Earl Cornwallis to the Court of Directors, 6 March 1793

HONOURABLE SIRS,

... The same principle which induced us to resolve upon the separation of the Talooks prompted us to recommend to you on the 30th March, 1792, the abolition of a custom introduced under the native government, by which most of the principal zemindarries in the country are made to descend entire to the eldest son, or next heir of the last incumbent, in opposition both to the Hindoo and the Mahomedan law, which admit of no exclusive right of inheritance in favour of primogeniture, but require that the property of a deceased person shall be divided amongst his sons or heirs in certain specified proportions. Finding, however, upon a reference to your former orders, that you had frequently expressed a wish that the large zemindarries should be dismembered if it could be effected consistently with the principles of justice, we did not hesitate to adopt the measure without waiting for your sanction. We are happy to find that this measure corresponds so entirely with the sentiments which you have expressed in this paragraph respecting the good policy of dismembering these very large zemindarries, the evils attending which become every day more strongly impressed upon our minds. The zemindars whom the regulation will affect, cannot fail to be satisfied with it, as it leaves them at liberty to divide their property or to allow it to devolve to their heirs after their death, in the proportions to which they are entitled by law, or to keep it entire by devising the whole of it by will to any one of their heirs or relations. There can be no doubt but this regulation will be productive of the desired effect in due course of time, as it is to be presumed that many of the principal landholders, from motives of affection to their children, or with a view to conform to the dictates of the law, will divide the property amongst their sons or heirs, or, by making no will, leave it to devolve to them in the proportions which they may be respectively entitled to inherit.

With respect to your suggestion regarding waste lands, we do not hesitate to offer it as our opinion that any attempt to stipulate for a proportion of their produce would not only be considered a breach of the engagements entered into with the landholders, but that it would greatly counteract, if not altogether damp, that spirit of industry and improvement to excite which is the great object of fixing the tax upon each estate.

It is necessary to apprise you (of what you could not have been aware) that all waste lands form a part of the estates of the different landholders, and the boundaries of the portions of those lands that belong to each individual are as well defined as the limits of the cultivated parts of their property, and that they are as tenacious of their right of possession in the former as the latter.

The waste lands may in general be comprehended under two descriptions. First, those in the level country which are interspersed in more or less extensive tracts amongst the cultivated lands; and secondly, the Sunderbunds (the country along the sea-shore between Hoogly and Megna Rivers) and the foot of the vast range of mountains which nearly encircle your Bengal provinces.

The first-mentioned description of waste ground will be easily brought into cultivation when the zemindars have funds for that purpose, and pro- vided they are certain of reaping the profit arising from the improvement. These lands, however, are not wholly unproductive to them at present. They furnish pasture for the great herds of cattle that are necessary for the plough, and also to supply the inhabitants with ghee (a species of butter) and milk, two of the principal necessities of life in this country. It is true that the lands in this desolate state far exceed what would suffice for the above purposes, but it is the expectation of bringing them into cultivation, and reaping the profit of them, that has induced many to agree to the decennial jumma which has been assessed upon their lands. It is this additional resource alone which can place the landholders in a state of affluence, and enable them to guard against inundation or drought, the two calamities to which this country must ever be liable until the landholders are enabled to provide (as we are of opinion they in a great measure might) by the above-mentioned and other works of art. To stipulate with them, therefore, for any part of the produce of their waste lands would not only diminish the incitement to these great and essential improvements in the agriculture of the country, but deprive them of the means of effecting it. In addition to these weighty objections it would be necessary, in order to obtain any revenue from the waste lands of this description, to enter into innumerable and complicated scrutinies and measurements in the first instance to ascertain the proportions of waste and cultivated lands in each individual estate, and to renew them annually or occasionally to know the progress made in the cultivation of the latter. The altercations and vexatious oppressions, and the great expense, which would inevitably result in settling what proportion of these waste lands should be liable to assessment, and the rates at which they should be taxed, would certainly destroy all ideas of a fixed taxation, and prevent the introduction of that spirit of industry and confidence in our good faith which is expected to result from it. The landholders and cultivators of the soil would continue (as they have hitherto been) little more than the farmers and labourers upon a great estate of which Government would be the landlord. In endeavouring, therefore, to obtain an addition to the public income by reserving a portion of the produce of the waste lands, Government would risk the realizing of the very ample revenue which has been assessed upon the country, and landed property would continue at the very depreciated value which it has hitherto borne.

With respect to the second description of waste lands (the lower parts of the Sunderbunders perhaps excepted) they also include the estates of the individuals with whom the settlement is made. But supposing these lands to be at the disposal of Government, as they have for the most part been covered with forest or underwood from time immemorial, and as the soil is in itself, compared with that of the open country, unproductive, and (besides the labour and expense which would attend the bringing it into cultivation) its produce would be comparatively of little value, from the distance of the high roads and navigable rivers, and the consequent difficulty of bringing it to market.

We are of opinion, therefore, that whilst there is a call for all the labour not only of the present inhabitants, but of the greatest increased population that peace and prosperity can be expected to produce, to bring the waste lands in the open country into cultivation, the labour of any considerable number of people would be unprofitably bestowed upon such wild and inhospitable tracts, supposing it could be directed thereto by the grant of rewards or immunities, or by any other means. When the open country is brought into cultivation, the industry of the people will then of itself be directed to these desolate tracts; but as this cannot be expected to be the case for a long period of years, we think that any premature attention to these objects that might tend in any degree to interfere with the noble system of which you have laid the foundation, would be inconsistent with good policy, and defeat the end which it might be expected to answer.

We think this a proper opportunity to observe that, if at any future period the public exigencies should require an addition to your resources, you must look for this addition in the increase of the general wealth and commerce of the country, and not in the augmentation of the tax upon the land. Although agriculture and commerce promote each other, yet in this country, more than in any other, agriculture must flourish before its commerce can become extensive. The materials for all the most valuable manufactures are the produce of its own lands. It follows therefore that the extent of its commerce must depend upon the encouragement given to agriculture, and that whatever tends to impede the latter destroys the two great sources of its wealth. At present almost the whole of your revenue is raised upon the lands, and any attempt to participate with the landholders in the produce of the waste lands would (as we have said) operate to discourage their being brought into cultivation, and consequently prevent the augmentation of articles for manufacture or export. The increase of cultivation (which nothing but permitting the landholders to reap the benefit of it can effect) will be productive of the opposite consequences. To what extent the trade and manufactures of this country may increase under the very liberal measures which have been adopted for enabling British subjects to convey their goods to Europe at a moderate freight, we can form no conjecture. We are satisfied, however, that it will far exceed general expectations, and the duties on the import and export trade (exclusive of any internal duties which it may in future be thought advisable to impose), that may hereafter be levied, will afford an ample increase to your resources, and without burdening the people or affecting in any shape the industry of the country.

From the proceedings which we shall forward to you by the next dispatch, you will find that we have anticipated your wishes respecting the pattahs to be granted by the landholders to the ryots. It is with pleasure we acquaint you that throughout the greater part of the country specific agreements have been exchanged between the landholders and the ryots, and that where these writings have not been entered into, the landholders have bound themselves to prepare and deliver them by fixed periods. We shall here only observe that, under the new arrangements to which we shall presently advert, the ryots will always have it in their own power to compel an adherence to the agreements by an appeal to the courts of justice, whenever the landholders may attempt to infringe them.

We now come to the very important part of your instructions empowering us to declare the tax assessed upon the lands in the provinces fixed for ever.

From the advices which we have forwarded to you since the date of the latest letter acknowledged in your instructions, you will have perceived that so far from any circumstances having occurred to defeat your reasonable expectations of the result of the settlement, the jumma of it has exceeded the estimated amount, and that every occurrence has tended to confirm and strengthen the decided opinions which we formerly expressed of the expediency of the measure. We are not aware of any material reason that would render it advisable to postpone the declaration, whereas there are a variety of considerations which appear to us to make it highly expedient that the valuable rights and tenures which you have conferred upon the landholders in these provinces should be announced to them without delay. The seasons this year have been remarkably favourable, and abundance reigns throughout the country. The public credit is high, the paper in circulation bearing an interest of 8 per cent. selling at a premium of 1 per cent., and the interest of money is proportionably low. As this paper is in course of payment, there is every ground to expect that the large capitals possessed by many of the natives (which they will have no means of employing when the public debt is discharged) will be applied to the purchase of landed property as soon as the tenure is declared to be secure, and they are capable of estimating what profit they will be certain of deriving from it by the public tax upon it being unalterably fixed. With respect to those landholders with whom a ten years' settlement has been concluded, the announcing to them that their jumma is fixed for ever, will not only incline them to pay their current revenue with cheerfulness, but add to their ability to discharge it by the credit which they will obtain from the increased value of their tenures. On the other hand the declaration will not fail to render the few landholders who have not entered into engagements, eager to secure to themselves the same valuable rights and privileges.

For the above reasons we should think it impolitic to delay the declaration that you have empowered us to make, the announcing of which will, we are persuaded, be considered as the commencement of the era of improvement and prosperity in this country. We shall be particularly careful that the notification is drawn up in the manner you prescribe, and that the terms of it may be calculated to impress the landholders with the value and importance of the rights conferred upon them, and of your solicitude for their welfare and prosperity. We shall likewise, to prevent any further misconception, expressly reserve to you the right of establishing and collecting any internal duties that you may hereafter think proper to impose, and also declare your determination to assess all alienated or rent-free lands that may hereafter revert to Government, or be proved, after a regular trial in a court of justice, to be held under an invalid tenure. We shall further declare (although a clause to that effect has been inserted in the engagements with the landholders) that you do not mean, by fixing the public demand upon the lands, to debar yourselves from the exercise of the right inherent in you as sovereigns of the country, of making such regulations as you may occasionally think proper for the protection of the ryots and inferior landholders, or other orders of people concerned in the cultivation of the lands. A desire to give this notification the consideration, that the importance of it merits, is the reason of its not having been transmitted to you by this dispatch.

We now come to the close of your instructions, 'the watching over and maturing of this system, maintaining under future administrations the energy which has commenced it,' and to the other important points detailed in the paragraphs specified in the margin.

It is with much satisfaction we acquaint you that we have endeavoured to provide for these important points, as well as for the administration of the laws and regulations in general, both civil and criminal. The arrangements which we have adopted for this purpose are contained in the accompanying copy of a minute from the Governor-General recorded in our proceedings of the 11th ultimo, and we have resolved to carry them into execution as soon as the collections for the Bengal year are brought to a close. For the reasons at large which have induced us to adopt these arrangements, as well as for the detail of them, we must refer you to the minute itself. We shall here only state some observations respecting them, as they are immediately connected with the part of your instructions above noticed.

The next object which is most essential to the prosperity of your dominions, is the providing for the due enforcement not only of the regulations respecting the decennial settlement, but of the laws and regulations in general which in any respect affect the rights or property of your subjects. You will observe from the Governor-General's minute that we have anticipated your remark (than which nothing can be more just) that the neglect of instituted regulations has been most noxious to your affairs, and we have long been of opinion that no system will ever be carried into effect so long as the personal qualifications of the individuals that may be appointed to superintend it, form the only security for the due execution of it. In this country, as in every other, security of property must be established by a system upheld by its inherent principles, and not by the men who are to have the occasional conduct of it. The body of the people must feel and be satisfied of this security before industry will exert itself, or the moneyed men embark their capitals in agricultural or commercial speculations. There are certain powers and functions which can never be vested in the same officers without destroying all confidence in the protection of the laws. This remark is particularly applicable to the various functions vested in the present collectors. All causes relating to the rights of the several descriptions of landholders and cultivators of the soil, and all claims arising between them and their securities, have been excepted from the cognizance of the regular courts of justice, and made exclusively cognizable by the collector of the revenue. This officer has of late years been allowed a commission upon the collections, and at all times the realizing of the revenue has been considered as his most important duty, and any failure in the successful collection of it has subjected him to dismission from his office; under such circumstances it was naturally to be expected that the collection of the revenue would be deemed by these officers the most important of their duties, and that all considerations of right would be made subservient to it. Where the power to redress oppressions, and functions that must always have a tendency to promote or screen the commission of them, are united in the same person, a strict adherence to the principles of justice cannot be expected, and still less can it be hoped that the people will feel a confidence of obtaining justice. Upon these and ,other grounds, which are fully detailed in the Governor-General's minute, we resolved to abolish the Maal Adawluts or Revenue Courts, and to withdraw from the Board of the Revenue and the collectors, all judicial powers, thereby confining their duties and functions to the mere collection of the public dues, and to transfer the cognizance of the causes hitherto tried in these courts to the courts of justice.

For a more particular detail of the constitution of these courts we must refer you to the Governor-General's minute, and we shall here only observe that courts of justice are to be continued in each collectorship as heretofore, which are to be denominated Zillah or District Courts, and that the judge thereof is to have cognizance over civil causes of all descriptions that may arise in his jurisdiction, whether of the nature of those termed revenue causes, and hitherto tried in the Revenue Courts, or of the description of those which have been cognizable in the courts of Dewanny Adawlut. We have resolved, likewise, that the collectors of revenue and their officers, and indeed all the officers of Government, shall be amenable to the courts f or acts done in their official capacities, and that Government itself, in cases in which it may be a party with its subjects in matters of property, shall submit its rights to be tried in these courts under the existing laws and regulations. That these courts may have complete authority over all persons residing in their jurisdictions, and that natives may be able to procure redress against Europeans with the same facility as the latter can obtain it against the former, we have determined that no British subject (excepting King's officers and the civil and the military covenanted servants of the Company) shall be allowed to reside beyond the limits of Calcutta, without entering into a bond to make himself amenable to the court of justice of the district in which he may be desirous of taking up his abode, in all civil causes that may be instituted against him by natives. The judges of these courts are also to be vested with the powers of magistrates to preserve the peace, and to apprehend and commit offenders to take their trial before the Courts of Circuit.

We have likewise resolved to establish four provincial Courts of Appeal at the cities of Patna, Dacca, Moorshedabad, and Calcutta; each of these courts to be superintended by three judges: an appeal to lie to them in all cases whatsoever from the decisions of the Zillah or District and the City Courts within their respective jurisdictions. The appellate jurisdiction of these courts is to extend over the same districts as are now comprehended in the jurisdictions of the Courts of Circuit, and are as follows: . . .

The city of Calcutta being under the jurisdiction of the Supreme Court of Judicature, the provincial Courts of Appeal will not have cognizance of any civil or criminal causes arising in it.

The decrees of the provincial Courts of Appeal are to be final in all causes of personal property not exceeding in value one thousand rupees, and in suits for real property being malguzary, or paying revenue to Government, where the annual produce shall not exceed five hundred rupees, and in causes for lakerage property (that is, paying no revenue to Government) where the annual produce shall not exceed one hundred. All decisions respecting personal or real property in causes exceeding the above amounts are to be appealable to the Supreme Board as a Court of Appeal in the last resort, and in their capacity of a Court of Sudder Dewanny Adawlut.

We have likewise resolved that the judges of the provincial Courts of Appeal shall be judges of Circuit in their respective divisions. In this capacity they will exercise the same powers and duties as were vested in the judges of the Courts of Circuit on the 3rd December, 1790 (whose offices will consequently be abolished), and will be subordinate to the Supreme Government in its capacity of a Nizamut Adawlut or Superior Criminal Court. The great additional advantage, however, which will result from this arrangement is that the provincial Courts of Appeal will consist of three judges; the senior judge will go the circuit of one-half of the stations within their jurisdiction, whilst the other two perform the circuit of the remainder, and consequently the two annual jail-deliveries will by this means be effected in one-half of the time in which they are accomplished at present by the two judges proceeding together to each station. As to the cities, we have resolved that there shall be a jail-delivery every month, excepting during the time that the judge may be upon the circuit in the districts.
We are, &c.

[Cornwallis]

From: A. Berriedale Keith, ed. Speeches and Documents on Indian Policy, 1750-1921. Vol. I. London: Humphrey Milford, Oxford University Press, 1922, 166-179.