mMm^^.. Ai c Ln -T - 5 = 2 = 5 J -n i> == r- — ( 1 ^^Bll^_ am ■■ H ^^^HB|0E "j^V^amT J^ -- ,*wvl!?r'^^^?*^ ^:s ?^^ ADOPTION versus ANNEXATION: WITH REMARKS ON THE IVIYSORE QUESTION. BY VISHWANATH NARAYAN MANDLIK, PLEADER IN H.M. HIGH COURT, BOMBAY. LONDON : SMITH, ELDER AND CO., 65, CORNHILL. 1866. • * • • • -• • • • • • • • • « » • • (. • « t • « • • • m • • • :•• • . • » TO CO 5 SIR GEORGE RUSSELL CLERK, K.C.B., K.S.L >• □c QC CQ MEMBER OF THE COUNCIL OF INDIA, TWICE (tOVERNOK of BOMBAY, AND KNOWN THEOrOHOUT INDIA AS THE § THESE PAGES, 0:3 o IN TOKEN OF PROFOUND RESPECT, ARE, BY PERMISSION, INSCRIBED BY HIS OBEDIENT SERVANT* THE AUTHOR. 1X^5* 3r>4bo INTKODUCTION. I PROPOSE in the following pages to reply to the observations of Sir Charles Jackson ^ and the Duke of Argyll ^ on the question of annexation, as being determined by what is technically called the law of lapse. That a native of India should enter the lists of political discussion against an ex-judge of the highest Court in India, and against an English Cabinet Minister and possible Governor- General of this country, may at first sight appear strange, if not presumptuous ; but it must be remembered that natives of India are at the same time subjects of the Queen of Great Britain ; of that Queen who / in 1858 pledged her royal word to " respect the rights, dignity and honour of Native Princes as our cwTi," and to " hold ourselves to the natives of our ' A Vindication of the Marquifi of Dalhouales Indian Adminis- J tration, by Sir Charles Jackson, (Smith and Elder,) 18G5. 2 India under Dalliousie and Cannincj, by the Duke of Argyll, (Lougmau aud Co.), 18G5. 1 / Z INTRODUCTION. Indian territories by the same obligations of duty which bind ns to all our other subjects ; and those obligations, by the blessing of Almighty God, we shall faithfully and conscientiously fulfil." Now it will surely be allowed to be the bounden duty of her Majesty's Indian subjects to appreciate this gracious promise, to try to remove all causes of misunderstanding between the governors and the governed, and to assist the good government of this Empire to the best of their power and intelli- gence. The distance between the British people and the natives of India is still unfortunately very great. The interest shown in our affairs by the British Parhament is often wayward and spasmodic. At one time we have measures enacted for us that would do honour to any age or country ; at another we are subjected to treatment incompatible with the rights of f]-ee men. These sudden changes indicate that the views and feelings of the natives of India are not properly made known to British statesmen in England, and hence fail to be appreciated. The natural consequence is a dangerously fitful govern- ment of this vast dependency, by men who have not BufTicient data to go upon, and whose success, or otherwise, must, therefore, be the result of chance. INTRODUCTION. 6 As in the department of natural science we collect particular facts to enable ourselves to form general conclusions, so in history and poHtics likewise, we are led to the discovery of new measures by noting down the results of old ones. The disturbances which commenced in India in 1857, called '* Mutinies " by some, and " Rcbelhon " by others, are a warning to all the friends of progress, English or Indian. There is no doubt a good deal in a name, but we must not be led av/ay by words. As a geologist treats the stratified and unstratified rocks in their order of succession and gradual formation, so has the historian of the world to evolve the account of the different eras from the facts at his disposal. It is the misfortune of India that in all discussions connected with it, it is necessary to begin with first principles. These so often escape the memory of Indian statesmen, and at such convenient times, that there is no evading the tediousness of always recounting them in detail. Like causes must produce like effects, and yet it seems to be taken for granted by a certain section of English politicians, that this rule does not hold good in India. There is no doubt that the extreme pliancy of the Indian mind, and the immense 1—2 4 INTRODUCTION. depths of Indian forbearance and submission, produce appearances which deceive a casual looker- on into the belief that the placid exterior is the true index to the entire views, feelings, and wishes of the community. Those who are content to look at the surface, of course see no further; yet they may be led by this superficiality to build upon a mine. An Englishman regards his house as his castle. An English annexationist is, we suppose, no ex- ception. When he preaches the levelling policy of annexation, and dilates on popular rights, the good of the people, and such plausible stuff, he, of course, imagines himself to be taking high ground. But, wc ask, does he do to others as he wishes others should do to him ? It is one thing to introduce reforms at the expense of others, and quite another thing to do so at the sacrifice of self. Do the annexationists regard other people's rights as they do their own ? Do they suppose that the constitution of man is so changed in India, that the very things which an Englishman hates and despises, an Indian covets and admires ? Is the instinct of self-preservation absent from a Hindu's breast ? If a few unmeaning symbols bo clung to INTllODUCTION. in England as sacred heirlooms, and transmitted to posterity from century to century, as the pride of families, do they suppose that Hindus so essen- tially differ that they have no veneration for family relics, ancestral descent, ancient honours, and, still more, for Kingdoms, Principalities, castles, villages, lands, and offices enjoyed through countless revo- lutions, in a land where everything else has changed ? The Thomasoniau school in Bengal, as well as the Goldsmid-Hart school in Bombay, proceed upon the same benevolent intentions of "improving" landlords "off the face of the earth ;"^ and the hereditary interests connected with the land or with the Government have had a tendency to become more and more widely alienated from the ruling power. Were the royal commission which Mr. Robert Knight asked for in 1859 granted, and evidence of competent witnesses examined on the spot, or, still better, in England itself — if the natives of India could be persuaded to go there — the revelations as 3 Vide Article I., entitled " Oucle," iu the Bombay Quarterly Revieiv, No. XIV. (September, 1858), ascribed to tbe able pen of the late Mr, Justice Kinloch Forbes. See Times of India, September 4tb, 1865. \/ A 6 INTRODUCTION. to the results of the annexation policy in its various departments would, we are sure, be perfectly startUng. One of the greatest misfortunes of the Indian Government is the secrecy with which it works, and the consequent ignorance of both the governors and the governed. The Political and Secret Depart- ments must, as things are at present constituted, be kept distinct, and, to a certain extent, protected from the rude gaze of the public. To a certain extent, I say, for I hold that a Government of India and England combined ought to be so strong in its moral, as well as in its physical force, that it ought to be able to live in the light of day altogether. Secrecy is a mere matter of expediency, and is not, we trust, to be regarded as the 7ie p/ws 2dtra of policy, beyond which statesmen are not to look in governing the destinies of this mighty Empire. Englishmen laugh at the Pope's asserting the infallibility of the Vatican. Are they not con- stituting themselves up as so many Avatars of the Pope, when they, as a nation, will not acknowledge their political mistakes, and frankly offer restitu- tion ? Words are one thing and acts another. When a cause is proved to be in the right, the British Parliament must show practically that it INTliODUCTION. 7 will right the wronged. Were this pnhlicly done, the moral effect of one such truthful act would he equivalent to thousands of bayonets. Truth is always truth, on the banks of the Ganges, as well as on those of the Thames — as well in the Tuileries as at the "Wliite House of Washington. It is, therefore, a mistake for British statesmen to sup- pose that the natives of India are so far different in organization as to be incapable of appreciating and being influenced by truth, social and political, moral and religious. The kindness of nature brings about a state of coma, in which the bleeding of a W'Ounded man ceases for a time, and opportunity is given to tie up the 'wounds, lest they re-open and the patient die. In an ordinary patient this alternation of bleeding and fainting goes on until the wounds are effectually tied up or the man dies. Such, we say, has been the state of wounded India; now bleeding and anon insensible. We are thus at present in a state of moral coma; and it is now for skilful surgeons to apply the bandages and stop the bleeding, and consequent exhaustion of the country. Physical profligacy is, as we are all aware, sooner or later visited with its sad conse- 8 INTRODUCTION. quences. Do the annexationists suppose that moral profligacy will, in the long run, not meet with punishment ? Nature is constant to her laws. Truth is truth, in all matters alike, whether moral or pohtical, and can have but one result, for error is manifold, but truth is only one. Anything that induces the British nation to swerve for one moment from the path of truth, should at all risks be dis- carded. It is with a view to show a lapse from truth, in treating of the questions discussed in the following pages, that this pamphlet has been written and presented to all who take an interest in the welfare of India. / After these pages were written, the papers relating to Mysore, moved for by Sir Henry Rawlin- son, were published. I rejoice to see such a powerful minority of the Indian Council making a stand for political truth, in opposition to the great current A of annexationism. Sir G. Clerk, Sir F. Currie, Sir H. Montgomery, Sir John Willoughby (with whom I differ in some things), and Captain East- wick have, by their fearless Minutes, proved their title to a place in British Indian history, as the friends of truth and justice. Bombay, June 20(lu 1866. ADOPTION V, ANNEXATION. CHAPTER I. THE LAW. \/ Before proceeding to consider the question of lapse, I propose to state briefly the theory and practice of adoption according to Hindu law. This will enable the reader to judge whether the sanction of the British Government to an adoption is re- quired, either according to Hindu law or equity and good conscience. Adoption is the affiliation of a son to perform the adopter's excquial rights, and to inherit his property. Such a son is accounted in Hindu law to be the equal of one born from a man's body. In former times twelve kinds of sons were re- cognized by Hindu law ; * of these, only two are ^ Vyavahdra Mai/ukha, Chapter IV., Section IV,, 41 ; Mitdkshani, Chapter I., Section XL; Smritichandrikd, Section V,, 3, 4 ; Manu, Chapter IX., 158-180. 10 ADOPTION V. ANNEXATION. now allowed, namely, the Aiirasa,^ or the son born to a man, and the Dattcika, or the son given. ^ The ceremony of adoption consists of two parts, the essential and the non-essential. An adoption is invalidated by non-observance of the former, but y/ not of the latter. The essential parts of the cere- mony are the giving and receiving of the boy, and, according to some authorities, the performance of a Homam, or sacrifice to the sacred fire."* Where a woman or S'udra is the adopter, the sacrifice is performed on her or his behalf by the officiating priest.^ This is all that is obligatory on the parties ; the remaining ceremonies are optional. « Aurasa : [From was, the breast] issue of the breast. ' Vyarahdra Mayukha, Chapter IV., Section IV., 46 ; Elpihnstone's India, p. 35, 3rcl edition ; I. Steange's Hindu Law, p. 75, 3rd edition, and the authorities therein cited ; Siu W. Jones's General Note to Mann, Vol. VII. p. 155, of Jones's works by Teignmouth ; Elberling on Inheritance, p, G9 ; Macnaughten's Principles of Hindu Law, pp. 17 and 18, 2nd edition. ■* T. L. Strange's Manual of Hindu Law, Para. lOG ; I. Sir T. Strange's Hindu Lair, 93 — 97 ; Macnaughten's Principles (f Hindu Law, p. G5 ; I. Morley's Digest, p. 19 & 20, Paras. 68, 69, 70, 72, 76, 77 ; Steele's Summary of Hindu Castes and Customs, pp. 52 & 53. 5 Vyarahdra Mayukha, Chapter IV., Section V.,12, 13, 15; Steele, p. 52. THE LAW. 11 They are, 1, the assembling of relatives and friends ; 2, the giving intimation to the Rajah ; 3, / the giving of a madJiuparka {i.e., prepared food, consisting of honey, Hquid butter, and cm*ds) to the Rajah and to the Brahmanas ; 4, feasts to relatives, friends, and Brahmanas, &c. It will be observed that the only place where the Rajah is mentioned is in the second optional ceremony. This has now been tortured into that of obtaining the consent of the Rajah, and is made the foundation of the prac- tice and theory of the law of lapse. I shall now /^ proceed to inquire what this ceremony means, and whether there is any reason to suppose that the Rajah's consent was ever necessary in any case. Manu is the oldest writer on Hindu law of which adoption forms a part. It is stated in the Veda itself that " whatever Manu pronounced is a medicine [for the soul]."'' Let us now see what Manu prescribes on the subject, Manu Chapter IX., p. 168 :— 6 ••-^' " ^^fftf^'TTr^"?:^TTr "^^^T?." See also Babu Pro- SONO C00.MAK Tagoee's Preface to the Vitdda Ckinidmani , p, LXXXIV. 12 ADOPTION V. ANNEXATION. Translation (Sir Wm. Jones's Works, Vol. VIIL, p. 28) : — " He whom his father or mother, with her husband's assent, gives to another as his son, pro- Tided the donee have no issue, if the boy be of the same Gotra, and affectionately disposed, is con- sidered as a son given ; the gift being confirmed by pouring ivater." The italicised portion is from Kullukabhatta's comments. Madana, another authority, thus comments on the above text : — "^ ^^Tn[ Tir? ^5 ftri^ ^^m, Translation:'' — ** The disjunctive 'or' means, that if the mother be not present, the father alone may give him away ; and if the father be dead, the mother the same ; but if both be ahve, then even both." This is the most ancient authority extant, and, except the Ilomam, which follows the gift and the acceptance, there is no obligatory ceremony laid down in the law books. ^ Stokes's Hindu Law Booh, p. 58. THE LAW. 13 S'aunaha, whose directions are observed by all the followers of the Rig Veda,*" declares the mode of adopting a son to consist of the giving and receiving and the sacrifice. I quote the whole passage below, as it will tend to elucidate the subject.^ 8 See the Sanskdra Kaustuhha, leaf 48, p. 1. 9 Borradaile's VyavaMraMaiiuklia,Q\\^\}i&c\N., Section V., 8 : — S'aunoka thus declares the mode of adopting a son : — " I, S'aunaka, now declare the best adoption : one having no male issue or one whose male issue has died having fasted for a son ; having given two pieces of cloth, a pair of earrings, a turban, a ring for the forefinger, to a priest religiously disposed, a follower of Vishnu and thoroughly read in the Vcdas : ha\'ing venerated the king and virtuous Brahmanas by a Madhuparka ; with a bunch of sixty-four stems entirely of the Kusa gi-ass and fuel of the palas4 tree also : having collected these articles, having earnestly invited kinsmen and relations ; ha\ang enter- tained the kinsmen with food ; and especially Brahmanas : having performed the rights commencing with that of placing the consecrated fire and ending with that of purifying the liquid butter ; having advanced before the giver, let him cause to be asked thus, ' give the boy.' The giver being capable of the gift, (should give) to him with the recitation of the five prayers, the initial words of the first of which are Ye Yadmjena, &c. Having taken him by both hands with recitation of the prayer commencing ' Devasya tvd, &c.' having iuaudibly repeated the mystical invo- cation Avgdd ange, &c. : having kissed the forehead of the child : having adorned with clothes and so forth, the boy bearing the reflection of a son : accompanied with dancing songs, and bene- dictory words, having seated \\\m in the middle of the house : 14 ADOPTION V. ANNEXATION. It will be observed that all the preparations for the ceremony are completed, and that what is called "venerating the King and the virtuous Brah- manas " by S'aunaka, is thus a mere formality. Besides, I may mention that the words, *' having venerated the King and virtuous Brahmanas with a Madhuparka," do not occur in the original Sanskrit edition, nor in the authorized Marathi translation published under the auspices of the Government of Bombay. They must, therefore, have been found by Mr. Borradaile in some modern cojiy, and appear to be an innovation introduced by some compiler from what he saw in the Dattaka-Mimansa of Nanda Pandita. The above ceremonial is that from the Mayiikha. A more ancient, and also a more celebrated authority, is Yadnyavalkya, with the comments of Vidnyaneswara. The work is known as the Mitak- shara, which is accounted good law throughout the greater part of Hindustan. Let us see what it has to having according to ordinance offered a burnt offering of milk and curds (to each incantation) witli recitation of the mystical invocation Vaslrd hridd, the portion of llig Veda commencin« ' liihlnjtini, cipii',' and the five prayers of which tlic initial words of tlic first are Sonio ilailal, (fee. lot him close the ceremony." THE LAW. 15 say : — Chapter I., Section XI., verse 13, runs thus : — "The mode of accepting a son for adoption is propounded by Vasishtha : * A person being about to adopt a son, should take an unrcmote kinsman, having convened his kindred, and announced his intention to the King, and having offered a burnt offering with recitation of the holy words in the middle of his dwelling.' " ^° As S'aunaka is the great lawgiver of the fol- lowers of the Rig Veda, so is Baudhayana that of the followers of the Taittin'ija, or the Black Yajur Veda.^i The ceremony of adoption laid down by S'aunaka and Baudhayana generally agrees mtli that prescribed by Vasishtha (as above quoted), with the exception of the Mantras [or sacred verses], with which the sacrifice is enjoined to be performed. These three are the principal Bisliis [or sages], whose rules prevail on this subject at present. Let us inquire what they have to say in regard to the alleged sanction or consent of the king. Baud- hayana and Vasishtha have laid down that after the materials for the ceremonial have been pre- '0 Colebrooke's Mitdksharn, pp. 310 & 311. '1 Dailaka Mimdnsd, Section V., 42 ; Jhitaka Chdndrihd, Section IT,, 16. 16 ADOPTION V. ANNEXATION. pared, &c., &c., and after ^^ inviting and informing the kinsmen before, or in the presence of the Baja," the acceptance of the son should be made. The original of wliich the above italicised passage is my version is as follows : — "^^^^T^^ ?:TiTpr^T^^ or " ^;5r ^j-^-q TT^Pr f%^^." Colebrooke and Sutherland have translated the passage thus : — " having convened his kindred and announced his intention, or made a representation, to the Raja," ^- There is not much difference between their translations and my own, as far as they affect the decision of the question now at issue. Because according to either version, as well as my own, it will be perceived that only an announcement is to be made or an intimation given to the Raja. No sanction is required, and no rule for asking any- body's permission has ever been laid down in any Hindu law-book that is known in this country. 12 Colebrooke's Mitdkshard, Chapter I., Section XI., 13 ; and Sutherland's Dattaka — Chandnkd, Section II., 11 — IG ; and the same anther's version of tlie Vattdka — Mimdnsd, Section V., 81 Sc 42. THE LAW. 17 y Indeed, I cannot well conceive the grounds ou which the monstrous assertion that the Sovereign's sanction is required to render an adoption valid is based. The Vedas and Sliastras lay it dow^n as an obligatory duty on their followers that they shall discharge their duty to their ancestors by begetting a legitimate son, or, where that is impossible, by adopting one.*^ No Sovereign in India has yet ,v^ dared to invade the right which arises from the above duty ; and whatever the East India Company may have done before, I confidently trust that the Queen's Proclamation will now be the palladium of all our rights ; of the high as well as of the low ; of the independent Princes in alliance with the 1' Taittiriifa (or the Black) Yrijnnrda, Aahtahn VI., Prriprithaka III., Anuvdkd, 10 : — ^{i-^: ^^'T ^5>^: ^^^T P?^^: i \^^\ ^\wr TninsUttion : — "A Brahamami immediately on being born, is produced a debtor in three obligations : to the holy saints, for the practice of religious duties ; to the gods for the performance of sacrifice : to his forefathers, for ofi"spring. Or he is absolved from debt, who has a son." Also, Aitavfija Brdhmanam, Book VII., Chapter III., 1 : pp. 100-2 of Dn. Hatjg's TratiKla- tiim. 18 ADOPTION V. ANNEXATION. British Indian Empire, of feudatories and of jah- girdars, as well as of the meanest subjects of the British Raj. Not only is there no authority for holding the position that the Sovereign's sanction is required ; but, on the contrary, I will show further on, that the announcement to the Rajah may be dispensed with, and that the omission of this part of the ceremonial does not invalidate any adoption. Before going to that part of the subject, I will proceed to explain why invitation to kinsmen, and announcement to them, in the presence of the Rajah, are recommended rather than commanded by the lawgivers. Mitakshara, Chapter II. Section XL, treats of what is called Dattdprdddnikam or subtraction of gift, which is thus defined by Narada : — Translation : — " When a man desires to recover a thing, which was not duly given, it is called subtraction of what has been given ; [and this is] a title of administrative justice." ^* !■* Vynivihrhri-Moyukliri, Chaiiiev IX., 1. THE LAW. 19 The italics arc mine. To prevent nndidij given gifts, and consequent litigation, Yaclnyavalkya lays down the following rule : — Translation : — " Acceptance [of a giftj ought to \/ be open ; especially [that] of immovable property. On this Vidnyaneswi'ira (author of the Mitak- shara) remarks :^^ — Translation: — "Acceptance [of a gift] ought to be openly made to prevent [future] litigation ; especially that of immovable property, the taking of which ought to be only in an open manner. Because, immovable property cannot be thus 15 Mitdkshard (Sanskrita Edition. Bombay, 18G3, leaf 71, p. 1 :) Book II., Chapter XI., verse 2. IG //,/,/. 2-2 20 ADOPTION V. ANNEXATION. shown like gold, &c. [which is portable], and can be produced [out of one's possession]." Viramittrodaya, another authority, states : — ^■^3lf?r^i iT^TT ft^^ ^^T ^firS^:— ^^^Tt ^^ Translation : — " At the time of declaring what is Deya {i.e. fit to be given), Yadnyavalkya speaks of a particular rule about acceptance of gifts [thus] : Acceptance [of a giftj ought to be open ; especially that of immovable property; open, [that is] public or in the presence of a number of people ; or, in other words, in the presence of witnesses. About the acceptance of a son, a special mode is [thus] spoken of by Vasishtha : — The acceptor of a son, having invited his kindred, and told them before (or in the presence of) the King, and having performed 17 Soe Calcutta Edition of 1815, loaf 122, p. 2. THE LAW. 21 the sacrifice with the sacred texts called Vydrhiti^^ should take an imremote kinsman " [in adoption]. We see here very plainly the object of the invitation and the announcement. However, to proceed with our authorities. The Sanski'ira Kaustubha by Anantadeva, a work of considerable authority, states that Saunaka is followed by the Eig-vedis and BaudliAyana by the Yajurvedis. It then cites the particulars of the ceremony, w^hich are generally the same as before. As regards inviting the kindred and giving notice to the King, it states thus : — °\ Translation. — " Inviting the Idndred, and, in the midst, announcing before the King." Further on, the same lawgiver amphfies upon the expression ( ( Maine's Ancient Law, p. 190. THE DOCTRINE OF LAPSE. 37 solemnities. If lie marries, it is to have cliiklren who may celebrate them after his death ; if he has no children, he lies under the strongest obligation to adopt them from another famil}^ with a view to the fmieral cake, the water, and the solemn sacrifice. "** Indeed we are told by Colonel Tod that " the laws of Rajpootana, political and religious, admit of no interregnum, and the funeral pyre must be lit by an adopted child, if there be no natural issue." The law and practice as they existed in Central India are similar to the above. One remarkable example is given by Sir John Malcolm,^ from ^ RIaine's Ancient Law, p. 191. 9 Malcolm's Central India, vol. ii., p. 62, note: — " Zaliiu Siugli, the regent of Kotah, on an impression that a compUxiut had been made to me by the relative of a deceased small renter in the district of Baroda, wrote on the 8th July, 1820, to his agent with me, as follows : — ' Tell the General, if the complaint is made, that the usage of this country, when a man dies without children, is to give his estate to his wife, who enjoys it for her natural life. It goes after that to the sons whom she has regularly adopted. In failure of such heir, to the nephew of tho deceased ; and on their failure to the nearest relation.' " I asked the Vakeel, if, by the usage of Kotah, the Government had no right to the property of a man who died without children. His reply was, ' None beyond expressing a desire, that part of the property, if large, should be expended for charitable purposes.' " .*i^4t 38 ADOPTION V. ANNEXATION. which we perceive with what feehngs the right of adoption was regarded ; and which proves that there could be no lapse in the Rajput States. Three other instances of adoption under different circumstances are given by Malcolm/" in none of which the doctrine of lapse or the right of escheat was thought of, or enforced by any Paramount Power, Mahomedan, Hindu, or British. Captain James Grant Duff notices several cases of adoption by native Princes according to Hindu law and the custom of the country." No one at that time thought of aiming at the *' just " accessions of territory, of which Sir Charles Jackson and the Dulse of Argyll are the advocates. The Honourable Mountstuart Elphinstonc, after enumerating the different kinds of sons mentioned by Manu, says,i2 "that the whole of these sons, except the son of a man's body, and his adopted sons, are entirely repudiated by the Hindu law of the present day." The same eminent statesman thus writes, in " Central India, vol. i., pp. 109, IGO, 284. 1^ Amongst others, sec his History of the Mardthds, vol. ii., p. 337 ; vol. iii., pp. 27, 28, 821. '8 Elphinstone $ History of India, 3rd edition, p. 35, note 87. THE DOCTRINE OF LAPSE. 39 1850 : '■« — " There is no native State to which the recognition of its succession by the British Govern- ment was not of the highest importance ; but none ^ of them, I conceive, ever imagined that that Govern- ment had a right to regulate the succession as feudal lord, or had any pretensions to the territory, as an escheat, on the failure of heirs to the reigning family." Again he says, ** Our relations with the /^ principal states (the Nizam, the Peshwa, Sindia, &c.,) were those of independent, equal Powers, and we possessed no right to interfere in their succession, except such as was derived from our treaties with them." Again, Sir Charles [afterwards Lord] Metcalfe, in his celebrated Minute on adoption, states his opinion as follows:^* — ''Those who are Sovereign Princes in their own right and the Hindu rehgion, have, by Hmdu law, a right to adopt, to the ex- . elusion of collateral heirs, or of the supposed rever- sionary right of the Paramount Power ; the latter, in 13 Memoirs of the Hon. Moxmtstuart Elphinstone, by Sir Edwabd Colebrook, Bart, M.P. See Journal of the Royal Asiatic Society' of Great Britain and Ireland, volume xviii., p. 820. 1* Selections from the Papers of Lord Metcalfe, by John W. Kaye, pp. 318 and 310. 40 ADOPTION V. ANNEXATION. fact, in such cases, having no real existence, except in the case of absolute want of heirs, and even A then the right is only assumed in virtue of power, for it would probably be more consistent with right that the people of the State so situated should elect a Sovereign for themselves. *' In the case, therefore, of Hindu Sovereign Princes, I should say that, on failure of heirs male V of the body, they have a right to adopt, to the exclusion of collateral heirs, and that the British .>. Government is bound to acknowledge the adoption, provided that it be regular, and not in violation of Hindu law. The present Maha Kao of Kotah was adopted, and his case affords an instance in wliich the right of adoption in a tributary and protected State was fully discussed and admitted by the British Government as the Paramount Power." I will not weary my readers with further autho- / rities. The Parliamentary Papers of 1850, respecting the Sindia, Holkar, and Dliar successions, are full of similar evidence as to the usage as regards suc- cession by adoption in native States in alliance with the British Government. The opinions and state- ments of Major Stewart and Mr. Sutherland, llesidents at Gwalior ; of Mr. Martin, Sir C. M. THE DOCTRINE OF LAPSE. 41 Wade, Mr. Bax, and Sir R. Hamilton, Residents at Indore ; of Sir John Low, and of the Govern- ment of India itself, up to the Sattara annexation, have all been consonant to Hindu law, and the usage of the country. The last witness I shall therefore cite is the late Earl Canning. In his despatches of the 30th of April, 18G0, Lord Canning whites, " I believe there is no ex- ample, whether in Rajpootana or elsewhere, of a Hindu State lapsing to the Paramount Power by reason of that Power withholding its assent to an adoption;" and again, ''We have not shown, as ''^ far as I can find, a single instance in which adop- tion by a Sovereign Prince has been invalidated by a refusal of assent from the Paramount Power." ^^ The evidence of Captain Shepherd and Sir H. Law- rence, quoted by Mr. Eastwick in the same Mysore Papers (pp. 74, 75) , points also in the same direc- tion. And, in regard to the first case, namely, that of Sattara, dwelt upon by Sir C. Jackson and the Duke of Argyll, I refer them to the speech of Mr. Sullivan at a meeting of the Court of Pro- prietors on that question, and a letter of Mr. 1^ Pojwrs relating to Mysore, p. 74. 42 ADOPTION V. ANNEXATION. Elpliinstone to Sir E. Colebrooke, now published for the first time in the Journal of tlie Royal Asiatic Society.^^ Mr. Willoughby's reasoning in defence of the Sattara annexation receives the coup de grace from this high authority, and the whole web of what Sir Charles Jackson calls " Lord Dalhousie's ' text- book on adoption ' " (p. 12), is torn into shreds. Mr. Elpliinstone says,*^ — '* Mr. Willoughby, and those who adopt his reasoning, proceed to argue that some dependent chiefs are subject to this rule, and, tlierefore, the Rajah is subject to it. They instance many inamdars, jageerdars, &c., but can they show any Prince, who had been acknowledged as a Sovereign, to whom the rule had been applied at the time of the treaty ? Can they deny that there are now many Sovereign Princes under limi- tations similar to those on the Kajah, over whom such a right has never been used or pretended to ? Nobody will say in Parliament that the adoption by Scindia, the Nizam, the King of Oude, &c., would not be legal without our confirmation, or that a son so adopted could not be an heir in the usual sense ifi Vol. xviii., pp. 318 and 311). 17 JhuL, p. 318. THE DOCTRINE OF LAPSE. 43 of the term ; nor will anybody allege, that on the extmction of the famihes of those Princes, their dominions will devolve on us as an escheat. The claims founded on the general usage, therefore, fall to the ground." I give this rather long extract unwillingly ; but it is difficult to condense Mr. Elphiustone's preg- nant sentences ; and the '* text-book on adoption " has been so largely used by the annexationists, that I felt myself bound to let the pubHc have the other side of the question. I could easily give more evidence, if needed, but I forbear. I now ask the reader, whether Sir Charles Jackson is right in saying that the Para- mount Power can go on absorbing the States of its allies in the way he advocates, according to law and usage as they prevail in Hindustan ? That the British Government in India is now stronger than it was a century ago is nothing to the purpose. I am certain it will not wilfully use its strength for wrong. It will never, I trust, leave the path of truth and justice. These, when pointed out, must be its guides. Her Gracious Majesty has intimated to us, in the memorable Proclamation of 1858, how she desires to rule over us, and in what 44 ADOPTION r. ANNEXATION. manner her Government will treat her allies the Princes of India ; and I would beg of her respon- sible advisers to do as they would be done by. I grieve to see that the wisdom of the Proclamation issued by Lord Derby's Cabinet is questioned by a man so right-aiming in other matters as the Duke.^*^ That document has been w^orth more than the 70,000 British bayonets now in India. It is a tower of strength to both countries ; and any statesman who makes light of it is unconsciously sapping Indian faith in the honour of Great Britain. To proceed. — The annexationists must bear in mind that " a weak Power does not surrender its independence and right to self-government by asso- ciating with a stronger, and receiving its protection. This," says Chancellor Kent, '*is the settled doc- trine of the law of nations. "^^ When the Princes of India sought the protection of the British power, did they do so with the view of annihilating themselves ? These Kajalis entered into treaties of perpetual amity and friendship, and trusted to the word, the faith, the honour of ^^ India viulcr Dalhousie and Canniny, by the Duke of Argyll, pp. 105 and 106. •'J Kint on Aniriiraii f.air, vol. iii., p. 511. THE DOCTRINE OF LAPSE. 45 England. Do perpetual amity and friendship mean perpetual jealousy, permanent dread of being levelled to the dust, agreeably to the Mangles' theory ? I am sure that those who are not blinded by a superstitious belief in their own crotchets will give only one reply. The Hindu law, the usage of the country, are clearly in favour of the Princes. Suppose, for a moment, they were neither favour- able to nor against them. Are there no treaties ? If there are, are these not acknowledgments of the sovereignty of these Princes by the British Govern- ment ? That sovereignty may be qualified or un- qualified ; the authority of the Sovereign may extend over five miles or over 50,000 miles — in the eye of the law it is the same. If the Principality is a sovereignty, the succession to its throne can only be regulated by its own internal laws. There cannot be the slightest pretence for a strong allied Power to step in and impose restrictions on the choice of a successor, except in conformity with the law of that State or in accordance with some treaty engagement. Any other kind of interference is illegal and unjust, and is merely the effect of brute force. An ally, although powerful, is only an ally. To talk of Scindia, the Nizam, and such 46 ADOPTION V. ANNEXATION. others as feudatories, as though they were Earls and Dukes, is to institute comparisons between things which differ from one another as the night does from the day. There is no doubt that the British, being the strongest Power, is able to dic- tate in many cases to her weaker neighbours. In the case of successions, it is first consulted, because its countenance settles the question in favour of some candidate, who is sure of his seat on the throne ; and all fear of internal dissensions is re- moved. But where is the argument for annexing States in such circumstances ? As Mr. Ludlow has so tersely put it, if, from the power of consenting ^ to adoptions, you deduce the power of refusing them, and of confiscating the States so circum- stanced, the same doctrine "would authorize the appropriation of partnership interests by copar- ceners of shares in a public company by boards of directors, of the fortunes of wards by their guar- dians, of the fee-simple by a tenant for life : '"■^" I would add, of deposits by bankers, of our children's ^ goods by our neighbours, and of disputed property by the judges adjudicating the claims to it of rival 20 Thoughts on the Policy/ of the Croioi tnn-