fact, being
a part of) the above grant ; so that even this celebrated
document itself, the tenure of the Company, proves that
liability to the payment of the public revenue to the
crown is not inconsistent with an altumgha tenure ; whilst,
on the contrary, the existence of such a tenure, without
liability to public revenue, is inconsistent with the law
of the country, though in practice it may have been other-
wise.
The grant to the Company was not perpetual by the
mere introduction of the word tumgha ; nor, as we have
seen, was it, in point of fact, rent-free. I should rather
interpret the meaning of the word tumgha^ if it be at all
significant, to be " special royal favour.11 " As a mark of
u special
MOOHUMMUDAN GOVERNMENT. 93
" special or royal favour, I, the king, grant to the Com-
" pany the provinces of Bengal, Behar, and Orissa :" sub-
ject, however, it must be understood, to the dues of the
crown, otherwise the grant would have been by law alto-
gether void and null ab initio ; for, as I have repeatedly
noticed, the sovereign has no power to give away the pro-
perty of the Moslemeen without an equivalent.
The equivalent, in this case, was the " twenty-six lakhs
" annually paid into the royal exchequer ;" which, toge-
ther with the maintenance of the requisite army for the
defence of the provinces and other advantages specified,
the expense of collecting the revenues and maintenance of
the public establishments of Islaum, was probably more
than, for many years before, the country yielded to the
royal treasury.
So, also, the muddud maaush tenures. They are equally
non-significant of perpetuity : indeed, I ought to say, are
rather essentially life-rent. When granted to individuals,
they are unquestionably so : and must cease with the life
they are granted to maintain.
<e I ordered," says Timour, " that the descendants of
« Aalee, the Oolma, the Foozla, the Mushauekh, the Dur-
" vesh, the Goshanusheen, should have cAej^I-s seyoor
" ghullaut) and <^*kj wuzeefah, and ff^r* mursoom given
' o ^
" them, and that the *]yi5 fookra and the xjs? aajzah
" helpless ^L^> misakeen should have ^iU* j JJ^>
66 muddud o maaush assigned them.1'*
" And that, for the support of the shrines and sepul-
" chres
* Inst. p. 357,
94 TENURES UNDER THK
" chres of the saints, £-*?lJ^ lands should be appropriated
Ox-
" by wukf (benefice), and that J~f fursh, carpeting, ^
" aush food, and t/^jj roshnaee, light or lamps, should
" be allowed."*
The word C->^£-j seyoor ghullaut is the plural of
^\£jy+* seyoorghal, and has the same signification as mud-
dud maaush, viz. &*£ ^U^> 6<\<o ^j\^ &£ <-£tf"?" " ^at
" which they appropriate as muddud maaush.*''-|-
All the above appropriations of Timour are in strict
and literal conformity to the Moohummudan law. How,
then, the grant by muddud maaush, the origin and nature
of which are here so clearly seen, should have been im-
posed upon us as a " perpetual rent-free transferable te-
" nure," is difficult to be accounted for, unless we ascribe
it to the extreme state of anarchy into which the country
had fallen immediately preceding our accession to the De-
wanee ; the enormously valuable " gift," which that con-
ferred, producing on our government a proportionate dis-
regard of minor objects ; and, probably, what was then
politic, a wish prevailed to leave things as much as pos-
sible as they were found, rather than, by strict scrutiny
into tenures, to give alarm, and elicit the ill-will of the
people.
Aeemah tenures differ in no essential way from muddud
maaush ; though, in some provinces, as in Bengal, a small
rent is paid, as before noticed.
Jageers. The tenure by jageer is recognized by our go-
vernment as resumable. It is resumable when the grantee
ceases
* Inst. t Madar-ool Afazil, Dictionary.
MOOHUMMUDAN GOVERNMENT. 95
ceases to exist : and so may the altumgha grant, though
" from father to son in lineal succession," be strictly said
to be resumable, when the series of grantees is at an end.
By the law of India, the tenure by jageer would be legal,
to the extent of a decent maintenance to the holder, his
wife and children under age. Beyond that, it is not in
the power of the crown to alienate the public revenue ; and
the grantee must be of the class of persons to whom the
law allows public maintenance.
The prevalence of jageers seems to have had its origin
in the mode practised by the Moghul government, fol-
lowing Timour, as above noticed, of paying its servants.
Men of importance in the state, or who had performed
services (or favourites, doubtless also) received titles : but
jageers were appropriated peculiarly to military chiefs,
called munsubdars, who ranked by their commissions for
the command of so many horse. For each horse and
horseman the munsubdar was allowed, if on full pay,
eight thousand dams, or two hundred rupees, yearly. For
this the munsubdar, for instance, got an order on the
province where he commanded, for the subsistence of his
troops. This order is vulgarly called a tunca or tunka ;
but the word is x\jz&j tunkhaw, that is, " as much as is ne-
" cessary for the body," from ^ tun, a body, and (.^\^
khuwaustun, to want or require ; so that, in fact, its
meaning is nearly synonymous with that ofmuddud maaush,
a subsistence.
By the officers of government, this order, or tunkhaw,
was made more specific; and a particular pergunnah,
perhaps, or village, or number of villages, were assessed
with this tunkhaw ; or the pergunnah, or village itself,
given over in lieu of the stipend. The crown became
weak,
96 TENURES UNDER THE
weak, the assignee powerful; and thus a simple assign-
ment on the revenue for subsistence has grown into an
hereditary tenure.
These four are all the tenures existing in India, which
were supposed by the English government to flow imme-
diately from the crown. The inferior tenures, as nuxzurc
durgah, kharige jumma, maafee, sirshikun, khyraat,
nankar, enaam, peeran, fukeeran, churaughee, are all
either Arabic or Persian words, doubtless introduced by
the Moohummudans, and were grants, by Moslem zumeen-
dars, or talookdars, or chowdries, &c. ; but as none of these
classes of persons could have, by law, any personal right in
perpetuity to rent-free lands, they could, consequently, con-
vey no such right to another ; and therefore, in a question
referring to the public revenue, such minor grants must
be discarded entirely.
Still less can we attend to the residue of this long list,
which is composed of grants of a similar nature, made by
Hindoos for the maintenance of their religious and chari-
table establishments. It is quite impossible that any of
those could ever have flowed from a Moohummudan crown ;
and, as private grants, they could not have affected the pub-
lic revenue. Burmootur, bhoguewitter, bhatotur, bishnotter,
dewotter, are grants of this kind : and with respect to the
neejjote, also khomar lands, the former the zumeendar
relieved from the revenue, by putting the whole sum of
this assessment on the rest of his lands, and cultivating
this spot under his own superintendence, as the word sig-
O f C
nifies ; the latter, jU^ Khomar in Hindee, in Persian ^j^
khurmun, probably orignated from the name of a spot
near the village, or in the most eligible place, where the
corn at harvest time was brought to be threshed and
winnowed.
MOOHUMMUDAN GOVERNMENT. 97
winnowed. This spot was excluded from the revenue by
the zumeendars, and probably a considerable appendage
adjacent. They are here noticed merely to shew that they
are not overlooked.
The intelligent Gholam Hoseyn Khan, before-quoted,
was asked, u Can a zumeendar give, sell, or alienate from
" the public assessment, any part of his land ?" Answer.
" If he be the real proprietor, he may transfer his zumeen-
" dairy : but since he is liable for the public revenue, if a
" deficiency in the revenues should be the consequence of
" such alienation, he (the zumeendar) must be responsible."
He ought to have added, and so is the land transferred
responsible, and cannot be relieved from that responsibility,
into whose hands soever it may be transferred. It is the
land, indeed, which is emphatically held to be responsible
for the public revenue.
The loss of revenue, which government has thus suffered
by sustaining such titles as the above, is beyond all belief
enormous. The Moghul government, our predecessors,
were not exposed to this ; for, besides that they exacted
from the persons who might hold rent-free lands services as
an equivalent, such as keeping up a force to preserve the
peace of the country, and to aid the king when occasion
required, police establishments, &c. &c. ; when advisable,
the crown, knowing its right, stood on no ceremony in
resuming such grants.
In the reign of Akbar, the revenue of the province of Ben-
gal, including however Orissa, as far as Rajahmundry, was
1,49,61,482 rupees ; and the zumeendars (if they possessed
rent-free lands, which doubtless they did) were bound to
furnish, in addition to their assessment, 23,330 cavalry,
H 801,158
98 TENURES UNDER THE
801,158 infantry, 170 elephants, 4,260 cannon, and 4,400
boats. The revenue of Behar was 55,47,985 rupees, and
it furnished 11,415 cavalry, 449,350 infantry, and 100
boats.
Mr. Grant, in his Analysis, says, " it is not to be under-
" stood by this, that the zumeendars were bound to fur-
" nish that number of troops, See. in addition to the
" revenue; but only that the province was capable of
" furnishing them in case they were required."" But in
this I do not agree with Mr. Grant. The meaning is,
that when called upon, the province was bound to furnish
that quota, the capability being of course implied. The
small zilla of Tiprah, which is within the province of
of Bengal, is stated in the Ayeen Akburee to be subject to
a chief whose military force is 1,000 elephants and 100,000
infantry ; and Coach (Coach Behar) to a chief who com-
mands 1,000 horse and 100,000 foot. The quotation is
stated thus: " also" to furnish 23,330 cavalry, &c. Besides,
are we to suppose that the whole province of Behar could
only furnish 100 boats, its stated quota as above ?
The British government has not only relieved the people
from such burdens as these, but has continued the old,
and admitted a great variety of new, exemptions from
revenue; and, moreover, has seldom, if ever, availed itself
of the customary exercise of the power of resumption of
jageers and other rent-free lands.
The translator of the Seir-ool Mootuakhereen pays the
English a compliment for their liberality, at the expense of
their management, on this point. " In their dominions of
"> Bengal and Behar," says he, " they indeed resumed a
" number of grants ; but it must be allowed that they con-
" firmed
MOOHUMMUDAN GOVERNMENT. 99
" firmed an infinity of others, one-half of which afforded
" full grounds for resumption."
How far it is politic, or even just, to continue these
exemptions from the public revenue, will, I think, admit of
being very seriously questioned. It may be questioned
how far it is equitable, whilst a great and increasing
public debt has accumulated, so as to embarrass the func-
tions of government, by compelling them to reduce public
and necessary establishments, and the hard-earned allow-
ances of public servants, that the revenue should be suf-
fered to remain in defalcation by exemptions from assess-
ment to an enormous extent. It may be affirmed, that
whilst this is tolerated, numerically taken, full one-half of
the European officers of government are sacrificing their
lives for India, on allowances reduced to a bare subsistence
without any prospect of ever being able to visit their native
country.
It is not where there is no stimulus to exertion that we
are to look for improvement ; nor should one portion of
the people be made to bear the burden of the other in
supporting the exigencies of the state. What would the
people of England say, were a great portion of the finest
lands in their country, with all its inhabitants (for that is
in effect the case here, there being no other tangible property
to tax), totally exempted from taxation ? On this point I
do not, however, propose to enter at large; but shall
content myself with having shewn the law applicable to
such grants, in hopes that the proposition may yet be
useful.
In the ceded and conquered provinces of the Dooab, &c.
alone, there are now rent-free lands " beegahs 44,95,177,"
H 2 as
100
TENURES UNDER THE
as reported by the Board of Commissioners ; and stated
to be " superior to the average value of the other lands,
" and equal to those of the highest rent ;" in which case
they would yield an annual income of 1,23,61,736 rupees,
or pounds sterling, at two rupees per beegah, ^1,236,173
and in the lower provinces, exclusive of Cut-
tack, there is stated by Lord Teignmouth,
from the investigation held in 1777, to be
beegahs 83,75,942; which, at one rupee and
a half per beegah, would be 1,256,391
making together the enormous sum of. <£J2, 492,564
Mr. Colebrooke, in his Husbandry, states " the free
" lands in some pergunnahs in Sherefebad and Tajpur,
" to have been ascertained to be
Free Lands. Cultivated.
4 more than one halt ot the whole Beegahs. Beegahs.
" productive soil ;" thus, 298,275 524,909
" And, again, in other places 143,042 301,131
" Total 441,317 826,040*
Here, then, is a grand source whence much might yet
be recovered to government. There is another in uncul-
tivated land, which I shall now briefly notice.
The ancient tenures in existence at the Moohummudan
conquest, fell, as I have already shewn ; consequently no
plea of exemption from revenue, founded on them, can be
sustained.
By the Moohummudan law, the land revenue of the
crown was fixed on the arable land only. That alone was
given away to the husbandman, who became the owner.
All
* Husbandry, p. 18.
MOOHUMMUOAN GOVERNMENT. 101
All other lands remained the property of the state, and
were ready to be given aWay, on application, to any one
who would undertake to cultivate them. If he did culti-
vate, well; if not, within a reasonable time, which was
limited to three years, the land was taken from him, and
might be given to another. By law, therefore, it is evident
that no right can exist, in any individual, or body of in-
dividuals, to any other description of land than that which
is cultivated.
Timour says, " I ordained that the khurauj should be
" levied agreeably to the produce of the cultivation, that
" the jumma should be fixed on the produce of the land."*
The revenue per beegah, by Akbarrs settlement, is cal-
culated at one and a half to two rupees. Had the uncul-
tivated land been included, the amount of land-tax, at this
rate per beegah, would have far exceeded the value of the
whole produce of that which was cultivated, and therefore
could not have been paid. The produce of a beegah of
ordinary land is stated in the Akburee at 4 maunds 12 seers
wheat- value, 12 dams, that is 12-40ths of a rupee, per
maund ; or, per beegah, one rupee five annas. A second
crop might yield nearly as much ; both about two rupees
ten annas per beegah. If half the produce, or one rupee
five annas, be given for the expense of cultivation, we shall
have nothing to spare for uncultivated land.
We see, therefore, that the practice of India corres-
ponded with the written law in this ; for in the reign of
Akbar it was the cultivated land only that was measured ;
it was the cultivated land whose value was ascertained, and
it was the cultivated land that afforded the datum for
making his decennial settlement : and it was from the
records
* Institutes, p. 363.
102 TENURES UNDER THE
records established on that basis that the revenues of these
provinces were limited for ever, by what is called the
permanent settlement. Consequently, by the law of India,
all the uncultivated land (which is, according to Mr. Cole*
brooke, " one half, and about half of which is capable of
" cultivation, the other half irreclaimable, or in rivers
" and lakes'1) * of the whole of the three provinces still re-
mains the property of government : for without an express
equivalent and specification of revenue, there existed no
power legally capable of giving away uncultivated land,
by any lawful deed of conveyance, or any legal mode
whatsoever.
Nor, in equity, can uncultivated lands be deemed to
have been given away, because no equitable value was put
upon them by either party to the permanent settlement.
It was the productive land, the rent-paying land, that was
the subject matter of settlement between the parties ; and
that rent-paying land consisted of " villages ;" for all the
land of the country resolves itself into the land of such or
such a village. There are larger and smaller divisions ;
but this is the most definite and best known, and, therefore,
I follow the native registers in adopting it.
The quantity of land belonging to every village is stated
in beegahs : the boundaries perhaps specified, but pro-
bably not well-defined. One of the contracting parties
to the permanent settlement, at least, (the zumeendar) was
therefore bargaining for a specific quantity of land which
he knew. This quantity of land was the land in cultivation,
and it must have been so; for the zumeendar had no
capital to enable him to offer a rent to government for
land that was not immediately productive; nor could
government
* Remarks on Bengal.
MOOHUMMUDAN GOVERNMENT. 103
government have believed that he had, without entertaining
the most extravagant fancy. I say, therefore, that not
only the law, but even the equity of the case, is against the
alienation of the uncultivated land.
But the discussions which took place, on the occasion of
the permanent settlement, do not lead us to suppose that
all the members of government intended to give away the
uncultivated lands. Mr. Shore, in his minute of 8th De-
cember 1789, speaking of waste land, says, " the limits of
" the villages are left undetermined by any marked boun-
" daries. The quantity of land in each, though stated in
" beegafiS) is confessedly unascertained (by us, for other-
" wise this is a gratuitous confession) ; the proprietors
" may, therefore, extend their possessions and encroach
" upon the present waste lands. The boundaries of vil-
" lages ought to be, and may be, ascertained ; and I think
" the government ought to know what it gives, and
" the proprietor what he receives. Mr. Law says that
" the boundaries of cultivated villages are well ascer-
" tained : if so, let them be marked and recorded. If the
" plan (the permanent settlement) should be attended with
" the improvement expected, the limits of estates will then
" become very important ; and, some time or other, there
" will be a necessity for defining them.11
From this it is evident, that Mr. Shore, the only mem-
ber of the government of that day who displays an accurate
knowledge of the subject discussed, did not intend to con-
vey to the proprietor of the village more than the land
ascertained to belong to that village ; which ascertainment
was " by beegahs" (whether measured or by computation
matters nothing), to which the jumma, or money-rent, had
reference.
Lord
104 TENURES UNDER THE
Lord Cornwallis, indeed, in his minute, February 3d
1790, gives us reason to think that his lordship designed
to be more liberal than his colleague ; for he says, " the
" rents of an estate can only be raised (to the profit of
" its proprietor) by inducing the ryots to cultivate the
" more valuable articles of produce, and to clear the exten-
" sive tracts of waste land) which are to be found in
" almost every zumeendarry in Bengal." But his lordship,
in the preceding paragraph, has just told us, in answer
to an argument of Mr. Shore, " neither is prohibiting the
" landholder to impose new abuabs, or taxes, on the
" lands in cultivation, tantamount to saying to him he
" shall not raise the rents of his estate."" But we are not
told, if a landholder may not raise the rents of his lands
in cultivation, what profit he is to derive from lands paying
money-rent (or a specific quantity of grain named), by
" inducing ryots to cultivate the more valuable articles of
" produce" And did his lordship intend giving away, for
nothing, the whole of the " extensive tracts of waste land
" in Bengal ?" This is not understood by the government,
nor by any one ; and, therefore, we may fairly mark this
as a paragraph conveying no meaning whatsoever.
The act, under the authority of which the permanent
settlement was made, gave no power to grant waste land.
It is the 24th George III., chap. 25, sect. 39. By this
section, the Court of Directors were required to give
orders for settling and establishing " upon principles of
" moderation and justice, according to the laws and consti-
" tution of India, the permanent rules by which the tri-
" bute, rents, and services of the rajahs, zumeendars,
" polygars, talookdars, and other native landholders,
" should be in future rendered and paid to the United
" Company."
Here
MOOHUMMUDAN GOVERNMENT. 105
Here there is no authority to give away waste land, or
uncultivated land, or indeed land at all ; nothing in the
most remote sense authorizing the giving any permanent
right to land of any kind. It is " to fix permanent rules
" for the payment of rents, tributes, and services due
" from native landholders," such as rajahs, zumeendars,
polygars, talookdars, to the Company ; affording a pre-
sumption, indeed, in direct opposition to the idea of pro-
perty in the soil existing in any of the classes of persons
mentioned. And these " rules for paying rents'" were
ordered to be fixed " according to the law and constitution
" of India.11 Now the law and constitution of India debars
even the Emperor himself from giving away one inch of
waste, or any other land, without an equivalent.
It appears, therefore, that by the law and constitution
of India, there is no tenure by which land can be held
which is capable of exempting it, permanently, from the
public revenue ; yet that, in point of fact, the extent
of rent-free land is enormous. It also appears that the
extent of waste, but cultivable, land, is very great ; and
that, by the law of India, such waste can belong to no
individual till it has first been given by the Crown and
assessed with the public revenue.
That government, therefore, possessing those legitimate
sources for increasing the public revenue, in the perma-
nently settled provinces of Bengal, Behar, &c., should
nevertheless continue to struggle against the burden of an
overwhelming debt, whilst many of the zumeendars are
in receipt of a surplus revenue equal to that of a petty
principality, seems wonderful self-denial. But when, as is
now the case, this self-denial involves in it the fortunes and
fate of a great proportion of the public servants of the
state,
106 TENURES.
state, many of whom have now a very inadequate recom-
pense, such a line of policy presents itself in a very ques-
tionable light.
Let it not be imagined that I desire to oppress the
people. I have stated my opinion strongly, in order to
excite attention to reform. If there be fiscal oppression in
India, it is not the amount, but the inequality of the assess-
ment, which occasions it. To remedy this is the duty of
the local governments — and a more important duty they
cannot undertake.
( 107 )
CHAPTER III.
ON TAXATION AND REVENUE UNDER A MOOHUMMUDAN
GOVERNMENT.
I NOW come to the sources of revenue available, and
taxes leviable by law, under a Moohummudan government :
in treating of which I shall endeavour, also, to state what
imposts, de facto ) existed under the Moohummudan govern-
ment of India. It must, however, be previously remarked,
that as the Moohummudan law was framed for a people,
nine-tenths of whom were Moohummudans, when it came
to be applied to a people, as in India, of whom nine-tenths
were not Moslems, it could scarcely be hoped that a very
literal adherence to it was practicable, or will now be
found. The general principles of the law, however, were
no doubt observed ; and to shew this must suffice.
By the Moohummudan revenue-laws, a distinction is
made between the Moslem and the Zimmee, or non-Moslem
subject, to which it is necessary to attend. This distinc-
tion is great with respect to the land-revenue ; but it is
applicable, only, to the land of Arabia Proper, and to
conquered provinces, when the lands are divided among
the conquerors. There the Moslem pays the ooshr, or
tithe of his crop ; the Zimmee, the heavier impost of khu-
rauj, which by law may amount to, but cannot exceed,
half the produce, i. e. five tithes. But, on the other hand,
the Moslem is liable to several annual and occasional taxes,
from which the Zimmee is exempt, amounting to about two
108 TAXATION AND REVENUE UNDER
or three per cent, of his property (not of the produce
merely), under the name of sudukah and xukaut, or pious
benevolences. I use this word because the English reader
will recognize it.
But as India was conquered by force of arms, and the
inhabitants were suffered to remain in it, and their lands
were restored to them on paying the capitation-tax and
the khurauj, or land-revenue, by law the whole land of
India is khuraujee land, the Hindoo and other inhabitants,
unbelievers, are Zimmees, and the land is liable to the
khurauj, whether it be in possession of a Moslem or of
a Zimmee. This is the law of Moohummudan conquest ;
and the fact corresponds with the law, for the land of
India is known, and universally acknowledged, to have
been subject to khurauj. By law, the ooshr and khurauj
cannot both be exacted from the same land ; consequently,
in India, the land-revenue payable by a Moslem and a
Zimmee, by law, would be the same, and so de facto it
was. The Moslem paid the khurauj, and so did the
Hindoo.
The public revenue, by the Moohummudan law, is
drawn from the following sources. The ooshr, or tithes,
from the produce of the soil ; the khurauj, from the pro-
duce of the soil, or from the land, if fixed on the latter ;
tribute, of tributary states ; the customs ; the zukaut (or
tax) on pasture-cattle, camels, oxen, goats, sheep, and
horses ; %ukaut> on gold and silver coin, bullion, plate,
jewels, merchandize and goods ; offerings at the eeds or
festivals, expiatory sin-offerings, and things offered by
vows : all these being exactions from Moslems only. The
capitation-tax on non-Moslems ; thejtfth of prize or plun-
der, of the produce of mines, of treasure-trove, of wrecks ;
escheats.
MOOHUMMUDAN GOVERNMENT. 109
escheats. The sovereign has the power also of raising a
war-tax from the people in case of war ; but this, without
necessity, is repugnant to the spirit of the constitution, and
therefore held in reprobation, unless in case of emer-
gency.
Timour had, attached to his dewan or exchequer, seven
wuzeers, or ministers, for the above purpose, as before
noticed.*
The first of these Moohummudan imposts, viz. tithes.
These are termed jLL ooshr, which signifies a tenth-part,
or ten per cent, on the produce of tithe-land. This only
Moslems paid. The ooshr, or tithe of produce, was never
levied in India, as already stated, because the country
having been subdued by force of arms, and the inhabitants
suffered to remain in it as free men, their right to the
soil was, on their agreeing to pay the legal imposts, esta-
blished ; and the lands became khuraujee, and not ooshree
lands.
This Moohummudan impost is taken from the Jews, by
whom it was called *H0yo maasher ^ZJi* ; that is^l^c ooshr,
or aasher with the addition of m : in fact, another inflexion
of the same word. When the Hebrews were contemplat-
ing the possession of Canaan, Moses ordained that they,
when they got possession thereof, should, besides the
revenues of fortv-eight of the most flourishing cities, &c.,
grant to the priests and Levites a tenth-part of the annual
produce of the earth ; mrv^ pNH "K0yD boi " and all the
" tithe of the land (whether of the seed of the land or of
" the fruit of the tree) is the Lord"s."f
Secondly,
* Inst. 305. Levit. xxvii. 30.
110 TAXATION AND REVENUE UNDER
*• s
Secondly, the ^\f^9khurauj. The revenue originally fixed
on the land of conquered provinces, not inhabited by the
conquerors, was called khurauj. It is said, in law, to be
fixed " on the neck of the land." Meaning, that the land
itself is liable for the land-tax, independent of the owner ;
which liability cannot be affected by any transfer, or other
mode of conveyance. For example, the principle of the
law is, that the lands of a J/osfem shall only pay tithe ;
those of a non-Moslem subject, khurauj. But though a
Moslem purchase the khuraujee land of the Zimmee (non-
Moslem), it continues, nevertheless, to pay khurauj ; be-
cause the law holds the soil liable : the right of govern-
ment to the khurauj, or, as the law has it, " the right of
" the troops (and other public officers to whose use the
" khurauj is by law appropriated) must not be defeated."
The khurauj was fixed in two ways : one, on the prin-
ciple of a share in the produce, as a half (the highest), or
a third, or a fifth ; the last considered as the lowest
extreme. This settlement was termed mwokausumah, from
L^v^Uf kismut, division, i. e. the cultivator dividing the
produce with the state. The principle of this settlement,
therefore, is similar to tithing ; the rate only is higher :
and in this settlement, if there was no cultivation there
was no collection.
The other mode of fixing the khurauj (which was the
radical mode, so that if the word khurauj simply is used,
it is held to mean this mode of settlement) had reference
to the quantity of cultivated land possessed, and the kind
of crop produced. The rate of khurauj was fixed for the
different kinds of crop the land was capable of producing.
The land was measured, and each jureeb (or, as it is called
in
MOOIIUMMUDAN GOVERNMENT. Ill
in India, beegah) of sixty squares of nearly yards, if it pro-
duced wheat, paid a measure of wheat and a dirhum in
money. Other dry crop paid also in kind and in money
per jureeb; but all green and perishable crops paid in
money only. This mode of settlement was called mookau-
tuaah, from ^JaS kutaa to cut or settle, definitely. Thus
certain lands produce a certain crop. The quantity of the
land is known by measurement ; the rate is fixed ; conse-
quently the quantum of revenue is fixed. This was a true
" permanent settlement? By the former, or mookausumah
settlement, the quantum of revenue was not fixed, but
depended on the harvest and on the cultivation.
The khurauj was leviable, under the mookautuaah set-
tlement, whether the owner cultivated or not ; provided
he was not prevented from doing so by some inevitable
calamity, as inundation, blast, blight ; or if he was de-
prived of his field by force, he was not liable. A corn-
field paid the khurauj of corn for each jureeb, a kufees of
wheat and a dirhum ; a vineyard, the khurauj of a vine-
yard, vix. ten dirhums per jureeb.
The word jureeb t-^Oy^- Heb. ana jureeb, was, men-
sura, a vessel, a measure, Buootorf. But its use among the
Hebrews seems restricted to a measure of capacity, not of
quantity or long measure, as understood by the Arabians.
A jureeb of wheat-land, I have stated, paid a kufees (a
measure of about nineteen pounds) of wheat, and a dir-
hum in money ; which is six annas and four elevenths, or
about ninepence halfpenny sterling : calculating the rupee
at two shillings, the intrinsic value of the silver being
about two shillings only. The wordJ-AJJ kufeex is also
Hebrew
112 TAXATION AND REVENUE UNDER
Hebrew Kf'Dp ]}+& &w/ee#&,mensura,modiustriumlogorum,
Buxtorf. A log contained the fourth of a kab, a kab the
one hundred and eightieth part of an omer, an omer eight
bushels. The value of nineteen pounds of wheat might
be about two or two and a half dirhums more. In the
Ayeen Akburee, however, it is stated at three dirhums ; so
if we take that value for the wheat, the land-revenue or
assessment of a jureeb of dry crop is three shillings and a
penny sterling, or one rupee nine annas per beegah.
It appears that before the time of Shere Khan, the
mookausumah settlement prevailed in Hindoostan. The
Ayeen Akburee says, " Shere Khan and Selim Khan, who
" abolished the custom of dividing the crop and made a
" measurement of the cultivated lands, used this guz "
of thirty-two fingers. And Akbar seems to have restored
the mookausumah settlement, with conversion into money
of the government-share, in some of the provinces. Of
the fifteen soubahs which composed his empire, ten were
measured. The remaining^ue soubahs were not measured ;
but the revenue was settled by nussuk, or computation,
and valuation of the crop before harvest, and was paid in
money. This was the custom in the province of Bengal.
The soubahs not measured were Cashmeer or Cabul,
Tatta, Berar, Khandees, and Bengal: those measured
were Behar (part at least), Allahabad, Oude, Agra, Mal-
wah, Guzerat, Ajmeer, Dehli, Lahore, and Moultan.
The measurement of the cultivated lands thus made, and
the ascertainment of the average produce of a beegah, were
the data on which the assessment was formed. One-third
of the average produce was fixed as the revenue ; but in
cases of inundation, or other unavoidable calamity, the
impost was less for the first four years following it. On
the
MOOHUMMUDAN GOVERNMENT. 113
-»
the above basis, taking the average of ten years, Akbar
made a decennial mookautuaah, or permanent-rate settle-
ment, which is stated to have given great satisfaction to
the people.* This was done under the superintendance of
Raja Tudur Mull and Muzuffur Khan. It is the settle-
ment so often alluded to by writers on this question ; and
the amount assessed is known by the name of the ussul
toomarjumma, established A. D. 1582.
The Moolmmmudan law, as I have observed, allows the
khurauj to be levied as high as one-half. Some lawyers
say, as much shall be left to the husbandman as will main-
tain his family, servants, and cattle till next crop, and all
the remainder shall go to the crown ; but one-fifth of the
produce is deemed the equitable and commendable portion,
being double the ooshr, or double tithe. The Ayeen
Akburee says, " former rulers of Hindoostan took one-
" sixth ; but then they imposed a variety of other imposts,
" equal to the whole quit-rent of Hindoostan, which Akbar
" abolished : among these, the capitation-tax." And, ac-
cording to Pliny, the husbandman paid one-fourth of the
increase.
Ferishtah tells us, " that Allah the First ordered a tax
" of half the annual produce ; that he appointed officers
" to superintend the collectors, who were ordered to take
" care that the zumeendars levied no more from the poor
" farmers than in proportion to the estimate of their
" estates." The Moohummudan law, in cases of inunda-
tion,
• The Ryotwar settlement of Sir Thomas Munro is the Mookau*
tuaa settlement ; except that we are not distinctly told by him that
his rates were permanent ; and money alone was paid by the Rvot-
war system.
I
114 TAXATION AND REVENUE.
tion, or when the crop was blighted or blasted, or otherwise
destroyed by unavoidable calamity, granted a remission of
the khurauj. It also says, that " if the husbandman is
" unable to cultivate the land, government shall lend him
" as much as will enable him to do so, taking from him a
" surety : the loan to be recoverable by easy instalments,
" but to be a debt against the person of the cultivator."*
We accordingly see that Akbar, in his instructions to his
amilguzzars, ordered them " to assist the needy husband-
" men with loans of money, and to receive payment at
" distant and convenient periods." These advances are
known to India at this day under the name of tuccavi ;
and the custom of making them is practised, almost uni-
versally, by all land-holders.
It may not be uninteresting to compare the rates of
assessment in India, during the Moghul government, with
those recognized by the Moohummudan law. In the pro-
vince of Behar, for instance, the measured land of 138,
out of 199 pergunnahs, contained 2,444,120 beegahs. Sup-
pose every beegah to be rated as dry-crop land, the very
lowest rate, at three shillings, it would give ^366,618
sterling (rupees 36,66,180) ; and we find the jumma of
that province stated in the Akburee at rupees 43,16,004
(^431,600. 10s.) ; difference, rupees 6,49,824 (,£64,982) :
which if we set off against the superior revenue which
would fall to be levied from that part of the lands which
produced green crop, which paid five shillings, and vine-
yards as high as ten shillings, the estimate will bring the
amount of assessment fixed by Akbar, on the cultivated lands
of Behar, as near the rate specified by the Moohummudan
law as it is necessary, in an inquiry like this, to trace it.
The remaining sixty-one pergunnahs of the province of
Behar,
* Zcy laaee.
MOOHUMMUDAN GOVERNMENT. 115
Behar, the land of which was not measured, were rated at
sicca rupees 12,30,940. Total revenue of the province,
sicca rupees 55,46,944, minus rupees 55,803 of seyoorghal,
or charitable funds and poor's rates ; which, it may be re-
marked, is one per cent, on the revenue. The province
furnished also 11,415 cavalry and 449,350 infantry, and
100 boats.*
Timour exacted from lands irrigated by water from
rivers, canals, or rivulets (easy irrigation), one-third of the
produce ; convertible, at the pleasure of the ryots, into
ready money, at the market price : and if the ryots were
not pleased with this, the lands were to be measured into
jureebs, and classed into first, second, and third classes.
The produce of the first class was to be estimated at three
kherwars or loads ; that of the second at two ; that of the
third class at one kherwar; average two kherwars, per
jureeb : half, or one kherwar, to be taken as wheat, the
other half as barley. The settlement or assessment was to
be for one-half of this : so that for twenty jureebs of land
watered as above, ten kherwars of wheat and ten of barley
were payable. The barley was reckoned half the value of
wheat. Or if the ryot chose to pay in money, he might, at
the rate of five miskauls-f- of silver (value about four shil-
lings and eightpence sterling) per load, for wheat, and two
and a half miskauls per load for barley (two shillings and
four-pence value) : so that, by this reckoning, the khurauj
of a jureeb would be three shillings and six-pence sterling, or
one rupee twelve anas, which would be somewhat more than
the rate charged by Akbar. But then a tax was levied by
His
* Akburee.
t A miskaulis equal to If dirhum ; a dirlmm is equal to 6/j anas :
so a miskaul is equal to 9| anas.
i S
116 TAXATION AND REVENUE.
His Majesty Akbar, " in return for the cares of royalty, of
" ten seers of grain from every beegah of cultivated land
" throughout the kingdom." *
This would raise the land-tax of Akbar to about five
shillings and sixpence per jureeb. Nor must we forget that
Timour levied only a third, or a fourth, from lands which
depended on rain for their fertility, which would probably
diminish the general rate below those fixed by Akbar.
Since Akbar's time, another impost was, by royal autho-
rity, fixed ; first upon the southern provinces of the Duk-
hun, and afterwards it became general over that part of
India, to be paid to the Mahrattas, by a treaty of peace
made with them, in Bahadoor Shanes reign, in the year of
of our Lord 1701. This was called the dusmutfJiee, or
tenth handful : that is " the tenth of that part of the crop
" allowed the farmer."-}- This was a tenth of two-thirds
of the produce, for that was the general share of the farmer
(or about 6. 6 dec. per cent.).
Besides this, a fourth of the government-share of the
revenue was afterwards accorded to those marauders,
apparently, at first, gratuitously and without authority, by
Daood Khan Peni, who was left locum tenens for Zoolfukar
Khan, Soobadar of the Dukhun. This was called the
chout, or fourth ; and has been erroneously supposed, by
many, to be a fourth of the produce. It was not confirmed
to them till the reign of Ferukhsere, who ratified it by an
imperial firman, about the year of our Lord 1715. The
chout of one shilling and three-pence, or about 8. 3 dec. per
cent., making, together with the dusmuk'hee, fifteen per
cent.,
* Ayeen Akburee, vol. i. p. 287. I Seir Moot., vol. iii. p. 221.
f
MOOHUMMUDAN GOVERNMENT. 117
cent., or about one-seventh of the whole produce of the
Soubah of the Dukhun and southern provinces, vi%. Poo-
nah, &c., was the acknowledged revenue of the Mahrattas
on those provinces.
The third source of Moohummudan revenue was tribute
of tributary tribes or states. This has no limit, but is
settled by convention, and is arbitrary. The Bunne
Toghlib, a tribe in Arabia, paid double ooshr, that is, one-
fifth, as tribute.
The fourth, the customs. This is known in law by the
term ooshr-oot tujaurut, or tithe on merchandize, when
in transit. A modus, or taxable amount, vi%. two hun-
dred dirhums, was fixed, below the value of which no
tax was levied. It was to a Moslem about two and a half
per cent. ; to a Zimmee, five per cent. ; and to a Hurbee,
or subject of a foreign state, ten per cent., or whatever his
government charged on the property of Moslems, when
that was ascertained. If they charged no duties on Mos-
lem merchandize in their country, then their subjects were
exempt in the Moohummudan dominions. The Moslem
and the Zimmee paid only once in one year, but the foreign
merchant was charged as often as he passed into the Moo-
hummudan dominions.
This is the Moohummudan law, by which their trade
with foreign states was regulated ; and it must be confessed,
that the liberal principle of reciprocity is worthy of a more
enlightened age.
The sovereign, by the Moohummudan law, has the sole
charge of the customs. They are levied, as is stated, " for
" the protection of the roads from robbers and thieves ;"
and
118 TAXATION AND REVENUE.
and it is remarkable that it is the same by the old English
law, and that the same reason is assigned by the English
lawyers for levying customs, " that they are vested in the
" king, and that foreign merchants are to be chargeable
" with double customs.""*
In India, therefore, five per cent, would be leviable from
the merchandize of Hindoos, and other non-Moslem subjects,
in transit, and two and a half on that of a Moslem. Timour
had his collectors of customs and his minister to receive
this revenue : " the duties on the merchandize of comers
" and goers, also the taxes on cattle (as below) and on pas-
" ture-lands."f
It is stated of Akbar, " that he remitted duties on ex-
" ports and imports by sea that would equal the revenue
" of a kingdom, and now nothing is exacted but a trifle of
" two and a half per cent.^J
The fifth source of Moslem revenue is xukaut on cattle,
or cattle-tax : that is, on camels, oxen, sheep, and goats.
The original signification^ zukaut is purity ; to purify,
Heb : riDt zukah, " pure, clean," istn " wash you, make
" you clean," Isaiah i. 16. ist tfV lazukoo, " they are not
" pure," Job xv. 15. The word " %ukaut" has evidently
been introduced into finance with the view of creating a
belief, that by giving a part " to the Lord" the residue,
including the donor, of course, becomes thereby more pure,
and of a higher value. The giver derives spiritual exalta-
tion from the act ; and who is there that would hesitate to
purchase so important a benefit on such easy terms?
It is, however, only " for brood cattle, which pasture out
" of
* Blackstone, b. i, 68. t Institutes, page 303.
t Ayeen Akburee, vol. i. 296.
MOOHUMMUDAN GOVERNMENT. 119
" of doors for the greater part of the year," that this pious
impost is payable. I call it an impost, because it is com-
pulsory. In case of non-payment, the magistrate has the
power of compelling the individual to pay it, on pain of
imprisonment. The way in which this power is expressed
is curious. The lawyers say the judge shall not force the
person to pay his zukaut ; but he may imprison him till he
do pay it. Moslems, only, are admitted to the privilege of
paying zukaut. Unbelievers are not so easily purified;
and they were not suffered to attempt it in this way. " Do
" not you see," say the grave doctors, " that even hell-
" fire itself is incapable of making the unbeliever pure :
" how then can they be purified by means so inadequate ?"
A very conclusive argument, and one, at all events, not
likely to be impugned.
Labouring cattle, and cattle fed at home, were exempted ;
and of pasture cattle a rateable number was fixed, under
which no zukaut was payable. The zukaut on camels was
thus fixed : on five (the lowest taxable number of camels)
one goat was payable ; for one hundred camels, two three-
year-old camels were paid : about two per cent., supposing
a three-year-old to be of the average value. Young and
old are reckoned together, of all taxable animals.
Of kine, thirty is the lowest taxable number ; and for
that number a yearling calf was paid. For forty, one
two-year-old. Sixty paid two yearlings. One hundred
paid two yearlings and one two-year-old ; which may be
about the same value.
Of sheep and goats, forty is the lowest taxable num-
ber, and paid one ; but for one hundred and twenty no
more than one was chargeable. From one hundred and
twenty-one
120 TAXATION AND REVENUE.
twenty-one to two hundred, two were payable ; and one per
cent, for every one hundred above that number ; so that
one per cent, may be stated as the zukaut on sheep.
On horses, meaning a brood-stud. Horses paid nothing if
by themselves, nor mares if by themselves, but only when
they were kept together. The tax on horses was levied
either ad valorem, paying two and a half per cent. ; or if the
owner chose, he might pay by number, at the rate of ten
dirhums (ten shillings) a head. It was disputed, however,
by the lawyers, whether even brood horses were taxable, or
whether the law applied only to horses for sale. Mules
and asses are also chargeable, but only when they are mer-
chandise.
Timour and Akbar levied a tax on cattle, without re-
ference to the creed of the owner, whether Moslem or Hin-
doo. " If," says the Akburee, " khuraujee land is kept
" for pasture, let there be taken yearly from kine each three
" dams, and from buffaloes six dams. Calves shall not
" pay ; and for every plough the owner shall be allowed
" four oxen, two cows, and one buffaloe, that shall not be
« taxed."*
By the Moohummudan law, all labouring cattle are ex-
empt.
6th. Zukaut on gold and silver. The lowest taxable sum
was twenty miskauls of the former and two hundred dir-
hums of the latter (both the same value), and paid two and
a. half per cent. ; and the same per-centage was levied on
bullion, ornaments, and plate made of these metals.
6th. Zukaut on oorooze, or goods when merchandise, and
not
* Ayeen Akburee-
MOOHUMMUDAN GOVERNMENT.
not in transit. These pay ad valorem, yearly, at the same
rate as gold or silver. The stock of an artist or tradesman
even is liable to this impost. If a dyer, for example,
purchase a stock of dye, should its value amount to two
hundred dirhums and he keep up this stock for a year, he
is liable to zukaut. Every thing that yields a profit or
increase is liable to this tax, which may be called a species
of excise. The hire of the dyer is the profit or increase
which the law here contemplates. Every thing for sale,
or which " yields a profit to the owner, or which by his
" labour or art enables him to reap a profit, is included
" in the word oorooze, with the exception of silver, gold,
" coin of these, cattle, land, and its fruits," all of which,
as above, are liable separately. This tax is two and half
per cent. : and note, to make up a modus, or taxable
amount, the value of goods may be added to money, and
the duty levied from the whole.
7th, Alms at the eed of fetr. This is termed
sudukut-ool fetr. Every Moslem, male and female, sane
and of age, who, besides his house, household-furniture,
wearing apparel, his horse, his armour and arms, and his
labouring slaves, has two hundred dirhums of property,
is liable to this tax : " it is incumbent upon him." It is
half a sauaa of wheat (about nine pounds and a half), or a
whole sauaa of barley, or the same of dates, or of dry
grapes, at the option of the donor. This eed, or festival,
is held on the first day of the month of shuvaal, imme-
diately following the fast of Rumuzaun, the Moohum-
mudan Lent.
Under this head may be classed " expiatory sin-offer-
" ings" and " things offered by vows," as they all went
to
122 TAXATION AND REVENUE.
to relieve the poor, and, consequently, to lighten the
burden of them to the state.
To Timour's third minister was assigned the duty of
receiving religious donations.*
8th. The capitation-tax. This is termed <VJ^ jixeeah,
and signifies, in law, an equivalent given by the subjects
who are unbelievers for protection ; or, as some have it,
" an equivalent for sparing their lives." The word fajz?
ji%eeah is derived from *•«£ jooza, a part or piece of, *•-*.
junta, to give, to break in pieces, <u >sr tujxeeah, to be
satisfied with, or hold sufficient, Tjsj- juzau, an equivalent,
Soorauh. Heb. Mjoox, or \$ju%9 abscindere, excindere.
All non-Moslem subjects are liable to this impost, who
are males, adult, and able to work, whether they work or
not. There was an exception, however, to this, in Arabia
Proper. The capitation-tax was not accepted of the
idolaters of Arabia Proper ; their sin of infidelity being
aggravated by the birth of the Prophet among them.
These had the option of the faith or the sword. The
idolaters of all other countries might pay the jizeeah : and
in Arabia Proper, even the " kitaubees," <— taiill JLfct ahl-
ool kitaub (lit. people of the book ; that is those who had
a divine revelation, meaning Christians and Jews) ; also
9 '
^jjsr* the majoosees, the Persian majee, and foreign idola-
ters, *«*' ^ u^ *j£S aabdut-ool aousan min-il aajume.
These are declared to be eligible, even in Arabia, to secure
their protection by paying the capitation-tax. The author
of
* Institutes, p. 303.
MOOHUMMUDAN GOVERNMENT. 123
of the Kamoos says the word u~ys? mujoos is an Arabic
corruption of yZf> ^° maj gosh, which signifies " small
ear:"" a name which the founder of the magi religion got
from the remarkable smallness of his ears. The mujoosees
are worshippers of fire. "^ muj, ^U mauj, the moon;" also
9 C_ e.
" i^^o mug, ^o moogh, fire, a worshipper of fire."* The
o
word " idolater" is ^^\ *Ju£ abdut-ool ausaun, from ^
vusun, an idol. The author of the Soorauh says " ^ visun,
" also ^.ylj vausun, signifying firm, perpetual, water which
" perpetually flows; also an idol." Hence perhaps the
name of the Hindoo god Visunah, or Vishuna. I
say " hence," supposing the Hindoos to have borrowed ;
because the same root is found in the Hebrew with the
above meaning ]J1N authun, or asun, stetit, constetit, per-
tinax fuit. " Hence pj")N asun, asina, an ass ; because,*'
says the lexicographer, " it goes slow and often stops. It
u denotes generally a notion of constancy, also firmness,
" strength. It is also said of a sea, because with force
" and impetus it goes to and fro ; also a torrent." — Stock.
The amount of the capitation-tax is, from the wealthy,
forty-eight dirhums yearly ;•(• from the middle classes,
twenty-four ; and from the labouring classes, twelve dir-
hums, paid by monthly instalments. The owner of ten
thousand dirhums (or fifteen thousand, as some say) is held
to be in the first of these (the wealthy) classes ; the second
class consists of those who have property, but are not
altogether independent of their labour ; the third class
requires no explanation.
This
* Farhung e Jehangeeree.
t Each dirhum at six-and-a-half anas : this would be about twenty
rupees, as the capitation-tax of the wealthy.
124, TAXATION AND REVENUE.
This tax must have been enormously productive in
India. An annual tax on adult and able-bodied males, of
from two pounds to ten shillings sterling, on a population
of eighty or one hundred millions, allowing one-sixth to be
Moohummudans, and therefore not chargeable, would be
enormous. Take fifteen shillings (seven rupees) as the
average amount ; and allowing for females, children, Sec.
take one-sixth, or fourteen millions, as the average taxable
number of the non-Moslems, the amount in rupees would
be ninety-eight millions, or about ten millions of pounds
sterling ; more than a twelfth part of the whole land-
revenue of India, even in the reign of Akbar, which, for
his fifteen soubahs, was rated at about one hundred and
sixteen millions sterling, and nearly one-half of the whole
revenue of India at this day.
But the capitation-tax was extremely obnoxious to the
Hindoos, and was repeatedly abolished in India, and
as often revived, till the reign of Moohummud Shah, who,
at the intercession of Rajah Jey Sing, repealed it, for the
last time, as before-mentioned. This was about the year
1745 ; twenty years only prior to the grant of the De-
wanee of the provinces of Bengal, Behar, and Orissa to the
Company : so that, if the tax was then levied, there must
be many Hindoos now living who have paid it : all those
of the age of ninety and upwards.
This tax, though well known in Europe, has been con-
sidered by the Hindoos as a highly ignominious impost.
The reason is two-fold ; first, being levied only from non-
Moslem subjects, it marked an obvious distinction among
the people ; but, secondly, the very words of the law which
imposed it convey the most pointed degradation : it posi-
tively
MOOHUMMUDAN GOVERNMENT. 125
tively enjoins, that the jizeeah shall be paid by the Zimmee
in a humble and abject posture. " They shall pay the
" jizeeah with their hands ^j^> *kj vuhoom saugheroon,
" and themselves in a humble posture ;" but which words
have been interpreted by some to convey a still more de-
grading meaning. These tell us the receiver of the tax
shall call them to him, and say to them, " pay the jizeeah,
" • you infidel dog ;" and when he has paid it, as he retires,
he shall be kicked out. This no law-giver could ever have
authorized ; not even a Moslem. It is the interpretation of
a fool and a bigot ; but still it is of importance, as it tends
to illustrate the remarkable degree of repugnance which
the Hindoos evinced to the tax. It was not the amount
they objected to : indeed a Moslem, who paid zukaut on
his property, paid much more, probably, than the jizeeah.
Whenever the question was agitated, it was the total repeal
of the tax which the Hindoos solicited. The revival of
the jizeeah is a question which need not be discussed ; but
it cannot fail to be instructive to the Indian financier to
know the taxes, and the nature of them, which have here-
tofore existed in that country. The expediency of im-
posing a tax, especially on the permanently settled pro-
vinces, somewhat analogous, may be fairly considered.
With us the capitation-tax should be converted into
an income-tax, with reference to property, and not to
creed.
9thly. Fifths. This is termed u~*£~ khooms, signifying
a fifth. These are the fifth of prize or plunder taken in
war, of the produce of mines, of treasure trove, wrecks.
The fifth of prize or plunder, during the conquering days
of the Moohummudans, must have been a very productive
source of revenue. Of every thing taken in war, a fifth
went
126
TAXATION AND REVENUE.
went to the exchequer, the remaining four-fifths to the
troops " who were present at the affair."
Akbar, in his instructions to his Fojdars, directs them
" to act with fidelity in the division of plunder ; a fifth
" part of which he shall send to the royal exchequer." *
The produce of mines of gold, silver, copper, iron, lead
(some say quicksilver), paid a fifth ; but not limestone nor
sulphur, nor precious stones, as rubies, diamonds : metals
only were chargable.
Treasure trove. This term was applied to %e coin found
" hidden in the earth :" it paid a fifth. But if it was of
Moslem coinage, it was advertised for the owner ; if of In-
fidel coinage, the fifth was immediately paid, and the re-
mainder went to the original owner of the land wherein it
was found ; or if in one's own land, or in a desert, or in
land belonging to no one, the remainder went to him who
found it. The fifth of wrecks, also, went to the treasury.
Treasure trove must also have often escheated. " If
" a person find hidden treasure in the lands of another, a
" fifth goes to the crown, and the remaining four-fifths go
" to the owner of the land (meaning the primitive owner,
" to whom the lands were assigned at the conquest of the
" country, or his heirs), not to a purchaser or owner by
" any other tenure ; it shall rather escheat to the crown."
Timour's third minister had charge of the collection of
these duties.
10th, Escheats. When property was left without a
legal heir it escheated to the crown. In India, where there
were frequent instances of conversion to the Moohummudan
faith
* Ayeen Akburee.
MOOHUMMUDAN GOVERNMENT.
faith, it is probable that escheats often occurred ; for, by
the Moohummudan law, difference of religion bars inhe-
ritance : that is, if either party be a Moslem. A Hindoo
cannot inherit of a Moslem, nor a Moslem of a Hindoo,
but a Hindoo may inherit of any other sect of non-Moslems.
A son converted to Moohummudanism, consequently, lost
the property of his Hindoo parents, which thereby fell to
the crown.
The Moohummudan law, as here propounded, involves
a point extremely important to all those who have the true
welfare of India at heart. It will be seen, here, that the
convert to Christianity is, if of a Moslem family, debarred
from inheritance. But, if a Hindoo shall embrace the
Christain faith, he, by the Moohummudan law, may in-
herit of his Hindoo parent, &c. : he does not forfeit his
inheritance. By the Hindoo law, however, the Hindoo
convert is debarred from inheriting : so that suffering the
Hindoo law and Moohummudan law both to operate, no
Hindoo can be baptized, and no Moohummudan can be
received into the communion of our church, without the
sacrifice of every worldly object. I shall probably not be
suspected of a wish rashly to deprive the natives of India
of their laws ; but it must be owned, that, so long as such
bars exist to the propagation of the Gospel of Christ, we
need hardly wonder at our want of success, however
zealous the best of men may be.
To be expelled from one's family, as the proselyte is,
surely is no light sacrifice ; but to be cast off a beggar, is
more than human nature should be expected to bear.
Some modification of the law of inheritance, I think,
should therefore be devised, for the sake of ensuring
liberty
128 TAXATION AND REVENUE.
liberty of conscience to our subjects. The law of inhe-
ritance is a civil institution, and ought not to debar any
man from following his religious convictions, or be instru-
mental in hindering him from doing so. I am aware that our
English translators of Hindoo law have mixed up the reli-
gious rites of post mortem oblations, prayers and alms-
giving, enjoined by the Hindoo religion, with the law of in-
heritance ; placing the title to succeed, as if it rested on
that of having the right, on being under the sacred obliga-
tion of performing those ceremonies. Whereas it appears
to me, that neither, in reality, depends on the other ; but
that both the duty of oblation, and the right to inherit,
depend on closeness of kindred, which is the common stan-
dard for both titles, and has been probably lost sight of.
I am led the more readily to believe this, from observing
in the works on Moohummudan jurisprudence similar illus-
trations of points of law.
If, then, this supposed dependence of right to inherit,
on title to perform post mortem expiations, shall be found
not to exist, the case will be less complex — those heirs who
remain in the parental faith may expiate, leaving to the
convert only his share of inheritance.
It may be said, that, as the law stands now, a Hindoo
dies in peace, knowing that his property will be applied to
the performance of the enjoined obsequies. But this is an
assumption. He knows no such thing. His property
may be lost, or spent in profligacy by his heir ; and with
infinitely greater probability than its abstraction by apos-
tacy. If he has the disposal of his property in his life-time,
and do not avail himself of that power, the fact proves that
his mind cannot have been disturbed on this head.
The
MOOHUMMUDAN GOVERNMENT. 129
The modification of the law should be, to permit all
men who have lawful power over their property, to be-
queath it. Thus, a parent will have the same power which
he now has, of disinheriting the apostate child. But in
case that shall not be done, and the person die intestate,
the law should not be suffered, as now, to disinherit him.
No violence would, in this case, be offered to the feelings of
any person, because a father might deprive his apostate
child of its birthright. Let him, if he choose. Let the
bigoted Hindoo do this : but it is a very different thing,
our suffering the law to do it for him. For this there can be
no necessity. The Moohummudan law will bear us out in
this innovation, as it regards Hindoos. I cannot see so
great an objection to the adoption of the Moohummudan
law in this case, as there was to the introduction of the
Moohummudan criminal law, which has long prevailed to
the exclusion of the Hindoo criminal law ; and which has
brought the Brahmin and the Bhungee within the same
scale of punishments.
Timour's third minister was appointed to take charge of
the property of absentees, insane persons, and those who
had no heirs, and of fines. In the same regulation the fol-
lowing is mentioned *<^Jjj j *^\ c! V*^ omwal-S aeeunda va
rumnda (lit. the property of the comers and goers,) mean-
ing, perhaps, the Moostaumin, or foreign travellers with
passport ; also <J>\)& 3 c/^V (J-^^-j hausil-e baudee va
huwaee, which the translator does not translate, but which
mean, things found without owners, known, in law, by the
o
name of <tkal looktu.
Akbar desired his amilguzzars, or collectors of revenue,
K " to
130 TAXATION AND REVENUE.
" to take proper care of the effects of absentees, and of
" those who die without heirs." *
llth. War-tax. This tax is not a constitutional tax, and
the sovereign ought not to levy it, unless there be not suffi-
cient funds in the treasury; in which case, however, he
may freely levy it. The war-tax might be made, and no
doubt was made, a fruitful source of exaction m India, as
the occasion for such exaction could seldom be wanting.
The charges of war-establishments form, indeed, a ne-
cessary exaction in all countries, India, under the British
government, alone excepted ; for, in India, borrowing and
accumulating debt has, with us, been the very questionable
substitute.
I have questioned the policy of borrowing money and
accumulating debt, in order to defray the expenses of war-
establishments and equipments, instead of levying contri-
butions on the occasion, from those who have a paramount
interest in the soil. In no country can the system of
illimitable accumulation of debt be defended, because it is
throwing the burden of the present measures of govern-
ment on future generations, who must have the burden of
their own government also to bear. But, with reference
to India, it is far more objectionable ; and if it be fairly con-
sidered, quite indefensible. The tenure by which the pre-
sent government of India exists is precarious ; the tenure
by which India is held by England is not entirely secure.
It is quite different from that security which the natives
of a country hold in it. But, who are they from whom
the India government, whilst it saves the natives from
war-taxes, borrows its funds to carry on its wars ? From
English
* Ayeen Akburee.
MOOHUMMUDAN GOVEENMENT. 131
English gentlemen, principally their own servants, who
have earned their money in the most hazardous or laborious
offices of the state : many of them suffering the severest
privations, whilst the wealthy native is enjoying his over-
grown fortune in the securest tranquillity. Suppose, then,
such a contingency to happen as is above indicated, that
a change of government take place, either the English
nation must be burdened with the India debt, or the
capital, lent by individual British subjects, must be totally
lost, to the certain ruin of multitudes. But, in any case,
it is quite clear that no exigency, short of absolute neces-
sity, ought to be deemed an excuse for risking the chance,
either of burdening England with India debt, or of hazard-
ing the borrowed property of individuals, who are not
identified with India, for the purpose of defending or
securing that country, for those who have a more direct
and superior interest in it. I am aware of the answer,
that on individuals there is no compulsion to lend their
money ; but such doctrine would justify any government
in abusing the confidence of its subjects. A war-tax is,
therefore, not only the best mode in point of policy, but
it is the only equitable way by which extraordinary ex-
penditure can be maintained and defrayed, and ought to
have been, and ought to be, had recourse to.
These are all the legitimate sources of revenue under
a Moohummudan government ; but, de facto, under the
Moohummudan government of India, there was a great
variety of other imposts, which existed down to the reign
of Akbar ; and, as stated, were remitted by him, to the
amount, including the capitation-tax, of the whole quit-
rent of Hindoostan. These were the
Meer buhree, lit. admiralty dues, port-duties.
TAXATION AND KEVKNUE.
L5^r Kureeaaee, tax on convocations assembled to settle
business ; on each person.
Gaoshumaree, tax on kine.
Sire derukhtee, tax on fruit-trees.
?i P^esh kush, introductory presents, as in cases of
succession or introduction at court.
*-*i I*L^1 Jjj Furookaksam peshah, tax on artizans.
Daroghanah, darogha fees.
Teheseeldaree, tehseeldar's or subordinate
collector's dues.
Fotahdaree, fotahdar or money-trier's dues.
-j Wujeh kuraeeah, lodging-charges.
^ Khureetah, bags for the money-revenue.
Suraufee, shroffage.
j\j\) J-^>U- Hasil-e bazar, market-dues.
U~& Nekaus, dues on paying up arrears of revenue.
Besides which, a tax on the sale of cattle, and likewise
a tax on hemp, blankets, ghee or oil, and on raw hides,
and on measuring land, and on weighing ; as also a tax
for killing cattle, and on tanning ; on gambling with dice ;
on sawing timber ; also on rahdaree passports ; and one
that was called pug, a kind of poll-tax, as also hearth-
money. There was also a tax on the buyer and seller of
houses ; also on salt made from earth ; one called " bil-
" kutty," on the commencement of reaping, also on putty
numed (felt), on lime for building, &c., on spirituous li-
quors, on brokerage, on fishermen, and on storax.
We read in the Institutes of Timour of a ^U-^-j sir-
shoomaree, a poll-tax, and also i^U-i <Ul>- khanah shoo-
maree,
MOOHUMMUDAN GOVERNMENT. 133
maree, house-tax, which he prohibited from being levied.*
He also says, the impost on herbs and fruit, and the
^Vr^r^ saueer jehaut, or dues of the towns and places,
should be continued according to ancient custom, if the
ryots were satisfied ; otherwise they should be settled by
*fojtȣ.-""fr hust-o-hood, that is, by valuation or estimation,
on the data of the LS-*~J& hust, " is " or " present," and JjJ
bood, " was " or " former " proceeds.
The same regulation also provides, that the dues of
watering j^kH, and of ]/f^ common, and ^-}j* pasture,
are to be levied according to ancient custom ; with the
above option, however, of valuation by hust-o-bood.
Akbar levied a tax on marriages, according to the
rank of the parents ; each party to the marriage paying
the tax. This was, for a son or a daughter of a mun-
subdar, of
From 5000 to 1000 horse 10 mohurs
Do. 900 to 500 4 do.
Do. 400 to 100 2 do.
Do. 80 to 20 1 do.
People of condition 4 rupees
Common people 1 do.
Poor 1 dam.
Taking the population, and the Indian proportion of mar-
riages, this tax would amount to a large sum.
The mint-taxes were also a considerable source of revenue
to Akbar. They amounted to six and a quarter per cent,
for gold, besides the expense of assaying and of coinage,
which was seven and a half per cent, more, paid by the
owner of the bullion. Thus
Materials,
* Institutes, page 349.
134 TAXATION AND REVENUE.
Materials, ingredients, &c. cow-dung and charcoal, Rs. As
clay, quick-silver, and lead 5 0
Workmen's wages 2 8
Expense 7 8
Duty to the king 6 4
Total dues of gold coinage ... Rs. 13 12
The expense of coining silver cost the owner about one
per cent., and the government-duties were five per cent. ;
total six per cent.
The expense of coining copper was about six anas per
maund; which gave about 1,170 pice, value twenty-nine
rupees ; and the king^s duties were one rupee eight anas,
or five per cent, for one hundred rupees ; total, one four-
teenth, or six rupees nine anas per value of one hundred
rupees.*
Total expense of coinage per hundred rupees Rs. As.
value 1 14
King's duty say 5 0
Total copper coinage ... Rs. 6 14
The coinage, at the present time, in the three mints of
Calcutta, Benares, and Furrukabad, is not known to me.
For three years ending with 1818-19, it amounted to an
average of about three crores ; but since that period the
coinage has diminished. The revenue arising from this, at
five per cent., would be fifteen lakhs annually, exclusive of
the cost and charges of the coining, which, as above, was
payable by the owner of the bullion.
These
* Aveen Akburee.
MOOHUMMUDAN GOVERNMENT. 185
These are the sources of revenue which are recognised
by the Moohummudan law, or were made available for
the use of the state, under our predecessory Moghul go-
vernment. If we compare them with the present single
impost on the land, the only source of revenue worthy of
notice, except the salt and the opium monopolies (and a
duty was levied by our predecessors on salt also), and ad-
vert to the very low rate of the land-assessment of the
provinces of Bengal, under permanent settlement, we can-
not fail to see that, under the British government of India,
the public exactions are infinitely lighter than they have
ever been, and that those who represent them as exor-
bitant are either themselves misinformed, or desire to mis-
inform others.
Such are the restrictions imposed upon the present
government of India, that even of the salt monopoly it is
not permitted to realize the highest advantages. The pro-
hibition of European merchants from purchasing salt at
the Company's sales, * has thrown the trade in salt into the
hands of a few native monopolists, who regulate the price
at will. Government receive about three rupees per
maund; but the salt is resold, under their eye, at five
rupees in Calcutta, by retail, after being adulterated with
ten to fifteen per cent, of earth and dirt. The reasons
which gave birth to this restriction have long ago ceased to
exist. The restriction is obviously adverse to the interest
of the Company, and no less so to that of the natives, who
are now left to the mercy of a few native dealers. These
lately availed themselves of the power which this restric-
tive law gives them, to such an extent, that in some dis-
tricts
* This prohibition was abolished in May 1828, but I am not aware
that any Europeans have, as yet, entered into the salt trade: never-
theless, the door being open to them, the check to monopoly exists.
136
TAXATION AND REVENUE.
tricts the price of salt rose to ten and twelve rupees per
maund, so that the poorer classes were compelled to deny
themselves the use of it altogether : a circumstance which
distressed the government beyond measure ; but they were,
for the time at least, without the means of affording relief.
SALT.
It will, I believe, be admitted, that the revenue derived
from the salt department, or " monopoly" as it is usually
termed, is not adequate to the just expectations of those who
look to the enormous increase which, within the last thirty
years, has taken place in the population of Bengal. So
long ago as the year 1793, Mr. Colebrooke gave the
average quantity of salt sold by government in Calcutta,
for five years, at 35,00,000 maunds ; but there was, and is
still, beside that, much smuggled salt also used ; so that
Mr. Colebrooke rates the annual consumption for the two
provinces of Bengal proper and Behar, at 40,00,000.
But if, in 1793, the population of the two provinces of
Bengal and Behar might be judged to consume forty lakhs
of maunds, after the lapse of thirty-seven years, and with
a great portion of the province of Orissa added to the circle
of consumption by the conquest of Cuttack, together with
a vast increase of population and wealth among the inha-
bitants, it may well be asked of the Bengal financier,
whether the increased consumption be in due proportion ;
and if not, it will follow that there is room, at least, for
augmenting that principal branch of the revenue.
Mr. Tucker, in his valuable work on India Finance,
has entered at large on the subject of the revenue from salt,
which he seems to have thought required to be defended
from
MOOHUMMUDAN GOVERNMENT. 137
from the stigma cast upon it by the appellation of " mo-
nopoly :"" and it must be allowed that his defence is a
powerful one. But Mr. Tucker wrote at a period when
the India revenue and expenditure were on a very different
footing from that on which they have since stood. A
surplus income, then, left to the government the power of
improvement in the mode of realising the revenue, even at
the expense of reducing the public assets, where it could
be shewn to be practicable. But when the public expen-
diture, on the most reduced scale, can hardly be met by
the income of the state, the hand of innovation must be
sparingly put forth.
It must be remembered, that the whole fiscal system of
Bengal, and indeed of India, is identified with the salt
revenue. A certain, and very large portion of the public
resources has been laid upon, and always derived from,
salt, by which other articles and other property have
escaped taxation. The amount now received from the
salt must, therefore, be levied in some way ; and the only
question is, can a better mode be shewn, by which the same
net revenue can be securely furnished for the exigencies
of the public service ? The enhanced price of salt is a tax
on the consumer. It is a tax that no one can altogether
evade ; but it is a tax of the smallest possible amount, to
those whose means are in proportion small. It is a tax
paid in a manner that is, at least in appearance, voluntary ;
and levied in a way that is free from inquisition, and
without the medium of an excise or a custom-house officer.
It is collected, also, with less expense, perhaps, and greater
certainty, than any other tax ; and consequently, it is more
useful, and more profitable to the public, than any other
tax, in proportion to the amount paid by the people.
These are not defects, but valuable properties of any tax.
But
138 TAXATION AND REVENUE.
But the manufacture of the salt is a monopoly ; and a
" monopoly" is an odious thing. As far as we have yet
examined this question, however, the salt-monopoly is one
not of a baneful, but beneficial description ; and so long as
it remains in the immediate hands of government, and so
long as the article is brought to public sale, in quantities
sufficient to preserve the price at a fair and usual rate, —
I say, so long as the manufacture of salt remains in the
hands of government, and it is thus brought to sale, there
is no reason to apprehend any evil from such a monopoly :
unless we are to presume, that the same government which
strives to its utmost, in every other department, to secure
the welfare of its people, should, in this, forget their in-
terests, and even their own ; or we should suppose a go-
vernment to exist, capable of availing itself of such means
to oppress its subjects : and this even the enemies of the
Indian government will not assert to be probable. We
must, at all events, confess that one consolation does arise
from the present system, — namely, that as government has
pledged itself to provide one of the essentials of life, the
people have better security for its provision than is other-
wise to be found. They have thus security, not only for the
actual production, but for the moderate and steady price
of the article : a fact which may be illustrated by reference
to the exorbitant rate, and the enormous fluctuation, con-
stantly experienced in an article still more essential to man,
the article of grain, which, though as free as air (whilst salt,
except in one year, when it unfortunately fell into the
hands of private speculators, has been almost uniform in
its retail price, and fluctuating but little in wholesale), has
fluctuated to the extent of two hundred per cent, or more ;
and does fluctuate most materially, and without any ap-
parent cause, repeatedly every season.
Let
MOOHUMMUDAN GOVERNMENT. 139
Let the salt-monopoly be put on its trial of comparison
with the free trade in corn, the staff of life, itself an article
free from all restriction as to production or duty of any
kind, and if it shall appear that the corn-market is fairly
taxable with defects to which that of salt is not obnoxious,
the verdict must be for the latter.
But this is by no means the entire case. The whole of
the surface of India produces corn : so that, supposing
government to interfere in neither case, as far as production
goes, there is physically no possibility of creating a mono-
poly of corn. Not so with respect to salt for the consump-
tion of the Bengal provinces. The limits of the production
of salt, in Bengal, are very circumscribed ; and may pro-
bably not extend beyond the boundaries of a few zumeen-
darees and talookdarees, which verge on the mouths of the
Ganges.
I would ask those who pretend that every change must
needs be an improvement, whether a monopoly (or a free
trade, if they please to call it so) in the hands or subject
to the territorial claims and demands, of native zumeendars,
is b'kely to be carried on with greater advantage to the
people, and with less regard to individual interest, than
under the immediate control (or monopoly, if it must be so)
of the British government ?
We have already had experience, which furnishes a most
ample answer. In the year 1823, I think it was, the salt
was bought up at the Company's sales by a patriotic asso-
ciation of Calcutta Baboos, who succeeded in forming a
true monopoly ; not a monopoly of production, with sale
of the produce to the highest bidders, as is the present salt-
system, but a monopoly of sale; of sale, not to any bid-
der,
140 TAXATION AND REVENUE.
der, but at their own price. The consequence was, the
salt rose to twelve rupees per maund, where it generally
sold for five ; and in many places it was not procurable at
any price. To prevent this, in future, government esta-
blished monthly sales.
I hold it, therefore, as certain, that the provision of the
article is better secured, and the article more reasonably
furnished, by the manufacture of the salt remaining under
the immediate superintendance of government agents, than
it could be by government's withdrawing from its manufac-
ture : for, under any circumstances, the revenue now rea-
lized must be raised; to do which, a heavy duty must be
imposed, the consequence of which would be enormous
smuggling, excise officers, police to protect them, the com-
mission of every imaginable crime, and boundless expense.
Let it be remembered, that it is not from the sale-price
which government now receive, that the private salt-maker
is to look for his profit ; but from the prime cost now paid
by government, which is about one rupee per maund, or
about one shilling and eight pence for eighty pounds. The
rest he must pay in duty : otherwise the government reve-
nue must suffer, which is not the question at issue ; and it
will be seen that the trade would have few attractions. But,
in point of fact, government do not object to individuals
manufacturing salt. Some who had applied have obtained
permission to do so, paying the duty, three rupees per
maund.
Mr. Tucker has taken a just view of this branch of
revenue ; which, however, I do not see requires to be
spoken of in the tone of apology or justification which he
has adopted. " It approaches," he says, " I own, to a poll-
tax :" a species of tax, by the by, little less stigmatized
than
MOOHUMMUDAN GOVERNMENT. 141
than a monopoly. The monopoly in the manufacture of
salt has the effect of a tax on an article of universal use,
indeed ; but has the land-tax not the same effect ? The
inequality of a poll-tax is its defect. Every human being
within its limits pays a definite sum. But the means of
individuals are as various as the individuals themselves ;
and each person has not the power, of himself, of fixing
what he has to pay : whereas, in salt, he can limit his con-
sumption to his income, within, at least, the very lowest
bounds, so that his contribution shall be hardly percep-
tible, and appear, even to himself, almost voluntary ; or
(as it is possible) he may withhold it entirely. But the
poll-tax-gatherer comes, and he must be paid at once :
and being payable at once, the tax must, to the poor, how-
ever small, be felt as considerable.
Salt has been considered a " necessary" of life, and to
tax a necessary of life to a people, heavily, has always ex-
cited sympathy: which would not be the case, were the
article taxed ranked among the luxuries of the world, as
sugar, for example. Yet who can say that salt is not a
luxury, and that sugar is ? We may pity the poor man,
whose table furnishes him with no higher luxury than that
which renders savory the humblest fare : but since we find
a whole people in every way happy, yet whose luxuries
hardly surpass this, but who must be governed by us, to
keep them in the enjoyment of this happiness, and since
this cannot be done without a revenue, I must confess I
see no reason to apologize for levying from them, by the
almost imperceptible operation of a tax on this, the lowest,
though perhaps the greatest of all manufactured luxuries,
a portion of what is required for the service of the state.
We, in England, tax the poor man's sugar without
mercy,
TAXATION AND REVENUE.
mercy, though there sugar is hardly less a necessary of life
than salt ; and we tax his salt too. Yet the oriental phi-
lanthropist has his tears to shed for India, because of the
Company's monopoly of salt ! We are sure, however, that
the poor of India have, in reality, greater enjoyment of life
than the poor of England.
Mr. Tucker's description of the " wretched Molungees,"
the labourers who manufacture the salt, I apprehend is
more applicable to the past than to the present. Their state
has been improved, he indeed gives us to understand, He
forgets that they have also privileges, that their labour is
voluntary, and that they are at least not worse off than
their fellow villagers, who are woodcutters and fishermen.
But when he ascribes to the monopoly the misery which
those people are stated to endure, from being employed in
situations where they may become victims to ferocious
animals and disease, which forms, in his opinion, u the
" greatest objection to the salt monopoly ," surely he taxes
the monopoly too highly ; for, in the first place, take the
year 1828, out of about fifty-five lakhs of maunds of salt
sold, only two to three lakhs were made in places exposed
as here described ; and within the whole range of the Sun-
derbunds, only about nine lakhs were manufactured. But
were all the salt prepared on the coast, as he suggests, the
demands of the state would require a monopoly as much as
at present; and for government to give up the manufac-
ture in Bengal, as Mr. Tucker justly remarks, to be taken
up by individuals, would certainly not improve the con-
dition of the Molungees.
Mr. Tucker's suggestion of manufacturing salt on the
coast is well worthy of attention ; if not with the view of
relieving the Molungees, at least of increasing the public
revenue.
MOOHUMMUDAN GOVERNMENT. 143
revenue. Indeed, a plan for doing so, taken from Mr.
Tucker's valuable book, I presume, was submitted to the
supreme government in the year 1827, by an able and very
zealous member of their civil service ; but it met with no
encouragement in India.
The plan was as follows. Salt is manufactured on the
coasts, both of Coromandel and Malabar, simply by solar
evaporation of the sea-water, which is let into large flats at
high spring-tides, and which, when evaporated, leaves the
flat covered with salt, adhering to the bottom. In conse-
quence of which it is so much mixed with sand and grit,
that though the salt is excellent, it is so disagreeable in
masticating the food in which it is used, that it would re-
quire to be freed from this and other earthy impurities,
before it could command an extensive sale.
Considerable quantities of this salt, however, called
" Madras permit salt," have always been imported into
Bengal. It is bought at the Company"^ sales, refined in
Calcutta, and sold. The annual import may have averaged
perhaps 8,00,000 maunds. But as this quantity might be
increased to any extent, as far as depends on mere produc-
tion, the desideratum was, to render the salt of a consumable
quality, by freeing it from the above impurities ; whilst, at
the same time, the grain was reduced in size, the crystals
naturally formed being too large to be conveniently used.
This could only be done by refining the salt ; that is, sub-
jecting it to boiling, as all the salt manufactured in Bengal
is. The wastage and cost of refining were matter of cal-
culation, as well as freight, and original price on the coast.
The original price and freight were known to govern-
ment ; and, for the wastage and cost of refining, reference
was
144 TAXATION AND REVENUE.
was had to experiment, from which it appeared, that the
wastage would not exceed ten to twelve per cent. ; and the
expense of refining, if performed by government-servants,
would not exceed four anas per maund. So that, taking
the prime cost rates, about sixty-two rupees per hundred
maunds, deducting of course the revenue already paid to the
Madras government (of ten Arcot rupees per garce of 120
Bengal maunds), the cost of the refined article would be a
trifle less than one rupee per maund : whilst, in purity, it
would surpass the Bengal salt, in a degree at least equal to
the wastage in refining, or ten to twelve per cent. And, in
quality, it would also be superior ; which is established by
the fact, that the Madras salt, refined by the native refiners,
now sells by retail higher than the Bengal salt.
As there would be no difficulty in supplying salt, save in
procuring tonnage for its importation from the coast, the
only other point to be considered is, the fuel required for
refining it. Coal being procurable near Calcutta secures
this. But wood is also procurable in abundance ; and ad-
mitting that 30,00,000 maunds annually were imported, the
quantity of firewood required for refining would not exceed
400,000: the price about fourteen rupees per hundred
maunds.
The average quantity of salt sold in Bengal for twenty-
six years, ending in 1826, was Maunds 43,48,019
Of which the Madras salt composed, at an ave-
rage, 7,82,844
Leaving for the produce of Bengal, average, Mds. 35,65,1 75
The cost of manufacturing the salt in Bengal, for the
same period, has been unequal. For the first period of eight
years,
1IOOHUMMUDAN GOVERNMENT. 145
years, to 1808, it was per 100 maunds... Sa. Rs. 74 14 4
For the second eigh t years, to 1 81 6, do 81 3 5
For the third ...do. ... to!824,do 88 010
But for the two remaining years, from
1824 to 1826, it was 114 7 0
Shewing an increase of charge of upwards of fifty per cent,
on the cost of manufacture : a fact which certainly requires
explanation.
It appears, also, that the average net revenue drawn in
Bengal from the salt monopoly for the above period, includ^
ing the profit on the Madras salt sold in Bengal, has, per
annum, amounted to sicca rupees 110,48,766, of which
about fifteen lakhs per annum have accrued on the Madras
salt imported.
But here it must strike every one as somewhat extraordi-
nary, seeing that so large a revenue is so easily drawn from
the salt consumed in the old provinces of Bengal, and but
a small part of Behar and of Orissa (for Bengal salt is
hardly to be found beyond Patna, and even there it sells at
an exhorbitant rate) ; — it is, I say, extraordinary, that
since within so -limited a circle, the large net revenue
of 110,48,766 rupees is drawn, the numerous population
of the upper and western provinces should not be made
available to augment that branch of the revenue.
The net revenue raised on a maund of salt consumed in
the province of Bengal is, by the foregoing data, about
two rupees ten anas. But on the whole of the consumption of
the western provinces the average is not one-fifth of that
sum, being about eight anas per maund, levied as a custom-
duty on import from independant states,
L Mr. Tucker
146 TAXATION AND REVENUE.
Mr. Tucker informs us, that an additional revenue was
attempted to be raised on salt imported into the Company's
western provinces, the produce of neighbouring states. But
the attempt was abandoned ; and, as he intimates, " in his
" judgment with propriety, not only on account of the diffi-
" culty of levying an increased duty, but because it checked
" a barter trade between the Company's provinces and the
" country beyond the Jumna."
Yet as this intelligent writer approves highly, and in my
humble estimation very justly, of drawing a revenue from
salt, the practicability of increasing the public resources by
means of the extensive population of the whole of the Com-
pany's provinces to the westward of the centre of the pro-
vince of Behar, is unquestionably worthy of the utmost
consideration, before the object be abandoned.
For, from the whole of that wide extending country, the
revenue at present realized from salt does not exceed per
annum, Sicca Rupees 12,00,000
which would indicate a sale of Maunds 24,00,000
add, however, one-sixth smuggled, for which no
duty is received, Maunds 4,00,000
Total quantity consumed, say Maunds 28,00,000
Could the market, therefore, be supplied by means of the
Madras salt, or by a more extended manufacture in Bengal,
with the advantage of such inland navigation as the Ganges,
Jumna, and other rivers afford, there appears no reason to
doubt that a great increase of revenue might be realized,
even to the comfort of the people, who are now compelled
to eat a bitter and, unpalatable rock-salt. Thus supposing,
as
MOOHUMMUDAN GOVERNMENT. 147
as before detailed, the Madras salt, after being refined, to
costpermaund Sicca Rupees 1 0 0
Freight from Calcutta to Patna. Benares, Alla-^
habad, Agra, Furrukhabad, at an average, > 0 4 0
per maund * J
Wastage, 10 per cent 020
Commission and Insurance, &c. 10 per cent. ... 0 2 0
Average prime cost, with charges, at the above")
stations is j
Here, then, we have a market for twenty-eight or thirty
lakhs of maunds of salt ; and we have the means of furnish-
ing that market with the article, at a prime cost and charges
not exceeding one rupee eight anas per maund, and there
are government-establishnments already at those stations,
amply sufficient for the disposal of the salt : for I see no
reason why sales of salt might not be established monthly
at Patna, Benares, Mirzapore, Allahabad, Cawnpore, Futty-
gurh, and Agra, under the commercial residents and col-
lectors of customs, as they are in Calcutta under the autho-
rities there. And if the article, at those stations, fetched
even the Calcutta rate of about three rupees eight anas per
maund, a net profit of two rupees per maund would be
realized, instead of eight anas, the average revenue now
drawn from salt in the western provinces ; thus giving an
additional revenue of full forty lakhs of rupees. But since,
at present, even as near as Patna, Bengal salt sells often at
six rupees per maund, that the additional revenue thus rea-
lizable would greatly exceed what is here indicated, cannot
be doubted.
The trade in salt in the interior, from Calcutta upwards,
appears to be quite in an uncultivated state. Till the year
L 2 1828
148 TAXATION AND REVENUE.
1828, natives alone were permitted to trade in salt ; so that
it fell entirely into the hands of a posse of Calcutta mono-
polists, who appear to have got the government to believe
in the necessity of limiting the quantity brought to market.
An engagement before the sales, therefore, was entered
into, that no more than a certain number of maunds for
that season should be brought to sale ; so that the supply
wast hus kept to meet the demand, in that proportion which
suited the views of the great purchasers ; rendering, there-
fore, any effort, on their part, to extend the consumption,
quite unnecessary, content with the power of limiting the
supply.
Whether, therefore, the object be to afford relief to those
engaged in the manufacture of salt along the unhealthy
Delta of the Ganges, to furnish the article at a cheap rate
to the people with certainty of supply, or to improve the
revenue, in my judgment that object can never be effected
by the abandonment of the system of government-manu-
facture, that it may be taken up by individual monopolists ;
but by continuing the present system in Bengal, and, if
necessary, by an active manufacture on, and importation
from, the coasts. And, in this, I most heartily agree with
Mr. Tucker.*
OPIUM.
* I might have bestowed more pains in exposing the fallacious
complaints which, by many writers, some even friendly to the Com-
pany, have been made against the Bengal government, for their treat-
ment of the labourers who manufacture the salt for this monopoly.
The most doleful lamentations have been uttered by certain philan-
thropists on behalf of the " miserable Molungees." But the ex-
position has been more ably managed, in a series of letters which
appeared in the Calcutta papers under the signature of " A Covenanted
" Salt Officer," since the above was written : which, as they are
founded on public records and long- published orders of government,
>IUOHUMMUDAN GOVERNMENT. 149
OPIUM*
The supply of opium, like that of salt, is also provided
by government ; and this branch of the revenue, like the
other, is termed a monopoly,-— the " Opium-Monopoly :*
the object, however, in both being to draw, in the easiest
and cheapest manner, and with the greatest certainty, a re-
venue to the state, making those articles the means of doing
so, and both articles being brought to public sale and sold
invariably to the highest bidders, in small quantities. That
the one is a deleterious luxury, and the other a wholesome
necessary of life, certainly authorizes the distinction drawn
by Mr. Tucker, vi%. that, with equal revenue, in the latter,
production should be encouraged, so as to reduce the price
and extend the consumption ; whilst, in the former case,
production should be discouraged with the opposite view.
Looking upon opium as an intoxicating drug merely, this
may be conceded. But its medicinal properties are also
valuable ; and to the aged it may be doubted whether its
use be not highly salutary, though pernicious to the young
and middle-aged : nor can its effects on the human consti-
tution, on political grounds, be compared with those of
spirituous liquors. The production of opium, therefore,
in order to raise a revenue, it would be difficult for those
who admit the manufacture of spirits to condemn.
Mr.
are unanswerable. They, however, shew that instead of being- an
" oppressed" the Molungees are a privileged class; and that, whilst
in Europe they have been pitied as a race of slaves condemned
to involuntary labour among the " pestiferous, slimy swamps " of
the Sunderbuns, their labour is not only voluntary and well paid,
but, in their own estimation, the greatest misfortune which befalls
them is the superabundance of salt in the Company's stores, which
occasionally prevents them from being1 employed as much as they
desire !"
150 TAXATION AND REVENUE.
Mr. Tucker's analysis of the stigmatized opium-mono-
poly, and his resolution of it into an export duty, payable
by the inhabitants of the Archipelago and China, who con-
sume the article, is a happy illustration of the principle
of the system : and it has this great advantage over export
duties of the usual class — that, whereas they are fixed by
the dictum of government, and on a nominal or assumed
value, the duty on opium, if it may be so called, is fixed
by the purchasers, in competition against one another, at
public sale : men whose interest it is to ascertain the true
value. So that whilst, on the one hand, the revenue need
not be reduced by over-production, arbitrary impost, with-
out accurate reference to price, can never check the trade.
In which respect, by the bye, I see no difference between
this and the salt-monopoly.
It has been a question which has often attracted the at-
tention of the India financiers, how far production and
consumption of opium, as of salt, should, or should not,
be encouraged, with the view of augmenting the revenue :
and the measure has been long discussed, whether the culti-
vation of the drug should be allowed, encouraged, or pro-
hibited, in the rival opium province of Malwah, where,
from time immemorial, it has been cultivated to a limited,
and now to a great extent.
That Mr. Tucker is right, in recommending a diminished
supply of opium and high rate, will be admitted by the
moralist, and probably it will not long be disputed by the
financier. The only limit to this is, that by keeping up
the price, we offer a premium to other nations to encourage
the cultivation of the article. If this could be avoided,
then, assuredly, it is not by boundless supply that the
highest profit is to be gained. When the supply is small,
the
MOOHUMMUDAN GOVERNMENT. 151
the system can be better regulated : and what is of greater
consequence, perhaps, to be kept in view is, that in the
country to which it is principally sent for sale, opium is a
contraband article, condemned if seized. To multiply
quantity is, therefore, to throw a physical obstacle in the
way of consumption; or, in other words, you add to the
risk, and consequently to the price of the article. You,
therefore, so far defeat the object you have in view.
The question of prohibiting or permitting the cultivation
of opium in the newly-acquired province of Malwah, does
not appear to me to have been looked at in its proper
bearings. When the advocates of cultivation in Malwah
tell us, that to prohibit the cultivation of any article the
soil and climate will yield is an infringement of the " rights
" of property," it may be fairly asked, what are the " rights
" of property ?" At one time, it was the right of property,
in our own country, to be taxed ten per cent. ; at another
time not to be so taxed. The indefeasible rights of pro-
perty, in the abstract, might exist, were there only one
human being in existence : but, in civilized society, restric-
tions, and conditions, and burdens, are inseparable from the
possession of any thing. To conquer a country, and to
place it in a worse condition than it was in, would, indeed,
be an act of injustice. But, seeing that no man in Malwah,
who ploughed or sowed his field, heretofore, knew by whom
it would be reaped, how poor soever might be the produce,
to withhold from them the power of destroying one of the
principal branches of the whole revenue of the state, hitherto
raised by the profitable cultivation of its old provinces, in
order that the reclaimed free-booters of Malwah may profit
thereby, can hardly be called very iniquitous.
A nation possesses the acknowledged right of preventing
even
152 TAXATION AND REVENUE.
even an enemy from doing it an injury. Yet some pretend
that the British Government of India have no right, and
cannot without injustice, forbid the cultivators of Malwah,
their own conquered province, from rearing opium, though
thereby they may place in imminent danger a branch of
the revenue of the state hitherto yielding a crore of rupees
per annum ! If this be not drivelling in legislation, I
really know not what to term it.
But let us see a little farther into the case. The finances
will not admit of the loss of a crore of rupees, were
Government even disposed to sanction so great a sacrifice,
or any part of it, even for Malwah. Then from what
other province or provinces shall we exact the defalcation ?
Which of our old provinces shall we thus make tributary
to our newly- conquered province of Malwah, so as to make
up the loss of revenue sustained ?
This appears to me to be the true state of the question.
On no other principle can it be discussed. And since in
our old provinces restrictions exist as to the culture of
opium, to plead exemption for Malwah is, at least, out
of time.
But since it will not be possible for the British territo-
ries in India to preserve entirely the monopoly of opium,
it appears to me that it is to the quality of the drug, more
than the quantity, we must look for due security for that
branch of the revenue.
SPIRITUOUS LIQUORS.
In the only quarter of the world, perhaps, where the
abominable habit of drunkenness was nearly unknown, to
countenance such a vice by public license, is certainly a
strange
MOOHUMMUDAN GOVERNMENT.
strange abandonment of the great leading principles on
which the British government of India has been con-
ducted.
Whether considered in a moral or in a political point of
view, the encouragement afforded to the use of spirituous
liquors must be equally condemned. As a strong incentive
to vice, its effects are to be deplored ; but as the growing
root of much political evil, it is no less to be deprecated.
It is impossible to conceive that a nation given to habits of
intoxication can be so easily governed, as one in which that
degrading and disorderly vice is looked upon with abhor-
rence and disgust. The wisdom of the Moohummudan law-
giver, then, was more conspicuous, when he adopted the
counsel of his sagacious friend and follower, in denouncing,
by the fear of the wrath of God, the use, or even the touch,
of intoxicating liquors, or intoxicating drugs, than have
been the deliberations of the Indian Government on this
important subject.
It is quite lamentable to see the increase of intoxication
which, within even a few years, now, in every quarter in
Bengal, forces its horrid victims on the view of the pas-
senger, not only in the towns but on the highways ; and
when with this is combined that habitual want of respect
to the European gentleman, formerly so universally ac-
corded by all classes of natives, it is obvious that no facility
for farther disregard, to which the excitement of intoxica-
tion so much contributes, can be given, without tending
exceedingly to dissolve that moral force with which the
European and native have hitherto been held in their
relative positions. And if so, as those will not deny who
assign so high a value to that feeling, it surely becomes
the local Government of India to pause before, for the sake
of
154 TAXATION AND REVENUE.
of a trifling accession to the revenue, it thus so directly
contributes to its own ultimate destruction.
The idea of the present tax upon spirits being a penalty
imposed to restrain the drunkard, is, I fear, a fallacy in
legislation. If, however, it really were so intended, the
tax ought, at all events, to be adequate to the end. But
since, for the value of two farthings, as much liquor can be
purchased as will intoxicate one person, to suppose that
the present tax is a check on drunkenness, is totally
groundless.
Were a duty of ten times the amount of the present tax
imposed on every distiller of spirituous liquor, some hope
of check might be indulged. The want of spirits in a hot
climate can be no privation among people who have, till
our time, been unaccustomed to such, and who have in so
great abundance the purer and more wholesome use of
vegetable stimulants. To plead such privation is a specious
argument, used merely as an apology for continuing the
tax: and let it be remembered, what eventually must be
looked for, there will be a defalcation from the receipts to
meet the expense of an increased police, which it will assu-
redly give occasion to keep up. Let those who express
abhorrence of the surveillance of the Excise, which is
requisite to check the evil, now choose between a peon of
excise and a peon of police.
If it must be that luxury shall be taxed, I apprehend
tobacco must be deemed a less objectionable medium than
intoxicating liqours. Tobacco is an article of universal
consumption among the millions of our India subjects ; not
less, perhaps, than seven-tenths use tobacco.
Sugar,
MOOHUAIMUDAN GOVERNMENT.
Sugar, also, might be made the means of increasing the
revenue.
But, in matters of revenue and taxation, it ought always
to be kept in view by the government of Bengal, that the
measure of the permanent settlement has, in reality, pro-
duced a permanent and decided distinction between the
lower and the upper division of the territory under that
presidency; and, consequently, it is impossible that the
same fiscal arrangement which may be suitable to the
former, can with equity be made applicable to the latter.
The zumeendar in the upper and non-permanently settled
provinces, who is deemed compensated by ten per cent, on
the government-revenue, and the zumeendar of the lower
and permanently settled provinces, who, according to Mr.
Colebrooke, receives fifty per cent, clear on the government-
demand, ought surely not to be required to pay the same
rate of extra taxation. There ought to be, if the state
require it (and that it does, no one will doubt), a schedule
prepared, as applicable to the permanently settled pro-
vinces, which would enable government to draw from the
overgrown incomes of the landholders there, a due pro-
portion of the funds required for the support of the state.
By the " constitution " and former usage of India, the
land was charged with the expense of administering justice
and supporting the police of the country, as well as the
military establishments, for which quotas of men and mi-
litary equipments were also fixed, as leviable from every
district. It is manifest that the permanently settled pro-
vinces do not pay their fair proportion of these expenses.
It is manifest, also, that the increased wealth derived
from the land has contributed to make, not only the ad-
ministration
156 TAXATION AND REVENUE*
ministration of justice more laborious, but the public
establishments more onerous to government, than at the
period of 1793 ; from which time Bengal landholders date
their exclusive privileges. I do not forget the specific
lands allotted for public establishments ; but I pay no re-
gard to that ; for, be the value of such lands what it may,
it is already absorbed, and the public finances are not
prosperous.
If, then, the judicial, revenue, and police establishments,
in the provinces permanently settled, be more numerous
and more expensive to government than in 1793, those who
derive wealth from the circumstances which have occa-
sioned this, ought, in equity, to be called upon to defray
the charge, and ought not to be allowed to throw the
burden of their better government upon their fellow sub-
jects in Upper India, by many degrees more heavily as-
sessed ; for it must be clear, that whilst the lands of the
lower provinces are held to be exempt from farther im-
post, and yet the affairs of the people who enjoy them
require more administration, that the expense of this charge
is in reality a tribute levied by them, or at least on their
account, from others. I doubt not that the public esta-
blishments, both European and native, now employed in
the administration of the permanently settled provinces,
are in amount double the number, perhaps, of what they
were in 1793, and in expense not less increased, whilst the
land contributes nothing more than in former times.
There is not, perhaps, to be found in the whole history
of the world, any other instance of a government holding
one-half of its subjects, as a privileged class, to be exempted
from all future impost, whilst it is itself deeply involved
in public debt, straitened for resources, so as not to be
able
MOOHUMMUDAN GOVKRNMENT. 157
able to meet its current expenses, even in time of peace,
without reducing the allowances of its own servants; in
some classes far beyond the limit of adequate reward. No
pledge, which any government could come under, can
justify the impoverishing of its public servants, the severe
exaction of revenue from one portion of its subjects, whilst
it exempts another portion of them from their fair share of
the public burden. Means ought, therefore, to be imme-
diately adopted to equalize the public demand, so as to
relieve the wants of the state.
That it is desirable to increase the revenue of India,
and that it may be done, are sufficiently evident. A li-
mited revenue, and boundless expense of indispensable mi-
litary and civil establishments, have hitherto compelled
government to place those establishments on the lowest pos-
sible scale, both as to number and allowances. The policy of
this is by no means apparent. More attention to the improve-
ment of the revenue would produce many times the amount
of saving to be derived by retrenching from the already too
scanty income of faithful and zealous military servants.
Upon what principle of good government, as applicable
to a foreign province, such as India is of England, ought
the public servants of the state, the individuals upon whose
energy of mind, talents, virtue, and honour, the country is
preserved to England, to be kept, in a foreign land on a
bare subsistence ?
The situation of the Company's servants in the military
branch of the service, at this time, is, I fear, much worse
than is believed, even by those in power at home. I say
so, because my opinion of their liberality is such, that I
feel convinced they would improve the condition of their
army,
158 TAXATION AND REVENUE.
army, were it fully made known to them, and they were
convinced of the incalculable advantages which would re-
sult from that improvement. Numbers of their officers,
men of family, all of education, and many of them men of
talent, after fifteen, even twenty years1 service, are now
dragging on an idle, and consequently a comfortless life.
Might not many of those able and intelligent men be use-
fully employed, in time of peace, in carrying into effect
the measures of government for improving the country, and
consequently the revenue, till it should become sufficient
to admit of a greater remuneration to themselves and their
associates ? Thus might all be enabled to maintain the
appearance of respectability, even of affluence, so befitting
an English gentleman, and, in the eyes of the natives of
India, so becoming an officer of the English government :
whilst those who preferred the enjoyments of their native
country, would have the prospect of returning to it within
a reasonable period, if not with riches, yet with a comfort-
able independence.
Those who consider the influence of our national cha-
racter to have great weight in the system of our Indian
government, will not look with an eye of indifference upon
what is here but briefly hinted at. But ii is not merely the
moral influence that is concerned, The physical powers of
man are wonderfully affected by the state of his mind, and
it would be just as hopeless to expect the most powerful
pitch of tone from an unbraced instrument, as energy of
intellect, or vigour of body, from the man whose mind is
depressed, by dragging out a life of disappointed hope in
a foreign land, with scarcely a chance of visiting his own.
By tables recently published, it appears, that of all the
officers who were sent out to Bengal in the Company's
service,
MOOHUMMUDAN GOVERNMENT. 159
service, within the period of twenty-five years from 1796,
in the principal branch of the military service, the infantry,
only ONE in TWENTY of those who came out were able to
retire on their pensions ! If this do not show UNDER PAY,
the experience of twenty-five years can show nothing. After
the attention which, both at home and abroad, has been
bestowed on the condition of the army, I cannot have the
presumption to think that the expression of my sentiments
will be of much value. But surely, where such is the re-
sult of a system, something must be wrong in the principle
on which it is founded. I am aware that, compared with
European armies, the expense of officering that of India is
very great ; but so is the expense of every thing else in
India, in every part of the world, which you must bring
from a distance. Yet the question remains, whether there
be a real necessity for employing so many officers, if they
cannot be paid so high as they should be. For my own
part, I think this is a question of great importance. My
experience leads me to give the decided preference to
quality, rather than to number. With native troops,
especially, I should decidedly prefer to have five distin-
guished officers with a corps, to having five times that num-
ber of an indifferent stamp. We must remember, that be-
sides its European officers, every corps has a full comple-
ment of native officers, both commissioned and non-com-
missioned ; and it is more to give a tone to them and to
the men, by exhibiting to them an elevated example of
moral character and of military duty, discipline, and enter-
prize, than for the ordinary details of regimental service,
that I think European officers are chiefly valuable. In
this respect, indeed, if really good officers, they are ines-
timable ; on a low standard of qualification, Lconceive the
European officer utterly worthless in India.
But,
16*0 TAXATION AND REVENUE.
But, then, how is this high bearing to be maintained
by the very best of men ? The buoyancy of the mind
must not be borne down by the continued pressure of pecu-
niary difficulties. Or if in his youth, in the earlier years
of his service, he must be content to struggle against his
straitened income, surely a period ought to arrive, when
he might see the harvest of his hopes smile upon him,
and the reward of his labour within his reach. Youth is
satisfied with merit — he glories in deserving ; but age re-
quires reward. The senior ranks of the army are those
who feel this. The approach of personal infirmities, the
accumulation of family claims, all demonstrate to the vete-
ran the necessity of already possessing what he has now no
means of commanding. The health of the individual he
sacrifices ; but the energy, the very vitality of the army,
are equally sacrificed. No state can afford to pay highly
all ranks of its army : but till the income of officers com-
manding corps shall be increased, both in pay and in pen-
sion, I despair of seeing any amelioration of the condition
of the army. This is not the place to enlarge on such a
subject: — I may nevertheless remark, that in no country
in the world, perhaps, are the resources of the state bur-
dened less than in India with her pensioned military ser-
vants. The whole amount of the military pension-list
does not, I believe, exceed ^80,000 sterling, out of a
revenue of twenty-two millions ; or about a two-hundred-
and-seventieth part of the annual income,
India, as a field for the youth of England, in which
they might reap with honour the reward of their services
or merit, can never be looked upon but with deep interest.
Such a provision as even the military service of the Com-
pany has heretofore held out for the sons of English gentle-
men, has had more than mere intrinsic value in it, both to
England
MOOHUMMUDAN GOVERNMENT. 161
England and to India. If this field shall become barren,
where shall England look for such another ; and where
shall India find the generous high-minded youth, which in
manhood have hitherto set before her that elevated example
of national character, which the world besides cannot com-
mand ?
To suffer the scale of the European character to fall,
especially of the European servants of government, we may
rest assured, is very far from being the prudent policy of
Britain in governing in India. If, indeed, the influence of
individual, and by consequence, of national character, be
of any political importance to preserve and maintain that
influence, the standard of character must never be suffered
to fall back. To maintaii our distance we must advance,
without which our ascendancy cannot be preserved. To
effect this, the respectability of the service in both branches
must be upheld. Nor let it be supposed that this would
be a misappropriation of the revenue of India. On the con-
trary, if we attend to the relative situation of India with
respect to England, it would be difficult to devise any
other mode of application of that fund to the same extent,
which would be equally advantageous to both countries.
The advantage of colonization, in respect of furnish-
ing the wished-for market for English manufactures, and
ensuring a vast variety of other alleged benefits, has been
much expatiated upon. But India is already colonized ;
that country is full of a peaceable, industrious, and obe-
dient population, living under the protection of the English
government, which they acknowledge to be their govern-
ment : they are subjects of the crown of England in every
essential point of view. They are not, it is true, English-
men, nor the descendants of Englishmen : but if this be
M charged
162
TAXATION AND REVENUE.
charged against India, the Cape of Good Hope, and other
admitted colonies, peopled by Dutch, French, and other
foreigners, are liable to the same exception ; and surely
their complexion will not be held to constitute a real dis-
tinction. The colony was not indeed planted by us ; we
found it full grown ; but this does not alter the relation
between the countries. It remains not the less, for that,
our clear and decided duty to improve India, for the mu-
tual benefit of both countries.
From the state of moral maturity in which our Indian
colony was found, we ought to have expected that the in-
habitants would with difficulty be made to yield to any
change, however advantageous to themselves ; and what
more than this have we experienced ? Nay, we have found
them tractable beyond the expectation of many ; and there
is no doubt that the influence of example will in good
time realize the hopes of the most sanguine.* It must,
therefore
* Some enthusiastic writers on India affairs have charged their
opponents with representing the Hindoos to be an inflexible race, im-
mutable in their tastes, as well as in their habits and religious rites :
and a late author has written a volume to prove that they are not so
primordial as at the era of the Kings — " the 122 Kings of India." The
truth, I am persuaded, in this, as in many other controversies, lies
between the two extremes. As a nation, they are unquestionably
much the slaves of habit — their religious ceremonies are so mingled
with their customs, and even their domestic duties, that change to
them is more than change of fashion ; it would not unfrequently be
to them a deviation from divine command. But the chief articles of
use among the people do not come within this limit ; and, therefore,
there remains a wide field for the introduction of manufactures ; to
ensure the consumption of which, cheapness (I mean lowness of
price) alone is wanting. A Hindoo asks not by whom the cloth was
made which clothed him — nay not even by whom the flour was pre-
pared which feeds him ; nor is the caste of his sugar, or salt-manu-
facturer inquired into. The lootah he drinks out of is pure, by
whomsoever
MOOHUMMUDAN GOVERNMENT. 163
therefore, be indisputably the policy of England, to afford
to her Indian subjects the fairest example for their imita-
tion, as well as the fullest opportunity of profiting thereby.
It is not by inundating India with needy adventurers that
we shall do this !
In India we have a population to the utmost extent of
our wishes. Could we see them model their morals, their
minds, and their manners, after the precepts of our holy
religion, and the fashion of the best of our own country-
men, I am at a loss to conceive where would be the room
left for a wish for colonization. We see, therefore, how
idle it is to prescribe colonization, in the acceptation in
which that term is applied by those who use it most, as
the only means of impgDving India. For my own part,
I believe it to be the worst that could be devised, and the
least efficacious ; whilst, at the same time, it would be the
speediest to sever the connexion between the two countries
for ever, and by consequence, as in the case of America,
leave both imbued with mutual feelings of animosity, to a
degree which even time itself seems incapable of obliterating.
whomsoever made, though it must be brass, and not copper : and so
also is the plate pure on which he bakes his humble cake. It is, in-
deed, idle to suppose that articles of prime utility, or convenience,
will not be coveted by man, if he have the means of procuring1 them.
By some nations they are more eagerly sought after than by others :
and all we can say, I apprehend, of the Hindoos, is, that as a people,
they are perhaps the slowest of all nations in seeking for change-
so slow as to escape the observation of some ; yet, nevertheless, it
would be sure, were the means of accomplishment within their power.
A more extended use of British produce among the servants of the
state, by encouraging a more abundant importation, would bring the
principal manufactures of our country more within reach of the
natives of India. This, I conceive, is the most effectual way of be-
nefiting the English manufacturer, whilst we should incur no risk of
destroying the happiness of India, by supplanting her population
with the refuse of our own.
M 2
( 164 )
CHAPTER IV.
ON THE PRESENT SYSTEM OF REVENUE.
Permanent Settlement.
NOTHING can be more important to the interests of India,
than a well-regulated administration of the land-revenue.
When we consider not only the great proportion of the
population engaged directly in the affairs of husbandry,
but that the employment of so many is limited to, and con-
sequently their entire thoughts are engrossed with, the
single object of providing the bare necessaries of life, we
shall be able, in some degree, to appreciate the vast im-
portance to the happiness of the people, of the regulations
which may be adopted for the adjustment of the revenue
from the soil. The system authorized for the management
of the land-revenue of India, be it what it may, cannot
therefore be put in practice without producing effects of
the greatest magnitude, on the condition of the people and
the prosperity of the country.
Many have been the plans recommended, tried, and
abandoned for their defects. The ancient system of
India revenue is also defective : it is a human institution,
and may well be imperfect. Its imperfections, however,
were seen and experienced. Those of the new plans
required experience, and that only to shew that they must
fail. But the ancient system had one great and decided
advantage : it was known to the people, the people were
reconciled to it, and, like all political institutions, how-
ever bad, what was wrong in it had doubtless acquired
practical
PERMANENT SETTLEMENT. 165
practical correctives, of easy and general application, which
rendered it at least sufferable to the community.
When the Emperor Akbar approved the settlement
submitted to him by his able financial minister. Rajah
Tudur Mull, and of which that valuable officer is by
many erroneously supposed to be the author, his Majesty
well knew the source was more sacred from which it
sprung. The law of the land was not altered by his
Majesty^s Hindoo minister, and his able Moohummudan
colleague, Muzuffur Khan : but a settlement was made,
having the law for its basis ; and the details were ably
projected and superintended by those valuable servants of
the state, who neither^ did nor would have dared to de-
part, in any thing essential, from the law and the usage of
the country.
In modern times, conquering statesmen have greater con-
fidence. They do not hold themselves hampered by cus-
tom, however sacred, antient, or universal ! There is not
in the history of the world a more extraordinary instance
of disregard of the usages of a people, than is to be found
in the conduct of those who swayed the councils of India
when the great financial innovation of 1793 swept away the
ancient landholders of Bengal, and limited its territorial
revenue for ever !
Nor did those celebrated financiers better consult the
interests of the British government. They appear to have
forgotten altogether the distinction between the people
of England, to whom luxuries are become necessaries of
life, and may be touched by the tax-gatherer, and the subjects
of their Asiatic territories, to whom even the necessaries of
life
166 PRESENT SYSTEM.
life are luxuries. What source of revenue did they leave
to meet the growing expenditure of the government ?
A land-revenue is well adapted to the present state of
India ; not only on account of the want of other sources,
but because of the antiquity of the system, of its being so
well understood by, and so familiar to, the people ; their
being so thoroughly reconciled to it, as to submit, even
cheerfully, to heavy exactions from the land, whilst, with
reluctance not easy to be overcome., they are brought to
pay even a petty tax otherwise laid on.
All are accustomed to pay for their land. It is not a
tax upon their industry, but rather a premium to be in-
dustrious ; for the more they produce by their labour, the
lighter will be their public burden. A cultivator pays so
much for his field or beegah. If by his exertions it pro-
duce much, the less will be the proportion of his assess-
ment to the produce. Not so a tax on the produce of his
land : a corn-tax. As the produce is increased, so would
be his assessment.
The ease with which men are apt to be imposed upon
by words,, has never been more successfully exemplified
than in the case we are now about to consider. A " per-
manent settlement of revenue," a " permanent income,"
sound very imposingly in the ears of an Englishman. It
means, he must conclude, something secure. A revenue
permanently secured, though it should perhaps be not
quite so large, is a good thing, he would say ; and the old
adage, " a bird in the hand is worth two in the bush," would
occur to fortify his belief. But when this permanent set-
tlement comes to be inquired into, even very superficially,
it
1'ERMANENT SETTLEMENT. 167
it will be found to be no more than empty sound, so far as
security for the revenue goes ; and, in truth, to partake
no farther of the quality of permanency, than as it is a
permanent obligation, on the part of government, to cease
for ever from increasing the India revenue, entered into
with individuals who never had, indeed never can have,
any security to give, beyond what government always did
possess without them; namely, the soil, and the labour,
and wants of the people.
The amount of revenue thus imposed, instead of being
fixed, has been, and must be ever, liable to fluctuation, and
always by diminution. The want of security for the re-
venue is inseparable from the state of society in India ;
but the defect, involving progressive diminution of revenue,
is intrinsic, essential, and peculiar to the settlement to
which I am adverting. A permanent limitation of land-
revenue must necessarily contain within itself the seeds of
its progressive decay. There is nothing stationary : by all
the laws, both of the moral and physical economy of this
world, that which cannot increase must diminish.
In fact, instead of being what it professed to be, an
engagement entered into with the owners (proprietors) of
the soil for a specific revenue from their lands, with all that
security for fulfilment which a wealthy landed proprietary
necessarily gives, this far-famed " permanent settlement"
was nothing more than a species of farming-out of the land-
revenue to individuals ; men, almost universally speaking,
of no wealth or capital, consequently but little interested
in the prosperity of the country ; men who had no right
of property in the estates now conferred upon them, and
whose only object was to accumulate wealth, or to enjoy
in affluence a mere sluggish repose, regardless even of the
ruin
168 PRESENT SYSTEM.
ruin of their tenantry, which this unhappy measure gaVe
them the power of effecting.
It is idle to talk of the permanency of the settlement
affording any security to government for the revenue.
This idea must be rejected by every person who reflects
a moment on the subject, and knows who the parties are.
There is, in truth, no security for a land-revenue in India,
but the security of a moderate assessment, fairly distri-
buted; a regular and protecting government; protecting
not to the zumeendars or farmers of the revenue, but to
the ryots, the cultivators, whose industry alone is the only
source of, and security for, the revenue.
It might have been expected, oil the subversion of the
Moghul government of India, and the sudden and unex-
pected acquisition of power and dominion which fell into
the hands of a small body of foreigners, in 1 765, such as
the English in India then were (strangers, it may be said,
utterly, if not to the languages, yet to the laws and usages,
of the country), that much difficulty would arise in set-
tling, on a fair and equitable basis, the public revenue.
Great difficulty was accordingly experienced, augmented
by the chicanery of the native revenue officers, the natural
disposition of the land-owner to withhold information,
suppress and falsify documents, and it must be confessed,
in many instances, the want of probity in the European
servants of government.
All this was to have been expected, and was really ex-
perienced ; and it might have been supposed that a pru-
dent regard for the interests of government and of the
governed, would have dictated to those in power the high
importance of patient investigation. Twenty years, how-
ever,
PERMANENT SETTLEMENT. 169
ever, had scarcely elapsed from the cession of the provinces
by the Emperor to the Company, before we find both the
local government, and the authorities in England, loud in
their denunciation of irregularities, which they ought to
have expected, and resolute in their determination to ter-
minate them at any sacrifice. The settlement of the
revenue, limiting its amount for ever, was gone through
with a degree of precipitancy which nothing short of ab-
solute certainty with respect to the rights of the humblest
individual concerned, could justify.
An act of the British Parliament is consequently ob-
tained, setting forth " that complaints, abuses, and griev-
" ances were made, perpetrated, and endured in India;
w and that the native landholders had been unjustly
" deprived of, or compelled to abandon, their respective
" lands, jurisdictions, rights and privileges;'1 and by sect
39, 24 Geo. III. cap. 24, " the Court of Directors were
" required to give orders for settling and establishing, upon
" principles of moderation and justice, according to the
" laws and constitution of India, the permanent rules by
" which the tributes, rents, and services of the rajahs,
" zumeendars, polygars, talookdars, and other native land-
" holders, should be in future rendered and paid to the
" United Company."
This then is the text of law on which stands the validity
of the permanent settlement. " The laws and constitu-
" tion of India" form the rule by which it was to be
regulated ; but it is material to observe, that there is not
one word in this act authorizing the permanent limitation
of the revenue of the country. " It is to establish perma-
" nent rules, by which the tributes, rents, $c. shall in
" future be paid? To fix rules for paying a tribute,
and
170 PRESENT SYSTEM.
and that too according to the " laws of the country," is
not the same thing as limiting for ever the amount of that
tribute, and that too in a way discordant to all law, as
really was done.
On the 12th April 1786, agreeably to the mandate of
the act, the Court of Directors issued their orders to the
Bengal government ; but instead of adhering to the plain
words of the statute, they direct the preliminary inquiry
to be " what were the real jurisdictions, rights, and pri-
" vileges of zumeendars, talookdars, and jageerdars, un-
" der the constitution and customs of the Moohummudan
" OR HINDOO government. What tributes, rents, &c. they
" were bound to pay to the sovereign ; and, in like manner,
" those from the talookdars to their liege lord, the zumeen-
" dar." They, however, referred to the clause of the
act of parliament itself, in which their power was specified,
" which they directed the Governor-General in Council to
" consider with minute and scrupulous attention, taking
" especial care that all the measures adopted in the admi-
" nistration of the revenues be consonant to THE SENSE
" AND SPIRIT THEREOF"
It is evident, therefore, notwithstanding the inaccurate
mode in which their orders are expressed, that the Court
of Directors intended to conform to the tenor of the act of
parliament, which ordained permanent rules to be framed
by which the rights of all native landholders " were to be
" settled and established, according to the laws and con-
" stitution of India." But how they came to deviate so
far from the tenor of the act, when in these instructions
they express their opinion " that the spirit of the act
" would be best observed by fixing a permanent revenue"
it is difficult to comprehend. The perpetual limitation of
the
PERMANENT SETTLEMENT. 171
the revenue on the lands is, therefore, the gratuitous crea-
tion of the Honourable Court of 1786 : but by what au-
thority that honourable body referred to the constitution
or customs of the " HINDOO government,1' there is no pos-
sibility of forming any rational conjecture.
The proclamation, by the Governor-General in Council,
22d March 1793, of the permanent settlement, the ulti-
mate edict of government declaring it, expressly supports
the " actual proprietary right in the soil :*" article III.
" The Governor-General in Council accordingly declares
" to the zumeendars, independent talookdars, and other
" actual proprietors of land, with whom a settlement has
" been made under the regulations (18th September and
" 25th November 1789, and 10th February 1790), that
" no alteration will be made in the assessment they have
" agreed to pay ;" and this proclamation has likewise re-
ference to the amended code of regulations relative to the
decennial settlement, approved by the Governor-General in
Council 23d November 1791, which is ordered to be trans-
lated into all the native languages, and published for ge-
neral information. The third article states, " that the
" settlement, under certain restrictions and exceptions here-
" after specified, be concluded with the actual proprietors
" of the soil, of whatsoever denomination, whether zu-
" meendars, choudries, or talookdars.'1 The restrictions
and exceptions are stated to be, to exclude talookdars, who
hold by special deeds of a superior zumeendar, and ayama-
dars, Sec. also females, idiots, lunatics, and persons incapa-
citated on account of contumacy, or notorious profligacy of
character.*
It would therefore appear, were we to attend to this
alone,
* Article 19, Proclamation 23d November 1791.
172 PRESENT SYSTEM.
alone, that the local government intended to admit to the
settlement only the " actual proprietors of the soil," ex-
cluding such possessors of land as, by their own act were
known not to be actual proprietors, as talookdars, holding
by special deeds, or holders under crown-grants; also persons
incapacitated by their sex, or by the hand of God, from*
entering into such settlement.
Why this intention was departed from it is not easy to
imagine. Necessity alone could warrant a proceeding so
arbitrary ; and it so happened that not only no such
necessity existed, but the ablest by far, as well as the
best-informed (perhaps the only well-informed) member of
the Bengal government at the time, strenuously opposed
the precipitancy with which the permanent settlement was
urged to a conclusion. I need scarcely add, that the valu-
able man to whom I allude was Mr. Shore, afterwards Lord
Teignmouth ; whose minutes of that day evince a wonderful
degree of industry in the attainment of information, and of
talent, as well as temper, in bringing it to bear strongly,
but meekly, on the important question which he and his
less-informed colleagues were called upon to discuss and
decide.
Lord Cornwallis was an amiable and a virtuous man,
and in carrying into effect the permanent settlement, no
doubt thought that he was conferring a great blessing
upon India, But it was one of those short-sighted bene-
volent-like acts, which men with good hearts sometimes
rush upon, without seeing, in all its bearings, what they
are about ; and while they effect a partial good, they entail
an enormous general evil. Lord Cornwallis, and his con-
curring colleagues, at home and abroad, of that day, have
by their celebrated proclamation of 1 793, in spite of their
good
PERMANENT SETTLEMENT. 173
good intentions, nevertheless deprived the whole popula-
tion of the three finest provinces of India of their here-
ditary, and hitherto undoubted right of property in the
soil, the land of their fathers, the only thing which the
anarchy of their country had ever suffered them to re-
cognize as property, and vested this sacred right, not in
the honourable, the benevolent, and humane breasts of the
English government, but they transferred the real owners
of the soil, like a herd of the inferior creation, into the
hands of what we call the zumeendars, a set of men prover-
bial throughout their country for their tyranny, profligacy,
and incapacity. This was the blessing for which India was
expected to return thanks to those who were instrumental
in bestowing it !
Nor was the measure less objectionable with reference
to our own country, since it tied up her hands, for ever,
from availing herself, certainly at least of the best, indeed
almost the only, mode of increasing the revenue of several
of the finest provinces of the finest portion of the world.
I say the best mode, because I am persuaded, and I believe
with reference to India it is admitted, that a land-tax, laid
on fairly, is the best of all modes of raising a revenue ; and
I say almost the only mode, because in India there are few
other sources whence a revenue can be taken.
In Europe, the taste for luxury, which prevails, enables
government to raise a large revenue by taxes on the articles
of luxury ; the necessaries of life form another source of
revenue. In India, the luxuries of life are not known, ex-
cept to a few ; consequently, that source of revenue does
not exist there. Even the necessaries of life are of so
little value that they are scarcely tangible. What can the
most expert financier hope to levy from a people who live
almost
174 PRESENT SYSTEM.
almost in a state of nakedness, whose habitations cost per-
haps a rupee, and where, in many parts of the country,
labourers, heads of families, receive no more than five shil-
lings a month ? So that the soil, besides being the consti-
tutional source of the revenue of the state, is almost the
only one that can be made available.
The land-revenue was, under the Moohummudan go-
vernment, a source, too, which never failed to increase with
the population and prosperity of the country. These have,
under our government, unquestionably increased: their
tendency is to be progressive. Think then of the temerity
of the man, or of the set of men, or of the power, what-
ever it may be, who did venture, under such circumstances,
to set perpetual bounds to the resources of the Indian
government, by limiting for ever the land-revenue of the
country.
Many exceptions, in point of policy, have been taken to
the permanent settlement, as carried into effect ; but none,
so far as I know, to its legality. Yet it may fairly be ques-
tioned, whether those who concluded the permanent settle-
ment had any power so to do. So far as my judgment goes,
nothing short of an express mandate in the act of the British
legislature could have conferred that power : but it would
be difficult to shew the remotest indication of any such
mandate. If this opinion be just, then the local government
of Bengal, who are commanded by the charter, from which
they derived their own authority, and acts of the British
parliament, " to protect his Majesty's Indian subjects in
" their rights, according to the laws and constitution of
" India? had no power to make such a settlement ; a set-
tlement which deprived nine-tenths of the people of their
rights as recognised by the laws and constitution of India.
To
PERMANENT SETTLEMENT. 175
To enter into such a settlement of the land-tax with the
real proprietors of the soil, would, I think, have required
the express sanction of an act of parliament ; but to change
entirely the laws and constitution of India which respect
landed property, and to deprive of their rights those whom
they were bound by an express statute to protect in their
rights, appears to be an act altogether contrary to law : an
act, however, that never could have been contemplated by
those who were concerned in it, but under the fullest per-
suasion that they were committing no injustice, depriving
no one of his property, but granting to the lawful owners
of the soil privileges and benefits, not contrary to, but in
conformity with, though in benevolence beyond, the law.
The consequence has been far otherwise than was antici-
pated.
I have already given Lord Cornwallis credit for his be-
nevolent intentions, yet it must be admitted there appears
throughout the whole of his lordship's measures a precipi-
tancy, and a want of regard for ancient rights, not easy to
be accounted for.* This is evident in most of his minutes.
I select the following paragraph from that of the 18th Sep-
tember 1789- " Although, however, I am not only of
" opinion that the zumeendars have the best right, but
" from being persuaded that nothing could be so ruinous
" to the public interest as that the land should be retained
" as the property of government (never dreaming of the
" claim of the people), I am also convinced that, failing
" the claim of right of the zumeendars, it would be
" necessary
* Mr. Davis, who held a high office in Bengal at the time, tells us
that " Lord Cornwallis went out to India under the persuasion that
" the land-holders were oppressed. His lordship was surrounded by
" theorists," &c.— Answer to Queries by the Committee of Directors.
176 PRESENT SYSTEM.
" necessary for the public good, to grant a right of pro-
" perty in the soil to them, or to persons of other de-
66 scrip tion. / think it unnecessary to enter into any
" discussion of the grounds upon which their right ap-
66 pears to be founded"
An avowal such as this, was evidently beyond the power
of the Governor-General. It was evidently contrary to
the law enacted by the parliament of England. He was
not to grant rights, but to confirm them, and " to protect
" the people in their rights existing." It can, therefore,
only be interpreted, as a proof that his lordship did not
intend that his benevolence should be restrained. The
measures adopted at that period have more the appearance
of those of a good and well-meaning person, accidentally
placed at the head of a new nation, passing his first acts of
legislation, than of one charged with the government of
a people, the very slaves of method, of rule, of habit,
and of their institutions ; whose very foibles, even absur-
dities, deserved consideration, because to them they are
neither foibles nor absurdities, but matters of importance.
How, then, it so happened that their most sacred, most
valuable rights, should have been thus held as nothing, is
indeed difficult to conceive. It was a blameable neglect of
the interests of the people.
The very first point to be inquired into was the " claim
" to the soil," the right of property in which was to be con-
Jirmedy not granted. Mr. Grant argued in favour of the
right of government ; Mr. Shore, that of the zumeendar.
Lord Cornwallis despises all right, and fairly avows " that
" he thinks it unnecessary to enter into the discussion of
" the right to the soil." But the very first resolution of
government, framed by his lordship, bound him to make
this
PERMANENT SETTLEMENT. 177
inquiry ; for it says, " resolved, that a new settlement
" be made with the actual proprietors of the soil" &c.
Now the act of parliament of 1784 completely recognizes
the right of possession by the people, according to the law
of India, and that their " tribute and rents'1 should be
fixed agreeably to that law.
Before this final limitation of the revenue was made,
however, it might well be supposed that those who did thus
most rashly act, had, by the most painful examination,
research, and investigation, discovered data sufficient to
enable them to make a fair settlement for a limited time.
No such thing ! Mr. Shore, indeed, urges this in the
strongest terms. He says, in his minute of June 1789,
" We require, 1st, a knowledge of the rents paid by the
" ryots, compared with the produce ; 2d, of the collections
" of the zumeendars and of their payments to government ;
" 3d, detailed accounts of the alienated lands, shewing the
" quantity, the grantor, grantee, dates of grants, the occu-
" pant ; to see how far resumption can take place. All
" the material part of this information is wanting" ! ! !
The information they possessed was not sufficient to war-
rant them in settling the bazar-duties of a village. Our
knowledge of India was much too limited then, it is so
now, to furnish data for an act so important. They knew
not the resources of the country. They even discarded the
documents that were pressed upon them by the head
Record-keeper at the time, Mr. Grant, who had taken great
pains to exhibit the sources and the amount of revenue
levied by our predecessory governments of the provinces.
They did not even know to whom the lands in property
belonged. Lord Cornwallis, in his minute of 18th Septem-
ber 1789, says, " Mr. Shore has most ably, and in my
N " opinion,
178 PRESENT SYSTEM.
" opinion, most successfully argued in favour of the
" zumeendars to the right of property in the soil" ! ! They
did not know the nature or the condition of the tenures by
which the lands were held, which they thus gave away ;
they have, consequently, not only constituted, generally
speaking, a new race of landed proprietors, but have given
away to persons who had no legal claim to them, whole
tracts of country of the richest and best cultivated lands,
not only in perpetuity, but rent-free, arid without any con-
sideration whatsoever.
In the small province of Bahar alone, as was before
stated, a revenue from lands to the amount of from thirteen
to twenty lacs of rupees, or from .£130,000 to <£2()0,000
sterling annually, was thus diverted from the Company for
ever. In Akbar^s time, the pensioners on this province and
public establishment (the only possible pretext for relieving
the land from assessment) caused a defalcation of revenue
of about 55,000 rupees only.
We have seen that the enormous amount of revenue lost,
in name of land relieved from the public assessment, in the
three lower Bengal provinces, is no less than «£!, 256,391
sterling, calculating at one rupee eight anas per beegah,
exclusive of the province of Cuttack. Most of these lands,
and all waste lands, are undoubtedly liable to assessment ;
they never could have been legally exempted from it ; and
policy, as well as justice, certainly makes it a question
whether they should not still be assessed. Surely it cannot
be j ust, that one portion of a district should alone pay the
public burdens.
The value of the cultivable, but uncultivated land, ap-
pears to have been entirely overlooked ; and instead of
proceeding
PERMANENT SETTLEMENT. 179
proceeding in the settlement on the basis of the land in
cultivation alone being private property, the government of
that day seems to have formed to itself a division of the
whole country into great hereditary lordships, under the
name of zumeendaries, the extreme boundaries of which
were alone worthy of being noticed ; forgetting that, in
many instances, two- thirds of the circumscribed space had
no value assigned to it, as yet, on the financial records of
government ; nor could it have till brought into cultiva-
tion.*
I cannot help seeing, in the permanent settlement of
Bengal, a great lesson read to all future governments oft
India, to hold back their hands from limiting their perma-
nent resources in perpetuity, until they have secured an
equally permanent and available substitute.
If government were determined to make a permanent
settlement, why did they not limit their settlement to all
they could legally settle, the per-centage on the revenue :
a profit sufficient to call forth the best exertions of the zu-
meendars, whilst it would have secured the right of the
husbandman, and admitted of a progressive increase of
revenue to the state, in proportion to the progressive im-
provement of the country ?
Whether it shall ever be deemed the policy of govern-
ment to modify the permanent settlement, is a point well
worthy
* Mr. Colebrooke, in a minute recorded by him as a member of
council in Bengal, in 1813, states, " that there are official grounds for
" concluding that the nctt profits of the zemindars in the permanently
" settled provinces average one half of the public assessment." Some
say, equal to the whole.
180 PRESENT SYSTEM
worthy of consideration. How far it might be possible, in
the course of time, to remedy that great political error, by
government purchasing the zumeendars' right of estates, as
they were brought to sale, I merely suggest as a question.
They might then attend to the rights of the real owners ;
and thus, in time, the whole lands of those provinces would
revert to their former state, and would again be available
to produce a progressive advance of revenue, as they ad-
vance in cultivation and the country in prosperity.
The opportunity of sales would probably not be want-
ing. In ten years from 1796, Mr. Stuart informs us, lands
were sold in the provinces of Bengal, Behar, Orissa, and
Benares, on account of arrears of government-revenue,
j the total amount of assessment of which was rupees
1,21,75,680 ; * nearly one half of the whole assessment of
the lower provinces. The amount of the price these lands
brought at the sales was rupees 1,08,55,537, shewing a
depreciation below the government-valuation of rupees
13,20,143.
This statement, however, though perfectly correct, it
must be admitted, shews a very exaggerated picture of the
rapidity with which property in Bengal has changed its
owners since our perpetual settlement of it ; because, at
perhaps one-half, or two-thirds of the number of sales, the
owners repurchased their lands. In point of fact, the value
of land in Bengal has risen exceedingly since Mr. Stuart
wrote. Lands assessed at a lakh and a half, have been
sold for ten lakhs and sixty-four thousand rupees. " Letter
to Bengal, %lst March, 1821."
Were it the object of government to become purchasers,
for
* Mr. Stuart's minute.
PERMANENT SETTLEMENT. 181
for the purpose above noticed, the sale of lands for arrears
might be encouraged ; otherwise, it cannot fail to strike
any one, that it must be the interest of government to
discourage such sales, not only as they necessarily tend to
produce a diminution of revenue, but as being often pro-
ductive of the greatest hardship and oppression, as well as
of much feud and dissention among the people.*
The augmentation of the revenue assessed on the land,
in the permanently settled provinces, to meet the expenses
of the government, is a distinct point. The confused
notions entertained by many, as to the real state of right
of property in the soil, have led to very extravagant con-
clusions. The permanent settlement is looked upon as a
grant of land by government, on payment of RENT, specific
in amount and fixed in duration. Whereas, in point of
fact, the grant was what government could not legally
bestow; but if it could, still what was assessed on the
lands was not " RENT ;" it was a TAX. We easily adopt
the notion, that " grants" and " letting'1 on a fixed " rent*
limit the payment to be made by the grantee, or lessee,
to the amount specified; but we cannot so easily under-
stand, that a permanent grant of land which a tax is laid
on, should debar government from laying another tax on
that land. A permanently fixed " rent* is easily con-
ceived by us; and, therefore, we give undue weight to
what is called the permanent settlement. But, taken in its
proper light of a tax, and coupled with the grant of lands,
we
* The Court of Directors have ordered such purchases to be made ;
and the Bengal government has, in some instances, made them.
— Letter, IQth November, 1824. But sales are now hardly ever had
recourse to. " The revenue of the ceded and conquered provinces
" is now realized with little or no recourse to public sale." — Letter
from Bengal, '[st August, 1822.
182 PRESENT SYSTEM.
we can in a moment see that the " permanency" might
apply to the grant of the land, whilst the assessment,
being a tax^ might, like other taxes, be liable to change.
The idea of any government holding the amount of tax-
ation on one portion of a country, to be fixed in perpetuity
at an unduly low rate, whilst the other is liable to an inde-
finite assessment, is obviously and clearly unjust. If, how-
ever, such an invidious system cannot be disturbed, as
regards the land-tax, on what pretext is the government
called upon to refrain from levying other taxes from that
portion of country unequally taxed? The government
which effected the permanent settlement contemplated this.
The " growing wealth of the country" they indeed looked
to as a certain fund for taxation ; and on this they built
one of their strongest arguments for the permanent land-
revenue settlement. Why, then, should income there not
be taxed ?
The general system of government, since the date of the
permanent settlement, has been vastly improved; and at
a great expense. Commerce has been extended, both
internally and externally; merchandize now circulates
through provinces into which, at the date of the permanent
settlement, even armed men durst not enter. Of all the
inhabitants of India, none derive so much benefit from all
this as those of the permanently settled provinces ; and I
cannot understand on what principle they should be ex-
empted from their fair share of the cost incurred in rea-
lizing to them advantages, which, when their permanent
compact (if it must be so) was entered into, did not exist,
and which they enjoy beyond all other subjects of the
state !
We
PERMANENT SETTLEMENT. 183
We want, now-a-days, a little of the nerve which pre-
vailed in 1793, in disposing of particular rights when they
were supposed to militate against the general interests of
the country. Far be it from any counsel of mine rashly to
interfere even with the permanent settlement ; but, cer-
tainly, taxation should be imposed, to meet the extra
expense of necessarily increased establishments. The land-
tax of England is at least as permanent as " the permanent
" settlement ;" but does this exempt the English land-
holder from taxation ? Nay, in the permanently settled
provinces, a considerable part of the duty of the revenue
officers consists in the management of estates the property
of minors, and others, under the Court of Wards, which
occasions the employment of an additional number of those
functionaries: yet, even for this gratuitous and unneces-
sary charge upon the expenditure of the state, no equiva-
lent is exacted. But the " Nankar," a fair commission on
the rental of such property, would defray the expense of
a considerable portion of the fiscal establishments in the
Lower Provinces. Surely there is something peculiarly
inconsistent in keeping up establishments for the benefit of
others, whilst we are anxiously reducing our own.
The different modes of settlement, which have been pro-
posed or adopted for the Company^ territorial possessions
in India, may be reduced to the following. The perma-
nent zumeendarry settlement, so well known in Bengal,
being essentially the same as the mootahdarry system of
the coast, which word is there applied to distinguish the
settlement with the zumeendars. The xumeendarry perio-
dical settlement, the mouzawar settlement, meaning a settle-
ment by villages ; and the ryotwar or koolwar settlement,
meaning a settlement with individual cultivators for indi-
vidual
184 PRESENT SYSTEM.
vidual fields. The two latter may be either permanent or
periodical.
The first of these modes of settlement, namely, the
permanent zumeendarry, has already been noticed, and
will presently be again reverted to. The last, vi%., the
ryotwar, has been so ably advocated by Sir Thomas
Munro, and his powerful coadjutor, Mr. Thackeray,
that I think the subject almost completely (and success-
fully) exhausted. After wading through the crude and
meagre reasoning, repeated by one and echoed by another,
of the late Bengal financiers,* it is really refreshing to see
the accuracy, the minutiae, and at the same time the extra-
ordinary mass of information and most intimate knowledge
of the subject, which their more accomplished brethren on
the coast have brought to bear on the question they dis-
cuss. The one set of men you see at once are masters of
their subject ; the other may be said to have but a vague
idea of it. The fact will prove to be, that till the cession
and conquest of the Western Provinces, the permanent
settlement in Bengal deprived the revenue officers there of
the means of going into financial details, and consequently
few of them have put themselves in possession of that
minute knowledge of the state of the country and of its
resources, which some of those of the sister presidency
possess ; and until they do acquire this knowledge, they
must be content to talk of generalities, and must continue
to
* I have said " late" Bengal financiers, because I know that, for
some years past, great attention has been paid in Bengal by many
able men to the department of revenue, under the guidance and
direction of the present territorial secretary in Bengal, Mr. Holt
Mackenzie, whose knowledge of the system of India revenue, and of
its practical results, both for extent and accuracy, has never, I
believe, been surpassed.
PERMANENT SETTLEMENT. 185
to be frightened at the idea of entering into the minutiae of
Indian finance ; whilst their better informed brethren
smile at the bujbear, and actually tell them that there is
" more trouble in managing the petty concerns of a fron-
" tier custom-house, than the ryotwar revenue detail of a
" whole district/1* That experienced and intelligent
officer (Mr. Thackeray) declares, that " even here, the
" customs in any frontier district require more attention to
" accounts, and more intricate details, than the whole
u ryotwar detail of land-revenue.11
The ryotwar settlement is precisely the ancient and con-
stitutional mode of levying the land-revenue in India,
according to the Moohummudan constitution, provided the
rate of impost be fixed, and on the cultivated land only ;
and being so, it has consequently many advantages. The
able officer who introduced it at Madras knew its origin, I
doubt not, and doubtless adopted it because he knew it
was known : at the same time engrafting such improvements
upon the old system as his judgment suggested. It does
not appear from the earlier proceedings of Sir T. Munro,
that he deemed the rates of assessment fixed. He, at
least, does not dwell sufficiently on the advantage of this to
the people. It is this, however, which forms much of the
excellence of the ryotwar system. It is a permanent settle-
ment to the ryot of his fields, the value of which he can
increase by superior culture. To the state the advantage
is, that as cultivation increases, so will the revenue. It will
be seen, therefore, that in this mode of settlement are com-
bined the interests, both of the cultivator and of the crown,
in the improvement of the country.
When the extent of land (in a given village, for instance)
has
* See Mr. Thackeray's Report.
' 186 PRESENT SYSTEM.
has been assertained by actual measurement, or the extent
of a field in it, or of all its fields, and the assessment fixed,
the same being at a moderate rate, so as to afford the culti-
vator not only a comfortable subsistence, but to leave him
something which, if a frugal man, he may apply to the
purchase of an additional bullock to extend his means of
cultivation, or if otherwise disposed, lay out in buying a
piece of finer doth for his wife or favourite daughter, — if
such a moderate assessment were fixed, and permanently
fixed, property would become valuable, the people would
cling to it, the rent-roll of the present year would be the
same as that of the preceding, the people would feel proud
of their property, easy access to the collector would enable
them to resist effectually any attempt at fraud among the
inferior servants of government, and thus the revenue
would become secure to government, easy of collection,
and the people be freed from oppression ; for when things
thus fell into a regular train, with European revenue
officers of ordinary vigilance, I do not think that their
inferiors could practice fraud without detection. There
would be no insurmountable difficulty in administering
such a system as this. The field would represent so much
of value on the collector's book as easily as the bank note
would do, and would be as easily transferred if there
were need to do so.
Though there is in this system no restraint on the
tranfer of property, and no artificial impediment to pre-
vent its accumulating in the hands of individuals, yet as
property in the soil would then be really valuable (which,
under exactions that leave a bare subsistence to the culti-
vator, it is not), no individual would be able to acquire by
purchase so large an estate that he could not himself or by
his tenants manage it, while, at the same time, the indus-
trious
PERMANENT SETTLEMENT. 187
trious yeoman might aspire to extend his farm by the
acquisition of that of his prodigal neighbour : and, in time,
wealthy proprietors would be found in the country, not
such as we now see, but men, or the descendants of men,
who by their industry and ingenuity had really contributed
to enrich their country ; efficient proprietors, who would
appreciate the value of their possessions, and feel a pride in
improving them.
It was the worthlessness of property in the soil that
enabled bold and pennyless adventurers to become pro-
prietors, as they call themselves, and we call them, of
tracts of country equal to principalities. These were sold
for nothing, bought for nothing. In the sales the purchaser
promises to pay the revenue. If he succeed in collecting
it, however great the oppression, he pays it, goes on in this
way till he has pillaged the country, then it is again sold
in whole or in part ; and so on, till the country is ruined.
The jumma, or government-rent, must then be reduced ;
and government is the ultimate loser. This is a summary
view of the case, and of the security we have in our
zumeendars for the public revenue.
It has been confidently asserted by the advocates of the
permanent zumeendarry settlement, that individual zu-
meendars will manage their estates better than government
revenue officers could do ; and this has been held as one of
the strongest of their arguments. But I doubt this, and
would beg of those who oppose me to name any one
zumeendar in India who ever managed his zumeendarry in
the style in which Sir T. Munro did the territory under
his charge? It is an argument that would be good in
England, perhaps ; but those who apply it to India forget
the difference between Indian zumeendars and English
landholders.
188 PRESENT SYSTEM.
landholders. Here is the rock on which all mere theorists
and general principle men are wrecked.
But then, if we were to grant that zumeendars, having
smaller estates than government collectorships, manage
them better than government collectors, we must admit,
on the same principle, that individual cultivators, whose
estates are smaller than those of zumeendars, must manage
them better still : and this is really the case ; for be it
remembered all along, that a zumeendar is not a manager
of cultivation, but a contractor of revenue, whose interest
in its realization is not equal to that of government nor of
its European servants, who are, in fact, identified with
the government. Being, therefore, on the one hand, less
competent than the cultivators to produce a revenue, and
on the other, less interested than the Company's servants
in realizing it, the zumeendar is the least fit person to be
employed in superintending either the cultivation of the
country, or the realization of its revenue.
I hold it beyond doubt, that the ryotwar, or individual
proprietary assessment, must be the basis of our land
revenue system in India. But as in some parts of Hindoos-
tan the state of village-society is peculiarly formed, where
certain casts monopolize and maintain privileges in certain
villages, in such cases I would also admit the mouzawar
or village-settlement ; and this, in every case where there
existed joint and undivided, or indivisible, rights or immu-
nities : holding in all such cases, however, the whole vil-
lage coparcenery responsible for the whole village-revenue,
both collectively and individually ; whilst, at the same time
the extent of the land belonging to the village, — every
field thereof, — should be known ; the separate, as well as
the combined interests of every person, ought to be inquired
into,
PERMANENT SETTLEMENT. 189
into, and ascertained and registered by the village register,
in the same way as in villages under separate and individual
tenure, to guard against oppression and usurpation by any
individual among them. The names of the individuals
who cultivate, and of the fields cultivated by them annually,
with the extent of eac.h field and the kind of crop, should
be entered; allowing the individuals to adjust among
themselves the mode of occupation, and quantum of rent
payable by each. The above investigation is necessary,
not only to prevent usurpation and injustice among the
occupants, but in case circumstances should render it
necessary for government to have recourse to individual
settlement, the requisite information would be forthcoming.
A judicious combination of the mouxawar with the
ryotwar settlement would secure to individuals, and to all
classes of the community ', not only their absolute rights,
but their privileges, even indulgences ; often, from habit,
more important to them than their rights. I will there-
fore repeat, that, to my mind, there is no other mode of
adjustment of the land-revenue of India, so well suited to
the people, or so likely to insure their happiness.
The mouzawar or village-settlement, by itself, appears
objectionable, perhaps impracticable ; for where the state
of the village community is not such as I have adverted to,
it would be difficult to get the individuals composing it to
assimilate sufficiently, without which the most helpless,
and consequently those who most required protection,
would be most oppressed.
These are the modes of settlement of the Indian land
revenue generally adverted to. But there is the important
question of the expediency of making permanent or perio-
dical
190 PRESENT SYSTEM.
dical settlements still remaining. Whatever mode may be
adopted, great difficulties may be suggested to permanency ;
but the ryotwar is the only kind of settlement by which
government would not be compelled to make great terri-
torial sacrifices, by giving up such tracts of uncultivated,
though arable land, as might be included within the limits
of the zumeendarry or the village assessed, without any
equivalent ; unless, indeed, a reservation and specification
of the land uncultivated were made. I say without an
equivalent ; because there are no capitalists in India who
can afford to give any thing for land unproductive on a
speculation of future advantage : therefore, though one-half
of the arable land of a village, for example, should be
uncultivated, were that mouza, or village, assessed by
mouzawar permanentlyfcne-half of the property of govern-
ment must be given away for nothing^
J This alone is, I apprehend, a fatal objection to perma-
nency, as applied to all the other modes of settlement.
But the ryotwar, being a settlement with individuals of
individual fields, is made only on the cultivated fields,
and is, therefore, not obnoxious to the above objection.
The ryotwar settlement should be made, essentially at
least, permanent, by declaring at once the rate of assess-
ment fixed. If in money, so much per beegah ; or should
the cultivator prefer it in kind, a certain share of the pro-
duce, as one-fourth or one-third, convertible into money
at a price fixed every twenty years on the average rates for
the five years preceding the period. Thus the rent-roll
would stand of the fields that were assessed. Every addi-
tional maund of grain the cultivator caused his field to
produce would be an additional reward to his industry,
till it enabled him to extend his cultivation ; and then he
would cultivate the adjoining spot, now a waste, which
would
PERMANENT SETTLEMENT. 191
would then fall to be, in like manner, moderately assessed,
till the whole arable land of the village produced a profit
to the ryot and a revenue to government.
That a system such as this would be attended with
inestimable advantages, I cannot doubt. It would re-
store to the very best of the people that protection, which
a closer intercourse with the European officers of govern-
ment would ensure. It would establish their immediate
reliance upon government. The people would claim de-
pendance upon the public functionary, whilst they would,
in return, be cherished by him, not only from motives of
humanity, but as the means by which alone he could effec-
tuate the success of his own labours.
If we wish the great body of the people to become at-
tached to our government, this is the way to promote that
object ; and not by divesting ourselves of all connection
with them, by the intervention of middle men, who have
little sympathy with the people, and none at all with us.
If our system of government be really valuable to the
natives, surely we ought not to suffer its excellence to be
intercepted from them. It should be seen to follow di-
rectly from us, and directly to them ; for it can gain
nothing from any medium through which it may pass, but
pollution.
Suppose, for the sake of illustration, the whole country
to be " permanently settled," and in the hands of zumeen-
dars, in what position should we find ourselves with re-
ference to the great body of the people ? The European
servants of government would never appear among them
but as a mere professional tax-gatherer; represented to
them
192 PRESENT SYSTEM.
them as such, in language more or less of exaggerated ob-
loquy, in proportion to the extent of undue exactions which
the native landlord intended to wring from his enslaved
ryots. If an officer of revenue, this would be the- lot of
the European functionary ; if of justice, he would but per-
sonify approaching vengeance or immediate punishment.
" /, lictor, colliga manus ! arbore infelici suspende /"
Surely these are not feelings which we ought to pro-
mote in the minds of the natives towards our own govern-
ment. We cannot thus attach the people to us.
Far otherwise would it be with the Ryotwar collector.
When he went among the people, it would be to receive
from each what he had voluntarily engaged to pay for a
specific value ; or, in the event of real distress, like an
indulgent landlord, to grant the ryot, his tenant, that
relief which he would be competent to afford.
The custom and constitution of India have placed the
government and the people, in many respects, in the re-
lative situation of landlord and tenant. Why should we,
residing among them, establish the reprobated system
" of absenteeism" by the introduction of middle men,
who are nothing but contractors and sub-contractors of
revenue ?
I shall now proceed to notice the arguments which have
been urged in Bengal in favour of the permanent settle-
ment.
Mr. H. T. Colebrooke, late Member of Council in Ben-
gal, one of the best informed of the moderns in Bengal,
who have written on the subject of the permanent settle-
ment,
PERMANENT SETTLEMENT. 193
ment, in a minute dated 20th June 1808, as a member of
the Bengal government, recommends the extension of the
permanent settlement to the Ceded and Conquered Pro-
vinces in Bengal, on two grounds : " 1st, because he ap-
" proves of such a settlement intrinsically ; and 2dly, be-
" cause such a settlement had been solemnly promised to
" the inhabitants of those provinces by the supreme go-
" vernment of Bengal."
But Mr. Colebrooke, in my estimation, destroys at the
very outset much of the weight that would be due to his
opinion. He refers to the discussions which took place in
1789 and 1790, and says, " he trusts that arguments which
" were not suffered to weigh against a measure (the per-
" manent settlement) recommended by wise and enlarged
" views of policy, but not then promised to our sub-
" jects, will not be allowed greater weight, at this mo-
" mentous period, against a similar measure, equally
" recommended by liberal considerations of policy, and
" solemnly promised by an express declaration in a legis-
" lative act."
But surely it cannot be fairly argued, that because the
reasons assigned against the permanent settlement in
1789 were not suffered to weigh against the perma-
nent settlement then, that therefore they should now be
discarded. It is remarkable to see the essential difference
overlooked between carrying into effect a measure of po-
licy, which, in 1789, was but a matter of mere speculation,
and the same measure, after twenty years experience of it.
It is not a little surprising, that Mr. Colebrooke should
have overlooked the difference there is between what may,
or may not, be allowed to weigh in discussing a plausible
theoretical speculation, and what ought to be allowed to
o have
194 PRESENT SYSTEM.
have weight in judging of the expediency of a measure
after experience.
Had this advocate of the permanent settlement got his
opponents to admit, as a postulatum, that the permanent
settlement in Bengal, &c. was unquestionably advan-
tageous, and in itself perfect, his mode of arguing for its
extension might have some weight. But his opponents
would, and indeed must, deny that the Bengal settlement
was in itself either advantageous or perfect. On the con-
trary, they with much earnestness deprecate its being held
up as an example.
Mr. Colebrooke tells us, that the objections alleged by
several of the collectors, and by the late Board of Com-
missioners of the Ceded Provinces, against the immediate
conclusion of a permanent settlement, are principally the
imperfect knowledge yet acquired of the resources of the
country, the inequality of the present assessment, the
great proportion of uncultivated lands (estimated gene-
rally at a fourth of the arable land), the deficiency of
population and want of capital to extend the cultivation,
the existing restrictions on commerce, the want of opulent
consumers, the extent of resumable land yet unascertained,
the necessity of continuing certain farmers in the posses-
sion of their farms, the general uncertainty with regard to
the proprietary right, either at present contested or not
ascertained, in respect of extensive tracts of waste land,
the doubtful value of the standard coin, the risk of dis-
appointment should the settlement be disapproved by the
Court of Directors. " All these circumstances," he adds,
" it will be remembered, existed in Bengal. Some were
" urged in favour, others against the permanent settle-
" ment, though they are all marshalled against me."
And
PERMANENT SETTLEMENT. 195
And, again, he states one of the principal arguments
against the permanent settlement of those provinces to
be, " that the jumma was then Rupees 2,25,00,000, with
" one-fourth of the arable land uncultivated." Now, it
does appear to me, that the objections " marshalled
against" Mr. Colebrooke here, are really formidable ; and
one would suppose, such as ought to have been met by
better argument than reference, for their refutation, to
the speculations of 1789.
It so happens, that the Ceded Provinces are in a far
more flourishing state than Mr. Colebrooke^s opponents
anticipated when they wrote ; and though little more than
ten years have elapsed, the jumma, exclusive of the fourth
of uncultivated land, is about three crores of rupees. In
the year ending the 30th April 1820, the land revenue of
the western provinces (the Ceded and Conquered), ac-
cording to the printed report submitted to parliament,
June 1822, was Sicca Rupees 3,44,16,078, including
Benares, which is forty-two lacs. In 1815 it was Sicca
Rupees 2,91,76,724 ; which shews an accession of revenue
of about Rupees 66,76,724 in seven years: one of the
best practical proofs that can well be adduced, that the
proposal for the extension of the permanent settlement was
at least premature.
If one-fourth of the arable land was uncultivated, and
there were, " as the collectors urged," no capitalists to
pay for such land, consequently the rent fixed on the
permanent settlement would have fallen to be fixed on
the cultivated land only. On what principle of equity
could a settlement have been formed to give away this
fourth of the whole arable land of the country without an
equivalent ?
o2 In
196 PRESENT SYSTEM.
In answer to tMs it may be stated, as Lord Cornwallis
did in 1789, " that government, by reserving to itself the
" internal duties on commerce, might at all times appro-
" priate to itself a share of the accumulating wealth of its
" subjects, without their being sensible of it " and for
the certain diminution of land revenue we may look to
other sources of taxation, " and thus make the burden
" more equal." But it has now been admitted, that the
new sources tried have been altogether unsuccessful ; and
hence the arguments of 1789 must be given up. It must
never be forgot, moreover, that it is impossible for govern-
ment to levy taxes, internal duties, &c. such as are here
hinted at, without letting loose on the people myriads
of harpies, in the shape of custom-house peons, excise-
officers, police-choky dars, &c., which would devour the
commerce of the country, and destroy the comfort of the
people.
It has been urged, I am aware, by some, on Mr. Cole-
brooke's side, that the great increase of revenue in the up-
per provinces, and extension of cultivation, have arisen in
a great measure from the expectation of the permanent
settlement entertained by the people. I admit, and indeed
know well, the great increase of cultivation ; but I deny
that it has been owing to this cause : and so far as I am
able to j udge from a long residence among them, and from
the opinion of others still better qualified to speak to the
fact, I do not think that the people of the Ceded and
Conquered Provinces, notwithstanding the promises of go-
vernment, ever really looked for a permanent settlement.*
The
* This affirmation has been remarkably verified. The present
territorial secretary to the Bengal government, who accompanied the
late Governor-General to the Ceded and Conquered provinces, re-
mained there for the purpose of inquiring into the operation of the ,
PERMANENT SETTLEMENT. 197
The additional cultivation, I believe, is entirely owing to
the industry of the husbandmen, the cultivators, and real
owners of the soil, under the protection of a just and settled
government : a class of men of superior pretensions, iden-
tified, as it were, with the soil ; and who, let it be remem-
bered, have never, save in times of anarchy and oppression,
been accustomed to any thing but a permanent settlement ;
that is to say, to permanent possession, on paying a fixed
and definitive rate of rent for their lands. But let us ex-
amine this a little farther.
The increase of land revenue in the Ceded and Con-
quered Provinces, from 1807 to 1813, six years, was fifty-
five and a half lacs of rupees ; and all this after the per-
manent settlement promise of the 14th July 1802, 15th
September 1804, llth July 1805, and Regulation X, 1807,
had been made, and as often put off. And it is remarkable,
that previously, to 1807, the date of the last broken promise
of a permanent settlement, the increase did not exceed ten
lacs: ten lacs in five years ! It may therefore, with at least
as much plausibility, be maintained, that it was not till the
people felt pretty well assured that there would be no per-
manent settlement, that they did heartily set about in-
creasing the cultivation. Nor is it at all necessary to
have recourse to a cause so remote, to account for increase
of cultivation and of revenue, when we advert to the in-
ternal tranquillity of the country, the high prices the hus-
bandman
revenue system. Many hundred petitions were presented to him,
complaining of other grievances ; but not once was this much-averred
promise of a permanent settlement ever mentioned. This was the
answer given to me by Mr. Holt Mackenzie, when I put the question
to him — and those know little of that invaluable public officer, who
can for a moment suppose that he could pass over a point so important,
or be misled in the inquiry.
198 PRESENT SYSTEM.
bandman received for the produce of his labour, together
with perfect freedom from oppression and undue exaction
of every kind.
I have, in many parts of the Ceded and Conquered Pro-
vinces, seen grain selling at twenty-five seers per rupee,
where we were credibly informed by the natives that three
maunds (one hundred and twenty seers) were often, even
generally, procurable for that sum. Such prices are better
calculated to extend cultivation than promises of a perma-
nent settlement.
If, again, it be insinuated, which it appears to be, that
the zumeendars paid a higher revenue to government, to
allure government into the grant of a permanent settlement,
how did they raise this vast capital of fifty-five and a half
lacs of rupees annually : a fourth of the whole rental of
the provinces, when Mr. Colebrooke wrote ? This is a ques-
tion that can only be answered in one way.
Mr. Shore's (Lord TeignmoutK's) estimate is quoted by
Mr. Colebrooke, " that no less than a third of the amount
" received from the cultivator is required for the charges
" of collection, and intermediate profit between govera-
" ment and the raiat."* On this estimate, Mr. Colebrooke
says, the permanent settlement in Bengal and on the coast
was formed. And Lord Cornwallis, at the same time,
estimated no less than a third of the Company's territory
to be a jungle, which Mr. Colebrooke confirms, and states
that " the researches in which I (Mr. Colebrooke) was
" engaged at the time, furnish me with grounds for the
" opinion, that the estimate may, with great approxima-
" tion to accuracy, be understood as applicable to lands
" fit for cultivation, and totally exclusive of lands barren
" and
* Vulg. " ryot."
PERMANENT SETTLEMENT. 199
" and irreclaimable." Here, then, we have confessedly
one-third of the whole cultivable land, and one-third of the
whole " gross collections from the cultivator," avowedly
relinquished by the government ; and we are told that this
should be the basis of the permanent settlement.
Let us apply this principle of a permanent settlement to
the Ceded and Conquered Provinces, and exhibit to the
world what those advocates for a permanent settlement were
prepared to relinquish.
Mr. Colebrooke wrote in 1808, when the jumma of
the Ceded and Conquered Provinces was Rs. 2,25,00,000
In 1815, however, it was Rupees 2,91,00,000. It is now
(1823) upwards of Rs. 3,00,00,000*
Add one-third (the expense of collection) to
make up " the gross collections," per Lord
Teignmouth's and Mr. Colebrooke's esti-
mate of charge of collection and interme-
diate profit between the ryot and govern-
ment 1,00,00,000
4,00,00,000
Add one-third more for cultivable, but un-
cultivated lands, on the authority of Lord
Cornwallis, corroborated by the writer
above alluded to 1,33,33,333
Total ultimate gross collections from the(
bej
3
ryots, supposing the lands wholly culti-^ 5,33,33,333
vated
The
* See printed papers laid before Parliament, June 1822. The land
revenue of the western provinces, including Benares forty-two lacs,
was 3,44,16,078 sicca rupees.
200 PRESENT SYSTEM.
Brought forward ... 5,33,33,333
The expense of collecting the revenue,
as above, is stated by Mr. Colebrooke at
one- third. But the Governor-General, in
his minute of September 1815, tells us, it
did not in 1814 " exceed six per cent, on
the jumma" But allow six per cent, on the
gross collections of Rupees 5,33,33,333, it
is 31,99,998
And, on the same authority
of the Governor-General, the
balances for that year did not
exceed three per cent., or 15,99,999
Deduct expense of collection ") 47,99,997
and balances 3
Total ultimate nett revenue 4,85,33,336
From this take the jumma of 1808, which
the advocates for the permanent settle-
ment recommended to be permanently
fixed 2,25,00,000
Deduct expense of collection,
six per cent. ; loss by arrears
of rents, three per cent. ;
equal to nine per cent 20,25,000
Total nett revenue per permanent settle-^
ment, if it had been made in 1808, as > 2,04,75,000
recommended J
Total ultimate loss of revenue Rs. 2,80,58,336
Or in pounds sterling, at 2s. 6d. per rupee, ^3,507,292.
Thus three millions five hundred and seven thousand
pounds
PERMANENT SETTLEMENT. 201
pounds sterling, or at the intrinsic value of the rupee,
^2,805,833 sterling, might have been eventually lost to
the revenue, had the government in 1808 " conferred so
great a blessing upon the people" of the Ceded and Con-
quered Provinces, as those of the Cornwallis school desired
to bestow.
Nor have I, in this estimate, noticed the certain pros-
pect there is that the present rates of assessment will, in
most districts, experience a rise to a great amount. As
a reason for this opinion, let me state, that in the Morada-
had district of Rohilcund, the average rate per beegah of
cultivated land is Rupees 1 12
In the adjacent district of Barrelly it is only 0 8
In Gorruckpore, first division, it is 2 12
In the same district, second division, it is 2 3
If land in Gorruckpore be let at two rupees and twelve
anas, it must in Barrelly, which is a populous and fertile
district, be worth nore than eight anas. And, in the same
district, the difference of nine anas per beegah is perhaps
too great ; as in Gorruckpore itself, where there does not
appear any physical reason for so great discrepancy. The
navigable river Gogra is the boundary between the two
divisions of the district ; and, of course, is equally available
to the inhabitants of either side, for irrigation or transport
of superfluous produce. And that the general rates are
low we may be well assured by reference to the rates of
former times, and indeed to the present rates, in other parts
of the country. In Guzerat " a general rate of assessment
" has been fixed, throughout the greater part of the per-
" gunnah, at four rupees per beegah for the better, and
" three and a half for the inferior sort of land : but in the
" immediate vicinity of the Nerbuddah river the rent
" varies
202 PRESENT SYSTEM.
" varies from two to twelve rupees per beegah."* But let
us look to facts : Mr. Colebrooke, in his Husbandry of
Bengal, states the quantity of land in Bengal and Behar
actually under cultivation to be 95,000,000 of beegahs,
and the jumma, or revenue, at 25,000,000 of rupees; which
is but a fraction more than four anas, or in sterling
money, five-pence, per beegah. If land in Gorruckpore
and Barrelly be worth from eight anas to two rupees twelve
anas, it must surely, in Bengal, be worth more than four
anas !
The permanent settlement has been advocated " as an
<e indispensable step towards the prosperity and solid im-
* provement of the country.1' Lord Cornwallis in 1790
argued, that if you, on the grounds of want of information,
delay the permanent settlement, " the commencement of
" the happiness of the people and the prosperity of the
" country would be delayed for ever."".*.,.." I shall think
" it," says Mr. Colebrooke, w a duty I owe to them (the
66 Court of Directors), to my country, and to humanity, to
" recommend that no time be lost in carrying it (the per-
" manent settlement) into effect, and not to postpone for
" ten years the commencement of the prosperity and solid
" improvement of the country."
But it remains to be proved that delay of the permanent
settlement would have the effect here ascribed to it, or that
the progress of improvement is more rapid in the Com-
pany's permanently settled provinces than in those that are
not permanently settled. There cannot be a doubt, that
the very reverse is the case. In the lower provinces of
Bengal, where nature performs the labour of irrigation,
and
* Revenue Letter, Bombay, 10th January 1810. Report of the
Broach Commissioners.
PERMANENT SETTLEMENT.
and almost of tillage, the average assessment per beegah
is probably not five anas. In the district of Kishennagur,
in the vicinity of the great cities of Moorshedabad and
Calcutta, the Governor General tells us it is six and a
half anas, in Behar five and a half anas : but Mr. Cole-
brooke gives, as above, an average of little more than
four anas for Bengal and Behar: while the cultivators
in the upper provinces, generally speaking, have to irri-
gate their lands by the sweat of their brow, and pay
from eight anas to two rupees and twelve anas per beegah:
and yet, compared with the lower provinces, the march
of improvement did advance, in the upper and non-per-
manently settled dominions of the Company, with tenfold
rapidity.
We can shew this very distinctly in the Ceded and
Conquered Provinces by the most satisfactory of all evi-
dence, the increase of fifty-five and a half lacs in the
land revenue in six years, or about three and a half per
cent, annually.* The same progress of improvement in
the lower provinces would, at this day, have made, not
indeed the revenue (for that is gone for ever), but the land
rents of those provinces just double what the jumma of
the permanent settlement was, when fixed thirty years ago.
Is it so ? Will the advocates for the extension of the per-
manent settlement admit, that the zumeendars of Bengal
do really now pocket two crores and a half of rupees an-
nually, by the " solid improvement of the country" con-
sequent to the permanent settlement ?
On the contrary, there is good reason to think that the
permanent
* The improvement of the Ceded and Conquered Provinces has,
of course, not kept up the pace here indicated. It is impossible ;
but there is no doubt that the progress will be satisfactory, so long
as the assessment is moderate.
804 PRESENT SYSTEM.
permanent settlement has really retarded the improvement
of the country. Let us take the district of Benares, one
of the finest provinces. I select it because it is that which
lies immediately contiguous to the non-permanently settled
districts. " The land revenue," says the Marquis of
Hastings, " of that district (Benares) appears to fluctuate
" in its amount without improving, and was the last year
" half a lac below the rate assessed originally by Mr.
" Duncan /"*
Thus, while the adjacent districts, on periodical settle-
ment, were advancing with a rapidity of improvement almost
beyond belief, this fine province had long been stationary
and was retrograding.
The appeal to humanity, in this discussion, is I appre-
hend misplaced. If it were "humane" in a handful of
conquerors, ignorant of the rights of individuals (and I
will for the sake of humanity, declare them to have been
so), to deprive the whole population of India of their pro-
perty, possessions, and privileges, and to throw them, like
so many herds of cattle, into the hands and bondage of a
class of persons, proverbial throughout India as oppressors
and extortioners, I mean the zumeendars ; if this be
humane, then, indeed, in the name of humanity, let us
hasten the permanent settlement.
Lord Teignmouth's description of a Bengal zumeendar
will edify us on this point ; and then let us say, in the
name of humanity, whether such a character be likely to
improve the lot of those whom the advocates of the per-
manent settlement would place for ever under him. " If,"
says that enlightened and humane person, " a review of the
" zumeendars
* Minute, p. 23.
PERMANENT SETTLEMENT. 205
" zumeendars in Bengal were made, it would be found that
" very few are duly qualified for the management of their
" hereditary lands, and that in general, they are ill-edu-
" cated for this task. Ignorant of the common forms of
" business and of the modes of transacting it, let a zumeen-
" dar be asked what are his rents, and the rules for de-
" manding and fixing them in his district, the assessment of
" any pergunnah, the produce, whether it has increased or
" decreased, what manufactures, &c. ; his replies would
" probably be the same as if he had never entered it ; or
" he would refer to his dewan for information. On one
" point he is always clear and explicit : the inability of
" his lands to pay the assessment, &c. The business, in
66 general, is exclusively transacted by the zumeendarry
" servants ; and all that the zumeendar looks to is, a release
" from trouble, an exemption from the importunities of
" government, and a sufficiency to gratify his wants, either
" present or anticipated. But although the power of dis-
" mission and appointment of their servants rests with
" them, and although this power is employed as a source
u of traffic and emolument, the zumeendars are as much
" dependant upon their servants as the latter are upon
" them. Their ryots have seldom access to them ; and
" when they are permitted to approach, or force an in-
" trusion with complaints and petitions, they are dis-
" missed to wait a reference to the dewan, or perhaps
" sent back to their homes, with an order in the name of
" the zumeendar, which the dewan has dictated : nor is
" the sale of justice unusual with them. The avowal of
" their hereditary rights, and great regard paid to them
" by the British government, has inspired the zumeendars
" with an idea that their rights are indefeasable. Its opera-
" ation of late years has seldom, I believe, proved bene-
" ficial to the country. It has sometimes been attended
" with
206 PRESENT SYSTEM.
" with great evils : that of preventing the ryots from com-
" plaining against exactions, from the fear of future re-
" sentment."*
Is this a character which the dictates of humanity would
induce us to place in power over the people ? Shall we
transfer the duty of the " solid improvement of the coun-
try " from ourselves into the hands of a class of persons,
such as are here but too faithfully described ?
It is a point, I conclude, now fully settled, that the law,
as well as the custom of India, gave to the cultivator before
described the right of possession. To give, therefore, " a
" right of property in the soil," as Lord Cornwallis did
by the permanent settlement to the zumeendars, was virtu-
ally, if not absolutely, depriving the people of their right,
and transferring it to others. Yes, I am told ; but his
lordship did not anticipate that the zumeendars would re-
move the cultivators ; it was not intended that they should
have that power. His lordship, in fact, states the supposi-
tion as an absurdity. " Why," says he, " should they
" remove one man to take in another ? " The answer
should have been, " Why empower them ?" His lordship,
indeed, designed to secure the people in one of their most
valuable privileges, by enacting that the " landholders
should not increase the pergunnah rates of rent, as hereto-
" fore established." The zumeendar might, however, oust
for non-payment of rent: and the amount of that rent
might be fixed by the proprietor at any sum, however
exhorbitant, because the pergunnah rates were not uniform
nor specified ; and therefore, were the poor man able to
drag his landlord through all the sinuosities of our courts,
neither the pergunnah rate nor the exorbitancy could he
prove
* Minute, June 1789.
PERMANENT SETTLEMENT. 207
prove against him. Consequently, unless the ryot chose to
submit, he must be ousted.
Lord Cornwallis tells us, " that Mr. Shore's proposition,
" that the landholders shall be obliged to grant pottahs to
" their ryots, in which shall be entered the amount of their
" rents, and that no ryot shall be liable to pay more than
" is specified in his pottah, if duly enforced by the collec-
" tors, will soon obviate the objections to fixed assessment,
" founded on the undefined state of the demands of land-
" holders upon the ryots.1'*
But it so happens, that neither the zumeendar nor the
ryot are willing to grant or receive pottahs : the former,
that he may exact the utmost ; and the latter, that he
may not be bound beyond what he may be able to per-
form ; both proceeding from the same cause, that want of
good faith which is universal, and seemingly the legitimate
offspring of the ill-defined situation in which the parties are
unhappily placed.
The inconsistency, however, of an enactment not to
increase the rents of an estate, with a declaration of a pro-
prietary right, is obvious. But having bestowed the abso-
lute property of the soil, absolute power over it naturally
followed, if it did not accompany the grant ; and to attempt
to control the effects of this by a legislative order, dis-
played, in no small degree, a want of knowledge of the
science of government and of mankind.
Thus, was the system of Lord Cornwallis most mani-
festly unjust, though the motives which influenced his lord-
ship were undoubtedly benevolent. Surely, those who fol-
low
* Minute, 3d February 1790.
208 PRESENT SYSTEM.
low him, as advocates for the permanent settlement, and
who wish to extend it, notwithstanding the experience of
thirty years, which his lordship had not, but which they
have, to guide their judgment, ought to pause before they
sanction so grievous a sacrifice of the rights of a whole
nation.
An intelligent person, speaking of the zillah of Juan-
pore, in 1819, on this subject, writes as follows : " the fact
" is, that though the settlement which government made
" with the zumeendars is unchangeable, and though these
" persons have no right to raise the rents upon tenants who
" live on the soil, or to oust them while they pay their rents
/ " regularly ; and although there is, at the very least,, one-
" third more land in cultivation now than at the time
" of the permanent settlement, the rent of land has risen
" three-fold, and no zumeendar will accept of rent in kind
" (that is half the produce,) who can by any means, fair
" and unfair, get his rent in cash. The zumeendar has
66 various means of evading the right of the resident tenant
" to hold his land at a fixed rate, independent of their
" power, by the regulations to oust on failure of regular
" payment of rent, of which they seldom fail to avail them-
" selves. Should a zumeendarry be sold by government for
" arrears of revenue, all leases become void (by the regula-
" tions) ; and a very improveable estate is frequently
" thrown in arrears to government, that it may be sold to
" void the leases, and purchased by the owner. Except
" for this purpose, from disputes among joint proprietors,
" and intrigues in various departments, I believe estates
" are seldom sold. The settlement is so light, that all
" arrears of revenue arise from the above causes.
" Now, from three to four rupees are given per beegah
" for
PERMANENT SETTLEMENT. 209
*< for land to cultivate indigo : formerly, one rupee ten anas
" to two rupees eight anas was the usual value. On an
" average, it may be fairly stated, that of the land held by
" resident tenants on lease, by brahmins and rajpoots,
" seven-tenths have risen from ten anas per beegah to one
" rupee eight anas ; and of the lands held by the lower
" casts of cultivators, half has risen from one rupee to two
" rupees eight anas, one-fourth from one rupee eight anas
" to four rupees, and one-fourth from two to five rupees.
" With such an inducement to oust the ancient tenants, it
" is not to be wondered at though every landholder should
" exert himself to do so," &c.
So much for the question of humanity. Mr. Colebrooke
next combats the objections which had been started by his
opponents, on the score of our deficiency of information
He says, " the settlement, even if temporary, must (Q. why
" must?) be made, in the first instance, with the landholders
" or farmers. Minute scrutinies would be vainly under-
" taken ; they would harass the people with no real benefit
" to government ; and without such minute and vexatious
" scrutinies and measurements, the same complaints of in-
" sufficiency of information, obtained from the general
" inquiries or from accounts of doubtful accuracy, would
" be made at any future period."" This was urged almost
in the same terms by Lord Cornwallis, in 1790.
But in answer to these arguments, it may justly be said'
that we certainly possess infinitely more information than
at that period was possessed ; and after the labours of
Colonels Reade and Munro, and many other valuable reve-
nue servants, the Company need not despair of having not
only every information, but of being able to profit by it in
practice throughout India.
p Nor
210 PRESENT SYSTEM.
Nor is there any necessity for making a settlement with
" farmers," or any class of intermediate personages ; be-
cause, not only the village-settlement, but even the field-
settlement, has been, and may easily be, effected with the
husbandman.
I also believe that minute scrutinies might not be
" vainly undertaken ; " because they have been success-
fully executed, and it has not been found that the people
have felt harassed by them. Nor is it likely that they
should ; inasmuch as the people are perfectly accustomed
to such minutiae of scrutiny, however much the head
zumeendars have been accustomed to be dealt with by the
lump, in their transactions with us. Finally, while such
minute scrutiny would be of real benefit to government,
and I believe not less so to the people, the result of it
would obviate all doubts as to accuracy of information.
It is, I apprehend, quite impossible to levy, with com-
mon fairness towards the people, even an extensive land
revenue, without the most minute scrutiny. Common justice
requires it. Unless, indeed, it shall be maintained that we
can. act towards them, blindfold, more equitably than we
could with our eyes open and thoroughly informed. Minute
scrutiny is to be deprecated, only when it is made with the
view to oppress the people, instead of imposing, equally, a
moderate assessment. We must not forget, that the same
amount of revenue, as now, must, at all events, be levied.
To equalize the burden, therefore, is the question, not
relief from all burden.
Next we are told of the policy of the measure. " It is
" of the utmost importance, it is essential for the safety of
66 the state," says Mr. Colebrooke, " to conciliate the great
" body
PERMANENT SETTLEMENT.
" body of landed proprietors, to attach to the British
" government this class of persons, whose influence is most
" permanent and most extensive.11 And again : " the
66 landholders enjoying their estates under a moderate
" assessment, fixed in perpetuity, are not ignorant that a
" change of government would be followed by the exaction
" of an enhanced assessment, &c. If, on the contrary, the
" utmost revenue be exacted, the landholders have nothing
" to fear, and every thing to hope from a change.11
This also is stated in paragraph 95 of Lord Cornwallis'
minute of the 3d February 1790. " In case of a foreign
" invasion,11 says his Lordship, &c. See his Lordship's
minute. But the fact is, that the " great body of landed
" proprietors,11 to whom the above does in reality, though
not intentionally, apply, are just that class of people which
the permanent settlement of Bengal has completely de-
stroyed, and instead of conciliating, has blotted out from
among the different gradations of society in that province.
The village cultivating zumeendars, the best of the people,
honest, manly, independent men, that are now to be met
with in every village of the upper provinces, the younger
branches of whose families crowd our armies and crown
them with incessant victory — the permanent settlement has
annihilated this class of men in the lower provinces, or
totally and entirely changed their character.
It is not only beneficial to, but unquestionably an indis-
pensable obligation upon, every government, to conciliate its
subjects ; but such men as the real landed proprietors, the
most valuable men in the country, require not any particu-
lar conciliation. They are satisfied with the possession of
their rights and protection in that possession : an act, there-
fore, which, in the neighbouring province of Bengal, has
p 2 in
PRESENT SYSTEM.
in its effects destroyed those rights, ought not surely to be
had recourse to as a conciliatory measure, in our adjacent
and more recently acquired dominions. That permanent
settlement, which is required to effect really any great
object, is not the permanent settlement of 1793, but the
permanent-rate settlement I have recommended.
The remaining part of the proposition will be disputed
by no one, m%. " that landholders enjoying their estates
" under a moderate assessment in perpetuity, would be
66 satisfied with our government and not wish for a change ;
" whereas if, on the contrary, the utmost revenue be ex-
u acted, they would have nothing to fear and every thing
" to hope from a change.11 That is, a moderate rent in
perpetuity would be preferred to an exaction of the utmost
revenue : a rack-rent. True ; and true, also, whether
" in perpetuity " or not. A rack-rent, perpetuated, would
be no cause for satisfaction. The moderation of the assess-
ment is not the question : all agree as to that. It is the
question of the perpetuity of a moderate rent that we are
discussing.
The village zumeendars of the upper provinces are not
afraid of being turned out : they never have been turned
out. The practice of ousting such people was introduced
into India only by the permanent settlement ; and to tell
such men that they shall hold their villages in perpetuity,
if understood at all, would be considered by them as a kind
of matter of course speech, without value or import.
'
We are next told that the permanent settlement has
secured the tranquillity of the lower provinces ; and it is
added, " whenever the internal peace of the Ceded and
" Conquered Provinces shall be as well secured, nearly the
" whole
PERMANENT SETTLEMENT.
"' whole military establishment will be available for the
" purposes of active warfare. No measure would more
" essentially contribute to this very desirable end than that
" of a permanent settlement."
The fact is, that the upper provinces are really as tran-
quil as the lower provinces ; and I will venture to add,
that, if reference be made to dates of conquest and cession,
and to events, it will be found, that the upper Conquered
and Ceded Provinces became more speedily tranquil with-
out the permanent settlement, than the lower provinces did
with it. The circumstance of a greater number of troops
being stationed in the upper provinces than in the lower
provinces has nothing to do with the internal state of the
country, but with its frontier situation; and those very
troops, it must not be forgot, tend to preserve the tran-
quillity of the lower, as well as the upper provinces.
A further reason for concluding a permanent settlement
of the Ceded and Conquered Provinces stated is, " that
44 temporary settlements afford opportunities of frauds ;
44 and the purity of the civil service of the Company on
44 this establishment, fixed on a basis apparently secure, by
•" Lord CornwalhY system, would be inevitably lost in the
44 long continuance of temporary settlements of the revenue
44 in the extensive provinces above Benares."
I am not prepared to admit either that Lord Cornwallis'
principle of high salaries, here alluded to, did of itself
secure the purity of the civil service ; far less that tempo-
rary settlements of the Ceded Provinces would inevitably
destroy the undoubted purity of that honourable class of
public servants. But were government put in possession
of ample data, founded on minute scrutiny, which has been
so
PRESENT SYSTEM.
so much deprecated, their revenue officers might form the
settlement of the districts from such data, on a basis which
should render it difficult for any individual to be impure,
without being so liable to detection that the risk would
over-balance the profit; and government would then, in
every case, possess the means of judging themselves whether
there were grounds of suspicion. Occasional changes of
situation, too, among the revenue officers, would facilitate
discovery, both of fraud and of the resources of the
country.
Such occasional changes of their charge, among officers
of high trust and extensive discretionary power, would, I
venture to presume, be beneficial to the public interest.
The risk of detection by a successor would prove a strong
check to the fraudulent ; and of those who are pure, if the
individual moved happen to be an able and upright servant,
his presence elsewhere would be highly advantageous, where
he might relieve one whose qualifications are less estimable :
and thus, in time, every district would derive the benefit of
the highest order of talents the service afforded, till at
length the system would be at least very highly improved.
It may lastly be remarked, that the most sanguine op-
ponents of the permanent settlement do not recommend
annual, nor even frequent settlements ; but, on the con-
trary, most of them are advocates for settlements of con-
siderable duration : so that frequency of opportunity to be
dishonest would not exist ; and consequently, the measure
would prove at least less detrimental to the morals of the
Honourable Company's civil service. But it by no means
follows, were the settlement even frequent, that the assess-
ment should be always altered ; the rates per beegah, not
at all. Any diminution of revenue would immediately call
forth
PERMANENT SETTLEMENT. 215
forth investigation; so that the former settlement would
limit the power of the corrupt to the narrow field of in-
creased cultivation.
The Bengal government of 1813, however, take at least
a more plausible view of the permanent settlement than
those who would have that settlement even at the expense
of a great diminution of revenue. In their general letter
of the 17th July 1813, which state paper was considered,
probably, by those who framed it, to exhaust the subject, —
in that letter, the Bengal government say, that "if the
" permanent settlement were calculated to reduce the pecu-
" niary resources of the government below the means which
" might otherwise be drawn from the country, they must
" have hesitated to recommend it: but in our judgment,
" taking any period of years, government will derive a
" greater revenue, within that period, from the Ceded and
" Conquered Provinces, than could, with any sort of
" reason, be expected to be drawn from those territories
" under temporary assessment."*
This is a very plausible introduction to such a subject ;
and, the high authority whence the opinion comes must
give it more than ordinary weight. I do not say more
against it, than merely to state that, at the very time this
letter was composed, commencing with 1807, " the re-
" sources of the government" were increasing at the rate
of three and a half per cent, per annum ; in 1 814 they had
increased fifty-five and a half lacs, and in 1820, seven years
only after the date of the above letter, seventy-five lacs of
rupees, under temporary assessments.
How different the nature of a permanent settlement ! It
is
* Paragraphs.
PRESENT SYSTEM.
is essential to the nature of a permanent settlement, or limi-
tation of the land revenue of a country, that its amount
shall diminish ; not merely from the depreciation of cur-
rency. Nothing can remain stationary, every thing is
liable to change ; but no change can operate to the advan-
tage of government. That which cannot increase, must
decrease. You cannot, under permanent settlement, raise
the rent of any one estate ; but many estates, by neglect
or mismanagement of owners, or even by unavoidable
calamity, must become depreciated. The jumma cannot
be realized ; the owner is ruined ; the estate is sold ; nobody
will buy it. What is the consequence ? The jumma
must be reduced ; government are the losers ; and the per-
manent settlement has shut up every mode of reimburse-
ment. A neighbouring estate has perhaps gained as much,
by partial alluvion, or by increased value of its productions,
to supply the neighbouring town before supplied by both :
yet no reimbursement accrues to government. The perma-
nent settlement, therefore, is a system of finance, which car-
ries within itself the seeds of destruction of the resources of
the government ; and therefore, on their own principle, the
government ought to have " hesitated to recommend it.""
The letter then goes on, professing to reply to (refute)
the objections stated by the Honourable Court of Directors
to the immediate conclusion of a permanent settlement.
But the objections of the Honourable Court are not so
easily refuted. They are stated to be,
First. Defective information. Bengal has been thirty
years in our possession, and yet imperfectly known.
Secondly. The disappointment experienced in Bengal in
being unable to augment the other branches of revenue.
Thirdly. The inexpediency of such a settlement, with
reference
PERMANENT SETTLEMENT.
reference to the peculiar character of the natives of the
upper provinces.
Fourthly. Loss from the depreciation of the precious
metals.
To the first the answer of the Bengal government is,
" you think our information must be in proportion to our
" length of possession of the country : but there can be no
" grounds for this, if the nature of the accounts and sources
" of information are considered. These are the accounts
" deposited in the offices of the collectors themselves, or
" what are usually called the sudder serishta, the zumeen-
" dars1 accounts, and the accounts of the canoongoes and
u putwaries. The three latter descriptions of accounts
" may be fabricated ; but this objection must apply equally
" whether the settlement be permanent or temporary."
True : but in the one case, the errors may be corrected next
settlement; in the other, never ! and moreover, these are not
by any means the only sources of information attainable.
" If, again,11 they continue, " those documents cannot be
" relied upon, the idea of a permanent settlement must be
" abandoned ; for, generally speaking, there are absolutely
" no other documents which can be applied to the object
" in view." Now this is precisely what the Court say ;
that government are, as yet, in possession of no documents
or information on which to form the settlement. But
surely government did not mean to say that no better data
or information can be obtained than the collectors' sudder
serishta, or " falsifiable, if not fabricated, zumeendars' or
" canoongoes' accounts ?"" These accounts are good for as
much as ought to be required of them ; namely, as a guide
through a more minute investigation, to which a long
period of years must be devoted.
The
218 PRESENT SYSTEM.
The government, in 1790, also asserted the extent and
accuracy of their information, and their own superior capa-
bility to carry into effect the permanent settlement. Lord
Cornwallis says, " I must declare that I am clearly of
66 opinion, that this government will never be better qua-
" lified, at any given period whatever, to make an equitable
" settlement of the land revenue."* But, probably, his
Lordship's followers and disciples in the permanent settle-
ment controversy would prove apostates on this point.
" It may be urged," continues this letter, " that this
" want of information furnishes a strong argument for
" those local surveys and valuations your honourable court
" recommends. We, however, are adverse to them. They
" may have answered at Madras or Bombay. We know
" not that they have ; but the experience in Bengal for-
" merly is adverse to them. The chicanery and cor-
44 ruption practised by the large body of natives necessarily
" employed, and the heavy expense, have led to their
" being relinquished ; and we are satisfied that the most
" experienced and capable of the revenue officers would
" deem the revival of it an evil."
Here I may observe, that the revival of the practice of
chicanery and corruption would indeed be an evil ; but I
cannot see how the minute ascertainment of the resources
of the country could be deemed an evil by any set of men
whatever : a practice, too, either really observed, or sup-
posed to have obtained for ages and ages throughout all
India. Formerly corruption and chicanery were very pre-
valent in every department of our Indian government.
Times are vastly changed, I am happy to say, for the better;
nor do I see the necessity of confiding implicitly in native
agency,
* Minute, 3d February 1 790.
PERMANENT SETTLEMENT. 219
agency, in any department : and there can be no doubt,
were government rigidly to adopt as a rule to employ none
but able men in this department, that the most efficient
control might be, and would be, established by the Eu-
ropean officers over all natives that should be employed
under them.
•.vi cti?
I have only farther to notice, on this point, the expres-
sion of government as to the opinion of the most experi-
enced and capable of their revenue officers against surveys.
Allowing the individuals alluded to credit for an ample
share of talent, their opinions could be formed only on
conjecture, aided perhaps by the perusal of the official
records of the time when such surveys were attempted.
None of them could speak from actual experience ; whereas
we have actual experience to speak against them, in recent
times, in other quarters of India.
Those surveys, &c. are stated as u being peculiarly un-
" suited to the Ceded and Conquered Provinces, where
" the lands are generally parcelled out into small pro-
" perties, the joint-owners being themselves the cultivators.
" A minute scrutiny into the resources of estates, is, con-
" sequently, far more difficult than when the lands are
" held by tenants, under a superior zumeendar ; the mea-
" surement there ascertaining the rents payable to the
" zumeendar preparatory to the fixing of the public
" demand."
Now, as such scrutiny is admitted to affect all, both cul-
tivators and zumeendar, as it must be evident that a supe-
rior zumeendar would, at least, be as unwilling to have
his estate subjected to this scrutiny as an inferior owner
and cultivator would be, I cannot see how the absence of
the
220 PRESENT SYSTEM.
the difficulties which a superior zumeendar would be able
to throw in the way (and assuredly he would be disposed
to do so) of such a scrutiny ought to render it " far more
" difficult,1' where there are only small proprietors culti-
vators. The effect of the survey, &c., to the cultivator, in
either case, would be the same, because it would develope
the resources of his lands : the intervention of a superior
zumeendar would, in no way, save him from this. But, at
all events, the argument is only good to shew the difficulty,
not the impracticability, of the measure.*
Colonel Munro does not state any great difficulty he
experienced, nor any disposition on the part of the people
to withhold information : or if they did, he took measures
for obtaining it from disinterested neighbours. He tells
us, " he made them their own assessors." To measure and
assess by whole villages, in many cases, would be found
sufficient. The joint-coparcenary proprietors' would equalize
the assessment among themselves, according to their several
shares, if amicably disposed to one another ; if not, there
would be no fear of want of information from the conflicting
interests of parties.
Whether such surveys, and minute scrutiny into the
resources of the country, have answered at Madras and
Bombay, as they were carried into effect there, I will not
pretend to say ; but this I will maintain, that, until it shall
be established that good information is less likely to lead
to happy results in practice than bad information, until
knowledge shall be proved to be less useful than igno-
rance, such minute scrutiny must be beneficial. But at
Madras
* It is now ascertained, that no difficulty exists in effecting surveys,
— no impediments whatever ; many extensive surveys having- been ac-
tually made in the Ceded and Conquered Provinces.
PERMANENT SETTLEMENT.
Madras and Bombay, and in Bengal, the best measures
may be attended with baneful concomitants, which may
convert their good into evil. If accurate investigation be
only a prelude to rack-rent and extortion, I would call it
an evil, as I should the knowledge of anatomy to an exe-
cutioner, who applied his knowledge only that he might
torture his victim with greater accuracy of excruciation ;
but, possessed by the intelligent, able, and benevolent
officer of government., who applied his accurate information
to the equalization of the moderate burden of the state
among an industrious people, who were all of them willing
to bear his fair and just proportion, but no more, such
information must be a blessing to the country generally,
and to the individuals concerned particularly ; who, instead
of opposing, would doubtless forward its attainment. The
late lamented Surveyor-General of India, Colonel Colin
Mackenzie, has often told me, that in his extensive surveys
on the coast, he found the natives extremely willing to
afford every kind of information. And I believe it will be
found universally, where the Ryotwar settlement has not
been attended with success, that over-assessment has been
the cause.
The expense of such investigation is, of course, a fit
subject for consideration, But, as that is a matter of
calculation, the question is not very intricate. Colonel
Munro's survey and analysis of the resources of the Ceded
Districts under him, he calculated would cost four per
cent, on the revenue of one year ; but, in consequence of
his attention having been taken from it to other public
duties, he took nearly five years to complete it ; and, in-
stead of four, it cost five per cent. At four per cent, on the
revenue of the Ceded and Conquered Provinces of Bengal,
the expense would amount to about twelve lacs of rupees.
Colonel
222 PRESENT SYSTEM.
Colonel Munro's report of the method he adopted in
forming the Ryotwar settlement of the Ceded Districts is
highly interesting. The following extracts will shew his
plan of procedure. The first is the description of the
survey.
" It (the survey),1' says he, " was begun in June 1802,
" by four gomastahs of my cutchery, who were, at that
" time, the only persons in the Ceded Districts who under-
" stood land-measuring. It proceeded very slowly at first,
" from the want of hands ; but, several of the inhabitants
" being instructed every month, the number of surveyors,
" by the end of the year, amounted to fifty, and was, in
" the course of the following one, augmented to a hundred.
" The surveyors were at first formed into parties of six,
" but afterwards of ten ; to each of which a head surveyor,
" or inspector, was appointed. With the exception of
" hills and rocks, all land, of whatever kind, was measured.
" All roads, sites of towns and villages, beds of tanks and
" rivers, wastes and jungles, were included in the survey.
" Ancient wastes were usually measured in extensive lots,
** to be subdivided hereafter as they may be occupied :
" but, when it could be conveniently done, they were also
" frequently divided into fields of the ordinary size. As
" all fields that have ever been cultivated have names, they
" were distinguished in the survey registers by these names,
" and also by a particular number affixed to each, in the
" order in which it was measured. The surveyors used
" everywhere the same standard-measure: a chain of
" thirty-three feet, forty of which made an acre. They
" were paid by the acre, at such a rate as it was supposed
" would enable them, with diligence, to earn about six
" pagodas monthly. They were encouraged to be expe-
" ditious by the hope of gain ; and deterred, at the same
" time,
PERMANENT SETTLEMENT.
" time, from being inaccurate through haste, by the fear
" of dismission ; for no false measurement beyond ten per
" cent, in dry land, and five per cent, in wet,* whether
" proceeding from negligence, from haste, or design, was
" ever excused : and the frequent instances of loss of em-
" ployment, on this account, that occurred during the early
" part of the survey, soon rendered the surveyors so cau-
" tious, that their measurement was afterwards, in general,
" sufficiently correct. The vacancies that were continually
" happening among them from dismission, and more fre-
" quently from sickness, were at all times easily filled up,
" from among a number of persons who always attended
" them with the view of being instructed and employed ;
u but these persons, on being appointed, were, in order to
" guard against partiality, sent to the party of a head sur-
" veyor, different from that by whom they had been re-
" ported as qualified.
" The head surveyors, or inspectors, examined the mea-
" surement of the surveyors placed under their charge.
" They were paid by the month. To have paid them by
" the acre would have defeated the end of their appoint-
" ment, by preventing them from examining carefully and
" deliberately the operations of the under surveyors. But,
" to guard against remissness, and to leave them at the
" same time sufficient leisure for investigation, they were
" required to measure monthly one-tenth of the quantity
" of land fixed for a surveyor. They were not permitted
" to make this measurement all at once, in the course of a
" few days, but were obliged to make it gradually and
u uniformly throughout the month, by taking a few fields
" every day. The whole of the inspectors were frequently
" removed from one party to another, because by remaining
" too
* f. e., Where the lands have access to water for irrigation.
PRESENT SYSTEM.
" too long with one party, they were apt to entertain par-
" tialities and enmities, and to pass over the false measure-
u ment of some surveyors, while they exaggerated the
" trifling errors of others ; and, for these causes, many in-
" spectors were at different times dismissed. Both inspectors
" and surveyors were, at first, allowed a share of the pro-
" duce of all extra-collections and unauthorized enaums
" which they brought to light ; but as they often earned
" more in this way than by the survey, and with less
" labour, it was soon found that the survey was impeded
66 by these investigations, and it therefore became necessary
" to confine them to the single object of measuring the
" land.
" The surveyors were followed by assessors; two of
" whom were allotted for the assessment of the land mea-
" sured by each party of ten surveyors. The assessor, on
" arriving in a, village, went over the land with the potail,
" curnum, and ryots, and arranged it in different classes,
" according to its quality. In all villages, the land, both
" wet and dry, had rom ancient custom been divided into
u first, second, and third sorts, agreeably to their supposed
" respective produce ; but these divisions not being suffi-
66 ciently minute for a permanent assessment, the classes
" of wet land in a village were often increased to five or
" six, and those of dry to eight or ten. The classification
" was made rather by the potail, curnum, and ryots, than
" by the assessor ; for he adopted their opinion, unless he
" saw evident cause to believe that it was wrong, when a
" reference was made to the head ryots of any of the
" neighbouring villages, who fixed the class to which the
" land in dispute should belong. The quality of the land,
" where all other circumstances were equal, determined its
" class; but allowance was made for distance from the
" village,
PERMANENT SETTLEMENT.
" village, and every other incident, by which the expense
" of cultivation was augmented. The ryots were directed
(" to be careful in classing the land, as the whole of any
" one class would be assessed at the same rate ; but they
" were not told what that rate would be, because it was
" apprehended that they would be induced, by such infor-
" mation, to enter a great deal of the better sort of land
" in the inferior classes. It was discovered, however, after
" a trial of a few months, that, by following this mode, the
" potail and ryots not seeing immediately the effects of
u classification, were not sufficiently impressed with its im
" portance ; and sometimes by entering too much land in
" the higher classes, and sometimes in the lower, the as-
66 sessment of some villages became more than they could
" possibly pay, and that of others much less than they had
" ever paid before. To obviate this mischief, the lands
" were both classed and assessed at the same time ; by
" which means the ryots, perceiving at once the effect of
" classification in raising or lowering their own individual
" rents, felt the necessity of making it with care. After
" this principle was adopted, the classification was in general
" sufficiently accurate; except that, in some instances, the
" land of potails, curnums, and a few head ryots, were in-
" serted in too low a class. These irregularities, however,
" were usually corrected, either on the spot by the assessor,
" with the advice of the ryots of the adjacent villages, or
" afterwards, by persons appointed to revise his assessment.
" As the assessor did not always rectify fraudulent clas-
" sification, but sometimes remained ignorant of it from
" negligence, or connived at it from bribery, and as it was
" impossible to ensure from so many individuals a punctual
" observance of the same method of proceeding, it was
" thought advisable, for the sake of preserving uniformity
Q " and
PRESENT SYSTEM.
" and of checking abuses, to appoint five head assessors,
" selected from the most intelligent of the ordinary assessors.
" Each head assessor had four ordinary ones under him :
" his business was to review their classification and assess-
" ment, and to correct them when wrong. He looked par-
" ticularly to the classification of the lands of such persons
u as he suspected might have been favoured by the as-
" sessors ; and when he was convinced, both from his own
" opinion and that of the principal ryots of the neighbour-
" ing villages, that partiality had been shewn, he trans-
" ferred such lands to higher classes ; and, in the same
" manner, when he found that the lands of any ryots were
" classed too high, he removed them to their proper classes.
" If he saw no occasion for changing land from one class to
" another, he examined whether whole classes were not
" assessed too high or low, and raised or depressed them to
" different rates, wherever it appeared that an alteration
u was necessary ; but he was not permitted to make any
" alterations in the accounts of the ordinary assessor. Such
" alterations as he thought requisite were entered in those
" accounts, in columns left for that purpose ; so that when
" the settlement came to be finally made in the collector's
" cutchery, all alterations might be seen, and the reasons
" examined upon which they were grounded. As an in-
" terval of one or two months usually elapsed between the
" investigation of the ordinary assessor and that of the head
66 one, there was full time for every ryot to ascertain
" whether his own land was properly classed ; and, if he
66 thought that it was not, he had an opportunity of stating
" his objections to him on his arrival in the village : and
" as the ryots of all the neighbouring villages were
" assembled, the head assessor, by means of arbitrators
" from among them, easily determined all complaints of
" this nature.
PERMANENT SETTLEMENT.
" If entire dependence could have been placed on the
" judgment and impartiality of the head assessors, nothing
" more would have been required, in fixing the assess-
" ment, than to have adopted their estimates ; but as
" these estimates were sometimes incorrect, and as they
" would have been still more so had the assessors been
" relieved from the fear of a future examination, the whole
" of the classification and assessment underwent a com-
" plete investigation, in the collector's cutchery. On this
" occasion, all the potails, curnums, and principal ryots of
" every village in the district to be settled, were assembled
" at the cutchery. The business was begun by faring the
" sum which was to be the total revenue of the district.
" This was usually effected by the collector in a few days,
" by comparing the collections under the native princes,
" under the Company's government from its commence-
" went, the estimates of the ordinary and head assessors
" and the opinions of the most intelligent natives ; and,
" after a due consideration of the whole, adopting such a
" sum as it was thought would be the fair assessment of
" the district in its present state, or what the inhabitants
" in similar circumstances, under a native government,
" would have regarded as somewhat below the usual stan-
66 dard. The amount fixed by the collector was usually
" from five to fifteen per cent, lower than the estimates of
" the assessors ; for it is the nature of assessment, pro-
" ceeding from single fields to whole districts, and taking
" each field at its supposed average produce, to make the
" aggregate sum greater than what can be easily realized.
" After JMng a certain sum for the district, it next re-
" mained to determine what share of this sum was to be
" imposed on each village.* Had the detailed assessment
" been
* The reader is requested to attend to what is here marked by me
in Italics. It appears to have been entirely overlooked by the op-
a 2
228 PRESENT SYSTEM.
" been perfectly correct, it might have been done at once
" by an uniform remisson of five or ten per cent, to every
" field ; but, as this was always objected to by many of
" the inhabitants, who thought their lands were not so
" favourably assessed as those of their neighbours, either
" in the same or other villages, it therefore became neces-
" sary to examine again the assessment of every village.
" Such villages as claimed more than the average remis-
" sion were investigated by the principal ryots of other
" villages ; and each claim was admitted, either fully, or
" with such modification as both parties agreed upon.
" The extra remission thus granted to one set of villages
" was to be deducted from another ; and it was effected in
" the same manner, by employing the ryots of other vil-
" lages. After settling what proportion of the whole re-
u mission was to be allowed to each village, it was still
" necessary to ascertain whether or not any alteration was
" requisite in the classification of lands. In some villages,
" where none appeared to be necessary, and where no ob-
" jections were made, the classification of the head assessor
" was confirmed, and the rent of each class, and conse-
" quently of each field, determined at once, by lowering
" the assessment by the rate of remission granted to the
" village. In those villages where complaints were made
" of the classification, the objections were examined ; and,
66 if they were allowed to be just by ryots not interested in
" the matter, the necessary alterations were made. Com-
" plaints of whole classes being rated too high or too low,
" were much more frequent than those of particular fields
" being entered in a wrong class, because each ryot,
" knowing
ponents of Sir T. Munro who advocated "village settlements," the
" Mouzawar" system, that in fixing the amount of assessment, the
Mouzawar settlement was one of the data which Sir T. Munro assumed
for fixing the revenue on the land.
PERMANENT SETTLEMENT. 229
" knowing the produce of his own and his neighbours1
" lands, took care to see, where their qualities were equal,
" that his own were not placed in a higher class by the
u assessors ; but he was not so anxious about the rate at
" which the class was assessed, as he considered that,
" whatever it was, it would be as favourable to him as to
" others. Where some classes were rated too high or too
" low, it was usually owing to the potail and curnum of the
" village contriving to make the assessor underrate the class
" which contained most of their own land, and overrate
" some other one, composed principally of the land of the
" inferior ryots. But as the collector's cutchery always
u inquired minutely into the assessment of the lands of
" the leading men in each village, and as the whole district
" was present at the discussion, and every man ready to
" prevent another from obtaining an advantage in which
" he did not himself share, no fraudulent assessment of
" any consequence could possibly be concealed.
" The classification and assessment of the land having
" undergone three several investigations, by the assessor,
" head assessor, and collector's cutchery, and all objections
" having been heard and admitted when well founded,
" nothing remained but to ascertain and register the rent
" of every field. This was an easy operation ; for as each
" class of land had been already rated according to its
" quality, it only remained to calculate the number of acres
" in the field by two, three, or four fanams, as the rate of
" the class might happen to be to which it belonged. As
" this was a mere arithmetical process, it was performed by
" persons hired for the purpose, who were paid at the rate
" of one and a half cantary fanams for a hundred fields.
et They were superintended by two gomastahs from the
" cutchery : and when they had made out two copies of
" the
230 PRESENT SYSTEM.
" the register of fields, one for the collector and the other
" for the tehsildar, the survey of the district was closed for
" the time. It still, however, remained to ascertain, by ex-
" periment, whether the assessment might not be too high
" in some cases. In the course of collecting the first year's
" survey-rent, a list was made of such fields as were
" asserted by the cultivators to be overrated. Their rent
" was, at the end of the year, again examined, in the
" presence of the principal inhabitants, and either lowered
" or confirmed, as circumstances appeared to require. This
" was the last operation of the survey ; and it usually oc-
" casioned a reduction of from one-half to one and a half
" per cent, on the assessment. The equivalent might
" easily have been made up from lands which had been
" underrated, for the assessment was as often below as above
u the proper point ; but it was thought better, in this case,
" to make no alterations, lest it should weaken the con-
" fidence with which it was wished to impress the inhabi-
" tants in the permanency of the survey-rent. The final
" correction, abovementioned, has been made in all the dis-
66 tricts which were settled by the survey-rent in 1215 ; but
" in those districts where the survey-rent was not estab-
" lished till 1216, and in those where it will not be intro-
" duced till 1217, the correction cannot be effected until
" 1217, in the one case, or till 1218 in the other. It will
" occasion a decrease of about ten thousand pagodas in
" the total assessment of the land inserted in the state-
66 ment. The mode of measuring and assessing the land
66 has been explained at so much length, that it can hardly
" be necessary to say more upon the subject; but should
" any further information be required, it will be more easily
" gathered from the accompanying copies (Nos. 1. 2. 3. 4.)
" of instructions to the surveyors and assessors, than from
" any description whatever."
What
PERMANENT SETTLEMENT. 231
What remains of these interesting documents will be seen
in the Appendix, being much too long for insertion here,
yet much too valuable to be entirely omitted.
The above is the outline of the plan, by which the
Ryotwar assessment, or settlement of the Ceded Districts of
the presidency of Fort St. George, was effected by Colonel
Sir Thomas Munro. I think the document so valuable,
that however reluctant to make long extracts, I could not
omit any part of it.
It will be seen, that the data assumed for fixing the total
amount of assessment, in any given district, or division, or
purgunnah, as it is called in Bengal, were " the collections
" under the native governments" under the Company's
government from its commencement, the estimates of the
assessors and of intelligent natives, and a comparison of
the whole, attending to present cultivation ; so that the duty
of the assessors was chiefly the allotment of the total re-
venue of each village on the different fields, verifying, it
must be observed however, former assessments in the most
satisfactory manner, by shewing the quantity of land culti-
vated and the rent paid.
In concluding this extract, it is pleasing to mark the
result of the labours of this invaluable officer, and to see
that his services were appreciated, and ultimately rewarded.
Mr. Petrie, a member of the Madras government at the
time, gives a summary view of the result of what had been
effected. " He reviewed the services of Colonel Munro
" in the Ceded Districts, where he had raised the revenue
" from twelve and a half to eighteen lacs of star pagodas
" per annum, and the manners and habits of the people in
" amelioration and improvement had kept pace with the
" increase
PRESENT SYSTEM.
" increase of the revenue. From disunited hordes of law-
" less plunderers and freebooters, they are now as far ad-
" vanced in civilization and in submission to the laws, as
" any subjects under this government. The revenues are
" collected with facility, every one seems satisfied with his
" situation, and the regret of the people was universal on
" the departure of Colonel Munro."
And again : " The example, we believe, is unparalleled
" in the revenue annals of this presidency, of so extensive
" a tract of country, with a body of inhabitants little ac-
" customed to submit to the ruling authority, reduced
" from confusion to order, and (in eight years) a mass of
" revenue, amounting to no less than 1,19,90,419 star
" pagodas, being regularly, and at length readily collected,
" with a remission on the whole of only 3,415 pagodas,
" being one fanam and twenty-two cash per cent."*
In opposition to this, what weight can we give to all the
arguments of the Bengal government without a trial of the
measure ?
I avail myself of this edition, adverting to certain late
publications, to remark, that Sir T. Munro's mode of car-
rying into effect the Ryotwar system of collecting the land
revenue has appeared to me to have been much misinter-
preted, perhaps rather misunderstood; for it must be
allowed, that he has not sufficiently laid open the principle
of the measure. If he had, I cannot think that he would
have met with such opposition from his able opponents,
who advocated the " village"" or " Mouzawar settlement."
It has, I imagine, been concluded by some that Sir T.
Munro, having measured the field of every ryot, fixed an
arbitrary
* Madras General Letter.
PKUMAXENT SETTLEMENT.
arbitrary rent on it, perhaps at a high valuation. But this
was not Sir T. Munro's system. His mode of settlement
can be considered in no other light than as the most equi-
table mode which that valuable officer could devise, of fairly
distributing the assessment: for the amount, he plainly
tells us, was first fixed on the district ; and then on each
milage. " The business was begun by fixing the sum
" which was to be the total revenue of the district." " And
66 this was done by comparing what was levied under the
" native Princes, under the Company's government from
" its commencement, the estimates of the assessors, and the
" opinions of the most intelligent natives ;" and " it was
" fixed at what the inhabitants, under a native govern-
" ment, would have regarded as somewhat below the usual
" standard"
Let those who object to Sir Thomas Munro's system, and
would proceed on the grand scale of settling at once whole
provinces, with one man, or, at least, a few individuals, to
whom all his or their countrymen shall be subordinates, if
not slaves ; — let those who object to Sir T. MumxTs system,
say, on what other data they would proceed that would
be more equitable than the above. Sir T. Munro has
been charged with the oppression of the ryots ; with the
levelling principle of requiring the ryot " to make good
" the deficiencies of his neighbour, to the extent of ten
" per cent. ; that is, to the extent, probably, of his whole
" surplus earnings."1"1 " A. must pay the debt of B." Mr.
Tucker is one of Sir T. Munro's opponents ; and quotes
from the writings of Sir Thomas Munro the following pas-
sage : " If the crops are bad, and it appears that some of
" the poor ryots must have a remission, the loss or part
" of it is assessed upon the lands of the rest, where it
" can be done without causing any material inconve-
" nience.
PRESENT SYSTEM.
" nience. This assessment never exceeds ten or twelve
" per cent., and is much oftener relinquished than carried
" into effect"
To this it is first to be observed, that in 1819 this exac-
tion was ordered to be discontinued by the Court of Direc-
tors. But were it not, it may still be said, it is here posi-
tively declared that such a measure was to be had recourse
to only when it could be done " without causing material
" inconvenience ; and was much oftener relinquished than
" carried into effect? But we must remember, that in the
case of " milage settlements,*" the total revenue assessed on
the village must be made good by the whole cultivators.
If, therefore, the original assessment had been effected, as
above described, at first, on the capability of the whole
village ; and no over-assessment, if A.'s crop be worse than
it ought to be, B.'s and C.'s, and D.'s, with ordinary ma-
nagement^ would be better than they were expected to be.
They have probably got the better share. Where then,
was the injustice of equalizing the assessment by relieving
A . ? And if it be just to hold villagers, on joint occupancy,
b'able, collectively^ for the whole revenue assessed on the
entire village, where is the injustice in Sir T. Munro's
system ? Every community is responsible, more or less,
for the acts, even misfortunes, of its individual members.
In England the hundred is held liable for the property de-
stroyed by mobs and rioters ; and in the case before us, if
such security were not taken against defalcation of revenue,
it is manifest that the assessment on the whole village must
needs be permanently increased, in order to meet occasional
defalcation: a mode of settlement, indeed, less obnoxious
to such remarks as Sir Thomas M unro's plan has elicited ;
but whether better, is a different question. In either case,
the payment must come from the same individuals; for, be
it
PERMANENT SETTLEMKNT. 235
it never forgotten, the government revenue must be realized,
to meet the wants of the public service.
We must also remember what the constitution of an
Indian village is. It is not a body of individuals whose
interests and connections are distinct, perhaps opposed to
one another. No ; the Indian village contains a tribe, a
natural corporation, connected by ties of blood, caste, or
vicinage ; actuated by one and the same motives, the col-
lective interest of the inhabitants: judging, from experi-
ence, that, by such means, they are more certain, than
any other, that each must individually secure his own ad-
vantage. The joint responsibility, therefore, instead of
being deemed onerous, would not only in reality be light,
but it would afford to the whole a direct interest in the pro-
sperity of each individual ; arid thus tend to promote those
kindly feelings throughout the community, which total in-
dependence, every man of his neighbour, — who he may
deem his rival but whose aid in the hour of need he cannot
claim, — could never inspire.
In point of fact, the Ryotwar settlement of Sir Thomas
Munro, carried into effect as above described by himself,
differs from the village settlement of his opponent only in
so far as it stipulates only for the land actually cultivated ;
and goes beyond the village settlement, in so far as the col-
lector himself registers, and concurs in, the internal allot-
ment to each individual, instead of leaving this to be done
by the potail, or headman of the village, who at least
cannot be equally disinterested.
Now this seems to me to be clearly advantageous to the
ryot ; for he knows before he sows his field, what he has to
pay ; he knows that he is sure of retaining his own field,
and of reaping the benefit of his improved husbandry,
without
236 PRESENT SYSTEM.
without being liable to periodical allotment, to compulsive
exchange with a less industrious neighbour of his own
fertile croft, for the field of the sluggard, as in the Mouza-
war and in the joint- occupancy system he would be. He is,
moreover, sure that the maximum rate of assessment is
fixed : a point of high value in Sir Thomas Munro's system,
as latterly more fully, yet not sufficiently, explained by
himself. So that by the Ryotwar settlement it may be said
that every individual is really an independent man.
The village settlement is, in its nature, a hard system
compared with this ; for it places every individual, more or
less, in the power of the engaging zumeendar, whose en-
gagement with the government officers is \\isMagnaCharta
for every abuse short of the absolute ruin of his non-
engaging neighbours. The very fact of his appearing as
the general representative of the whole, though with their
consent, implies his superiority; and where a superior
exists, there must be inferiors. In Sir T. Munro's system,
in this respect at least, all are equal : none are raised, none
are degraded.
Since the above was written, farther proof of the supe-
>/ riority of the ryotwar system over the village or Mouzawar
settlement is found in the evidence taken before the Par-
liamentary Committees in 1 830, to the extent, indeed, that
the Madras government was compelled to abandon the
village settlements and return to the Ryotwar — the ryots
having been subjected by the renters (the engaging zumeen-
dars) to great oppression. " The ryots were subjected to
" very great exactions; and the Collector (European), being
" shut out from any intercourse with the ryots, had no
" power to afford them redress."*
The
* Evidence before Lords' Committee, 30th March 1830— Mr. Chap-
lin's Evidence.
PERMANENT SETTLEMENT. 237
The General Letter of the Bengal government, to which
I have been adverting, farther admits that there were errors
committed in the settlement of Bengal ; and it notices also,
" the warning given to them by the Court of Directors, by
" holding up to them the permanent settlement of Din-
" digul, which failed entirely and compelled the govern-
" ment of Madras to have recourse to village leases.""
To the former (the admitted errors of the Bengal settle-
ment) they oppose the regularity, propriety, and care of
individual interests, with which the preparatory settlement
of the Ceded and Conquered provinces was made ; and to
the latter, the success with which the revenue was realized,
even to a balance in some districts as low as nine anas and
five pice per cent. The jummas thus realized were, by
Regulation X of 1807, to become the permanent assessment.
" Thus," they conclude, " there can be little error and no
" danger of a failure.11
But the measure of a permanent Zumeendaree settlement,
applied to the Indian possessions at all, is, in my estimation,
essentially erroneous ; and no regularity, propriety, or care
of individual interest, can purge it of error. That the re-
venue, if fixed at a low rate, might doubtless be realized,
in spite of great error, impropriety, or disregard of private
or public interests, is sufficiently proved by the permanent
settlement of Bengal : at least until the inherent tendency
in a permanent settlement to diminish the government re-
venue, as above noticed, shall have operated sufficiently ;
and then will end the realization of the revenue : for it is
impossible that every estate, permanently settled, can be
kept at its original amount of assessment.
The second point at issue in this letter is the Court's ob-
servation,
238 PRESENT SYSTEM.
servation, " that the hopes entertained, at the period of the
" permanent settlement in Bengal, of raising a revenue
" from other sources have failed." The reply to this is :
" It is impossible to say to what extent such hopes went ;
" but, if you compare the produce of the different branches
" of revenue stated in the margin, (viz. salt, opium, spiritu-
" ous liquors, customs, stamps), you will find great in-
" crease."
Surely this is no answer to the observation of the Court.
All these branches of revenue (except, indeed, the stamps,
which netted in 1811 about four lacs), were in existence
before the permanent settlement. The hopes held out at
the permanent settlement, here alluded to by the Court,
must evidently refer to sources other than those then ex-
isting ; to new sources. We do not talk of " raising a
" revenue" from sources in being, but of augmenting, im-
proving, or increasing it; and it would not have been
matter of hope, but of certainty, that as the government
became more regular, as our experience increased, and good
management prevailed, and moreover as conquest extended,
the sources of the revenue then existing would become more
productive, would improve, its amount increase, even with-
out any reference to the talismanic operation of the perma-
nent settlement. Good management, wonderful increase of
territory, great increase of trade, both among the European
and the native population, are fully sufficient to account
for the increase in the branches of revenue alluded to ; and
would be so, indeed, were the increase much greater than it
really is.
The letter says, " the population will keep pace with the
66 increasing improvement of the country; consequently,
" a greater demand for salt, opium, spirits and drugs ;
" customs
PERMANENT SETTLEMENT. 239
u customs and stamp duties, will increase :" but so far from
realizing the hope of profiting by any new source of
revenue, the letter under review goes on to state, " But
" we confess that we rely more on the improvement of the
" present resources than on imposing new taxes, which is
" attended with great, and in the present state of the
66 country, insuperable difficulties." This alludes doubt-
less, to the house-tax, which occasioned considerable riots
throughout the country, as well in Bengal, Behar, and
Benares as elsewhere, and was ultimately abolished.
It must be confessed, that in all this there is not much
encouragement given to the Honourable Court to sanction
the permanent limitation of the land-revenue ; the prin-
cipal and constitutional resource of the state. The stamp-
duties were then a mere trifle : they were instituted in lieu
of fees on law-proceedings, and might perhaps be well laid
out in ameliorating the administration of justice. The
customs as yet are not great. In 1810-11 they did not
realize above twenty-seven lacs of rupees."*
The salt monopoly is productive. In 1810 the amount
of sales exceed the amount of charges by Current Rupees
1,31,00,000, as appears in the accounts for that year laid
before parliament.f Mr. Hastings is entitled to the chief
merit
* In 1819-20 the customs and town duties in the lower and upper
provinces amounted to Sicca Rupees 65,42,953
Charges 8,97,705
Nett 56,45,248
See printed statement, June 1822.
t In 1819-20, the amount of sales exceeded the charges, Sicca
Rupees 1,11,82,222. Ibid. — The average nett annual revenue from salt
for twenty-six years ending in 1826, was Sicca Rupees 1,10,48,766.
PRESENT SYSTEM.
merit of the formation of this source of revenue. While
yet in its infancy, in 1785, the sales are stated by him to
amount to Sicca Rupees 53,00,000 ; and so rapid was the
progress of its advancement, that the sum realized for that
year exceeded that estimated by no less than 23,00,000 :
and all this without the influence of a permanent settlement.
Mr. Colebrooke states the average quantity of salt sold for
five years, ending with 1793, at thirty-five lacs of maunds ;
but he calculates the quantity consumed in Bengal and
Behar alone at forty lacs of maunds, exclusive of Benares.*
The opium monopoly has been also productive. In 1810
the amount of sales exceeded that of the charges by about
eighty-three lacs of current rupees, and exceeded the esti-
mated amount, for the same year, about twenty-four lacs.-)"
This rapid increase, I apprehend, would rather exceed the
power of the permanent settlement, great as it may be.
But I may remark, in this place, that giving that settlement
the most unlimited credit for " increasing the population of
" the country," and by consequence, as the letter states,
" the consumption of opium and drugs," yet that children
born of parents united since 22d March 1793, the date of
the permanent settlement of Bengal, on the strength of the
celebrated proclamation of that date, could not, in 1813,
have been great consumers of opium or of drugs !
But in 1785 Mr. Hastings states the sale of opium to
amount to about seventeen lacs. In 1799, six years after
the permanent settlement, it fell to about eight lacs ; and,
on an average of four years ending with 1811, under
different management, it netted about sixty lacs.J In four-
teen
* Husbandry of Bengal.
t In 1819-20, the excess in the amount of sales was Sicca Rupees
60,40,648.— See printed statement, June 1822.
I Fifth Report.
PERMANENT SETTLEMENT.
teen years, from 1785 to 1799, it fell eight lacs. In about
the same space of time since that period it has risen nearly
eighty. And is all this fluctuation the effect of the per-
manent settlement ? If so, it is but a very changeable
consequence of so permanent a cause.
The letter of the Bengal government of 1813, in ques-
tion, goes on farther to state, that " although the zumeen-
" dars in Bengal have derived very considerable advantages
" from the improvement of their estates, government has
" suffered no loss whatsoever :" and " for this plain
." reason ; because, without such settlement (permanent set-
" tlement), such improvements, generally speaking, would
" not have taken place.11
But, I ask, is it no loss, after twenty years of the greatest
exertion, the greatest and most strenuous efforts to admi-
nister the government of the country, and to preserve its
tranquillity, at enormous expense, that no part of this
enormous expense has been or can be reimbursed ; and that,
after twenty years of this, we shall be content to receive a
no greater, but rather a less, return than at the commence-
ment ? Does such exertion, toil, and improvement, in every
other branch of administration, require no return ? and is
it " no loss," that no advantage can be derived from the
" considerable advantages of the zumeendars," to those
who have been the means of securing to them those con-
siderable advantages ? Is it no loss, that the revenue of
India does not pay the expenses of its government ?
Suppose no farther conquest had been effected beyond
the three provinces permanently assessed, that the revenue
could not have been increased from the land, and that no
new sources were available, as the government now admit,
11 what
PRESENT SYSTEM.
what would have been the situation of the Company's
affairs in Bengal at this moment ? What is the situation
of their affairs at this moment ? Here the effects of a per-
manent limitation of revenue will shew themselves.*
They continue : " You speak of a sacrifice in Bengal.
" Let us inquire what can be justly called a sacrifice ? In
" fixing assessments, the usual process is to deduct from
" the gross resources about five per cent, on account of
" charges of collection, to set apart ten per cent, for the
" support of the zumeendar and his family, and to con-
" sider the remainder as the public assessment : that is,
" to take the largest possible share for the state. Can any
" country be expected to improve under this, unless it be
" counteracted by an assured prospect to the land-holders
" of future advantages from the gradual improvement
" of their lands 7"
This mode of making a settlement I do not clearly under-
stand. How are the " gross resources'" ascertained ? Is
there no inquiry into them ? It is impossible that this is,
or can be, the way of making a settlement. But passing
over the mode of making settlements described, let us
fairly examine this passage. First, " the improvement of
" estates." From this an English gentleman would be led
to suppose, that the great landed proprietors of India laid
out immense capital on the improvement of their estates.
Perhaps in facilitating irrigation in the higher lands, in
embanking and in draining the lower, in enclosing and
manuring
* We are assured by Mr. Colebrooke that the nett profits of the
zumeendars of the permanently settled provinces is equal to half the
revenue paid to government by them. This would be about Sicca
Rupees 1,60,00,000, or £1,600,000 sterling; but now their profits must
be much more.
PERMANENT SETTLEMENT. 243
manuring their fields ? No such thing is known among .
them ! Mr. Colebrooke himself, who published his Hus- V
bandry in 1804, shall answer for them. He says, " Reser-
" voirs, ponds, water-courses, and dikes, are more generally
" in a progress of decay than of improvement.'" Indeed,
" that there is no capital in Bengal employed in improving
" agriculture.1' It is quite evident that there is no such
thing as improving estates ; except, indeed, by the simple
operation of extended cultivation, the necessary consequence
of increased population, which has its origin in nature
itself, and not in the permanent settlement. If, then, the
zumeendars have done nothing to improve their estates,
which is really the fact, and they have nevertheless derived
very considerable advantages, these advantages must be
derived at the expense of government, and to which the
zumeendar has no apparent right, being himself in no way
instrumental in their production.
The reason assigned which induces the engaging zumeen-
dar to agree to give, " so high and oppressive rates," namely,
u the assured prospect of future advantages from the gra-
dual improvement of their lands," I consider as altogether
fanciful. First, when we know that the assessment is fixed
on the cultivated land only, and that in Bengal and Behar,
the average jumma does not exceed four to six anas (about
six to nine-pence sterling) per beegah,and that nine to twelve
maunds even of rice (unhusked) are not more than the
usual produce of a beegah, which will yield from seven to
eight maunds of clean rice, worth from eight to nine rupees
(sixteen to eighteen shillings), at the very lowest price ;
thus (allowing one-third for the expense of cultivation)
affording the cultivator a profit of twelve shillings on what
cost him nine-pence : knowing this, we • are not to give the
zumeendar much credit for looking only to futurity to re-
imburse him.
R 2 Secondly,
244 PRESENT SYSTEM.
Secondly, where, it may be asked, are the funds, the
capital of the zumeendar, to bear his immediate losses, or
to support him under such " heavy exactions ?" And
lastly, under such supposition, where is the capital to arise
from, that shall enable him to improve his lands ?
The truth is, the " heavy exactions'" here mentioned are
altogether fanciful : they have no existence. It may not
be amiss to give here the result of the opinion of an able
and industrious writer on the resources of Bengal, who
wrote nearly forty years ago (Mr. Grant), notwithstanding
the opinions which have been maintained against him. Let
us see what the following table of Mr. Grant, shewing the
resources of the now permanently settled territory of the
Company in Bengal, Behar, and Orissa, proves with respect
to " heavy exactions."
ABSTRACT
•? 8
§6.
11
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246 PRESENT SYSTEM.
Here then, instead of " heavy exactions," Mr. Grant, from
original documents which he translated and laid before
government, and on the authenticity of which he pledges
his character, estimates the revenue of the Company?s
lower Bengal provinces, including Benares, deducting
twenty per cent, for collection, at about five crores and a
half of rupees. It is now, including Benares, which is
forty -two lacs, about three crores. In 1813 it was Rupees
3,15,33.947: it was in 1765, when transferred to the Com-
pany, Us. 4,62,00,000. In 1784, after twenty years" ma-
nagement, it fell off to Rs. 3,67,00,000, exclusive of the
salt and opium revenue, shewing a defalcation of a crore of
rupees; and since 1784 there appears a farther defalcation
of sixty-seven lacs, exclusive of the expense of collection,
which amounted, in 1811, to twenty-four lacs, including
pensions and charitable allowances.
Colonel Sir T. Munro, in his report of the 15th August
1807, proposing a plan for settling the Ceded Districts on
the coast, says, " if by fixing the government rent at one-
" third of the gross produce of the land, the ryot were
" allowed to enjoy the remainder, and all such future
" increase as might arise from his industry , he would never
" quit his farm. If more than one-third is demanded as
" government rent, there can be no private landed property.
" It is also found by experience, that one-third of the pro-
" duce is the rate of assessment at which persons who are
" not themselves cultivators can rent (hire) land from
" government without loss. The present assessment of
" these districts is about forty-five per cent, of the pro-
" duce. To bring it to the proposed level would re-
" quire a deduction of twenty-five per cent, of the produce.
" Thus,
" Total
PERMANENT SETTLEMENT. 247
" Total gross produce of lands 100
" Government's share by present assessment 45
" Deduct twenty-five per cent, of produce or
" of the assessment per cent 11^
" Remains Governments share of produce per
" cent 33f*
If, therefore, Sir T. Munro actually collected forty-five
per cent, of the gross produce of the soil from the Ceded
Districts, as above, it is absurd to talk of " heavy exac-
" tions" in Bengal, when the whole land revenue under
that presidency was in 1813 only Rupees 5,94,54,352 : little
more, perhaps, than one rupee per annum for each indi-
vidual of the population. If you take this as a basis to
get at the gross produce, and add to it the two-thirds, or
two rupees for the ryot's share, you will have a gross pro-
duce equal only to the value of three rupees per annum,
for the subsistence for a year of each individual, exclusive
of cattle. But not even in Bengal can man be supported
at three rupees per annum of land produce. Twelve rupees
even is too low an estimate ; but at twelve rupees the gross
produce would be quadrupled, and by consequence ought to
give to government, at one-third assessment, four times the
present land revenue, or Rupees 23,78,17,408. Mr. Cole-
brooke reckons the annual consumption of grain for man at
nine maunds a head, besides cattle :*)• and Colonel Sir T.
Munro, in his -statistical account of the Ceded Districts,
states the average expense of subsistence of one-fourth of
the population at forty shillings : of one-half or two-fourths
at twenty-seven shillings ; of one-quarter, at eighteen shil-
lings
* Fifth Report. t Husbandry.
248 PRESENT SYSTEM.
lings ; general average, twenty-eight shillings, which is
equal to about fourteen rupees. But let it not be forgot
that one-third of the produce of the soil is the ancient rate
of assessment. " Of dry crops," says the Ayeen Akbury,
" one-third of the produce was levied ; but for green crops,
" ready money, at fixed rates, was levied." And it is re-
markable, that in every essential point that able officer, of
whom I have just spoken, appears to have conformed to
the ancient practice of the country, exercising of course, in
so doing, the discretion of a man of research, experience,
and sound j udgment.
Moreover, as before stated, we find that in England one-
third of the produce is reckoned ample to defray the ex-
pense of cultivation. If so in England, surely in India the
same allowance must be equally ample. Out of this third
share the cultivator and his family are of course maintained.
There is a surplus of two-thirds, to be divided as rent and
government dues.
In 1811 the " rental of land in England and Wales was
" ,£29,476,852 sterling, the population 10,150,150: nearly
" <£J3, or 30 rupees, a head. The number in a square mile
" 175, of which 36 were agricultural."
Now, if there were fifty-nine millions of people under
the Bengal Government, and each consumed nine maunds
of grain per annum, the produce would be five hundred
and thirty-one millions of maunds, worth as many rupees.
The government revenue, at one-third of the produce,
would be in rupees, 1,77,000,000, instead of 59,454,352, as
above : exactly three times as much as it is now. None of
these facts and data shew " extreme exaction."
Under
PERMANENT SETTLEMENT. 249
Under the third head is considered the remarks of the
Court of Directors as to the " necessity of attending, not
" only to the principles of political economy, but to the
" character and manners, the habits and prejudices, of
" the natives." The answer is : " We have invariably at-
" tended to the manners, prejudices, &c. of the people;
" but we cannot see how a permanent settlement can be
" contrary to their prejudices."
No government on earth, most certainly, ever more
anxiously wished to attend to the feelings and habits of
the people than our Indian government, both at home
and abroad, hus invariably done. But their great anxiety
to do the people good led to the greatest of errors ;
and so far from the permanent settlement, as carried into
effect, being conformable to the constitution of society in
India, its effects have not only opposed the manners,
habits, and prejudices of the natives, but have produced
a total revolution in the frame of society, both political
and social.
In Bengal, where shall we look for the constitution of
an Indian village ? The "brotherhood,"" all independant
of, but all interested about one another ; giving and re-
ceiving mutual aid, mutual kindnesses, sympathizing with,
and receiving consolations from, one another; confident
and secure in their possession, on the simplest of all tenures,
the easiest, perhaps, of all terms, a definite and moderate
share of their labour, as a return to the state for protection.
If sickness overtook one, he relied on the help of his brother •
if death left a widow or an orphan, in every house had the
fatherless a father, the widow a protector. The accumu-
lated bones of generations were mingled in the same cemetery,
or consumed at the same funeral pile ; and the pious pea-
sant
250
PRESENT SYSTEM.
sant fancied that the pure spirit of his father yet hovered
around his peaceful abode. *
How different the picture now to be seen in the lower
provinces of Bengal ! The abject slavery of the cultivating
classes could only spring from the necessity of absolute
submission ; submission, not to the revered representative
of an ancient family, but to the upstart of the hour, the
Bengal Baboo, the new malik, the absolute lord of the soil,
who has no feelings in common with the people, whom he
fancied he had purchased with his estate ; whose knowledge
of the regulations told him he could, not only without
violation, but with all due conformity to the words (not
indeed to the intent) of them, destroy the happiness of his
slave for ever, by banishing him from the village of his
birth, the companions of his youth, the associates of his
manhood, the support of his old age. Those ephemeral
lords of English creation were not, indeed, vested with the
power of life and death, not with the power of tormenting
the body; but the happiness of the people was placed en-
tirely at their mercy, and their minds were subdued. In-
stead of the manly spirit of former times, which a very
small portion of independence will nourish, the native of
Bengal knows now that even the privilege of residing in his
native village he owes to his subjection alone.
May it then not be asked, whether such a state of things
as
* Mr. Fortescue, in his report on the Delhi Territory, on 28th April
1820, gives a description of the village community; which, as it cor-
responds with the above, leads to the belief that, as yet, the demolition
of the ancient frame of society is limited to the permanently settled
districts of the lower provinces. " If," says that intelligent officer, " a
" sharer (of the village) die, the other sharers are bound, by an ac-
" knowledged principle of morality and duty, to take care of the
" widow and children ; especially to get daughters married." " The
" widow may occupy the land, and the other sharers will assist her."
PERMANENT SETTLEMENT. 251
as this has been produced by " attending to the character,
" manners, habits, and prejudices of the people of India?"
We are further told, that to the efforts made for the
better administration of justice, and to the limitation esta-
blished in regard to the demand of government on the lands,
is attributable a change in the character of the Bengalese ;
from being, like the inhabitants of the upper provinces,
owing to the vices of former governments, more refractory
subjects, they have found it more advantageous to cultivate
the arts of peace.
But is there really such limitation to the demand on the
land? This limitation, whatever limits government may
have set to the government demand, has no existence in
regard to the people ! The " demand on the lands," quoad
the people, has no " limitation," but that which the rapacity
of the proprietor may set to it. The demand of government
from the zumeendar is certainly fixed ; not so the demand
of the zumeendar from the ryot; except, indeed, by the
laws and regulations, which, on this point, have been ac-
cused of the very great absurdity of first granting absolute
property in the soil, and then restricting the grantee in the
management of his property : and this not by any specific
rules, but by the general term of the custom. He is to levy
his rents " according to the custom to the pergunnah rates;"
which custom, being different, in every different place, was
necessarily left for the owner to dictate. The dictum,
therefore, of the zumeendar is the custom. The contrary
cannot be established against him, were the poor man, as I
have before noticed, with barely enough to exist upon, able
to carry his opulent oppressor into court, to attempt so
hopeless a cause.
Yet,
252 PRESENT SYSTEM.
Yet, notwithstanding all this, which is now seen and
admitted by every one, are we told in the letter under
consideration, "that whatever be the character of the
" people in the upper provinces, the universal principle of
" self-interest must render the permanent settlement more
" satisfactory to them than temporary assessment."
" More satisfactory " to whom ? Let us examine this,
and we shall see that the " universal principle of self-in-
" terest" cannot apply to the "people ;" were it even ap-
plicable to the comparatively few who might be parties to
the permanent settlement. The people in the Ceded and
Conquered Provinces may be estimated at twenty-three
millions ; nearly twenty millions of whom would have no
" self-interest^ in the question, because they are neither
zumeendars not " engaging cultivators :" nearly three mil-
lions more would be interested in opposing it. I mean the
cultivating ryots, whom I estimate at 2,978,383, on the
datum of allowing an average of twelve beegahs for each
cultivator (the known number of beegahs in cultivation, by
the report of the Board of Commissioners, being 35,740,598
beegahs), and 45,000 persons might peradventure be the
number to whom " the universal principle of self-interest"
in favour of the permanent settlement might be made to
apply ; that number being " the number of village zu-
" meendars under engagements to government" throughout
the Conquered and Ceded Provinces, as stated by the same
unquestionable authority. Forty-five thousand persons,
then, out of twenty-three millions, might thus possibly be
supposed friendly to the permanent settlement, " from the
" universal principle of self-interest ;" three millions would
oppose it, "from the same universal principle of self-in-
" terest;" and twenty millions of "people" would either
not care about it, or if they did, they would oppose it from
the
PERMANENT SETTLEMENT. 253
the " universal principle" of dislike to all innovation, which
prevails among the people of the upper provinces and of
all India.
We now come to the fourth head, " Loss of revenue
from the depreciation of the precious metals ;" an argu-
ment of the Court of Directors against the permanent
settlement.
Whatever the Bengal government may have said, this is
unquestionably an admissable argument against the perma-
nent settlement, even although such depreciation cannot as
yet be made very apparent ; nay, though it could be shewn,
that the precious metals are as yet less abundant than they
have been. But, before I notice the reply given to the
objection of the Court, the following remarks occur to me
on the point. The extraordinary waste of the precious
metals in India by their universal use, not only in coin and
in plate, but in cloth and in personal ornaments, reduces
them more nearly to a level with the ordinary perishable
articles of commerce, in India than in Europe. There is
scarcely a living creature of the human species, on the
whole continent of India, from the moment of its birth,
that does not contribute directly to the destruction of the
precious metals. A hundred millions of people may be
aiding in this consumption ; and if we allow them to possess
ornaments to the average value of a rupee each, the actual
wastage of the metals, even by wear, will be immense. The
constant conversion of their ornaments, by melting them
down and making them up into other kinds or fashions (a
propensity well known, and which may be established by
adverting to the extraordinary number of silver and gold-
smiths to be found all over the country, whose livelihood
depends on this alone), adds amazingly to this source of
waste
254? PRESENT SYSTEM.
waste. There is also the wear and tear of an immense
metallic currency, the loss of money by secreting it and
otherwise. When all these sources of consumption are
considered, the increase of the precious metals must, I think,
be very slow ; but nevertheless, however slow, if progres-
sive, as an argument against the permanent settlement it is
good; and those who, overlooking these sources of de-
struction of gold and silver, attend only to the rate of
depreciation of these metals in our own country, will hold
this argument as invincible against the permanent limitation
of the revenue, in currency of the present, or of any definite
value.*
The following prices of the most common necessaries of
life and rates of labour are taken from the Ayeen Akburee,
and will afford some ground for conjecture on this subject.
If it should appear that the quantity of those articles then
procurable for a given quantity of the precious metals was
nearly what is now to be procured, the apprehensions of
the Honourable Court would be relieved ; but then the
importation of gold and silver has been great, and there
has been no paper currency to check that importation.
* In point of fact, there is no doubt that the precious metals have
diminished in quantity. There is indeed, in Bengal, no such thing as
a gold coin now in circulation. The gold Mohur is sold as bullion,
at a premium of twelve per cent. ; and in Calcutta, even silver is but
little circulated, the medium being almost entirely paper, either Bank
notes or Government securities. The scarcity of coin will raise its
value ; and that most rapidly in India, where it is in so great demand
for other purposes besides coin. The consequence of this will be a
diminished revenue. This is a point to which the attention of Go-
vernment is immediately required ; yet I perceive, that within fourteen
years after the renewal of the present Charter, c£3,566,927 sterling in
bullion had been remitted by Government from India. — Evidence
before Lords' Committee, Feb. 1830.
PERMANENT SETTLEMENT.
255
Former Price.
Present Calcutta Weight.
Md. Seer.
Wheat ............ 3 13
Md. Seer,
per rupee ... 2 0
Barley 5 0 per do 3 2
Dal * 210 per do 116
Atta Flour 136 per do 1 0
Ghee 0 16 per do 0 10
Milk 124 per do 036
Sugar-candy ...... 0 7s per do 0 6
Chenee or Raw T R* A- p- Ks. A. p. r per Calcutta
Sugar / J Opermaund ... 6 6| maun(L
Salt 0 5JOperdo 020
Dry Ginger 0 1 10 per seer 029
Huldee 0 0 9 per do 0 1 1
Round Pepper... 0 6£ 0 per do. ...... 0 10 0
Mangoes, per 100. 1 0 0
Sheep, each 1 8 0
Geese, each 0 .8 0
Ducks, each 1 0 0
Mutton 1 10 0 permd 280
RATES OF LABOUR.
Rs. As. Rs. As.
Bricklayers, four classes, from ... 5 4 to 3 0 per month.
Carpenters, do 5 4 to 1 8
Sawyers 1 8
fielders 2 12 to 2 4
Grammies 2 4
Coolies 1 8
Bheesties 2 4 to 1 8
Soldiers r 6 4 to 2 12
Porters 3 0 to 2 12
Attendants -i 3 0 to 2 8
Mewattees J
Bearers, Surdars, 9 8 to 4 12
Bearers, common 4 0 to 3 0
Note.—
256 PRESENT SYSTEM.
Note. — The seer is stated at 28 dams, each dam being
1 tolah, 8 mashas, 7 ruttees. 12 J mashas make 1 rupee,
8 ruttees make 1 masha; each dam is therefore 21 \ masha.
So 21 \ masha multiplied by 28 darns— 602 masha, which
at the rate of 12 \ per sicca rupee weight, gives a seer
equal to the weight of 50 sicca rupees.
The seer here specified is equal to fifty Calcutta sicca
rupees weight. The Calcutta bazar seer is equal to eighty
sicca rupees weight ; the Lucknow and Allahabad seer equal
to ninety-six sicca weight; in some other parts it is
ninety-eight sicca weight ; which makes one maund equal
to two maunds of the Akburee weight. When I was in
the vicinity of Dehlee, in 1804, I was informed that gram
had been known to sell there at four maunds ten seers, and
wheat at three maunds and thirty seers, per rupee : so that
holding the report we received to be correct, since the days
of Akbar, two centuries and a half nearly, we do not find
any great change in the value, either of the necessaries of
life or in the wages of the labourer : the only criteria by
which the value of the currency can be appreciated. But
then it must be remarked, that of late years the impor-
tation of bullion into India has been exceedingly small.
Mr. Colebrooke says, in 1804 : " A cultivator entertains
" a labourer for every plough, and pays him wages which
" on an average do not exceed one rupiya (rupee) per
" mensem : and in a cheap district he himself had found
" the monthly hire as low as eight anas (half a rupee)."
Lord Teignmouth positively says, " it is obvious to any
" observation that the specie of the country is much di-
" minished."* To this I may add, that as commerce with
the western world has increased, and the demand for
European
* Minute, June 1789, par. 142.
PERMANENT SETTLEMENT. 257
European goods has become augmented, the balance of
trade no longer continues to be in favour of India ; it must
necessarily follow, that the precious metals will decrease
there. Nothing can prevent the acceleration of this to a
great extent, and to the great derangement of the perma-
nent settlement, indeed the whole system of revenue, but
the capability of India to produce articles of commerce in
demand in Europe (or in other countries where specie
abounds), not only equal to the value of goods received in
exchange, but, beyond that value, to the extent of the con-
sumption of the precious metals in India.
It may be said, that the scarcity will raise the value of
money in India, and that again will ensure a supply of
specie from other countries. But it is to be noticed, that
another substance, paper, has been forced into the place
of coin, and without some production of India to take in
return, who will bring specie ? The high interest of money,
consequent on scarcity, will indeed tempt a few monied
men connected with India to send specie there to be put to
interest ; but the loss in remitting both interest and capital?
and the limited extent of such speculations, will by no
means preserve the equilibrium.
It appears by various statements, that from the year
1700 to 1793, the amount in value of bullion remitted by
the Company alone to India, including, as I calculate,
ten or eleven millions to China, was ,^42,680,859
and we are told by Mr. R. Grant, that
the Americans, in ten years, from 1795
to 1805, " imported into India in bul-
lion," no less than 26,720,470
Making together ^69,401,329
s It
258 PRESENT SYSTEM.
It does not appear whether Mr. Grant includes in his
account the bullion carried to China by the Americans :
but at all events, we have to take into the account the
bullion and specie brought by the other European states,
and that imported by the Company since 1793, and by the
Americans since 1805, which at present I have no means
of ascertaining : and then, after making the most ample
allowance for the share which China has received, the im-
portation into India Proper will remain enormous, and
impress us with an idea of the extraordinary consumption
of the precious metals, that has swallowed up so much
without making the slightest impression on the value of
the currency, which is still higher by twenty-five per cent,
than in England, and, as I have shewn, has undergone but
little change, in point of value, since the days of Akbar,
compared, I mean, with the rates of wages, prices of
grain, &c.
The reply given in the letter now under consideration is :
" the specie may have been increased, but the population
" and consumable commodities have increased also, and
" the proportions may be still equal." It does not appear
to me that this bears upon the question. Besides, the pre-
cious metals are not the only currency in India. Copper,
tin, lead, even shells, — the first and last in great abundance.
In several districts, the government-rents are paid in shells
alone.
" But," continue the advocates of the permanent settle-
ment, " the effects of the deterioration of value of the
" precious metals might be obviated, as proposed by Mr.
" Colebrooke, by changing the engagements from specie
" into the market value of a specific quantity of corn, to
" rise and fall accordingly ; but this is objectionable," they
add, " because of the difficulty of adjusting the value."
But
PERMANENT SETTLEMENT. 259
But a settlement " for the market value of a specific
" quantity of corn" is, essentially, neither more nor less
than fixing by limitation the government share of the crop.
A zumeendarry, for example, is let for one thousand maunds
of corn, or its market value in specie ; or rather for the
market value in specie of one thousand maunds of corn.
Unless some standard has been previously fixed for ascer-
taining the market value, as the payer and receiver would
unquestionably differ, the corn itself would become the de-
mandable article, and thus the settlement would be virtually
that which I have stated.
In India, however, when a settlement of this kind is
made, agreeably to the native system, no difficulty is ex-
perienced. It is common to make such settlements ; and
when they are made, the conversion into money is settled,
not annually, but periodically, or rather at the will of the
lessor, with reference, of necessity, to the capability of his
ryots, and the produce of the soil. A field (zumeendarry,
if you please) is let for so many maunds of wheat : the
price (if converted into cash) at so much per maund. This
rate continues, perhaps, for half a century ; but if the
price of grain should rise (that is, if the difference between
a given weight of grain and a given weight of precious
metal should decrease, to the depreciation of the latter),
the landlord requires more metal per beegah for his land
to restore the original difference, and says the conversion
must now be made at one rupee four anas per maund, in-
stead of one rupee as before. There is no difficulty in
this: but it would not obviate the objections to a per-
manent settlement.
It is, therefore, attempted to combat the suggestions of
the Honourable Court of Directors, " to establish a vari-
s 2 « able
260 PRESENT SYSTEM.
" able land-tax, that shall enable government to participate
" in the growing resources of the country, as by revising
" the settlement at given periods, or on the accession of
" every new proprietor."
It must be confessed, that the pretensions of the Honour-
able Court " to participate in the growing resources of the
" country," are not very unreasonable ; yet they are told,
with little ceremony, in the letter to which I advert, that
both the plans suggested " have un surmountable diffi-
« culties."
Let us see the difficulties. First, it is said, in the precise
language of 1790 : " It would be to the advantage of the
" proprietors to deteriorate their estates during the latter
" years of the assessment, in order to get them valued low
" at the succeeding settlement." But this appears to me
an assumption altogether gratuitous, and not very liberal.
It, in fact, implies not only universal fraud on the part of
the zumeendars, but relentless oppression on the part of
government. But admitting, for the sake of illustration,
the truth of the assumption, may it not be asked how the
zumeendars are to effect this deterioration of their estates ?
They cannot legally remove the cultivators. The land in
India requires, at least receives, with little exception, no
manure, that by withholding it the crops should fail. The
land is annually under some crop ; and are the people to
cease from cultivating their fields, and to starve, " during
" the latter years of the assessment," that the xumeendars
may procure " a low valuation at the succeeding settle-
" ment ?" Are the zumeendars to give up the certainty of
their rents u for the latter years" of their leases, for the
chance of being required to pay a little advance (though
but a fair value) for their estates, for the next lease, which
they
PERMANENT SETTLEMENT. 261
they may not live to enjoy ? This is neither probable, nor
is it conformable to the genius of the people, were it prac-
ticable and the success certain, to act with so much regard
to futurity. But let the rates per beegah be fixed, and the
objection will be destroyed,
In a subsequent paragraph, the district of Goruckpore
is given as an example of this deterioration of estates,
There was, in 181 3, a balance, " in the latter years of the
" assessment, of 6,02,869 rupees; owing chiefly to the
" landholders, who are most part village zumeendars,
" throwing their lands out of cultivation to obtain a light
" assessment." But was the collector of Goruckpore at
this time mindful of his duty, and a competent person?
for in 1815 (but two years afterwards) we find that the
Governor-General states the balance due by this district at
only upwards of " two lacs ;" and this is considered gre^at,
" owing to the incomplete state of the new settlement.""*
To the next proposition, of revising the settlement on the
accession of every new proprietor, " the unsurmountable
" difficulty" is joint tenancy. "It would be unfair,"
they say, " to revise the settlement at the death of one of
" the tenants ; and this would hold ad infinitum." But we
may ask, why unfair ? The revisal might occur more fre-
quently, but there would be nothing unfair in it ; and a
revisal does not necessarily imply an additional impost. Or
if this were objectionable, why not make the revisal to take
place on the demise of the last of every series of co-
partners, and then the argument is reversed ? It would fall
to be made at longer intervals, and would be advantageous,
instead of being unfair, to such estates.
" But,"
* Governor- General's Revenue Minute, 21 Sept. 1815.
PRESENT SYSTEM.
" But," it is added, u exclusively of this, estates would
" be of little value when exposed to sale for arrears of rent,
" if the jumma were to remain fixed only during the life of
" the former proprietor." But why former proprietor ?
It is the incumbent proprietor's demise that is supposed to
give occasion to the revisal of the settlement ; and the in-
" cumbent proprietor," at a government sale for arrears,
would be the purchaser.*
" It is," they continue, " the permanency of the settle-
" ment alone, that renders the lands substantial security
" for the public demand." Now this is plainly an error,
and an error but too well calculated to mislead. It is not
surely the permanency of the settlement, but the actual
value of the property, the difference between the jumma,
or government demand, and the receipts from the ryots,
that makes an " estate valuable when exposed to sale for
u arrears of rent ;" and which alone affords any security
whatever to government. It is only when the ihiugjixed
is good, is valuable, that permanency of the possession is
advantageous. It is no advantage to be saddled for ever
with a valueless commodity of any kind. Government
can have no security for their revenue, but that which a
moderate assessment gives them, leaving those who are
assessed, and those who cultivate, a valuable consideration
for the parts they take, the labour they bestow, in realizing
the dues of the state. Who would give any thing for a
rack-rented estate, however permanent the tenure might be ?
The fact is as clear and as obvious as noon-day, that,
settle the country as you please, there is no security for the
revenue but that of the industry of the cultivators of the
land
* This argument has been shewn to be of no force, since the sale
of lands for arrears of revenue is now but little known.
PERMANENT SETTLEMENT.
land whence, the revenue is derived : and the more middle-
men between them and the government, the less sure the
security becomes, because the channels of embezzlement are
multiplied.
A zumeendar is a drone: an unproductive animal, of the
worst kind, too, that must have his drones also about him ;
all a burden upon the industry of the cultivators. Govern-
ment employ and pay these drones as agents to collect the
revenue. This saves their European servants the trouble :
but however paradoxical it may seem, it is nevertheless true,
that government is, in fact, security for the xumeendars,
instead of the zumeendars being security for the govern-
ment revenue ; for if the zumeendar mismanage his estate,
government must pay the defalcation, that is, suffer the loss.
The Honourable Court suggested, " that a variable settle-
" ment induced government to look more to the cultivation
" of the lands : and doing so, if they dug canals for irri-
" gation and made roads, it would be difficult to deny their
« right to indemnification for the expense of such." The
answer to this is remarkable. " If," say the Bengal go-
vernment, " a variable land-tax cannot be established
" without discouragement to agriculture, it would be pre-
" ferable to limit such improvements to works that are
" indispensable than to check agriculture." This hypo-
thetical reply is, in fact, a postulate of the question at
issue ; otherwise, at best, it amounts to this : " it is better
" to make only such improvements as may encourage agri-
" culture, than to make such improvements as will check
" it." The court maintain, that a variable land-tax may be
established, and would not check, but improve agriculture.
Government assume, that a variable land-tax would dis-
courage agriculture ; and therefore, say they, it is better
for
PRESENT SYSTEM.
for your Honourable Court not to persist in your plan
of digging canals, and other projected or contemplated
improvements.
Another argument in support of the permanent settle-
ment, which is expected, seemingly, to have great weight,
is given us. " The great difficulty, it is stated, of admi-
" nistering the government of the Ceded and Conquered
" Provinces, is the refractory spirit of the zumeendars,
" their resisting government and harbouring robbers. These
" zumeendars are bound, under the penalty of confiscation
" of their estates, not to harbour such ; but if they have
" no permanent interest in the estate, the penalty is nu-
" gatory." But why permanent interest? If the zumeen-
dar had, indeed, no interest in his estate, the penalty would
truly be nugatory. But whether " permanent" or not, if
he had an interest, the penalty would not be nugatory.
May we not, however, be permitted to remark here, how
much the premises differ from the conclusion of this para-
graph ? The zumeendars are stated to be ungovernable,
refractory, so independent even as to resist government ;
therefore, we, this government, though resisted by them,
recommend that they shall be made still more independent,
by confirming them in their estates for ever !
It must be admitted, however, that the penalty of con-
fiscation, above specified, suspended over the heads of re-
fractory and government-resisting zumeendars, is indeed
nugatory, and must be, on whatever condition their tenure
may be held. But, on the other hand, it is pleasing to
think that the Ceded and Conquered Provinces are admi-
nistered with as great ease as the more favoured perma-
nently settled districts of Bengal, and that the zumeendars
are as good and peaceable subjects as any in the Honour-
able
PERMANENT SETTLEMENT. 265
able Company's dominions* It will be remembered, more-
over, as before noticed, that the revenue is realized with
little balance; and whether we look at the files of the
courts, or the calendar of crimes, the comparison will fall
greatly in favour of the subjects of the provinces that are
not permanently settled.
The permanent settlement, we are told, would improve
the police, in proportion to the stake held by each zumeen-
dar ; " which might be extended to the support of govern-
" ment against external and internal enemies."
God forbid that the government should ever be obliged
to trust to such support against enemies of either descrip-
tion. But if such a case of necessity did occur, I doubt
not that the zumeendars of the Upper Provinces would
prove equally loyal with those of the lower ; and, as I
believe, if they have any wish, it is not for a change of
governors, but for their own independence of all govern-
ment. I am persuaded, if they had the means they would
support our government against any other power that
should pretend to the privilege of ruling over them in our
stead.
Another reason advanced in favour of the permanent
settlement, in this letter also, m%. " that variable settle-
" ments keep alive a spirit of intrigue and corruption, both
" among the native and European servants of government,1"
has been already noticed, in reply to the same stated before
by Mr. Colebrooke.
In a subsequent despatch, of date 2d October 1813, we
are told by the government of Bengal, " that they do not
" dispute Colonel Munro's opinions on matters that have
" come
266
PRESENT SYSTEM.
" come under his own observation at Fort St. George re-
" specting ryotwaree settlements, but do not think them
" applicable to Bengal ;" and they place the opinions of
Sir E. Colebrooke, Mr. Rocke, Mr. Lumsden, and Mr.
Deane, in opposition to Colonel Munro ; adding, " but
" the great extent of the collector ships, and the paucity
" of revenue officers, render it absolutely impossible in
« Bengal."
Now this is nothing more than adding the opinions of
the members of government, or the majority of them who
wrote the despatch, to those of Sir E. Colebrooke, Mr.
Rocke, Mr. Lumsden, and Mr. Deane, upon a point and
subject of which they, none of them, had any experience,
against the opinion of Colonel Munro and his colleagues on
the coast, who have had very great experience of the mea-
sure in question ; to whom we may add the opinion of
Colonel Wilks, who speaks of the permanent settlement of
Bengal thus : " With unfeigned deference to the great
" men who applaud the permanent and unalterable landed
" assessment of Bengal, I must still be permitted to doubt
" the expediency of the irrevocable pledge. It is not in-
66 tended to discuss whether those provinces (Bengal) have
" flourished in consequence of the present system, or in
" spite of it. I admit, any thing was better than our in-
" cessant fluctuation ; but there is a wide difference be-
" twixt capricious innovation and such an irrevocable law.
" To terminate abuses by shutting out improvement, to
" prohibit the possibility of increasing the land-tax, to
" render probable, nay certain, its decrease, this is the
" system which has succeeded to former errors."*
Objections to ryotwar settlements have been made, " that
" they
* Wilks' Mysore.
PERMANENT SETTLEMENT. 267
" they require a personal acquaintance with every culit-
" vator and an estimate of produce every year."* The
ryotwar settlement is a settlement of every field with
its proprietor, which may be made every twenty years
instead of annually.f But why a mode of collecting the
revenue that answers well (if the ryotwar do so) at Madras
should fail in Bengal ; why there should be larger districts,
and fewer revenue officers in Bengal, than at Madras, I
can see no reason. None of these are substantial objections
to the continuance of periodical settlements.
Nor, indeed, after having gone through and now noticed
all the reasons for the introduction of the permanent set-
tlement in the Upper Provinces, urged in the minute and
despatches to which I have adverted, can I fix upon one
that is at all satisfactory, without first assuming that the
permanent settlement is essential to the tranquillity and
the prosperity of the country and to the security of the
public revenue. And this is contrary to all experience;
for the country is tranquil, the country is highly prosperous,
the revenue has increased nearly a crore of rupees since the
permanent settlement of the Ceded and Conquered Pro-
vinces was urged upon the Court of Directors by the Bengal
government ; and it is secured in the best of all possible
ways, by the free, unrestrained, and protected industry of
the people.
Finally, the permanent settlement, as carried into effect
* Lord Hastings' Minute, 2 1st September 1815.
t When a district is once measured by fields, and the rates fixed,
each field has its value. It then represents a known sum of money,
as a Bank note does, and may be let to 'a ryot with as much ease, and
more celerity, than the Bank note could be changed for inferior
currency.
268 PRESENT SYSTEM.
by us in Bengal, I have shewn if not contrary to " the law
" of England, is at least contrary to the law and constitu-
" tion of India." It is contrary to the custom and uni-
versal practice of that country ; consequently contrary to
the manners, habits, and prejudices of the people. It is
not, in my humble opinion, calculated in the slightest de-
gree to ameliorate the condition of our native subjects, but,
on the contrary, it has proved itself to be highly instru-
mental in their debasement ; and by its necessary tendency
to throw and to keep the great mass of the respectable yeo-
manry of the country at an immeasurable distance from
us, it will prove itself to be no less instrumental in per-
petuating that debasement, which a closer intercourse, the
necessary consequence of occasional agricultural and offi-
cial dealings, would, in God's good time, probably have
removed.
The permanent settlement has lost to government, in fact,
all knowledge of the country and of its resources. There
are revenue officers in Bengal, I doubt not, that cannot
even tell you the number of villages in their districts, far
less give the slightest information as to the state of cultiva-
tion, of population, description of people, their employ-
ment, trades, manufactures, stock, as cattle, ploughs, horses,
sheep, the improv ability, or otherwise, of the country.
The permanent settlement has not tended, in any degree,
to accelerate the improvement of the country, either in culti-
vation or in commerce ; but on the contrary, it must tend
to check both, inasmuch as it must take away from govern-
ment, if not the obligation, certainly the means, of making
any great or expensive improvements: leaving them no
prospect of advantage that would even prove a bare reim-
bursement for so doing, and throwing such task of ameliora-
tion
PERMANENT SETTLEMENT. 269
tion upon the short-sighted and careless India land-holder,
who will assuredly neglect it.
The permanent settlement has all these, and innumera-
ble other disadvantages, referable to the people of India
and the improvement of the country ; whilst, with respect
to the interests of the British nation, it must be attended
with every baneful, and not one beneficial effect. I may
conclude this part of the subject by referring the reader
for information to the opinion of Lord Teignmouth on
the subject, as expressed in his minute of the 8th December
1789.*
Let us, in conclusion, inquire, with reference to the per-
manent settlement of the Lower Provinces, admitting it to
be held as valid, how far any and what relief can be granted
by government, under that settlement, to the cultivating
ryots ? The permanent settlement was formed with a
condition, reserving to government the power of preserv-
ing the rights of the cultivators. " The Governor-General
" in Council will, whenever he may deem it proper, enact
" such regulations as he may think necessary for the pro-
" tection and welfare of the dependant talookdars, ryots,
" and other cultivators of the soil; and no zumeendar,
" independent talookdar, or other actual proprietor of land,
" shall be entitled, on this account, to make any objection
" to the discharge of the fixed assessment which they have
" agreed to pay."-)-
This is a very broad clause, and if fully acted upon,
government would doubtless be at liberty to introduce any
regulations which the government might deem necessary, to
effect
* See Fifth Report,
t Governor- General in Council, 1st May, 1793.
PRESENT SYSTEM.
effect this " protection of the cultivators of the soil." If
the zumeendars did not choose to comply with these regu-
lations, their tenures might be of course set aside ; for it was
on this condition that they were granted and accepted.
The right of the cultivator is possession of his field, at
the rate, perbeegah, at which it was assessed, AT OR PRIOR
to the permanent settlement. It never was contemplated
by the grantor, that the zumeendar should be at liberty
either to eject or to raise the rate of rent on the cultivator
ad libitum. Lord Cornwallis says : —
" Mr. Shore observes, that this interference (on the part
" of government in effecting an adjustment of the demands
" of the zumeendars upon the ryots) is inconsistent with-
" out proprietary right ; for it is saying to him that he
" shall not raise the rents of his estate, and that if the
" land is the zumeendars it will only be partially his pro-
" perty whilst we prescribe the quantum he is to collect, or
" the mode of adjustment between the parties. If Mr.
" Shore means, that after having declared the zumeendar
" proprietor of the soil, in order to be consistent, we have
" no right to prevent his imposing new abwabs, or taxes,
" on the lands in cultivation, I must differ with him in
" opinion ; unless we suppose the ryots to be absolute
" slaves of the zumeendars. Every beegah of land pos-
" sessed by them must have been cultivated under an ex-
" press, or implied agreement, that a certain sum should
" be paid for each beegah of produce and no more. Every
" abwab, or tax, imposed by the zumeendar, over and
" above that sum, is not only a breach of that agreement,
" but a direct violation of the established laws of the
" country. I do not hesitate to give it as my opinion, that
" the zumeendars, neither now nor ever, could possess a
" right
PERMANENT SETTLEMENT. 271
" right to impose new taxes, or abwabs, on the ryots ; and
" that government has an undoubted right to abolish any
66 such, and to establish such regulations as may prevent
" the practice of like abuse in future. Neither is the
" privilege which the ryots in many parts of Bengal enjoy,
" of holding possession of the spots of land they cultivate
" so long as they pay the revenue assessed upon them, by
" any means incompatible with the proprietary right of the
" zumeendars. Whoever cultivates the land, the zumeen-
" dar can receive no more than the established rent. To
" permit him to dispossess one cultivator, for the sole pur-
" pose of giving the land to another, would be vesting him
" with a power to commit a wanton act of oppression.
" Neither is prohibiting the landholder to impose new
" abwabs, or taxes, on the lands in cultivation, tantamount
" to saying to him that he shall not raise the rents of his
" estate, &c. No xumeendar claims a right to impose new
" taxes on the lands in cultivation, although it is obvious
" that they have clandestinely levied such. The rents of
" an estate can only be raised by inducing the ryots to
" cultivate the more valuable articles of produce, and to
" clear the extensive tracts of waste land which are to be
" found in almost every zurneendary in Bengal,"* &c. &c.
The above is a pretty full account of the conditions, re-
lative to the right of the cultivator, on which the proprietary
title of the zumeendars was granted by his lordship : from
which the power of government to protect the ryots in their
rights is sufficiently evident, at least by law. How different
the .fact is ! What a different situation the poor ryot is now
in, from that contemplated for him by the good, the bene-
volent, but in this case, shortsighted Cornwallis ! How
far it would be practicable, peremptorily to enforce this
right
* See Lord Cornwallis's Minute, 3d Feb. 1790.
PRESENT SYSTEM.
right of interference here reserved, is a point worthy of the
most serious consideration : but, to my humble compre-
hension, it does appear that his lordship's ideas of proprie-
tary right, and of restrictions to limit the exercise of such
right, are not a little confused.
Be that, however, as it may, it seems abundantly certain,
that the Marquess Cornwallis did never intend to convey,
by the permanent settlement, many powers now assumed by
the Bengal zumeendars, highly obnoxious, and no less op-
pressive to the people ; and it does, therefore, seem to be
the sacred duty of that government, to inquire into, and to
afford the people such relief and protection against such
usurped powers, as may be practicable.
The utmost extent of right of a zumeendar, as conferred
by Lord Cornwallis, when analyzed, is nothing more than
that of collecting the revenue from the ryots, at the estab-
lished rates, on the land then in cultivation. If he reclaim
waste land, he may not levy on it even what rates he chooses,
though he may let it to whom he pleases. The ryot by
established usage, for example, paid a rent equal to half
the produce. If the zumeendar can induce him to culti-
vate a valuable crop, by aid or otherwise, the zumeendar's
right to half gives him thus an additional profit. If he
dig tanks or wells, or throw up embankments, and thus
assist the cultivators to improve their lands, the returns will
be great ; the zumeendar's share will increase ; the govern-
ment demand is limited, and does not extend perhaps be-
yond a tenth or twentieth of the produce ; the difference
is the right of the zumeendar. But here, again, the
zumeendar's profit from increase of, or more valuable kind
of produce, is restricted to farms paying in kind. Where
the rent is a money-rent, the zumeendar has no immediate
interest
PERMANENT SETTLEMENT. 273
interest in the nature of the crop. This is all the right
which the permanent settlement appears to have conveyed
to the zumeendars : beyond this, they have absolutely no
right whatever. We call this proprietary right ; and so it
is, because it is a right proper to the individual, which he
may exercise or dispose of; but it is different from that of
an English proprietor of land, and ought not to be con-
founded with it. The application of the same technical
terms to. rights, interests, and immunities, which are similar,
but not the same, has thrown obscurity over this, and over
every subject that has been discussed relative to India.
Should the Bengal government be disposed to adopt
measures for extending to the cultivators in the perma-
nently-settled districts the benefits which that permanent
settlement contemplated for them, the means must be im-
mediately adopted. It is late, but not yet too late. These
means are, to institute one or more commissions in each of
the provinces of Bengal and Behar. These must be com-
posed of men of talent and undoubted qualifications for
that duty, in whatever line or branch of the Company^
service they may be found ; and they must be sought for
and obtained immediately, because there is no room for
delay : every day that the investigation is put off incurring
the loss of oral evidence, and other information, as yet to
be obtained from living witnesses. The several commis-
sions will be furnished with instructions and powers to call
for and collect evidence of all kinds, to shew what the rates
of land-rent, in different pergunnahs, zumeendaries, and
villages, were, at the period of the settlement which was
afterwards declared permanent (that is, between the years
1789 and 1793), and to ascertain in what mode these rates
were paid — whether in produce, as reaped, in any given
species of produce as in grain (rice, wheat, barley, the
T different
274 PRESENT SYSTEM.
different kinds of pulse, &c.), or in any specific kind of
grain, or in money, or in grain convertible into money at a
given quantity per rupee ; and, in short, every information
necessary to exhibit the payments, services, and immunities,
received and rendered by the cultivators to and from the
zumeendars, including pasturage, fisheries, wood and water,
fruit-trees, Sec. Connected with this indispensably will fall
to be ascertained the price of the grain and other produce
at that time, including even some species of manufactures,
as cloth of all kinds, which it is usual for zumeendars to
receive in lieu of money, at a valuation agreed upon at the
time between the parties ; as also the value of cattle, ghee
(the produce of the dairy), oil, &c. ; for without the general
prices of produce, the rents of the zumeendar, paid partly
in kind, cannot be estimated.
The sources whence this information is to be obtained
will be various. In many pergunnahs, the putwarees** ac-
counts may be forthcoming ; many of the cultivators of the
more respectable class, especially the remnants of the here-
ditary agricultural ryots, will be able to produce their books
and other written documents. Old ousted canoongoes,
putwarees, and public functionaries, will be found either
able to produce or to procure written evidence, and to give
oral testimony as to facts, which will either be sufficient
to convince, or to lead to other sources where information
may be obtained, to satisfy the commission in doubful cases :
at all events, to the extent of inducing the present owners
to produce conflicting testimony, in all cases in which relief
to the ryots may be contemplated to an extent unjust or
injurious to the owner, by means of which conflicting
evidence an approach to the truth may be attained.
There are also the records of the different collectorships,
and
PERMANENT SETTLEMENT. 275
and especially of the old suddur serishtah office, and of the
old revenue or dewannee department, all of which ought to
be examined by the commissions, assisted by an establish-
ment of expert natives conversant with the revenue records
and accounts to be employed for the purpose.
To guide the commissioners and to correct the erroneous
evidence, there is the general jumma of the pergunnah, of
the zumeendaree, of the village, to which the rents paid by
the ryots must necessarily have had some relation. In short,
there are yet extant the means of attaining the information
here pointed out : and there must necessarily be so, because
the period of thirty years is not sufficient to obliterate the
sources both of living testimony and documentary evidence,
which judicious investigation would be able still to bring to
bear upon a point of infinite interest, not only to govern-
ment, but to the whole body of the people, whose aid in
facilitating the investigation would accordingly be at com-
mand.
The information required is not of a rare or abstruse
nature, known only to the wise and the learned native. The
agricultural economy of a village is the constant and daily
subject of conversation and of discussion among all. All
are engaged in it, either as principals or as assistants ; and
it would be idle to suppose that so great a change in their
condition, as that of unlimited increase of rent exacted by
the zumeendar, should so soon be forgotten.
It would be difficult to enumerate the beneficial effects of
such an investigation, judiciously and ably conducted. The
first object, however, in view, was the relief of the culti-
vating ryots from the oppression of undue exactions and
disproportioned land rents ; and this object would unques-
T 2 tionably
PRESENT SYSTEM.
tionably be attained. As a reasonable consequence, we
might expect from the establishment of moderate, even
very low rates of rent, a great extension of cultivation ; for
the cultivation or waste of many a field must, in India as
elsewhere, depend on the rate of rent demanded for it.
The little theatre of each individual's exertions would be-
come enlarged, because the rent, now exacted from him for
one acre, would then give him two, which he is now able to
cultivate, but afraid to engage for : and here the zumeendar
would also derive advantage, and the aggregate wealth of
the country be augmented.
The general cultivation being thus increased and the
rents low, the cultivation of export produce may be imme-
diately extended : an object of the most vital importance
both to India and to England ; but more important, per-
haps, to England than even to India.
It is matter of infinite wonder 5 that a country like India,
producing with less labour than in any other quarter of the
world almost every thing in nature and in great abundance,
should at this moment be in a state in which it is incapable
of exporting a ton of its produce, either raw or manufac-
tured, except the single article of indigo, to any part of the
world, with a profit to the exporter ; though the cost of
conveyance may scarce exceed a shilling, and sometimes
not a sixpence, per hundred miles. Even to England, the
whole freight does not average more than four shillings and
sixpence per hundred-weight. At the time I am writing,
although the interest of money in Calcutta is lower than in
London, even less than three per cent.,* indicating thereby a
super-
* This low rate of interest, however, was not of long duration : for
several years the interest of money has been very high in Calcutta.
It is needless to add, that exportation has become still more profitless.
PERMANENT SETTLEMENT. 277
superabundance hitherto unknown, no man can invest ca-
pital in any kind in India produce, for exportation to any
part of the world, to return even a small profit.
Now it is sufficiently obvious, that unless India can be
brought to export to England more than she does, she
cannot increase her imports from England. It is thus that
the manufacturers of England are excluded from "one
" hundred millions of customers," as the free-trade parlia-
mentary petitioners of former days humbly set forth, and
not so much by the effects of restrictive laws, as is now made
manifest to them. I say, therefore, that England is no
less interested than India in promoting the agricultural
prosperity of her Asiatic dominions ; and that to create a
market for British manufactures in Asia, the very first step
to be taken is to create a surplus exportable produce there
to pay for them.
Not a forced exportation, such as took place in the article
of cotton a few years ago, which drained India, raised the
price there to more than double what it was ever known
before, and which has yet not subsided ; but a regular,
increased, and increasing supply, to meet the augmented
and augmenting foreign demand, and to enter the markets
of Europe and elsewhere, so as to compete not merely with
the produce of other countries, when those countries labour
under the extraordinary embarrassments of war or of
crooked policy, but in ordinary times, on ordinary occasions,
and under their wisest regulations.
To say that India is incapable of this, would be to sup-
pose that the most productive soil in the universe, abound-
ing with a population of free men, fond of agricultural
pursuits, is nevertheless incapable of being brought to yield
a produce
278 PRESENT SYSTEM.
a produce equal to that of those countries which are less
luxuriant, are thinly-peopled, or which depend for their cul-
tivation on careless and compulsory labour. But this
cannot be ; and we may therefore rest assured of the most
extensive capability of India.
But to avail ourselves of this capability, India must not
be left, as she has been, almost to nature ; for nature deals
not in exports. The local governments of India are deeply
responsible to their superiors at home, and to their coun-
try, for what they may do or omit in this respect. They
have every encouragement which the prevailing taste of
their countrymen for improvement can secure to them, and
they have both the power and the means, in India, to do
what certainly " eye hath not seen," but even what it is
not easy to conceive, for the mutual benefit of both countries.
Wise regulations, having for their object the encourage-
ment of the agricultural classes, as well, however, as the
security of the capitalist, whether native or European, who
may advance his funds, are the very first object. The
Indian cultivator is poor ; and to extend his cultivation he
must borrow, or take " advances,'1 to render his crop at a
price fixed on before it is reaped. The regulations of go-
vernment give the person whose money is advanced no
power over the crop ;* the temptation is therefore so great,
and
* Since the first edition was published, a " Regulation" has been
issued, which gives the person who supplies the advances for indigo
security on the crop ; and, subsequently, the government of Bengal
has passed a farther Regulation, permitting Europeans to hold lands,
by lease, in their own names. This may, by some, be considered a
concession to the clamour of those who have advocated the policy of
colonization. It must, however, be deemed an equitable measure ;
for we can hardly conceive a more irksome restriction, than that
which subjected Englishmen to the incapacity of holding, even by
PERMANENT SETTLEMENT. 279
and the opportunity so enticing, that were that class of
persons not the most virtuous of the people, there would be
no possibility of dealing with them at all ; and even with
all their honesty, it is only in indigo, now, where the
chance of high profit is so great, that any capitalist can
prudently venture to engage in the cultivation of exportable
produce. Sugar, at present, cannot be ventured upon,
because the certainty of loss, by advances, would do more
than balance the gain. But were it practicable, by an
equitable law, to diminish the risk in aiding the cultivator,
which the capitalist would then gladly incur, I have no
doubt,
lease, land in his own right, in a country conquered and kept by the
arms of England. Yet, when the point is fully looked into, though oc-
casional inconvenience, and even loss, may have been sustained by the
Planters, there is little doubt that the restriction has rather operated
favourably for them. It has saved them from the dead weight of a
capital sunk in acquiring a permanent right to land, which, in fact,
they permanently had, without such a sacrifice ; and which, as in the
West-Indies, must in the end have proved destructive to every effort
of industry, especially in a country where the interest of capital is so
high as it is in India.
Even before this Regulation existed, when there was nothing really
purchased except a few acres of land, on which the buildings of the
planter were erected, sufficient to contain the manufacturing imple-
ments and apparatus, indigo factories have been known to sell for
40,000 rupees for every hundred maunds of indigo they were capable
of producing; without one inch of cultivation land being bought, but
merely the good- will of the land of the surrounding cultivators. To
this, if fifteen years' purchase of the cultivation land were added, and
the common rate for land, at the rent of two rupees per beegah, it
will be seen that the capital required to set out with would be so
great, that, at the high rate of interest for money, and other charges,
to which those who have to borrow money in India are subjected,
scarcely any scale of profit would meet the outlay.
I should say, therefore, of this Regulation, that it is just, and right,
and equitable, but that it was hardly called for ; whilst, in many cases,
it will rather embarrass than benefit the European planter.
280 PRESENT SYSTEM.
doubt, that almost in spite of the protecting duties at home,
sugar to any extent might be exported with a profit. I
mention this point, and that particular article of produce,
merely as an illustration; but the idea of his Majesty's
government at home keeping his Eastern colonies fettered
and manacled by an unequal impost, is so exceedingly un-
just towards India, that it cannot be much longer enter-
tained. Singular, that the planter of the Mauritius, in the
very bosom of the Company's possessions, shall have the
same privileges as those of the West-Indies, as to reduced
duties on his sugar, which however are denied to the In-
dian peasant ! Is he not also a subject of the crown of
England ? Or is it only " Slave Sugar ;"" is it only be-
cause the sugar of this petty island is the produce of
the labour of slaves, as in the West-Indies, that it too
shall be favoured by protecting duties ? This, indeed, is
the reductio ad absurdum. But thus it is that England,
the nucleus of the freedom of the world, is nevertheless
truly holding out a premium for perpetuating slavery, paid
by the oppression of her people in India ! This, at least,
is not the misgovernment of " monopolizing merchants ;"
it is the act of the British parliament, the act of the British
nation.
We now come to the improvements in the interior of
the country which might be made. These consist of public
works, such as roads of communication, canals with the
same view, and for the additional purpose of irrigation.
There is nothing that tends so much and so rapidly to the
improvement of a country, as facility of communication.
By effecting this, you bring virtually, at least, the various
parts and provinces nearer to one another ; the whole be-
comes more compact, more vigorous ; the circulation, before
languid and sickly, now grows rapid and healthy. You
can
PERMANENT SETTLEMENT. 281
can exchange commodities in an hour, which before re-
quired a week. The expense will be a farthing ; it was
before a pound. Thus every thing is brought every where
at the cheapest possible rate, and may consequently be
exported with an advantage which at present cannot be
obtained.
Notwithstanding the innumerable water-tracks which
pervade the lower portions of the Bengal province, there
is no part of India where communication by means of good
roads or navigable canals is so much wanted. There are
few nullahs navigable even for the lightest craft, except in
the rains, and no roads ; so that it is only whilst the country
is inundated that any thing like free intercourse prevails
between one quarter and another. Every place is conse-
quently left almost entirely to its own resources for four-
fifths of the year, like a beleaguered city suffering every
privation, whilst a general superabundance reigns perhaps
throughout the country.
Then, again, canals for irrigation. In Bengal irrigation
is scarcely known ; yet there cannot be a doubt of the in-
calculable advantage to agriculture which it would pro-
duce. The soil of the lower parts of Bengal is not refreshed
in the moderate degree congenial to cultivation. It is
either inundated, or parched almost to absolute sterility,
like the effects of intoxication on the human frame : for
having been the more drunk it becomes the more dry.
And the soil is of that nature, that as soon as the moisture
is evaporated, which a few days after the waters subside
are sufficient to accomplish, the face of the earth becomes
so indurated, that it resembles a surface of rock inter-
sected by fissures, its miniature ravines, which no tender
plant can perforate. It requires no more to convince one
of
PRESENT SYSTEM.
of the advantage which the command of refreshing mois-
ture would give to the cultivator of such a soil. The more
elevated parts of the province of Bengal, and all the other
parts of the Company's dominions, are equally in want of
the means of easy irrigation. At the same time, it must be
confessed that the inhabitants stand no less in need of some
stimulus, to induce them to use the means now within the
scope of their exertion ; for the Bengalese most fully verify
the observation, that wherever nature has been found to do
most for man, there man has ever been found to do least for
himself.
The Bengal husbandman awaits the vernal showers be-
fore he can deposit the seed of some of his most valuable
crops. But the vernal showers are sometimes very scanty ;
sometimes they do not come at all, and often so late that
the periodical inundation finds his crop on foot, and levels
it to the ground. An artificial sprinkling of water, two or
three times repeated, would have secured his seed-time and
his harvest, and a certain, perhaps superabundant crop ; for
nature rejects not the aid of man, but delights in it, and
assuredly rewards his labour.
It is difficult to estimate with any precision the value of
irrigation in a tropical climate. Even in Spain, Italy, and
the southern parts of Europe, access to water for irrigation
raises the value of land to three, nay four times that which
the same land would fetch without water for irrigation. It
enables the husbandman to keep the ground constantly under
crop, without impoverishment or diminution of produce.
Whoever will take the trouble of pursuing Mr. Arthur
Young's Tour, will at once be satisfied of the importance
of the aid which government ought, and undoubtedly will
give, in facilitating this all-powerful process of the practice
of
PERMANENT SETTLEMENT.
of agriculture. I say the aid which government " ought
" to give," because in India, among the natives, there are
neither the energy to undertake, nor the means to accom-
plish improvements, on a scale so extensive as that con-
templated here.
If government should think fit to admit participation in
attempting such undertakings, it is not to be doubted that
the co-operation of individuals might be obtained among
the wealthy and enterprizing European population. In
our own country, many highly valuable public works have
been executed by private associations ; and there is at least
one advantage attending this mode of proceeding, which is
by no means unimportant ; the ultimate expense of the
work is exceedingly reduced, and the public may conse-
quently be accommodated with its use on proportionately
easy terms.
In all countries government pay more for work than in-
dividuals do ; and I believe India is no exception. Instead
of diligence and economy, neglect and peculation more
frequently prevail in the execution of government works
in all quarters of the world. The expense is increased be-
yond the most ample estimate ; delay and disappointment
necessarily follow, till the patrons and warmest supporters
of the work are disgusted. The consequence is, that no
man loves to be deceived, whether intentionally or other-
wise ; the most patriotic governments and individuals get
tired of proposing and supporting schemes, however valu-
able they may seem, which are nevertheless in the end so
likely to " let them in"" for a share of the well-merited
obloquy attached to the execution of them.
The Bengal government has lately appropriated a large
fund,
284 PRESENT SYSTEM.
fund, from the town-duties of the several cities and towns,
for the internal improvement of the adjacent country. But
until some better plan be devised, than has hitherto pre-
vailed in the Moufussil, for controlling the disbursement of
public improvement-funds, I will venture to say that the
amount, whatever it may be, will be spent to very little
purpose. Great virtue is required of those who have the
expenditure of such money. But virtue alone, even virtue,
will not do here. Science, and judgment, and practical
abilities are indispensable in those who have the direction
of permanent public works.
With every disposition to praise this premature benevo-
lence, I think government " have begun at the wrong end.11
Who can approve entirely of voting away money without
any specific object, without even having a competent body
qualified to direct the liberality of the state to the object in
view ?* The first thing to be done on an occasion of this
kind is to fix upon one or more individuals, men of science,
and possessed of that species of practical knowledge which
will enable them to appropriate the funds in the best possible
mode, for the substantial improvement of the agriculture
and commerce of the country. Such men ought to be em-
ployed, first in the business of investigation and inspection,
with the view of pointing out to government specific plans
of improvement. It would then be the time to vote funds
and to appropriate them ; and government would then have
the security of these men for their due application, as far as
able superintendence went, strengthened by the universal
feeling which every one possesses to promote the success of
his own plans.
This subject, however, is altogether of so great import-
tance,
* This order of government was rescinded by the Court of Direc-
tors.
PERMANENT SETTLEMENT. 285
ance, as it relates to the welfare both of India and Eng-
land, that to touch it in the casual manner in which I am
permitted here to do, is in fact, I fear, rather doing it an
injury.
286
THE JUDICIAL ADMINISTRATION.
CHAP. V.
On the Judicial Administration.
I HAVE endeavoured to shew, and I trust with success,
that the " constitution1' of India is purely Moohummudan ;
and although the Hindoo code has been recognized by " the
" laws and regulations" of the Governor-General in council,
yet the Moohummudan law is the only public written law
of India. It appears to follow, therefore, that if it was
not designed by us to abrogate the existing law, as successors
to the Moohummudan monarchy of India, or rather admi-
nistrators of it, the Moohummudan law is the only law
which the British government was legally authorized to
recognize.
The ashes of the Hindoo law have indeed been raked up
by the curiosity of individual research ; but they have
certainly not been found worthy of the pains bestowed on
their exhumation : and although the Hindoo law has found
a place in the laws and regulations of the English govern-
ment, in my judgment it may fairly be questioned whether
it be worthy of that distinction. From Mr. Halhed down-
wards, we may certainly be permitted to say that no one
has yet discovered any thing of value in that code : and the
only value, perhaps, of the research of the Hindoo lawyer is,
that of letting us know that there is really nothing valuable
to be found. This has its value ; and that I do not mean
to depreciate. But of the law, as expounded by them,
who can say any thing favourable ? far less can it be ad-
mitted to supersede the constitutional law of the Indian
empire,
THE JUDICIAL ADMINISTRATION. 287
empire, as promulgated and administered throughout India
for so many ages.
It would be, in my opinion, as profitable to search for the
laws of the Angles or more early Britons, and to revive
them as the laws of England, as it is now to search after
and to introduce the meagre fragments of the Hindoos as
the law of India.
Nothing but intrinsic excellence in the Hindoo code, or
its former universal and uniform administration throughout
India, could justify so great an innovation as its re-adoption.
The very reverse of this, however, is the fact. The Hin-
doo law, as a body of jurisprudence, has no intrinsic value ;
and instead of having been universally and uniformly ad-
ministered throughout India, what there is of it is different
in almost every soubah. Even the law of succession,
wherein uniformity in the same state is generally found,
whatever usages may in other matters be suffered to prevail
— even the Hindoo law of succession is found to differ essen-
tially in different districts. We find Mr. Colebrooke, the
translator of tracts on the law of inheritance, talking of
the " Bengal school11 and the " Benares school11 holding
different laws ; as if the question were one of taste or of
the fine arts.*
With respect to comparative merit, the superiority of the
Moohummudan over the Hindoo law, so far as the latter is
yet known, cannot be doubted. Some, indeed, suspect that
what
* The power to sell ancestral property, without the concurrence of
next heirs, is one of the points in dispute between the Benares and
the Bengal Hindoos ; — the former holding that it cannot be sold with-
out the concurrence of heirs: thus adjudging all real property to be
under entail. The Bengal jurists maintain the right of sale.
288 THE JUDICIAL ADMINISTRATION.
what there is of worth in the code of the Hindoo is taken
from the Moohummudan law ; but this is an unnecessary
conjecture, for the laws of the Jews were open to them,
whence the Moohummudans borrowed still more freely, as
well as from the code of the Romans ; the jurisprudence of
those ancient people being the common sources of the laws
of so many nations of the world.
A late writer on Indian history (Mr. Mill) enters into
the question of comparative merit of the two Indian judi-
cial systems apparently with considerable information,
though not without a tinge of severity. After treating
the Hindoo law with the utmost contempt, he adds, " from
66 the above delineation of these great outlines it will appear,
" that a much higher strain of intelligence runs through
" the whole of the Moohummudan law, than is to be found
" in the puerilities, and worse than puerilities of the (law
" of the) Hindoos."* And again : " this indicates a con-
" siderable refinement of thought, &c. far removed from
" the brutality which stains the code of the Hindoo."-)-
Farther : " there are some absurdities in the Moohum-
" mudan law, in the reasons assigned for rejecting the evi-
" dence of women in criminal cases ; { but there is nothing
" in it to compare with the many absurdities of the Hin-
" doo system, which make perjury, in certain cases, a
" virtue."
* Vol. I. page 639. t Ibid, page 640.
I Mr. Mill is here partly mistaken, and his error has been followed
by the author of a late work on the administration of justice in India,
Mr. Miller. It is only by the Moohummudan statute law (the severity
of punishments under which has occasioned the utmost strictness of
interpretation) that the evidence of women is rejected by lawyers,
generally, though not universally. The common law does not reject
the evidence of women : and by the common law, even capital punish-
ment may be inflicted for atrocious crimes — such as murder, robbery,
&c. The error here noticed is almost universal.
THE JUDICIAL ADMINISTRATION. 289
" virtue."* " The law of the Hindoos could not originate
" in any other than one of the weakest conditions of human
" intellect. The Moohummudan law is defective, indeed,
" as compared with any very high standard of any exist-
" ing system, with the Roman law for instance, or the law
" of England, and you will find its inferiority not so re-
" markable as those who are familiar with these systems
" (the Roman and English), and led by the sound of vulgar
" applause, are in the habit of believing."-)-
This is high praise bestowed by Mr. Mill on the Moo-
hummudan law, and ought assuredly to rescue it from
ever being again put upon its trial of comparison with the
" puerile code of the Hindoos."
Again ; with the intention of raising in estimation the
Moohummudan law to a level with the laws of the Romans
and English, speaking of the necessity of strict and accu-
rate definition, to secure rights by laws, he says, " in
" affording strict and accurate definitions of the rights of
" the individual, the three systems of law, the Roman,
" English, and Moohummudan, are not very far from
" being on a level."" J
Now, Mr. Mill has fallen far short of the truth here ;
for if there be any point in which the Moohummudan law
particularly excels, it is in its remarkable accuracy and
strictness of definition ; which, however, is not so percep-
tible in an English translation, because of the difference of
idiom, and because the English language is not so well
formed for strictness of definition as the Arabic, the struc-
ture of which is more perfect and better fitted for gram-
matical
* Vol. I. page 644. t Ibid, page 636. I Ibid, page 636.
290 THE JUDICIAL ADMINISTRATION.
grammatical and logical reasoning ; and in this, perhaps,
the chief excellence of that ancient language consists.
Had Mr. Mill read the Moohummudan law in the original,
this superiority would not have escaped him.
Nor would he have failed to see, that although many of
its laws are defective, perhaps worse than defective, yet, as
a body of jurisprudence, as a system of law, it has no
equal. I do not now speak of its intrinsic merit, or the
excellence of its political regulations, but of the singular
and systematic mode in which it has been digested, arranged,
and subjected to the government of rules and principles,
for the purpose of guiding its application in practice ; and
I am persuaded that, as a body of logical and analogical
reasoning, shewing on the one hand, the real similitude of
things, and on the other, the minute shades of distinction
which the human mind is capable of perceiving, in cases
apparently similar, yet different, it must leave certainly the
English law very far behind.
My opinion of the Moohummudan law may possibly be
biassed.* Be that as it may, the rank it holds as the basis
of the constitution, as indeed the written law of India,
raises
* Mr. Miller, in his work above-mentioned, has classed me among,
if not at the head of, the enthusiastic admirers of the Moohummudan
law. It will be nearer the sentiments I entertain on that point to say,
— that, as a basis of a code for India, I think the Moohummudan law
far preferable to any other ; and that I admire it as a system of juris-
prudence, which admits easily of modification, so as to be more fully
applicable to the state of society in India than any other law with
which I am acquainted. Moreover, I trust there is some ground for
such preference, seeing that the Moohummudan law has actually been
the national law of the country for many ages. My knowledge of the
Moohummudan law enables me to appreciate its qualities ; and to see
that it is free from many imperfections usually ascribed to it.
THE JUDICIAL ADMINISTRATION. 291
raiscs the value of that code to an extent that must be fully
admitted. An exposition of the Moohummudan law is a
desideratum of infinite importance ; and I shall be glad to
find that any thing I may be able to say here may induce
those who have the power, to adopt the measures necessary
for cultivating a knowledge of it, so truly indispensable both
to those who legislate for, and those who administer the
laws to, the people of India. Were it, indeed, of no other
use but as an exercise for the intellect, the study of the
Moohummudan law would be intrinsically valuable. I
will venture to say, that no one can study with attention a
good treatise on the Moohummudan law, without having
his reasoning faculties improved.
With respect to the English law, and its fitness to be
either made a part of or to supersede entirely the ancient
law of India, it is necessary for me to say something. In
Mr. Mill's estimation, the law of England has very much
suffered in comparison with the Moohummudan code. But
Mr. Mill is not the first that has expressed an unfavourable
opinion of the English law. It has often been censured by
Englishmen of the greatest wisdom and experience. What
encouragement, then, have we to transplant it into India ?
The English have, in fact, no regular code of law. A
multiplicity of statutes they have, indeed; but they are
unintelligible to many, most of them altered or partially
revoked, many altogether rescinded, so that an English
gentleman knows not where to look for law.* He is, there-
fore'
* Let those who advocate the introduction of English law into
India, look at the demolition it is undergoing at home. Are we to
take for India what the people of England are so eagerly rejecting?
At all events, let us see what is suffered to remain of English law, in
England, before we import it into India !
IT 2
THE JUDICIAL ADMINISTRATION.
fore, compelled on every occasion to refer to a practitioner ;
and this practitioner refers not to any standard authorized
by the constitutional legislature of England, but to a body
of decisions on particular cases, which have been passed
from time to time in the courts, by men, some of whom
were wise, and some perhaps not so " full of wisdom," but
whose said decisions have, in fact, now become the law of
England.
Such law being founded upon no general principles, but
piled up, as it were, upon particular cases as they arose,
must ever be uncertain, because there can be no two cases,
occurring at different periods, precisely similar in every
point of view : and, at best, it is but a crude mode of law-
making. It is a kind of ex post facto manufacture, which
must ever have been influenced, in some degree, by the
peculiar circumstances of the parties to the case on which
the decision was passed, as well as by the sentiments and
feelings of the times.
This mode of legislation is completely reversing the order
of things. The duty of a judge is to explain and to admi-
nister, not to make laws.
The English criminal law is by a Moohummudan lawyer
esteemed barbarous in the extreme. It certainly has ever
been found inadequate to the purpose for which it was de-
signed. It has failed to check crime; and only by the
permission of Providence has it succeeded in peopling the
wilds of America and New Holland. Its severity has be-
come latterly the means of rendering it in many cases a
dead letter. The feelings of the people are inimical to it ;
and the officers of the Crown have often failed, notwith-
standing
THE JUDICIAL ADMINISTRATION.
standing the clearest evidence, to get the constitutional
tribunals to convict under it.*
A Moohummudan lawyer would naturally ask, upon
what principle is it that the life of a human being should
be taken away for stealing the value of a few pieces of silver,
when the most notorious adulterer and seducer, the de-
stroyer, perhaps, not of the life, but certainly of the honour,
peace, and happiness, not only of the individual more im- &~j
mediately injured, but of whole families, is suffered to pass
unpunished by the law, — nay, to live openly in the sin of
adultery, in the face of all mankind ?
He would also ask, on what principle is the severity of
the law of forgery founded ? Why is a man to suffer death
for making an imitation of one thing which has no real value
(a scrawl or engraving upon a bit of worthless paper),
when he may imitate every thing else of value which the
same person possesses ? He may imitate even his best in-
vention, and utter it with the intention of defrauding the
inventor. If the inventor has obtained a protection for his
invention, the imitator is at most liable only to a fine. If
no protection has been obtained, the imitator has acted
legally, though he has defrauded the other perhaps of
thousands : but if he thus imitate and sell, that is, issue his
note for twenty shillings, he is hanged. This is, probably,
the mode of reasoning which a man, ignorant of the feel-
ings prevalent in our commercial country, would advance.
The Moohummudan lawyer will think farther. He will
refer to his own law, and there he will find that it is the
duty
* It will be recollected, that since the first edition of this work was
published, many important alterations have been introduced into the
law of England.
294
THE JUDICIAL ADMINISTRATION.
duty of every owner of property to adopt proper and
effectual means of a physical nature, sufficient (generally
speaking) to secure his property. If he have not done this,
its abstraction from him, though a misdemeanor, is not theft,
under the statute. Analogy would therefore immediately
suggest to a Moslem, that if an individual, or body of in-
dividuals, shall choose to create a property on a bit of worth-
less paper, and that that property shall be found from ex-
perience not to be under that degree of protection which is
required by law over all other property, but to be constantly
exposed as the easiest prey, as notes are, by being so easily
forged, he would immediately conclude that such property
is not sufficiently guarded by its owner, and consequently
is without the protection of the law.
Forgery, in its effects with reference to him whose name
is forged, is a wicked attempt to ruin his credit. This is
done every day in fifty different ways, and the law awards
damages only. With reference again to the person to
whom the forged paper is tendered, it is an attempt to de-
fraud him of his property wilfully, by giving him in lieu
of it that which has no value. I say wilfully, because the
act of giving him the true note of a bankrupt would be an
equal fraud and injury, quoad the person imposed upon.
A nefarious act certainly, but, essentially, not in any un-
common degree atrocious.
These are the elements of this great crime. It is pro-
secuted by the party whose credit is attacked, not by him
who is defrauded of his property ; and instead of damages,
his due, he procures the death of the defendant.*
Nor
* It is maintained that, in a commercial country like England,
paper currency must be protected. But those who issue paper, and
profit thereby, should be the first to afford such protection. In every
THE JUDICIAL ADMINISTRATION. 295
Nor could a Moslem lawyer admit (and all India will
agree with him), that the having more wives than one is a
crime meriting capital punishment : nor that it is felony to
go about on a high road, or to hunt deer, with a black face
(9th Geo. I. c. 22). Nor would he think it a felony with-
out benefit of clergy, for a soldier or mariner to wander
about the realm without a testimonial, or pass, from a justice
of the peace ; but yet it is so by 39th Eliz. c. 17. Nor
that it is criminal to ride or go about with arms. Nor would
he think it a felony to solemnize a marriage in any other
place than a church, except by licence from the archbishop
of Canterbury (26th Geo. II. c. 33). Nor that he was
liable to suffer death for having carnal connexion with a
female under ten years of age, whether with or without her
consent.
A Moohummudan lawyer, were he to sit down and com-
pare his own law with ours, would no doubt pay us home,
by developing all our legal deformities, as we have with
very great pains done the foibles of his law. Nor would
he estimate, perhaps, so highly as we do its excellencies.
Even its two great and pre-eminent towers, the habeas
corpus and the trial by jury, might not extract any uncom-
mon eulogium. He would approve of the former, because,
by his own law, every judge is not only empowered to in-
quire into the state of prisons, and into the case of all
prisoners, but he is strictly enjoined, above all things, to
visit the jails, and to enquire personally of every individual
the grounds of his confinement and nature of his case, and
to give him relief according to law. A most merciful law
it is too, compared with the English. I say he would ap-
prove
case of forgery, therefore, it should be left to the jury to say whether
sufficient precautions were used by those who issue the paper to pre-
vent forgery, to render the imitation difficult.
296 THE JUDICIAL ADMINISTRATION.
prove of the Habeas Corpus (if it did not indeed give his
wives the power of relieving themselves from the incarcera-
tion of his zunanah) ; but he would tell us that but for
this statute, of which we boast so much, we should be no
better than slaves, who might, at the nod of our master, be
imprisoned, to remain during his pleasure ; and that, after
all, it was no great matter to boast of, that we were not
slaves.
Of the trial by jury, which we so fondly cherish, the
Moohummudan lawyer might think differently from us. Its
advantages, though highly extolled, and certainly in Eng-
land very manifest, have often been questioned even in Eng-
land. In other countries it has not been so highly valued. It
was introduced into the French criminal code by Bonaparte ;
and if we credit the Edinburgh Review, it required the
introducer to apologize to the people for its introduction,
though the whole criminal code, and the mode of procedure
of the jury, are, in the estimation of those writers, far
superior to our own. Men of the lower orders in France
are not allowed to sit on juries.
By " the code destruction criminelle" of Bonaparte,
juries can only be formed from seven classes of persons, all
of the age of thirty and upwards.
1st. Members of electorate colleges.
2d. From the three hundred domiciliated persons who
pay the highest amount of taxes.
3d. Functionaries of the administrative order, nominated
by the emperor.
4th. From doctors or licentiates of the four faculties,
members of the Institute or of learned societies recognized
by government.
5th.
THE JUDICIAL ADMINISTRATION. 297
5th. Notaries.
6th. Bankers and merchants taking out a licence, of one
of the two highest classes.
7th. From among the agents (query deputies?) of the ad-
ministrative authorities, who have a salary of four thousand
francs.
On special application or recommendation of the minister
of justice, individuals, though not of the above orders,
" eminently qualified," may be put on the list of jurymen.*
From sixty summoned, thirty-six are chosen, and from
thirty-six the twelve are balloted who are to sit ; and the
accuser and accused, equally, each may challenge peremp-
torily. No questions asked ; but twelve of these thirty-six
must be taken. They are to decide : have you a clear con-
viction that the accussed is guilty of the matter charged
in the indictment ? The reviewers say of a jury : " Is a
" jury, in its best state, the best possible instrument of judi-
" cature ? We have often frankly acknowledged that our
" estimate of its utility is very far from raising it so high
" as a very great proportion of our countrymen hold it.11
Vol. xvii. p. 110.
The Mooftee, also, might perhaps find some difficulty
in comprehending the advantages of jury-trial, as it is
carried into effect in practice. If he were sure that he had
not offended against the law, he would prefer being tried
by judges who knew the law that must acquit him, and
could of their own knowledge tell that he had not trans-
gressed it. He would prefer this to the horrid uncertainty
of depending upon the chance verdict of ignorant men,
biassed perhaps by the eloquence of a pleader, more eager
to shew his powers of oratory than to elicit the truth, and
treating
* Edin. Rev.
THE JUDICIAL ADMINISTRATION.
treating (as the honourable compeers in the box are some-
times accustomed with us in England to treat, occasionally)
the opinions of the judges with "proper contempt."
The Moohummudan Mooftee would agree with the Chief
Justice of Bengal, in thinking " that in this country the
" people are totally disqualified for exercising the duty of
" a juror." The Mooftee would be surprised to be told
that the jury are " to judge of the law as well as of the
" fact;" and would naturally ask, how can a man judge
of the law who does not know the law ? And if juries are
to judge of the whole issue, not knowing the law, where is
the use of your laws ? Call your trial by jury, arbitration ;
or, he might add, if you choose, a punchayet (as our
Indian peasantry call their village-courts ; and from which
your trial by jury is perhaps descended, from times when
there was no, or very little, written law among you) ; but
it is absurd to talk of being tried by the laws of one's
country, and after all to have for your judges men who
know nothing of those laws, and will not be instructed
unless they please.*
These, would the Mooftee say, are some of the objections
I would submit ; but still, he would add, probably, if you
will assure me that you have never had innocent individuals
condemned, or guilty culprits acquitted, by the influence of
vulgar error or of popular clamour, I shall not urge the
point farther, but admit that I have been out-theoried.
You must not, however, commend this law for leaning to
the side of mercy , till you have first shewn that the acquittal
of a criminal is mercy. Remember that every instance of
such mercy is an allurement to the commission of crime. It
gives
* It is to be observed, that trial by jury in India, except in criminal
cases, has scarcely been tried.
THE JUDICIAL ADMINISTRATION. 299
gives the vicious the hope of one more chance of escape, and
perhaps casts the trembling balance, which before indicated
to him to refrain, I cannot think this mercy ; but rather
that mercy in a law consists in the certainty of its procuring
the punishment of the guilty, and the certainty of its ensur-
ing the acquittal of the innocent.
The punishment of every crime, by every law, is a
greater evil to the individual who commits the crime, than
the advantage that could arise to him from its commission.
Every person who is sane will balance consequences, and
choose that which is least irksome : therefore he will choose
to refrain from crime, rather than incur the certainty of
punishment. Consequently, as an absolute certainty of
punishment, which you may call cruelty if you please,
would put an end to all crime, and an absolute certainty of
acquittal would promote every species of transgression,
your mercy would be cruelty, and my cruelty mercy.
Upon the whole, the learned Moslem would add, permit
me to say, that although our law, having been framed for a
state of society now no more, is doubtless defective, it is
nevertheless not inferior to yours ; and farther (which is
of greater importance), it contains principles which will
admit of its improvement and extension, so as to become
applicable to the change of the times ; and which prin-
ciples, if judiciously applied, might, without destroy ing or
even injuring its original fabric, be made the basis of a code
that should hold a high place even in your own estimation :
a far more perfect code than those who know it not can be-
lieve. If you desire to legislate for this empire, forget not
this ! Do not despise the wisdom of our God and yours ;
of our prophet, of our holy men, of our forefathers, which
has been the guide of our actions here, and is the source
of our hopes hereafter, the standard by which our ideas,
our
300 THE JUDICIAL ADMINISTRATION.
our morals, and those of our fellow-subjects (though re-
ligious foes) have for ages of ages been formed, — the very
bond which unites society. If you take away this, we
shall no longer know in what relation we stand to one
another. A father will not know the propinquity of his
child, nor the child that of his father ; a husband that of
his wife, a wife that of her husband : a law which age has
rendered venerable, both to the believer and the unbeliever.
As you are humane, you will preserve and reverence it, for
its own sake and ours ; as you are wise, you will preserve
and improve it for your own.
You cannot change the law of any country for that of
any other, even for a better, without offering great violence
to the people : to the people of India above all others. The
following will illustrate this and the subject I am adverting
to. That it may suffer as little as possible by translation,
it shall be told as near as can be in the manner in which
a venerable and grave personage might be supposed to
narrate it
" We all, men of my age, I mean,1"1 said the venerable
Aabd-ool Waez, " remember when the English law was
" administered to us by the English judges of the King's
" Supreme Court : but, poor ignorant people, our fathers,
" not knowing the intention of those great judges, had
" never taught us to read English nor to understand Eng-
" lish law. When a man came to us to deliver an order
" to appear before the Supreme Court of Calcutta, many
" knew not how to act. The distance was great, and we
" had no means of defraying the expense of so long a
" journey. In the midst of this dilemma, we were per-
" haps seized, and some have been dragged to the great
" court of Calcutta, where they were told, that they were
" to be sent to prison for contempt of court.
" Respectable
THE JUDICIAL ADMINISTRATION. 301
" Respectable men have been carried to Calcutta, the
" distance of five hundred miles, on the affidavit of some
" miscreant, perhaps, the truth of which had not been in-
" quired into ; and there, removed from all their friends,
" in the land of strangers, ordered either to find bail or to
" go to prison, to the everlasting disgrace of their family.
" The alternative of bail was nugatory ; for removed from
" all who knew them, who would be their bail ? They
" were, therefore, obliged to go to prison till the sessions :
" perhaps for six months. They knew not whether they
" were to be made innocent or guilty ; for they were pro-
" bably not rich, to be able to employ attorneys and lawyers
" to tell their tale to the Lord Justey Saheb, who did not
" understand their language ; and although there were
" doubtless gentlemen in attendance to explain, yet every
" one knows how much the spirit of discourse vanishes in
" passing through the mouth of an interpreter : the mental
" communion, indeed, which exists between the speaker and
" hearer, in earnest and direct communication, being alto-
" gether lost, and cannot be interpreted.
" You will scarcely believe me," continued the old man,
" for you was not born till more favourable times, when I
" relate to you the following story of the great judge's
" court, and of the English law of Calcutta.* In the
" year 1192 of our era, Meer Moohummud Jaafur died at
" Patna, leaving considerable property but no children.
" His heirs, by the Moohummudan law (which was then
" administered by a kauzee and two mooftees under the
" Provincial Court of Patna), were his widow, who took
" her share, and his nephew, who took the residue. The
" distribution
* This is the famous Patna cause of 1777- The statement of it
given by Mill has lately been questioned by an anonymous writer ;
but Mill's account of it is substantially correct.
302 THE JUDICIAL ADMINISTRATION.
" distribution was made, by order of the Company's Court,
" according to our own law ; but the widow, instigated by
" base persons, produced a forged will and claimed upon it.
" The forgery was detected. She then absconded, carry-
" ing away with her the title-deeds belonging to the estate,
" and the female slaves, and went to live among a gang of
" fakeers in the neighbourhood, refusing to give up the
66 title-deeds and slaves. The nephew complained to the
66 Provincial Court that she had disgraced the family, by
" thus absconding, and prayed that she might be ordered
" to return, and also to give up the slaves and deeds be-
" longing to the estate. His prayer was granted ; and the
" kauzee issued his order to call upon the widow to con-
" form. She declined to do so, and watchmen were ordered
" to watch her : a species of constraint which the Moo-
" hummudan law and customs of the country authorize.
" She still refused, and at the end of six weeks the guard
66 was withdrawn.
" The widow, instigated as before mentioned, brought an
" action against the nephew and the kauzee and mooftees
« in the Supreme Court of Calcutta, on the ground of their
" proceedings, and she laid the damages at six lakhs of
" rupees. The nephew pleaded that he was not amenable
" to the King's court ; but the judges said that he was:
" how, I know not, as he had never been nearer Calcutta
«' than Monghyr (three hundred miles) in his life. They
" said, however, that he was a zumeendar, and that every
4C zumeendar is a servant of the Company. But to be
" servants of the Company, without receiving any wages,
" only to be dragged to Calcutta jail, was what we did not
u before know ; and we were all so greatly alarmed at this,
" that many of the most respectable zumeendars and talook-
" dars in Bahar petitioned the most excellent Governor
" Hastings
THE JUDICIAL ADMINISTRATION. '303
" Hastings (whom we all knew did not wish for such
" service from us) to protect them from this great court ;
" or if this protection could not be granted, entreating
" him to take their zumeendaries back, and to suffer them
" to depart in peace to another country.
" The kauzee and mooftees pleaded that they acted
" under the orders and authority of a competent court, and
" that a judge and his law officers, thus acting, could not
" be responsible in damages to those who might complain
" of his decrees. The great Lord Justey Saheb, however,
" would not hear of this, but declared them liable in
" damages ; and after entering minutely into the case, and
" holding voluminous proceedings, they sentenced those
" helpless becharrahs to pay three lakhs of rupees in da-
" mages, and nine thousand two hundred and eight rupees
" expenses.
" The defendants, especially the kauzee and the moof-
66 tee, had never seen so much money in their lives (for
" with us the law is not the road to riches), and were
" utterly unable to pay. They were therefore seized and
" dragged to Calcutta ; but the kauzee, who was an old
" man, who had been chief kauzee of the province for
" many years, was unable to endure so much vexation and
" dishonour, and he expired by the way. The rest were
" carried to Calcutta and lodged in the common jail, where
" they remained till they were released by the interference
" of the King and Parliament of England (whom God
<c preserve !) in 1781 ; who ordered a large sum of money
" to be given them to soothe them for their disgrace and
" sufferings, and to be not only reinstated in their offices,
" but to be raised to the office of Moohummudan coun-
" sellers to the court of Patna.
" The
304 THK JUDICIAL ADMINISTRATION.
" The Governor-General, the protector of the poor and
" the justifier of the just, did indeed order that those
" becharrahs (helpless persons), as they had acted under
" legal authority, and only in discharge of their duty,
" should be indemnified by government. But, at that
" time, as I have since heard, the Lord Justey Saheb said
" that the Governor himself was amenable to their court.
" Nay, I have been credibly informed, that the Governor
" and Council themselves were summoned to appear in the
" Supreme Court, in an action, to answer at the instance
" of Causseenaut Baboo: till at length, the wisdom of
" government made them set at nought the vain and pre-
" sumptuous pretension of this court, and to issue a pro-
" clamation, telling all their subjects in the provinces to
" do the same, unless those who were really servants of the
" Company, or who had agreed to answer in that court ;
" which relieved the whole of the provinces from the
" greatest consternation. And thus, by the blessing of
" God, we were released from the jaws of this monster,
" whose head we had only yet seen, whose size no man
" could fathom, but which threatened the inhabitants of
" these provinces with destruction, and the provinces them-
u selves with desolation."
" This," added my venerable friend, " was long before
" your time. Sir, and you may not believe my word ; but
" no doubt your historians, who leave nothing unrecorded,
" have not forgot so great an affair."
This case will shew, in a striking point of view, the ex-
treme misery to which the extension of the jurisdiction of
the King's courts would expose the natives of India. The
government of that day, in their letter to the Court of
Directors, dated 15th January, 1776, thus state the con-
duct
THE JUDICIAL ADMINISTRATION. 305
duct of the judges : " that Mr. Justice Lemaistre de-
" clared, in his address to the late grand jury, that a very
" erroneous opinion had been formed by the Governor-
" General and Council, distinguishing between the situa-
" tion of the East-India Company, as Dewan, from the
" common condition of a trading company. He (the
" justice) made no scruple in avowing a decided opinion,
" that no true distinction, in reason, in law, or justice,
" can, or ought to be made, between the East-India Com-
'.' pany as a trading company, and the East-India Com-
" pany as Dewan (or sovereign) of these provinces ; and
" that, in matters of revenue, the management of govern-
" ment was not exclusive, but subject to the jurisdiction of
" the King's Court ; to disobey the orders and mandatory
" process of which would be equally penal for the Company,
" or those acting for them, in matters of revenue, as in all
" other matters whatsoever ; and that the said court held
" out in terrorem over them the penalties of high treason, in
" refusing obedience to their court. That under pretext
" of requiring evidence, this court had demanded the produc-
" tion in court, of papers liable to contain the most secret
" acts of government. That the secretary to government
" had been served with a writ, called subpoena duces tecum :
" and attending the court without the papers, he was told
" that he had brought upon himself all the damages of
M the suit. That upon his representing the impossibility
" of his producing the records in court, having been for-
" bidden so to do by government, he was ordered to
" declare which of the members of Council vote/1 for the
" refusal of the records, and which (if any) for their pro-
" duction. He demurred, but was made to answer ; and
" every member of the Council who concurred in the
" refusal was declared liable to an action."
x In
306 THE JUDICIAL ADMINISTRATION.
In forwarding this statement to his Majesty's govern-
ment, the Court of Directors themselves most j ustly state :
" that the penal law of England was utterly repugnant to
" those laws and customs by which the people of India
" had been hitherto governed; that nevertheless Maha
" Rajah Nuncomar was indicted, tried, convicted, andex-
" ecuted, for an offence (forgery) which is not capital by the
" laws of India ; that the judges seem to lay it down as a
44 general principle, in their proceeding against this Rajah,
" that all the criminal law of England is in force in India
" upon all the inhabitants."
They ask : " shall all the species of felony created by
" the black-act be introduced ? Shall a man convicted for
" the first time of bigamy (which is allowed, nay, almost
" commanded by their law), be burnt in the hand if he
" can read, and hanged if he cannot ? These are only
" some of the consequences we hint at. If it were legal
" to try, convict, and execute Rajah Nuncomar for for-
" gery, on the statute of George II., it must, as they con-
" ceived, be equally legal to try, convict, and punish the
" Viceroy of Bengal, and all his court, for bigamy, under
" the statute of James I. !"
I have, I am aware, dwelt on this topic longer perhaps
than might be deemed necessary. The question of the
introduction of the English law into India, however, it must
be admitted, is one of great importance ; it cannot, there-
fore, be without its use to exhibit, even in this way, what
may be part of the consequences of such introduction, by
shewing what distress and universal dismay it did really
occasion, when, though erroneously, the zumeendars and
others were supposed to be amenable to the English law.
Since
THE JUDICIAL ADMINISTRATION. 307
Since the first edition of this work appeared, the state of
the king's courts in this country has attracted notice ; I will
therefore avail myself of this edition to submit a few remarks
on the subject. The extent of jurisdiction of the King's
Courts in India has been often made a question ; but the
recent occurrence at Bombay has brought it to a crisis. The
decision cannot be doubted. It is so natural for bodies,
as well as individuals, vested with power, to endeavour
to seek its extension, that when a collision, such as that in
question, arises, one is surprised that it was not foreseen,
and the limits of authority on both sides better defined.
The judges of Bombay claimed the right of bringing
before them, by habeas corpus, — " the prerogative writ," as
it was called, — the body of any person whomsoever, within
the limits, not of the ordinary jurisdiction of the King's
Court, but within the limits of the Company's territory of
Bombay. They insisted that the jurisdiction of their Court,
as to this " the prerogative writ," was more extensive than
in cases of ordinary process of the court, and subject to no
limits, but those of the territory over which the government
of Bombay, and the King's Court, as they alleged, ruled ;
and that all those who resided within that territory were
bound to obey the writ of the king.
Sir John Malcolm, the Governor in Council, demurred,
and would not allow that such an extended interpretation
could, fairly, be given to the charter of the court. At all
events, he contended that their holding the natives of the
provinces amenable to their court, would occasion such a com-
motion as would endanger the tranquillity of the country,
and prove ruinous to the stability of our eastern empire. He
would, therefore, beg of the Court to desist from enforcing
their orders, in the mean time, till a reference should be
x 2 made
308 THE JUDICIAL ADMINISTRATION.
made to the superiors of both parties in England : if not,
he should be compelled, however reluctantly, to order re-
sistance — a spectacle highly unbecoming, and no less
injurious to the interests of the nation.
Death deprived the bench of the senior judge before he
had an opportunity of expressing his sentiments publicly
on the question ; and the second judge also died, but not
before he had declared, in the strongest language, for the
jurisdiction claimed by the Court. The ultimate proceed-
ings were left in the hands of the third judge, Sir J. P.
Grant.
This judge took occasion to express his opinions in very
strong and decided terms ; and as the government would
not yield to him, and, as he said, he could not yield to
them, he closed the court entirely, till instructions should
be received from England ; alleging, that being opposed
by force which he could not resist, his court was no longer
in possession of independence ; that he did not know what
might next be done, and that he, therefore, thought it
better to shut up the court altogether.
An act of parliament explanatory of the jurisdiction of
the Supreme Courts in India, defining their powers in the
case of natives, will doubtless be obtained on the occurrence
of the second collision between those courts and the local
government being known. In the mean time, Sir John
MalcolnVs conduct has been approved in England, and the
Advocate-general, in concurrence with whom the measures
of Sir John Malcolm were taken, has been appointed judge,
and promoted to the situation of chief justice of Bombay,
to the supersession of Sir J. P. Grant : from all which we
may conclude, that it is by no means the intention of the
British
THE JUDICIAL ADMINISTRATION. 309
British government that their native Indian subjects should
be amenable to a law of which they are utterly ignorant,
and to a jurisdiction which, in Bengal, they could not reach
the seat of, without a journey of many months.
By those who have formed very high ideas of the supe-
rior excellence of the English law and of his Majesty's
courts, as possessing, more than all other tribunals, an apt-
ness for the due, speedy, and impartial distribution of
justice, we can easily conceive, that any thing which cir-
cumscribes the jurisdiction of the Supreme Courts in India,
may be deemed an evil of the first magnitude. But that
jurisdiction is unquestionably limited, both by space, and
by classification of the individuals who are, and who are
not, amenable to it ; and to me it appears no less extraor-
dinary in a judge of Bombay claiming jurisdiction over
natives of India, beyond the local jurisdiction of his court
as fixed by act of parliament, and not alleged to be answer-
able to it personally, than it would be in a judge of the
Court of King's Bench to bewail his want of power beyond
the Tweed. The Provincial Courts in India are as much
recognized by the British legislature as the King's Courts
are. They are distinct, the system admitting of no amal-
gamation : there is no connexion between them ; so that, as
far as the reason of the thing goes, I see not why the courts
of Suddur Adawlut might not, with as much right, claim
jurisdiction over the king's courts, as the king's courts
claim interference within the jurisdiction of the Moufussil
courts.
But it is amazing, that the proceedings of the Calcutta
judges of 1777, and the sense of the English govern-
ment and legislature of that day, did not convince the
judges of Bombay that they would not be supported. The
very
310 THE JUDICIAL ADMINISTRATION.
very question of jurisdiction in writs of habeas corpus
was then agitated ; and it was declared, by act of parlia-
ment, that natives, beyond the local limits of Calcutta,
merely as natives of India, or even as zumeendars, were not
liable to the jurisdiction of the king's courts. In the
" Patna cause," the English provincial judges, against
whom damages were awarded by the King's Court of Cal-
cutta, appealed to the King in council ; and the decision of
the Calcutta judges against them was reversed. In the
same cause, the natives, against whom damages to the
amount of three lakhs of rupees were also awarded, by
some oversight as to time, lost their right of appeal ; but
by a special act of the British Parliament, their privilege of
appeal was re-established, and the East-India Company^
government was directed, by the same act, to grant security
on behalf of those natives for the damages awarded, for the
very purpose of having the judgment of the court tried on
appeal ; and of course, like the other, reversed. The
Bengal government, in consequence, granted security to the
extent of five lakhs of rupees : a proof that an appeal was
alone wanted to have the judgment of the King^s Court
against the natives also reversed, as it had been against the
European functionaries of the same court, both being alike
amenable, or not amenable, for their conduct, as judges and
officers of an established court. Nay, one of the native de-
fendants, not a member of the Patna court, but the nephew
of the deceased native, whose property was the subject of
dispute, was included in the act, and in the security ; and
as his defence was, that he was not amenable to the juris-
diction of the King^s Court, holding no situation under
government, as far as he was concerned, the question was
one of simple jurisdiction. It will probably be thought,
therefore, that the very fact of an act of parliament directing
the East-India Company^ government to grant security for
the
THE JUDICIAL ADMINISTRATION.
the damages awarded against those natives, ordering their
enlargement at the same time, is so clear an indication of
the opinion of the British parliament being against the
king's judges, then, that no judge, aware of the fact, ought
again to have hazarded a collision with government, on the
same or similar grounds.
It would be exceedingly difficult to conceive a power to
exist in any human tribunal, which might be attended with
more iniquitous consequences than that claimed by his
Majesty's courts of Bombay. The right of decimating, at
pleasure, the whole of the inhabitants of India, would, in
its effect, be less grievous than this ; because human nature
could not be brought to exercise it. But the power of
dragging those helpless people from one end of the country
to another, and there placing them at the mercy of needy
and rapacious practitioners of the law (for, be it remem-
bered, the honest and honourable portion of that body
would not be engaged in such practices), would be such a
monstrous violation of humanity, that, as there is no possi-
bility of such power being accorded by Britons, it is need-
less farther to exclaim against what has taken place. The
natives of India may rest assured, that they are in no danger
of having the bodies of their wives, or their daughters, or
their wards, exposed to the indignity of being lawfully
gazed at by the bar and the bench of his Majesty's courts
of justice.
But in what way is relief proposed to be given to those
who might be brought up by this prerogative writ ? Is it
by English law ? This cannot be, because natives are
amenable only to their own law, Moohummudan or Hindoo;
and these laws, surely, the king's judges do not pretend to
understand better than the judges of the provinces. But
if
THE JUDICIAL ADMINISTRATION.
if they did, as there is nothing in the Hindoo law or Moo-
hummudan law, which authorizes the issuing, by a king's
judge, of a writ of habeas corpus, we should have one
law for compelling appearance, and another for deciding
the question at issue. I cannot, therefore, see the utility of
the English law in this, more than in other cases, as a code
for the natives of India.*
Whether, therefore, we view the English law with refe-
rence to its intrinsic worth, or to its fitness for the people
of India, forming our opinion of it from the experience the
unfortunate inhabitants of these provinces had of it during
the short, but eventful, period they were cruelly held
amenable to it, we can only come to one rational conclusion ;
and that is, that its introduction into India would be
equally iniquitous and impolitic ; that, however suitable it
may be, in an enlightened country, among people who have
made it, and who have been formed by it, administered by
judges, certainly as upright and independent as our India
judges are, but still acting under the eye of a thinking and
a searching public, yet it requires no great stretch of
thought to be convinced, that where none of these circum-
stances and correctives exist, the administration of it might
be very pernicious.
Speaking of the reformation of the courts of justice of
Bengal, the author of " Plans for the Government of India"
says : " The hints of Lord Clive discover to us, that how-
" ever simple the principles of natural justice may be, and
" however
* Since the above was written, it has been decided by the unani-
mous opinion of the law authorities in England, that the Bombay
judges exceeded their power, and that his Majesty's courts have no
jurisdiction over the natives of India beyond the local limits of the
courts.
THE JUDICIAL ADMINISTRATION. 313
" however perfectly it may have been copied in the laws of
" England, yet it was impracticable to introduce those
" laws as the measure of right and wrong in Hindoostan.
" The laws of that country, as well as the courts of justice,
" proceed from a government perfectly opposite in its spirit
" to that of England ; and the application of them had
" become familiar to the people through customs not less
" dissimilar to ours. Time has shewn us, that we may im-
" prove, but cannot alter the India jurisprudence. Though
" the laws of Rome furnished a fine system of jurisprudence
" to our ancestors, they preferred their own common law
" to this model ; and yet the one had sprung from the re-
" fined maxims of the Stoics, and the other from the mili-
" tary establishments of the Goths."* And again : " The
" experiments which have been made to engraft the laws
" and practice of England upon the jurisdiction of India,
" have proved to us that the most laudable efforts we have
" been able to make have not answered the beneficial ends
" intended."f " The conclusion is, that we must go on
" gradually to improve the courts of justice known in that
"• country, till time and habit shall give them such a degree
" of perfection as the prejudices and manners of the people
" admit."}
Yet, have we heard of judges of his Majesty's court of
Calcutta who have spoken with unqualified opinion of the
great advantage which the introduction of the English law
would prove to India ; and I have been informed that some
of them have gone the length of recommmending, in writing
to the government, the introduction of the English law into
India. But when we consider the education of these men,
we ought not to be altogether surprised at their partiality.
Their intimate knowledge of the law, as well as of its
practice,
* Vol. I. page 70. t Ibid, page 404. J Ibid, page 406.
314 THE JUDICIAL ADMINISTRATION.
practice, makes them insensible of the intricacies of its
ways ; or they may believe even its defects have their re-
deeming qualities, though they are doubtless destructive in
experience to those to whom they are less familiar. There
is, moreover, at present, a perfect anarchy of law (if I may
so express myself) in India ; which, to a systematic lawyer,
must appear the worst of all evils.
I have heard the same doctrine broached by individuals
of the Company 's service. But, in justice to the service, I
must say, that I never knew such a sentiment entertained
by any one whose knowledge of the people, or of either
law, rendered his opinion valuable; and should such an
opinion be hazarded in England by any one, who from
having been in India, or even having held a judicial situ-
ation there, may be thought qualified to judge, let me tell
the reader that there have been, and still may be, judges in
India, who understand but little of any law, and who have
probably never taken the trouble to think on this subject.
That a knowledge of the law, or of any law, is not a quali-
fication always found in an English India judge, must be
allowed ; the Indian government are indeed constrained to
place men in judicial situations who have no previously
acquired knowledge of the law. Mr. James Stuart, lately
a member of the Bengal government, on this point observes:
" The courts have no fixed principles of jurisprudence to
" direct their investigations and govern their decisions ;
" and the judges are not only destitute of legal knowledge,
" but, from circumstances beyond control, cannot be se-
" lected for discretion and knowledge of business.1'*
...
Lord Clive, in his celebrated plan for the government of
India, declared " that the attempt to introduce the English
" laws
* Minute on Judicial System of India, page 12.
THE JUDICIAL ADMINISTRATION. 315
" laws throughout our possessions in India, would be ab-
" surd and impracticable/1*
The question then is, what law ought to be introduced ?
I answer, at once, the Moohummudan law, modified so as
to suit the changes of the times and the mixed population
of the country ; and my opinion is corroborated by many :
among others, the author of the sensible work last quoted,
Plans for India. " First,1' says he, 6< it is proposed that
" the Moohummudan law shall, in general, be held the rule
" of conduct for all authorized native courts."f
The Moohummudan law is, I have said, that which
ought to prevail. It is the law which has prevailed through-
out India for seven or eight hundred years ; the law of the
government to which we succeeded ; the law which, in one
instance, at least, we became bound to administer, by the
acceptance of the solemn grant which gave us the country
from the fallen emperor, whom we now chuse to represent.];
I do not say, however, that the Moohummudan law should
be introduced blindly, with its obvious defects. Take that
law, properly understood, adopt it as far as can be done,
revise it, improve it, adhering to it in every case where
practicable ; and I venture to say, we shall find that there
are few points in their code, where justice and sound sense
have not been advocated, by eminent jurists among them-
selves :
* Plans, page 67. t Ibid, page 414.
J Mr. Miller quotes the opinion of some individuals, to shew " that
" the Moohummudan law is unknown to the body of the people."
But this may be said of the English law in England. Yet we may
ask, are those in India, who are ignorant of Moohummudan law, ac-
quainted with any other law ? Do the Hindoos know the Hindoo law?
Taken as a body, the same thing must be said of them; they are
utterly ignorant of the Hindoo law.
316 THE JUDICIAL ADMINISTRATION.
selves : and being so, the sentiments of such men may be,
agreeably to their own principles of law, lawfully adopted
by us ; and being thus declared to be the law, they must
ever after be followed as declared law. This is a principle
of the Moohummudan law which cannot be disputed, and
it is one of the highest value to us, because it authorizes
reform : and which reform, when once made by supreme
authority, will, and must, be recognized as law by every
native lawyer.
If, as I have said elsewhere, government abandon the
laws which for ages prevailed, which of necessity have
greatly influenced the habits of the people, and which the
British legislature has in fact guaranteed to them, for laws
and regulations of its own, however good and equitable as
we may think, we can hardly expect the people to go along
with us. We must be prepared for opposition, in the
hearts at least, not only of our subjects, but of our own
native law officers. And, at best, it is but a rude way of
repairing a fabric, to neglect the symmetry of the ancient
building, or to demolish it. How much more masterly,
how much more becoming so great a government, how much
more beneficial, effectual, to carry with it the minds of its
subjects and the strenuous efforts of its own public officers,
by engrafting whatever may be approved of our own more
enlarged system of justice on the ancient stock of their
venerated laws ! a measure equally desirable and practi-
cable ; for it does not admit of doubt, that there is no point
of importance to be met with in the Moohummudan code,
on which sound sense and reason have not had their re-
spectable and (by themselves) respected advocates ; and if
government would but thus proceed, they would unques-
tionably get the native learning, both of the dead and of
the living, to co-operate with them in the formation of a
system
THE JUDICIAL ADMINISTRATION. 317
system of jurisprudence, which should not only prove the
greatest blessing they could bestow on the people, but be a
lasting monument of the wisdom, and not less so of that
rarest but greatest of all qualities of a government, that of
being able to rule its subjects by means of their own pre-
judices and affections.
It has been said by a great man, that " there is some-
" thing else than the mere alternative of absolute destruc-
ce tion or unreformed existence ;" and " that a true poli-
" tician always considers how he shall make the most of
" existing materials. A disposition to preserve, and an
" ability to improve, taken together, would be my standard
" of a statesman."*
All innovations introduced into the laws of India, in any
other way, must tend, in their very lowest degree of incon-
venience, to set at variance the European judges and their
native advisers ; and thus obstruct, instead of advancing,
the public service, create endless references, produce partial
or equivocal answers from the native lawyers, and, in the
end, mutual disregard.
The introduction of a code of laws, such as are here
alluded to, would unquestionably be the greatest blessing
that could be conferred on the people of India. It is indis-
pensable in my estimation. If we desire to elevate them
one step in moral improvement, it is the fulcrum on which
they must be raised.
On this point I find the following passage in Mr. Tucker's
valuable work, which I think so much to the purpose, that
I will avail myself of the opportunity afforded by this
edition
* Burke.
318 THE JUDICIAL ADMINISTRATION.
edition of introducing it. " "Will it be contended then,"
says Mr. Tucker, " that we ought not to have written laws?
" that we ought not to have courts of justice to administer
" and enforce those laws ? or that the people of England
" are so ignorant of general principles, have made so slight
" advances in knowledge and the science of legislation, as
" to be incapable of improving the institutions and juris-
" prudence of India, in which revenue, religion, and law
" all take their places together? Simple, suitable, and
" sufficient as these institutions are represented to be, they
" are not all alike entitled to our admiration and sup-
" port ; and although they ought not, in any case, to be
" hastily subverted, they must be accommodated to the
" altered condition of the people and the peculiar situation
" of their rulers ; and it should be the study of the govern-
" ment, as it unquestionably is its duty, to give to its
" native subjects, not merely the most perfect institutions
" which may be compatible with the existing state of
66 society among them, but to model those institutions in
" such a manner, that they may operate towards improving
" the moral, intellectual, and social condition of the people
" of India.11 p. 162.
There is no doubt that the British government ought to
give a written law to their Indian empire ; and there is as
little doubt, that the task might be, without great difficulty,
accomplished ; but only by those who have attained a com-
plete knowledge of the law at present existing, can that task
be in the happiest manner performed. On this subject the
able writer, Mr. Miller, to whom I have before referred,
has expressed himself very strongly ; and, in my opinion,
with great judgment. " No where," says this author, " do
" such urgent motives exist for presenting the law in a
" clear and compact form as in India ; and no where do
" fewer
THE JUDICIAL ADMINISTRATION. 319
" fewer difficulties obstruct the attainment of so desirable
" an object." — " The dispensation of justice would then
" be less laborious to the judges, and access to it more
" easy to the people" " It is a conviction, that a careful
" consolidation of the Hindoo, Moohummudan, and Eng-
" lish laws, would secure most of the benefits here pointed
" out," &c " No price, which could be paid for a com-
" plete and accurate digest of the law could be regarded
" as excessive. It would put a stop to that perpetual,
" partial, petty legislation now going on, would stop tw<r
" thirds of that voluminous, vexatious correspondence now
" carried on between the Directors and their officers abroad,
t( and encourage them to extend the same thorough revi-
" sion to other parts of their administration'" " That the
" attempt at a consolidation of the Moohummudan, Hindoo,
" and English civil and criminal laws, now in force in
" India, is neither impracticable nor dangerous, what has
66 already taken place at Ceylon abundantly testifies."
This is an allusion to the orders of his Majesty's govern-
ment in 1811, who, at the suggestion of Sir A. Johnston,
directed that the natives of the island of Ceylon should be
governed, " as nearly as circumstances will admit, according
" to their ancient customs ; and that the Chief Justice do
" prepare, for their use, a short and simple code of laws,
" founded upon those customs, and divested of all technical
" language."
I do not mean to say that the task here alluded to would
be so easily performed for India as for Ceylon ; or that a
chief justice would be the proper person to perform it.
But, as Mr. Miller justly observes, if it would be more dif-
ficult, the Company possess more than the comparatively
adequate means of having it performed.
Be
320 THE JUDICIAL ADMINISTRATION.
Be the system, however, what it may, the law must
be thoroughly understood by the judges; for, without
this, vain will be all our efforts. The purity of its admi-
nistration depends on this. At present, as Mr. Stuart says,
they have no fixed law ; the judges are ignorant ; and he
might have added, we profess to administer the Moohum-
mudan and Hindoo codes through our native lawyers, whom
we can neither trust for their knowledge or their integrity.
Surely this system will not be continued.
We strive to moralize the people : but, let me ask, is it
possible to conceive a more prolific source of depravity in
any country, than that which is laid open by the bare
chance, the bare possibility of success, in corrupting the
courts of justice?
How vain is it for those good men who spend their lives,
and build their hopes, through immortality, on their exer-
tions to inculcate the principles of morality into the minds
of the Indians, to hope for success, when their pupils, by
looking around them, see that morality itself has no real
existence, that even the highest and the most sacred are
yet the most demoralizing of our institutions, and that the
shrine of justice herself is to be approached by the hand of
corruption. We cannot expect the natives to distinguish
accurately between those members of our courts who may
be corrupted, and those who may not. They do not inquire,
probably ; and, to say the truth, it is not much worth their
while to do so. The effect to them is the same, whether the
English judge be pure or not, or whether he partake of the
plunder of his corrupt aamla. The general impression is
that which is most to be thought of; and that is, that in
our courts there is enormous expense, enormous delay ; that
every thing else is uncertain, and that there is nothing more
terrific
THE JUDICIAL ADMINISTRATION.
321
terrific to an honest native, under the sun, than our courts
of law; excepting perhaps the Supreme Court of his Ma-
jesty in Calcutta, wherein they say suits are not unfre-
quently ended only with the means of one or other of the
parties to carry them on.*
If
* I observe that Sir E. H. East, late Chief Justice in Bengal, in
his evidence before the Lords' Committee in 1830, states his belief,
" that the natives of India are of opinion, that being placed under the
" jurisdiction of the Supreme Court (King's Court) would be advan-
" tageous to them." Quest. No. 1314. And, in Appendix No. 3 to
his evidence, that judge has thus expressed himself: "I have been
" informed by persons of intelligence, that the Hindoos of the upper
" provinces had lately expected the extension of the English mode
" of administering their law, as it prevails in Calcutta, to all parts of
" Hindostan, and were much disappointed that it did not take place/'
Not, however, that Sir E. East proposed to introduce English law en-
tirely. He would leave to the Hindoos their own laws of "title, in-
" heritance, succession, marriage, adoption, caste ;" but he would
introduce " the English common and statute law of evidence, of con-
" tracts, of trespasses, costs and damages, together with the substance,
" or real sense, of all manner of pleadings, stripped of their techni-
" cality; and also of all criminal matters, together with the substance
" of pleadings therein ; with such necessary exceptions to local cha-
" racter, in respect to the English criminal code, as the judges of the
" Moufussil courts might deem inapplicable to this people and to the
" institutions of the country."
Sir E. East was a very popular judge, and was, I believe, much and
justly esteemed by the natives of Calcutta; beyond which small circle,
however, his personal acquaintance with the natives' feeling could
hardly have extended : and as the sentiments expressed by Sir E. East
are so different from those which we in India, not connected either
with the King's or Company's courts, are accustomed to hear from
the natives, [ much fear that Sir Edward has not made sufficient allow-
ance for the difficulty which a native would labour under in expressing
sentiments unfavourable to the extension of courts of justice as admi-
nistered by the esteemed judge, who had done him the honour of con-
descending to ask his- opinion. The Hindoos are a polite people.
Y
THE JUDICIAL ADMINISTRATION.
If we would impress on the minds of the natives of India
the precepts of morality, it must be exhibited to them prac-
tically,-not only by ourselves, but by everyone holding
important or confidential situations under us They must
be shewn that we are not only willing, but able, to detect
as well as to discard the wicked.
The manners of the people of India are extremely arti-
ficial. There is no openness and plainness of dealing among
them : they are always, as it were, acting, even in their
common intercourse with one another. Truth, therefore,
has not that value among them, which it is allowed to
possess among a people who practise a plainer and more
undisguised intercourse. Thus the people of India scruple
not to lay aside what they do not much esteem ; and, along
with it, every regard to justice and integrity. They are,
therefore (generally speaking, I mean, for doubtless there
are exceptions), not in their present state to be safely
trusted with the exercise of power, without a very efficient
control ; and certainly not with power under the cloak of
laws, which at present they must think mysterious to us,
seeing that they rarely meet with any judge who possesses
a competent knowledge of them.
I have
How could a native of India tell a chief justice of Bengal that they
did not desire him to administer justice to them ?
It is apparently more the English mode of procedure, the English
mode of " administration" of law, than the law itself, which is recom-
mended by Sir E. East to be observed in India. Now, to my mind,
it is the form and method of procedure and administration which is
so objectionable, not only in India but in England. The law of Eng-
land, and indeed of every civilized country, is essentially just and
equitable : it is the mode of administering it, and the quirks and quib-
bles which have been made to rise out of it, that have been so much
deprecated even in England. Let us not have this for India.
THE JUDICIAL ADMINISTRATION. 323
I have already submitted a few remarks on the ques-
tion, as to how far the natives may be employed in situa-
tions of trust, with a reasonable hope of integrity of
conduct. Sir W. Jones informs us, that his experience jus-
tifies him in declaring that he could not implicitly rely on
the decision of native lawyers, if they had the remotest
reason for misleading the court. If Sir W. Jones came to
this conclusion, I can conscientiously say, from much inter-
course with natives who have made the law their study,
that I have never met with a more respectable class of
natives than they are. If not, then, and, if ever they are
not trustworthy, according to Sir W. Jones's testimony, I
at least know not where to look for honest natives. We
fancy that by high salaries we can bribe the natives of
India to be honest. But the revenue of the empire would
not suffer for this, since we see every day that neither
extent of trust, nor of emolument, has any other effect than
to extend the sphere of corruption around them. Till
their moral character, as a nation, shall be raised, we shall
look in vain for integrity ; and until that has been accom-
plished, we must be content to employ them under vigilant
control. They are misguided children in morals, and vigi-
lant and severe discipline are the only means, humanly
speaking, by which a reformation can be expected. To
discourage vice, one would not furnish the means of being
more vicious.
Again ; it is said we are instructing the natives in Eu-
ropean science ; and knowledge is power. You must pro-
vide a safe method of employing this power, or it will be
dangerously applied. True. But let those who give them
this power, provide also for them that which, we know, will
regulate such power. The rudder ought to be shipped
before the sails are bent, and the anchor on board. Let
Y 2 their
THE JUDICIAL ADMINISTRATION.
their hearts be instructed as well as their heads : it is in
this way alone that we can add to their happiness as a
nation. We can then, with confidence, employ them*
They will then not shrink, as they now do, from being
ruled by one another.
To instruct the judicial servants of the Company in the
Moohummudan law, has been an object most anxiously
desired by the greatest men who have ever governed India,
and by many illustrious characters in inferior stations.
Their motive for this is so apparent, that it requires no
illustration, to those who know that, though all profess to
administer the Moohummudan law of India, there has
seldom been, so far as I know, any judge in the Company's
service who has had a competent knowledge of that law. But
as this is almost incredible, and as the fact is, I apprehend,
not generally known, it is right, and I trust it will be useful,
to notice it. It is but just, as well as necessary, however,
at the same time to state, that there is no work in any lan-
guage, except the Arabic, whence a competent knowledge
of the law can be attained. The Arabic language, till
lately, was unknown, and is even now known to so few, that
these scarcely form an exception ; and when of these few
we inquire how many know the law, the answer may gene-
rally be given, not one ! for the Moohummudan law is not
to be acquired without laborious study, more than the laws
of other nations.
When the great oracle of the English law said, " should
" a judge, in the most subordinate jurisdiction, be de-
" ficient in knowledge of the law, it would reflect infi-
" nite contempt upon himself and disgrace upon those
" who employ him," how little could he have anticipated,
that half a century should not elapse, when one hun-
dred
THE JUDICIAL ADMINISTRATION. 325
tired millions of people should be governed by Britain,
under laws administered by judges really deficient in legal
knowledge !
Among those governors of India who have zealously
endeavoured to procure to the people a pure administration
of their law, I may mention the illustrious names of Clive,
Verelst, Mr. Hastings, Marquess Cornwallis, Lord Teign-
mouth, the Marquess of Wellesley, and the Earl of Minto;
and of the many individuals of inferior station, I must dis-
tinguish, as pre-eminent, the learned, amiable, and philan-
thropic Sir William Jones, whose professional knowledge
and experience, himself an English judge in India, and
well acquainted with the Moohummudan as well as Hindoo
law, combine to render, not his opinions merely, but his
extraordinary efforts to diffuse a knowledge of the law,
stronger testimony of the necessity and importance of its
cultivation than is generally attainable in matters of a simi-
lar kind. He had founded the Asiatic Society of Calcutta,
and may therefore be called the parent of the systematic
pursuit of Oriental knowledge. " But my great object,""
says he, " is to give our country a complete digest of Hindoo
" and Mussulman law, &c. I would write on the subject
" to the Minister, Chancellor, the Board of Control, and the
" Directors, were I not apprehensive that they who know
" the world, but do not fully know me, would think I
" expected some advantage, by purposing to be made the
" Justinian of India ; whereas I am conscious of desiring
" no advantage but the pleasure of doing general good."*
And again : u Sanscrit and Arabic will enable me to do
" tliis country more essential service than the introduction
" of arts, by procuring an accurate digest of Hindoo and
" Mussulman laws, which the natives hold sacred, and by
" which
* Sir Wm. Jones to the Governor- General, 1786.
THE JUDICIAL ADMINISTRATION.
" which both justice and policy require that they should
" be governed."*
Sir William Jones suggested a plan for completing the
digest here alluded to ; and in his letter to the Marquess
Cornwallis, then Governor-General, on the subject, he thus
expresses himself : " Perpetual references to native lawyers
" must always be inconvenient and precarious ; and, at
" best, if they be neither influenced nor ignorant, the court
" will not, in truth, hear and determine the cause, but
" merely pronounce judgment on the report of other men.
" For these reasons, it appears indubitable that a know-
" ledge of Moohummudan jurisprudence is essential to a
" complete administration of justice in our Asiatic terri-
" tones," &c. And again : " For the Hindoo and Mus-
" sulman laws are locked up for the most part in two very
" difficult languages, the Sanscrit and Arabic, which few
" Europeans will ever learn, because neither of them
" leads to any advantage in worldly pursuits ; and if
" we give judgment only from the opinions of native
" lawyers and scholars, we can never be sure that we
" have not been deceived by them. It would be absurd
" and unjust to pass an indiscriminate censure on so con-
" siderable a body of men ; but my experience justifies
" me in declaring, that I could not, with an easy con-
" science, concur in a decision, merely on the written
" opinion of native lawyers, in any cause in which they
" could have the remotest reason for misleading the court.
" Nor, how vigilant soever we might be, would it be
66 very difficult for them to mislead us ; for a single ob-
" scure text, explained by themselves, might be quoted
" as express authority, though perhaps, in the very book
" from which it was selected, it might be differently ex-
" plained,
* September, 1787.
THE JUDICIAL ADMINISTRATION. 32?
" plained, or introduced only for the purpose of being
" exploded."11
It was an object of the highest ambition of this bene-
volent judge, to put government in possession of a code of
the ancient laws, by which he presumed they were to govern
the people of India ; improving of course those laws where
necessary. He undertook to superintend the compilation
of, and to translate, the digests above mentioned. His
letter to the Governor-General, Marquess Cornwallis, will
be read with no small interest, when it is known that so
much at heart had he the laborious undertaking, that for
it alone, with an infirm constitution, he suffered himself to
be separated, alas, for ever ! from a beloved wife, who was
compelled by sickness to return to England ; and that, in
a short time afterwards, his own life fell a sacrifice to his
great design.
The translation of the Hidayah, a celebrated work on
Moohummudan law, from the Arabic, both into Persian
and into English, were projected by Mr. Hastings and
effected under his government. The foundation of the
Moohummudan college at Calcutta, for the express pur-
pose of affording the natives an opportunity of learning
that law, exclusive of the often-expressed sentiments of that
great man, affords us the strongest and most unequivocal
proof of his desire to promote the knowledge of that law.
" Mr. Hastings," said Lord Teignmouth, " with the view
" of promoting a knowledge of Moohummudan law, as
66 essential to the due administration of justice to the na-
" tives of India, established a college in Calcutta."*
" Fully sensible," says Lord Teignmouth, u of the uti-
" %
* Life of Sir William Jones.
328 THE JUDICIAL ADMINISTRATION.
" lity of a digest of Hindoo and Moohummudan law, in
" facilitating, what he was ever anxious to promote, the
" due administration of justice to the native subjects of
" the British empire of Hindoostan, the Marquess Corn-
u wallis considered the accomplishment of the plan (the
" digest above-mentioned by Sir William Jones) as calcu-
" lated to reflect the highest honour upon his administra-
" tion."*
Lord Teignmouth, when Governor-General, employed
Lieutenant-Colonel (then Lieutenant) Baillie to translate
this digest of the Moohummudan law. A translation of
one volume of it was made ; and the Marquess of Wel-
lesley (who in the interim had established a professorship of
Moohummudan law in the college of Fort William, and
bestowed the professorship upon the translator), when the
volume was printed, which was done at the expense of go-
vernment, presented Captain Baillie with a reward of 20,000
rupees.
The Earl of Minto held in no less estimation the culti-
vation of the Moohummudan law than the greatest of his
predecessors had done ; and although he made no display
of the patronage and encouragement he gave invariably to
those who dedicated their time and acquirements to the ad-
vancement of useful literature, yet we have had no one in
the high station which he filled, who cherished them with
more real sincerity than this lamented nobleman.
Notwithstanding several tracts on the Moohummudan
law had been translated, a complete exposition of that code,
by compilation, translation, and explanation, rendered into
our vernacular tongue, was still a desideratum to the Indian
government.
* Life of Sir William Jones.
THE JUDICIAL ADMINISTRATION. 329
government. A work of the nature here described was in
the year 1809 undertaken, and patronized, in the fullest
and most earnest manner, by his Lordship's government,
and subsequently by the Honourable Court of Directors ;
but as a new government did not enter into the views of the
Earl of Minto, the publication was, of course, suspended.
Justice to a former government of India, and to the Court of
Directors, who readily patronized the work, required that
it should be noticed; and it is but justice to them and to
the author, to state the cause which has suppressed its
publication.
The patronage which the Bengal Government had inva-
riably shewn to those who had endeavoured to expound the
Moohummudan law, ceased with the government of the
Earl of Minto ; but no accession to the opinions of that
lamented nobleman, and his illustrious predecessors, is either
required, or indeed could add weight to their sentiments.
We are, therefore, fortunately relieved from the necessity
of wishing for farther testimony, as to the necessity and the
importance of the study of the Moohummudan law to those
servants of the Company whose duty it is to administer
the law of India.
The best means of promoting and of ensuring the attain-
ment of a knowledge of that law becomes the next object of
inquiry.
There are only two modes of doing this. If the Com-
pany^s servants cannot be brought to learn the Arabic
language, in order to study the law in the original, that law
must be rendered into their own language, that they may
study it in English. The experience of more than half a
century has fully shewn that we cannot trust to the former ;
the
THE JUDICIAL ADMINISTRATION.
the latter alternative must therefore be adopted. An ample,
clear, and faithful exposition of the Moohummudan law,
rendered into English, is therefore as essential to its culti-
vation, as a knowledge of that law is to the due adminis-
tration of justice to our Asiatic subjects.
But this is not all. The Moohummudan law, though
rendered into Engb'sh, would not be more easily acquired
than are the laws of other nations, which are written in
their vernacular tongue. All those who have benefited by
the advantage of public instruction must fully acknowledge
its utility, not only in directing the student in the proper
path of his research, but in furnishing a field for that emu-
lation which, when duly cherished, tends so strongly, not
only to the advancement of particular talent, but to raise,
throughout the whole, the general standard of acquirement.
I need scarcely add, that it would be worthy of the rulers
of India to revise the establishment formed by the wisdom
of the Marquess of Wellesley in the college of Fort-Wil-
liam for instructing their servants in the Moohummudan
law; that it would be worthy of the enlightened gover-
nors of eighty or one hundred millions of their fellow-
creatures, to instruct their servants in the law which they
are called upon to administer to them. It would be quite
incredible, if we ourselves were not an instance of it, that a
civilized nation should profess to administer a law to eighty
millions of people, without having one institution for teach-
ing that law to those whom they ordain to superintend the
administration of it. Government pays upwards of a mil-
lion and a half to its European civil servants, and about
^600,000 sterling to those in the judicial department alone.
I cannot but think, that two or three thousand a-year,
towards teaching them the sacred duties of their profession,
might well be added to this large sum.
Government
THK JUDICIAL ADMINISTRATION. 331
Government must not think that their covenanted ser-
vants are, by a little elementary knowledge of the Persian
language, or perad venture, in a few instances, by reading
one or two elementary works in Arabic, to be converted
into Moohummudan lawyers, competent judges of the
Moohummudan law. Must a man be instructed in the
meanest occupation of life, and shall he step to the bench,
where he has to administer a foreign law, without any pre-
vious education ?
Thus it is, that our Indian judges, I fear, most of them,
do really answer Mr. Stuart's description, " that they are
" ignorant of the law."
Nor do the regulations of government admit of Euro-
peans to officiate as counsel or advocates, even before the
Sudder Dewannee Adawlut, the Supreme Native Court.
If the counsel were learned in the law, they would, as in
Europe, take care that the law was at least unfolded to the
judge; so that even ignorance on his part would be less
felt ; and, at all events, there would be greater security
against corruption.
There does not seem to be any good reason for such ex-
clusion: and there is now a considerable body of well-
educated young men, the offspring of European gentlemen,
who might, perhaps, with advantage, be admitted to the
privilege of practising at the bar of the sudder and pro-
vincial courts. It is impossible that any valid objection
can be urged to the admission of respectable persons, pro-
perly qualified, of whatever breed or colour, whether
natives of Europe or of Asia.
A course of lectures delivered in English to those who
could
332 THE JUDICIAL ADMINISTRATION.
could not be prevailed on to learn Arabic, accompanied
by translations from different authors on the most impor-
tant points of law, would be the necessary course to be
pursued, generally, in instructing the civil servants of
government ; together with copious explanations of the
technical terms, phrases, and language of the law ; and for
the more accurate understanding of which, a comparative
elucidation of the similitude or difference between such,
and the technical language and terms of our own or of the
Roman law, should be given : noticing, if required, at the
same time, where the government regulations affected the
law, where they did so with good cause, and where unne-
cessarily, as in many cases he would discover to be the case.
Blackstone somewhere laments the enormous load which
ignorance of the law has unnecessarily added to the Sta-
tute-Book. What would he have thought, had he seen
the " Laws and Regulations'11 of the Indian government,
and been equally capable of appreciating their application ?
Encouragement, at the same time, must be given to
those few (and some there would be), who would attempt to
master the original law in its primitive tongue. These
ought, by all means, to be cherished ; for from these alone
could be looked for the propagation of the science.
The difficulty of procuring a professor sufficiently qua-
lified might at first be experienced ; but, as it would be an
object worthy of pursuit, so the qualifications would be
deemed worthy of acquirement, and would soon be found.
The expense of an establishment of <£3,000 or £3,500
a-year, is too trifling to be named, as worthy of the least
consideration in such a case.
The
THE JUDICIAL ADMINISTRATION. 333
The next and last point to be considered is, the mode of
administering the laws ; or in other words, of ensuring the
administration of justice to the people, and protection to
their persons and property. How, by whom, and by what
courts, can justice be best administered in the British
provinces in India.
The object of law, in every country, is to protect the in-
dividuals, and the community of that country, in the enjoy-
ment of what they hold estimable. This definition is very
comprehensive : it includes questions of property, usually
so called, of person, of civil and religious liberty, of con-
tract, succession, the public revenue; for, to the com-
munity, the public revenue is matter of concern and of
value, and it is the property of the state.
This protection is afforded in two ways : first, by mea-
sures which are calculated to prevent aggression ; secondly,
by laws duly administered.
Under the former of these heads will fall to be consi-
dered what is usually termed police ; under the latter, the
administration of justice. But as the administration of the
law is more immediately connected with what has gone
before, I shall reverse the order of discussion, and in this
place offer such remarks as I have to make on the judicial
system of India, considered executively, reserving for a
separate chapter what I may have to submit on the subject
of police.
However trite the observation, yet as it serves to collect
our wandering thoughts, I must remind the reader, that
there is nothing perfect under the sun ; that in entering
upon the consideration of this, as well as of every other
practical
334 THE JUDICIAL ADMINISTRATION.
practical question, he must divest his mind of every ideal
standard, and meet the case attended by its concomitant
circumstances, and like every wise man, instead of aiming
at perfection, be satisfied with endeavouring to discover
what is the best of expedients ; for it is only a choice of
these, as has been well observed, that we are permitted to
realize in human affairs.
The Company's judicial establishment of Bengal (to
which I shall restrict myself) consists of one supreme na-
tive court, called the Sudder Dewannee and Nizamut
Adawlut (lit. chief, civil and criminal court), of four
judges; six courts of circuit, of four judges each, and one
judge in every zillah or district ; besides a judge in each of
the four cities of Moorshedabad, Dacca, Patna, and Benares.
There are, likewise, some assistant-judges; and the regis-
ters of the zillahs who hold courts : and besides all these,
many native petty judges, under the names of sudder
ameens and moonsifs. The former appellation signifying
" chief arbitrator," and the latter " a justice," or one who
distributes justice.
From the inferior courts lie appeals to the zillah j udges,
and from the zillah courts appeals lie to the courts of cir-
cuit, and from the courts of circuit to the Sudder Dewannee
Adawlut, in all civil causes of any considerable amount, in
questions of real property, and even in personal actions
amounting to 5,000 rupees : and from the courts of circuit
to the sudder a reference is necessary in all criminal con-
victions involving life or transportation. Thus, in fact,
except in matters of comparatively trivial importance, it
may be said that there is only one court of justice for the
whole of the Bengal provinces ; every cause appealed com-
ing loaded with the rubbish of the records of two inferior
chambers through which it has passed.
No
THE JUDICIAL ADMINISTRATION. 336
No wonder, then, that the judges of the Sudder De wan-
nee and Nizamut Adawlut complain of having too much to
do, and that the administration of justice has been repre-
sented as, in fact, at a stand. The other presidencies have
each its sudder; and thus it is, that eighty millions of
people, like pilgrims at a scanty fountain, are left to scram-
ble for justice.
Mr. Stuart, above-mentioned, who was himself one of the
judges of the Calcutta Sudder Adawlut, in a minute which
has been printed, proposed a remedy for the " oppression
" of business" under which the court laboured : namely,
to have another sudder court instituted for the Upper
Provinces : and to improve the administration of justice, he
proposes instituting also nine different tribunals in every
district; some composed of natives as judges, others of
Europeans : all, however, linked together by threes, in the
old way of appeal, and ultimately falling into the sudder
courts.
Mr. Stuart's avowed object was to relieve the present
sudder from part of the " overwhelming press of business"
on their rolls. He divides the provinces into districts (very
large ones, however) ; puts those districts under the entire
management of one person, to whom he gives the title of
" resident ;"" and this resident is not only to hold several
courts himself, but to exercise a control over all the other
nine courts in his district, and to receive appeals from them
all, and the sudders are to hear appeals again from him.
The resident is, moreover, to superintend the affairs of the
district revenue, justice, and police. The former residency
of Benares is Mr. Stuarts model ; but he desires to modify
it, "so as to combine the principles of native administration
" with order, stability, and justice."
Mr.
336 THE JUDICIAL ADMINISTRATION.
Mr. Stuart's formidable list of tribunals consists of,
1. Minor Maal Adawlut, under a native darogah.
%. Major Maal Adawlut, under the Sudder Dewannee
Adawlut and board of commission.
3. Minor Dewannee Adawlut , under a native judge.
4. Major Dewannee Adawlut, under the resident.
5. Caxee's Court.
6. Punchayets.
7. Fouxdary Major, under control of resident and assis-
tants.
8. Fouzdary Minor, under a moulovee and pundit.
9. Residenfs Criminal Court.
What meaning Mr. Stuart attaches to the word maal,
applied to the adawlut, he has not told us ; nor has he said
why the old designation of the Benares resident's court,
which was called the " Moolkee Adawlut," has been
changed. There was a " Moolkee Dewannee" and a " Mool-
" kee Fouzdary Adawlut" in 1788. Mr. Stuart's maal is
probably meant to represent the word Ju mal, which signi-
fies property ; but, in technical language, moveable property
only : and yet he gives his " maal adawlut" cognizance of
rejection, boundaries, water, and premises, landed estates.
The old " moolkee adawlut" was no doubt intended as a
translation for " country court" or " provincial court,'1
from moolk, in one sense, a country ; but it is not a happy
translation.
Nor does it appear how Mr. Stuart was " to combine the
" principles of native administration" by the institution of
tribunals such as he specifies ; none of which were known
under any native administration that I am acquainted with.
But Mr. Stuart in his preface suggests another arrange-
ment
THE JUDICIAL ADMINISTRATION. 337
ment, which he seems to prefer : an objection to the former
being the difficulty of finding any one individual qualified
to be a resident. This plan is to empower the collectors to
hold maal adawluts, with assistants, European and native,
and a native judge; with cognizance to the amount of 1,600
rupees; that there shall also be six European judges
formed into two courts of circuit and appeal, and to try all
great causes ; but the three frontier districts of Bundel-
kund, Saharunpore, and Gorruckpore, to be made re-
sidencies.
It is, however, much easier to point out defects in the
plans of others than to form better ones; and I may observe,
that after what has been written on the subject already, by
such men as Lord Clive, Mr. Verelst, Mr. Hastings, Mr.
Francis, Sir William Jones, Lord Teignmouth, Sir Wil-
liam Chambers, and many enlightened servants of govern-
ment, it is not easy to find much new matter to communi-
cate. Mr. Stuart was one of the most distinguished
servants of the Company, and, as such, his sentiments can
not but be valuable. But I may take leave to say, that to
simplify, and not to render more complicate, is, in my esti-
mation, the more likely way to improve the present judicial
system of India.
The first object of all governments ought to be to di-
minish, as much as may be, the sources of contention among
their people, and thus to render an appeal to the laws as
seldom as possible necessary. This is to be done by a vigi-
lant police with reference to criminal matters, and by
municipal regulations and precautions in civil affairs.
In Bengal, it has often been said, that a great majority of
questions of civil litigation and cases of criminal prosecu-
z tion
338 THE JUDICIAL ADMINISTRATION.
tion arise out of disputed boundaries. Contention arises,
affrays follow, which often end in the commission of atro-
cious crimes, as murder, arson, and destruction of property
of all kinds.
Here, then, much might be done, as I have already
noticed, by obtaining minute surveys of every purgunnah
and every village of the country, by keeping correct pur-
gunnah-registers of the lands of individuals, every transfer
or division thereof to be entered into such registers. The
marriages, births, and deaths, which occur in the families of
every landholder and principal inhabitant of the purgunnah,
might be registered, and a body of record obtained, which,
if it did not altogether prevent litigation, would assuredly
facilitate its termination when instituted. A record of
boundaries, alone, would be of the utmost importance.
All this might be done in the strictest conformity with
the usages of the country ; and thus, not Mr. Stuart's
" principles of native administration," but the practice of
native administration, might be combined with order, sta-
bility, and justice. And could our government but only
re-establish, what they at one time took pains to demolish,
the ancient purgunnah canoongoe and village putwaree
records, on the basis of these, a system of regular record of
principal events, and even minor occurrences, might be
founded (to be abridged periodically, and the abridgment
kept at the principal town of the district), which should not
only aid in no common degree the administration of justice
between individuals, but afford such an insight into the
state of society and the transactions of the people, as would
guide the active and discerning magistrate of police through
his most intricate investigations. A simple list of the re-
cords kept by the canoongoe (as given by Mr. Davis), and
of
THE JUDICIAL ADMINISTRATION. 339
of the putwarees1 accounts (as noted lately by Mr. Newn-
ham, an active and intelligent Bengal revenue officer of the
present day), will shew the mass of information collected,
or which might be collected, by these provincial officers.
Records of the Canoongoe.
j»^i j Dustoor-ool uml. The orders of government
for the guidance of its officers and the customs of former
governments.
Uml-i dustoar* Customs or orders, in op-
position to, or in addition to, the above, or practice of the
present times.
S Ferhest-e dehaut. Account of the villages.
jj>U*o Sehahy amdany. A daily treasury-account
of payments from ryots.
.X^X'
^_j^ f*5^ "f^y Awargy. A running account of re-
ceipts, remittances, &c. made annually, or oftener.
v£~**jj &** ^^2-jsA^ JjJ Doul tushkhsees bundobust. Nett
settlement rent-roll, or estimates of receipts for the year,
whether paid by muzkoory talookdars, or ryots, to the
zumeendar.
" Jumma^un^y khas. Special rent-roll.
r Jumma sayer chubootra cutwally o1 chokeyaut
o"1 gu%oore ghaut. Sayer and town duties.
-*sr Jumma mahal-e-meer
Jumma patchoutra.-\-
o JWr0 ~*zr Jumma mahal budderky.-^
* It will be seen that Mr. Davis's orthography is not very accurate.
t These are land, sea, and transit custom-house duties.
z 2
340 THE JUDICIAL ADMINISTRATION.
Ism nuveesy xumeendaran. List
of names of zumeendars.
(^oj ^j***! <^\&t&>- Hukkeekaute baze %umeen. State
of rent-free lands.
^jj\jAZ~i\ j <tJjj*~*> ^^T Jumma mokurrery o1 istumrary.
An account of permanent or fixed payments.
Wassul bakee. Collections and balances.
c^U-Ji^- Hukkeekaute roxeendaran. State of
public pensioners.
The records of the putwarees are as follow : —
1st. The Mouxeendh or Rukbah bundee. — An account
of the total quantity of land belonging to the village, stat-
ing that which pays revenue, that which is rent-free, that
which is appropriated, that which is cultivated, and that
which is incapable of cultivation.
2d. Nuktt puttahjaut. — An abstract copy of agreements
with every ryot, containing the number, as Nos. 1, 2, 3,
and so on, the name of the ryot, the quantity of land and
gross rent, in one line. In the next, the name of the field,
its extent in beegahs, the rate per beegah, the total rent of
each field. This is made out in June and July. Puttahs
are not always executed ; but this account protects the
ryot from undue exactions.
3d. The Tukmeenah or Kusserah. — This is an annual
inspection-statement of the quantity of land, the crops in
kind, and in which harvest produced. First, the name of
the ryot, extent of field, in which harvest cultivated, spe-
cies of produce, name of the field and quarter (har) of the
village; exhibiting at the end an abstract of the whole,
under
THE JUDICIAL ADMINISTRATION.
Under the heads of rent-free, jageer, fallow, payable in
kind, ketwaree. This is of great consequence, as it may
check all others. It contains the mauzenah in abstract at the
bottom of it. This is partly made out after the Dussarah
(October) for the khureef (winter) crop, and in April for
the rubbeea (summer) crop ; and at the end of the year
(June), both accounts of inspection are united. This ac-
count exhibits the total cultivation by its different parts and
kind of produce.
4th. Mehr kuttee, called also Lugtewar, also Mehbawan.
— This is a kind of ledger, exhibiting (like No. 2) the num-
ber and name of the ryot, the number of the beegahs and
his total rent. Under this, the harvests, as khureef and
rubbeea, are entered. Under the head khureef are entered
the name of the field, extent thereof, species of crop, rate
per beegah, and total rent of the fields reaped in the khu-
reef harvest : the same for such fields as are cultivated and
reaped in the rubbeea harvest.
The difference, therefore, between this and the Nukl-e
puttahjaut is, that it specifies the kind of produce and the
harvest in which it is reaped ; and thus it is useful to shew
when the ryot can best pay, to ascertain the real value of
the field, to enable the zumeendar to prohibit the repetition
of searching or inj urious crops.
5th. The Tukavee account, or account of advances. —
This contains the names of the ryots who receive, the
amount (and date) given, the interest at two anas per
mensem, the total.
6th. The Bhoalee, Buttaee, or Kunkoot : that is, the
account when the rent is paid in kind, or in kind converti-
ble
342 THE JUDICIAL ADMINISTRATION.
ble into money. — The Bhoalee account contains, first, the
name of the ryot, the number of beegahs, the name of the
field, the kind of grain, the total produce in maunds, the
assl (original) share of the ryot, the assl share of govern-
ment, the deduction taken from the ryot on account of
charges. This added to the government share makes the
total taken by government. Lastly, the total in money.
Then., at the bottom, the total quantity of each kind of
grain is taken at its own valuation, which makes up the
total sum paid in money.
7th. The Putthur, or Futthur, or general Toujhee, or
the Juwma wassul bakee. — This is an account containing
the names of every ryot ; opposite which the quantity of
land, the amount of rent, the rusooms or extra dues, as
cThiianee nemannee (half an ana) batta on rupees, tuccavee,
former balance, total rupees, sum recovered, total balance.
The names of such of those ryots as owe balances, who are
dead or fled, are kept in this account till their balances are
paid.
8th. The Roz namah, or day-book. — It is a cash account
of receipts and disbursements, of whatever kind, whether
of expenditure, or of payment of rent to government,
balanced every day, and the balance only brought forward
to the following day. This account also contains entries
of produce in kind, thus : " received from A, five maunds of
" barley, at two maunds per rupee, two rupees eight anas."
9th. The Khutteeounee. — This is an account of cash re-
ceived from every ryot, containing a separate entry for each
name and number, as " No. 20, sunkarsing ;" the date of the
payment, and total.
10th. An abstract account of receipts and disbursements ;
containing,
THE JUDICIAL ADMINISTRATION. 343
containing, on one side, the total received under general
heads, and on the other, the general items of disbursement,
and balanced.
The canoongoes keep, as a check over the putwarees' or
village-accounts, —
1st. The Mauzeenah.
£d. The Tuccavee account.
3d. Seeah, daily or account of receipts from the mal-
goozars.
4th. The Futthur, or Jumma wassul bakee, shewing
the demands, receipts, remissions, nankar, and balances.
From the nature of these accounts, it is obvious, I think,
that, if regularly kept, little room for dispute could exist.
But these officers, to be efficient, must be considered
officers of government. It has been objected to this, that
" when the putwaree ceases to be a servant of the zumeen-
u dar, he will cease to be the depository of the village-ac-
" counts. Now the putwaree is often not entrusted with
" the accounts of the neechjote and chakeran lands ; so he
" might remain unemployed, or only get his information
" from the under-proprietors."*
But there is no reason to fear these. Were those officers
under the control of the collectors, and a regulation made
holding the canoongoes' and putwarees' accounts legal
evidence in courts of justice, the zumeendars and culti-
vators, and all persons concerned, would soon find it for
their interest to inspect and preserve their correctness.
Those who feared oppression and undue exaction, would
doubtless not decline giving information and employing
these
* Minute of Governor-General, Lord Hastings, 21st Sept. 1815.
344 THE JUDICIAL ADMINISTRATION.
these accountants ; and this would necessarily compel the
zumeendar to do the same, and to see that the accounts
were correctly kept. The establishment of such a body of
written evidence (witnesses that could not lie) would, in
the present state of morals in India, be of incalculable
utility. This would be making the native system of admi-
nistration available to some good purpose.
" The tepeekchy," says the Ayeen Akburee, " shall write
" down whatever agreements are made with the husband-
" man, keep separate accounts of the boundaries of each
" village, draw out statements of the waste and arable
" lands ; to which he is to subjoin the names of the munsif
" (appraiser), the land-measurer, the thanadar, the hus-
66 bandman, the naeks or head-men of the villages, the
" articles of cultivation, villages, purgunnah and harvest.1"1
The putwaree, or village-accountant, " kept the accounts
" of the husbandman's receipts and payments, of the quan-
" tity of land cultivated by each villager : no village was
" without one. That is, the advances which the ryot re-
" ceived, the rent he promised to pay, the quantity of land
" he agreed to cultivate, the kists he paid, and the balances
" either for or against every ryot of the village ; a memo-
" randum of which he is to furnish in writing to every in-
u dividual to whom it concerns.11
Would not all this, imperfect as it is, almost stifle liti-
gation ? Where boundaries are defined, where accounts
are regular and clear, there can be no dispute : at least
none that may not be speedily and readily settled, both to
the satisfaction of the judge and of the parties.
But the servants of government, it must be confessed,
though they transact the whole of the business of the state,
are,
THE JUDICIAL ADMINISTRATION. 345
are, almost universally speaking, but too little informed of
the customs of the people and of their ancient usages ; so
that the bare suggestion of any thing like minute detail, in
the affairs of government, presents first to their minds the
immense extent of country to which such minutiae must
be applied, and they look upon the attempt in the same
light as if they were desired to reckon every particle of
sand on the sea-shore. It appears to them a vast expanse,
full of unknown, perhaps unheard-of objects; and they
treat the idea as visionary.
They forget, however, that by division and judicious
classification, it is scarcely possible to conceive any thing
that may not be investigated and subjected to regular and
systematic control ; that each, of themselves, will have only
to act his own proper part in the general scene ; and that
before we can attain any thing like true knowledge, either
in the moral or physical world, we must first decompose,
and reduce our materials to their primitive state, to ascertain
the nature of the elements we are to act upon. When this
is done, we can combine them at will, and make the most
advantageous uses of them.
But that what I have suggested may not be deemed im-
practicable, even by Englishmen, we have only to recollect,
as before stated, that much more was done by our own
countryman, whom I shall again mention, being the first to
accomplish the undertaking. The able and distinguished
officer I allude to was Colonel Reade, in whose school was
bred the no less distinguished manager of the Ceded Dis-
tricts, Colonel Sir T. Munro, both of the Madras esta-
blishment ; besides several distinguished civil servants who
were educated under them.
Colonel
346 THE JUDICIAL ADMINISTRATION.
Colonel Reade was put in charge of the Baramahal, a
district consisting of no less than twenty-five purgunnahs,
which paid a rent to government of 7, 12,530 pagodas, or
about twenty-five lacs of rupees. He first ordered the actual
measurement of the district, ascertained the dimensions of
its purgunnahs, villages, and farms, the quality of the dif-
ferent soils producing various articles of cultivation ; classed
these, and valued the yearly crops, which he divided ac-
cording to the established rates of division, by means of the
puteels or mukuddums, between the government and culti-
vator. The superficial extent of the district was 6,259
square miles ; which, deducting 1,262, the area of unpro-
ductive hills, &c., left 4,997 miles, or 3,195,000 acres of
plain, consisting of twenty-five purgunnahs, of 4,865 vil-
lages, peopled by 612,871 inhabitants; of which 85,227
were shudrs, or government farmers, and 17,314 possessing
charity lands or private proprietary holdings, officially, or
by inheritance, or by grant. They had in the district
51,198 ploughs, 564,730 head of cattle, 63,339 sheep ; cul-
tivated acres only 1,125,025, little more than one-third of
the superficies, which yielded in gross produce, chiefly in
rice and other grain, annually, at the average of the local
markets, 19,39,054 pagodas, deducting of seyur 57,425
pagodas. There was, besides, 140,593 acres capable of
cultivation, but not cultivated. The rent paid to govern-
ment was rather more than one-third, viss. 712,530 pagodas,
or about five shillings per acre.
In the Ceded Districts, under Colonel Munro, the whole
was measured and assessed, " village by village, field by
66 field. A census of the people was taken, shewing the
" different castes ; statistical tables were formed, shewing
" the price of labour, subsistence, &c. The price of agri-
" cultural
THE JUDICIAL ADMINISTRATION. 347
" cultural labour was from four to five shillings per month ;
" the cost of subsistence of the first class (about one-fourth
" of the whole), per head forty shillings per annum ; of
" the second class (about one-half of the whole), twenty-
" seven shillings ; of the third class, consisting of the re-
" sidue, eighteen shillings per annum, for food, clothing,
" and every requisite."*
Even in Bengal we have had individuals who have col-
lected information of some importance. Mr. Colebrooke,
in his Husbandry of Bengal, mentions an actual " census,
" which gave, in 2,784 mouxas, or villages, occupying
" 2,531 square miles, 80,914 husbandmen holding leases,
" 22,324 artificers paying ground rent. The size of the
" villages was estimated from knowing that 21,996 of them
" stood on an area of 18,023 square miles, or about nine-
" elevenths of a square mile to each. Estimates of the
u population were attempted from a census of inhabitants
" found in a few villages ; the result gives 1 97 as the
" average, viz. 92 males and 87 females. The whole num-
" ber of moulds, or villages, in Bengal and Behar, is not
« less than 180,000."f So 180,000x197 would give a
" population for those two provinces of 35,460,000 souls.
But Mr. Shakespear, superintendent of police in the
Lower Provinces, gave in a statement to government, in
the end of the year 1815, of the number of villages within
the provinces of Bengal and Behar -not including Benares,
but including 10,298 villages in Orissa (Cuttack), which
Mr. Colebrooke did not, of course, reckon, because that pro-
vince then belonged to the Marhattas. This statement was
made on the authority of the police darogahs, as ascertained
by them. The total is 150,748 villages in twenty-eight
zillahs :
* See Minutes of Evidence, 1813 t Colebrooke.
348 THE JUDICIAL ADMINISTRATION*
zillahs : giving an average of 5,383 villages to each zillafr.
So, taking Mr. Colebrooke's rate of population, viz. 197 per
village, 150,748x197 would give 29,697,356; from which
deducting the proportion for Cuttack, 10,298x197 =
2,028,706, leaves for Bengal and Behar 27,668,650 : exhi-
biting a difference between those two authorities of about
eight millions in the estimate of two provinces !
Mr. Bayley, again, in his statistical sketch of Burdwan
zillah, states the square miles at 2,400 ; the mouzas, or
villages, at 3,496. The average number of houses in each
village, seventy-five ; and the average of persons in each
family, at five and a half; Hindoos to Moohummudans, as
five to one ; males, 100 to 95f females; the population at
1,444,487 ; number of inhabitants to a square mile, about
600. Now, 75 houses x5J persons = 412^ total in each vil-
lage, exceeding Mr. Colebrooke's average by 215| persons
per village: in fact, being eighteen persons more than
double. But, in number of villages, Mr. Bayley falls far
short of Mr. Colebrooke's and of Mr. Shakespear's average ;
though Mr. Shakespear states the number of villages in the
zillah of Burdwan itself, of which Mr. Bayley speaks, to be
the same number which Mr. Bayley makes it, viz. 3,496.
These instances, notwithstanding that their discrepancy
shews inaccuracy, prove sufficiently the practicability of ob-
taining the most satisfactory information on every point
required. There is no country in the world, perhaps, in
which revenue and commercial transactions are more regu-
larly and minutely recorded than in India. The poorest
shopkeeper has his books; and may be seen, in every bazaar
in India, bringing them up regularly every night. The
Hindoo is proverbial for regularity of habit in every way.
We must presume that information regarding agricultural
and
THE JUDICIAL ADMINISTRATION. 349
and statistical matters is obtainable from him, these being
his daily concerns and the most important matters of his life.
In the Baramahal and Ceded Districts we have seen the
minutest survey and information obtained in the course of
a very few years, proceeding entirely after the custom of
the country ; and, I may add, precisely as an officer of a
Moohummudan government, following the principles and
practice enjoined by his law, would have done. In proof
of which I beg to refer the reader to the Moohummudan
law itself, and to the instructions given by the Emperor
Aurungzebe, in 1668 and 1676, to his governors and others,
respecting the collection of the khurauj and the manage-
ment of the accounts of the districts before noticed.
The great impediment, in all countries, to the decision of
causes, is the difficulty of procuring satisfactory and clear evi-
dence. In this country that difficulty is amazingly increased
by the notorious want of credibility in oral testimony.
Where prevarication is so prevalent, and there are even pro-
fessional perjurers, the judge has not only to discriminate,
as in other countries, what parts of evidence bear upon the
question, but here, when he has done this, it will require in-
finitely more discrimination and infinite practical experience,
to satisfy himself what part of it is true, what part is at all
founded in truth but exaggerated, what is altogether false.
The necessity of written documents is therefore ob-
viously greater in India than in our own country ; and any
expedient suggested with the view of multiplying them
ought of all things to be encouraged.
Our Indian judges, both of the King^s and of the Com-
pany's courts, have long invariably and loudly complained
of
350 THE JUDICIAL ADMINISTRATION.
of the prevalence of perjury in their courts. To so great
an extent does it exist, that they fairly declare they have
no faith in oral testimony.
This want of veracity is a vice among the Asiatics which
it was not left for us to discover. Although under our
government its effects have been felt more severely than
during that of our predecessors, because the English go-
vernment admits, as equally good and equally credible
witnesses, persons of all descriptions, of all castes, of all
denominations, following the maxims of the English law.
But even in England, where the standard of morals is so
much higher than it is in India, so much higher than we
can expect to raise it for ages in India, the necessity of
cross-examination is so great, and so much is the talent for
it in a lawyer prized, that he who excels is universally cele-
brated for it. Our Indian judges, from their imperfect
knowledge of the multitude of dialects, and of the customs,
manners, and ideas of the natives, are peculiarly ill-qualified
for cross-examination, and rarely succeed in effecting any
thing by it. But this is a proof only of the necessity of
obtaining more perfect knowledge.
If with English law we could introduce English morals,
the maxims of that law, which are founded upon them,
might be maintained in India. In India, with so low a
standard of morals for all ranks, and where, if I may so
express myself, whole classes of society are, in- the eyes of
the people, and even in their own estimation, infamous
by birth, it appears to me quite a solecism in government
to make no distinction between the veracity of one indi-
vidual and that of another. There is, however, in reality,
an immense difference, and will continue to be till a notable
change take place in the state and condition of society.
In
THE JUDICIAL ADMINISTRATION. 351
In such a state of society as exists in our Asiatic domi-
nions, it was a good precaution, perhaps, as established by
the Moohummudan law, to take care that the character
and credibility of a witness should be first certified ; and
really it seems to be not very unreasonable, when a man's
life or property is at stake upon the word of another, that
the person whose word is taken shall be known to be
credible.
At all events, whether we follow the law of our prede-
cessors and practice of India, in the mode laid down by
them for ascertaining the credibility of witnesses in every
case, it certainly ought to be done when practicable. No
judge ought to receive the testimony of a person in an in-
ferior or degraded class of society, when other evidence is
procurable ; and with such witnesses it would be highly
desirable to have others to speak to their probity. No
objection could be made to such scrutiny, because it is con-
formable to the law and usage of the country ; and I
should think every upright man sitting in judgment would
anxiously desire to see established the character of the
witnesses whose testimony was to guide his decision. Pro-
fessed perjurers could not maintain themselves, as they now
do, about our courts, were they liable to have their credi-
bility called upon for certification by credible and respect-
able persons.
The Moohummudan law of evidence provides for the
depravity of society ; and although the provisions it con-
tains are not altogether satisfactory, yet the principle, being
admitted, might be improved upon ; and I have no doubt
that some of those provisions might be made available with
advantage. The Moohummudan law, with deference be
it spoken, is not so absurd as the English law, which ad-
mitted
352 THE JUDICIAL ADMINISTRATION.
mitted of compurgators to swear to the truth of the testi-
mony after it was given : but it requires that the general
character for credibility of the witnesses be vouched by per-
sons themselves credible, before the evidence be received.
With such preventive measures as a body of registered
facts, such as that above pointed to, available as evidence
when required, and such precautions as I allude to, to secure
the most upright oral testimony procurable, I cannot but
think that litigation would be not only greatly diminished,
but that judicial proceedings would be greatly simplified ,
for it is the conflict between suspicious testimony for both
sides, that constitutes the chief intricacy of most causes that
come before our courts.
It remains now to notice the mode of administering the
law. But before I suggest any expedient for its more
effectual administration, I must premise, that in what I am
to say, when I speak of a judge, I do not understand an
officer " destitute of all legal knowledge,'1* but a man who
is really acquainted with the law he administers. It is,
indeed, a perfect solecism in language to speak of any other
as a judge. A personal knowledge of the law he adminis-
ters is an indispensable qualification of a judge: without
this, it is idle to talk of courts, or of any amendment in the
administration of the laws.
Holding the judges, then, to possess a competent know-
ledge of the law, I should think it highly desirable that the
pleaders be also men who are educated lawyers, and that
none should be suffered to practise in any court till their
qualifications as lawyers, as well as their moral character,
have been duly certified.
In
• Mr. Stuart's Minute.
THE JUDICIAL ADMINISTRATION. 353
In India, the native pleaders have little or no knowledge
of the law. They are, indeed, a distinct class of persons
from the native judges. I believe no instance was ever
known in India of a promotion from the bar to the bench :
of a pleader becoming a mooftee or a kazee.
Having, as briefly as the subject would admit, carried
my remarks through the preliminary, yet essential requi-
sites, I now come to the actual administration of justice:
" What is the best mode of carrying into effect the due
" administration of justice to our Asiatic subjects ?" This
question involves two points, viz. first, the most perfect ;
secondly, the speediest mode of its administration.
The tardiness with which the law is administered has
been hitherto the subject of complaint, more than the want
of a j ust and perfect administration : not, as I believe,
that tardiness is the only or the principal ground of com-
plaint, but because it is a defect open to the eyes of the
most humble in point of intellect ; the intrinsic justness, or
otherwise, of a decision is only known to the individuals
whom it concerns.
The stability of our government, the character of our
country, however, are at stake, more upon the former (the
intrinsic justness of decision) than upon the latter of these
two grand desiderata in our Indian government.
It will tend to throw considerable light on this subject,
to advert to the number of causes which are decided or
disposed of by the different courts, European and native.
It appears, from a report of the judges of the Sudder
Dewannee and Nizamut Adawlut, dated the 9th March
1818, that .the number of regular civil suits depending
before the different European and native tribunals, on the
1st of January 1817, was as follows :
2 A Sudder
354 THE JUDICIAL ADMINISTRATION.
No. on the Files, No. decided
Year 1816. in 1816.
Sudder Dewannee Adawlut ...... 442 ......... 108
Provincial Courts of Appeal and )
Circuit .............................. j" 3'581
Zillah and City Courts ............ 12,387 ......... 6,618
Registers1 Courts .................. 8,339 ......... 12,066
Sudder Ameens 1 (29,041 ......... 38,922
TI/T -P r Native Courts <0 ~0
Moonsifs ......... ) 138,730 ......... 72,
Total number of causes de- \ -
pending in the courts of thef ......... ^
Bengal Presidency on the 1st I |
Jan.1817, and decided inl 81 6'
-j The following statement, from the same authority, shews
the number of causes disposed of by decision, adjustment,
or nonsuit, for four years, ending December 1816 .
Years. Courts. Causes.
1813. Sudder Dewannee Adawlut .................. 72
Provincial Circuit Courts ..................... 1,128
Zillah ............ do ............................ 8,208
Registers' ...... do ............................ 7,585
Sudder Ameens ................................. 22,602
Moonsifs .......................................... 136,200
Total 175,795
1814. Sudder Dewannee Adawlut 69
Provincial Circuit Courts 1,096
Zillah do 6,070
Registers' ... do 7,833
Sudder Ameens 22,671
Moonsifs . 127,471
Total 165,210
Sudder
THE JUDICIAL ADMINISTRATION. 355
Years. Courts. Causes.
1815. Sudder Dewannee Adawlut 85
Provincial Circuit Courts 1,106
Zillah 5,744
Registers1 8,953
Sudder Ameens 26,702
Moonsifs 93,947
Total 136,537
1816. Sudder Dewannee Adawlut 108
Provincial Circuit Courts 1,131
Zillah 6,618
Registers' 12,066
Sudder Ameens 38,922
Moonsifs 72,055
Total 130,900
Average Number of Causes decided annually by the diffe*
rent Courts for Four Years.
By European Judges :
Sudder Dewannee Adawlut 84
Provincial Circuit Courts 1,116
Zillah 6,660
Registers' 9,108
16,968
By Natives :
Sudder Ameens 27,724
Moonsifs 107,418
135,142
Total annual average 152,110
2 A 2 The
356 THE JUDICIAL ADMINISTRATION.
The average of 1815 and 1816 shews the numbers
of criminal trials referred to the Court of Sud- > 378
der Dewannee and Nizamut Adawlut to be *
Average civil suits disposed of annually in fouri .
years /
Total trials and civil causes decided in the Sudder i
Dewannee and Nizamut Adawlut yearly /
But the average number of civil appeals to the Sudder
Dewannee Adawlut, for sixteen years ending in 1814, was
only 66 yearly, according to Mr. Stuart's statement. Of
these the average number decided was 50f yearly. The
average number of criminal trials submitted during those
sixteen years was 311 J yearly ; and the average number
decided was 296^ yearly. But on 8th January 1818,
" the court had the satisfaction of reporting, that at the
" beginning of the present year, 1818, not a single criminal
" trial was depending before the court.11 *
From these statements it appears, that four, and occa-
sionally five judges in the Sudder Dewannee and Nizamut
Adawlut, have been occupied in deciding about seventy
civil causes annually, on an average of eighteen years, and
in revising about from three hundred to three hundred
and fifty criminal trials. I call it revising, for there are
really no trials conducted in that court. The trials are
conducted in the courts of circuit; and only the capital
and long transportation cases, where conviction has been
adjudged, are submitted to the revisal of the Nizamut court.
The business before this court has been stated by many,
and
* Report of the Sudder Dewannee Adawlut, p. 58.
THE JUDICIAL ADMINISTRATION. 357
and particularly by Mr. Stuart, to be so heavy, as to ren-
der the institution of another similar one absolutely neces-
sary to the due administration of justice.
To facilitate the administration of justice, however, in-
stead of multiplying such courts as the Sudder Dewannee
and Nizamut Adawlut, I am of opinion that the pne now
in existence ought to be abolished, and the expense attend-
ing it distributed in another way, to secure to the people
immediate, instead of protracted justice, administered in
their vicinity, instead of making them go, in fact, to a
foreign country in quest of it; for to an inhabitant of
Dehlee, or of the Himalayah mountains, Calcutta may well
be called a foreign country.
In my humble apprehension, the principle on which our
Indian courts are established, that progressive system of
appeal from the lowest upwards, is erroneous. It holds
out a temptation to litigate, by multiplying the chances
of success; and to the wealthy litigant, with a bad
cause, it furnishes the means of distressing his opponent,
though he himself may be but hopeless of ultimate
success.
This system of eternal appeal, this ordeal, through the
different courts, consumes justice itself, and renders it a
perfect caput mortuum, at last not worth having : engen-
dering, however, a spirit of litigation, unknown in India
till our time. Thus our most benevolent intentions have
been attended with the very reverse of success. A long
purse and a bad cause, doubtful issue, " no fixed princi-
ples of decision'1 (as Mr. Stuart says), and delay, chiefly
occasioned by the power of going through so many courts,
are the great parents of litigation. He whose cause is good
will
858 THE JUDICIAL ADMINISTRATION.
will never choose to become a litigant. Make the decision
speedily attainable, and thus take away from the wealthy
litigious the power of prolonging his repast, and you dimi-
nish his pleasure so much, as to render it scarcely worth
his while to desire it. To admit of appeal from one court
to another, whose principles of decision are avowedly the
same as* those of the court appealed from, supposes not
only error but incapacity in the inferior court ; and, for-
sooth, neither error nor incapacity in the superior. It is
not always so.
It is not by multiplying courts, but by simplifying the
system, and by selecting fit persons for judges, I appre-
hend, that justice can be best administered to our Asiatic
subjects.
To be particular. I hold the principle of revisal, in
criminal convictions, not only quite unnecessary, but con-
trary to the best established maxims of criminal jurispru-
dence. To try a criminal in his absence, and in the ab-
sence also of his accusers and witnesses, on proceedings
held, and on evidence taken, in the absence of the judges,
who never see either the accused, the accuser, or the
witnesses, is no improvement, certainly, in judicial admi-
nistration.
It is true, the Nizamut Adawlut cannot condemn those
whom the circuit court has acquitted, because the ac-
quittals are not referred to them. But they may still
affirm a sentence of conviction which they would not
have originally passed ; and they may acquit some whom
they would have condemned, had the trial been held
in their presence; and thus again let loose upon the
people the atrocious disturber of the peace of society.
It
THE JUDICIAL ADMINISTRATION. 359
It ought never to be forgot, especially in the dispensa-
tion of criminal law, that no human being is capable of
representing to another the impression made upon himself
by a third person, either in asserting his innocence if the
accused, or in giving his evidence if a witness. When
persons communicate with one another viva voce, besides
the words that are uttered, the eyes and the ears have their
share in the converse. The countenance, the voice, the
colour, the action, the manner, have so great a share in
communication between man and man, that the most accu-
rate account that can be written of it must fall far short
of the original, supposing the language uttered to be the
same as that written. How little satisfactory, then, must
be the proceedings and evidence transmitted to the Nizamut
Adawlut through the medium of a foreign language, the
Persian, which neither the accused nor witnesses used ! nor
was the language they did use perhaps sufficiently under-
stood by the interpreter and recorder, or the language
transmitted fully known by those to whom it was trans-
mitted. I may also add a doubt, whether the liability to
revisal may not often render the inferior judge less careful
on the trial than he would be, did he know that the life of
a fellow-creature rested, at the last resort, on his own judg-
ment alone.
I hold it, therefore, to be indisputable, that the power
of revisal of criminal trials by the Nizamut Adawlut may
be dispensed with, with advantage to the due administration
of justice; and that the judges of the courts of circuit,
being competent persons, may be safely entrusted with the
conduct of such trials, reporting to government through the
judicial secretary, and if deemed proper, receiving warrants
for the execution of sentences through him. The revisal
of criminal trials is calculated by Mr. Stuart to take up
one-third
360 THE JUDICIAL ADMINISTRATION,
one-third of the time of the court. Here, then, is an easy,
and, in my estimation, an advantageous, mode of lighten-
ing the labour of that court.
And with respect to appeals in civil causes, we have seen
that the whole number brought annually does not exceed
seventy or eighty. A proportion of these are doubtless to
that extent (vi%. above ^5,000 sterling value), which by act
of parliament, are appealable from the sudder to the King
and council ; and consequently, as to them, the decree of
the Sudder Dewannee Adawlut can only be considered as
interlocutory. Whether the parties abide by it or not, it
matters not, as to the point now before us. If the parties
are satisfied with the decree, it being the decree of the
highest tribunal in this country, though not the last
resort, their being so satisfied would afford an argument
to shew that the decree of a provincial court, were there
no higher tribunal in this country, would be equally satis-
factory.
Suppose the causes appealed to the Sudder Dewannee
Adawlut annually to be seventy, and that thirty of these are
appealable from the decision of that court to the King, the
appeal to his Majesty might be made to lie, with equal ad-
vantage, I presume, from the provincial court, the judges
of both being equally competent. The remaining forty
causes are all which are annually decided by the sudder in
the last resort. To this number we shall speak.
We are not to conclude that all those forty causes are
erroneously decided in the inferior courts ; nor are we to
presume that all those which may be reversed by the sudder
are rightly decided. We shall suppose, therefore, three-
fourths of the appeals to be affirmed ; so that thirty of the
forty
THE JUDICIAL ADMINISTRATION. 361
forty causes might, so far as the advancement of justice is
concerned, as well not have been appealed. The remaining
ten causes may be put down as doubtful. If six are re-
versed rightfully , four will probably be reversed wrongfully ;
leaving, on the whole, a balance in favour of justice of two
causes annually, on decisions of the last resort.
So much for decisions of the last resort ; and if we allow
the same proportion to the thirty interlocutory decrees, vi%.
two-fortieths, that will give one and a half, and the whole
will amount to three and a half causes yearly ; so that we
can scarcely raise the maximum of advantage to the cause
of justice obtained by the existence of the SudderDewannee
and Nizam ut Adawlut beyond the decision of three or four
causes annually.
Here, then, for the sake of affording the people of India
another chance of a more just decision of three or four
suits annually, a court is maintained, to which, in principle,
I have stated the above objections, and at an expense to the
state of ,£50,000 or ^60,000 sterling annually.
But supposing that a few of the seventy causes appealed
annually to the sudder were erroneously decided in the
lower courts, it may be fairly questioned whether prompt
justice, easily obtained in all the other causes, would not be
far more than an equivalent to the people.
I am, however, of opinion, that the chances are much in
favour of the local courts for justness of decision, Local
knowledge, recency of the transaction, matter of decision,
oral and viva voce testimony, the appearance of the parties
and witnesses, the selection of the individuals who are to
give evidence, selected for their respectability of cha-
racter ;
362 THE JUDICIAL ADMINISTRATION.
racter; these, and many other most essential circum-
stances, in fact, cast the balance much in favour of the
local courts.
What is called the " miscellaneous business" of the
present Sudder Dewannee Adawlut is the third and last
branch of the duty of that court. Mr. Stuart calculates
that this business occupies a third of -the time of the court.
It is composed chiefly of a species of general superintend-
ence of judicial matters and police, answers to references
from the subordinate courts. But as much of this busi-
ness must, after all, be referred by that court to the de-
cision of government, through the judicial secretary, that
officer might as well receive it from the referring-court
direct ; and thus, as I doubt not, he would be perfectly
competent to relieve the sudder of all the anomalous cor-
respondence here alluded to.
Taking all these circumstances into full consideration,
therefore, it appears to me by no means impossible that the
present Sudder Dewannee and Nizamut Adawlut might be,
with great advantage, totally abolished.
Secondly, I would also suggest, that no criminal trials
be referred by the provincial courts, except to the Governor-
General in council, and then only in cases of convictions ;
the judges stating when they may see grounds for mitiga-
tion of punishment or pardon.
Thirdly, That in civil causes, no appeals be received
from the provincial courts, where the subject matter of
litigation does not amount to Sicca Rupees 100,000 ; and
that those appeals shall be made to the Governor-General
in council, and not, as at present, to the King in council.
That
THE JUDICIAL ADMINISTRATION. 363
That no references of any cause from the native courts
shall be made to his Majesty and council ; a tribunal which
neither can itself be supposed to know any thing of the
law by which its decision ought to be guided, nor can it
have the means of deriving a knowledge thereof from
others, as it always has in appeals, in cases of English law ;
whereas the local government of the country, having several
of its members servants of the Company in India, may be
supposed to be acquainted with the laws of India : at all
events, have every opportunity of consulting those who are
known to possess that knowledge.
The intelligent and candid author of the work on the
u Administration of Justice in India," which I have be-
fore quoted, maintains a different opinion. He thinks it
would be better, both for the Colonies and the Mother
Country, that the court of ultimate appeal should be fixed,
as now, in England. " Two of the chief objects to be
" attended to, in any system of appeal," he says, " are,
" that causes should be heard with as little delay, and at
" as moderate an expense, as possible." In these respects,
he thinks, the Privy Council either is, or might be made to
answer. The delay of a voyage to England, and the
superior knowledge of local usages and institutions obtain-
able in India, he admits, are objects, but perhaps not of so
great importance as is often imagined ; and the lapse of a
single year allowed for the voyage, after the great delay
already endured, cannot be important. The case has been
so prepared by the pleadings, that there cannot be so great
difficulty in deciding in England. The principles of law
would be, moreover, examined, and applied with more calm-
ness and correctness there, than they would have been on
the spot. But the consideration which Mr. Miller princi-
pally attends to, is, that the causes which come before the
Privy
364 THE JUDICIAL ADMINISTRATION.
Privy Council would be likely to be argued and decided
with greater industry and ability in England, than by those
lawyers and judges who might be found in India. " How-
" ever great the advantages of a local court might be,"
says he, " they never could counterbalance the inferiority
" of its judgments, either in the eyes of its European or
66 native population."
If it were really the case that English judges would
decide questions of Moohummudan or Hindoo law in a
superior manner to those who have studied and practised
(or at least ought) those laws in India, then Mr. Miller's
argument would be good. But this is the main question,
and cannot be conceded. No doubt there are abler pleaders,
abler judges, in England than in India ; but then it is as
pleaders in English law, and judges of English law, that
they are able, and not as Moohummudan or Hindoo law-
yers. Even the learned, the indefatigable, the venerable
Earl of Eldon, would make but an indifferent kazee at
Constantinople ; and this, and the distance, and the delay,
and the undoubted cost of carrying on proceedings at so
great a distance, leave me still of opinion, that as the go-
vernment of England, or a branch of it, is the ultimate
resort there, so there is nothing in the case of our Indian
subjects, which should make them unwilling to abide by the
decision, in the last resort, of the local governments of India.
The political reason assigned by Mr. Miller for pre-
ferring the appeal to England, I apprehend, he gives more
than due weight to. " No sort of connexion," he says,
u tends more effectually to bind a colony to the mother
" country, than a conviction that, in all emergencies, they
" can rely upon it for prompt, impartial, and enlightened
" administration of justice. If India should ever cease
" to
THE JUDICIAL ADMINISTRATION. 365
" to look to England as its supreme judge, it would gra-
" dually cease to respect it as its sovereign ; and the esta-
" blishment there of a tribunal of ultimate appeal, could be
" regarded in no other light than as the first step towards
" a termination of its political dependence."" — p. 24.
But Mr. Miller, I apprehend, is mistaken in supposing
that in the estimation of the natives of India, the vitality
of our power lies materially in the notion supposed to be
entertained by the natives, of our superior administration
of justice in England. Were they sufficiently grateful for
the advantage they possess, in having a superior power to
appeal to in the event of public oppression, we might have
some idea that they would care more for the privilege of
having the King of England, and his Majesty's Privy
Council, to settle their individual disputes. But were the
people of India consulted, I much doubt whether they
would deem a debt even of five thousand pounds and up-
wards (the appealable amount) claimed by Kaleepersaud,
and disputed by Daveedoss, to be a matter of such impor-
tance as to demand the decision of the Lords of his Ma-
jesty's Council; and I should also doubt, whether they would
conceive the dignity of his Majesty to be much magnified
by such occupation being assigned to him. Not that either
they, or I, would willingly decry the sacred duty of dispens-
ing justice. But in the sentiments of those who, without
sufficiently attending to widely differing circumstances,
would follow every thing they are used to, or that may
even be good, at home, in legislating for a foreign people,
there is a fallacy, which he who knows the peculiar views,
feelings, and sentiments of those people, is bound to point
out. It is a more kingly office to make laws ; and if his
gracious Majesty would deign to promulgate, for the
guidance of his Indian subjects, a clear and systematic code
of
THE JUDICIAL ADMINISTRATION.
of law, founded on their own ancient jurisprudence, but
modified where necessary, so as to suit the circumstances of
the times, he might safely place the distribution of justice
in the hands of those to whom, for so many years past, the na-
tions both of England and of India are so deeply indebted for
the pure and able administration of our eastern dominions.
Neither the number, I believe, nor the importance of the
appeals to the King and Council, warrant a very special or
an expensive provision for their ultimate decision ; and I
must confess, it appears to me not a little of a solecism in
our judicial system, to permit our local governments to
make laws for the whole people ; yet when any two of them
shall choose to dispute about those laws, you will not suffer
those governments to interpret the laws they have made, but
compel the disputants to goto a far country for judgment,
from those who neither made nor know aught of their laws.
Fourthly, In the event of the abolition of the Sudder
Dewannee Adawlut, the judicial secretary to government
should possess, as an indispensable qualification, an inti-
mate knowledge of the law of India ; and, if found neces-
sary, that an officer be added to the establishment of
government, as an Indian law adviser, who shall be known
also to possess the above qualification.
The provincial courts corne next under consideration.
These courts are in number six, and consist of four judges
each. Before them all criminal trials are brought. Their
jurisdiction extends to all civil suits, and their decision is
final in causes not exceeding Sicca Rupees, 5,000. In crimi-
nal matters they may acquit indefinitely ; but all convictions
involving life or perpetual imprisonment, or transportation,
must be referred to the Nizamut branch of the Sudder
Adawlut.
Under
THE JUDICIAL ADMINISTRATION. 867
Under the Bengal presidency, there are six provincial
courts, four of which are for the Lower Provinces below
Benares, and the other two for the Upper Provinces, in-
cluding Benares, viz. Calcutta, Dacca, Moorshedabad,
Patna, Benares, Barelly.
The average annual number of civil suits decided by those
six courts, for four years, ending with 1816, was, as above,
1,116, averaging about 178 causes in every court annually.
But this average does by no means exhibit the propor-
tion of business before any given court.
The following table will tend to shew this ; and it will
be observed to exhibit, in a striking degree, the spirit of
litigation that prevails in the Lower Provinces.
On the first January 1815, the number of appeals de-
pending before the Sudder Dewannee Adawlut, from the
several provincial courts, was respectively as follows, shew-
ing also the number received within the last six months of
1814, from each :
COURTS. Appeals. Appeals received be-
depending. tween 1st July 1814,
Upper Provinces : •** lst Jan- 1815-
From Barelly 22 4
Benares 52 13
74 17
Lower Provinces :
From Patna 130
Moorshedabad 45
Dacca 77
Calcutta 85
337
Grand Total 411
Average in each, 68J-.*
* Mr. Stuart, p. 44.
368 THE JUDICIAL ADMINISTRATION.
Thus it appears, that whilst the revenue (and probably
the population) of the Upper, to that of the Lower Pro-
vinces, is, as in the above-mentioned report, stated as
2,63,67,368 to 2,88,19,069 rupees (now three lacs of
rupees), the proportion of appeals shews that government
is burdened with litigation in the Lower Provinces, more
than in their newly-acquired possesions, in the proportion
of 337 to 74, or nearly as five to one.
Table shewing the Number of Regular Suits depending be-
fore the whole of the Courts, both of European and
Native Judges, under the Bengal Presidency, on \st Jan.
1817, in the Lower and Upper Provinces respectively.*
COURTS. Upper Provinces. Lower Provinces. Total of each
European Judges :
Provincial 603 2,978 3,581
Zillah and City Judges 2,668 9,699 12,367
Registers 1,294 7,045 8,339
4,565 19,722 24,287
Native Judges :
SudderAmeens 4,114 24,927 29,041
Moonsifs 3,700 35,030 38,730
Total 12,379 79,679 92,05Sf
Exclusive of 442 appeals depending in the Sudder De-
wannee
* Printed Accounts laid before Parliament, 1812.
t In 1821, the number of suits pending in the above courts was as
follows : —
Provincial 2,429 decreased.
Zillah and City 13,875 increased.
Registers 11,745 ditto.
SudderAmeens 30,489 ditto.
Moonsifs 44,579 ditto.
Total 1,03,117 ditto.
THE JUDICIAL ADMINISTRATION. 369
wannee Adawlut ;* exhibiting a proportion of litigation in
the Lower, compared with the Upper Provinces, of up-
wards of sifv in the former to one in the latter : a fact
which, I fear, does not exhibit a very flattering proof of the
progressive improvement of our judicial system.
The grand stock whence this odious spirit of litigation
sends forth its ramifications is situated in his Majesty's
good city of Calcutta ; and I have no doubt that the parent
tree is sufficiently healthy to extend itself in good time over
the whole of our Indian dominions.
The habit of litigation (for it has now become a habit)
among the natives in, and in the vicinity of, Calcutta, is
prevalent beyond all belief.
The following statement will shew this ; whilst it will
afford some consolation to those who, contemplating the
enormous number of ninety-two thousand suits depending
in the courts of the provinces, may be inclined to despair
of ever attaining any thing like a regular administration of
justice for India, by shewing how easily a very long file
may be got over.
In the Court of Requests of Calcutta, consisting of
three commissioners, a court having jurisdiction (only within
the limits of the town of Calcutta) in debts and demands
to the amount of 250 rupees only, the number of causes
instituted in one month, the month of January 1819,
was 3,672. So 3,672 x 12 = 44,064 annually, equal to
about half the whole litigation of the Bengal presidency.
Of
* In 1821, the number of appeals pending- before the Sudder De-
wannee Adawlut was reduced to 337 j and so it appears that the
provincial courts had reduced the number on their files from 3581 to
2429, leaving about 400 causes to each of the six courts.
2 B
370 THE JUDICIAL ADMINISTRATION.
Causes.
Of these 3,672
there were compromised or adjusted, before de-
cision 2,416
or two-thirds. >
Remained for adjudication 1
, . 1 f J.j/'
or one- third. J
Decrees, defendants having absconded Ill
Nonsuits, plaintiffs not appearing 155
Judgmnts for plaintiffs on confession .... 97
Deduct on proceedings held, but without )
,. . . r
litigation )
Total litigated 893
These were disposed of as follows :
Exparte judgments for plaintiffs 167
Judgments for ditto, on issue joined* 449
Judgments for defendants 252
Totaldecided 868
Remain undecided for cause shewn (Istl
August 1819) J
Note. — By proclamation, in November 1819, the juris-
diction of the Court of Requests has been extended to 400
rupees.
If of the 92,058 causes on the files of the courts beyond
the metropolis, especially if of the 67,771 causes of small
amount depending before the native commissioners through-
out the country, the same proportion of them, m%. three-
fourths, are so easily adjusted as the above on the files of
the Court of Requests, the rolls of the courts would not be
so
* Of these, 210 were founded on bonds, notes of hand, and written
documents, other than open accounts.
THE JUDICIAL ADMINISTRATION. 371
so formidable. So, also, if the judges of the Calcutta Court
of Requests are able to decide, justly, so great a number
of litigated causes as 868 monthly, or 10,416 annually, that
is, 3,472 to each judge in the capital, or about eleven causes
daily, we might look with less dismay upon the files of the
courts in the provinces. The number of courts held by
European judicial officers, zillah judges, registers, joint re-
gisters, and magistrates, exceed one hundred ; which, if we
take the whole number of causes annually depending be-
fore all our provincial courts, both European and native, at
92,000, laying aside the native judges altogether, would
leave about 900 for each European judicial officer's court
to decide annually, or about three per day ; whereas, eleven
are, as above, decided by each judge of the Calcutta Court
of Requests daily. But if we take the whole of the Com-
pany's European judicial servants, about one hundred and
eighty, the above number of suits will give only 511
annually to each, or daily about one and three-fourths,
instead of eleven, as above.
The country under the Bengal presidency may extend to
about 260,000 square miles. *
Square Miles.
Bengal, Behar, and Benares, and Midnapore 1 62,000 -(•
Bundlekund * 10,000
Upper Dooabj and Agra and Dehlee 25,000
Cuttack 10,000
Allahabad, Rohilkund, Lower Dooab 53,286
Total Square Miles 260,286
Take the population, per Mr. Colebrooke')s estimate and
census,
* This calculation was made before the late conquests,
t Rennell.
2 B 2
372 THE JUDICIAL ADMINISTRATION'.
census, at 203 per square mile, it would give a total num-
ber of inhabitants of 52,830,000, exclusive of the inhabi-
tants of cities and considerable towns, as those were excluded
by Mr. Colebrooke.
Suppose then the population is, in even numbers, fifty-
three millions under the Bengal presidency. There are
forty-five zillah and city judges, which for 260,000 square
miles gives one judge to a space of 57 X 100 miles, or 5,700
square miles, and to 1,177,777 of population.* But sup-
pose there are forty-two zillah judgeships, and that six of
these judgeships (exclusive of the cities) are put into one
circuit, it would give seven circuits, each of an area of
150 x 250 square miles, 37,000 only ; not four times the
extent of one English county, Yorkshire, which is 10,350
square miles. So that were the local position of the
courts judiciously selected, their distance from the ex-
treme limits of their jurisdiction need not exceed from
70 to 125 miles, or from 35 to 60 coss : a distance, in
India, short enough to render courts of appeal sufficiently
easy of access.
There are, at present, under the presidency of Bengal,
six district or provincial courts of appeal and circuit. Of
these there are four in the Lower Provinces, viz. Calcutta,
Dacca, Moorshedabad, Patna, each of which contains the
following cities and zillahs ; and, according to the police
returns, they have the following number of villages under
their jurisdiction :
Calcutta :
* The extent of England and Wales is stated at 57,960 square miles,
and the population at 10,150,615 souls, giving 175 inhabitants to the
square mile.
THE JUDICIAL ADMINISTRATION. 373
Calcutta : No. of Villages.
Burdwan 3,496
Hoogly 4,934
Jungle mehals 4,241
Midnapore 10,675
Cuttack Ooo , 10,298
Nuddea 4,784
Twenty-four pergunnahs 2,907
Suburbs of Calcutta 763
42,098
Dacca :
City of Dacca 2,594
Dacca Jelalpore 2,713
Mymen Sing 8,667
Shylet 9,800
Tipperah 6,203
Chittagong 1,307
Backergunge 2,051
Jessore 4,775
38,110
Moorshedabad :
Moorshedabad, zillah and city ... 2,855
Purneah 4,785
Dinagepore 12,315
Rungpore , 5,788
Ragashye 8,710
Beerboom... 5,129
39,582
Patna^ inclusive of Ramgurh :
Patna, zillah and city 1,069
Behar 5,541
Shahabad 4,507
Tirhoot 7,223
Carried forward 18,340 119,790
Sarun
374 THE JUDICIAL ADMINISTEATION.
No. of Villages.
Brought forward 18,340 119,790
Patna, fyc. — (continued.)
Sarun 7,051
Bajulpore 5,567
A dd for Ramgurh the average of 1 5 333
the whole / — ! 36,341
Total number of villages in the four Lower i i 5^ 1 31
Provinces .-. j .
Average villages under one provincial court... 39,032 j
I have here added Jessore to the Dacca division, and
Bagulpore to that of Patna, to make the average number
of villages in each circuit more equal than they are as at
present settled.
The criminal trials at the circuits of the four courts of
the Lower Provinces, for five years ending with 1807,
averaged annually 5,831 : about 1,400 for each circuit, or
700 half-yearly ; one-half of which may be convictions.*
And with respect to civil suits, it is to be observed that
in a population such as that of India, where so many exist
upon the precarious earnings or collections of the day, and
where so small a proportion of the people have any property,
no estimate of the probable amount of litigation can be
formed on the basis of population. Property alone is the
subject of litigation. The number of persons that may
become litigants must therefore depend on the amount of
those who possess property, and may therefore be guessed
at from what follows.
Mr.
* Fifth Report.
THE JUDICIAL ADMINISTRATION. 375
Mr. Colebrooke* states, that by an actual census, 80,914
husbandmen holding leases, and 22,824 artificers paying
ground-rent, were found in 2,784 villages. So, if we take
these two classes together in round numbers at 100,000, the
number per village will be about 35 j ; and the total number
of villages in the above four provinces being 156,131, will
give us about 5,600,000 persons in the Lower Provinces
below Benares, who may be considered to possess property,
that may become the subject of litigation, or to each of
the four provincial courts, 1,400,000 persons who may be-
come litigants.
That this number, however, is much too high may be
shewn thus. We must suppose all leaseholders and arti-
ficers paying ground-rent to be heads of families ; and if
we allow even five persons to a family, it would give
5x5,600,000=28,000,000: a population of twenty-eight
millions of these two classes of society alone, m%. of hus-
bandmen arid artificers paying ground-rent, leaving out
even artificers who do not pay ground-rent, labourers and
servants of all descriptions, merchants, shopkeepers, and all
the other denominations of the people. Mr. Colebrooke's
calculation we must therefore lay aside.
In the Ceded and Conquered Provinces, the number of
persons holding engagements for land directly from go-
vernment was, in the year 1815, forty-five thousand. Co-
lonel Reade's census of the Baramahal gives of husband-
men, shudurs, or government-farmers 85,227
Carried forward 85,227
besides
* Husbandry of Bengal.
376
THE JUDICIAL ADMINISTRATION.
Brought forward 85,227
besides possessors of charity-land and private
property lands 17,314
Total husbandry class 102,541
to a population of 612,871, about one-sixth of
tenantry. To which, if we add one-fourth for
artizans, as above ; 25,635
will give a total of 128,176
There were 4,865 villages, however, so that the number
for each village will be about 26J ; which for the above
number of villages in the four provinces, 156,131, will re-
duce the number of persons of the above description from
5,600,000 to 4,105,000 (which is still far too many), or to
each of the four provincial courts, 1,026,250 persons who
may become litigants. But if we deducted one-fourth
from this, the number would be nearer the truth ; and it
would give, by the above calculation of five to each fa-
mily, a population of 15,393,750 persons of those two
classes of society alone. If we take this, we shall then
have about 770,000 persons who may be litigants for each
of the four provincial circuit courts of the Lower Pro-
vinces.
For the Upper Provinces, including Benares, three
courts of appeal and circuit would perhaps suffice ; to be
fixed at the following places, m%. Allahabad, Furrukhabad,
Meerut ; and the whole circuits, both of the Lower and
Upper Provinces, would stand thus :
First Circuit.
THE JUDICIAL ADMINISTRATION:
377
First Circuit.
No. of Villages No. of Villages
in each Z illah . in each Circuit.
Calcutta :
Calcutta, twenty-four pergunnahs
and suburbs 3,670
Hoogly 4,934
Nuddeah 4,784
Burdwan 3,496
Jungle mehauls 4,241
Midnapore 10,675
Cuttack , 10,298
42,098
Second Circuit.
Dacca :
Dacca and Dacca Jelalpore 5,307
Mymun Sing 8,667
Shylet 9,800
Tippera, 6,203
Chittagong 1,307
Backergunge 2,051
Jessore 4,775
38,110
Third Circuit.
Moorshedabad :
Moorshedabad, zillah and city ... 2,855
Purneah 4,785
Dinagepore 12,315
Rungpore 5,788
Ragashye 8,710
Beerbhoom 5,127
39,582
Fourth Circuit.
Patna :
Patna, zillah and city 1,069
Behar 5,541
Carried forward 6,610 119,790
378 THE JUDICIAL ADMINISTRATION.
No. of Villages No. of Villages
in each Zillah. in each Circuit.
Brought forward 6,610 119,790
Patna — (continued.)
Shahabad 4,507
Tirhoot 7,223
Sarun 7,051
Baglepore 5,567
Ramgurh, take at average 5,383
36,341
Fifth Circuit.
Allahabad :
Allahabad 6,329i
Benares (not known, but take ave-
rage of Lower Provinces) 5,383
Mirzapore (not known,take average) 5,383
Juanpore (not known, take average) 5,383
Goruckpore 11,617
34,095i
Sixth Circuit.
Futtyghur :
Furruckabad 2,880f
Caunpore 3,439
Banda or N. Bundlekund 2,493
Barelly (not known, but take ave-
rage of Upper Provinces) ...... 4,760
Etayah 4,014
17,585!
Seventh Circuit.
Meerut :
Agra (not known, but take average
of Upper Provinces) 4,760
Allyghur 4,529^
Moradabad 9,052f
. Carried forward 18,342£ 207,812£
North
THE JUDICIAL ADMINISTRATION. 379
No. of Villages No. of Villages
in each Zillah. in each Circuit.
Brought forward 18,342* 207,812*
Meerut — (continued.)
North Suharanpore 1,753
South Suharanpore 1,495
Dehlee (not known, but take ave-
rage of Upper Provinces) 4,760
26,350*
Grand total villages 234,161i
Thus it would seem that seven courts, having jurisdiction
as above, would be fully sufficient for the dispensation of
j ustice in the first resort, in important causes in appeal, and
for holding the criminal courts of sessions and of circuit
throughout the whole of the Bengal Presidency. But for
the better performance of the business of the circuit, to
ensure the presence of three judges in court for the decision
of civil causes, for the review of criminal matters, and the
general superintendence of the police, five judges should be
the number attached to each court of circuit, instead of
four as at present : two of whom to take the circuit in
opposite directions, which would give each the circuit of
three zillahs, and render the business sufficiently easy to be
performed without any risk of want of consideration from
too great hurry to get over a tedious and heavy duty.
One thing, which contributes to make the circuits in
India so irksome, is the extremely tedious mode of travel-
ling. The journey from one seat of court to another, at
the rate of twelve, or at most sixteen miles a day, makes
what in England would be termed a very short circuit, in
India a very long one.
I have
380 THE JUDICIAL ADMINISTRATION.
I have already suggested that the provincial courts
ought to be the courts of last resort, unless in very special
and important causes; and for these, that an appeal should
lie to the Governor-General in Council. These courts
ought also to be vested with special power with respect to
the police, in preserving the tranquillity of the country ;
and might be expected to bring to the notice of government
all circumstances which should come to their knowledge
relative to the good government of their district, in what-
soever department such circumstances might arise.
At present, the provincial courts are, I fear, held in very
little estimation, either by the natives or by the judicial
branch of the service generally. The reason seems plain :
they are really vested with very little power : none at all,
indeed, unless in cases of a comparatively trivial nature.
The more severe punishments are beyond their jurisdiction,
and the more important causes are appealable from them :
quoad these, therefore, the courts of appeal are little better
than offices for the transmission of such causes to a higher
authority. The respect accorded to courts so constituted
must be secondary. A dernier resort jurisdiction given
them, equal to that now belonging to the Sudder Adawlut,
would raise the provincial courts in the estimation of the
people, and give them a degree of weight in the provinces,
which would render them instruments highly valuable in
the administration of the government in every department,
generally ; and would be attended with the most beneficial
effects, in improving and facilitating the administration of
justice in particular.
I would therefore suggest :
1st. That the present courts of appeal and circuit be
abolished.
THE JUDICIAL ADMINISTRATION. 381
2dly. That the Conquered and Ceded Provinces, the
province of Benares, Behar, Bengal, and Orissa, be divided
into seven separate and distinct jurisdictions.
3dly. That a court, denominated a Dewannee and Ni-
zamut Adawlut, consisting of one chief judge and four
puisne judges, be established in each province.
4thly. That the jurisdiction of these courts be limited
to their own province, respectively: in which they shall
be supreme, both in civil and in criminal matters, except
in very peculiar or important causes, when an appeal shall
be admitted to the supreme government ; who might, be-
sides the opinion of their own legal advisers, call for that
of any number of the ablest judges, selected from the dif-
ferent courts above mentioned, to assist them in the deci-
sion : but that in all personal actions, where the amount
disputed is under 100,000 sicca rupees, their decision shall
be final.
5thly. That causes of an important nature, or of the
value of 20,000 rupees, or upwards, be instituted in these
provincial courts only ; and that appeals be received from
the inferior courts, if of a special nature, whatever the
amount in dispute may be ; and in all other causes of the
value of 5,000 rupees or upwards.*
Gthly. That these courts, in their nizamut department,
hold a sessions, at regular and short intervals, for the trial
of all criminal offences committed in any zillah, the court
of which is situated within the distance of thirty miles. The
sentence of the court at sessions to be final in capital cases
of conviction ; reporting for the orders and warrant of the
Governor-General in Council previous to execution; and sub-
mitting for the consideration of that high authority, any cir-
cumstances which mightbe deemed extenuatory of the offence,
tending to mitigate punishment or to call forth clemency.
Tthly.
* This might be raised from 5,000 to 10,000 rupees.
THE JUDICIAL ADMINISTRATION.
7thly. That the puisne judges of each court shall per-
form the duties of the circuit twice a year, or oftener if
necessary, two going on their respective circuits.
8thly. That those courts be vested with the control of
the police within their respective jurisdictions ; or the chief
judge of the court only, should this be deemed more ex-
pedient : the magistrates reporting to him, and through
him to government.
I am persuaded that this establishment and distribution
of the courts, provided they were filled with competent
judges, would be fully equal to the due administration of jus-
tice in criminal matters, in appeals, and in important causes.
The constant chain of appeals from one court to another,
combined with the deficiency in legal knowledge and of
business in general, which prevails in the judicial depart-
ment, and not the want of judicial officers, is, I apprehend
the great cause of that inefficiency which appears, and
which has been so often' and so much lamented, in the ad-
ministration of justice. Innumerable difficulties must, on
very trivial occasions, arise to a person who is but ill-in-
formed of his duty ; and it is thus that, besides very un-
satisfactory decisions, the most precious of all things, the
time of the court, falls a sacrifice to the ignorance of the
judge. Proceedings are heaped upon proceedings, delay
follows delay ; a desire on the part of government to re-
medy obvious defects occasions establishments to be mul-
tiplied upon establishments, equally inefficient perhaps with
the original ; and it is thus that no advantage is gained,
and no result appears but disappointment, and enormous
expense to government.
I now come to speak of the inferior courts. The next
in
THE JUDICIAL ADMINISTRATION. 383
in gradation to the provincial courts of appeal are the
courts of the zillah and city judges and magistrates ; the
judicial and magisterial offices being at present combined
in the same person.
To all of those zillah and city courts there are judicial
officers, called registers, attached, who are assistants to the
judges, but who also hold courts of their own for the de-
cision of minor causes. There are also, in gradation in-
ferior to the registers, junior civil servants, called assistants
to the judges and magistrates, to whom the judge assigns a
portion of the business of his court. All these are subor-
dinate to the judge : but the number is not fixed.
There are in some zillahs a higher class than the last-
mentioned, of judicial officers, that have been termed
" joint magistrates," and also, " additional registers," whose
jurisdiction is co-ordinate with that of the zillah judge.
In fact, a judge of part of the zillah, or perhaps part of
two zillahs, the limits defined : in short, as Mr. Stuart de-
signates them, "judges on worse pay" than the regular
zillah judges. These situations are filled by civil servants
younger than the class of regular judges. There may thus
be about four Europeans to administer the law and to
superintend the police in every zillah. There are, at the
moment I am writing, about one hundred and eighty civil
servants employed in the judicial department, employed as
functionaries, mostly invested with judicial power, holding
courts and passing decrees, and not, as in England it
would be, with a part of them performing the inferior
offices of the law.
The number of causes disposed of in the zillah and city
courts, by decision, adjustment, or nonsuit, for four years,
ending
384 THE JUDICIAL ADMINISTRATION.
ending in December 1816, exhibit an annual average of de-
cisions by the zillah European judges, &c. as follows : —
By the zillah and city judges 6,660
By ... do. do. registers 9,108
Total annually 15,768
which, if we reckon the judges at forty-five, will give for
each, to decide annually, about one hundred and forty-
eight causes ; and reckoning about sixty registers who offi-
ciate as judges, and about fifteen additional or second re-
gisters, who are deciders of causes, in number altogether
about seventy-five, we have for them each about one hun-
dred and fifty decisions annually; or it gives (making
allowance for Sundays and holidays) about two days to a
judge, and as many to those inferior officers, for every
cause they decide ; and if we take the whole number of
15,768 causes, and divide them among the above number
of one hundred and eighty judicial officers, we shall have
for each to decide annually about eighty-seven causes.
We can scarcely allow, then, that the judicial branch of
the duty of those officers, in civil matters, is very heavy ;
though to what I have stated, falls to be added, in their
capacity of magistrates, criminal jurisdiction in the lighter
offences. The chief part, however, of the duty which the
zillah and city judges have to perform, is in their capacity
of magistrates, or police officers. But as those duties are
at present united, the proportion of time required for the
performance of each branch has not been ascertained; and
hence the combined duty being too laborious, it is doubtful
whether the police or the judicial department of government
has suffered most.
In
THE JUDICIAL ADMINISTRATION. 385
In my estimation, it would be wise to separate the two
functions. The guardianship of the police, and the magis-
terial duties of a zillah, would undoubtedly be quite enough
for the labour of any one individual, even of the most active
and zealous of the Company's servants; and I think that
one judge, however active and zealous, might also be fully
employed in performing the duty of judge in a zillah;
though, under the proposed arrangement of the courts of
circuit, it might perhaps be found that thirty, instead of
forty-five zillah judges, might be sufficient for the whole of
the Bengal provinces'.
Many reasons might be assigned for separating the ma-
gisterial office from that of the judge. Justice requires
that every judge should enter upon a cause he is to decide
free from all bias. The duty of a magistrate renders him
liable to prejudice. The nature of a judge's duty requires
him to investigate patiently, and to decide deliberately ;
that of a magistrate requires him to be prompt and decisive.
He must act quickly, though he should act sometimes er-
roneously. A judge ought to possess a complete know-
ledge of the law. The same degree of knowledge is not
necessary in a magistrate and police officer. The habits
likely to form the one, are not calculated to perfect the
other ; and hence it must seldom happen that the two-fold
qualities of a good judge and a good magistrate are united
in the same person.
The zillah judges have original jurisdiction in causes to
the amount of 10,000 rupees. There should be no limit to
this. Their decisions might with advantage be held final
in mere personal actions, in demands, debts, and matters of
account, involving merely a definite sum of money, or value
of goods or chattels, to a very large amount : probably
2 c 4,000
386 THE JUDICIAL ADMINISTRATION.
4,000 or 5,000 rupees might not be too high. But, on the
other hand, in cases of real actions, questions of inheritance,
of landed property, and generally, in every cause involving
an indefinite amount, or question of general importance, an
appeal to the provincial courts ought to lie, whatever the
value of the subject-matter in dispute may be. Special
appeals to be received in all, even of the former class of
causes, should the inferior judge see reason ; or should the
judge of circuit, on a petition from the party desiring it, see
grounds for admitting an appeal to the provincial court.
The same principle with respect to appeals from the
decision of the assistant judges and registers to the judges
should prevail ; and, in that event, the limit, in point of
extent, of their final decisions, in cases of personal actions,
debts, and demands, &c., might be raised to 800 rupees :
their jurisdiction to extend to 25,000 rupees. But no cause
of any description exceeding 400 rupees, to be brought
before them in the first instance ; and those under that sum,
only in matters of debt, demands, and personal actions as
above ; all other causes to be instituted before the judge,
who will remit to his deputies and assistants, for investi-
gation and adjudication, such of them as he may deem
proper; exercising, in this respect, a judicious discretion as
to the complicated or simple nature of the case remitted.
Three essential points would be effected by this. The
nature of all suits, except simple demands of a trifling
amount, could be known to the judge, his power reserved
of deciding all such causes as should appear important or
complex, and every assistance attained from his inferior
officers, which they may appear to him capable of affording.
Thus, I apprehend, an ample provision would exist for
the
THE JUDICIAL ADMINISTRATION. 387
the distribution of civil justice; or if it should be found
to be still deficient, notwithstanding the full adoption of
all the precautionary means, for the prevention of litigation,
and for the speedy adjustment of disputes, which I have
above suggested, a few natives of acknowledged respec-
tability, and of tried character, might be employed in each
district in further aid of the judge : men of family, of edu-
cation, and of irreproachable reputation and habits of life.
A respectable salary of 300 rupees per mensem should be
allowed them ; and the ancient and constitutional appel-
lation of " ka%e^ would raise them in the estimation of the
people, and remind themselves of the sacred character they
ought to maintain and the high duties expected of them.
Two or three of these in each zillah, placed in eligible situ-
ations throughout the zillah, would be as many as would
be required or ought to be employed.
The extent of jurisdiction of the kazee might be limited
to demands and personal actions, to the extent of 800
rupees ; and their decisions to be final to the amount of
40 rupees, exclusive of costs.*
The Court of Directors have wisely authorized the em-
ployment of persons, such as are here described, with
liberal salaries, instead of paying their native judges, as at
present, by taxes, and per-centage on the causes they de-
cide : which holds out a strong temptation to these people,
not only to promote litigation, but to decide hastily, and to
prevent
* The extent of cognizance of the kazee might be raised, in per-
sonal actions, to a large amount, if the power and the ready means of
appeal were afforded, even to 10,000 rupees ; and the decision of the
kazee might be, in such cases, made final, to the extent of 100 or even
200 rupees, under a Avatchful superintendence of such courts.
2c 2
388 THE JUDICIAL ADMINISTRATION.
prevent amicable adjustment, which, by the Regulations,
would deprive them of their fees.
The number of sudder ameens and moonsifs, or native
petty judges, now employed, is not limited, but is very
great in the district of Burdwan, which I mention here,
knowing the number of thanahs in it : holding each thanah
to be furnished with its little judge, there may be no less
than sixteen, perhaps twenty, of these gentlemen of the
bench in that zillah ; assuming which number as an ave-
rage, it would give for the Bengal provinces about nine
hundred persons invested with judicial powers, in causes
under 150 rupees, in the courts of the sudder ameens,
and 64 rupees in the courts of the moonsifs. But if we
take the average number of villages in each thanah, as in
Burdwan, at about two hundred and eighteen, and esti-
mate the number of villages under the Bengal presidency
at 400,000 or at the least at 360,000, as assumed by the
court of Sudder Dewannee Adawlut, in their report of the
9th March 1818, the number of moonsifs would exceed
1,800, instead of 900. This estimate of villages, however,
is known to be incorrect.
My own experience of the natives of these provinces,
makes me adverse to employing them in situations of power
and of trust without efficient control. To multiply, then,
the number of individuals who have power, is only to in-
crease the sources of oppression to the people. As, how-
ever, we must have tribunals of some sort, rather than
multiply these, I would recommend that the respectability
of the individuals, thus vested with authority, should be
increased, and their numbers greatly diminished. Nay,
adverting to the state of society in India, and to the moral
condition of the people, till that has been improved, I
would
THE JUDICIAL ADMINISTRATION. 3S9
would strongly recommend that native agency in situations
of responsibility, should be dispensed with entirely, unless
in situations over which there is a most efficient European
control. With such control, however, they are valuable
servants, and may be employed with the greatest advantage
to government, and with benefit to themselves. If we de-
sire to elevate them beyond this, we shall succeed only, in
general, in affording them the means of evincing, in a more
prominent manner, that as yet they are unfit for such ad-
vancement. I speak generally ; for among so many there
must be found some honourable persons : but the few of
this description, I fear, will only prove the force of the
rule, by appearing as exceptions from it.
I am well aware that I shall have to combat the opinions
of many abler and more experienced men than myself on
this point. Many recommend the employment of the
superior classes of the natives, in order to keep up the
respectability of what they term the aristocracy of the
country, and to make what they are pleased to call the
gentry subservient to our views in the government. No-
thing is more apt to mislead than the use of terms, highly
significant in our own country, as descriptive of persons
or things in another. The great value to the executive
government of the enlightened aristocracy of England,
stamps a high significance on the word ; but people forget
that, if there be an aristocracy in India, it is an aristocracy
distinguished from the people by no moral quality, by no
superiority of education, by no strength of mind, by no
power of communicating the ideas the individual may
chance to possess, superior, often indeed not equal, to the
husbandman that turns up the soil on his estate.
The fashionable opinion of the day would lead us to
believe.
390 THE JUDICIAL ADMINISTRATION.
believe, that pagan morality in India is, at least, equal to
that of our Christian countrymen in Europe, and very
great men are quoted in affirmation of that persuasion ;
but in opposition to my own senses, with experience
equal to many of those who dissent from my opinion. I
care not for names. The authority of Sir T. Munro,
of Sir John Malcolm, of Bishop Heber, is quoted in sup-
port of the integrity of the native character. The senti-
ments of the two great men first mentioned, on this point,
are of the highest value; but the opinion of Bishop
Heber, formed during the short period of his residence
in India, notwithstanding his acknowledged acuteness, can
hardly be relied on. Moreover, the intercourse of a man of
high rank with the natives of any country must be very
limited : and what is still more likely to disqualify Bishop
Heber from being an accurate judge is, that he could
never have seen them but in a fictitious character, acting a
higher part on the stage of civilization than, in their deal-
ings with their equals or inferiors, they really occupy.
Who would shew the cloven foot before a bishop ? And
with respect to the other eminent men above-mentioned, an
exception may also be taken to their testimony, though on
very different grounds. Sir T. Munro and Sir John Mal-
colm could hardly be deceived by a native with impunity.
The control, the check, which the great sagacity and ex-
perience of those valuable servants of the Company enabled
them to exercise over those under them, secured to them a
degree of integrity in their subordinates, which, I appre-
hend, may be rated far above the standard of Indian mo-
rality. These men may be said to be, by their own superior
energy, absolutely disqualified from forming a fair opinion
on this point. The wolf is a lamb before the lion. It
does by no means follow that the same men, who would be
honest under the vigorous control of Sir John Malcolm or
Sir
THE JUDICIAL ADMINISTRATION. 391
Sir T. Munro, would be trustworthy under less rigid ma-
nagement ; much less so under no direct control at all. But
even Sir T. Munro did not find his opinions verified. Let
us see what the native officers were found to be even under
the eye of such a master as Sir Thomas Munro himself, who
informs us " that of about one hundred principal division
" and district servants who have acted under me, during
" the last seven years, there have not been more than five
" or six against whom peculation, to a greater or smaller
" extent, has not been proved" (Judicial Selections, vol. ii.
p. 231, Sir T. Munro's Report, April 1806). Here is a
statement of fact which outweighs a thousand opinions. If
but five or six in one hundred escaped conviction by proof 9
how many were really pure ? Probably not one. I con-
sider this, from Sir Thomas Munro, worth all the evidence
which the records even of the Indian administration could
furnish, and proving that, as yet, the native of India has
not reached that point at which he can be safely intrusted
with power, except under efficient control. But, as I have
before said, I am still of opinion, that with such control
they are valuable servants, and ought to be so employed.
It is in this way, in my humble estimation, that the ulti-
mate end of those who most strenuously advocate the em-
ployment of the natives, will be best, and even speediest
attained. The people will thus gradually become con-
vinced of the advantage of upright conduct ; and we shall
find that many, by such superintendence, will escape from
temptation, to which, were greater confidence reposed in
them, they would assuredly fall victims : and, thus saved,
they may become valuable assistants in the administration of
the government. We forget that, in our own country, there
is hardly any individual in authority, whose acts are not
subject to some species of control. Every man in England
has
THE JUDICIAL ADMINISTRATION.
has an eye over public functionaries, who consequently
have no security, except they keep themselves entrenched
behind the impregnable bulwark of unshaken integrity.
In England, there is no disposition to conceal, but rather
an alacrity in proclaiming, any laxity which may be per-
ceptible. In India the case is quite the reverse. Disap-
pointed revenge may sometimes bring to light delinquency ;
but there is an habitual apathy which abhors trouble of
every sort, and even disqualifies the people for acting;
whilst the practice of exacting undue gain is so universal
among them, that it not only excites no emotion, and has
long ceased to be disreputable, but the exposure of it is a
rare occurrence, a marked event ; and is indeed execrated
as a barbarous act, inasmuch as it subjects to punishment
a man who, in their eyes, has committed nothing of a
crime.
The legislator, therefore, who should entrust the admi-
nistration of India to the people, would in fact be acting
on the principle, that to secure integrity you have only
to confide. The feelings of nations are different on dif-
ferent points. If a Hindoo eat with an inferior, he be-
comes a marked and a degraded man ; his equals will not
associate with him : but he may persecute the poor, or
plunder a province, without any such degradation. The
legislator for India, has, therefore, in this respect, not the
same security as he would have in England against oppres-
sion.
Much has been said of the benefit which is to be derived
by the Hindoos to their morals from the exertions which
have, for some years past, been made to introduce European
education among them. For my own part, I know of no
species of education, except that of a sincere Christian,
which
THE JUDICIAL ADMINISTRATION. 393
which can be fully relied on for producing a favourable
change in the moral character of any people. It is the
heart, and not the head, that must be educated. Science,
and mere philosophical knowledge, are no national security
against immorality. Such knowledge may even prove worse
than useless ; " for in much wisdom there is much grief,
" and he that increaseth knowledge increaseth sorrow." I
believe some of those who have been the most active in
promoting this species of education, are not altogether
satisfied as to the consequences. They have been feeding
the fire, and " getting up the steam ;" and now comes the
necessity of looking out for a safety-valve by which it may
have vent. This safety-valve, they tell us, is public em-
ployment ; and it is daily repeated, that, in our administra-
tion of their own country, " we pass over the natives ;
" whereas, it cannot be denied, that it is both reasonable
" and politic to employ them, especially the higher classes,
" in the service of the state, for that it is only in this way
" that they can feel any interest in the stability of our
" government.^ I think these are very doubtful positions.
I think, were it possible for us to succeed in administering
our government of India by means of the natives, that the
natives of India would then prefer that the government
should be their own government, and not ours. No country,
however, can afford to employ every idle scion of the aris-
tocracy. In our own country, if we except the army and
navy, there are not a great many of the higher orders
in public employment. But the state must have men
qualified for public employment ; and if the higher classes
in India were so qualified, unquestionably they would be
employed. Then, has it been ascertained that there are
really so few situations in India for respectable natives ? I
apprehend, if we set aside those of the higher classes who
are disqualified, either by their prejudices, their indolence,
or
391 THE JUDICIAL ADMINISTRATION.
or their unfitness, it will be found that the proportion of
those employed, who are qualified, is not small ; and that,
if we take their avowed, and unavowed income, they are
by no means pitiable in point of emolument.
We must never forget, that it is to the great body of
the people we owe our special care, and not to any parti-
cular class, high or low. In selecting individuals for office,
we are, therefore, bound to look for those who will, most
surely and successfully, manage public affairs, without
regard to rank, creed, or colour. If we imagine that the
natives of India will become attached to our government
by our employing their countrymen to rule over, though
they should rob them, we shall deceive ourselves. I be-
lieve the feeling among the natives, from one end of India
to the other, is (and I am sure that the testimony on public
record is almost universal), that the people of India have
more confidence in our integrity than they have in that of
their countrymen.
A mild and a just government, brought more closely
among the people, by the system of revenue which I have
followed more able men in venturing to recommend, would,
I am persuaded, be the most direct means of acquiring for
us that popularity we shall vainly seek for through the
medium of native agency ; which, be it remembered, can
never, in the estimation of the people, elevate the character
of our government : for, if that agency be good, it is their
own ; and they will hardly rob themselves of the merit, to
give us the praise we aspire to. They cannot hope for that
purity of function from their countrymen, which they ex-
perience from the able and intelligent European servant of
the state. All their experience is opposed to such an ex-
pectation. Let us look at what is passing around us every
day.
THE JUDICIAL ADMINISTRATION. 395
day. At the moment I am writing, I find the natives of
India, and of Calcutta in particular, lauded in the British
parliament for their moral character, their integrity, and re-
spectability ; but when I go to Calcutta, I see that many
of those very men, who have heretofore moved in the highest
circles of native society, who have associated with the first
orders of Europeans in that city, have been convicted,
accused, or suspected of the most atrocious frauds, and that
no one will have any dealings with them.
Far be it for me to affirm that honesty and integrity are
nowhere to be found among the natives of India : what I
have stated applies to the character of the nation generally.
That individuals may be found worthy of confidence, I am
far from denying ; but the question under discussion is a
general one, and must be answered generally : that, as yet,
their state of morals, and their notions on particular points,
are such as render the employment of the natives of India,
in situations of trust and responsibility, hazardous to the
happiness of the community, and to the welfare of the
country, except under efficient control. I am farther of
opinion, that integrity cannot be secured by any degree of
confidence, or scale of allowances, however large. Cass
Chitty was no less a character than treasurer, holding a
situation of high trust and emolument, yet the extent of
his nefarious peculation, say the government of Fort -St.
George, in 1812, in one district (Coimbatore), in seven years,
was upwards of six lakhs of pagodas, about 21,00,000
rupees : " he had made fraudulent collections to the ex-
" tent of 3,00,000 pagodas, which the ryotwar settlement
" of 1816 enabled government to discover." So that the
maxim, of high salary and great confidence securing ho-
nesty, was precisely reversed. The magnitude of his depre-
dations corresponded with the extent of trust reposed in him.
And
396 THE JUDICIAL ADMINISTRATION.
And let us look to more modern times, to the late enor-
mous delinquency, under the Bengal government, in the
opium department, first, and then in that of the salt ; by
which the revenue has sustained a heavier loss than is
known, or can well be imagined. By connivance of the
native Aamla of the opium agent, the Bengal opium was
adulterated, so that it not only lost its name and its sale in
China, and by consequence fell enormously in price at the
Calcutta sales ; but government was under the necessity of
indemnifying purchasers of spurious opium to the amount
of 14,00,000 rupees. So in the salt department, The head
native of that department, a man in whom the utmost con-
fidence was placed, whose opinion was highly valued if not
implicitly relied on, who had been upwards of thirty years
in his situation, was the principal organizer of a system of
false entries of money deposits, which enabled him and his
associates to effect the delivery of salt without payment ;
by which government, at one time, it was expected, would
lose sixty lakhs of rupees, and the actual loss, I believe,
was very great.
I mention these instances, not because it is necessary to
support the opinion I have advanced ; for, I believe, the
assent of most of those who have had sufficient knowledge
of the people is with me ; but only because they have been
very prominent, and attended with very serious conse-
quences, both to the government and the public. I am of
opinion, therefore, that as a general principle, the employ-
ment of natives in the administration of the government,
without corresponding control, cannot be safely extended.
But as natives must be employed, and may be, under con-
trol, with eminent advantage, let us see what number of
select men would probably be sufficient for the subordinate
administration of justice.
Allowing
THE JUDICIAL ADMINISTRATION. 397
Allowing three provincial kazees to each zillah, or about
one hundred and twenty for the whole of the Bengal pro-
vinces, and supposing they had to decide as many causes
as the sudder ameens and moonsifs now do (though I pre-
sume the number might be greatly reduced), let us see how
many suits would fall to the file of each kazee. On the
1st of January 1817, as above, the number of suits on the
files of the sudder ameens and moonsifs was 67,771.* The
kazees being 120, the average gives to each 564J- causes
annually ; or, allowing for holidays, not two a day.
Were the number of kazees, therefore, limited to two in
each zillah, their business would be light indeed. But then
I am told the distance from the courts would, in that case,
be so great, that the people would be thereby deterred from
seeking justice, and every facility ought to be given them.
This requires consideration.
I am one of those who think that very great facility to
litigation is not desirable, but, on the contrary, very objec-
tionable. I am of opinion, that the principle of forbearance
with one another ought to be inculcated among the people,
and that disputes in matters of small amount and trivial
quarrels should be left, as much as possible, to be adjusted
by the people themselves ; and to this end, I conceive, ready
access to courts of law by no means conducive. The most
ignorant of mankind know very well how to balance incon-
veniences ; and if they find it less irksome to put up with a
trifling loss than to go a journey to court to complain, they
will refrain from going, and have their dispute adjusted by
their village peers, their punchayet ; who, besides adminis-
tering justice, will make a point of reconciling the parties,
which no court will or can do, but which nevertheless is, in
most
* See Sudder Dewannee Report, March 1818.
398 THE JUDICIAL ADMINISTRATION.
most cases of the nature here alluded to, of far greater con-
sequence to the good and peace of society, than the mere
decision of the matter in dispute, even though just.
Nor, were it possible, do I think it incumbent upon a
government to provide for the decision of minor causes, so
as to ensure to them the same minuteness of investigation
as in important questions. It is not sound doctrine to tell
us, as some do, that the greatest cause and the smallest are
precisely the same in the eye of justice, and that the law-
giver and the judge ought to make no distinction between
them : that the poor man's mite is as much to him as the
bushel of the rich. They forget, however, the relative
situation of individuals in society. The importance of a
thing is precisely in proportion to the power or influence it
is capable of exerting, or of being made to exert, in the
sphere in which it may be placed. The loss of the poor
man's mite, though perhaps his all, is felt by himself only ;
that which affects the rich, extends its influence over hun-
dreds who depend upon him. The decision of any one
small matter of dispute, though wrong, provided it be un-
biassed, cannot be attended with important consequences
to the community, more than the accidental demolition
of a petty hovel could affect a city; and, therefore,
such disputes may, and indeed must, be left to the de-
cision of inferior persons, and must be decided in a sum-
mary manner.
What I should desire to see established in India are
able European judges ; the courts open to all, ready of
access, but by no means inviting to the litigant ; prompt
decision; not that every hamlet should have its lawyer,
every village its judge. The temple of justice, though
open, should be made approachable only with reverence ;
not
THE JUDICIAL ADMINISTRATION. 399
not on trifling occasions, nor even without some anxiety, if
not difficulty : let no one linger therein.
I cannot omit expressing my humble opinion, in this
place, that great advantage might be derived, by investing
with judicial, as well as magisterial power, European gen-
tlemen, not in the Company's service, resident in the in-
terior, who are known to have an intimate knowledge of the
customs of the country, of the people around them, and by
whom they are respected. Many most worthy, intelligent,
and highly respected gentlemen are to be found all over
the country, to whom jurisdiction to a certain extent might
be given in civil disputes, — such as those of boundaries, of
right to water, to fish, to pasture, to wood ; disputed rents
between the cultivators and landlords ; differences between
these about pergunnah rates of rent, and every matter
having reference to husbandry. It often happens, that men
carry on disputes for want of a person to whom they can
appeal, which at first are trifling, but in the end become
very serious. The natural respect accorded to such a man
as I have described would at once point him out as the
fountain of justice between them, and they would submit to
his decision.
In criminal matters, to what extent it would be advisable
to empower the zillah judges to sit, and to sentence on con-
viction, next requires our consideration.
In the trial and conviction of criminals, the duty of the
magistrate and public prosecutor is, generally speaking, the
mostintricate and difficult to perform. These have the proof,
the grounds of conviction to search for and to display before
the judge. It seldom happens, in criminal matters, that a
case of great intricacy in regard to decision occurs.
But
400 THE JUDICIAL ADMINISTRATION.
But supposing it were otherwise, as the law by the Re-
gulations now stands, the selection is between an individual
zillah judge and an individual circuit judge. The expe-
rience of the latter may, generally, be greater than that
of the former ; but, on the other hand, he is more likely
to be pressed for time : and several other disadvantages
attend an itinerary judge to which a fixed court is not
liable.
I would, therefore, admit the jurisdiction of the zillah
j udge, in criminal cases, to every extent ; but direct that
he should postpone all trials which may involve life, or
transportation, or imprisonment for life or for more than
one year, until he should be joined by the judge of circuit,
who would sit along with him, and preside on capital, and
perpetual or more than one year's punishment trials ;
their unanimity to be required to convict. All trials before
the zillah judge alone, involving imprisonment for one year,
to be reviewed by the circuit judge, in presence of the pri-
soner, with power to call witnesses ; and if he coincided
with the zillah judge, sentence to be executed. If he dif-
fered from the zillah judge, the prisoner to have the benefit,
and the lighter punishment to be awarded. So, if the
united judges did not agree in all trials at which they both
sat, the prisoner should have the benefit of their difference
of opinion, and be acquitted, if they differed as to guilty or
not guilty. If their difference related to extent of punish-
ment, the lesser to be inflicted.
Thus the circuit judge would both prove a check over,
and himself have the benefit of, the local information of
the zillah judge; and justice would be benefited by the
combined wisdom and united exertions of both, in matters
of the higher importance.
I have
THE JUDICIAL ADMINISTRATION. 401
I have not the means of ascertaining what proportion of
the criminal business of the courts would thus be dispatched
by the zillah judges, and consequently, how much most
harassing and tormenting, and I may add highly obnoxious,
duty, the public would escape from, of repeated and tedious
attendance as prosecutors and witnesses at the courts ; nor
how much money, for the maintenance of accused persons
and witnesses, would be saved to government. But, un-
questionably, in all points of view, the relief here contem-
plated would be desirable.
The crimes and offences that would come under the sole
jurisdiction of the zillah judge would be libel, defamation,
adultery, fornication (including seduction), all of which are
criminal offences by the Moohummudan law ; theft, shop-
lifting, housebreaking in the day or by night, furtively,
and not by force or by gangs ; and, generally, all offences
which are not usually accompanied with a breach of the
peace, unless they be attended with dangerous violence
against the person: excluding, however, perjury and
forgery, unless these happen in cases in which decisions
and sentences of the zillah judges are held to be final, as
above.
The combined judgment of the circuit and zillah judges
would be made available in trials for the greater crimes, as
murder, homicide of all descriptions, maiming, wounding,
rape, highway robbery, dakoity, burglary, larceny, attended
by force and terror, arson, burning or destroying of corn-
fields or crops, cattle stealing, perjury and subornation of
perjury; in the more important causes, forgery, fabrication
or falsification of deeds or other documents, riot, rebellion,
destruction of public records or registers ; and, generally,
all heinous and aggravated crimes and offences, involving
2 D the
402 THE JUDICIAL ADMINISTRATION.
the security or peace of society, or of the government, or of
individuals.
The native judges ought not to be entrusted with cri-
minal jurisdiction at all, unless perhaps in light affrays and
abusive language, where a fine of five rupees or so might
be the award.
How far the scale and degrees of punishment, as at pre-
sent established in Bengal, are suited to the nature of
offences and to their prevalence, I very much doubt. One
thing, however, is certain, that in fixing a scale of punish-
ment, it is of the highest importance to attend to the
feelings and ideas of the people. The Moohummudan law
recognizes this as a principle, and does not, in cases of mere
misdemeanor, award the same punishment to all ranks of
society. It is impossible to feel that the pillory, some
time ago awarded in the case of a noble lord guilty of a
frolic, though a legal fraud, the high-minded and gallant
partizan of the Spanish Independents, and in the case of
the grovelling wretch pilloried and pelted for perjury or a
more abominable crime, are in degree or in essence the
same punishment.
I have, lastly, on this head, to notice a subject which
seems to have given rise to great difference of opinion
among the Company's civil servants in the revenue and
judicial branches of the service, viz. whether it would or
would not be desirable to give the collectors and revenue
officers jurisdiction in questions connected with the revenue,
rents, disputed boundaries, &c.
The judicial officers, as appears from the opinions of
those who have been consulted, generally, almost univer-
sallv,
THE JUDICIAL ADMINISTRATION. 403
sally, indeed, have shewn a disinclination to give up any
part of their judicial authority ; while, on the other hand,
the opinions of the collectors, who have been consulted,
and revenue officers, are pretty generally in favour of this
additional power being conferred upon themselves. The
Board of Commissioners for the Ceded Provinces, in their
Report, 25th April 1817, state their opinion to be, "that
" all questions between landlord and tenant will be adjusted
" more speedily, more satisfactorily, and with more con-
" sistency, in the principles of decision, by the revenue au-
" thorities. A right decision," they allege, " in cases of
" summary process for arrears of rent, &c. must depend on
" an intimate knowledge of village accounts, and on the
" minutiae of revenue operations, which the courts of judi-
" cature cannot possess." Why not possess ?
The principal reason assigned by the collectors is, that
they are, generally speaking, better informed on such sub-
jects than gentlemen who have been only in the judicial
line of the service.
The judges, again, say, " that a zealous collector has no
" time ; and if he had, that there is not that confidence
" subsisting between the collector and the people, who
" look upon him as a person whose situation places him
" in direct opposition to them and their interests ; and
" moreover, that most cases of controversy, among the
" people even, are more or less connected with, if they
" do not arise out of, the acts of the collector himself, or
" of his officers ; whereas the judge is looked upon by
" them, if not as their protector, at least as a disinterested
" person/1
With respect to the point of superior qualification pos-
2 D % sessed
404 THE JUDICIAL ADMINISTRATION*
sessed by the collectors, I think we may doubt its admissi-
bility, because it would go to the extent of proving total dis-
qualification for the judicial office ; and from having already
made ample provision for the administration of justice, the
reader will, I conclude, infer that I am not an advocate for
employing the revenue officers as judges, in any matters
whatsoever. I am, however, of opinion, that they may be
employed, and with great advantage, as magistrates and
justices of the peace ; but of this in its proper place. I
shall farther remark, that most of the writers, on both sides
of the question, have taken too extensive a view of the pro-
position submitted by the Court of Directors for their sen-
timents upon it. The suggestion of the Court of Directors,
to which the whole is referable, is " whether the collectors,
" and other revenue officers, might not be employed in
" settling disputes respecting land-rent between land-
" holders and their immediate under-tenants, and between
" the latter and the ryots, including complaints of the latter
" for undue exactions, subject to the revisal of the regular
" courts of justice, by way of appeal, in cases of sufficient
<; importance ; also in disputes respecting bound aries."*
In all these cases, there seems nothing in the official
duty of a collector to disqualify him, on the ground of
partiality, from being a judge. But how far the number
of collectors in the permanently settled provinces of Bengal,
&c. (in which advocates of the permanent settlement have
so often told us the revenue is so fully and easily realized),
might admit of their performing more duty than they now
do, I am not competent to say. If, however, their duty be
too light, their numbers might be diminished. But were
the mode which I conceive to be the most approved, of
collecting the land revenue of India introduced, I cannot
hesitate
* General Letter, 9th November, 1817.
THE JUDICIAL ADMINISTRATION. 405
hesitate to think that no collector, who performed his duty,
would have leisure for other employment.
Were I to propose that the zillah judges, supposing
them to have leisure, should be empowered to collect part
of the revenue, I should expect to be told that the propo-
sition could not be listened to, for many and substantial
reasons. But still it would in no way essentially differ
from that of those, who propose to empower the collectors
to sit as judges.
The collectors, however, and revenue officers, might in
one way be employed, in a most essential and satisfactory
manner, as the Court suggest, in the settlement of disputes
respecting land-rent between landholders and their tenants ;
or rather in preventing such disputes, by attending to the
village and pergunnah records, which might with propriety
be put under them ; and if they executed that branch of
their duty carefully, there would seldom, indeed, be any
room for dispute between " the landholders and their under-
" tenants, and between these and the ryots," because those
records are intended to register every transaction between
these classes of the people ; and where accurate accounts
are kept there can seldom be room for dispute.
We may further remark, that every decision relating to
disputed boundaries involves in it the interest of govern-
ment ; and it is not to be doubted that the courts of jus-
tice have often been made the blind instruments of de-
frauding the state. By the mode of settlement in Bengal,
every zumeendaree has a fixed jumma or rent; but, gene-
rally speaking, the boundaries are but ill-defined. It is
evident that if the boundaries are disputed by one zumeen-
dar, and by fraud he establishes his right to part of his
neighbour's
406 THE JUDICIAL ADMINISTRATION.
neighbour's estate, or if two neighbouring landholders should
collusively effect this through a decree of a court, the estate,
robbed of part of its lands, though less valuable, being still
liable to the same jumma, will probably be in the first
instance confiscated for arrears of revenue, and ultimately
government will be obliged to reduce the revenue demand-
able from it, whilst the fraudulent neighbour enjoys his
additional village, or villages, at the old rate of j umma ;
and thus, either by fraud on one side, or by collusion on
both, the court is made the instrument of defrauding go-
vernment of part of its just revenue. The collector, there-
fore, whatever be the mode of adjusting a disputed boun-
dary, ought to be made a party to it, in order to watch
the interests of government ; and how far their acting as
judges in the same cause would be consistent, may be
questioned.
The question, how far punchayets are useful, or might
be made available to the administration of justice, is worthy
of attention. A punchayet is an assemblage of persons for
the purpose of settling disputes between parties of the same
caste or class of society with themselves. This is essential ;
but in matters relating to caste, it is not essential that the
disputants should be assenting to the arbitration of the
punchayet. This very ancient and self-created tribunal
will pass its decrees and proceed against the parties, to the
extent of excommunication, if they are not obeyed. From
the very nature of the tribunal, therefore, the high with the
low, the rich with the poor, could but seldom, if at all, br
brought before it ; and these classes, for the most part, form
the oppressors and the oppressed. Neither could persons
of different sects, though in other respects equal, be
brought before the punchayet. Its efficiency, I apprehend,
could therefore not be relied upon; though it would be
highl y
THE JUDICIAL ADMINIST11ATION. 407
highly advisable to encourage it, as well as every species of
arbitration, by every means practicable.
The idea of authorizing persons to be arbitrators, of
vesting individuals with the powers of arbitration, as sug-
gested by some, appears to be very unnecessary, if not su-
perfluous. May I ask, is there any objection to allowing
parties to settle their disputes themselves ? If there be
not, can there be any objection to allow them to refer the
adjustment to any third person they may select, whether
such third person be an authorized arbitrator or not ? The
law and usage of India, and I believe of every country,
authorize voluntary submission to the decree of an upright
and disinterested arbiter ; and I cannot see on what prin-
ciple it can be disallowed. All that is required of the
law, in cases of arbitration, is to authorize judges to execute
the written decrees of arbitrators, unless fraud can be esta-
blished against them.
But, as much has been said on the subject of introducing
such village arbitrators, as well as the trial by jury, into
the public administration of justice in India, I will, in this
edition, submit the following further considerations on these
questions. Many have fancied they saw in the Hindoo
punchayet every thing which constitutes the essence of the
English jury. The punchayet has also been called the
" common law of India." But the punchayet is no law :
it is a village tribunal, guided by no law, voluntarily as-
sembled, by the consent and at the request of the parties
(unless indeed in cases of caste), to settle a particular dis-
pute between them, specifically submitted. It is, therefore,
purely an assemblage of arbiters, called upon to decide a
dispute, on the broad principles of equity and the custom
of the community ; utterly useless to government, because
it
408 THE JUDICIAL ADMINISTRATION.
it requires the voluntary institution of the parties in every
individual case. As a tribunal, punchayets cannot be
ordered by government, so as to be available for the admi-
nistration of justice. They should, however, be encouraged,
and the way to do this is, by government giving ready
effect to their unimpugned awards. Wherever more has
been expected from punchayets, or more authority at-
tempted to be combined with them, the scheme has utterly
failed.
The trial by jury has been introduced at Ceylon, and
we are told, with success. Sir A. Johnston, who was there
the originator of that system, gives the most favourable
account of the advantages which have resulted from it, not
merely in the administration of justice : he ascribes to it
the happiest results "in reforming the morals of the
natives." But that enlightened and benevolent judge was
probably too sanguine. The difficulties previously expe-
rienced at Ceylon, in the administration of justice, were
those which are experienced in every other part of India :
" Our ignorance of the laws and customs, manners and
" language, of the natives, their apathy, and their want of
" veracity."" — " The obvious way," he says, " of remedying
" these evils, was first to give the natives a direct interest
" in the system, by imparting to them a considerable share
" in its administration : to give a proper value for veracity,
" by making it a condition on which they were to look for
" respect from their countrymen, and to hope for promotion
" in the service of government" But how their being
jurymen necessarily led to this " promotion," we are not
told. " Every native of Ceylon and permanent resident,
" who was a freeman and twenty-one years of age, was
" qualified to be a juror; and they were assembled thus:
" As soon as a criminal sessions was fixed, a considerable
" number
THE JUDICIAL ADMINISTRATION. 409
" number of j ury men, of each caste, was summoned : taking
" particular care that none was summoned out of his turn,
" that no interference should occur with any of his agri-
" cultural or manufacturing pursuits, or religious cere-
" monies." Now these conditions appear to me to render
the jury system quite impracticable, as there is certainly no
possibility of finding " a considerable number of persons of
" each caste" thus disengaged, unless in large cities, or if
they were disengaged, willing to quit their homes, for the
honour even of sitting on a jury ; and the more especially,
if such a jury should be expected to give a verdict faith-
fully, even to the extent of hanging a Brahmin. And
here, by the way, we may just note this, as one example of
the difficulty of introducing English laws and institutions
into India.
Then we are told, "the jury are assembled to hear the
" charge delivered by the judge." Whether they under-
stand it or not, we are left in much doubt ; as he after-
wards says, "the prosecution being closed, the judge
" (through an interpreter when necessary) recapitulates the
" evidence to the jury from his notes, adding such obser-
" vations as he may deem right." Now, with every desire
to pass over trivial errors, this does appear to me to be any
thing but an improvement in the administration of j ustice.
Again : " The judge declares the law, and the jury judge
" of the fact." Thus, we have the exploded law of England
transplanted into Ceylon ; with the addition of the ex-
planation of that law being given from the mouth of a
judge, whose language the jury is made to understand
through an interpreter. But the law of England is rather
an intricate subject for such an operation. We have yet
to discover in India interpreters of such a stamp as those
whose services would here be required.
We
410 THE JUDICIAL ADMINISTRATION.
We are then told that " no man, whose character for
" honesty or veracity is impeached, can be enrolled on
u the list of jurymen ;" and the consequence has been, that
" the right of sitting upon juries has given the natives of
" Ceylon a value for character which they never before
" felt, and has raised, in a very remarkable manner, the
" standard of their moral feelings." These are the natives
who were, before, stated " to attach little value to a cha-
" racter for veracity." But it would, indeed, be miracu-
lous if, within so short a period, so great a national change
had been produced by such means. It is very natural that
an amiable individual, anxious to promote the welfare of
his fellow creatures, should take, if not an exaggerated, at
least a very favourable view of the result of his own efforts.
But those, who desire to follow in his footsteps, have not the
excuse, when they heedlessly act upon such information.
It is probable that Mr. Wynn in his late Jury Bill for
India, may have had too prominently in view the picture
drawn by the Ceylon judge. But whether he had or had not,
there are few in India, it is believed, who are not disposed
to think that it is too early in the day for the adoption of
such measures ; and that, instead of the privilege, as it is
called, of sitting on juries being desired by the natives of
India generally, they would much prefer the privilege of
sitting at home. Nor is it likely, that what Europeans
deem to be an irksome duty, should be long cherished as a
privilege by the Hindoos.
But the question of popularity is of little importance.
The natives of India are, as yet, from their imperfect
knowledge of the English language, absolutely incompetent
to perform the duty of a juror. Many natives of the
towns of Calcutta, Madras, and Bombay, speak the^com-
mon
THE JUDICIAL ADMINISTRATION. 411
mon colloquial English with tolerable fluency ; but, be-
yond the language used in conversing on the ordinary
topics connected with their several professions, they have
little knowledge, and of the idiomatic signification of the
English language they are utterly ignorant. Yet on that
very often hinges the essence of what in most cases they
are called upon to decide, as to the matter of fact, and
much oftener does the question of law require such an
acquaintance with our language. On this head we may
derive further information from what was said by the chief
justice of Calcutta, on the 14th of August 1828, in his
address, in deciding the stamp cause : " I am induced,"
says Sir Charles Grey, " to draw your attention to this
" period (shortly after the Norman conquest, when proceed-
" ings in the courts were carried on in the Norman lan-
" guage), because there was in it something which bears a
" resemblance to our present situation in this country. The
" English law and language have been partially intro-
" duced : Hindoo and Mahometan jurors are already ad-
" mitted to assist in the administration of the English law.
" Would it not be an absurdity that these jurymen should
" solve doubts arising out of the maxims of Littleton and
" Staunford ?" But who has created this absurdity ? And
again : " But if we look to the extension of the system of
" trial by jury, it is manifest that it cannot take place at
" present amongst the natives, if it is to carry with it the
" right of determining the law. Without imputing to
" them.) as a people, any thing more than inability to inter-
" pret our laws., it is not too much to say, that no man's
" life or property would be sure. But who will say that
" instances would not occur of something worse than
66 inability? My mind will not bear to contemplate
" the anticipation that English jurors could be brought
" to this state of corruption ; but can we be equally sure
"of
THE JUDICIAL ADMINISTRATION.
" of all other persons in this conflux of nations, amongst
86 people of every origin, every habit, and every supersti-
" tion? If such apprehensions should not entirely pre-
" vent the extension of the trial by jury, they may sub-
" ject it to restraint and modification.""
Here is the opinion of a King^s judge, and that judge
Sir Charles Grey : an opinion which can derive no weight
from any thing that can be said by me. I may observe,
however, that when the jury has the power of returning a
verdict of not guilty^ and if it is, as Sir Charles states,
" absurd to suppose such jurors capable of solving ques-
" tions of law,*" why was such an " absurdity1' introduced
" as the institution of such juries ; and now, why is such
an " absurdity11 permitted to exist ?
It is very natural for judges, especially in criminal trials,
to wish for a jury to intervene between them and the con-
viction of a fellow creature. But the legislator has to
look beyond personal feelings. He has to see that justice
is administered fully, faithfully, and with integrity, and by
competent means. The natives of India do not, at present,
possess qualifications whence these conditions may be looked
for, nor is the measure a popular one among them. The
jury-act cannot be said to be popular: and it is, no doubt,
a glaring instance of that precocity of legislation, which has
not unfrequently been inflicted upon India, both by her
western and eastern legislators.
The intelligent author I have before alluded to, Mr.
Miller, after some just observations on the introduction of
juries, remarks, that the measure appeared to him to be
premature ; yet says he, " the reasoning of Colonel Briggs,
" and the success of it in Ceylon, have certainly shaken
« that
THE JUDICIAL ADMINISTRATION. 413
" that opinion," (p. 133.) But I doubt whether Colonel
Briggs has given a decided opinion on this question. The
court of which Colonel Briggs speaks, as having himself
instituted, he describes as a species of court-martial,
" having been, for years, in the habit of superintending
" similar courts in the army." The number of jurors was
never less than five : sometimes seven or nine ; commonly
Brahmins, who accompanied the cutchery on business of
their own, usually selected from among the zumeendars of
the purgunnah where the criminal was to be tried. " At
" the close of the examination of each witness, the pun-
" chayet (jury) was asked if they wished to put any ques-
" tion ; and the prisoner was likewise asked if he wished
" to put any question to the witness." " It was in this
" stage," says Colonel Briggs, " I frequently derived
" assistance from an intelligent juryman : when, from the
" mode in which the evidence was given, a farther exami-
" nation by him has led more clearly to elucidate an obscure
" fact." " After the prisoner's defence, the punchayet, or
" jury, was then required to give its opinion as to the
" prisoner's guilt ; upon which the shastree was called on
" to pronounce the law on the case, which was promul-
" gated, and sentence was pronounced accordingly."
I am not fully satisfied of the advantage of all this, nor
even of that on which Colonel Briggs appears to found
the chief value of the punchayet or jury system : the ex-
treme difficulty Europeans have to encounter in eliciting
properly, and giving its proper weight to, native evidence.
" It is from our deficiency in this respect," says he, " I am
" disposed to attach considerable importance to the criminal
" trial by punchayet or jury." Now I much doubt
whether the natives employed by Colonel Briggs were com-
petent to weigh native evidence more " properly" than that
experienced
414 THE JUDICIAL ADMINISTRATION.
experienced officer was himself; and I also much doubt
whether the difference, if any, may not have consisted in
this ; not that the natives were more competent^ but only
less scrupulous, as to the weight they gave !
But notwithstanding what Colonel Briggs may have said
in favour of juries, I rather incline to think that what he
has said against them is of greater weight than his reasons
for that species of trial in India. He says, " restricted,
" as juries must be, by rules, it is new. If introduced,
" the duty must fall light on the people, who must be re-
" munerated ; and to render them just, jurors betraying
" their duty must be liable to severe punishment as exam-
" pies." These are requisites, in Colonel Briggs' opinion,
" indispensable, if we would have juries in India." Now,
I conceive all these difficulties, but especially the necessity
of this last condition, of liability to " punishment," quite
fatal to the proposed system. Who would undertake such
a duty, were he to be subjected to severe punishment;
inflicted, as those on whom it was inflicted would think,
unjustly, or in ignorance, by an English judge? Then, as
a precedent for the jury, Colonel Briggs states the mili-
tary law, which protects the native soldier and meanest
camp-follower. But I doubt much whether camp-followers
(and these are the only class that can escape from it) are
particularly partial to our martial law. I believe it is con-
sidered by them an abomination.
Colonel Briggs states his opinion, that both civil and
criminal punchayets were constantly had recourse to under
native governments. I am rather surprised to see this
stated by Colonel Briggs ; and no less so his description of
a punchayet. " The punchayet," says Colonel Briggs,
" was a select jury, appointed by the chief civil authority.
« It
THE JUDICIAL ADMINISTRATION. 415
" It sat, exhausted the evidence, and pronounced its de-
" cision on the guilt of the prisoner ; the shastree was then
u consulted as to the law, and the prince, or chief, passed
" sentence."
This is not the description of a punchayet given by Mr.
Colebrooke; nor, indeed, by Mr. Fullerton, quoted by
Mr. Miller (p. 92) ; nor by any writer within my knowledge.
On the whole, therefore, I do not think that Colonel Briggs
speaks with any confidence on this subject. The opinion of
an intelligent and practical man, like Colonel Briggs, is of
great value ; but, in this case, Colonel Briggs appears to me
to stand, like the Rhodian Colossus, with a leg on both sides
of a difficult question.
It is a great error in those who write on this class of
Indian affairs, to suppose that natives would always succeed
in eliciting truth, where the European finds difficulty.
Compared with European youth on the bench, void of ex-
perience, and with little or no knowledge of business, the
native may be allowed, reasonably, to have the preference.
But compared with the European functionary of experi-
ence and intelligence, such as no man on a judicial bench
ought to lack, I must protest against the alleged superior
capability of the native. And it is not to be forgotten,
that the European judge has all along the benefit of acute
natives, men educated through life among judicial inves-
tigations, to aid him should he require assistance. Ac-
quaintance with the manners of the people is doubtless
valuable ; but it is not the sine qud non in this case. We
are, at all events, sure that every intelligent and experienced
judge in the Company's service has such knowledge; and
we are not to fancy that, because others get through with
duty which we find difficult or laborious, that therefore
they
416 THE JUDICIAL ADMINISTRATION.
they are more competent than we are to perform it. The
termination of a task is no proof of its superior execution.
I have recorded the above opinions of Colonel Briggs,
quoted by Mr. Miller, for the purpose of shewing how
easily acute observers, as well as intelligent writers, who
have themselves had no experience, may be misled. Colonel
Briggs' opinion is here quoted by Mr. Miller, not only as
being favourable to the jury system, but as that which has
shaken his own sentiments, which were before adverse to
it. But Colonel Briggs appears, by greater experience of
punchayets, to have altered his opinion. In his report of
31st May 1822, he tells us, " that he must pronounce the
" punchayet, wholly inefficient, unless in a country reduced
" to the lowest ebb of poverty, for deciding civil causes ;
" because," says Colonel Briggs, " I feel every day, that
" the power of deciding civil causes by punchayet becomes
" weaker and weaker, and seems to threaten a total stagna-
" tion of justice.1' And again : " the decisions by pun-
" chayet in Candeish have become extremely tardy, and
" the system so clogged, as to threaten the very overthrow
" of all substantial justice." These are the altered opinions
of the same individual ; and Mr. Elphinstone, in his
minute, 14th January 1823, says : " the judicial arrange-
u ments have not been successful. Few causes have been
" decided ; and those with considerable delay and dis-
" satisfaction to all concerned. The punchayet system,
" on which so much depends, has shewn all the incon-
" veniences ascribed to it by me in 1819. The causes de-
" cided by punchayet have been few ; and most of the
" gentlemen who have had opportunities of observing them
u are unfavourable to that mode of trial. No native will
" bring a cause before them, if he can enter it on the file
" of the European officer's court."
This
THE JUDICIAL ADMINISTRATION. 417
This is the result of jury trial in India; for it had
already failed at Madras. Those who choose may maintain
its fitness in the administration of criminal justice. A
criminal has no option ; he, poor wretch, must submit to
the tribunal fixed by supreme power. But there does not
appear any reason for assuring ourselves of the excellence
of such a system, either in the administration of civil or of
criminal law, whilst, to my mind, there is something sadly
repugnant to all justice, in our compelling an unfortunate
offender against our criminal statutes to be tried by a tri-
bunal, which all those who are not in irons are now acknow-
ledged to spurn ! Is it possible for any one to maintain,
that if those punchayets or jury-courts were deemed by
the people good in themselves, they would be systema-
tically avoided by those who are at liberty to shun them ?
The truth probably is, that the natives have less confidence
in one another than they have in the European character ;
and this is the universal opinion of all those who have been
questioned on that point.
It will be seen, therefore, I doubt not, that the state of
society in India, as yet, is not fit for all our English institu-
tions, however excellent they may be in England.
The trial by jury has not been attempted, as yet, to be
introduced into Bengal in the provinces : and the ill success,
which has elsewhere attended it, will probably retard, if
not prevent, its adoption.
Nor do I imagine that any advantage could arise from
giving heads of villages, such as choudries, munduls, mo-
kuddums, judicial authority. To have a court of law in
every village would be of itself a nuisance. It would, be-
sides, generally occur, that these persons would have,
directly or indirectly, an interest in the issue, or at least
2 E a bias.
418
THE JUDICIAL ADMINISTRATION.
a bias. The influence of the zumeendar among a village
community, and the part he has to act in most of the dis-
putes which occur, render highly doubtful the propriety of
investigating persons with judicial authority so much under
his power; so that, although, like other respectable indi-
viduals, they might be highly useful as arbitrators, I should
think encouragement, as such, preferable to conferring
upon them any direct judicial authority whatsoever.
Thus, on a review of what is here suggested, the judicial
divisions in Bengal would be,
7 circuits or provinces,
42 zillahs and cities ;
and the establishment for the administration of justice
would be as follows :
ESTABLISHMENT of JUDGES and others having Judicial Autho-
rity y propn°*;d for the Bengal Presidency ; shewing the Extent of
Jurisdiction and of Final Decision of the several Courts in Money
Demands and Personal Actions.
DESIGNATION.
No. in each
Province.
Total in
Seven
Provinces.
JURISDICTION
in MONEY DEMANDS, &c.
^/^
Minimum.
Maximum.
Decision,
Final.
Judges of Pro- ?
vincial Courts J
Judges of Zillahs >
and Cities ...}
AssistantJudges, ?
Zillah&City $
Total Europeans...
5
6
12
35
42
84
S. Rupees.
20,000
No limit.
No limit.
No limit.
S. Rupees.
No limit.
No limit.
25,000
10,000
S. Rupees.
100,000
5,000
800
100
23
12
161
84
Total, European 1
and Native ...J
35
245
I
THE JUDICIAL ADMINISTRATION. 419
The present edition has furnished ine with an oppor-
tunity of considering the effect of a most important change
which by a late regulation has been made in the administra-
tion of the government, by which so much power is placed
in the hands of individual functionaries.
If the Marquess Cornwallis has been justly celebrated
for any particular act of his government, to the establish-
ment of regular courts of j ustice, throughout the provinces,
the highest praise has usually been accorded to that bene-
ficent statesman. The provincial courts of circuit and ap-
peal have generally been deemed the bulwark of the whole
judicial system; and many, I believe, as well as myself,
have rather desired that the powers, respectability, and
efficiency of those courts should be augmented ; feeling
quite assured, that, with a body of intelligent and inde-
pendent judges in the centre of each district, ready and
willing to hear and to redress grievances, it is not likely that
any individual could long be denied essential justice. It
might, indeed, be true, that in detail, the existing system
was far from being perfect. This was a reason for improv-
ing, not for demolishing it. In matters of government,
change is itself an evil ; in the government of India, in
this department, it is a grievous calamity, affecting the
people not merely as in other countries they would be
affected by it, but as tending to diminish their confidence
in the stability of all our institutions.
The Marquess Cornwallis has been thought to have con-
ferred many blessings upon India : among these, the fol-
lowing have always held a high rank. First, by amply
rewarding the public servants of the state, he secured their
zealous exertions in the public service, rescued them from
the temptation of undue emolument, and thus protected
2 E 2 the
420 THE JUDICIAL ADMINISTRATION.
the people from the consequences of corrupt administra-
tion. And secondly, by the establishment of regular
courts, in lieu of individuals having paramount autho-
rity within their respective provinces as before, under
the title of " chiefs" of districts, his lordship laid a foun-
dation for the purity and upright administration of the
government generally, and of justice in particular, which
could not be shaken, because, in both these important
points, his lordship's system was fixed with due regard to
the principles which actuate, or the failings which influence,
the conduct of men.
By the Regulation I. of 1829, the system of Lord Corn-
wallis has been materially changed. The provincial courts,
though as yet left for the adjudication of civil causes, have
lost their criminal jurisdiction; the whole of the Bengal
provinces have been parcelled out into twenty divisions of
separate and independent jurisdiction ; and the people
placed under the entire control of a single individual in
each division, from whos^ decision there is indeed an appeal
allowed ; but, in most cases, the privilege of appealing to
Calcutta, to a native in a remote province, is, I fear, in
practice merely nominal.
The regulation above noticed in its title* is termed a
" regulation for constituting commissioners of revenue and
" circuit ; for establishing a sudder board of revenue, for
" MODIFYING the constitution of provincial courts, for
" transferring to the said commissioners the functions now
" exercised by superintendants of police, and those of the
" Mofussul special commissioners, and otherwise for pro-
" viding for the better administration of civil and criminal
" justice.'*
In the preamble to this Regulation it is set forth — 1st,
That
THE JUDICIAL ADMINISTRATION. 421
That the system, established for superintending the police
and the executive revenue officers has been found defective :
2d, That the provincial courts of appeal and circuit, partly
from extent of country under them, and partly from their
having both civil and criminal duties to perform, have failed
to afford that prompt administration of justice which it is
the duty of government to secure for the people, and a great
arrearof causes under appeal have accrued in all the courts.
3d, That the judges of circuit, on circuit, do not possess
sufficient powers ; nor have they the opportunity of acquir-
ing sufficient local knowledge, to enable them adequately
to control the police or protect the people. To remedy the
defects enumerated, it is deemed expedient to place the ma-
gistracy, and police, and the collector, and other executive
revenue- officers, under commissioners, to be called " com-
" missioners of revenue and circuit," who shall also have
confided to them the powers now vested in the courts of
circuit, together with those also which belong to the boards
of revenue. They are likewise to possess the powers here-
tofore vested in the Mofussul special commissioners by
Regulation I. of 1821. They are, in like manner, to ex-
ercise the powers now possessed by the courts of wards ;
and finally, in matters of law and police, the said com-
missioners are to act under the authority of the Nizamut
Adawlut ; and, in revenue and fiscal affairs, under a sudder
board of revenue, both in Calcutta.
For the above purpose, the whole of the territory under
the Bengal presidency is divided into twenty divisions, con-
taining from three to five zillahs in each division.
Here, then, we have one individual, who is to be respon-
sible to government for the police of three, four, or five
zillahs ; for the conduct of the magistracy therein ; for
the
THE JUDICIAL ADMINISTRATION.
the realization of the revenue, whether from the land, from
the customs, or excise; for the revenue officers, all of
whom are to be under his control. He is to have the power
of the board of revenue ; he is to have the powers, and to
perform the duties, of the courts of circuit ; " to hold
" regular jail deliveries at all the stations twice in each
" year, and oftener if need be." He is to perform the
duties for which heretofore special commissioners were re-
quired ; he is to hold courts of wards ; and he has, more-
over, to obey all the orders he may receive from two dis-
tinct authorities, the Court of Nizamut Adawlut and the
Sudder Board of Revenue.
Thus, one individual commissioner is charged with the
whole civil government of a division, averaging about 15,000
square miles, containing about 13,000 villages, and a popu-
lation of about 2,640,000 inhabitants, being about the
average number for each of twenty divisions. If one of
the ten belonging to the Lower Provinces, he will have to
conduct about six hundred criminal trials yearly ; the num-
ber of such trials, even in 1807, being in the Lower Pro-
vinces, 5,831 ; and as the population has since increased,
so doubtless has crime kept pace with it.
The above is the alarming catalogue of duties imposed
on the " commissioner of revenue and circuit" of 1829.
Were the due fulfilment of those duties within the power
of every man in the service of the Company, that such
power should be given, permanently, to any individual,
under control so imperfect, is in itself an insuperable objec-
tion. As a system of government for India, it cannot de-
serve approbation. No individual can safely be intrusted
with great power under imperfect responsibility. It is in
this that the great error lies. To place a whole province
under
THE JUDICIAL ADMINISTRATION.
under a single individual, at the mercy of his native Aamlah,
with no alternative for the oppressed but that of going
many hundred miles to seek a doubtful redress, is a system
of government surely which cannot succeed.
While the courts of circuit remained, although it be true
that an individual judge only went the circuit, yet it is to
be recollected that the same individual did not always go
the same course ; that, consequently, the native Aamlahs
were not always the same ; that of the five judges attached
to a circuit-court, no one knew to which individual his
circuit would fall ; so that there was neither time nor op-
portunity for tampering with his native establishment. At
all events, if redress was denied on circuit, a journey of
moderate extent brought any one who had a complaint to
make, against whomsoever it might be, into the presence,
not of one and the same European functionary, with the
supreme power of commissioner, but of a collective body of
European j udges, from whom it was impossible but that he
should find a hearing, if not ample redress. The native
establishment of no individual could prevent his being
heard, or could quash his complaint.
I should apprehend, therefore, from this arrangement, the
possibility of a recurrence of those scenes of corruption,
which the history of the last century indeed records, but
which those of us of the present day were beginning to fancy
to have been fabulous. That the high-minded integrity of
the public officers of government will long resist tempta-
tion, I earnestly hope and believe ; but it is impossible to
contemplate the influence gained over many of them by
confidential natives, and not view with much anxiety the
consequences of the power they will necessarily possess.
CHAPTER VI,
On the Police.
I NOW come to the next proposed branch of the subject,
the Police.
To protect those who obey, and to bring to justice those
who break the laws, I consider to be the immediate object
of a police establishment. The former part of the defini-
tion, indeed, may be said to be included in the latter ; for
as there is no crime for which the punishment, when in-
flicted, is not a greater evil to the offender than the advan-
tage he can derive from the commission thereof, so, if all
criminals were sure of being brought to punishment, all
would refrain from crime. Thus perfect security of person
and property would follow ; and this is the ultimate object
of police, as well, indeed, as of all criminal laws.
Police has been divivided into two branches : preventive,
or that which is intended to prevent crime ; and detective,
or that which is designed to discover and bring to punish-
ment the criminal.
The first branch is necessarily the most important. But
to coerce an immense, idle (generally speaking) and immoral
population, as that of India is, and to restrain such from
committing offences, must be allowed to be a task of no
ordinary difficulty. If we look at such an undertaking,
and the population in the aggregate, we must at once de-
clare
POLICE. 425
clare it impossible ; yet if we ask ourselves, could we re-
strain the inhabitants of a small village from crime, or
detect the offenders, we should answer in the affirmative,
and think the task by no means arduous. We see, then,
that to attain the object is possible, perhaps practicable ;
and the first step towards it is indicated, viz. by division.
It is in this, as in every undertaking, physical or moral,
there must be a regular well-defined mode of conveying
the impetus from the mover to the body moved or influ-
enced. The intermediate instruments, or agents, must be
distinct, that they may not clash, and that each may per-
form just what is expected of it.
After this subdivision, the processes of classification and
combination are to be adopted. So many of the smallest
divisions must be combined into a larger one, and so many
of these into a still larger one, and so many of these again
into one larger still, under their several designations, till
the whole are united into grand districts, each under a chief
superintendent, who shall be in direct communication with
the supreme government. The movement of one thousand
men, or of one hundred thousand, in military array, is a
practical demonstration of the wonderful effects of such
division, and classific combination, and assures us that
methodical arrangement of a similar nature, alone, is want-
ing to give us the most extensive command in this depart-
ment also.
For example; take, as a grand district, a district of circuit
before specified in speaking of the administration of j ustice.
Such a district is composed of towns and of villages. Sup-
pose the lowest police division to be formed on an average
of two hundred houses; and that this were established
throughout the district, as well in cities and towns as in the
country.
426 POLICE.
country. Thus the Lower Provinces, as before, are stated
to contain villages 156,000
and the Upper Provinces may be rated at 78,000
Making together 234,000
If we assume the average of houses in each village, both
in the Lower Provinces and the Upper Provinces, to be
forty-five, the number would be 10,530,000
These formed into police divisions of two hundred houses,
give divisions 52,650
Formed into seven circuit districts, give for each district,
police divisions 7,521
And for each of the six zillah magistracies in the dis-
trict police divisions of two hundred houses, each divi-
sion 1,253
Or number of houses 250,600
which, at the average of forty-five per village, would
give Villages 5,568
These placed under charge of the zillah magistrate,
with his assistants, European and native, under him, would
form the basis of the police arrangements.
It is impossible for any government to keep up an esta-
blishment in regular pay sufficient for the purposes of an
efficient police, independent of the people. Could it be
done, it would be highly objectionable. All that is or ought
to be requisite, is an establishment sufficient to conduct the
details of the duty, and to afford the people a rallying
point, when their more active exertions are required to pre-
serve the peace or to apprehend offenders. This is suffi-
cient: for, as the peaceable and well-disposed in every
community, must far out-number those who are disturbers
of the peace, the latter must always be overpowered, when-
ever
POLICE. 427
ever it is found necessary to call forth the other part of the
community against them.
To discover, then, what individuals of a community are
evil-disposed, is an essential, indeed indispensable step, in
the formation of an efficient system of preventive police.
This only can be done through the medium of the indivi-
duals that compose that community ; and only with safety
through the respectable part of them. The hired officers
of government are not sufficiently admitted into the con-
fidence of the people to be competent to give this informa-
tion ; nor could their information always be safely relied
upon. They would be apt to attempt extortion by threats
of informing, or to exaggerate the information they gave,
in order to enhance their own importance and the value of
their services. A respectable individual, or individuals,
residing among the people, one of themselves, I mean one
of those that are good among them, would have the wel-
fare and the reputation of his village or community at heart ;
and these honourable, yet somewhat opposite feelings,
would make him loth to accuse, but just in his accusations.
Thus the worst effects of espionage would be avoided ;
and the certainty of discovering, not perhaps all minor
offenders, but all criminals, would be effected. For I take
it to be impossible that any individual, an offender to the
extent of crime, could reside in a small community or sub-
division, such as I have before noticed, without being
known to the community to be a " bud maasW as he would
be called, or one who procures his livelihood by unlawful
means. This would become still less possible, were a re-
spectable person among them, one in the confidence of his
neighbours, specially appointed, and expected to be in-
formed, and to give information, of the mode of life of
suspected characters.
This
428 POLICE.
This special nomination, is, however, necessary ; for it is
that only which rescues the person nominated from the
odium attached, in all countries, to an informer, makes
the people among whom he resides, as well even as those
against whom he informs, or whom he may detect, respect,
obey, or submit to him.
When thus I have wished, as far as possible, to avoid
the system of espionage, I would by no means be under-
stood to reject, or to under-rate the value of, secret in-
telligence. For, procure it how you will, in fact, it is
indispensable. No efficient system of preventive police
can possibly exist without it. The machinations of wicked
persons are necessarily secret ; and to discover them, secret
means must be had recourse to. It is, however, an arm
of immense power in the hands of the police ; and ought,
therefore, to be used with great caution and discretion,
and to be confined entirely to its own proper object ; which,
indeed, it is likely to be in India, where breaches of the
peace have no reference to political principles or purposes.
The system of espionage, when it embraces politics as
well as police, as it has done in neighbouring countries,
perhaps in our own, has been justly execrated, because it
exposes all, indeed the most zealous promoters of the public
good, to injury from those in power, even for their opinions.
Limiting, therefore, police to its legitimate end, the indivi-
duals who are objects of its watchfulness are, thank God,
few in number, and are found, indeed sought for, only
among persons of bad fame. It may nevertheless happen,
that an innocent individual may be accused, I will not say
convicted, because of the rigid strictness with which the
evidence of such persons, I mean of spies, is received ; but,
as human society is constituted, no great general good can
be
POLICE.
be attained without some partial inconvenience or evil;
and, in my mind, it would be but a liberal sentiment of such
an individual to overlook his temporary suffering, and the
temporary injury his character might receive, considering
these the price which some of the community must occasion-
ally pay for the protection and security of the whole.
It is not merely the actual fitness of such a system for
the discovery and apprehension of offenders, that renders
it so powerful, but the moral effect it produces on the minds
of the wicked, who can never be sure of not being detected,
even deceived by their accomplices, or those in whom, to
make their crime successful or profitable, they must place
confidence.
It would, perhaps, be impossible to place this part of the
system of preventive police in a more favourable point of
view, than by contrasting the horrid murders and assassi-
nations, which have of late years been perpetrated in our
own country, even in London and its vicinity, some of them
without detection, on unoffending virtuous families, by
which the whole of the metropolis, and indeed of England,
were thrown into the utmost consternation, unable to retire
to their chambers without apprehension for the safety of
themselves, their families, and property. I say the value
of such a system cannot be better appreciated, than by con-
trasting this horrid state of insecurity with the system of
police which Monsieur de Sartine had established at Paris
before the French Revolution, as exemplified by the well-
known anecdote told by Colquhoun.
" A Bordeaux merchant came to Paris on commercial
" business, with bills and money to a large amount. He
" was stopped at the gate of the city by a genteel-looking
" man,
430
P O X I C E.
" man, who told him he had been waiting for him ; that
" according to his notes he was to have arrived at this
" hour; that as his person, his carriage, and portmanteau,
" exactly answered the description he held in his hand,
" he begged permission to have the honour of conducting
" him to Monsieur de Sartine, declaring at the same time
" to the traveller, his ignorance of the cause of his deten-
" tion. A.fter some conversation, the gentleman suffered
" himself to be conducted to the lieutenant-general of
" police, who received him politely ; and after requesting
" him to be seated, to his great astonishment described
" his portmanteau, the exact sum in bills and money it con-
" tained, where he intended lodging, and a number of
" other circumstances, which the gentleman thought were
" known only to himself. Monsieur de Sartine, after thus
" exciting his astonishment, put this extraordinary ques-
" tion to him. ' Sir, are you a man of courage P1 After
" his surprise had subsided, he answered that his courage
" had never been doubted. c Well, Sir,' said Monsieur de
" Sartine, ' you are to be robbed and murdered this night.
" ' My object is to prevent this, and to lay hold of the
" ' assassins. If you are a man of courage, you must go
" ' to your hotel, and retire to rest at your usual hour, put
" ' your portmanteau in the place you intended it, and dis-
" ' cover no suspicion : leave the rest to me. But if you
" c do not feel your courage sufficient, I will get another
" e person to personate you and go to bed in your stead.'
" The gentleman, who had acquired confidence from
" what he had seen and heard, refused being personated,
" went to bed at his usual hour, eleven o'clock. At half-
" past twelve, the time mentioned by M. de Sartine, the
" door of the bed-chamber burst open, and three men en-
" tered, with a dark lantern, daggers, and pistols. The
" gentleman,
POLICE. 431
" gentleman, who was of course awake, perceived one of
" the robbers to be his own servant. They rifled his port-
" manteau undisturbed, and settled the plan of murdering
" him ; when, at the moment the villains were preparing
" to commit the horrid act, four police officers, who were
" concealed under the bed and in the closet, rushed out
" and seized the criminals.11
Who is there, after reading this anecdote, but would
wish for such efficiency in the police of his own country ?
This able superintendant of police is stated by Mr. Colqu-
houn to have had, at that time, on his register, the names
of not less than twenty thousand suspected and depraved
characters, whose pursuits were known to be of a criminal
nature ; yet crimes were much less frequent than in Eng-
land, and security to person and property infinitely greater.
The Indian Society is already organized to our hands,
and may be formed, I think, into the most efficient police.
There is no community without its head ; no mouza or
hamlet without its mundul, mukuddum^ or by whatever
denomination he is known ; no profession without its sirdar
or choudry ; and, what is still more advantageous to this
purpose, there is no village without its regular watchman
or passee, or g'horaeuyt, or chokedar. It would indeed
be wonderful, if such a state of society did not afford much
facility to the formation of a regular system of police ;
towards the accomplishment of which these institutions seem
evidently to have been designed.
It is, besides, a general principle of the law of India,
that it is a duty incumbent upon every individual member
of society to prevent, by their personal interference and
efforts, the commission of crime and offences of all kinds,
whether
P O L I C
whether public or private. The practice of India, during
the Moohummudan government, corresponded with this.
There was an establishment of government officers, who
received regular salaries ; but every town was divided into
its several mohullahs, or wards ; and one, the most respec-
table, or at least competent, of its inhabitants, was appointed
its head. This meer£ mohullah, or head of the ward, was
expected to know or make himself acquainted with every
individual in his ward, his mode of life and means of
living ; to note if any or what strangers were seen in it,
together; in short, with every unusual circumstance that
occurred within his limits. The heads of crafts or pro-
fessions were also responsible ; and the officers of govern-
ment collected the reports of these masters of divisions and
of trades, and communicated the same to the chief police
officer of the town. Can we make nothing of all this ?
Let us see Akbar's instructions to his police officers.
" The office of kutwal requires one who is courageous,
" experienced, active, and of quick comprehension. He
" must be particularly attentive to the night patroles, that,
" from a confidence in his vigilance, the inhabitants of the
u city may sleep at ease, and every attempt of the wicked
" be prevented or frustrated. It is his duty to keep
cc a register of all houses and frequented roads ; and he
" shall cause the inhabitants to enter into engagements to
" aid and to assist, and to be partakers in the joy and
" sorrow of each other. He shall divide the city into
" mehals, wards, and nominate a proper person to the super-
" intendence thereof, under whose seal he shall receive a
" journal of whoever and whatever comes in or goes out
" of that quarter (mohullah), together with every other
" information regarding it. He shall also appoint, for
" spies
P O L I (< E. 433
" spies over the conduct of the meert mehal, a person of
" that mehal, and another who is unknown to him ; and.
" keeping their reports in writing, be guided thereby.
" Travellers, whose persons are not known, he shall cause
" to alight at a certain seraee, and he shall employ intelli-
" gent persons to discover who they are. He must care-
" fully attend to the income and expenses of every man,
" and he must make himself acquainted with every trans-
" action. Out of every class of artificers he shall select
" one to be at their head, and appoint another their broker
" for buying and selling, and regulate the business of the
" class by their reports : they shall regularly furnish him
" with journals attested by their respective seals. He shall
" endeavour to keep free from obstruction the small avenues
" and lanes, fix barriers at the entrances, and see that the
" streets are kept clean ; and when night is a little ad-
" vanced, he shall hinder people from coming in and going
" out of the city. The idle he shall oblige to learn some
" art. He shall not permit any one forcibly to enter the
" house of another. He shall discover the thief and the
" stolen goods, or be himself answerable for the loss. He
" shall see that the market prices are moderate, and not
" suffer any one to go out of the city to purchase grain
" (forestalling) ; neither shall he allow the rich to buy more
" than is necessary for their own consumption : examine
" the weights, prevent making, selling, buying, and drink-
" ing of spirituous liquors ; but need not take pains to dis-
" cover what men do in secret (in this way). He shall not
" allow private persons to confine the person of any one,
" nor admit of people being sold as slaves. He shall not
" suffer a woman to burn herself with her husband's
" corpse, contrary to her inclination.* Let him expel
" from
* We gather from this, that the atrociously superstitious practice
of the Hindoos, now happily abolished by the wisdom and firmness of
2 F
434
POLICE.
" from the city all hypocritical mullungees and kullunders
" (sturdy mendicants), or make them quit that course of
" life ; but he must be careful not to molest recluse wor-
" shippers of the Deity, nor offer violence to those who
" resign themselves to poverty from religious principles."*
In villages again, and throughout the country, it is well
known that each zumeendar was held responsible for the
police ; that is, for the safety of person and property within
his zumeendaree. This was an essential condition of his
tenure. His lands were granted to him subject to this
burden ; and there were, besides, allotments of land set
apart for the maintenance of a regular force ; and having
under his immediate orders the village watch, and other
individual members of the village community, whose ser-
vices, either occasionally or permanently, were available for
such purpose, he found no difficulty in affording the pro-
tection required. The zumeendar, by his sunnud, is bound
" to keep the highways in such a state that travellers may
66 pass in the fullest confidence and security ; to take care
" that there be no robberies or murders committed within
" his
Lord William Bentinck, existed in a more deplorable form in the days
of Akbar. Some newspaper discussion has taken place, and a peti-
tion has been forwarded to parliament by certain Hindoo inhabitants
of Calcutta and its vicinity, against the abolition of the Suttee, lately
enacted ; and a petition in favour of its abolition has been carried to
England by a distinguished Hindoo, Rammohun Roy, signed likewise
by a considerable number of his countrymen. The body of the
people appear indifferent ; and the time will assuredly come, when,
even among themselves, it will hardly be believed that such human
sacrifices were reluctantly abandoned. If Lord W. Bentinck has,
in any instance more than another, deserved the gratitude of this
people for his anxious endeavours to benefit them, it is in having, by
this act, rescued them from what, in the eyes of the whole world,, was
a stain and a reproach upon them as a nation.
* Ayeen Akburee.
p o L i c E. 435
" his boundaries ; but (which God forbid !) should any
" one, notwithstanding, be robbed or plundered of his pro-
66 perty, he shall produce the thieves, together with the
" property stolen. If he fail to produce the parties offend-
" ing, he shall himself make good the stolen property ."*
Mr. Holwell, in speaking of Bishenpore, says, " The
" equity and strictness of the ancient Hindostan govern-
" ment remain. Property and liberty of the people are
" inviolate ; no robberies are heard of. The traveller, on
" entering the district, becomes the immediate care of go-
" vernment, which allots to him guards free of expense,
" to conduct him from stage to stage; and these are
" accountable for the accommodation and safety of his
" person and effects."-}-
But this was not peculiar to Bishenpore. It was, in
fact, the custom of the country : and when we consider
the means they possessed, it will not be thought more than
a necessary and reasonable obligation placed on the zu-
meendar.J
Timour says, " And I commanded that on the highways,
" at the distance of one stage from another, seraees should
" be built, and that guides and guards should be stationed
" on the roads. And at every seraee I established a village,
" and charged the people thereof with the protection of
" the travellers, holding them answerable for what might
" be stolen from the unwary traveller ."§
Here,
* Firmaun of zumeendaree to the zumeendar of Bishenpore.
t Holwell's Historical Events, part ii. page 198.
I In Hurrianah, now under the Company's government, the zu-
meendaree villages are held responsible for robberies committed
within their limits.
§ Institutes.
% F 2
436 POLICE.
Here, then, we have discovered two things : first, how
the police establishments were formed ; and secondly, we
have proof of its efficiency. But the state of society is
changed ; the condition of the zumeendars is altered.
How, then, under these circumstances, is the police esta-
blishment now to be organized, so as to be efficient ? We
have already judges and magistrates in the different zillahs.
I have before expressed my opinion in favour of separating
these offices. The magistrate would remain, then, at the
head of the police, with his European assistants of *he
Company's servants under him. But as these official per-
sons cannot be every where present, it will be admitted that
it would be desirable to have others to co-operate with
them, provided such coadjutors were really trust-worthy
and capable persons.
In almost every zillah in Bengal, there are now respect-
able English gentlemen, settled as planters or in business of
various kinds ; men, many of them, who, from their long
residence in the country, and their intimate and unreserved
communication with the zumeendars, cultivators, muhajuns,
and in short every class of society, seem to me peculiarly
well qualified for giving the most efficient assistance in the
department of police.
The unreserved intercourse of those gentlemen with the
natives gives them a knowledge of the people, and of their
real national and individual character, which no officer of
government can ever acquire. No native ever approaches
either a revenue or a magisterial officer of government in
his real character. If he go to either without being called,
it is only when his case becomes extreme : he dare not ap-
proach them with his little ailments ; they have not leisure,
indeed,
POLICE.
indeed, to listen to these. There is a kind of official re-
pulsion between them ; not from any fault in the officer,
probably, but because he is a direct servant" of government,
and his office is one of check and control over the people,
or of pure exaction from them : and, moreover, it is not
improbable that the very grievance by which they are
affected, has been caused or occasioned by the crime or
neglect of the inferior servants of the official person, to
whom the complaints would fall to be made.
I would, therefore, recommend that European gentle-
men, such as I have alluded to, be requested by govern-
ment to accept of commissions of the peace, and be vested
with power over the thanahs and village police in their
neighbourhood, so far as to receive reports from the thana-
dars and heads of the village police, who should be directed
to obey all such orders as they may issue ; in concert, of
course, and communication with the magistrate, so as not
to interfere, however, with any orders he (the magistrate)
may choose to send, nor in any way to interrupt the regular
reports such officers are ordered to furnish to the magistrate
direct.
The presence of such gentlemen, if vested with autho-
rity, would prove a most salutary check, it is believed, over
the provincial native officers of government, both of police
and of revenue, in their vicinity. They would doubtless
also be of great service, by their personal exertions, in
the prevention and detection of crime : and what would be
of no less importance, such men, from their local know-
ledge, from their personal acquaintance with the people,
the attachment between them, and their influence over the
middling classes of society, — such men, I say, would be able
to get the people to become more zealous in the cause than
thev
438 POLICE.
they now are, or can ever be brought to be by any other
means. The people would unite with these gentlemen, and
act with them, partly as neighbours and equals. If they
now act, it is under the police, by compulsion, and in the
degraded state of inferiors ; and to whom ? to a petty
police darogah, perhaps a peon.
It may be thought by some, that the regular magistrates
would look upon a division of their authority with such
gentlemen with an eye of jealousy. My answer is, it does
not appear to me that any real ground exists for such a
feeling. The division of authority is to assist, not to con-
trol the magistrate, who ought to be jealous lest the police
of any other district be better managed than his own ; and
if he be so, he will gladly avail himself of every species of
aid accessible to him. I believe, universally, no one con-
scious of his own ability and attention to his duty, will
ever be jealous of any interference, save that which coun-
teracts him and impedes the service he has to perform.
The danger of oppression might also be urged ; but I
conceive there is no such danger. The respectable gentlemen
whom I have in view (and certainly none other but the most
respectable ought to be thought of) are not in the habit of
oppressing the natives. It is their interest not to do so, but,
on the contrary, to treat them with the utmost tenderness,
which they almost universally observe towards them ; and
which highly praiseworthy conduct, no advantage (for indeed
there would be none) arising out of their new situation
would ever compensate them for discontinuing. They ac-
cordingly make a point of conciliating the people ; their
very style and language to them is different from ours of
the Company's service. Commercial dealings have a de-
cided and direct tendency to humanize the intercourse of
mankind.
POLICE. 439
mankind. They are founded on mutual and reciprocal
advantages. These, with known respectability of character,
form as perfect security as any government can desire
against the danger here anticipated.
But, then, would such gentlemen accept of such autho-
rity ? I think they would. It would be a mark of the
confidence of government, and consequently a distinction,
not only in the eyes of the natives but of their own coun-
trymen. It would, moreover, enable them to do much
good in their neighbourhood ; and thus they would become
more active contributors towards the general welfare of
mankind than stations in life altogether private admit of:
a motive of itself far too strong, and a feeling laudable,
and far too general among such men, to admit the want of
candidates.
Under the magistrates, we have now the thanahdaree
system ; that is, there are, on the highways and most fre-
quented parts of every district and in towns, guards placed
at convenient distances and situations, for the protection
of the people and of travellers, each under a police officer
called a thanahdar, also darogah. In 1815, Mr. Stuart,
whom I have before mentioned, states, " the number of
" thanahs under the Bengal presidency at 901, and the
" number of peons attached to them, in the immediate pay
" of government, at 22,000;"* which would give about
twenty thanahs or police posts to each zillah including the
cities, and about twenty-four men to each post. There are
doubtless, however, many more now ; so that, if we esti-
mate the number at one thousand thanahs and 25,000 men,
peons, we shall still be within the mark probably.
Is this a constitutional mode of forming a police esta-
blishment ?
* Report.
440 POLICE.
blishment ? and if so, is it efficient ? The former question
is asked, not on account of its own consequence, but be-
cause it has been thought by some to be entirely new and
unknown in the country, and therefore those who dislike
innovation may object to it. The Marquess of Hastings,
though he approves of it, calls the thanahdaree establish-
ment " a sudden and violent innovation on all existing in-
" stitutions." But it must be evident, by merely changing
the name, the word thanahs into guards, that it is as old
as the constitution of India itself. Indeed, if there was
occasion for magistrates at all, I do not see how some such
establishment could have been entirely dispensed with. To
place a magistrate in a district to preserve its tranquillity,
without some sort of organized force to be immediately and
instantly ready to obey his orders, would be placing an
officer in a situation of great responsibility and of equally
great inefficiency.
There is no doubt of the necessity of such establish-
ments ; and I think as little that they ought to be placed
directly under the officers of government, who are them-
selves directly responsible to government for the police of
their districts. To commit the charge of the police to the
zumeendars, as some have proposed, and to hold them alone
responsible for it, I should consider as almost tantamount
to a declaration, that in that department of government
there shall be no responsibility. It would be shifted from
one individual to another, and would become so dissipated
as to be totally untangible and altogether lost. Are the
zumeendars worthy of such a trust ?
It might be asked, too, seeing that government retains
the immediate guidance and control in their own hands,
and in those of their immediate servants, in every other de-
partment,
POLICE. 441
partment, why this department should be an exception ; a
department, too, on which the safety and happiness of the
people so much depend ?
A regular establishment, then, I conclude, we must have,
properly distributed, and under the immediate orders of
the magistrate. But, as I have before said, that establish-
ment cannot be made so extensive as to be of itself sufficient.
The question, therefore, comes to be, what is the most effi-
cient mode of combining with it the voluntary aid of the
people, and the ancient police establishments already exist-
ing throughout the country ?
There is no village without its watch. We have before
stated the number of villages at 234,000 ! Here is an im-
perial army of watchmen : allowing but one watchman to
each village it would give, for one thousand thanahs, to
every thanah 234 men ! The magistrate of the zillah of
Rajahshaye stated, that the landholders of that zillah re-
ported that 9,852 pykes, or chokedars, that is, watchmen,
were employed in 10,571 villages.
It would be no great hardship, either to the individuals
composing this watch, or to the community who pay them
(receiving other trifling services from them), were they
made to perform, annually, each one month's service under
the orders of the thanahdar, who would thus always have
an efficient force of twenty men under him, in addition to
his regulars. Thus not only would the efficiency of the
thanahs be greatly increased, but, I conclude, the whole
system would be much improved.
Many collateral advantages would result from this mea-
sure. The means would be afforded to the thanahdar,
through
442 P O L I C E.
through his personal intercourse with the village watchmen
when on duty with him, of ascertaining the character of
individuals resident in their villages. This would not be
one of the least advantages. He would discover also the
characters of those very individuals themselves, who have,
not unfrequently, been supposed to abet, as well as to
check crime, if not even to be principals in its commission ;
and none probably possess better information of this sort to
give than those very men. A small additional allowance
should be made them, by the village to which they belong,
for the month they are on regular duty.
At present, there is no bond of union between the regular
police establishment and the irregular police of the villages.
I conclude it impossible for government to maintain the
latter on the same footing with the former ; indeed, to
maintain them at all : and I see no practicable mode more
likely to promote a similarity of feeling, and unity of exer-
tion among them, than being thus employed together on
the same service.
This immense acquisition to the disposable force of a
thanah would, in many parts of the country, enable govern-
ment to reduce the present very heavy regular establish-
ment ; and every where it would give the thanahdar the
power of sending out patroles on the highways and into
villages. These patroles ought to be ordered to proceed
as far as the nearest thanah in the direction in which they
are s^nt : by doing so, besides the actual protection they
would give to solitary travellers, other material objects
would be gained ; an assurance that the patroles did not
loiter by the way and return, having neglected their
duty ; a constant direct communication kept up between
all the thanahs ; and general and mutual intimation
given
POLICE. 443
given of all occurrences that take place in the neighbour-
hood.
The services regularly obtained of this local police, even
of twenty men per thanah, might perhaps enable govern-
ment to dispense with 10,000 of the 25,000 peons they
have now in regular pay, at an expense of 4,80,000 rupees
per annum, without any real innovation or the imposition of
any additional burden on the people.
We are now to inquire what description of persons ought
we to prefer for the command of these police posts ? That
they ought to be persons of respectability as well as of
capacity, is obvious enough: but it is suggested that every
fifth thanahdar, at least, should be selected particularly for
his qualifications and respectability, to whom (for it would
be impossible to pay all high) a considerable addition of
pay might be given. We would expect to derive advantage
from the exertions of such a man, even without investing
bim with any great authority, if any at all, over the neigh-
bouring thanahs, were that objectionable. The necessary
ascendancy of mind over matter would ensure this ; and,
besides, the superior allowances would furnish an object of
ambition, and consequently a motive for exertion and good
conduct, to those who held the inferior situations.
Besides the above obvious grounds of preference, it occurs
to me that, as a general rule for the selection of thanahdars,
men ought to have the preference who reside in the vicinity
of the post they are to command ; and on the same prin-
ciple, should the preference be given in the choice even of
the peons. I am aware of the usual objection of local and
personal prejudices: but I conceive that personal know-
ledge of the country around and of the people, is of infi-
nitely
444 POLICE.
nitely greater importance in a police officer. If good men,
these have an additional interest in the peace of their neigh-
bourhood ; if bad men, they are unfit for the situation any
where. But confidence must be placed in men in such situa-
tions ; and I do not think that men of fair character would
be more apt to abuse such confidence, and to forfeit their
character among their friends and countrymen, than they
would before strangers, among whom they should hold a
similar appointment.
But if, from necessity, strangers be sent in charge of
thanahs, they ought to be made to traverse the country in
all directions, until they become intimately acquainted with
every part of it, and every part of every village within
many miles of their post. Many supplementary orders and
regulations touching this subject will occur to every intel-
ligent and zealous magistrate ; but an intimate knowledge
of the people and of the country around are primary and
essential qualifications, indispensable to every good officer
of police ; who moreover ought to take care that the spot
selected for his post is such as to be itself secure, with the
smallest possible" number of men to defend it.
It has been suggested to employ intelligent Europeans,
military officers, in the police department on frontier sta-
tions. There can be no objection to this, provided the
individuals selected are, in a superior or at least equal de-
gree, qualified for the duty. Indeed, until the whole
system of government of India, in every department,
whether revenue, judicial, police, or political, has by the
talents of eminently qualified individuals been fully and
completely organized and brought into perfect regula-
rity, it seems wonderful self-denial on the part of go-
vernment, that they hesitate for one moment to avail
themselves
POLICE. 445
themselves of talent, in whatever line of their service it
may be found.
The village watch, above noticed (called chokedars,
pasbans, passees, ghoraeyut, &c. &c.), are now to be more
particularly considered. They are maintained by the vil-
lage community ; and their duty is to guard the village,
and every thing belonging to it, even to the corn-fields.
They are paid in the way easiest to those who pay them,
namely, by a few beegahs of land taken from the jumma of
the village, and the amount of rent allotted on the whole
of the other inhabitants ; that is, by sirshikun, formerly
explained ; a tenure by which lands set apart as a remu-
neration for the services of a person useful to the commu-
nity are held ; or the watchman receives a small quantity
of grain from each ryot, or he is paid partly in both ways.
He has other occasional perquisites at births, marriages,
festivals, Sec.
It has been stated of these men, that they are employed
often by the zumeendars in the collection of their rents,
and on other duties, out of their line ; and, moreover, that
they are otherwise inefficient: and it has been consequently
proposed to take them into the regular pay of government ;
a fund being set apart for that purpose by the resumption
from the zumeendars of the " chakeran" lands in the per-
manently settled districts, and by setting apart so much as
" deh khurcha" or village expenses, in those provinces not
permanently settled. This might be done certainly, be-
cause in the permanent settlement there is a reservation of
power to the Governor-General in Council to resume these
lands : but when the enormous establishment of 234,000
men, allowing but one for each village, and the enormous
sum of one million and a half sterling, their pay, at four
rupees
446
POLICE.
rupees a month each, are considered, the scheme must be
abandoned.
But supposing the whole choker an lands in the Lower
Provinces to be resumed. They may be about twenty lacs
of beegahs (see investigation of 1777), and, making allow-
ance for districts not investigated, might be worth thirty
lacs of rupees, or about ^375,000 sterling. It is forgot,
however, by those who make this proposal, that the police
establishments are entitled to little, if any, of the proceeds
of chakeran lands : these are set apart to defray various
charges of collection of the revenue. But to take the vil-
lage watch into the pay of government would moreover en-
tirely change the nature of that establishment, without in-
creasing its efficiency ; for the moment they became stipen-
diary, the situations would be filled up with strangers, who
would want local and personal knowledge, both of which
now make up, in a great measure, for other very great de-
fects in that system.
It is indispensable, however, that government see that
these men do really receive a competent subsistence : for
this they are entitled to, and the community are conse-
quently obliged to pay this. About three rupees twelve
anas per mensem may be the hire of a village pasban.
This should be secured to him in money, or in grain al-
ready reaped, and not in land, which is now often the mode
of payment, because of its cultivation interfering with his
duty. An accurate register of the individuals should be
kept by the magistrate and by the thanahdars ; which, in-
deed, will be necessary to enable him to bring them regu-
larly on the roster for monthly duty.
To combine the services of the village-watch with those
of
POLICE. 447
of the regular police, then, seems to be the desideratum. I
have already suggested employing a portion of the former,
by turns, on regular duty under the thanahdars. So, occa-
sionally, the thanahdars might be directed to send some in-
telligent individuals of their regular peons, to mix with the
village-watch in the villages, to pick up what news they
could, and to see, besides, that the village police was really
employed in the regular line of its duty.
The village-watch, I conclude, must be made to report
to the head man of the village, be he the zumeendar or
mundul, or by whatever name he may be called, the occur-
rences of the night ; and to acquaint him instantly when
any extraordinary occurrence take place, or when he has
intimation of any meditation of crime. But the duty of
the watchman ought not to be allowed to terminate here,
because that would be getting rid of responsibility too
easily, and in a mode by far too clandestine not to be very
liable to abuse. When any unusual occurrence happens,
he must not be allowed to have done his duty fully, until
he has made the nearest officer of regular police acquainted
with the circumstance.
The responsibility of the head of the village must also
be continued ; and ought to be enforced, not only to the
extent of giving the very earliest possible intimation of
crime, but to the extent of apprehending the criminals, if
obviously within his power, and of reporting to the police
officers the names of any persons of bad repute who may
reside within, or be seen within, the limits of his village.
The same with respect to the head men of wards in towns ;
for it is only by information of this kind that any thing
like preventive police can exist.
It
448 ' POLICE.
It might perhaps be desirable, also, to select a respect-
able and intelligent head man for every five or ten villages,
to whom a control over the village- watch of those villages
might be given, so far as to see that they did their duty,
and to forward monthly (weekly if necessary) reports, him-
self, direct to the magistrate, altogether independent of the
regular police. This would form a check over the minor
heads of villages, as well as over the thanahdars and regular
police; and it is thought, did those persons receive the
countenance and confidence of the magistrate, together with
a small annual salary of from fifty to one hundred and fifty
rupees (I make it annual that it may seem the larger), they
might be made available, with great advantage, in affording
information, and in checking abuses of every description.
The salary would be a general source of emulation among
the whole class of village chiefs, who might be expected
to shew themselves active, in hopes of succeeding to the
situation.
Every zumeendar, and every person under direct en-
gagements to government for land or other property, ought
to be bound, by a special clause of his engagement, not
only to discover breaches and breakers of the peace, but to
afford their personal aid, and that of their dependants, in
apprehending offenders, whenever the commission of an
offence is made known to them, either by the village or re-
gular police.
The Board of Commissioners for the Ceded and Con-
quered Provinces state the number of zumeendars, in the
provinces under their management alone, who have entered
into direct engagements with government, at 45,900. The
immediate dependants of these may be three times that
number at the least. We have here, then, near 200,000
men,
p o L i c K. 449
men, that might unquestionably be made available, to a
great extent, for the purposes of police.
The physical power, I conceive, then, to be even now
completely at the command of government : it requires
only to be systematically applied. Nor is there a country
in the world, perhaps, where the government, and the Eu-
ropean officers of government, have so great a moral influ-
ence over the people. The power of forming them as their
own will may direct is, therefore, in that proportion ; and
although, at first sight, it may appear difficult, I can see no
real obstacle in the way of establishing a very efficient
system of police throughout our Indian possessions.*
The
* But whilst we establish a police adequate to the protection of the
people, let us take care to secure them from the oppression of their
protectors; for many and loud complaints have been made against the
native officers of police. To such an extent have those complaints
reached, that it has by some been doubted, whether the security en-
joyed against the greater crimes, which of course are seldom perpe-
trated, be a compensation for the vexatious petty oppression, to which,
by the police, the people are daily exposed.
This petty oppression, however, which has been, I believe, much
exaggerated, consists in being subjected occasionally to undue exac-
tions, enforced, no doubt, frequently by maltreatment. The extortion
of money is the object ; but it must be obvious that no people on earth
would, in this way, endure any very great degree of misery, from the
hands of persons residing among them, and against whom they well
know that they have only to establish, by indisputable evidence, any
one act of oppression, in order to procure their condign punishment.
That the poor do suffer long without resistance is very true ; yet to
the poor, pecuniary oppression cannot but be sparingly applied : and,
at all events, they have the power of escaping from it by the exercise
of a little combined firmness in complaining. This would enable go-
vernment completely to give them redress. It is the want of this, the
want of firmness of character, which alike tempts their oppressors to
450 POLICE.
The detective branch would now come to be treated of.
But as it will be readily admitted, that if a preventive
police, such as I have suggested, be efficiently organized,
there will be little difficulty in the management of the de-
tective branch of the establishment, it is unnecessary for me
to say much on this part of the subject.
It must be obvious, however, that a direct and constant
communication, and by the most rapid means of conveyance,
between the police posts, is indispensable to the detection
of crime; whilst with this it is thought that, in most
cases, the culprits might be seized before they got to their
resting places.
Suppose, for example, a crime is committed in a given
place, that the fact is known to the police on the spot
almost immediately, as is generally the case when the crime
is of magnitude. Suppose it were possible to communicate
the intelligence instantly to the circumjacent posts, the
chances
aggrieve them, and renders it almost impracticable for government to
relieve them.
Is there, then, no remedy? I apprehend, where this species of
tyranny exercised by the native police prevails to any considerable
extent, the fault will be found, in no small degree, to rest with the
European magistrate. The active magistrate, found occasionally in
every part of his district, and perfectly accessible to the people, could
hardly fail to discover such abuses. In this he would, at all events,
find able coadjutors in the body of private English gentlemen to whom
I have before adverted. Were these encouraged, as well as the more
wealthy of the native population, through them, to hear and inquire
into alleged grievances, it is impossible that such grievances could
exist to any extent. In no country can the police be popular : whilst
vice prevails, they will ever be charged with doing more or less than
their duty. Their superiors, and those who are prone to accuse them,
should think of this.
POLICE. 451
chances of apprehending the perpetrators would be very
much increased, because the first step taken by those, now
on their guard, would be (standing on the alert) to see
whether all the suspected persons within their jurisdiction
were at home that night, are then at home, and of those
who were not suspected who are absent.
This immediate intelligence might be communicated, by
night as well as by day, by signals ; as by rattles in towns,
drums in populous countries, and lights, &c. : and when
the signal " to be on the alert and to see who are abroad"
is made, were it promptly obeyed, it would be extremely
difficult for criminals to escape detection. The rattle used
by the watchmen in large towns is a species of this useful
telegraphic mode of communicating intimation of an offence
being committed ; and the large nukkara is yet used in
India.
But in India, where crime is very generally committed
by professional criminals, and where the profession of thief
or robber is regularly established, like that of the artizan,
under their sirdars, choudrees, or heads, the most effectual
mode of apprehending offenders is by means of their asso-
ciates; some of whom, of every gang, are to be found,
convicts, in every gaol in the country near the residence of
the gang.
Where gangs of robbers thus exist, the leaders of the
gang are, of course, the principal objects of capture ; and
the way their convicted associates should be employed for
this purpose is this : the magistrate should endeavour to
find out among the convicts the shrewdest fellow he can
pick out belonging to the gang. He has been in gaol, and
in irons on the roads, perhaps for years. His restrained
2 G 2 gait,
452 POLICE.
gait, hardened skin of his ankles, &c. have sufficiently
marked him, to render it difficult, if not impossible, to ab-
scond without detection. He is, perhaps, as is the case
with many, perfectly satisfied with his lot ; or he may have
but a short period of his imprisonment to endure ; so that
there is little or no doubt of his fidelity in executing his
undertaking for a moderate recompense.
He goes to his village, or the rendezvous of his quon-
dam friends, and is welcomed by them as " a good man,""
whose period of service is expired (for they call themselves
" Company ha nokur? Company's servants) and ready,
with every advantage of experience, to recommence his
former career. He spends a day or two among them, till
he is fully informed of their intended plans ; he then leaves
them, on the pretext of fetching his clothes and such things
as he may have, or may pretend to have, left at his late place
of captivity, and promises to meet them on the night, and at
the place appointed for their next excursion. He keeps his
word, indeed ; but conducts along with him an armed force
to lay hold of them : or less resolute, but equally depraved,
he gives the necessary information to the magistrate, who
adopts measures accordingly for securing the culprits.
The plan adopted in war throughout India, of employ-
ing persons to obtain intelligence of an enemy, may be re-
sorted to by police magistrates with equal advantage. Those
persons go in disguise, live for days perhaps in the enemy's
camp, as mendicants, or suttlers, or artizans, till they have
obtained the wished-for information. They are apt, how-
ever, to deceive ; not so much from design, as from a wish
to exaggerate their services; or they were too timid to
trust themselves within the enemy's limits. By employing
persons unknown to one another, taking down in writing
their
POLICE. 453
their information, cross-questioning without evincing sus-
picion of them, asking irrelative questions, so as to throw
them off their guard and to break the thread of their ficti-
tious story, questioning them at intervals, and comparing
what each says with his own as well as with the intelligence
received from others, observing all along, notwithstanding
suspicion of falsehood, perfect equability of temper to-
wards them, and even the face of credulity itself, the ex-
perienced officer, whether military or police, will be able to
form an opinion sufficiently strong to enable him to act,
and will seldom act wrong.
As connected with this branch of the subject, I will avail
myself of this opportunity to notice the obstruction to which
the local governments of India are exposed by the law as
it now stands (and by the powers which it appears by a
recent decision of his Majesty ""s court of Calcutta that court
possesses), in carrying into effect measures of police, which
may nevertheless be of vital importance to the interest, if
not even to the stability of the government. The disability
to which even the Govern or- General in Council is subjected
by the legislature, in being incompetent to make any regu-
lation to affect the inhabitants of Calcutta (that is, those
residing within the jurisdiction of the King's court), even
of a political nature, without the concurrence of that court,
is obviously a defect in the constitution of the local govern-
ment of India. In a remote province, to plant half a
million of people, of all nations and descriptions, in the
capital thereof, under the very eye of its government, and
yet to deprive that government of the power, even in po-
litical matters, of control over the actions of such a body
of men, holding the government at the same time respon-
sible for the peace and security of the country, appears
to
451
POLICE.
to be a solecism in legislation to which no parallel can be
found.
Yet such is the state even of the supreme government of
India with respect to the inhabitants of Calcutta. The
English nation confide to the Governor General the go-
vernment of eighty millions of the native Indian subjects
of Britain, and yet they will not suffer him to rule the
native inhabitants of their petty factory of Fort "William
without the concurrence of the King's court of Calcutta.
It is wonderful that the great men who framed the British
part of the constitution for India, should not have perceived
so great an inconsistency.
The King's court is useful, in so far as the administra-
tion of English law to British subjects extends ; but I can-
not but think it very much out of its element, in the remote
region of India, when it is made to interfere in the slightest
degree with the government in political matters. It is totally
incompetent to judge of the extent of any one case of po-
litical delinquency that can be brought before it ; not from
any inability in the individuals as judges of the law, but
there is a want of public information in India ; and the
King's judges coming to India late in life, having no inter-
course generally with the people, are consequently ignorant
of their habits, feelings, and prejudices ; and without an
intimate knowledge of the sentiments, feelings, and habits
of the people, no accurate judgment can be formed of
what may or may not be politically injurious to the state.
But the government is in possession of information of
all kinds. One-half of its members, at least, have a perfect
acquaintance with the people : and with these incalculable
advantages, it is difficult to imagine that they might not be
intrusted
POLICE. 455
intrusted with the same power over the residents of Calcutta,
which is vested in them over all the other subjects of their
government, in every matter whatsoever ; subject always
to the strictest responsibility, in case of the abuse of that
power.
The legislature, it would seem, foresaw, in part at least,
the inconvenience if not danger to which the governments
of India would probably be exposed, by the incapacitating
fetters which they put upon the Governor- General in
Council through the medium of the supreme court ; and
the Governor-General is consequently vested with the power
of transmitting to England, in the most summary manner,
any European subject of Britain whose conduct may be
deemed hostile to the government : the Governor-General
so acting, however, being, on his return to England, liable
to an action at the instance of the individual supposed to
have been aggrieved.
But with an absence of foresight altogether amazing, it
has been entirely overlooked, that other classes and descrip-
tions of the people might arise, if they did not then exist,
fully as able and as willing to evince hostility to the govern-
ment as Europeans ; and no provision whatever is contained
in the act for such a contingency. The Governor-General
may, by his warrant, remove any European subject of
Britain from India in an hour ; but an illegitimate son of
that European by a native woman, an Anglo-Indian, or a
native wholly indigenous, so long as they remain within the
Honourable Company's factory of Fort- William and town
of Calcutta, may set " his Lordship in Council" at defiance,
being amenable only to his Majesty's court. They may sit
down under the nose of government, frame, promulgate,
and disseminate the rankest sedition, whilst the government
must
456 POLICE.
must remain patient spectators of the destruction of their
own power and the ruin of the interests of their country,
till the delinquents are brought to answer for their conduct,
before the supreme court, by due process of law : there to
be tried before an English judge and by an English jury
(consisting, moreover, of the lower classes of tradesmen
and mechanics residing in Calcutta), and by the English
law.
But to measure sedition by the same standard in India as
in England, is to confound all the distinctions of time,
place, and circumstance; evincing a want of discrimina-
tion nothing short of that which should perceive no dif-
ference in the degree of guilt or folly between taking a
lighted taper into a magazine of grain or gunpowder.
If the public incendiary be dangerous to the government
of England, whose stability, from the intrinsically perma-
nent materials of its constitution, has no equal, how much
more formidable must such a description of public enemies
be to the government of India ! Is it expedient, then,
that the latter government should not be suffered to defend
itself, but be forced to be content with the same defence
that but barely protects the otherwise well-guarded govern-
ment of England ? The inexpediency of all this may be
enlarged upon ; but nothing, I think, can place it in a more
obvious light than the bare statement, that as the law now
stands, the power of the government of India, in matters even
of the highest political importance, is liable to be impeded,
or intercepted entirely, by the interference of a court or
the fiat of a judge, wholly irresponsible for, and equally
incapable of accurately appreciating, the consequences.
The cases of Mr. Buckingham and Mr. Arnott elucidate
what
POLICE. 457
what is above stated. The former gentleman was sent to
Europe for publishing in the Calcutta Journal what was
deemed a libel on government. The latter gentleman, who
afterwards conducted the same paper, also laid himself open
to similar treatment. But Mr. Arnott was not to be
" transported without trial," as Mr. Buckingham had been.
He applied to the King^s court to have his habeas corpus,
which was granted ; and Mr. Arnott was brought up, heard
by his counsel, and, in defiance of the government, dis-
charged^ after a long speech delivered by the presiding
judge, in which he declared his court to be really supreme,
as it was called ; and that the Governor-General, though he
was permitted by the act of parliament to send home indivi-
duals, and to arrest them for that purpose, had no power to
imprison them ; for that the words of the act were, " to
" arrest," and not to " imprison ;" that to imprison and to
arrest were not the same thing ; and that the statute, being
penal, must be strictly interpreted, and so forth.
It is foreign to my purpose to enter into the question of
the legality of this decision. The fact of its having been
passed, so that any individual, though declared to be dan-
gerous to the government of India, and arrested by a war-
rant from the Governor-General, might thus be set at liberty
in spite of the supreme government, and so given a farther
opportunity, if he should chuse, of disseminating seditious
and inflammatory libels for months, perhaps, until a ship
(a Company's ship, too, by the act) should arrive from
England and be ready to return, on which to send him,
is altogether so monstrous a state of imbecility to leave
a remote government in, that it sets all comment at de-
fiance.
But over the native population of Calcutta it is not quite
so
458 POLICE.
so easy to arm the supreme government with summary
power, retaining to the King's court superior jurisdiction.
That class of our subjects, however, more especially the
Anglo-Indians, have grown up both in number and in
wealth, and consequent importance in society, far beyond
what could have been anticipated by the legislature when
the act was passed arming government with power over
Europeans ; and we have seen that they are no less capable
of disturbing the peace of society and the tranquillity of
government, indeed far more so, than the European, from
their mixing more with, and their more intimate acquaint-
ance with, the people in general. Not that they are,
themselves, naturally turbulent, or disaffected to govern-
ment ; they are, however, little able to discriminate in po-
litical matters, and therefore easily misled.
The regulation for licensing the press was so far effectual ;
and as a temporary measure may be approved. But it is
imperfect, being applicable to the press alone ; leaving the
evil-disposed every other means of committing the offence
intended to be suppressed. It is partial in its operation,
and consequently wanting in that dignity of character
which a general legislative measure would possess. It is
directed, moreover, so immediately against the press, that
besides subjecting government to the misconstrued imputa-
tion of timidity with respect to the freedom of discussion,
which they neither feel nor fear, it must be extremely un-
popular even in India ; but especially in England, where it
will be attacked by its enemies, without being defended by
its friends : for, on the subject of the liberty of the press,
or rather its licentiousness, there is a degree of political cow-
ardice predominant in England, which suppresses the real
sentiments of certainly a very great body of the ablest men
in the nation, who doubtless do not see that thereby they
evince
POLICE. 459
evince a great dereliction of their duty towards the inferior
orders of the people, who look up to them as an example, and
who take their silence, or their indifference, only as a con-
firmation of the doctrine which political demagogues more
zealously maintain.
In every country, free and fairly represented in its legis-
lative assemblies, the freedom of the press (which, however,
means the power of publication only) is indispensable.
India does not come under this definition. It cannot be so
represented even from the incompetency of the people ; and
therefore the government of India must be a commanding
government, and the people an obeying people. Were they
free to do so, they are incapable of governing themselves so
well as we govern them. They are farther separated from
their rulers than the people in states where there are popular
representatives. But even in representative governments,
and where the people are competent judges of public mea-
sures, the press, at liberty, is a powerful, and often a dange-
rous weapon. All government is essentially restraint : re-
straint is irksome to all. The extreme want of identity
between the governors and governed, is of itself sufficient
to distinguish our Indian government from all others;
and if it be so essentially different, no argument in favour
of a free press for India can be supported by the fact, even
if admitted, of its being beneficial elsewhere.
The liberty of the press in India has of late years, in-
deed, been in reality enjoyed ; and on some occasions has
been exercised even to licentiousness. In the hands of dis-
creet persons, the Indian press, I feel assured, would be
encouraged by government, to every extent of rational free-
dom. In this state, it is hardly possible to conceive a power-
ful instrument to be of greater utility. But, instead of
this,
460 POLICE.
this, our liberty of the press in India has virtually been
enchained, by the indiscretion of men who were not satis-
fied with bringing to light the defects of our administra-
tion, or the abuses of public functionaries, that they might
be remedied and corrected by the government. The go-
vernment itself was their game; and in the face of the
universally admitted confession, that as far as good inten-
tion goes, intention zealously acted upon too, no govern-
ment in the world deserves more commendation than that
of India, both at home and abroad, our advocates for a
free press disdain to consider that of India free, till they
shall be at liberty to libel the local authorities, and to hold
%
up those at home to the contempt of the millions of their
subjects here, who by a mere handful of men are neverthe-
less constrained to submit to their vituperated domination : a
lamentable proof of the perversion of human reason, which
insanity itself could hardly sanction.
That mode of regulating the press will be the best,
which, whilst it vested government in cases of emergency
with ample power, should at the same time infringe as
little as possible on the present system. It therefore occurs
to me, that the analogy of the law, as it now stands, with
reference to Europeans, presents us with a suitable remedy
for all the evils inseparable from the present restrictions
imposed upon government. Let the law, as it now stands,
be made applicable to the whole population of Calcutta
indiscriminately, native as well as European, and the re-
medy is attained. Let but the legislature vest the Gover-
nor-General with the power of transmitting the native
offender beyond the limits of the Company's factory of
Fort- William and town of Calcutta, under the same cir-
cumstances, and, if deemed proper, subject to the same re-
sponsibility, as in the case of Europeans whom he is empow-
ered
POLICE. 461
ered to transmit to England, and the paramount authority
of government will be complete : for once beyond the limits
of Calcutta and the jurisdiction of the King^s court, they
become at once subject to such regulations as the Governor-
General in Council may from time to time enact.
So long, indeed, as this power is withheld from the supreme
government of India, the British legislature are guilty of
the strange absurdity of laying supreme responsibility upon
one functionary, but establishing another to counteract him
who is wholly irresponsible.
Nor, let it be observed, is it in its executive capacity
only that the Indian government is subjected to this control.
The law as it now stands, imposes upon the government an
absolute disqualification from legislating for its subjects,
without the previous concurrence, not of the paramount
authorities in England, but of a court of law established
within its own capital.
Now it must be confessed, that the very idea of this
local court being vested with the power of dictating to the
government what regulations it shall not frame for the
better government of the country, is not a little repugnant
to every notion entertained of the proper province of a
court of justice : such a power is as foreign from the proper
province of a court of law as it must ever be hostile to
that dignity, in which every distant government, the govern-
ment of India of all others, stands so much in need of being
supported.
It is, therefore, not to be doubted, that an early oppor-
tunity will be embraced of obviating so great a defect in
the system of our Indian government. The remedy pro-
posed
462 POLICE.
posed seems simple, and cannot be severe in its effects ; for
it can scarcely be called a hardship to an individual to be
removed from the capital, who cannot be content to reside
in it without endeavouring to overturn the government of
his country.
( 483 )
CHAPTER VII.
ON THE GOVERNMENT OF INDIA.
THE loss of America was trivial, compared with that
which Britain would now sustain if deprived of her do-
minions in India. Not that those dominions have proved
to us that fountain of wealth which had been vainly
imagined, and credulously believed. But the whole ques-
tion of the value of India to England cannot be made up
of pounds, shillings, and pence. Riches and power are not
convertible terms ; but extended dominion is an ingredient
of the latter : and as extended dominion is not possessed by
Great Britain within herself, so the acquisition of India
happily supplies to our country, and in a transcendent
degree, the only requisite she stands in need of to make her
a powerful nation.
No less happy has it been for the destiny of India, that
it has pleased the Ruler of Nations to place that country
under the dominion of England : no less happy, I say, for
India ; for without any overweening opinion of our own
countrymen, we may safely affirm, that from no other
nation could India hope to derive benefits of a higher
stamp, whether moral, political, or physical, than from
England.
If our eastern subjects were fully sensible of the ad van-
tages they enjoy in this respect, we might assure ourselves
that
464 THE GOVERNMENT OF INDIA.
that the conviction would be to them as strong a bond of
attachment to us, as the relative position in which we stand
is a motive to us to bestow on them the blessings of a good
government.
Much has been said against the British government of
India, both by those who are systematically opposed to
every established system in which they themselves or their
party do not participate, either in the institution or the
administration of. Others, again, from ignorance, and
others from less excusable motives, are its opponents.
Nevertheless, its most bitter enemies are forced to confess
that it has secured to the inhabitants of India the most im-
portant benefits. For my own part, I have no objection to
this species of stigmatized government ; for I always think,
since the good is admitted, the evil must be problematical.
Without being a parti zan of any party, and merely an
observer for thirty years, I have come to the conclusion,
that although in practice many and great improvements
may be made in the administration of India, yet on the
whole it is wonderfully faultless ; whilst, in the theory of its
constitution, the government framed by Great Britain for
her Asiatic dominions is, perhaps, as perfect as any human
institution, under such circumstances, can be. It has,
moreover, the vital benefit of being administered by those
who have themselves been trained under the British con-
stitution, who have been nurtured in the very bosom of
justice, honour, and liberty.
Nothing can be more fallacious than to apply the maxims
of government, recognized by an enlightened and a polished
people, as a standard for the government of India. To
attempt improvement on such principles, you might as well
attempt
THE GOVERNMENT OF INDIA. 465
attempt to improve the kraal of a Hottentot by adding to it
a Corinthian column. Your remedies, whatever they are,
must not only be suitable to the disease, but to the constitu-
tion that is to profit by them. I take it, therefore, that what-
ever may be the benefit which shall be conferred upon
India, that benefit will emanate not from mere speculative
theorists, but from men who have had experience of the
manners, customs, and even moral obliquities of the people.
What is wanted, then, as a government for India, is one
which, whilst it possesses the full energy of the executive,
and is open to the benefits derivable from the deliberative
branches of the government of England, shall also contain
within itself that ample share of local and practical know-
ledge, without which the affairs of a remote colony, and a
peculiar people, can never be successfully administered.
If we cannot yet admit the Hindoo to a share in the
administration of his country in the higher departments of
the state, we can do what is next best ; we can surely take
care that that administration shall be guided by the counsel
of those who, from experience, have become acquainted
with his peculiarities, his habits, his prejudices, even his
defects, in order that his condition may be ameliorated by
the most congenial, which indeed will prove the most
effectual, remedies.
In 1783, Mr. Fox's bill, the main object of which was
nothing more than to destroy the charter and privileges of
the Company, and to vest the government and patronage of
India in the Crown, was described by himself even, as a
" strong measure." Now it would not be remarkable ; but
it was then denounced by others " as pregnant with the
" utmost danger to the constitution of England." " Let
2 H " the
466 THE GOVERNMENT OF INDIA.
u the right honourable secretary beware," said Mr. Pitt,
" whilst he secures to the Gentoos their natural rights,
" that, in doing so, he does not destroy the liberties of
" Britons."" And even Mr. Fox himself, but a few months
before his attempt to become supreme dictator for India,
declared " that he could not, consistently with his regard
" for the constitution of his country, approve the taking
** away from the East- India Company, and placing under
" the Crown, the entire management of our territorial
" possessions in the East : this would afford to government
" such ample means of corruption and undue influence,
" as might in the end overthrow the whole constitution.
" The Company ought, therefore, to be left to appoint
" their own servants."
These were the sentiments of our greatest statesmen on a
question of vast importance ; to which I shall add those of
Mr. WyneUasxn, afterwards Lord Grenville. Speaking of
Mr. Fox's scheme, Mr. Wjoalkam declared, " that it aimed
" at nothing less than to erect a despotic system which
" might crush the constitution of England." Yet it
passed the Commons. In the Lords, however, it met with
a different fate. It was denounced by Lord Thurlow " as
" a most atrocious violation of private property, a daring
" invasion of chartered rights, and a direct subversion of
" the first principles of the British constitution." Yet this
bill was but little different from the notions and wishes of
many of the present day, who would transfer the govern-
ment of India entirely to the Crown.
In 1784, Mr. Pitt brought forward his bill, which may
be considered as the draft of the modern constitution for
India. But so far was it from being deemed fully adequate
to the end in view, that we find the King, on that occasion,
thus
THE GOVERNMENT OF INDIA. 467
thus expressing himself to Mr. Pitt : " I trust that this
" measure may lay a foundation for correcting, by degrees,
" those shocking enormities in India which disgrace human
" nature,* and if not put a stop to, threaten the expulsion
" of the Company out of that wealthy region. I have the
" more confidence of success, from knowing Mr. Pitt's
" good sense, which will make him not expect that the
" present experiment shall, at once, prove perfect ; but, by
" an attentive eye, and an inclination to do only what is
" right, he will, as occasion arise, be willing to make such
" improvements, as may, by degrees, bring this arduous
" work to some degree of perfection."
We have had experience of those imperfections, and it is
from a conviction arising out of that experience, that I
venture to submit the impressions existing in my own mind,
as to the mode in which I conceive some of those imper-
fections may be mitigated or removed. But whatever
progress we may suppose we are making in the amelioration
of the government of India, we may rest assured that
nothing great, or permanent, can ever be effected, which is
not equally calculated to establish the prosperity of Eng-
land, and to prolong the connection which subsists between
the two countries.
The highest branch of the India government is the board
of his Majesty 's ministers, commonly called " the Board of
" Control." What can be more advantageous to the India
government, than that it should be placed under the control
of those who constitute the government of England ? With
reference to British interests only, the impossibility of so
important
* It is astonishing- to see the weight of prejudice which, at that
time, lay upon the servants of the Company; need we wonder, then, at
the rigor of the restrictive enactments to which they were subjected ?
468 THE GOVERNMENT OF INDIA.
important a portion of the British dominions being excluded
from such control, is too manifest to require further observa-
tion ; whilst, with reference to the interests of India, that
very control is the bond which identifies them with those of
his Majesty's other dominions, over which his ministers
possess both the executive and the superintending power.
But for this, in the minds of the ministers of the Crown,
the interests of India might be deemed distinct from, if not
rival to, those of England.
But as the British dominions in the East have grown to
their present magnitude suddenly, and after the constitu-
tion of England had, by means of countervailing powers
and checks, been so accurately balanced as not to admit of
so great a weight of political influence being made, especi-
ally to that of the Crown, without endangering the whole
system, an intermediate body was aptly found in that of
the Court of Directors, in whom the principal business of
the executive government, and the whole patronage of India,
was designed to be vested.
It will be seen, therefore, that instead of the Indian
government being, in any way, really and essentially dis-
tinct from that of England, it is, in fact, but a department
of that government, under special regulation, by which it
is open to the benefit of whatever wisdom there may be
in the British councils, or energy in the measures of her
executive; whilst, by the intervention of the Court of
Directors, in whom is vested the India patronage, the
balance of the constitution of England is preserved from
preponderating in favour of the Crown.
It is impossible to conceive that the influence arising out
of the government and patronage of India, if wholly in
the
THE GOVERNMENT OF INDIA. 469
the hands of the ministers of England, could be inoperative.
Patronage is essentially power. When in the hands of the
government, it becomes political power; and political power
concentrated, ready to be applied to any purpose. Whereas,
vested in the numerous body of Directors, the patronage
even of India is so distributed, so dissipated, so dispersed,
that like the rays of the sun in the arctic regions, it is seen
but hardly felt.
A late President of the Board of Control lamented his
want of patronage, as if it were a defect in the constitution
of that Board, which disqualified him from performing in the
best manner the duties of his office. But to a controlling
authority, that authority being the English ministry, pa-
tronage cannot be otherwise than inimical to the due dis-
charge of duty. On the whole, we may conclude, there-
fore, I am persuaded, if India be not well governed, that the
fault does not lie in the theory of its constitution in the
home department.
How far, in practice, we can arrive at the same con-
clusion, is another question, and one of more difficult solu-
tion. The great practical innovation, it is alleged, consists
in this : that, contrary to the intent of those by whom it
was instituted, the Board of Control has, of late years,
exercised more than its due share of power in the executive
government. If so, then India is altogether deprived of
the benefit of any real control over the executive, the
Board, established for that purpose, having itself become
in fact the executive ; — and the effect which this practical
deviation from the true constitution of the India govern-
ment is calculated to produce is, that the Court of Directors
will not give that supreme attention to the affairs of India,
which,
470 THE GOVERNMENT OF INDIA.
which, with a greater share of power and true responsibility,
they would bestow.
Then the question is, whether is the Board of Control,
or the Board of Directors, likely to be the most competent
to exercise the reality of power in governing India ? Were
this question put to me, I should be constrained to say, that
as we have frequently seen the minister selected for India,
commonly called the President of the Board of Control,
and the whole of that Board, composed of individuals who
were not before distinguished for any knowledge of India
affairs, — since we have seen this, I should not hesitate to
say that the superiority of qualification is likely to be with
the Directors, among whom many have always possessed
that knowledge — and this is indeed where it ought to be
found.
I hold it as an axiom, which cannot fairly be questioned,
that to those who govern, a knowledge of the country to be
governed is indispensable, — a knowledge of the people, of
their manners, customs, religion, laws, peculiarities, pre-
judices, virtues, vices : that is, if we look for qualifications
of the first order. We should hardly admit that a Russian,
Frenchman, or Spaniard, would be a competent member of
the British Cabinet, even did we know him to be a man of
talent, and were we sure of his loyalty and integrity. Yet
we scruple not to place the government of India, certainly
not less foreign to an Englishman than England is to
Russia, France, or Spain, in the hands of those who are as
great strangers to that country, as the inhabitant of Mos-
cow is to our own metropolis.
If we inspect the list of Commissioners for India, from
the
THE GOVERNMENT OF INDIA. 471
the period of their institution to the present time, we shall
find but few in it who have possessed any local knowledge
of India. It so happened (such indeed is the state of
parties in England) that no ministry can afford to employ
those in that Board who are known merely for their dis-
tinguished services or eminent qualifications, as connected
with India. Nor would this be requisite, perhaps, if the
Board confined its functions within their legitimate bounds
of control over an able Board of Directors.
That the control of the government of India, as of
every part of the British empire, should be vested in his
Majesty's ministers, is indispensable ; but, for that pur-
pose, the necessity of the apparatus of a Board is by no
means so obvious, whilst it is, at the same time, a source of
considerable expense. The control of the government of
India, as connected with the government of England, is
more of a political than of a general nature. A single
minister at the head of the India department, as of other
departments of the state, would be fully as efficient for
every valuable purpose : whilst the authority of a single
functionary would naturally be modified by increased re-
sponsibility ; and by that diffidence which, even with great
talent, is the legitimate consequence of inadequate experi-
ence : and thus the reality of power would be restored to
the Court of Directors, who ought at least to be infinitely
better qualified for the government of India, than any
Board which the political exigencies of the British ministry
may suffer, even the best of governments, to assemble.
We now come to the constitution of the Honourable
Court : — and before we proceed, it is but bare justice to
premise, that making every allowance for the hostility which
of late years has been evinced towards corporate bodies
generally,
472
THE GOVERNMENT OF INDIA.
generally, none has been more, or more unjustly, reproached
than the Court of East-India Directors. Were we, in-
deed, to shut our eyes and our ears to the beneficial effects
of their government abroad, where alone they can be
appreciated, and look merely to the periodical and pamphlet
writers of the day, who, through ignorance or design, have
slandered the Honourable Court, we should be forced to
conclude that they are a body of tyrant sovereigns, exer-
cising with unshackled sway the most audacious system of
oppression. The very fact of their being a Company, but
especially a Company of Merchants, is held as a demon-
stration of their utter incapacity for governing any country.
India is declared to be in a most miserable condition ; and
the whole misery of India is conclusively traced to the fact
of its being ruled by a corporation of mismanaging mer-
chants. Then a change is loudly called for. India must
no longer remain under the Company's government; it
must be transferred to the Crown : till which time, to ensure
anything approximating to good government is quite impos-
sible. But to those who really know a little, even a very
little, of things as they are, all this is extremely ludicrous.
They are certain that, whether India has hitherto been
ruled by the Court of Directors or by the King's Minis-
ters, in point of fact, since any regular government was
framed for India (that is, for these last fifty years), India
has been governed with moderation, justice, and success ;
but that, were the contrary true, they are equally sure that
the Honourable Court cannot fairly be charged with the
whole misgovernment of India. It is to be regretted, that
the two distinct authorities, which at home govern India,
are not made more publicly responsible for the share they
actually take in the government respectively. At present,
all orders being passed in the name of the Court of Di-
rectors, the acts of the controlling and subordinate power
are
THE GOVERNMENT OF INDIA. 473
are unknown to the public. I conceive that public respon-
sibility is defective, when those who possess supreme power
exercise that power in the name of another ostensible body,
and not in their own.
His Majesty's ministers are anxiously alive to the welfare
of India; but since, in the estimation of the people of
England, there is a constituted body between the ministry
and full responsibility for India affairs, and their own
country demands their chiefest care, India, to them, cannot
be the primary, but the secondary object of concern. To
the Directors, on the other hand, the interests of India
are the ALPHA and the OMEGA, the first and the last, the
beginning and the end of their duty ; and it is idle to
suppose, unless we first assume that the superior board
shall contain also superiority of individual talent, acquire-
ment, and experience, that where the greatest interest lies,
there there will not be the best security for the most zealous
exertion. I apprehend, therefore, that the true system for
the practical government of India will be found in this,
that whilst the right of control shall remain in his Majesty's
ministers, India shall nevertheless be virtually and really
governed by the Body of Directors ; the Board of Control
being modified so as to become a chain o£ connection
between the controlling and the executive power, keeping up
an active communication of the proceedings of the Court :
the duty which the institution of the superior board was
probably designed chiefly to perform. By the establish-
ment of a full board, the thing was overdone. Instead of
denying themselves the exercise of power, except on im-
portant questions, that board has drawn to itself the whole
authority of the government.
The object of Mr. Pitt, in forming the constitution of the
government
474 THE GOVERNMENT OF INDIA.
government for India, he declared to be, to constitute " a
" new establishment at home with powers extending over
" the general concerns of the Company." " The Board of
" Control, Mr. Pitt desired to be, strictly speaking, a board
" of control and superintendence, interfering upon points
" only of which his Majesty's ministers and the privy
66 counsellors might be supposed to be more competent
" judges than a company of merchants, however respectable
" and intelligent in the concerns of trade.11 (Life of Pitt.)
But the fact is not so now. The Court of Directors is not
" a body of merchants," but many of them are men pecu-
liarly qualified for their duty ; so that a less, and not a
greater degree of control, in that board, might perhaps now
suffice than was then deemed requisite.
But whilst we should wish to see a more ample share of
the government of India left in the hands of the Court of
Directors, we cannot fail also to see an equal necessity for
securing, by some means, a select body for the due dis-
charge of that important trust. A mere English merchant,
we must concur with Mr. Pitt in admitting, has no peculiar
qualifications for the government of India. The designa-
tion of " the United Company of Merchants trading to
" the East-Indies," is an antiquated and a mischievous
misnomer. But a distinguished English merchant is, for
the most part, a distinguished man : at all events, care
should be taken to secure able men, possessed of local and
practical knowledge of the affairs of India, who ought to
possess real power, under due responsibility, that the Court
of Directors may maintain that elevation of character which
is commensurate with the magnitude of the trust reposed
in them.
I know not that any benefit would be derived by altering
the
THE GOVERNMENT OF INDIA. 475
the mode of electing Directors. Men in all situations are
influenced by their own interest, and by other impulses
which are often equally exceptionable. But by raising the
standard of qualification for candidates (I mean not the
money but the mental standard), and subjecting it to certain
conditions, a body of men undoubtedly well qualified to
perform the duty of the governors of India might be ob-
tained. They should be principally men who have dis-
tinguished themselves in the country they will have to
govern ; and who, by a long residence among the people of
India, have acquired a competent knowledge of every thing
that is important to be known of them : without, however,
excluding those in England who may have special pre-
tensions.
The Court of Directors may be considered as the repre-
sentatives of India in England ; surely then the represen-
tative should, at least, know and understand the character
of those he represents : and with a court thus selected, we
could hardly desire, for that or for any other country not
ruling itself, a fairer representation.
But something more is wanted, to enable the court to
bring to the highest bearing the qualifications they would
then collectively possess for the government of India. It
not unfrequently happens, as we find the most imperfect
system ameliorated by habitual correctives, that so we, in
like manner, observe the best institutions vitiated by prac-
tical errors : and certainly no error, in practice, was ever
greater than that, by which the Directors of the East-
India Company are raised, by mere seniority, through a set
of consecutive committees, to the performance of the most
important and responsible part of their duty. The whole
of the business of a Director, which has any reference to
the
476 THE GOVERNMENT OF INDIA.
the government of India, is restricted to the nine senior
Directors and the Chairs.* But to get within the magical
number of nine requires half a life-time of an Indian ;
and when he does obtain admittance, he finds, as those
before him have done, that India now is not the India of
his day ; and that his knowledge of that country is, like
himself, by a quarter of a century too old. Surely, if
experience be valuable, it is the experience of things as
they are that is so. Why then, should not the favourite
system of ballot be resorted to for committee-men, by the
Directors themselves ? This would render it, at least,
within the power of that body to secure for the public good
such superiority of talent and other acquirements as their
number afforded.
But we are told, it requires training to become acquainted
with the business of the India-House and government. No
man can be fit for the duty of a Director if he is not a
man of business. But surely the knowledge obtained in
the inferior Committees of Directors,^ can give him no
peculiar aptitude for the government of India.
Another more obnoxious and impolitic regulation exists,
and on higher authority, that of the legislature itself, —
namely, that which not only prohibits the Company's ser-
vants, so long as they remain in their service, from being
chosen Directors; but " all those who have been employed
" in any civil or military station, office, or capacity in
66 the East-Indies, or claiming or exercising any power,
" authority, or jurisdiction therein, are prohibited from
" being chosen Directors till they have been two years
" resident
* The Chairman and Deputy-Chairman.
t Such as " the buying and warehouse" — " the shipping and
private-trade," &c. Committees.
THE GOVERNMENT OF INDIA. 477
" resident in England." Never was a law, made to suit a
particular end, less called for, than, for many, many a day,
this has undoubtedly been. In that anomalous state in
which the affairs of India stood in the latter part of the
last century, it cannot be wondered at, although we should
find, in the legislation of India, a corresponding portion
of expedientiary enactments ; but why, of all those who
sojourn in India, the Company's servants alone should be
held to this official quarantine and disqualification, it is
difficult to comprehend. Whatever the reason, in former
times, may have been for the exclusion of the Campany's
servants recently from India, certain it is, that the affairs
of that country are now on a foundation far too solid to
be shaken by any possible contingency arising out of the
admission of the Company's servants into the Direction,
however early that admission could possibly be obtained
by them.
But why disqualify the servants of the Company from
holding a seat in the Direction ? The servant of the Crown,
returning from its other colonies, is not so disqualified.
He is not bound, even although he resign the service of his
Majesty, to sink two years of his political existence, but
may be called to the cabinet, should his sovereign require
his services, from the remotest corner of his dominions.
The Company's servants deem it impolitic and unjust that
their services abroad should disqualify them from serving
at home ; and with corresponding confidence, they claim to
be admitted to those unrestricted privileges, in this matter,
which are denied to no other class of his Majesty's subjects.
That the fact of their being servants to the Company in
India, should of itself exclude them by law* from serving
in
* The reason assigned for their exclusion, I believe, was the danger
of the people from India, as agents for native powers, by corrupt
478 THE GOVERNMENT OF INDIA.
in the Direction of the government of that country, whilst,
in reason, the very same fact stamps their peculiar qualifi-
cation, is an inconsistency in India legislation, which it
is believed will be removed the moment it is brought to
notice.
With respect to the patronage of India, provided it be
at all events withheld from the Crown, whether it should,
as at present, remain in the hands of the Directors, or, as
has been mooted, be partly distributed among the other
bodies corporate, and others, is a question of greater in-
terest, I think, and importance, to those whom it is proposed
to be taken from and given to, than to the public in general,
or to the general advantage either of England or of India.
Where no political danger is to be feared from its posses-
sion, who can say that official patronage is not a legitimate
remuneration for official services ? It may be fairly con-
sidered as the only remuneration to which a Director looks.
The duty of a Director, if fully performed, is one of great
labour and responsibility. There is, therefore, something
so radically cool in the idea of taking from him who labours
his recompense, and giving it to others who labour not,
neither are responsible, who would have no interest what-
ever in the affairs of India, but its patronage, — there is
something so extremely cool in this, that the proposition
appears quite ludicrous. If any of the East-India Directors
abuse their patronage, let it be taken from those of them
who do so ; but you are not to turn out the whole House of
Commons,
means, getting into the Direction, for the purpose of effecting ob-
jects inimical to the interests of the Company. If this danger ever
existed, certainly times are exceedingly altered. Now, at least, its
existence is utterly impossible. But, if this be doubted, why not sub-
stitute a declaration abjuring such agency, and a penalty in the event
of its being discovered? Any test is better than odious exclusion.
THE GOVERNMENT OF INDIA. 479
Commons, because some members may occasionally have
got their seats by corruption. Let those who propose such
distribution of patronage point out the bodies corporate,
or others in England, whose purity of patronage they will
warrant to be of a higher touch than that of the East-
India Directors ! Are we to look to the rotten boroughs,
or the hustings of Westminster, for purity of public prin-
ciple ? If the patronage of India must be taken from the
Directors, in the name of common sense let it not be thrown
away : let the appointments be sold, as in the King's mili-
tary service ; and let the proceeds be funded for the benefit
of their Indian servants. But, then, who will be a Director,
without patronage, on =£300 a year? I may be told,
many would be glad to be employed at half that price.
But I should not desire to employ a cheap Director, more
than I should a cheap physician. Certainly the direction
of the affairs of India ought not to be sunk to that grade
of office, to which common men, only, would aspire.
It is fortunate for India, in my estimation, that she
possesses patronage such as to command the services of
elevated and talented men ; and debarred as it is from
being the subject of mercenary traffic, surely patronage is
a purer object of pursuit than mere pecuniary ambition.
I am unable, therefore, to discover any grounds, of justice
or of policy, that would warrant interference in the ques-
tion of patronage ; and I know not that I can better con-
clude this part of my subject, than in the forcible words of
the founder of the modern constitution for India. " I feel
" assured," said Mr. Pitt, " that the patronage inseparable
" from the possession of these immense territories may be
" placed with greater safety in the Directors than in the
" hands of any set of political men." (Pitt' s Introduction
to his India Bill.)
It
480 THE GOVERNMENT OF INDIA.
It is, indeed, a question, how far the present regulations
for the admission of candidates for the India service,
especially in the civil branch, might not be beneficially
revised. How far the extreme youth of those who are sent
to India contributes to the welfare even of the individuals
who are sent, must be doubtful to others : to me there is no
doubt. I am of opinion that it is iniquitous alike to them
and to the public interest. I am persuaded that both the
servant and the state would profit exceedingly, were those
sent to India suffered to attain greater maturity, both in
body and mind, before they quitted England. From long
observation, I am myself satisfied that those, whose con-
stitutions are completely formed before they reach India,
retain in that climate the greatest share both of mental and
bodily vigour ; and I should, therefore, on every account,
without altering the minimum standard of age for admis-
sion, strongly recommend that the maximum be extended
at least to the age of twenty-five years. This would afford
a more extensive field for selection, whilst the individuals
selected will have enjoyed the incalculable benefit of the
latter years of a systematic education, when the mind
begins to consolidate into proper form the materials it has
been collecting, and without which the most promising
attainments of the youth are'So often acquired in vain.
What I should wish then, with great deference, to submit,
regarding the home branch of the Indian government, is: —
1st. That the Board of Control should be so modified
as to admit of a more ample share of the government of
India being really administered by the Court of Directors.
2d. That the members of that court should be selected
with reference to the experience and knowledge of the affairs
of India, as well as to talent and general competency ;
and
THE GOVERNMENT OF INDIA. 481
and that, instead of the Company's servants being excluded
from the direction, either for a time or totally, during the
period of their service, as at present, that service of the
Company in India, especially service recently performed,
shall be deemed a special qualification for the office of
Director.
3d. That, in the distribution of the business of the
court, the individuals chosen for the several departments,
or as they are termed, committees (if there must be such),
be selected by ballot ; the avowed principle of fitness, and
not mere seniority, to regulate the choice.
4th. That the patronage remain, as at present, in the
hands of the Directors, or the appointments be sold ; but
that the patronage shall, by no means, be placed at the
disposal of any other body or individual whatsoever ; and,
5th. That the maximum age, at which the servants of
the Company may be sent to India, both civil and military,
be extended to twenty-five years.
On the government abroad, the following observations
are submitted, with that deference which the importance
of the subject calls for. In India, the paramount authority
is vested in a supreme goverment, whose chief, the Go-
vernor-General, may, in important affairs, on his own re-
sponsibility, exercise absolute power. He is furnished with
a council, in Bengal, consisting of three members, who are
supposed to advise him ; and would be expected to remon-
strate, should circumstances require such opposition. This
is the theory of the supreme government ; to which, in
political matters, the governments of the other Presidencies
are subordinate. And it must be confessed, if we consider
the extent of dominion, the population, both in amount
and in peculiarity of character and the distance from the
mother country, we can hardly say that any degree of dis-
2 i cretionary
482 THE GOVERNMENT OF INDIA.
cretionary power can be excessive to bestow on the man
who shall be entrusted with so arduous a charge. This
is the theory ; but, in practice, I believe, it will be
allowed, that the Governor- General has more power really
than the theory of the government strictly confers upon
him.
The members of the supreme council (the Commander-
in-Chief with two of the Company's civil servants) have
seldom, I believe, been all found disposed to maintain their
opinions in opposition to those of the Governor-General ;
and any one of the three coinciding, gives him a majority
in council. But the great check on the measures of the
government, as well as of the Governor-General, I conceive
to be in the ample system of record, and of written docu-
mentary proceedings, which are kept in all the departments,
and regularly transmitted to the Courts of Directors, not
only by the government, but by the subordinate boards at
the different presidencies. The regular preservation and
transmission of such records, I conceive to be the very
essence of what is valuable in the constitution of a remote
colonial government. It is like publicity, and the liberty
of the press, to the people of England, the very fulcrum
of their freedom ; and, as a safeguard, hardly less perfect,
because those records form a picture, under the hands
of all who are actors, of what has really taken place, in
every one of their proceedings; and although, occasionally,
such proceedings may be twisted to suit particular views,
yet in general, I believe, the record will be found not
inaccurate. It is true, those documents are not made
public at home ; but they are always liable to be so : and
since they are open to the inspection of the authorities at
home, to whom the government abroad is fully responsible,
it must be confessed that the check exists ; and if it be not
exercised,
THE GOVERNMENT OF INDIA. 483
exercised, the blame must attach to those who have the
power, but neglect the duty.
The government of India is an office far too arduous to
be in great danger of being filled by persons very incom-
petent. In some instances, however, liberties have been
taken with it by the minister of the day ; but the penalty
has been so great, that such freedom of choice is not likely
often to occur. We have consequently had in India a
succession, but little interrupted, of the most distinguished
men at the head of the supreme government : the power
of such men, under full personal responsibility, ought not
to be circumscribed by any co-existing authority in India.
The Governor-General always will be, and always ought
to be, sent from England : but I know of no other func-
tionary who might not be advantageously found among the
servants of the Company : not even excepting the Com-
mander-in-Chief, although there can be no objection to the
selection being made for that office from the King's service
also.
For the situation of members of council, officers from
both branches of the Company's service ought to be equally
eligible. On what principle, may I not ask, are the military
servants of the Company excluded from being members of
council at the several presidencies ? They are not dis-
qualified from holding the superior offices of Governor, or
Governor-General. To exclude them, then, from council,
is a solecism, which is not easily comprehended. But the
Company's army has furnished men capable of filling the
highest offices with eminent success ; and the whole history
of India will bear me out in affirming, that in no other
service, in no other branch of the same service, can it be
2 i 2 more
484 THE GOVERNMENT OF INDIA.
more truly boasted, that men of suitable attainments are
more likely to be found.
I think too highly of the civil servants of the Company,
generally, to be suspected of offering any disparagement
to them, whilst I place their brethren of the military service
in competition with them, for a share in the councils of the
state. It is only a small number from either service that
can ever look for the distinction ; but it will probably be
admitted, that at no period has the council, at any of the
presidencies, been so ably filled, that for one or more of the
members a substitute might not have been advantageously
found from the military branch of the service ; whilst, on
the other hand, periods of our history have often existed,
nay must be within the recollection of many who may read
these pages, when there was more than need for that know-
ledge and forecast in military affairs, as connected with
India, which are familiar to men of professional experience,
and to them alone. There are, indeed, few questions of
very great moment that can aiise at the supreme council in
India, which do not, directly or indirectly, involve matter
of military import, or demand a knowledge of the habits,
disposition, and feelings of the people ; to know and to
respect which, are essential to the good government of
India, and peculiarly requisite in a council, the head of
which can seldom, if ever, possess such qualifications. But
on all such points, military men are especially competent to
judge, from their more extended and less reserved inter-
course with all classes of natives, than the official duties of
the other branch of the service admit of.
But I am told it is necessary that experience in the
civil administration of the government should be found at
the council board. In the regulating of important affairs, I
am%
THE GOVERNMENT OF INDIA. 485
am, indeed, an advocate for experience, but that is the
reason why I deprecate the exclusion of military men, whose
experience must always be needed, and, when needed,
always important. Certainly it is not necessary to exclude,
possibly, the ablest servant of the state, though he be a
military man, and yet admit into council the commonest
individual, whose experience in the affairs of government
may not extend beyond the ordinary superintendence of a
public office.
I do not state this in disparagement of those who may
be so employed ; but it is not mere operative experience
in conducting the details of a government that is of value.
What the councillors of a great state require to know is,
how the measures of government are felt, or are likely to
be felt, by the people, what effects they produce on those
who have to bear with them ; and to suggest such as may
have a tendency to promote the security, happiness, and
prosperity of the country. Research, observation without
preconceived theoretical notions, the habit of reflecting
with candour on facts and circumstances as they ariso, ex-
tensive acquaintance with the country and with the people,
are qualifications of a superior stamp, and I will venture
to say, are as likely to be found in the one branch of the
service as in the other; whilst such as have been dis-
tinguished in the army, and who, to other qualifications,
add a complete knowledge of business, appear to possess
advantages which cannot but render them fit for the highest
employment. Surely the exclusion of such men from the
council of the state is equally impolitic and unjust. That
system for the government of India cannot be judicious
which would admit to its council the most ordinary person in
its civil department, and would yet exclude a Munro or a
Malcolm, a Laurence or a Clive ! And what inconsistency
is
486 THE GOVERNMENT OF INDIA.
is that which, after all, would receive men as chief of that
very council, from which, as members, they are excluded !
The truth is, that men of the highest talents have ap-
peared in both branches of the service ; but, nevertheless,
if we are to be guided by the annals of British India, it
must be admitted that the military servants of the Company
have been eminently distinguished, not merely by their
services in the field, but for the share they have taken (and
during the most perilous times) in the most important
measures of the government, whether in the intricate path
of political arrangements, in the development of the re-
sources of the state, or in the eluciation of the history,
antiquities, manners, customs, sciences, arts, languages, and
laws of the people.
The subordinate government of the minor presidencies
are part of the machinery for the general government of
India ; but whether they are indispensable is another ques-
tion. That of Penang has just been abolished. There
remain those of Madras and Bombay.
The population of the Madras Presidency was stated by
the governor, Sir T. Munro, in 1824, to amount to thirteen
millions and a half; and that of Bombay is rated at some-
thing more than five millions. So that, for a popula-
tion of between eighteen and nineteen milb'ons, and a
revenue at Madras of about five millions sterling, and
at Bombay of little more than three millions, we have two
distinct governments, two armies, two commanders-iii-chief,
two councils, and all the appurtenances of government, such
as are found in Bengal for the supreme government of India,
and for governing also a local population of sixty millions,
with fourteen millions sterling of revenue.
The
THE GOVERNMENT OF INDIA. 487
The position of Bombay, with reference to foreign in-
vasion, confers a degree of importance on that presidency,
in a military point of view, which, otherwise it could not
claim. Madras, on the other hand /from having been for
many years the scene on which was contested the supre-
macy of India against both our European and Indian
enemies, was raised to a degree of artificial importance,
which can no longer be maintained. Till the late war even,
the Marhatta States formed a cordon round a great por-
tion of the Madras presidency, which, however crippled
the power of those states had been, yet gave the contiguous
provinces the semblance of a frontier territory. But the
result of that war has deprived the dependencies of Fort St.
George of that claim to political importance. The hostile
cordon is now our own, and Madras is laid in the lap of the
sister presidencies.
The distance from Calcutta, westward, to the farthest
extremity of British India, including within it the whole of
the Madras and Bombay provinces, is not much greater
than that of the extreme north-west boundary of the Ben-
gal territory from Calcutta. The system of separate go-
vernments for the same country is, in itself, I apprehend,
intrinsically defective. In India, although the supreme
authority may mitigate, yet it can only extenuate the evil.
Discordant views, tenacity of power, jealousies, suspicion,
rivalry, conflict of authority, or constrained obedience, are
not unfrequently the result ; and, at all events, multiplied
expenditure. Whatever disunites a people who are under
the same head must be injurious to the common good. In
our own country, Ireland is a stupendous illustration of
what I advance. To the separate government of Ireland
may be traced many of the calamities which she has either
suffered or inflicted on our country. That there is any
advantage
488 THE GOVERNMENT OF INDIA.
advantage in having three separate governments for India,
instead of delegated authority at both, at least at one of
the subordinate presidencies, might well be questioned. In
the present state of the India finances, I know not that
there are any establishments which might be more advan-
tageously dispensed with, than those of at least one of the
two minor governments.
If reduction of expenditure be really desired, here,
I apprehend, is a favourable and a salutary opportunity.
Whether we advert to comparative extent of country, to
population or revenue, it must be admitted that those
provinces are profusely governed. The consolidation of
the three presidencies, and the abolition of the consequently
superfluous establishments, would extensively relieve the
finances, and in a mode as little injurious, I believe, to
national interests as any that can be devised. Were the
two minor presidencies to be united even3 this would aftbrd
considerable relief.
^
As a government having pretensions to territorial im-
portance, that of Madras has become so within our own
memory, small as its territory is; and, in thai respect
Bombay is but of yesterday. Yet there is no department
of state existing under the supreme government, which,
however costly, is not to be found at those tiny depen-
dencies. By the act 13th Geo. III. c. 63, in 1773, the
presidencies of Madras and Bombay were subject to Ben-
gal, and it was not till 1784, that the administration of
those settlements was vested in a governor and three coun-
cillors, by 24th Geo. III. c. 25.
" The northern circars (which anciently belonged to
" Bengal)," say the Madras Board of Revenue in 1815,
" and
THE GOVERNMENT OF INDIA. 489
" and the jaghire, which is now called the zillah of
" Chingleput, and a small extent of land annexed to the
" settlements of Madras, Cuddalore, Nagore, and Nega-
" patam, formed, till 1792, the only territorial possessions
" of the Honourable Company on this side of the penin-
" sula. In 1792, the ceded districts of Salem, Barrah-
" mahl, and Dindigul, were added from Mysore. In 1802,
" courts of civil jurisdiction, and in 1803, criminal courts,
" were first introduced."*
The reannexation of the " Northern Circars" to Bengal
would relieve the southern presidency of a strip of territory
and coast, sufficiently contiguous to be administered by
the supreme government, whilst the whole of the ceded
districts above-mentioned lie towards the territories of
Bombay, and are some of them more contiguous to that
presidency than to Madras.
A single government for India has been thought of by
some, with lieutenant-governors for the provinces. Central
India, at one period, was pointed out as a seat of govern-
ment highly desirable. But it is not unfrequently the case
that such propositions arise out of peculiar circumstances.
If the able manager and historian of Central India had
not brought that impoverished country into notice, we
should very probably never have thought of a governor for
it. Even lieutenant-governors are too expensive machinery
for ruling over desert provinces. Were the finances in a
prosperous state, no one would more willingly see the sur-
plus so expended. But so long as the army, which has
conquered, and must keep, India, remains in its present
reduced condition, when even the other branches of the
service are suffering severe reductions, I cannot see the
necessity
* Revenue Selections, vol. ii. p. 391.
490 THE GOVERNMENT OF INDIA.
necessity of more governments, whatever may be their
designation, when the same functions have been, and may
be again exercised, under the less costly appellation of
" agent for the governor- general,'1 or " political resident."
Set up new governments, and you create so many separate
interests ; for besides the general welfare, each distinct go-
vernment will invariably have its own individual jealousies,
its own individual interests, and these it will always prefer,
in spite even of its own desire to promote the general good.
I am aware that difference of character, manners, customs,
and language, between the inhabitants of the provinces
belonging to the several presidencies, has been assigned as
the reason for maintaining separate governments ; but more
weight is attached to this than there need be ; for were the
reason good, it would prove the like necessity for having
separate governments in every province of India. The
province of Bengal Proper contains inhabitants as little
resembling those of other provinces under that presidency,
as the inhabitants of any two or more provinces of India
can differ from one another.
\
The civil expenses of the India government are already
enormous. To confer costly titles (for every high func-
tionary is a costly one) is not the way to reduce expense.
Many think our functionaries are already too high-priced ;
that the implements with which we work the work of go-
vernment are of gold and of silver ; and we are naturally
asked, why should we use none but those of the most ex-
pensive material, when those of an equally good description
are obtainable on easier terms, and on the spot ? This is
certainly well worthy of consideration. There are few
situations in the civil administration of India which might
not be filled from the army, fully as well as from the civil
list, and at a much less expense. It appears to me to be
wonderful
THE GOVERNMENT OF INDIA. 491
wonderful self-denial on the part of government, consider-
ing the embarrassed state of the finances, in time of peace,
to deny themselves the services of so many valuable men,
in the prime of active life, with much local experience and
valuable acquirements, as might well be selected from their
army, and whose energies, talents, and even lives, are wast-
ing for want of employment.
The usual objection to this is, the inexpediency of ab-
stracting officers from their military duties. But in time
of peace, what are military duties, that it should be im-
portant for all the officers of a corps to be present to per-
form them ?
If, in time of war, the complement of officers be suffi-
cient, when corps are complete, surely when, as at pre-
sent, half the men nearly are disbanded, the same num-
ber of officers can hardly be required for the men who
remain. And in answer to those who advocate the necessity
of keeping office for their own sakes, with their regiments,
that the polish of the parade may not rust upon them, I
am of opinion that such men as would be competent to take
an efficient share in civil administration, would, at the period
of life to which I have adverted, stand in need of no farther
elementary discipline, which however essential to be known,
does not require unceasing practice ; for such practice is
not that which alone makes a valuable officer.
There is therefore, I apprehend, no good reason why the
government should not avail itself more extensively of
the services of their military officers, which they might
do to the number of three or four from every regiment ;
and with great advantage both to the army and to the
country. I think no error can be greater, than to suppose
that
THE GOVERNMENT OF INDIA.
that this would disqualify them for military duty. Active
employment is the very life of a human being, it fits him
for turning his energies in every direction, and into what-
ever channel may be opened to him. Two of the most
distinguished men who have served in India, in modern
times, have been equally remarkable both for their military
and civil service.
The limits I have prescribed for myself will not permit
me to enter on the subject of the subordinate branches
under the supreme government, I may notice, however,
with reference to Bengal, that in my judgment, the prin-
cipal of those are the Board of Revenue and the Military
Board. I exclude the sudder, or supreme native court, for
courts of justice do not act under government ; and I pass
over the commercial department, because it is now of minor
importance. The two great subordinate organs of govern-
ment, then, are the Revenue and the Military Board : the
Military Board having, however, no power in regard to the
discipline of the army, which of course rests entirely with
the Commander-in-Chief. The duty of the Board of Re-
venue chiefly consists in superintending the collection of
the revenue, to secure a competent amount of resources ;
whilst that of the Military Board is to see that those
resources be properly and economically applied, in the ex-
tensive and multifarious departments under their control.
When, therefore, on the one hand, the incalculable im-
portance to the people of a well-regulated system of re-
venue is considered, when it is considered that the affairs
of the revenue are brought home to the very hearths of the
poorest cottager in the country, and, on the other, when it is
known that, with the exception of mere personal allowances,
almost every item of the public expenditure, both civil and
military, is placed under the control of the Military Board,
the
THE GOVERNMENT OF INDIA.
the paramount necessity will be obvious, for having both
those subordinate organs of the executive placed on the
most efficient footing.*
Finally,
* A late English writer on finance, Sir H. Parnell, has eulogized
the constitution of the East-India Company's military board, mean-
ing that of Bengal ; and the Board of Ordnance, in England, has
been described by very high authority as " a model for boards."
There is, however, this obvious objection to the former board, that it
is composed of official men who are already oppressed with the heavy
duties of their own special offices, for which they are individually
responsible ; and who, therefore, have hardly a fraction of their time,
and no portion of their thought at all, to bestow on the duty of the
board, which, in point of fact, has fallen principally, often almost
entirely, upon the irresponsible inferiors and assistants. But the
business of the Bengal Military Board, as it affects the finances of
the state, is far too important to be left in such hands. Government
find the utmost difficulty in raising resources to meet the wants of the
service ; they employ numerous and costly functionaries on the duty of
collecting the income of the state; and is its expenditure a matter of
less moment ? Surely no eulogium is due to the system which places
public property, to the amount of many millions, and immense ex-
penditure in every department, under the control of a body of men
otherwise fully occupied, and therefore altogether irresponsible to
government, who must be content to receive just as much, or as
little, of their gratuitous services as they may choose to bestow. It is
a hard matter to hold the head of the government responsible for the
economical management of its resources, if it must yet work with
such machinery as this!
As to the English Board of Ordnance, when we consider how im-
possible it is that any thing military could be mismanaged under the
Duke of Wellington, we shall not be so much surprised at the appro-
bation expressed of the constitution of the Board of Ordnance by its
illustrious chief. I think, however, it was principally to the executive
efficiency of that board that his Grace spoke ; and, if I rightly re-
member, the Finance Committee of the House of Commons bore
witness to the extreme profusion of expenditure which, during the
war, pervaded every branch of that department. " Each member of
" the board is individually responsible," we are told, "for his own
" department," " and they meet once a week in board for general
494 THE GOVERNMENT OF INDIA.
Finally, I may advert to a scheme which, we are told,
has been suggested for the formation of a supreme govern-
ment and council for India.
The plan is, as I understand, to have a Governor-General,
with
" control ;" that is, the individuals themselves meet to control one
another, " in their capacities as members of the board." Where duty
is merely executive, there is no doubt that individual function is the
most efficient; but, with great deference to such high authority, as
an organ of government for the purpose of controlling public estab-
lishments and expenditure, I should conceive the constitution of the
Board of Ordnance in England highly defective. I conceive that
no body of individuals, laying all of them under individual respon-
sibility to one another ', ought to be intrusted collectively with control
over themselves. It appears to me that " individual responsibility"
is destructive of that independence of mind, and singleness of pur-
pose, which are indispensable to the conscientious exercise of such
power. The idea of a number of responsible agents meeting to
check one another's accounts, would be considered a very extrava-
gant solecism in the science of economy ; yet in what other point of
view can we consider the constitution of the Board of Ordnance, when
we are told that " each member is responsible for his own depart-
" ment; and that all those members meet in board for general control ?"
Is it not to be feared, that instead of adequate control, such a system
may degenerate into a mutuality of forbearance, which cannot be
exercised but by a corresponding sacrifice of the interests of the
state ?
There is no way, I apprehend, of constituting a really efficient
board either for the Ordnance in England, or for the like description
of duty in India (which is precisely that of the Military Board of
Bengal), or indeed for any purpose whatsoever, except by employing
as members of that board men who are really men of business, scien-
tific, as well as practical men, who have had experience in the several
branches of the service, who have been distinguished in its depart-
ments, and whose whole attention shall be entirely devoted to the
performance of their duty; without which, that forecast, and circum-
spection, and continuity of reflection on . the important duty com-
mitted to their charge, so essential to perfect efficiency and economy,
can never be obtained.
THE GOVERNMENT OF INDIA. 495
with a supreme council for India, of which the justices or
chief justice of his Majesty's court of Calcutta are to be
members; and it is proposed to add, hesides the usual
members from the Company's service, and the Commander-
in-Chief, one or more individuals from the mercantile com-
munity, or other inhabitants of Calcutta not in the service
either of the Company or the King.
Here we have a cast of the Canadian " legislative
council," with a little infusion of the representative in it.
But taking the list as above, and looking to the professions,
and to the official functions, of the proposed members, or
the qualifications which they may be supposed to possess,
I can see nothing in the scheme which does not call for
unqualified disapprobation. I am at a loss to know what
qualifications a justice of the King's court of Calcutta,
merely as such, can pretend to for the government of India.
To make law for India, and to administer therein the law
of England, are very different callings ; and if the Eng-
lish judge have no special qualification, then it is clear that
his judicial functions are totally irreconcileable with the
situation of member of government. The supreme court
is formed to protect British subjects in their rights and
liberties, even against government ; what confidence, then,
could any Englishmen have in the decision of the chief-
justice member of government in any case in which govern-
ment might have an interest? Ought we to volunteer to
place a man on the bench to judge in an appeal against his
act at the council board ? Ought we, by way of improv-
ing the administration of justice, to unite the legislative
with the judicial functions ? Is this the way to maintain
the liberty, such as it is, of Englishmen in India ? Such
an amalgamation of the King's court with the Company's
council would, in fact, annihilate the court entirely.
We
496 THE GOVERNMENT OF INDIA.
We are, moreover, to keep in view that one chief object
of the government of India, if not the chiefest, is the
welfare of the people. Now, until it can be shewn that
the education and pursuits of the projected members are
such, that they^must, of necessity, qualify them in a pre-
eminent degree for ruling India ; unless, indeed, it can be
shewn that men are better qualified for the government
of a country for being strangers to the people, to their
language and laws> I shall take leave to submit, that out of
the great body of the Company's servants, a council may
be found for India, without the aid of the King's justice or
a free-merchant. Have the men who have distinguished
themselves in India been King's judges or free-merchants ?
Is it to the actions, or to the writings, of either class that
we are to appeal for their competency ? I am far from
wishing to disparage the valuable classes of men now in
question, but to bring them forward, on such an occasion,
and for such a purpose, is a glaring and an obvious dis-
paragement to the whole of the public servants of the
state. The government of India is not, cannot be, repre-
sentative. In comparison with the general welfare, the
classes to which those men belong would, at all events, be
too insignificant to warrant representation. As yet, if they
have separate interests, it is in England, and not in India,
that they can be represented. But, to found the contem-
plated change on the assumption that the whole service of
the Company, consisting of men who have devoted their
lives to the acquirement of every species of knowledge
which is essential to the good government of the country,
cannot furnish an efficient council of government, without
the aid above-mentioned, is one of those extravagant
notions, which, even in this speculative age, are seldom
propounded. The local government of India will not admit
of such a mixture as this, of such an admixture of dis-
cordant
THE GOVERNMENT OF INDIA. 497
cordant elements. If real power were given to such a
council, the whole nature of the government would be
changed ; no governor-general could stand against them
for a day. If they had not power, then they would be
mere lumber, impeding the action of the machine they
were intended to improve.
2 K
APPENDIX
COLONEL SIR THOMAS MUNRO'S SURVEY.
THE accompanying statement contains an abstract of every things
that seems necessary in an agricultural survey. It shews the popu-
lation, the number of cattle and sheep, and the extent and value of
all land, cultivated and waste ; and though unavoidably somewhat
long, it is so plain that it may be easily understood from the slightest
inspection ; and I shall, therefore, have occasion to make only a
few remarks upon the principal heads.
The following instructions were issued by Colonel Munro to the
Surveyors, &c.
Instructions to Surveyors.
1. All your measurements, of every description of land, wet and
dry, are to be made with a chain of thirty-three feet.
2. Your accounts are to be kept in acres, goontas, and anas. One
square chain is one goonta, and forty such goontas are one acre.
3. When you arrive in a village, you will, previously to beginning
the measurement, take a muchulka from the potail and curnum, ac-
cording to the form which has been delivered to you. — N.B. This
form states that the curnum's account of cirkar and enaum land, house
and shop-tax, and every article of revenue, is true ; and that, if it is
found to be false in any point, he will forfeit his office.
4. The curnum and potail of the village must attend you during
the measurement, and you must give timely notice to the ryots, in
order that they may be present at the measurement of their own
fields.
5. In measuring a village, you will begin at one side and proceed
regularly on, making the field first measured No. 1, the next No. 2,
&c. These numbers will serve to distinguish fields, when there are
several of the same name in one village. After measuring the dry,
you will measure the wet land, and number the fields in the same
manner, beginning again at No. 1, 2, &c. ; and the same rule must
be observed with respect to baghayet or garden land.
6. The
APPENDIX. 499
6. The name of every field must be entered in your accounts.
Where fields, whether cultivated, uncultivated, or waste, have a
name, you will insert that name: where they have none, you will, in
concert with the potail and curnum, give them one.
7. In the account of the measurement of every field, whether wet
or dry, you will always specify the names and numbers of the fields
by which it is bounded.
8. In dividing fields of red land, you will mark the division by a
bank of earth or stones ; but in black land, you will always mark the
division by setting up boundary stones, because the polli, or bank of
earth, would injure the black by overrunning it with long-rooted
grass,
9. You will pay the hire of the coolies employed in marking
boundaries either by stones or banks of earth.
10. If a field, not being larger than may be cultivated by one
plough, is ploughed in part only and the rest waste, you will not
divide it, but measure it as one field.
11. If a field is too large to be cultivated by one plough, you wil.
divide it into two or three fields, as may be necessary. As the extent
of land cultivatable by one plough depends upon the nature of the soil,
you will be guided by the custom of the village, and the opinion of the
potail, curnum, and principal ryots, in regulating the size of fields.
As the subdivision of a large cultivated field is ordered to be made solely
upon the supposition that if thrown up by the present occupant it may
be left waste, from there being few ryots in the village who have the
means of cultivating it; yet if, from the state of agriculture in the vil-
lage, there is no danger of its being left uncultivated, it will not be ne-
cessary to divide it, even though it should be too large for one plough.
12. In the measurement of dry land, you will class black and red
land separately.
13. If a quarter only of a field is cultivated, enter the whole field
as waste ; if half only is cultivated, enter half as cultivated and half
as waste ; and if three-quarters are cultivated and one-quarter waste,
enter the whole as cultivated.
1 4. In measuring uncultivated land, you will divide it according to
the old marks or bounds : should you meet with waste (anade) having
no such marks, you will direct them to be made. You will class
uncultivated lands into fallow of one, two, three, four, and five years ;
waste from five to ten, ten to fifteen, and fifteen to twenty years ; and
2K 2 as
5CO APPENDIX.
as anade, or waste, which has either never been cultivated, or not
been cultivated within twenty years.
It is only when \vaste is divided into fields, or found in small pieces,
that it is to be measured by separate fields. When lying in large
undistinguished tracts, it is to be .measured in the gross ; but whether
found in small fields or in extensive commons, it is to be named and
numbered.
If, after measuring twenty cultivated fields numbered 1,2, 3, to 20,
a piece of waste follows, it will be numbered 21, and the cultivated
field, which comes after, 22, and so on, as often as waste intervenes ;
but as the largest piece of waste is usually surveyed after all the rest
of the village is finished, it will, of course, be the last number. Sup-
pose that this number is 50, then if at any future period it should,
from the extension of cultivation, become necessary to divide it into
fields, these fields will be numbered in succession No. 51, 52, &c.
But this cannot be done in the case of the waste No. 21, because it
is already followed by No. 22 : \vhen, therefore, No. 21 comes to be
divided into fields, these new fields must be numbered No. 1 in 21,
No. 2 in 21, &c.
15. When a field contains a few tamarind, kikar, or other pro-
ductive trees, you will make no deduction for the land under their
shade, because the ryot derives a profit from them ; but where there
is a beher tree, or several other unproductive trees together, forming
a shade, you will measure the land occupied by it, and deduct it
from the field.
16. In measuring " purrempoke," or land that cannot be culti-
vated, you will specify the extent of forts, ofpettahs, of open vil-
lages, of the court-yards of houses, with the number and kinds of
trees in such yards, of the banks of tanks, rivers, nullahs, ravines,
hillocks, roads, kullar or barren land, wells, salt mounds, and of
topes, stating the numbers and species of trees. You will also spe-
cify the purrempoke in the fields of ryots and deduct it from their
land.
17. In tarbunds, or palmirah topes, you will insert the number of
trees, and class them into male and female, young, productive, and
old or past bearing. You will also measure separately the divisions
or parts of the tope occupied by different ryots.
18. You are not to measure hills or beds of rivers.
19. You will consider as garden, or baghayet, all lands, in what-
ever manner they may be watered, that do not yield rice, but produce
A P P K N D I X. 501
y> juware, tobacco, red pepper, &c., and you will enter as garde Q
so much only as can be watered.
20. In measuring wet land, you will specify whether it is watered
by large tanks, by great nullahs such as those of the Toombuddra and
Pennah, by kumple or draw-wells, or by kushems or nullahs, proceed-
ing from springs.
21. You will enter as wet land all gardens having a constant sup-
ply of water, and containing cocoa-nut and other fruit-trees. You will
specify the quantity of waste land between the rows of trees of land
cultivated, where the trees are thinly scattered ; and of cultivated
land where there are no trees. You will note the number of plants,
of young trees, if productive, and of old or unproductive trees, and
specify whether they are cocoa-nut, soopari, tamarind, jamoon, lime, or
orange, &c. You will also enter as wet land plantations of betel and
sugar cane, and likewise land producing tobacco and red pepper, &e,
provided there is water enough for rice.
22. In \vells and river kumples, where the land, having formerly
produced rice, is now, from some cause or other, cultivated with dry
grain, you will enter as wet land all that land which is marked out as
ateh kutt or rice fields, and which can be watered ; but if from the
scarcity of water such land is in particular years only cultivated as
wet, you will measure it as dry.
23. When fields of garden or wet land are too large, they must be
subdivided in the same manner as those of dry.
24. You will measure the beds of tanks, and class the lands included
in theni according to the nature of the soil.
25. You are to enter as cultivated land the cultivation of the last
Fusly only, that is to say, of the year previous to that in which the
survey takes place ; for if lands cultivated in former years, but waste
last year, or cultivated in the last, but not in the present year, are
entered in the survey as cultivation, the account will not exhibit a true
statement of the cultivation of any one year.
27. When boundaries are disputed, if the lands in dispute are culti-
vated, and have been annexed to one village since the year Kelah,or the
establishment of the Ahkam Namah, enter them in that village: if the
lands are anade, or old waste, enter them in the village which agrees
to walk along the boundary. — (Sic in orig.)
28. To prevent the survey from being retarded by indolence, you
must measure daily, whether cirkar or enaum land, as follows :—
Of
502 APPENDIX.
Of dry land.
If cultivated 5,000 chains.
If uncultivated, but divided into fields ...... 6,500 do.
If undivided waste or common 25,000 do.
Of wet land.
If cultivated 1,500 do.
If uncultivated 2,500 do.
This will give you at the rate of six pagodas, or about twenty rupees
monthly.
31. As the chain is frequently broken, and some of its links lost,
you will compare it from time to time with the standard which you
have received for that purpose.
32. If, on trial by the examiner, your measurement is found to be
false, you will be discharged if it has proceeded from negligence, and
punished if from design.
33. You will inquire into unauthorized new enaums and concealed
lands. If you discover any not entered in the accounts of the curnum,
you will receive, on proof, one-half the amount (qy ? of rent) ; and the
persons through whose information you make the discovery, one quar-
ter of your half.
34. You will be allowed two chain-bearers, and one-quarter of a
cantaray fanam for each, daily. You will pay them, and also the coo-
lies employed in making the boundary marks, daily, in presence of the
potail and curnum, and take their receipts.
35. You will receive half a pagoda monthly for oil and stationery.
36. You will let the curnums enter the account of the measurement,
and you will compare your abstract with theirs, daily.
37. You will deliver both your rough and fair accounts of measure-
ment to the examiner.
Note. — The word " field" is here used, as it appears, to mean as
much land as can be cultivated by one plough, where the boundaries
are not definite.
Instructions to Examiners of the Survey.
1. As you are appointed to the superintendence of a party of ten
surveyors, you will regulate their survey as follows : —
2. When a village has eight or ten large mujerahs, you will send
two surveyors to each ; but if the mujerahs are small, only one.
3. When there is a large mouzah without any mujerah, you will
mark out by flags the portions to be surveyed by each surveyor, and let
them
APPENDIX. 503
them compare their accounts of boundaries with each other, so as to
prevent any land from being omitted in their respective limits.
4. When a mouzah is small, and you think that the survey will be
accelerated by employing only a part of the surveyors in it and sending
the rest to another mouzah, you will do so.
5. If the mujerahs of a mouzah have old boundaries, you will adopt
them : if they have no visible boundaries, you will set up stones in
order to distinguish them.
6. You will take care that no land is omitted between the respective
limits of your own surveyors, or between their limits and those of
other parties of surveyors.
7. You will take the rough accounts (the kham chitah, or field-book,
qy ?) from the surveyors, and make by them all your comparisons of
measurement.
8. In your examinations of measurement, you will attend particu-
larly to the fields of potails, curnums, and khoodbash inhabitants.
9. You will examine by remeasurement daily as follows : — dry, 500
chains, or wet, 150 ditto ; and transmit your examination report in
the following form :—
Marguz, a tree-field, belonging to R. R., cirkar land to the north
of G. G.'s field, measured by A. B., 4 acres 18£ chains.
Viz. East to West 15
North to South ... ll£
178=4 18i
But by azmayest, or trial 5 acres, 1 chain.
Viz. East to West 16|
North to South ... 12
201=5 I
10. You will transmit your trials with the rough accounts to the
cutcherry, and give the fair ones to the accountants (awurdah now
is),
J 1. In examining the measurement, if the excess of the land on
trial is above twelve and a half per cent, in dry, or ten per cent, in
wet, you will add the difference to the field. If the deficiency is
more than ten per cent, in dry, or five per cent, in wer, yon will
deduct it.
12. If in any village you find the measurement of the whole, or
the greater part of the fields, incorrect, and that a new survey is
required, you will state the circumstance and obtain leave before
you begin.
13. If
504 APPENDIX.
13. If any ryot complains that the measurement of his field is not
fair, you will measure it again.
14. You will enquire into new unauthorized enaums, extra collec-
tions on land, and articles of the village, taxes suppressed in the ac-
counts. Of all such discoveries you will receive one-half, as a reward,
and one-quarter of your half will be paid to the person from whom
you may have received your information.
15. As the chains are frequently broken, you will compare them
occasionally with the standard measure.
16. You will get two chain-bearers from the tollies or tallaries of
the village. You will pay them one-quarter of a cantaray fanam
each, daily, in the presence of the potail and curnum, and take their
receipt, and you will send a statement of the expense with your
monthly account.
17. You will divide all the villages that fall to your share accord-
ing to the number of surveyors, write the different shares on an
equal number of papers, and let the surveyors draw lots, and measure
the villages which their respective lots contain.
18. Your party is to measure only such villages as may be allotted
to it. If, in the hopes of getting more pay from black land, your
surveyors measure the lands allotted to another party, they will re-
ceive no pay for them, and be fined.
19. After finishing the measurement of the villages allotted to
your party in any district, if there is any party which has not begun its
measurement in that district, you will measure its villages ; but if
there is no party which has not conmenced, you will proceed to the
next district.
20. You are not to measure in four or five days the number of acres
prescribed to you for the month, but to measure daily ; except on
those days when you are on your way to another district. The mea-
surement may be more in some days and less in others ; but the pre-
scribed quantity for the month must be completed.
21. You are not to try the measurement of a part of the surveyors
in one month, and that of the rest in another ; but you are in each
month to try the measurement of all the surveyors.
22. You are not to remain behind the surveyors ; because, unless
you are with them, you cannot compare with them the false measure-
ment which you may discover. If you are not always in the same
district with them, you will be dismissed.
23. With your monthly abstracts you will send a list of the sur-
veyors
APPENDIX. 505
veyors and peons, present and absent. You will give your rough
accounts of measurement examined to the aumildar, who will for-
ward them to the collector's cutcherry, and you will take the aumildar's
receipts for the accounts.
Instructions to Assessors or Terrim Muttaseddies.
1. You are to class the land surveyed by ten surveyors according
to their rate orterrim. In settling the terrim, you are to assemble
the potail, curnum, and ryots of the village, and also the heads of the
neighbouring villages, and do it with their advice.
2. You are to class the lands of the whole mouzah into first, second,
third, &c. according to their rates. If the best land is in the cusbah,
you will enter it in the first rate. If the first land of any of the mu-
jerahs is only equal to the second of the cusbah, you will enter it on
the second rate. If, on the contrary, the first land of the cusbah is
equal only to the second of the mujerah, you will enter it in the second
rate ; for the rates are to be for the whole village, generally, and
not for each mujerah separately.
3. In fixing the rates, the ryot who occupies the land must be
present. You are to consider the condition of the land, and not of the
ryot, for the one is permanent but the other is not : and you are to be
careful not to enter the first rate as second, or the second as first, &c.
4. You are to mention the colour of the land, in order that in fixing
the rent, the class to which it belongs may be the better known. The
colours are as follow :—
Regur.
1 Black, mixed with stones.
1 Black chunam stones.
1 Black white earth.
1 Black sand.
1 Black pebbles (gargatt).
1 Black mould.
Red.
1 Red, mixed with stones.
1 Red sand.
1 Red earth.
5. You
506 APPENDIX.
5. You will inform the ryots that the whole land of each class will
be assessed at the same rate, and caution them to class the fields
according1 to the real quality.
6. In classing the lands you will proceed as follows :—
Dry, at half a cantaray fanam difference for each rate.
Rate. Acres.
Rate per Acre.
1 100 ,
1 0 0
2 50 .,
, 098
3 40 .,
, 090
4
088
5
080
6
073
7
070
8
068
9
060
10
058
And so on to the twentieth rate.
Bagayet, at five cantaray fanams between each rate.
Rate. Acres.
Per Acre, Can. Pag.
1 10 ..,
10 0 0
2 15 ..
950
3
900
4 40 ..
850
5 50 ..
800
6
750
And so on to the twentieth rate.
Wet, at five cantaray fanams
difference between each class.
Rate. Acres.
Per Acre, Can. Pag.
1 10 ,
600
9
550
3
. _ 500
4
450
5 40 .
400
6 50 .
350
7
300
8 .. .. 20 .
250
And so on to the twentieth rate.
The above is given as an example for your information. You are
not, however, to enter the money rates, but only to take care that the
lands
APPENDIX. 507
lands are correctly classed. The classes maybe as numerous as the
different kinds of land are ; but in one mouzah you are not to make
more than six of garden, eight of wet, and ten classes of dry.
7. In regulating- the proportions of the decrease of rent between
each class, you will be guided by the quality of the land, and make it
in some villages for dry, one-half a cantaray fanam ; and in other
villages, where the rent is low, one-fourth of a cantaray fanam.
For garden, 5 and 2£ cantaray fanam.
For wet, ... 5 and 2£ ditto.
If in a village you find that the difference between any two classes of
land should be one-half of a cantaray fanam, you will make the same
difference between every other class ; and in the same manner, if the
difference between any two is one-fourth of a cantaray fanam, you will
continue that difference through all the other classes ; and in garden
and wet, if the difference between two classes is two and one-half, or
five cantaray fanams, you will make one of these rates the difference
between all the other classes ; but you must not have both rates of
difference in the same village.
N.B. The rent of dry land in some of the western districts was
found to be so low, that the rate of decrease (oottar) could not be
restricted to one-fourth of a cantaray fanam without great incon-
venience: it was therefore extended to one-eighth of a cantaray
fanam, or two anas, and the following additional articles were in-
serted in the instructions : —
8. Though you were formerly directed to restrict the rate of de-
crease (oottar) in dry land to one-fourth of a cantaray fanam, yet as
the accounts must be regulated by the land, and not the land be made
to suit the accounts, and as the usual rent is in some places only from
one-fourth to one cantaray fanam per acre, if there are seven or eight
classes rising one-fourth of a cantaray fanam each, it will make the
rent too high : you will therefore, if there are only three or four classes,
keep the oottar at one-fourth of a fanam ; but if there are more, you
will make the oottar two or three anas of a cantaray fanam, according
to the custom of the village.
9. In writing the abstract of the village, you will state at the head
of the column of dry, wet, and garden, the oottar, or rate of decrease
between the different classes — if dry, one-eighth, one-fourth, or one-
half of a cantaray fanam ; if garden or wet, two and one-half, or five
cantaray fanams.
10. In
508
APPEND IX.
10. In classing the land, you will consider both the nature of the
soil and the expense of labour : for instance, if one field is near the
village and another of the same quality at a distance from it, the dis-
tant field must be rated lower, because it requires more labour to
watch and also to plough it (but then it is exempt from other disadvan-
tages of proximity to the village, as cattle, goats, birds destroying it,
and people passing through it and going into it, qy?). You will make
allowance for the additional expense and lower the rate accordingly,
so that it may be cultivated with the same ease as the land of the
same kind near the village. You will also, in garden and wet land,
make allowance for the deficiency of water; and where there are nullahs
and wells, for the extra labour, and reduce the class.
11. You are to class the land not merely by its intrinsic quality, but
also by its actual state of cultivation. Thus, if two adjoining fields of
the same quality with respect to soil are held, the one by a poor and
the other by a substantial ryot, you will not enter them in the same
class, but you will place the field of the poor ryot in such lower one
as its unimproved state may render necessary.
12. If in one field, whether dry, wet, or garden, there are two or
three different kinds of soil, you will not class the kinds separately,
but take the average of the whole and make one class.
13. In classing wet and garden, observe the following detail :— Di-
vide the lands of tanks and nullahs into one-crop and two-crop land.
In well-land, consider whether the well has water for one or two crops,
and make the class higher or lower accordingly.
14. In classing betel and cocoa-nut, &c. gardens, you will enter
the land in the same class as land of the same kind on which there are
no fruit-trees, without making it either higher or lower on account
of the trees.
15. In garden, you will enter as garden only what is now cultivated ;
and you are not to add to it any of the neighbouring dry land, on the
supposition that there is water enough to convert it hereafter into
garden.
16. In garden, which is now waste (anade), you will examine
whether, when last cultivated, the crop was a dry or a wet one. If
dry, you will class the land as dry; and if wet, as garden.
17. In classing dry waste (anade) you will proceed as follows : — If it
is divided into fields by old boundaries and has been so measured, you
will class each field separately : if there are no old boundaries or land-
marks
APPENDIX. 509
marks, you will class it by the divisions into which the surveyors may
have formed it.
18. In classing1 the lands, you will take the rough account of the
survey, and class according to the order of the numbers in that ac-
count ; after which you will separate the cirkar and enaum, and the cir-
kar cultivated and uncultivated and waste land, and class the whole
according to their respective rates. You will not add up the fields
ryotwar, for it is not necessary to shew what each ryot occupies ; but
in enaum lands you will add up the fields both in their classes, and
under the name of the person to whom they belong.
19. You are to class the lands, dry, garden, and wet, as they are
distinguished by the surveyors. You are not to alter their classification,
but you may note where you think it is wrong.
20. You are to class monthly three thousand cantaray pagodas of
land cultivated by the rent of the preceding year, for which you will
receive ten star p agodas monthly. If you class a smaller quantity
your pay will be reduced in the same proportion, viz.
For cantaray pagodas 2,750, pay star pagodas 9
Do 2,500 8
Do 2,260 7
Do 2,000 G
If you class a smaller quantity than two thousand, you will be dis-
missed; but you will receive no increase above ten pagodas pay,
whatever quantity you may class. If, however, in the course of the
year, you class more in one month and less in another, the difference
will be allowed, provided it does not on the whole exceed ten pagodas
monthly.
21. You are to examine if fields have been concealed or articles in
the village taxes suppressed, but you are not to enquire into differences
of rent or extra collections.
22. You will not enter the land forming the beds of tanks, and bar-
ren or useless, purrempoke ; but you will enquire how it is cultivated
when the tank is dry, and class it accordingly.
23. You are to compare your accounts with the curnum daily, and
let him take a copy of them on the spot. You may carry him and the
potail to the neighbouring villages, to give their opinion on classing
the lands of them, but not to write the account of any but of their own
villages. If you make out your accounts without letting the curnum
take a copy, your pay will be stopt every month in which this is done.
24. In
510 APPENDIX.
24. In making out your abstract of the land in classes (kessemwar
goshwarah), you are not to enter as cultivated the cultivation of two
or three years, but only that of the preceding year. If more is entered
you will be dismissed.
25. As the surveyors, in order to get more pay, make out their
accounts hastily and give false additions, you will make your gomastahs
compare them, and send a list of all errors monthly to the treasury,
showing the dates of measurement, and the differences of the number
of acres.
26. The land classed by you will be examined by the head assessor
(sirterrim), and if any material error is discovered, you will be dis-
missed.
27. You will make out the accounts of each village according to the
forms, and when the district is completed give the whole to the aumil-
dar. You are not to keep the accounts after the district is finished,
nor to carry the curnums to another district.
28. You are not to wait for the (sirterrim) head assessor, but as
soon as you finish one village proceed to another.
29. You are not to dismiss or employ gomastahs or peons without
reporting and obtaining authority.
Instructions to Sirterrimdars or Head- Assessors.
1. As you are appointed to superintend and correct the assessment
of five (terrimdars) assessors, you will divide your share of each dis-
trict into five divisions, and give one to each terrimdar ; and you will
give him, at the same time, the survey accounts, which will be de-
livered to you by the aumildar.
2. You will examine the classification of the lands, and you will fix
the rates of assessment in conjunction with the potails, curnums, and
principal ryots ; and if you wish for the assistance of any intelligent
persons formerly employed in the revenue, the aumildar will send them
to you on your application.
3. In making the assessment, you must examine all circumstances
that may assist in enabling you to form a right judgment. You must
consider the ahkam namah, or assessment of Tippoo Sultan, the present
extent of cultivation, the condition of the ryots, and the nature of the
soil. You will then fix the rate of assessment of each class of land
in dry, garden, and wet. You will explain it to the ryots and obtain
their consent to it, and you will take care that it is not so high as to
impede cultivation hereafter. You will also examine well the kamil
rent
APPENDIX. ^ 511
rent of each village, the detail of the ahkam namah and of the rent of
the last twenty years, and enter them in your statements.
4. If you find that any of the terrimdars have classed the lands wrong,
whether from ignorance or corrupt motives, you will report in order
that they may be dismissed
5. Where you find that the terrimdars have entered two or three
kinds of land in the same class, you will transfer each kind to its
proper class.
6. As the classing the fallow and waste lands at too low a rate
might induce the ryots to occupy them and throw up their cultivated
lands, to the injury of the revenue, you will therefore keep in view,
that waste lands are to be so classed as not to discourage their cul-
tivation, and at the same time as not to give them any advantage over
the old cultivated lands.
7. As your assessment is regulated by the quality of the land and
its actual state of culthation, and as the Brahmins and other Tyargar,
or privileged castes, and the cullgoottah shatrium and guddad land-
holders, have always held, and must still be permitted to hold their
lands at a reduced rent, and as this remission must be deducted from
your assessment and thereby reduce its amount, you must be careful,
in comparing your assessment with that of former periods, to deduct
the remission previously.
8. You will ascertain whatever has been allowed by the custom of
the village as cullgoottah (low rent to different castes) shatrium,
enaum, and low-rented villages to Brahmins, and guddad (quit-rent
for levelling rugged land), and show the amount of each separately
in your abstract
9. You are not to detain the terrimdars until you arrive yourself
to examine their assessment, but let them, as soon as they have finish-
ed one village, proceed to another.
10. If apart of your terrimdars have finished their divisions, while
another part is still behind in a different district, they will also finish
the divisions which have not been begun before they proceed to
new district.
11. You will send the pay abstract of terrimdars and peons
monthly to the aumildar, who will get the amount from the treasury,
and you will issue it and send a receipt.
12. When the assessment of a district is finished, you will deliver
all the accounts to the aumildar and take his receipt.
13. You
512 APPENDIX.
13. You will class and assess monthly 15,000 cantaray pagodas of
land cultivated by the rent of the proceeding- year, and in case of any
deficiency, your pay of fifteen pagodas will be reduced in the same
manner as that of the terrimdars.
FINIS.
Printed by
J. r,. COX & SON, GREAT QUEEN STREET,
Lincoln's-Inn Fields.
GENERAL LIBRARY
UNIVERSITY OF CALIFORNIA— BERKELEY
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