VILLAGE-COMMUNITIES 
 
 EAST AND WEST. 
 
BY THE SAME AUTHOR. 
 
 ANCIENT LAW: ITS CONNECTION WITH 
 THE EARLY HISTORY OF SOCIETY, AND ITS 
 RELATION TO MODERN IDEAS. 4th Edition, 
 8vo. 12s. 
 
VILLAGE-COMMUNITIES 
 
 IN THE 
 
 EAST AND WEST. 
 
 SIX LECTURES DELIVERED AT OXFORD 
 
 BY 
 
 HENEY SUMNEE MAINE, 
 
 CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY, 
 
 FORMERLY LAW MEMBER OF THK SUPREME (iOVKRXMENT OF INDIA, 
 
 AUTHOR. OF ' ANCTEX.T LAW.' 
 
 LONDON : 
 JOHN MUEEAY, ALBEMARLE STREET. 
 
 1871. 
 
 The riglit of translation in reserved. 
 
pniNTKn BY 
 
 SPOTTISWOODK AND CO., NJiW-STRKET 8QUAKI 
 AND PAULIAMliM' STKKKT 
 
PREFACE. 
 
 THE Six LECTURES which follow were designed as 
 an introduction to a considerably longer Course, of 
 which the object was to point out the importance, 
 in juridical enquiries, of increased attention to the 
 phenomena of usage and legal thought which are 
 observable in the East. , The writer had not intended 
 to print these Lectures at present; but it appeared 
 to a part of his audience that their publication might 
 possibly help to connect two special sets of investi- 
 gations, each of which possesses great interest, but 
 is apparently conducted in ignorance of its bearing 
 on the other. The fragmentary character of the work 
 must be pleaded in excuse for the non-performance 
 of some promises which are given in the text, and 
 for some digressions which, with reference to the 
 main subject of discussion, may appear to be of un- 
 reasonable length. 
 
 The eminent German writers whose conclusions 
 
VI PREFACE. 
 
 are briefly summarised in the Third and Fifth 
 Lectures are comparatively little known in England, 
 and a list of their principal works is given in the 
 Second Appendix. For such knowledge of Indian 
 phenomena as he possesses the writer is much in- 
 debted to the conversation of Lord Lawrence, whose 
 capacity for the political direction of the natives of 
 India was acquired by patient study of their ideas 
 and usages during his early career. The principal 
 statements made in the text concerning the Indian 
 Village Communities, have been submitted to Mr. 
 George Campbell, now Lieut. -Governor of Bengal, 
 who has been good enough to say that they coincide 
 in the main with the results of his own experience 
 and observation, which have been very extensive. 
 No general assertions are likely to be true without 
 large qualification of a country so vast as India, 
 but every effort has been made to control the state- 
 ments of each informant by those of others. 
 
 Some matter has been introduced into the Lectures 
 which, for want of time, was omitted at their de- 
 livery. 
 
 February 1871. 
 
CONTENTS. 
 
 LECTURE I. 
 
 THE EAST, AND THE STUDY OF JURISPRUDENCE. 
 
 Comparative Jurisprudence Comparative and Historical Methods 
 The Past and the Present Limits of Comparative Jurisprudence 
 Method of Comparison Enquiries of Von Maurer The Mark and 
 English Law Eastern and Western Communities Characteris- 
 tics of Indio-Modern Theories of Race The Patriarchal Family 
 Barbarous Forms of the Family Origin of Law in the Family 
 Village Community Law of Nature Codified Brahminical Law 
 Feudal System Conditions of Juridical Study English Ignor- 
 ance of India Disappearance of Indian Phenomena Influence of 
 Western Ideas Influence of Physical Science Influence of British 
 Empire PAGE 1 
 
 LECTURE II. 
 
 THE SOURCES OF INDIAN LAW. 
 
 Indian Settlements Settlement and Revenue Courts The Civil 
 Courts The Indian Judicial System The Supreme CourtsEnglish 
 Law in India Indian Opinion on English Law Locality of Custom 
 The Will of Bengal Wills and Collective Property A. Modern 
 Indian Will The Sudder Court Influence of Sudder Courts De- 
 velopment of Hindoo Law Effect of Juridical Commentaries The 
 Bar and English Law Mahometan Law The Pundits Codified 
 Hindoo Law Varieties of Native Usage The Written Law Hindoo 
 Widow's Estate Preservation of Customary Law Caste in India 
 Tradition Different Forms of Tradition Popular Ignorance of Law 
 in England The Experts and English Law Indian and Teutonic 
 Village Systems 29 / 
 
Vlll CONTENTS. 
 
 LECTURE III. 
 
 THE WESTERN VILLAGE COMMUNITY. 
 
 Antiquity of Indian Customary Law Traditional Law Analysis of a 
 Law Indian Conceptions of Law English Influence on Legal Con- 
 ceptions Unwilling Assumption of Sovereignty Influence of Courts 
 of Justice Change in Nature of Usage Growth of Conception of 
 Right Influence of English Law Connection of Eastern and 
 Western Custom Von Maurer The Teutonic Village Community 
 The Arable Mark English Theories of Land-Law The Arable 
 Mark in England Shifting Severalties The Common Fields Their 
 Great Extent Extract from Marshall Scott on Udal Tenures 
 Commonty of Lauder Peculiarities of Scottish Example Vestiges 
 of the Mark PAGE 63 
 
 LECTURE IV. 
 
 THE EASTERN VILLAGE COMMUNITY. 
 
 The Indian Village Community Mahometan Theory of Ownership 
 Land Settlement of Bengal The Indian Proprietary Unit The 
 Indian Village The Cultivated Land The Growth of Custom 
 Water Rules The Sources of Primitive Law Customs of Re- 
 partition The Village Secrecy of Family Life Dislike of English 
 Criminal Law Fictions Attending Legislation Village Rules 
 Origin of Indian Towns Indian Capitals The Village Waste 
 The Indian Wastes The Government and the Wastes The Village 
 Council Peaceful Character of Population Hereditary Trades 
 Remuneration of Village Traders The Outsiders Absorption of 
 Strangers by Community . 101 
 
 LECTURE V. 
 
 THE PROCESS OF FEUDALISATION. 
 
 Feudalism The Benefices The Manor The Manorial Group New 
 Condition of the Waste Changes in the Grass-lands The Free 
 Tenants Settlements of Villeins The Manorial Courts Encroach- 
 ments of the Lord Roman and Feudal Law Causes of Feudalisation 
 Growth of Suzerainties Leading Families Elements of Feudal 
 System Systematic Feudalism Antiquarianisni of Indian Politics 
 Political K'si.iltfi of Settlements Various Forms of Settlement 
 
CONTENTS. IX 
 
 Growth in Power of Official Holder Mahometan Assumptions 
 Indian Schools of Opinion Indian Forms of Property The Headman 
 Property Recognised by the English Absolute Ownership Nature 
 of Rights of Property Development of Absolute Ownership 
 Vested Rights in India The Feudalisation of Europe Cultivation of 
 Waste-land Improvements in Tillage Village Communities and 
 Customs Customary Tillage Servile Dependants of Villagers 
 Villages cease to absorb Strangers Nasse's Work The Statute of 
 Devises Rules for Construing Wills Restraints on Testamentary 
 Power . PAGE 129 
 
 LECTURE VI. 
 
 THE EARLY HISTORY OF PRICE AND RENT. 
 
 Structure of Village Communities Divisions of the Community Pro- 
 perty within the Community Traditions as to Rights Exactions 
 of Indian Sovereigns Indian Rent Difficulty of Question Anglo- 
 Indian Ideas Customary and Competition Rents The Protected 
 Tenants Indian and English Forms of Property True Character of 
 Problem The Irish Clan Rack-Rent paid by Strangers Primitive 
 Notions as to Price Early Measure of Price Basis of Political 
 Economy The Market Markets and Neutrality Influence of Market 
 Law Sentiments adverse to Political Economy Primitive Com- 
 mercial Principles Influence of Carrying Trade Price and Rent 
 Market for Land in England New Information required Village 
 Communities in America ........ 173 
 
 APPENDICES 203 
 
 INDEX 217 
 
Errata. 
 
 Page 7, line 15, for it is removed from it read one is removed from 
 the other. 
 
 Page 61, line 16, for coincidence with the writers read coincidence 
 with the conclusions of the writers. 
 
 Page 168, line 24, insert the words Writers on the between the word 
 English and the word records. 
 
 Maine's Village Communities. 
 
VILLAGE -COMMUNITIES 
 
 IN THE 
 
 EAST AND WEST. 
 
 LECTURE /. 
 THE EAST, AND THE STUDY OF JURISPRUDENCE, 
 
 B 
 
CONTENTS. 
 
 Comparative Jurisprudence Comparative and Historical Methods 
 The Past and the Present Limits of Comparative Jurisprudence 
 Method of Comparison Enquiries of Von Maurer The Mark and 
 English Law Eastern and Western Communities Characteris- 
 tics of Indio-Modern Theories of Race The Patriarchal Family 
 Barbarous Forms of the Family Origin of Law in the Family 
 Village Community Law of Nature Codified Brahminical Law 
 Feudal System Conditions of Juridical Study English Ignorance 
 of India Disappearance of Indian Phenomena Influence of Western 
 Ideas Influence of Physical Science Influence of British Empire. 
 
LECT. i. THE STUDY OF JURISPRUDENCE. 
 
 LECTURE I. 
 
 THE EAST, AND THE STUDY OF JURISPRUDENCE. 
 
 IN the Academical Statute which defines the duties of 
 the Professor of Jurisprudence, the branches of en- 
 quiry to which he is directed to address himself are 
 described as the investigation of the history and 
 principles of law, and the comparison of the laws of 
 various communities. The lectures to which I am 
 about to ask your attention will deal in some detail 
 with the relation of the customary law of the East, 
 and more particularly of India, to the laws and usages, 
 past and present, of other societies ; but, as we are 
 employed upon a subject and this is a warning which 
 cannot be too soon given in which ambiguities of 
 expression are extraordinarily common and extremely 
 dangerous, I perhaps should state at once that the 
 comparison which we shall be making will not con- 
 stitute Comparative Jurisprudence in the sense in 
 which those words are understood by most modern 
 jurists, or in that which, I think, was intended by the 
 authors of the statute. Comparative Jurisprudence in 
 this last sense has not for its object to throw light upon 
 
 B 2 
 
COMPARATIVE JURISPRUDENCE. 
 
 LECT. I. 
 
 the history of law. Nor is it universally allowed that 
 it throws light upon its philosophy or principles. 
 What it does, is to take the legal systems of two dis- 
 tinct societies under some one head of law as for 
 example some one kind of Contract, or the department 
 of Husband and Wife and to compare these chapters 
 of the systems under consideration. It takes the 
 heads of law which it is examining at any point of 
 their historical development, and does not affect to 
 discuss their history, to which it is indifferent. What 
 is the relation of Comparative Jurisprudence, thus 
 understood, to the philosophy of law or the determi- 
 nation of legal principle, is a point on which there 
 may be much difference of opinion. There is not a 
 little in the writings of one of the greatest of modern 
 juridical thinkers, John Austin, which seems to imply 
 that the authors and expositors of civilised systems 
 of law are constrained, by a sort of external compul- 
 sion, to think in a particular way on legal principles, 
 and on the modes of arriving at juridical results. 
 That is not my view ; but it is a view which may de- 
 serve attentive consideration on some other occasion. 
 It would, however, be universally admitted by com- 
 petent jurists, that, if not the only function, the chief 
 function of Comparative Jurisprudence is to facilitate 
 legislation and the practical improvement of law. It 
 is found, as matter of fact, that when the legislators 
 (and I here use the term in its largest sense) of dif- 
 
LECT. I. 
 
 COMPARATIVE JURISPRUDENCE. 
 
 ferent communities pursue, as they frequently do, the 
 same end, the mechanism by which the end is at- 
 tained is extremely dissimilar. In some systems of 
 law, the preliminary assumptions made are much 
 fewer and simpler than in others ; the general propo- 
 sitions which include subsidiary rules are much 
 more concise and at the same time more comprehen- 
 sive, and the courses of legal reasoning are shorter 
 and more direct. Hence, by the examination and, 
 comparison of laws, the most valuable materials are 
 obtained for legal improvement. There is no branch 
 of juridical enquiry more important than this, and 
 none from which I expect that the laws of our coun- 
 try will ultimately derive more advantage, when it 
 has thoroughly engrafted itself upon our legal educa- 
 tion. Without any disparagement of the many un- 
 questionable excellences of English law the eminent 
 good sense frequently exhibited in the results which 
 it finally evolves, and the force and even the beauty 
 of the judicial reasoning by which in many cases they 
 are reached it assuredly travels to its conclusions 
 by a path more tortuous and more interrupted by 
 fictions and unnecessary distinctions than any system 
 of jurisprudence in the world. But great as is the 
 influence which I expect to be exercised in this coun- 
 try by the study of Comparative Jurisprudence, it is 
 not that which we have now in hand ; and I think it 
 is best taken up at that stage of legal education at 
 
6 COMPAEATIVE AND HISTORICAL METHODS. LECT. i. 
 
 which the learner has just mastered a very difficult 
 and complex body of positive law, like that of our 
 own country. The student who has completed his 
 professional studies is not unnaturally apt to believe 
 in the necessity, and even in the sacredness^ of all 
 the technical rules which he has enabled himself to 
 command ; and just then, regard being had to the in- 
 fluence which every lawyer has over the development 
 of law, it is useful to show him what shorter routes , 
 to his conclusions have been followed elsewhere as 
 a matter of fact, and how much labour he might 
 consequently have been spared. 
 
 The enquiry upon which we are engaged can only 
 be said to belong to Comparative Jurisprudence, if 
 the word 4 comparative ' be used as it is used in 
 such expressions as 4 Comparative Philology ' and 
 4 Comparative Mythology.' We shall examine a 
 number of parallel phenomena with the view of 
 establishing, if possible, that some jQL.th.em are re- 
 lated to one another in the order of historical succes- 
 sion. I think I may venture to affirm that the Com- 
 parative Method, which has already been fruitful of 
 such wonderful results, is not distinguishable in some 
 of its applications from the Historical Method. We 
 take a number of contemporary facts, ideas, and 
 customs, and we infer the past form of those facts, 
 ideas, and customs not only from historical records 
 of that past form, but from examples of it which 
 
LECT. i. THE PAST AND THE PRESENT. 7 
 
 have not yet died out of the world, and are still to 
 be found in it. AVhen in truth we have to some ex- 
 tent succeeded in freeing ourselves from that limited 
 conception of the world and mankind, beyond which 
 the most civilised societies and (I will add) some 
 of the greatest thinkers do not always rise; when 
 we gain something like an adequate idea of the vast- 
 ness and variety of the phenomena of human s ociety ; 
 when in particular we have learned not to exclude 
 from our view of earth and man those great and 
 unexplored regions which we vaguely term the East, 
 we find it to be not wholly a conceit or a para- 
 dox to say that the distinction between the Present 
 and the Past disappears. Sometimes the Past is the 
 Present; much more often' ft is removed from 
 by varying distances, which, however, cannot be 
 estimated or expressed chronologically. Direct 
 observation comes thus to the aid of historical 
 enquiry, and historical enquiry to the help of direct 
 observation, f The characteristic difficulty of the 
 historian is that recorded evidence, however saga- 
 ciously it may be examined and re-examined, can 
 very rarely be added to; the characteristic error of 
 the direct observer of unfamiliar social or juridical 
 phenomena is to compare them too hastily with 
 familiar phenomena apparently of the same kind. 
 But the best contemporary historians, both of 
 England and of Germany, are evidently striving to 
 
8 LIMITS OF COMPARATIVE JURISPRUDENCE. LECT. i. 
 
 increase their resources through the agency of the 
 Comparative Method ; and nobody can have been 
 long in the East without perceiving and regretting 
 that a great many conclusions, founded on patient 
 personal study of Oriental usage and idea, are vitiated 
 through the observer's want of acquaintance with 
 some elementary facts of Western legal history. 
 
 I should, however, be making a very idle pre- 
 tension if I held out a prospect of obtaining, by 
 the application of the Comparative Method to juris- 
 prudence, any results which, in point of interest or 
 trustworthiness, are to be placed on a level with 
 those which, for example, have been accomplished 
 in Comparative Philology. To give only one reason, 
 the phenomena of human society, laws and legal 
 ideas, opinions and usages, are vastly more affected 
 by external circumstances than language. They are 
 much more at the mercy of individual volition, and 
 consequently much more subject to change effected 
 deliberately from without. The sense of expediency 
 or convenience is not assuredly, as some great writers 
 have contended, the only source of modification in 
 law and usage; but still it undoubtedly is a cause of 
 change, and an effective and powerful cause. The 
 conditions of the convenient and expedient are, 
 however, practically infinite, and nobody can reduce 
 them to rule. And however mankind at certain 
 stages of development may dislike to have their 
 
. METHOD OF COMPARISON. 9 
 
 usages changed, they always probably recognise 
 certain constraining influences as sufficient reasons 
 for submitting to new rules. There is no country ,\ 
 probably, in which Custom is so stable as it is in 
 India ; yet there, competing with the assumption 
 that Custom is sacred and perpetual, is the very 
 general admission that whatever the sovereign com- 
 mands is Custom. The greatest caution must there- 
 fore be observed in all speculations on the inferences 
 derivable from parallel usages. True, however, as 
 this is, there is much to encourage further attention 
 to the observed phenomena of custom and further 
 observation of customs not yet examined. To take 
 very recent instances, I know nothing more striking 
 among Mr. Freeman's many contributions to our 
 historical knowledge than his identification of the 
 fragments of Teutonic society, organised on its 
 primitive model, which are to be found in the Forest 
 Cantons of Switzerland. This, indeed, is an example! 
 of an archaic political institution which has survived 
 to our day. The usages which it has preserved are 
 rather political than legal ; or, to put it in another 
 way, they belong to the domain of Public rather than 
 to that of Private law. But to usages of this last 
 class clearly belong those samples of ancient Teutonic 
 agricultural customs and ancient Teutonic forms of 
 property in land which Von Maurer has found to 
 occur in the more backward parts of Germany. I 
 
10 ENQUIRIES OF VON MAUEER. LECT. i. 
 
 shall have to ask a good deal of your attention here- 
 after to the results announced by the eminent writer 
 whom I have just named; at present I will confine 
 myself to a brief indication of his method and con- 
 clusions and of their bearing on the undertaking 
 we have in hand. 
 
 " Von Maurer has written largely on the Law of 
 the Mark_jor_Jpwnship,. and on the Law of the 
 Manor. The Township (I state the matter in my 
 own way) was an organised, self-acting group of 
 Teutonic families, exercising a common proprietor- 
 ship over a definite tract of land, its Mark, cultivat- 
 ing its domain on a common system, and sustaining 
 itself by the produce. It is described by Tacitus, in 
 
 the 'Germany 7 as the 'vicus'; it isfwell known to 
 * 7 i ., ! 
 
 have been the proprietary and even the political unit 
 of the earliest English society ; it is allowed to have 
 existed among the Scandinavian races, and it sur- 
 vived to so late a date in the Orkney and Shetland 
 Islands as to have attracted the personal notice of 
 Walter Scott. In our own country it became ab- 
 sorbed in larger territorial aggregations, and, as the 
 movements of these larger aggregations constitute 
 the material of political history, the political histo- 
 rians have generally treated the Mark as having 
 greatly lost its interest. Mr. Freeman speaks of the 
 politics of the Mark as having become the politics 
 of the parish vestry. But is it true that it has lost 
 
LECT. i. THE MAKE AND ENGLISH LAW. 11 
 
 its juridical, as it lias lost its political importance ? 
 It cannot reasonably be doubted that the Family was 
 the great source of personal law ; are there any 
 reasons for supposing that the larger groups, in 
 which Families are found to have been primitively 
 combined for the purposes of ownership over land, 
 were to anything like the same extent the sources of 
 proprietary law ? J5ojar as L_pur^ own country is con- 
 cerned, the ordinary text-books of our law suggest 
 no such conclusion ; since they practically trace our 
 land-law to the customs of the Manor, and assume 
 the Manor to have been a complete, novelty intro- 
 duced into the world during the process which is 
 called the feudalisation of Europe. But the writings 
 of Von Maurer, and of another learned German who 
 has followed him, Nasse of Bonn, afford strong reason 
 for thinking that this account of our legal history 
 should be reviewed. The Mark has through a great 
 part of Germany stamped itself plainly on land-law, 
 on agricultural custom, and on the territorial distri- 
 bution of landed property. JS[asse has called atten- 
 tion to the vestiges of it which are still discoverable 
 in England, and which, until recently, were to be 
 found on all sides of us ; and he seems to me to 
 have at least raised a presumption that the Mark is 
 the true source of some things which have never been 
 satisfactorily explained in English real-property law. 
 The work of Professor Nasse appears to me to 
 

 12 EASTERN AND WESTERN COMMUNITIES. LECT. i. 
 
 require some revision from an English professional 
 lawyer; but, beyond attempting this, I should pro- 
 bably have left this subject in the hands of writers 
 who have made it their own, if it were not for one 
 circumstance. These writers are obviously unaware 
 of the way in which Eastern phenomena confirm 
 their account of the primitive Teutonic cultivating 
 group, and may be used to extend it. The Village 
 Community of India exhibits resemblances to the 
 Teutonic Township which are much too strong and 
 numerous to be accidental; where it differs from the 
 Township,Jthe difference may be at least plausibly 
 explained, i It has the same double aspect of a group 
 of families united by the assumption of common kin- 
 ship, and of a company of persons exercising joint 
 ownership over land. The domain which it occupies 
 is distributed, if not in the same manner, upon the 
 same principles; and the ideas which prevail within 
 the group of the relations and duties of its members 
 to one another appear to be substantially the same. 
 But the Indian Village Community is a living, and 
 not a dead, institution. The causes which trans- 
 formed the Mark into the Manor, though they may 
 be traced in India, have operated very feebly ; and 
 over the greatest part of the country the Village 
 Community has not been absorbed in any larger col- 
 lection of men or lost in a territorial area of wider 
 extent. For fiscal and legal purposes it is the pro- 
 

 LECT. i. CHARACTEKISTICS OF INDIA. 13 
 
 prietary unit of large and populous provinces. It 
 is under constant and careful observation, and the 
 doubtful points which it exhibits are the subject of 
 the most earnest discussion and of the most vehe- 
 ment controversy. No better example could there- 
 fore be given of the new material which the East, and 
 especially India, furnishes to the juridical enquirer. 
 
 If an ancient society be conceived as a society iii\ 
 which are found existing phenomena of usage and 
 legal thought which, if not identical with, wear a strong 
 resemblance to certain other phenomena of the same 
 kind which the Western world may be shown to have 
 exhibited at periods here belonging chronologically 
 to the Past, the East is certainly full of fragments 
 of ancient society. Of these, the most instructive, 
 because the most open to sustained observation, are 
 to be found in India. The country is an assemblage 
 of such fragments rather than an ancient society 
 complete in itself. The apparent uniformity and 
 even monotony which to the new comer are its most 
 impressive characteristics, prove, on larger experience, 
 to have been merely the cloudy outline produced by 
 mental distance ; and the observation of each succeed- 
 ing year discloses a greater variety in usages and 
 ideas which at first seemed everywhere identical. 
 Yet there is a sense in which the first impressions of 
 the Englishman in India are correct. Each indi- 
 vidual in India is a slave to the customs of the 
 
14 MODERN THEORIES OF RACE. LECT. i. 
 
 ^oupjto wluch^ie^ belongs; and the customs of the 
 several groups, various as they are, do not differ 
 from one another with that practically infinite 
 variety of difference which is found in the habits 
 and practices of the individual men and women who 
 make up the modern societies of the civilised West. 
 A great number of the bodies of custom observable 
 in India are strikingly alike in their most im- 
 portant features, and leave no room for doubt 
 that they have somehow been formed on some 
 common model and pattern. After all that has been 
 achieved in other departments of enquiry, there 
 would be no great presumption in laying down, at 
 least provisionally, that the tie which connects these 
 various systems of native usage is the bond of com- 
 mon race between the men whose life is regulated 
 by them. If I observe some caution in using that 
 language on the subject of common race which has 
 become almost popular among us, it is through con- 
 sciousness of the ignorance under which we labour 
 of the multitudinous and most interesting societies 
 which envelope India on the North and East. 
 Everybody who has a conception of the depth of 
 this ignorance will be on his guard against any 
 theory of the development or inter-connection of 
 usage and primitive idea which makes any preten- 
 sions to completeness before these societies have 
 been more accurately examined. 
 
LECT. i. THE PATRIARCHAL FAMILY. 15 
 
 Let me at this point attempt to. indicate to you 
 the sort of instruction which India may be expected 
 to yield to the student of historical jurisprudence. 
 There are in the history of law certain epochs which 
 appear to us, with such knowledge as we possess, to 
 mark the beginning of distinct trains of legal ideas 
 and distinct courses of practice. One of these is the ; ,.?j 
 formation of the ^Patriarchal Family, a group of men 
 and women, children and slaves, of animate and in-y ^ 
 animate property, all connected together by common 
 subjection to the Paternal Power of the chief of the 
 household. I need not here repeat to you the proof '' 
 which I have attempted to give elsewhere, that a 
 great part of Jbhe Jegal ideas of civilised races_ may^ 
 
 
 be traced to this conception, and that the history 
 of their development is the history of its slow 
 unwinding. You may, however, be aware that 
 some enquirers have of late shown themselves 
 not satisfied to accept the Patriarchal Family as 
 a primary fact in the history of society. Such dis- 
 inclination is, I think, very far from unnatural. The 
 Patriarchal Family is not a simple but a highly 
 complex group, and there is nothing in the super- 
 ficial passions, habits, or tendencies of human nature 
 which at all sufficiently accounts for it. If it is 
 really to be accepted as a primary social fact, the 
 explanation assuredly lies among the secrets and 
 mysteries of our nature, not in any characteristics 
 
16 BARBAROUS FORMS OF THE FAMILY. LECT.. i. 
 
 which are on its surface. Again, under its best 
 ascertained forms, the Family Group is in a high 
 degree artificially constituted, since it is freely re- 
 cruited by the adoption of strangers. SJA11 this justi- 
 fies the hesitation which leads to further enquiry ; and 
 it has been strongly contended of late, that by in- 
 vestigation of the practices and ideas of ^existing 
 savage races, at least two earlier stages of human 
 society disclose themselves through which it passed 
 before organising itself in Family Groups. In two 
 separate volumes, each of them remarkably ingenious 
 and interesting, Sir John Lubbock and Mr. McLennan 
 conceive themselves to have shown that the first 
 steps of mankind towards civilisation were taken from 
 a condition in which assemblages of men followed 
 practices which are not found to occur universally 
 even in animal nature. Here I have only to observe 
 that many of the phenomena of barbarism adverted 
 to by these writers are found in India. The usages 
 appealed to are the usages of certain tribes or races, 
 sometimes called aboriginal, which have been driven 
 into the inaccessible recesses of the widely extending 
 mountain country on the north-east of India by the 
 double pressure of Indian and Chinese civilisation, or 
 which took refuge in the hilly regions of Central and 
 Southern India from the conquest of Brahminical 
 invaders, whether or not of Aryan descent. Many 
 of these wild tribes have now for many years been 
 
LECT. i. OJBIGIX OF LAW IN THE FAMILY. 17 
 
 under British ohsopvafcierr, and have indeed been 
 
 ___^- *= ~ .L 
 
 administered by British Officers. The evidence, 
 therefore, of their usages and ideas which is or 
 may be forthcoming, is very superior indeed to the 
 slippery testimony concerning savages which is 
 gathered from travellers' tales. It is not my inten- 
 tion in the present lectures to examine the Indian 
 evidence anew, but, now that we know what interest 
 attaches to it, I venture to suggest that this evidence 
 should be carefully re-examined on the spot. Much 
 which I have personally heard in India bears out the 
 caution which I gave as to the reserve with which 
 all speculations on the antiquity of human usage 
 should be received. Practices represented as of im 
 memorial antiquity, and universally characteristic o 
 the infancy of mankind, have been described to me 
 as having been for the first time resorted to in oui 
 own days through the mere pressure of externa 
 circumstances or novel temptations. 
 
 Passing from these wild tribes to the more ad- \ 
 vanced assemblages of men to be found in India, it 
 may be stated without any hesitation that the rest j** 
 of the Indian evidence, whencesoever collected, gives 
 colour to the theory of the origin of a great part 
 of law in the Patriarchal Family. I may be able 
 hereafter to establish, or at all events to raise a 
 presumption, that many rules, of which nobody has 
 hitherto discerned the. historical beginnings, had 
 
 c 
 
18 VILLAGE COMMUNITY. LECT. 7. 
 
 really their sources in certain incidents of the Patria 
 Potestas, if the Indian evidence may be trusted. 
 And upon that evidence many threads of connec- 
 tion between widely divided departments of law will 
 emerge from the obscurity in which they have 
 hitherto been hidden. 
 
 But the Patriarchal Family, when occupied with 
 those agricultural pursuits which are the exclusive 
 employment of many millions of rnen in India, is 
 generally found as the unit of a larger natural group, 
 the Village Community. The Village Community 
 is in India itself the source of a land-law which, in 
 bulk at all events, may be not unfairly compared 
 with the real-property law of England. This law 
 defines the relations to one another of the various 
 sections of the group, and of the group itself to the 
 Government, to other village communities, and to 
 certain persons who claim rights over it. The corre- 
 sponding cultivating group of the Teutonic societies 
 has undergone a transformation which forbids us to 
 attribute to it, as a source of land-law, quite the same 
 importance which belongs to the Indian Village Com- 
 munity. But it is certainly possible to show that 
 the transformation was neither so thorough as has 
 been usually supposed, nor so utterly destructive of 
 the features of the group in its primitive shape. 
 
 fhen then the Teutonic group has been_xe=con- 
 ucted by the help of observed Indian phenomena 
 
LECT. i. LAW OF NATURE. 19 
 
 *V 
 
 process which will not be completed until both 
 
 i 
 
 sets of facts have been more carefully examined / 
 than heretofore by men who are conscious of their 
 bearing on one another it is more than likely that 
 we may be able to correct and amplify the received 
 theories of the origin and significance of English real- 
 property law. 
 
 Let me pass to another epoch in legal history. 
 More than once, the jurisprudence of Western Europe 
 has reached a stage at which the ideas which presided 
 over the original body of rules are found to have been 
 driven out and replaced by a wholly new group of 
 notions, which have exercised a strong, and in some 
 cases an exclusively controlling influence on all the 
 subsequent modifications of the law. Such a period 
 Avas arrived at in Roman law, when the theory of 
 a Law of Nature substituted itself for the notions 
 which lawyers and politicians had formed for them- 
 selves concerning the origin and sanctions of the 
 rules which governed the ancient city. A similar 
 displacement of the newer legal theory took place 
 when the Roman law, long since affected in all its 
 parts by the doctrine of Natural Law, became, for 
 certain purposes and within certain limits, the Canon 
 law a source of modern law which has not yet been 
 sufficiently explored. The more recent jurispru- 
 dence of the West has been too extensive to have 
 been penetrated throughout by any new theory, but 
 
 c 2 
 
20 CODIFIED BRAHMINICAL LAW. LECT. i. 
 
 it will not be difficult to point out that particular 
 departments of law have come to be explained on 
 moral principles which originally had nothing what- 
 ever to do with them, and that, once so explained, 
 they have never shaken off the influence of these 
 principles. ^This phenomenon may be shown to have 
 occurred in India on a vast scale. The whole of 
 the codified law of the country that is, the law con- 
 tained in the Code of Manu, and in the treatises 
 of the various schools of commentators who have 
 written on that code and greatly extended it is 
 theoretically connected together by certain definite 
 ideas of a sacerdotal nature. But the most recent 
 observation goes to prove that the portion of the 
 law codified and the influence of this law are much 
 less than was once supposed, and that large bodies 
 of indigenous custom have grow up independently 
 of the codified law. But on comparing the written 
 and the unwritten law, it appears clearly that the 
 sacerdotal notions which permeate the first have 
 invaded it from without, and are of Brahminical 
 origin. I shall have to advert to the curious circum- 
 stance that the influence of these Brahminical theories 
 upon law has been rather increased than otherwise 
 by the British dominion. 
 
 The beginning of the vast body of legal rules which, 
 for want of a better name, we must call the feudal 
 system, constitutes, for the West, the greatest epoch in 
 
LECT. i. FEUDAL SYSTEM. 21 
 
 its legal history. The question of its origin, difficult 
 enough in regard to those parts of Europe conquered 
 by barbarian invaders which were inhabited by 
 Romanised populations, seemed to be embarrassed 
 with much greater difficulty when it had to be 
 solved in respect of countries like England and 
 Germany Proper, where the population was mainly 
 of the same blood, and practised the same usages, as 
 the conquerors of the Empire. The school of German 
 writers, however, among whom Yon Maurer is the 
 most eminent, appears to me to have successfully 
 generalised and completed the explanation given in 
 respect of our country by English historical scholars, 
 by showing that the primitive Teutonic proprietary 
 system had everywhere a tendency, not produced from 
 without, to modify itself in the direction of feudalism ; 
 so that influences partly of administrative origin and 
 (so far as the Continent is concerned) partly traceable 
 to Roman law may, so to speak, have been met half- 
 way. It will be possible to strengthen these argu- 
 ments by pointing out that the Indian system of ! 
 property and tenure, closely resembling that which 
 Maurer believes to be the ancient proprietary system 
 of the Teutonic races, has occasionally, though not 
 universally, undergone changes which bring it into 
 something like harmony with European feudalism. 
 
 Such are a few of the topics of jurisprudence 
 touched upon, I must warn you, so slightly as to 
 
22 CONDITIONS OF JURIDICAL STUDY. LECT. i. 
 
 give a very imperfect idea of their importance and 
 instructiveness upon which the observed phenomena 
 of India may be expected to throw light. I shall 
 make no apology for calling your attention to a line 
 of investigation which perhaps shares in the bad 
 reputation for dulness which attaches to all things 
 Indian. Unfortunately, among the greatest obsta- 
 cles to the study of jurisprudence from any point of 
 view except the purely technical, is the necessity for 
 preliminary attention to certain subjects which are 
 conventionally regarded as uninteresting. Every 
 man is under a temptation to overrate the importance 
 of the subjects which have more than others occupied 
 his own mind, but it certainly seems to me that two 
 kinds of knowledge are indispensable, if the study of 
 historical and philosophical jurisprudence is to be 
 carried very far in England, knowledge of India, and 
 knowledge of Roman law of India, because it is the 
 great repository of verifiable phenomena of ancient 
 usage and ancient juridical thought of Roman law, 
 because, viewed in the whole course of its develop- 
 ment, it connects these ancient usages and this 
 ancient juridical thought with the legal ideas of our 
 own day. Roman law has not perhaps as evil a 
 reputation as it had ten or fifteen years ago, but 
 proof in abundance that India is regarded as su- 
 premely uninteresting is furnished by Parliament, 
 the press, and popular literature. Yet ignorance of 
 
LECT. i. ENGLISH IGNORANCE OF INDIA. 23 
 
 India is more discreditable to Englishmen than 
 ignorance of Roman law, and it is at the same time 
 more unintelligible in them. It is more discredit able , 
 because it requires no very intimate acquaintance 
 with contemporary foreign opinion to recognise the 
 abiding truth of De Tocqueville's remark that the 
 conquest and government of India are really the 
 achievements which give England her place in the 
 opinion of the world. They are undeniably ro- 
 mantic achievements in the history of a people which 
 it is the fashion abroad to consider unromantic. 
 The ignorance is moreover unintelligible, because 
 knowledge on the subject is extremely plentiful and 
 extremely accessible, since English society is full of 
 men who have made it the study of a life pursued 
 with an ardour of public spirit which would be 
 exceptional even in the field of British domestic 
 politics. The explanation is not, however, I think, 
 far to seek. Indian knowledge and experience are 
 represented in this country by men who go to India 
 all but in boyhood, and return from it in the matu- 
 rity of years. The language of administration and 
 government in India is English, but through long 
 employment upon administrative subjects, a technical 
 language has been created, which contains far more 
 novel and special terms than those who use it are 
 commonly aware. Even, therefore, if the great 
 Indian authorities who live among us were in perfect 
 
24 DISAPPEARANCE OF INDIAN PHENOMENA. LECT. i. 
 
 mental contact with the rest of the community, they 
 could only communicate their ideas through an 
 imperfect medium. But it may be even doubted 
 whether this mental contact exists. The men of 
 whom I have spoken certainly underrate the ig- 
 norance of India which prevails in England on 
 elementary points. If I could suppose myself to 
 have an auditor of Indian experience, I should make 
 him no apology for speaking on matters which would 
 appear to him too elementary to deserve discussion; 
 since my conviction is that what is wanting to unveil 
 the stores of interest contained in India is, first, some 
 degree of sympathy with an ignorance which very few 
 felicitous efforts have yet been made to dispel, and, 
 next, the employment of phraseology not too highly 
 specialised. 
 
 If, however, there are reasons why the jurist 
 should apply himself to the study of Indian usage, 
 there are still more urgent reasons why he should 
 apply himself at once. Here, if anywhere, what 
 has to be done must be done quickly. For this 
 remarkable society, pregnant with interest at every 
 point, and for the moment easily open to our obser- 
 vation, is undoubtedly passing away. Just as ac- 
 cording to the Brahminical theory each of the Indian 
 sacred rivers loses in time its sanctity, so India itself 
 is gradually losing everything which is characteristic 
 of it. I may illustrate the completeness of the trans- 
 
LECT. i. INFLUENCE OF WESTERN IDEAS. 25 
 
 formation which is proceeding by repeating what I 
 
 have learned, on excellent authority, to be the opinion 
 
 of the best native scholars : that^ in fifty years all 
 
 knowledge of Sanscrit will have departed from India, 
 
 or, if kept alive, will be kept alive by the reactive 
 
 influence of Germany and England. Such assertions 
 
 as these are not inconsistent with other statements 
 
 which you are very likely to have heard from men 
 
 who have passed a life in Indian administration. 
 
 Native Indian society is doubtless as a whole very 
 
 ignorant, very superstitious, very tenacious of usages 
 
 which are not always wholesome. But no society in 
 
 the world is so much at the mercy of the classes 
 
 whom it regards as entitled by their intellectual or 
 
 religious cultivation to dictate their opinions to others, 
 
 and a contagion of ideas, spreading at a varying rate 
 
 of progress, is gradually bringing these classes under 
 
 the dominion of foreign modes of thought. Some of 
 
 them may at present have been very slightly affected 
 
 by the new influence ; but then a comparatively slight 
 
 infusion of foreign idea into indigenous notions is 
 
 often enough to spoil them for scientific observation. 
 
 I have had unusual opportunities of studying the 
 
 mental condition of the educated class in one Indian 
 
 province. Though it is so strongly Europeanised 
 
 as to be no fair sample of native society taken as a 
 
 whole, its peculiar stock of ideas is probably the 
 
 chief source from which the influences proceed which 
 
26 INFLUENCE OF PHYSICAL SCIENCE. LF.CT. i. 
 
 are more or less at work everywhere. Here there 
 has been a complete revolution of thought, in litera- 
 ture, in taste, in morals, and in law. I can only 
 compare it to the passion for the literature of Greece 
 and Rome which overtook the Western world at the 
 revival of letters ; and yet the comparison does not 
 altogether hold, since I must honestly admit that 
 much which had a grandeur of its own is being re- 
 placed by a great deal which is poor and ignoble. 
 But one special source of the power of Western ideas 
 in India I mention with emphasis, because it is not 
 as often recognised as it should be, even by men of 
 Indian experience. These ideas are making their 
 way into the East just at the period when they are 
 themselves strongly under the influence of physical 
 knowledge, and of the methods of physical science. 
 Now, not only is all Oriental thought and literature 
 embarrassed in all its walks by a weight of false 
 physics, which at once gives a great advantage to all 
 competing forms of knowledge, but it has a special 
 difficulty in retaining its old interest. It is elabo- 
 rately inaccurate, it is supremely and deliberately 
 careless of all precision in magnitude, number, and 
 time. But to a very quick and subtle-minded people, 
 which has hitherto been denied any mental food but 
 this, mere accuracy of thought is by itself an in- 
 tellectual luxury of the very highest order. 
 
 It would be absurd to deny that the disintegration 
 
LECT. i. INFLUENCE OF THE BRITISH EMPIRE. 27 
 
 of Eastern usage and thought is attributable to British 
 dominion. Yet one account of the matter which is 
 very likely to find favour with some Englishmen and 
 many foreigners is certainly not true, or only true 
 with the largest qualifications. The interference of 
 the British Government has rarely taken the form of 
 high-handed repression or contemptuous discourage- 
 ment. The dominant theory has always been that 
 the country ought to be governed in conformity with 
 its own notions and customs; but the interpretation 
 of these notions and customs has given rise to the 
 widest differences of opinion, and it is the settled 
 habit of the partisans of each opinion to charge their 
 adversaries with disregard of native usage. The 
 Englishman not personally familiar with India 
 should always be on his guard against sweeping 
 accusations of this sort, which often amount in reality 
 to no more than the imputation of error on an 
 extremely vague and difficult question, and possibly 
 a question which is nx3t__toJba. solved^J^^xclusiyely 
 Indian experieiicje. If I were to describe the feeling 
 which is now strongest with some of the most ener- 
 getic Indian administrators, I should be inclined to 
 call it a fancy for reconstructing native Indian society 
 upon a purely native model ; a fancy which somef 
 would apparently indulge, even to the abnegation o 
 all moral judgment. But the undertaking is not 
 practicable. It is by its indirect and for the most 
 
23 INFLUENCE OF THE BE1TISH EMPIRE. LECT. i. 
 
 part unintended influence that the British power 
 metamorphoses and dissolves the ideas and social 
 forms underneath it; nor is there any expedient by 
 which it can escape the duty of rebuilding upon its 
 own principles that which it unwillingly destroys. 
 
LECTURE II. 
 
 THE SOURCES OF INDIAN LAW. 
 
CONTENTS. 
 
 Indian Settlements Settlement and Revenue Courts The Civil 
 Courts The Indian Judicial System The Supreme Courts English 
 Law in India Indian Opinion on English Law Locality of Custom 
 The Will of Bengal Wills and Collective Property A Modern 
 Indian Will The Sudder Court Influence of Sudder Courts De- 
 Telopment of Hindoo Law Effect of Juridical Commentaries The 
 Bar and English Law Mahometan Law The Pundits Codified 
 Hindoo Law Varieties of Native Usage The Written Law Hindoo 
 Widow's Estate Preservation of Customary Law Caste in India 
 Tradition Different Forms of Tradition Popular Ignorance of Law 
 in England The Experts and English Law Indian and Teutonic 
 Village Systems. 
 
LECT. ii. INDIAN QUASI-JUDICIAL AGENCIES. 31 
 
 LECTURE II. 
 
 THE SOURCES OF INDIAN LAW. 
 
 THE bodies of customary law which exist in India 
 have now and then been more or less popularly de- 
 scribed by acute observers who were led to examine 
 them by curiosity or official duty; but on the whole 
 the best information we possess concerning native 
 usage is that which has been obtained through 
 judicial or quasi-judicial agency. The agency which 
 I have here called ' quasi-judicial ' belongs to a part 
 of Anglo-Indian administration which is very little 
 understood by Englishmen, but which is at the same 
 time extremely interesting and instructive. Its 
 origin and character may be described as follows 
 inadequately no doubt, but still without substantial 
 inaccuracy. 
 
 The British Government, like all Eastern sovereigns, 
 claims a large share of the produce of the soil, most 
 of which, however, unlike other Eastern sovereigns, 
 it returns to its subjects through the judicial and 
 administrative services which it maintains, and 
 
32 INDIAN SETTLEMENTS. LECT. 11. 
 
 through the public works which it systematically 
 executes. Some person, or class of persons, must of 
 course be responsible to it for the due payment of 
 this c land-revenue,' and this person or class must 
 have the power of collecting it from the other 
 owners and cultivators of the soil. This double 
 necessity, of determining the persons immediately 
 responsible for its share of the profits of cultivation 
 and of investing them with corresponding authority, 
 has involved the British Indian Government, ever 
 since the very infancy of its dominion, in what I 
 believe to be the most arduous task which a govern- 
 
 o 
 
 ment ever undertook. It has had not only to frame 
 an entire law of land for a strange country, but to 
 effect a complete register of the rights which the 
 law confers on individuals and definite classes. 
 When a province is first incorporated with the 
 Empire, the first step is to effect a settlement or 
 adjustment of the amount of rent claimable by the 
 State. The functionaries charged with this duty 
 are known as the Settlement Officers. They act 
 under formal instructions from the provincial govern- 
 ment which has deputed them ; they communicate 
 freely with it during their enquiries ; and they wind 
 them up with a Settlement Report, which is often 
 a most comprehensive account of the new province, 
 its history, its natural products, and above all the 
 usages of its population. But the most important 
 
LECT. IT. SETTLEMENT AND REVENUE COURTS. 33 
 
 object of the Settlement operations not second even 
 to tlie adjustment of the Government revenues is 
 to construct a c Record of Rights/ which is a detailed 
 register of all rights over the soil in the form in 
 which they are believed to have existed on the eve 
 of the conquest or annexation. Here it. is that the 
 duties of the Settlement Officers assume something 
 of a judicial character. The persons who complain 
 of any proposed entry on the register may insist on 
 a formal hearing before it is made. 
 
 When the Recordj)f Rights has been completed 
 and the amount of Government revenue has been 
 adjusted, the functions of the Settlement Officers are 
 at an end, and do not revive until the period is closed 
 for which the Settlement has been made. But, during 
 the currency of this period, questions between the 
 State and the payer of land-tax still continue to 
 arise in considerable number, and it is found practi- 
 cally impossible to decide on such questions without 
 occasionally adjudicating on private rights. Another 
 quasi-judicial agency is therefore that of the function- 
 aries who, individually or collectively, have jurisdic- 
 tion in such disputes, and who are variously known 
 as Revenue Officers, Revenue Courts, and Revenue 
 Boards-^expressions extremely apt to mislead the 
 Englishman unused to Indian official documents. The 
 Circulars and Instructions issued by their superiors 
 to Settlement and Revenue officers, their Reports and 
 
 D 
 
34 THE CIVIL COURTS. I.ECT. 11. 
 
 decisions on disputed points, constitute a whole litera- 
 ture of very great extent and variety and of the 
 utmost value and instructiveness. I am afraid I 
 must add that the English reader, whose attention is 
 not called to it by official duty, not unusually finds 
 it very unattractive or even repulsive. But the 
 reason I believe to be that the elementary knowledge 
 which is the key to it has for the most part never 
 been reduced to writing at all. 
 
 So far as the functions of the Settlement and 
 Revenue Officers constitute a judicial agency, the 
 jurisdiction exercised by them was at first estab- 
 lished by the British Government not in its character 
 of sovereign, but in its capacity of supreme land- 
 owner. It was merely intended to enforce the 
 claim of the State with some degree of regularity and 
 caution. The strictly judicial agency of which I 
 spoke is that of the Civil Courts, which are very 
 much what we understand in this country by ordi- 
 nary Courts of Justice. Theoretically, whenever the 
 Settlement or Revenue Courts decide a question of 
 private right, there is almost always (I need not 
 state the exceptions) an appeal from their decision to 
 the Civil Courts. Yet, taking India as a whole, 
 these appeals are surprisingly few in comparison 
 with the cases decided. This is one of the reasons 
 why the literature of Settlement and Revenue opera- 
 tions is a fuller source of information concerning the 
 
LECT. ii. THE INDIAN JUDICIAL SYSTEM. 35 
 
 customs of ownership and tenure observed among 
 the natives of India than the recorded decisions of 
 the Civil Courts. 
 
 Yet, though the results of quasi-judicial agency in 
 India are, on the whole, more instructive than the 
 results of strictly judicial agency, the Indian Civil 
 Courts have nevertheless been largely instrumental 
 in bringing into light the juridical notions peculiar 
 to the country, in contrasting them with the legal 
 ideas of the Western World, and to a certain extent 
 in subjecting them to a process of transmutation. 
 For reasons which will appear as I proceed, it is 
 desirable that I should give you some account of 
 these courts. I will endeavour to do it briefly and 
 only in outline. 
 
 All India at the present moment, with the excep- 
 tion of the most unsettled provinces, is under the 
 jurisdiction of five High or Chief Courts. The dif- 
 ference between a High and Chief Court is merely 
 technical, one being established by the Queen's 
 Letters Patent, under an Act of Parliament, the 
 other by an enactment of the Indian Legislature. Of 
 these courts, three are considerably older than the 
 rest, and are in fact almost as old as the British 
 dominion in India. When, however, the texture of 
 the jurisdiction of the High Courts which sit at 
 Calcutta, Madras, and Bombay, is examined, it is 
 seen to consist of two parts, having a different 
 
 D2 
 
36 THE SUPREME COURTS. LECT. n. 
 
 history. An Indian lawyer expresses this by saying 
 that the three older High Courts were formed by 
 the fusion of the 4 Supreme ' and c Sudder ' Courts, 
 words which have the same meaning but which 
 indicate very different tribunals. 
 
 The Supreme Courts, invested with special judicial 
 powers over a limited territory attached to the three 
 old fortified factories of the East India Company at 
 Calcutta, Madras, and Bombay or, as they were 
 once called, and are still called officially, Fort William, 
 Fort St. George, and Bombay Castle may be shortly 
 described as three offshoots from Westminster Hall 
 planted in India. They were ' Courts of Eecord, 
 exercising Civil, Criminal, Admiralty, and Ecclesiasti- 
 cal jurisdiction,' and their judges were barristers 
 taken straight from the English Bar. Although a 
 series of statutes and charters provided securities for 
 the application of native law and usage to the cases 
 of their native suitors, and though some of the 
 best treatises on Hindoo law which we possess were 
 written by Supreme Court judges, it would not be 
 incorrect to say that on the eve of the enactment 
 of the several Indian Codes, the bulk of the jurispru- 
 dence administered by the Supreme Courts consisted 
 of English law, administered under English pro- 
 cedure. Lord Macaulay, in the famous essay on 
 Warren Hastings, has vividly described the conster- 
 nation which the most important of these courts 
 
LECT. ii. ENOLISII LAW IN INDIA. 37 
 
 caused in its early days among the natives subject to 
 its power ; and there is no doubt that the establish- 
 ment of a tribunal on similar principles would now- 
 a-days be regarded as a measure of the utmost 
 injustice and danger. Yet there is something to be 
 said in mitigation of the condemnation which the 
 Supreme Courts have received everywhere except in 
 India. The great quantity of English law which had 
 worked its way into their jurisprudence is doubtless" 
 to be partially accounted for by the extravagant 
 estimate universally set by English lawyers upon 
 their own system, until their complacency was rudely 
 disturbed by Bentham; but at the same time the 
 apparently inevitable displacement of native law and 
 usage by English law, when the two sets of rules are 
 in contact, is a phenomenon which may be observed 
 over a great part of India at the present moment. 
 The truth is that the written and customary law of 
 such a society as the English found in India is not of 
 a nature to bear the strict criteria applied by English 
 lawyers. The rule is so vague as to seem capable 
 of almost any interpretation, and the construction 
 which in those days an English lawyer would place 
 on it, would almost certainly be coloured by associa- 
 tions collected from English practice. The strong 
 statements, too, which have been made concerning 
 the unpopularity of these courts on their first 
 establishment must be received with some caution. 
 
38 INDIAN OPINION ON ENGLISH LAW. LECT. n 
 
 Unquestionably great and general dismay was caused 
 by their civil procedure, conferring as it did powers 
 of compelling the attendance of witnesses, and of 
 arresting defendants both before and after judgment, 
 which were quite foreign to the ideas of the country. 
 There were constant complaints, too, of the applica- 
 tion of the English law of forgery to India. It is 
 true that, as regards the case which Lord Macaulay 
 has sketched with such dramatic force, Nuncomar 
 appears to me, upon the records of the proceedings, 
 to have had quite as fair a trial as any Englishman 
 of that day indicted for forgery would have had in 
 England, and to have been treated with even more 
 consideration by the Court. But the introduction of 
 the law under which he suffered was felt as a general 
 grievance, and there are many representations on 
 the subject in the archives of the Indian Government. 
 These archives, however, which have been recently 
 examined, and in part published, seem to me to prove 
 that the native citizens of Calcutta, so far from com- 
 plaining of the civil law imported by the Supreme 
 Court from Westminster Hall and of the bulk of the 
 criminal law, actually learned to echo the complacent 
 encomiums on its perfection which they heard from 
 English Judges. The fact appears to me so well 
 established that I venture to draw some inferences 
 from it. One is of a political nature, and need not 
 be dwelt on here. A nervous fear of altering native 
 
LECT. ii. LOCALITY OF CUSTOM. 39 
 
 custom lias, ever since the terrible events of 1857, 
 taken possession of Indian administrators; but the 
 truth is the natives of India are not so wedded to 
 their usages that they are not ready to surrender 
 them for any tangible advantage, and in this case 
 the even justice of these courts was evidently re- 
 garded as quite making up for the strangeness of 
 the principles upon which they acted. Another con- 
 clusion is of more direct importance to the jurist. 
 Complete and consistent in appearance as is the 
 codified law of India, the law enunciated by Manu 
 and by the Brahminical commentators on him, it 
 embraces a far smaller portion of the whole law of 
 India than was once supposed, and penetrates far 
 less deeply among the people. What an Oriental is 
 really attached to is his local custom, but that was 
 felt to have been renounced by persons taking refuge 
 at a distance from home, under the shelter of the 
 British fortresses. 
 
 The chief interest of these Supreme Courts to the 
 student of comparative jurisprudence arises from the 
 powerful indirect influence exerted by them on the 
 other courts which I mentioned, and with which 
 eight years ago they were combined the Sudder 
 Courts. Nevertheless, some of the questions which 
 have incidentally come before the Supreme Courts, 
 or before the branch of the High Court which con- 
 tinues their jurisdiction, have thrown a good deal of 
 
40 THE WILL OF BENGAL. LBCT. n. 
 
 light on the mutual pky of Eastern and Western 
 
 legal thought in the British Indian Empire. The 
 
 judges who presided over the most important of 
 
 these courts very early recognised the existence of 
 
 testamentary power among the Hindoos, It seems 
 
 that, in the province of Lower Bengal, where the 
 
 village -system had been greatly broken up, the head 
 
 of the household had the power of disposing of his 
 
 patrimony during life. Whether he could dispose of 
 
 it at death, and thus execute a disposition in any 
 
 way resembling a will, has always been a much 
 
 disputed question which, however, contemporary 
 
 opinion rather inclines towards answering in the 
 
 negative. However that may be, the power of 
 
 making a will was soon firmly established among the 
 
 Hindoos of Lower Bengal by, or through the influence 
 
 of, the English lawyers who first entered the country. 
 
 For a long time these wills, never very frequently 
 
 used, were employed, as the testaments of Roman 
 
 citizens can be shown to have been employed, merely 
 
 to supplement the arrangements which, without 
 
 them, would have been made by the law of intestate 
 
 succession. But the native lawyers who practise in 
 
 Calcutta live in an atmosphere strongly charged with 
 
 English law, and wills drafted by them or at their 
 
 instance, and exactly resembling the will of a great 
 
 English landed proprietor, were coming in increasing 
 
 numbers before the Courts, up to the time when the 
 
LECT. IT. WILLS AXD COLLECTIVE PROPERTY. 41 
 
 law ot testamentary succession was finally simplified 
 and settled by a recent enactment of the Indian 
 Legislature. In such wills the testator claimed to 
 arrange a line of succession entirely for himself, 
 not only providing for the enjoyment of the property 
 by his descendants in such order as he pleased, but 
 even excluding them, if he liked, altogether from the 
 succession; and, in order to obtain his object, he also 
 necessarily claimed to have the benefit of a number 
 of fictions or artificial notions, which made their way 
 into English law from feudal and even from scho- 
 lastic sources. The most interesting of these wills 
 was executed by a Brahmin of high lineage who 
 made a fortune at the Calcutta Bar, and he aimed 
 at disinheriting or excluding from the main line of 
 succession a son who had embraced Christianity. 
 The validity and effect of the instrument have yet to 
 be declared by the Privy Council; and all I can say 
 without impropriety is that, in those parts of India 
 in which the collective holding of property has not 
 decayed as much as it has done in Lower Bengal, 
 the liberty of testation claimed would clearly be 
 foreign to the indigenous system of the country. 
 That system is one of common enjoyment by village-", 
 communities, and, inside those communities, by/ 
 families. The individual here has almost no power j 
 of disposing of his property ; even if he be chief of 
 his household, the utmost he can do, as a rule, is to 
 
42 A MODERN INDIAN WILL. LECT. n. 
 
 regulate the disposition of his property among his 
 children within certain very narrow limits. But the 
 power of free testamentary disposition implies the 
 greatest latitude ever given in the history of the 
 world to the volition or caprice of the individual. 
 Independently, however, of all questions of substance, 
 nothing could be more remarkable than the form of 
 the will which I spoke of as having fallen under 
 the jurisdiction of the tribunal which now represents 
 the Supreme Court of Calcutta. Side by side by 
 recitals, apparently intended to conceal the breach 
 in the line of descent, by affirming that the tes- 
 tator had, while living, made suitable provision for 
 the disinherited son, were clauses settling certain 
 property in perpetuity on the idols of the family, 
 and possibly meant to propitiate them for the irregu- 
 larity in the performance of the sacra which the new 
 devolution of the inheritance inevitably entailed. 
 The testator formally stated that he and his brothers 
 had failed in business, that all the property they had 
 inherited had been lost in the disaster, and that the 
 fortune of which he was disposing was acquired by 
 his individual exertions. This was meant to take the 
 funds with which the will dealt out of the Hindoo 
 family system and to rebut the presumption that the 
 gains of a brother belonged to the common stock 
 of the joint family. But these provisions referring 
 to Hindoo joint property were followed by others 
 
LECT. ii. THE SUDDER COURT. 43 
 
 creating joint estates on the English model ; and here 
 the testator employed legal terms only capable of 
 being thoroughly understood by a person familiar 
 with that extraordinary technical dialect expressing 
 the incidents of joint-tenancy which the fathers of 
 English law may be seriously suspected of having 
 borrowed from the Divinity Schools of Oxford and 
 Cambridge. 
 
 The other court which has been recently com- 
 bined with the court I have been describing, re- 
 tained to the last its native name of Sudder Court. 
 It underwent some changes after its first establish- 
 ment, but it may be roughly said to date from the 
 assumption by the English of territorial sovereignty. 
 When finally organised, it became thejiighest courtjof 
 appellate jurisdiction from all the courts established 
 in the territories dependent on the seat of govern- 
 ment, saving always the Supreme Court, which had 
 exclusive jurisdiction within the Presidency Town, 
 or (as it might be called) the English metropolis. 
 The nature of the local tribunals from which an 
 appeal lay to the Sudder Court is a study by itself; 
 and I must content myself with stating that the 
 Indian judicial system at present resembles not the 
 English but the French system; that a number of 
 local courts are spread over the country, from each 
 of which an appeal lies to some higher court, of 
 which the decisions are again appealable to the court, 
 
44 INFLUENCE OF SUDDER COURTS. LECT. n. 
 
 whether called Sudder or High Court, which stands 
 at the apex. The Sudder Courts therefore decided in 
 the last resort questions arising originally at some point 
 or other of a vast territory, a territory in some cases 
 containing a population equal to that of the largest 
 European States. Except the Indian Settlement 
 and Revenue Courts which I began this Lecture 
 by describing, no tribunal in the world has ever had 
 to consider a greater variety of law and usage. 
 
 What that law and usage was, the Sudder Court 
 used to ascertain with what some would call most 
 conscientious accuracy and others the most technical 
 narrowness. The judges of the Court were not 
 lawyers, but the most learned civilians in the service 
 of the East India Company, some of whom have left 
 names dear to Oriental learning. They were strongly 
 influenced by the Supreme Court which sat in their 
 neighbourhood; but it is curious to watch the dif- 
 ferent effect which the methods of English law had 
 on the two tribunals. At the touch of the Judge of 
 the Supreme Court, who had been trained in the 
 English school of special pleading, and had probably 
 come to the East in the maturity of life, the rule of 
 native law dissolved and, with or without his inten- 
 tion, was to a great extent replaced by rules having 
 their origin in English law-books. Under the hand 
 of the Judges of the Sudder Courts, who had lived 
 since their boyhood among the people of the country, 
 
LECT. ii. INFLUENCE OF SUDDER COURTS. 45 
 
 the native rules hardened, and contracted a rigidity 
 which they never had in real native practice. The 
 process was partly owing to their procedure, which 
 they seem to have borrowed from the procedure of the 
 English ourt of Chancery, at that time a proverb at once 
 of complexity and technical strictness. It has been 
 said by an eminent Indian lawyer that, when the Judges 
 of the S udder Courts were first set to administer native 
 law, they appear to have felt as if they had got into 
 fairyland, so strange and grotesque were the legal prin- 
 ciples on which they were called to act. But after 
 a while they became accustomed to the new region, 
 and began to behave themselves as if all were real 
 and substantial. As a matter of fact, they acted as 
 if they believed in it more than did its native inhabi- 
 tants. Among the older records of their proceedings 
 may be found injunctions, couched in the technical 
 language of English Chancery pleadings, which for- 
 bid the priests of a particular temple to injure a rival 
 fane by painting the face of their idol red instead of 
 yellow, and decrees allowing the complaint of other 
 priests that they were injured in property and repute 
 because their neighbours rang a bell at a particular 
 moment of their services. Much Brahminical ritual 
 and not a little doctrine became the subject of de- 
 cision. The Privy Council in London was once 
 called upon to decide in ultimate appeal on the claims 
 of rival hierophants to have their palanquin carried 
 
46 DEVELOPMENT OF HINDOO LAW. LECT. n. 
 
 cross -wise instead of length- wise ; and it is said that 
 on another occasion the right to drive elephants 
 through the narrow and crowded streets of one of 
 the most sacred Indian cities, which was alleged to 
 vest in a certain religious order as being in possession 
 of a particular idol, was seriously disputed because 
 the idol was cracked. 
 
 There is in truth but little doubt that, until educa- 
 tion began to cause the natives of India to absorb 
 Western ideas for themselves, the influence of the 
 English rather retarded than hastened the mental 
 development of the race. There are several depart- 
 ments of thought in which a slow modification of 
 primitive notions and consequent alteration of prac- 
 tice may be seen to have been proceeding before we 
 entered the country ; but the signs of such change are 
 exceptionally clear in jurisprudence, so far, that is 
 to say, as Hindoo jurisprudence has been codified. 
 Hindoo law is theoretically contained in Manu, but 
 it is practically collected from the writings of the 
 jurists who have commented on him and on one 
 another. I need scarcely say that the mode of de- 
 veloping law which consists in the successive com- 
 ments of jurisconsult upon jurisconsult, has played 
 a very important part in legal history. The middle 
 and later Koman law owes to it much more than to 
 the imperial constitutions ; a great part of the Canon 
 law has been created by it ; and, though it has been 
 
LECT. ii. EFFECT OF JUDICIAL COMMENTARIES. 47 
 
 a good deal checked of late years by the increased 
 activity of formal legislatures, it is still the principal 
 agency in extending and modifying the law of con- 
 tinental countries. It is worth observing that it is 
 on the whole a liberalising process. Even so obsti- 
 nate a subject-matter as Hindoo law, was visibly 
 changed by it for the better. No doubt the dominant 
 object of each successive Hindoo commentator is so 
 to construe each rule of civil law as to make it 
 appear that there is some sacerdotal reason for it; 
 but, subject to this controlling aim, each of them 
 leaves in the law after he has explained it, a stronger 
 dose of common sense and a larger element of equity 
 and reasonableness than he found in it as it came 
 from the hands of his predecessors. 
 
 The methods of interpretation which the Sudder 
 Courts borrowed from the Supreme Courts and which 
 the Supreme Courts imported from Westminster Hall, 
 put a stop to any natural growth and improvement of 
 Hindoo law. As students of historical jurispudence, 
 we may be grateful to them for it ; but I am clearly 
 persuaded that, except where the Indian Legislature 
 directly interfered and of late it has interfered 
 rather freely, the English dominion of India at first 
 placed the natives of the country under a less ad- 
 vanced regimen of civil law than they would have 
 had if they had been left to themselves. The pheno- 
 menon seems to me one of considerable interest to the 
 
48 THE BAR AND ENGLISH LAW. LECT. n. 
 
 jurist. Why is it that the English mode of develop- 
 ing law by decided cases tends less to improve and 
 liberalise it than the interpretation of written law by 
 successive commentators ? Of the fact there seems 
 no question. Even where the original written law is 
 historically as near to us as are the French Codes, its 
 development by text-writers is on the whole more 
 rapid than that of English law by decided cases. 
 The absence of any distinct check on the commen- 
 tator and the natural limitations on the precision of 
 language are among the causes of the liberty he 
 enjoys; so also is the power which he exercises of 
 dealing continuously with a whole branch of law; 
 and so too are the facilities for taking his own course 
 afforded him by inconsistencies between the dicta of 
 his predecessors inconsistencies which are so glaring 
 in the case of the Hindoo lawyers, that they were 
 long ago distributed into separate schools of juridical 
 doctrine. The reason why a Bench of Judges, ap- 
 plying a set of principles and distinctions which are 
 still to a great extent at large, should be as slow as 
 English experience shows them to be in extension 
 and innovation, is not at first sight apparent. But- 
 doubtless the secret lies in the control of the English 
 Bench by professional opinion a control exerted all 
 the more stringently when the questions brought 
 before the courts are merely insulated fragments of 
 particular branches of law. English law is, in fact, 
 
LECT. ii. MAHOMETAN LAW. 49 
 
 confided to the custody of a great corporation, of 
 which the Bar, not the Judges, are far the largest 
 and most influential part. The majority of the cor- 
 porators watch over every single change in the body 
 of principle deposited with them, and rebuke and 
 practically disallow it, unless the departure from 
 precedent is so slight as to be almost imperceptible. 
 
 Let us now consider what was the law which, 
 under the name of native custom, the courts which 
 I have been describing undertook to administer. I 
 shall at present attend exclusively to the system 
 which, as being the law of the enormous majority of 
 the population, has a claim to be deemed the common- 
 law of the country Hindoo law. If I were techni- 
 cally describing the jurisdiction, I should have to 
 include Mahometan law, and the very interesting 
 customs of certain races who have stood apart from 
 the main currents of Oriental conquest and civili- 
 sation, and are neither Mahometan nor Hindoo. 
 Mahometan law, theoretically founded on the Koran, 
 has really more interest for the jurist than has 
 sometimes been supposed, for it has absorbed a 
 number of foreign elements, which have been amal- 
 gamated by a very curious process with the mass o 
 semi-religious rules ;, but the consideration of this 
 may conveniently be postponed, as also the discussion 
 of the outlying bodies of non-Hindoo usage found in 
 various parts of the country. 
 
 E 
 
50 THE PUNDITS. LECT. n. 
 
 The Hindoo law, then, to which the English in 
 India first substantially confined their attention, con- 
 sisted, first, of the Institutes of Manu, pretending to 
 a divine inspiration, of which it is not easy to define 
 the degree and quality, and, next, of the catena of 
 commentators belonging to the juridical sohool ad- 
 mitted to prevail in the province for which each par- 
 ticular court was established. The Court did not in 
 early times pretend to ascertain the law for itself, but 
 took the opinion of certain native lawyers officially 
 attached to the tribunal. But from the first there 
 were some specially learned Englishmen on the bench 
 who preferred to go for themselves to the fountains 
 of law, and the practice of consulting the ' Pundits ' 
 was gradually discontinued. These Pundits laboured 
 long under the suspicion, to a great degree unmerited, 
 of having trafficked with their privilege, and having 
 often, from corrupt motives, coined the law which 
 they uttered as genuine. But the learned work of 
 Mr. West and Professor Biihler, following on other 
 enquiries, has gone far to exonerate them, as the 
 greater part of their more important opinions have 
 been traced to their source in recognised authorities. 
 That they were never corrupt it is unfortunately 
 never safe to affirm of Orientals of their time; but 
 their opportunity was probably taken from the 
 vagueness of the texts which they had to interpret. 
 There are in fact certain dicta of Hindoo authorita- 
 
LECT. IT. CODIFIED HINDOO LAW. (5} 
 
 tive commentators upon which almost any conclusion 
 could be based. 
 
 The codified or written law of the Hindoos, then 
 assumed to include their whole law, consisted of a 
 large body of law regulating the relations of classes,, 
 especially in the matter of intermarriage ; of a great ) 
 body of family law, and a correspondingly extensive j 
 law of succession ; and of a vast number of rules 
 regulating the tenure of property by joint families, 
 the effects on proprietary right of the division of 
 those families, and the power of holding property 
 independently of the family. There was some law 
 of Contract and some law of Crime ; but large 
 departments of law were scantily represented, or 
 not at all, and there was in particular a singular 
 scarcity of rules relating specially to the tenure of| 
 land, and to the mutual rights of the various classes f 
 engaged in its cultivation. This last peculiarity was*' 
 all the more striking because the real wealth of the 
 country is, and always has been, agricultural, and 
 the religious and social customs of the people, even 
 as recorded in the codified law, savour strongly of 
 agriculture as their principal occupation. 
 
 It would seem that doubts as to the relation of 
 the codified or written law to the totality of native 
 usage were entertained at a very early time, and 
 collections were made of local rules which applied to 
 the very points discussed by the Brahminical jurists, 
 
 E 2 
 
52 VARIETIES OF NATIVE USAGE. T.ECT. n. 
 
 and yet disposed of them in a very different manner. 
 These doubts have steadily gained strength. I 
 think I may venture to lay down generally, that the 
 more exclusively an Anglo-Indian functionary has 
 been employed in c revenue ' administration, and the 
 further removed from great cities has been the scene 
 of his labours, the greater is his hesitation in admit- 
 ting that the law assumed to begin with Manu is, or 
 ever has been, of universal application. I have also 
 some reason to believe that the Judges of the newest 
 of the High Courts, that established a few years 
 ago for the provinces of the North- West in which 
 I primitive usage was from the first most carefully 
 / observed and most respected, are of opinion that they 
 'would do great injustice if they strictly and uniformly 
 administered the formal written law. The conclusion 
 arrived at by the persons who seem to me of highest 
 authority is, first, that the codified law Manu and 
 his glossators embraced originally a much smaller 
 body of usage than had been imagined, and, next, 
 that the customary rules, reduced to writing, have 
 been very greatly altered by Brahminical expositors, 
 constantly in spirit, sometimes in tenor. Indian law 
 may be in fact affirmed to consist of a very great 
 number of local bodies of usage, and of one set of 
 customs, reduced to writing, pretending to a diviner 
 authority than the rest, exercising consequently a 
 great influence over them, and tending, if not checked, 
 
LECT. ii. THE WRITTEN LAW. 53 
 
 to absorb them. You must not understand that these 
 bodies of custom are fundamentally distinct. They 
 are all marked by the same general features, but 
 there are considerable differences of detail; and the 
 interest of these differences to the historical jurist is 
 very great, for it is by their help that he is able 
 chien^to^conjnjBt_the customs of India with what 
 appear to have been some of the oldest customs of 
 Europe and the West. 
 
 As you would expect, the written law, having 
 been exclusively set forth and explained by Brahmins, 
 is principally distinguished from analogous local 
 usages by additions and omissions for which sacer- 
 dotal reasons may be assigned. For instance, I have 
 been assured from many quarters that one sweeping 
 theory, which dominates the whole codified law, can 
 barely be traced in the unwritten customs. It sounds 
 like a jest to say that, according to the principles of 
 Hindoo law, property is regarded as the means of 
 paying a man's funeral expenses, but this is not so 
 very untrue of the written law, concerning which the 
 most dignified of the Indian Courts has recently laid 
 down, after an elaborate examination of all tEer 
 authorities, that c the right of inheritance, according 
 to Hindoo law, is wholly regulated with reference to 
 the spiritual benefits to be conferred on the deceased 
 proprietor.' There are also some remarkable dif- 
 ferences between the written and unwritten law in 
 
54 HINDOO WIDOWS ESTATE. LECT. n. 
 
 their construction of the rights of widows. That 
 the oppressive disabilities of widows found in mo- 
 dern Hindoo law, and especially the prohibition of 
 re-marriage, have no authority from ancient records, 
 has often been noticed. The re -marriage of widows 
 is not a subject on which unwritten usage can be ex- 
 pected to throw much light, for the Brahminical law 
 has generally prevailed in respect of personal family 
 relations, but the unwritten law of property, which 
 largely differs from the written law, undoubtedly 
 gives colour to the notion that the extraordinary 
 harshness of the Hindoo text-writer to widows is of 
 sacerdotal origin. A custom, of which there are 
 many traces in the ancient law of the Aryan races, 
 but which is not by any means confined to them, 
 gives under various conditions the government of 
 the family, and, as a consequence of government, 
 the control of its property, to the wife after the 
 death of her husband, sometimes during the minority 
 of her male children, sometimes for her own life 
 upon failure of direct male descendants, sometimes 
 even, in this last contingency, absolutely. But the 
 same feeling, gradually increasing in strength, which 
 led them in their priestly capacity to preach to the 
 widow the duty of self ^immolation at her husband's 
 funeral-pyre, appears to have made her proprietary 
 rights more and more distasteful to the Brahminical 
 text- writers; and the Hindoo jurists of all schools, 
 
LECT. ii. PRESERVATION OF CUSTOMARY LAW. 55 
 
 though of some more than others, have striven 
 hard to maintain the principle that the life of the 
 widow is properly a life of self-denial and humilia- 
 tion. Partly by calling in the distinction between 
 separate and undivided property, and partly by help 
 of the distinction between movable and immovable 
 property, they have greatly cut down the widow's 
 rights, not only reducing them for the most part 
 (where they arise) to a life-interest, but abridging this 
 interest by a variety of restrictions to little more 
 than a trusteeship. Here again I am assured that 
 any practice corresponding to this doctrine is very 
 rarely found in the unwritten usage, under which 
 not only does the widow tend to become a true pro- 
 prietress for life, but approaches here and there to 
 the condition of an absolute owner. 
 
 The preservation, during a number of centuries 
 which it would be vain to calculate, of this great body 
 of unwritten custom, differing locally in detail, but 
 connected by common general features, is a pheno- 
 menon which the jurist must not pass over. Before 
 I say anything of the conclusions at which it points, 
 let me tell you what is known of the agencies by 
 which it has been preserved. The question has by 
 no means been fully investigated, but many of those 
 best entitled to have an opinion upon it have in- 
 formed me that one great instrumentality is the 
 perpetual discussion of customary law by the people 
 
56 CASTE IN INDIA. LECT. n. 
 
 themselves. We are, perhaps, too apt to forget that 
 in all stages of social development men are compara- 
 tively intelligent beings, who must have some sub- 
 jects of mental interest. The natives of India, for 
 poor and ignorant men, have more than might be 
 expected of intellectual quickness, and the necessities 
 of the climate and the simplicity of their habits make 
 the calls on their time less, and their leisure greater, 
 than would be supposed by persons acquainted only 
 with the labourers of colder climates. Those who 
 know most of them assert that their religious belief 
 is kept alive not by direct teaching, but by the con- 
 stant recitation in the vernacular of parts of their 
 sacred poems, and that the rest of their thought and 
 conversation is given to their usages. But this, doubt- 
 less, is not the whole explanation. I have been asked, 
 and I acknowledge the force of the question how 
 traditions of immemorial custom could be preserved 
 by the agricultural labourers of England, even if 
 they had more leisure than they have? But the 
 answer is that the social constitution of India is of the 
 extreme ancient, that of England of the extreme 
 modern type. I am aware that the popular im- 
 pression here is that Indian society is divided, so to 
 speak, into a number of horizontal strata, each re- 
 presenting a caste. This is an_entire mistake. It is 
 extremely doubtful whether the Brahminical theory 
 of caste upon caste was ever true except of the two 
 
LECT. ii. TRADITION. 57 
 
 highest castes ; and it is even likely that more impor- 
 tance has been attached to it in modern than ever 
 was in ancient times. The real India contains one 
 priestly caste, which in a certain, though a very 
 limited, sense is the highest of all, and there are, 
 besides, some princely houses and a certain number 
 of tribes, village communities, and guilds, which still 
 in our day advance a claim, considered by many 
 good authorities extremely doubtful, to belong to 
 the second or third of the castes recognised by the 
 Brahminical writers. But otherwise, caste is merely 
 a name for trade or occupation, and the sole tangible 
 effect of the Brahminical theory is that it creates a 
 religious sanction for what is really a primitive and 
 natural distribution of classes. The true view of 
 India is that, as a whole, it is divided into a vast 
 number of independent, self-acting, organised social 
 groups trading, manufacturing, cultivating. The 
 English agricultural labourers of whom we spoke, 
 are a too large, too indeterminate class, of which 
 the units are too loosely connected, and have too 
 few interests in common, to have any great power 
 of retaining tradition. But the smaller organic 
 groups of Indian society are very differently situated. 
 They are constantly dwelling on traditions of a cer- 
 tain sort, they are so constituted that one man's 
 interests and impressions correct those of another, 
 and some of them have in their council of elders a 
 
58 DIFFERENT FORMS OF TRADITION. LECT. n. 
 
 permanent machinery for declaring traditional usage, 
 and solving doubtful points. Tradition, I may ob- 
 serve, has been the subject of so much bitter polemi- 
 "cal? controversy that a whole group of most in- 
 teresting and important questions connected with it 
 have never been approached in the proper spirit, 
 Under what conditions it is accurate, and in respect 
 of what class of matters is accurate, are points with 
 which the historical jurist is intimately concerned. 
 I do not pretend to sum up the whole of the lessons 
 which observation of Indian society teaches on the 
 subject, but it is assuredly the belief of men who 
 were at once conscientious observers and had no 
 antecedent theory to sway them, that naturally 
 organised groups of men are obstinate conservators 
 of traditional law, but that the accuracy of the 
 tradition diminishes as the group becomes larger and 
 wider. 
 
 I The knowledge that this great body of traditional 
 I law existed, and that its varieties were just suffi- 
 ciently great for the traditions of one group to throw 
 light on those of another, will hereafter deeply affect 
 the British administration of India. But I shall have 
 to point out to you that there are signs of its being 
 somewhat abused. There has been a tendency to 
 leave out of sight the distinctions which render 
 different kinds of tradition of very different value; 
 the distinction, for example, between a mere tradition 
 
LECT. ii. POPULAR IGNORANCE OF LAW IN ENGLAND. 59 
 
 as to the rule to be followed in a given case and a LS 
 tradition which has caused a rule to be followed; the 
 distinction, as it has been put, between customs 
 which do and customs which do not correspond to 
 practices. If a tradition is not kept steady by 
 corresponding practice, it may be warped by all 
 sorts of extraneous influences. The great value now 
 justly attached in India to traditional law has even 
 brought about the absurdity of asking it to solve 
 some of the most complicated problems of modern 
 society, problems produced by the collapse of the 
 very social system which is assumed to have in itself 
 their secret. 
 
 I have been conducted by this discussion to a 
 topic on which a few words may not be thrown 
 away. Not only in connection with the preservation 
 of customary law, but as a means of clearing the 
 mind before addressing oneself to a considerable 
 number of juridical questions, I must ask you to 
 believe that the very small place filled by our own 
 English law in our thoughts and conversation is a 
 phenomenon absolutely confined to these islands. A 
 very simple experiment, a very few questions asked 
 after crossing the Channel, will convince you that 
 Frenchmen, Swiss, and Germans of a very humble 
 order have a fair practical knowledge of the law 
 which regulates their everyday life. We in Great 
 Britain and Ireland are altogether singular in our 
 
60 THE EXPERTS AND ENGLISH LAW. LECT. n. 
 
 tacit conviction that law belongs as much to the 
 class of exclusively professional subjects as the 
 practice of anatomy. Ours is, in fact, under limita- 
 tions which it is not necessary now to specify, a 
 body of traditional customary law; no law is better 
 known by those who live under it in a certain stage 
 of social progress, none is known so little by those 
 who are in another stage. As social activity multi- 
 plies the questions requiring judicial solution, the 
 method of solving them which a system of customary 
 law is forced to follow is of such a nature as to add 
 enormously to its bulk. Such a system in the end 
 beats all but the experts ; and we, accordingly, have 
 turned our laws over to experts, to attorneys and 
 solicitors, to barristers above them, and to judges in 
 the last resort. There is but one remedy for this 
 the reduction of the law to continuous writing and 
 its inclusion within aptly -framed general propositions. 
 The facilitation of this process is the practical end of 
 scientific jurisprudence. 
 
 As in the lectures which follow I shall not often 
 appeal to what are ordinarily recognised as the foun- 
 tains of Hindoo law, it was necessary for me to 
 explain that the materials for the conclusions which 
 I shall state unwritten usages, probably older and 
 purer than the Brahminical written law are now 
 having their authority acknowledged even by the 
 Indian Courts, once the jealous conservators of the 
 
LECT. ii. INDIAN AND TEUTONIC VILLAGE SYSTEMS. 61 
 
 integrity of the sacerdotal system. These ma- 
 terials are partly to be found in that large and 
 miscellaneous official literature which I described as 
 having grown out of the labours of the functionaries 
 who adjust the share of the profits of cultivation 
 claimed by the British Government as supreme land- 
 lord; but much which is essential to a clear under- 
 standing can only be at present collected from the 
 oral conversation of experienced observers who have 
 passed their maturity in administrative office. The 
 inferences suggested by the written and oral testi- 
 mony would perhaps have had interest for few except 
 those who had passed, or intended to pass, a life in 
 Indian office; but their unexpected and (if I may 
 speak of the impression on myself) their most start- 
 ling coincidence wit1?^ne A w^iters who have recently 
 applied themselves to the study of early Teutonic 
 agricultural customs, gives them a wholly new value 
 and importance. It would seem that light is pouring 
 from many quarters at once on some of the darkest 
 passages in the history of law and of society. To 
 those who knew how strong a presumption already 
 existed that individual property came into existence 
 after a slow process of change, by which it disengaged 
 itself from collective holdings by families or larger 
 assemblages, the evidence of a primitive village system 
 in the Teutonic and Scandinavian countries had very 
 great interest; this interest largely increased when 
 
62 INDIAN AND TEUTONIC VILLAGE SYSTEMS. LECT. 11. 
 
 England, long supposed to have had since the 
 Norman Conquest an exceptional system of property 
 in land, was shown to exhibit almost as many traces 
 of joint-ownership and common cultivation as the 
 countries of the North of the Continent ; but our 
 interest culminates, I think, when we find that these 
 primitive European tenures and this primitive Euro- 
 pean tillage constitute the actual working system of 
 the Indian village communities, and that they deter- 
 mine the whole course of Anglo -Indian administration. 
 
 
LECTURE III. 
 
 THE WESTERN TILLAGE COMMUNITY. 
 
CONTENTS. 
 
 Antiquity of Indian Customary Law Traditional Law Analysis of a 
 Law Indian Conceptions of Law English Influence on Legal Con- 
 ceptions Unwilling Assumption of Sovereignty Influence of Courts 
 of Justice Change in Nature of Usage Growth of Conception of 
 Right Influence of English Law Connection of Eastern and 
 Western Custom Von Maurer The Teutonic Village Community 
 The Arable Mark English Theories of Land-Law The Arable 
 Mark in England Shifting Severalties The Common Fields Their 
 Great Extent Extract from Marshall Scott on Udal Tenures 
 Commonty of Lauder Peculiarities of Scottish Example Vestiges 
 of the Mark. 
 
LECT. in. ANTIQUITY OF CUSTOMARY LAW. 65 
 
 LECTURE III. 
 
 THE WESTERN VILLAGE COMMUNITY. 
 
 I HAVE AFFIRMED the fact to be established as well as 
 any fact of the kind can be, that there exist in India 
 several and it may even be said, many considerable 
 bodies of customary law, sufficiently alike to raise a 
 strong presumption that they either had a common 
 origin or sprang from a common social necessity, but 
 sufficiently unlike to show that each of them must 
 have followed its own course of development. There 
 exists a series of writings which pretend to be a 
 statement of these customs, but this series proves to 
 include a part only of the whole body of usage ; it 
 probably embodied from the first only one set of cus- 
 tomary rules, and its form shows clearly that it must 
 have had a separate and very distinct history of its 
 own. Few assertions respecting lapse of time and 
 the past can safely be made of anything Indian ; but 
 there can be no reasonable doubt that all this cus- 
 tomary law is of very great antiquity. I need scarcely 
 point out to you that such facts as these have a 
 
 F 
 
G6 TRADITIONAL LAW. LECT. in. 
 
 bearing on more than one historical problem. If, for 
 example, I am asked whether it is possible that, when 
 the Eoman empire had been overrun by the Northern 
 races, the Roman law could be preserved by mere 
 oral transmission in countries in which no (Breviaries, 
 of that law were published by the invading chiefs to 
 keep it alive, I can only say that observation of 
 India shows such preservation to be abstractedly pos- 
 sible ; and shows it moreover to be possible in the face 
 of written records of a legal or legislative character 
 which contain no reference to the unwritten and 
 orally transmitted rules. But I should at the same 
 time have to point out that nothing in India tends to 
 prove that law may be orally handed down from one 
 generation to another of men who form an indeter- 
 minate class, or that it can be preserved by any 
 agency than that of organised, self-acting, social 
 groups. I should further have to observe that, unless 
 there have been habits and practices corresponding to 
 the traditional rules, those rules may be suspected 
 of having undergone considerable modification or 
 depravation. 
 
 I pass, however, to matters which have a closer 
 interest for the jurist, and which are, therefore, dis- 
 cussed with more propriety in this department of 
 study. So long as that remarkable analysis of legal 
 conceptions effected by Bentham and Austin is not 
 very widely known in this country (and I see no signs 
 
 i 
 
J.ECT. in. THE ANALYSIS OF A LAW. 67 
 
 of its being known on the Continent at all), it is 
 perhaps premature -to complain of certain errors into 
 which it is apt to lead us on points of historical juris- 
 prudence. If, then, I employ the Indian legal pheno- 
 mena to illustrate these errors, I must preface what 
 I have to say with the broad assertion that nobody 
 who has not mastered the elementary part of that 
 analysis can hope to have clear ideas either of law or 
 of jurisprudence. Some of you may be in a position to 
 call to mind the mode in which these English jurists 
 decompose the conception of a law, and the nature 
 and order of the derivative conceptions which they 
 assert to be associated with the general conception. 
 A law, they say, is a command of a particular kind. 
 It is addressed by political superiors or sovereigns to 
 political inferiors or subjects ; it imposes on those 
 subjects an obligation or duty and threatens a penalty 
 (or sanction) in the event of disobedience. The 
 power vested in particular members of the community 
 of drawing down the sanction on neglects or breaches 
 of the duty is called a Right. Now, without the most 
 violent forcing of language, it is impossible to apply 
 these terms, command, sovereign, obligation, sanction, 
 right, to the customary law under which the Indian 
 village communities have lived for centuries, practi- 
 cally knowing no other law civilly obligatory. It 
 would be altogether inappropriate to speak of a poli- 
 tical superior commanding a particular course of action 
 
 F 2 
 
68 INDIAN CONCEPTIONS OF A LAW. J.ECT. in. 
 
 to the villagers. The council of village elders does not 
 command anything, it merely declares what has 
 always been. Nor does it generally declare that 
 which it believes some higher power to have com- 
 manded; those most entitled to speak on the subject 
 deny that the natives of India necessarily require 
 divine or political authority as the basis of their 
 usages ; their antiquity is by itself assumed to be a 
 sufficient reason for obeying them. Nprj in the 
 sense of the analytical jurists is there right or duty in 
 /an Indian village community ; a person aggrieved 
 f complains not of an individual wrong but of the dis- 
 \ turbance of the order of the entire little society. More 
 than all, customary law is not enforced by a sanction. 
 In the almost inconceivable case of disobedience to 
 the award of the village council, thejtole punishment, 
 or, the sole certain punishment, would appear to be 
 universal disapprobation. And hence, under the 
 system of Bentham and Austin, the customary law of 
 India would have to be called morality an inversion 
 of language which scarcely requires to be formally 
 protested against. 
 
 I shall have hereafter to tell you that in certain of 
 the Indian communities there are signs of one family 
 enjoying an hereditary pre-eminence over the others, 
 so that its head approaches in some degree to the 
 position of chief of a clan, and I shall have to explain 
 that this inherited authority is sometimes partially 
 
LECT. in. ENGLISH INFLUENCE ON LEGAL CONCEPTIONS. G9 ) 
 
 and sometimes'exclusively judicial, so that the chief be- *) 
 comes a sort of hereditorjj udge. Of communities thus 
 circumstanced the juristical analysis to which I have 
 been referring is more nearly true. So too the codi^. 
 fied Brahminical law could be much more easily 
 resolved into the legal conceptions determined by 
 Bentham and Austin. It assumes that there is a 
 king to enforce the rules which it sets forth, and pro- 
 vides a procedure for him and his subordinates, and 
 penalties for them to inflict ; and moreover it becomes 
 true law in the juristical sense, through another 
 peculiarity which distinguishes it. Every offence 
 against this written law is also a sin ; to injure a 
 man's property is for instance to dimmish the power 
 of his sons to provide properly for expiatory funeral 
 rites, and such an injury is naturally supposed to 
 entail divine punishment on its perpetrator. 
 
 We may, however, confine our attention to the 
 unwritten usages declared from time to time by the 
 council of village elders. The fact which has 
 greatest interest for the jurist is one which has been 
 established by the British dominion of India, and 
 which could not probably have been established 
 without it. It may be described in this way. 
 Whenever you introduce any one of the legal concep- 
 tions determined by the* analysis of Bentham and 
 Austin, you introduce all the others by a process 
 which is apparently inevitable. No better proof 
 
70 UNWILLING ASSUMPTION OF SOVEREIGNTY. LECT. in. 
 
 could be given that, though it be improper to employ 
 these terms sovereign, subject, command, obligation, 
 right, sanction, of law in certain stages of human 
 thought, they nevertheless correspond to a stage to 
 which law is steadily tending and which it is sure 
 ultimately to reach. 
 
 , Nothing is more certain than that the revolution 
 of legal ideas which the English have effected in 
 \ India was not effected by them intentionally. The 
 relation of sovereign to subject, for instance, which 
 is essential to the modern juridical conception of law, 
 was not only not established by them, but was for 
 long sedulously evaded. When they first committed 
 themselves to a course of territorial aggrandisement, 
 they adopted a number of curious fictions rather 
 than admit that they stood to the people of India as 
 political superior to political inferior. Nor had they 
 the slightest design of altering the customary law of 
 the country. They have been accused of interfer- 
 ing with native usages, but when the interference 
 (which has been on the whole very small) has taken 
 place, it has either arisen from ignorance of the exist- 
 ence of custom or has been forced on them, in very 
 recent times and in the shape of express legislation, 
 by necessities which I may be led hereafter to 
 explain. 1 The English never therefore intended that 
 
 1 I have endeavoured to redeem this promise in part by printing 
 in an Appendix a Minute recorded in India on the subject of the 
 over-legislation not infrequently attributed to the British Govern- 
 ment. 
 
LECT. Ill, 
 
 INFLUENCE OF COURTS OF JUSTICE. 
 
 G 
 
 the laws of the country should rest on their com- 
 mands, or that these laws should shift in any way 
 their ancient basis of immemorial usage. One change 
 only they made, without much idea of its importance, 
 and thinking it probably the very minimum of conces- 
 sion to the exigencies of civilised government. They 
 established Courts of Justice in every administrative 
 district. Here I may observe that, though the 
 Brahminical written law assumes the existence of 
 king and judge, yet at the present moment in some 
 of the best governed semi-independent native States 
 there are no institutions corresponding to our Courts \ 
 of Justice. Disputes of a civil nature are adjusted j 
 by the elders of each village community, or occasion- M 
 ally, when they relate to land, by the functionaries 
 charged with the collection of the prince's revenue. 
 Such criminal jurisdiction as is found consists in the 
 interposition of the military power to punish breaches 
 of the peace of more than ordinary gravity. , What 
 must be called criminal law is administered through 
 the arm of the soldier. 
 
 In a former lecture I spoke of the stiffness given 
 to native custom through the influence of English 
 law and English lawyers on the highest courts of 
 appeal. The changes which I am about to describe 
 arose from the mere establishment of ^ocaLcmirts of 
 lowestjjmsdiction ; and while they have effected a 
 revolution, it is a revolution which in the first 
 
72 CHANGE IN NATURE OF USAGE. LECT. in. 
 
 instance was conservative of the rigidity of native 
 usage. The customs at once altered their character. 
 They are generally collected from the testimony of 
 the village elders ; but when these elders are once 
 called upon to give their evidence, they necessarily 
 lose their old position. They are no longer a half- 
 judicial, half-legislative council. That which they 
 have affirmed to be the custom is henceforward to 
 be sought from the decisions of the Courts of Justice, 
 or from official documents which those courts receive 
 as evidence; such, for example, as the document which, 
 under the name of the Record of Rights, I described 
 to you as a detailed statement of all rights in land 
 drawn up periodically by the functionaries employed 
 in settling the claim of the Government to its share 
 of the rental. Usage, once recorded upon evidence 
 given, immediately becomes written and fixed law. 
 Nor is it any longer obeyed as usage. It is hence- 
 forth obeyed as the law administered by a British 
 Court, and has thus really become a command of the 
 sovereign. The next thing is that the vague sanc- 
 tions of customary law disappear. The local courts 
 have of course power to order and guide the execu- 
 tion of their decrees, and thus we have at once the 
 sanction or penalty following disobedience of the 
 command. And, with the command and with the 
 sanction, come the conceptions of legal right and duty. 
 1 am not speaking of the logical but of the practical 
 
LECT. in. GROWTH OF CONCEPTION OF EIGHT. 73 
 
 consequence. If I had to state what for the moment 
 is the greatest change which has come over the 
 people of India and the change which has added most 
 seriously to the difficulty of governing them, I should 
 say it was the growth on all sides of the sense of 
 individual legal right ; of a right not vested in the 
 total group but in the particular member of it 
 aggrieved, who has become conscious that he may 
 call in the arm of the State to force his neighbours to 
 obey the ascertained rule. The spread of this sense 
 of individual right would be an unqualified advantage 
 if it drew with it a corresponding improvement in 
 moral judgment. There would be little evil in the 
 British Government giving to native custom a con- 
 straining force which it never had in purely native 
 society, if popular opinion could be brought to approve 
 of the gradual amelioration:) of that custom. Unfor- 
 tunately for us, we have created the sense of legal 
 right before we have created a proportionate power 
 of distinguishing good from evil in the law upon 
 which the legal right depends* 
 
 You will see then that the English government 
 of India consciously introduced into India only one 
 of the conceptions discriminated by the juridical 
 analysis of a law. This was the sanction or penalty ; 
 in establishing Courts of Justice they of course con- 
 templated the compulsory execution of decrees. But 
 in introducing one of the terms of the series you will 
 
74 IXFLUEXCE OF ENGLISH LAW. LECT. nr. 
 
 observe they introduced all the others the political 
 superior, the command, the legal right and the legal 
 duty. I have stated that the process is in itself one 
 conservative of native usage, and that the spirit in- 
 troduced from above into the administration of the 
 law by English lawyers was also one which tended 
 to stereotype custom. You may therefore perhaps 
 recall with some surprise the reason which I assigned 
 in my first Lecture for making haste to read the 
 lessons which India furnishes to the juridical student. 
 Indian usage, with other things Indian, was, I told 
 you, passing away. The explanation is that you 
 have to allow for an influence, which I have merely 
 referred to as yet, in connection with the exceptional 
 English Courts at Calcutta, Madras, and Bombay. 
 Over the interior of India it has only begun to make 
 itself felt of late years, but its force is not yet nearly 
 spent. This is the influence of English law; not, I 
 mean, of the spirit which animates English lawyers 
 and which is eminently conservative, but the conta- 
 gion, so to speak, of the English system of law, the 
 effect which the body of rules constituting it pro- 
 duces by contact with native usage. Primitive cus- 
 tomary law has a double peculiarity : it is extremely 
 scanty in some departments, it is extremely prodigal, 
 of rules in others ; but the departments in which 
 rules are plentiful are exactly those which lose their 
 / importance as the movements of society become 
 
J.ECT. in. INFLUENCE OF ENGLISH LAW. 75 
 
 quicker and more various. The body of persons to 
 whose memory the customs are committed has pro- 
 bably always been a quasi-legislative, as well as a 
 quasi-judicial body, and has :// al ways added to the 
 stock of usage by tacitly inventing new rules to apply 
 to cases which are really new. When, however, the 
 customary law has once been reduced to writing and 
 recorded by the process which I have described, it 
 does not supply express rules or principles in nearly 
 sufficient number to settle the disputes occasioned by 
 the increased activity of life and the multiplied wants 
 which result from the peace andplenty due to British 
 rule. The consequence is wholesale and indiscrimi- 
 nate borrowing from the English law the most 
 copious system of express rules known to the world. 
 The Judge reads English law-books ; the young 
 native lawyers read them, for law is the study into 
 which the educated youth of the country are throw- 
 ing themselves, and for which they may even be said 
 to display something very like genius. You may 
 ask what authority have these borrowed rules in 
 India. Technically, they have none whatever ; yet, 
 though they are taken (and not always correctly 
 taken) from a law of entirely foreign origin, they are 
 adopted as if they naturally commended themselves 
 to the reason of mankind ; and all that can be saijd 
 of the process is that it is another example of the 
 influence, often felt in European legal history, which 
 
76 CONNECTION OP EASTERN AXD WESTERN JUSTICE. LECT. m. 
 
 express written law invariably exercises on unwritten 
 customary law when they are found side by side. 
 For myself, I cannot say that I regard this transmu- 
 tation of law as otherwise than lamentable. It is not 
 a correction of native usage where it is unwholesome. 
 It allows that usage to stand, and confirms it rather 
 than otherwise ; but it fills up its interstices with 
 unamalgamated masses of foreign law. And in a 
 very few years it will destroy its interest for the 
 historical jurist, by rendering it impossible to deter- 
 mine what parts of the structure are of native and 
 what of foreign origin. Nor will the remedial pro- 
 cess which it is absolutely necessary to apply for the 
 credit of the British name restore the integrity of the 
 , native system. For the cure can only consist in the 
 enactment of uniform, simple, codified law, formed 
 for the most part upon the best European models. 
 
 It is most desirable that one great branch of native 
 Indian usage should be thoroughly examined before it 
 decays, inasmuch as it is through it that we are able 
 to connect Indian customary law with what appears 
 / to have once been the customary law of the Western 
 \ World. I speak of the Indian customs of agricultural 
 ' tenure and of collective property in land. 
 
 For many years past there has been sufficient 
 evidence to warrant the assertion that the oldest dis- 
 coverable forms of property in land were forms of 
 
 ilective property, and to justify the conjecture that 
 
LECT. in. VON MAURER, 77 
 
 separate property had grown through a series (though 
 not always an identical series) of changes, out of col- 
 lective property or ownership in common. But the 
 testimony which was furnished by the Western World 
 had one peculiarity. The forms of collective property 
 which had survived and were open to actual observa- 
 tion were believed to be found exclusively in countries 
 peopled by the Sclavonic/race. It is true that histo- 
 rical scholars who had made a special study of the 
 evidence concerning ancient Teutonic holdings, as, for 
 example, the early English holdings, might have been 
 able to assert of them that they pointed to the same 
 conclusions as the Sclavonic forms of village property ; 
 but the existing law of property in land, its actual 
 distribution and the modes of enjoying it, were sup- 
 posed to have been exclusively determined in Teutonic 
 countries by their later history. It was not until 
 Von Maurer published a series of works, in which his 
 conclusions were very gradually developed, that the 
 close correspondence between the early history of 
 Teutonic property and the facts of proprietary enjoy- 
 ment in the Germany of our own day was fully estab- 
 lished ; and not two years have elapsed since Nasse 
 called attention to the plain and abundant vestiges 
 of collective Teutonic property which are to e traced 
 in England. 
 
 I shall not attempt to do more than give you such 
 a summary of Yon Maurer's conclusions as may suffice 
 
THE TEUTONIC VILLAGE COMMUNITIES. LECT. in. 
 
 to connect them with the results of official observation 
 and administrative enquiry in India. You will find 
 a somewhat fuller compendium of them in the paper 
 contributed by Mr. Morier to the volume recently 
 published, called c Systems of Land Tenure in Various 
 Countries.' Mr. Morier is the English Charge d' Af- 
 faires at Darmstadt, and he assures me that his account 
 of the abundant vestiges of collective property which 
 are to be found in the more backward parts of 
 Germany may easily be verified by the eye. They 
 are extremely plain in some territorial maps with 
 which he has been good enough to supply me. 
 
 The ancient Teutonic cultivating community, as it 
 existed in Germany itself, appears to have been thus 
 organised. It consisted of a number of families 
 standing in a proprietary relation to a district divided 
 into three parts. These three portions were the Mark 
 of the Township or Village, the Common Mark or 
 waste, and the Arable Mark or cultivated area. The 
 community inhabited the village, held the common 
 mark in mixed ownership, and cultivated the arable 
 mark in lots appropriated to the several families. 
 
 Each family in the township was governed by its 
 own free head or paterfamilias. The precinct of the 
 family dwelling-house could be entered by nobody 
 but himself and those under his patria potestas, not 
 even by officers of the law, for he himself made law 
 within and enforced law made without. 
 
LECT. in. THE TEUTONIC VILLAGE COMMUNITIES. 7f 
 
 But, while he stood under no relations controllable 
 by others to the members of his family, he stood in a 
 number of very intricate relations to the other heads 
 of families. The sphere of usage or customary lawO 
 was not the family, but the connection of one family 
 with another and with the aggregate community. 
 
 Confining ourselves to proprietary relations, we 
 find that his rights or (what is the same thing) the 
 rights of his family over the Common Mark are con- 
 trolled or modified by the rights of every other 
 family. It is a^tricLgwnership in common, both in 
 theory and in practice. When cattle grazed on the 
 common pasture, or when the householder felled wood 
 in the common forest, an elected or hereditary officer 
 watched to see that the common domain was equitably 
 enjoyed. 
 
 But the proprietary relation of the householder 
 which has most interest for us is his relation to the 
 Arable Mark. It seems always in theory to have been 
 originally cut out of the common mark, which indeed 
 can only be described as the portion of the village 
 domain not appropriated to cultivation. In this uni- 
 versally recognised original severance of the arable 
 mark from the common mark we come very close upon 
 the beginning of separate or individual property. 
 The cultivated land of the Teutonic village community 
 appears almost invariably to have been divided into 
 three great fields. A rude rotation of crops was the 
 
80 THE ARABLE MARK. LECT. in. 
 
 object of this threefold division, and it was intended 
 that each field should lie fallow once in three years. 
 
 The fields under tillage were not however culti- 
 vated by labour in common. Each householder has 
 his own family lot in each of the three fields, and 
 this he tills by his own labour, and that of his sons 
 and his slaves. But he cannot cultivate as he 
 pleases. He must sow the same crop as the rest of 
 the community, and allow his lot in the uncultivated 
 field to lie fallow with the others. Nothing he does 
 must interfere with the right of other households to 
 have pasture for sheep and oxen in the fallow and 
 among the stubbles of the fields under tillage. The 
 rules regulating the modes of cultivating the various 
 lots seem to have been extremely careful and compli- 
 cated, and thus we may say without much rashness 
 that the earliest law of landed property arose at the 
 same time when the first traces of individual property 
 began to show themselves, and took the form of 
 usages intended to produce strict uniformity of culti- 
 vation in all the lots of ground for the first time 
 appropriated. That these rules should be intricate 
 is only what might be expected. The simplicity 
 of the earliest family law is not produced by any 
 original tendency of mankind, but is merely the 
 simplicity which goes always with pure despotism. 
 Ancient systems of law are in one sense scanty. 
 The number of subjects with which they deal is 
 
LECT. in. THE ARABLE MARK. 81 
 
 small, and, from the modern jurist's point of view, 
 there are great gaps in them. But the number of 
 minute rules which they accumulate between narrow 
 limits is very surprising. The most astonishing 
 example of this is to be found in the translation of 
 the Ancient Irish law now in course of publication 
 by the Irish Government. The skeleton of this law 
 is meagre enough, but the quantity of detail is vast 
 so vast that I cannot but believe that much of it is 
 attributable to the perverted ingenuity of a class of 
 hereditary lawyers. 
 
 The evidence appears to me to establish that the 
 Arable Mark of the Teutonic village community was 
 occasionally shifted from one part of the general 
 village domain to another. It seems also to show 
 that the original distribution of the arable area was 
 always into exactly equal portions, corresponding to 
 the number of free families in the township. Nor 
 can it be seriously doubted upon the evidence that 
 the proprietary equality of the families composing 
 the group was at first still further secured by a 
 periodical redistribution of the several assignments. 
 The point is one of some importance. One stage in 
 the transition from collective to individual property 
 was reached when the part of the domain under 
 cultivation was allotted among the Teutonic races to 
 the several families of the township ; another was 
 gained when the system of ' shifting severalties ' came 
 
 G 
 
82 THE ARABLE MARK. LECT. in. 
 
 to an end, and each family was confirmed for a 
 perpetuity in the enjoyment of its several lots of 
 land. But there appears to be no country inhabited 
 by an Aryan race in which traces do not remain of 
 the ancient periodical redistribution. It has con- 
 tinued to our own day in the Russian villages. 
 Among the Hindoo villagers there are widely ex- 
 tending traditions of the practice ; and it was doubt- 
 less the source of certain usages, to be hereafter 
 described, which have survived to our day in Eng- 
 land and Germany. 
 
 I quote from Mr. Morier's paper the following ob- 
 servations. ' These two distinct aspects of the early 
 Teutonic freeman as a " lord " and a " commoner " 
 united in the same person one when within the pale 
 of his homestead, the other when standing outside 
 that pale in the economy of the mark should not be 
 lost sight of. In them are reflected the two salient 
 characteristics of the Teutonic race, the spirit of 
 individuality, and its spirit of association ; and as the 
 action and reaction of these two laws have deter- 
 mined the social and political history of the race, so 
 they have in an especial manner affected and deter- 
 mined its agricultural history*' 
 
 Those of you who are familiar with the works of 
 Palgrave, Kemble, and Freeman, are aware that the 
 most learned writers on the early English proprietary 
 system give an account of it not at variance in any 
 
LECT. in. ENGLISH THEORIES OF LAND-LAW. 83 
 
 material point with the description of the Teutonic 
 mark which I have repeated from Yon Maurer. The 
 question, then, which at once presses on us is whether 
 an ancient form of property, which has left on 
 Germany traces so deep and durable that (again to 
 quote Mr. Morier) they may always be followed 
 on ordinary territorial maps, must be believed to have 
 quite died out in England, leaving no sign of itself 
 behind? Unquestionably the answer furnished by 
 the received text-books of English real-property law 
 is affirmative. They either assume, or irresistibly 
 suggest, that the modern law is separated from the 
 ancient law by some great interruption ; and Nasse, 
 the object of whose work is to establish the survival 
 of the Mark in England, allows that German 
 enquirers had been generally under the impression 
 that the history of landed property in this country 
 was characterised by an exceptional discontinuity. 
 There is much in the technical theory of our real- 
 property law which explains these opinions ; and it 
 is less wonderful that lawyers should have been led 
 to them by study of the books, than that no doubt 
 of their soundness should have been created by facts 
 with which practitioners were occasionally well 
 acquainted. These facts, establishing the long con- 
 tinuance of joint cultivation by groups modelled on 
 the community of the Mark, were strongly pressed 
 upon the Select Committee of the House of Commons 
 
 G 2 
 
84 ENGLISH THEOEIES OF LAND-LAW. LECT. m. 
 
 which, sat to consider the subject of inclosures in 
 1844 by a witness, Mr. Blamire, who was at once a 
 lawyer and an official unusually familiar with English 
 landed property in its less usual shapes. Yet Mr. 
 Blamire appears ( c Evidence before Select Committee 
 of 1844,' p. 32, q. 335) to have unreservedly adopted 
 the popular theory on the subject, which I believe to 
 be that at some period sometimes vaguely associated 
 with the feudalisation of Europe, sometimes more 
 precisely with the Norman Conquest the entire soil 
 of England was confiscated ; that the whole of each 
 manor became the lord's demesne; that the lord 
 divided certain parts of it among his free retainers, 
 but kept a part in his own hands to be tilled by his 
 villeins; that all which was not required for this 
 distribution was left as the lord's waste ; and that all 
 customs which cannot be traced to feudal principles 
 grew up insensibly, through the subsequent tolerance 
 of the feudal chief. 
 
 There has been growing attention for some years 
 past to a part of the observable phenomena which 
 prove the unsoundness of the popular impression. 
 Many have seen that the history of agriculture, of 
 land-law, and of the relations of classes cannot be 
 thoroughly constructed until the process has been 
 thoroughly deciphered by which the common or 
 waste -land was brought under cultivation either by 
 the lord of the manor or by the lord of the manor 
 
LECT. in. THE ARABLE MAEK IN ENGLAND. 85 
 
 in connection with the commoners. The history of 
 Inclosures and of Inclosure Acts is now recognised as 
 of great importance to our general history. But 
 corresponding study has not, or not of late, been 
 bestowed on another set of traces left by the past. 
 The Arable Mark ha& aiirvived among us as well as 
 the Common Mark or waste, and it the more de- 
 serves our attention in this place because its interest 
 is not social or political but purely juridical. 
 
 The lands which represent the cultivated portion 
 of the domain of the ancient Teutonic village com- 
 munities are found more or less in all parts of England, 
 but more abundantly in some counties than in others. 
 They are known by various names. When the soil is 
 arable, they are most usually called 'common/ 4 com- 
 monable,'or ' open ' fields, or sometimes simply 4 inter- 
 mixed ' lands. When the lands are in grass, they are 
 sometimes known as 4 lot meadows,' sometimes as 
 'lammas lands,' though the last expression is occa- 
 sionally used of arable soil. The 4 common fields ' are 
 almost invariably divided into three long strips, sepa- 
 rated by green baulks of turf. The several properties 
 consist in subdivisions of these strips, sometimes 
 exceedingly minute; and there is a great deal of 
 evidence that one several share in each of the strips 
 belonged originally to the same ownership, and that 
 all the several shares in any one strip were originally 
 equal or nearly equal, though in progress of time a 
 
86 THE COMMON FIELDS. LECT. in. 
 
 good many have been accumulated in the same hands. 
 The agricultural customs which prevail in these 
 common fields are singularly alike. Each strip bears 
 two crops of a different kind in turn and then lies 
 fallow. The better opinion seems to be that the 
 custom as to the succession of crops would not be 
 sustained at law ; but the right to feed sheep or cattle 
 on the whole of one strip during the fallow year, or 
 among the stubbles of the other two strips after the 
 crops have been got in, or on the green baulks which 
 divide the three fields, is generally treated as capable 
 of being legally maintained. This right has in some 
 cases passed to the lord of the manor, but sometimes 
 it is vested in the body of persons who are owners of 
 the several shares in the common fields. The grass 
 lands bear even more distinct traces of primitive 
 usage. The several shares in the arable fields, some- 
 times, but very rarely, shift from one owner to 
 another in each successive year ; but this is frequently 
 the rule with the meadows, which, when they are 
 themselves in a state of severalty, are often distribu- 
 ted once a year by casting lots among the persons 
 entitled to appropriate and enclose them, or else 
 change from one possessor to another in the order of 
 the names of persons or tenements on a roll. As a 
 rule the inclosures are removed after the hay-harvest; 
 and there are manors in which they are taken down 
 by the villagers on Lammas Day (that is, Old 
 
LECT. HI. SHIFTING SEVERALTIES. 87 
 
 Lammas Day) in a sort of legalised tumultuary 
 assembly. The group of persons entitled to use the 
 meadows after they have been thrown open is often 
 larger than the number of persons entitled to en- 
 close them. All the householders in a parish, and 
 not merely the landowners, are found enjoying this 
 right. The same peculiarity occasionally, but much 
 more rarely, characterises the rights over common 
 arable fields; and it is a point of some interest, since 
 an epoch in the history of primitive groups occurs 
 when they cease to become capable of absorbing 
 strangers. The English cultivating communities may 
 be supposed to have admitted new-comers to a limited 
 enjoyment of the meadows, up to a later date than 
 the period at which the arable land had become the 
 exclusive property of the older families of the group. 
 The statute 24 Geo. II. c. 23, which altered the 
 English Calendar, recites (s. 5) the frequency of 
 these ancient customs and forms of property, and 
 provides that the periods for commencing common 
 enjoyment shall be reckoned by the old account of 
 time. They have been frequently noticed by agri- 
 cultural writers, who have strongly and unanimously 
 condemned them. There is but one voice as to the 
 barbarousness of the agriculture perpetuated in the 
 common arable fields, and as to the quarrels and 
 heart-burning of which the 'shifting severalties' in 
 the meadow land have been the source. But both 
 
88 GEEAT EXTENT OF THE COMMON FIELDS. LECT. in. 
 
 common fields and common meadows are still plenti- 
 ful on all sides of us. Speaking for myself person- 
 ally, I have been greatly surprised at the number of 
 instances of abnormal proprietary rights, necessarily 
 implying the former existence of collective owner- 
 ship and joint cultivation, which comparatively brief 
 enquiry has brought to my notice ; nor can I doubt 
 that a hundred and fifty years ago instances of such 
 rights could have been produced in vastly greater 
 numbers, since Private Acts of Parliament for the 
 inclosure of commonable fields were constantly 
 passed in the latter part of the last and the earlier 
 part of the present century, and since 1836 they 
 have been extensively enclosed, agglomerated, and 
 exchanged under the Common Fields Inclosure Act 
 passed in that year, and under the general powers 
 more recently vested in the Inclosure Commissioners. 
 The breadth of land which was comparatively recently 
 in an open, waste, or commonable condition, and 
 which therefore bore the traces of the ancient Teu- 
 tonic cultivating system, may be gathered from a 
 passage in which Nasse sums up the statements made 
 in a number of works by a writer, Marshall, whom I 
 shall presently quote. ' In almost all parts of the 
 country, in the Midland and Eastern Counties par- 
 ticularly, but also in the West in Wiltshire for ex- 
 ample in the South, as in Surrey, in the North, as 
 in Yorkshire, there are extensive open and common 
 
LECT. in. GREAT EXTENT OF THE COMMON FIELDS. 89 
 
 fields. Out of 316 parishes in Northamptonshire, 89 
 are in this condition; more than 100 in Oxfordshire ; 
 about 50,000 acres in Warwickshire ; in Berkshire, 
 half the county ; more than half of Wiltshire ; in 
 Huntingdonshire, out of a total area of 240,000 acres, 
 130,000 were commonable meadows, commons, and 
 common fields.' (Ueber die Mittelalterliche Feld- 
 gemeinschaft in England,' p. 4.) The extent of some 
 of the fields may be inferred from the fact, stated to 
 me on good authority, that the pasturage on the divid- 
 ing baulks of turf, which were not more than three 
 yards wide, was estimated in one case at eighty acres. 
 These footprints of the past were quite recently found 
 close to the capital and to the seats of both Uni- 
 versities. In Cambridgeshire they doubtless corre- 
 sponded to the isolated patches of dry soil which were 
 scattered through the fens, and in the metropolitan 
 county of Surrey, of which the sandy and barren soil 
 produced much the same isolation of tillage as did the 
 morasses of the fen country, they occurred so close to 
 London as to impede the extension of its suburbs, 
 through the inconvenient customs which they placed 
 in the Way of building. One of the largest of the 
 common fields was found in the immediate neigh- 
 bourhood of Oxford ; and the grassy baulks which 
 anciently separated the three fields are still conspi- 
 cuous from the branch of the Great Northern Railway 
 which leads to Cambridge. 
 
90 EXTRACT FROM MARSHALL. LECT. in. 
 
 The extract from Marshall's 4 Elementary^ind Prac- 
 tical Treatise on Landed Property ' (LonJRi, 1804) 
 which I am about to read to you, is in s&me ways 
 very remarkable. Mr. William Marshall was a writer 
 on agriculture who published largely between 1770 
 and 1820, and he has left an account of the state of 
 cultivation in almost every English county. He had 
 been engaged for many years in 4 studying the im- 
 provement and directing the management of several 
 large estates in England, Wales and Scotland,' and he 
 had taken a keen interest in what he terms 4 provin- 
 cial practices.' The picture of the ancient state of 
 England which follows, was formed in his mind from 
 simple observation of the phenomena of custom, 
 tillage, and territorial arrangement which he saw 
 before his eyes. You will perceive that he had not 
 the true key in his possession, and that he figured to 
 himself the collective form of property as a sort of 
 common farm, cultivated by the tenantry of a single 
 landlord. 
 
 4 In this place it is sufficient to premise that a very 
 few centuries ago, nearly the whole of the lands of 
 England lay in an open, and more or less in a com- 
 monable state, Each parish or township (at least 
 in the more central and northern districts), comprised 
 different descriptions of lands ; having been sub- 
 jected, during successive ages, to specified modes of 
 occupancy, under ancient and strict regulations, 
 
J,ECT. in. EXTRACT FROM MARSHALL. 91 
 
 which timfc had converted to law. These parochial 
 arrangements, however, varied somewhat in different 
 districts : Tout in the more central and greater part 
 of the kingdom, not widely; and the following state- 
 ment may serve to convey a general idea of the whole 
 of what may be termed Common-field Townships, 
 throughout England. 
 
 4 Under this ingenious mode of organisation, each 
 parish or township was considered as one common 
 farm ; though the tenantry were numerous. 
 
 4 Round the village, in which the tenants resided, 
 lay a few small inclosures, or grass yards ; for rear- 
 ing calves, and as baiting and nursery grounds for 
 other farm stock. This was the common farmstead, 
 or homestall, which was generally placed as near the 
 centre of the more culturable lands of the parish or 
 township as water and shelter would permit. 
 
 4 Round the homestall, lay a suit of arable fields ; 
 including the deepest and soundest of the lower 
 grounds, situated out of water's way ; for raising 
 corn and pulse ; as well as to produce fodder and 
 litter for cattle and horses in the winter season. 
 
 'And, in the lowest situation, as in the water- 
 formed base of a rivered valley, or in swampy dips, 
 shooting up among the arable lands, lay an extent of 
 meadow grounds, or " ings " ; to afford a supply of 
 hay, for cows and working stock, in the winter and 
 spring months. 
 
92 EXTRACT FROM MARSHALL. LECT. in. 
 
 4 On the outskirts of the arable lands, where the 
 soil is adapted to the pasturage of cattle, or on the 
 springy slope of hills, less adapted to cultivation, or 
 in the fenny bases of valleys, which were too wet, or 
 gravelly water formed lands which were too dry, to 
 produce an annual supply of hay with sufficient cer- 
 tainty, one or more stinted pastures, or hams, were 
 laid out for milking cows, working cattle, or other 
 stock which required superior pasturage in summer. ' 
 
 ' While the bleakest, worst-soiled, and most distant 
 lands of the township, were left in their native mid 
 state ; for timber and fuel ; and for a common pasture, 
 or suit of pastures, for the more ordinary stock of 
 the township ; whether horses, rearing cattle, sheep, 
 or swine ; without any other stint, or restriction, than 
 what the arable and meadow lands indirectly gave ; 
 every joint-tenant, or occupier of the township, 
 having the nominal privilege of keeping as much 
 live-stock on these common pastures, in summer, as 
 the appropriated lands he occupied would maintain, 
 in winter. 
 
 ' The appropriated lands of each township were laid 
 out with equal good sense and propriety. That each 
 occupier might have his proportionate share of lands 
 of different qualities, and lying in different situations, 
 the arable lands, more particularly, were divided into 
 numerous parcels, of sizes, doubtless, according to the 
 size of the given township, and the number and rank 
 of the occupiers. 
 
LECT. in. EXTRACT FROM MARSHALL. 93 
 
 i And, that the whole might be subjected to the same 
 plan of management, and be conducted as one common 
 farm, the arable lands were moreover divided into 
 compartments, or " fields," of nearly equal size, and 
 generally three in number, to receive, in constant 
 rotation, the triennial succession of fallow, wheat (or 
 rye) and spring crops (as barley, oats, beans, and 
 peas) : thus adopting and promoting a system of hus- 
 bandry, which, howsoever improper it is become, in 
 these more enlightened days, was well adapted to the 
 state of ignorance, and vassalage, of feudal times ; 
 when each parish or township had its sole proprietor ; 
 the occupiers being at once his tenants and his 
 soldiers, or meaner vassals. The lands were in course 
 liable to be more or less deserted by their occupiers, 
 and left to the feebleness of the young, the aged, and 
 the weaker sex. But the whole township being, in 
 this manner, thrown into one system, the care and 
 management of the live-stock, at least, would be easier 
 and better than they would have been, under any 
 other arrangement. And, at all times, the manager 
 of the estate was better enabled to detect bad hus- 
 bandry, and enforce that which was more profitable 
 to the tenants and the estate, by having the whole 
 spread under the eye, at once, than he would have 
 been, had the lands been distributed in detached 
 inclosed farmlets ; besides avoiding the expense of 
 inclosure. And another advantage arose from this 
 
94 SCOTT ON UDAL TENURES. LECT, in. 
 
 more social arrangement, in barbarous times : the 
 tenants, by being concentrated in villages, were not 
 only best situated to defend each other from predatory 
 attacks ; but were called out, by their lord, with 
 greater readiness, in cases of emergency.' (Marshall, 
 pp. 111-113.) 
 
 The readers of the 4 Pirate ' are, I dare say, aware 
 that Sir Walter Scott had his attention strongly 
 attracted to the so-called UdaLtenurea-flf Orkney and 
 Shetland. The fact has more juridical interest than 
 it once had, now that recent writers have succeeded 
 in completely identifying the ancient Scandinavian 
 and ancient German proprietary usages. In the 
 diary which he wrote of his voyage with the Com- 
 missioners of Lighthouses round the coasts of Scot- 
 land, Scott observes : 4 1 cannot get a distinct account 
 of the nature of the land-rights. The Udal pro- 
 prietors have ceased to exist, yet proper feudal 
 tenures seem ill understood. Districts of ground are 
 in many instances understood to belong to townships 
 or communities, possessing what may be arable by 
 patches and what is moor as a commonty pro indi- 
 viso. But then individuals of such a township often 
 take it upon them to grant feus of particular parts of 
 ' the property thus possessed pro indiviso. The town 
 of Lerwick is built upon a part of the commonty of 
 Sound ; the proprietors of the houses having feu-rights 
 from different heritors of that township, but why 
 
J.ECT. in. COMMONTY OF LAUDEE. 95 
 
 from one ratlier than other .... seems altogether 
 uncertain' (Lockhart's 'Life of Scott/ iii. p, v 3r45). 
 That these tenures survived till lately in the northern 
 islands has been long known, but there has been a 
 general impression that the strict and consistent 
 feudalism of Scotland had effaced the traces of older 
 Teutonic usage in the Lowlands. Yet a Eeturn 
 recently presented to Parliament suggests that a re- 
 examination of Scottish agricultural customs might 
 be usefully undertaken. ' There are/ it is stated, 
 4 within the bounds of the royalty of the burgh of 
 Lauder 105 separate portions of land called Bur- 
 gess Acres. These vary in extent from one and a 
 half acre to three and a half acres. To each such 
 acre there is a separate progress of writs, and these 
 " Acres " are the private and absolute property of 
 individuals. ... No one has hitherto been admitted a 
 burgess of the burgh who has not been an owner of 
 one of these Burgess Acres. The lands of the burgh 
 consist of .... Lauder Common, extending to about 
 1,700 acres, which has, from all time of which there is 
 any record, been possessed thus. A portion of it has 
 been set off periodically, say once in five or seven 
 years, to be broken up and ploughed during that time, 
 and at the end of that time fixed has been laid down 
 in grass, and grazed along with the other lands : 
 when another portion of the common was, in the same 
 way, broken up and ploughed, and again laid down in 
 
96 COMMONTY OF LAUDER. LECT. in. 
 
 grass. The portion of the common so broken up and 
 ploughed at a time has, of recent years, been about 
 130 acres in extent. An allotment of this portion of 
 the common has been given to the owner of each of 
 the 105 burgess acres, whether he happened to be a 
 burgess or not, one allotment for each acre. The 
 portion laid off for cultivation is, in the first place, 
 cut into the number of allotments required, and the 
 share of each person is decided by lot. The condi- 
 tions attached to the taking of hill parts have been, 
 compliance with a system of cultivation prescribed by 
 the town council, and payment of a small assessment, 
 generally just sufficient to reimburse the burgh for 
 expenses laid out in making roads, drains, &c., to 
 enhance the value of the land for cultivation. These 
 allotments have been called " Hill parts," and the 
 average worth of each is 11. per annum. The whole 
 of the remainder of the common has been used for 
 grazing purposes, and has been occupied as follows : 
 Each burgess resident within the bounds of the burgh 
 has grazed on the common two cows, or an equivalent, 
 and a certain number of sheep at present, and for 
 some years, fifteen ; and each widow of a burgess, 
 resident in the burgh, has grazed on the common one 
 cow, or an equivalent, and a certain number of sheep 
 at present, and for many years, twelve' (' Return 
 of Boroughs or Cities in the United Kingdom, pos- 
 sessing Common Land,' Appendix I., House of 
 Commons, August 10, 1870). 
 
LECT. in. PECULIARITIES OF SCOTTISH EXAMPLE. 97 
 
 It may be doubted whether a more perfect example 
 of the primitive cultivating community is extant in 
 England or Germany. As compared with the English 
 instances, its form is extremely archaic. The arable 
 mark, cultivated under rules prescribed by the town 
 council, shifts periodically from one part of the domain 
 to another, and the assignment of parcels within the 
 cultivated area is by lot. It is interesting too to 
 observe that the right to land for purposes of tillage 
 is inseparably connected with the ownership of certain 
 plots of land within the township. A similar con- 
 nection between the shares in the common field and 
 certain ancient tenements in a village is sometimes 
 found in England and has been formally established 
 at law. (See the bitter complaints of Marshall, 
 4 Rural Economy of Yorkshire/ i. 55.) On the other 
 hand, a group of persons more loosely defined has the 
 right to pasture on the part of the common in grass, 
 and this peculiarity occurs also in England. I am 
 informed that most of the Scottish burghs have 
 recently sold their c commonties ; ? but it is to be 
 hoped that all traces of the ancient customs of en- 
 joyment have not been quite obliterated. 
 
 Upon the evidence collected by Nasse, supplied 
 by the works of Marshall, and furnished by the wit- 
 nesses examined before the Select Committee of 1844, 
 and upon such as I have myself been able to gather, 
 the vestiges of the Teutonic village community which 
 
 H 
 
98 VESTIGES OF THE MARK. LECT. HI. 
 
 ., remained before the inclosures of the last century 
 
 / / / and the present may be thus compendiously described : 
 
 The arable part of the domain was indicated (1) by 
 
 simple intermixed fields, i.e. fields of nearly equal size 
 
 mingled together and belonging .to an extraordinary 
 
 number of owners, so that, according to Mr. Blamire's 
 
 statement, in one parish containing 2,831 acres there 
 
 were (in 1844) 2,315 pieces of open land which 
 
 included 2,327 acres, giving an average size of one 
 
 acre (Evidence, Select Committee, p. 17, q. 185) ; 
 
 (2) by fields of nearly equal size arranged in three 
 
 long strips and subject to various customs of tillage, 
 
 the most universal being the fallow observed by 
 
 each of the strips in successive years ; (3) by 
 
 * shifting severalties * of arable land, which were 
 
 not, however, of frequent occurrence ; (4) by the 
 
 existence of certain rights of pasture over the green 
 
 baulks which prevented their removal. 
 
 The portion of the domain kept in grass was 
 represented: (1) by 'shifting severalties' of mea- 
 dow land, which were very frequent, the modes of 
 successive allotment being also very various ; (2) by 
 the removal of inclosures after hay-harvest ; (3) by 
 the exercise, on the part of a community generally 
 larger than the number of persons entitled to enclose, 
 of a right to pasture sheep and cattle on the meadow- 
 land during the period when the hay was not matur- 
 ing for harvest. 
 
LBCT. in. VESTIGES OF THE MARK. 99 
 
 The rights known to exist over Commons constitute 
 much too large a subject to be treated of here. But 
 two relics of the ancient collective cultivation may be 
 specially mentioned. The supervision of the commu- 
 nal officer who watched over the equitable enjoyment 
 of the pastures has become the custom of ' stint of 
 common,' by which the number of the beasts which 
 the commoner might turn out on the waste is limited 
 and regulated. There is also a good deal of evidence 
 that some commons, now entirely waste, bear the 
 traces of ancient tillage. The most probable explana- 
 tion is that in these cases the whole of the arable 
 mark had been removed from one part of the domain 
 to another, and that the traces of cultivation show the 
 place of common fields anciently deserted. 
 
 
 H 2 
 

 LECTURE IV. 
 
 THE EASTERN VILLAGE COMMUNITY. 
 
CONTENTS. 
 
 \ 
 
 The Indian Village Community Mahometan Theory of Ownership 
 Land Settlement of Bengal The Indian Proprietary Unit The 
 Indian Village The Cultivated Land The Growth of Custom- 
 Water Rules The Sources of Primitive Law Customs of Re- 
 partition The Village Secrecy of Family Life Dislike of English 
 Criminal Law Fictions Attending Legislation Village 'Rules 
 Origin of Indian Towns Indian Capitals The Village Waste 
 The Indian Wastes The Government and the Wastes The Village 
 Council Peaceful Character of Population Hereditary Trades 
 Remuneration of Village Traders The Outsiders Absorption ol 
 Strangers by Community. 
 
LECT. iv. THE INDIAN VILLAGE COMMUNITY. JOS 
 
 LECTURE IV. 
 
 THE EASTERN VILLAGE COMMUNITY. 
 
 I PROPOSE in this Lecture to describe summarily 
 and remark upon the Indian forms of property and 
 tenure corresponding to the ancient modes of holding , 
 and cultivating land in Europe which I discussed at | 
 some length last week. It does not appear to me a 
 hazardous proposition that the Indian and the ancient 
 European systems of enjoyment and tillage by men 
 grouped in village communities are in all essential 1 
 particulars identical. There are differences of detail 
 between them, and I think you will find the discus- 
 sion of these differences and of their apparent causes 
 not uninteresting nor barren of instruction to the 
 student of jurisprudence. 
 
 No Indian phenomenon has been more carefully 
 examined, and by men more thoroughly in earnest, 
 than the Village Community. For many years past 
 the discovery and recognition of its existence have 
 ranked among the greatest achievements of Anglo- 
 Indian administration. But the Village Community 
 did not emerge into clear light very early in the 
 
104 MAHOMETAN THEORY OF OWNERSHIP. LECT. iv, 
 
 history of our conquest and government. Although 
 this peculiar group is referred to in Manu, the English 
 found little to guide them to its great importance in 
 the Brahminical codified law of the Hindoos which 
 they first examined. Perhaps in the large space 
 assigned in that law to joint -property and partitions 
 they might have found a hint of the truth, if the 
 great province in which they were first called upon 
 to practise administration on a large scale, Lower 
 Bengal or Bengal Proper, had not happened to be the 
 exact part of India in which, from causes not yet 
 fully determined, the village system had fallen into 
 great decay. The assumption which the English 
 first made was one which they inherited from their 
 Mahometan predecessors. It was, that all the soil 
 belonged in absolute property to the sovereign, and 
 that all private property in land existed by his 
 Sufferance. The Mahometan theory and the corre- 
 sponding Mahometan practice had put out of sight the 
 ancient view of the sovereign's rights, which, though 
 it assigned to him a far larger share of the produce of 
 the land than any western ruler has ever claimed, yet 
 in nowise denied the existence of private property in 
 land. The English began to act in perfect good faith 
 on the ideas which they found universally prevailing 
 among the functionaries whom they had taken over 
 from the Mahometan semi-independent viceroys de- 
 throned by their arms. Their earliest experiments, 
 
LECT. TV. LAND SETTLEMENT OF BENGAL. 105 
 
 tried in the belief that the soil was theirs and that 
 any land-law wonld be of their exclusive creation, have 
 now passed into proverbs of maladroit management. 
 The most famous of them was the settlement of 
 Lower Bengal by Lord Cornwallis. It was an at- 
 tempt to create a landed-proprietary like that of this^ 
 country. The policy of conferring estates in fee 
 simple on the natural aristocracy of certain parts of fc 
 India (and I mean by a c natural aristocracy ' an 
 aristocracy formed under purely native conditions of 
 society by what amounts to the sternest process of 
 natural selection) has had many fervent advocates 
 among Indian functionaries, and has very lately been 
 carried out on a considerable scale in the newly- 
 conquered province of Oudh. But the great pro- 
 prietors established by Lord Cornwallis were un-| 
 doubtedly, with few exceptions, the tax -gather ersjof 
 the former Mahometan viceroy. The recoil from what 
 was soon recognised as a mistake, brought a system 
 into fashion which had been tried on a small scale 
 at an earlier date, and which was in fact the reverse 
 of Lord Cornwallis's experiment. In the southern 
 provinces of the peninsula, the English Government 
 began to recognise nothing between itself and the 
 immediate cultivators of the soil; and from them it 
 took directly its share of the produce. The effect 
 was to create a peasant-proprietary. This system, of 
 which the chief seat was the province of Madras, has, in i 
 
10G THE INDIAN PROPRIETARY UNIT. LECT. iv. 
 
 my opinion, been somewhat unjustly decried. Now that 
 it has been modified in some details, and that some 
 mistakes first committed have been corrected, there 
 is no more prosperous population in India than that 
 which has been placed under it; but undoubtedly it 
 is not the ancient system of the country. It was not 
 till English conquest was extending far to the north- 
 west, and till warlike populations were subjugated 
 whose tastes and peculiarities it was urgently neces- 
 sary to study, that the true proprietary unit of India 
 was discovered. It has ever since been most carefully 
 and continuously observed. There have been many 
 vehement and even violent disputes about some of 
 its characteristics; but these disputes will always, I 
 think, be found to arise, or at least to derive their 
 point, from an attempt to make it fit in with some 
 theory of English origin. There is no substantial 
 difference of opinion about its great features. I 
 regret exceedingly that I cannot refer you to any 
 book in which there is a clear or compendious account 
 of it. Perhaps the best and most intelligible is that 
 given by a distinguished Indian functionary, Mr. 
 George Campbell, in that same volume on c Systems of 
 Land Tenure' to which I referred you for Mr. Morier's 
 summary of Yon Maurer's conclusions. But the de- 
 scription is necessarily much too brief for a subject of 
 such extent, and full information must be obtained from 
 the extensive literature of Revenue and Settlement 
 
LECT. iv. THE INDIAN VILLAGE. (^107 
 
 which I spoke of some time since as having had its 
 materials collected by quasi-judicial agencies. But 
 the student who attempts to consult it should be 
 warned that much of the elementary knowledge 
 which has to be acquired before its value and interest 
 can be completely understood is only at present to be 
 gathered from the oral statements of experienced 
 Indian functionaries. In the account of the Indian 
 cultivating group which follows you will understand 
 that I confine myself to fundamental points, and 
 further that I am attempting to describe a typical form 
 to which the village communities appear to me upon 
 the evidence I have seen to approximate, rather than 
 a model to which all existing groups called by the 
 name can be exactly fitted. 
 
 If very general language were employed, the 
 description of the Teutonic or Scandinavian village 
 communities might actually serve as a description of 
 the same institution in India. There is the arable? 
 mark, divided into separate lots but cultivated A 
 according to minute customary rules binding on allj 
 Wherever the climate admits of the finer grass crops, 
 there are the reserved meadows, lying generally on 
 the verge of the arable mark. There is the waste or 
 common land, out of which the arable mark has been 
 cut, enjoyed as pasture by all the community pro 
 indiviso. There is the village, consisting of habita- 
 tions each ruled by a despotic pater-familias. And 
 
108 THE CULTIVATED LAND. LECT. iv. 
 
 there is constantly a council of government to deter- 
 mine disputes as to custom. But there are some 
 characteristics of the institution of which no traces, 
 or very faint traces, remain in Europe, though they 
 probably once existed, and there _are some differences 
 between the European and Indian examples. Iden- 
 tity in the main being assumed, a good deal of 
 instruction may be obtained from these distinctions 
 of detail. 
 
 First as to the arable mark, or cultivated portion of 
 
 1 the village domain. Here you will naturally expect 
 the resemblances to be general rather than specific. 
 The official publications on Indian Settlement law 
 contain evidence that in some parts of the country 
 the division into three common fields is to be found; 
 but I do not attach any importance to the fact, which 
 is probably quite accidental. The conditions of 
 agriculture in a tropical country are so widely 
 different from those which can at any period be 
 supposed to have determined cultivation in Northern 
 and Central Europe as to forbid us to look for any 
 resemblances in India, at once widely extended and 
 exact, to the Teutonic three-field system. Indeed, 
 as the great agent of production in a tropical country 
 
 \is water, very great dissimilarities in modes of 
 
 1 cultivation are produced within India itself by 
 
 relative proximity to running streams and relative 
 
 exposure to the periodical rain -fall. The true 
 
iv. GROWTH OF CUSTOM. 109 
 
 analogy between the existing Indian and the ancient 
 European systems of tillage must be sought in the 
 minute but multifarious rules governing the pro- 
 ceedings of the cultivators ; rules which in both 
 cases have the same object to reconcile a common 
 plan and order of cultivation on the part of the 
 whole brotherhood with the holding of distinct lots < 
 in the arable land by separate families. The 
 common life of the group or community has been so 
 far broken up as to admit of private property 
 in cultivated land, but not so far as to allow 
 departure from a joint system of cultivating that 
 land. There have been functionaries serving the 
 British Government of India who have had the 
 opportunity of actually observing the mode in which 
 rules of this kind grow up. Wherever the great 
 canals of irrigation which it has constructed pass 
 through provinces in which the system of village 
 communities survives in any completeness, the 
 Government does not undertake or perhaps I should 
 rather say it has not hitherto undertaken the 
 detailed distribution of water to the peasants inha- 
 biting the village. It bargains with them to take a 
 certain quantity of water in return for a certain 
 addition to the revenue assessed upon them, and) 
 leaves them, when the water has once been conducted 
 to the arable mark, to divide it between themselves 
 as they please. A number of minute rules for regu- 
 
110 WATER RULES. LECT. iv. 
 
 lating each man's share of the water and mode of 
 using it are then imposed on the village, by the 
 council of elders, by the elective or hereditary func- 
 tionary who sometimes takes its place, or by the 
 person who represents the community in its con- 
 tracts with Government for payment of land-rent. 
 I have been told, however, by some of those who 
 have observed the formation of these rules, that 
 they do not purport to emanate from the personal 
 authority of their author or authors ; nor do they 
 assume to be dictated by a sense of equity ; there is 
 always, I am assured, a sort of fiction, under which 
 some customs as to the distribution of water are 
 supposed to have existed from all antiquity, although 
 in fact no artificial supply had been even so much as 
 thought of. It is further stated that, though it is 
 extremely common among English functionaries to 
 speak of the distribution of water as regulated by the 
 agreement of the villagers, yet no such idea really 
 enters the mind of the community or of its represen- 
 tatives as that there can be or ought to be an express 
 or implied contract among the cultivators respecting 
 their several shares. And it is added that, rather 
 than have a contract or agreement, it would appear 
 to them a much more natural and reasonable arrange- 
 ment that the distribution should be determined by 
 casting lots. Authority, Custom, or Chance are in 
 fact the great sources of law in primitive communi- 
 
LECT. iv. THE SOURCES OF PRIMITIVE LAW. Ill 
 
 ties as we know them, not Contract. Not that in the \ t 
 minds of men who^ are at this stage of thought the 
 acknowledged sources of law are clearly discrimi- 
 nated. There are many customary duties of which 
 the most plausible account that can be given is that 
 they were at the outset obligations of kinship, 
 sanctioned by patriarchal authority ; yet childish 
 stories attributing their origin to mere accident are 
 often current among the Indian villagers, or they are 
 said to be observed in obedience to the order of some 
 comparatively modern king. I have already said 
 that the power of the sovereign to create custom is] 
 very generally recognised in India ; and it might 
 even be said that such ideas of the obligatory force 
 of agreement as exist are nowadays greatly mixed 
 up with the notion of obedience to government. It 
 is often stated that an agreement written on the 
 stamped paper of the State acquires in the native 
 view a quality which is quite independent of the 
 legal operation of the stamp ; and there is reason to 
 believe that the practice, which prevails through 
 whole provinces, of never performing an agreement 
 till performance has been decreed by a Court, is to a ? 
 very great extent accounted for by an impression 
 that contracts are not completely binding till the 
 State has directed them to be executed. 
 
 Among the non-Aryan peasantry who form a con- 
 siderable proportion of the population in the still 
 

 112 CUSTOMS OF RE-PARTITION. LECT. iv. 
 
 thinly peopled territory called the Central Provinces, 
 the former highroad of Mahratta brigandage, there 
 are examples of the occasional removal of the entire 
 arable mark from one part of the village domain to 
 another, and of the periodical redistribution of lots 
 within the cultivated area. But I have not obtained 
 information of any systematic removal, and still less 
 of any periodical re -partition of the cultivated lands, 
 when the cultivators are of Aryan origin. But ex- 
 perienced Indian officials have told me that though 
 the practice of redistribution may be extinct, the 
 tradition of such a practice often remains, and the 
 disuse of it is sometimes complained of as a grievance. 
 If English influence has had anything to do with 
 arresting customs of re-partition, which are, no doubt, 
 quite alien to English administrative ideas, it is a 
 fresh example of destructive influence, unwillingly 
 and unconsciously exercised. For the separate, un- 
 changeable, and irremovable family lot in the culti- 
 vated area, if it be a step forwards in the history of 
 property, is also the point at which the IndianTviIIage 
 community is breaking to pieces. The probability, 
 however, is that the causes have had their operation 
 much hastened by the English, but have not been 
 created by them. The sense of personal right grow- 
 "mg-everywhere into greater strength, and the ambi- 
 tion which points to wider spheres of action than can 
 be found within the Community, are both destructive 
 
LECT. iv. THE VILLAGE. 113 
 
 of the authority of its internal rules. Even more 
 fatal is the increasing feeling of the sacredness of 
 personal obligation arising out of contract. The par- 
 tition of inheritances and execution for debt levied 
 on land are destroying the communities this is the 
 formula heard nowadays everywhere in India. The 
 brotherhood of the larger group may still cohere, but 
 the brethren of some one family are always wishing 
 to have their shares separately; and creditors who 
 would have feared to intrude on the village domain 
 now break the net of custom by stepping without 
 ceremony into the lot of a defaulting debtor. 
 
 I now pass to the village itself, the cluster of home- 
 steads inhabited by the members of the community. 
 The description given by Maurer of the Teutonic Mark, 
 of the Township, as his researches have shown it to 
 him, might here again pass for an account, so far as 
 it goes, of an Indian village. The separate households, 
 each despotically governed by its family chief, and 
 never trespassed upon by the footstep of any person 
 of different blood, are all to be found there in practice ; 
 although the theory of the absolute rights of heads of 
 families has never, from the nature of the case, been 
 acknowledged by the British Government. But the 
 Indian villages have one characteristic which could 
 only have been gathered from observation of a living 
 society. The German writers have been struck with 
 that complete immunity of the Teutonic homestead 
 
 I 
 
114 SECRECY OF FAMILY LIFE. LECT. iv. 
 
 from all external interference, which in this country 
 found a later expression in the long-descended 
 common -place that an Englishman's house is his 
 castle. But a characteristic which in India~ goes 
 along with this immunity, and to a great extent 
 explains it, is the extraordinary secrecy of family 
 life; a secrecy maintained, I am told, in very humble 
 households and under difficulties which at first sight 
 would seem insurmountable. There can be no ques- 
 tion that, if the isolation of households in ancient 
 societies was always accompanied by this secrecy of 
 * their interior life, much which is not quite intelli- 
 gible in early legal history would be explained. It 
 is not, for example, easy to understand the tardiness 
 with which, in Eoman society, the relations of Pater- 
 familias and Filius-familias became the subject of 
 moral judgment, determining the interference of the 
 Praetor ; or, again, taking the form of public opinion, 
 and so ultimately issuing in legislation. But this 
 would be much more comprehensible if the secrets 
 of family life were nearly as carefully guarded as 
 they are at this moment, even in those parts of 
 India where the peculiar Mahometan jealousy, which 
 has sometimes been erroneously thought a uni- 
 versal Eastern feeling, has never yet penetrated. 
 So, again, it is only a conjectural explanation of the 
 scantiness of ancient systems of law as they appear 
 in the monuments in which an attempt was made 
 to set them formally forth, that the lawgiver 
 
LECT. iv. DISLIKE OF ENGLISH CRIMINAL LAW. 115 
 
 merely attempted to fill, so to speak, the inter- 
 stices between the families, of which the aggrega- 
 tion formed the society. To the extent to which 
 existing Indian society is a type of a primitive society, 
 there is no doubt that any attempt of the public law- 
 giver to intrude on the domain reserved to the legis- 
 lative and judicial power of the pater-familias causes, 
 the extremest scandal and disgust. Of all branches of 
 law, criminal law is that which one would suppose to 
 excite least resentment by trespassing on the for- 
 bidden limits. Yet, while many ignorant statements 
 are constantly made about the rash disturbance of 
 native Indian ideas by British law and administration, 
 there is really reason to believe that a grievance most 
 genuinely felt is the impartiality of that admirable 
 Penal Code which was not the least achievement of 
 Lord Macaulay's genius, and which is undoubtedly 
 destined to serve some day as a model for the crimi- 
 nal law of England. I have had described to me a 
 collection of street-songs, sung in the streets of the 
 city which is commonly supposed to be most impa- 
 tient of British rule by persons who never so much as 
 dreamed of having their words repeated to an English- 
 man. They were not altogether friendly to the 
 foreign rulers of the country, but it may be broadly 
 laid down that they complained of nothing which 
 might naturally have been expected to be the theme 
 of complaint. And, without exception, they declared 
 
 i 2 
 
116 FICTIONS ATTENDING LEGISLATURE. LECT. iv. 
 
 that life in India had become intolerable since the 
 English criminal laws had begun to treat women 
 and children as if they were men. 
 
 I read to you from Mr. Morier's compendium of 
 Yon Maurer's results, a passage pointedly con- 
 trasting the independence of the Teutonic freeman in 
 his homestead and its appurtenances with his com- 
 plete subjection to customary rule when he cultivated 
 the arable mark, or pastured his sheep and cattle in 
 the common mark. I trust there is no presumption 
 in my saying that in some of the most learned writers 
 on the Mark, there seems to me too great a tendency 
 to speak of the relations of the free chiefs of Teutonic 
 households to one another as determined by what, for 
 want of a more appropriate term, must be called spon- 
 taneous legislation. It is no doubt very difficult, in 
 observing an Indian village community, to get rid of 
 the impression that the council of elders, which is the 
 only Indian counterpart of the collective assembly of 
 Teutonic villagers, occasionally legislates; and, if very 
 strict language be employed, legislation is the only 
 term properly expressing the invention of customary 
 rules to meet cases which are really new. Yet, if I 
 may trust the statements of several eminent Indian 
 authorities, it is always the fact or the fiction that 
 / this council merely declares customary law. And 
 indeed, while it is quite true of India that the head 
 of the family is supposed to be chief of the household, 
 
LECT. iv. VILLAGE RULES. 117 
 
 the families within the village or township would 
 seem to be bound together through their representa- 
 tive heads by just as intricate a body of customary 
 rules as they are in respect of those parts of the 
 village domain which answer to the Teutonic common 
 mark and arable mark. The truth is, that nothing 
 can be more complex than the customs of an Indian 
 
 -i- T~ J 
 
 village, though in a sense they are only binding on * 
 chiefs of families. The examination of these customs, 
 which have for their object to secure a self-acting or- 
 ganisation not only for the community as a whole, but 
 for the various trades and callings which fractions of 
 it pursue, does not fall within the scope of the present 
 Lectures, but it is a subject full of interest. I ob- 
 serve that recent writers are dissatisfied with the his- 
 torical theory which attributes the municipal institu- 
 tions of mediaeval Europe to an exclusively Roman 
 origin, and that they are seeking to take into account 
 the usages inherited from the conquerors of the 
 Empire. From this point of view, the customary 
 rules securing the interdependence and mutual re- 
 sponsibility of the members of an Indian village 
 community, or of the various subordinate groups 
 which it may be shown to include, and the modes of 
 speech in use among them, which are said to fluctuate 
 between language implying an hereditary_brotherhood 
 and language implying a voluntary association, appear 
 to be worthy of careful examination. There is reason 
 
 
118 ORIGIN OF INDIAN TOWNS. LECT. iv. 
 
 $ 
 
 to believe that some European cities were originally 
 nothing more than the township-mark of a Teu- 
 tonic village community which has subsequently 
 grown to greatness. It is quite certain that this was 
 the origin of the large majority of the towns which 
 you see marked on the map of India. The village, in 
 becoming more populous from some cause or other, 
 has got separated from its cultivated or common do- 
 main ; or the domain has been swallowed up in it ; or a 
 number of different villages have been founded close 
 together on what was perhaps at one time unprofit- 
 able waste land, but which has become exceptionally 
 valuable through advantages of situation. This last 
 was the origin of the great Anglo-Indian city of Cal- 
 cutta, which is really a collection of villages of very 
 modern foundation. Here, however, it may be 
 proper that I should state that the very greatest 
 Indian cities had a beginning of another kind. 
 Doubtless most of the Indian towns grew out of vil- 
 lages, or were originally clusters of villages, but the 
 most famous of all grew out of camps. The Mogul 
 Emperors and the Kings of the more powerful Hindoo 
 dynasties differed from all known sovereigns of the 
 Western world, not only in the singular indefiniteness 
 of the boundaries of their dominions and in the per- 
 petual belligerency which was its consequence, but in 
 the vast onerousness of their claims on the industry 
 of their subjects. From the people of a country of 
 
LECT. iv. INDIAN CAPITALS. 119 
 
 which the wealth was almost exclusively agricultural, 
 they took so large a share of the produce as to leave 
 nothing practically to the cultivating groups except 
 the bare means of tillage and subsistence. Nearly all 
 the movable capital of the empire or kingdom was 
 at once swept away to its temporary centre, which 
 became the exclusive seat of skilled manufacture and 
 decorative art. Every man who claimed to belong to 
 the higher class of artificers took his loom or his 
 tools and followed in the train of the King. This 
 diversion of the forms of industry which depend on 
 movable wealth to the seat of the court had its first > 
 result in the splendour of Oriental capitals. But at 
 the same time it made it easier to change their site, 
 regarded as they continued to be in the light of the 
 encampment of the sovereign for the time being. 
 Great deserted cities, often in close proximity to one 
 another, are among the most striking and at first 
 sight the most inexplicable of Indian spectacles. 
 Indian cities were not, however, always destroyed by 
 the caprice of the monarch who deserted them to 
 found another capital. Some peculiar manufacture 
 had sometimes so firmly established itself as to , 
 survive the desertion, and these manufacturing towns 
 sometimes threw out colonies. Capitals, ex-capitals 
 retaining some special art or manufacture, the 
 colonies of such capitals or ex-capitals, villages grown 
 to exceptional greatness, and a certain number of 
 
120 THE VILLAGE WASTE. LECT. iv. 
 
 towns which have sprung up round the temples built 
 on sites of extraordinary sacredness, would go far to 
 complete the list of Indian cities. 
 
 The Waste or common land of the Village Com- 
 munity has still to be considered. One point of 
 difference between the view taken of it in the East 
 and that which seems at all times to have been taken 
 in Europe, deserves to be specially noted. The 
 members of the Teutonic community appear to have 
 valued the village waste chiefly as pasture for their 
 cattle, and possibly may have found it so profitable 
 for this purpose as to have deliberately refrained from 
 increasing that cultivated portion of it which had been 
 turned into the arable mark. These rights of pasture 
 vested in the commoners are those, I need scarcely 
 tell you, which have descended but little modified to 
 our own day in our own country; and it is only the 
 modern improvements in the methods of agriculture 
 which have disturbed the balance between pasture 
 f and tillage, and have thus tended to multiply Inclosure 
 1 Acts. But the vast bulk of the natives of India are 
 a grain and not a flesh-eating people. Cattle are 
 mostly regarded by them as auxiliary to tillage. The 
 view therefore generally taken (as I am told) of the 
 common -land by the community is that it is that part 
 of the village -domain which is temporarily unculti- 
 vated, but which will some time or other be cultivated 
 and merge in the arable mark. Doubtless it is valued 
 
LECT. iv. THE INDIAN WASTES. 121 
 
 for pasture, but it is more especially valued as po- 
 tentially capable of tillage. The effect is to produce 
 in the community a much stronger- sense of property 
 in common-land than at all reflects the vaguer feeling 
 of right which, in England at all events, characterises 
 the commoners. In the later days of the East India 
 Company, when all its acts and omissions were very 
 bitterly criticised, and amid the general re -opening of 
 Indian questions after the military insurrection of 
 1857, much stress was laid on the great amount of 
 waste land which official returns showed to exist in 
 India, and it was more than hinted that better 
 government would bring these wastes under cultivation, 
 possibly under cotton cultivation, and even plant them 
 with English colonists. The answer of experienced 
 Indian functionaries was that there was no waste land 
 at all in India. If you except certain territories 
 which stand to India Proper much as the tracts of 
 land at the base of the Rocky Mountains stand to the 
 United States as, for example, the Indo-Chinese 
 province of Assam the reply is substantially correct. 
 The so-called waste lands are part of the domain of 
 the various communities which the villagers, theoreti- 
 cally, are only wanting opportunity to bring under 
 cultivation. Yet this controversy elicited an admis- 
 sion which is of some historical interest. It did appear 
 that, though the native Indian Government had foil 
 the most part left the village communities entirely id 
 
\ 
 
 122 THE GOVERNMENT AND THE WASTES. LECT. iv. 
 
 themselves on condition of their paying the revenue as- 
 sessed upon them, they nevertheless sometimes claimed 
 (though in a vague and occasional way) some ex- 
 ceptional authority over the wastes ; and, acting on 
 this precedent, the British Government, at the various 
 settlements of Land Revenue, has not seldom inter- 
 fered to reduce excessive wastes and to re -apportion 
 uncultivated land among the various communities of 
 a district. In connection with this claim and exercise 
 of right you will call to mind the power vested in the 
 early English Kings to make grants of waste to in- 
 dividuals in severalty, first with and afterwards without 
 the consent of the Witan ; and we shall see that the 
 much more extensive rights acquired by the lord over 
 the waste than over any other portion of the village - 
 domain, constitute a point of capital importance in the 
 process known as the feudalisation of Europe. 
 
 India has nothing answering to the assembly of 
 adult males which is so remarkable a feature of the 
 ancient Teutonic groups, except the Council of Village 
 Elders. It is not universally found. Villages fre- 
 quently occur in which the affairs of the community 
 are managed, its customs interpreted, and the disputes 
 of its members decided by a single Headman, whose 
 oince is sometimes admittedly hereditary but is some- 
 times described as elective ; the choice being generally, 
 however, in the last case confined in practice to the 
 members of one particular family, with a strong pre- 
 
LECT. iv. THE VILLAGE COU 
 
 ference for the eldest male of the kindred, if he be not 
 specially disqualified. But I have good authority for 
 saying that, in those parts of India in which the 
 village community is most perfect and in which 
 there are the clearest signs of an original pro- 
 
 prietary equality between all the families composing the ^ 
 group, the authority exercised elsewhere by the Head^JJ 
 man is lodged with the Village^Council. It is always 
 viewed as a representative body, and not as a body 
 possessing inherent authority, and, whatever be its 
 real number, it always bears a name which recalls its 
 ancient constitution of Five persons. 
 
 I shall have hereafter to explain that, though there 
 are strong general resemblances between the Indian 
 village communities wherever they are found in any- 
 thing like completeness, they prove on close inspection 
 to be not simple but composite bodies, including a 
 number of classes with very various rights and claims. 
 One singular proof of this variety of interests, and at 
 the same time of the essentially representative charac- 
 ter of the village council, is constantly furnished, I am 
 told, by a peculiar difficulty of the Anglo-Indian 
 functionary when engaged in 4 settling ' a province 
 in which the native condition of society has been but 
 little broken up. The village council, if too numerous, 
 is sure to be unmanageable ; but there is great pressure 
 from all sections of the community to be represented 
 in it, and it is practically hard to keep its numbers 
 
124 PEACEFUL CHARACTER OF POPULATION. LECT. iv. 
 
 down. The evidence of the cultivators as to custom 
 does not point, I am told, to any uniform mode of 
 representation ; but there appears to be a general 
 admission that the members of the council should 
 be elderly men. No example of village or of 
 district government recalling the Teutonic assembly 
 of free adult males has been brought to my notice. 
 While I do not affect to give any complete explana- 
 tion of this, it may be proper to remember that, 
 though no country was so perpetually scourged with 
 war as India before the establishment of the Pax 
 Britannica, the people of India were never a military 
 people. Nothing is told of them resembling that 
 '. arming of an entire society which was the earliest, as 
 it is the latest, phase of Teutonic history. No rule 
 can be laid down of so vast a population without ex- 
 ceptions. The Mahratta brigands when they first rose 
 against the Mahometans were a Hindoo Hill-tribe 
 armed to a man ; and before the province of Oudh 
 was annexed, extreme oppression had given an 
 universally military character to a naturally peaceful 
 population. But, for the most part, the Indian village 
 communities have always submitted without resistance 
 i to oppression by monarchs surrounded by mercenary 
 I armies. The causes, therefore, which in primitive 
 societies give importance to young men in the village 
 assembly were wanting. The soldiers of the com- 
 munity had gone abroad for mercenary service, and 
 
LECT. iv. HEREDITARY TRADES. 125 
 
 nothing was required of the council but experience 
 and civil wisdom. 
 
 There is yet another feature of the Indian cultiva- 
 whirrh connects them with primitive 
 
 Western communities of the same kind. I have 
 several times spoken of them as organised and self- 
 acting. They, in fact, include a nearly complete 
 establishment of occupations and trades for enabling 
 them to continue their collective life without assist- 
 ance from any person or body external to them. 
 Besides the Headman or Council exercising quasi- 
 judicial, quasi-legislative, power, they contain a vil- 
 lage police, now recognised and paid in certain 
 provinces by the British Government. They in- 
 clude several families of hereditary traders ; the 
 Blacksmith, the Harness -maker, the Shoemaker. 
 The Brahmin is also found for the performance of 
 ceremonies, and even the Dancing-Girl for attend- 
 ance at festivities. There is invariably a Yillage- 
 Accountant, an important personage among an 
 unlettered population, so important, indeed, and so 
 conspicuous that, according to reports current in 
 India, the earliest English functionaries engaged in 
 settlements of land were occasionally led by their 
 assumption that there must be a single proprietor 
 somewhere, to mistake the Accountant for the owner 
 of the village, and to record him as such in the 
 official register. But the person practising any one 
 
126 REMUNERATION OF VILLAGE TRADERS. LECT. iv. 
 
 of these hereditary employments is really a servant 
 of the community as well as one of its component 
 members. He is sometimes paid by an allowance in 
 grain, more generally by the allotment to his family 
 of a piece of cultivated land in hereditary possession. 
 Whatever else he may demand for the wares he 
 produces, is limited by a customary standard of 
 price, very rarely departed from. It is the assign- 
 ment of a definite lot in the cultivated area to 
 particular trades, which allows us to suspect that the 
 early Teutonic groups were similarly self-sufficing. 
 There are several English parishes in which certain 
 pieces of land in the common field have from time 
 immemorial been known by the name of a particular 
 trade ; and there is often a popular belief that nobody, 
 not following the trade, can legally be owner of the 
 lot associated with it. And it is possible that we 
 here have a key to the plentifulness and persistence 
 of certain names of trades as surnames among us. 
 
 It is a remarkable fact that certain callings, ex- 
 tremely respectable and lucrative, do not appear in 
 India to constitute those who follow them mem- 
 bers of the village community. Eminent officials 
 have assured me that, so far as their experience ex- 
 tends, the Grain-dealer is never a hereditary trader 
 incorporated with the village group, nor is he a 
 member of the municipality in towns which have 
 grown out of one or more villages. The trades thus 
 
LECT. iv. THE OUTSIDERS. 127 
 
 remaining outside the organic group are those which 
 bring their goods from distant markets; and I shall 
 try to show the significance of this fact hereafter. 
 
 There are in Central and Southern India certain 
 villages to which a class of persons is hereditarily at- 
 tached in such a manner as to show most unmistakeably 
 that they form no part of the natural and organic 
 aggregate to which the bulk of the villagers belong. 
 These persons are looked upon as essentially jmpure ; 
 they never enter the village, or only enter reserved 
 portions of it; and their touch is avoided as con- 
 taminating. It is difficult to read or listen to the 
 accounts given of them without having the mind 
 carried to those singular races or classes which, in 
 certain European countries, were supposed almost to 
 our own day to transmit from father to son the taint 
 of a mysterious uncleanness. Yet these Indian 
 4 outsiders,' as they have been called (by Sir H. B. 
 Frere in 4 The Church and the Age,' p. 357), to avoid 
 using the word ' outcast,' which has a different 
 meaning, bear extremely plain marks of their origin. 
 Though they are not included in the village, they 
 are an appendage solidly connected with it ; they 
 have definite village duties, one of which is the 
 settlement of boundaries, on which their authority 
 is allowed to be conclusive. They evidently repre- 
 sent a population of alien blood, whose lands have 
 been occupied by the colonists or invaders forming 
 
128 ABSORPTION OF STRANGERS BY COMMUNITY. LECT. iv. 
 
 the community. Everybody who has used his eyes 
 in India will be on his guard against certain ex- 
 travagances of the modern theory of Race, and will 
 ,f>e slow to believe that identity of language anch 
 'identity of religion necessarily imply identity of etlX 
 nical origin. The wonderful differences of external 
 aspect which are readily perceived between natives 
 of Indian provinces speaking the same language, and 
 the great deviation from what is regarded as the 
 Aryan type of form and feature observable among 
 populations whose speech is a near derivative from 
 Sanscrit, have their most reasonable explanation in 
 the power of absorption which the village group 
 may from many indications be inferred to have 
 possessed in the earlier stages of development. But 
 the faculty of taking in strangers from without is 
 one which it loses in time, and there were always 
 probably some materials too obstinately and obtru- 
 sively foreign to be completely absorbed. Under 
 this last head, the ' outsiders ' of the Southern villages 
 apparently fall. 
 
LECTURE V. 
 
 THE PROCESS OF FEUDALISATION. 
 
CONTENTS. 
 
 Feudalism The Benefices The Manor The Manorial Group New 
 Condition of the Waste Changes in the Grass-lands The Free 
 Tenants Settlements of Villeins The Manorial Courts Encroach- 
 ments of the Lord Roman and Feudal Law Causes of Feudalisation 
 Growth of Suzerainties Leading Families Elements of Feudal 
 System Systematic Feudalism Antiquarianism of Indian Politics 
 Political Results of Settlements Various Forms of Settlement 
 Growth in Power of Official Holder Mahometan Assumptions 
 Indian Schools of Opinion Indian Forms of Property The Headman 
 Property Recognised by the English Absolute Ownership Nature 
 of Rights of Property Development of Absolute Ownership 
 Vested Rights in India The Feudalisation of Europe Cultivation of 
 Waste-land Improvements in Tillage Village Communities and 
 Customs Customary Tillage Servile Dependants of Villagers 
 Villages Cease to Absorb Strangers Nasse's Work The Statute of 
 Devises ^Rules for Construing Wills Restraints on Testamentary 
 Power. 
 
J,ECT. v. FEUDALISM. 131 
 
 LECTURE V. 
 
 THE PROCESS OF FEUDAL IS ATION. 
 
 THE student of legal antiquities who has once con- 
 vinced himself that the soil of the greatest part of 
 Europe was formerly owned and tilled by proprietary 
 groups, of substantially the same character and com- 
 position as those which are still found in the only 
 parts of Asia which are open to sustained and care- 
 ful observation, has his interest immediately drawn 
 to what, in truth, is the great problem of legal history. 
 This is the question of the process by which the pri- 
 mitive mode of enjoyment was converted into the 
 agrarian system, out of which immediately grew the 
 land-law prevailing in all Western Continental Europe 
 before the first French Revolution, and from which 
 is demonstrably descended our own existing real- 
 property law. For this newer system no name has 
 come into general use except Feudalism, a word which 
 has the defect of calling attention to one set only of 
 its characteristic incidents. We cannot reasonably 
 doubt that one partial explanation of its origin is, so 
 far as it goes, correct. It arose from or was greatly 
 
 K 2 
 
132 THE BENEFICES. LECT. v. 
 
 influenced by the Benefices, grants of Roman provin- 
 cial land by the chieftains of the tribes which overran 
 the Roman Empire ; such grants being conferred on 
 their associates upon certain conditions, of which the 
 commonest was military service. There is also toler- 
 ably universal agreement that somewhere in Roman 
 law (though where, all are not agreed) are to be 
 found the rules which determined the nature of these 
 beneficiary holdings. This may be called the theory 
 of the official origin of feudalism, the enjoyment of 
 land being coupled with the discharge of certain de- 
 finite duties; and there are some who complete the 
 theory by asserting that among the Teutonic races, 
 at all events, there was an ineradicable tendency in 
 all offices to become hereditary, and that thus the 
 Benefices, which at first were held for life, became at 
 last descendible from father to son. 
 
 There is no question, as I said, that this account 
 is more than probable, and that the Benefices either 
 began or hastened the changes which led ultimately 
 to feudalism. Yet I think that nobody whose mind 
 has dwelt on the explanation, has brought himself to 
 regard it as complete. It does not tell us how the 
 Benefices came to have so extraordinary a historical 
 fortune. It does not account for the early, if partial, 
 feudalisation of countries like Germany and England, 
 where the cultivated soil was in the hands of free and 
 fully organised communities, and was not, like the 
 
LECT. v. THE MANOR. 133 
 
 land of Italy or Gaul, at the disposal of a conquering 
 king where the royal or national grants which re- 
 sembled the Benefices were probably made out of 
 waste land and where the influence of Roman law 
 was feebly felt or not at all. 
 
 The feudalisation of any one country in Europe 
 must be conceived as a process including a long series 
 of political, administrative, and judicial changes; and 
 there is some difficulty in confining our discussion of 
 it to changes in the condition of property which be- 
 long more properly to this department of study. But 
 I think we may limit our consideration of the subject 
 by looking at it in this way. If we begin with 
 modern English real -property law, and, by the help 
 of its records and of the statutes affecting it, trace its 
 history backwards, we come upon a period at which 
 the soil of England was occupied and tilled by separ- 
 ate proprietary societies. Each of these societies is, 
 or bears the marks of having been, a compact and 
 organically complete assemblage of men, occupying a 
 definite area of land. Thus far it resembles the old 
 cultivating communities, but it differs from them in 
 being held together by a variety of subordinate rela- 
 tions to a feudal chief, single or corporate, the Lord. 
 I will call the new group the Manorial group, and 
 though my words must not be taken as strictly 
 correct, I will say that a group of tenants, autocra- 
 tically organised and governed, has succeeded a 
 
134 THE MANORIAL GROUP. LECT. v. 
 
 group of households of which the organisation and 
 government were democratic. The new group, as 
 known to our law, is often in a state of dissolution, 
 but, where it is perfect, it consists of a number of 
 persons holding land of the Lord by free tenures, 
 and of a number of persons holding land of the Lord 
 by tenures capable of being shown to have been, in 
 their origin, servile the authority of the Lord being 
 exercised over both classes, although in different ways, 
 through the agency of a peculiar tribunal, the Court 
 Baron. The lands held by the first description of 
 tenants are technically known as the Tenemental 
 lands ; those held by the second class constitute the 
 Lord's Domain. Both kinds of land are essential to 
 the completeness of the Manorial group. If there 
 are not Tenemental lands to supply a certain mini- 
 mum number of free tenants to attend the Court 
 Baron, and, according to the legal theory, to sit with 
 the lord as its judges, the Court Baron can no longer 
 in strictness be held ; if it be continued under such 
 circumstances, as it often was in practice, it can only 
 be upheld as a Customary Manorial Court, sitting for 
 the assessment and receipt of customary dues from 
 the tenants of the Domain. On the other hand, if 
 there be no Domain, or if it be parted with, the 
 authority of the Lord over the free tenants is no longer 
 Manorial; it becomes a Seignory in gross, or mere 
 Lordship. 
 
LECT. v. NEW CONDITION OF THE WASTE. 135 
 
 Since much of the public waste land of our country 
 is known to have passed by national or royal grant to 
 individuals or corporations, who, in all probability, 
 brought it extensively under cultivation from the 
 first by servile labour, it cannot be supposed that 
 each of the new Manorial groups takes the place of a 
 Village group which at some time or other consisted 
 of free allodial proprietors. Still, we may accept 
 the belief of the best authorities that over a great 
 part of England there has been a true succession of 
 one group to the other. Comparing, then, the two, 
 let us ask what are the specific changes which have 
 taken place ? The first, and far the most important \ 
 of all, is that, in England as everywhere in Western 
 Europe, the waste or common-land of the community 
 has become the lord's waste. It is still ancillary to 
 the Tenemental lands ; the free tenants of the lord, 
 whom we may provisionally take to represent the 
 freemen of the village community, retain all their 
 ascertained rights of pasture and gathering firewood, 
 and in some cases similar rights have been acquired 
 by other classes; but, subject to all ascertained rights, 
 the waste belongs, actually or potentially, to the lord's 
 domain. The lord's ' right of approvement,' affirmed 
 by the Statute of Merton, and extended and confirmed 
 by subsequent statutes, permits him to enclose and 
 appropriate so much of the waste as is not wanted to 
 satisfy other existing rights ; nor can it be doubted 
 
136 CHANGES IN THE GRASS-LANDS. LECT. v. 
 
 that he largely exercises this right, reclaiming part 
 of the waste for himself by his personal dependants 
 and adding it to whatever share may have belonged 
 to him from the first in the cultivated land of 
 the community, and colonising other portions of it 
 with settlements of his villeins who are on their 
 way to become copyholders. The legal theory has 
 altogether departed from the primitive view ; the waste 
 is now the lord's waste ; the commoners are for the 
 most part assumed to have acquired their rights by 
 sufferance of the lord, and there is a visible tendency 
 in courts and text-writers to speak of the lord's rights, 
 not only as superior to those of the commoners, but 
 as being in fact of greater antiquity. 
 
 When we pass from the waste to the grass lands 
 which were intermediate between the common land 
 and the cultivated area, we find many varieties in 
 the degree of authority acquired by the lord. The 
 customs of manors differ greatly on the point. Some- 
 times, the lord encloses for his own benefit from 
 Candlemas to Midsummer or Lammas, and the 
 common right belongs during the rest of the year to 
 a class of burgesses, or to the householders of a 
 village, or to the persons inhabiting certain ancient 
 tenements. Sometimes, the lord only regulates the 
 inclosure, and determines the time of setting up and 
 removing the fences. Sometimes, other persons en- 
 
LECT. v. THE FREE TENANTS. 137 
 
 close, and the lord has the grass when the several 
 enjoyment comes to an end. Sometimes, his right 
 of pasture extends to the baulks of turf which sepa- 
 rate the common arable fields ; and probably there is 
 no manorial right which in later times has been more 
 bitterly resented than this, since it is practically fatal 
 to the cultivation of green crops in the arable soil. 
 
 Leaving the meadows and turning to the lands 
 under regular tillage, we cannot doubt that the free 
 holders of the Tenemental lands correspond in the 
 main to the free heads of households composing the 
 old village community. The assumption has often 
 been made, and it appears to be borne out by the 
 facts which can be established as to the common 
 fields still open or comparatively lately enclosed. 
 The tenure of a certain number of these fields is free- 
 hold ; they are parcelled out, or may be shown to have 
 been in the last century parcelled out, among many 
 different owners ; they are nearly always distributed 
 into three strips, and some of them are even at this 
 hour cultivated according to methods of tillage which 
 are stamped by their very rudeness as coming down 
 from a remote antiquity. They appear to be the 
 lands of a class which has never ceased to be free, 
 and they are divided and cultivated exactly as the 
 arable mark of a Teutonic township can be inferred, 
 by a large induction, to have been divided and tilled. 
 
138 SETTLEMENTS OF VILLEINS. LECT. v. 
 
 But, on the other hand, many large tracts of inter- 
 mixed land are still, or were till their recent enfran- 
 chisement, copyhold of particular manors, and some 
 of them are held by the intermediate tenure, known 
 as customary freehold, which is confined by the legal 
 theory to lands which once formed part of the King's 
 Domain. I have not been able to ascertain the pro- 
 portion of common lands held by these base tenures 
 to freehold lands of the same kind, but there is no 
 doubt that much commonable or intermixed land is 
 found, which is not freehold. Since the descent of 
 copyhold and customary freehold tenures from the 
 holdings of servile classes appears to be well esta- 
 blished, the frequent occurrence of intermixed lands 
 of this nature seems to bear out the inference sug- 
 gested by Sir H. Ellis's enumeration of the conditions 
 of men referred to in Domesday Book, that, during 
 the long process of feudalisation, some of the free 
 villagers sank to the status, almost certainly not a 
 uniform status, which was implied in villenage. (See 
 also Mr. Freeman's remark, 4 Hist. Norm. Conq.' i. 97.) 
 But evidence, supplied from quarters so wide apart as 
 British India and the English settlements in North 
 America, leads me to think that, at a time when a 
 system of customary tillage widely prevailed, assem- 
 blages of people planted on waste land would be likely 
 to copy the system literally; and I conjecture that 
 parts of the great wastes undoubtedly reclaimed by 
 
. THE MANORIAL COURTS. 139 
 
 the exercise of the right afterwards called the lord's 
 ' right of approvement' were settled by servile colonies 
 modelled on the ancient Teutonic township. 
 
 The bond which kept the Manorial group together 
 was evidently the Manorial Court, presided over by 
 the lord or his representative. Under the name of 
 Manorial Court three courts are usually included, 
 which legal theory keeps apart, the Court Leet, the 
 Court Baron, and the Customary Court of the Manor. 
 I think there cannot be reasonable doubt of the le- 
 gitimate descent of all three from the assembly of the 
 Township. Besides the wide criminal and civil juris- 
 diction which belonged to them, and which, though it 
 has been partly abolished, has chiefly lost its impor- 
 tance through insensible decay, they long continued 
 in the exercise of administrative or regulative powers 
 which are scarcely distinguishable from legislation. 
 Other vestiges of powers exerted by the collective 
 body of free owners at a time when the conceptions of 
 legislative and judicial authority had not yet been 
 separated, remained in the functions of the Leet Jury ; 
 in the right asserted for the free tenants of sitting as 
 Judges in the Court Baron ; and in the election of 
 various petty officers. It is true that, as regards one 
 of these Courts, the legal theory of its character is to 
 a certain extent inconsistent with the pedigree I have 
 claimed for it. The lawyers have always contended 
 that the Court Leet only existed through the King's 
 
140 THE MANOEIAL COUETS. LECT. v. 
 
 grant, express or implied; and in pursuance of the 
 same doctrine they have laid down that, whereas the 
 lord might himself sit in the Court Baron, he must 
 have a person of competent legal learning to repre- 
 sent him in the Court Leet. But this only proves 
 that the Court Leet, which was entrusted with the 
 examination of the Frankpledge, had more public 
 importance than the other Manorial Courts, and was 
 therefore more distinctly brought under the assump- 
 tion which had been gradually forming itself, that 
 royal authority is the fountain of all justice. Even 
 in the last extremity of decline, the Manorial Courts 
 have not wholly ceased to be regarded as the tie 
 which connects the common interests of a definite 
 group of persons engaged in the cultivation of the 
 soil. Marshall (' Rural Economy of Yorkshire/ i. 27) 
 mentions the remarkable fact that these Courts were 
 sometimes kept up at the beginning of the century 
 by the voluntary consent of the neighbourhood in 
 certain districts where, from the disappearance of the 
 servile tenures which had enabled the Customary 
 Courts to be continued, the right to hold them had 
 been forfeited. The manorial group still sufficiently 
 cohered for it to be felt that some common authority 
 was required to regulate such matters as the repair of 
 minor roads, the cleansing of rivulets, the ascertain- 
 ment of the sufficiency of ring-fences, the assessment 
 of the damages of impounded cattle, the removal of 
 nuisances, and the stocking of commons. 
 
LECT. v. ENCROACHMENTS OP THE LORD. 141 
 
 On the whole, the comparison of the Village Group 
 with the English group which I have called Manorial 
 rather than Feudal, suggests the following general 
 observations. Wherever that collective ownership of 
 land which was a universal phenomenon in primitive f 
 societies has dissolved, or gone far to dissolve, into 
 individual property, the individual rights thus formed 
 have been but slightly affected by the process of feu- 
 dalisation. If there are reasons for thinking that 
 some free village societies fell during the process into 
 the predial condition of villenage whatever that 
 condition may really have implied a compensating 
 process began at some unknown date, under which 
 the base tenant made a steady approach to the level 
 of the freeholder. Even rights which savoured of the 
 collective stage of property were maintained compara- 
 tively intact, provided that they were ascertained: 
 such as rights of pasture on the waste and rights of 
 several or of common enjoyment (as the case might 
 be) in the grass land. The encroachments of the lord 
 were in proportion to the want of certainty in the 
 rights of the community. Into the grass land he 
 intruded more than into the arable land ; into the 
 waste much more than into either. The conclusion j 
 suggested to my mind is that, in succeeding to the / 
 legislative power of the old community, he was/ 
 enabled to appropriate to himself such of its rights as 
 were not immediately valuable, and which, in the 
 event of their becoming valuable, required legislative 
 
142 ROMAX AND FEUDAL LAW. I,ECT. v. 
 
 adjustment to settle the mode of enjoying them. 
 Let me add that the general truth of my description 
 of the character of the change which somehow took 
 place, is perhaps rendered antecedently more probable 
 by the comparison of a mature, but non-feudal, body 
 of jurisprudence, like the Roman law, with any deeply 
 'feudalised legal system. You will remember the 
 class of enjoyable objects which the Roman lawyers 
 call res nullius, res publid usus, res omnium or univer- 
 sorum ; these it reserves to the entire community, or 
 confers on the first taker. But, under feudalised law, 
 nearly all these objects which are capable of several 
 enjoyment belong to the lord of the manor, or to the 
 king. Even Prize of War, the most significant of the 
 class, belongs theoretically to the sovereign in the 
 first instance. By a very singular anomaly, which 
 has had important practical results, Game is not 
 strictly private property under English law ; but the 
 doctrine on the subject is traceable to the later 
 influence of the Roman law. 
 
 There must be a considerable element of conjec- 
 ture in any account which may be given of a series 
 of changes which took place for the most part in 
 remote antiquity, and which probably were far from 
 uniform either in character or in rate of advance. It 
 happens, however, that the vestiges of the earlier 
 stages of the process of feudalisation are more dis- 
 cernible in Germany than elsewhere, both in docu- 
 
I.ECT. v. CAUSES OP FEUDALISATION. 143 
 
 mentary records and on the face of the land ; owing 
 in part no doubt to the comparatively feeble action 
 of that superior and central authority which has 
 obliterated or obscured so much in our own country, 
 A whole school of writers, among whom Yon Maurer 
 has the first place, has employed itself in restoring 
 and interpreting these traces of _the_ Past. How did 
 the Manor rise out of the Mark ? this is their way 
 of stating the problem. What were the causes of 
 indigenous growth which, independently of grants of 
 land by royal or national authority, were leading to 
 a suzerainty or superiority of one cultivating com- 
 munity over another, or of one family over the rest 
 of the families composing the village community ? 
 The great cause in the view of these writers was the 
 exceeding quarrelsomeness of these little societies, 
 and the consequent frequency of intertribal war. 
 One community conquers another, and the spoil of war 
 is generally the common mark or waste of the worsted 
 community. Either the conquerors appropriate and 
 colonise part of the waste so taken, or they take the 
 whole domain and restore it to be held in dependence 
 on the victor-society. The change from one of these 
 systems to another occurred, you will remember, in 
 Roman history, and constitutes an epoch in the deve- 
 lopment of the Roman Law of Property. The effect 
 of the first system on the Teutonic communities was 
 inequality of property ; since the common land appro- 
 
144 GROWTH OP SUZERAINTIES. LECT. v. 
 
 priated and occupied does not seem to have been 
 equally divided, but a certain preference was given to 
 the members of the successful community who had 
 most effectually contributed to the victory. Under 
 the second system, when its land was restored to 
 the conquered society, the superiority over it which 
 remained to the victor, bore the strongest analogy to 
 a suzerainty or lordship. Such a suzerainty was not, 
 however, exclusively created by success in war. 
 Sometimes a community possessed of common land 
 exceptionally extensive or exceptionally fertile would 
 send colonies of families to parts of it. Each of these 
 new communities would receive a new arable mark, 
 but such of the land as remained unappropriated 
 would still be the common land of all the townships. 
 At the head of this sort of confederacy there would, 
 however, be the original mother-community from 
 which the colonists proceeded, and there seems no 
 doubt that in such a state of things she claimed a supe- 
 riority or suzerainty over all the younger townships. 
 But, even if we had the fullest evidence of the 
 growth of suzerainties in this inchoate shape, we 
 should still have advanced a very little way in trac- 
 ing the transmutation of the village system into the 
 manorial system, if it were not for another phenome- 
 non to which Landau has more particularly called 
 attention. The Teutonic communities, though their 
 organisation (if modern language must be employed) 
 
LECT. v. LEADING FAMILIES. 145 
 
 can only be described as democratic, appear neverthe- 
 less to have generally had an abiding tradition that 
 in some one family, or in some families, the blood 
 which ran in the veins of all the freemen was purest ; 
 probably because the direct descent of such family or 
 families from a common ancestor was remembered or 
 believed in. From the members of these families, 
 the leader for a military expedition would as a rule 
 be chosen ; but as in this stage of thought the different 
 varieties of power were not distinguished from one 
 another, the power acquired by the chieftain would 
 be a combination of political, military, and judicial 
 power. The choice of the leader would in great 
 emergencies be a true election, but on less serious 
 occasions would tend to become an acquiescence in 
 the direction of the eldest male agnate of the family \ 
 which had the primacy of the township. Similarly 
 the power which had at first been more military than 
 anything else, would in more peaceful times tend 
 rather to assume a political and judicial form. The 
 leader thus taken from the privileged family would 
 have the largest share of the lands appropriated from 
 conquered village -societies ; and there is ground for 
 supposing that he was sometimes rewarded by aii 
 exceptionally large share of the common land belong- 
 ing to the society which he had headed. Everything in 
 fact which disturbed the peaceful order of the village 
 system led to the aggrandisement of the leading 
 
146 ELEMENTS OF FEUDAL SYSTEM. LECT. v. 
 
 family and of its chief. Among the privileges which 
 he obtained was one of which the importance did not 
 show itself till much later. He became powerful 
 enough in his own township to sever his own plot of 
 land from the rest, and, if he thought fit, to enclose 
 it ; and thus to break up or enfeeble that system of 
 common cultivation under rules of obligatory custom 
 which depended mainly on the concurrence of all the 
 villagers. 
 
 There were therefore, in the cultivating communi- 
 ties of the German and Scandinavian races', causes 
 at work which were leading to inequality of property 
 in land. There were causes at work which were 
 leading to the establishment of superiorities or suze- 
 rainties of one township over another. There were 
 causes at work which tended to place the benefits of 
 an unequal proprietary system and the enjoyment of 
 these suzerainties in the hands of particular families, 
 and consequently of their chiefs for the time being. 
 Here you have all the elements of the system we are 
 compelled to call feudal. But the system in its 
 ultimate development was the result of a double set 
 V- of influences. One set, which I have been describing 
 s- $ere of primitive growth. Another showed them- 
 selves when powerful Teutonic monarchies began to 
 be formed, and consisted in grants of national waste 
 land or of the soil of conquered provinces. Doubtless 
 some of the grantees were chiefs of families already 
 
LECT. v. SYSTEMATIC FEUDALISM. 147 
 
 risen to power under indigenous Teutonic conditions; 
 but in any case a Beneficiary would be a chieftain of 
 a peculiarly powerful class. The cultivators of his 
 land would either be persons settled on it by himself, 
 or they would be vanquished provincials who had 
 no rights which he did not choose to recognise or 
 concede. It is not, therefore, surprising that there 
 should have been a completer constitution of feudalism 
 in the countries which at the time of conquest were 
 filled with Romanised populations. The mould 
 would be Teutonic, but the materials would be 
 unusually plastic, and here would more especially 
 come into play the influence of Roman law, giving 
 precision to relations which under purely Teutonic 
 social conditions may have been in a high degree 
 vague and indefinite. It is well known that this 
 systematic feudalism reacted upon the more purely 
 Teutonic societies and gave an impulse to changes 
 which were elsewhere proceeding at a slower pace. 
 
 I have very briefly summarised the results of a 
 very long and laborious enquiry, and only so far as 
 is necessary for my immediate purpose. Merely 
 remarking that I can see little or nothing in the 
 conclusions of these eminent German writers which 
 is out of harmony with the account given by English 
 scholars of the parallel phenomena of change mani- 
 fested in England before the Conquest, I proceed to 
 ask, following the scheme of these Lectures, whether 
 
 i, 2 
 
148 ANTIQUARIANISM OF INDIAN POLITICS. LECT. v. 
 
 the experience of Englishmen in India throws any 
 light or has any bearing upon the questions which 
 have been occupying us? It is not too much to say 
 that the phenomena observed in the East, and those 
 established in the West by historical research, illus- 
 trate one another at every point. In India these dry 
 bones live. Not only, as I have told you, is the 
 Village Community the basis of British administration 
 in those provinces in which the art of government 
 has to be practised with skill and caution, but a 
 number of controversies turning on the mode of 
 transition from the village system to what I have 
 called the manorial system are as earnestly, and some- 
 times even as violently, debated by our countrymen 
 in the East as are the great aspects of politics among 
 ourselves. All Indian disputes take, I should explain, 
 a historical or antiquarian shape. The assumption 
 universally made is that the country must be governed 
 in harmony with the established usages of the natives, 
 and each administrative school has therefore to justify 
 its opinions by showing that the principles to which 
 it adheres are found in some sense or other to underlie 
 the known customary law of India. The extrava- 
 gance of partisanship which here shows itself in 
 unqualified assertion of the universal applicability 
 of general propositions has its Indian counterpart in 
 unqualified assertion of the universal existence of 
 particular customs. The Indian controversy is, how- 
 
LECT. v. POLITICAL KESULTS OF SETTLEMENTS. 149 
 
 ever, a controversy about facts which, though they 
 are more complex than the disputants suppose, are 
 nevertheless much simpler than the material of 
 English political controversy ; and the results are 
 therefore proportionately more instructive to the by- 
 stander who has entire sympathy with neither party. 
 Let us suppose a province annexed for the first 
 time to the British Indian Empire. The first civil 
 act of the new government is always to effect a settle- 
 ment of the land revenue; that is, to determine the 
 amount of that relatively large share of the produce 
 of the soil, or of its value, which is demanded by the 
 sovereign in all Oriental States, and out of which 
 all the main expenses of government are defrayed. 
 Among the many questions upon which a decision 
 must be had, the one of most practical importance is, 
 4 Who shall be settled with ? ' with whom shall the 
 settlement be made? What persons, what bodies, 
 what groups, shall be held responsible to the British 
 Government for its land revenue? What practically 
 has to be determined is the unit of society for 
 agrarian purposes; and you find that, in determining 
 it, you determine everything, and give its character 
 finally to the entire political and social constitution of 
 the province. You are at once compelled to confer on 
 the selected class, powers co-extensive with its duties 
 to the sovereign. Not that the assumption is ever 
 made that new proprietary powers are conferred on it, 
 
150 VAKIOUS FORMS OF SETTLEMENT. LECT. v. 
 
 but what are supposed to be its rights in relation to all 
 other classes are defined ; and in the vague and floating 
 order of primitive societies, the mere definition of a 
 right immensely increases its strength. As a matter 
 of fact, it is found that all agrarian rights, whether 
 superior or subordinate to those of the person held 
 responsible to Government, have a steady tendency to 
 decay. I will not ask you to remember the technical 
 names of the various classes of persons ' settled with ' 
 in different parts of India Zemindars, Talukdars, 
 Lumberdars names which doubtless sound uncouth, 
 and which, in fact, have not an identical meaning 
 throughout the country but I dwell on the fact that 
 the various interests in the soil which these names 
 symbolise are seen to grow at the expense of all others. 
 Do you, on entering on the settlement of a new 
 province, find that a peasant proprietary has been 
 displaced by an oligarchy of vigorous usurpers, and 
 do you think it expedient to take the government 
 dues from the once oppressed yeomen? The result is 
 the immediate decline, and consequently bitter dis- 
 content, of the class above them, who find themselves 
 sinking to the footing of mere annuitants on the land. 
 Such was the land settlement of Oudh, which was 
 shattered to pieces by the Sepoy mutiny of 1857, and 
 which greatly affected its course. Do you, reversing 
 this policy, arrange, that the superior holder shall be 
 answerable to Government ? You find that you have 
 
LECT. v. GROWTH IN TOWER OF OFFICIAL HOLDER. 151 
 
 created a landed aristocracy which has no parallel in 
 wealth or power except the proprietors of English 
 soil. Of this nature is the more modern settlement 
 of the province of Oudh, only recently consummated ; 
 and such will ultimately be the position of the 
 Talukdars, or Barons, among whom its soil has been 
 divided. Do you adopt a policy different from either 
 of those which I have indicated and make your ar- 
 rangements with the representative of the village com- 
 munity? You find that you have arrested a process 
 of'Change which was steadily proceeding. You have 1 
 given to this peculiar proprietary group a vitality 
 which it was losing, and a stiffness to the relations of 
 the various classes composing it which they never 
 had before. 
 
 It would be a mere conceit to try to establish any 
 close analogy between the Teutonic Kings and the 
 British government of India. Yet, so much as this 
 is true and instructive. The only owner of the soil 
 of India with whom the English Government has any 
 relations, is, in its eyes, a mere functionary. It 
 chooses him where it pleases, and exacts from him 
 services, chiefly pecuniary, but to a certain small 
 extent personal. It is found, however, that when 
 an official appointed by a powerful government acts 
 upon the loose constitution of a primitive society he 
 crushes down all other classes and exalts that to which 
 he himself belongs. But for recent legislation this 
 
152 MAHOMETAN ASSUMPTIONS. LECT. v. 
 
 process would have gone to any length in India, and 
 would have assuredly affected many other provinces 
 than those which were its immediate theatre. It may, 
 at least, be said that by observing it we gain a clearer 
 conception of the effect of beneficiary gifts on the 
 general tenure of land, and that we better understand 
 the enormous power acquired by the chieftains who 
 rendered immediate services to the Teutonic kings. 
 
 The English in India appear to have started with 
 the assumption of the Mahometans that the sovereign 
 might lawfully select anybody he pleased as the 
 collector of his revenue ; but they soon accepted the 
 principle that the class to be ' settled with ' was the 
 ] class best entitled to be regarded as having rights of 
 property in the soil. At a later date they discovered 
 "that, even when this class was determined, they had 
 to decide what it was that proprietary rights over 
 Indian land implied, and what powers they carried 
 with them. No questions fuller of inherent diffi- 
 culties were ever proposed for solution. As regards 
 the first of them, the functionaries administering 
 India might, with some eminent exceptions, but still 
 not unfairly, be distributed into two great schools 
 the partisans of the theory that the soil belongs to 
 the peasantry either as individuals or as organised in 
 groups ; and the partisans of the theory that owner- 
 ship of the soil ought to be, and but for British in- 
 fluence would be, everywhere in India vested in some 
 sort of native aristocracy. As regards the second 
 
LECT. v. INDIAN SCHOOLS 
 
 question, the Indian officials are much more exactly 
 divided into those who contend that the highest right 
 of property acknowledged to exist over the soil 
 carries with it the same powers which attach to an 
 English owner in fee-simple of the present day, and 
 into those who are of opinion that, if these powers are 
 to square with native idea and custom, they must be 
 more or less limited and controlled. The controver- 
 sies on these two points are the most vehemently de- 
 bated of Indian disputes ; and none ever presented 
 greater difficulties to the person who tries to form an 
 opinion on their merits, not from his own knowledge 
 but upon the evidence supplied to him by others. 
 He finds men of the utmost experience, of trained 
 power of observation, and of the most unquestionable 
 good faith, stating precisely opposite conclusions with 
 precisely equal positiveness. But if he avail himself 
 of the advantage given him by the parallel facts of 
 European tenure, he will, perhaps, venture to have an 
 opinion, and to think that in these, as in many other 
 fierce disputes, both sides are right and both sides 
 are wrong. 
 
 There is no doubt that the first point at issue was 
 much obscured, and attention diverted to irrelevant 
 matter, by the unlucky experiment tried at the end 
 of the last century by Lord Cornwallis. A province, 
 like Bengal Proper, where the village system had 
 fallen to pieces of itself, was the proper field for the 
 creation of a peasant proprietary ; but Lord Cornwallis 
 
154 INDIAN FOKMS OF PEOPERTY. LECT. v. 
 
 turned it into a country of great estates, and was 
 compelled to take his landlords from the tax- 
 gatherers of his worthless predecessors. The politi- 
 cal valuelessness of the proprietary thus created, its 
 failure to obtain any wholesome influence over the 
 peasantry, and its oppression of all inferior holders, led 
 not only to distrust of the economical principles im- 
 plied in its establishment, but to a sort of reluctance 
 to believe in the existence of any naturally privileged 
 class in the provinces subsequently acquired and 
 examined. The most distinguished public servants of 
 that day have left much on record which implies an 
 opinion that no ownership of Indian land was dis- 
 coverable, except that of the village communities, 
 subject to the dominion of the State. 
 
 But in fact it appears that, of all the landmarks on 
 the line of movement traced by German and English 
 scholars from the Village group to the Manorial 
 group, there is not one which may not be met with 
 in India, saving always the extreme points at either 
 end. I have riot had described to me any village 
 community under the unmodified collective govern- 
 ment of the heads of households, but there are those 
 who think they find the vestiges of the original con- 
 stitution in a sort of democratic spirit and habit of 
 free criticism which prevail even when the govern- 
 ment has passed to an hereditary officer. If any 
 thoroughly authenticated example could be produced 
 
LECT. v. THE HEADMAN. 155 
 
 V^ 
 
 of a community exercising absolute liberty of choice 
 in electing its Headman, it would point still more 
 significantly to an unmodified original equality; but 
 the preference alleged to be invariably shown to the 
 members of particular families appears to show that 
 these elections belong really to the phenomena of 
 hereditary succession. It is not, however, disputed 
 that villages ara found in great numbers in which 
 the government is lodged with a council, neither 
 claiming to be nor regarded as being anything more 
 than a representation of the entire cultivating body. 
 The instances, however, in which the authority has 
 passed to some particular family or families are 
 extremely numerous. Sometimes the office of Head- 
 man belongs absolutely to the head of a particular 
 family ; sometimes it belongs to him primarily, but 
 he may be set aside for incapacity or physical blemish; 
 sometimes there is a power of choosing him limited 
 to an election between the members of one or more 
 privileged households . The powers which he enjoys 
 or which it perhaps should be said, he would enjoy 
 under native conditions of society are also very 
 various. But the judicial power of mediating in 
 disputes and of interpreting customs appears to be 
 certainly vested in him, together with the duty 
 of keeping order ; and, independently of the func- 
 tions which he discharges with the consent of his 
 neighbours, the British Government often expressly 
 
156 PROPERTY RECOGNISED BY THE ENGLISH. LECT. v. 
 
 confides to him a certain amount of regular jurisdic- 
 tion and of regular authority in matters of police. 
 
 There is no question that many of the families 
 whom the English have recognised as owners of 
 villages were privileged families enjoying the primacy 
 of the township ; but the widest difference of opinion 
 has prevailed as to the nature and origin of the rights 
 claimed by certain families for their chiefs over 
 whole tracts of country, embracing the domain of 
 several village communities. It has been strongly 
 contended on one side that these great proprietors 
 are nothing but the descendants of farmers of the 
 revenue under Native Governments ; on the other it 
 is asserted that in some cases at all events they were 
 Chieftains of Clans who were selected by preference to 
 represent the Koyal or Imperial native government 
 in districts in which they had an hereditary influence. 
 There appears to me reasonable evidence that this 
 last theory is true of certain localities in India. Clan 
 society is also in Europe the Celtic form of the family 
 organisation of society; and, for myself, I have great 
 difficulty in conceiving the origin of customary law 
 otherwise than by assuming the former existence of 
 larger groups, under patriarchal chieftains, which at 
 a later date dissolved into the independent collec- 
 tions of families forming the cultivating commu- 
 nities of the Teutonic (including the Scandinavian) 
 races and of the Hindoos. 
 
 If it be taken for granted that the English in India 
 
LECT. v. ABSOLUTE OWNERSHIP. 157 
 
 were bound to recognise rights of property some- 
 where, their selection of the persons in whom these 
 rights should vest does not seem to have been as 
 absurd as the adherents of one Indian school are in 
 the habit of hinting, if not of asserting. Claims to 
 some sort of superior right over land in fact existed 
 which corresponded to every single stage through 
 which the conception of proprietorship has passed 
 in the Western world, excepting only the later 
 stages. The variety of these claims was practically 
 infinite, and not only did not diminish, but greatly 
 increased, as native customs and ideas were more 
 accurately examined. Even when the village com- 
 munities were allowed to be in some sense the pro- 
 prietors of the land which they tilled, they proved on 
 careful inspection not to be simple groups, but highly 
 composite bodies, composed of several sections with 
 conflicting and occasionally with irreconcilable claims. 
 The English officials solved a problem of almost 
 hopeless perplexity by registering all the owners of ,1 
 superior rights as landowners, their conception of 
 ownership being roughly taken from their own 
 country ; but the fundamental question very soon 
 revived under another form in the shape of the 
 second issue disputed between the Indian administra- 
 tive schools, which is, whether proprietorship in 
 India is to be taken to be the same assemblage of 
 powers which constitutes the modern English owner- 
 ship of land in fee -simple. 
 
158 NATURE OF RIGHTS OF PROPERTY. LECT. v. 
 
 It seems to me that the error of the school which 
 asserts the existence of strong proprietary rights in 
 India lies much less in merely making this assertion 
 than in assuming the existence of a perfect analogy 
 between rights of property as understood in India and 
 as understood in this country. The presumption is 
 strongly against the reality of any such correspon- 
 dence. The rights of property are, in the eye of the 
 jurist, a bundle of powers, capable of being mentally 
 contemplated apart from one another and capable 
 of being separately enjoyed. The historical enquirer 
 can also, whenever there are materials for a history 
 of the past, trace the gradual growth of the conception 
 of absolute property in land. That conception appears 
 me, for reasons which I shall afterwards assign, to 
 
 / have grown out of the ownership of the lord in that 
 / portion of his domain which he cultivated by his im- 
 mediate personal dependants, and therefore to be a late 
 and gradually matured fruit of the feudalisation of 
 
 ^Europe. A process closely resembling feudalisation was 
 undoubtedly once at work in India ; there are Indian 
 phenomena answering to the phenomena of nascent 
 absolute ownership in England and Europe ; but then 
 these Indian phenomena, instead of succeeding one 
 another, are all found existing together at the present 
 moment. The feudalisation of India, if so it may be 
 called, was never in fact completed. The character- 
 istic signs of its consummation are wanting. It may 
 
LECT. v. DEVELOPMENT OF ABSOLUTE OWNERSHIP. 159 
 
 be doubted whether in any single instance the whole 
 power of regulating the affairs of the village com- t , 
 munity had passed to an hereditary official when the 
 English entered the country ; on the other hand, in 
 the enormous majority of examples there are pecu- 
 liarities of organisation which show conclusively that 
 the village-group is either unmodified or has not yet 
 nearly passed into the manorial group. Even, how- 
 ever, were we at liberty to believe that India has been 
 completely feudalised, we should still be as far as 
 possible from being entitled to assume that the high- 
 est Indian form of ownership corresponds to the ab- 
 solute ownership of the English holder in fee -simple. 
 It has been said that many persons talk and write as 
 if all the Englishmen who lived between the Norman 
 Conquest and the Reformation lived at exactly the 
 same time ; but this Indian assumption implies that 
 there has been no change in our conception of landed 
 property between the epoch at which England be- 
 came completely feudal and the epoch (let us say) at 
 which the Corn -laws were repealed. Yet during all 
 these centuries England has been legislatively and to 
 a great extent judicially centralised, and has been 
 acted on by economical influences of very great uni- 
 formity. India, from the earliest ages till the British 
 entered it, was under the dominion of comparatively 
 powerful kings, who swept away the produce of the 
 labour of the village communities and carried off the 
 
160 VESTED RIGHTS IN INDIA. JLECT. v. 
 
 young men to serve in their wars, but did not other- 
 wise meddle with the cultivating societies. This was 
 doubtless the great cause of their irregular develop- 
 ment. Intertribal wars soon gave way to the wars 
 of great kings leading mercenary armies, but these 
 monarchs, with few and doubtful exceptions, neither 
 legislated nor centralised. The village communities 
 were left to modify themselves separately in their 
 own way. 
 
 This subject is one of much practical importance, 
 and I propose to treat of the more difficult problems 
 which it raises in the next Lecture ; at present I will 
 content myself with repeating that there seems to me 
 the heaviest presumption against the existence in 
 any part of India of a form of ownership conferring 
 the exact rights on the proprietor which are given by 
 the present English ownership in fee-simple. There 
 are now, however, a vast number of vested rights in 
 the country, fully recognised by the English Govern- 
 ment, which assume the identity of Indian and 
 English proprietorship, and neither justice nor policy 
 permits them to be disturbed. Moreover it is ab- 
 stractedly possible that further observation of par- 
 ticular localities by accurate observers may, so far as 
 regards those localities, rebut the presumption of 
 which I have spoken, provided that the enquirer be 
 acquainted with the parallel phenomena which belong 
 to European legal history, and provided that he possess 
 
LECT. v. THE FEUDALISATION OF EUROPE. 161 
 
 the faculty, not very common among us, of distin- 
 guishing the rudimentary stages of legal thought from 
 its maturity. The way in which, among the unlet- 
 tered members of a primitive society, law and morality 
 run into one another ought especially to be studied. 
 The subordinate holder who in India states that the 
 superior holder has the power to do a certain act, but 
 that he ought not to do it, does not make an admis- 
 sion ; he raises a question of the utmost difficulty. 
 
 It has been usual to speak of the feudalisation of 
 Western Europe as if it had been an unmixed evil, 
 and there is but too much reason to believe that it 
 was accompanied in its course by a great amount of 
 human suffering. But there are some facts of Indian 
 experience which may lead us to think that the 
 advantage of some of the economical and juridical 
 results which it produced has been underrated. If 
 the process indeed had really consisted, as some of 
 the enthusiasts for its repetition in India appear to 
 suppose that it did, merely in the superposition of 
 the lord over the free owners of land, with power 
 to demand such services or dues as he pleased and 
 to vary his demands at pleasure, very little indeed 
 could be said for it. But this picture of it is cer- 
 tainly untrue of our own country. We are not at 
 liberty to assume that the obligations incurred by the 
 free owner of land who commended himself to a lord 
 were other than, within certain limits, fixed and 
 
 M 
 
162 CULTIVATION OF WASTE-LAND. LECT. v. 
 
 definite services ; and the one distinguishing charac- 
 teristic which the English feudists discover in that 
 free Socage tenure for which the English villagers 
 most probably exchanged their allodial ownership is 
 certainty, regularity and permanence of service. The 
 great novelties which the transition from one form of 
 property to another produced were, the new authority 
 over the waste which the lord acquired (and which 
 was connected with the transfer to him of the half 
 judicial, half legislative, powers of the collective 
 community) and the emancipation of the lord within 
 his own domains from the fetters of obligatory agri- 
 cultural custom. Now Europe was then full of great 
 wastes, and the urgent business in hand was to reclaim 
 them. Large forests were to be felled, and wide 
 tracts of untilled land had to be brought under 
 cultivation. In England, inexorably confined within 
 natural boundaries, there pressed with increasing force 
 the necessity for adopting the methods of agriculture 
 which were fitted to augment the total supply of food 
 for a growing population. But for this work society 
 organised in village communities is but little adapted. 
 The Indian administrators who regard the cultivating 
 groups with most favour, contend that they secure a 
 large amount of comfort and happiness for the families 
 included within them, that their industry is generally, 
 and that their skill is occasionally, meritorious. But 
 their admirers certainly do not claim for them that 
 
LECT. v. IMPROVEMENTS IN TILLAGE. 163 
 
 they readily adopt new crops and new modes of tillage, 
 and it is often admitted that they are grudging and 
 improvident owners of their waste land. The British 
 Government, as I before stated, has applied a remedy 
 to this last defect by acting on the right to curtail 
 excessive wastes which it inherited from its prede- 
 cessors; and of late years it has done its utmost to 
 extend and improve the cultivation of one great 
 staple, Cotton amid difficulties which seem to be very 
 imperfectly understood by those who suppose that in 
 order to obtain the sowing of a new crop, or the 
 sowing of an old crop in a new way, from a peasant 
 in bondage to hereditary custom, it is enough to 
 prove to him that it is very likely to be profitable. 
 There is Indian evidence that the forms of property 
 imitated from modern English examples have a value 
 of their own, when reclamation has to be conducted 
 on a large scale, or novelties in agriculture have to be 
 introduced. The Zemindars of Lower Bengal, the 
 landed proprietary established by Lord Cornwallis, 
 have the worst reputation as landlords, and appear to 
 have frequently deserved it; but the grants of land 
 originally made to them included great uncultivated 
 tracts, and at the time when their power over 
 subordinate holders was least limited they brought 
 large areas of waste land under tillage by the colonies 
 of peasants which they planted there. The pro- 
 prietorship conferred on them has also much to do 
 
 M 2 
 
164 VILLAGE COMMUNITIES AND CUSTOMS. LECT. v. 
 
 with the introduction into Lower Bengal, nearly 
 alone among Indian provinces, of new and vast 
 agricultural industries, which, if they had been placed 
 under timely regulation (which unfortunately they 
 were not) would have added as much to the comfort 
 of the people as they have added to the wealth of the 
 country. 
 
 It appears therefore to me to be highly probable that 
 the autocratically governed manorial group is better 
 suited than the village group for bringing under cul- 
 tivation a country in which waste lands are extensive. 
 So also does it seem to me likely to have been at all 
 times more tolerant of agricultural novelties. It is a 
 serious error to suppose that the non-feudal forms of 
 property which characterised the cultivating commu- 
 nities had any real resemblance to the absolute 
 property of our own day. The land was free only 
 in the sense of being free from feudal services, but it- 
 was enslaved to custom. An intricate net of usage 
 bound down the allodial owner, as it now binds the 
 Indian peasant, to a fixed routine of cultivation. 
 It can hardly be said that in England or Germany 
 these usages had ceased to exercise a deadening 
 influence even within living memory, since very 
 recent writers in both countries complain of the bad 
 agriculture perpetuated by custom in the open 
 common fields. The famous movement against 
 Inclosures under the Tudor reigns was certainly in 
 
LECT. v. CUSTOMARY TILLAGE. 165 
 
 part provoked by inclosures of plots in the three 
 common fields made with the intention of breaking 
 the custom and extending the systematic cultivation 
 of grasses ; and it is curious to fmd the witnesses 
 examined before the Select Committee of 1844 using 
 precisely the same language which was employed by 
 the writers who in the sixteenth century took the 
 unpopular side, and declaring that the value and 
 produce of the intermixed lands might be very greatly 
 increased if the owner, instead of having one plot in 
 each field, had three plots thrown together in one 
 field and dealt with them as he pleased. As I said 
 before, it seems to me a plausible conjecture that our 
 absolute form of property is really descended from 
 the proprietorship of the lord in the domain which 
 besides planting it with the settlements of ' unfree ' 
 families he tilled, when it was close to his castle or 
 manor-house, by his own dependants under his own 
 eye. He was free from the agricultural customs 
 which shackled those below him, and the services 
 exacted from above were not of a kind to affect his 
 management of the land which he kept in his hands. 
 The English settlers on the New England coast did 
 not, as I shall point out, at first adopt this form of 
 property, but they did so very shortly, and we 
 unquestionably owe to it such an achievement as 
 the cultivation of the soil of North America. 
 
 If, however, a society organised in groups on the 
 
, 
 
 166 SEEVILE DEPENDANTS OF VILLAGES. LECT. v. 
 
 primitive model is ineffective for Production, so also 
 if left to develop itself solely under primitive influ- 
 ences it fails to secure any considerable improvement 
 in Distribution. Although it is hardly possible to 
 avoid speaking of the Western village groups as in 
 one stage democratically governed, they were really 
 oligarchies, as the Eastern communities always tend 
 to become. These little societies had doubtless 
 anciently a power of absorption, when men were of 
 more value than land. But this they lose in time. 
 There is plenty of evidence that, when Western 
 Europe was undergoing feudalisation, it was full of 
 enthralled classes ; and I imagine that the authority 
 acquired by the feudal chief over the waste was much 
 more of an advantage than the contrary to these 
 classes, whom he planted largely there in colonies 
 which have probably been sometimes mistaken for 
 assemblages of originally free villagers. The status 
 of the slave is always deplorable ; the status of 
 the predial slave is often worse than that of the 
 personal or household slave ; but the lowest depth 
 of miserable subjection is reached when the person 
 enthralled to the land is at the mercy of peasants, 
 whether they exercise their powers singly or in 
 communities. 
 
 Whether the Indian village communities had 
 wholly lost their capacity for the absorption of 
 strangers when the British dominion began, is a 
 
LECT. v. TILLAGES CEASE TO ABSORB STRANGERS. 167 
 
 point on which I have heard several contradictory 
 opinions ; but it is beyond doubt that the influence 
 of the British Government, which in this respect is 
 nothing more than the ordinary influence of settled 
 authority, has tended steadily to turn the com- 
 munities into close corporations. The definition of 
 rights which it has effected through its various 
 judicial agencies the process of law by which it 
 punishes violations of right above all the money 
 value which it has given to all rights by the security 
 which it has established from one end of India to 
 another have all helped to make the classes in 
 possession of vested rights cling to them with daily 
 increasing tenacity. To a certain small extent this 
 indirect and unintended process of shutting the door 
 to the acquisition of new communal rights has been 
 counteracted by a rough rule introduced by the 
 English, and lately engrafted on the written law, 
 under which the cultivator of the soil who has been 
 in possession of it for a period of years is in some 
 parts of India protected against a few of the extreme 
 powers which attach to ownership of the modern 
 English type. But the rule is now in some discredit, 
 and the sphere of its operation has of late been much 
 curtailed. And my own opinion (which I shall state 
 more at length in the next Lecture) is, that even if 
 the utmost effect were given to it, it would not make 
 up for some of the inequalities of distribution between 
 
168 BASSE'S WORK. LECT. v. 
 
 classes actually included in the village group which 
 have made their way into it through the influence of 
 economical ideas originating in the West. ^On the 
 whole the conclusion which I have arrived at con- 
 cerning the village communities is that, during.- the 
 primitive struggle for existence they were expansive 
 and elastic bodies, and these properties may be pejr- 
 petuated in them for any time by bad government. 
 But tolerably good government takes away their 
 absorptive power by its indirect effectis, and~can ^only 
 restore it by direct interposition. 
 
 It was part of my design to append to these 
 Lectures an epitome of the work in which Professor 
 Nasse has attempted to connect the actual condition 
 of landed property in much of England at the end of 
 the last century as shown in the various publications 
 of Marshall, with the early English forms of tenure 
 and cultivation as known to us through the labours 
 of English and German scholars. But I have aban- 
 doned my intention on learning that Nasse's book is 
 likely to be made generally accessible through an 
 English translation. The undertaking is one which 
 presents considerable difficulties. Nasse_ complains 
 of the unusual scarcity olEigTisnrecolFds bearing 
 on tenure and agricultural custom, but in this place 
 we may note another class of difficulties having 
 its source in those abundant technicalities of English 
 
 i I 
 
 real-property law which are so hard to read by any- 
 
LECT. v. THE STATUTE OF DEVISES. 169 
 
 body except the professional lawyer ; and yet another 
 in the historical theory of their land law which 
 almost all English lawyers have adopted, and which 
 colours all English treatises and all the decisions of 
 English Courts a theory which, it is not unjust to 
 say, practically regards the manorial system as having 
 no ascertainable antecedents, and all rights primd 
 facie inconsistent with it as having established them- 
 selves through prescription and by the sufferance of 
 the lord. I may be allowed to say that the book in 
 which Nasse has knotted together the two ends of the 
 historical thread is a very extraordinary one to be 
 written by a foreigner. Much of it deals with 
 matter which can only be discussed appropriately in 
 other departments of study ; but I may notice in this 
 place one set of causes, of a purely juridical nature, 
 which, besides those assigned by Nasse, tended in 
 later times to throw small or yeomen properties into 
 the hands of large landowners. The popular opinion 
 much exaggerates the extent to which this accumu- 
 lation of landed properties had proceeded before the 
 great inclosures of the last century, but still it had 
 gone some length, and undoubtedly one cause was 
 the influence, not at first strongly felt, of the Statute 
 of Devises. Each landed proprietor ultimately ac- 
 quired the power within limits certainly, but very 
 wide ones to create a private law for his own estate. 
 The eiforts of English judges to introduce order into 
 
170 RULES FOR CONSTRUING WILLS. LECT. v. 
 
 this chaos made it rather worse ; for the expedient 
 which they adopted for the purpose was to give a 
 forced technical meaning to the popular language of 
 testators. One large and complex branch of English 
 law is still concerned with the rules for construing 
 in a technical sense the loose popular expressions 
 found in wills. Every estate, willed away by a tes- 
 tator technically unlearned, was in danger of being 
 burdened with a mass of conflicting rights and in- 
 terests, for the most part never contemplated by the 
 testator himself. There was only one way of insuring 
 oneself against this consequence, and that was the 
 employment of an expert to make the will ; but there 
 is reason to believe that the wholesale employment 
 of legal experts which is now one of the singularities 
 of this country is of comparatively modern date, since 
 it is one of the traditions of the English Bar, derived 
 from the last generation of lawyers, that among the 
 great sources of litigation were at one time wills 
 made by village schoolmasters. Estates thus bur- 
 dened could only be held by very rich men ; as they 
 alone could provide and insure against the technical 
 traps which abounded in the private law under which 
 the land was held, or could render them innocuous by 
 continued possession ending in a prescriptive title. It 
 is impossible not to see that the practice of un- 
 shackled devise tended to bring small estates into the 
 market as unprofitable to the holders through the 
 
LECT. v. RESTRAINTS ON TESTAMENTARY POWER. 171 
 
 complication of interests in them, and at the same 
 time tended to make them purchaseable by rich men 
 only. 
 
 The simple truth is that, if a system of small or 
 peasant holdings is to continue, the power of testators 
 must be severely restrained in order to produce sim- 
 plicity in the law of the estate. It does not at all 
 follow that the restrictions must be those of the Code 
 Napoleon; but restrictions there must be, and I 
 venture to think that a not unsatisfactory solution of 
 the problem is to be found in the law by which the 
 Indian Government has recently sought to control 
 the power of will-making, which the early English 
 judges either introduced into India or invested with 
 proportions which had never belonged to it before. 
 
LECTURE VI. 
 
 THE EAELY HISTORY OF PRICE AND RENT. 
 
CONTENTS. 
 
 Structure of Village Communities ^Divisions of the Community Pro- 
 perty within the Community Tradition as to Eights Exactions of 
 Indian Sovereigns Indian Rent Difficulty of Question Anglo- 
 Indian Ideas Customary and Competition Rents The Protected 
 Tenants Indian and English Forms of Property True Character of 
 Problem The Irish Clan Rack-Rent paid by Strangers Primitive 
 Notion as to Price Early Measure of Price Basis of Political 
 Economy The Market Markets and Neutrality Influence of Market 
 Law Sentiments Adverse to Political Economy Primitive Com- 
 mercial Principles Influence of Carrying Trade Price and Rent 
 Market for Land in England New Information Required Village 
 Communities in America. 
 
I,ECT. vi. STRUCTURE OF VILLAGE COMMUNITIES. 175 
 
 LECTURE VI. 
 
 THE EARLY HISTORY OF PRICE AND RENT. * 
 
 THE VILLAGE COMMUNITIES which are still found in the 
 Eastern world, exhibit, at first sight, a much simpler 
 structure than appears on close examination. At the 
 outset they seem to be associations of kinsmen, united i 
 by the assumption (doubtless, very vaguely con- j 
 ceived) of a common lineage. Sometimes the com- * 
 munity is unconnected with any exterior body, save 
 by the shadowy bond of caste. Sometimes it ac- 
 knowledges itself to belong to a larger group or clan. 
 But in all cases the community is so organised as to 
 be complete in itself. The end for which it exists is 
 the tillage of the soil, and it contains within itself the 
 means of following its occupation without help from 
 outside. The brotherhood, besides the cultivating 
 families who form the major part of the group, com- 
 prises families hereditarily engaged in the humble arts 
 which furnish the little society with articles of use 
 and comfort. It includes a village watch and a 
 village police, and there are organised authorities for 
 
176 DIVISIONS OF THE COMMUNITY. LECT. vi. 
 
 the settlement of disputes and the maintenance of 
 civil order. 
 
 But, when the Indian village communities are more 
 carefully scrutinised, a more complex structure dis- 
 closes itself. I told you that some dominant family oc- 
 casionally claims a superiority over the whole brother- 
 hood, and even over a number of separate villages, 
 especially when the villagers form part of a larger 
 aggregate, tribe or clan. But, besides this, the com- 
 munity itself is found, on close observation, to exhibit 
 divisions which run through its internal framework. 
 Sometimes men of widely different castes, or Maho- 
 metans and Hindoos, are found united in the same 
 village group; but in such cases its artificial struc- 
 ture is not disguised, and the sections of the commu- 
 nity dwell in different parts of the inhabited area. 
 But the most interesting division of the community 
 though the one which creates most practical diffi- 
 culty may be described as a division into several 
 parallel social strata. There are, first, a certain num- 
 ber of families who are traditionally said to be de- 
 scended from the founder of the village ; and I may 
 here repeat a statement made to me that the agricul- 
 tural traditions of India, differing in this from the 
 heroic traditions which furnish a subject to the great 
 Sanscrit poems, imply that the occupation of the rich 
 Indian plains was a process rather of colonisation than 
 of conquest. Below these families, descended from 
 
LECT. vi. PROPERTY W1THIX THE COMMUNITY. 177 
 
 the originators of the colony, there are others, dis- 
 tributed into well ascertained groups. The brother- 
 hood, in fact, forms a sort of hierarchy, the degrees of , ? 
 which are determined by the order in which the 
 various sets of families were amalgamated with the 
 community. The tradition is clear enough as to the 
 succession of the groups and is probably the representa- 
 tion of a fact. But the length of the intervals of time 
 between each successive amalgamation, which is also 
 sometimes given and which is always enormous, may 
 be safely regarded as untrustworthy ; and, indeed, 
 numbers count for nothing in the East. 
 
 The relations of these component sections to one 
 another have furnished Eastern statesmen with the / 
 problem which, of all others, has perplexed them 
 most. For it has been necessary to translate them 
 into proprietary relations. The superiority of each 
 group in the hierarchy to those below it bears un- 
 doubtedly some analogy to superiority of ownership 
 in the land which all alike cultivate. But the 
 question has been, What is the superiority to carry 
 with it when translated into a higher right of pro- I 
 perty? What division is it to imply of the total 
 produce of the village domain? What power is 
 it to confer of dealing with the land itself ? A 
 law of tenure and tenancy had in fact to be con- 
 structed, not only outside but inside the cultivating 
 group. 
 
 
1/8 TRADITION AS TO RIGHTS. LECT. vr. 
 
 It is easy to see that these questions were not of 
 the kind on which traditions were likely to throw any 
 considerable light. For traditions, as I before stated, 
 though tenaciously preserved by organised primitive 
 societies, are only thoroughly to be depended upon 
 when there have been acts and practices correspond- 
 ing to them. It is extremely likely that the tradi- 
 tional respect of each group of families within the 
 community for those above it did occasionally take 
 some concrete form, but it is in the highest degree 
 improbable that the various layers of the little society 
 were connected by anything like the systematic pay- 
 ment of rent. For what is it which in primitive states 
 of society forces groups of men to submit to that amal- 
 gamation of strangers with the brotherhood which 
 seems at first forbidden by its very constitution ? It is 
 the urgency of the struggle for existence a struggle 
 in the West probably both with man and with nature 
 in the East a struggle less with savage enemies than 
 with nature, not indeed unkindly, but extraordinarily 
 capricious, and difficult to subdue from her very 
 exuberance. The utmost available supply of human 
 labour at first merely extracts from the soil what is 
 sufficient for the subsistence of the cultivating group, 
 and thus it is the extreme value of new labour which 
 condones the foreign origin of the new hands w^hich 
 bring it. No doubt there comes a time when this 
 process ceases, when the fictions which conceal it seem 
 
pin 7i 
 
 LECT. vi. EXACTIONS OF INDIAN SOVMfj ^ 179 
 
 
 to die out, and when the village community becomes 
 a close corporation. As soon as this point is reached 
 there is no doubt that any new-comers would only be 
 admitted on terms of paying money or rendering 
 service for the use and occupation of land. But in 
 India, at all events, another set of influences then came 
 into play which have had the effect of making the 
 vestiges of the payment of rent extremely faint and 
 feeble. All Oriental sovereigns feed their courts and 
 armies by an unusually large share of the produce of j 
 the soil which their subjects tiU. The Indian mon- 
 archs of whose practices we have any real knowledge 
 took so much of the produce in the shape of land- 
 revenue as to leave to the cultivating groups little 
 more than the means of bare subsistence. There is 
 no discernible difference in this respect between the 
 Mahometan Emperors of Delhi, the Mahratta princes 
 who were dividing the Mogul Empire between them 
 when the English first appeared, or the still more 
 modern Hindoo sectaries, called the Sikhs, from whom 
 we conquered the Punjab. Such nobility as existed 
 was supported not by rents but by assignments of the 
 royal revenue; and the natural aristocracy of the 
 country would have differed in little from the humbler 
 classes but for these assignments, or for the money 
 which stuck to their fingers as the tax-gatherers of 
 the king. The fund out of which rent is provided 
 
 N 2 
 
180 INDIAN RENT. LECT. vr. 
 
 is in fact a British creation the fruit of the peace 
 which the British have kept and of the moderation of 
 their fiscal demands. x 
 
 It is sometimes said, in connection with this subject, 
 that the idea of property in land is realised with 
 extreme distinctness by the natives of India. The 
 assertion is true, but has not the importance which 
 it at first appears to possess. Between village commu- 
 nity and village community, between total group and 
 total group, the notion of an exclusive right to the 
 domain is doubtless always present; and there are 
 many striking stories current respecting the tenacity 
 with which expelled communities preserve traditions 
 of their ancient seat. But to convince himself that, 
 as. regards the interior of the group, the notion of 
 dependent tenures connecting one stratum with an- 
 other are very imperfectly conceived, it is only neces- 
 sary for an impartial person to read or listen to the 
 contradictory statements made by keen observers of 
 equal good faith. The problem of Indian Rent cannot 
 be doubted to begone of great intrinsic difficulty. To 
 see this, it need only be stated. The question is not 
 one as to a custom, in the true sense of the word ; 
 the fund out of which rent comes has not hitherto 
 existed or has barely existed, and hence it has not 
 been asserted on either side of the dispute that 
 rent (as distinct from the Government revenue) was 
 paid for the use or occupation of land before the 
 
LECT. vi. DIFFICULTY OF QUESTION. 181 
 
 establishment of the British Empire, or that, if it was 
 paid, it bore any relation to the competition value of 
 cultivable soil. Nor was it an enquiry as to a tra- 
 dition, because the further you recede from the be- 
 ginning of British rule the greater is your distance 
 from the conditions under which the exaction of 
 competition rent for land becomes conceivable. The 
 true problem can only be stated by making an assump- 
 tion contrary to the fact. Assume a market for land 
 and assume the existence of the fund out of which 
 rent comes what primitive ideas can be traced which 
 point to the distribution of the fund in any particular 
 way? Such is the question. It is on the whole, I 
 think, to be regretted that the British Government 
 allowed its servants to embark on such an enquiry. 
 However desirable it may be to govern the natives 
 of the country in harmony with their own ideas, the 
 effect of attempting to grapple with a problem under 
 such vague conditions has led to violent recoils of 
 opinion and practice on a matter in which settled 
 policy was pre-eminently counselled by justice and 
 prudence ; and in this case it would have been better, 
 I think, to abandon the historical mode of dealing 
 with a practical question peculiar to the Indian 
 government, to choose the social and economical prin- 
 ciples on which it was intended to act, and to adhere 
 to them until their political unsoundness was esta- 
 blished. But to the student of legal history the ques- 
 
182 ANGLO-INDIAN IDEAS. LECT. VT. 
 
 tion is one of very considerable interest, and, however 
 little suited it may be for the Council chamber, it 
 may very excusably be handled in this place. 
 
 When first, amid the general discredit of the ex- 
 periment tried by Lord Cornwallis in Bengal Proper, 
 the Indian administrators of fifty years or sixty years 
 since began to recognise the village community as 
 the true proprietary unit of the country, they had 
 very soon to face the problem of rent. They in some 
 cases recognised an ownership superior to that of the 
 village itself ; though it is alleged by their critics that 
 they did not recognise it as much as they ought to 
 r have done. Within the village community they in 
 all cases recognised a hierarchy of minor groups, 
 distinguished in some way by the difference of their 
 rights in the soil. Besides their observation of Indian 
 phenomena, which was here (as I have explained) 
 conducted under extraordinary difficulties, they had 
 nothing to guide them to a conclusion except the En- 
 glish forms of property in land ; and they probably 
 accepted unreservedly from the lawyers of that day 
 the belief that the system actually obtaining in Eng- 
 land was not only the ancient system of the country 
 but that it was semi-sacred. A further misleading 
 influence was the phraseology already introduced by 
 the Economists. Between customary rents and compe- 
 tition rents they did not fail to distinguish, and would 
 probably not have denied that, as a matter of fact, 
 
LECT. vi. CUSTOMARY AND COMPETITION RENTS. 183 
 
 customary rents were more common and, as a matter 
 of recorded history, were more ancient than competi- 
 tion rents. But still, misled by an error which has of 
 late been very justly compared with a still more famous 
 delusion of the Roman lawyers, they believed com- 
 petition-rents to be, in some sense or other, more 
 natural than customary rents, and to competition- 
 rents only they gave the name^Rent, unqualified by 
 an epithet. This peculiar and (as it seems tome) im- 
 proper selection of a cardinal term is not probably of 
 much importance in this country ; but few sufficiently 
 instructed persons, who have followed recent Indian 
 controversies, can have failed to observe that almost 
 all the obscurities of mental apprehension which are 
 implied in the use of Nature as a juridical terni clus- 
 ter in India round the word, Rent. Still there was 
 too much around the earliest Anglo-Indian observers 
 which seemed inconsistent with (to say the least) the 
 universal occurrence in India of the English relation 
 between landlord and tenant-at-will for them to 
 assume unhesitatingly that the absolute ownership of 
 the soil was vested in some one class, and that the rest 
 of the cultivating community were simply connected 
 with the proprietary class by paying for the use of 
 the land whatever the members of that class saw fit to 
 demand. They did assume that the persons who were 
 acknowledged to be entitled to have the highest rights 
 in the soil, whether within the community or without 
 
184 THE PROTECTED TENANTS. LECT. vi. 
 
 it, bore a very close analogy to English landowners in 
 fee simple. They further took for granted that the 
 great mass of the cultivators were tenants -at- will of 
 the English pattern. But they gave effect to their 
 doubts of the correctness of these analogies by creating 
 between landowner and tenant- at- will an intermediate 
 class of protected, or, as they are called in the East, 
 4 occupancy ' tenants. When, under the government 
 dispossessed by the British, any cultivator was shown 
 to have held his land by himself or his ancestors for 
 a certain space of time, he was declared to be entitled 
 to a qualified protection against eviction and rack-rent. 
 By a recent legislative enactment this principle has 
 been generalised, and any cultivator who even under 
 the British Government has been undisturbed by his 
 landlord for the like period is invested, in some parts of 
 India, with the same protection. But at first the rule, 
 of which the origin is uncertain, was probably intended 
 as a rough way of determining a class which in some 
 sense or other was included within the village com- 
 munity. The exact period of occupation selected 
 was twelve years; the longest time during which it 
 seems to have been thought safe to carry back into 
 native society an enquiry upon legal evidence into a 
 question of fact. 
 
 On this rule the most vehement of controversies 
 has arisen. It is strongly asserted by a school of 
 observation and theory which has many adherents in 
 
LFCT. vi. INDIAN AND ENGLISH FORMS OF PROPERTY. 185 
 
 the present day that close examination of village 
 communities does not show that mere lapse of time 
 conferred any rights on one section of the group as 
 against another. In Indian disputes, as in many 
 others, the advantage is at first with destructive 
 criticism, and, upon the evidence which I have seen, 
 I am on the whole disposed to think that the school 
 of which I am speaking is in the right. The errors 
 into which it has fallen appear to me to begin at a 
 subsequent point. Some of its adherents seem to 
 think that a certain correspondence being assumed to 
 exist between a certain Indian class and owners of 
 land in England, and a certain correspondence being 
 further assumed between another Indian class and 
 English tenants, the inference inevitably follows that 
 the correspondence must be so close as to imply all 
 the incidents of the English relation of landlord and 
 tenant-at-will. But the Indian forms of property in ^ 
 land are founded on the Village Group as the proprie- 
 tary unit ; the English forms are based partly on 
 the Manorial Group and partly on a state of things 
 produced by its disintegration systems historically 
 so wide apart can hardly be used even to illustrate 
 one another. There are other adherents of the same 
 opinion who, conscious perhaps of the true difficulty, 
 attempt to get over it by asking the peasants belong- 
 ing to the village community what their customs are 
 as to eviction, rack-rent, and the relation of landlord 
 
186 TRUE CHARACTER OF PROBLEM. LECT. vi. 
 
 and tenant. Now, if there were the faintest reason 
 for supposing that there ever existed in India an 
 open market for land and a system of competition- 
 rents, such an enquiry would be of great importance, 
 for unquestionably cultivating village groups are 
 highly retentive of tradition. But, eviction being 
 admitted to have been rarely (if ever) practised, and 
 it being allowed that rent was never paid for the use 
 of land or (if paid) was not paid on any scale which 
 indicated its principle, to ask a peasant whether a 
 given class of tenants ought or ought not to be 
 subject to rack-rent and eviction is to put to a very 
 ignorant man a question at once extremely complex, 
 extremely ambiguous, and only capable of being 
 answered (so far as it can be answered at all) after a 
 careful examination of the parallel phenomena of 
 many different ancient systems of law. The reference 
 to the peasantry is doubtless honestly made, but it is 
 an appeal to the least competent of tribunals. 
 
 The question, What vestiges remain of ancient ideas 
 as to the circumstances under which the highest ob- 
 tainable rent should be demanded for the use of land, 
 is of some interest to the student of legal antiquities ; 
 although even in this place it is not a question which 
 can be very confidently answered. The most distinct 
 ancient rule which I have discovered occurs in the 
 first of the official volumes containing the version of 
 the Ancient Laws of Ireland published by the Irish 
 
LECT. vi. THE IRISH CLAX. 187 
 
 Government. ' The three rents/ it says, 4 are rack- 
 rent, from a person of a strange tribe a fair rent, : 
 from one of the tribe and the stipulated rent, which 
 is paid equally by the tribe and the strange tribe/ 
 (Senchus Mor, p. 159.) 
 
 This very much expresses the conclusion on the 
 subject which I have arrived at upon the less direct 
 evidence derived from a variety of quarters. The 
 Irish clan was apparently a group much more exten- 
 sive and of much looser structure than the Eastern 
 or Western village community ; it appears even to 
 have embraced persons who cannot be distinguished 
 from slaves. Yet from none of these (apart from 
 express agreement) could any rent be required but 
 a rent fair according to received ideas, or, in other 
 words, a customary rent. It was only when a person 
 totally unconnected with the clan by any of those 
 fictions explaining its miscellaneous composition which 
 were doubtless adopted by this (as by all other) primi- 
 tive groups when such a person came asking for 
 leave to occupy land, that the best bargain could be 
 made with him to which he could be got to submit. 
 ' Rack-rent ' is sometimes used as a dyslogistic ex- 
 pression for an extreme competition -rent ; but you 
 will see that ideas associated with competition-rents 
 in the economical sense have no relation whatever to 
 such a transaction. In a primitive society the person 
 who submits to extreme terms from one group is 
 
188 BACK-KENT PAID BY STRANGERS. LECT. vi. 
 
 pretty sure to be an outcast thrown on the world by 
 the breaking up and dispersion of some other group, 
 and the effect of giving him land on these terms is 
 not to bring him under the description of a tenant 
 as understood by the Economists, but to reduce him 
 to a condition resembling predial servitude. I need 
 hardly add that, in stating what seem to me the 
 circumstances under which a rack-rent could be de- 
 manded according to primitive ideas, I am merely 
 drawing an antiquarian inference, and expressing no 
 opinion whatever on the political expediency or other- 
 wise of limiting the claim of a landlord to rent. 
 
 The enquiry into these primitive ideas may also 
 be conducted by another route, which I will follow for 
 a brief space on account of some curious collateral 
 questions which it opens. Let me begin by saying 
 that the remains of ancient Roman law forcibly 
 suggest that in ancient times transfers of the pos- 
 session of land were extremely rare. The formalities 
 which accompanied them were of extraordinary cum- 
 brousness, and these formalities had to be strictly 
 observed not only in transactions which we should 
 call Conveyances, but also in the transactions which 
 at a later date were styled Contracts. The ancient 
 law further gives reason to think that the letting and 
 hiring of movable property for a consideration was 
 unknown or uncommon. The oldest Roman contracts 
 systematically treated of are the Real Contracts, and 
 
LECT. vi. PRIMITIVE NOTIONS AS TO PRICE. 189 
 
 to this class belongs Loan; but the loans there spoken 
 of are gratuitous, and the rules laid down grew 
 probably out of the practice of lending from house 
 to house the small articles of movable property in 
 use among a primitive people. There is some inte- I 
 rest in observing the plentifulness of these rules in 
 a system so comparatively mature as Eoman law 
 when contrasted with their scantiness in English 
 jurisprudence. The explanation seems to be that the 
 abundant manufacture nowadays of all articles of 
 personal property causes them to be much oftener 
 owned than lent, so that minute rules on the subject 
 of gratuitous loans become superfluous. 
 
 It would almost certainly be labour wasted to 
 search among the records of ancient law for any trace 
 of the ideas which we associate with competition- 
 rents. But if land in primitive times was very rarely 
 sold or (in our sense) rented, and if movable pro- ... 
 perty was very rarely hired for money, it is at least 
 probable that from a very early date movables were 
 purchased. It does not appear to me quite an hope- 
 less undertaking to trace the gradual development 
 of the notions connected with Price ; and here, if at 
 all, we shall be able to follow the early history of 
 bargaining or competition. Nor, if we can discover 
 any primitive ideas on the point, need we hesitate to 
 
 aiisfer them from the sale of movables to the com- 
 
 : 
 
 H1 
 
 tition-rent of land. The Roman lawyers remark 
 
100 EARLY MEASURE OF PRICE. LECT. vi. 
 
 of the two contracts called Emptio Venditio, or Sale 
 for Price, and Locatio Conductio, or Hiring for Con- 
 sideration, that they are substantially the same, and 
 that the rules which govern one may be applied to 
 the other. The observation seems to me not only 
 true, but one which it is important to keep in mind. 
 You cannot indeed without forcing language speak 
 of the Contract of Sale in terms of the Contract of 
 Letting and Hiring; but the converse is easy, and 
 there is no incorrectness in speaking of the Letting 
 and Hiring of Land as a Sale for a period of time, 
 with the price spread over that period. I must con- 
 fess I could wish that in some famous books this 
 simple truth had been kept in view. It has several 
 times occurred to me, in reading treatises on Political 
 Economy, that if the writer had always recollected 
 that a competition-rent is after all nothing but price 
 payable by instalments, much unnecessarily mys- 
 terious language might have been spared and some 
 (to say the least) doubtful theories as to the origin 
 of rent might have been avoided. The value of this 
 impression anybody can verify for himself. 
 
 What, in a primitive society, is the measure of 
 Price ? It can only be called Custom. Although in 
 the East influences destructive of the primitive notion 
 are actively at work, yet in the more retired villages 
 the artificer who plies an ancient trade still sells his 
 wares for the customary prices, and would always 
 
LECT. vi. BASIS OF POLITICAL ECONOMY. 191 
 
 change their quality rather than their price a prefer- 
 ence, I must remark, which has now and then ex- 
 posed the natives of India to imputations of fraud not 
 wholly deserved. And in the West, even in our own 
 country, there are traces of the same strong feeling 
 that price should be determined by Custom in the 
 long series of royal, parliamentary, and municipal 
 attempts to fix prices by tariff. Such attempts are 
 justly condemned as false political economy, but it is 
 sometimes forgotten that false political economy may 
 be very instructive history. 
 
 What, then, is the origin of the proposition on 
 which the whole of the great deductive science of 
 Political Economy is based ? No good political econo- 
 mist asserts that, as matter of fact, everybody asks 
 for his saleable commodities the highest obtainable 
 price ; still less does he assert that everybody ought 
 to ask it. What he lays down is that the practice of 
 asking it is sufficiently general to make it safe for 
 practical purposes to treat it as universal. When, 
 however, we are discussing the ideas of very primitive 
 societies, it is extremely difficult to draw the line 
 between law, morality, and fact. It is of the very 
 essence of Custom, and this indeed chiefly explains its 
 strength, that men do not clearly distinguish between 
 their actions and their duties what they ought to do 
 
 what they always have done, and they do it. 
 
 What, then, is the origin of the rule that a man 
 
192 THE MARKET. LECT. vr. 
 
 may ask or, if you choose so to put it, that he does 
 ask the highest available price for the wares which 
 ,,he has to sell? I think that it is in the beginning a 
 Rule of the Market, and that it has come to prevail 
 'in proportion to the spread of ideas originating in 
 the Market. This indeed would be a proposition of 
 little value, if I did not go farther. You are well 
 aware that the fundamental proposition of Political 
 economy is often put as the rule of buying in the 
 cheapest market and selling in the dearest. But 
 since the primitive period the character of markets 
 has changed almost as much as that of society itself. 
 In order to understand what a market originally was, 
 you must try to picture to yourselves a territory 
 occupied by village communities, self-acting and as 
 yet autonomous, each cultivating its arable land in 
 the middle of its waste, and each, I fear I must add, 
 at perpetual war with its neighbour. But at several 
 points, points probably where the domains of two or 
 three villages converged, there appear to have been 
 spaces of what we should now call neutral ground. 
 These were the Markets. They were probably the 
 only places at which the members of the different pri- 
 mitive groups met for any purpose except warfare, and 
 the persons who came to them were doubtless at first 
 persons specially empowered to exchange the produce 
 and manufactures of one little village community for 
 those of another. Sir John Lubbock in his recent 
 
LECT. vr. MARKETS AND NEUTRALITY. 193 
 
 volume on the 4 Origin of Civilisation,' has some 
 interesting remarks on the traces which remain of 
 the very ancient association between Markets and 
 Neutrality (p. 205) ; nor though I have not now 
 an opportunity of following up the train of thought 
 can I help observing that there is an historical 
 connection of the utmost importance to the moderns 
 between the two, since the Jus Gentium of the 
 Roman Praetor, which was in part originally a 
 Market Law, is the undoubted parent of our In- 
 ternational Law. But, besides the notion of neu- 
 trality, another idea was anciently associated with 
 markets. This was the idea of sharp practice 
 and hard bargaining. The three ideas seem all 
 blended in the attributes of the god Hermes or 
 Mercury at once the god of boundaries, the prince 
 of messengers or ambassadors, and the patron of 
 trade, of cheating, and of thieves. 
 
 The Market was then the space of neutral 
 ground in which, under the ancient constitution of 
 society, the members of the different autonomous 
 proprietary groups met in safety and bought and 
 sold unshackled by customary rule. Here, it seems 
 to me, the notion of a man's right to get the best 
 prica for his wares took its rise, and hence it spread 
 over the world. Market Law, I should here observe, 
 has had a great fortune in legal history. The Jus 
 Gentium of the Romans, though doubtless intended 
 
 o 
 
194 INFLUENCE OF MARKET LAW. LECT. vi. 
 
 in part to adjust the relations of Roman citizens to a 
 subject population, grew also in part out of commer- 
 cial exigencies, and the Roman Jus Gentium was 
 gradually sublimated into a moral theory which, 
 among theories not laying claim to religious sanction, 
 had no rival in the world till the ethical doctrines of 
 Bentham made their appearance. If, however, I could 
 venture to detain you with a discussion on technical 
 law, I could easily prove that Market Law has long 
 exercised and still exercises a dissolving and trans- 
 forming influence over the very class of rules which 
 are profoundly modifying the more rigid and archaic 
 branches of jurisprudence. The Law of Personal or 
 Movable Property tends to absorb the Law of Land or 
 of Immovable Property, but the Law of Movable 
 Property tends steadily to assimilate itself to the Law 
 of the Market. The wish to establish as law that 
 which is commercially expedient is plainly visible in 
 the recent decisions of English courts of justice ; a 
 whole group of legal maxims having their origin in 
 the law of the market (of which the rule of caveat 
 emptor is the most significant) are growing at the ex- 
 pense of all others which compete with them; and there 
 is a steady tendency in English legislation to engraft 
 new rules, as from time to time they are developed 
 by traders, upon the commercial law of England. 
 Finally, the most recent of Indian disputes is whether 
 native opinion admits of including in the Civil Code of 
 the country the rule that a man who in good faith 
 
LECT. vi. SENTIMENTS ADVERSE TO POLITICAL ECONOMY. 195 
 
 has purchased goods of another shall have them, 
 though the seller had really no title to them and 
 though the owner claim them. This is in reality an 
 extreme rule of Market Law, and it is often described 
 in fact as the rule of Market Overt, since it only obtains 
 in England where that description of market exists. 
 
 Political Economists often complain of the vague 
 moral sentiments which obstruct the complete recep- 
 tion of their principles. It seems to me that the half- 
 conscious repulsions which men feel to doctrines 
 which they do not deny might often be examined 
 with more profit than is usually supposed. They will 
 sometimes be found to be the reflection of an older 
 order of ideas. Much of moral opinion is no doubt in 
 advance of law, for it is the fruit of religious or philo- 
 sophical theories having a different origin from law 
 and not yet incorporated with it. But a good deal of 
 it seems to me to preserve rules of conduct which, 
 though expelled from law, linger in sentiment or 
 practice. The repeal of the Usury Laws has made it 
 lawful to take any rate of interest for money, yet 
 the taking of usurious interest is not thought to be 
 respectable, and our Courts of Equity have evidently 
 great difficulty in bringing themselves to a complete 
 recognition of the new principle. Bearing this exam- 
 ple in mind, you may not think it an idle question if 
 I ask, What is the real origin of the feeling that it is 
 not creditable to drive a hard bargain with a near 
 
 o 2 
 
196 PRIMITIVE COMMERCIAL PRINCIPLES. LECT. vi. 
 
 relative or a friend ? It can hardly be said that there 
 is any rule of morality to forbid it. The feeling seems 
 to me to bear the traces of the old notion that men 
 united in natural groups do not deal with one another 
 on principles of trade. The only natural group in 
 which men are now joined is the family ; and the only 
 bond of union resembling that of the family is that 
 which men create for themselves by friendship. It is 
 stated that there is the strongest repulsion among the 
 natives of India to that extreme rule of Market Law 
 which I described to you as proposed to be engrafted 
 on the civil code. The point is doubtful on the 
 evidence, but, considering the prevalence and vitality 
 of organised natural groups in India, the a priori 
 presumption is certainly in favour of the existence 
 of the alleged repugnance. 
 
 All indications seem to me therefore to point to the 
 same conclusion. Men united in those groups out of 
 which modern society has grown do not trade together 
 on what I may call for shortness commercial prin- 
 ciples. The general proposition which is the basis of 
 Political Economy, made its first approach to truth 
 under the only circumstances which admitted of men 
 meeting at arm's length, not as members of the same 
 group, but as strangers. Gradually the assumption of 
 the right to get the best price has penetrated into the 
 interior of these groups, but it is never completely 
 received so long as the bond of connection between 
 
LECT. vi. INFLUENCE OF CARRYING TRADE. 197 
 
 man and man is assumed to be that of family or clan- 
 connection. The rule only triumphs when the primi- 
 tive community is in ruins. What are the causes 
 which have generalised a Rule of the Market until it 
 has been supposed to express an original and funda- 
 mental tendency of human nature, it is impossible to 
 state fully, so multifarious have they been. Every- 
 thing which has helped to convert society into a col- 
 lection of individuals from being an assemblage of 
 families, has helped to add to the truth of the assertion 
 made of human nature by the Political Economists. 
 One cause may be assigned, after observation of the 
 East, in the substitution of caravan or carrying trade 
 for the frequentation of markets. When the first 
 system grows up, the merchant, often to some extent 
 invested with the privileges of an ambassador, carries 
 his goods from the place of production, stores them in 
 local entrep6ts, and sells them on the principles of the 
 Market. You will here call to mind the curious fact, 
 stated to me on high authority, that the Grain-Dealer, 
 though a man of great consequence and wealth, is 
 often excluded in India from village or municipal 
 privileges to which the small tradesmen whose busi- 
 ness is an ancient appendage of the community are 
 freely admitted. I am also informed that the natives 
 of India will often pay willingly a competition price 
 for one article, when they would think it unjust to be 
 asked more than a customary price for another. A 
 

 198 PRICE AND KENT. LECT. vi. 
 
 man who will pay the price of the day for corn col- 
 lected from all parts of India, or for cotton- cloth from 
 England, will complain (so I am told) if he is asked 
 an unaccustomed price for a shoe. 
 
 If the notion of getting the best price for movable 
 property has only crept to reception by insensible 
 steps, it is all but certain that the idea of taking the 
 highest obtainable rent for land is relatively of very 
 modern origin. The rent of land corresponds to the 
 price of goods, but doubtless was infinitely slower in 
 conforming to economical law, since the impression of 
 a brotherhood in the ownership of land still survived 
 when goods had long since become the subject of 
 individual property. So strong is the presumption 
 against the existence of competition rents in a 
 country peopled by village communities that it 
 would require the very clearest evidence to con- 
 vince me that they were anywhere found under 
 native conditions of society, but the evidence (as I 
 told you) is remarkably unconvincing. I of course 
 admit that certain classes of people are so slightly 
 connected with the village community that, under 
 the new conditions introduced into India by the 
 English, their rents would probably have become 
 competition rents. The problem, however, presented 
 by these classes is not antiquarian but political. It 
 is identical with that terrible problem of pauperism 
 which began to press on English statesmen as soon 
 

 LECT. vr. MARKET FOR LAND IN ENGLAND. 199 
 
 as the old English cultivating groups began distinctly 
 to fall to pieces. In India the solution will be far 
 more difficult than it has proved here, since the 
 country has little mineral fuel and can have no 
 manufactures on a scale to occupy a large surplus 
 population; and emigration for the most part is 
 regarded as mortal sin. 
 
 The right to take the highest obtainable rent for 
 land is, as a matter of fact and as a matter of 
 morality, a right derived from a rule of the market. 
 Both the explanation and the justification of the 
 exercise of the right in England and Scotland is that 
 in these countries there really is a market for land. 
 Yet it is notorious that, in England at all events, 
 land is not universally rackrented. But where is it 
 that the theoretical right is not exercised? It is 
 substantially true that, where the manorial groups 
 substituted for the old village groups survive, there 
 are no rackrents. What is sometimes called the 
 feudal feeling has much in common with the old 
 feeling of brotherhood which forbade hard bargains, 
 though like much else it has passed from the collective 
 community to the modern representative of its auto-^ 
 cratic chieftain. Even in England the archaic rules 
 I have been describing have not yet quite lost their 
 authority. 
 
 Here I conclude the Lectures of the Term. Their 
 chief object, as I have repeatedly stated, has been to 
 
200 NEW INFORMATION REQUIRED. LECT. vi. 
 
 establish a connection between the results of Indian 
 experience and observation and the conclusions 
 arrived at by German and English learning. But 
 another purpose will have been served if some of 
 those who have attended here are induced to help in 
 adding to our knowledge of ancient English tenures. 
 In spite of the information collected by the Select 
 Committee of 1844, we know far too little of Com- 
 mon and Commonable fields, of Lammas lands, 
 Common meadows, and limited rights over Wastes, 
 and generally of manorial customs. Yet forms of 
 property, savouring of the old collective enjoy- 
 ment, seem to occur so frequently that almost any- 
 body has the opportunity of collecting facts which 
 may have an important bearing on our enquiry. 
 The speculative interest of the subject I need scarcely 
 enlarge upon, but these ancient joint-holdings have 
 a farther interest as constituting not only some of 
 the oldest, but some of the most lasting phenomena 
 of English history. It is a striking remark of Nasse 
 that the English common field system bears the marks 
 of an exotic origin. In the time of the ruder agri- 
 culture which has now given way to scientific tillage, 
 the natural fitness of the soil of England was for grass 
 farming, and the tendency to resort to it as the most 
 profitable form of cultivation was apparently irresis- 
 tible, and out of it grew some very serious agrarian 
 movements. The three-field system was therefore 
 brought by our Teutonic ancestors from some drier 
 
LECT. vi. VILLAGE-COMMUNITIES IN AMERICA. 201 
 
 region of the Continent. It is a very remarkable 
 fact that the earliest English emigrants to North 
 America who, you know, belonged principally to 
 the class of yeomanry organised themselves at first 
 in village -communities for purposes of cultivation. 
 When a town was organised, the process was that 
 ' the General Court granted a tract of land to a com- 
 pany of persons. The land was first held by the 
 company as property in common/ (Palfrey, ; History 
 of New England/ ii. 13.) An American commentator 
 on this passage adds : ' The company of proprietors 
 proceeded to divide the land by assigning first house- 
 lots (in Marlborough from fifteen to twenty acres), 
 then tracts of meadow land, and in some cases 
 mineral land, i.e. where bog-iron ore was found. 
 Pasture and woodland remained in common as the 
 property of the company, but a law of the General 
 Court in 1660 provided that "hereafter no cottage 
 or dwelling-house be admitted to the privilege of 
 commonage for wood, timber, or herbage but such 
 as are already in being, or shall be erected with the 
 consent of the town." From that time the com- 
 moners appear as a kind of aristocracy, and the 
 commons were gradually divided up. 7 This is not 
 only a tolerably exact account of the ancient Euro- 
 pean and existing Indian village -community, but it is 
 also a history of its natural development, where the 
 causes which turn it into a manorial group are absent, 
 and of its ultimate dissolution. 
 
APPENDICES. 
 
 :*" 
 
APPENDIX I. 1 
 
 MINUTE EECOKDED ON OCTOBER 1, 1868. 
 
 THE first conclusion which I draw (from a Paper * showing 
 in each case the authority at whose suggestion the Acts 
 of the Governor-General in Council, from No. I. of 1865, 
 to No. XXXVIII. of 1867, were passed') is, that next 
 to no legislation originates with the Supreme Government 
 of India. The only exceptions to complete inaction in 
 this respect which are worth mentioning, occur in the case 
 of Taxing Acts though, as there is often much communi- 
 cation with the Provincial Governments on the subject of 
 these Acts, the exception is only partial and in that of a 
 few Acts adapting portions of English Statute law to India. 
 Former Indian Legislatures introduced into India certain 
 modern English Statutes, limiting their operation to 
 * cases governed by English law.' The most recent Eng- 
 lish amendments of the Statutes were, however, not fol- 
 lowed in this country until they were embodied in Indian 
 Acts by my predecessor, Mr. Kitchie, and myself, in accord- 
 ance with the general wish of the Bench and Bar of the 
 High Courts. Examples of this sort of legislation are Acts 
 XXVII. and XXVIII. of 1866, which only apply to cases 
 governed by English law.' 
 
 The second and much the most important in^eijference 
 which the Paper appears to me to suggest is, that the 
 great bulk of the legislation of the Supreme Council is 
 
 1 Vide p. 70. 
 
206 APPENDIX I. 
 
 attributable to its being the Local Legislature of many 
 Indian Provinces. At the present moment, the Council 
 of the Governor- General for making Laws and Regulations 
 is the sole Local Legislature for the North-Western Pro- 
 vinces, for the Punjab, for Oudh, for the Central Provinces, 
 for British Burmah, for the petty Province of Coorg, and 
 for many small patches of territory which are scattered 
 among the Native States. Moreover, it necessarily divides 
 the legislation of Bengal Proper, Madras, and Bombay 
 with the local Councils of those Provinces. For, under 
 the provisions of the High Court's Act of 1861, it is only 
 the Supreme Legislature which can alter or abridge the 
 jurisdiction of the High Courts, and as this jurisdiction is 
 very wide and far-reaching, the effect is to throw on the 
 Governor-General's Council no small amount of legislation 
 which would naturally fall on the Local Legislatures. 
 Occasionally, too, the convenience of having but one law 
 for two Provinces, of which one has a Council and the 
 other has none, induces the Supreme Government to legis- 
 late for both, generally at the request of both their Govern- 
 ments. 
 
 Now these Provinces for which the Supreme Council is 
 the joint or sole Legislature, exhibit very wide diversities. 
 Some of these differences are owing to distinctions of race, 
 others to differences of land-law, others to the unequal 
 spread of education. Not only are the original diversities 
 between the various populations of India believed nowa- 
 days to be much greater than they were once thought to 
 be, but it may be questioned whether, for the present at 
 all events, they are not rather increasing than diminishing 
 under the influence of British Government. That in- 
 fluence has no doubt thrown all India more or less into 
 a state of ferment and progress, but the rate of progress 
 is very unequal and irregular. It is growing more and 
 more difficult to bring the population of two or more Pro- 
 
APPENDIX I. 207 
 
 vinces under any one law, which goes closely home to 
 their daily life and habits. 
 
 Not only, then, are we the Local Legislature of a great 
 many Provinces, in the sense of being the only authority 
 which can legislate for them on all or certain subjects, but 
 the condition of India is more and more forcing us to act 
 as if we were a Local Legislature, of which the powers do 
 not extend beyond the Province for which we are legisla- 
 ting. The real proof, therefore, of our over-legislation 
 would consist, not in showing that we pass between thirty 
 and forty Acts in every year, but in demonstrating that 
 we apply too many new laws to each or to some one of the 
 Provinces subject to us. Now, I will take the most im- 
 portant of the territories for which we are exclusively the 
 Legislature the North- Western Provinces ; and I will 
 take the year in which, judging from the Paper, there has 
 been most North-Western legislation the year 1867. 
 The amount does not seem to have been very great or 
 serious. I find that in 1867, if Taxing Acts be excluded, 
 the North- West was affected in common with all or other 
 parts of India by an Act repressive of Public Gambling 
 (No. III.) ; by an Act for the Registration of Printing 
 Presses (No. XXY.) ; and by five Acts (IV., VII., VIII., 
 X., and XXXIII.) ; having the most insignificant tech- 
 nical objects. I find that it was exclusively affected by 
 an Act (I.) empowering its Government to levy certain 
 tolls on the Ganges ; by an Act (XXII.) for the Regula- 
 tion of Native Inns ; by an Act (XVIII.) giving a legal 
 constitution to the Courts already established in a single 
 district, and by an Act (XXVIII.) confirming the sen- 
 tences of certain petty Criminal Courts already existing. 
 I find further that, in the same year, 1867, the English 
 Parliament passed 85 Public General Acts applicable to 
 England and Wales, of which one was the Representation 
 of the People Act. The number of Local and Personal 
 
208 APPENDIX I. 
 
 Acts passed in the same year was 188. All this legisla- 
 tion too came, it must be remembered, on the back of a 
 vast mass of statute-law, compared with which all the 
 written law of all India is the merest trifle. Now the 
 population of England and Wales is rather over 20 mil- 
 lions, that of the North- Western Provinces is supposed to 
 be above 30 millions. No trustworthy comparison can be 
 instituted between the two countries ; but, regard being 
 had to their condition thirty years ago, it may be doubted 
 whether, in respect of opinions, ideas, habits, and wants, 
 there has not been more change during thirty years in the 
 North- West than in England and Wales. 
 
 A third inference which the Paper suggests is, that our 
 legislation scarcely ever interferes, even in the minutest 
 degree, with Private Eights, whether derived from usage 
 or from express law. It has been said by a high authority 
 that the Indian Legislature should confine itself to the 
 amendment of Adjective Law, leaving Substantive Law 
 to the Indian Law Commissioners. It is meant no doubt 
 that the Indian Legislature should only occupy itself, 
 proprio motu, with improvements in police, in administra- 
 tion, in the mechanism and procedure of courts of justice. 
 This proposition appears to me a very reasonable one in 
 the main, but it is nearly an exact description of the 
 character of our legislation. We do not meddle with 
 Private Eights ; we only create Official Duties. No 
 doubt Act X. of 1865 and Act XV. of 1866 do consider- 
 ably modify Private Eights, but the first is a chapter and 
 the last a section of the Civil Code framed in England by 
 the Law Commissioners. 
 
 The Paper does not of course express the urgency with 
 which the measures which it names are pressed on us by 
 their originators the Local Governments. My Colleagues 
 are, I believe, aware that the earnestness with which these 
 Governments demand legislation, as absolutely necessary 
 
APPENDIX I. 209 
 
 for the discharge of their duties to the people, is 
 sometimes very remarkable. I am very far indeed from 
 believing that, as they are now constituted, they think 
 the Supreme Council precipitate in legislation. I could 
 at this moment name half a dozen instances in which the 
 present Lieutenant-Governors of Bengal and the North- 
 West deem the hesitation of the Government of India in 
 recommending particular enactments to the Legislature 
 unnecessary and unjustifiable. 
 
 While it does not seem to me open to doubt that the 
 Government of India is entirely free from the charge of 
 initiating legislation in too great abundance, it may 
 nevertheless be said that we ought to oppose a firmer 
 resistance to the demands of the Local Governments and 
 other authorities for legislative measures. It seems 
 desirable therefore that I should say something of the 
 influences which prompt these Governments, and which 
 constitute the causes of the increase in Indian legislation. 
 I must premise that I do not propose to dwell on causes 
 of great generality. Most people would admit that, for 
 good or for evil, the country is changing rapidly, though 
 not at uniform speed. Opinion, belief, usage, and taste 
 are obviously undergoing more or less modification every- 
 where. The standard of good government before the 
 minds of officials is constantly shifting, perhaps it is rising. 
 These phenomena are doubtless among the ultimate causes 
 of legislation; but, unless more special causes are as- 
 signed, the explanation will never be satisfactory to many 
 minds. 
 
 I will first specify a cause which is in itself of a merely 
 formal nature, but which still contributes greatly for the 
 time to the necessity for legislation. This is the effect of 
 the Indian Councils' Act of 1861 upon the system which 
 existed before that date in the Non-Regulation Provinces. 
 It is well known that, in any strict sense of the word, the 
 
 p 
 
210 APPENDIX 1. 
 
 Executive Government legislated for those Provinces up to 
 1861. The orders, instructions, circulars, and rules for 
 the guidance of officers which it constantly issued, were, 
 to a certain extent, essentially of a legislative character, 
 but then they were scarcely ever in a legislative form. It 
 is not matter of surprise that this should have been so, 
 for the authority prescribing the rule immediately modified 
 or explained it, if it gave rise to any inconvenience, or was 
 found to be ambiguous. But the system (of which the 
 legality had long been doubted) was destroyed by the 
 Indian Councils' Act. No legislative power now exists 
 in India which is not- derived from this Statute ; but to 
 prevent a wholesale cancellation of essentially legislative 
 rules, the 25th Section gave the force of law to all rules 
 made previously for Non-Regulation provinces by or under 
 the authority of the Government of India, or of a Lieute- 
 nant-Governor. By this provision, an enormous and 
 most miscellaneous mass of rules, clothed to a great 
 extent in general and popular language, was suddenly 
 established as law, and invested with solidity and un- 
 changeableness to a degree which its authors had never 
 contemplated. The difficulty of ascertaining what is law 
 and what is not in the former Non-Regulation Provinces, 
 is really incredible. I have, for instance, been seriously 
 in doubt whether a particular clause of a Circular in- 
 tended to prescribe a rule or to convey a sarcasm. The 
 necessity for authoritatively declaring rules of this kind, 
 for putting them into precise language, for amending 
 them when their policy is doubted, or when tried by the 
 severer judicial tests now applied to them, they give 
 different results from those intended by their authors, is 
 among the most imperative causes of legislation. Such 
 legislation will, however, diminish as the process of 
 simplifying and declaring these rules goes on, and must 
 ultimately come to a close. 
 
APPENDIX I. 211 
 
 I now come to springs of legislation which appear to 
 increase in activity rather than otherwise. First among 
 these I do not hesitate to place the growing influence of 
 courts of justice and of legal practitioners. Our Courts 
 are becoming more careful of precise rule both at the top 
 and at the bottom. The more careful legal education of 
 the young civilians and of the younger Native judges, 
 diffuses the habit of precision from below ; the High 
 Courts, in the exercise of their powers of supervision, are 
 more and more insisting on exactness from above. 
 
 An even more powerful influence is the immense mul- 
 tiplication of legal practitioners in the country. I am 
 not now speaking of European practitioners, though their 
 number has greatly increased of late, and though they 
 penetrate much further into the Mofussil than of old. 
 The great addition, however, is to the numbers and in- 
 fluence of the native Bar. Practically a young educated 
 Native, pretending to anything above a clerkship, adopts 
 one of two occupations either he goes into the service 
 of Government, or he joins the Native Bar. I am told, 
 and I believe it to be true, that the Bar is getting to be 
 more and more preferred to Government service by the 
 educated youth of the country, both on the score of its 
 gainfulness and on the score of its independence. 
 
 Now the law of India is at present, and probably will 
 long continue to be, in a state which furnishes opportunity 
 for the suggestion of doubts almost without limit. The 
 older written law of India (the Regulations and earlier 
 Acts) is declared in language which, judged by modern 
 requirements, must be called popular. The authoritative 
 Native treatises on law are so vague that, from many of 
 the dicta embodied by them, almost any conclusion can 
 be drawn. More than that, there are, as the Indian Law 
 Commissioners have pointed out, vast gaps and interspaces 
 in the Substantive Law of India; there are subjects on 
 
 p 2 
 
212 APPENDIX I. 
 
 which no rules exist, and the rules actually applied by 
 the Courts are taken, a good deal at haphazard, from 
 popular text-books of English law. Such a condition of 
 things is a mine of legal difficulty. The Courts are getting 
 ever more rigid in their demand of legal warrant for the 
 actions of all men, officials included. The lawyers who 
 practise before them are getting more and more astute, 
 and render the difficulty of pointing to such legal warrant 
 day by day greater. And unquestionably the Natives of 
 India, living in the constant presence of courts and 
 lawyers, are growing every day less disposed to regard an 
 act or order which they dislike as an unkindly dispensa- 
 tion of Providence, which must be submitted to with all 
 the patience at their command. If British rule is doing 
 /-nothing else, it is steadily communicating to the Native 
 ! the ...consciousness of positive rights, not dependent on 
 Opinion- or usage, but capable of being actively enforced. 
 
 It is not, I think, difficult to see how this state of the 
 law and this condition of the Courts and Bar renders it 
 necessary for the Local Governments, as being responsible 
 for the efficiency of their administration, to press for 
 legislation. The nature of the necessity can best be 
 judged by considering what would be the consequences 
 if there were no legislation, or not enough. A vast variety 
 of points would be unsettled until the highest tribunals 
 had the opportunity of deciding them, and the government 
 of the country would be to a great extent handed over to 
 the High Courts, or to other Courts of Appeal. No 
 court of justice, however, can pay other than incidental 
 regard to considerations of expediency, and the result 
 would be that the country would be governed on principles 
 which have no necessary relation to policy or statesmanship. 
 It is the justification of legislation that it settles difficulties 
 as soon as they arise, and settles them upon considerations 
 which a court of justice is obliged to leave out of sight. 
 
APPENDIX I. -213 
 
 The consequences of having India to be governed by 
 the courts would, in my judgment, be most disastrous. 
 The bolder sort of officials would, I think, go on without 
 regard to legal rule, until something like the deadlock 
 would be reached with which we are about to deal in the 
 Punjab. But the great majority of administrative officials, 
 whether weaker or less reckless, would observe a caution 
 and hesitation for which the doubtful state of the law 
 could always be pleaded. There would, in fact, be a para- 
 lysis of administration throughout the country. 
 
 The fact established by the Paper, that the duties 
 created by Indian legislation are almost entirely official 
 duties, explains the dislike of legislation which occasion- 
 ally shows itself here and there in India. I must confess 
 that I have always believed the feeling, so far as it exists, 
 to be official, and to correspond very closely to the re- 
 pugnance which most lawyers feel to having the most 
 disorderly branch of case-law superseded by the simplest 
 and best drawn of statutes. The truth is, that nobody 
 likes innovations on knowledge which he has once ac- 
 quired with difficulty. If there was one legislative change 
 which seemed at the time to be more rebelled against than 
 another, it was the supersession of the former Civil Pro- 
 cedure of the Punjab by the Code of Civil Procedure. 
 The Civil Procedure of the Punjab had originally been 
 exceedingly simple, and far better suited to the country 
 than the then existing procedure of the Regulation Pro- 
 vinces. But two years ago it had become so overlaid by 
 explanations and modifications conveyed in Circular 
 orders, that I do not hesitate to pronounce it as uncertain 
 and difficult a body of rules as I ever attempted to study. 
 I can speak with confidence on the point ; for I came to 
 India strange both to the Code of Civil Procedure and to 
 the Civil Procedure of the Punjab, and, while the first has 
 always seemed to me nearly the simplest and clearest 
 
214 APPENDIX I. 
 
 system of the kind in the world, I must own I never felt 
 sure in any case what was the Punjab rule. The intro- 
 duction of the Code was, in fact, the merest act of justice 
 to the young generation of Punjab officials, yet the older 
 men spoke of the measure as if some ultra-technical body 
 of law were being forced on a service accustomed to courts 
 of primitive simplicity. 
 
 It must, on the other hand, be admitted that, in 
 creating new official duties by legislation, we probably in 
 some degree fetter official discretion. There is no doubt 
 a decay of discretionary administration throughout India ; 
 and, indeed, it may be said that in one sense there is now 
 not more, but much less, legislation in the country than 
 formerly ; for, strictly speaking, legislation takes place 
 every time a new rule is set to the people, and it may be 
 taken for granted that in earlier days Collectors and Com- 
 missioners changed their rules far oftener than does the 
 Legislature at present. The truth is, discretionary govern- 
 ment is inconsistent with the existence of regular courts 
 and trained lawyers, and, since these must be tolerated, 
 the proper course seems to me not to indulge in vague 
 condemnation of legislation, but to discover expedients by 
 which its tendency to hamper discretion may be mini- 
 mised. One of these may be found in the skilful drafting 
 of our laws in confining them as much as possible to 
 the statement of principles and of well-considered general 
 propositions, and in encumbering them as little as possible 
 with detail. Another may be pointed out in the extension 
 of the wholesale practice of conferring by our Acts on Local 
 Governments or other authorities the power of making 
 rules consistent with the Act a power in the exercise of 
 which they will be assisted by the Legislative Department 
 under a recent order of His Excellency. Lastly, but 
 principally, we may hope to mitigate the inconveniences 
 of legislation by the simplification of our legislative 
 
APPENDIX I. 215 
 
 machinery as applied to those less advanced parts of the 
 country where a large discretion must inevitably be vested 
 in the administrator. The power of easily altering rules 
 when they chafe, and of easily indemnifying officials when 
 they transgress rules in good faith, is urgently needed by 
 us in respect of the wilder territory of India. 
 
 While I admit that the abridgment of discretion by 
 written laws is to some extent an evil though, under the 
 actual circumstances of India, an inevitable evil I do not 
 admit the proposition which is sometimes advanced that 
 the Natives of India dislike the abridgment of official 
 discretion. This assertion seems to me not only unsup- 
 ported by any evidence, but to be contrary to all the 
 probabilities. It may be allowed that in some cases 
 discretionary government is absolutely necessary ; but 
 why should a people, which measures religious zeal and 
 personal rank and respectability by rigid adherence to 
 usage and custom, have a fancy for rapid changes in the 
 actions of its governors, and prefer a regimen of discretion 
 sometimes coming close upon caprice to a regimen of law? 
 I do not profess to know the Natives of this country as 
 well as others, but if they are to be judged by their 
 writings, they have no such preference. The educated 
 youth of India certainly affect a dislike of many things 
 which they do not care about, and pretend to many tastes 
 which they do not really share; but the repugnance which 
 they invariably profess for discretionary government has 
 always seemed to me genuinely hearty and sincere. 
 
216 
 
 APPENDIX II. 1 
 
 G. L. v. Maurer, Einleitung zur Geschichte der Mark-, Hof-, Dorf-, 
 und Stadt-Verfassung und der offentlichen Gewalt. Munchen. 
 
 G. L. v. Maurer, Geschichte der Dorfverfassung in Deutschland. 
 Erlangen. 
 
 G. L. v. Maurer, Geschichte der Frohnhofe, der Bauernhb'fe und der 
 Hofverfassung in Deutschland. Erlangen. 
 
 G. L. v. Maurer, Geschichte der Markenverfassung in Deutschland. 
 Erlangen. 
 
 G. L. v. Maurer, Geschichte der Stadteverfassung in Deutschland. 
 Erlangen. 
 
 E. Nasse, Ueber die mittelalterliche Feldgemeinschafl und die 
 Einhegungen des sechszehnten Jahrhunderts in England. 
 Bonn. 
 
 G. Landau, Die Territorien in Bezug auf ihre Bildung und ihre 
 Entwicklung. Hamburg. 
 
 G. Landau. Das Salgut. Kassel. 
 
 Ch. Lette, Die Vertheilung des Grundeigenthums in Zusammenhang 
 mit der Geschichte der Gesetzgebung und den Volkszustanden. 
 Berlin. 
 
 N. Kindlinger, Geschichte der deutschen Horigkeit, insbesondere 
 der sogenannten Leibeigenschaft. Berlin. 
 
 W. Gessner, Geschichtliche Entwickelung der gutsherrlichen und 
 bauerlichen Verhaltnisse Deutschlands, oder practische Ge- 
 schichte der deutschen Horigkeit. Berlin. 
 
 Von Haxthausen, Ueber die Agrarverfassung in Norddeutschland. 
 Berlin. 
 
 1 Vide Preface. 
 
'UHIV 
 
 INDEX. 
 
INDEX. 
 
 ACC 
 
 A CCOUNTANT, village, his im- 
 -*- portance in India, 125 
 Administrators, Indian, their fear of 
 
 altering native custom, 39 
 Agriculture, conditions of, in India 
 as compared with Northern and 
 Central Europe, 108. See Village 
 Communities 
 
 Arable Mark, existence of the, in the 
 Indian village community, 108. 
 See Village Communities 
 Austin, John, his view of jurispru- 
 dence, 4 
 
 "DENEFICES, origin and influence 
 
 J-J of, on feudalism, 132 
 
 Bengal, Lower, power of making a 
 will in, 40. Decay of the village 
 system in, 104. Lord Cornwallis's 
 land settlement of, 105, 153. Bad 
 reputation of the Zemindars of, as 
 landlords, 163 
 
 Blamire, Mr., adopts the popular 
 theory on landed property, 84 
 
 CALCUTTA, origin of the city of, 
 U 118 
 
 Carrying trade, influence of the, in 
 
 India, 197 
 Caste, real nature of, in India, 56, 
 
 57 
 
 CON 
 
 Cities, European, some probably 
 the Township Mark of Teutonic 
 villages, 118 
 
 Cities, Indian, causes of the growth 
 of villages into, 118. Origin of 
 the formation of Indian capitals, 
 119. The great deserted cities, 119 
 
 Civil courts in India, 34. Appeals 
 from the Settlement and Revenue 
 courts to the, 34. Difference be- 
 tween a High and a Chief court, 
 35. The Supreme courts and 
 their judicial powers, 36. Dismay 
 caused by the introduction of 
 English law, 38. Native and 
 English laws compared, 49 
 
 Clan society, the Celtic form of 
 family organisation, 156 
 
 Commercial principles, primitive, 
 196 
 
 Common, commonable, and common 
 fields, in England, 85. * Stint of 
 common,' 89. The Indian waste 
 or common land, 120, 121. Con- 
 troversy after 1857 as to waste 
 land in India, 121. Action of the 
 government respecting it, 122. 
 Exotic origin of the ancient three- 
 field English system, 200 
 
 Contract, not the source of law in 
 primitive communities, 110. De- 
 struction of the village system by 
 the obligations arising out of, 113 
 
220 
 
 INDEX. 
 
 CON 
 
 FRE 
 
 Conveyances, ancient, of land, 188 
 
 Cornwallis, Lord, his settlement of 
 Lower Bengal, 105, 153 
 
 Council, village, legislation of the, 
 116, 123. Sometimes superseded 
 by a Headman, 122 
 
 Court Baron, authority of the Lord 
 of the Manor in the, 134, 139 
 
 Court Leet, functions of the, 139, 
 140 
 
 Courts of Justice established by the 
 English in India, 71. None in 
 some of the semi-independent 
 native States, 71 
 
 Custom, stability of, in India, 9. 
 Slavery of Indians to, 13. Indian 
 administrators and native custom, 
 39. Attachment of an Oriental to 
 his local custom, 39. Varieties of 
 native usage, 51, 52. Preserva- 
 tion of customary law, 55. Agen- 
 cies by which this preservation 
 has been effected, 55. Antiquity 
 of Indian custom, 65, 66. Changes 
 in the nature of usage, 72, 75. 
 Origin and growth of custom, 
 109 
 
 Customary Manorial Courts, func- 
 tions of the, 139, 140 
 
 DELHI, exactions of the Maho- 
 metan Emperors of, 179 
 Devises, Statute of, influence of, in 
 throwing small properties into 
 the hands of large landowners, 
 169, 170 
 
 Distribution, failure of primitive till- 
 ing communities for securing, 166 
 
 ENGLAND, existence of the 
 Arable Mark and Common Mark 
 in, 85. Various names of the 
 
 cultivated portion of the domain 
 in, 85. True succession groups of 
 proprietors in, 135. Waste, or 
 common land, has become the 
 Lord's waste, 135. The modern 
 legal theory of the Lord's rights, 
 136. Advantages of absolute pro- 
 perty over the village community 
 system, 162 
 
 English in India, their influence on 
 legal conceptions, 69. Their un- 
 willing assumption of sovereignty, 
 70. Their establishment of Courts 
 of Justice, 71. A cause of the 
 growth of the conception of right, 
 73 
 
 Eviction rare in India, 186 
 
 Experts, legal, employment of, in 
 England, in modern times, 170 
 
 FMILY, the great source of per- 
 sonal law, 11. Formation of 
 the Patriarchal Family, 15 
 
 Families, leading, causes of the ag- 
 grandisement of, 145 
 
 Feudalism, origin of, 131, 132. In- 
 fluence of benefices, 132. The 
 Manor, 133. Causes of feudalisa- 
 tion, 142, 343. Growth of suze- 
 rainties, 144. Elements of the 
 feudal system, 146. Systematic 
 feudalism, 147. Imperfect feuda- 
 lisation of India, 158-160. Suf- 
 fering which accompanied feudali- 
 sation in Europe, 161. Advan- 
 tages which the transition of one 
 form of property to another pro- 
 duced, 162. Cultivation of waste 
 land in Europe, 162. Tendency 
 in the primitive Teutonic system 
 towards feudalism, 21 
 
 Freeman, Mr., his identification of 
 fragments of ancient Teutonic 
 society in Switzerland, 9 
 
INDEX. 
 
 221 
 
 GAM 
 
 IRE 
 
 GAME not strictly private property 
 according to English law, 142 
 Grain-dealer, the, excluded in India 
 
 from privileges, 197 
 Grass-lands, customs of various 
 manors respecting, 136 
 
 TTEADMAN of an Indian village, 
 office of, 122, 155. Power 
 
 which he enjoys, 155. Nature and 
 
 origin of the rights claimed by 
 
 certain families, 156 
 Hereditary offices, tendency among 
 
 Teutonic races to, 132 
 Hermes, the three attributes of the 
 
 god, 193 
 
 TNCLOSURE and Inclosure Acts, 
 importance of the history of, 85 
 
 India, village communities of, 12, 
 et seq. India regarded in England 
 as uninteresting, 22. Importance 
 of the English conquest and go- 
 vernment, 23. Ignorance of India 
 discreditable in Englishmen, 23. 
 Gradual disappearance of Indian 
 phenomena, 24. Ignorance and 
 superstition of Indian native so- 
 ciety, 25. Influence of Western 
 ideas, of physical ideas, and of 
 British dominion, 26, 27. Eng- 
 lish compared with Indian society, 
 56. Influence of caste, 56, 57. 
 Influence of English law, 74. 
 Discovery and recognition of the 
 existence of the Indian village 
 community, 103. The Maho- 
 metan theory of ownership in the 
 land, 104. Conditions of agricul- 
 ture in India as compared with 
 Europe, 108. Common or waste 
 lands in, 120, 131. Peaceful cha- 
 
 racter of the people of, 124. Their 
 submission to the power of mer- 
 cenary armies, 124. The ( out- 
 siders ' of Indian villages, 127. 
 Shape taken by all disputes in, 128. 
 Mode of dealing with a newly- 
 annexed province, 149. The 
 various land settlements and their 
 results, 149-151 . Analogy between 
 Teutonic kings and the British 
 government in India, 151. Ma- 
 hometan assumptions, 152. The 
 two great Indian schools of opi- 
 nion respecting the functionaries 
 administering the country, 153. 
 Property recognised by the English, 
 156. Absolute ownership, 157. 
 Comparison of English and Indian 
 Conditions, 159. Structure of 
 village communities in India, 175. 
 Exactions of Oriental sovereigns, 
 179. Questions about rent, 180, 
 181. Influence of the carrying 
 trade in India, 197. Minute on 
 the over-legislation attributed 
 to the English Government, 
 205 
 
 Indian Law, sources of, 31. Custo- 
 mary law, 31. Settlement, 32. 
 The Record of Rights, 33. Dis- 
 placement of native by English 
 law, 37. Dismay with which 
 English law was regarded, 38. 
 Mode of administering the Hin- 
 doo code, 49-51. Varieties of 
 native usage, 51, 52 
 
 Indians, secrecy of their family life, 
 114. Their intellectual quick- 
 ness, 56 
 
 International Law, the undoubted 
 parent of, 193 
 
 Ireland, quantity of detail in the 
 ancient Irish law, 81. The three 
 ancient kinds of rent in, 186, 
 187 
 
222 
 
 INDEX. 
 
 JUR 
 
 MAN 
 
 JURISPRUDENCE, chief func- 
 tl tion of Comparative, 3, 4. 
 John Austin's views, 4. The 
 comparative and historical me- 
 thods, 6. Instruction which India 
 may yield to the student of his- 
 torical j urisprudence, 15 
 Jus Gentium, influence and impor- 
 tance of the, 193, 194 
 
 T AMMAS lands, 85. Inclosures 
 J-J removed on Lammas Day, 86 
 Land, Record of Rights in, 72. 
 Oldest forms of property in, 76. 
 Scarcity of laws as to the tenure 
 of, 51. Teutonic origin of Eng- 
 lish theories of law in, 83. Un- 
 soundness of the popular theory, 
 84. Importance of the history of 
 inclosures and inclosure acts, 85. 
 The ancient cultivated portion of 
 the domain, and its various names, 
 86. Modes of redistributing 
 the shares, 86. Effect of shifting 
 severalties, 87. Great extent of 
 the common fields, 88. And of 
 the pasturage on baulks of turf, 89. 
 Existing baulks, 89. Vestiges of 
 the Mark, 88. Marshall's account 
 of the ancient state of England 
 quoted, 90-94. The Udal tenures 
 of Orkney and Shetland, 94, 95. 
 The f Burgess Acres ' in the burgh 
 of Lauder, 95. Mohometan theory 
 of ownership in land, 104. Lord 
 Cornwallis's settlement of Lower 
 Bengal, 105. Estates in Oudh, 
 105. Creation of a peasant pro- 
 prietary under prosperous condi- 
 tions, 105, 106. Conditions of 
 agriculture in India as compared 
 with Europe, 108. Customs of 
 re-partition of the cultivated lands, 
 112. Common or waste lands in 
 
 India, 120, 121. The process of 
 feudalisation, 131. Benefices, 132. 
 The Manorial group, 133, 134. 
 Causes of the growth of suze- 
 rainties, 144. Causes in German 
 and Scandinavian cultivating com- 
 munities leading to inequality of 
 property in land, 146. Land set- 
 tlements in India, 105, 149-52. 
 Ancient rule as to the highest 
 obtainable rent for the use of land, 
 
 186. Ancient Irish rents, 186, 
 
 187. Primitive notions as to price, 
 187. Rarity of ancient transfers 
 of land, 188. Competition-rent, 
 189 
 
 Lauder, the ' Burgess Acres ' in the 
 burgh of, 95, 96. The 'Hill 
 parts,' 96 
 
 Law, analysis of a, 66, 67. Indian 
 conceptions of a, 68. English in- 
 fluence on legal conceptions, 69. 
 Sources of, in primitive commu- 
 nities, 110 
 
 Loans, nature of, in oldest Roman 
 contracts, 188, 189 
 
 Lubbock, Sir John, on the first steps 
 of mankind towards civilisation, 
 16. On markets, 192 
 
 MCLENNAN, Mr., on civilisation, 
 16 
 
 Madras, success of the peasant pro- 
 prietary of, 105 
 
 Mahometan law, foundation of, 49. 
 Its interest for the jurist, 49 
 
 Mahometan theory of ownership of 
 land, 104 
 
 Mahratta brigands, their rise against 
 the Mahometans. 124. Exactions 
 of their princes, 179 
 
 Manor, origin and formation of the, 
 133. Authority of the Lord in 
 the Court Baron, 134. Tene- 
 
INDEX. 
 
 223 
 
 MAN 
 
 mental lands and the Lord's Do- 
 main, 134. Rights of the Lord to 
 the waste, 135. The 'right of 
 approvement ' affirmed by the 
 Statute of Merton and subsequent 
 statutes, 135. Modern legal theory 
 of the Lord's rights, 136. Changes 
 in the grass-lands, 136. The 
 free holders of Tenemental land 
 corresponding to the old village 
 community, 137. Settlement of 
 villeins, 138. The Manorial Courts, 
 139. Encroachments of the Lord, 
 141. The Manorial group better 
 suited than the village group for 
 bringing waste lands under culti- 
 vation, 164. Customary tillage, 
 165 
 
 Manorial Court, Customary, power 
 of the, 134 
 
 Manorial courts, the three, 139 
 
 Maim, Code of, 20. Influence of 
 Brahminical theories upon the, 20. 
 Penetrates but little among the 
 people of India, 39. Development 
 of Hindoo law, 46. Mode of ad- 
 ministering it, 49-51 
 
 Mark, or township of Teutonic 
 families, 10. System of the, 10. 
 Vestiges of it in England, 1 1 
 
 Mark, the Arable, rights and duties 
 of the ancient Teutons respecting, 
 79, 80. The Mark occasionally 
 shifted, 81. Existence of the 
 Arable Mark in England, 85 
 
 Mark, the Common, in ancient Teu- 
 tonic Society, rights and duties of 
 the, 79 
 
 Markets, origin of, 192. Association 
 between markets and neutrality, 
 193. Three ideas as to, 193. 
 Extreme rule of Market Law, 195. 
 Rule of Market Overt, 195. Ten- 
 dency of decisions of English 
 courts towards the law of the 
 
 OWN 
 
 Market, 194. Causes which have 
 generalised a Rule of the Market, 
 197 
 
 Marshall, Mr. W., his account of the 
 ancient state of agriculture quoted, 
 90-94 
 
 Maurer, Von, on the law of the Mark 
 or township, 10. On the feudal 
 tendency of the primitive Teutonic 
 system, 21. His inquiry into the 
 forms of Teutonic village property, 
 summary of his conclusions, 77, 
 et seq. 
 
 Morier, Mr., his paper in ' Sys- 
 tem of Land Tenure in Various 
 Countries,' 78. His account of 
 the vestiges of collective property 
 in Germany, 78. On the aspects 
 of the Teutonic freeman as a lord 
 and as a commoner, 82 
 
 NASSE, Professor, on the land-law 
 of Germany and England, 11, 
 17. Account of his work, 168, 
 169 
 
 Neutrality, ancient association be- 
 tween markets and, 193 
 Nuncomar, fairness of the trial of, 
 38 
 
 f ACCUPANCY ' tenants in In- 
 \J dia, creation of, 184. Period 
 
 of time required for determining 
 
 who are, 184 
 Orkney Isles, system of the township 
 
 in the, 10. Sir W. Scott on the 
 
 Udal tenure, 94 
 Oudh, settlement of estates in, 105. 
 
 Military character given to the 
 
 naturally peaceful population of, 
 
 124 
 Ownership, absolute, of the English 
 
 in India, 157-59 
 
224 
 
 INDEX. 
 
 PAT 
 
 SWI 
 
 PATERFAMILIAS, the, m an- 
 
 L cient Teutonic society, 78. His 
 authority, 78. His relations to 
 the other heads of families, 79. 
 His authority in the Indian village 
 community, 107 
 
 Peasant proprietary in India, esta- 
 blishment and success of the, 
 105 
 
 Personal Property, Law of, tenden- 
 cies of, 194 
 
 Police of Indian villages, recognised 
 and paid by the British Govern- 
 
 . ment, 125 
 
 Political Economy, the contract of 
 hiring and letting in, 190. The 
 proposition which forms the basis 
 of, 191. The Market, 192 
 
 Price, early history and measure of, 
 189 
 
 Prize of War, theoretical right of 
 the sovereign to, 142 
 
 Production, primitive tilling com- 
 munities ineffective for, 166 
 
 Property, collective, native control 
 over testation of, 41 
 
 Pundits, consulted in the courts, 50. 
 Charges against them, 50 
 
 EACE, modern theories of, 3 4 
 Rack-rents in ancient Ireland, 
 187. Generally, 187, 188. Reason 
 why rack-rents do not exist in 
 some places, 199 
 
 Rent, creation and difficulties of, in 
 India, 180, 181. Ideas of Anglo- 
 Indians, 182. Customary and 
 competition rents, 183. Ancient 
 rule as to the highest obtainable 
 rent for the use of land, 186. 
 Rack-rents generally, 187, 188. 
 Modern origin of the highest 
 obtainable rent, 198. The market 
 
 for land in England and Scotland, 
 199. Reason why rack-rents do 
 not exist in some places, 199 
 
 Revenue courts and officers in India, 
 and their duties, 33, 34 
 
 Roman Law, period arrived at in, 19 
 
 SCOTT, Sir Walter, his remarks 
 on the Udal tenures of Orkney 
 and Shetland, 94, 95 
 
 Seignory in gross, 134 
 
 Settlement, Indian, 32. Settlement 
 officers and their reports, 32. Re- 
 cord of Rights, and its importance, 
 33. Settlement in newly-acquired 
 provinces in India, 149. Various 
 forms of, 150. Mahometan as- 
 sumptions, 152 
 
 Shetland Isles, system of township 
 in the, 10. Sir W. Scott on the 
 Udal tenure of, 94 
 
 Sikhs, exactions of the, 179 
 
 Slavery, generally, predial, and 
 under peasants, 166 
 
 Sudder courts, powerful influence of 
 the Supreme courts over the, 39. 
 History of, 43. Appeals to them, 
 43. Judges of the, 44. Their in- 
 fluence, 45. Effect of judicial 
 commentaries on the, 47 
 
 Supreme courts of India and their 
 powers, 36. Condemnation which 
 they have everywhere received 
 except in India, 37, 38. Their 
 powerful influence on the Sudder 
 courts, 39 
 
 Surnames, possible causes of the fre- 
 quency of trades as, in England, 
 126 
 
 Suzerainties, causes of the growth of, 
 144 
 
 Switzerland, Mr. Freeman's identifi- 
 cation of fragments of Teutonic 
 Society in, 9 
 
INDEX. 
 
 225 
 
 TAL 
 
 VIL 
 
 fTlALUKDARS, settlement of the, 
 -L in Oudh, and its results, 150, 
 151 
 
 Teutonic society, fragments of archaic, 
 in Switzerland, 9. Enquiries of 
 Von Maurer, 9, 77. The Teutonic 
 Mark, 10. The ' vicus ' described 
 by Tacitus, 10. Resemblances of 
 Indian village communities to 
 Teutonic townships, 12. Account 
 of an ancient Teutonic cultivating 
 community, 78-82. Tendency 
 among the Teutonic races to here- 
 ditary offices, 132. Causes and 
 results of the aggrandisement of 
 leading families, 145 
 Townships, Teutonic. See Mark 
 Trades, hereditary, of Indian villages, 
 125. Possible causes of the plen- 
 tifulness and persistence of trades 
 as surnames in England, 126 
 Tradition, subject of, 58. Effect of, 
 in India, 58. Different forms of, 
 58, 59. Value attached just now 
 to traditional law in India, 59 
 
 TTDAL tenures of Orkney and Shet- 
 LJ land, 94, 95 
 
 Usury laws, effect of the repeal of 
 the, 195 
 
 YICUS, the, described by Tacitus, 
 10 
 
 Village Communities of India, their 
 resemblance to Teutonic town- 
 ships, 12. The land-law of, 18. De- 
 cay of the village system in Lower 
 Bengal, 40, 104. Coincidence of 
 the systems of India and Teutonic 
 society, 61, 62. Rights and duties, 
 67. Declarations of the council of 
 village elders, 68, 69. Discovery 
 and recognition of the existence of 
 
 the Indian village community, 103. 
 The Mahometan theory of owner- 
 ship, 104. Secrecy of Indian 
 family life, 114. Dislike of Eng- 
 lish criminal law, 115. Legisla- 
 ture of the council of elders, 116, 
 
 123. Their customary rules, 117. 
 Causes of the growth of Indian 
 villages into cities, 118, 119. 
 Disputes sometimes decided by a 
 single Headman, 122. Submission 
 of naturally peaceful villagers to 
 the power of mercenary armies, 
 
 124. The village community or- 
 ganised and self-acting, 125. The 
 outsiders, 127. Power of absorp- 
 tion of strangers by the commu- 
 nity, 128. Tendency of agrarian 
 rights to decay, 150. Effect of 
 the land settlement of Oudh, 150. 
 The office of Headman in various 
 places, 155. Absolute ownership 
 of the English, 157-59. Imperfect 
 feudalisation of India, 158-60. The 
 communities left to their own way 
 by great kings and mercenary 
 armies, 160. The cultivating com- 
 munity as compared with the ab- 
 solute property of our own day, 
 164. Primitive tilling communities 
 ineffective for securing Produc- 
 tion and Distribution, 166. State 
 of the servile dependents of vil- 
 lagers, 166. Reasons why stran- 
 gers ceased to be absorbed by 
 villages, 167, 168. Structure of 
 Indian village communities, 175. 
 Divisions in the community itself, 
 
 176. Question of the right of 
 property within the community, 
 
 177. Tradition as to rights, 178. 
 Origin and difficulties of rent, 180, 
 181. Analogy of the holders of 
 the highest rights in India to 
 English landowners in fee simple, 
 
226 
 
 INDEX 
 
 VIL 
 
 184. Creation of ' occupancy' 
 tenants, 184. Comparison of In- 
 dian and English forms of pro- 
 perty/ 185. Eviction rarely prac- 
 tised in India, 186 
 
 Village communities in North 
 America, organisation of the, 
 201 
 
 Village communities, Teutonic, 78, 
 et seq. 
 
 WASTE, or common lands, the 
 cultivation of, demanded by a 
 growing population, 162 
 Water rules in India, 109, 110 
 
 ZEM 
 
 Widows, origin of the oppressive 
 disabilities of, in Hindoo laws, 54. 
 The written restrictions compared 
 with unwritten usage, 55 
 
 Will, the, of Lower Bengal, 40. A 
 modern Indian will, 41, 42. Dan- 
 gers caused by the wills of un- 
 learned testators, 170. Necessity for 
 restraints on testamentary power, 
 171 
 
 fTEMINDAES, their settlement 
 
 Ll and its results, 150. Their bad 
 
 reputation in Lower Bengal as 
 
 landlords, 163 
 
 LONDON: PUINTED BY 
 
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