LECTURE VI. not represent any substance distinct from these elements. Where they are found united there is property and nowhere else. Now the king possesses the exclusive right to a proportion only of the produce. This right is permanent, and the king can dispose of it at his pleasure, but he cannot interfere with the soil or its produce beyond this limit. If he requires the land for buildings, roads, or other public purposes, he takes it as a Magistrate, and ought to give compensation to his fellow shareholders; as he can on emergency seize carts, boats, &c., and can demolish houses in besieged towns, although in those cases he has no pretensions whatever to property. As much of the produce as comes into the hands of the landholder, after the king's proportion is provided, is his; and his power to dispose of his right to it for all future years is unrestrained. The tenant has what remains of the produce after the king's proportion and the landlord's rent is paid; and this he enjoys in perpetuity; but the right is confined to himself and his heir, and cannot be otherwise disposed of. Neither the landholder nor the tenant can destroy or even suspend the use of the powers of the soil: a tenant forfeits his land when he fails to provide a crop, from which the other sharers may take their proportions; and a landholder guilty of the same default would be temporarily superseded by a tenant of the community or the king, and after a certain long period, would be deprived of his right altogether. From all this it is apparent that where there are village communities and permanent tenants there is no perfect property in any of the sharers. Where there are neither communities nor permanent tenants the king doubtless is the full and complete proprietor; all subsequent rights are derived from his grant or lease." Whether, if Hindoo society had been left to itself, the idea of ownership, such as we find it in England, would have developed itself, cannot now be decided. But it is open to great doubt, considering the trammels which the Hindoo ideas of joint property imposed upon all alienation; and it is only out of the free exercise of the power of alienation that the idea could under ordinary circumstances arise. In Europe we find the holding of lands by religious bodies gave the first impulse to ideas of exclusive property;' and the progress of Roman civilization developed the idea of individual right amongst the family communities in Poland, Bohemia, and other parts in the same way as Mahomedan and English ideas appear to have done in India. And having regard to the comparatively slight progress made by Hindoo ideas towards individuality, even with the aid of the leaven from without, we may well doubt whether the idea of individual property and the practice of transfer would have developed sufficiently to induce that search after undisclosed value in the soil which would have led to its appropriation by either of the parties. India has not at present disclosed any minerals of great value in its ordinary soil; and indeed, up to the present day, the value of land seems as of old to consist almost entirely in its productive power. Such being the state of the proprietary rights in Hindoo times, we have next to consider the effect of Mahomedan rule. The Hindoos seem to have borrowed little from their conquerors, either in the way of ideas or institutions. The Mahomedan was much more familiar with individual property; he was much more modern than the Hindoo. He 'M. de Laveleye's Essay, Revue des deux Mondes, tome 100, p. 528. LECTURE VI. LECTURE had no joint family; he had a centralised system of Government, and was averse to anything hereditary in the State. But although a more progressive, the Mahomedans were a less settled race and nation than the Hindoos: and we cannot suppose that they brought with them from the deserts of Arabia or Tartary any more advanced ideas as to the value of land than the Hindoos already possessed. In fact, in all matters relating to the land, the Hindoo system seems to have remained substantially untouched by the Mahomedans; although the indirect effects of their rule were very important. And we do not find any more than in Hindoo times any assertion of a right to anything more than was contemplated in those times; the right to occupy and cultivate, and retain a share of the produce; and the right to receive the remainder of the produce as sovereign. The conclusion that there was no proprietor of the actual soil, except the general community, may seem singular, but in truth it is the most natural of all ideas upon the subject. Menu treats waste land, for instance, as nobody's property until brought into cultivation: the Mahomedan view being still stronger, and treating it as not existing, and as brought into life by cultivation : And, in any case, the extreme difficulty which was experienced at the time of the permanent settlement in deciding to whom the right in the soil belonged, a question discussed, although not necessarily decided, in coming to the conclusions arrived at, seems to confirm the view that it was really undisposed 'Mill's Political Economy, People's Ed., 140. Directions for Revenue Officers, 7. " Menu, ch. ix, sl. 44. 3 Baillie's Land Tax, 42. Land Tenure by a Civilian, 89. Directions for Revenue Officers, 48. of; or at least strongly tends to show that, whoever might possess the right, there had scarcely been any instance of the exercise of it. LECTURE claim to the The conclusion, then, to which the facts at present before us lead is that the right to the soil itself was undisposed of under the Hindoo and Mahomedan systems; and therefore it seems must have resided in the general community, and the State as its representative. But at the time of the permanent settlement and afterwards three claimants for this right were put forward: the sovereign, the zemindar, and afterwards the cultivators, either individually or as the village communities. The right was claimed for the sove- The sovereign's reign because there was practically no limit to his power to soil. take the profits. But some of those who consider the sovereign as proprietor, really look upon him as representing the general community, and as thus entitled to what is otherwise undisposed of; although with some inconsistency they seem to treat this right as part of the sovereign's specific share. Those who hold this view allow definite rights in the land to the village community or the individual ryot." Others again cut down the sovereign's right, while still considering him full proprietor, to a right to receive the rent; probably including in this right the English right of proprietorship; so that, while recognising no private proprietor, they consider the sovereign's receipt of rent Fifth Report, Vol. II, 231. Harington's Analysis, Vol. III, 328. Rickards' History of India, Vol. II, 224. Directions for Revenue Officers, 3. Evidence of Mr. Fortescue before the Select Committee of the House of Lords (1830), 511. Evidence of Lieut.-Col. Barnewall before the Select Committee of the House of Commons (1832), 1753 to 1756, 1758. 2 * Orissa, Vol. II, 214, 227. Patton's Asiatic Monarchies, 73, 175. LECTURE VI. The zemindar's claim to the soil, either as carrying with it the right to the soil or as evidence of such a right. With regard to the claim on behalf of the sovereign, on the ground that he can take all the profit of the cultivator, if he pleases, two answers may be made. The first is, that although he may do so by might, he cannot do so by right. We have seen that there are limits to his taking the produce, both in express law and custom. The second answer is, that whatever his rights may have been, he never claimed any right to the soil itself as part of his share, nor ever exercised a right to anything beyond the natural or accidental produce of the soil. As to the zemindar, we have seen that he derived his right from the sovereign on the one hand and the cultivator on the other. But it is said a zemindary is a hereditary* and alienable proprietary right in land. Such a right does not however carry with it as a matter of course all the rights not possessed by anybody else: or the rights of an English landlord. The khoodkasht's right was hereditary, as were even offices in the Hindoo system; it was also a proprietary right; and the alienability of a right, even if it were not, as in the present case, of modern growth, does not determine anything as to the extent of the right, but only as to the power over that right enjoyed by the possessor. And the account which I have given of the zemindar tends I think to show that he was in no 'Patton's Asiatic Monarchies, 106, 110 note g., 128. Rouse's Dissertations, 20, Harington's Analysis, Vol. III, 354. 5 Fifth Report, Vol. II, 702 to 704. See Rickards' History of India, Vol. II, 236. |