The capitation tax seems afterwards to have been levied, as it is stated to have been again repealed at the intercession of Maharaja Jay Sing, "much to the satis"faction of the Hindoos," by Moohummud Shah, after Ruttunchund was put to death; and Moohummud Shah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 1760 succeeded 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 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 without conviction on this point; which, had our English historians of India possessed any knowledge of the 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 from what did not. They could give no distinct account of them, nor explain in intelligible language the nature of the office 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, gravely tells us that "after the Moohum"mudan conquest, the Hindoos continued to be governed "by their own laws and institutions."* Dow again says, "the Hindoos are governed by the laws of the Koran or "by the arbitrary will of the prince."+ C 4 But * Vol. i. p. 437. + Preface, p. 36. 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 provinces south of the Soobah of the Dukun (viz. Poonah, the Conkan, &c.). 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 Hindu law? 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 unquestion"ably 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 "of the natives," meaning six centuries since the Moohummudan Seeur-ool Mootuakhereen. + Vol. xviii., p, 359. 66 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 Moohummu"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 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, conveying 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 agreea"bly 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 Moohummudan sovereign. Vol. xviii., Review of Wilks's Mysore. CHAP. II. On the Nature of Tenures, according to the Law of India, under the Moohummudan Government. THUS I conclude that I have established beyond controversy, 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 universally admitted, prevailed in India. In whom does the real and indefeasible right of property in the lands of Bengal rest? In the sovereign, or in the zumeendar, or in the cultivator? This is a question which has puzzled, in no small degree, the gentlemen "versed in India affairs." The learned body (Edinburgh Reviewers) to which have referred, rest the whole question upon this:Are these zumeendars, by the laws of the country, the proprietors proprietors 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 zumeendar, 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, nor any equal to 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 Paddar 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 meaning: it imports more an official or professional connexion between the person and thing connected, than a real right in the former to the latter; as Fojdar, though the * Edinburgh Review, vol. xv. Review of Voyage aux Indes Orientales. |