The History of British India, Vol. I, by James Mill

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CHAP. III.

From the Formation of the third Joint-stock, in 1632, till the Coalition of the Company with the Merchant Adventurers in 1657.

In 1631–32, a subscription was opened for a third joint-stock. This amounted to 420,700l.74 Still we are left in darkness with regard to some important circumstances. We know not in what degree the capital which had been placed in the hands of the Directors by former subscriptions had been repaid; not even if any part of it had been repaid, though the Directors were now without funds to carry on the trade.

With the new subscription, seven ships were fitted out in the same season; but of the money or goods embarked no account remains. In 1633–34, the fleet consisted of five ships; and in 1634–35, of no more than three, the money or goods in both cases unknown.75

During this period, however, some progress was made in extending the connexions of the Company with the eastern coast of Hindustan. It was thought advisable to replace the factory at Masulipatam not long after it had been removed; and certain privileges, which afforded protection from former grievances, were obtained from the King of Golconda, the sovereign of the place. Permission was given by the Mogul Emperor to trade to Pipley in Orissa; and a factor was sent from Masulipatam. For the more commodious government of these stations, Bantam was again raised to the rank of a Presidency, and the eastern coast was placed under its jurisdiction. Despairing of success in the contest with the Dutch for the trade of the islands, the Company had, for some time, dispatched their principal fleets to Surat; and the trade with this part of India and with Persia now chiefly occupied their attention. From servants at a vast distance, and the servants of a great and negligent master, the best service could not easily be procured. For this discovery the Directors were indebted, not to any sagacity of their own, but to a misunderstanding among the agents themselves; who, betraying one another, acknowledged that they had neglected the affairs of their employers to attend to their own; and, while they pursued with avidity a private trade for their private benefit, had abandoned that of the Company to every kind of disorder.76

As pepper was a product of the Malabar coast, a share was sought in the trade of that commodity, through a channel, which the Dutch would not be able to obstruct: A treaty was concluded, between the English and Portuguese, in 1634–35, and confirmed with additional articles the following year, in which it was ordained that the English should have free access to the ports of the Portuguese, and that the Portuguese should receive from the English factories the treatment of friends.77

The Company, like other unskiful, and for that reason unprosperous, traders; had always competitors, of one description or another, to whom they ascribed their own want of success. For several years they had spoken with loud condemnation of the clandestine trade carried on by their own servants; whose profits, they said, exceeded their own. Their alarms, with regard to their exclusive privilege, had for some time been sounded; and would have been sounded much louder, but for the ascendancy gained by the sentiments of liberty, the contentions between Charles and his parliament being already high; and the fear that their monopoly would escape the general wreck, with which institutions at variance with the spirit of liberty were threatened, only if its pretensions were prudently kept in the shade. The controversy, whether monopolies, and among others that of the Company, were injurious to the wealth and prosperity of the nation, had already employed the press: but, though the Company had entered boldly enough into the lists of argument, they deemed it their wisest course, at the present conjuncture, not to excite the public attention, by any invidious opposition to the infringements which private adventure was now pretty frequently committing on their exclusive trade.

An event at last occurred which appeared to involve unusual danger. A number of persons, with Sir William Courten at their head, whom the new arrangements with the Portuguese excited to hopes of extraordinary profit, had the art, or the good fortune, to engage in their schemes Endymion Porter, Esq., a gentleman of the bedchamber to the King, who prevailed upon the sovereign himself to accept of a share in the adventure, and to grant his license for a new association to trade with India. The preamble to the license declared that it was founded upon the misconduct of the East India Company, who had accomplished nothing for the good of the nation, in proportion to the great privileges they had obtained, or even to the funds of which they had disposed. This was, probably, the general opinion of the nation; nothing less seeming necessary to embolden the King to such a violation of their charter. Allowing the contrariety to the interests of the nation, the consequences were not so ruinous, but that the stipulated notice of three years might have been given, and a legal end been put to the monopoly. The Company petitioned the King, but without success. They sent, however, instructions to their agents and factors in India, to oppose the interlopers, at least indirectly. An incident occurred of which they endeavoured to avail themselves to the utmost. One of their ships from Surat reported that a vessel of Courten's had seized and plundered two junks belonging to Surat and Diu, and put the crews to the torture. The latter part at least of the story was, in all probability, forged; but the Directors believed, or affected to believe, the whole. In consequence of the outrage, the English President and Council at Surat had been imprisoned, and the property of the factory confiscated to answer for the loss. A memorial was presented to the King, setting forth in the strongest terms, the injuries which the Company sustained by the license to Courten's Association, and the ruin which threatened them unless it were withdrawn. The Privy Council, to whom the memorial was referred, treated the facts alleged, as little better than fabrication, and suspended the investigation till Courten's ships should return.78

The arrival of Courten's ships at Surat seems to have thrown the factory into the greatest confusion. It is stated as the cause of a complete suspension of trade on the part of the Company, for the season, at that principal seat of their commercial operations.79 The inability early and constantly displayed by the Company to sustain even the slightest competition is a symptom of inherent infirmities.

In 1637–38, several of Courten's ships returned, and brought home large investments, which sold with an ample profit to the adventurers. The fears and jealousies of the Company were exceedingly raised. They presented to the crown a petition for protection; placing their chief reliance, it should seem, on the lamentable picture of their own distresses. Their remonstrance was, however, disregarded; a new license was extended to Courten's Association, continuing their privileges for five years; and, to form a line between them and the Company, it was ordained, that neither should they trade at those places where the Company had factories, nor the Company trade at any places at which Courten's Association might have erected establishments.80

The Directors, as if they abandoned all other efforts for sustaining their affairs, betook themselves to complaint and petition.81 They renewed their addresses to the throne: They dwelt upon the calamities which had been brought upon them by competition; first, that of the Dutch, next that of Courten's Association: They endeavoured to stimulate the jealousy of the King, by reminding him that the redress which he had demanded from the States General had not been received: And they desired to be at least distinctly informed what line of conduct in regard to their rivals they were required to pursue. The affairs of the King were now at a low ebb; and this may account in part for the tone which the Company assumed with him. A committee of the Privy Council, was formed to inquire into their complaints; and had instructions to inquire, among other particulars, into the means of obtaining reparation from the Dutch, and of accomplishing a union between the Company and Courten's Association. One thing is remarkable, because it shows the unfavourable opinion, held by that Privy Council, of the mode of trading to India by a joint-stock Company: The Committee were expressly instructed, “to form regulations for this trade, which might satisfy the noblemen and gentlemen who were adventurers in it; and to vary the principle on which the India trade had been conducted, or that of a general joint-stock, in such a manner as to enable each adventurer to employ his stock to his own advantage, to have the trade under similar regulations with those observed by the Turkey and other English Companies.”82

The committee of the Privy Council seem to have given themselves but little concern about the trust with which they were invested. No report from them ever appeared. The Company continued indefatigably pressing the King, by petitions and remonstrances. At last they affirmed the necessity of abandoning the trade altogether, if the protection for which they prayed was not afforded. And now their importunity prevailed. On the condition that they should raise a new joint-stock, to carry on the trade on a sufficient scale, it was agreed that Courten's license should be withdrawn.83

On this occasion we are made acquainted incidentally with an important fact; that the Proprietors of the third joint-stock had made frequent but unavailing calls upon the Directors to close that concern, and bring home what belonged to it in India.84 For the first time, we learn that payment was demanded of the capital of those separate funds, called the joint-stocks of the Company. Upon this occasion a difficult question might have presented itself. It might have been disputed to whom the immoveable property of the Company, in houses and in lands, both in India and in England, acquired by parts indiscriminately, of all the joint-stocks, belonged. Amid the confusion which pervaded all parts of the Company's affairs, this question had not begun to be agitated: but to encourage subscription to the new joint-stock, it was laid down as a condition, “That to prevent inconvenience and confusion, the old Company or adventurers in the third joint-stock should have sufficient time allowed for bringing home their property, and should send no more stock to India, after the month of May.”85 It would thus appear, that the Proprietors of the third joint-stock, and by the same rule the Proprietors of all preceding stocks, were, without any scruple, to be deprived of their share in what is technically called the dead stock of the Company, though it had been wholly purchased with their money. There was another condition, to which inferences of some importance may be attached; the subscribers to the new stock were themselves, in a general court, to elect the Directors to whom the management of the fund should be committed, and to renew that election annually.86 As this was a new Court of Directors, entirely belonging to the fourth joint-stock, it seems to follow that the Directors in whose hands the third joint-stock had been placed, must still have remained in office, for the winding up of that concern. And, in that case, there existed, to all intents and purposes, two East India Companies, two separate bodies of Proprietors, and two separate Courts of Directors, under one charter.

So low, however, was the credit of East India adventure, under joint-stock management, now reduced, that the project of a new subscription almost totally failed. Only the small sum of 22,500l. was raised. Upon this a memorial was presented to the King, but in the name of whom; whether of the new subscribers, or the old; whether of the Court of Directors belonging to the old joint-stock, or of a Court of Directors chosen for the new, does not appear. It set forth a number of unhappy circumstances, to which was ascribed the distrust which now attended joint-stock adventures to India; and it intimated, but in very general terms, the necessity of encouragement, to save that branch of commerce from total destruction.

In the mean time a heavy calamity fell upon the Proprietors of the third joint-stock. The King having resolved to draw the sword for terminating the disputes between him and his people; and finding himself destitute of money; fixed his eyes, as the most convenient mass of property within his reach, on the magazines of the East India Company. A price being named, which was probably a high one, he bought upon credit the whole of their pepper, and sold it again at a lower price for ready money.87 Bonds, four in number, one of which was promised to be paid every six months, were given by the farmers of the customs and Lord Cottington for the amount; of which only a small portion seems ever to have been paid. On a pressing application, about the beginning of the year 1642, it was stated, that 13,000l. had been allowed them out of the duties they owed; the remainder the farmers declared it to be out of their power to advance. A prayer was presented that the customs, now due by them, amounting to 12,000l., might be applied in liquidation of the debt; but for this they were afterwards pressed by the parliament. The King exerted himself to protect the parties who stood responsible for him; and what the Company were obliged to pay to the parliament, or what they succeeded in getting from the King or his sureties, no where appears.88

About the period of this abortive attempt to form a new joint-stock, a settlement was first effected at Madras; the only station as yet chosen, which was destined to make a figure in the future history of the Company. The desire of a place of strength on the coast of Coromandel, as a security both to the property of the Company and the persons of their agents, had suggested, some years ago, the fortification of Armegum. On experience, Armegum was not found a convenient station for providing the piece goods,89 for which chiefly the trade to the coast of Coromandel was pursued. In 1740–41, the permission of the local native chief to erect a fort at Madraspatam was, therefore, eagerly embraced. The works were begun, and the place named Fort St. George; but the measure was not approved by the Directors.90

Meanwhile the trade was languishing, for want of funds. The agents abroad endeavoured to supply, by loans, the failure of receipts from home.91

An effort was made in 1642–43 to aid the weakness of the fourth joint-stock by a new subscription. The sum produced was 105,000l.; but whether including or not including the previous subscription does not appear. This was deemed no more than what was requisite for a single voyage: of which the Company thought the real circumstances might be concealed under a new name. They called it, the First General Voyage.92 Of the amount, however, of the ships, or the distribution of the funds, there is no information on record. For several years, from this date, no account whatever is preserved of the annual equipments of the Company. It would appear from instructions to the agents abroad, that, each year, funds had been supplied; but from what source is altogether unknown. The instructions sufficiently indicate that they were small; and for this the unsettled state of the country, and the distrust of Indian adventure, will sufficiently account.

In 1644, the Dutch followed the example of the English in forming a convention with the Portuguese at Goa. Though it is not pretended that in this any partiality was shown to the Dutch, or any privilege granted to them which was withheld from the English, the Company found themselves, as usual, unable to sustain competition, and complained of this convention as an additional source of misfortune.93

In 1647–48, when the power of the parliament was supreme, and the King a prisoner in the Isle of Wight, a new subscription was undertaken, and a pretty obvious policy was pursued. Endeavours were used to get as many as possible of the members of parliament to subscribe. If the members of the ruling body had a personal interest in the gains of the Company, its privileges would not fail to be both protected and enlarged. An advertisement, which fixed the time beyond which ordinary subscribers would not be received, added, that, in deference to members of parliament, a further period would be allowed to them, to consider the subject, and make their subscriptions.94

It appears not that any success attended this effort; and in 1649–50, the project of completing the fourth joint-stock was renewed, partly as a foundation for an application to the Council of State, partly in hopes that the favours expected from the Council would induce the public to subscribe.95

In the memorial, presented on this occasion to the ruling powers, Courten's Association was the principal subject of complaint. The consent of the King, in 1639, to withdraw the license granted to those rivals, had not been carried into effect; nor had the condition on which it had been accorded, that of raising a respectable joint-stock, been fulfilled. The destruction, however, to which the Association of Courten saw themselves at that time condemned, deprived them of the spirit of enterprise: with the spirit of enterprise, the spirit of vigilance naturally disappeared: their proceedings from the time of this condemnation had been feeble and unprosperous: but their existence was a grievance in the eyes of the Company; and an application which they had recently made for permission to form a settlement on the island of Assada, near Madagascar, kindled anew the Company's jealousies and fears. What the Council proposed to both parties was, an agreement. But the Assada merchants, so Courten's Association were now denominated, regarded joint-stock management with so much aversion, that, low as the condition was to which they had fallen, they preferred a separate trade on their own funds to incorporation with the Company.96 To prove, however, their desire of accommodation, they proposed certain terms, on which they would submit to forego the separate management of their own affairs.

Objections were offered on the part of the Company; but, after some discussion, a union was effected, nearly on the terms which the Assada merchants proposed.97 Application was then made for an act to confirm and regulate the trade. The parliament passed a resolution, directing it to be carried on by a joint-stock; but suspending for the present all further decision on the Company's affairs.98 A stock was formed, which, from the union recently accomplished, was denominated the united joint-stock; but in what manner raised, or how great the sum, is not disclosed. All we know for certain is, that two ships were fitted out in this season, and that they carried bullion with them to the amount of 60,000l.99

The extreme inconvenience and embarrassment which arose from the management, by the same agents, in the same trade, of a number of separate capitals, belonging to separate associations, began now to make themselves seriously and formidably felt. From each of the presidencies complaints arrived of the difficulties, or rather the impossibilities, which they were required to surmount; and it was urgently recommended to obtain, if it were practicable, an act of parliament to combine the whole of these separate stocks.100 Under this confusion, we have hardly any information respecting the internal transactions of the company at home. We know not so much as how the Courts of Directors were formed; whether there was a body of Directors for each separate fund, or only one body for the whole; and if only one Court of Directors, whether they were chosen by the voices of the contributors to all the separate stocks, or the contributors to one only; whether, when a Court of Proprietors was held, the owners of all the separate funds met in one body, or the owners of each separate fund met by themselves, for the regulation of their own particular concern.101

In 1651–52, the English obtained in Bengal the first of those peculiar privileges, which were the forerunners of their subsequent power. Among the persons belonging to the factories, whom there was occasion to send to the Imperial Court, it happened that some were surgeons; one of whom is particularly named, a gentleman of the name of Boughton. Obtaining great influence, by the cures which they effected, they employed their interest in promoting the views of the Company. Favourable circumstances were so well improved, that, on the payment of 3000 rupees, a government license for an unlimited trade, without payment of customs, in the richest province of India, was happily obtained.102

On the Coromandel coast, the wars, which then raged among the natives, rendered commerce difficult and uncertain; and the Directors were urged by the agent at Madras, to add to the fortifications. This they refused, on the ground of expense. As it was inconvenient, however, to keep the business of this coast dependent on the distant settlement of Bantam, Fort St. George was erected into a presidency in 1653–54.103

When the disputes began, which ended in hostilities between Cromwell and the Dutch, the Company deemed it a fit opportunity to bring forward those claims of theirs which, amid the distractions of the government, had lain dormant for several years. The war which succeeded, favourable to the British arms in Europe, was extremely dangerous, and not a little injurious, to the feeble Company in India. On the appearance of a Dutch fleet of eight large ships off Swally, in 1653–54, the English trade at Surat was suspended. In the Gulf of Persia, three of the Company's ships were taken, and one destroyed. The whole of the coasting trade of the English, consisting of the interchange of goods from one of their stations to another, became, under the naval superiority of the Dutch, so hazardous, as to be nearly suspended; and at Bantam, traffic seems to have been rendered wholly impracticable.104

As Cromwell soon reduced the Dutch to the necessity of desiring peace; and of submitting to it on terms nearly such as he thought proper to dictate; a clause was inserted in the treaty concluded at Westminster in 1654, in which they engaged to conform to whatever justice might prescribe regarding the massacre at Amboyna. It was agreed to name commissioners, four on each side, who should meet at London, and make an adjustment of the claims of the two nations. One remarkable, and not an ill-contrived condition was, that if the appointed commissioners should, within a specified time, be unable to agree, the differences in question should be submitted to the judgment and arbitration of the Protestant Swiss Cantons.105

The Commissioners met on the 30th of August, 1654. The English Company, who have never found themselves at a loss to make out heavy claims for compensation, whether it was their own government, or a foreign, with which they had to deal, stated their damages, ascertained by a series of accounts, from the year 1611 to the year 1652, at the vast amount of 2,695,999l. 15s. The Dutch, however, seem to have been a match for them. They too had their claims for compensation, on account of joint expenses not paid, or injuries and losses sustained, amounting to 2,919,861l. 3s. 6d. It is impossible to pronounce with accuracy on the justice, comparative or absolute, of these several demands. There is no doubt that both were excessively exaggerated. But if we consider, that, under the domineering ascendancy which the Protector had acquired, it was natural for the English to overbear, and expedient for the Dutch to submit; while we observe, that the award pronounced by the Commissioners, allotted to the English no more than 85,000l., to be paid by two instalments, we shall not find any reason, distinct from national partiality, to persuade us, that the balance of extravagance was greatly on the side of the Dutch. All the satisfaction obtained for the massacre of Amboyna, even by the award of the same Commissioners, was 3,615l., to be paid to the heirs or executors of those who had suffered.106 Polaroon was given up to the English, but not worth receiving.

Various occurrences strongly mark the sense which appears to have been generally entertained, of the unprofitable nature of joint-stock. That particular body of proprietors, including the Assada merchants, to whom the united joint-stock belonged, presented to the Council of State, in 1654, two separate petitions; in which they prayed, that the East India Company should no longer proceed exclusively on the principle of a joint-stock trade, but that the owners of the separate funds should have authority to employ their own capital, servants, and shipping, in the way which they themselves should deem most to their own advantage.107 The power and consequence of the Directors were threatened; and they hastened to present those pleas, which are used as their best weapons of defence to the present day. Experience had proved the necessity of a joint-stock; since the trade had been carried on by a joint-stock during forty years: Such competitions as those with the Portuguese and the Dutch could only be supported by the strength of a joint-stock: The equipments for the India trade required a capital so large as a joint-stock alone could afford: The failure of Courten's experiment proved that voyages on any other principle could not succeed: The factories requisite for the Indian trade could be established only by a joint-stock, the East India Company having factories in the dominions of no less than fourteen different sovereigns: The native princes required engagements to make good the losses which they or their subjects might sustain at the hands of Englishmen: and to this a joint-stock company alone was competent.

On these grounds, they not only prayed that the trade by joint-stock should be exclusively continued; but that, as it had been impracticable for some time to obtain sufficient subscriptions, additional encouragement should be given by new privileges; and, in particular, that assistance should be granted, sufficient to enable them to recover and retain the Spice Islands.108

In their reply, the body of petitioners, who were now distinguished by the name of Merchant Adventurers, chiefly dwelt upon the signal want of success which had attended the trade to India, during forty years of joint-stock management. They asserted, that private direction and separate voyages would have been far more profitable; as the prosperity of those open Companies, the Turkey, Muscovy, and Eastland Companies, sufficiently proved. They claimed a right, by agreement, to a share in the factories and privileges of the Company in India; and stated that they were fitting out fourteen ships for the trade.109 They might have still further represented, that every one of the arguments advanced by the Directors, without even a single exception, was a mere assumption of the thing to be proved. That the trade had, during forty years, or four hundred years, been carried on by a joint-stock, proved not that, by a different mode, it would not have yielded much greater advantage: if the trade had been in the highest degree unprosperous, it rather proved that the management had been proportionally defective. The Directors asserted, that in meeting competition, private adventure would altogether fail; though with their joint-stock they had so ill sustained competition, that Courten's Association had threatened to drive them out of every market in which they had appeared: and they themselves had repeatedly and solemnly declared to government, that unless the license to Courten were withdrawn, the ruin of the East India Company was sure. With regard to mercantile competition, at any rate, the skill and vigilance of individuals transacting for their own interest was sure to be a more powerful instrument than the imbecility and negligence of joint-stock management: and as to warlike competition, a few ships of war, with a few companies of marines, employed by the government, would have yielded far more security than all the efforts which a feeble joint-stock could make. The failure of Courten's Association was sufficiently accounted for by the operation of particular causes, altogether distinct from the general circumstances of the trade; the situation, in fact, in which the jealousy and influence of the Company had placed them. Factories were by no means so necessary as the Company ignorantly supposed, and interestedly strove to make others believe; as they shortly after found to their cost, when they were glad to reduce the greater number of those which they had established. Where factories were really useful, it would be for the interest of all the traders to support them. And all would join in an object of common utility in India, as they joined in every other quarter of the globe. As to the native princes, there was no such difficulty as the Company pretended: nor would individual merchants have been less successful than the directors of a joint-stock, in finding the means of prosecuting the trade.

These contending pretensions were referred to a committee of the Council of State; and they, without coming to a decision, remitted the subject to the Protector and Council, as too difficult and important for the judgment of any inferior tribunal.110

Nothing could exceed the confusion which, from the clashing interests of the owners of the separate stocks, now raged in the Company's affairs. There were no less than three parties who set up claims to the Island of Polaroon, and to the compensation money which had been obtained from the Dutch; the respective proprietors of the third, fourth, and united joint-stocks. The proprietors of the third joint-stock claimed the whole, as the fourth joint-stock and the united stock were not in existence at the time when the debt obtained from the Dutch was incurred; and they prayed that the money might be lodged in safe and responsible hands, till government should determine the question. The owners of the two other stocks demanded that the money should be divided into three equal shares, for the three several stocks, and that they should all have equal rights to the Island of Polaroon.

Five arbitrators, to whom the dispute was referred, were chosen by the Council of State. In the mean time Cromwell proposed to borrow the 85,000l. which had been paid by the Dutch, and which could not be employed till adjudged to whom it belonged.

The Directors, however, had expected the fingering of the money, and they advanced reasons why it should be immediately placed in their hands. The pecuniary distresses of the Company were great: The different stocks were 50,000l. in debt; and many of the proprietors were in difficult circumstances: From gratitude to the Protector, however, they would make exertions to spare him 50,000l. to be repaid in eighteen months by instalments, provided the remaining 35,000l. were immediately assigned them, to pay their most pressing debts, and make a dividend to the Proprietors.111 It thus appears, that these Directors wanted to forestall the decision of the question; and to distribute the money at their own pleasure, before it was known to whom it belonged. At the same time, it is matter of curious uncertainty, who these Directors were, whom they represented, by what set or sets of Proprietors they were chosen, or to whom they were responsible.

While this dispute was yet undecided, the Merchant Adventurers, or Proprietors of the united stock, obtained a commission from the Protector to fit out four ships for the Indian trade, under the management of a committee.112 We are made acquainted upon this occasion with a very interesting fact. The news of this event being carried to Holland, it was interpreted, and understood, by the Dutch, as being an abolition of the exclusive charter, and the adoption of the new measure of a free and open trade. The interests of the Dutch Company made them see, in this supposed revolution, consequences very different from those which the interests of the English Directors made them behold or pretend that they beheld in it. Instead of rejoicing at the loss of a joint-stock in England, as they ought to have done, if by joint-stock alone the trade of their rivals could be successfully carried on; they were filled with dismay at the prospect of freedom, as likely to produce a trade with which competition on their part would be vain.113

Meanwhile the Company, as well as the Merchant Adventurers, were employed in the equipment of a fleet. The petition of the Company to the Protector for leave to export bullion, specified the sum of 15,000l.: and the fleet consisted of three ships. They continued to press the government for a decision in favour of their exclusive privileges; and in a petition which they presented in October, 1656, affirmed, that the great number of ships sent by individuals under licenses, had raised the price of India goods from 40 to 50 per cent. and reduced that of English commodities in the same proportion. The Council resolved at last to come to a decision. After some inquiry, they gave it as their advice to the Protector to continue the exclusive trade and the joint-stock; and a committee of the Council was in consequence appointed, to consider the terms of a charter.114

While the want of funds almost annihilated the operations of the Company's agents in every part of India; and while they complained that the competition of the ships of the Merchant Adventurers rendered it, as usual, impracticable for them to trade with a profit in the markets of India, the Dutch pursued their advantages against the Portuguese. They had acquired possession of the island of Ceylon, and in the year 1656–57, blockaded the port of Goa, after which they meditated an attack upon the small island of Diu, which commanded the entrance into the harbour of Swally. From the success of these enterprises they expected a complete command of the navigation on that side of India, and the power of imposing on the English trade duties under which it would be unable to stand.115

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CHAP. IV.

From the Coalition between the Company and the Merchant Adventurers, till the Project for a new and a rival East India Company.

After the decision of the Council of State in favour of the joint-stock scheme of trading to India, the Company and the Merchant Adventurers effected a coalition. On the strength of this union a new subscription, in 1657–58, was opened, and filled up to the amount of 786,000l.116 Whether the expected charter had been actually received is not ascertained.

The first operation of the new body of subscribers was the very necessary one of forming an adjustment with the owners of the preceding funds. A negotiation was opened for obtaining the transfer of the factories, establishments, and privileges in India. After the lofty terms in which the Directors had always spoken of these privileges and possessions, when placing them in the list of reasons for opposing an open trade, we are apt to be surprised at the smallness of the sum which, after all, and “though situated in the dominions of fourteen different sovereigns,” they were found to be worth. They were made over in full right for 20,000l., to be paid in two instalments. The ships, merchandise in store, and other trading commodities of the preceding adventurers, were taken by the new subscribers at a price; and it was agreed that the sharers in the former trade, who on that account had property in the Indies, should not traffic on a separate fund, but, after a specified term, should carry the amount of such property to the account of the new stock.117 There was, in this manner, only one stock now in the hands of the Directors, and they had one distinct interest to pursue: a prodigious improvement on the preceding confusion and embarrassment, when several stocks were managed, and as many contending interests pursued at once.

Some new regulations were adopted for the conduct of affairs. The whole of the factories and presidencies were rendered subordinate to the President and Council at Surat. The presidencies, however, at Fort St. George and at Bantam were continued; the factories and agencies on the Coromandel coast and in Bengal being made dependent on the former, and those in the southern islands on the latter.118

As heavy complaints had been made of trade carried on, for their own account, by the agents and servants of the Company, who not only acted as the rivals, but neglected and betrayed the interests, of their masters, it was prohibited, and, in compensation, additional salaries allowed.119

After these preliminary proceedings, the first fleet was dispatched. It consisted of five ships; one for Madras carrying 15,500l. in bullion; one for Bengal; and three for Surat, Persia, and Bantam.120 The following year, that is the season 1658–59, one ship was consigned to Surat, one to Fort St. George, and two to Bantam. The latter were directed to touch at Fort St. George to obtain coast clothes for the islands, and to return to Bengal and Fort St. George to take in Bengal and Coromandel goods for Europe. Instructions were given to make great efforts for recovering a share of the spice trade.121 Bantam, however, was at this time blockaded by the Dutch, and no accounts were this year received of the traffic in the southern islands.122

The operations of the new joint-stock were not more prosperous than those of the old. Transactions at the several factories were feeble and unsuccessful. For two years, 1659–60, and 1660–61, there is no account of the Company's equipments; and their advances to India were no doubt small.123 “The embarrassed state of the Company's funds at this particular period,” says Mr. Bruce, “may be inferred from the resolutions they had taken to relinquish many of their out-stations, and to limit their trade in the Peninsula of India to the presidencies of Surat and Fort St. George, and their subordinate factories.”124

Meanwhile Cromwell had died, and Charles II. ascended the throne. Amid the arrangements which took place between England and the continental powers, the Company were careful to press on the attention of government a list of grievances, which they represented themselves as still enduring at the hands of the Dutch; and an order was obtained, empowering them to take possession of the island of Polaroon. They afterwards complained that it was delivered to them in such a state of prepared desolation, as to be of no value.125 The truth is, it was of little value at best.

On every change in the government of the country, it had been an important object with the Company to obtain a confirmation of their exclusive privileges. The usual policy was not neglected, on the accession of Charles II.; and a petition was presented to him for a renewal of the East India charter. As there appears not to have been, at that time, any body of opponents to make interest or importunity for a contrary measure, it was far easier to grant without inquiry, than to inquire and refuse; and Charles and his ministers had a predilection for easy rules of government. A charter, bearing date the 3d of April, 1661, was accordingly granted, confirming the ancient privileges of the Company, and vesting in them authority to make peace and war with any prince or people, not being Christians; and to seize unlicensed persons within their limits, and send them to England.126 The two last were important privileges; and with the right of administering justice, consigned almost all the powers of government to the discretion of the Directors and their servants.

It appears not that, on this occasion, the expedient of a new subscription for obtaining a capital was attempted. A new adjustment with regard to the privileges and dead stock in India would have been required. The joint-stock was not as yet a definite and invariable sum, placed beyond the power of resumption, at the disposal of the Company, the shares only transferable by purchase and sale in the market. The capital was variable and fluctuating; formed by the sums which, on the occasion of each voyage, the individuals, who were free of the Company, chose to pay into the hands of the Directors, receiving credit for the amount in the Company's books, and proportional dividends on the profits of the voyage. Of this stock 500l. entitled a proprietor to a vote in the general courts; and the shares were transferable, even to such as were not free of the Company, upon paying 5l. for admission.127

Of the amount either of the shipping or stock of the first voyage upon the renewed charter we have no account; but the instructions sent to India prescribed a reduction of the circle of trade. In the following year 1662–63, two ships sailed for Surat, with a cargo in goods and bullion, amounting to 65,000l., of which it would appear that 28,300l. was consigned to Fort St. George. Next season there is no account of equipments. In 1664–65, two ships were sent out with the very limited value of 16,000l. The following season the same number only of ships was equipped; and the value in money and goods consigned to Surat was 20,600l.; whether any thing in addition was afforded to Fort St. George does not appear; there was no consignment to Bantam. In 1666–67, the equipment seems to have consisted but of one vessel, consigned to Surat with a value of 16,000l.128

With these inadequate means, the operations of the Company in India were by necessity languid and humble. At Surat the out-factories and agencies were suppressed. Instructions were given to sell the English goods, at low rates, for the purpose of ruining the interlopers. The Dutch, however, revenged the private traders; and by the competition of their powerful capital, rendered the Company's business difficult and unprofitable.129 On the Coromandel coast the wars among the native chiefs, and the overbearing influence of the Dutch, cramped and threatened to extinguish the trade of the English. And at Bantam, where the Dutch power was most sensibly felt, the feeble resources of their rivals hardly sufficed to keep their business alive.130

During these years of weakness and obscurity, several events occurred which by their consequences proved to be of considerable importance. The island of Bombay was ceded to the king of England as part of the dowry of the Infanta Catharine; and a fleet of five men of war commanded by the Earl of Marlborough, with 500 troops commanded by Sir Abraham Shipman, were sent to receive the possession. The armament arrived at Bombay on the 18th September, 1662; but the governor evaded the cession. The English understood the treaty to include Salsette and the other dependencies of Bombay. As it was not precise in its terms, the Portuguese denied that it referred to any thing more than the island of Bombay. Even Bombay they refused to give up, till further instructions, on the pretext that the letters or patent of the King did not accord with the usages of Portugal. The commander of the armament applied in this emergency to the Company's President to make arrangements for receiving the troops and ships at Surat, as the men were dying by long confinement on board. But that magistrate represented the danger of incurring the suspicion of the Mogul government, which would produce the seizure of the Company's investment, and the expulsion of their servants from the country. In these circumstances the Earl of Marlborough took his resolution of returning with the king's ships to England; but Sir Abraham Shipman, it was agreed, should land the troops on the island of Angedivah, twelve leagues distant from Goa. On the arrival of the Earl of Marlborough in England in 1663, the King remonstrated with the government of Portugal, but obtained unsatisfactory explanations; and all intention of parting with the dependencies of Bombay was denied. The situation in the mean time of the troops at Angedivah proved extremely unhealthy; their numbers were greatly reduced by disease; and the commander made offer to the President and Council at Surat, to cede the King's rights to the Company. This offer, on consultation, the President and Council declined; as well because, without the authority of the King, the grant was not valid, as because, in their feeble condition, they were unable to take possession of the place. After Sir Abraham Shipman and the greater part of the troops had died by famine and disease, Mr. Cooke, on whom the command devolved, accepted of Bombay on the terms which the Portuguese were pleased to prescribe; renounced all claim to the contiguous islands; and allowed the Portuguese exemption from the payment of customs. This convention the King refused to ratify, as contrary to the terms of his treaty with Portugal; but sent out Sir Gervase Lucas to assume the government of the place. As a few years’ experience showed that the government of Bombay cost more than it produced, it was once more offered to the Company: and now accepted. The grant bears date in 1668. Bombay was “to be held of the King in free and common soccage, as of the manor of East Greenwich, on the payment of the annual rent of 10l. in gold, on the 30th of September, in each year;” and with the place itself was conveyed authority to exercise all political powers, necessary for its defence and government.131

Subterfuges of a similar kind were invented by the Dutch to evade the cession of the island of Polaroon. The Governor pretended that he could not deliver up the island without instructions from the Governor of Banda; and the Governor of Banda pretended that he could not give such instructions without receiving authority from the Governor-General of Batavia. After much delay and negotiation the cession was made in 1665; but not, if we believe the English accounts, till the Dutch had so far exterminated the inhabitants and the spice trees, that the acquisition was of little importance. On the recommencement, however, of hostilities between England and Holland, the Dutch made haste to expel the English, and to re-occupy the island. And by the treaty of Breda, both Polaroon and Damm, on which the English had attempted an establishment, were finally ceded to the Dutch.132

In the beginning of 1664, Sevagee, the founder of the Mahratta power, in the course of his predatory warfare against the territories of the Mogul Sovereign, attacked the city of Surat. The inhabitants fled, and the Governor shut himself up in the castle. The Company's servants, however, taking shelter in the factory, stood upon their defence, and having called in the ships’ crews to their aid, made so brave a resistance that Sevagee retired after pillaging the town. The gallantry and success of this enterprise so pleased the Mogul government, as to obtain its thanks to the President, and new privileges of trade to the Company. The place was again approached by the same destructive enemy in 1670, when the principal part of the Company's goods was transported to Swally, and lodged on board the ships. The English again defended themselves successfully, though some lives were lost, as well as some property in their detached warehouses.133

At this period occurred one of the first instances of refractory and disobedient conduct on the part of the Company's servants. This is a calamity to which they have been much less frequently exposed, than, from the distance and employment of those servants, it would have been reasonable to expect. The efforts of the Directors to suppress the trade, which their agents carried on for their own account, had not been very successful. Sir Edward Winter, the chief servant at Fort St. George, was suspected of this delinquency, and in consequence recalled. When Mr. Foxcroft, however, who was sent to supersede him, arrived at Fort St. George, in June, 1665, Sir Edward, instead of resigning, placed his intended successor in confinement, under a pretext which it was easy to make, that he had uttered disloyal expressions against the King's government. Notwithstanding remonstrances and commands, he maintained himself in the government of the place till two ships arrived, in August, 1668, with peremptory orders from the Company, strengthened by a command from the King, to resign; when his courage failed him, and he complied. He retired to Masulipatam, a station of the Dutch, till the resentment excited against him in England should cool: and his name appears no more in the annals of the Company.134

In Bengal the English factory at Hoogley had been involved in an unhappy dispute with the Mogul government, on account of a junk which they imprudently seized on the river Ganges. For several years this incident had been used as a pretext for molesting them. In 1662–63, the chief at Madras sent an agent to endeavour to reconcile them with Meer Jumlah, the Nabob of Bengal; and to establish agencies at Balasore and Cossimbuzar.135 The Company's funds, however, were too confined to push to any extent the trade of the rich province of Bengal.

The scale was very small on which, at this time, the Company's appointments were formed. In 1662, Sir George Oxenden was elected to be “President and chief Director of all their affairs at Surat, and all other their factories in the north parts of India, from Zeilon to the Red Sea,” at a salary of 300l. and with a gratuity of 200l. per annum as compensation for private trade. Private trade in the hands of their servants, and still more in those of others, the Company were now most earnestly labouring to suppress. Directions were given to seize all unlicensed traders and send them to England; and no exertion of the great powers entrusted to the Company was to be spared, to annihilate the race of merchants who trenched upon the monopoly, and to whom, under the disrespectful name of interlopers, they ascribed a great part of their imbecility and depression.136

Their determination to crush all those of their countrymen who dared to add themselves to the list of their competitors, failed not to give rise to instances of great hardship and calamity. One was rendered famous by the altercation which in 1666 it produced between the two houses of parliament. Thomas Skinner, a merchant, fitted out a vessel in 1657. The agents of the Company seized his ship and merchandize in India, his house, and the island of Barella, which he had bought of the King of Jambee. They even denied him a passage home; and he was obliged to travel over land to Europe. The sufferer failed not to seek redress, by presenting his complaint to the government, and after some importunity it was referred first to a committee of the Council, and next to the House of Peers. When the Company were ordered to answer, they refused to acknowledge the jurisdiction of the Peers, on the ground that they were only a court of appeal, and not competent to decide in the first resort. The objection was over-ruled. The Company appealed to the House of Commons; the Lords were highly inflamed; and, proceeding to a decision, awarded to the petitioner 5,000l. The Commons were now enraged in their turn; and being unable to gratify their resentments upon the House of Peers, which was the cause of them, they were pleased to do so upon the unfortunate gentleman who had already paid so dearly for the crime (whatever its amount) of infringing the Company's monopoly. He was sent a prisoner to the Tower. The Lords, whom these proceedings filled with indignation, voted the petition of the Company to the Lower House to be false and scandalous. Upon this the Commons resolved that whoever should execute the sentence of the other house in favour of Skinner, was a betrayer of the rights and liberties of the Commons of England, and an infringer of the privileges of their house. To such a height did these contentions proceed, that the King adjourned the parliament seven times; and when the controversy after an intermission revived, he sent for both houses to Whitehall, and by his personal persuasion induced them to erase from their journals all their votes, resolutions, and other acts relating to the subject. A contest, of which both parties were tired, being thus ended, the sacrifice and ruin of an individual appeared, as usual, of little importance: Skinner had no redress.137

Another class of competitors excited the fears and jealousies of the Company. Colbert, the French minister of finance, among his projects for rendering his country commercial and opulent, conceived, in 1664, the design of an East India Company. The report which reached the Court of Directors in London represented the French as fitting out eight armed vessels for India, commanded by Hubert Hugo, whom, in their instructions to the settlements abroad, the Directors described as a Dutch pirate. The hostilities of the Company were timid. They directed their agents in India to afford these rivals no aid or protection, but to behave towards them with circumspection and delicacy. The subservience of the English government to that of France was already so apparent, as to make them afraid of disputes in which they were likely to have their own rulers against them.138

The war which took place with Holland in 1664, and which was followed in 1665 by a temporary quarrel with France, set loose the powers of both nations against the Company in India. The French Company, however, was too much in its infancy to be formidable; and the Dutch, whose mercantile competition pressed as heavily during peace as during war, added to the difficulties of the English, chiefly by rendering their navigation more hazardous and expensive.

A fact, an enlightened attention to which would probably have been productive of important consequences, was at this time forced upon the notice of the Company. One grand source of the expenses which devoured the profits of their trade was their factories, with all that mass of dead stock which they required, houses, lands, fortifications, and equipments. The Dutch, who prosecuted their interests with vigilance and economy, carried on their trade in a great many places without factories. Upon receiving instructions to make preparations and inquiry for opening a trade with Japan, Mr. Quarles Brown, the Company's agent at Bantam, who had been at Japan, reported to the Court, that it would be necessary, if a trade with Japan was to be undertaken, to follow the plan of the Dutch; who procured the commodities in demand at Japan, in the countries of Siam, Cambodia, and Tonquin, not by erecting expensive factories, but by forming contracts with the native merchants. These merchants, at fixed seasons, brought to the ports the commodities for which they had contracted, and though it was often necessary to advance to them the capital with which the purchases were effected, they had regularly fulfilled their engagements.139 Even the Company itself, and that in places where their factories cost them the most, had made experiments, and with great advantage, on the expediency of employing the native merchants in providing their investments. At Surat, in 1665–66, “the investments of the season were obtained by the employment of a native merchant, who had provided an assortment of pepper at his own risk, and though the Dutch had obstructed direct purchases of pepper, the agents continued the expedient of employing the native merchants, and embarked a moderate assortment.”140 Factories to carry on the traffic of Asia, at any rate on the scale, or any thing approaching to the scale, of the East India Company, were the natural offspring of a joint-stock; the Managers or Directors of which had a much greater interest in the patronage they created, which was wholly their own; than in the profits of the Company, of which they had only an insignificant share. Had the trade to India been conducted from the beginning, on those principles of individual adventure and free competition, to which the nation owes its commercial grandeur, it is altogether improbable that many factories would have been established. The agency of the native merchants would have performed much; and where it was not sufficient, the Indian trade would have naturally divided itself into two branches. One set of adventurers would have established themselves in India, by whom investments would have been provided for the European ships, and to whom the cargoes of the European goods would have been consigned. Another class of adventurers, who remained at home, would have performed the business of export and import from England, as it is performed to any other region of the globe.

The time, however, was now approaching when the weakness which had so long characterized the operations of the English in India was gradually to disappear. Notwithstanding the imperfections of the government, at no period, perhaps, either prior or posterior, did the people of this country advance so rapidly in wealth and prosperity, as during the time, including the years of civil war, from the accession of James I. to the expulsion of James II.141 We are not informed of the particular measures which were pursued by the Directors for obtaining an extension of funds; but the increase of capital in the nation was probably the principal cause which enabled them, in the year succeeding the acquisition of Bombay, to provide a grander fleet and cargo than they had ever yet sent forth. In the course of the year 1667–68, six ships sailed to Surat, with goods and bullion to the value of 130,000l.; five ships to Fort St. George, with a value of 75,000l.; and five to Bantam, with a stock of 40,000l. In the next season we are informed that the consignments to Surat consisted of 1,200 tons of shipping, with a stock of the value of 75,000l.; to Fort St. George, of five ships, and a stock of 103,000l.; and to Bantam, of three ships and 35,000l. In the year 1669–70, 1,500 tons of shipping were sent to Surat, six ships to Fort St. George, and four to Bantam, and the whole amount of the stock was 281,000l. The vessels sent out in 1670–71 amounted to sixteen, and their cargoes and bullion to 303,500l. In the following year four ships were sent to Surat, and nearly 2,000 tons of shipping to Fort St. George; the cargo and bullion to the former, being 85,000l., to the latter, 160,000l.: shipping to the amount of 2,800 tons was consigned to Bantam, but of the value of the bullion and goods no account seems to be preserved. In 1672–73, stock and bullion to the amount of 157,700l. were sent to Surat and Fort St. George. On account of the war, and the more exposed situation of Bantam, the consignment to that settlement was postponed. In the following year, it appears that cargoes and bullion were consigned, of the value of 100,000l. to Surat; 87,000l. to Fort St. George; and 41,000l. to Bantam.142

Other events of these years were of considerable importance. In 1667–68, appears the first order of the Company for the importation of tea.143 Attempts were now recommended for resuming trade with Sumatra.144 In 1671–72, considerable embarrassment was produced at Surat by the arrival of a French fleet of twelve ships, and a stock computed at 130,000l. The inconsiderate purchases and sales of the French reduced the price of European goods, and raised that of Indian; but these adventurers exhibited so little of the spirit and knowledge of commerce, as convinced the Company's agents that they would not prove formidable rivals.145

As England and France were now united in alliance against the Dutch, the Company might have exulted in the prospect of humbling their oppressors, but the danger of a new set of competitors seems effectually to have repressed these triumphant emotions. In 1673, the island of St. Helena, which had several times changed its masters, being recaptured from the Dutch, was granted anew and confirmed to the Company by a royal charter.146

The funds which, in such unusual quantity, the Directors had been able to supply for the support of the trade in India, did not suffice to remove, it would appear that they hardly served to lighten, the pecuniary difficulties under which it laboured. To an order to provide a large investment, the President and Council at Surat, in 1673–74, replied, that the funds at their disposal were only 88,228l. and their debts 100,000l. besides interest on the same at 9 per cent.; and in November, 1674, they represented that the debt arose to no less a sum than 135,000l.; and that all returns must in a great measure be suspended till, by the application of the funds received from Europe, the Company's credit should be revived.147

Of the sort of views held out at this period to excite the favour of the nation towards the East India Company, a specimen has come down to us of considerable value. Sir Josiah Child, an eminent member of the body of Directors, in his celebrated Discourses on Trade, written in the year 1665, and published in 1667, represents the trade to India as the most beneficial branch of English commerce; and in proof of this opinion asserts, that it employs from twenty-five to thirty sail of the most warlike mercantile ships of the kingdom, manned with mariners from 60 to 100 each; that it supplies the kingdom with saltpetre, which would otherwise cost the nation an immense sum to the Dutch; with pepper, indigo, calicoes, and drugs, to the value of 150,000l. or 180,000l. yearly, for which it would otherwise pay to the same people an exorbitant price; with materials for export to Turkey, France, Spain, Italy, and Guinea, to the amount of 200,000l. or 300,000l. yearly, countries with which, if the nation were deprived of these commodities, a profitable trade could not be carried on.

These statements were probably made with an intention to deceive. The imports, exclusive of saltpetre, are asserted to exceed 400,000l. a year; though the stock which was annually sent to effect the purchases, and to defray the whole expense of factories and fortifications abroad, hardly amounted in any number of years preceding 1665, to 100,000l., often to much less; while the Company were habitually contracting debts, and labouring under the severest pecuniary difficulties. Thus early, in the history of this Company, is it found necessary to place reliance on their accounts and statements, only when something very different from the authority of their advocates is found to constitute the basis of our belief.

It will be highly instructive to confront one exaggerated statement with another. About the same time with the discourses of Sir Josiah Child, appeared the celebrated work of De Witt on the state of Holland. Proceeding on the statement of Sir Walter Raleigh, who in the investigation of the Dutch fishery, made for the information of James I. in 1603, affirmed, that “the Hollanders fished on the coasts of Great Britain with no fewer than 3,000 ships, and 50,000 men; that they employed and set to sea, to transport and sell the fish so taken, and to make returns thereof, 9,000 ships more, and 150,000 men; and that twenty busses do, one way or other, maintain 8,000 people;” he adds, that from the time of Sir Walter Raleigh to the time at which he wrote, the traffic of Holland in all its branches could not have increased less than one third. Allowing this account to be exaggerated in the same proportion as that of the East India Director, which the nature of the circumstances, so much better known, renders rather improbable; it is yet evident, to what a remarkable degree the fisheries of the British coasts, to which the Dutch confined themselves, constituted a more important commerce than the highly vaunted, but comparatively insignificant business of the East India Company.148 The English fishery, at the single station of Newfoundland, exceeded in value the trade to the East Indies. In the year 1676, no fewer than 102 ships, carrying twenty guns each, and eighteen boats, with five men to each boat, 9,180 men in all, were employed in that traffic; and the total value of the fish and oil was computed at 386,400l.149

The equipments, in 1674–75, were, five ships to Surat with 189,000l. in goods and bullion; five to Fort St. George with 202,000l.; and 2,500 tons of shipping to Bantam with 65,000l.: In 1675–76, to Surat, five ships and 96,500l.; to Fort St. George, five ships and 235,000l.; to Bantam, 2,450 tons of shipping and 58,000l.: In 1676–77, three ships to Surat and three to Fort St. George, with 97,000l. to the one, and 176,600l. to the other; and eight ships to Bantam, with no account of the stock. The whole adventure to India, in 1677–78, seems to have been seven ships and 352,000l.; of which a part, to the value of 10,000l. or 12,000l., was to be forwarded from Fort St. George to Bantam: In 1678–79, eight ships and 393,950l.: In 1679–80, ten ships and 461,700l.: In 1680–81, eleven ships and 596,000l.: And, in 1681–82, seventeen ships, and 740,000l.150

The events affecting the East India Company were still common and unimportant. In 1674–75, a mutiny, occasioned by retrenchment, but not of any serious magnitude, was suppressed at Bombay. In trying and executing the ringleaders, the Company exercised the formidable powers of martial law. The trade of Bengal had grown to such importance, that, instead of a branch of the agency at Fort St. George, an agency was now constituted in Bengal itself. Directions were forwarded to make attempts for opening a trade with China; and tea, to the value of 100 dollars, was, in 1676–77, ordered on the Company's account. Beside the ordinary causes of depression which affected the Company at Bantam, a particular misfortune occurred in 1667. The principal persons belonging to the factory having gone up the river in their prows, a number of Javanese assassins, who had concealed themselves in the water, suddenly sprung upon them, and put them to death.151

In 1677–78, “the Court,” says Mr. Bruce, “recommended temporising expedients to their servants, with the Mogul, with Sevagee, and with the petty Rajahs; but at the same time they gave to President Aungier and his council discretionary powers, to employ armed vessels, to enforce the observation of treaties and grants:—in this way, the Court shifted from themselves the responsibility of commencing hostilities, that they might be able, in any questions which might arise between the King and the Company, to refer such hostilities to the errors of their servants.”152 This cool provision of a subterfuge, at the expense of their servants, is a policy ascribed to the Company, in this instance, by one of the most unabashed of their eulogists. We shall see, as we advance, in what degree the precedent has been followed.

The difficulties which now occurred in directing the operations of the various individuals employed in the business of the East India Company began to be serious. The Directors, from ignorance of the circumstances in which their servants were placed, often transmitted to them instructions which it would have been highly imprudent to execute. The functionaries abroad often took upon themselves, and had good reasons for their caution, to disregard the orders which they received. A door being thus opened for discretionary conduct, the instructions of the Directors were naturally as often disobeyed for the convenience of the actors abroad, as for the benefit of the Company at home. The disregard of their authority, and the violation of their commands, had been a frequent subject of uneasiness and indignation to the Directors. Nor was this all. From discordant pretensions to rank and advancement in the service, animosities arose among the agents abroad. Efforts were made by the Directors for the cure of these troublesome, and even dangerous, diseases. Seniority was adopted as the principle of promotion; but nomination to the important office of a Member of Council at the Agencies, as well as Presidencies, was reserved to the Court of Directors.153

[admin]

CHAP. V.

From the Project of forming a new and rival Company, till the Union of the two Companies by the Award of Godolphin, in the year 1711.

The Company were now again threatened by that competition with their fellow-citizens which they have always regarded as their greatest misfortune. From the renewal of their charter, shortly after the accession of Charles II., their monopoly had not been disturbed, except by a few feeble interlopers, whom they had not found it difficult to crush. In the year 1682–83, the design was disclosed of opening a subscription for a new joint-stock, and establishing a rival East India Company. The scheme was so much in unison with the sentiments of the nation, and assumed an aspect of so much importance, that it was taken into consideration by the King and Council. 154

It had so much effect upon the views of the Company, though for the present the Council withheld their sanction, that, in Mr. Bruce's opinion, it introduced into their policy of 1682–83 a refinement, calculated, and intended, to impose upon the King and the public. It induced them to speak of the amount of their equipments, not, as usual, in terms of exact detail, but in those of vague and hyperbolical estimate. What we know of their adventure of that year is only the information they forwarded to their Indian stations, that the stock to be sent out would exceed one million sterling. In the course of the next season they equipped four ships to Surat. Of that year we only further know that 100,000l. in bullion was intended for Bengal. In 1684–85, information was forwarded to Surat, in general terms, that the tonnage and stock would be considerable: Five ships sailed for Fort St. George and Bengal, with 140,000l. in bullion: Of other circumstances nothing is adduced: and for several succeeding years no statement of the tonnage and stock of the annual voyages appears.155

Under the skill which the Court of Directors have all along displayed in suppressing such information as they wished not to appear, it is often impossible to collect more than gleanings of intelligence respecting the Company's debts. At the present period, however, they appear to have been heavy and distressing. In 1676, it was asserted by their opponents in England that their debts amounted to 600,000l.;156 and we have already seen that, in 1674, the debt of Surat alone amounted to 135,000l.157 In 1682–83, the Directors authorised the Agency in Bengal to borrow 200,000l. and, in 1683–84, it is stated that the debt upon the dead stock at Bombay alone amounted to 300,000l.158 It seems highly probable that at this time their debts exceeded their capital.

In a war between the King of Bantam and his son, in which the English sided with the one, and the Dutch with the other, the son prevailed; and expelled the English from the place. The agents and servants of the factory took shelter at Batavia, and the Dutch Governor made offer of his assistance to bring the property of the Company from Bantam. As the English, however, accused the Dutch of being the real authors of the calamity, they declined the proposal, as precluding those claims of redress which the Company might prosecute in Europe. Various efforts were made to regain possession of Bantam, but the Dutch from this time remained sole masters of Java.159

Upon the loss of Bantam, the Presidency for the government of the Eastern Coast, which had hitherto, with a fond desire for the traffic of the islands, been stationed at that place, was removed to Fort St. George.160

The nation becoming gradually more impatient under the monopoly, the numbers multiplied of those who ventured to break through the restraint which it imposed upon the commercial ardour of the times. The Company, not satisfied with the power which they had already obtained of common and martial law, and of seizing, with their property, and sending to England, as many of their countrymen, as their interests or caprice might direct, still called for a wider range of authority: and, under the favour of government which they now enjoyed, obtained the powers of Admiralty jurisdiction, for the purpose of seizing and condemning, safe from the review of the courts of municipal law in England, the ships of the interlopers.161 The servants of the Company were now invested with unlimited power over the British people in India.

Insurrection again appeared at Bombay, and assumed a very formidable aspect. The causes were such as have commonly, in the Company's affairs, been attended with similar effects. Efforts had been made to retrench expenses; unpleasant to the Company's servants. The earliest experiment of the Company in territorial sovereignty agreed with the enlarged experience of succeeding times: the expense of the government exceeded the revenue which the population and territory could be made to yield. The Directors, new to the business of government, were disappointed; and having first laboured to correct the deficit by screwing up the revenue, they next attempted the same arduous task by lessening the expense. By the two operations together, all classes of their subjects were alienated: First, the people, by the weight of taxation; next, the instruments of government, by the diminution of their profits. Accordingly Captain Keigwin, commander of the garrison at Bombay, was joined by the troops and the great body of the people, in renouncing the authority of the Company, and declaring by proclamation, dated December 27, 1683, that the island belonged to the King. Keigwin was by general consent appointed Governor; and immediately addressed letters to the King and to the Duke of York, stating such reasons as were most likely to avert from his conduct the condemnation to which it was exposed.162

The President and Council at Surat, conscious of their inability to reduce the island by force, had recourse to negociation. A general pardon, and redress of grievances, were promised. First three commissioners were sent; afterwards the President repaired to Bombay in person. But neither entreaties nor threats were of any avail.163

As soon as intelligence arrived in England, the King's command was procured, directing Captain Keigwin to deliver up the island: and instructions were forwarded to proceed against the insurgents by force. When Sir Thomas Grantham, the commander of the Company's fleet, presented himself at Bombay, invested with the King's commission, Keigwin offered, if assured of a free pardon to himself and adherents, to surrender the place. On these terms the island was restored to obedience. For the more effectual coercion of any turbulent propensities, the expedient was adopted of removing the seat of government from Surat to Bombay. Nor could the humble title and pretensions of a President and Council any longer satisfy the rising ambition of the Company. The Dutch had established a regency at Batavia and Columbo. It was not consistent with the grandeur of the English Company to remain contented with inferior distinction. In 1687, Bombay was elevated to the dignity of a Regency, with unlimited power over the rest of the Company's settlements. Madras was formed into a corporation, governed by a mayor and aldermen.164

The English had met with less favour, and more oppression, from the native powers in Bengal, than in any other part of India.165 In 1685–86, the resolution was adopted of seeking redress and protection by force of arms. The greatest military equipment the Company had ever provided was sent to India. Ten armed vessels, from twelve to seventy guns, under the command of Captain Nicholson, and six companies of infantry, without captains, whose places were to be supplied by the Members of Council in Bengal, were dispatched, with instructions to seize and fortify Chittagong as a place of future security, and to retaliate in such a manner upon the Nabob and Mogul as to obtain reparation for the injuries and losses which had been already sustained. In addition to this force, the Directors, in the following year, made application to the King for an entire company of regular infantry with their officers; and power was granted to the Governor in India to select from the privates such men as should appear qualified to be commissioned officers in the Company's service. By some of those innumerable casualties, inseparable from distant expeditions, the whole of the force arrived not at one time in the Ganges; and an insignificant quarrel, between some of the English soldiers and the natives, was imprudently allowed to bring on hostilities, before the English were in a condition to maintain them with success. They were obliged to retire from Hoogley, after they had cannonaded it with the fleet, and took shelter at Chutanuttee, afterwards Calcutta, till an agreement with the Nabob, or additional forces, should enable them to resume their stations. The disappointment of their ambitious schemes was bitterly felt by the Court of Directors. They blamed their servants in Bengal in the severest terms, not only for timidity, but breach of trust, as having turned the resources of the Company, which ought to have been effectually employed in obtaining profitable and honourable terms from the Nabob and Mogul, to their own schemes of private avarice and emolument. A hollow truce was agreed to by the Nabob, which he only employed for preparing the means of an effectual attack. The English, under the direction of Charnock, the Company's agent, made a gallant defence. They not only repulsed the Nabob's forces in repeated assaults, but stormed the fort of Tanna, seized the island of Injellee, in which they fortified themselves, and burnt the town of Balasore, with forty sail of the Mogul fleet; the factories, however, at Patna and Cossimbuzar were taken and plundered. In September, 1687, an accommodation was effected, and the English were allowed to return to Hoogley, with their ancient privileges. But this was a termination of the contest ill-relished by the Court of Directors. Repeating their accusations of Charnock and their other functionaries, they sent Sir John Child, the governor of Bombay, to Madras and Bengal, for the purpose of reforming abuses, and of re-establishing, if possible, the factories at Cossimbuzar and other places, from which they had been driven by the war. A large ship, the Defence, accompanied by a frigate, arrived from England under the command of a captain of the name of Heath, with instructions for war. The Company's servants had made considerable progress by negociation in regaining their ancient ground; when Heath precipitately commenced hostilities, plundered the town of Balasore, and proceeded to Chittagong, which he found himself unable to subdue. Having taken the Company's servants and effects on board, agreeably to his orders, he sailed to Madras; and Bengal was abandoned.166

These proceedings, with the rash and presumptuous behaviour of Sir John Child on the western side of India, exasperated Aurengzebe, the most powerful of all the Mogul sovereigns, and exposed the Company's establishments to ruin in every part of India. The factory at Surat was seized; the island of Bombay was attacked by the fleet of the Siddees; the greater part of it was taken, and the governor besieged in the town and castle. Aurengzebe issued orders to expel the English from his dominions. The factory at Masulipatam was seized; as was also that at Visigapatam, where the Company's agent and several of their servants were slain. The English stooped to the most abject submissions. With much difficulty they obtained an order for the restoration of the factory at Surat, and the removal of the enemy from Bombay. Negotiation was continued, with earnest endeavours, to effect a reconciliation. The trade of the strangers was felt in the Mogul treasuries; and rendered the Emperor, as well as his deputies, not averse to an accommodation. But the interruption and delay sustained by the Company made them pay dearly for their premature ambition, and for the unseasonable insolence, or the imprudence of their servants.167

During these contests the French found an interval, in which they improved their footing in India. They had formed an establishment at Pondicherry, where they were at this time employed in erecting fortifications.168

The equipments for 1689–90 were on a reduced scale; consisting of three ships only, two for Bombay, and one for Fort St. George. They were equally small the succeeding year. We are not informed to what the number of ships or value of cargo amounted in 1691–2. In the following year, however, the number of ships was eleven; and was increased in 1693–4, to thirteen. In the following year there was a diminution, but to what extent does not appear. In each of the years 1695–6 and 1696–7, the number of ships was eight. And in 1697–8 it was only four.169

It was now laid down as a determinate object of policy, that independence was to be established in India; and dominion acquired. In the instructions forwarded in 1689, the Directors expounded themselves in the following words: “The increase of our revenue is the subject of our care, as much as our trade:—'tis that must maintain our force, when twenty accidents may interrupt our trade; 'tis that must make us a nation in India;—without that we are but as a great number of interlopers, united by his Majesty's royal charter, fit only to trade where nobody of power thinks it their interest to prevent us;—and upon this account it is that the wise Dutch, in all their general advices which we have seen, write ten paragraphs concerning their government, their civil and military policy, warfare, and the increase of their revenue, for one paragraph they write concerning trade.”170 It thus appears at how early a period, when trade and sovereignty were blended, the trade, as was abundantly natural, became an object of contempt, and by necessary consequence, a subject of neglect. A trade, the subject of neglect, is of course a trade without profit.

This policy was so far gratified, about the same period, that Tegnapatam, a town and harbour on the Coromandel coast, a little to the south of Pondicherry, was obtained by purchase, and secured by grant from the country powers. It was strengthened by a wall and bulwarks, and named Fort St. David.171

A fact of much intrinsic importance occurs at this part of the history. Among the Christians of the East, the Armenians, during the power of the successors of Constantine, had formed a particular sect. When the countries which they inhabited were overrun by the Mahomedan arms, they were transplanted by force, in great numbers, into Persia, and dispersed in the surrounding countries. Under oppression, the Armenians adhered to their faith; and, addicting themselves to commerce, became, like the Jews in Europe, the merchants and brokers in the different countries to which they resorted.172 A proportion of them made their way into India, and, by their usual industry and acuteness, acquired that share in the business of the country which was the customary reward of the qualities they displayed. The pecuniary pressure under which the Company at this time laboured, and under which, without ruinous consequences, the increase of patronage could not be pursued, constrained the Directors to look out for economical modes of conducting their trade. They accordingly gave instructions, that, instead of multiplying European agents in India, natives, and especially Armenians, should be employed: “because,” to use the words of Mr. Bruce, copying or abridging the letters of the Court, “that people could vend English woollens, by carrying small quantities into the interior provinces, and could collect fine muslins, and other new and valuable articles, suited to the European demands, betterthan any agents of the Company could effect, under any phirmaund or grant which might be eventually purchased.”173

The prosperity which the nation had enjoyed, since the death of Charles I., having rendered capital more abundant, the eagerness of the mercantile population to enter into the channel of Indian enterprise and gain had proportionably increased; and the principles of liberty being now better understood, and actuating more strongly the breasts of Englishmen, not only had private adventure, in more numerous instances, surmounted the barriers of the Company's monopoly, but the public in general at last disputed the power of a royal charter, unsupported by Parliamentary sanction, to limit the rights of one part of the people in favour of another, and to debar all but the East India Company from the commerce of India. Applications were made to Parliament for a new system of management in this branch of national affairs; and certain instances of severity, which were made to carry the appearance of atrocity, in the exercise of the powers of martial law assumed by the Company, in St. Helena and other places, served to augment the unfavourable opinion which was now rising against them.174

The views of the House of Commons were hostile to the Company. A committee, appointed to investigate the subject, delivered it as their opinion on the 16th January, 1690, that a new Company should be established, and established by Act of Parliament; but that the present Company should carry on the trade exclusively, till the new Company were established.175 The House itself in 1691, addressed the King to dissolve the Company, and incorporate a new one; when the King referred the question to a committee of the Privy Council.176

In the mean time the Company proceeded, in a spirit of virulence, to extinguish the hated competition of the general traders. “The Court,” says Mr. Bruce, transcribing the instructions of 1691, “continued to act towards their opponents, interlopers, in the same manner as they had done in the latter years of the two preceding reigns; and granted commissions to all their captains, proceeding this season to India, to seize the interlopers of every description, and to bring them to trial before the Admiralty Court at Bombay;—explaining, that, as they attributed all the differences between the Company and the Indian powers to the interlopers, if they continued their depredations on the subjects of the Mogul or King of Persia, they were to be tried for their lives as pirates, and sentence of death passed; but execution stayed till the King's pleasure should be known.”177

The cruelty which marks these proceedings is obvious; and would hardly be credible if it were less strongly attested. The Company seized their opponents, and carried them before their own Admiralty Courts, that is, before themselves, to judge and pass sentence in their own cause, and inflict almost any measure of injury which it suited minds, inflamed with all the passions of disappointed avarice and ambition, to perpetrate. They accused their competitors of piracy, or of any other crime they chose; tried them, as they pleased, and sentenced them even to death: accounting it an act of mercy that they did not consign them to the executioner before the royal pleasure was known;—as if that pleasure could be as quickly known, in India, as it could in England;—as if the unfortunate victim might not remain for months and years in the dungeons of the Company, in a climate, where a sentence of imprisonment, for any length of time, to a European constitution, is a sentence of almost certain death; and where he could hardly fail to suffer the pains of many executions, beside the ruin of his affairs, in a land of strangers and enemies, even if his wretched life were protracted till his doom, pronounced at the opposite side of the globe, could be known. Mr. Bruce, with his usual alacrity of advocation, says, “This proceeding of the Court rested upon the opinion of the twelve Judges, which was, that the Company had a right to the trade to the East Indies, according to their charter.”178 Because the Judges said they had a right to the trade to the East Indies, they assumed a right to be judges and executioners of their fellow subjects, in their own cause. This was a bold conclusion. It was impossible that, under any colour of justice, the powers of judicature entrusted to the Company, by kingly without parliamentary authority, even if allowed, could be extended beyond their own servants, who voluntarily submitted to their jurisdiction. Over the rest of their fellow-subjects, it was surely sufficient power, if they were permitted to send them to England, to answer for their conduct, if challenged, before a tribunal, which had not an overbearing interest in destroying them.

The King of 1693, like the King of any other period, preferred power in his own hands to power in the hands of the parliament, and would have been pleased to retain without participation the right of making or annulling exclusive privileges of trade. Notwithstanding the resolution of the committee of the House of Commons, that parliament should determine whatever regulations might be deemed expedient for the Indian trade, a new charter was granted by letters patent from the crown, as the proper mode of terminating the present controversies. The principal conditions were, that the capital of the Company, which was 756,000l. should be augmented by 744,000l., so as to raise it to 1,500,000l.; that their exclusive privileges should be confirmed for twenty-one years; that they should export 100,000l. of British produce annually; that the title to a vote in the court of Proprietors should be 1000l.; and that no more than then votes should be allowed to any individual.179

The pretensions, however, of the House of Commons brought this important question to a different issue. Towards the close of the very same season, that assembly came to a vote, “that it was the right of all Englishmen to trade to the East Indies, or any part of the world, unless prohibited by act of parliament:180 and William knew his situation too well to dispute their authority.

The Company laboured under the most pressing embarrassments. Though their pecuniary difficulties, through the whole course of their history, have been allowed as little as possible to meet the public eye, what we happen to be told of the situation at this time of the Presidency at Surat affords a lively idea of the financial distresses in which they were involved. Instead of eight lacks of rupees, which it was expected would be sent from Bombay to Surat, to purchase goods for the homeward voyage, only three lacks and a half were received. The debt at Surat already amounted to twenty lacks; yet it was absolutely necessary to borrow money to purchase a cargo for even three ships. A loan of one lack and 80,000 rupees was necessary to complete this small investment. To raise this sum, it was necessary to allow to individuals the privileges of the contract which subsisted with the Armenian merchants.181 And after all these exertions the money could only be obtained by taking it up on loans from the Company's servants.182

The Company meanwhile did not neglect the usual corrupt methods of obtaining favours at home. It appeared that they had distributed large sums of money to men in power, before obtaining their charter. The House of Commons were, at the present period, disposed to inquire into such transactions. They ordered the books of the Company to be examined; where it appeared that it had been the practice, and even habit of the Company, to give bribes to great men; that, previous to the revolution, their annual expense under that head had scarcely ever exceeded 1,200l; that since the revolution it had gradually increased; and that in the year 1693, it had amounted to nearly 90,000l. The Duke of Leeds, who was charged with having received a bribe of 5,000l. was impeached by the Commons. But the principal witness against him was sent out of the way, and it was not till nine days after it was demanded by the Lords that a proclamation was issued to stop his flight. Great men were concerned in smothering the inquiry; parliament was prorogued; and the scene was here permitted to close.183

As the science and art of government were still so imperfect as to be very unequal to the suppression of crimes; and robberies and murders were prevalent even in the best regulated countries in Europe; so depredation was committed on the ocean under still less restraint, and pirates abounded wherever the amount of property at sea afforded an adequate temptation. The fame of Indian riches attracted to the Eastern seas adventurers of all nations; some of whom were professed pirates; others, men preferring honest trade; though, when they found themselves debarred from this source of profit, by the pretensions and power of monopoly, they had no such aversion to piracy as to reject the only other source in which they were allowed to partake. The moderation which, during some few years, the Company had found it prudent to observe in their operations for restraining the resort of private traders to India, had permitted an increase of the predatory adventurers. As vessels belonging to Mogul subjects fell occasionally into the hands of plunderers of the English nation, the Mogul government, too ignorant and headlong to be guided by any but the rudest appearances, held the Company responsible for the misdeeds of their countrymen; and sometimes proceeded to such extremities as to confiscate their goods and confine their servants. The Company, who would have been justified in requiring aid at the hands of government for the remedy of so real a grievance, made use of the occasion as a favourable one for accumulating odium upon the independent traders. They endeavoured to confound them with the pirates. They imputed the piracies in general to the interlopers as they called them. In their complaints to government they represented the interlopers and the depredations of which they said they were the authors, as the cause of all the calamities to which, under the Mogul government, the Company had been exposed. The charge, in truth, of piracy became a general calumny, with which all the different parties in India endeavoured to blacken their competitors; and the Company itself, when the new association of merchants trading to India began to rival them, were as strongly accused of acting the pirates in India, as the individual traders had been by themselves.184

Such was the situation of the Company in England, and in India, when the influence of the rival association threatened them with destruction. In the year 1698 both parties were urging their pretensions with the greatest possible zeal, when the necessities of the government pointed out to both the project of bribing it by the accommodation of money. The Company offered to lend to government 700,000l. at 4 per cent. interest, provided their charter should be confirmed, and the monopoly of India secured to them by act of parliament. Their rivals, knowing on how effectual an expedient they had fallen, resolved to augment the temptation. They offered to advance 2,000,000l. at 8 per cent. provided they should be invested with the monopoly, free from obligation of trading on a jointstock, except as they themselves should afterwards desire.185

A bill was introduced into parliament for carrying the project of the new association into execution. And the arguments of the two parties were brought forward in full strength and detail.186

On the part of the existing Company, it was represented; That they possessed charters; that the infringement of charters was contrary to good faith, contrary to justice, and in fact no less imprudent than it was immoral, by destroying that security of engagements on which the industry of individuals and the prosperity of nations essentially depend: That the East India Company, moreover, had property, of which to deprive them would be to violate the very foundation on which the structure of society rests; that they were the Lords-Proprietors, by royal grant, of Bombay and St. Helena; that they had in India at their own expense, and by their own exertions, acquired immoveable property, in lands, in houses, in taxes and duties, the annual produce of which might be estimated at 44,000l.: That at great expense they had erected fortifications in various parts of India, by which they had preserved to their country the Indian trade; and had built factories and purchased privileges of great importance to the nation; enterprises to which they could have been induced by nothing but the hope and prospect of national support: That the resources and abilities of the Company were proved, by the estimate of their quick and dead stock; and that a capital of two millions would be raised immediately by subscription: That the project, on the contrary, of the new association made no provision for a determinate stock; and the trade, which experience proved to require an advance of 600,000l. annually, might thus be lost to the nation, for want of sufficient capital to carry it on: That justice to individuals, as well as to the public, required the continuance of the charter, as the property and even subsistence of many families, widows, and orphans, was involved in the fate of the Company: In short, that humanity, law, and policy, would all be equally violated by infringing the chartered rights of this admirable institution.187

The new association replied; That it was no infringement of good faith or justice, to annul, by a legislative act, a charter which was hostile to the interests of the nation; because that would be to say, if a government has once committed an error, that it is not lawful to correct itself; it would be to say that, if a nation has once been rendered miserable, by erroneous institutions of government, it must never try to rescue itself from its misery: That the practical rule of the British government, as many precedents abundantly testified, had been, to set at nought the pretended inviolability of charters, as often as they were proved to be unprofitable or injurious: That not only had charters been destroyed by act of parliament, but even the judges at law (so little in reality was the respect which had been paid to charters) had often set them aside, by their sole authority, on the vague and general ground that the King had been deceived in his grant: That, if any chartered body was entitled to complain of being dissolved, in obedience to the dictates of utility, if was certainly not the East India Company, whose charter had been originally granted, and subsequently renewed, on the invariable condition of being terminated, after three years’ notice, if not productive of national advantage: To display the property which the Company had acquired in India, and to pretend that it gave them a right to perpetuity of charter, was nothing less than to insult the supreme authority of the state; by telling it, that, be the limitations what they might, under which the legislature should grant a charter, it was at all times in the power of the chartered body to annul those limitations, and mock the legislative wisdom of the nation, simply by acquiring property: That, if the Company had erected forts and factories, the question still remained, whether they carried on the trade more profitably by their charter than the nation could carry it on if the charter were destroyed: That the nation and its constituted authorities were the sole judge in this controversy; of which the question whether the nation or the Company were most likely to fail in point of capital, no doubt formed a part: That if inconvenience, and in some instances distress, should be felt by individuals, this deserved consideration, and, in the balance of goods and evils, ought to be counted to its full amount; but to bring forward the inconvenience of individuals, as constituting in itself a conclusive argument against a political arrangement, is as much as to say that no abuse should be ever remedied; because no abuse is without its profit to somebody, and no considerable number of persons can be deprived of customary profits without inconvenience to most, hardship to many, and distress to some.188

The new associators, though thus strong against the particular pleas of their opponents, were debarred the use of those important arguments which bore upon the principle of exclusion; and which, even in that age, were urged with great force against the Company. They who were themselves endeavouring to obtain a monopoly could not proclaim the evils which it was the nature of monopoly to produce. The pretended rights of the Company to a perpetuity of their exclusive privileges, for to that extent did their arguments reach, were disregarded by every body, and an act was passed, empowering the King to convert the new association into a corporate body, and to bestow upon them the monopoly of the Indian trade. The charters, the property, the privileges, the forts and factories of the Company in India, and their claims of merit with the nation, if not treated with contempt, were at least held inadequate to debar the legislative wisdom of the community from establishing for the Indian trade whatever rules and regulations the interest of the public appeared to require.189

The following were the principal provisions of the act: That the sum of two millions should be raised by subscription, for the service of government: that this subscription should be open to natives or foreigners, bodies politic or corporate: that the money so advanced should bear an interest of 8 per cent. per annum: that it should be lawful for his Majesty, by his letters patent, to make the subscribers a body politic and corporate, by the name of the “General Society:” that the subscribers severally might trade to the East Indies, each to the amount of his subscription: that if any or all of the subscribers should be willing and desirous, they might be incorporated into a joint-stock Company: that the subscribers to this fund should have the sole and exclusive right of trading to the East Indies: that on three years’ notice, after the 29th of September, 1711, and the repayment of the capital of 2,000,000l. this act should cease and determine: that the old or London Company, to whom three years’ notice were due, should have leave to trade to India till 1701: that their estates should be chargeable with their debts: and that if any further dividends were made before the payment of their debts, the members who received them should be responsible for the debts with their private estates to the amount of the sums thus unduly received.

This measure, of prohibiting dividends while debt is unpaid, or of rendering the Proprietors responsible with their fortunes to the amount of the dividends received, befitted the legislative justice of a nation.

A clause, on the same principle, was enacted with regard to the New Company, that they should not allow their debts at any time to exceed the amount of their capital stock; or, if they did, that every proprietor should be responsible for the debts with his private fortune, to the whole amount of whatever he should have received in the way of dividend or share after the debts exceeded the capital.190

This good policy was little regarded in the sequel.

In conformity with this act a charter passed the great seal, bearing date the 3d of September, constituting the subscribers to the stock of 2,000,000l. a body corporate under the name of the “General Society.” This charter empowered the subscribers to trade, on the terms of a regulated Company, each subscriber for his own account. The greater part, however, of the subscribers desired to trade upon a joint-stock: and another charter, dated the 5th of the same month, formed this portion of the subscribers, exclusive of the small remainder, into a joint-stock Company, by the name of “the English Company trading to the East Indies.”191

“In all this very material affair,” says Anderson, “there certainly was a strange jumble of inconsistencies, contradictions, and difficulties, not easily to be accounted for in the conduct of men of judgment.”192 The London Company, who had a right by their charter to the exclusive trade to India till three years after notice, had reason to complain of this injustice, that the English Company were empowered to trade to India immediately, while they had the poor compensation of trading for three years along with them. There was palpable absurdity in abolishing one exclusive company, only to erect another; when the former had acted no otherwise than the latter would act. Even the departure from joint-stock management, if trade on the principle of Individual inspection and personal interest had been looked to as the source of improvement, might have been accomplished, without the erection of two exclusive companies, by only abolishing the joint-stock regulation of the old one. But the chief mark of the ignorance of parliament, at that time, in the art and science of government, was, their abstracting from a trading body, under the name of loan to government, the whole of their trading capital: and expecting them to traffic largely and profitably when destitute of funds. The vast advance to government, which they feebly repaired by credit, beggared the English Company, and ensured their ruin, from the beginning.

The old, or London Company, lost not their hopes. They were allowed to trade for three years on their own charter; and availing themselves of the clause in the act, which permitted corporations to hold stock of the New Company, they resolved to subscribe into this fund as largely as possible; and, under the privilege of private adventure, allowed by the charter of the English Company, to trade, separately, and in their own name, after the three years of their charter should be expired. The sum which they were enabled to appropriate to this purpose was 315,000l.193

In the instructions to their servants abroad they represented the late measures of parliament as rather the result of the power of a particular party than the fruit of legislative wisdom: “The Interlopers,” so they called the New Company, “had prevailed by their offer of having the trade free, and not on a joint-stock;” but they were resolved by large equipments (if their servants would only second their endeavours) to frustrate the speculations of those opponents: “Two East India Companies in England,” these are their own words, “could no more subsist without destroying one the other, than two Kings, at the same time regnant in the same kingdom: that now a civil battle was to be fought between the Old and the New Company; and that two or three years must end this war, as the Old or the New must give way: that, being veterans, if their servants abroad would do their duty they did not doubt of the victory: that if the world laughed at the pains the two Companies took to ruin each other they could not help it, as they were on good ground and had a charter.”194

When the time arrived for paying the instalments of the subscriptions to the stock of the New Company, many of the subscribers, not finding it easy to fulfil their engagements, were under the necessity of selling their shares. Shares fell to a discount; and the despondency, hence arising, operated to produce still greater depression.195

The first voyage which the New Company fitted out, consisted of three ships with a stock of 178,000l.196 To this state of imbecility did the absorption of their capital reduce their operations. The sum to which they were thus limited for commencing their trade but little exceeded the interest which they were annually to receive from government.

With such means the New Company proved a very unequal competitor with the Old. The Equipments of the Old Company, for the same season, 1698–99, amounted to thirteen sail of shipping, 5,000 tons burthen, and stock estimated at 525,000l. Under the difficulties with which they had to contend at home, they resolved by the most submissive and respectful behaviour, as well as by offer of services, to cultivate the favour of the Moguls. Their endeavours were not unsuccessful. They obtained a grant of the towns of Chuttanuttee, Govindpore, and Calcutta, and began, but cautiously, so as not to alarm the native government, to construct a fort. It was denominated Fort William; and the station was constituted a Presidency.197

To secure advantages to which they looked from their subscription of 315,000l. into the stock of the English Company, they had sufficient influence to obtain an act of parliament, by which they were continued a corporation, entitled after the period of their own charter, to trade, on their own account, under the charter of the New Company, to the amount of the stock they had subscribed.198

The rivalship of the two Companies produced, in India, all those acts of mutual opposition and hostility, which naturally flowed from the circumstances in which they were placed. They laboured to supplant one another in the good opinion of the native inhabitants and the native governments. They defamed one another. They obstructed the operations of one another. And at last their animosities and contentions broke out into undissembled violence and oppression. Sir William Norris, whom the New Company, with the King's permission, had sent as their Ambassador to the Mogul court, arrived at Surat in the month of December, 1700. After several acts, insulting and injurious to the London Company, whom he accused of obstructing him in all his measures and designs, he seized three of the Council, and delivered them to the Mogul Governor, who detained them till they found security for their appearance. The President and the Council were afterwards, by an order of the Mogul government, put in confinement; and Sir Nicholas Waite, the English Company's Consul at Surat, declared, in his correspondence with the Directors of that Company, that he had solicited this act of severity, because the London Company's servants had used treasonable expressions towards the King; and had made use of their interest with the Governor of Surat to oppose the privileges which the Ambassador of the English Company was soliciting at the court of the Mogul.199

As the injury which these destructive contentions produced to the nation soon affected the public mind, and was deplored in proportion to the imaginary benefits of the trade, an union of the two Companies was generally desired, and strongly recommended. Upon the first depression, in the market, of the stock of the New Company, an inclination on the part of that Company had been manifested towards a coalition. But what disposed the one party to such a measure, suggested the hope of greater advantage, and more complete revenge, to the other, by holding back from it. The King himself, when he received in March, 1700, the Directors of the London Company, on the subject of the act which continued them a corporate body, recommended to their serious consideration an union of the two Companies, as the measure which would most promote, what they both held out as a great national object, the Indian trade. So far the Company paid respect to the royal authority, as to call a General Court of Proprietors for taking the subject into consideration; but after this step they appeared disposed to let the subject rest. Toward the close, however, of the year, the King, by a special message, required to know what proceedings they had adopted in consequence of his advice. Upon this the Directors summoned a General Court, and the following evasive resolution was voted: “That this Company, as they have always been, so are they still ready to embrace every opportunity by which they may manifest their duty to his Majesty, and zeal for the public good, and that they are desirous to contribute their utmost endeavours for the preservation of the East India trade to this kingdom, and are willing to agree with the New Company upon reasonable terms.” The English Company were more explicit; they readily specified the conditions on which they were willing to form a coalition; upon which the London Company proposed that seven individuals on each side should be appointed, to whom the negotiation should be entrusted, and by whom the terms should be discussed.200

As the expiration approached of the three years which were granted to the London Company to continue trade on their whole stock, they became more inclined to an accommodation. In their first proposal they aimed at the extinction of the rival Company. As a committee of the House of Commons had been formed, “to receive proposals for paying off the national debts, and advancing the credit of the nation,” they made a proposition to pay off the 2,000,000l. which government had borrowed at usurious interest from the English Company, and to hold the debt at five per cent. The proposal, though entertained by the committee, was not relished by the House; and this project was defeated.201 The distress, however, in which the Company were now involved, their stock having within the last ten years fluctuated from 300 to 37 per cent.,202 rendered some speedy remedy indispensable. The committee of seven, which had been proposed in the Answer to the King, was now resorted to in earnest, and was empowered by a General Court, on the 17th of April, 1701, to make and receive proposals for the union of the two companies.

It was the beginning of January, in the succeeding year, before the following general terms were adjusted and approved: That the Court of twenty-four Managers or Directors should be composed of twelve individuals chosen by each Company; that of the annual exports, the amount of which should be fixed by the Court of Managers, a half should be furnished by each Company; that the Court of Managers should have the entire direction of all matters relating to trade and settlements subsequently to this union; but that the factors of each Company should manage separately the stocks which each had sent out previously to the date of that transaction; that seven years should be allowed to wind up the separate concerns of each Company; and that, after that period, one great joint-stock should be formed by the final union of the funds of both. This agreement was confirmed by the General Courts of both Companies on the 27th April, 1702.203

An indenture tripartite, including the Queen and the two East India Companies, was the instrument adopted for giving legal efficacy to the transaction. For equalizing the shares of the two Companies, the following scheme was devised. The London Company, it was agreed, should purchase at par as much of the capital of the English Company, lent to government, as, added to the 315,000l. which they had already subscribed, should render equal the portion of each. The dead stock of the London Company was estimated at 330,000l.; that of the English Company at 70,000l.; whereupon, the latter paid 130,000l. for equalizing the shares of this part of the common estate. On the 22d July, 1702, the indenture passed under the great seal; and the two parties took the common name of The United Company of Merchants trading to the East Indies.204

On the foundation on which the affairs of the two Companies were in this manner placed, they continued with considerable jarrings and contention, especially between the functionaries in India, till the season 1707–8, when an event occurred, which necessitated the accommodation of differences, and accelerated the completion of the union. A loan of 1,200,000l., without interest, was exacted of the two Companies for the use of government. The recollection of what had happened, when the body of private adventurers were formed into the English East India Company, made them dread the offers of a new body of adventurers, should any difficulty be found on their part. It was necessary, therefore, that the two Companies should lay aside all separate views, and cordially join their endeavours to avert the common danger.

It was at last agreed, that all differences subsisting between them should be submitted to the arbitration of the Earl of Godolphin, then Lord High Treasurer of England; and that the union should be rendered complete and final upon the award which he should pronounce. On this foundation, the act, 6th Anne, ch. 17, was passed; enacting that a sum of 1,200,000l. without interest should be advanced by the United Company to government, which, being added to the former advance of 2,000,000l. at 8 per cent. interest, constituted a loan of 3,200,000l. yielding interest at the rate of 5 per cent. upon the whole; that to raise this sum of 1,200,000l. the Company should be empowered to borrow to the extent of 1,500,000l. on their common seal, or to call in moneys to that extent from the Proprietors; that this sum of 1,200,000l. should be added to their capital stock; that instead of terminating on three years’ notice after the 29th of September, 1711, their privileges should be continued till three years’ notice after the 25th of March, 1726, and till repayment of their capital; that the stock of the separate adventures of the General Society, amounting to 7,200l., which had never been incorporated into the joint-stock of the English Company, might be paid off, on three years’ notice after the 29th of September, 1711, and merged in the joint-stock of the United Company; and that the award of the Earl of Godolphin, settling the terms of the Union, should be binding and conclusive on both parties.205

The award of Godolphin was dated and published on the 29th of September, 1708. It referred solely to the winding up of the concerns of the two Companies; and the blending of their separate properties into one stock, on terms equitable to both. As the assets or effects of the London Company in India fell short of the debts of that concern, they were required to pay by instalments to the United Company the sum of 96,615l. 4s. 9d.: and as the effects of the English Company in India exceeded their debts, they were directed to receive from the United Company the sum of 66,005l. 4s. 2d.; a debt due by Sir Edward Littleton in Bengal, of 80,437 rupees and 8 anas, remaining to be discharged by the English Company on their own account. On these terms the whole of the property and debts of both Companies abroad became the property and debts of the United Company. With regard to the debts of both Companies in Britain, it was in general ordained that they should all be discharged before the 1st of March, 1709; and as those of the London Company amounted to the sum of 399,795l. 9s. 1d. they were empowered to call upon their Proprietors, by three several instalments, for the means of liquidation.206

As the intercourse of the English nation with the people of India was now destined to become, by a rapid progress, both very intimate, and very extensive, a full account of the character and circumstances of that people is required for the understanding of the subsequent proceedings and events.

The population of those great countries consisted chiefly of two Races: one, who may here be called the Hindu; another, the Mahomedan Race. The first were the aboriginal inhabitants of the country. The latter were subsequent invaders; and insignificant, in point of number, compared with the first.

The next two Books will be devoted to the purpose of laying before the reader all that appears to be useful in what is known concerning both these classes of the Indian people. To those who delight in tracing the phenomena of human nature; and to those who desire to know completely the foundation upon which the actions of the British people in India have been laid, this will not appear the least interesting department of the work.

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BOOK II.: OF THE HINDUS.

CHAP. I.

Chronology and Ancient History of the Hindus.

Rude nations seem to derive a peculiar gratification from pretensions to a remote antiquity.207 As a boastful and turgid vanity distinguishes remarkably the oriental nations they have in most instances carried their claims extravagantly high. We are informed in a fragment of Chaldaic history, that there were written accounts, preserved at Babylon with the greatest care, comprehending a term of fifteen myriads of years.208 The pretended duration of the Chinese monarchy is still more extraordinary. A single king of Egypt was believed to have reigned three myriads of years.209

The present age of the world according to the system of the Hindus, is distinguished into four grand periods, denominated yugs. The first is the Satya yug, comprehending 1,728-000 years; the second the Treta yug, comprehending, 1,296,000 years; the third the Dwapar yug, including 864,000 years; and the fourth the Cali yug, which will extend to 432,000 years. Of these periods the first three are expired, and, in the year 1817, of the Christian era, 4911 years of the last. From the commencement, therefore, of the Satya yug, to the year 1817, is comprehended a space of 3,892,911 years, the antiquity to which this people lay claim.210

The contempt with which judicious historians now treat the historical fables of early society, must be indulged with caution when we explore the ancient condition of Hindustan; because the legendary tales of the Hindus have hitherto, among European inquirers, been regarded with particular respect; and because, without a knowledge of them, much of what has been written in Europe concerning the people of India cannot be understood.211 It is necessary, therefore, to relate, that at the commencement of the Satya yug, or 3,892,911 years ago, lived Satyavrata, otherwise denominated Vaivaswata, and also the seventh Menu. He had escaped with his family from an universal deluge, which had destroyed the rest of the human species.212 Of his descendants were two royal branches: the one denominated the children of the sun; the other the children of the moon. The first reigned at Ayodhya or Owde; the second at Pratisht’hana or Vitora. These families or dynasties subsisted till the thousandth year of the present or Cali yug, at which time they both became extinct; and a list of the names of the successive princes is presented in the Sanscrit books.213

Satyavrata, the primitive sire, prolonged his existence and his reign through the whole period of the Satya yug, or 1,728,000 years.214 From this patriarchal monarch are enumerated, in the solar line of his descendants, fifty-five princes, who inherited the sovereignty till the time of Rama. Now it is agreed among all the Brahmens that Rama filled the throne of Ayodhya at the end of the Treta yug. The reigns, therefore, of these 55 princes, extending from the beginning to the end of that epoch, filled 1,296,000 years, which, at a medium, is more than 23,000 years to each reign. During the next, or Dwapar yug, of 864,000 years, twenty-nine princes are enumerated, who must, at an average, have reigned each 29,793 years. From the beginning of the present, or Cali yug, to the time when the race of solar princes became extinct, are reckoned 1000 years, and thirty princes. There is a wonderful change, therefore, in the last age, in which only thirty-three years, at a medium, are assigned to a reign.215

Beside the two lines of solar and lunar kings, a different race, who reigned in Magadha, or Bahar, commence with the fourth age. Of these, twenty in regular descent from their ancestor Jarasandha extended to the conclusion of the first thousand years of the present yug, and were cotemporary with the last thirty princes of the solar and lunar race.216 At the memorable epoch of the extinction of those branches, the house of Jarasandha also failed; for the reigning prince was slain by his prime minister, who placed his son Pradyota on the throne. Fifteen of the descendants of this usurper enjoyed the sovereignty, and reigned from the date of his accession 498 years, to the time of Nanda, the last prince of the house of Pradyota. He, after a reign of 100 years, was murdered by a Brahmen, who raised to the throne a man of the Maurya race, named Chandragupta. This prince is reckoned, by our Oriental antiquarians, the same with Sandracottos or Sandracuptos, the cotemporary of Alexander the Great. Only nine princes of his line succeeded him, and held the sceptre for 137 years. On the death of the last, his commander in chief ascended the throne, and, together with nine descendants, to whom he transmitted the sovereignty, reigned 112 years. After that period the reigning prince was killed, and succeeded by his minister Vasudeva. Of his family only four princes are enumerated; but they are said to have reigned 345 years. The throne was next usurped by a race of Sudras, the first of whom slew his master, and seized the government. Twenty-one of this race, of whom Chandrabija was the last, reigned during a space of 456 years.217 The conclusion of the reign of this prince corresponds therefore with the year 2648 of the Cali yug, and with the year 446 before the birth of Christ.218 And with him, according to Sir William Jones, closes the authentic system of Hindu chronology.219

It is a most suspicious circumstance, in the pretended records of a nation, when we find positive statements for a regular and immense series of years, in the remote abyss of time, but are entirely deserted by them when we descend to the ages more nearly approaching our own. Where annals are real, they become circumstantial in proportion as they are recent; where fable stands in the place of fact, the times over which the memory has any influence are rejected, and the imagination riots in those in which it is unrestrained. While we receive accounts, the most precise and confident, regarding the times of remote antiquity, not a name of a prince in after ages is presented in Hindu records. A great prince, named Vicramaditya, is said to have extended widely his conquests and dominion, and to have reigned at Magadha 396 years after Chandrabija. From that time even fiction is silent.220 We hear no more of the Hindus and their transactions, till the era of Mahomedan conquest; when the Persians alone become our instructors.

After the contempt with which the extravagant claims to antiquity of the Chaldeans and Egyptians had always been treated in Europe, the love of the marvellous is curiously illustrated by the respect which has been paid to the chronology of the Hindus.221 We received indeed the accounts of the Hindu chronology, not from the incredulous historians of Greece and Rome, but from men who had seen the people; whose imagination had been powerfully affected by the spectacle of a new system of manners, arts, institutions, and ideas; who naturally expected to augment the opinion of their own consequence, by the greatness of the wonders which they had been favoured to behold; and whose astonishment, admiration, and enthusiasm, for a time, successfully propagated themselves. The Hindu statements, if they have not perhaps in any instance gained a literal belief, have almost universally been regarded as very different from the fictions of an unimproved and credulous people, and entitled to a very serious and profound investigation. Yet they are not only carried to the wildest pitch of extravagance, but are utterly inconsistent both with themselves and with other established opinions of the Brahmens.

Of this a single specimen will suffice. The character which the Brahmens assign to the several yugs is a remarkable part of their system. The Satya yug is distinguished by the epithet of golden; the Treta yug by that of silver; The Dwapar yug by that of copper; and the Cali yug is denominated earthen.222 In these several ages the virtue, the life, and the stature of man, exhibited a remarkable diversity. In the Satya yug, the whole race were virtuous and pure; the life of man was 100,000 years, and his stature 21 cubits. In the Treta yug, one third of mankind were corrupt; and human life was reduced to 10,000 years. One half of the human race were depraved in the Dwapar yug, and 1000 years bounded the period of life. In the Cali yug, all men are corrupt, and human life is restricted to 100 years.223 But though in the Satya yug men lived only 100,000 years, Satyavrata, according to the chronological fiction, reigned 1,728,000 years; in the Treta yug, human life extended only to 10,000 years, yet fifty-five princes reigned, each at a medium, more than 23,000 years; in the Dwapar yug, though the life of man was reduced to 1000 years, the duration of the reigns was even extended, for twenty-nine princes held each the sceptre in this period for 29,793 years.224

The wildness and inconsistency of the Hindu statements evidently place them beyond the sober limits of truth and history; yet it has been imagined, if their literal acceptation must of necessity be renounced, that they at least contain a poetical or figurative delineation of real events, which ought to be studied for the truths which it may disclose. The labour and ingenuity which have been bestowed upon this inquiry, unfortunately have not been attended with an adequate reward. No suppositions, however gratuitous, have sufficed to establish a consistent theory. Every explanation has failed. The Hindu legends still present a maze of unnatural fictions, in which a series of real events can by no artifice be traced.225

The internal evidence which these legends display, afforded indeed, from the beginning, the strongest reason to anticipate this result. The offspring of a wild and ungoverned imagination, they mark the state of a rude and credulous people, whom the marvellous delights; who cannot estimate the use of a record of past events; and whose imagination the real occurrences of life are too familiar to engage.226 To the monstrous period of years which the legends of the Hindus involve, they ascribe events the most extravagant and unnatural: events not even connected in chronological series; a number of independent and incredible fictions. This people, indeed, are perfectly destitute of historical records.227 Their ancient literature affords not a single production to which the historical character belongs. The works in which the miraculous transactions of former times are described, are poems. Most of them are books of a religious character, in which the exploits of the gods, and their commands to mortals, are repeated or revealed. In all, the actions of men and those of deities are mixed together, in a set of legends, more absurd and extravagant, more transcending the bounds of nature and of reason, less grateful to the imagination and taste of a cultivated and rational people, than those which the fabulous history of any other nation presents to us. The Brahmens are the most audacious, and perhaps the most unskilful fabricators, with whom the annals of fable have yet made us acquainted.228

The people of Hindustan and the ancient nations of Europe came in contact at a single point. The expedition of Alexander the Great began, and in some sort ended, their connexion. Even of this event, so recent and remarkable, the Hindus have no record: they have not a tradition that can with any certainty be traced to it. Some particulars in their mythological stories have by certain European inquirers been supposed to refer to the transactions of Alexander, but almost any part as well as another of these unnatural legends may, with equal propriety, receive the same distinction.229 The information which we have received of the Greek invasion from the Greeks themselves, is extremely scanty and defective. The best of their writings on the subject have been lost, but we have no reason to suppose that their knowledge of the Hindus was valuable. That of the modern Europeans continued very imperfect, after they had enjoyed a much longer and closer intercourse with them, than the Greeks. In fact, it was not till they had studied the Indian languages, that they acquired the means of full and accurate information. But the Greeks, who despised every foreign language, made no exception in favour of the sacred dialect of the Hindus, and we may rest satisfied that the writings of Megasthenes and others contained few particulars by which our knowledge of the Brahmenical history could be improved.230

From the scattered hints contained in the writings of the Greeks, the conclusion has been drawn, that the Hindus, at the time of Alexander's invasion, were in a state of manners, society, and knowledge, exactly the same with that in which they were discovered by the nations of modern Europe; nor is there any reason for differing widely from this opinion. It is certain that the few features of which we have any description from the Greeks, bear no inaccurate resemblance to those which are found to distinguish this people at the present day. From this resemblance, from the state of improvement in which the Indians remain, and from the stationary condition in which their institutions first, and then their manners and character, have a tendency to fix them, it is no unreasonable supposition, that they have presented a very uniform appearance during the long interval from the visit of the Greeks to that of the English. Their annals, however, from that era till the period of the Mahomedan conquests, are a blank.

With regard to the ancient history of India, we are still not without resources. The meritorious researches of the modern Europeans, who have explored the institutions, the laws, the manners, the arts, occupations and maxims of this ancient people, have enabled philosophy to draw the picture of society, which they have presented, through a long revolution of years. We cannot describe the lives of their kings, or the circumstances and results of a train of battles. But we can show how they lived together as members of the community, and of families; how they were arranged in society; what arts they practised, what tenets they believed, what manners they displayed; under what species of government they existed; and what character, as human beings, they possessed. This is by far the most useful and important part of history; and if it be true, as an acute and eloquent historian has remarked, “that the sudden, violent, and unprepared revolutions incident to barbarians, are so much guided by caprice, and terminate so often in cruelty, that they disgust us by the uniformity of their appearance, and it is rather fortunate for letters that they are buried in silence and oblivion,”231 we have perhaps but little to regret in the total absence of Hindu records.232

Whatever theory we adopt with regard to the origin of mankind, and the first peopling of the world, it is natural to suppose, that countries were at first inhabited by a very small number of people. When a very small number of men inhabit a boundless country, and have intercourse only among themselves, they are by necessary consequence barbarians. If one family, or a small number of families, are under the necessity of providing for themselves all the commodities which they consume, they can have but few accommodations, and these imperfect and rude. In those circumstances the exigencies of life are too incessant, and too pressing, to allow time or inclination for the prosecution of knowledge. The very ideas of law and government, which suppose a large society, have no existence: men are unavoidably ignorant and unrefined; and, if much pressed with difficulties, they become savage and brutal.233

If we suppose that India began to be inhabited at a very early stage in the peopling of the world, its first inhabitants must have been few, ignorant, and rude. Uncivilized and ignorant men, transported in small numbers, into an uninhabited country of boundless extent, must wander for many ages before any great improvement can take place. Till they have multiplied so far as to be assembled in numbers large enough to permit the benefits of social intercourse, and of some division of labour, their circumstances seem not susceptible of amelioration. We find, accordingly, that all those ancient nations, whose history can be most depended upon, trace themselves up to a period of rudeness. The families who first wandered into Greece, Italy, and the eastern regions of Europe, were confessedly ignorant and barbarous. The influence of dispersion was no doubt most baneful, where the natural disadvantages were the greatest. In a country overgrown with forest, which denies pasture to cattle, and precludes husbandry, by surpassing the power of single families to clear the land for their support, the wretched inhabitants are reduced to all the hardships of the hunter's life, and become savages. The difficulties with which those families had to struggle who first came into Europe, seem to have thrown them into a situation but few degrees removed from the lowest stage of society. The advantages of India in soil and climate are so great, that those by whom it was originally peopled might sustain no farther depression than what seems inherent to a state of dispersion. They wandered probably for ages in the immense plains and valleys of that productive region, living on fruits, and the produce of their flocks and herds, and not associated beyond the limits of a particular family. Until the country became considerably peopled, it is not even likely that they would be formed into small tribes. As soon as a young man became, in his turn, the head of a family, and the master of cattle, he would find a more plentiful subsistence beyond the range of his father's flocks. It could only happen, after all the most valuable ground was occupied, that disputes would arise, and that the policy of defence would render it an object for the different branches of a family to remain united together, and to acknowledge a common head.

When this arrangement takes place, we have arrived at a new stage in the progress of civil society. The condition of mankind, when divided into tribes, exhibits considerable variety, from that patriarchal association which is exemplified in the history of Abraham, to such combinations as are found among the Tartars, or that distribution into clans, which, at no distant period, distinguished the people of Europe. The rapidity with which nations advance through these several states of society chiefly depends on the circumstances which promote population. Where a small number of people range over extensive districts, a very numerous association is neither natural nor convenient. Some visible boundary, as a mountain or a river, marks out the limits of a common interest; and jealousy or enmity is the sentiment with which every tribe is regarded by every other. When any people has multiplied so far as to compose a body, too large and unwieldy to be managed by the simple expedients which connected the tribe, the first rude form of a monarchy or political system is devised. Though we have no materials from the Hindus, which yield us the smallest assistance in discovering the time which elapsed in their progress to this point of maturity, we may so far accede to their claims of antiquity, as to allow that they passed through this first stage in the way to civilization very quickly; and perhaps they acquired the first rude form of a national polity at fully as early a period as any portion of the race.234 It was probably at no great distance from the time of this important change that those institutions were devised, which have been distinguished by a durability so extraordinary; and which present a spectacle so instructive to those, who would understand the human mind, and the laws which, amid all the different forms of civil society, invariably preside over its progress.

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CHAP. II.

Classification and Distribution of the People.

The transition from the state of tribes to the more regulated and artificial system of a monarchy and laws is not sudden; it is the result of a gradual preparation and improvement. That loose independence, which suits a small number of men, bound together by an obvious utility, scattered over an extensive district, and subject to few interferences of inclination or interest, is found productive of many inconveniences, as they advance in numbers, as their intercourse becomes more close and complicated, and as their interests and passions more frequently clash. When quarrels arise, no authority exists to which the parties are under the necessity of referring their disputes. The punishment of delinquents is provided for by no preconcerted regulation. When subsistence, by the multiplication of consumers, can no longer be obtained without considerable labour, the desire to encroach upon one another adds extremely to the occasions of discord: and the evils and miseries, which prevail, excite at last a desire for a better regulation of their common affairs. But slow is the progress, made by the human understanding, in its rude and ignorant state. No little time is spent; first, in maturing the conviction that a great reformation is necessary; and next, in conceiving the plan which the exigency requires. Many partial remedies are thought of and applied; many failures experienced; evils meanwhile increase, and press more severely; at last men become weary and disgusted with the condition of things, and prepared for any plausible change which may be suggested to them. In every society there are superior spirits, capable of seizing the best ideas of their times, and, if they are not opposed by circumstances, of accelerating the progress of the community to which they belong. The records of ancient nations give us reason to believe that some individual of this description, exalted to authority by his wisdom and virtue, has generally accomplished the important task of first establishing among a rude people a system of government and laws.

It may be regarded as a characteristic of this primary institution of government, that it is founded upon divine authority. The superstition of a rude people is peculiarly suited to such a pretension. While ignorant and solitary, men are perpetually haunted with the apprehension of invisible powers; and, as in this state only they can be imposed upon by the assumption of a divine character and commission, so it is evidently the most effectual means which a great man, full of the spirit of improvement, can employ, to induce a people, jealous and impatient of all restraint, to forego their boundless liberty, and submit to the curb of authority.235

No where among mankind have the laws and ordinances been more exclusively referred to the Divinity, than by those who instituted the theocracy of Hindustan. The plan of society and government, the rights of persons and things, even the customs, arrangements, and manners, of private and domestic life; every thing, in short, is established by divine prescription. The first legislator of the Hindus, whose name it is impossible to trace, appears to have represented himself as the republisher of the will of God. He informed his countrymen that, at the beginning of the world, the Creator revealed his duties to man, in four sacred books, entitled Vedas; that during the first age, of immense duration, mankind obeyed them, and were happy; that during the second and third they only partially obeyed, and their happiness was proportionally diminished; that since the commencement of the fourth age disobedience and misery had totally prevailed, till the Vedas were forgotten and lost;236 that now, however, he was commissioned to reveal them anew to his countrymen, and to claim their obedience.

The leading institutions of the Hindus bear evidence that they were devised at a very remote period, when society yet retained its rudest and simplest form. So long as men roam in the pastoral state, no division of classes or of labour is known. Every individual is a shepherd, and every family provides for itself the commodities with which it is supplied. As soon as the cultivation of land, which yields a more secure and plentiful subsistence, occupies a great share of the common attention, the inconvenience of this universal mixture of employments is speedily felt. The labours of the field are neglected, while the cultivator is engaged at the loom, or repelling the incursions of an enemy. His clothing and lodging are inadequately provided for, while the attention of himself and his family are engrossed by the plough. Men quit not easily, however, the practices to which they have been accustomed; and a great change in their manners and affairs does not readily suggest itself as a remedy for the evils which they endure. When the Hindus were lingering in this uneasy situation, it would appear that there arose among them one of those superior men, who are capable of accelerating the improvement of society. Perceiving the advantage which would accrue to his countrymen from a division of employments, he conceived the design of overcoming at once the obstacles by which this regulation was retarded; and clothing himself with a Divine character, established as a positive law, under the sanction of Heaven, the classification of the people, and the distribution of occupations. Nor was it enough to introduce this vast improvement; it was right to secure that the original members of the different classes should be supplied with successors, and that the community should not revert to its former confusion. The human race are not destined to make many steps in improvement at once. Ignorant that professions, when once separated, were in no danger of being confounded, he established a law, which the circumstances of the time very naturally suggested, but which erected a barrier against further progress; that the children of those who were assigned to each of the classes, into which he distributed the people, should invariably follow the occupation of their father through all generations.

The classification instituted by the author of the Hindu laws is the first and simplest form of the division of labour and employments. The priest is a character found among the rudest tribes; by whom he is always regarded as of the highest importance. As soon as men begin to have property, and to cultivate the ground, the necessity of defenders is powerfully felt; a class, therefore, of soldiers, as well as a class of husbandmen, becomes an obvious arrangement. There are other services, auxiliary to these, and necessary to the well-being of man, for which it still remains necessary to provide. In a state of great simplicity, however, these other services are few, and easily performed. We find accordingly that the Hindu legislator assigned but one class of the community to this department. The Hindus were thus divided into four orders or castes. The first were the Brahmens or priests; the second, the Cshatriyas or soldiers; the third, the husbandmen or Vaisyas; and the fourth, the Sudras, the servants and labourers.237 On this division of the people, and the privileges or disadvantages annexed to the several castes, the whole frame of Hindu society so much depends, that it is an object of primary importance, and merits a full elucidation.

I. The priesthood is generally found to usurp the greatest authority, in the lowest state of society. Knowledge, and refined conceptions of the Divine nature, are altogether incompatible with the supposition, that the Deity makes favourites of a particular class of mankind, or is more pleased with those who perform a ceremonial service to himself, than with those who discharge with fidelity the various and difficult duties of life. It is only in rude and ignorant times that men are so overwhelmed with the power of superstition as to pay unbounded veneration and obedience to those who artfully clothe themselves with the terrors of religion.238 The Brahmens among the Hindus have acquired and maintained an authority, more exalted, more commanding, and extensive, than the priests have been able to engross among any other portion of mankind. As great a distance as there is between the Brahmen and the Divinity, so great a distance is there between the Brahmen and the rest of his species. According to the sacred books of the Hindus, the Brahmen proceeded from the mouth of the Creator, which is the seat of wisdom; the Cshatriya proceeded from his arm; the Vaisya from his thigh, and the Sudra from his foot; therefore is the Brahmen infinitely superior in worth and dignity to all other human beings.239 The Brahmen is declared to be the Lord of all the classes.240 He alone, to a great degree, engrosses the regard and favour of the Deity; and it is through him, and at his intercession, that blessings are bestowed upon the rest of mankind. The sacred books are exclusively his; the highest of the other classes are barely tolerated to read the word of God; he alone is worthy to expound it. The first among the duties of the civil magistrate, supreme or subordinate, is to honour the Brahmens.241 The slightest disrespect to one of this sacred order is the most atrocious of crimes. “For contumelious language to a Brahmen,” says the law of Menu,242 “a Sudra must have an iron style, ten fingers long, thrust red hot into his mouth; and for offering to give instruction to priests, hot oil must be poured into his mouth and ears.” “If.” says Halhed's code of Gentoo laws,243 “a Sooder sits upon the carpet of a Brahmen, in that case the magistrate, having thrust a hot iron into his buttock, and branded him, shall banish him the kingdom; or else he shall cut off his buttock.” The following precept refers even to the most exalted classes: “For striking a Brahmen even with a blade of grass, or overpowering him in argument, the offender must soothe him by falling prostrate.”244 Mysterious and awful powers are ascribed to this wonderful being. “A priest, who well knows the law, needs not complain to the king of any grievous injury; since, even by his own power, he may chastise those who injure him: His own power is mightier than the royal power; by his own might therefore may a Brahmen coerce his foes. He may use without hesitation the powerful charms revealed to Atharvan and Angiras; for speech is the weapon of a Brahmen: with that he may destroy his oppressors.”245 “Let not the king, although in the greatest distress, provoke Brahmens to anger; for they, once enraged, could immediately destroy him with his troops, elephants, horses, and cars. Who without perishing could provoke those holy men, by whom the all-devouring flame was created, the sea with waters not drinkable, and the moon with its wane and increase? What prince could gain wealth by oppressing those, who, if angry, could frame other worlds and regents of worlds, could give being to other gods and mortals? What man, desirous of life, would injure those, by the aid of whom worlds and gods perpetually subsist; those who are rich in the knowledge of the Veda? A Brahmen, whether learned or ignorant, is a powerful Divinity; even as fire is a powerful Divinity, whether consecrated or popular. Thus, though Brahmens employ themselves in all sorts of mean occupations, they must invariably be honoured; for they are something transcendently divine.”246 Not only is this extraordinary respect and pre-eminence awarded to the Brahmens; they are allowed the most striking advantages over all other members of the social body, in almost every thing which regards the social state. In the scale of punishments for crimes, the penalty of the Brahmen, in almost all cases, is infinitely milder than that of the inferior castes. Although punishment is remarkably cruel and sanguinary for the other classes of the Hindus, neither the life nor even the property of a Brahmen can be brought into danger by the most atrocious offences. “Neither shall the king,” says one of the ordinances of Menu,247 “slay a Brahmen, though convicted of all possible crimes: Let him banish the offender from his realm, but with all his property secure, and his body unhurt.” In regulating the interest of money, the rate which may be taken from the Brahmens is less than what may be exacted from the other classes.248 This privileged order enjoy the advantage of being entirely exempt from taxes: “A king, even though dying with want, must not receive any tax from a Brahmen learned in the Vedas.”249 Their influence over the government is only bounded by their desires, since they have impressed the belief that all laws which a Hindu is bound to respect are contained in the sacred books; that it is lawful for them alone to interpret those books; that it is incumbent on the king to employ them as his chief counsellors and ministers, and to be governed by their advice. “Whatever order,” says the code of Hindu laws,250 “the Brahmens shall issue conformably to the Shaster, the magistrate shall take his measures accordingly.”251 These prerogatives and privileges, important and extraordinary as they may seem, afford, however, but an imperfect idea of the influence of the Brahmens in the intercourse of Hindu Society. As the greater part of life among the Hindus is engrossed by the performance of an infinite and burdensome ritual, which extends to almost every hour of the day, and every function of nature and society, the Brahmens, who are the sole judges and directors in these complicated and endless duties, are rendered the uncontrolable masters of human life. Thus elevated in power and privileges, the ceremonial of society is no less remarkably in their favour. They are so much superior to the king, that the meanest Brahmen would account himself polluted by eating with him, and death itself would appear to him less dreadful than the degradation of permitting his daughter to unite herself in marriage with his sovereign. With these advantages it would be extraordinary had the Brahmens neglected themselves in so important a circumstance as the command of property. It is an essential part of the religion of the Hindus, to confer gifts upon the Brahmens. This is a precept more frequently repeated than any other in the sacred books. Gifts to the Brahmens form always an important and essential part of expiation and sacrifice.252 When treasure is found, which, from the general practice of concealment, and the state of society, must have been a frequent event, the Brahmen may retain whatever his good fortune places in his hands; another man must surrender it to the king, who is bound to deliver one-half to the Brahmens.253 Another source of revenue at first view appears but ill assorted with the dignity and high rank of the Brahmens; by their influence it was converted into a fund, not only respectable but venerable, not merely useful but opulent. The noviciates to the sacerdotal office are commanded to find their subsistence by begging, and even to carry part of their earnings to their spiritual master. Begging is no inconsiderable source of priestly power.254

The duties of the Brahmens may be summed up in a few words. They are, to read the Vedas; to teach them to the young Brahmens; and to perform sacrifices and other religious acts.255

II. Among the castes of the Hindus, the next in dignity and rank to the priestly tribe, is that of the Cshatriyas, or the military class. In the rude and early state of society, as man has provided few securities against the evils with which he is assailed, and his wisdom has enabled him to draw few general rules respecting the order of their recurrence, he lives in a perpetual expectation of unhappy events, as well from nature, as from his fellow men; and fear is the passion which chiefly usurps the government of his mind. The priest soothes his imagination, in regard to the first and most awful source of his apprehensions, by undertaking to procure for him the favour of the mysterious powers of nature. The soldier, from whom he expects protection against the ravages of hostile men, is the second object of his veneration and gratitude; and in the history of society, it will be generally found, that the rank and influence of the military order are high, in proportion as the civilization of the people is low.256 To all but the Brahmens, the caste of Cshatriyas are an object of unbounded respect. They are as much elevated above the classes below them, as the Brahmens stand exalted above the rest of human kind. Nor is superiority of rank among the Hindus an unavailing ceremony. The most important advantages are attached to it. The distance between the different orders of men is immense and degrading. If a man of a superior class accuses a man of an inferior class, and his accusation proves to be unjust, he escapes not with impunity; but if a man of an inferior class accuses a man of a superior class, and fails in proving his accusation, a double punishment is allotted him.257 For all assaults, the penalty rises in proportion as the party offending is low, the party complaining high, in the order of the castes. It is, indeed, a general and a remarkable part of the jurisprudence of this singular people, that all crimes are more severely punished in the subordinate classes; the penalty ascending, by gradation, from the gentle correction of the venerable Brahmen to the harsh and sanguinary chastisement of the degraded Sudra.258 Even in such an affair as the interest of money on loan, where the Brahmen pays two per cent., three per cent. is exacted from the Cshatriya, four per cent. from the Vaisya, and five per cent. from the Sudra. The sovereign dignity, which usually follows the power of the sword, was originally appropriated to the military class, though in this particular it would appear that irregularity was pretty early introduced. To bear arms is the peculiar duty of the Cshatriya caste, and their maintenance is derived from the provision made by the sovereign for his soldiers.

III. The Vaisyas are the third caste of the Hindus. Their duties are to tend cattle, to carry on merchandize, and to cultivate the ground. They are superior only to the Sudras, who owe to them, however, the same awful respect and submission, which it is incumbent on them to pay to the military class.

IV. As much as the Brahmen is an object of intense veneration, so much is the Sudra an object of contempt, and even of abhorrence, to the other classes of his countrymen. The business of the Sudras is servile labour, and their degradation inhuman. Not only is the most abject and grovelling submission imposed upon them as a religious duty, but they are driven from their just and equal share in all the advantages of the social institution. The crimes which they commit against others are more severely punished, than those of any other delinquents, while the crimes which others commit against them are more gently punished than those against any other sufferers.259 Even their persons and labour are not free. “A man of the servile caste, whether bought or unbought, a Brahmen may compel to perform servile duty; because such a man was created by the Self-existent for the purpose of serving Brahmens.”260 The law scarcely permits them to own property; for it is declared that “no collection of wealth must be made by a Sudra, even though he has power, since a servile man, who has amassed riches, gives pain even to Brahmens.”261 “A Brahmen may seize without hesitation the goods of his Sudra slave; for as that slave can have no property, his master may take his goods.”262 Any failure in the respect exacted of the Sudra towards the superior classes is avenged by the most dreadful punishments. Adultery with a woman of a higher caste is expiated by burning to death on a bed of iron. The degradation of the wretched Sudra extends not only to every thing in this life, but even to sacred instruction and his chance of favour with the superior powers. A Brahmen must never read the Veda in the presence of Sudras.263 “Let not a Brahmen,” says the law of Menu, “give advice to a Sudra; nor what remains from his table; nor clarified butter, of which part has been offered; nor let him give spiritual counsel to such a man, nor inform him of the legal expiation for his sin: surely he who declares the law to a servile man, and he who instructs him in the mode of expiating sin, sinks with that very man into the hell named Asamvrita.”264

Although the adherence of each class to the particular employment assigned to it was secured by the most rigid laws, and the severest penalties, there were extraordinary cases in which a limited departure was permitted. When a Brahmen cannot obtain subsistence by the proper business of his order, he may apply himself to that of the Cshatriya or the Vaisya, but must never become so far degraded as to engage in that of the Sudra. The Cshatriya and Vaisya, in like necessitous circumstances, may have recourse respectively to the business of the class or classes below them, even that of the Sudra, but are strictly interdicted from profaning the employment of any class above them. The Sudra having, originally, no inferior class, was probably abandoned to his necessities, though afterwards, in the employments of the mixed classes, a resource was opened also for him.265 In this arrangement, as usually happens in the laws of the Hindus, the advantages are all on the side of the superior orders. The Brahmen has open to him, if need be, the occupations of all the respectable classes; he can overload them with additional numbers in the season of distress, a season at which it is natural for them to be overloaded without him, while his own occupation is exempt from the encroachment or competition of any other description of men. The Cshatriya, while he has the occupations open to him of two of the castes, is liable to the interference of one of them only. The Vaisya, on the other hand, can have recourse to none but the lowest of employments, that of the Sudra, while he is liable to be straitened in his own occupation by the interference and competition of both the orders above him. The unfortunate Sudra, who has no resource, may be driven from his employment, and his means of subsistence, mediately or immediately, by all the other classes of the community.

This distribution of the whole people into four classes only, and the appropriation of them to four species of employment; an arrangement which, in the very simple state of society in which it must have been introduced, was a great step in improvement, must have become productive of innumerable inconveniences, as the wants of society multiplied. The bare necessaries of life, with a small number of its rudest accommodations, are all it prepares, to meet the desires of man. As those desires, speedily extend beyond such narrow limits, a struggle must have early ensued between the first principles of human nature and those of the political establishment. The different castes were strictly commanded to marry with those only of their own class and profession; and the mixture of the classes from the union of the sexes was guarded against by the severest laws. This was an occurrence, however, which laws could not prevent. Irregularities took place; children were born, who belonged to no caste, and for whom there was no occupation. No event could befal society more calamitous than this. Unholy and infamous, on account of that violation of the sacred law to which they owed their unwelcome birth, those wretched outcasts had no resource for subsistence, excepting either the bounty of the established classes, to whom they were objects of execration and abhorrence; or the plunder of those same classes, a course to which they would betake themselves with all the ingenuity of necessitous, and all the atrocity of much injured, men. When a class of this description became numerous, they must have filled society with the greatest disorders. In the preface of that compilation of the Hindu Laws, which was translated by Mr. Halhed,266 it is stated that, after a succession of good kings, who secured obedience to the laws, and under whom the people enjoyed felicity, came a monarch evil and corrupt, under whom the laws were violated, the mixture of the classes was perpetrated, and a new and impious race were produced. The Brahmens put this wicked king to death, and by an effort of miraculous power created a successor endowed with the most excellent qualities. But the kingdom did not prosper, by reason of the Burren Sunker, so were this impure brood denominated; and it required the wisdom of this virtuous king to devise a remedy. He resolved upon a classification of the mixed race, and to assign them occupations. This, accordingly, was the commencement of arts and manufactures. The Burren Sunker became all manner of artisans and handicrafts; one tribe of them weavers of cloth, another artificers in iron, and so in other cases, till the subdivisions of the class were exhausted, or the exigencies of the community supplied. Thus were remedied two evils at once: The increasing wants of an improving society were provided for; and a class of men, the pest of the community, were converted to its service. This is another important era in the history of Hindu society; and having reached this stage, it does not appear that it has made, or that it is capable of making, much further progress. Thirty-six branches of the impure class are specified in the sacred books,267 of whom and of their employments it would be tedious and useless to present the description. The highest is that sprung from the conjunction of a Brahmen with a woman of the Cshatriya class, whose duty is the teaching of military exercises. The lowest of all is the offspring of a Sudra with a woman of the sacred class. This tribe are denominated Chandalas, and are regarded with great abhorrence. Their profession is to carry out corpses, to execute criminals, and perform other offices, reckoned to the last degree unclean and degrading. If, by the laws of Hindustan, the Sudras are placed in a low and vile situation, the impure and mixed classes are placed in one still more odious and degrading. Nothing can equal the contempt and insolence to which it is the lot of the lowest among them to see themselves exposed. They are condemned to live in a sequestered spot by themselves, that they may not pollute the very town in which they reside. If they meet a man of the higher castes, they must turn out of the way, lest he should be contaminated by their presence.268

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CHAP. III.

The Form of Government.

After the division of the people into ranks and occupations, the great circumstance by which their condition, character, and operations are determined, is the political establishment; the system of actions by which the social order is preserved. Among the Hindus, according to the Asiatic model, the government was monarchical, and, with the usual exception of religion and its ministers, absolute. No idea of any system of rule, different from the will of a single person, appears to have entered the minds of them, or their legislators. “If the world had no king,” says the Hindu law,269 “it would quake on all sides through fear; the ruler of this universe, therefore, created a king, for the maintenance of this system.” Of the high and uncontrolable authority of the monarch a judgment may be formed, from the lofty terms in which the sacred books describe his dignity and attributes. “A king,” says the law of Menu,270 “is formed of particles from the chief guardian deities, and consequently surpasses all mortals in glory. Like the sun, he burns eyes and hearts; nor can any human creature on earth even gaze on him. He, fire and air; He, the god of criminal justice; He, the genius of wealth; He, the regent of waters; He, the lord of the firmament. A king, even though a child, must not be treated lightly, from an idea that he is a mere mortal: No; he is a powerful divinity, who appears in human shape. In his anger, death. He who shows hatred of the king, through delusion of mind, will certainly perish; for speedily will the king apply his heart to that man's destruction.” The pride of imperial greatness could not devise, hardly could it even desire, more extraordinary distinctions, or the sanction of a more unlimited authority.

The plan, according to which the power of the sovereign was exercised in the government of the country, resembled that which has almost universally prevailed in the monarchies of Asia, and was a contrivance extremely simple and rude. In the more skilful governments of Europe, officers are appointed for the discharge of particular duties in the different provinces of the empire; some for the decision of causes, some for the control of violence, some for collecting the contingents of the subjects, for the expense of the state; while the powers of all center immediately in the head of the government, and all together act as connected and subordinate wheels in one complicated and artful machine. Among the less instructed and less civilized inhabitants of Asia, no other plan has ever occurred to the monarch, for the administration of his dominions, than simply to divide his own authority and power into pieces or fragments, as numerous as the provinces into which it was deemed convenient to distribute the empire. To each of the provinces a vicegerent was dispatched, who carried with him the undivided authority and jurisdiction of his master. Whatever powers the sovereign exercised over the whole kingdom, the vicegerent exercised in the province allotted to him; and the same plan which the sovereign adopted for the government of the whole, was exactly followed by the vicegerent in the government of a part.271 If the province committed to his sway was too extensive for his personal inspection and control, he subdivided it into parts, and assigned a governor to each, whom he intrusted with the same absolute powers in his district, as he himself possessed in the administration of the greater department. Even this inferior deputy often divided his authority, in the same manner, among the governors, whom he appointed, of the townships or villages under his control. Every one of those rulers, whether the sphere of his command was narrow or extensive, was absolute within it, and possessed the whole power of the sovereign, to levy taxes, to raise and command troops, and to decide upon the lives and property of the subjects. The gradations of command among the Hindus were thus regulated: The lowest of all was the lord of one town and its district; The next was the lord of ten towns; The third was the lord of twenty towns; The fourth was the lord of 100 towns; And the highest vicegerent was lord of 1000 towns. Every lord was amenable to the one immediately above him, and exercised unlimited authority over those below.272 The following law appears to provide for their personal expenses: “Such food, drink, wood, and other articles, as by law should be given each day to the king, by the inhabitants of the township, let the lord of one town receive; let the lord of ten towns enjoy the produce of two plough-lands; the lord of twenty, that of five plough-lands; the lord of 100, that of a village or small town; the lord of 1000, that of a large town.”273 The expense of the government of each vicegerent was defrayed out of the taxes which he levied, and the surplus was transmitted to the superior lord, to whom he was immediately responsible. From him it was again conveyed to the governor above him, till it reached, at last, the royal treasury.

If this plan of government was unskilful and rude, so was the contrivance employed for checking the abuses to which it was liable. “The affairs of these townships,” says the law, “either jointly or separately transacted, let another minister of the king inspect, who should be well affected, and by no means remiss. In every larger town or city, let him appoint one superintendant of all affairs, elevated in rank, formidable in power, distinguished as a planet among stars: Let that governor, from time to time, survey all the rest in person, and, by the means of his emissaries, let him perfectly know their conduct in their several districts.”274 Of the practical state of the government abundant proof is afforded. In the passage which immediately follows, “Since the servants of the king,” it is said, “whom he has appointed guardians of districts, are generally knaves, who seize what belongs to other men, from such knaves let him defend his people; of such evil-minded servants, as wring wealth from subjects attending them on business, let the King confiscate all the possessions, and banish them from his realm.”275

At the head of this government stands the king, on whom the great lords of the empire immediately depend. He is directed by the law to choose a Council, consisting “of seven or eight ministers, men whose ancestors were servants of kings, who are versed in the holy books, who are personally brave; who are skilled in the use of weapons, and whose lineage is noble.”276 With them he is commanded perpetually to consult on the affairs of his government; but a singular mode of deliberation is prescribed to him; not to assemble his Council, and, laying before them, as in the cabinets of European princes, the subject on which the suggestions of their wisdom are required, to receive the benefit arising from the mutual communication of their knowledge and views; a plan, apparently more artful and cunning, more nearly allied to the suspicious temper and narrow views, of a rude period, is recommended; to consult them apart, and hear the opinion of each separately; after which, having consulted them in common, when each man is swayed by the opinion he had formerly given in private, and has a motive of interest and vanity to resist the light which might be thrown upon the subject by others, the king himself is to decide.277 A Brahmen ought always to be his prime minister. “To one learned Brahmen, distinguished among the rest, let the king impart his momentous counsel.”278

To provide for the defence of the country was one great branch of the duties of the sovereign, and to preside over the military force was his great prerogative and distinction. As, in the original division of the people, a fourth part of them were appropriated to the profession of arms, and destined from that alone to obtain their subsistence, the great difficulty of government must have consisted, not in obtaining troops, but in finding for them maintenance and employment. When so great a proportion of the population were set apart for the business of war, with nothing to do, from year to year, and from generation to generation, but to improve its principles, and acquire the utmost dexterity in its exercises, it appears extraordinary that the nation was not of a formidable and warlike character. Yet has India given way to every invader; “and the rudeness,” says Mr. Orme,279 “of the military art in Indostan can scarce be imagined but by those who have seen it.” The precepts in the ancient and sacred books of the Hindus, which lay the foundation of their military system, are few in number, simple, and rude. For the security of the royal residence, the king is directed to take up his abode280 “in a capital, having, by way of fortress, a desert rather more than twenty miles round it, or a fortress of earth, a fortress of water or of trees, a fortress of armed men, or a fortress of mountains.” Their great unskilfulness in the science of attack and defence led them to place great dependence on fortification, as appears by a variety of their precepts. “One bowman,” says Menu,281 “placed on a wall is a match in war for 100 enemies, and 100 for 10,000; therefore is a fort recommended.” Yet their knowledge of fortification was elementary, and mostly consisted in surrounding the place with a mud wall and a ditch, or availing themselves of the natural advantages which insulated rocks, which water, or impervious thickets, could afford. The duty and advantage of maintaining at all times a powerful army are enforced in the most cogent terms. “By a king,” says Menu, “whose forces are always ready for action, the whole world may be kept in awe; let him then, by a force always ready, make all creatures living his own.”282 In recommending a perpetual standing army, the preceptive part of the military doctrine of the Hindus seems in a great measure to have been summed up; for the marshalling, the discipline, the conduct of an army, in any of its branches, no instruction is conveyed. General exhortations to firmness and valour are all the additional advice of which the utility appears to have been recognized. The Hindu prince is, by divine authority, informed, that those rulers of the earth, who, “desirous of defeating each other, exert their utmost strength in battle, without ever averting their faces, ascend after death directly to heaven.”283 “Never to recede from combat,” says Menu, “to protect the people, and to honour the priests, is the highest duty of kings, and ensures their felicity.”284 Of a great part of the duty which devolved upon the king, as head of the armed force, he appears to have been relieved by a deputy.285 In times of peace, the military people seem to have been distributed over the country, under the command of the governors of provinces and of districts, for local defence, for the preservation of local tranquillity, and for the convenience of subsistence. When a general war demanded the whole force of the nation, the king commanded the governors of provinces to assemble the soldiers under their command, and repair to his standard.286 From this circumstance it has been rashly concluded, that feudal conditions of military service, in fact a feudal government, nearly resembling that which existed in Europe, had place in Hindustan.

After the care of protecting the nation from foreign aggression or from internal tumult, the next duty of the king was the distribution of justice. In the first stage of society, the leader in war is also the judge in peace; and the regal and judicial functions are united in the same person. Various circumstances tend to produce this arrangement. In the first place, there are hardly any laws: and he alone is entitled to judge, who is entitled to legislate, since he must make a law for every occasion. In the next place, a rude people, unused to obedience, would hardly respect inferior authority. In the third place, the business of judicature is so badly performed as to interrupt but little the business or pleasures of the king; and a decision is rather an exercise of arbitrary will and power, than the result of an accurate investigation. In the fourth place, the people are so much accustomed to terminate their own disputes, by their own cunning, or force, that the number of applications for judicature is comparatively small. As society advances, a set of circumstances, opposite to these, are gradually introduced: laws are made which the judge has nothing to do but apply: the people learn the advantage of submitting to inferior authority: a more accurate administration of justice is demanded, and cannot be performed without a great application both of attention and of time: the people learn that it is for the good of the community, that they should not terminate, and that they should not be allowed to terminate, either by force or fraud, their own disputes: the administration of justice is then too laborious to be either agreeable to the king, or consistent with the other services which he is expected to render: and the exercise of judicature becomes a separate employment, the exclusive function of a particular order of men.

The administration of justice by the king in person, and in the provinces of course by his deputies, as in the subordinate districts by theirs, stands in the sacred books as a leading principle of the jurisprudence of the Hindus; and the revolution of ages has introduced a change in favour rather of the prince who abandons the duty, than of the people, for whom hardly any other instrument of judicature is provided.

In the infancy of improvement, the business of the judge is much more to award punishment, than to settle disputes. The Hindu law, accordingly, represents the king, as “created for the guardianship of all, a divinity in human form, to inflict punishment according to the Shaster.”287 In conformity with those rude ideas, the most extravagant praises are bestowed upon this engine of royalty. “For the use of the king, Bramah formed, in the beginning of time, the genius of punishment with a body of pure light, his own son, the Protector of all created things. Punishment governs all mankind; punishment alone preserves them; punishment wakes while their guards are asleep; the wise consider punishment as the perfection of justice. If the king were not, without indolence, to punish the guilty, the stronger would roast the weaker, like fish, on a spit. The whole race of man is kept in order by punishment; for a guiltless man is hard to be found.”288

For the more perfect discharge of this important duty the king is directed to associate with himself Brahmens, and counsellors capable of giving him advice.289 Any Brahmen, or even a person of the two middle classes, may interpret the law to him; but a Sudra in no case whatever.290 On those occasions on which it was impossible for the king to give judgment in person, he was empowered to appoint a Brahmen, who, with three assessors, might try causes in his stead.291

So much with regard to the constitution of the tribunals. The solemnities of jurisdiction were thus ordered to proceed: “Let the king, or his judge, having seated himself on the bench, his body properly clothed, and his mind attentively fixed, begin with doing reverence to the deities who govern the world, and then let him enter on the trial of causes.”292 The form of process was simple, and good; as it always is among a rude people. The parties were heard, generally in person; though lawyers by profession, unless in the case of certain high crimes, might appear in lieu of the principals. The application of the plaintiff might be either oral or written; but the answer was required to be in the same form; oral, if the application was oral; and in writing, if it was otherwise.293 The judge examines the witnesses; inspects, if any, the writings; and without any intricate or expensive forms proceeds directly to a decision. Punishment immediately follows conviction.294

One of the highest of our authorities affords a picture of the practical state of judicature in India, which, there is every reason to believe, may, with immaterial variations, be applied to Hindu society from the period at which it first attained its existing form. “No man is refused access to the Durbar, or seat of judgment; which is exposed to a large area, capable of containing the multitude.295 The plaintiff discovers himself by crying aloud, Justice! Justice! until attention is given to his importunate clamours. He is then ordered to be silent, and to advance before his judge; to whom, after having prostrated himself, and made his offering of a piece of money, he tells his story in the plainest manner, with great humility of voice and gesture, and without any of those oratorial embellishments which compose an art in freer nations.—The wealth, the consequence, the interest, or the address of the party, become now the only considerations. He visits his judge in private, and gives the jar of oil: his adversary bestows the hog which breaks it. The friends who can influence intercede; and, excepting where the case is so manifestly proved as to brand the failure of redress with glaring infamy (a restraint which human nature is born to reverence) the value of the bribe ascertains the justice of the cause.—This is so avowed a practice, that if a stranger should inquire how much it would cost him to recover a just debt from a creditor who evaded payment, he would every where receive the same answer; the government will keep onefourth, and give you the rest.—Still the forms of justice subsist; witnesses are heard, but brow-beaten and removed: proofs of writing produced, but deemed forgeries and rejected, until the way is cleared for a decision, which becomes totally or partially favourable, in proportion to the methods which have been used to render it such; but still with some attention to the consequences of a judgment, which would be of too flagrant iniquity not to produce universal detestation and resentment.—Providence has, at particular seasons, blessed the miseries of these people with the presence of a righteous judge. The vast reverence and reputation which such have acquired are but too melancholy a proof of the infrequency of such a character. The history of their judgments and decisions is transmitted down to posterity, and is quoted with a visible complacency on every occasion. Stories of this nature supply the place of proverbs in the conversations of all the people of Indostan, and are applied by them with great propriety.”296

Such are the principal branches of the duty of the sovereign, and in these various institutions may be contemplated an image of the Hindu government. It is worthy of a short analysis. The powers of government consist of three great branches, the legislative, the judicial, and the administrative; and we have to inquire, in what hands these several powers are deposited, and by what circumstances their exercise is controlled. As the Hindu believes, that a complete and perfect system of instruction, which admits of no addition or change, was conveyed to him from the beginning by the Divine Being, for the regulation of his public as well as his private affairs, he acknowledges no laws but those which are contained in the sacred books. From this it is evident, that the only scope which remains for legislation is confined within the limits of the interpretations which may be given to the holy text. The Brahmens enjoy the undisputed prerogative of interpreting the divine oracles; for though it is allowed to the two classes next in degree to give advice to the king in the administration of justice, they must in no case presume to depart from the sense of the law which it has pleased the Brahmens to impose. The power of legislation, therefore, exclusively belongs to the priesthood. The exclusive right of interpreting the laws necessarily confers upon them, in the same unlimited manner, the judicial powers of government. The king, though ostensibly supreme judge, is commanded always to employ Brahmens as counsellors and assistants in the administration of justice; and whatever construction they put upon the law, to that his sentence must conform. Whenever the king in person discharges not the office of judge, it is a Brahmen, if possible, who must occupy his place. The king, therefore, is so far from possessing the judicial power, that he is rather he executive officer by whom the decisions of the Brahmens are carried into effect.

They who possess the power of making and interpreting the laws by which another person is bound to act, are by necessary consequence the masters of his actions. Possessing the legislative and judicative powers, the Brahmens were, also, masters of the executive power, to any extent, whatsoever, to which they wished to enjoy it. With influence over it they were not contented. They secured to themselves a direct, and no contemptible share of its immediate functions. On all occasions, the king was bound to employ Brahmens, as his counsellors and ministers; and, of course, to be governed by their judgment. “Let the king, having risen early,” says the law, “respectfully attend to Brahmens learned in the three Vedas, and by their decision let him abide.”297 It thus appears that, according to the original laws of the Hindus, the king was little more than an instrument in the hands of the Brahmens. He performed the laborious part of government, and sustained the responsibility, while they chiefly possessed the power.298

The uncontrolable sway of superstition, in rude and ignorant times, confers upon its ministers such extraordinary privileges, that the king and the priest are generally the same person; and it appears somewhat remarkable that the Brahmens, who usurped among their countrymen so much distinction and authority, did not invest themselves with the splendour of royalty. It very often happens that some accidental circumstances, of which little account was taken at the time, and which after a lapse of ages it is impossible to trace, gave occasion to certain peculiarities which we remark in the affairs and characters of nations. It is by no means unnatural to suppose, that to a people, over whom the love of repose exerts the greatest sway, and in whose character aversion to danger forms a principal ingredient, the toils and perils of the sword appeared to surpass the advantages with which it was attended; and that the Brahmens transferred to the hands of others, what was thus a source of too much labour, as well as danger, to be retained in their own.

So many, however, and important were the powers which this class reserved to themselves, that the kingly dignity would appear to have been reduced to that of a dependant and secondary office. But with this inference the fact does not correspond. The monuments of the Hindus, imperfect as they are, convince us, that their monarchs enjoyed no small share both of authority, and of that kind of splendour which corresponded with their own state of society. They had two engines entrusted to them, the power of which their history serves remarkably to display; They were masters of the army; And they were masters of the public revenue. These two circumstances, it appears, were sufficient to counterbalance the legislative, and the judicative, and even a great part of the executive power, reinforced by all the authority of an overbearing superstition, lodged in the hands of the Brahmens. These threw around the sovereign an external lustre, with which the eyes of uncultivated men are easily dazzled. In dangerous and disorderly times, when every thing which the nation values depends upon the sword, the military commander exercises unlimited authority by universal consent; and so frequently is this the situation of a rude and uncivilized people, surrounded on all sides by rapacious and turbulent neighbours, that it becomes, in a great measure, the habitual order of things. The Hindu king, by commanding both the force, and the revenue of the state, had in his hands the distribution of gifts and favours; the potent instrument, in short, of patronage; and the jealousy and rivalship of the different sets of competitors would of their own accord give him a great influence over the Brahmens themselves. The distribution of gifts and favours is an engine of so much power, that the man who enjoys it to a certain extent is absolute, with whatever checks he may appear to be surrounded.299

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Part 1 of 2

CHAP. IV.

The Laws.

Next to the form of government, in determining the political condition of the people, is the body of law, or the mode in which the rights of individuals are expressed and secured. For elucidating this important point, in the history of the Hindus, materials are abundant. The detail, however, or even the analysis, of the Hindu code, would far exceed the bounds, to which, in a work like the present, this topic must be confined. An accurate conception of the character and spirit of the Hindu laws, and of their place in the scale of excellence or defect, is all I can attempt to convey.

Amid the imperfections adhering to the state of law among a rude and ignorant people, one is, that they preserve not their maxims of justice, and their rules of judicial procedure, distinct from other subjects. In the law books of the Hindus, the details of jurisprudence and judicature occupy comparatively a very moderate space.300 The doctrines and ceremonies of religion; the rules and practice of education; the institutions, duties, and customs of domestic life; the maxims of private morality, and even of domestic economy; the rules of government, of war, and of negotiation; all form essential parts of the Hindu codes of law, and are treated in the same style, and laid down with the same authority, as the rules for the distribution of justice. The tendency of this rude conjunction of dissimilar subjects is, amid other inconveniences, to confound the important distinction between those obligations which it is the duty of the magistrate to enforce, and those which ought to be left to the suggestions of self-interest, and the sanctions of morality; it is to extend coercion, and the authority of the magistrate, over the greater part of human life, and to leave men no liberty even in their private and ordinary transactions; while it lessens greatly the force of the legal sanction in those cases in which its greatest efficiency is required.

Another topic, which it will be convenient to detach and premise, is, the division and arrangement which the Hindus have given to the matter of law. In marking a stage of civilization, this is a very characteristic circumstance. As the human mind, in a rude state, has not the power to make a good distribution of a complicated subject, so it is little aware of its importance; little aware that this is the groundwork of all accurate thought. In the Institutes of Menu, the most celebrated perhaps of all the original compends of Hindu law, the titles, as they are there denominated, or divisions, of law, are eighteen, laid down in the following order:—1. Debt, on loans for consumption; 2. Deposits and loans for use; 3. Sale without ownership; 4. Concerns among partners; 5. Subtraction of what has been given; 6. Nonpayment of wages or hire; 7. Nonperformance of agreements; 8. Rescission of sale and purchase; 9. Disputes between master and servant; 10. Contests on boundaries; 11 and 12. Assault, and slander; 13. Larceny; 14. Robbery and other violence; 15. Adultery; 16. Altercation between man and wife and their several duties; 17. The law of inheritance; 18. Gaming with dice and with living creatures.1 It is not easy to conceive a more rude and defective attempt at the classification of laws, than what is here presented. The most essential and obvious distinctions are neglected and confounded. Though no arrangement would appear more natural, and more likely to strike even an uncultivated mind, than the division of laws into civil and penal, we find them mixed and blended together in the code of the Hindus. The first nine of the heads or titles, as above, refer to civil law; the eleventh, twelfth, thirteenth, fourteenth, and fifteenth, to criminal law; the sixteenth and seventeenth return to civil, and the eighteenth to criminal; while the tenth relates partly to the one and partly to the other.

Another ground of division, well calculated, as being exceedingly obvious, to strike an uncultivated mind, is the distinction of persons, and things. This was the ground-work of the arrangement bestowed upon the Roman laws. It is that of the arrangement which continues to prevail in the English; rude as it is, at once the effect, and the cause, of confusion.301 It will be seen, however, that even this imperfect attempt at a rational division was far above the Hindus.

In the order in which the titles follow one another, no principle of arrangement can be traced. The first eight of the heads may be regarded as allotted to the subject of contracts; but a more rude and imperfect division of contracts cannot easily be conceived. Not to dwell upon the circumstance of beginning with loans, one of the most remote and refined contracts, instead of the more obvious and simple, we may observe that the subject of purchase and sale is divided into two parts; but, instead of being treated in conjunction with one another, one occupies the third place in the list of titles, the other the eighth; and a number of heterogeneous subjects intervene. “Concerns among Partners” is a title which occupies the middle place between that of “Sale without Ownership,” and “Subtraction of what has been given;” with neither of which it has any relation. “Nonpayment of wages or hire” stands immediately before “Nonperformance of Agreements,” though the latter is a general title in which the former is included. The latter indeed is remarkable; for it is so general that it includes the whole subject of contracts, though it is here placed as only one, and the last, save one, among nine different titles or divisions of that subject. Several of the titles are nothing but particular articles, belonging to some of the other divisions; and are with great impropriety made to stand as separate and primary heads. The contracts, for example, between master and servant, are part of the great subject Location, or letting and taking to hire, including services as well as things; yet are these contracts here treated of under two distinct titles; the one, “Nonpayment of wages or hire,” the other, “Disputes between master and servant,” and even these are separated from one another by two intervening subjects. “Concerns among partners,” is an article, little, surely, entitled to stand as a separate head among the primary divisions of law, since the rights of individuals in a joint property fall under the same distinctions and rules which determine their rights in other property.302 Where one branch of one great topic, as transfer of ownership, is taken up, and concluded, it would appear a very necessary arrangement to pass on to another: when transfer by contract, for example, is finished, to begin with transfer by descent. Such obvious rules appear to have had no influence in the framing of the Hindu systems of law: when the subject of contracts is ended, the principal branches of criminal law are introduced; and, after these and some other topics are finished, then follows the great subject of inheritance.303

In order to convey, in as narrow a compass as possible, an idea of the maxims and spirit of Hindu jurisprudence, it will be convenient not to follow the mangled division of the Hindus themselves. Omitting the laws, which regulate the political order, which determine who are to govern, who are to obey, and define the terms of command and obedience; laws are conveniently distributed under the three usual heads; I. Civil laws, though Civil is a very objectionable term; II. Penal laws; and III. The laws of judicature, or those which fix the mode in which the judicial services are rendered. Under each of these heads, such particulars have been carefully selected from the multitude of Hindu laws, as appeared the best calculated to convey an idea of the leading qualities of the Hindu code, and of the stage of civilization at which it may appear to have been formed.

I. Under the first of these heads, Property is the great subject of law. To this we may confine our illustrations.

It is needless to remark, that the sources of acquisition, by occupancy, by labour, by contract, by donation, by descent; which are recognized in almost all states of society, are recognized in Hindustan. It is in the accuracy with which the intended effects of these incidents are defined, and in the efficiency of the means taken to secure the benefits they convey, that the excellence of one system above another is more particularly observed.

Though property, in the first stage of its existence, was probably measured by occupancy, and the one ceased with the other,304 the privilege was early conferred of alienating for a valuable consideration, or of transferring by purchase and sale. As this is a very simple compact, it appears to admit of little variety in the various stages of human improvement. In an age, however, in which the means of detecting fraudulent acquisitions, and of proving the good faith of contracts and bargains, are imperfectly known, purchases and sales, made in public, are alone considered valid. The laws of our Saxon ancestors prohibited the sale of every thing above the value of twenty-pence, except in open market;305 and it is with a pleasing kind of surprise we find, that similar circumstances have suggested a similar expedient to the people of Hindustan. “He,” says the law of Menu, “who has received a chattel by purchase in open market, before a number of men, justly acquires the absolute property, by having paid the price of it.” The right, however, conveyed by a bonâ fide purchase, is not, among the Hindus, carried to that extent, which is found requisite in a commercial and highly civilized society. If the goods were not the property of the person by whom they were sold, the right of the purchaser becomes absolute only if he can produce the vendor. “If,” says the law of Menu,307 “the vendor be not producible, and the vendee prove the public sale, the latter must be dismissed by the king without punishment; and the former owner, who lost the chattel, may take it back, on paying the vendee half its value.” This is quite sufficient to throw so much uncertainty into the great class of transactions by purchase and sale, as would prove, in a civilized state of society, a ruinous obstruction of business. A manufacturer purchases a quantity of the raw material, and works it up; he would lose, in a mischievous proportion, if the owner of that material could demand the identical substance, on tendering the half of its price. In many cases, the identical substance is exported; in many it is consumed; and cannot possibly be restored.308 Among children, and among rude people, little accustomed to take their decisions upon full and mature consideration, nothing is more common than to repent of their bargains, and wish to revoke them: Among the Hindus this has been found an affair of sufficient importance to constitute an entire head in the classification of their laws. A variety of cases are enumerated, in which, if dissatisfied with his bargain, a man may insist upon having it annulled; and in general any sale and purchase of things, not perishable, may be rescinded within ten days, at the will of either of the parties:309 another law, altogether incompatible with an age in which the divisions and refinements of industry have multiplied the number of exchanges. The regulation, which fixes the price of things, instead of leaving it to the natural and beneficent laws of competition, conveys not a high idea of the knowledge of the Hindus. “Let the king,” says the ordinance of Menu, “establish rules for the sale and purchase of all marketable things. Once in every five nights, or at the close of every half month, let him make a regulation for market prices.”310 It is a circumstance full of meaning, that, under this head of bargain and sale, is arranged the obligation of the marriage contract.311

There are many occasions, on which it is useful to the owner of property, to place it in the keeping of another person, without transfer of the ownership. It may be placed, for safe-custody merely; for the sake of an operation, as with the dyer, for the benefit of his art; with the carrier, either by sea or land, for the sake of transportation; or it may be placed, as in the case of a valuable animal, for the sake of maintenance. These, and a variety of other transactions of a similar sort, are included in English law under the title of bailments. In a well-regulated society, where the house of one man is nearly as secure from violence as that of another, mere deposits, unless in the case of warehousing, the object of which is convenience or economy, rather than security, form a class of transactions of little comparative magnitude. In a rude society, in which there is little or no security, and in which the means of concealing valuables is one of the great studies of life, deposits become an object of the greatest importance. In the Hindu code, other cases of bailment occupy a narrow space: the article of deposits swells, alone, to a great size, and forms a subject of considerable intricacy and detail.312 The modes of proof constitute the chief peculiarities in the provisions, and will be considered, when we speak of the third branch of jurisprudence. One rule, however, expressive of great simplicity, not to say rudeness, belongs exclusively to this article: “On failure of witnesses, to prove a deposit, let the judge actually deposit gold or precious things with the defendant, by the artful contrivance of spies. Should he restore that deposit, he is to be held innocent; if he deny it, he is to be apprehended and compelled to pay the value of both.”313

Hiring; that is, transferring to another, for a valuable consideration, and to a definite extent, the use of any thing valuable; is a right which holds a sort of middle place between sale and bailment: and may extend to personal services as well as to commodities.314 As this contract falls very naturally under the laws of purchase and sale,315 it occupies a narrow space in the volumes of Hindu law, and as far as commodities are concerned, offers nothing particular for observation.316 In the hire of personal services, three principal classes are distinguished; first, the students of the Veda, who discharge every menial office to their masters, and receive instruction in return: secondly, handicrafts, who receive either stipulated wages, or, if no agreement has been made, one tenth of the profits on their labour; thirdly, agricultural servants, who are always paid in kind; for tending cows, one tenth of the milk; for the culture of corn, one tenth of the crop.317

The peculiar species of transfer which is known by the name of loan is an object of great importance in the jurisprudence of all nations. Among the Hindus it stands as the first article in the classification of legal subjects, and in the Digest of Mr. Colebrooke occupies entirely one of the four books into which the compilers of that work have divided the laws of contract. From the peculiarities in the ideas and in the circumstances of the Hindus, it forms among them a subject of more than usual complexity. In an improved state of society, where the efficiency of laws, the diffusion of wealth, and the accommodations of business, have created a mutual confidence, loans are generally contracted on the security of law, without the actual custody or deposit of the property on which they may be secured. It is only in that extremely confined and degraded species of lending, abandoned to pawnbrokers, that pledges form a regular and component part. In the more early and imperfect states of the social union, circumstances are very different. Law is both feeble and inaccurate, poverty reigns, violence prevails; and the man who is able to discharge his debts to-day may be stript of all his possessions to-morrow. In these circumstances, the security of law upon the person or property of the debtor is seldom sufficient; and the deposit of some equivalent property, as a pledge, is the obvious, and, in point of fact, the common resource. The doctrine of pledges forms one of the most considerable branches of this part of the Hindu code. The laws relating to them are laid down with great minuteness and solemnity; a variety of cases are distinguished; and the receipt of pledges appears to have formed a component part of a comparatively numerous and important class of transactions.318 The responsibility of a second person, who becomes surety for the borrower, is another foundation on which Hindu loans are contracted, and the different species of it are not inaccurately distinguished.319 Interest, or a consideration for property lent, appears to have been known at a very early stage of civilization.320 As it is only interest on debts of money which is familiar to the members of a highly-civilized society, European visitors appear to have been forcibly struck with the Hindu law, which imposes an interest to be paid in kind on loans in goods, as grain, fruit, wool or hair, beasts of burden and the like.321 Mr. Halhed says, “The different rate of interest to be paid for different articles is perhaps an institute peculiar to Hindustan; but it reflects a strong light upon the simplicity of ancient manners, before money was universally current as the medium of barter for all commodities, and is at the same time a weighty proof of the great antiquity of these laws, which seem calculated for the crude conceptions of an almost illiterate people upon their first civilization.”322 When Mr. Halhed, however, informs us that this law “reflects a strong light upon the simplicity of ancient manners,” it is necessary to add that whatever light it reflects upon ancient, it reflects the same upon present manners, as this is not a law anciently in force, but long ago repealed; it is a law now in operation, and as suitable as ever to the purely Hindu state of society. Mr. Halhed too is mistaken when he supposes that this is an institution peculiar to the Hindus. It was familiarly known to the Jews in the time of Moses, and was probably a common practice in the nations around Judea, as well as in Egypt, from which the Jews had recently departed.323

To vary the rates of interest upon the different castes is a peculiarity more naturally arising from the unfair and odious distinctions among men, created by the Hindus. The rule established in the Institutes of Menu is, to take, when there is a pledge, one and a quarter per cent. per month; when there is no pledge, two per cent. per month; that is, from a Brahmen: but from a man of the military caste, three per cent.; four per cent. from one of the mercantile caste; and from a man of the servile caste no less than five per cent. per month.324 This exorbitant rate of interest affords a satisfactory criterion to judge of the opinions, which are not unfrequently advanced, of the great riches which, at some imaginary period, formerly distinguished Hindustan. The excessive accumulation, however, of interest was forbidden. Upon a loan in money, interest, beyond the amount of the principal, was not a debt;325 upon loans in goods, for some reason which it is not easy to divine, it was permitted to five times the amount of the principal. Compound interest too was prohibited. These were rules which would give effectual motives to the Hindu creditor to exact the regular payment of his interest, with rigid severity.326 In the laws relating to loans, however, the most remarkable particular is the mode of enforcing payment. The creditor is commanded, first, to speak to the friends and relations of the debtor; next, to go in person and importune him, staying some time in his house, but without eating or drinking. If these methods fail, he may then carry the debtor home with him, and having seated him, as the law expresses it, before men of character and reputation, may there detain him. Should he still hold out, the creditor is next directed, to endeavour by feigned pretences to get possession of some of his goods; or, if any pledge was deposited with him, to carry it before the magistrate, who will cause it to be sold to make payment. If neither of these expedients can be used, he shall seize and confine the debtor's wife, children, cattle, buffaloes, horses, &c.; also his pots, clothes, mats, and furniture, and, seating himself at his door, there receive his money. Should even this proceeding fail, he is commanded to seize and bind the debtor's person, and procure by forcible means a discharge of the debt.327 What is meant by forcible means is sufficiently explained in the following extra-ordinary definition. “When, having tied the debtor, the creditor carries him to his own house, and by beating or other means compels him to pay, this is called violent compulsion. By beating,” adds the law, “or by coercion, a creditor may enforce payment from his debtor.”328 When the debtor is of a caste not superior to the creditor, the latter may seize and compel him to labour for the discharge of the debt. If a man owes debts to several creditors, he is commanded to discharge first one debt and then another, in the order in which they were contracted; a regulation by which one or two of his creditors may receive in full their demands, while the rest, whether few or numerous, are entirely defrauded. The equitable arrangement of an equal dividend, which we find established among nations of very limited progress in the knowledge of law, obvious and useful as it is, had not suggested itself to the rude legislators of Hindustan. When a creditor procures payment of a debt by application to the magistrate, he pays him for his interposition a twentieth part of the sum recovered.329 By a very extraordinary regulation a punishment seems to be inflicted on the defendant in all actions for debt wherein he is cast. “A debt being admitted by the defendant, he must pay five in the hundred as a fine to the king; but if it be denied and proved, twice as much.”330 The sacred character of the Brahmen, whose life it is the most dreadful of crimes either directly or indirectly to shorten, suggested to him a process for the recovery of debts, the most singular and extravagant that ever was found among men. He proceeds to the door of the person whom he means to coerce, or wherever else he can most conveniently intercept him, with poison or a poignard in his hand. If the person should attempt to pass, or make his escape, the Brahmen is prepared instantly to destroy himself. The prisoner is therefore bound in the strongest chains; for the blood of the self-murdered Brahmen would be charged upon his head, and no punishment could expiate his crime. The Brahmen setting himself down, (the action is called sitting in dherna) fasts; and the victim of his arrest, for whom it would be impious to eat, while a member of the sacred class is fasting at his door, must follow his example. It is now, however, not a mere contest between the resolution or strength of the parties; for if the obstinacy of the prisoner should exhaust the Brahmen, and occasion his death, he is answerable for that most atrocious of crimes—the murder of a priest; he becomes execrable to his countrymen; the horrors of remorse never fail to pursue him; he is shut out from the benefits of society, and life itself is a calamity. As the Brahmen who avails himself of this expedient is bound for his honour to persevere, he seldom fails to succeed, because the danger of pushing the experiment too far is, to his antagonist, tremendous. Nor is it in his own concerns alone that the Brahmen may turn to account the sacredness of his person: he may hire himself to enforce in the same manner the claims of any other man; and not claims of debt merely; he may employ this barbarous expedient in any suit. What is still more extraordinary, even after legal process, even when the magistrate has pronounced a decision against him, and in favour of the person upon whom his claim is made, he may still sit in dherna, and by this dreadful mode of appeal make good his demand.331

We have now reviewed the great peculiarities of the Hindu law, in regard to those transfers of property which partake of the nature of exchange, and in which some sort of an equivalent is given and received; it remains for us to consider those, in which the property passes from one owner to another without any return.

The most extensive class of this species of transactions are those occasioned by the death of the owner. Men had considerably strengthened the chain by which they were connected with property, before they ceased to consider death as the cause of a perfect separation, and as leaving their possessions free to the earliest occupier. A right of succession in the children suggests itself, however, at a very early period in the progress of civilization. It is recommended by so many motives, it so happily accords with some of the strongest impulses of human nature, and is so easily engrafted upon the previous order of things, that it could not fail to be an early institution. The children, being naturally the nearest to their parent at the moment of his death, were generally able to avail themselves of the right of occupancy, and to exclude other successors by prior possession. It was the usual arrangement in early stages of society, that the different members of a family should live together; and possess the property in common.332 The father was rather the head of a number of partners, than the sole proprietor. When he died, it was not so much a transfer of property, as a continued possession; and the copartnership was only deprived of one of its members. The laws of inheritance among the Hindus are almost entirely founded upon this patriarchal arrangement.333 When the father dies, if the sons shall choose to live together, the eldest, says the law, shall take the station of the head of the family, and the property is held jointly in his name.334 “For brothers a common abode is ordained so long as both their parents live. On failure of both their parents, partition among brothers is ordained.”335 Even during the life-time of the father, a separation of the family might take place, when a division of the property, according to the strict notion of a joint interest, was made, in the proportion of two shares to the father, and one share equally to each of the sons.336 When the division, however, of the common estate is delayed till the death of the father, the elder brother, as the new head of the family, is distinguished in the partition. He first receives one twentieth of the inheritance, after which it is divided equally among all the brothers.337 With a few immaterial exceptions, the principle of equal division guided succession among the Hindus. “Let the sons, after the death of the parents, equally share the assets. If all sons be equal in good qualities, they must share alike; but he who is distinguished by science and good conduct shall take a greater share than the rest.”338 The last of these clauses affords an example of that vagueness and ambiguity, the source of endless dispute, which distinguishes the laws of all ignorant people, and which forms a most remarkable feature in those of Hindustan. What is the criterion to ascertain that superiority in science and virtue, which determines the share of brothers in the division of the paternal estate? Or who is to be the judge? Equally unskilful, and pregnant with evil, is the vague and indeterminate law which declares “that all those brothers who are addicted to any vice shall lose their title to the inheritance.”339 As the interpretation of the phrase, “addicted to any vice,” may receive any latitude, according to the inclinations and views of the expounder, a gate is here thrown open to unlimited injustice. Inconsistency, and even direct contradiction, is a characteristic of the Hindu laws, which it does not appear to have been thought even requisite to avoid; as it is expressly enacted, that when two laws command opposite things, both are to be held valid.340 This attribute is fully exemplified in the laws of inheritance. It is declared that, “on the failure of natural heirs, the lawful heirs are such Brahmens as have read the three Vedas, as are pure in body and mind, as have subdued their passions; and they must constantly offer the cake; thus the rites of obsequies cannot fail.”341 Yet it is added, in the very next clause or sentence, “The property of a Brahmen shall never be taken as an escheat by the king; this is a fixed law; but the wealth of the other classes, on failure of all heirs, the king may take.”342 Not unfrequently in rude nations, as if one misfortune ought to be aggravated by another, those who labour under certain maladies, or bodily defects, are excluded from inheritance. This principle is fully adopted by the Hindus, and carried to an unusual, and monstrous extent. All those persons who are lame, all those persons who are blind, all those who are deaf, all those who are dumb, impotent, or affected with an incurable disease, as leprosy, marasmus, gonorrhœa, dysentery, are denied a share in the partition of their father's effects, and are only entitled to a maintenance from the family.343 When a man has sons by wives of different castes, they inherit in the proportion of the mother's rank, and the son by a concubine is entitled only to one half of the share of him who is born of a wife.344 The laws which define proximity of kin, and fix the order of collateral succession, are numerous, minute, and in nothing remarkable.345 It is particularly to be noted that daughters are debarred from a share in the inheritance of their fathers.346 The woman, indeed, among the Hindus, is so restricted in the means of acquiring property, that she is almost excluded from its rights.347 The exceptions consist, in certain presents; what was given in the bridal procession; what was given in token of love; what was received from a brother, a mother, or a father: and this property is inherited by her daughters in equal portions with her sons. If she die without issue, her property falls to her husband or to her parents, and is subject to nearly the same rules of collateral succession as are established in regard to the property of males.348

The idea of a joint interest in the property of the family, while it early established the right of succession in the children, served to exclude the right of devising by will. As the property belonged to the parent in common only with his offspring, it could not be regarded as just, that he should have the power of giving it away from them after his death. It is only in stages of society, considerably advanced, that the rights of property are so far enlarged as to include the power of nominating, at the discretion of the owner, the person who is to enjoy it after his death. It was first introduced among the Athenians by a law of Solon, and among the Romans, probably, by the twelve tables.349 The Hindus have, through all ages, remained in a state of society too near the simplicity and rudeness of the most ancient times, to have stretched their ideas of property so far. The power of disposing of a man's possessions, by testament, is altogether unknown to their laws.350

The same notion of a joint-title, in all the members of a family, to the property of the whole, had originally an effect even upon the power of donation. Individuals were not at liberty to alienate by gift any part of the common stock. This, however, is a right which is recommended by motives more powerful and frequent than that of disposal after death, and was therefore much sooner introduced. The first instances were probably sanctioned by religious pretexts. By the laws of the Visigoths it was permitted to make donations to the church; and by those of the Burgundians a free man was allowed, after dividing his means with his sons, to make an ecclesiastical donation out of his own portion.351 Among the Hindus the conferring of gifts upon the Brahmens, which is taught as one of the most important of religious duties, must have early familiarized the mind to gratuitous alienations; yet, notwithstanding this important circumstance, a man's power of transferring his property by gift appears subject still to extraordinary restrictions. Except in certain minor cases, the consent of his heirs is required. It is only over that part of his property which is more than sufficient to feed and clothe all his dependants, that he has an unlimited power of disposal.352

II. The second class of laws, those which relate to offences and their punishment, form a subject less complicated, and of less subtle and difficult disquisition, than those which relate to the distribution of rights; it is, however, a portion of law, which, from the violent interference of human passions, is not less slow in gaining improvement.

An offence is an act by which a right is violated. The object of punishment is to prevent such acts. It is employed, under the empire of reason, only as a last resource. If offences could be prevented without punishment, punishment ought never to exist. It follows, as a necessary consequence, that as little of it as possible ought to exist.

It is equally manifest, that it would be vain to establish rights, if the necessary means were not to be used for securing them. It is therefore good to make use of punishment, as far as necessary for the securing of rights; with this precaution only, that the suffering or evil, produced by the punishment, is less, upon the whole, than that which would arise from the violation of the right.

By these maxims, as criterions, we shall endeavour to ascertain the attributes of the criminal code of the Hindus.

The misery and disorder which overspread human life, wherever self-defence rests wholly upon the individual, are the cause to which government owes its origin. To escape from those evils, men transfer to the magistrate powers sufficient for the defence of all; and agree to expect from him alone that protection, which they obtained so imperfectly from their own exertions. In the rude and violent times when this revolution takes place, it is not from a just and cool discernment of the limits of defence, prevention, and reparation, that penalties are exacted. It is from the impulse of a keen resentment, that the sufferer pursues, and from a strong sympathy with that resentment, that the magistrate commonly judges and condemns. It is not so much security that is coveted, as revenge. A great injury committed can only be expiated by a great injury received. Two principles therefore universally characterize the penal code of a barbarous people; severity; and retaliation. The early laws of the Greeks and the Romans were cruel; the laws of the twelve tables, says Mr. Gibbon, like the statutes of Draco, were written in characters of blood.353 By the laws of Moses, blasphemy, idolatry, profaning the sabbath, homicide, adultery, incest, rapes, crimes against nature, witchcraft, smiting or cursing father or mother, were punished with death, and with burning and stoning, the most cruel kinds of death.354 Of the sanguinary character imprinted on the laws of the Egyptians, the following instance may be adduced: They thrust little pieces of reeds, about a finger's length, into all parts of the bodies of parricides; and then, surrounding them with thorns, set them on fire.355 The barbarous punishments which prevail among the Chinese are too familiarly known to require illustration. Perhaps of all the rude nations of whom we have any account, our own Saxon and German ancestors were the most distinguished for the mildness of their punishments; a singularity, however, to be accounted for, by the use of a very barbarous expedient, a compensation in money for almost every species of crime. Yet in various instances, particularly that of theft, their laws were not only severe, but inhuman.356

Notwithstanding the mildness which has generally been attributed to the Hindu character, hardly any nation is distinguished for more sanguinary laws. “The cruel mutilations,” says Sir William Jones,357 “practised by the native powers, are shocking to humanity.”

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Part 2 of 2

Retaliation is another peculiarity which remarkably distinguishes the laws of that barbarous period, when the punishment of crimes is chiefly measured by the resentment of the sufferer.358 Whatever the injury which the innocent man has sustained, a similar injury, by way of punishment, is imposed upon the guilty. Whatever the member, or part of his body, with which the offender committed the crime, upon that part is the chastisement inflicted. The Hebrew law of an eye for an eye, and a tooth for a tooth, is a familiar example of what occurred among other nations. The forfeit of limb for limb, and member for member, was, among the Romans, exacted by the law of the twelve tables, unless where the offender could expiate his crime by a fine of 300 pounds of copper. The earliest legislators of Greece were so rude as to leave the punishment of crimes, undefined, to the discretion of the judge; but Zaleucus, legislator of the Locrians, who first prescribed rules on this subject, enforced so literally the maxim of an eye for an eye, that it was deemed an important reform on his laws, when it was decreed that he who struck out the eye of a person with one eye should lose both his own.359 The Egyptians extended the principle of punishing criminals in that part of the body which was chiefly instrumental in the guilt, to an extraordinary number of instances. He who discovered the secrets of the state had his tongue cut out; he who violated a free woman was made an eunuch; of those who counterfeited coin and seals either public or private, of those who made use of false weights and measures, and of public notaries who forged or mutilated deeds, the two hands were cut off; and calumniators were subjected to the same punishment which would have been due to those whom they falsely accused.360 To how extraordinary a degree the spirit of retaliation moulds the penal legislation of the Hindus, a few specimens will evince. The law concerning assault and battery, in the Institutes of Menu, thus commences: “With whatever member a low-born man shall assault or hurt a superior, even that member of his must be slit or cut, more or less in proportion to the injury: this is an ordinance of Menu.”361 “If a man strikes a Bramin with his hand, the magistrate shall cut off that man's hand; if he strikes him with his foot, the magistrate shall cut off the foot; in the same manner, with whatever limb he strikes a Bramin, that limb shall be cut off; but if a Sooder strikes either of the three casts, Bramin, Chehteree, or Bice, with his hand or foot, the magistrate shall cut off such hand or foot.”362 “If a man has put out both the eyes of any person, the magistrate shall deprive that man of both his eyes, and condemn him to perpetual imprisonment, and fine him.”363 The punishment of murder is founded entirely upon the same principle. “If a man,” says the Gentoo code, “deprives another of life, the magistrate shall deprive that person of life.”364 “A once-born man, who insults the twice-born with gross invectives, ought to have his tongue slit. If he mention their names and classes with contumely, as if he say, ‘Oh thou refuse of Brahmens,’ an iron style, ten fingers long, shall be thrust red-hot into his mouth. Should he through pride give instruction to priests concerning their duty, let the king order some hot oil to be dropped into his mouth and his ear.”365 “If a blow, attended with much pain, be given either to human creatures or cattle, the king shall inflict on the striker a punishment as heavy as the presumed suffering.”366 “With whatever limb a thief commits the offence, by any means in this world, as if he break a wall with his hand or his foot, even that limb shall the king amputate, for the prevention of a similar crime.”367 “A mechanic or servile man, having an adulterous connexion with a woman of a twice-born class, if she was unguarded, shall lose the part offending, and his whole substance.”368 “The breaker of a dam to secure a pool, let the king punish by a long immersion under water.”369 The portion of suffering, sufficient to constitute a motive for abstaining from the crime, is all the punishment which reason authorizes; but we see nations far advanced in civilization so tardy in recognizing this principle, that the excess of suffering, produced by the law of retaliation, would not, it is probable, suggest to nations, at a very early stage of civilization, the utility of repealing it. Yet no maxim more naturally recommends itself to the human mind, even before it is strong, than that all who commit the same crime should meet with equal punishment; and it requires a very slight degree of reflection to see, that when the hand or the foot is cut off from one man, the punishment may be a very moderate one; when the same limb is cut off from another man, to whose subsistence it is essential, the penalty may far exceed a sentence of death.

In another class of punishments, where the principle of equality may be still more easily applied, the grossness of the violation excites considerable surprise. As among our Saxon ancestors, so among the Hindus, fines bear a very large proportion to other punishments. When reparation to the party injured should be made by the author of the wrong, the pecuniary ability of the party on whom the obligation falls can no more be regarded, than where he owes a debt. But in so far as it is the object of the law to create a motive against the occurrence of a like offence; or even to take vengeance, to inflict pain purely because pain has been occasioned; in so far it is one of the plainest dictates of reason, that where the offence is equal, the suffering or hardship imposed should be equal. Though a pecuniary mulct imposes all degrees of hardship, according to the pecuniary abilities of the man who pays, the Hindu law makes no distinction between the rich and the poor.370 It makes, indeed, a serious distinction between the man of one class, and another: and they of the lowest are, with a very few exceptions, always the most severely fined. But if the class is the same, the same forfeit is exacted for the same offence; though one man should be too opulent to feel from it any sensible inconvenience; another should suffer all the pains and horrors of want.

From the classification of the people, and the privileges of the castes, we are prepared to expect, among the Hindus, inequalities created by distinctions of rank. They relate either to the crimes committed against persons of the different ranks, or the crimes committed by them. Inequalities of the first sort, it is found difficult to avoid even in high stages of civilization. At present, in the best governed countries of Europe, an injury done to a nobleman is treated as a crime of a deeper die, than a similar injury to a person of the lowest rank.371 If the laws should make no distinction in principle, the power of the nobleman to bring the offender to trial, and to command the partiality of the judge, would long make a very essential difference in practice. When the Hindu law, therefore, makes a gradation in the criminality of the same action, according as it is committed against the Brahmen, the Cshatriya, the Vaisya, and the Sudra, it is only the excess in the difference of punishment, which is calculated to excite our surprise. With regard to offences committed by individuals of the different ranks, it is rare, even among the rudest people, to find the principle of unequal punishments, expressly avowed; and comparative impunity granted by law to the crimes of the great. Perjury, fraud, defamation, forgery, incest, murder, are not among us reckoned crimes more venial in the lord than in his servant. Among the Hindus, whatever be the crime committed, if it is by a Brahmen, the punishment is in general comparatively slight; if by a man of the military class, it is more severe; if by a man of the mercantile and agricultural class, it is still increased; if by a Sudra, it is violent and cruel. For defamation of a Brahmen, a man of the same class must be fined 12 panas; a man of the military class, 100; a merchant, 150 or 200; but a mechanic or servile man is whipped.372 The general principle on which the penalties for this crime seem to be regulated is, that whatever fine is exacted from a man of the same class by whom you have been accused, one only half as large should be imposed upon the man of a superior class, but one double in magnitude, should the cast of the slanderer be inferior to your own. For all the more serious accusations against any of the superior orders the punishment of the Sudra is far more dreadful.373 That the scale of punishment for crimes of assault is graduated by the same rule, the following instance, out of many, will evince. “If a man of superior cast and of superior abilities to another should strike him with a weapon, the magistrate shall fine him 500 puns of cowries. If a man of an equal cast and of equal abilities with another should strike him with a weapon, the magistrate shall fine him 1000 puns of cowries. If a man of an inferior cast and of inferior abilities to another should strike him with a weapon, the magistrate shall fine him 3000 puns of cowries.”374 For perjury, it is only in favor of the Brahmen, that any distinction seems to be admitted. “Let a just prince,” says the ordinance of Menu, “banish men of the three lower classes, if they give false evidence, having first levied the fine; but a Brahmen let him only banish.”375 The punishment of adultery, which on the Brahmens is light, descends with intolerable weight on the lowest classes. In regard to the inferior cases of theft, for which a fine only is the punishment, we meet with a curious exception, the degree of punishment ascending with the class. “The fine of a Sudra for theft, shall be eight fold; that of a Vaisya, sixteen fold; that of a Cshatriya, two and thirty fold; that of a Brahmen, four and sixty fold, or a hundred fold complete, or even twice four and sixty fold.”376 No corporal punishment, much less death, can be inflicted on the Brahmen for any crime. “Menu, son of the Self-existent, has named ten places of punishment, which are appropriated to the three lower classes; the part of generation, the belly, the tongue, the two hands; and fifthly, the two feet, the eye, the nose, both ears, the property; and in a capital case, the whole body; but a Brahmen must depart from the realm unhurt in any one of them.”377

Punishment should be proportioned, not to the greatness of the crime, that is, the quantity of suffering it produces, but solely to the difficulty of creating an adequate motive to abstain from it: if a fine of one shilling created a sufficient motive to abstain from the crime of murder, the fine of a shilling would be all the punishment which ought to exist. It must be owned, however, that the principle of punishing crimes, according to their magnitude, very naturally suggests itself; and bears a strong appearance of according with the principles of reason. Even to this early and imperfect principle, the Hindus have never ascended. While perjury, one of the most mischievous of crimes, and one against which an adequate motive is very difficult to create, is punished only with fine, and in its most aggravated cases, with banishment, the crime of obtaining goods on false pretences is punished with mutilation, and even with death. “If a person steals a man of an inferior cast, the magistrate shall fine him 1000 puns of cowries: If he steals an elephant or a horse excellent in all respects, the magistrate shall cut off his hand, and foot, and buttock, and deprive him of life.”378 The following places of the body are enumerated; the ear, the nose, the hand, the foot, the lip, the eye, the tongue, and some others; upon any one of which a stroke, such as to separate or cut them off from the body, is punished equally;379 yet surely there is no comparison between the injury of depriving a man of his ear, for example, and of his tongue, or his hand. An amour with a woman of the Brahmenical caste is more dreadfully punished than parricide. Various cases of theft and robbery are accounted worthy of more shocking penalties than murder. Even Sir William Jones is constrained to say that the punishments of the Hindus “are partial and fanciful, for some crimes dreadfully cruel, for others reprehensibly slight.”380

The principal acts erected into punishable offences by the Hindu law are, false witness, defamation, assault, theft, outrage, adultery. The species and degrees of perjury are thus distinguished: “If a witness speak falsely through covetousness, he shall be fined 1000 panas; if through distraction of mind, 250; if through terror, 1000; if through friendship, the same; if through lust, 2,500; if through wrath, 1,500; if through ignorance, 200 complete; if through inattention, 100 only.”381 The laws against reproachful expressions are numerous, and the penalties remarkably severe; a pretty satisfactory proof that the Hindus have always been abusive; as we find they continue to the present day.382 By the term Assault, are indicated the smaller instances of personal offence and injury; on which the laws of the Hindus descend to the most minute distinctions and details. In this they present a remarkable agreement with the laws of our Gothic ancestors. Lord Kaimes, observing upon the ancient European mode of satisfying for injuries by money, remarks that “the laws of the Burgundians, of the Salians, of the Almanni, of the Bavarians, of the Ripuarii, of the Saxons, of the Angli and Thuringi, of the Frisians, of the Langobards, and of the Anglo-saxons, are full of these compositions, extending from the most trifling injury to the most atrocious crimes. In perusing the tables of these compositions, which enter into a minute detail of the most trivial offences, a question naturally occurs, why all this scrupulous nicety of adjusting sums to delinquencies? Such a thing is not heard of in later times. But the following answer will give satisfaction:—That resentment, allowed scope among Barbarians, was apt to take flame by the slightest spark; therefore to provide for its gratification, it became necessary to enact compositions for every trifling wrong, such as at present would be the subject of mirth rather than of serious punishment: for example, where the clothes of a woman, bathing in a river, are taken away to expose her nakedness, and where dirty water is thrown upon a woman in the way of contumely.”383 The following orders of crime, in the Hindu code, present a similar, and a very remarkable picture; 1. Throwing upon the body of another, dust, or sand, or clay, or cow-dung, or any thing else of the same kind, or striking with the hand or foot; 2. Throwing upon the body tears, or phlegm, or the paring of one's nails, or the gum of the eyes, or the wax of the ears, or the refuse of victuals, or spittle; 3. Throwing upon another from the navel downwards to his foot, spue, or urine, or ordure, or semen; 4. Throwing upon another, from the navel upwards to beneath the neck, any of the substances mentioned in the last article; 5. Throwing upon another any of the same substances from the neck upwards; 6. Assaulting with a stone, or with a piece of iron or wood; 7. Hauling by the foot, or by the hair, or by the hand, or by the clothes; 8. Seizing and binding another in a cloth, and setting one's foot upon him; 9. Raising up an offensive weapon to assault; 10. Striking with a weapon. In all these cases a further distinction is made, as the offence is committed by a superior, an inferior, or an equal, and committed against a man or a woman. The gradations too of wounds are curiously specified; 1. When no blood is shed; 2. When a little blood is shed; 3. When much blood is shed; 4. When a very great quantity; 5. When a bone is broke as well as blood is shed; 6. When a member or organ is struck off or separated.384 Under the title theft, the Hindus include the various species of frauds. In all nations which have made but the first step in civilization; when the means of protecting property are very imperfectly known, and covetousness is a furious passion; the depredations of thieves are always punished with extreme severity. In the Gothic nations of Europe, when the murder even of the King inferred but a pecuniary composition, theft was punished by mutilation and death.385 In the same manner among the Hindus, while murder is punished by the mere loss of life, some of the most atrocious instances of the cruelty of the Hindu laws were drawn as above from the punishments awarded to theft.386 The minor cases of theft are punished by fines, and by various degrees of mutilation; but the higher species, by impaling, by burning alive, and by crucifixion. By Outrage; which is sometimes denominated violence, sometimes robbery; are designated, all attacks, accompanied with violence, upon either property or person, including even murder. While the inferior species are punished by fine and by mutilation, the higher are punished by death; and some of the more heinous kinds of spoliation are avenged with all the sanguinary fury which, among the Hindus, has dictated the higher penalties of theft.387 Adultery is a very complicated subject. In the Hindu language it includes every unlawful species of sexual indulgence, from the least, to the most injurious, or offensive. If the laws are any proof of the manners of a people, this article affords indication of one of the most depraved states of the sexual appetite. Almost all the abuses, and all the crimes which it is possible to conceive, are there depicted with curious exactness; and penalties are devised and assigned for every minute diversity and refinement, as for acts the most frequent and familiar. There are even titles of sections in the code which cannot be transcribed with decency, and which depict crimes unknown to European laws.388 In accordance with the general spirit of Eastern nations, among whom an extraordinary value is set on the chastity of the women, its more aggravated violations are punished by the most shocking death which human cruelty has probably devised, that of burning on a heated plate of iron. The ramifications of criminality are also pursued to the most minute and trivial acts, and such as, even in the most jealous nations of Europe, would be held perfectly innocent: “He, who talks with the wife of another man at a place of pilgrimage, in a forest or a grove, or at the confluence of rivers, incurs the guilt of an adulterous inclination: to send her flowers or perfumes, to sport and jest with her, to touch her apparel and ornaments, to sit with her on the same couch, are all held adulterous acts on his part.”389 Of all crimes, indeed, adultery appears, in the eyes of Hindu lawgivers, to be the greatest; and worthy of the most severe and terrible chastisement. The offences committed with the women of the higher classes by men of the lower are the acts which are looked upon as of greatest atrocity, and which rise in criminality, as the classes recede from one another, till they arrive at last at the adultery of a man of the servile with a woman of the priestly caste; a point beyond which, it is supposed, that human guilt and depravity cannot proceed.390

III. Conformity to the laws of the two preceding orders; denominated, for want of better terms, the Civil and the Penal; is the End: The laws of Judicature are to be regarded in the light of Means to that End. The subject, in its full extent, includes an account of 1. the instruments made use of for producing the fulfilment of the laws of the two former kinds, and 2. the modes of using them.

The instruments made use of among the Hindus, have been already described, in giving an account of the functions of the king; who, with his Brahmen assessors, is the principal instrument. The mode of using the instruments of judicature, or the steps according to which judicature is performed, were there also briefly described. Of the matters which remain, the laws or rules respecting evidence form the only part which it is still useful to describe.

Prior to the general use of writing, the chief species of evidence, applicable to judicial cases, is the speech of witnesses. It is this species which makes the principal figure in the laws of Hindustan to the present age. It is even more than doubtful whether written evidence is at all referred to by the author of the ordinances of Menu, though from himself we learn that writing had been applied to laws.391 “On the denial,” says the law, “of a debt which the defendant has in court been required to pay, the plaintiff must call a witness who was present at the place of the loan, or produce other evidence;”392 the gloss of Culluca adds, “a note and the like:”393 but for the use of evidence by writing not a single rule is afterwards adduced, though numerous rules are prescribed for the use of that which is delivered orally; not even a word of allusion to this novel species of evidence appears; and where the various circumstances are enumerated on which the attention of the judge ought to be fixed, while the evidence of speaking witnesses occupies a conspicuous place, the evidence of writings is entirely omitted.394 In the compilations, however, of recent times, as in that made by order of Mr. Hastings and translated by Halhed, the use of written evidence appears; but even there it is treated with a negligence and slightness due to a matter of subordinate importance.

Among the rules for evidence at the lips of witnesses, some are reasonable and good; others are not only the reverse, but indicate a state of ignorance and barbarism. The evidence of three witnesses is required for the decision of any question: “When a man has been brought into court by a suitor for property, the cause shall be decided by the Brahmen who represents the king, having heard three witnesses at least.”395 Yet it is declared in another place that “one man, untainted with covetousness, may (in some cases, says the gloss of Culluca) be the sole witness.”396 This apparent contradiction may perhaps be explained by a passage in the Code of Gentoo Laws, where the decision of a cause by the testimony of a single witness is made to depend upon the consent of the litigants.397 Even from this rule the following cases are excepted: “Supposing,” says the law, “a person to lend another money secretly, or secretly to entrust his money to the care of another, in such affairs one single person is a sufficient witness.”398 The different degrees of trustworthiness in different witnesses leads to mischievous rules. “Married housekeepers, men with male issue, inhabitants of the same district, either of the military, the commercial, or the servile class, are competent, when called by the party, to give their evidence.”399 The most fanciful distinction surely that ever was made by an uncultivated mind, is that between the father of male and the father of female offspring, as a source of evidence. The persons held incompetent to bear witness are a very numerous class. “Those must not be admitted who have a pecuniary interest; nor familiar friends; nor menial servants; nor enemies; nor men formerly perjured; nor persons grievously diseased; nor those, who have committed heinous offences. The king cannot be made a witness, nor cooks and the like mean artificers; nor public dancers and singers; nor a priest of deep learning in Scripture; nor a student of the Vedas; nor an anchoret secluded from all worldly connexions; nor one wholly dependant; nor one of bad fame; nor one who follows a cruel occupation; nor one who acts openly against the law; nor a decrepit old man; nor a child; nor a wretch of the lowest mixed class; nor one who has lost the organs of sense; nor one extremely grieved; nor one intoxicated; nor a madman; nor one tormented with hunger or thirst; nor one oppressed by fatigue; nor one excited by lust; nor one inflamed by wrath; nor one who has been convicted of theft.”400 Among the persons excluded from the rank of witnesses are the female sex entirely; unless in the case of evidence for others of the same sex. Servants, too, mechanics, and those of the lowest class, are allowed to give evidence for individuals of the same description.401 Brahmens and the king are exempted from the obligation of giving evidence, by way of privilege, though the Brahmens are admitted when they please.402
This enumeration of persons, whose testimony was altogether unfit to be believed, affords a proof of the great difficulty of obtaining true testimony in the age in which it was made; and holds up a dreadful picture of the state of morality to which it could be supposed to be adapted. It indicates, also, by the strange diversity of the cases which it includes, a singular want of discrimination, in the minds by which it was framed. And further; rules for the exclusion of testimony, from any person, not deprived of the ordinary exercise of the human faculties, could, however the vicious effects of custom may preserve them, be introduced, only in an age of great ignorance and barbarity, when the human mind judges in the gross, is incapable of nice discriminations, cannot assign the different value which ought to be attached to the testimony of different men, and estimates the weight of a body of evidence by the number, not the trustworthiness, of the people who deliver it.

The introduction of rules for the exclusion of evidence marks the age of false refinement, which is that of semibarbarism, intermediate between the age of true wisdom, and that of primeval ignorance. When the first judges, or arbiters, the heads of families, had to clear up any dispute, they called before them every individual of the little community or family, who appeared to know any thing of the matter, and questioned them all; allowing to the statements, extracted from each, the influence, much or little, or none at all, to which they seemed entitled; and this is the course, which true wisdom would recommend. In an age, however, of false refinement, which aims at excessive accuracy, but, failing in comprehensiveness, applies its rules to part only of a subject when they should include the whole, the makers of laws, perceiving that certain classes of witnesses were apt to give false testimony, and considering that false testimony misleads, resolved immediately that the testimony of such witnesses ought never to be received. Now, if the testimony of the best sort of witness had been a thing which the judges always had at command, in sufficient quantity, this might have been a rational procedure. But as this was very far from being the case; as it very often happens that the testimony of the best sort of witnesses cannot be had, or that they contradict one another; that not only some light, but full and satisfactory light, may often be obtained from the worst sort of witnesses; to determine that certain classes of persons, and among them the persons whose knowledge of the facts is naturally the most complete, shall not be used as witnesses, is merely to determine that judicature shall be performed, so far, without evidence; that the judge shall decide without knowledge; and the question of right and wrong, instead of being determined upon all the evidence that can be had, shall be determined upon a part of it only, sometimes a most insignificant part, sometimes hardly any at all.403

One of the strongest characteristics of a rude age, or of a corrupt government, is, to make laws which cannot, or ought not, to be executed; and then to give dispensations for them. “In all cases of violence, of theft and adultery, of defamation and assault,” says the Hindu law, “the judge must not examine too strictly the competence of witnesses.”

A presumption, of the very weakest kind, is admitted as a full proof, in the following passages: “If a man brings a suit against another, saying, I have lent you several articles, and the person answers, I never received one of the articles you mention; in that case, if the plaintiff proves any one of all the articles claimed, to be in the defendant's possession, the magistrate shall cause the whole so claimed to be restored.”404 In cases of infinitely greater importance the same deceitful rule is applied. “If a man hath accused another of the murder of a man, or of a robbery, or of adultery, and should say, You have in several places been guilty of these crimes, and the defendant denies the accusation; in such a case, if the accuser can prove upon the other the commission of any one of these crimes, it shall be a proof of the whole complaint.”

Of all the perverse proceedings of a superstitious mind, which the history of rude nations presents to us, few will be found more at variance with reason, than the establishment of the following law: “The witness, who has given evidence, and to whom within seven days after, a misfortune happens from disease, fire, or the death of a kinsman, shall be condemned to pay the debt and a fine.”405

Though there is no ground on which the infirmities of the human mind are more glaring, and more tenacious of existence, than that of law, it is probable that the annals of legislative absurdity can present nothing which will match a law for the direct encouragement of perjury. “Whenever,” says the ordinance of Menu, “the death of a man, who had been a grievous offender, either of the servile, the commercial, the military, or the sacerdotal class, would be occasioned by true evidence, from the known rigour of the king, even though the fault arose from inadvertence or error, falsehood may be spoken: it is even preferable to truth.”406 What a state of justice it is, in which the king may condemn a man to death, for inadvertence or error, and no better remedy is found than the perjury of witnesses? “Whenever a true evidence would deprive a man of his life, in that case, if a false testimony would be the preservation of his life, it is allowable to give such false testimony. If a marriage for any person may be obtained by false witness, such falsehood may be told. If a man by the impulse of lust tells lies to a woman, or if his own life would otherwise be lost, or all the goods of his house spoiled, or if it is for the benefit of a Brahmen, in such affairs falsehood is allowable.”407

The laws respecting written evidence are few, and applied to a very limited number of cases. One distinction is recognized. “A writing,” says the law, “is of two sorts; first, that which a man writes with his own hand; second, that which he procures to be written by another: of these two sorts, that which is written by a man's own hand, even without witnesses, is approved; and that written by another, if void of witnesses, is not approved.”408 The remaining rules apply, almost entirely, to the modes of supplying, by means of the oral, what is at any time defective in the quantity or quality of the matter drawn from the scriptural source.409

Notwithstanding the diversities of appearance which, in different ages and countries, human nature puts on, the attentive observer may trace in it an astonishing uniformity with respect to the leading particulars which characterize the different stages of society; and often a surprising coincidence in particular thoughts and observances. The trials by ordeal, in the dark ages of modern Europe; when the decision of the most important questions was abandoned to chance or to fraud; when carrying in the hand a piece of red hot iron, or plunging the arm in boiling water, was deemed a test of innocence; and a painful or fraudulent experiment, supplanting a righteous award, might consign to punishment the most innocent, or save from it the most criminal of men; have been deemed a shocking singularity in the institutions of our barbarous ancestors. This species of evidence holds a high rank in the institutes of the Hindus. There are nine different modes of the trial by ordeal; 1. by the balance; 2. by fire; 3. by water; 4. by poison; 5. by water in which an idol has been washed; 6. by rice; 7. by boiling oil; 8. by red hot iron; 9. by images. The first of these, by the balance, is thus performed. The party accused is placed in the scale, and carefully weighed; after which, he is taken down, the pundits write the substance of the accusation on a piece of paper, and bind it on his forehead. At the end of six minutes he is weighed again, when, if lighter than before, he is pronounced innocent; if heavier, guilty. In the second ordeal, an excavation in the ground, nine hands long, two spans broad, and one span deep, is filled with a fire of pippal wood, into which the party must walk barefooted; proving his guilt, if he is burned; his innocence, if he escapes unhurt. The third species is rather more complicated: the person accused is made to stand in water up to his navel, with a Brahmen by his side; a soldier then shoots three arrows from a bow of cane, and a man is dispatched to bring back that which was shot the farthest; as soon as he has taken it up, another man is directed to run from the brink of the water, and at the same instant the party under trial must plunge into it, grasping the foot or the staff of the Brahmen who stands by him: if he remains under the water till the two men with the arrows return, he is innocent; if he comes up, he is guilty. The fourth kind, by poison, is performed two ways: either the party swallows a certain quantity of a poisonous root, and is deemed innocent if no injury ensues; or a particular species of hooded snake is thrown into a deep earthen pot, and along with it a ring, a seal, or a coin. If the man, putting down his naked hand, cannot take this out unbitten by the serpent, he is accounted guilty. The accused, in the fifth species, is made to drink three draughts of the water in which the images of the sun and other deities have been washed; and if within fourteen days he has any indisposition, his crime is considered as proved. When several persons are suspected of theft, they chew, each, a quantity of dried rice, and throw it upon some leaves or bark of a tree; they from whose mouth it comes dry, or stained with blood, are deemed guilty: This is the sixth species of ordeal. In the seventh, a man thrusts his hand into hot oil; and in the eighth he carries an iron ball, or the head of a lance, red hot in his hand; receiving his sentence of innocence or guilt according as he does or does not come off with safety. The ninth species is literally a casting of lots; two images of the gods, one of silver, and one of iron, are thrown into a large earthen jar; or two pictures of a deity, one on white, and the other on black cloth, are rolled up in cow-dung, and thrown into a jar: if the man. on putting in his hand, draws out the silver image, or the white picture, he is deemed innocent; if the contrary, guilty. The religious ceremonies with which these trials are performed it would be tedious and unprofitable to relate.410

The qualities desirable in a Body of Law may all be summed up under two comprehensive titles; I. Completeness; II. Exactness.

Completeness has a reference to the matter: Exactness to the form.

I. A body of laws may be said to be Complete, when it includes every thing which it ought to include; that is, when all those rights, the existence of which is calculated to improve the state of society, are created; and all those acts, the hurtfulness of which to the society is so great as to outweigh the cost, in all its senses, necessary for preventing them, are constituted offences.

II. A body of laws may be said to be Exact; 1. when it constitutes nothing a right, and nothing an offence, except those things precisely which are necessary to render it Complete; 2. when it contains no extraneous matter whatsoever; 3. when the aggregate of the powers and privileges which ought to be constituted rights, the aggregate of the acts which ought to be constituted offences, are divided and sub-divided into those very parcels or classes, which beyond all others best adapt themselves to the means of securing the one, and preventing the other; 4. when it defines those classes, that is, rights and offences, with the greatest possible clearness and certainty; 5. when it represses crimes with the smallest possible expense of punishment; and 6. when it prescribes the best possible form of a judicatory, and lays down the best possible rules for the judicial functions.

To show in what degree the Hindu law approaches, or recedes from, the standard of Completeness, would require a more extensive survey of the field of law, than consists with the plan of the present work.

That it departs widely from Exactness, in every one of the particulars wherein exactness consists, enough has already been seen to make abundantly apparent. 1. It creates a great many rights which ought to have no existence; and acts, which ought not to be erected into offences, it does so erect in great numbers. 2. It abounds in extraneous matter. 3. The division and arrangement of the matters of law are highly imperfect. 4. The definitions are so far from excluding darkness and doubt that they leave almost every thing indefinite and uncertain. 5. Punishments are not repressed, but abound; while there is the most enormous excess in the quantity of punishment. 6. The form of the judicatory is bad, as are a certain proportion of the rules for the mode of performing the judicial services.

In respect to definitions, the Hindu law is in a state which requires a few words of elucidation. Prior to the art of writing, laws can have little accuracy of definition; because when words are not written, they are seldom exactly remembered; and a definition whose words are constantly varying is not, for the purposes of law, a definition at all. Notwithstanding the necessity of writing to produce fixed and accurate definitions in law, the nations of modern Europe have allowed a great proportion of their laws to continue in the unwritten; that is, the traditionary state; the state in which they lay before the art of writing was known. Of these nations, none have kept in that barbarous condition so great a proportion of their law as the English. From the opinion of the Hindus that the Divine Being dictated all their laws, they acknowledge nothing as law but what is found in some one or other of their sacred books. In one sense, therefore, all their laws are written. But as the passages which can be collected from these books leave many parts of the field of law untouched, in these parts the defect must be supplied either by custom, or the momentary will of the judge. Again, as the passages which are collected from these books, even where they touch upon parts of the field of law, do so in expressions to the highest degree vague and indeterminate, they commonly admit of any one of several meanings, and very frequently are contradicted and opposed by one another. When the words in which laws are couched are to a certain degree imperfect, it makes but little difference whether they are written or not: Adhering to the same words is without advantage, when these words secure no sameness in the things which they are made to signify. Further, in modern Europe, the uncertainty adhering to all unwritten laws, that is, laws the words of which have no certainty, is to some degree, though still a very imperfect one, circumscribed and limited, by the writing down of decisions. When, on any particular part of the field, a number of judges have all, with public approbation, decided in one way; and when these decisions are recorded and made known, the judge who comes after them has strong motives, both of fear and of hope, not to depart from their example. The degree of certainty, arising from the regard for uniformity, which may thus be produced, is, from its very nature, infinitely inferior to that which is the necessary result of good definitions rendered unalterable by writing. But such as it is, the Hindus are entirely deprived of it. Among them the strength of the human mind has never been sufficient to recommend effectually the preservation, by writing, of the memory of judicial decisions. It has never been sufficient to create such a public regard for uniformity, as to constitute a material motive to a judge. And as kings, and their great deputies, exercised the principal functions of judicature, they were too powerful to be restrained by a regard to what others had done before them. What judicature would pronounce was, therefore, almost always uncertain; almost always arbitrary.

In a Judicatory, the qualities desirable are; 1. intelligence; 2. good design: and that is the best judicatory in which the best securities are taken for them. In the judicatories of the Hindus, composed of the king and his Brahmens, or the Brahmens alone, there is no security for either the one or the other; and accordingly neither the one nor the other almost ever appears.

The qualities desirable in the forms of judicial procedure, are, 1. efficiency; 2. freedom from delay; 3. freedom from trouble and expense. In these several respects the system of the Hindus displayed a degree of excellence not only far beyond itself in the other branches of law, but far beyond what is exemplified in more enlightened countries. 1. The efficiency of the Hindu system of judicial procedure is chiefly impaired by those rules of evidence the badness of which has already been pointed out: 2. For preventing delay, it enjoys every requisite, in its method of immediate, direct, and simple investigation: 3. In the same method is included all that is requisite for obtaining the judicial services with the smallest portion of trouble and expense.410a

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CHAP. V.

The Taxes.

The form of the government is one, the nature of the laws for the administration of justice is the other, of the two circumstances by which the condition of the people in all countries is chiefly determined. Of these two primary causes no result to a greater degree ensures the happiness or misery of the people, than the mode of providing for the pecuniary wants of the government, and the extent to which the agents of government, of whatever kind, are enabled to divide among themselves and their creatures, the annual produce of the land and labour of the community.

The matters of detail, which by their number and uncertainty have so exceedingly perplexed the servants of the Company, in the financial operations of the Indian government, cannot here be described. The general outline, and the more important effects, of that system of taxation which is described in the ancient books, are all that falls within the design of an account of the ancient state of the people. 1. “Of grain,” says the ordinance of Menu, “an eighth part, a sixth, or a twelfth may be taken by the king;” to be determined, adds the gloss of the commentator Culluca, “by the difference of the soil, and the labour necessary to cultivate it.”411 2. “He may also take a sixth part of the clear annual increase of trees, flesh-meat, honey, clarified butter, perfumes, medical substances, liquids, flowers, roots and fruit, of gathered leaves, potherbs, grass, utensils made with leather or cane, earthern pots, and all things made of stone.”412 3. “Of cattle, of gems, of gold and silver, added each year to the capital stock, a fiftieth part may be taken by the king.”413 4. “Having ascertained the rules of purchase and sale,” says the law, “the length of the way, the expenses of food and of condiments, the charges of securing the goods carried, and the neat profits of trade, let the king oblige traders to pay taxes on their saleable commodities; after full consideration, let a king so levy those taxes continually in his dominions, that both he and the merchant may receive a just compensation for their several acts.”414 5. “Let the king order a mere trifle to be paid, in the name of the annual tax, by the meaner inhabitants of his realm who subsist by petty traffic: 6. By low handicraftsmen, artificers, and servile men, who support themselves by labour, the king may cause work to be done for a day in each month.”415 It is added; 7. “A military king, who takes even a fourth part of the crops of his realm at a time of urgent necessity, as of war or invasion, and protects his people to the utmost of his power, commits no sin. 8. The tax on the mercantile class, which in times of prosperity must be only a twelfth part of their crops, and a fiftieth of their personal profits, may be an eighth of their crops in a time of distress, or a sixth, which is the medium, or even a fourth in great public adversity; but a twentieth of their gains on money and other moveables is the highest tax: serving men, artisans, and mechanics, must assist by their labour, but at no time pay taxes.”416

In these several articles is found an enumeration of all the objects of taxation; and a general expression of the modes and degrees of impost. We perceive taxes on the produce of land, taxes on the produce of labour, a tax on accumulation, a tax on sales, and poll taxes. In article 1., is exhibited a tax on the produce of land; In article 2., a tax both on the produce of land, and on the produce of labour; In article 3., is a tax on accumulation, at least in certain commodities; In article 4., is a tax on purchases and sales; In article 5., is one sort of poll tax; In article 6., is another.

There are two primary qualities desirable in a system of taxation; and in them every thing is included.

The First is, to take from the people the smallest quantity possible of their annual produce.

The Second is, to take from them that which is taken with the smallest possible hurt or uneasiness.

I. Of taking from the people more than enough of the matter of wealth, the causes are two; 1st. When the government consumes beyond the smallest amount sufficient to obtain the services which it yields; 2d. When the collection of the taxes themselves costs more than the lowest sum at which, without sacrificing greater advantages, it is capable of being performed.

II. Of the hurt and uneasiness, beyond the loss of what is taken away, which a system of taxation is liable to produce, the causes seem to be; 1. Uncertainty; 2. Inequality; 3. Impediment to production; 4. Injury to the good qualities, bodily or mental, of the people.

Of the first head and its subdivisions, no illustration is necessary; and a few words will suffice for the second.

1. Uncertainty may arise from two sources; 1. Uncertainty in the meaning of the words, by which the tax is defined; 2. Uncertainty in the circumstances upon which the amount of the tax is made to depend; as if it were made to depend upon the weather, or the state of a man's health. Uncertainty in the meaning of the words opens a door to oppression and fraud, on the part of the collector. He will exact the largest sum consistent with the words, if he is not bribed; the lowest, if he is. Uncertainty, from whatever source, is a cause of uneasiness. The mind is continually haunted with the idea of the worst, and with all the fears which attend it; fears, often very great and tormenting. As often as a source of chicanery is opened about the amount which the contributor should pay, a source of extortion is opened, and a source of oppression, necessary to effect the extortion.

2. Of the unequal partition of taxes, the necessary consequence is, a greater quantity of suffering, than the same amount of taxes would produce, if more equally imposed; because the pain of the man who pays too much is out of all proportion greater than the pleasure of the man who pays too little. To make the burthen of taxes equal, it should be made to press with equal severity upon every individual. This is not effected by a mere numerical proportion. The man who is taxed to the amount of one tenth, and still more the man who is taxed to the amount of one fifth or one half, of an income of 100l. per annum, is taxed far more severely, than the man who is taxed to an equal proportion of an income of 1000l. and to a prodigious degree more severely than the man who is taxed to an equal proportion of 10,000l. per annum.

3. On the mischievousness of all taxes which impede production, it is needless to enlarge. It is only necessary to make them known, or rather acknowledged. 1. Of this sort, are all taxes which take away any part of that property which has been already employed, as capital; because there is always more or less of difficulty in replacing it from the fund destined for immediate consumption. 2. Of this sort also are all taxes which create any encouragement whatsoever, or any discouragement whatsoever, to any particular employment of capital in respect to other employments; for as capital is always carried by a strong impulse to that employment which is the most productive, every thing which turns it out of the course which it would take of its own accord, turns so much of it out of a more, into a less productive channel.

4. That all taxes ought to be shunned which tend to lessen the amount of useful qualities in the people, will not be contradicted. Taxes upon medicines have a tendency to diminish health and strength. Taxes upon innocent amusements, as the sports of the field, have a tendency to drive the people to others that are hurtful. Taxes upon articles of consumption not hurtful, which have a tendency to supplant others that are, as tea and sugar to supplant intoxicating liquors, prompt to the consumption of the hurtful. Taxes upon law proceedings are a premium upon the practice of every species of iniquity. Lotteries are a direct encouragement to a habit of mind, with which no useful tendency can easily coexist. And all taxes, of which the quantity due is not clear and certain, train the people, by continual practice, to a state of hardened perfection in mendacity, fraud, and perjury.

1. In the above list of the sacred ordinances concerning taxes, the first relates entirely to the tax on the produce of the soil. It offends against the rule of certainty to a high degree. The amount varies as one to one half; and the variation is made to depend upon circumstances the uncertainty of which opens a boundless field to all the wretched arts of chicanery and fraud on the part of the people, and all the evils of oppression on the part of the collectors. As the determination of the circumstances on which the amount of the assessment depends belongs of course, in such a state of society as that of the Hindus, to the agents of the treasury, a free career is afforded to all the baneful operations of favour and disfavour, of bribery and corruption. Whenever an option is granted between a less exaction and a greater, the violent propensity of all imperfect governments to excess in expense is sure in time to establish the greater. It would appear accordingly that a sixth part of the produce became the uniform tax in Hindustan; and that the indulgence in favour of the barren soils was extinguished. This is the state in which it was found by the Mohammedan conquerors.417 And in Sacontala,418 the king is described, at a much earlier period, as “that man whose revenue arises from a sixth part of his people's income.” The source of variation and uncertainty from these causes was prodigiously enlarged by the power reserved to the king, of taking even a fourth of the crops, in times of distress. As he was himself the judge of these times of necessity, we may believe that they were of pretty frequent occurrence.

2. In the second of these fiscal ordinances, a variety of products are enumerated, which, in a rude age, are either the spontaneous produce of the soil, as flowers, roots, grass; or obtained from the spontaneous produce, by some very simple process; as perfumes and medical substances, by expression; flesh-meat and honey, by killing the animals which produce them; and these, as costing little in point of labour, are all taxed at the highest rate imposed upon grain. By one of those capricious arrangements which abound in the institutions of a rude people, utensils made of leather, cane, earth, and stone, in the production of which labour is the principal agent, are placed under the same exaction as the spontaneous productions of the soil. The consequence must have been to render these commodities proportionably dear.

In the execution of this ordinance, there must have been excessive uncertainty, and excessive expense. What is meant by “the annual increase?” The “annual produce of trees” is an absurd expression: Trees grow not by the year. What shall be said of such expressions, as “the annual produce,” of “clarified butter,” “of flesh-meat,” “of flowers?” These are not commodities, which continue accumulating, till the amount of the annual produce is seen entire at the end of the year: but commodities daily brought into existence and daily consumed. To collect the tax upon such commodities, a daily visit in every family would hardly suffice. In the execution of this ordinance, the temptation to the incessant practice of all the arts of fraud, on the part of the people, and the powers of oppression bestowed upon the collectors, were well calculated to fill society with immorality and suffering.

In the third of the above ordinances are enumerated the principal classes of moveables known to the Hindus. It seems to be the addition made in any year to the previous stock, and not the previous stock itself, of which one fiftieth is taken in the way of tax. In a society, full of knowledge and industry, this would have been a tax upon capital, and therefore mischievous: in Hindustan, where gold, silver, and gems, were most commonly hoarded, and not devoted to production, it would not have been easy to find a less objectionable tax. Unless in a state of society rapidly progressive, or a state in which there is excessive fluctuation of fortunes, that is, excessive misery, it would be a very unproductive tax.

4. In the words of the fourth ordinance is described a tax on all purchases and sales. The circumstances on which the amount is made to depend are so uncertain, as to constitute a great seminary of fraud on the one hand, and a great office of oppression on the other. The tax is also hurtful to production, by impeding circulation; that is, the passage of property from a situation in which it is less, to one in which it is more useful. The mode in which, at least in modern times, it was chiefly raised, that of transit duties, multiplied to excess, obstructed all that encouragement to industry which is afforded by the interchange of commodities, not only between different countries, but one province and another of the same country. As often as property which has been, and is to be, employed as capital, is bought and sold, it is a tax upon capital.

5. A poll tax, when paid in money, or any other common measure of value, is chiefly objectionable on account of its inequality; as the same sum is a very different burthen to different persons.

6. A poll tax paid in labour is somewhat less objectionable in point of equality, though the same portion of his time may be a much greater burthen upon one man than it is upon another. It is chiefly objectionable on account of the loss of time, and of property, which it occasions to those who have it to pay. In a well-ordered society, accordingly, where every man's time and labour are disposed of to the best advantage, it has no place.

Some of these ordinances are modified, or the words rendered a little more precise, in the Gentoo Code translated by Mr. Halhed. The following are examples. If a man purchase goods in his own country, and sell them again there, one tenth of his profit goes to the magistrate. If the purchase took place in a foreign kingdom, and the sale in his own, one twentieth only is the share of the magistrate.419 If a man, having purchased flowers, or roots, as ginger, radishes, and the like, or honey, or grass, or firewood, from another kingdom, sells them in his own, the magistrate is entitled to one sixth of his profits.420 What was the reason of severe exaction in such cases does not appear. Rude times give not reasons. In the days of Menu these taxes appear to have been much more moderate; a fiftieth of mercantile profits being the ordinary, and a twentieth the extraordinary tax.

In this system of taxation, other sources are of small importance; the revenue of the sovereign arises almost wholly from the artificial produce of the land. To understand in what manner the people of Hindustan were affected by taxation, the circumstances of this impost are all that require to be very minutely explored.

The tenure of land in Hindustan has been the source of violent controversies among the servants of the Company; and between them and other Europeans. They first sprung up amid the disputes between Mr. Hastings and Mr. Francis, respecting the best mode of taxing Bengal. And they have been carried on with great warmth, and sometimes with great acrimony, ever since. Of these controversies the account will be due, at the periods when they occur. At present it will suffice to bring to light the circumstances which appear to ascertain the ancient state of the country, in respect to the distribution of property in the land.

In a state of society resembling our own, in which property is secure, and involves very extensive rights or privileges, the affections which it excites are so strong, and give such a force to the associations, by which the idea of it is compacted and formed, that in minds of little range, whose habits are blind and obstinate, the particulars combined together under the idea of property appear to be connected by nature, and not, without extreme injustice, to be made to exist apart.

At different times, however, very different rights and advantages are included under the idea of property. At very early periods of society it included very few: originally, nothing more perhaps than use during occupancy, the commodity being liable to be taken by another, the moment it was relinquished by the hand which held it: but one privilege is added to another as society advances: and it is not till a considerable progress has been made in civilization, that the right of property involves all the powers which are ultimately bestowed upon it.

It is hardly necessary to add, that the different combinations of benefits which are included under the idea of property, at different periods of society, are all equally arbitrary; that they are not the offspring of nature, but the creatures of will; determined, and chosen by the society, as that arrangement with regard to useful objects, which is, or is pretended to be, the best for all.

It is worthy of remark, that property in moveables was established; and that it conveyed most of the powers which are at any time assigned to it; while, as yet, property in land had no existence. So long as men continue to derive their subsistence from hunting; so long, indeed, as they continue to derive it from their flocks and herds, the land is enjoyed in common. Even when they begin to derive it partly from the ground, though the man who has cultivated a field is regarded as possessing in it a property till he has reaped his crop, he has no better title to it than another for the succeeding year.421

In prosecuting the advantages which are found to spring from the newly-invented method of deriving the means of subsistence from the ground, experience in time discovers, that much obstruction is created by restricting the right of ownership to a single year; and that food would be provided in greater abundance, if, by a greater permanence, men were encouraged to a more careful cultivation. To make, however, that belong to one man, which formerly belonged to all, is a change, to which men do not easily reconcile their minds. In a thing of so much importance as the land, the change is a great revolution. To overcome the popular resistance, that expedient which appears to have been the most generally successful, is, to vest the sovereign, as the representative of the society, with that property in the land which belongs to the society; and the sovereign parcels it out to individuals, with all those powers of ownership, which are regarded as most favourable to the extraction from the land of those benefits which it is calculated to yield. When a sovereign takes possession of a country by conquest, he naturally appropriates to himself all the benefits, which the ideas of his soldiers permit.

In many of the rude parts of Africa, the property of the land is understood to reside in the sovereign; it is in the shape of a donation from him, that individuals are allowed to cultivate; and when the son, as is generally the case, succeeds to the father, it is only by a prolongation of the royal bounty, which, in some places at least, is not obtained without a formal solicitation.422 It is known, that in Egypt the king was the sole proprietor of the land; and one-fifth of the produce appears to have been yielded to him as revenue or rent.423 Throughout the Ottoman dominions, the Sultan claims to himself the sole property in land.424 The same has undoubtedly been the situation of Persia, both in ancient and modern times.425 “It is established,” says the late intelligent Governor of Java, “from every source of inquiry, that the sovereign in Java is the lord of the soil.”426 And when the fact is established in regard to Java, it is established with regard to all that part of the eastern islands, which in point of manners and civilization resembled Java. It is not disputed that in China the whole property of the soil is vested in the Emperor.427 By the laws of the Welsh, in the ninth century, all the land of the kingdom was declared to belong to the king;428 and we may safely, says Mr. Turner, believe, that the same law prevailed while the Britons occupied the whole island.429

To those who contemplate the prevalence of this institution, among nations contiguous to the Hindus, and resembling them in the state of civilization, it cannot appear surprising, that among them, too, the sovereign was the lord of the soil. The fact is, indeed, very forcibly implied, in many of the ancient laws and institutions. “Of old hoards,” says one of the ordinances of Menu, “and precious minerals in the earth, the king is entitled to half by reason of his general protection, and because he is the supreme lord of the soil.”430 The king, as proprietor, and as fully entitled to an equitable return for the land which he has let, is empowered to punish the cultivator for bad cultivation. “If land be injured, by the fault of the farmer himself, as if he fails to sow it in due time, he shall be fined ten times as much as the king's share of the crop, that might otherwise have been raised; but only five times as much, if it was the fault of his servants without his knowledge.”431 Among other ancient memorials of Hindu institutions and manners, are certain inscriptions engraved on durable materials. Some of them are records of grants of land, commonly to favourite Brahmens; and they afford strong indication of the proprietary rights of the sovereign. The sovereign gives away villages and lands, not empty, but already occupied by cultivators, and paying rent.432 It appears from an ordinance of Yagyawalcya, one of the most sacred of the law sages, that the kings alienated the lands within their dominions, in the same manner, and by the same title, as they alienated any portion of their revenues.433 On this point, it is of material importance to remark, that up to the time, when the interests of the Company's servants led them to raise a controversy about the rights of the Zemindars, every European visitor, without one exception that I have found, agrees in the opinion, that the sovereign was the owner of the soil.434

Wherever the Hindus have remained under the influence of their ancient customs and laws, the facts correspond with the inference which would be drawn from these laws. Under the direction of the Governor-General of Bengal, a journey was undertaken, in the year 1766, by Mr. Motte, to the diamond mines in the province of Orissa. In a narrative of his journey, he gives an account of the distribution of the land at Sumbhulpoor, which till that time had remained under the native government. Each village being rated to the government at a certain quantity of rice, which is paid in kind, the land is thus divided among the inhabitants: To every man, as soon as he arrives at the proper age, is granted such a quantity of arable land as is estimated to produce 242 1/8 measures of rice, of which he must pay 60 3/8 measures, or about one-fourth to the rajah or king. Mr. Motte adds; “The reserved rent of three or four villages, being one-fourth the produce of the land, is applied to the use of the rajah's household. The reserved rent of the rest is given to his relations or principal servants, who by these means have all the inhabitants dependent on them.”435 Dr. Buchanan gives a particular account of the manner in which the crop, in those parts of India which are most purely Hindu, is divided between the inhabitants and the government. In Bengal it is not allowed to be cut down till the rent or tax is first paid: but in those countries to which his journey principally relates, it is the custom, after the grain has been thrashed out in the field, to collect it into heaps, and then to divide it. A heap generally consists of about 110 Winchester bushels, of which he presents the following distribution as a specimen of the partition which is usually made. For the gods, that is, for the priests at their temples, are deducted five seers, containing about one-third of a Winchester gallon each; for charity, or for the mendicant Brahmens, an equal quantity; for the astrologer and the Brahmen of the village, one seer each; for the barber, the potmaker, the washerman, and the Vasaradava, who is both carpenter and blacksmith, two seers each; for the measurer, four seers; for the Aduca, a kind of beadle, seven seers; for the village chief, eight seers, out of which he has to furnish the village sacrifices; and for the accomptant, ten seers. All these perquisites are the same, whatever be the size of the heap beyond a measure of about twenty-five Winchester bushels. When these allowances are withdrawn the heap is measured; and for every candaca which it contains, a measure equal to 5 1/20 Winchester bushels, there is again deducted half a seer to the village watchmen, two and a half seers to the accomptant, as much to the chief of the village; and the bottom of the heap, about an inch thick, mixed with the cow-dung which in order to purify it had been spread on the ground, is given to the Nirgunty, or conductor of water. These several deductions, on a heap of twenty candacas, or 110 Winchester bushels, amount to about 5 1/4 per cent. on the gross produce. Of the remainder, 10 per cent. is paid to the collectors of the revenue, as their wages or hire; and the heap is last of all divided into halves between the king and the cultivator.436

From these facts only one conclusion can be drawn, that the property of the soil resided in the sovereign; for if it did not reside in him, it will be impossible to show to whom it belonged. The cultivators were left a bare compensation, often not so much as a bare compensation, for the labour and cost of cultivation: they got the benefit of their labour: all the benefit of the land went to the king.437

Upon the state of facts, in those places where the present practices of the Hindus have not been forced into a disconformity with their ancient institutions, the fullest light has been thrown, by those servants of the Company, who made the inquiries requisite for the introduction of a regular system of finance, into the extensive regions in the south of India added to the British dominions during the administrations of the Marquisses Cornwallis and Wellesley. Place, Munro, Thackeray, Hodgson, were happily men of talents; sufficiently enlightened to see the things which were before them with their naked eyes; and not through the mist of English anticipations. From the reports of these meritorious gentlemen, presented to their superiors, the Committee of the House of Commons, which inquired into East India affairs in 1810, have drawn the following as a general picture: “A village, geographically considered, is a tract of country, comprising some hundreds, or thousands, of acres of arable and waste land. Politically viewed, it resembles a corporation, or township. Its proper establishment of officers and servants consists of the following descriptions: The Potail, or head inhabitant, who has the general superintendance of the affairs of the village, settles the disputes of the inhabitants, attends to the police, and performs the duty of collecting the revenues within his village: The Curnum, who keeps the accounts of cultivation, and registers every thing connected with it: The Tallier and Totie; the duty of the former appearing to consist in a wider and more enlarged sphere of action, in gaining information of crimes and offences, and in escorting and protecting persons travelling from one village to another; the province of the latter appearing to be more immediately confined to the village, consisting, among other duties, in guarding the crops, and assisting in measuring them: The Boundaryman, who preserves the limits of the village or gives evidence respecting them in cases of dispute: The Superintendant of water courses and tanks, who distributes the water for the purposes of agriculture: The Brahmen, who performs the village worship: The Schoolmaster, who is seen teaching the children in the villages to read and write in the sand: The Calendar Brahmen, or astrologer, who proclaims the lucky, or unpropitious periods for sowing and thrashing: The Smith, and Carpenter, who manufacture the implements of agriculture, and build the dwelling of the ryot: The Potman or potter: The Washerman: The Barber: The Cow-keeper, who looks after the cattle: The Doctor: The Dancing Girl, who attends at rejoicings; The Musician, and the Poet.

“Under this simple form of municipal government, the inhabitants of the country have lived, from time immemorial. The boundaries of the villages have been seldom altered: and though the villages themselves have been sometimes injured, and even desolated, by war, famine, and disease, the same name, the same limits, the same interests, and even the same families, have continued for ages. The inhabitants give themselves no trouble about the breaking up and division of kingdoms; while the village remains entire, they care not to what power it is transferred, or to what sovereign it devolves; its internal economy remains unchanged; the Potail is still the head inhabitant, and still acts as the petty judge and magistrate, and collector or renter of the village.”438

These villages appear to have been not only a sort of small republic, but to have enjoyed to a great degree the community of goods. Mr. Place, the collector in the jaghire district at Madras, informs us, that “Every village considers itself a distinct society; and its general concerns the sole object of the inhabitants at large: a practice,” he adds, “which surely redounds as much to the public good as to theirs; each having, in some way or other, the assistance of the rest; the labours of all yield the rent; they enjoy the profit, proportionate to their original interest, and the loss falls light. It consists exactly with the principles upon which the advantages are derived from the division of labour; one man goes to market, whilst the rest attend to the cultivation and the harvest; each has his particular occupation assigned to him, and insensibly labours for all. Another practice very frequently prevails, of each proprietor changing his lands every year. It is found in some of the richest villages; and intended, I imagine, to obviate that inequality to which a fixed distribution would be liable.”439

The state of taxation is described by the same committee, in the following terms: “By the custom of the Hindu government, the cultivators were entitled to one half of the paddy produce (that is, grain in the husk) depending on the periodical rains. Of the crops from the dry grain lands, watered by artificial means, the share of the cultivator was about two thirds. Before the harvest commenced, the quantity of the crop was ascertained, in the presence of the inhabitants and village servants, by the survey of persons, unconnected with the village, who, from habit, were particularly skilful and expert, in judging of the amount of the produce, and who, in the adjustment of this business, were materially aided by a reference to the produce of former years, as recorded by the accountants of the villages. The quantity which belonged to the government being thus ascertained, it was received in kind, or in money.” Of garden produce, of which the culture was more difficult, a smaller portion was taken; because, if field culture was taxed as much as it could bear, it seems to have been supposed that garden culture, at an equal rate of taxation, could not have been carried on.

“Such,” continue the committee, “were the rights of the ryots, according to the ancient usage of the country. In consequence, however, of the changes introduced by the Mahomedan conquest, and the many abuses which later times had established, the share really enjoyed by the ryots was often reduced to a sixth, and but seldom exceeded a fifth. The assessments had no bounds but those which limited the supposed ability of the husbandman. The effects of this unjust system were considerably augmented by the custom, which had become common with the Zemindars, of sub-renting their lands to farmers, whom they armed with unrestricted powers of collection, and who were thus enabled to disregard, whenever it suited their purpose, the engagements they entered into with the ryots; besides practising every species of oppression, which an unfeeling motive of self-interest could suggest. If they agreed with the cultivators at the commencement of the year, for a rent in money, and the season proved an abundant one, they then insisted on receiving their dues in kind. When they did take their rents in specie, they hardly ever failed to collect a part of them before the harvest time had arrived and the crops were cut; which reduced the ryots to the necessity of borrowing from money lenders, at a heavy interest of 3, 4, and 5 per cent. per month, the sums requisite to make good the anticipated payments that were demanded of them. If, from calamity or other cause, the ryots were the least remiss in the discharge of their rents, the officers of the renters were instantly quartered upon them; and these officers they were obliged to maintain, until they might be recalled on the demand being satisfied. It was also a frequent practice with the renters to remove the inhabitants from fertile lands, in order to bestow them on their friends and favourites; and to oblige the ryots to assist them, where they happened to be farmers, in the tilling of their lands; and to furnish them gratuitously with labourers, bullocks, carts, and straw.”440

The two terms, Ryot and Zemindar, introduced into this passage, are of frequent recurrence in the history of India, and require to be explained. By ryots, are always denoted the husbandmen; the immediate cultivators of the ground. The Persian term Zemindar, introduced by the Mahomedan conquerors, was in Bengal, and certain other parts of India, the name of a certain sort of middleman, between the cultivator who raised the crop, and the king who received the greater part of the net produce. Into the controversy respecting the nature of the interest which the Zemindar possessed in the land with respect to which he performed his function of middle-man, I shall not at present enter. Another occasion will present itself for the examination of that subject. It is here sufficient to say, that in districts, sometimes of greater, sometimes of less extent, a person, under the title of Zemindar, received the share of the produce, which was exacted from the ryot; either by himself, or the persons to whom he farmed the receipts; and paid it over to the sovereign, reserving a prescribed portion to himself. The Zemindar was thus, whatever else he might be, the collector of the revenue, for the district to which he belonged. As the receipt of revenue, in a rude state of government, is a business most dear to the governors, the Zemindar, in order the better to secure this favourite end, was vested with a great share of the powers of government. He was allowed the use of a military force; the police of the district was placed in his hands; and he was vested with the civil branch of judicature. When his district was large, he was a sort of a petty prince. In various places of India, however, the collection of the revenue had never become fixed and hereditary, in the hands of an individual, and the business was transacted between the immediate cultivators, and a man who possessed none but the characteristics of an immediate officer of government.

The committee say, that a rate of taxation much more severe than that which existed under the Hindu governments was introduced by the Mohamedan rulers, and amid the abuses of modern times. For this opinion they have no authority whatsoever. It is, therefore, a mere prejudice. The rate which they mention goes far beyond the scale of the ancient ordinances: And what reason is there to believe that the ancient Hindu governments did not, as the Mohamedan, levy assessments to the utmost limits of the supposed ability of the ryots? In those parts of India which Europeans have found still remaining under Hindu governments, the state of the people is worse, if there is any difference, than where they have been subject to the Mohamedan sway.

The rate established in the ancient ordinances has been regarded as evidence of mild taxation, that is, of good government. It only proves that agriculture was in its earliest, and most unproductive state; and though it paid little, could not afford to pay any more.441 We may assume it as a principle, in which there is no room for mistake, that a government constituted and circumstanced as that of the Hindus had only one limit to its exactions, the nonexistence of any thing further to take. Another thing is certain, that under any state of cultivation, but the very worst, if the whole except a sixth of the produce of a soil, so rich as that of Hindustan, had been left with the cultivator, he must have had the means of acquiring wealth, and of attaining rank and consequence; but these it is well ascertained that the ryots in India never enjoyed.442

Notwithstanding these proofs that the ownership in the land was reserved to the king, this conclusion has been disputed, in favour, 1st, of the Zemindars, and 2dly, of the Ryots. The question with regard to the Zemindars may be reserved till that period of the history, when it was agitated for the sake of practical proceedings on the part of the government. The question with regard to the Ryots belongs peculiarly to this part of the work.

The circumstances, which appear to have misled the intelligent Europeans who have misinterpreted this part of the Hindu institutions, are two; first, the tenure of the ryot or husbandman; and secondly, the humane and honourable anxiety, lest the interests and the happiness of the most numerous class of the population should be sacrificed, if the sovereign were acknowledged as owner of the soil.

But, if this acknowledgment were ever so complete, it is inconsistent neither with the tenure which is claimed in favour of the ryots, nor with the means of their prosperity and happiness. And it it were, the acknowledgment of its previous existence would be no bar to a preferable arrangement; since the sovereign can have a right to nothing which is injurious to his people.

In a situation in which the revenue of the sovereign was increased in proportion to the number of cultivators, and in which a great proportion of the land continued void of cultivators, there would be a competition, not of cultivators for the land, but of the land for cultivators. If a ryot cultivated a piece of ground, and punctually paid his assessment, the sovereign would be far from any wish to remove him, because it would be difficult to supply his place. If the ryot sold the ground to another ryot, or left it to a successor, that is, put another in his place who would fulfil the wishes of the sovereign, he, whose source of fear was the want of a cultivator, had still cause for satisfaction; and seldom, if ever, interfered.

By custom, the possession of the ryot became, in this manner, a permanent possession; whence he was not removed except when he failed to pay his assessment or rent; a possession which he could sell during his life; or leave by inheritance when he died. As far as rights can be established by prescription, these rights were established in India in favour of the ryots. And no violation of property is more flagrant than that by which the tenure of the ryot is annulled.

But, according even to European ideas, a right to cultivate the land under these, and still greater advantages, is not understood to transfer the ownership of the land. The great estates in Ireland, for example, let under leases perpetually renewable, are vendible and inheritable by the leaseholders, without affecting the ownership of their lords; subject, moreover, to a very important restriction, from which the sovereigns in India were free;443 the lords of such estates cannot raise their rents at pleasure; the sovereigns in India enjoyed this privilege, and abused it to excess. The sovereigns in India had not only the ownership, but all the benefit of the land; the ryots had merely the privilege of employing their labour always upon the same soil, and of transferring that privilege to some other person; the sovereign claimed a right to as much of the produce as he pleased, and seldom left to the ryots more than a very scanty reward for their labour.

That ownership in the land justified this extent of exaction, or implies a valid title to any power at variance with the interests of the ryots, is an erroneous inference. Without violating its obligations to the people, a government cannot spend any sum, beyond what is strictly necessary for the performance of the services, which it is destined to render: and it is justified in taking even this sum exclusively from the cultivators of the land, only if that is the mode in which all the qualities desirable in a financial system are the most completely realized.

Those who contend for the privileges of the ryots would no doubt observe, that in this mode of interpretation, we reduce the ownership of the sovereign to an empty name; and that to the admission of it, thus understood, they see nothing to object. The controversy is then at a close. The ownership of the sovereign in the soil, wherever it exists, is, by the principles which constitute the very foundation of government, reduced to the limits above described. And it is no less certain, that all which is valuable in the soil, after the deduction of what is due to the sovereign, belongs of incontestable right to the Indian husbandman.444

The Hindu mode of raising the revenue of the state, wholly, or almost wholly, by taking as much as necessary of the rent of the land, while it is the obvious expedient which first presents itself to the rudest minds, has no inconsiderable recommendation from science itself. Previous to allotment, the productive powers of the soil are the joint property of the community; and hence are a fund peculiarly adapted to the joint or common purposes and demands. If the whole of what is strictly rent were taken away, the application of labour and capital to the land would resemble the application of labour and capital to wood or iron; and the same principles, in both cases, would determine their reward.

But as the expense required for the services of government exceeds not a very small portion of the rent of the land, unless where the quantity is very minute, the greatest possible benefit is derived from the productive powers of the soil, when it is the property of individuals. The benefits of the soil have, accordingly, over the greater part of the globe, been employed, first, to supply in whole, or for the greater part, the necessities of government, next to enrich the individual occupant. The most remarkable exception to this rule is in modern Europe. After the conquests of the Gothic nations, the land was thrown in great portions into the hands of the leading men; and they had power to make the taxes fall where they chose; they took care accordingly that they should fall any where rather than upon the land; that is, upon any body rather than themselves. Further, as their influence over the sovereign made him glad to share with them what he derived from the taxes, they not only threw the burden off their own shoulders, but taxed, as they have continued to do, and sometimes in a progressive ratio, to the present hour, the rest of the community for their benefit.

The objections to the Hindu system of providing for the expenses of government, arise rather from the mode, than the essence.

By aiming at the receipt of a prescribed portion of the crop of each year; and with a very imperfect distinction of the lands of different powers, the Hindus incurred most of the evils which a bad method of raising a tax is liable to produce. They rendered the amount of the tax always uncertain, and its pressure very unequal; they rendered necessary a perfect host of tax-gatherers; and opened a boundless inlet to partiality and oppression on the one hand; to fraud and mendacity on the other. A tax, consisting of any portion of the gross produce of the soil, raises the price of that produce; because the tax raised from the poorest of the cultivated land must be returned, along with the expense of cultivation, in the exchangeable value of its produce. In this manner a tax is levied upon the consumers of corn, which surpasses the sum paid to the government, and enriches the owners of the best land at the expense of the community.445

An expensive mode of raising the taxes is a natural effect of a rude state of society. We are informed by Sully, that the receipt into the French exchequer, in the year 1598, was only thirteen millions of French money; while the sum, dragged out of the pockets of the people, was 150 millions. “The thing appeared incredible,” says the statesman: “but by the due degree of labour, I made the truth of it certain.”446 The proportion was doubtless greater in Hindustan.

Receiving the taxes in kind was a practice which ensured a prodigious expense, and a waste, by which nobody gained. Scarcely any other mode seems to have been known to the Hindus in the time of their ancient institutions; and to a great degree it continued down to the latest period of their history.447 How rude and inconvenient soever this practice must be regarded; we find several nations, who make a considerable figure in the history of the world, who have not in this respect advanced beyond the Hindus. It may not surprise any one, that taxes were raised in kind in the ancient empire of Mexico.448 The greater part, though not the whole, were raised in the same manner, in Persia, even in the time of Darius Hystaspes;449 and the mixture, at least, whatever the proportion, continues to the present day.450 The whole revenue of China, with the exception of some trifling articles, is paid in kind.451

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Part 1 of 3

CHAP. VI.

Religion.

It is difficult to determine whether the constitution of the government and the provisions of law, or Religion, have, among the Hindus, the greatest influence upon the lives of individuals, and the operations of society. Beside the causes which usually give superstition a powerful sway in ignorant and credulous ages, the order of priests obtained a greater authority in India than in any other region of the globe; and this again they employed with astonishing success in multiplying and corroborating the ideas on which their power and consequence depended. Every thing in Hindustan was transacted by the Deity. The laws were promulgated, the people were classified, the government was established, by the Divine Being. The astonishing exploits of the Divinity were endless in that sacred land. For every stage of life from the cradle to the grave; for every hour of the day; for every function of nature; for every social transaction, God prescribed a number of religious observances. And meditation upon his incomprehensible attributes, as it was by far the most difficult of all human operations, so was it that glorious occupation which alone prepared the intense votary for the participation of the Divine nature.

Of so extensive and complicated a subject, as the religion of the Hindus, a very general view can alone be taken here. All that is interesting to the politician and the philosopher, may, however, it is presumed, be confined within a moderate space. The task is rendered difficult by the unparalleled vagueness which marks the language of the Brahmens respecting the nature of the gods, the vast multiplicity of their fictions, and the endless discrepancy of their ideas. Hence it is, that no coherent system of belief seems capable of being extracted from their wild eulogies and legends; and if he who attempts to study their religion is disposed, like themselves, to build his faith on his imagination, he meets with little obstruction from the stubborn precision of Hindu expressions and tenets.

Nothing is more curious than to trace the ideas concerning Divine power which the natural faculties of our race suggest to them at the various stages of their career. In the very rude and imperfect state in which society originated, the human mind can hardly so far enlarge its views as to draw conclusions respecting the universe. Those operations and events of nature, which more immediately concern mankind, and on which their happiness and misery depend, no doubt engage their eager curiosity. The causes of light and darkness, of drought and rain, of the thunder, of the hurricane, of the earthquake, suggest many an anxious inquiry; but to put all the objects of nature, and all the changes which they undergo, into one group of ideas, and to ask whence did the whole proceed, seems to be an operation too complicated, and too far removed from the ordinary track of his ideas, to be one of the first that takes place in the mind of a barbarian.

With regard to that other class of questions, which more easily occur to him, his nature very readily suggests an answer. Prior to experience and instruction, there is a propensity in the imagination to endow with life whatever we behold in motion; or, in general, whatever appears to be the cause of any event. A child beats the inanimate object, by which it has been hurt, and caresses that by which it has been gratified. The sun, which is the cause of day, the savage regards as a beneficent deity. A spirit resides in the storm; the woods and the waters are peopled with divinities; there is a god of plenty, and a god of want; a god of war, and a god of peace; a god of health, and a god of sickness. That this may be considered as a correct outline of the first religion which is suggested to the human mind, the laws of human nature, and the ideas which are found to prevail among rude tribes, appear sufficiently to evince.

But men are not long in making another step in their religious progress. Having made for themselves a theory with respect to the cause of the events which affect them, the origin too of the things which they perceive attracts their curiosity; and from asking the cause, first of one great object, and then of another, they come at last to put the general question, what is the cause and origin of the whole? There are very few, therefore, even among the most barbarous nations, who have not made an attempt to account for the origin of the universe, and in whose religious ideas some species of cosmogony is not involved. But, in answering the question respecting the origin of the universe, it is impossible that men should not be guided by their previous ideas. It follows, that among the divinities, whom they already adored, He, whom they regarded as the most powerful, should be selected as the Maker of the world. Were they placed in circumstances of tolerable tranquillity, this potent God would probably be the sun; were they a people almost constantly plunged in the horrors of war, the god of arms would naturally be their chief divinity. Hence we see that in many nations of Asia, who at an early period seem to have been placed in favourable circumstances, the sun was supreme among the gods, and the great principle of the universe; among the turbulent and warlike tribes who inhabited the north of Europe, Odin, the god of war, was the supreme deity, and author of all things.

The Hindus had made considerable progress beyond the first and lowest stage of human society. It seems common, however, to retain for a long time the ideas which are then implanted; and, rather than eradicate the old to make of them a heterogeneous compound with the new. The Greeks and the Romans did not reject their Jupiter, and Mars, their gods of the mountains, trees, and rivers, when they rose to more comprehensive views of the universe; they only endeavoured to accommodate to these primary conceptions their new apprehensions and conclusions. In like manner, the Hindus have still their Indra, or the god of the firmament, Varuna, or the god of the waters, Rembha, the goddess of love; in the whole, a long and splendid catalogue of thirty-three crore.452

We have translations from the Hindu books of several passages containing accounts of the creation.453 They differ from one another very widely in the minor forms and circumstances; but strongly resemble in the general character, and in the principal ideas. That contained in the sacred volume which bears the name of Menu may be taken as a standard, being more full and circumstantial than any of those which are given us from the Vedas; derived from a work of equal authority with the Vedas themselves, and exhibiting, as drawn up at a later period, the improvement, if any, which the ideas of the people had acquired. It is all vagueness and darkness, incoherence, inconsistency, and confusion. It is one of the most extravagant of all specimens of discourse without ideas. The fearless propensity of a rude mind to guess where it does not know, never exhibited itself in more fantastic and senseless forms.454

Beside accounts of what creation was, we have accounts of the mode in which the Hindu divinity performed the creation. If a man possessing refined and exalted notions of the Divine Nature were to describe the great work of creation, he would have the clearest conviction of his own incompetence; and, as Moses, he would attempt no more than by a few strokes to convey an idea of the magnitude of the task, and of the power and wisdom of him who performed it. If far removed from this degree of knowledge and reflection, he will enter without hesitation upon a minute and detailed description both of the plan, and of its execution. If, however, the society in which he lives has attained any considerable improvement, the process which he conceives will indicate some portion of human wisdom; will, at least, be such as an instructed member of that society, had he infinite power imparted to him, would devise for himself. On the other hand, if a description of the creation presents no idea but what is fantastic, wild, and irrational; if it includes not even a portion of that design and contrivance which appear in the ordinary works of man; if it carries the common analogies of production, in animal and vegetable life, to the production of the universe, we cannot be mistaken in ascribing it to a people, whose ideas of the Divine Being were grovelling.

“The self-existing power,” says Menu, “having willed to produce various beings, first with a thought created the waters.” This is not a despicable conception: but what succeeds? “He placed in these waters a productive seed.” This is one of those analogies to the growth of a plant or an animal which are generally the foundation of the cosmogony of a rude people. What next? The seed becomes an egg; which is a very extraordinary product; a wonderful course, too, for the self-existing power to follow in the formation of the universe. The other steps are not less amazing. In this egg the divine being deposited himself, and there he lay, in a state of inactivity, a whole year of the Creator, that is, according to the Hindus, 1,555,200,000,000 solar years of mortals.455 At the end of this astonishing period he caused by his thought the egg to divide itself, and was himself born in the form of Brahma, the great forefather of all spirits;456 thus, “from That-Which-is, the first cause, was produced the divine male, famed in all worlds, under the appellation of Brahma.”457 This is celebrated in Hindu books as the great transformation of the Divine Being, from neuter to masculine, for the purpose of creating worlds; and under this masculine form of Brahma it was that he effected the rest of creation. The Hindus believe that he was engaged in it for no less than 17,064,000 years.458 Of the two divisions of the egg from which he had just been freed, he framed the heaven above, the earth beneath, and in the midst the subtle ether, the eight regions, and the permanent receptacle of waters. The creation of mind is next described; but this will be more conveniently considered when we come to appreciate the notions of the Hindus in relation to thought. The creation however of man, or at least of the Hindus, is worthy of our particular regard. “That the human race might be multiplied, He caused the Brahmen to proceed from his mouth, the Cshatriya from his arm, the Vaisya from his thigh, and the Sudra from his foot.” The analogy of ordinary descent is again the foundation of this fantastic imagination; and the Hindu could picture to himself the production of a human being, even by the Deity, only in the way of a species of birth. This analogy leads to a still more extravagant conceit for the creation of other races of men, and living creatures. As if “The Mighty Power” could not produce them by his male virtue alone, “He divided his own substance, and became half male, half female. By this female the male half produced Viraj, a demigod and saint; Viraj, by the virtue of austere devotion, produced Menu, another demigod and saint.” Menu again, “desirous,” he says, “of giving birth to a race of men,” produced ten lords of created beings; and these lords produced at his command “seven other Menus, and deities, and the mansions of deities, and great sages, and also benevolent genii, and fierce giants, blood-thirsty savages, heavenly quiristers, nymphs and demons, huge serpents and snakes of smaller size, birds of mighty wing, and separate companions of Pitris or progenitors of mankind; lightnings and thunderbolts, clouds and coloured bows of Indra, falling meteors, earthrending vapours, comets, and luminaries of various degrees; horse-faced sylvans, apes, fish, and a variety of birds, tame cattle, deer, men, and ravenous beasts with two rows of teeth; small and large reptiles, moths, lice, fleas, and common flies, with every biting gnat, and immoveable substances of distinct sorts. Thus was this whole assemblage of moveable and stationary bodies framed by those high-minded beings.”459

But in the Hindu books we find applied to the Divinity a great variety of expressions, so elevated, that they cannot be surpassed even by those of the men who entertain the most sublime ideas of the Divine Nature. In the passage immediately quoted from Menu, he is described as the sole self-existing power, the soul of all beings, he whom the mind alone can perceive, who exists from eternity, and whom no being can comprehend. In a passage from the Brahmanda Purana, translated by Mr. Wilford, he is denominated; “The great God, the great Omnipotent, Omniscient one, the greatest in the World, the great Lord who goes through all worlds, incapable of decay.”460 In a prayer, translated by Mr. Colebrooke, from one of the Vedas, he is called, “the pure Brahme, whom none can apprehend as an object of perception, above, around, or in the midst; the God who pervades all regions, the first-born; he, prior to whom nothing was born; who became all beings, himself the Lord of creatures; he, who made the fluid sky and solid earth, who fixed the solar orb and celestial abode, whom heaven and earth mentally contemplate; the mysterious Being, in whom the universe perpetually exists, resting on that sole support; in whom this world is absorbed, from whom it issues.”461 Without multiplying instances, it may shortly be stated that human language does not supply more lofty epithets of praise than are occasionally addressed to their deities by the Hindus.

To form a true estimate of the religion of this people, it is necessary by reflection to ascertain, what those expressions in the mouth of a Brahmen really mean. We shall incur the risk of completely deceiving ourselves, if, with the experience how naturally vague and general expressions, especially in such abstract and mental subjects, convey the most different ideas, to people in different stages of society, we take the lofty expressions of devotion in Hindu books, as full and satisfactory evidence of lofty conceptions of the Divine Nature. It is well ascertained that nations, who have the lowest and meanest ideas of the Divine Being, may yet apply to him the most sounding epithets by which perfection can be expressed.

In tracing the progress of natural religion, through the different stages of intellectual acquirement, a very important fact is discovered; that language, on this subject, has a much greater tendency to improve, than ideas. It is well known how vile and degrading were the notions of the Divine Nature presented in the fictions of the Greek poets; insomuch that Plato deemed them unfit to be read;462 yet the Brahmens themselves do not surpass the Greek poets in elevated expressions concerning the Deity. Orpheus, early and rude as is the period to which his poetry relates, thus describes the celestial King; “Jupiter, the sovereign; Jupiter, the original parent of all things; and Wisdom, the first procreator; and all-delighting Love: For in the mighty frame of Jupiter all are contained: One power, one godhead: He is the great Regent of all.”463 Cæsar informs us that the Druids among the ancient Gauls delivered many doctrines concerning the nature of the universe, and the powers of the immortal gods;464 and it is remarkable that the Greeks and the Romans were forcibly struck with the similarity between the ideas of the Druids, and those of the Brahmens of India, the Magi of Persia, the Chaldeans of Assyria, and the priests of Egypt.465 The creed of the ancient Germans, as we are informed by Tacitus, was, “that God is the Ruler of all: other things are to him subject and obedient.”466 In the ancient Scandinavian mythology, the Supreme God was described, as, “The author of every thing that existeth; the eternal, the ancient, the living and awful Being, the searcher into concealed things; the Being that never changeth.”467 On the statue of the Egyptian goddess Isis was this inscription; “I am every thing past, every thing present, and every thing to come.”468 The Deity was described by Zoroaster as “The First, the Incorruptible, the Eternal, without generation, without dissolution, without a parallel, the charioteer of all which is good, inaccessible to bribes, the best of the good, the wisest of the wise.”469 The Getes asserted their deity Zamolxis to be the true God, that besides him there was none other, and that to him they went after death, being endowed with spirits immortal.470 Even the rude tribes of America, wandering naked in the woods, “appear,” says Robertson, “to acknowledge a Divine Power to be the maker of the world, and the disposer of all events. They denominate him the Great Spirit.”471 Thus it appears how commonly the loftiest expressions are used concerning the gods, by people whose conceptions of them are, confessedly, mean.472

This important fact, however remarkable, is founded on principles of very powerful operation in the nature of man. The timid barbarian, who is agitated by fears respecting the unknown events of nature, feels the most incessant and eager desire to propitiate the Being on whom he believes them to depend. His mind works, with laborious solicitude, to discover the best means of recommending himself. He naturally takes counsel from his own sentiments and feelings; and as nothing to his rude breast is more delightful than adulation, he is led by a species of instinct to expect the favour of his god from praise and flattery. In an uncultivated mind, how strong this sentiment is, a very superficial knowledge of human nature may convince us. Mr. Foster, in his Travels over land from India, was overtaken by a storm in the Caspian Sea; and remarks that during the danger “every man was imploring the Divine interposition in his own manner and language.” “But my attention,” says he, “was chiefly attracted by a Persian. His ejaculations were loud and fervent; and the whole force of his prayers was levelled at Ali; on whom he bestowed every title that could denote sanctity or military prowess. He called on him, by the name of the Friend of God; the Lord of the Faithful; the Brandisher of the invincible sword; to look down on his servant, and shield him from the impending evil. Thinking also to obtain the more grace with the father, he would occasionally launch out into the praises of his two sons.”473

When the belief is once admitted that the Deity is pleased with panegyric, it is evident to what length the agitated and ignorant votary will speedily be carried. Whatever may be the phrases with which he begins; in a short time, the ardour of his fears incites him to invent new and stronger; as likely to prove more agreeable and prevalent. Even these, by a short use, become familiar to his mind. When they begin to be stale and feeble, he is again prompted to a new invention, and to more violent exaggerations.

Exhausting quickly the powers of his language, he has other expedients in store. The god, on whom his eulogies have been lavished, is that one, among the invisible powers, on whom his interests seem more immediately to depend: This deity is at first panegyrised on account of those operations alone which belong to his own department: The sun is originally applauded only as the Regent of day: the bountiful giver of light, and of all its attendant blessings! But when panegyric on this subject is exhausted, the unwearied adorer opens a new fountain of adulation: The operations of some divinity, whose department most nearly resembles that of the favourite deity, affords some circumstance which, it is imagined, might do honour to that patron god: It is accordingly, as a very artful expedient, immediately detracted from the one, and ascribed to the other: No sooner is the novelty of this new attribute decayed, than the prerogative of some other divinity is invaded, and the great object of worship is invested with a new power or function of nature: This, it is evident, is a fertile discovery: The votary has many articles to add to his list of powers and functions, before he exhausts the provinces of the whole of the gods. He proceeds incessantly, however; adding to the works and dominions of the great divinity one province after another, till at last he bestows upon him the power and functions of all the gods. He is now the supreme deity, and all the rest are subordinate. He is the king of the celestial powers; or, what is still more sublime, their author or father; He from whom their very being and powers are derived. They still, however, retain their ancient departments: and he who was god of the winds remains the god of the winds: he who was god of the waters remains god of the waters. But they are no longer independant deities; they have now a superior, and are regarded in the light of his ministers or agents.

The ingenuity of fear and desire sometimes invents a higher strain of flattery still. The power, which is delegated to so many extraordinary beings, is regarded as a deduction from that which might otherwise be wielded by the supreme. And happy is the man, who first imagines he can inform the Divinity, that no such division and diminution of his power exist: That those supposed agents or ministers are not in reality beings endowed with the powers of the Almighty; that they are those powers themselves; the different modes in which he manifests himself. After this, he is the one God He is all in all: From him every thing begins, in him every thing terminates: He unites all possible attributes: Like time, he has no beginning and shall have no end: All power belongs to him, all wisdom, and all virtue. Such is the progress of the language, not of knowledge and cultivated reason, but of the rude and selfish passions of a barbarian; and all these high and sounding epithets are invented by men whose ideas of the divine nature are mean, ridiculous, gross, and disgusting.

Some of the most enlightened of the Europeans who have made inquiries concerning the ideas and institutions of the Hindus, have been induced, from the lofty epithets occasionally applied to the gods, to believe and to assert that this people had a refined and elevated religion. Nothing is more certain than that such language is far from being proof of such a religion. Yet ingenious men, from whom we have largely derived instruction, appear to have thought that no other proof was requisite; and, as on this evidence they adopted the opinion themselves, thought that others ought to receive it on the same foundation.474

Since the language employed by any people is a very fallacious test of the ideas which they entertain concerning the Divine Nature, it is necessary to investigate the circumstances, in their religious practice or belief, which enable us in any degree to define their vague expressions. Those circumstances are few; but their evidence determinate. They are the operations ascribed to the Divinity, the services reputed agreeable to him, and the laws which he is understood to have ordained. If these correspond with the ideas of infinite power, wisdom, and goodness, we may believe with certainty that the sublime language is the expression of corresponding conceptions; on the other hand, where those operations, services, and laws, are in the highest degree unworthy of a perfect nature, we may be fully assured, that the sublime language is altogether without a meaning, the effect of flattery, and the meanest of passions; and that it is directly suggested, not by the most lofty, but by the most grovelling and base, ideas of the Divine Nature.

Of the host of Hindu Divinities, Brahma, Vishnu, and Siva are the most exalted. Other nations have most frequently carried on the applause of one favourite deity, till they bestowed upon him alone all power in heaven and earth: The Hindus have distributed the creation and government of the universe among those three, denominating Brahma the creator, Vishnu the preserver, and Siva the destroyer.

Of the highest scene of operation in which the Divine Being can be contemplated by mortals, the creation of the universe, the conception, formed by the Hindus, is so far from corresponding with high and noble ideas of the creating power, that it is consistent only with the meanest. This itself is a criterion of a religious system from which there is no appeal.

Of the peculiar functions of Vishnu and Siva no determinate conception appears to have been formed. They are two beings of mighty power, by whom great actions are performed; but there is no distinct separation of their provinces. Whenever indeed we seek to ascertain the definite and precise ideas of the Hindus in religion, the subject eludes our grasp. All is loose, vague, wavering, obscure, and inconsistent. Their expressions point at one time to one meaning, and another time to another meaning;475 and their wild fictions, to use the language of Mr. Hume, seem rather the playsome whimsies of monkeys in human shape, than the serious asseverations of a being who dignifies himself with the name of rational.476 Vishnu is not unfrequently employed in the acts which properly belong only to a destructive power; and Siva is so far from answering to the title bestowed upon him, that he is a divinity hardly less beneficent than Vishnu himself.

In the conception which the Hindus have formed of the government of the world, the visible agency of the Deity is peculiarly required. “I have passed,” says the preserving God, “many births. Although I am not in my nature subject to birth or decay, and am the lord of all created beings, yet having command over my own nature, I am made evident by my own power; and as often as there is a decline of virtue, and an insurrection of vice and injustice in the world, I make myself evident; and thus I appear from age to age, for the preservation of the just, the destruction of the wicked, and the establishment of virtue.”477 “Aty Sechen himself,” says another sacred book, “all knowing as he is, could not number the metamorphoses and different forms under which Vishnu has appeared for the salvation of the universe.”478 Such are the Hindu ideas of the manner in which the power of the Divine Being is exerted in the government of the universe.

Of these visible appearances or incarnations of the divinity, ten, known in the Hindu mythology under the name of avatars, are peculiarly distinguished. The first, which is denominated the avatar of the fish, is thus described.479 At the close of the last calpa, there was a general destruction, occasioned by the sleep of Brahma; his creatures in different worlds being drowned in a vast ocean. The strong demon Hagyagriva came near him and stole the Vedas, which had flowed from his lips. When the preserver of the universe discovered this deed, he took the shape of a minute fish, called sap’hari. A holy king named Satyavrata then reigned. One day, as he was making a libation in the river Critamala, the little fish said to him, How canst thou leave me in this river water, when I am too weak to resist the monsters of the stream who fill me with dread? Satyavrata placed it under his protection in a small vase full of water; but in a single night its bulk was so increased, that it could not be contained in the jar, and thus again addressed the prince: I am not pleased with living in this little vase; make me a large mansion where I may dwell in comfort. The king successively placed it in a cistern, in a pool, and in a lake, for each of which it speedily grew too large, and supplicated for a more spacious place of abode; after which he threw it into the sea, when the fish again addressed him: Here the horned sharks and other monsters of great strength will devour me; thou shouldest not, O valiant man, leave me in this ocean. Thus repeatedly deluded by the fish, who had addressed him with gentle words, the king said, Who art thou that beguilest me in that assumed shape. Never before have I seen or heard of so prodigious an inhabitant of the waters, who like thee has filled up, in a single day, a lake 100 leagues in circumference. Surely thou art the great God whose dwelling was on the waves. Salutation and praise to thee, O first male, the lord of creation, of preservation, of destruction! Thou art the highest object, O supreme ruler, of us thy adorers, who piously seek thee. All thy delusive descents in this world give existence to various beings; yet I am anxious to know for what cause that shape has been assumed by thee. The lord of the universe, loving the pious man, and intending to preserve him from the sea of destruction, caused by the depravity of the age, thus told him how he was to act: In seven days from the present time, O thou tamer of enemies, the three worlds will be plunged in an ocean of death; but in the midst of the destroying waves, a large vessel, sent by me for thy use, shall stand before thee. Then shalt thou take all medicinal herbs, all the variety of seeds; and, accompanied by seven saints, encircled by pairs of all brute animals, thou shalt enter the spacious ark, and continue in it secure from the flood on one immense ocean, without light except the radiance of thy companions. When the ship shall be agitated by an impetuous wind, thou shalt fasten it with a large sea serpent on my horn; for I will be near thee, drawing the vessel with thee and thy attendants. Thus instructed, the pious king waited humbly for the appointed time. The sea, overwhelming its shores, deluged the whole earth; and it was soon perceived to be augmented by showers from immense clouds. He, still meditating on the divine command, and conforming to the divine directions, entered the ship; when the god appeared again distinctly on the vast ocean in the form of a fish, blazing like gold, extending a million of leagues, with one stupendous horn, on which the king, as he had before been commanded, tied the ship with a cable made of a vast serpent. Afterwards the god, rising, together with Brahma, from the destructive deluge, which was abated, slew the demon Hagyagriva.

Such are the operations in the government of the universe which the religious ideas of the Hindus lead them to ascribe to the divine Being. The second appearance or avatar of the Preserver is of the same character, and suggested by similar views. Hirinacheren, a malignant and destructive giant, who delighted in afflicting the earth, at last rolled it up into a shapeless mass, and plunged down with it into the abyss. On this occasion there issued from the side of Brahma, a being shaped like a boar, white and exceedingly small, which in the space of one hour grew to the size of an elephant of the largest magnitude, and remained in the air. This being, Brahma discovered to be Vishnu, who had assumed a body and become visible. Suddenly it uttered a sound like the loudest thunder, and the echo reverberated, and shook all the corners of the universe. Shaking the full-flowing mane which hung down his neck on both sides, and erecting the humid hairs of his body, he proudly displayed his two most exceedingly white tusks: then rolling round his wine-coloured eyes, and erecting his tail, he descended from the region of the air, and plunged head foremost into the water. The whole body of water was convulsed by the motion, and began to rise in waves, while the guardian spirit of the sea, being terrified, began to tremble for his domain, and cry out for quarter and mercy. At length, the power of the omnipotent having divided the water, and arriving at the bottom, he saw the earth lying, a mighty and barren stratum; then he took up the ponderous globe (freed from the water) and raised it high on his tusk: one would say it was a beautiful lotos blossoming on the tip of his tusk. In a moment, with one leap, coming to the surface, by the all-directing power of the Omnipotent Creator, he spread it, like a carpet, on the face of the water, and then vanished from the sight of Brahma.480