The officers of the 29th had found game so plentiful, and the weather so fine, that they came on with us as far as Jaberā, where we had the pleasure of their society on the evening of the 24th, and left them on the morning of the 25th.[1]

A great many of my native friends, from among the native landholders and merchants of the country, flocked to our camp at every stage to pay their respects, and bid me farewell, for they never expected to see me back among them again. They generally came out a mile or two to meet and escort us to our tents; and much do I fear that my poor boy will never again, in any part of the world, have the blessings of Heaven so fervently invoked upon him by so many worthy and respectable men as met us at every stage on our way from Jubbulpore. I am much attached to the agricultural classes of India generally, and I have found among them some of the best men I have ever known.

The peasantry in India have generally very good manners, and are exceedingly intelligent, from having so much more leisure and unreserved and easy intercourse with those above them. The constant habit of meeting and discussing subjects connected with their own interests, in their own fields, and 'under their own fig-trees', with their landlords and Government functionaries of all kinds and degrees, prevents their ever feeling or appearing impudent or obtrusive; though it certainly tends to give them stentorian voices, that often startle us when they come into our houses to discuss the same points with us.

Nine-tenths of the immediate cultivators of the soil in India are little farmers, who hold a lease for one or more years, as the case may be, of their lands, which they cultivate with their own stock. One of these cultivators, with a good plough and bullocks, and a good character, can always get good land on moderate terms from holders of villages.[2]

Those cultivators are, I think, the best, who learn to depend upon their stock and character for favourable terms, hold themselves free to change their holdings when their leases expire, and pretend not to any hereditary right in the soil. The lands are, I think, best cultivated, and the society best constituted in India, where the holders of estates of villages have a feeling of permanent interest in them, an assurance of an hereditary right of property which is liable only to the payment of a moderate Government demand, descends undivided by the law of primogeniture, and is unaffected by the common law, which prescribes the equal subdivision among children of landed as well as other private property, among the Hindoos and Muhammadans; and where the immediate cultivators hold the lands they till by no other law than that of common specific contract.

When I speak of holders of villages, I mean the holders of lands that belong to villages. The whole face of India is parcelled out into estates of villages.[3] The village communities are composed of those who hold and cultivate the land, the established village servants, priest, blacksmith, carpenter, accountant, washerman, basket-maker (whose wife is ex officio the midwife of the little village community), potter, watchman, barber, shoemaker, &c., &c.[4]

To these may be added the little banker, or agricultural capitalist, the shopkeeper, the brazier, the confectioner, the ironmonger, the weaver, the dyer, the astronomer or astrologer, who points out to the people the lucky day for every earthly undertaking, and the prescribed times for all religious ceremonies and observances. In some villages the whole of the lands are parcelled out among cultivating proprietors, and are liable to eternal subdivisions by the law of inheritance, which gives to each son the same share. In others, the whole of the lands are parcelled out among cultivators, who hold them on a specific lease for limited periods from a proprietor who holds the whole collectively under Government, at a rate of rent fixed either permanently or for limited periods. These are the two extremes.

There are but few villages in which all the cultivators are considered as proprietors—at least but few in our Nerbudda territories; and these will almost invariably be found of a caste of Brahmans or a caste of Rājpūts, descended from a common ancestor, to whom the estate was originally given in rent-free tenure, or at a quit-rent, by the existing Government for his prayers as a priest, or his services as a soldier. Subsequent Governments, which resumed unceremoniously the estates of others, were deterred from resuming these by a dread of the curses of the one and the swords of the other.[5]

Such communities of cultivating proprietors are of two kinds: those among whom the lands are parcelled out, each member holding his share as a distinct estate, and being individually responsible for the payment of the share of the Government demand assessed upon it; and those among whom the lands are not parcelled out, but the profits divided as among copartners of an estate held jointly. They, in either case, nominate one of their members to collect and pay the Government demand; or Government appoints a man for this duty, either as a salaried servant or a lessee, with authority to levy from the cultivating proprietors a certain sum over and above what is demandable from him.

The communities in which the cultivators are considered merely as leaseholders are far more numerous; indeed, the greater part of the village communities in this part of India are of this description; and, where the communities are of a mixed character, the cultivating proprietors are considered to have merely a right of occupancy, and are liable to have their lands assessed at the same rate as those held on a mere lease tenure.

In all parts of India the cultivating proprietors in such mixed communities are similarly situated; they are liable to be assessed at the same rate as others holding the same sort of lands, and often pay a higher rate, with which others are not encumbered. But this is not general; it is as much the interest of the proprietor to have good cultivating tenants as it is that of the tenants to have good proprietors; and it is felt to be the interest of both to adjust their terms amicably among themselves, without a reference to a third and superior party, which is always costly and commonly ruinous.[6]

It is a question of very great importance, no less morally and politically than fiscally, which of these systems deserves most encouragement—that in which the Government considers the immediate cultivators to be the hereditary proprietors, and, through its own public officers, parcels out the lands among them, and adjusts the rates of rent demandable from every minute partition, as the lands become more and more subdivided by the Hindoo and Muhammadan law of inheritance; or that in which the Government considers him who holds the area of a whole village or estate collectively as the hereditary proprietor, and the immediate cultivators as his lease-tenants—leaving the rates of rent to be adjusted among the parties without the aid of public officers, or interposing only to enforce the fulfilment of their mutual contracts.

In the latter of these two systems the land will supply more and better members to the middle and higher classes of the society, and create and preserve a better feeling between them and the peasantry, or immediate cultivators of the soil; and it will occasion the re- investment upon the soil, in works of ornament and utility, of a greater portion of the annual returns of rent and profit, and a less expenditure in the costs of litigation in our civil courts, and bribery to our public officers.

Those who advocate the other system, which makes the immediate cultivators the proprietors, will, for the most part, be found to reason upon false premisses—upon the assumption that the rates of rent demandable from the immediate cultivators of the soil were everywhere limited and established by immemorial usage, in a certain sum of money per acre, or a certain share of the crop produced from it; and that 'these rates were not only so limited and fixed, but everywhere well known to the people', and might, consequently, have become well known to the Government, and recorded in public registers.

Now every practical man in India, who has had opportunities of becoming well acquainted with the matter, knows that the reverse is the case; that the rate of rent demandable from these cultivators never was the same upon any two estates at the same time: nor even the same upon any one estate at different limes, or for any consecutive number of years.[7] The rates vary every year on every estate, according to the varying circumstances that influence them—such as greater or less exhaustion of the soil, greater or less facilities of irrigation, manure, transit to market, drainage—or from fortuitous advantages on one hand, or calamities of season on the other; or many other circumstances which affect the value of the land, and the abilities of the cultivators to pay.

It is not so much the proprietors of the estate or the Government as the cultivators themselves who demand every year a readjustment of the rate demandable upon their different holdings. This readjustment must take place; and, if there is no landlord to effect it, Government must effect it through its own officers. Every holding becomes subdivided when the cultivating proprietor dies and leaves more than one child; and, as the whole face of the country is open and without hedges, the division is easily and speedily made. Thus the field-map which represents an estate one year will never represent it fairly five years after; in fact, we might almost as well attempt to map the waves of the ocean as field-map the face of any considerable area in any part of India.[8]

If there be any truth in my conclusions, our Government has acted unwisely in going, as it has generally done, into [one or other of] the two extremes, in its settlement of the land revenue.

In the Zamīndārī settlement of Bengal, it conferred the hereditary right of property over areas larger than English counties on individuals, and left the immediate cultivators mere tenants-at-will.[9] These individuals felt no interest in promoting the comfort and welfare of the village communities, or conciliating the affections of the cultivators, whom they never saw or wished to see; and they let out the village, or other subdivision of their estates, to second parties quite as little interested, who again let them out to others, so that the system of rack-renting went on over the whole area of the immense possession.

This was a system 'more honoured in the breach than in the observance'; for, as the great landholders became involved in the ruin of their cultivators, their estates were sold for arrears of revenue due to Government, and thus the proprietary right of one individual has become divided among many, who will have the feelings which the larger holders wanted, and so remedy the evil. In the other extreme, Government has constituted the immediate cultivators the proprietors; thereby preventing any one who is supported upon the rent of land, or the profits of agricultural stock, from rising above the grade of a peasant, and so depriving society of one of its best and most essential elements.

The remedy of both is in village settlements, in which the estate shall be of moderate size, and the hereditary property of the holder, descending on the principle of a principality, by the right of primogeniture, unaffected by the common law. This is the system which has been adopted in the Nerbudda territory, and which, I trust, will be always adhered to.

When we enter upon the government of any new territorial acquisition in India, we do not require or pretend to change the civil laws of the people; because their civil laws and their religion are in reality one and the same, and are contained in one and the same code, as certainly among the Hindoos, the Muhammadans, and the Parsees, as they were among the Israelites.

By these codes, and the established usages everywhere well understood by the people, are their rights and duties in marriage, inheritance, succession, caste, contract, and all the other civil relations of life, ascertained; and when we displace another Government we do not pretend to alter such rights and duties in relation to each other, we merely change the machinery and mode of procedure by which these rights are secured and these duties enforced.[10]

Of criminal law no system was ever either regularly established or administered in any state in India, by any Government to which we have succeeded; and the people always consider the existing Government free to adopt that which may seem best calculated to effect the one great object, which criminal law has everywhere in view—the security of life, property, and character, and the enjoyment of all their advantages.

The actions by which these are affected and endangered, the evidence by which such actions require to be proved, and the penalties with which they require to be visited, in order to prevent their recurrence, are, or ought to be, so much the same in every society, that the people never think us bound to search for what Muhammad and his companions thought in the wilds of Arabia, or the Sanskrit poets sang about them in courts and cloisters.

They would be just as well pleased everywhere to find us searching for these things in the writings of Confucius and Zoroaster, as in those of Muhammad and Manu: and much more so, to see us consulting our own common-sense, and forming a penal code of our own, suitable to the wants of such a mixed community.[11]

The fiscal laws which define the rights and duties of the landed interests and the agricultural classes in relation to each other and to the ruling powers were also everywhere exceedingly simple and well understood by the people. What in England is now a mere fiction of law is still in India an essential principle. All lands are held directly or indirectly of the sovereign: to this rule there is no exception.[12]

The reigning sovereign is essentially the proprietor of the whole of the lands in every part of India, where he has not voluntarily alienated them; and he holds these lands for the payment of those public establishments which are maintained for the public good, and are supported by the rents of the lands either directly under assignment, or indirectly through the sovereign proprietor. When a Muhammadan or Hindoo sovereign assigned lands rent-free in perpetuity, it was always understood, both by the donor and receiver, to be with the small reservation of a right in his successor to resume them for the public good, if he should think fit.[13]

Hindoo sovereigns, or their priests for them, often tried to bar this right by invoking curses on the head of that successor who should exercise it.[14] It is a proverb among the people of these territories, and, I believe, among the people of India generally, that the lands which pay no rent to Government have no 'barkat', blessing from above—that the man who holds them is not blessed in their returns like the man who pays rent to Government and thereby contributes his aid to the protection of the community.

The fact is that every family that holds rent-free lands must, in a few generations, become miserable from the minute subdivision of the property, and the litigation in our civil courts which it entails upon the holders.

[15] It is certainly the general opinion of the people of India that no land should be held without paying rent to Government, or providing for people employed in the service of Government, for the benefit of the people in its defensive, religious, judicial, educational, and other establishments. Nine- tenths of the land in these Nerbudda territories are held in lease immediately under Government by the heads of villages, whose leases have been renewable every five years; but they are now to have a settlement for twenty.[l6]

The other tenth is held by these heads of villages intermediately under some chief, who holds several portions of land immediately under Government at a quit-rent, or for service performed, or to be performed, for Government, and lets them out to farmers. These are, for the most part, situated in the more hilly and less cultivated parts.

Notes:

1. November, 1835.

2. This observation does not hold good in densely populated tracts, which are now numerous.

3. These 'estates of villages' are known by the Persian name of 'mauza'. The topographical division of the country into 'mauzas', which may be also translated by the terms 'townlands' or 'townships', has developed spontaneously. Some 'mauzas' are uninhabited, and are cultivated by the residents of neighbouring villages.

4. In some parts of Central and Southern India, the 'Gārpagrī', who charms away hail-storms from the crops, and 'Bhūmkā', who charms away tigers from the people and their cattle, are added to the number of village servants, [W. H .S.] 'In many parts of Berār and Mālwa every village has its "bhūmkā", whose office it is to charm the tigers; and its "gārpagrī", whose duty it is to keep off the hail-storms. They are part of the village servants, and paid by the village community.

After a severe hail-storm took place in the district of Narsinghpur, of which I had the civil charge in 1823, the office of "gārpagrī" was restored to several villages in which it had ceased for several generations. They are all Brahmans, and take advantage of such calamities to impress the people with an opinion of their usefulness. The "bhūmkās" are all Gōnds, or people of the woods, who worship their own Lares and Penates' (Ramaseeana, Introduction, p. 13. note).

5. Very often the Government of the country know nothing of these tenures; the local authorities allowed them to continue as a perquisite of their own. The holders were willing to pay them a good share of the rent, assured that they would be resumed if reported by the local authorities to the Government. These authorities consented to take a moderate share of the rent, assured that they should get little or nothing if the lands were resumed. [W. H. S.] 'Rent' here means 'land-revenue'. Of course, under modern British administration the particulars of all tenures are known and recorded in great detail,

6. Since the author wrote these remarks the legal position of cultivating proprietors and tenants has been largely modified by the pressure of population and a long course of legislation. The Rent Acts, which began with Act x of 1859, are now numerous, and have been accompanied by a series of Land Revenue Acts, and many collateral enactments. All the problems of the Irish land question are familiar topics to the Anglo-Indian courts and legislatures.

7. This proposition no doubt was true for the 'Sāgar and Nerbudda Territories' in 1835, but it cannot be predicated of the thickly populated and settled districts in the Gangetic valley without considerable qualification. Examples of long-established, unchanged, well-known rent-rates are not uncommon.

8. In recent years this task of 'mapping the waves of the ocean' has been attempted. Every periodical settlement of the land revenue in Northern India since 1833 has been accompanied by the preparation of detailed village maps, showing each field, even the tiniest, a few yards square, with a separate number. In many cases these maps were roughly constructed under non-professional supervision, but in many districts they have been prepared by the cadastral branch of the Survey Department.

The difficulty mentioned by the author has been severely felt, and it constantly happens that beautiful maps become useless in four or five years. Efforts are made to insert annual corrections in copies of the maps through the agency of the village accountants, and the 'kānūngos', or officers who supervise them, but the task is an enormous one, and only partial success is attained. In addition to the maps, records of great bulk are annually prepared which give the most minute details about every holding and each field.

9. The Permanent Settlement of Bengal, effected under the orders of Lord Cornwallis in 1793, was soon afterwards extended to the province of Benares, now included in the United Provinces of Agra and Oudh. Illusory provisions were made to protect the rights of tenants, but nothing at all effectual was done till the passing of Act x of 1859, which has been largely modified by later legislation.

10. The general principle here stated of respect for personal substantive law in civil matters is still the guide of the Indian Legislature, but the accumulation of Privy Council and High Court rulings, combined with the action of codes, has effected considerable gradual change. Direct legislation has anglicized the law of contract, and has modified, though not so largely, the law of marriage, inheritance, and succession.

11. In the author's time the courts of the East India Company still followed the Muhammadan criminal law, as modified by the Regulations. The Indian Penal Code of 1869 placed the substantive criminal law on a thoroughly scientific basis. This code was framed with such masterly skill that to this day it has needed little material amendment. The first Criminal Procedure Code, passed in 1861, has been twice recast. The law of evidence was codified by Sir James FitzJames Stephen in the Indian Evidence Act of 1870.

12. This proposition, in the editor's opinion, truly states the theory of land tenures in India, and it was a generally accurate statement of actual fact in the author's time. Since then the long continuance of settled government, by fostering the growth of private rights, has tended to obscure the idea of state ownership.

The modern revenue codes, instead of postulating the ownership of the state, enact that the claims of the state—that is to say, the land- revenue—are the first charge on the land and its produce. The Malabar coast offers an exception to the general Hindu role of state ownership of land. The Nairs, Coorgs, and Tulus enjoyed full proprietary rights (Dubois, Hindu Manners, &c., 3rd edition (1906), p. 57).

13. Amīr Khān, the Nawāb of Tonk, assigned to his physician, who had cured him of an intermittent fever, lands yielding one thousand rupees a year, in rent-free tenure, and gave him a deed signed by himself and his heir-apparent, declaring expressly that it should descend to him and his heir for ever.

He died lately, and his son and successor, who had signed the deed, resumed the estate without ceremony. On being remonstrated with, he said that 'his father, while living, was, of course, master, and could make him sign what he pleased, and give land rent-free to whom he pleased; but his successor must now be considered the best judge whether they could be spared or not; that if lands were to be alienated in perpetuity by every reigning Nawāb for every dose of medicine or dose of prayers that he or the members of his family required, none would soon be left for the payment of the soldiers, or other necessary public servants of any description'.

This was told me by the son of the old physician, who was the person to whom the speech was made, his father having died before Amīr Khān. [W. H. S.] Amīr Khān was the famous Pindhārī leader. H. T. Prinsep translated his Memoirs from the Persian of Busawun Lāl (Calcutta, 1832).

14. The ancient deeds of grant, engraved on copper, of which so many have been published within the last hundred years, almost invariably conclude with fearful curses on the head of any rash mortal who may dare to revoke the grant. Usually the pious hope is expressed that, if he should be guilty of such wickedness, he may rot in filth, and be reborn a worm.

15. Revenue officers commonly observe that revenue-free grants, which the author calls rent-free, are often ill cultivated. The simple reason is that the stimulus of the collector's demand is wanting to make the owner exert himself.

16. These leases now carry with them a right of ownership, involving the power of alienation, subject to the lien of the land revenue as a first charge. Conversely, the modern codes lay down the principle that the revenue settlement must be made with the proprietor.

The author's rule of agricultural succession by primogeniture in the Nerbudda territories has survived only in certain districts (see post, Chapter 47). The land-revenue law and the law concerning the relations between landlords and tenants have now been more or less successfully codified in each province.

Mr. B. H. Baden-Powell's encyclopaedic work The Land Systems of British India (3 volumes: Oxford, Clarendon Press, 1892) gives very full information concerning Indian tenures as now existing, and the law applicable to them at the date of publication.