HL Deb 26 May 1853 vol 127 cc558-66
LORD MONTEAGLE

presented a petition from the undersigned Hindoo inhabitants of Bengal, Behar, and Orissa, for the repeal of the Act No. 21, of 1850, of the Legislative Council of India, and of certain regulations considered to interfere with the enjoyment by the Hindoo nation of their ancient religion and customs. The noble Lord said that the petition deserved the gravest consideration, and had been placed in his hands by one of the most eminent civil servants of the East India Company, now a Member of the other House of Parliament, Sir Herbert Maddock. There was no doubt of its genuineness, and its prayer marked its oriental origin. The complaint made was important in itself; but he thought it more important, as raising the very delicate question of proselytism, and the progress of Christianity in the East. No one could be more anxious than he was to anticipate the time when the benefits of the Christian religion might be diffused in India; but at the same time he considered that no step should be taken by the Government or Legislature of India which violated the established rights of the native inhabitants, and the understood compact between them and this country, even with a view to the promotion of Christian truth. A wise neutrality was the duty of the authorities, not only on the grounds of policy, but with a view to further our religious objects. By ancient Hindoo law, it was undisputed and indisputable, that a person entitled to ancestral property held it subject to a religious trust—that he held it subject to certain observances of a religious character. If he lost caste, or quitted the religion to which he belonged, he became incapable of performing those religious trusts, and therefore he became incapable of holding an estate be had inherited, not absolutely, but subject to those religious trusts. It was considered in 1832, during the government of India by the late Lord William Bentinck, that this state of the law required alteration; and a clause was introduced into an Act, for the Province of Bengal, providing, that no Hindoo changing his religion should thereby forfeit any advantages of property to which, without such change, he would have been entitled. This change was introduced as a clause in a Bill to which it had no relation. It was in no instance enforced. That ordinance remained dormant, and almost unknown, until 1345, when the whole question was brought incidentally under the consideration of the Law Commission, and that Commission found this singular state of things in the Mofussil—that whilst there was Mahomedan law for the Mahomedans, and Hindoo law for the Hindoos, there was no law for Christians or foreigners not coming within either of those denominations. As a remedy for this the Lex Loci Bill was recommended. The state of Christian converts was considered; it was anomalous, and the Commissioners recommended a remedy in their Bill, and therefore proposed to extend Lord William Bentinck's regulation, which applied only to the Province of Bengal, to the whole of India; but they proposed so doing with amendments. That proposition was even more cautious than the previous regulation, for, whilst the object sought for was to secure to the Christian convert all the advantages of property which but for his conversion he would have possessed, the Lex Loci contained the important reservation of the rights of other parties interested, who, by reason of these religious trusts, and not having abandoned the faith of their forefathers, should not suffer a wrong for the act of another. The Lex Loci preserved to the converted Hindoo all the rights that he could claim without prejudice to others, but it took care that the convert should gain nothing at the cost, expense, and injury of other parties. It was proposed, also, to institute a court of appeal in which the decisions of the inferior courts might be considered, and compensation to unconverted natives should be made, but so as to prevent the intentions of the Government being frustrated. The law thus recommended by the Law Commission was not carried into effect, for want of co-operation on the part of the East India Company. Thus the matter stood until 1850, when the subject was again resumed, and an Act passed for the same object, but differing in one important particular from the Lex Loci framed by the Law Commission, inasmuch as it absolutely secured the Christian convert all that he could have possessed if he had remained a Hindoo, without those legal religious obligations which it was his duty to perform, but which were cast on others. This law of 1850 deprived other parties of rights, privileges, and property, which they would have been entitled to under the old law. This was done by increasing their responsibilities, whilst those of the converts were reserved altogether. It was against this law of 1850 that complaint in the present petition was made, and its evil effects were pointed out, not only on the ground, of the hardships inflicted by its provisions, but because it went beyond the intention of its framers. For instance, if an ancestral property were held by four brothers having equal rights and burdens—on the conversion of one he kept one-fourth of the estate free, whilst the burden of the four was cast on three. But besides this, the law embraced many cases not contemplated at all. For instance, loss of caste did not arise solely on the ground of conversion, but became a penalty for immoral or illegal conduct; and the Act of 1850 saved the rights of the party who had lost caste by reason of immorality or violation of the law, as sacredly as the rights of the Christian convert. The effect of the change was also to alter the laws of inheritance, and to divert property to other parties than those in whom it was rightly vested. The petitioners put their complaint on a ground of compact as well as on that of justice. They stated that from the earliest time of our possession of India—above all, in those times when the inhabitants of India were strong, and the English settlers were weak—we pledged ourselves in the most solemn manner especially to respect the laws of inheritance, of marriage, and religion, in our territories. They referred, in proof of that assertion, to the Act of 1781, when this question was considered and discussed by the greatest men that England, or perhaps Europe, had ever seen. The preamble of the Act of 1781 ran as follows: "Whereas it is expedient that the inhabitants of India shall be maintained and protected in the enjoyment of all their ancient laws, usages, rights, and privileges;" and the 17th section provided, that "their inheritance and succession of lands, rents, and goods, shall be determined, in the case of Mahomedans, by the laws and usages of Mahomedans, and in the case of Hindoos, by the laws and usages of Hindoos." By section 18 of the same Act it was provided, in order that regard might be had to the civil and religious views of the natives, that "the rights and authorities of fathers and masters shall be preserved to them, as they might have been exercised by Hindoo or Mahomedan law." Then, in the regulations of 1793, it was stated, that The many valuable privileges and immunities conferred on the natives of these provinces must satisfy them that the regulations which may be adopted for the internal government of the coun- try will be calculated to preserve to them the laws of the Shaster and the Koran in matters to which they have been invariably applied, to protect them in the free exercise of their religion, and to afford them security in their persons and property. In the last Charter Act of 1833, an Act conveying the intentions of Parliament to the Law Commissioners, it was provided, "That in the alterations which the Law Commission might recommend, due regard shall be had to the distinction of castes, difference of religion, and manners, and opinions prevailing among different races and different parts;" and it was also declared by the 87th clause, that there should be "no disabling exclusion on account of sect, colour, or religion." It was clear that one of their first duties to the inhabitants of India was, that there should be secured to them the privilege of being fairly and dispassionately heard upon all these questions, one of their complaints being that a hearing was not now afforded them by a sufficiently public authority. In making these observations, it was hardly necessary for him to say that he was not insensible to the importance of an extension of the Christian religion in India; but he deprecated that this should be sought by unworthy means; but, looking at the page of history, he was certain that even the purest of all religions was best propagated by its own weight and its own recommendations, and that any attempt by indirect means to produce conformity was the surest way to prevent so holy and sacred a cause as that of the extension of religion from acquiring success. The Act complained went further than to secure the convert from loss—it held out to him a pecuniary benefit. An estate, subject to an onerous trust, was in the hands of a convert made an estate absolute. An estate strictly entailed was made capable of being bequeathed. All this was indefensible, and of this the petitioners complained; the more because the benefits granted thus to the convert, were granted at the expense of others, namely, the unconverted.

The EARL of ELLENBOROUGH

said, after the clear and accurate statement of his noble Friend, he should not be justified in detaining their Lordships more than a few moments. But, considering the station he had held at one time in India, and having taken considerable interest in this question, he felt bound to express his entire concurrence with what had fallen from the noble Lord. He must say he did think the petitioners were placed under a very great grievance by the legislation which had taken place; and he must also declare that that legislation was in principle altogether inconsistent with all Parliamentary precedents, inconsistent with all the pledges which from time to time had been made by successive Governments, and inconsistent with the practical condition upon which we held dominion in that country—the condition of respecting the laws and religion of the people. Hostile as he was to the measure of which the petitioners made complaint, pregnant as he thought it was with injury to our interest in that country, without in any degree underrating those higher interests to which his noble Friend had adverted, he was certainly of opinion that in practice it did not produce very great evils; and on this account—that the number of converts, pseudo-converts, to Christianity was at the present time so infinitely small, that there were very few cases indeed in which the Act could be called into operation. The strongest proof of that was, that from 1832 to 1845 the existence of that law to which his noble Friend had adverted, was absolutely unknown to the people. At that time it was not customary to publish the laws which were passed regarding India, and the people had no means of becoming acquainted with the intentions of the Legislature. How far that law had been translated he knew not; but he confessed, combining all his practical observations with an endeavour to comprehend the enactment, he should have great difficulty in explaining what was intended by the Legislature. It was said the Act of 1850 was passed to extend the principle of the Act of 1832; and yet the Act of 1850 was passed without any of the provisions and without any of the securities which in 1845 were thought absolutely necessary to prevent its working mischief, injury, and injustice upon the persons who ought not to have been affected by it. But still he believed, from the experience he had acquired when in that country, the operation of the Act was not very prejudicial. He recollected asking an archdeacon, or clergyman, he was not sure which, in India, whether, instead of employing Mussulman candle snuffers and Hindoo Punkah pullers in the Christian churches in India, they could not employ in the performance of such duties Hindoos converted to Christianity? The answer which he received was, that they had not got enough of them. This, too, in Calcutta, where it would have been thought that conversions would have been most numerous. While in Allahabad, he had the honour of being waited upon by an American missionary; and upon asking him if they ever made any converts, he was informed that they never did, except when they had some office to bestow upon them. With respect to dealing with so difficult a subject, he concluded that it would have been much better, in the existing anomalous state of things, to have avoided legislation altogether. The Act of 1850 was passed without regard to the securities which had always been maintained for the preservation of the rights of the natives, and accordingly it was open to all the objections which the noble Lord had stated. Let the House observe what immoral motives the existing Act suggested to the native population of India. A missionary could now go to the Hindoo and tell him that if he came over to the Christian faith, he would be capable, not only of holding all his ancestral property, but would not be subject to the fulfilment of those Conditions Upon which, as a Hindoo, he inherited it. These conditions, it was true, we might think very wrong, but which were extremely dear to the Hindoo, who was taught from his earliest youth to respect his ancestors, and to perform certain rites considered to be conducive to their happiness. More than this, the Hindoo might be told that if he had a wife, and wished either to get rid of her, or to live with her, he would be enabled to do so. If he wished to live with her, however, his wife as a Hindoo might object to live with one whom she abhorred because of his change of religion; but the law could compel the wife to give him his conjugal rights. If, on the other hand, the convert did not wish to retain his wife, his taste could be equally well studied, as he would be enabled to get rid of paying her maintenance. But it often occurs that in India a man had more wives than one—he might have two wives, an old one and a young one—and under the provisions of this Act he might take the young one to live with him, and leave the old one destitute, or abandon the young and remain with the old one. Beyond this, a Hindoo might have more than two wives, he might have a dozen, and still this accommodating law gave him as a convert the power to take every one of them, and in his Christian State every one of them would be considered as much his wife as if they had been legally married to him when in his Christian state. A most monstrous state of confusion would inevitably arise from the operation of this Act. In cases where conversion had nothing to do with the matter—such as gross immorality, incest, or other offences against morality and decency, where the offender would lose caste, become an outcast, and become no longer entitled to the ancestral property which he hold, because incapable of performing the conditions which it imposed—a person so bad, excluded from the society of his own caste, and perhaps the society of all mankind, would by this Act, if he only said that he had been converted to Christianity, become entitled to hold all his property. It was not to be wondered at that such a law excited the remonstrances of the natives of India. They were entitled to look upon this as only the first indication of an intention on the part of the Government to interfere with their religion, or with Such laws as were connected, with their religion. The Hindoos had always considered themselves safe from any interference of this kind, and consented, on the condition that their laws and religion should be maintained intact, to accept the British nation as their governors, and had ever been faithful subjects of the British Crown. But it could not be expected, considering they were to be subjected to an altered system, of which this was the commencement, that the feelings of the Hindoos towards the British Government would remain as they were. We were safe in India only so long as we adhered to the principles by which we had won it. That which was essential to our existence there, without which our dominion there would not be safe for three weeks, was a continued respect for the religion of the people, and for those laws of property which depended Upon that religion. He trusted, therefore, that this subject would be one which would receive the most Serious consideration from Her Majesty's Government.

EARL GRANVILLE

said, it was not his intention to prolong this discussion; but if all the Members of Her Majesty's Government were to remain silent after what had fallen from the noble Earl and the noble Lord who presented the petition, it might be considered that they either admitted the case against this law to be as strong as it had been put by the noble Earl, or that they did not feel that perfect sympathy with the Native population of India, and thought that in justice and policy they were not bound to respect the laws and customs of the different populations of India. The noble Lord who presented the petition had omitted to state that the securities to which he had referred had been strongly objected to by the Supreme Court of India. With respect to the law passed in 1850, he was not then prepared to state whether it was so carefully worded as to meet every possible case which might occur in one of the most complicated subjects in the legislation of India, but felt quite sure that the principle of the law was ft just one. The noble Earl had referred to the engagements which the natives of India considered we had entered into with them with regard to their laws and customs, and he referred to the Act of Geo. III., in which those engagements were held forth. Now, he believed that by the Very words of the Act he quoted, the laws and customs of every class were alike provided for. The same laws were made applicable in common to all classes of the Native population. If a Hindoo became a Mahometan, that, as a Mahometan, he would have the right to be protected in the possession of the property which he might possess; that, however, was incompatible with Hindoo law, which provided that the property should be taken away from a man if he changed his religion; but this equality did not exist if they left a penalty upon any person who embraced the Christian religion. The noble Earl, moreover, was certainly not justified in speaking of the law in question as the beginning of a system of interference with native customs. We had interfered in the matter of Suttees, and, he believed, it was now admitted that that cruel ceremony was not necessarily connected with the religion of the Hindoos. Then, again, the Marquess of Wellesley interfered to suppress the barbarous practice of exposing children on the Ganges. In like manner when there was a law really injurious to the feelings of the community, the Government would feel it its duty to refuse its sanction to such a law. He entirely agreed with the noble Earl in deprecating any attempt to propagate Christianity, or any portion of Christian truth, among the Hindoos, either by mercenary promises, bribes, or force. He was surprised to hear that this law had been described as a means of bribing Hindoos to the profession of the doctrines of Christendom. All that the law did was to prevent strict penalties being attached to any one who, from Conscientious motives, changed his religious opin- ions. He trusted, therefore, that their Lordships would consider with him that the general principle of the law complained of was fair and reasonable, and consistent with the real justice of the case.

The EARL of ELLENBOROUGH

expressed a hope that the Government would look carefully into the wording of the Act, and they would confer a benefit on the Hindoo by providing that he should be no better or no worse off by changing his religion, rather than as at present affording inducements for making such a change. He suggested that provision should be made that, in the event of a Hindoo leaving his religion, a portion of his ancestral property should be made over to some members of his family who would perform the conditions belonging to such property;

Petition referred to the Select Committee on the Government of Indian Territories.

House adjourned till To-morrow.