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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 ( (<R"Sf) ), Madhye, or in the midst,
used in the above passage : —
'^ The Vijarhitis here mentioned are four : —
'" Leaf 47, p. 2, of the editiou publibhctl at Bombay in
18G1.
-0 Ibid.
22 ADOPTION V. ANNEXATION.
Translation. — "In the midst; that is, in the
presence of the kindred, before the Rajah, the an-
nouncement [is to be made]; this is the object."
The Nirnaya-Sindhu, of Kamalakarabhatta, an-
other work of estabHshed reputation, also bears out
the view above stated.*^
The commentator Krishnabhatta adds: — [''JJ
'3[T^ THJim^ 5r«5"T^*'" ^^ which means " [to]
the Rajah, which [by former writers] is said to
mean the village authority or protector."
From the above authorities it will be clearly
perceived that inviting the kinsmen, and announcing
to them the adoption in the presence of the Rajah is
mill the view of obtaining publicity and preventing
future disputes and litigation : a provision similar
in its intention to having witnesses at marriages.
That this is the proper interpretation of the above
passages is further borne out by other authorities.
Sir Thomas Strange, in his learned work on Hindu
law (already cited), states that, with a view to
certainty, " the law encourages, if it do not stipu-
2» It also states as before "^^•TT"^^ TT'^lf^'^T
•V . . *^
^^ " of which I have given my translation above : sec page iil.
-'^ Nirnaya-lSiiidhu, Parkkheda (or Section) III.
THE LAW. 23
lato for, whatever is calculated to render it public
and solemn. Hence attendance of relations, with
notice to the local magistrate or ruling power of the
place, is expected, but maybe dispensed with." *^
Further authorities for this position arc cited by
that learned judge, to whose works I must refer my
readers.
The word *' Rajah," as used in the above passages,
is explained to be the Gramaswami [i. e., the chief,
head, or lord of the village] by the Dattaka-Mimansa
of Nanda Pandita."
The Dattaka-Chandrika by Devanuda-Bhatta,
[Section II., 3 and 4], mentions that the King should
be venerated by Madhuparka. " If the King be at
a distance, the head man of a village should be in-
vited and thus venerated."
The commentator on the Nirnaya Sindhu also
explains "Rajah" to be the Gramadhisha, or lord
of the village."
That the invitation to relatives and announce-
ment before the Rajah are not indispensable cere-
monies, appears likewise from Steele's commentaries
2s Vol. I., Chapter IV., pp. 94, 95.
2* See Section V., 4, 5, and 6; Stokes, Hindu Law-books.
2^ See the passage referred to in Note 22.
h
24 ADOPTION V. ANNEXATION.
on the law and customs of Hindu castes within the
Dekhan provinces subject to the Presidency of
Bombay, published by order of the late Mountstuart
Elphinstone. ''It is enjoined," says he, "that
notice of an adoption should be given to the rela-
tions mthin the Sagotra Sapindu, and to the Rajah,
though no provision appears in case of their dis-
approbation, even in adoptions by widows." '^^
Mr. Justice Strange, of the High Court of
Madras, also states: — "There should be attend-
ance of relations and notice to the ruling local
authority, and also sacrifice, oblation, and prayer;
but the non-observance of these formalities will not
invalidate an adoption ; saving as respects the
datta-homam, or sacrifice by fire." ^"^
From the above exposition of the law on the
subject, it is clear that adoption consists in the gift
and acceptance of the adopted. A sacrifice follows the
adoption ; but when the adopted is of the same gotra
(clan) with the adopter, it may be dispensed with.*^^
Nobody's consent or sanction is necessary. This
2fi Page 51.
27 Section 106, T. L. Strange's Manual oj Hindu Law,
2u(l Edition.
28 See authorities cited in Note 4.
THE LAW. 25
statement to a Hindu wonlcl appear superfluous,
nay, almost bortlcring on the ridiculous. For the
Vcdas and the Shustras enjoin adoption as a sacred V*
duty. The love of transmitting one's name and
possessions to posterity is not wanting in the Hindu
breast. Tradition and history conspire to strengthen
the desire which the highest commands of religion
and self-interest have invoked. Hence, on the
failure of legitimate male issue, a Hindu, high or
low, a Rajah or a peasant, considers it his right, as
well as his duty, to perform an adoption for the
perpetuation of his family. ^
The law in this respect is the same for all ; and
my remarks are applicable to all the Hindus in-
habiting this vast country, and professing their
allegiance to the Vedas, the Shastras, and the later
law-books binding on my co-religionists. Whether
a man is a Rajpoot, holding sway over an allied
Principality in Rajpootana, or a Maratha, owning
a Raj in Malwa ; whether he is a Chief, holding a
dependent jaghir in the Southern Maratha country,
or a titular Prince like the Rajah of Tanjore ; whether
he is a talookdar in Oude, or a Khote in Southern
Konkan ; whether he is a zemindar in Buudelcund,
or a patil in the Deccan, it matters nothing. The
/\
26 ADOPTION V. ANNEXATION.
Hindu law which I have above stated is the same
for all. The right of a Hindu to adopt is absolute.
^ To say that he can adopt a son to perform his
funeral rights, but that such son cannot inherit that
man's worldly possessions, is a mere mockery. It
is making a distinction without a difference. It is
nothing less than adding insult to injury. In the
case of many of the native Rajahs, such as the
Gaikwar, Sindia, Holkar, the princes of Eajpootana,
and similar Powers in alliance with the British
Government, there is no pretence for British in-
terference with adoptions. There is no authority
in Hindu law, or any other law applicable to the
subject, requiring such Princes to ask the consent
of a stronger friendly Power, which has bomid
itself by solemn treaties not to interfere with their
affairs, and has acknowledged them to be the rulers
of their own territories. Their case seems to me
to be the strongest of all, as I shall show at greater
length hereafter.
I therefore repeat, that a Hindu's right to
adopt a son under the rules laid down in the
Shastras is absolute. Indeed, no Sovereign entitled
to the name has ever yet thought of disturbing this
right, except the late East India Company, and
THE LAW. 27
its Governors and Governors-General. The lament- V
able accounts of the tyranny and misrule prevailing
under the last of the Peshwas, the infamous Baji Rao,
show that he would, and did, confiscate jaghirs and
other private property, for reasons which I should
be ashamed to commit to paper. And if, as Mr. .
Knight says,"'-^ precedents like these are to be treated
as law, there is no reason for attempting to argue
on any subject. For it would amount to this, that
anything might be proved by anything. Sir Charles
Jackson (at page 9) quotes Steele, in support of the
position that " Enamdars and Wuttundars " should
have the consent of the Sirkar or Government for
adoption. But he forgets the law, as it is ex-
pounded on the pages following, viz., that " an
adoption concluded agreeably to the Shastras is not
annullable." And that, according to that and other
authorities, whatever may be the moral effect of
the omission to take such consent, the so-called
consent is not essential to the validity of an adop-
tion, especially when the adoptee is of the same
gotra [i.e., clan]. If, instead of the vague expres-
^9 See The Innm Commiasion unmasked, by Robert Knigut,
Editor of the Bombay Times, page 28.
28 ADOPTION V. ANNEXATION.
} sion, " the law which requires the sanction of the
^ government," Sir Charles Jackson had quoted the
authorities which support him, I should have been
better able to meet each and every one of his pro-
v'^ positions. But during the course of the last fifteen
years of inquiry and research, I have failed to dis-
^ cover even the remnant of any such law. The
authority of such persons as Captain CoTv^er and
Mr. Hart is of no value. The proceedings of the
Enam Commission, which their misapplied talents
supported, have received their due treatment fi'om
Mr. Knight's pen. I wish I could forget the mis-
deeds of this Commission easily ; but this I know,
that any one of them, if attempted in Europe,
would have ruined the reputation of any English
statesman.
I wish natives of India had had the moral
courage to lay unvarnished accounts of their griev-
ances perseveringly before their rulers ; for had these
been freely ventilated, and impartially inquired into,
the mutiny and rebellion would never have occurred.
( '21) )
CHAPTER 11.
TIIK DOCTRINE OF LAPSE.
In the last chapter, I attempted to show what were
the necessary parts of an adoption ; and I then
explained more particularly that the consent of the
King was not required by Hindu law to make the
adoption legal.
I may mention that in regard to adoption, as
well as in reference to all the essential duties
enjoined by Hindu law upon its followers, there is
no distinction between nobleman and gentleman.
The law for all is alike. The Sovereign as well as
the subject are under its equal sw\ay. When the
annexationists, therefore, treat the cases of private V
individuals and Princes as distinct ; nay more, when
they propose to treat one man {i.e. a Prince) in two
ways, in such a matter as adoption, allowing his
sou to succeed to personal, but not to territorial
property, they are bound to show their authority
30 ADOPTION V. ANNEXATION.
for so doing. As above stated, I say the Hindu
law contemplates nobody's restraint upon the
adopter, who is just as free to adopt, according to
the Shastras, as he is free to marry. The Para-
mount State might, with as much propriety, prohibit
a man's maiTying in order to prevent his beget-
ting an heir to his Principality or estate, as forbid
him to adopt.
Sir Charles Jackson (p. 5) asserts *' when the
Hindu is a Prince holding his Principality subor-
dinate to, or as a gift from, a Paramount State, it
is a condition of succession to the Principality, that
the adoption be made with the consent of such
Paramount State." '' His private property," says
he, "will pass to the adopted son, whether the
Paramount State has, or has not, consented to the
adoption ; but in the absence of such consent, the
Principality reverts to the Paramount State."
This is the cardinal doctrine of the Dalhousie
school. This is the foundation of the so-called
doctrine of lapse. Sir Charles Jackson is careful
not to give his authorities. Is not the supposition
natural that he has none to give ? The law which
is given in the above extract is, according to his
own statement (see p. 5), an •' exception " to the
THE DOCTRINE OF LAPSE. 31
^'general ilile " of Hiiiclii law. The onus, there-
fore, lies upon him to show his authorities for this
exceptional position.
Sir Charles Jackson has taken the cases of /
Sattara, Nagpore, Jhansi, and Sumbulpore. It is
not my puqiose at present to treat of these States,
which have been already absorbed. I wish to take
my stand upon the general position assumed by the
annexationist school in regard to adoption, and
prove that in law and practice it is untenable.
Sir Charles Jackson cites (p. 10) Sir George Clerk
as an authority in his favour. Sir George, he says, /
"opposed the annexation of Sattara, yet felt com-
pelled to admit that the sanction of the Paramount
State is by custom required to render ' an adoption
to a Principality valid. In the time of our prede-
cessors this was a source of profit to the treasury.''^.
Unfortunately for the advocate of Lord Dalhousie,
Sir George has spoken out his sentiments in
unmistakeable terms. In his dissent from the last
despatch of Sir Charles Wood, disallowing the
Mysore adoption, he clearly enunciates his views
thus: — *' This new doctrine regarding adoption is
so novel and unjust, so opposed to all custom and
religions in India, and so utterly inconsistent with
32 ADOPTION V. ANNEXATION.
the course of administration as previous^ exercised
during the paramountry of Hindoos, Mahumme-
dans and ourselves, that I can only conceive it to be
the result of wild counsel prompting an indiscrimi -
nate gratification of a selfish policy which it is
endeavoured to veil under a plea of expediency.
"A fact well known to those of us who have
been much in the way of observing the circum-
stances of adoptions of heirs to Chiefships, and to
those who have made researches with a view to
elucidate the subject, as Sir Henry Lawrence in the
Kerowlee case in 1853, and Lord Canning on the
general question in 1860, is that, if guided by the
custom of the country ami the practice of all our pre-
decessors, our concern in adoptions consists only in
adjusting the rival pretensions of tiuo or more such
heirs ; a precaution which we and our predecessors
have made it our duty to exercise in the interests of
the peaceable public generally. Hence our sanction
may in one sense be said to be necessary ; for, natu-
rally, a record of it is always sought by the rightful
or by the successful claimant. Hence it is, too, that
the confirmation has never been refused. Hence it is
that I NEVER found an instance on the old records at
Delhi, and that T ncrcr hnew one occurring within my
THE DOCTRINE OF LAPSE. 33
experience of our own times, of any chief ship, either
Eaj or Sardarree, great or small, being lield to have
escheated, excepting for felonij to the Paramount State.
At length tlie Calcutta Government led of ivith that
flagrant instance of the barefaced appropriation of
Sattara." ' The italics are mine. y^
What, then, is the " custom " Sir Charles Jack-
son alludes to ? The custom is for the big State
or Paramount Power to adjust "the rival preten-
sions of two or more heirs." This is the testimony
of Sir George Clerk, a veteran political, twice yA
Governor of Bombay, and at one time the able
Resident at Delhi, the very source whence all in-
formation on such points was to be had. Does y\^
not this coincide with the object of inviting the
Eajah or "head of the village" to })e present
at the ceremony, as described in the preceding
chapter ?'■' It is to secure publicity and prevent
future disputes, that the invitation is made, not
because the adoption would be invalid.
However, to proceed with our authorities. The
States of Rajputauci are the oldest Hindu States in
India. They are independent States, acting in
1 Papers relatimj to Mt/sore, pp. 71 aiifl 72.
2 See page 18, ami the following.
8
34 ADOPTION V. ANNEXATION.
subordinate co-operation with the British Govern-
ment.^ Their Kajahs are Sovereign Princes who
reign supreme within their dominions. They gene-
rally pay a certain sum to the British Government,
which on its part undertakes to protect them from
, external enemies. The British Government is
bound by treaties not to interfere in their internal
^i "' affairs ; and unless some future Mangles calls them
merely '' deeds of gift " and personal contracts, and
considers perpettdty as an eastern expression for a
long period (say of fifty or ninety-nine years), these
States must subsist as long as the sun and moon
/v shine on them and the British Empire. The law or
custom in regard to adoption in these States is thus
stated by Colonel Tod : * —
*' Adoption : — The hereditary principle, which
perpetuates in these States their virtues and vices, is
also the grand preservative of their political exist-
ence and national manners : it is an imperishable
principle, which resists time and innovation : it is
this which made the laws of the Modes and
' See Aitchieson's Treatises, vol. iv, j»p. 10, 84, 45, G5, 72,
and following.
* Annals and Avtiquitirs of Bajaslhan, l)y Lifint.-Colonel
James Tod, vol. i., p. 190.
V
THE DOCTRINE OF LAPSE. 35
Persians, as well as those of Rajpoots, unalterable.
A Chief of Mcwar, hkc his Sovereign, never dies :
he disappears to be regenerated. • Le roi est mort,
vive le roi,' is a phrase, the precise virtue of which
is there well understood. Neither the crown nor
the greater fiefs are ever without heu's. Adoption
is the preservative of honours and titles ; the great
fiefs of Rajasthan can never become extinct."
If a Chief or a Prince dies without making an
adoption, the case is also well provided for. Colonel
Tod says^ that "on sudden lapses, the wife is
allowed the privilege, in conjunction with those
interested in the fief, of nomination, though the
case is seldom left unprovided for : there is always
a presumptive heir to the smallest subinfeudation
of these estates. The wife of the deceased is the
guardian of the minority of the adopted."
The idea that a Rajput Prince '* never dies," and
that " he disappears to be regenerated," is one which
is derived from Hindu law, and is held fast,
religiously and pohtically, by the whole of India. It
has its root in the notion of posthumous existence —
the doctrine that a man is born again in his son.
5 Tod's Annals, vol. i., p. 191.
3—2
36 ADOPTION V. ANNEXATION.
The sacred Vedas themselves mculcate it. The
Aitareya Briihmanam states this very clearly,^ and is
identical with the high principle " in the pure
Eoman jurisprudence," which according to Mr.
Maine is " that a man lives on in his heir — the
elimination, if we may so speak, of the fact of
death."^
"Among the Hindus," says Mr. Maine, "the
right to inherit a dead man's property is exactly co-
extensive with the duty of performing his obsequies.
If the rites are not properly performed, or not
performed by the proper person, no relation is con-
sidered as established between the deceased and
anybody surviving him ; the law of succession does
not apply, and nobody can inherit the property.
Every great event in the life of a Hindu seems to be
regarded as leading up to, and bearing upon these
6 Haug's Translation, Book YII., Chapter III., 6 and 7,
p. 4G1. G. " The husband enters the wife (in the shape of
seed), and when the seed is changed to an embryo, he makes her
a mother, from whom, after having been regenerated in her, he is
bom in the tenth month. 7. His wife is only then a real wife
{Jfiljci from jan to be born) when he is born in her again. The
seed which is placed in her, she developes to a being and sets
it forth."
"> 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-<inls India, by
J. ^r. LuDiiOw, Esq., Barrister-at-l.aw, j). 110.
THE DOCTRINE OF LAPSE. 47
suitors. And yet, what does the argument of the
annexationists amount to, if not to this ?
Again, it is the boast of the Enghsh law that
the Sovereign never dies.^^ You talk of the demise
of the crown. Is not the self-same principle of
equal force in India ? In Rajpootana, we find that
the law admits of no interregnum. What else is it
but the principle " rex nunquam moritur " ex-
pressed in a different form ? The law of nations
and the safety of the Indian Princes demand that
this principle should be jealously guarded. Whilst
on this subject I must confess my astonishment at
a passage from Mr. Halliday's Minute quoted by
Mr. Ludlow : — " Colonel Low," says Mr. (now Sir
Frederick) Halliday, " announces a doctrine regard-
ing succession to a Hindoo Principality, which,
except as regards Bajpoot States, I never heard of
before, which I am satisfied no Hindoo lawyer ever
heard of, and which would make it impossible that //
any Hindoo succession should ever fail."
This betrays the cloven foot of annexation. Why
should Mr. Halliday wish it to fail ? And how can
such wish be reconciled with her Majesty's gracious
Proclamation ?
*' Beoom's Lefial Maxima, p. 51.
48 ADOPTION V. ANNEXATION.
" We desire no extension of our present terri-
torial possessions; and while we will permit no
aggressions upon our dominions or our rights to be
attempted, we shall sanction no encroachments on
those of others ; we shall respect the rights, dignity,
and honour of native Princes as our own."
There is no shuffling here. The words are
clear and capable of only one interpretation ; and
that is that there shall be no more annexations
under colour of a law or usage of escheat, tvUich in
reality has never existed.
To recapitulate what has been advanced in the
preceding pages : — The Hindu law authorizes its
followers to adopt a son in a certain mode ; this
power of adoption in a Hindu is both a right and a
duty ; nobody can legally take away this right (the
Paramount Power itself not excepted). In the case
of Sovereign Princes, law and usage have settled
the mode of succession ; and their relations with the
British Government have been founded on treaties
which must be observed. Were none of these safe-
guards in existence, the law of nations would come
to the rescue, and determine by the customs of each
particular State how its succession ought to be
regulated. If, in the face of these facts, the lord
THE DOCTRINE OF LAPSE. 49
paramountry of Great Britain is still to be paraded
before the native public and the Princes of Hindustan,
as a pretext for spoliation, I say in the words of a
great Indian statesman, the late Mr. Tucker, **
" True, we wield the power of the sword, and our
political supremacy is everywhere acknowledged ;
but we do not possess, and never can possess,
the power to violate treaties — the power to do
wrong and to commit injustice — the power to
dominate over those who cannot resist us, while
we hesitate to enforce it in our relations with those
States who enjoy, with a larger territory, a greater
degree of independence."
I shall now pass on to a few general reflections
on the subject treated of, in its relation to the
future of the British Empire in India.
22 Tucker's Indian Gorrmwcut, by J. W. Kaye, p. 251.
60 ADOPTION V. ANNEXATION.
CHAPTER III.
GENERAL OBSERVATIONS.
I BELIEVE I have now shown the untenableness of
the doctrine of lapse, which has no foundation in
the customs of this country. Sir Charles Jackson,
after a large amount of special pleading on this
question, winds up his book by a carefully-worded
eulogy of Lord Dalhousie, and the Duke of Argyll
argues that his policy has been the *' salvation of
India." ^
When the advocate has a bad case, his best
policy is said to be to abuse the attorney on the
other side. Sir Charles seems, mutatis mutandis,
to be following this practice by branding all the
hostile criticism as the " clamour of paid advocacy." ^
Admitting the great abilities and varied talents of
Lord Dalhousie, is it pretended by his admirers that
^ India under Dalhousie and Canning, p. 68.
" Lord Dalliouaies Indian Administration, p. 172.
GENERAL OBSERVATIOXS. 51
he was more than a man ? Is not a defence per fas
et nefas damagin<]j to the defended ? We Hindus are
regarded as idolaters ; though I might say some of us
are better in that respect than some of our Enghsh
fellow-subjects, and, with the education which we
are thankfully receiving from the British Govern-
ment, our materialism is fast wearing away. I
regret to see, however, that Great Britain is retro-
grading rather than improving. Her sons, hke the
two authors now before me, will not acknowledge
the blunders of her statesmen, but set them before
us as models of perfection. Is this not asserting
the doctrine of infallibility ? Lord Dalhousie, like
other men, was liable to error, and his errors as a
public man are common property, to be used as
warnings from whence we may extract edification
and improvement.
The dissatisfaction caused by the policy of
" confiscation "' was far and wide-spread over the
length and breadth of Hindustan. There were men
in all parts of the country who were filled with alarm
at what was passing around them. Statesmen in
England lifted up their voice in defence of the right,
■^ Tucker's Tndiun Gorermiwnt, p. 250.
4—2
62 ADOPTION V. ANNEXATION.
but in vain. I will only quote one instance, from a
work published in 1853 by one of our neighbours
in Ceylon, Mr. John Capper, late editor of the
Ceylon Examiner. The passage is characteristic.
Mr. Capper says :* —
** I cannot, I must confess, agree with those
advocates of universal Indian annexation, who
persist in attributing all our failures in these cases
to stopping short of the complete subjugation of
every independent State. Their advice is precisely
that of the great quack vegetarian, when told by a
patient that his pills were inefficacious, although his
instructions had been most rigidly observed. The
vendor of pills declared that the sick man could not
have taken enough of them ; to which the other
replied, that he had swallowed the largest dose
prescribed in any case, viz., a whole boxful.
' But,' asked the impudent quack, * did you
swallow the box also ? ' The patient was stag-
gered, and declared that such a proceeding had not
occurred to him. * Ah ! ' rejoined the bold vege-
tarian, ' I thought not. Go home and try the
* The Three Presidencien of India, by John Capper, F.R.A.S.,
lato editor of the Ceylnn Examiurr, 1803, pp. 270-1.
GENERAL OBSERVATIONS. 63
box.' Even thus our India quacks would have the
State try the native ' box,' regardless of the conse-
quences."
'' The loss of revenue, however, is not the only
disadvantage we labour under in regard to our
intimate connection with the native States. There
is the loss of reputation to be taken into account ; a
loss which, although not as yet apparent in tliis
country, has long been matter of notoriety in India,
and cannot any longer be hidden even here. It will
reflect everlasting disgrace upon the British name
that the most solemn engagements, the most formal
treaties with many native Princes, some of whom
had long proved themselves our staunch and
unfailing aUies, should have been utterly disre-
garded, and cast aside to suit the political or
pecuniary purpose of the day; that reputation
should have been weighed in the balance against
rupees, and made to kick the beam ; that the good
faith of a Christian country should have been
thought as nothing when placed against a few
hundred miles of Indian territory."
How could such a state of things end otherwise
than it did, when everybody found himself being fast
reduced to one common level : — Princes and Chiefs
54 ADOPTION V. ANNEXATION.
by disinheritance and annexation ; Zemindars by
tenant-right set up against them ; Inamdars and
Wattandars by resumption-Commissions; the priest-
hood by their temples thrown over as heirlooms
to litigation, and by missionary assaults from with-
out, and legislative blows from within, the pale of
the Government ? What wonder that general distrust
and discontent should prevail ? The greased cart-
ridges were but the last spark. There can be no
y doubt that dissatisfaction had spread far and wide,
and whatever official reports may say, the great
rebellion of 1857 was a religious-political rising
commenced by the army, but having much of the
popular element in it, as the history of its rise,"
,y\ progress, and end conclusively shows. I tried to
^ solve the question of the chuppatties which were said
to be circulated in 1857-8. No one in these parts
has been able to unravel the mystery. It is clear,
however, that they were a sign of distress, which
each village carried beyond its limits, lest by keeping
them some calamity might befall its inhabitants.
Such superstitious observances are in different forms
found to prevail when pestilence or some such
y calamity l)cfalls the land.
. The Duke of Argyll says, " The entire armies
GENERAL OBSERVATIONS. 55
of Bombay and of Madras escaped the plague."*
Perhaps his Grace is not aware that two whole
regiments, the 21st and 27th, were struck off the
strength of the Bombay army as being affected
with this very plague.
Again, the Duke says^ that " the infection of the
mutiny never reached the Presidencies of Madras or
of Bombay." He is misinformed. The whole of
the southern Maratha country was more or less
disaffected. The rebellion at Nargoond and Shola-
pore was the direct result of refusal of leave to
adopt. The confiscation of the chiefships of Sonee,
Tasgaum, Kagwud, Shedbal, Chincharee, and
Nipanee, on the ground of escheat by the so-called
law of lapse, furnish sufficient explanation of the con-
flagration which only General Le Grand Jacob's popu-
larity and ability prevented from spreading. The exe-
cutions at Sattara, Kolapore, Bclgaum, Kurrachee,
and divers other places, also tell the same tale.
These facts are patent to the whole world. If, in
spite of all that has happened, Cabinet Ministers
will arise to defend a policy exploded by the
5 Lulin under Dalhoiisit' and Cunning, p. 92.
6 Ihid, p. 118.
56 ADOPTION V. ANNEXATION.
unanswerable logic of facts, and disowned by the
Queen's Government in 1858, then indeed our
niillennium is very far off indeed.
A glorious opportunity now awaits the British
Parliament to show practically that it will right the
wronged. I allude to the case of the Maharajah
of Mysore, which I see is to be brought before the
British nation. The Maharajah's cause, or in other
words that of British faith, is warmly and judiciously
advocated by five members of the Indian Council.
But natives of India are grieved to see a person like
Mr. Mangles employing ai'guments as puerile as
they are unjust. Whoever heard a treaty such as
that of Mysore called a " deed of gift ? " ^ Still more
strange is it to read that the w^ords " shall be
binding upon the contracting parties as long as the
sun and moon shall endure, do not imply perpetuity
to Indian minds." The Indian mind is shocked at
such sophistry in high quarters. As to policy, I
say for the safety both of India and England — for
our welfare is intimately connected with that of
Great Britain — that political honesty and fair dealing
is the best policy. I would request members of
7 Mysore Pajicrs, p. 84.
GENERAL OBSERVATIONS. 67
Parliament to fling away mere '* ephemeral political
expediency " (to use Mr. Mangles' own expression),
and look well and deeply into the past and the
future. Weigh the words of Sir G. Clerk, Sir F.
Currie, Mr. Eastwick, and the other dissenting
members. You are now looking at the events of
1805 from the stand-point of 1866. Take note that
your conduct will be watched by the people of India.
Do justice even if the heavens fall. ** The good of
the people," which the annexationists talk of to
excuse their injustice to the Princes of India, is a
mere stock pretence, and this is well shown by Sir F.
Currie and others. Has '' the good of the people "
been considered when "ephemeral political expe-
diency" pointed the other w^ay ?^ and have not
people been handed over bodily to alien rulers
when it suited the interests of the British Govern-
ment ?
The Maharajah of Mysore is a Sovereign under
a specific treaty. If he breaks it, let him by all
means be punished in accordance ivith that treaty.
But, for the British nation to permit mere land-
hunger to turn itself from the scrupulous obser-
8 Mtjuore Piipcrx, p. 24.
58 ADOPTION V. ANNEXATION.
vance of treaties, is like a descent from the spiritual
to the material — a lapse from monotheism into
idolatry, which must in time corrupt the governors
and the governed, to the certain ruin both of
India and England.
THE END.
,x-rj^^^tf^-\:fm
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