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A Rule of Proprietary Right for British India: From revenue settlement to tenant right in the age of classical legal thought*

  • FAISAL CHAUDHRY (a1)
Abstract
Abstract

Scholars have long debated the impact of the British ‘rule of property’ on India. In our own day it has become common for historians to hold that the Raj's would-be regime of free capitalist property was frustrated by a pervasive divide between rhetoric and reality which derived from a fundamental lack of fit between English ideas and Indian land control practices. While seemingly novel, the contemporary emphasis on the theory-practice divide is rooted in an earlier ‘revisionist’ perspective among late-nineteenth-century colonial thinkers who argued that land control in the subcontinent derived from a uniquely Indian species of ‘proprietary’ (rather than genuinely propertied) right-holding. In this article, I critically examine the revisionist discourse of ‘proprietary right’ by situating it in a broader comparative perspective, both relative to earlier ideas about rendering property ‘absolute’ during the East India Company's rule and relative to the changing conception of the property right among legal thinkers in the central domains of the Anglo-common law world. In so doing, the article significantly revises our understanding of the relationship between property, law, and political economy in the subcontinent from the late eighteenth to the late nineteenth century.

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I am grateful to all those who have provided feedback on versions of this article which was presented to the University of Pennsylvania's South Asia Studies Colloquium and the School of Law's Writer's Bloc working group, as well to the members of the Delaware Valley British Studies Seminar. I am especially indebted to comments made on earlier drafts by Ramya Sreenivasan, Deven Patel, Lisa Mitchell, Daud Ali, Lynn Lees, Seth Koven, Sarah Barringer Gordon, Sophia Lee, Razak Khan, and Foqia Khan. Gratitude must also be extended to the American Council of Learned Societies, without the generous support of whose New Faculty Fellows Program the drafting of this article would not have been possible.

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1 Washbrook David (1981), ‘Law, State and Agrarian Society in Colonial India’, Modern Asian Studies, 15 (3), pp. 649721.

2 Dirks Nicholas (1986), ‘From Little King to Landlord: Property, Law and Gift Under the Madras Permanent Settlement’, Comparative Studies in Society and History, 28 (2), pp. 307333, at pp. 310–311.

3 Albeit in a very different way from my own, for a recent attempt to revisit the ‘theoretical’ side of colonial ideas about land, its control, and political economy, see Govind Rahul (2011), ‘Revenue, Rent. . .Profit? Early British Imperialism, Political Economy and the Search for a Differentia Specifica (inter se)’, Indian Economic and Social History Review, 48 (2), pp. 1772013.

4 Guha Ranajit (1963), A Rule of Property for Bengal: An Essay on the Idea of Permanent Settlement (Paris: Mouton).

5 Dirks, ‘From Little King to Landlord’, p. 310.

6 The driving idea behind the ryotwari system was to ‘settle with’ the ostensible cultivators of the soil, whom the Company referred to as raiyats, borrowing a general Persian term for the peasantry. About two-thirds of the Madras Presidency was covered under ryotwari settlement, with the remainder playing host to a zamindari system. Ryotwari settlement was pursued in the Bombay Presidency as well after the third Anglo-Maratha war of 1817–1818. The final—though more selectively used—system of revenue settlement that emerged early on was the village or mahalwari scheme, in which the demand was placed on the collective to distribute among its members as it saw fit. The North Western Provinces (in and around contemporary Uttar Pradesh) became the most prominent site where village settlement was instituted.

7 See Rothermund Dietmar (1978), Government, Landlord, and Peasant in India: Agrarian Relations Under British Rule, 1865–1930 (Wiesbaden: Steiner).

8 For a recent reminder about Maine's theory, see Mantena Karuna (2010), Alibis of Empire: Henry Maine and the Ends of Liberal Imperialism (Princeton, New York: Princeton University Press), pp. 119147.

9 The examples are many. See, for example, Robinson Francis Horsley (1856), An Account of the Land Revenue of British India (Calcutta: Thacker, Spink, & Co.); Wingfield Charles (1869), Observations on Land Tenure and Tenant Right in India (London: W. H. Allen & Co.); Davies W. G. (1882), Tenant Right in the Punjab, and the Punjab Tenancy Act (Allahabad: The Pioneer Press); Rogers Alexander (1892), The Land Revenue of Bombay (London: W. H. Allen & Co.).

10 See, for example, Maine Henry (1880 [1871]), Village Communities in the East and West (New York: Henry Holt), p. 158.

11 Baden-Powell Baden Henry (1892), The Land Systems of British India, Vol. I (Oxford: Clarendon Press), p. 218.

12 While it is not without controversy, the standard work on the subject remains Davis Mike (2001), Late Victorian Holocausts: El Niño Famines and the Making of the Third World (New York: Verso).

13 On the connections between India and Ireland—and the Bengal Tenancy Act (1885) and the Irish Land Act (1870), in particular—see Cook S. B. (1993), Imperial Affinities: Nineteenth-Century Analogies and Exchanges Between India and Ireland (Newbury Park, California: Sage Publications).

14 Articles I–III, Regulation I of 1793, reprinted in Field C. D. (ed.) (1875), The Regulations of the Bengal Code (Calcutta: Thacker, Spink and Co.), pp. 185186.

15 Grant James (1791), An Inquiry into the Nature of Zemindary Tenures in the Landed Property of Bengal (London: J. Debrett), p. 24.

16 Grant, An Inquiry, p. vi (emphasis added).

17 For example, from Part I of the Institutes: ‘[i]f the proprietary will sue for such subtraction of Tithes in the Ecclesiastical Court, then he shall recover but the double value by the express words of the. . .’ Coke Edward (1703 [1628]), The First Part of the Institutes of the Laws of England or a Commentary Upon Littleton, 10th edition (London: William Rawlins and Samuel Roycroft), p. 159.

18 See, for example, Blackstone William (1765), Commentaries on the Law of England, Vol. 1 (Oxford: Clarendon Press), p. 105; and Blackstone William (1783 [1765]), Commentaries on the Law of England, Book the Second, 9th edition (London: W. Strathan), p. 257.

19 See, for example, Burke Edmund and Burke William (1770), An Account of the European Settlements in America (London: R. and J. Dodsley), Vol. II, pp. 194, 298300.

20 See, for example, Mill James (1826 [1817]), A History of British India, in Six Volumes, 3rd edition (London: Baldwin, Cradock, and Joy), Vol. III, p. 450.

21 See, generally, Mukherjee Nilmani (1962), The Ryotwari System in Madras, 1792–1827 (Calcutta: Firma K. L. Mukhopadhyay).

22 ‘Extract from Report of Principal Collector of the Ceded Districts Proposing a Plan for Permanently Settling Those Districts on the Ryotwar Principle’, 15 August 1807, reprinted in The Fifth Report from the Select Committee on the Affairs of the East India Company, 1812 (1866 [1812]) (Madras: J. Higginbotham), Vol. II, pp. 649–650.

23 Washbrook, ‘Law, State and Agrarian Society in Colonial India’, p. 665.

24 Kozlowski Gregory (1987), ‘Muslim Women and the Control of Property in North India’, Indian Economic and Social History Review, 24 (2), pp. 163181, at pp. 164–165.

25 Both objections have long been made in response to Guha's A Rule of Property for Bengal, which can be read as giving far too much credit to ideas, both on grounds of their supposed novelty and that novelty's purported influence in shaping the Company's land revenue policy. See, for example, Ray Ratnalekha (1979), Change in Bengal Agrarian Society, 1760–1850 (Delhi: Manohar), p. 252; and Cohn Bernard (1969), ‘Structural Change in Indian Rural Society, 1596–1885’ in Frykenberg R. E. (ed.), Land Control and Social Structure in Indian History (Madison: University of Wisconsin Press), pp. 53121. Ironically, the tendency to overemphasize such objections has led to the now predominant view that the colonial rule of property was no more than nominal/theoretical.

26 The present point should not be confused with Paul Bohannan's idea that land and tenure do not mean the same thing in Western and non-Western societies, which Walter Neale made well-known to students of South Asia in the 1960s. See Neale, ‘Land is to Rule’, in ibid, pp. 3–16. For a sense of the further discussion Neale's and associated ideas—like those of Burton Stein—inspired, see Dharma Kumar, ‘A Note on the Term “Land Control”’ in Robb Peter (ed.) (1983), Rural India: Land, Power, and Society Under British Rule (London: Curzon Press), pp. 5977.

27 Stokes Eric (1959), The English Utilitarians in India (Oxford: Clarendon Press), p. 88.

28 See, generally, ibid, pp. 93–110. For the present purposes, rent in the ‘Ricardian’ sense can be considered inclusive of the comparable doctrines that were developed simultaneously by Thomas Malthus and Robert Torrens.

29 Such a conclusion is broadly compatible with, though not directly drawn from, David McNally's discussion about the importance of the category of rent for making sense of land within the productive regime of agrarian capitalism that formed the key context for the genesis of classical political economy. See McNally David (1988), Political Economy and the Rise of Capitalism: A Reinterpretation (Berkeley: University of California Press), chapter 2. As McNally details, rent moved from being a category drawn from everyday life, to an embryonic analytical concept used to assign a real magnitude to (the whole of) the surplus product so evidently being generated from the land (especially in William Petty's 1662 Treatise of Taxes and Contributions), to a source of analogy for rendering technically precise the other component non-rent flows of profit and wages that would eventually come to comprise what Marx called ‘the trinity formula’ by which classical theorists obscured the social element at the heart of capitalist property relations. See Marx Karl (1991), Capital: Volume III, David Fernbach (trans.) (New York: Penguin), pp. 953970.

30 Of course, even the idea of rent as a distinct quantum of value does not necessarily capture Ricardo's more precise way of technically re-specifying its significance. To the extent that rent, for Ricardo, was always a price determined—rather than price determining—taking from profits it did not so much add new value as re-apportion value otherwise generated through production. See, for example, Lackman Conway (1976), ‘The Classical Base of Modern Rent Theory’, American Journal of Economics and Sociology, 35 (3): 287300. As Ricardo himself famously put it ‘[c]orn is not high because a rent is paid, but a rent is paid because corn is high’. Ricardo David (1996 [1817]), On the Principles of Political Economy and Taxation (New York: Prometheus Books), p. 50.

31 This was true regardless of whether the guarantee was ‘permanent’ or for decades-long ‘lease’ periods.

32 See, for example, Swamy Anand (2011), ‘Land and Law in Colonial India’ in Ma Debin and van Zanden Jan Luiten, Law and Long-Term Economic Change: A Eurasian Perspective (Stanford, California: Stanford University Press), pp. 139157.

33 As used here, the term ‘feudal’ is not meant to suggest that a unitary and ‘physicalist’ view of property was characteristic of post-Norman invasion England under the Conqueror's original regime of tenurial relations in which it was not so much land that was held as it was reciprocal incidents and services that were personally owed between agrarian superiors and subordinates. I am using ‘feudal’ only in the extended sense by which the system of ‘estates in land’ that replaced a regime of pure tenurial relations can be called ‘feudal’. Regarding the case for restricting the concept in the way I am avoiding and for the different ways the term has been used in the European context, see, for example, Ganshof F. L. (1964), Feudalism, Philip Grierson (trans.) (Toronto: University of Toronto Press), chapter 3.

34 On the ‘physicalist’ conception of the property right, see, for example, Vandevelde Kenneth J. (1980), ‘The New Property of the Nineteenth Century: The Development of the Modern Concept of Property’, Buffalo Law Review, 29, pp. 325367; and Sugarman David and Warrington Ronnie (1996), ‘Land Law, Citizenship, and the Invention of “Englishness”: The Strange World of the Equity of Redemption’ in Brewer John and Staves Susan (eds), Early Modern Conceptions of Property (New York: Routledge), pp.111143.

35 While seemingly straightforward, the implicit distinction being made here between the different registers of discourse at which property concepts were instantiated is worth emphasizing, since it has rarely been noticed. Property doctrine, in other words, was not necessarily the same as discourse about property in the public sphere. The point is all the more worth calling attention to given the significant uncertainty that persists around how to answer two important questions about the possibly unique implications of property concepts when thinking about differential paths of politico-legal development, including in the intra-Western context. The first of these concerns the characteristics that distinguished the Anglo-common law property tradition from the ‘continental’ Roman law-influenced tradition; the second involves the distinguishing characteristics of ‘Western’ (or, in a more specific version, English) property ideas that enabled the ‘rise of capitalism’ (or ‘modernity’, or ‘Western/English divergence’, et cetera). For the purposes of addressing the first question, it is often the relational character of the formative idea of property in the common law tradition—with its medieval origins in the notion of time-limited estates in land held of some notional superior—that is emphasized in order to strike a contrast with a Roman law tradition in which property-as-dominion was supposed to be completely separate from sovereignty-as-imperium (inclusive of the related idea of iurisdictio/jurisdiction). For the purposes of addressing the second question, however, it is often the individualist (or ‘absolute’) conceptualization of private property in the English tradition—with its precociousness in paving the way for enclosed and relatively large-scale production units amenable to the profit-maximizing managerial efficiency of a strong landed element—that is emphasized. (Versions of the latter idea, for example, are at the heart not only of the preoccupation with enlightenment-era property discourse like that associated with Locke but also the view concerning the origins of capitalism that is associated with the work of Robert Brenner today. See, for example, Brenner Robert (1976), ‘Agrarian Class Structure and Economic Development in Pre-Industrial Europe’, Past & Present, 70; and Aston T. H. and Philpin C. H. E. (eds) (1985), The Brenner Debate: Agrarian Class Structure And Economic Development In Pre-Industrial Europe (Cambridge: Cambridge University Press).) While this emphasis on the individualist essence of property concepts is used primarily to distinguish the features of the institutional context that made England's take-off the first, it also usually doubles as a means for striking a contrast with a continental tradition that is usually said to have been indebted to a Roman law heritage in which dominium was long analysed into several kinds (directum/absolute, nudum/of title alone, usufructory/usufructuary, et cetera), not to mention according to a contrast with possessio/possession. (It goes without saying that from this basis various further contrasts can be and have been developed between England/ ‘the West’ and the ‘non-West’.) Putting aside the fact that there was no straight line between Europe's radically transformed neo-Roman law tradition of the long nineteenth century and the ‘rediscovered’ Roman law of post-eleventh-century times, let alone the ancient Roman law, the permutations according to which ‘key’ characteristics of property as a concept can be distinguished and then combined so as to construct answers to these questions are clearly indeterminate. ‘Individualism’ enough always remains to be found in the competing feature matrices into which either Anglo-common law or continental Roman law property doctrine can be broken down. Moreover, both apparent paradoxes of differential development as well as allegedly ‘right’ permutations of ‘key’ feature combinations for retrospectively divining the ‘true’ causes of unique developmental paths only multiply if the doctrinal register of property discourse is conflated with the forms of property talk in the public sphere. For a highly sophisticated attempt at developing a novel answer to the second of the above two questions that still seems to fall prey to such conflation, see Macfarlane Alan (1998), ‘The Mystery of Property: Inheritance and Industrialization in England and Japan’ in Hann C. M. (ed.), Property Relations: Renewing the Anthropological Tradition (Cambridge: Cambridge University Press), pp. 104123, arguing that England's unique path of development appears paradoxical if the growing valorization of private property from the sixteenth to eighteenth centuries is seen as the main antecedent to the conceptually individualist ethos that animated it; instead, citing Maine and Maitland, Macfarlane suggests that we go back at least to the thirteenth century to find in early common law doctrine a conceptualization of property as relational and indivisible. Along with the implications of the fact that England was an island, he then makes these features out to be not only opposite to those that characterized continental Europe, with its doctrinal Roman law heritage, but also absolutely necessary to facilitating a capitalist take-off—even notwithstanding the otherwise taken for granted view that relationality was precisely the kind of hindrance to capitalism that budding ‘enlightenment’ varieties of ‘early modernity’ helped overcome.

36 To say that the ‘modern’ idea of rights began as physicalist is not belied by the observation that part of the common law's historical brilliance was—even by late medieval times—to eschew Roman legal ideas about dominion as a direct relationship between its holder and the material substrate of the earth. (Such an observation figures prominently, for example, in Kevin and Susan Gray's widely read introductory text on English land law, where the authors insist that the common law has long regarded time as a ‘fourth dimension’ of property. See Gray Kevin and Gray Susan (2007), Land Law (New York: Oxford University Press), chapter 1.) There are several reasons for this. First, one must not overplay the degree to which the late medieval conceptual system was exclusively based on the idea that there could be no ‘direct ownership of land outside the allodium . . . of the crown’ and, thus, only the ‘ownership’ of ‘a slice of time in the land’ through the doctrine of ‘estates in land’ (ibid, p. 15 [emphasis in original]). This view is as much the product of the modern analyst's de-physicalized view of the property right as it is any self-consciousness with which the conceptual system of estates was originally formulated. Second, and related, one should not forget that the conceptual system of estates was a means of transitioning away from parsing land control more strictly in terms of the categories of tenurial relation proper. The most basic impetus of limiting non-allodial title by time—as per the idea that one held an estate of fixed duration—was to reckon with land control in more discernibly material terms without offending the notion that the king was the supreme proprietor of the English realm. Finally, there were many transitions that were yet to follow after the triumph of the conceptual system of estates. One important example involved the rise of the actions of trespass and ejectment from 1600 to 1800. These not only displaced the older real actions, but they did so in a way that restored to English legal culture ‘a conception of an abstract right of’ ostensibly ‘absolute ownership’ (Holdsworth William [1927], An Historical Introduction to Land Law [Oxford: The Clarendon Press], p. 182). Another important transition involved the decline of the medieval concern with ‘seisin’ and ‘disseisin’ and the roughly concurrent demise of the distinction between legal and equitable interests in land. These developments, too, functioned to restore the idea of property as an ostensibly absolute (physical) dominion by the late eighteenth century. (See ibid, pp. 176–188, especially at p. 185.) This is partly why the only estates the ‘reformed’ common law preserved were the fee simple and the term of years. Finally, it is also no accident that the period from 1600 to 1800 was the era during which ‘the rise of capitalism’ and the commodification of land were making a physicalist conception of property necessary.

37 Washbrook, ‘Law, State and Agrarian Society in Colonial India’, p. 661.

38 Kumar Dharma and Raychaudhuri Tapan (eds) (1983), The Cambridge Economic History of India, Volume 2: c. 1757–c. 1970 (New York: Cambridge, University Press), p. 918.

39 Ibid, p. 916.

40 Rothermund Dietmar (1993), An Economic History of India: From Pre-Colonial Times to 1991, 2nd edition (London: Routledge), p. 28.

41 Ibid, p. 29.

42 Bose Sugata, Peasant Labour and Colonial Capital: Rural Bengal Since 1770 (New York: Cambridge University Press), p. 113.

43 Ibid, p. 114. Comparable points about the increasing importance of credit relations have been made by various others, including for parts of the Indian subcontinent outside of Bengal. See, for example, Kaiwar Vasant (1994), ‘The Colonial State, Capital and the Peasantry in Bombay Presidency’, Modern Asian Studies, 28 (4), pp. 793832, Baker Christopher (1984), An Indian Rural Economy, 1880–1955: The Tamilnad Countryside (Oxford: Clarendon Press).

44 Bose Sugata and Jalal Ayesha (2004), Modern South Asia: History, Culture, Political Economy, 2nd edition (New York: Routledge), pp. 8083.

45 Roy Tirthankar (2002), ‘Economic History and Modern India: Redefining the Link’, The Journal of Economic Perspectives, 16 (3), pp. 109130, at p. 116.

46 See Kulke Hermann and Rothermund Dietmar (2004), A History of India, 4th edition (New York: Routledge), p. 268.

47 ‘Extract: Fort St. George Revenue Consultations, Memoir of Mr. Thackeray to . . . Lord William Cavendish Bentinck, in Favor of Ryotwari Permanent Settlements’, 29 April 1806, reprinted in The Fifth Report, Vol. II, p. 603.

48 ‘Extract: Fort St. George Revenue Consultations: Mr. Hodgson's Report on the Province of Dindigul, 28 March 1808’, 16 August 1808, reprinted in ibid, p. 703.

49 Peter Robb is one of the few to take at least indirect stock of this point. See Robb Peter (1988), ‘Law and Agrarian Society in India: The Case of Bihar and the Nineteenth-Century Tenancy Debate’, Modern Asian Studies, 22 (2), pp. 319354, at p. 348.

50 Of course, by the last three decades of the nineteenth century, in not all parts of British India had there accrued an equally long previous history of land revenue settlement operations. Even outside of areas like the Punjab, which was annexed only in 1849, in places like Berar, a province of the Nizam's Hyderabad, the East India Company did not take over direct administration until the early 1850s. Therefore, it was only in the ensuing years—from roughly 1860 to 1880—that efforts were made to dismantle the old agrarian order dominated by balutedari clan/caste elements (who were managerial superiors commanding shares of produce–rather than land itself–in exchange for certain reciprocal duties that were then owed to their inferiors in the agrarian hierarchy) and to replace it with a so-called khatedari system, representing a modified version of the colonial state's ryotwari order of property in the rent. See, for example, Satya Laxman (1997), Cotton and Famine in Berar, 1850–1900 (New Delhi: Manohar); and for a summary discussion, see Davis, Late Victorian Holocausts, pp. 312–317.

51 See, generally, Stokes, The English Utilitarians in India. For a sceptical stance on colonial utilitarianism in India, see Rosen F. (1999), ‘Eric Stokes, British Utilitarianism and India’ in Moir Martin, Peers Douglas, and Zastoupil Lynn (eds), J. S. Mill Encounter with India (Buffalo: University of Toronto Press), pp. 1833.

52 This included Maine's adversary on the viceroy's council, Courtenay Ilbert, as well as esteemed figures from the mainland like the jurist Sir Frederick Pollock.

53 See, for example, Nelson J. H. (1877), A View of the Hindu Law as Administered by the High Court of Judicature at Madras (Madras: Thacker, Spink & Co.); and his (1881), A Prospectus of the Scientific Study of the Hindu Law (Madras: Higginbotham & Co.); Banerjee Gooroodass (1879), The Hindu Law of Marriage and Stridhan (Madras: Higginbotham); Abdur Rahman A. F. M. (1906), Institutes of Mussalman Law: A Treatise on Personal Law (Calcutta: Thacker Spink & Co.).

54 Tupper Charles Lewis (1901), ‘English Jurisprudence and Indian Studies in Law’, Journal of the Society of Comparative Legislation, New Series, 3 (1), pp. 8494 at p. 90.

55 In choosing this label I am both picking up on and significantly adapting an existing convention that has been used by scholars of the more central domains of the Anglo-common law and continental civil law worlds. For the Anglo-American context see, for example, Horwitz Morton (1992), The Transformation Of American Law, 1870–1960 (New York: Oxford University Press); Wiecek William (1998), The Lost World Of Classical Legal Thought: Law And Ideology In America, 1886–1937 (New York: Oxford University Press); Kennedy Duncan (2006), The Rise and Fall of Classical Legal Thought (Washington, D.C.: Beard Books). For the British context, see Atiyah Patrick (1979), The Rise and Fall of Freedom of Contract (New York: Oxford University Press); and Sugarman David and Rubin G. R. (1984), ‘Towards a New History of Law and Material Society in England, 1750–1914’ in Rubin G. R. and Sugarman David (eds), Law, Economy and Society: Essays in the History of English Law, 1759–1914 (Abingdon, United Kingdom: Professional Books), pp. 1123. For the European continent see, for example, Gordley James (1991), The Philosophical Origins of Modern Contract Doctrine (New York: Oxford University Press); Christopher Baker (1984), An Indian Rural Economy, 1880–1955: The Tamilnad Countryside and Wieacker Franz (1995), A History of Private Law in Europe: With Particular Reference to Germany (New York: Oxford University Press).

56 Kennedy Duncan (2006), ‘Three Globalizations of Law and Legal Thought’ in Trubek David and Santos Alvaro (eds), The New Law and Economic Development: A Critical Appraisal (New York: Cambridge University Press), pp. 1973, at p. 27.

57 On the symmetry between private ‘rights’ and public ‘powers’ in classical legal thought, see Kennedy Duncan (1980), ‘Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1840–1950’ in Spitzer J. (ed.), Research in Law and Sociology, Vol. 3 (Greenwich, Connecticut: JAI Press), pp. 324, at pp. 11–12.

58 As Kennedy elaborates, reasoning on the basis of the will ‘provid[ed] the discursive framework for the decision of hundreds or perhaps thousands of cases, throughout the industrializing West, in which labor confronted capital and small business confronted big business’ while also furnishing ‘an abstract, overarching ideological formulation of the meaning of the rule of law as an essential element in a Liberal legal order’. Kennedy, ‘Three Globalizations of Law and Legal Thought’, p. 27.

59 For recent rehearsal (and critiques) of this view see, for example, DiRobilant Ana (2013), ‘Property: A Bundle of Sticks or a Tree?’, Vanderbilt Law Review, 66 (3), pp. 869932); and Penner J. E. (1995–1996), ‘The “Bundle of Rights” Picture of Property’, UCLA Law Review, 43, pp. 711820, at pp. 712–730.

60 There was, perhaps, no more sophisticated expression of this position than in the work of the great American ‘legal realist’, Wesley Hohfeld. See Hohfeld Wesley (1913), ‘Some Fundamental Conceptions as Applied in Judicial Reasoning’, The Yale Law Journal, 23 (1), pp. 1659.

61 Baden-Powell Baden Henry (1882), A Manual of the Land Revenue Systems and Land Tenures of British India (Calcutta: Office of the Superintendent of Government Printing), p. 90.

62 Stokes is one of the few historians who made explicit his debt to Baden-Powell. At the same time, Stokes also perfectly exemplifies the tendency to treat Baden-Powell mainly as a secondary source. Thus, what I am calling Baden-Powell's revisionism he sees strictly as a form of intellectual progress, rather than as a point of view indebted to larger historical changes that were afoot much the world over in the legal theoretical apparatus for understanding the nature of property. See, for example, Stokes Eric (1978), The Peasant and the Raj: Studies in Agrarian Society and Peasant Rebellion in Colonial India (New York: Cambridge University Press), p. 31.

63 Little biographical detail is available about Baden Henry Baden-Powell. The family's lineage is laid out in detail at http://www.pinetreeweb.com/bp-family-tree-500-years.htm, [accessed 5 February 2015].

64 Baden-Powell, The Land Systems of British India, Vol. I, pp. 218–219.

65 See supra, at notes 47–48.

66 Baden-Powell, The Land Systems of British India, Vol. I, p. 287 (emphasis in the original).

67 Ibid, note 59.

68 Baden-Powell Baden Henry (1882), A Manual of Jurisprudence for Forest Officers: Being a Treatise on the Forest Law and Those Branches of the General Civil and Criminal Law with a Comparative Notice of the Chief Continental Laws (Calcutta: Superintendent of Government Printing).

69 Baden-Powell Baden Henry (1893), Forest Law: A Course of Lectures on the Principles of Civil and Criminal Law and on the Law of the Forest (Chiefly Based on the Laws in Force in British India) (London: Bradbury, Agnew, & Co.).

70 Ibid, p. 6.

71 Baden-Powell, A Manual of Jurisprudence for Forest Officers, p. 2.

72 Ibid, p. 1.

73 Ibid, p. 2.

74 Baden-Powell, Forest Law, p. 19 (emphasis in the original).

75 Ibid, p. 8.

76 Baden-Powell, A Manual of Jurisprudence for Forest Officers, p. 104.

77 Ibid, p. 26.

78 Baden-Powell, Forest Law, p. 15.

79 Baden-Powell, A Manual of the Land Revenue Systems, p. 90.

80 Ibid, p. 86.

81 Ibid, p. 89.

82 Ibid, p. 27.

83 Ibid, p. 26.

84 Baden-Powell, The Land Systems of British India, Vol. I, p. 5.

85 Ibid, Vol. II, p. 237.

86 Baden-Powell (1895), ‘The Permanent Settlement of Bengal’, English Historical Review, X, pp. 276292, at p. 290.

87 Baden-Powell, The Land Systems of British India, Vol. I, pp. 213–214.

88 Ibid, p. 215.

89 Ibid, Vol. II, p. 340.

90 Ibid, p. 341.

91 Ibid, Vol. I, p. 1.

92 Ibid, p. 218.

93 Morris William Connor (1870), The Irish Land Act: 33 and 34 Vict. Cap. 46: With a Full Commentary and Notes (Dublin: E. Ponsonby), p. 39. In a similar vein, it was sometimes said that Ulster tenant right was ‘semi-proprietary’. See, for example, Campbell George (1869), The Irish Land (Dublin: Hodges, Foster, and Co.), p. 154.

94 See, for example, Miller William Galbraith (1884), Lectures on the Philosophy of Law (London: Charles Griffin and Company), p. 125.

95 In the Irish context, texts examining the early land acts in terms of the ‘peasant proprietary’ were numerous. See, for example, Bernard William Leigh (1880), The Irish Land Question: Suggestions for the Extended Establishment of a Peasant Proprietary in Ireland (Dublin: Hodges, Foster, & Figgis); MacDevitt E. O. (1881), A Manual of the Irish Land Acts of 1870 and 1881 (Dublin: Thom), pp. 50, 62; and (1903) The Land Act of 1881: Rent, Peasant Proprietary, and Some Observations on the Congested Districts Board, and on the Departments of Agriculture and Industry (Dublin: John Falconer).

96 Markby was a judge on the Calcutta High Court and later a reader in Indian law at Oxford. He adopted the concept of proprietary right in several jurisprudential works intended for a general audience. See, for example, Markby William (1873), Lectures on Indian Law (Calcutta: Thacker, Spink and Co.); and Markby William (1871), Elements of Law: Considered with Reference to Principles of General Jurisprudence (Oxford: Clarendon Press).

97 Holland was an Oxford-trained barrister who eventually replaced William Blackstone as Vinerian professor of law at his alma mater.

98 See, for example, Pollock Frederic and Wright Robert Samuel (1888), An Essay on Possession in the Common Law (Oxford: Clarendon Press).

99 Holland Thomas Erskine (1882 [1880]), The Elements of Jurisprudence, 2nd edition (Oxford: Clarendon Press), p. 140.

100 Gray and Gray, Land Law, p. 102 (discussing the ‘spectrum of propertiness’, ‘the varying degrees of propertiness’ of ‘proprietary rights’).

101 Holland, The Elements of Jurisprudence, p. 139.

102 Markby, Pollock, and Holland's works on general jurisprudence became widely known, being taken up directly, for example, by famed Harvard law professor Roscoe Pound. Pound adopted a notion of ‘proprietary right’ that borrowed heavily from Holland, especially. See, for example, Pound Roscoe (1920 [1903]), Outlines of Lectures on Jurisprudence: Chiefly from the Analytical Standpoint, 2nd edition (Cambridge, Massachusetts: Harvard University Press).

103 Robb Peter (1997), Ancient Rights and Future Comfort: Bihar, the Bengal Tenancy Act of 1885 and British Rule in India (Richmond, Surrey: Curzon), p. 220.

104 Most recently it is Andrew Sartori who has been revisiting the period Robb has focused on, albeit by way of envisioning a ‘liberal discourse of custom’ and a tradition of property rights under colonial rule that is said to have laid the basis for a form of ‘political argument capable of generating a critique of domination and exploitation’ rather than simply one that was implicated in the colonial state's own projects to this effect. See, generally, Sartori Andrew (2011), ‘A Liberal Discourse of Custom in Colonial Bengal’, Past and Present, 212, pp. 163197; and Sartori Andrew (2014), Liberalism in Empire: An Alternative History (Oakland: University of California Press, 2014), pp. 78.

* I am grateful to all those who have provided feedback on versions of this article which was presented to the University of Pennsylvania's South Asia Studies Colloquium and the School of Law's Writer's Bloc working group, as well to the members of the Delaware Valley British Studies Seminar. I am especially indebted to comments made on earlier drafts by Ramya Sreenivasan, Deven Patel, Lisa Mitchell, Daud Ali, Lynn Lees, Seth Koven, Sarah Barringer Gordon, Sophia Lee, Razak Khan, and Foqia Khan. Gratitude must also be extended to the American Council of Learned Societies, without the generous support of whose New Faculty Fellows Program the drafting of this article would not have been possible.

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Modern Asian Studies
  • ISSN: 0026-749X
  • EISSN: 1469-8099
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