Factors promoting acceptance of the package of formal practices Traill introduced regarding revenue during the early Extra-Regulation period were not limited to their alignment with the sentiments and interests of ordinary cultivators, their light rate of
144 Traill, G. W. to Home, D. - Acting Secretary to the Board of Revenue indecopherable, 2/1/1829, KDRLI, vol:
10.
145Traill, ‘Statistical Sketch of the Kumaon,’ p. 207.
146 Lieutenant-Governor N. W. P, Directions for Settlement Officers: Promulgated Under the Authority of the Honorable the Lieutenant-Governor of the North-Western Province, (Agra: Miller, R, 1844). Agra, 1844.
145 assessment and the convenience of the modes of collection, however. Just as
importantly, rather than the customary rights over land of most landholders being obliterated as they had been by the Permanent Settlement in Bengal a generation earlier, the property rights of the vast majority of Kumaonis over arable land were both affirmed and enhanced through Traill’s formal governmental practices. As with Traill’s revenue system, these affirmed and enhanced property rights did not emerge suddenly in a single legislative statement.
Traill appears to have rapidly acquired a working knowledge of property law in Kumaon through consultation with both prominent and ordinary Kumaonis—a working knowledge that he was able to test in his open court and at the revenue panchayats he conducted while on tour. Despite the then emergent understanding of law as ‘a rule prescribed by a superior power’ as advanced by Blackstone, English jurisprudence of the time remained centred on a network of maxims, practices, and remedies that could not be reduced to a set of textually mediated rules. Within these mainstream juridical practices of the time, law was largely unwritten leges non scriptea and found in the everyday
propertied lives of the community.148 It was, as William Jones put it, ‘[t]he will of the whole community as far as can be collected with convenience.’149
For Traill, the property law of Kumaon may have existed initially and briefly as unwritten law functioning entirely on an oral basis. However, he was a creature steeped and trained in the formal governmental practices of the Company. As soon as Traill began to record his judgments in his case reports, in each instalment of his
correspondence with Newnham, and when he communicated his understanding of property law to the world in his ‘Statistical Sketch’ of 1828, the property law of Kumaon began its transformation from being based in orally mediated custom to being based in a textually mediated form.150
148 Wilson, The Domination of Strangers: Modern Governance in Eastern India, 1780–1835, p. 79.
149‘No. 187 Jones to Vicount Althorp, 21 November 1779’ in Garland Cannon, ed. The Letters of William Jones, 2
vols., vol. 1 ,2 (Oxford: Clarendon, 1970), p. 334. Original emphasis.
150 Traill, G. W. to Oldfield, H. L. – Secretary to the Board of Commissioners Furukabad, 14/3/1821a, KDRLI, vol:
146 As outlined earlier, the property law of Kumaon found its mature form in Traill’s report of his second quinquennial ‘Settlement Report’ dated 2 January 1829.151 It is from the understanding of land tenures in Kumaon found in this Report, while not dispensing with his earlier texts, that much of the following description of Traill’s Kumaon
settlement and property rights model flows.
Traill began by asserting that, in accordance with the custom of the region, the paramount property right to the soil was vested in the sovereign and that the Company now held this right by conquest.152 He reported that this right was not only universally theoretically acknowledged, but could also be deduced from the sovereign’s ability to divest property holders of their lands without compensation.153 Traill argued that it was on this paramount property right that the right of the sovereign to levy rent was founded.
Excluding a small number of royal estates, arable land (other than in the Terai) was parcelled out to landholders who held the land in inheritable and transferable, but not indefeasible ‘customary tenancies.’154 Traill asserts that these tenancies had two origins. Those of the tiny immigrant thuljat elite were based in royal grants, while those of the majority indigenous Khasa ‘derive[d] their title solely from long-established occupancy.’155 Both of these forms of tenancies gave the tenant property in the soil granted in th,hat or rote (rote when granted to the heirs of those killed in battle).156 Emphasizing the egalitarian nature of Kumaoni society and the small size of most
holdings, Traill estimated that more than 60 per cent of cultivators held their land on the basis of th,hatwan. Land newly brought into cultivation, an accelerating phenomenon during the Extra-Regulation Order, was granted to the reclaimer in th,hatwan as compensation for the expenses of his enterprise.157
151A good deal of Traill's views on Hill Tenures and modes of disposal is found in Traill, ‘Statistical Sketch of the
Kumaon,’ pp. 175-77. However, his Settlement Report of 1829 was considered by him and widely accepted as the mature form of his analysis.
152 Traill, G. W. to Home, D. - Acting Secretary to the Board of Revenue indecipherable, 2/1/1829, KDRLI, vol:
10, para. 12.
153 Ibid., para. 13. 154 Ibid., para. 12.
155 Traill, G. W. to Oldfield, H. L. – Secretary to the Board of Commissioners Furukabad, 14/3/1821a, KDRLI, vol:
7, para 21-21.
156 Traill, G. W. to Home, D. - Acting Secretary to the Board of Revenue indecipherable, 2/1/1829, KDRLI, vol:
10.
147 Of the remaining 40 per cent of cultivators, about half were resident tenants, who, although not holding the th,hatwan, held rights of occupation to that soil.158 The first category of these tenants were designated as khaekur who enjoyed an inheritable, though not transferable right of cultivation. The second category of tenants were designated as kurnee who, as long settled tenants, differed little from the khaekur except in a small difference in the share of their produce that they paid in rent. Both khaekur and kurnee paid rent in koot (kind) to the th,hatwan holder with the kurnee also liable to perform service.159
The final 20 per cent of proprietors were non-resident and designated as paekasht who paid a negotiable cash quit rent not tied to custom. With an abundance of
uncultivated land at the time and a shortage of tenants, Traill asserted that rent for paekasht was always at a rate more favourable than that paid by the khaekur and paekasht.160
Traill’s categories of property rights can be summarized as:
Name of tenancy and subtenancy Nature of tenancy and percent of total
produce ON AVERAGE retained by the cultivator
th,hatwan 80% - Head tenant
khaekur 70% - Sub-tenant with hereditary, but not
transferable rights to the land. Pays his rent in koot (kind).
kurnee 66% - Sub-tenant-serf without hereditary
rights, but by long occupancy coming to acquire them. Pays his rent in koot (kind)
paekasht 75% - Sub-tenant who paid a cash quit
rent at a favourable market rate.
158 Traill, G. W. to Home, D. - Acting Secretary to the Board of Revenue indecipherable, 2/1/1829, KDRLI, vol:
10.
159 Ibid., para. 21. 160 Ibid., para. 22.
148
Table 4.1 Tenancies in Kumaon. Traill, G. W. to Home, D. - Acting Secretary to the Board of Revenue indecipherable, 2/1/1829, KDRLI, vol: 10, para 33.
Traill’s four categories of tenancy are far from unnuanced though, and he takes account of how a plethora of practices, especially forms of sale, added great complexity to the nature of each tenancy.161 Sales could be dhali boli (absolute) where the purchaser became vested with the same rights and obligations as the seller. Alternatively, the sale could be mat where the vendor remained responsible for the annual tax demand until his death. There was also another form of mat where the vendor could resume the lands on payment of the purchase price as well as a form of mortgage called banhak, where
redemption was expressly barred after a designated period or barred indefinitely.
Recognition of and then translation of these customary tenures into a legible form that could be used in the everyday practices of Traill’s courts was a basic factor in the acceptance of the new Company revenue practices in Kumaon (see chapter 6). However, over and above the impact of these everyday practices, there was also an implicit
fundamental transformation in the basis of property rights during the Extra-Regulation Order that, in the longer run, was an even more important factor. This was that the Company abandoned its despotic right to dispossess landholders without compensation.
As outlined earlier, Traill began his discourse on tenures in both the ‘Statistical Sketch’ and his ‘Settlement Report’ of 1829 with the assertion that paramount property in the soil is vested in the sovereign and it was on this basis that the sovereign was able to demand a share of the produce of the land.162 He outlined that as part of this paramount property right, the sovereign was able to dispossess any landholder from his land without the landholder defaulting in his obligations and without the sovereign having to
compensate the landholder for his dispossession. Such dispossessions were undoubtedly ‘highly unpopular,’ as Traill put it, but, given the turbulent nature of Kumaoni politics in the eighteenthcentury and the sovereign’s need to reward his changing group of
supporters with land, such arbitrary transfers had been frequent in the area around Almora prior to Company occupation.163
161 Traill, ‘Statistical Sketch of the Kumaon,’ pp. 176-77.
162 Ibid., p. 176; Traill, G. W. to Home, D. - Acting Secretary to the Board of Revenue incecipherable, 2/1/1829,
KDRLI, vol: 10, para. 12.
149 However, once Traill had used this argument to support the Company’s right to collect land taxes, he then entirely dispensed with it in his day-to-day legal, revenue, and administrative practices. Traill never, in practice, asserted the right to dispossess a landholder without compensation and went to significant lengths to protect landholder from encroachments and dispossession by the military and any other persons. Most importantly, Traill never dispossessed a landholder from his land, even if the landholder had defaulted on his revenue obligations—a practice that had proven to be incredibly destructive in Bengal.164
Traill’s sustained unwillingness to dispossess landholders, either arbitrarily or when they were in default of their land-tax obligations, eventually negated the right of the sovereign to make such dispossessions. In doing so, he transformed the customary rights of Kumaoni cultivators over arable land into the property rights that continue to the present day. This more stable form of property rights would prove to be very popular with Kumaonis.
Traill himself summarized the impact of the new revenue and property model on the clear majority of Kumaonis, probably without too much hubris, as:
With all these advantages, the circumstances of the great mass of agriculturalists are easy, and though instances of wealth in that class be rare, at the same time similar destitution as prevails among the low cultivators in the plains, is uncommon.165
Similarly, in his valedictory report, and again probably without too much hubris, Traill summarized the impact of his revenue and property systems on Company coffers as:
In relinquishing a charge of 20 years duration I may be pardoned for offering a brief notice of my revenue management.
The land revenue of the province has during that period been doubled, & the whole up to the past year has been realized, without a single
164 Traill, G. W. to Macaulay, Charles - Secretary to the Government of the Agra Presidency Judicial and Revenue
Department, 30/11/1835, KDJLI, vol: 30.
165 Traill, G. W. to Home, D. - Acting Secretary to the Board of Revenue indecipherable, 2/1/1829, KDRLI, vol:
150 resumption, without a sale of a single estate & without the imprisonment
of a single Mazuldoorar (pottah holder).166
The meeting of Kumaoni customs around land-tax revenue and property rights with the emergent governmental practices of the East India Company during the early Extra-Regulation Order stands in sharp contrast to the experience of much of the North Indian heartlands. There was no Permanent Settlement in Kumaon, rent extraction would not reach destructive levels, and the property rights of ordinary cultivators were not obliterated. Free of the palimpsest of the late-Mughal machinery of government and the imperative to show an immediate profit, Traill developed a novel revenue system that emphasized the interests of most Pahari farmers and yet, in the longer term, maximized the flow of revenue to the Company’s treasuries. Moreover, within the process of documenting his settlements, Traill gave the hill men’s property rights a stable and enhanced textually mediated form that would shape financial relations between the zamindars, the region’s elites and the Company for the remainder of the Extra- Regulation Order.
However, these financial relations were not the sole factor shaping relations within Kumaon’s colonial political economy. Of equal significance was the direct, personal and positive relationship that began to develop when Traill and the zamindars met to set the jumma in open panchayat. This relationship would also play out and be enhanced in Traill’s everyday court practices where he took on the role and function of a sovereign of the ancien régime as the dispenser of justice.
166 Traill, G. W. to Macaulay, Charles - Secretary to the Government of the Agra Presidency Judicial and Revenue
151
Chapter 5, Criminal Justice
It will be evident that crimes are in no way prevalent [in Kumaon]. Indeed there is probably no similar portion of the Globe of similar extent where there exists a greater absence of every kind of criminal offences, any measure therefore of prevention would be wholly superfluous.1
G. W. Traill, July 1822 Traill believed the Paharis to be the most honest and crime free people on earth. They were ‘nature’s children’ and what sins they had were the sins of innocents. Like innocents, they needed instruction, gentle correction and protection from a cruel and corrupting world far more than they needed harsh punishment.
Traill was not alone in these views, and this positive assessment of the character of the Pahari arose spontaneously and independently at every point of contact between Company and the hill people whether in Kumaon or amongst the petty Hill States to the West. Rapidly shared and generalized amongst the foreign community, and applied to all the people of the Company’s Himalayan territories, this widely held ‘affective feeling,’ as the anthropologist Karine Gagné put it recently, formed the basis of a positive emotional disposition towards the people of the hills.2 In the light of this disposition, and as they had with revenue matters, the Company-Government decided not to impose their regulations on crime, policing and punishment in Kumaon. Rather, they enacted Regulation X of 1817 (see Appendix 5.1), which decoupled criminal justice in the hills from the practices of the plains and placed much of the development of an alternative criminal justice model into George Traill’s hands.
With crime so rare in the hills, Traill’s criminal justice model was not a major site of interaction between the Kumaoni people and the Company’s emergent formal
governmental practices. Unlike the provision of begar or interaction with the revenue system, most Kumaonis had little or nothing to do with the Company’s practices around crime, policing or punishment. Nevertheless, the hybrid criminal justice system that emerged was a site of intense innovation that was both firmly grounded in the practices
1 Traill, G. W. to Glyn, R. T. as Commissioner under Regulation X of 1817, 19/7/1822, KDJLI, vol: 25.
2Karine Gagné, ‘Building a Mountain Fortress for India: Sympathy, Imagination and the Reconfiguration of Ladakh
152 of the region’s customs and yet also at the cutting edge of modern administrative
practice.