# Transactions of the Second International Folk-Congress/Indian Institutions and Feudalism

INDIAN INSTITUTIONS AND FEUDALISM.
By C. L. TUPPER.
The comparison of Indian and feudal institutions is a subject of some breadth and complexity. It would be idle, in such a paper as this, to attempt to traverse any wide extent of the complicated region of inquiry which that comparison opens to view; so I hope I may be pardoned if the remarks I venture to offer are necessarily slight. There is the more reason why they should be so, because the subject on which I have been asked to address you has little or no connection with folk-lore in the narrower acceptation of that term. In my belief, however, it has a very close connection with the general history of institutions; so that in this section what I have to say may not be altogether out of place.
Briefly stated, my object in this paper is to touch, rather than to handle, the triple question, What sort of light is the Indian evidence likely to throw on the origin of the manor, on the process of feudalisation, and on the severance of ideas of sovereignty from ideas of property in land?
Indian official literature is like a muniment-room from which the documents of merely passing consequence have never been weeded out. Amid an immense mass of material, of which part has long ceased to have any interest, and part never had any but an official interest for those engaged in the practical business of administration, there are a great many reports, or passages in reports, which possess real value in the history of institutions. I propose to turn the key of that muniment-room, and to pick out one or two passages from reports which I hope may interest you, and which will, at all events, help me to explain what I have to say on the triple question that I have just stated.
In his admirable Settlement Report of the Gonda district in Oudh, Mr. Benett makes the acute remark that the basis of Hindu political society which he describes is the grain-heap. ​The division of the threshed grain amongst the various people entitled to a share in an Indian village or hamlet—I use the word "hamlet" to mark the fact that the cultivated lands may be held in full severalty by families of which the members may or may not hold jointly amongst themselves—lies, I think, at the root of any correct theory of the origin and character of Indian political and proprietary institutions. I will take a description of that division from Mr. Fryer's Settlement Report of the Dera Ghazi Khan district of the Punjab, a district in which I served for eighteen months a good many years ago. First of all a varying share of the grain, usually in that part of the country one-fourth, is set apart as mahsul, a word that means the thing collected by authority, the equivalent of the state-rent or land-tax. Another name for the same thing is the hakimi hissa, the share of the hakim or governor. Whoever takes this share is responsible for the payment of the state-rent or land-tax, known in India as the revenue—unless, indeed, he is himself the ruler, or the ruler has by grant excused him from the whole or part of the demand. If a part only is excused, he is responsible for the residue. Out of the remainder of the grain-heap a small portion, usually a sixteenth or seventeenth, is a proprietary due, and is taken by the proprietor, who may or may not be also the actual cultivator. Various small shares are then set apart for the tumandar, or tribal chief, who may also take the mahsul, for the remuneration of village servants— the weighman, potter, blacksmith, winnower, shoemaker, watchman, and so forth—or for charity, as for some local shrine or theoretically holy beggar or village priest. What then remains goes to the cultivator. If the proprietor is also the cultivator, he gets the cultivator's share.
In the comparison of Indian and feudal institutions it is important to follow carefully the disposal of the hakimi hissa or ruler's share. In the old days commonly, under our own administration almost invariably, the share is commuted for a money payment. The share, or the money that represents it, may be variously assigned; it may be divided, part going to one person, part to another ; it may be farmed out for a stated sum, or for a percentage on the collections; or may even be sold by auction to the highest bidder. These, I must add, are not our expedients; they were the expedients of our predecessors. The shares of the ​grain allowed to village servants and given away in charity may be regarded as pretty constant. The share in Dera Ghazi Khan of the tumandar, or tribal chief, is a local peculiarity of which all I need say here is that in any general view it may be left out of consideration. It is thus very clear that the rights of the cultivating classes are strong or weak according as more or less is left them after the. ruler's share is taken.
This description enables me to explain some Indian terms which I shall have to use presently. In Hindu phrase a raj, in Muhammadan phrase a riasat, is a principality. Within the territorial limits of the raj or riasat the Raja or chief is entitled to the ruler's share. He may owe allegiance, tribute, or military service, or all three, to some political superior. By a convenient anachronism, by the use of language which belongs to a much less primitive state of things, we may say that within his own territories he enjoys a large measure of sovereignty, and combines in his own person such of the functions of the lawgiver, chief judge, and chief administrator as his archaic or mediaeval surroundings require. The raj or riasat must be sharply contrasted with the jagir. The word jagir is derived from two Persian words, ja, "a place", and giriftan, "to take", and jagirdar literally means one who holds the place of another. A jagir is a certain extent of territory where the ruler's share in money or kind has been assigned by the grant of the ruler to a given individual, who commonly thereby acquires the right to collect it. In respect of this share the jdgirdar takes the place of the ruler. A zamindar is just the converse of a jagir. The zamindar, or landholder in a certain extent of territory, does not receive a grant of the ruler's share; he is appointed to collect it and to pay it over to the ruler. He is remunerated for his trouble by grants in land, or an allowance out of the collection, or by both. There are, of course, other meanings of this famous word zamindar, but this account of it will suffice for present purposes. A Raja conquered by a Delhi emperor or a Ranji't Singh might be treated as a jagirdar or as a zamindar. He might be allowed to continue to enjoy the ruler's share in a certain territory as a grant from his conqueror, or he might be theoretically required to pay over his collections—that is, as much as his conqueror was able to exact. In the latter case, though the officials of the Delhi empire might ​call him a zamindar, the peasants of his raj would still regard him as the Raja.
We shall now be able to follow without pause Sir James Lyall's description of a Rajput principality in the Punjab hills, which I shall give presently almost in his own words. I have, however, first to say something of the part of the country to which it applies. Roughly, it is the Himalayan ranges between Simla and Kashmir. Much of it consists of forests and grazing-grounds, or impracticable precipices or crags. But in valleys or on hillsides at the lower elevations there is a good deal of cultivated land; and terraced fields surrounding picturesque and scattered homesteads are often the foreground of vast woods of pine and cedar, crowned in the distance by perpetual snows. This land of mountains has immemorially been divided into petty states. In one part of it the tradition is that there used to be twenty-two principalities, eleven owning the headship of the Katoch Rajas of Kangra, and eleven known as the Dogra Circle, of which the headship was vested in the chief of Jammu, a territory which is now incorporated with Kashmir. The Delhi emperors subjugated the Rajas of these hills and recognised them as zamindars of these states, but did not interfere materially with the old state of society. Nor in remote outlying regions was the grip of the Gurkbas, or after them of the Sikhs, strong enough to twist into new shapes the old traditional institutions. Under these Rajas the theory of property in land (I am now reproducing almost verbally Sir James Lyall's report) was that each Raja was the landlord of the whole of his principality. He was not the lord paramount of inferior lords of manors, though, as I have shown, he might have a sort of suzerain above him. He was, as it were, manorial lord of his whole country, which was divided not into townships cultivated by village communities, or into estates, but into circuits—mere groupings of separate holdings under one collector of rents. The rent due from each field was payable direct to the Raja, and represented his share of the produce. He might remit or assign it; but if he assigned it as a jagir he gave the jagir in scattered pieces, so as to prevent the growth of any intermediate lordship. Every sort of right connected with land might be held direct of the Raja as a separate tenancy : the right, for instance, of cultivation, of pasture, of netting game and ​hawks, of working water-mills, of setting up fish-weirs. The artisans holding garden-plots of the Raja were bound to service to him only. The landholders were also liable to be pressed into service military or menial. All waste lands, great and small, were the Raja's waste; parts of the forests were his shooting-preserves; trees could not be felled, nor could new fields be formed out of the waste, without his permission. "All rights", says Sir James Lyall, "were supposed to come from the Raja; several rights . . from his grant, and rights of common from his sufferance."
Now let us set beside this account a description of an English manor. I will quote that given by Sir Fred. Pollock at page 128 of his Oxford Lectures: "The English manor", he says, "as we find it from the Conquest downwards, included the lord, the free tenants who held of the lord by regular feudal tenure and owed suit to the court, and the villeins or customary tenants who held land according to the custom of the manor on villenage or base tenure, being generally bound not only to make stated payments in kind, but to furnish work on the lord's own land at stated times." The pattern of society here depicted is in much sharper lines. Both the theories and practice of lawyers, both legal definition and the regular working of regularly constituted courts of justice, have here given an amount of system and rigidity to classes of people connected with the land, and to their rights and duties, which it would be an error to seek in old hill-states where there were no lawyers, and practically no law but custom and the will of the chief; and where the absence of any distinction between judicial and executive authority, and of even so much as the idea of legal, as opposed to customary, precedent, made it impossible for the rude tribunals of the Rajas to give to social combinations any greater distinctness than they spontaneously acquired. Nevertheless, the similarities are striking; in both cases you have the land as the basis of a complete social group; in both cases the proprietary rights of the chief or lord are intermixed with his rights of jurisdiction; in both cases the permanent rights of others in the land are associated with obligations of military or personal service. And these resemblances are the more worthy of attention because the Indian example occurs where no sort of Roman influence ever operated, and where there is no trace of the past ​or present existence of the compact village community found in great perfection in the not very distant Punjab plains.
The effect of this evidence is, I think, to suggest hesitation in asserting anything like an exclusively Roman origin of the manor or fief. And, again, if we suppose that in England the manorial group succeeded the village group, and that one element in the change was that the waste or common-land of the community became the lord's waste, we can see, from the tight hold of the hill Rajas on the forests and uncultivated lands which never belonged to any village community, that, to say the least, this supposition supplies no exhaustive theory of the origin of institutions of a manorial type. On the other hand, this evidence, and much more evidence which might be adduced from many parts of India, confirms the view that in many old tribal societies there was a propulsion towards feudalism exhibiting itself independently of those forces of Roman law and Roman administration which gave it a new character and a new direction.
The truth, however, is that these hill principalities and others which existed in Oudh before our day are more like the French fiefs than the English manors.
As regards the Oudh principalities, which have been described in Mr. Benett's Gonda Settlement Report, I may say that I have carefully compared his list of quasi-feudal dues levied by the Gonda Rajas with the elaborate list of feudal rights given in Note E of De Tocqueville's France before the Revolution. The Gonda dues included tolls on beasts of burden bringing goods to bazaars, on ferries, bridges, and roads, besides the Raja's share of the produce. To each of these there is a parallel in De Tocqueville's list; and there are many other resemblances of a less obvious description that it would take time to explain. I would express the result by saying that if we did not know historically that France was at one time honeycombed with petty states, each enjoying a certain measure of sovereignty, we might, from the comparison of these lists, have inferred it as a certainty.
I must pass on quickly now to the process of feudalisation. What were the circumstances and motives that, during the tenth and eleventh centuries, converted allodial lands into feudal lands? Why chiefly in France, but also in Italy and Germany, were lands surrendered by their proprietors to be received back again ​on feudal conditions? What connection was there between these surrenders of lands and commendation—the practice, that is, of establishing a personal relation, distinguished by Hallam from the feudal relation of lord and vassal, a relation resembling that of patron and client under Roman law? These are questions in the history of European institutions, and a partial answer is given by Hallam. In the distracted state of society the weak needed the protection of the powerful. Hallam adds that the government needed some security for public order; but this remark seems rather to explain the use of certain practices found ready to hand by governments that succeeded in establishing themselves, than the causes which evolved political society out of anarchy. In reality these questions touch one of the most interesting problems in political philosophy, the origin of political power.
In studying these questions with an eye to the larger one in which they may be merged, I think you will agree with me that, there is Indian evidence which may be of use. We must not expect exact resemblances. I can quote no case in India where the tie between lord and vassal is in every strand the same as the tie between a feudal vassal and a feudal lord. I can point to no precise analogy to the practice of commendation. But in the India to which I mainly refer throughout this paper—the India of the times which preceded British rule—I can instance circumstances and motives at work tending to produce feudal types of society. They are the more instructive because the influences of the Roman empire and of the Catholic Church are both entirely absent.
Towards the end of the fifteenth or beginning of the sixteenth century the Yusafzais, Mahammadzais, and other Pathan tribes settled on the plains of the Peshawar district of the Punjab. They first begged and obtained land from the Dilazako, the previous occupants, and soon afterwards fought and expelled them. The Pathan families of these tribes located themselves in neighbouring villages, the rest of the tribal tract being held in common and used chiefly for pasturage. In course of time these Pathdns allowed cultivators from other parts, who had no share in the tribal inheritance, to settle amongst them. These settlers were called fakirs or hamsayas, persons under the same shade; and. ​lands were given them on a service-tenure. They were required to attend the land-owning Pathan tribesmen in their raids and fights, to furnish grain and grass for their guests, to provide the guest-house with beds and blankets, to take turns in watch and ward, and occasionally to work in building and reaping. By degrees several of the khans, strong men, tribal leaders, assumed privileges, and in particular collected fees from these hamsayas on the occasion of births and marriages. As clan encroached on clan, hamlets were established on the boundaries of tribal tracts, the occupants being in part some of the poorer tribesmen and in part these hamsayas or fakirs. No tax, no rent, no share of the crop was paid. These occupants of boundary hamlets held solely on condition of warding off attacks and joining expeditions. The other services were excused on account of the distance from the original settlement. " The personal character of some of the khans", says the late Major James, from whose Peshawar Settlement Report these particulars are taken, "enabled them at this time to make further innovations, and they frequently acquired such power as to enable them to settle villages on their own account, realising a certain portion of the produce, and even to remove proprietors from one locality to another." Again and again in India has that demand for a portion of the produce been the foundation, as it is still the symbol, of political authority. In this case local circumstances, chief amongst which was the stubborn, jealous, democratic character of the Pathan tribesmen, led to another development. But here we see a tenure so far servile that it included liability to the corvec, side by side with a purely military tenure curiously like the tenure of a feudal vassal. Surely this is feudalism in the making in a society as purely tribal as that of the Germans of Tacitus, and even further removed than that of the Germans of Tacitus from Roman influences both of Church and State.
These hamsayas had no lands to surrender. They acquired lands by the arrangement which gave them protection. But in the case of men already in the possession of lands, the hand of the oppressor and the protector was too often one and the same. One plunderer may agree to keep others at bay if steadily bribed by possible victims. The Des-Kavali, or district watching-fees of the Poligars of the Carnatic— many of whom, in the confusions of ​the eighteenth century, set up for themselves as independent chiefs—were theoretically paid for the sake of protection. In practice these fees were levied by the Poligars from defenceless villagers as the price of forbearing to plunder them. The Poligar sent out armed men from his fort and demanded payments in money, grain, cattle, and other things. If payment was refused, the villagers were flogged or tortured, or kidnapped or killed. Suppose demands of this kind to be regularly made over a certain extent of territory within easy reach of expeditions from the fort, is it not plain that in time they might turn into a tax, and that the robber-chief might become a Raja of just such a manorial principality as I have described from the Punjab hills? The same connection between oppression and protection is discernible in an entirely different part of India, in Rajputtaa, which is as unlike the Carnatic of last century as the Palestine of Judah and Israel is unlike Merovingian France. Rekwali in Rajputana is a name for a kind of blackmail. In explaining it Col. Tod quotes Lord Lovat's Report on the Highlands of Scotland in 1724: "When the people are almost ruined by continual robberies and plunders, the leader of the band of thieves, or some friend of his, proposes that, for a sum of money annually paid, he will keep a number of men in arms to protect such a tract of ground, or as many parishes as submit to the contribution. "When the terms are agreed upon he ceases to steal, and thereby the contributors are safe; if anyone refuses to pay, he is immediately plundered." Rekwali may be described as contributions paid, lands granted, or services rendered in consideration of protection. There were payments in money or kind at harvest; personal services in agriculture, the husbandman finding implements and cattle, and attending when ordered; fees on marriages; dishes of good fare at wedding feasts; and portions of fuel and provender. Sometimes the person protected sank into a position hardly distinguishable from that of a serf. Often the arrangement was based on the grant by the villagers to the chief of their ancient proprietary rights in a portion of their lands. Tod identifies rekwali with the salvamenta of Europe, paid by those who had preserved their allodial property to insure its defence. But the surrender of lands in certain cases to the chief, though the chiefs did not restore them, connects rekwali with the process of feudalisation; and the fact that it ​was levied on passing caravans, wherever they halted for the day, shows that in origin it was essentially blackmail.
From the rekwali of Rajpiitana it is an easy transition to the famous chauth of the Marhattas. Chauth means a fourth, and what the Marhattas eventually claimed was the chauth or fourth of the land revenue, that is, of the ruler's share of the produce in money or kind, of all India. In its origin the Marhatta chauth was a payment to obtain protection as well as exemption from pillage. And here the difference between East and West is striking and characteristic. In Europe an individual, by voluntary compact, assumes a new personal status; he takes upon himself a new legal clothing, partly of German, partly of Roman materials, but of a new fashion that is neither German nor Roman. In India a community, or an officer, or tributary prince of a decaying empire, agrees to pay to a new master a part of that share of the crop, or its cash equivalent, which by immemorial custom had been taken by the ruler of the day. And observe the connection between such agreements and territorial sovereignty. Out of the claims, conquests, and military arrangements of the Marhattas arose a loose, though complex, military confederacy, and, in the end, a still surviving group of territorial despotisms.
There are points of resemblance between the rise of the Marhattas and the rise of the Sikhs; but the dominion of the great Sikh Maharaja, Ranjit Singh, was better consolidated than the Marhatta empire ever was. In his progress to supremacy Ranjit Singh habitually reduced independent chiefs to the position of Jagirdars acknowledging his authority and bound to follow him with contingents in war. Conquering their territories, he sometimes restored a part of them in jagir sometimes he gave the dispossessed chief a jagir in another part of the country. You remember that a jagir means a grant of the ruler's share of the crop in money or kind. These jagirs established a sort of feudal relation between the Maharaja and the conquered chiefs, but it was in no sense voluntary; it was forced upon them by conquest in arms. There is, however, in this part of India a famous historical example of the voluntary adoption of a new allegiance. On the south and east of the Sutlej a number of chiefs, having strong reason to know that Ranjit Singh meant to extend his overlordship to their possessions, sought the protection of the British ​Government. It was granted, and the treaty of 1809 made the Sutlej the line of demarcation between, as we might now say, the respective spheres of influence of the Maharaja and the British. Many of these chiefs misbehaved in the first Sikh war, and were reduced by ourselves to the position of jagirdars. Six of them still enjoy local autonomy; and though their exact status could not be briefly explained, I cannot consider them misdescribed by the phrase in common use which names them feudatories of the Indian Empire.
These Indian illustrations give, I think, some support to the remark of Bishop Stubbs, that though feudalism was of distinctly Frank growth, the principle that underlies it may be universal. If I am asked what is the bearing of this evidence on the questions in the history of European institutions from which I set out, I would answer, Look at the elaborate regulations for judicial combat or private war intended to mitigate greater disorder, at the well-known descriptions of the unceasing petty warfare of feudal times, at the conversion of the Roman villae into forts, at the castles which still dot the Rhine. It is not, I think, without significance that the salvamenta are traced chiefly in the charters of monasteries. Strong ecclesiastical corporations might stem for a time the tide that rapidly overwhelmed individuals. If in those centuries of rapine and violence an individual was strong enough to keep his own allodial property, he probably also had both the power and the will to prey upon his neighbours. It seems a reasonable conjecture that in parts of Europe everyone who was strong enough to avoid becoming a feudal vassal, might set up for himself as a feudal lord. And if we wish to note one of the great points of difference between European feudalism and the nascent, never completed feudalism of India, we may lay our finger on the one word commendation. Protection was sought in various ways or accepted as the alternative of plunder; and in India, as in feudal Europe, the land was the basis of all political institutions. But in India there was no Roman law of patron and freedman, of patron and client; nor was there that heritage of the ideas of formally enacted law which had devolved on the Frankish kings and the Church from the days of the great Empire. For this reason a new personal status, resulting from a contract and carrying with it a complete ​set of rights and duties, is not amongst the properties of the Indian stage in the confused drama of the eighteenth century.
Guizot resolves the feudal system into certain elements which may, I think, be thus stated. First there is the fief, or feudal lordship or manor, considered as property in land; secondly, there is the fief considered as a semi-sovereign state; and thirdly, there are the rules and principles which regulated the relations of these semi-sovereign states to each other and to the central power or suzerain. The first of these elements would be illustrated by the comparison of the English manor, the French fief, and the Indian raj or principality; and the third by an analysis of the distribution of pohtical power in all the great empires established in India during historical times, in the empires of the Moghals, the Marhattas, the Sikhs, and the British. It is, however, on the second element, or the fusion of sovereignty and property, that I have still a few words to say before I conclude. To a man educated in our own time and country there is an exceedingly sharp contrast between political power and power over private property. In England no one could be in danger of confusing a tax with a rental; while we have given to individuals a very extensive power of disposing of land, we have entirely separated that power from all territorial dominion. In India, before British rule, the combination of rights of sovereignty with rights over the land and its produce is a very familiar fact. We see it everywhere in the ruler's share of the crop; it is clearly evident in the description of the Punjab Hill Principality; the jagirdars, often in the old days exercising the functions of petty chieftains, held assignments of the ruler's share; the great zamindars of Bengal were some of them Rajas, and some might have regained or established their independence had not Clive and the Company struck in. To students of the history of institutions it is well known that ideas which are separated as society advances are intimately intermingled in early times. We suppose that mankind only gradually learns to distinguish a rule of law from a rule of religion. The law of property when we first perceive traces of it is blended with the law of personal status; the separate enjoyment of property in land is evolved from its joint enjoyment; primitive folk do not discriminate crimes from civil wrongs, or the substantive criminal law from criminal procedure. May not the separation of the ideas of property and sovereignty, fused ​alike in feudal Europe and in nearly feudalised India, be another illustration of the working of the law of evolution that underlies all these progressive changes? All of them start from rudimentary ideas of law, not yet distinguished from custom, which themselves imply a certain social advance. All of them, therefore, imply a still earlier state of things. Before we get to territorial sovereignty, there is tribal chieftainship, there is the mere leadership of robber bands. If there is something earlier than territorial sovereignty, that does not exclude the operation of the usual laws of progress when sovereignty of that kind has once been established. In Europe territorial sovereignty was the outcome of feudalism. The two distinct conceptions of sovereignty, running through international law and jurisprudence respectively, are due in Europe the one to the Publicists, the other to the Analytical Jurists. It is largely to both of them that we owe the severance of ideas of sovereignty from other ideas with which it was blended at the outset of our modern life. In India, though the process of disentanglement has been, under British rule or supremacy, more rapid than in Europe, the working of the law of evolution may be discerned in our measures no less than in the political theories of the West. In a country where feudal tendencies have been arrested by our supremacy, in an Empire which at this day comprises six hundred and twenty-nine feudatory states, we have long been in the course of discriminating ideas of property from ideas of sovereignty; and our legislative and political action is taken under influences largely derived from European international law and English jurisprudence.