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Law, State and Agrarian Society in Colonial India
Published online by Cambridge University Press: 28 November 2008
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Perhaps the most intransigent problem in the recent history of Indian society remains an adequate understanding of the processes of social change which took place under colonialism. As the continunig controversies within, as much as between, the traditions of modernization theory, Marxism, and the underdevelopment theory make plain, the Indian historical record is peculiarly difficult to grasp with conventional sociological concepts. In the study of Western European society, a focus on the evolution of legal ideas and institutions has proved a useful entry point to social history.The law may be seen to represent a set of general principles through which political authority and the state (however constituted) attempt to legitimize the social institutions and norms of conduct which they find valuable. As such, its history reflects the struggle in society to assume, control or resist this authority. Its study should help to reveal the nature of the forces involved in the struggle and to suggest the implications for social development of the way in which, at any one time, their struggle was resolved. The condition of the law may be seen to crystallize the condition of society. This, of course, could be said of any governing institution. But where the law becomes uniquely valuable is in that, because of its social function, the struggle around it is necessarily expressed in terms of general statements of principle rather than particular statements of private and discrete interest. At the most fundamental level, these principles demarcate the rules on which the contending parties seek to build their versions of society and provide useful clues to their wider, often undisclosed, positions.
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References
Versions of this paper were read to the Commonwealth History Seminar, University of Cambridge, March 1978 and to the annual conference of the Political Science Association, University of Warwick, April 1978. I am extremely grateful for subsequent help, advice and encouragement to Drs Anil Seal, Christopher Baker, Christopher Bayly, John Lonsdale, Tom Tomlinson and Robin Okey. Responsibility for any of the nonsenses, however, is entirely my own.
1For example, Tawney, R., The Agrarian Problem in the Sixteenth Century (London, 1912).Google Scholar More recently, Goody, J. (ed), Family and Inheritance (Cambridge, 1976);Google ScholarThompson, E. P., Whigs and Hunters (London, 1975). The following essay does not necessarily pick up any of the themes raised in these works. The differing historical and historiographical contexts of Indian study make straight translation invalid. It merely also uses the law as a focus on society.Google Scholar
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21 Especially in the towns, much litigation seems to have derived from inter-community disputes about rights to locate houses, conduct businesses, etc. In general, the law attempted to arbitrate these in the light of ‘traditional’ practice. But usually, this meant denying the innovatory group the right to compete with the established group. In a society in which caste and religious status were intimately bound up with economic activities, a preserved tradition was a strong barrier to market freedom. For an example from the earliest period of British rule, see Roche, P. A., ‘Caste and the British Merchant Government in Madras, 1639–1749’, Indian Economic and Social History Review (XII), 1975;CrossRefGoogle Scholar for a later example, see Hardgrave, R. L., The Nadars of Tamilnad (California, 1969), ch. 3.Google Scholar
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36Norton, The Administration. This incompetence showed itself repeatedly in the use by the lower judiciary of British precedents, which were not admissible under the terms of the Anglo-Indian law. The appeal courts probably overturned more judgements for this ‘cardinal’ error than for anything else.Google Scholar
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40 The extent of ‘informal’ arbitrational procedures in Indian society, to supplement the inadequacies of the Anglo-Indian law, remained enormous and provided the real institutional support to property right. This was true to a considerable degree even in urban metropolitan society. See Bayly, , ‘Traditional Merchants’; Dykes, J., Salem: an Indian Collectorate (London, 1853). In the countryside, it was even more true and various types of authority, ranging from dominant caste panchayats to paternalistic zamindar, lineage leader, local notable and village officer justice were available.Google Scholar
41 Cohn, ‘Some Notes’ and ‘Anthropological Notes’. The view that there was (is) a ‘problem’ in the way that Indians litigate and that it derives from the peculiarity of their culture in relation to that reflected in the law, which Cohn assumes without demonstrating, was shared by the British bureaucracy who had their own reasons for not wanting to be subjected to extensive checks from the judiciary. Cohn, and a number of other legal sociologists, appear to have ‘objectified’ colonial prejudices into the bases of social scientific problematics. For alternative views on the sources of Indian litigation, see Kidder, R. L., ‘Courts and Conflict in an Indian City’, Journal of Commonwealth Political Studies (XI), 1973; O. Mendelsohn, ‘The Pathology of the Indian Legal System’, Modern Asian Studies (forthcoming). There are two further difficulties with the Cohn ‘dualistic’ conception of the law, not merely for the Company period but generally. It assumes without demonstraing that the law is not extensively used for prevarication and harassment in the ‘West’ and that nineteenth-century British law, which provided the Western part of the Indian experience, was itself devoid of status-based, non-contractual notions of obligation. Neither assumption seems sound.Google Scholar
42By 1829, the Bengal courts were trying to hear upwards of 190,000 cases a year worth Rs 6 crores in property values. Minutes of Evidence … Select Committee (1832), Apps 2, 6. The expansion never slowed down, and reached proportions of some three-quarters of a million cases a year a century later. Bengal, however, was always exceptional in having, as a result of the Permanent Settlement, no real revenue administration to provide alternative channels between government and society. One suspects that the general view of Indian society as exceptionally litigious derives, in part, from a tendency to read the whole of India in the light of Bengal's peculiar problems. This certainly is the case in J. Furnivall, Colonial Policy.Google Scholar
43Report from the Select Committee on Indian Territories, Appendix, P.P. (X) 1852, pp. 608–95.Google Scholar
44This is suggested both by the fact that the heaviest centres of litigation by far were the courts of the major metropolitian centres rather than the small, semi-rural district towns and by the large participation within them of the ‘higher level’ financial community involved in the finance of government and trade.Google Scholar
45 This raises questions, which can hardly be tackled here, as to the character of pre-British state systems. The issue has been much clouded by the analytical conventions of structural-functional anthropology and the political interests of Nationalists which, together, once presented a picture of rural harmony and equilibrium. Much recent work, however, has begun to challenge these images, at least for the eighteenth century. By the ‘ancien régime’, the author means a state system strongly influenced by Islamic traditions of political centralization, extracting considerable quantities of surplus from the agrarian base and, in the eighteenth century if not earlier, undergoing a commercialization of its institutional forms. His reading derives from such sources as Habib, I., The Agrarian System of Mughal India (Bombay, 1962);Google ScholarPerlin, F., ‘Of White Whale and Countrymen’, Journal of Peasant Studies (V), 1978; D. Singh, ‘The Role of the Mahajan in the Rural Economy of E. Rajasthan during the 18th Century’, Social Scientist, 1974;Google ScholarCalkins, P., ‘The Formation of a Regionally Oriented Ruling Group in Bengal, 1700–1740’, Journal of Asian Studies (XXIX), 1970;Google ScholarLeonard, K., ‘The Hyderabad Political System and its Participants’, Journal of Asian Studies (XXX), 1971;Google ScholarMukhia, H., ‘Illegal Extortions in … Eighteenth Century Eastern Rahasthan’, Indian Economic and Social History Review (XIV), 1977; Stokes, Peasant, ch. 3;Google ScholarRichards, J. F., Mughal Administration in Golconda (Oxford, 1975), chs 2, 8.Google Scholar
46 See, for example, Chaudhuri, B. B., ‘The Land Market in Eastern India 1793–1940’, I and II, Indian Economic and Social History Review (XII), 1975.Google Scholar
47Obviously, the actual fertility of the soil and its irrigation context played a role in determining land's relative economic value. I mean here the relative value of the ‘social’ property right created in it.Google Scholar
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52For example, until the 1840s in most provinces, civil engineering and public works were departments of the military. The first two generations of Company raj represented a military occupation.Google Scholar
53 This was most obviously true of the early ryotwari settlements, see Mukherjee, N., The Ryotwari System in Madras (Calcutta, 1962), chs 3, 5, 10; but, by implication, it was also true of the heavy settlements initially laid on zamindars.Google Scholar
54 In part by recognizing such relations as valid by tradition, in part by doing nothing to disturb the authority of those who commanded labour, in part by commanding labour itself on a caste differential basis and, occasionally, by re-inforcing the authority of ‘masters’. For accounts of dependent agrarian relations, see Kumar, D., Land and Caste in South India (Cambridge, 1965);CrossRefGoogle ScholarHjelje, B., ‘Slavery and Agricultural Bondage in the Nineteenth Century’, Scandinavian Economic History Review (XV) 1967.Google ScholarBreman, J., Patronage and Exploitation (California, 1975), ch. 4.Google Scholar
55Especially in areas where labour shortage was acute. See D. Kumar, Land, ch. 5; also report of Collector of Bellary in ‘General Report of the Board of Revenue’, Madras Revenue Proceedings Nos 1345–46, 4 January 1821, I.O.L.; Breman, Patronage, p. 63.Google Scholar
56 Collector of Bellary, ibid.; for the continuing possibilities of physical movement to avoid revenue exactions in Western India, see Stokes, English Utilitarians, ch. 2.
57 An excellent account of the pragmatism of settlement practice is contained in Rosselli, J., ‘Theory and Practice in North India’, Indian Economic and Social History Review (VIII), 1971; also see R. E. Frykenberg, ‘Village Strength in South India’, Frykenberg, Land Control.Google Scholar
58See Perlin, ‘White Whale’; Stokes, Peasant, chs 2, 3; B. Stein, ‘Integration of the Agrarian System of South India’, in Frykenberg, Land Control, for Vijayanagar and Muslim periods.Google Scholar
59In the turbulence of the early days of, especially, ryotwari settlement, claims sometimes were made that an egalitarian settlement had been made, and occasionally enthusiastic Collectors responded to the claim. However, the élitism of even this, the most direct, form of settlement can be seen in such statements as: ‘It never was intended that the Ryotware [sic] settlement should go lower than the landholders and Meerassidars; it never could have been meant that their cultivating sub-tenants should be immediately included in the engagements with the Circar.’ ‘General Report … 1820’, MRP Nos 1441–47 January 1821, IOL.Google Scholar
60This never was, and never had been static, and it is no part of the case for continuity outlined here that groups currently possessing land did not suffer under the British. There is evidence, especially from North India, that a few ‘resident’ cultivating groups were dispossessed. Metcalf, Land, ch. 3; Stokes, Peasant, chs 3, 6, 7. But the process dispossessing them derived from the politico-revenue system in ways which were not new to British rule. Once again perhaps our judgement of colonial novelty has been made difficult by assumptions about a prior stasis.Google Scholar
61If the penalty for failing to meet British demands was loss of revenue rights and offices, the penalty for failing to protect local subsistence and security needs was migration and occasionally revolt.Google Scholar
62Even the Company admitted that, prior to the 1820s, its revenue demands had been exorbitant and had created chaos. In most provinces, it thereafter set about lowering and regularizing payments. However, from the late 1820s to the 1850s, most parts of India underwent a serious depression in grain prices and the Company's cash demands may not, in the end, have been much lower in real terms although expanded cultivation helped them to be met.Google Scholar
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68In both Bengal and North India, for example, the social composition of revenue rights' holders showed some tendency to move from a basis in the ‘warrior’ to the ‘mercantile’ and ‘bureaucratic’ élites. Sales for default and occasional bureaucratic purges also moved individuals around.Google Scholar
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74Derrett, Religion, chs 9, 12.Google Scholar
75The relative freedom of European businessmen, compared to the restraints on Indian entrepreneurship, created a species of legal ‘dualism’ not essentially dissimilar to that to be found in Dutch Indonesia or, later, in colonial Africa.Google Scholar
76For example, by the later nineteenth century, the number of suits instituted in Madras and U.P. was running at an annual average of over 200,000. See Reports on the Administration of Civil Justice by the various provincial governments, annual series. Bengal, by this time, had broken through the 600,000 a year barrier.Google Scholar
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78The point of crisis, of course, was reached at different times in different places. Bengal may have reached its own limits as early as 1860; parts of Southern India continued to expand to the 1920s. As with all the generalizations in this essay, this one is a loose aggregate hiding many local variations. But the turn of the century has been noted as a watershed in the history of North, Central and parts of South India. See D. Kumar, Land; Stokes, Peasant, ch. 11;Google ScholarNeale, W., Economic Change in Rural India (Yale, 1962), ch. 8;Google ScholarRay, R., ‘The Crisis of Bengal Agriculture’, Indian Economic and Social History Review (X), 1973.Google Scholar
79 These figures refer to gross income from taxation not gross government revenues. Finance and Revenue Account of the Government of India for the year 1880–81 (Calcutta, 1882), pp. 4–5;Google Scholaribid., 1921–22, pp. 3–4.
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81That is to say, entrepreneurial in the commodity and export trades, where indigenous banking capital did most of the local spadework for both the state and British business. There was, of course, no expectation of an active industrial role.Google Scholar
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87 In South India, for example, this was the principal purpose of the Inam Commission, which completed its work in 1869. See A Collection of Papers relating to the Inam Settlement of the Madras Presidency (Madras, 1906).Google Scholar
88From 1864, the Anglo-Indian law ‘assumed’ its knowledge of Hindu ethics to be adequate and dismissed its pandits. Interpretation thus became fixed. Derrett, Religion, ch. 9.Google Scholar
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92These had not been totally separate before but the incidence of cultivators' dispossession as a result of changes in revenue right seems to have been small and unusual. In the years c. 1840–1880, however, it is noticeable that sales of intra-village lands for revenue default took place on a larger scale and that zamindars also were ‘selling’ the lease rights of defaulting tenants. Sometimes these lands fell into the hands of non-members of the agrarian community (such as moneylenders) who had revenue rights earlier.Google Scholar
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97Such petitions were the main business of the various Landholders' Associations. It is clear that some large zamindars, contrary to their general image of feudal sloth, did try to run their estates on profit-maximizing lines and to invest in production and commerce. See Musgrave, ‘Landlords’, pp. 274–5; Stokes, Peasant, ch. 8;Google ScholarKolf, D., ‘A Study of Land Transfers in Mau Tahsil, Jhansi District’, Chaudhuri, K. and Dewey, C. (eds), Economy and Society (Delhi, 1979).Google Scholar
98A leading Nattukottai Chetty gave the character of the legal system as the prime reason why his community preferred to work in South East Asia. Madras Provincial Banking Enquiry Committee. Evidence, IV, p. 243. Under rare favourable conditions ‘banias’ showed themselves capable of undertaking active development roles. See Stokes, Peasant, ch. 11, Kolf, ‘A Study’.Google Scholar
99Especially in the wake of the Punjab Land Alienation Act.Google Scholar
100Many writers, including this one, have discussed the modernization of administration in the later nineteenth century. It was, however, a process initially confined to the nature of the state's own bureaucracy. Reflecting perhaps a continued antipathy to the rule of law, the executive did very little to centralize judicial authority or, critically, to re-build the police until much later.Google Scholar
101See Reports on … Civil Justice for the various provinces. In Madras, as an example, the average waiting time for a suit to be heard was 9–13 months, during which, if it were a debt-suit, interest could accumulate only at the rate of 6¼ per cent per annum, which was derisory in terms of the market rate of interest. Then, of course, the appeals procedure could begin. At all times, about two thirds of petitions for the execution of decrees were classified as wholly or partially infructuous.Google Scholar
102 The continuing ‘diffusion’ of effective authority in late nineteenth-century North Indian society is the subject of Musgrave, ‘Landlords’ and ‘Rural Credit’ and also, ‘Social Power and Social Change in the United Provinces 1860–1920’, Chaudhuri, and Dewey, (eds), Economy and Society.Google Scholar
103The general failure of zamindars and other rentier proprietors to maintain, let alone improve, irrigation works was the cause of endless complaint in this period. As an example, see Land Revenue Madras, 1904–1905, ‘Report on Chingleput’.Google Scholar
104For reasons of analytical convenience, it is going to be supposed that a sharp break can be made between members of the agrarian community, involved closely in the processes of production, and members of a metropolitan community who were distinguishable from the agrarian base and lived (whether capitalistically or feudalistically) on the profits of rent, revenue and commerce. The author is only too aware of the difficulties involved in applying this ‘break’ to reality where, certainly in densely populated and irrigated zones, ‘metropolitan’ groups such as mirasidars, petty Rajput landholders and Brahmin service families held village lands. None the less, he feels that the distinction serves some purpose in highlighting differences in the social and economic constraints on the uses of capital among groups located differently in the social structure.Google Scholar
105Metcalf, Land, chs 11, 12. Among petty landholding ‘service’ groups, investment in education was another use for agricultural profits.Google Scholar
106For the extreme ‘risk-context’ of North Indian banking and mercantile operations, see C. A. Bayly, ‘Old style Merchants and Risk’, paper read at conference on risk in South Asian social and economic history, University of Pennsylvania, 1977.Google Scholar
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111Once more, of course, the degree to which these ‘restraints’ operated was a function of the local agrarian structure and its precise market context. These structures and contexts were given to wide variation and in some areas they permitted considerable agricultural expansion. But it remained quantitative expansion within the existing mode of labour-intensive, small-scale, family-organized production.Google Scholar
112We are beginning to become aware of how far the state apparatus of the ancien régime and early Company rule had not merely extracted surplus but also invested in the means of production through takkavi, irrigation and political production. For examples, see Stokes, Peasant, ch. 3.Google Scholar
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122The Nattukottai Chetties provide the clearest example. By the late 1920s, their overseas assets were thought to be Rs 60 crores. But Western Indian financiers were active in the opening up of East Africa and in the Natal sugar production economy.Google Scholar
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124Binnys of Madras, for example, went into cotton textile production; Parrys of Madras increased their hold on the alcohol distillation industry; in Calcutta, firms such as Andrew Yule speeded up their diversification into industries such as coal.Google Scholar
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132See my Provincial Politics, ch. 1.Google Scholar
133Especially by Musgrave, ‘landlords’ and ‘Rural Credit’; also Charlesworth, ‘Myth’.Google Scholar
134By this I mean an expansion beyond the confines of the ‘middle-man’ commodity trades, where it was confined, to the bases of production.Google Scholar
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136 These sentiments seem to have been particularly strong in North India, where the feudal ‘Oudh’ policy was influential in the U.P. Secretariat and the more peasant orientated ‘Punjab’ school held sway farther West. For discussions of the civilian mentality, see Musgrave, ‘Social Power’; Dewey, C., ‘Images of the Village Community,’ Modern Asian Studies (VI), 1972; Metcalf, Aftermath, chs 4, 5.Google Scholar
137 See Barrier, The Alienation; Broomfield, J., Elite Politics in a Plural Society (California, 1969);Google ScholarJohnson, G., Provincial Politics and Indian Nationalism (Cambridge, 1973).Google Scholar
138 The question of the real benefits to advanced capitalist economies of impoverished colonial satellites was raised by Lichteim, G., Imperialism (London, 1961).Google Scholar
139 This, at least, seems agreed by all the juxtaposed theorists of the colonial Indian economy. See Bagchi, A. K., Private Investment in India 1900-1939 (Cambridge, 1972);CrossRefGoogle Scholar and a review of this by Morris, M. D., ‘Private Industrial Investment in the Indian Sub-continent 1900-39’ Modern Asian Studies (VIII), 1974.Google Scholar
140R. Ray recently has argued that the colonial economy was not underutilizing supply factors to its existing demand capacity. Ray, Industrialization, ch. 3.Google Scholar
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143For examples, see my Provincial Politics, ch. 4; in Bombay, under the terms of the Deccan Agriculturists' Relief Act (1879), village officials had been empowered to arbitrate in debt suits; in Punjab, the courts had long encouraged the use of appointed arbitrators, see Civil Law (Punjab), for example 1868–1869.Google Scholar
144Baker, C. J., ‘Madras Headmen’, in Chaudhuri, and Dewey, , Economy.Google Scholar
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147Henningham, S., ‘The Social Setting of the Champaran Satyagraha,’ Indian Economic and Social History Review (XIII), 1976.Google Scholar
148Hardiman, D., ‘Peasant Agitation in Kheda District, Gujarat 1917–34,’ unpublished Ph.D. dissertation, University of Sussex, 1977.Google Scholar
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153The precise legal understanding of dependent labour relations is difficult to assess. At times, it seems to have stressed the rule of the market but at times the rule of some species of custom. For an interesting case, see Kessinger, Vilyalpur.Google Scholar
154See, for examples, Arnold, ‘Armed Police’.Google Scholar
155 See Report of the Indian Taxation Enquiry Committee 1924–25 (Government of India, 1925), Vol. 1.Google Scholar
156Ibid. For example, about 15–20 per cent of state revenues came from the abkari excise which fell mainly on the cheap liquor drunk by the lower classes.
157 See Darling, M., The Punjab Peasant in Prosperity and Debt (Oxford, 1925), ch. 7.Google Scholar
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160Especially sugar.Google Scholar
161Baker, Politics, ch. 3.Google Scholar
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165 See Mukherji, M., ‘National Income,’ Singh, V. B. (ed.), The Economic History of India (Bombay, 1965).Google Scholar
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176Especially raw cotton which was coming in large quantities from East Africa.Google Scholar
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182Mazumdar, D., ‘Labour Supply in Early Industrialization,’ Economic History Review (XXVI), 1973;Google Scholar on rural/urban wage differentials see Chakravarty, L., ‘Emergence of an Industrial Labour Force in a Dual Economy,’ Indian Economic and Social History Review (XV), 1978.Google Scholar
183 Recently, the point has been strongly disputed by Omvedt, G., ‘Migration in Colonial India’, Journal of Peasant Studies (VII), 1980. But the statistics she herself provides are not so easily dismissed. The sum of Rs 10.7 crores reportedly remitted to six North Bihari districts between 1915 and 1920 is very striking. In Gorakhpur by the 1890s, remittances through the post office alone came to more than the total land revenue demand of the district. I am grateful to Dr Peter Musgrave for this information.Google Scholar
184For the declining share of the social product represented by agricultural wages, see Mukherji, ‘National Income’. The chief problem may have been one of underemployment, for casual agricultural labour frequently was employed only seasonally.Google Scholar
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186Especially in the 1930s, see Baker, Politics, ch. 3.Google Scholar
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189See Report(s) on the Administration of the Police in the Madras Presidency (Annual Series), especially 1929–1939.Google Scholar
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192However, beneath the epiphenomenon of the dyarchic landlord governments, the process consolidating the position of the upper level of village tenants' landholders seems to have continued in U.P. as elsewhere. See Stokes, Peasant, ch. 9.Google Scholar
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194In the upper echelons of the agrarian community, this showed itself less in ‘labour’ than in investment in urban and urban-related undertakings. For examples, see Baker, Politics, ch. 3; Tomlinson, Political Economy, ch. 2. Also, there was drift towards education and the professions, see my ‘Country Politics’. In less hierarchic communities, however, even some of the more substantial farming families were now sending scions to labour elsewhere. See Kessinger, ‘Family Farm’.Google Scholar
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197This is implicit in, for example, Cohn, ‘Notes’ and ‘Anthropological Notes’; and, for the period to 1885, in ‘Structural Change’.Google Scholar
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