1, Digitized by the Internet Archive in 2015 https://archive.org/details/villagecommunitiOOmain_0 VILLAGE - COMMUNITIES IN THE EAST AND WEST WITR OTHER LECTURES, ADDRESSES, AND ^AYS BT THE SAME AUTHOR. ANCIENT LAW. Its Connections with the Early History of Society, and its Relation to Modern Ideas. 8vo, $3.50. LECTURES ON THE EARLY HISTORY OF INSTITUTIONS. 8vo, $3.50. VILLAGE COMMUNITIES IN THE EAST AND WEST, to which are added other Lectckes, Addresses and Ess.vys. 8vo, |3.50. DISSERTATIONS ON EARLY LAW AND CUSTOM. Chiefly selected from Lectures delivered at 0.\ford. Svo, $3.50. POPULAR GOVERNMENT: Four Essays. L Prospects of Popular Government. II. Nature , of Democracy. III. Age of Progress. IV. Con- stitution of the United States. Svo. $2,75. BY THE LATE JOHN AUSTIN. \ LECTURES ON JURISPRUDENCE ; or, The Philosophy of Positive Law. By the late John Austin, of the Inner Temple, Barrister-at-Law. Abridged from the larger work for the use of students. By Roukkt Campiikll, of Lincoln's i Inn, Barrister-at-Liiw. Svo, $3.50. VILLAGE - COMMUNITIES DJ THE EAST AND WEST SIX LECTURES DELIVERED AT OXFORD TO WHICH ABE ADDED OTHKB LECTUKES, ADDRESSES AND ESSAYS BY Sir HENRY SUMNER MAINE K.C.8.I., LL.D., F.R.S. ACIHOU OF "ancient LAW" AND "THE EARLY HI8T0RT OF INSTITUIIONB. * NEW YORK HENRY HOLT AND COMPANY 18H9 AUTHOR'S KBITIOS. Trow'i Printing and KoohiiiNinNr. Co.t 10S-113 East Mth St., NBW VOSK. PEEFACE TO THB THIRD AND ENLARGED EDITION. As a Third Edition of the Lectures constituting the volume on ' Village-Corainunities in the East and West ' is now required, it has been thought desirable to add to them some other Lectures, Addresses, and Essays by the author. All of them, except the last, will be found to have a bearing on subjects treated of in the Lectures on Village- Communities The Rede Lecture, on the ' Effects of Observation of India on Modern European Thought,' has been published separately. The Essays on the ' Theory of Evidence ' and on ' Roman Law and Legal Edu- cation ' appeared respectively in the Fortnightly Review and in the Cambridge Essays. The three Addresses delivered by the author in the capacity of Vice-Chancellor of the University of Calcutta have not before been printed in this country. London: Ftbruary 1876. PEEFACE TO THB FIIiST EDITION OF 'VILLAGE-COMMUNITIES IN THE EAST AND WEST.' 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. viii PREFACE TO THE FIRST EDITION. The eminent German writers whose conclusions 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 Sir 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 L THE EAST, AND THE STUDY OF JUBISPBUDENCE. Domparative Jurisprudence — Comparative and Historical Methods — The Past and the Present — Limits o£ Comparative Jurispru- dence — Method of Compaiison — Enquiries of Von Maurer — The Mark and English Law — Eastern and Western Communities — Characteristics of Indio-Modern Theories of Race — The Patri- archal 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 . . . page 1 LECTURE II. THE 80UBCES OF INDIAN LAW. 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 Co\u-t8 — Development of Hindoo Law — Effect of Juridical Com- mentaries — 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 — DifiFerent Forms of Tradition — Popular Ignorance of Law in England — The Experts and English Law — Indian and Teutonic Village Systems . 8J a X CONTENTS LECTURE in. THE WESTERN VILLAGE-COMMUNITt Antiquity of" Indian Customiiry Law — Traditional Law — Analysis of a Law — Indian Conceptions of Law — English Influence on Legal Conceptions — Unwilling Assumption of Sovereignty — In- fluence of Courts of Justice — Change in Nature of Usage — Growth of Conception of Right — Influence of Englisli Law — Connection of Eastern and Western Custom — Von Maiirer — The TeuLonic 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 tlie Mark. PAGE 65 LECTURE IV. THE EASTERN VILLAGE-COMMUNITT. 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 oi English Criminal Law — Fictions Attending Legislation — Village Rules — Origin of Indian Towns — Indian Capitals — 'i'he Village Waste — The Indian Wastes — The Government and the Wastes — The Village Council — Peaceful Chaiacter of Population — Hereditary Trades — Rennmeratiou of Village Traders — The Outsiders — Absorption of Strangers by Community 103 LECTURE V. THE PROCESS OF FEUDALISATION. Feudalism — The Benefices — The Manor — The Manorial Grotip — New Condition of the Waste — Changes in the Grass-lands — The Fiee Tenants — Settlements of Villeins — The Manorial Courts — Encroachni(;nts of the Lord — Roman and Feudal Law — Causes of CONTENTS. Feudalisation — Growth of Suzerainties — Leading Families — ^Ele» ments of Feudal System — Systematic Feudalism — Antiquarianism of Indian Politics — Political Results of Settlements — Variotu Forme 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 Eiu-ope — Cultivation of Waste-land — Im- provements in Tillage — Village- Communities and Customs — Customary Tillage — Servile Dependents of Villagers — ViUages cease to absorb Strangers — Nasse's Work — The Statute of De- vises — Rules for Construing Wills — Restraints on Testamentary Power PAGE 131 LECTURE VL THE EAKLY HISTORY OF PRICE AND RENT. Structure of Village-Communities — Divisions of the Community — Property within the Community — Traditions as to Rights — Exac- tions 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 Commercial Principles — Influ- ence of Carrying Trade — Price and Rent — Market for Land in England — New Information required — Village-Communities in America 17 The Effects of Observation of India on Modern European Thought (Iiedk Lecture) 203 Address to University of Calcutta, L . . . 240 Address to University of Calcutta, II. . ^ 250 rii CONTENTS. AdoeE33 to Universitt of Calcutta, IIL . . page 275 The Theort of Evidekce 295 Roman Law and Legal Education ■> , . , 880 ArPENDiCES : — L — Minute recorded on October 1, 1868 . 387 II. — Recent German Works bearing on the SUBJECT OF THE LECTURES ON VlLLAGE- COMHUNITIES 893 Noxfc ••••• 399 Indu ••. 403 VILLAGE -COMMUNITIES IN THE EAST AND WEST. LECTURE I. THE EAST, AND THE STUDY OF JTIRISPRIIDENCE. CONTENTS. ComparatiTe 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 — Charac- teristics of Indio-Modern Theories of Pace — The Patriarchal Family — Barbarous Forms of the Family — Origin of Law in the Family — Village-Community — Law of Nature — Codified Brah- minical 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. LECTURE I. THE EAST, AND THE STUDY OF JTJEISPKDDEXCE. 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 4 COMPARATIVE JUEISPRUDENCE. tECT. 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 aflPect 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- LWJT. I. COMPARATIVE JUEISPRUDEXCE. B 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 pro- positions 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, bv 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 Englisli law — the eminent good sense frequently exhibited in the results w^hich 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, laxJT. r, whicli the learner has just mastered a very difficult and complex body of positive law, like that of our ovm 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 l)eing 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 elyeuhcre as a matter of fact, and how much labour he might consef|uently have been spared. The enquiry upon which we are engaged can only be said to belong to Comparative Jurisprudence, if the word ' comparative ' be used as it is used in such expressions as ' Comparative Philology ' and 'Comparative Mythology.' We shall ex;imine a number of parallel phenomena with the view of establishing, if possible, that some of them iire re- lated to one another in the order of historical succes- sion. 1 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. L THE PAST AXD THE PRESENT. 7 have not yet died out of the -world, and are still to be found in it. When 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 society; when in particular we have learned not to exclude from our view of the 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 it is removed from it 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. 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 OP COMPARATIVE JUEISPRUDENCB. imi. 1 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 LECI. I. METHOD OF COMPARISON. 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 sjjeculations 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 OP VON MAUREH. 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 or Township, and on the Law of the Manor. The Township (T 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 domam on a common system, and sustaining itself by the produce. It is described by Tacitus in the ' Germany ' as the ' vicus ' ; it is well known to 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 Jiotice 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 los{ IKX I. THE MARK AXD ENGLISH LAW. li its juridical, as it has 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? So far as our 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. Nasse 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 sourct- of some things which have never been satisfactorily explained in English real projierty law The work of Professor Nasse appears to me to 19 EASTERN AM) WESTEEIf COMMUNITIES. lect. ^ 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, the difference may be at least plausibly explained. 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 Tillage-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 A'illage- 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 tECI. I. CHARACTERISTICS OP IJTDIA. 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 in 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 countrv 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 MODERX THEORIES OF EACE. lEcr. I group to which he 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. LBCT. r. THE PATRIARCHAL FA3IILT. 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 formation of the Patriarchal Family, a group of men and womeiL, children and slaves, of animate and in- 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 proot which I have attempted to give elsewhere, that a great part of the legal 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 suflficiently 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 18 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. All 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 p&ssed 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 Brahmhiical invaders, whether or not of Aryan descent. Many of these wild tribes have now for many years been LECI. I. ORIGIN OF LAW IN THt; FAMILY. 17 under British observation, and have indeed been administered by British Officers. The e^ddence, 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 e\idence 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 of the infancy of mankind, have been described to me as having been for the first time resorted to in our own days through the mere pressure of external 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 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 rsiise a presumption, that many rules, of wliich nobody has hitherto discerned the historical beginnings, had c 18 VILLAGE-COMMUNITY. LECT. T 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 men 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 eventa, may be not unfairly comparea 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-Corn 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. When then the Teutonic group has been re-con- structed by the help of observed Indian phenomena UCT. I. LAW OP NATURE. It — a process which will not be completed until both 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 was 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 0 S 80 CODIFIED BRAHMINICAL LAW. LBOI. I. it will not be difficult to point out that j articular 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 grown 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 FEUDAL SYSTEM. SI its legal hisiory. 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 ; 60 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 ui)on, I must warn you, so slightly as to 92 CO^DITIONS OF JURIDICAL STUDY. 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 rrgarJed 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 Avith 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 tBCi. 1. ENGLISH IGNORANTE OF IXDIA. India is more discreditable to Englishmen than ignorance of Roman law, and it is at the same time more uniatelligible in them. It is more discreditable, 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 tiie achievements which give England her place in the opinion of the world. They are romantic 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 pubhc 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 m 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 term.s than those who use it are commonly aware. Even, therefore, if the great Indian authorities who live among us were in perfect 34 DISAPPEARANCE OF INDIAN PHENOiIE:SA. Lncr. 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 eveiy 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 Indiar. sacred rivers loses in time its sanctity, so India itself is gradually losing everything which is characteristic of it. ] may illustrate the completeness of the trans- LECT, I. INFLUENCE OP WESTERN IDEAS. 26 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 Avorld is so much at the mercv 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 thera may at present liave 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 probabh' the chief source from which the influences proceed which 26 INFLUENCE OF PHYSICAL SCIENCE. lect. i are more or less at .vork everywhere. Here there has been a complete revolution of thought, in litera- ture, m 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 an}' mental food but this, mere accuracy of thought is by itself an in tellectual luxury of the very higlu st 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 ^vith 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 difi'erences 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 not to be solved by exclusively Indian experience. 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 some would apparently indulge, even to the abnegation of all moral judgment. But the undertaking is not practicable. It is by its indirect and for the most 28 INFLUENCE OF THE BRITISH EMPIEE. jjicx. 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 rebuildmg upon its own principles that which it unwillingly destroys. LXCTITBS n. THE SOURCES OF INDIAN LAW CONTENTS. Indian Settlements — Settlement and Rerenue 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 Modem Indian Will — The Sudder Court — Influence of Sudder Courts — Development 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 Forma of Tradition — Popular Ignorance of Law in England — The Experts and English Law — Indian and Teutonic Village Systems. 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 oiigin 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 througii the judicial and administrative services which it maintains, and 32 INDIAN SETTLKJIKXTS. lECT. n. througli 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 '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- 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 pro\ incial govern- ment which has deputed them; they communicate freely with it during their enquiries ; and they Avind them up with a Settlement Report, wliich is often a most comprehensive account of tlie new province, its history, its natural products, and above all the usages of its population. But the most important LBCT. n. SETTLEMENT AND REVENUE COUETS. 89 object of the Settlement operations — not second even to the adjustment of the Government revenues — is to construct a ' 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 hearins^ before it is made. When the Record of 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 variousl}' 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 84 THE CIVIL COURTS. LECT. n 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 1 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 charac- ter of sovereign, but in its capacity of supreme landowner. 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 tc 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 L«ci. U. THE INDIAN JUDICIAL SYSTEM. 8& 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 whicli 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 D 2 S6 THE SUPREME COURTS. LSCT. n. history. An Indian lawyer expresses this by saying that the three older High Courts were formed by the fusion of the ' Supreme ' and * 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 — maybe shortlj' described as three offshoots from Westminster Hall planted in India. They were ' Courts of Record, 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 essa}'- on Warren Hastings, has vividly described the conster- nation which the most important of these courts LEcr. n. ENGLISH LAW IN INDIA. 87 caused in its early days among the natives subject to its power; and there is no doubt that the estabhsh 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 ir India. The great quantity of Enghsh law which had worked its way into their jurispnidence 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 wliich 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 OriNION ON ENGLISH LAW. L3CT. U. 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, Nuncotnar 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 LOCALITY -OP CUSTOM. 83 custom has, 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 em- braces 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 light on the mutual play of Eastern and Western 40 THE WILL OF BENGAI* LBOI. n. legal thought m 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 jsed, were employed, as the testaments of Roman titizens can be shown to have been employed, merely ro supplement the arrangements which, without them, would have been made by the law of intestate eiuccession. 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 Jiumbers before the Courts, up to the time when the lEW of testamentary succession was finally simplififtd WILLS AND COLLECTIVE PKOPERTT. 41 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 ot 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 ' They have since been declarud. See Ganendro Mohun Tagore V. Rajah Jotcndro Mohun Tagore and others, Law Reports (Indian Appeals, 1874), p. 387.— (A^oeak, 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 iBcr. n. TRADITION. 67 highest castes; and it is even likely that more irapor 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 agi'icultural 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 sitiiated. They are constantly dwelling on traditions of a cer- tain sort, they are so constituted that one man's interests and imjiressious correct tho.-e of another and some of them have in their council of elders a 53 DIFFERENT FORMS OF TRADITION. 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. The knowledge that this great body of traditional 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 WCT. n. POPULAR IGNORANCE OF LAW IN ENGLAND. 56 as to the rule to be followed in a given case and a 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 alto<;ether singular in our 60 XnE EXPERTS AXD ENGLISH LAW lect. u tacit conviction that law belongs as much to the class of exclusively professional subjects f-s 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 brother 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 tvhich I shall state — unwritten usages, probably older and purer than the Brahminical written law — are now having their authority acknowledged even by thr Indian Courts, once the jealous conservators of the LECT. n. INDIAN AND TEUTONIC VILLAGE SYSTEMS. Ci 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 with the writers 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 Scatidinavian countries had very great interest; this interest largely increased when 62 INDIAN AND TEUTONIC VILLAGE SYSTEMS. LXOT. n. Englcand, 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-OAvnership 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 UL THE WESTEEN VILLAGE-COMMUNITY. CONTENTS. • Antiquity of Indian Customary Law — Traditional Law — Analysia of a Law — Indian Conceptions of Law — English Influence on Legal Conceptions — Unwilling Assumption of Sovereignty — In- fluenctr 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. 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 presumpiion 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 assertioca respecting lapse of time and the past can safely be made of anything Indian ; but there can be no reasonable doubt that all tliis cus- tomary law is of very great antiquity. I need scarcely point out to you that such facts as ihese have a F TEADITIONAL LAW. LECT. ni bearing on more than one historical problem. If, for example, I am asked whether it is possible that, when the Roman 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 depraA ation. I P&SS, 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 Benthain and Austin is not very widely known in this country (and I see no signs lECT. ni. THE ANALYSIS OP A LAW. R7 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 1 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 y 2 I 66 INDIAN CONCEPTIONS OF A LAW. tECT. in to the villagers. Th6 council of village elders does not command anything, it merely declares vs^hat has always been. Nor does it generally declare that '«vhich 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. Nor, in the sense of the analytical jurists, is there i^ight or diit(/ in an Indian village-community ; a person aggrieved 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, the sole 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 requu*es 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 uxn. ra. ENGLISH INFLUENCE ON LEGAL CONCEPTIONS. 63 and sometimes exclusively judicial, so that the chief be- comes a sort of hereditary judge. 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 otfence against this written law is also a sin; to injure a man's property is for instance to diminish 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 establislied without it. It may be described in tliis way. Whenever you introduce any one of the legal concep- tions determined by the analysis of Bentham ani Austin, you introduce all the others by a process which is apparently inevitable. No better proof 70 UNWILLING ASSUMPTION OP SOVEREIGNTY. lect. m 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 tiiiics and in the shape of express legislation, by necessities wl ich I may be led hereafter to explain.^ The English never therefore intended that • I have endeavoured to redeem tliis promise in jiart by printing in an Apput in introducing one of the terms of the Gcrios you wiU 74 IN'FLUENCE OP ENGLISH LAW. LECI. m 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 LECT. ra. INFLUENCE OF ENGLISH LAW. 74 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 always 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 1 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 and plenty due to British rule. The consequence is wholesale and indiscrimi- nate borrowintr from the Enj^lish law — rlie 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 said of the process is tiiat it is another example of the influence, often felt in European legal history, which 76 CONNECTIOX OF EASTERN AND 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 connection 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 unamaigamated 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 uKulels. It is most desirable that one great branch of native Indian usaoje 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 tlie 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 collective property, and to justify the conjecture that LECT. m. vox MAURER. 71 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 wlio had made a special study of the evidence concerning ancient Teutonic holdings, as, for example, the early English holdings, might ha\ e 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 tacts 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 be traced in England. I shall not attempt to do more than give you such a summary of Von Maurer's conclusions as may suffice 78 THE TEUTONIC VILLAGE-COMMUNITIES. LECT. m 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 'Systemsof 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, appsars 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. 75 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 law was not tlu; family, but the connection of one family with another and with the aggren, 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- am[)le — in the South, as in Surrey, in the North, as in Yorkshire, there are extensive open and common LECT m. GREAT EXTENT OP THE COMMON FIELDS. 8€ 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, Avas 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 grai^sy 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 PEOM MAESHALL. LBCl. m The extract from Marshall's ' Elementary and Practical Treatise on Landed Property' (London, 1804) which I am about to read to you, is in some 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 ' 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 ' pro\-in- 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. ' 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 ])arish 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. LECT. III. EXTKACT FROM MARSHALL. 81 which time had converted to law. These parochial arrano-ements, however, varied somewhat in different districts ; but 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. ' Under this ingenious mode of organisation, each parish or township was considered as one common farm ; though the tenantry were numerous. ' 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. ' 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 aficrd a supi)ly of hay, for cows and working stock, in the winter and spring months. 92 EXTRACT FROM MARSHALL, Lwn. m * 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, wliich 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 sunmier. ' While the bleakest, worst-soiled, and most distant lands of the townshin, were left in their native wild 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. LBCT. m. EXTRACT FROM MARSHALL. 93 'And, that the whole might be subjected to the same plan of management, and be conducted as one couamon 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 hi? 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 ti»e tenants and the estate, by having the whole spread under the eye, at once, than he would liave been, had the lands been distributed in detached inclosed farmlets ; besides avoiding the expense of inclosure. And another advantage arose from this 04 SCOTT ON UDAL TENURES. 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 ' Pirate ' are, I dare say, aware that Sir Walter Scott had his attention strongly attracted to the so-called Udal tenures of 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 : ' I 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 thom 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 LBCT. in. COMMONTY OF LAUDER. from one rather than other .... seems altogether uncertain' (Lockhart's ' Life of Scott,' iii. p. 145). 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 return recently presented to Parliament suggests that a re- examination of Scottish agricultural customs might be usefully undertaken. ' There are,' it is stated, ' within the bounds of the royalty of the burgh of Lau ler 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 bur THE EFFECTS OF OBSERVATION OF INDIA OxN MODEEN EUROPKAN THOUGHT. CONTENTS. Dulness of Indian Topics — Continental Interest in India — Eelation of India to England — Influence of Study of Sanscrit — Political Eesults of Oriental Studies — Materials for New Science in India — Isolation of India — Coast Populations — Character of the Interior — Actual Brahminical Religion — Effects of Brahminism on older Faiths — Deif5cation of Force — Actual Character of Caste — The Comparative Method and Property — Theories of Property — Indian Forms of Property — Indian Discussions on Ownership — Value of Indian Phenomena — Early History of Property — Ancient Joint Ownership — Modern Origin of Competition — Exchangeableness of Land — Communistic Theories — Several Property and Civilisa- tion—The Comparative Method and Custom — Benthamism — Poli- tical Economy — India and the Roman Empire — India and Judaea — British Government of India — Obstinacy of Native Prejudice — Hellenic Origin of Progress — English Inlluence in India. THE EFFECTS OF OBSERVATION OF INDIA ON MODERN EUROPEAN THOUGHT.' I AM WELL AWARE that, in Undertaking to address an English audience on an Indian subject, I should under ordinary circumstances have to preface what I have to say with an apology ; but, speaking to you here, I believe it will be enough if I remind you that the proverbial dulness attributed to Indian topics by Englishmen, which (as they are apt frankly to allow) does not reflect any particular credit upon them, is as far as possible from being recognised by the learned class in any other community. No one can observe the course of modern thought and enquiry on the Continent, and especially in Germany, without seeing that India, so far from being regarded as the least attractive of subjects, is rather looked upon as the most exciting, as the freshest, as the fullest of new problems and of the promise of new discoveries. The fervor of enthusiasm which glows in the lines written by the greatest of German poets when the dramatic genius of the Hindoos first became ' (T}ie Rede Lecture for 1875, delivered before the Uniyersity ol Cambridge.) 20G CONTINENTAL INTEREST IN INDIA. known to him through the translation of Sahmtala^ seems to have scarcely abated in the scholars of our day "who follow philological studies and devote them- selves to the new branches of investigation constantly thrown out by the sciences of Comparative Philology and Comparative Mythology. Nor can one avoid seeing that their view of India affects in some desrree their view of England ; and that the community, which is stigmatised more systematically on the Con- tinent than it is perhaps aware, as a nation of shop- keepers, is thought to have had a halo of romance spread around it by its great possession. Why India is on the whole so differently regarded among ourselves, it is not, I think, hard to understand. It is at once too far and too near. Morally and politically, it is very far from us indeed. There are doubtless writers and politicians who think they have mastered it with little trouble, and make it the subject of easy and shallow generalisations ; but the thinker or scholar who approaches it in a serious spirit finds it pregnant with difficult questions, not to be disentangled with- out prodigious pains, not to be solved indeed unless the observer goes through a process at all times most distasteful to an Englishman, and (I Avill not say) reverses his accustomed political maxims, but revises them, and admits that they may be qualified under the influence of circumstance and time. On the other hand, India is in a sense near to us ; all EELATIOX OF IXDIA TO ENGLAM). 207 that is superficial and commonplace in it is pretty well known. It has none of the interest of a country barely unveiled to geographers, of the valley of the Oxus or the basin of Lake Tanganyika. It is mixed up with the ordinary transactions of life, with the business of government, with debates in Parliament not too well attended, with the stock exchange, the cotton market, and the annual relief of regiments. Nor do I doubt that the cause of the evil reputation of India which extends most widely is the constant and frequent complaints, which almost everybody receives from relatives settled there, of the monotony of life which it entails upon Europeans. It is per- haps worth while observing that this feeling is a permanent and not unimportant phenomenon, and that other immigrants into India from colder coun- tries, besides modern Englishmen, have spoken of the ennui caused to them by its ungenial climate and the featureless distances of its plains. The famous founder of the Mogul dynasty, the Emperor Baber, confesses it as frankly as a British subaltern might do, and speaks of India in words which, I fear, have been too frequently echoed mentally or on paper. ' Hindostan,' he states, after closing the history of his conquest, ' Hindostan is a country that has few plea- sures to recommend it. The country and towns arc ex- tremely ugly. The people are not handsome. . . The chief excellency of Hindostan if that it is a very large 208 INFLUENCE OP STUDY OP SANSCRIT. country, and that it has abundance of gold and Bilver.' The fact that knowledge of India has deeply affected European thought in many ways already, needs (I presume) no demonstration. There are many here who could explain with more authority and fulness than I could, the degree in which the discovery of Sanscrit has influenced the whole science of language, and therefore the classical studies still holding their own in the University. It is probable that all moderately intelligent young men who pur- sued those studies in the not very remote time before Englishmen were familiarly acquainted with the structure raised by German scholars on the founda- tions laid by our countrymen Jones and Colebrooke, had some theory or other by which they attempted to connect the linguistic phenomena always before them ; but on such theories they can only now look back with amazement. To those again who can remember the original publication of Mr. Grote's History, and can recall the impression made upon them by his discussion of the real relation which Greek fable bore to Greek thought, it is most into renting to reflect that almost at the same momoi;t another fruit of the discovery of Sanscrit was attain- ing to maturity, and the remarkable science of Com- parative Mythology was taking form. There arc other results, not indeed of knowledge of Indian lau POLITICAL RESULTS OP ORIENTAL STUDIES. 209 guage, but of knowledge of Indian facts and phe- nomena, which are not yet fully realised ; and these will be the principal subject of this Lecture. In the meantime, before we quit the subject of language, let me say that Sanscritic study has been the source of certain indirect elFects, not indeed having much pre- tension to scientific character, but of prodigious prac- tical importance. There is no question of its having produced very serious political consequences, and this is a remarkable illustration of the fact that no great addition can be made to the stock of human thought without profoundly disturbing the whole mass and moving it in the most unexpected directions. For the new theory of Language has unquestionably pro- duced a new theory of Race. The assumption, it is true, that affinities between the tongues spoken by a number of communities are conclusive evidence of their common lineage, is one which no scholar would accept without considerable qualification ; but this assumption has been Avidely made, and in quarters and among classes where the discoveries out of which it grew are very itni)erfectly appreciated and under- stood. There seems to me no doubt that modern philology has suggested a grouping of peo])les quite unlike anything that had been thought of before. If you examine the bases proposed for common nation- ality before the new knowledge growing out of the study of Sanscrit had been popularised in Europe, you P 210 MATERIALS FOR NEW SCIENCE IN INDIA. will find them extremely unlike those which are no"w advocated, and even passionately advocated, in parts of the Continent. For the most part the older bases theoretically suggested were common history, common prolonged subjection to the same sovereign, common civilisation, common institutions, common religion, sometimes a common language, but then a common vernacular language. That peoples not necessarily understanding one another's tongue should be grouped together politically on the ground of linguistic affini- ties assumed to prove community of descent, is quite a new idea. Nevertheless, we owe to it, at all events in part, the vast development of German nationality: and we certainly owe to it the pretensions of the Russian Empire to at least a presidency over all Sclavonic communities. The theory is perhaps stretched to the point at which it is nearest breaking when men, and particularly Frenchmen, speak of the Latin race. India has given to the world Comparative Philo- logy and Comparative Mythology ; it may yet give lis a new science not less valuable than the sciences of lari":ua":e and of folk-lore. I hesitate to call it Com- parative Jurisprudence because, if it ever exists, its area will be so much wider than the field of law. For India not only contains (or to speak more accu- rately, did contain) an Aryan language older than any other descendant of the common mother-tongue, ISOLATION OP INDIA. Sll and a variety of names of natural objects less per- fectly crystallised than elsewhere into fabulous per- sonages, but it includes a whole world of Aryan institutions, Arj'^an customs, Aryan laws, Aryan ideas, Aryan beliefs, in a far earlier stage of growth and development than any which survive beyond its borders. There are undoubtedly in it the materials for a new science, possibly including many branches. To create it indeed, to give it more than a beginning, will require many volumes to be written and many workers to lend their aid. It is because I am not without hope that some of these workers will be found here that T now proceed to show, not. indeed, that the attempt to produce such a science will suc- ceed, but that the undertaking is conceivable and practicable. But first let me try to give some sort of answer to the question which probably has occurred to many minds — why is it that all things Aryan, the chief part of the heritage of the greatest of races, are older in India than elsewhere? The chief secret, a very simple one, lies probably in the extreme isolation of the country until it was opened by maritime adven- ture. Approached not by sea but by land, there is no portion of the earth into which it is harder to penetrate. Shut in by the Himalayas and their ofF- shoots, it lies like a world apart. The great roads between Western and Eastern Asia probably lay Y 2 212 ISOLATION OF INDIA. always to the north, as they did in the tijie of Marco Polo, connecting what once was and what still is the seat of a great industrial community — Asia Minor and China. The India of Herodotus is obviously on the hither side or in the close vicinity of the Indus ; the sand of the great Indian desert which lies on the other bank was believed to extend to the end of the world. Megasthenes (Straho, xv. 1. 6) cautioned his readers against believing stories concerning the ancient history of the Indians, because they had never been conquered. The truth is that all immigrations into India after the original Aryan immigration, and all conquest before the English conquest, including not only that of Alexander, but those of the Mussulmans, affected the people far more superficially than is assumed in current opinions. The true knowledge of India began with the era of distant navigation, and even down to our fathers' day it was extraordinarily slight. Even when maritime adventure did reveal something of the country, it was only the coast popu- lations which were in any degree known. It is worth while pausing to remark that these coast populations have very materially contributed, and still contribute, to form the ordinary European view of India. The French philosophical writers of the last century, whose opinions at one time exercised directly, and still exer- cise indirectly, considerable influence over the fortunes of mankind, were accustomed to theorise largely about COAST POPULATIONS. 213 the East; but, though they had obtained some know- ledge of China from the narratives of missionaries, they obviously knew nothing about any part of India except the coast. The ' Histoire Philosophique des Indes,' a lengthy work of the Abbe Raynal and Diderot which is said to have done more than any other book to diffuse those notions about the consti- tution of human society which had vast effect on the course of the first French Revolution, is little more, so far as it relates to India, than a superficial account of European dealings with the populations of the coast ; a little way inland the writers profess to have found communities living in a state of nature and innocence. There were of course Englishmen at the end of the eighteenth century who knew India a great deal better than Raynal and Diderot ; but there is a good instance of the common limitation of English ideas about India to its coast in a work which was famous in our own day. Mr. Buckle, in the General Introduction to his ' History of Civilisation,' has de- rived all the distinctive institutions of India and the peculiarities of its people from their consumption of rice. From the fact, he tells us, that the exclusive food of the natives of India is of an oxygenous rather than a carbonaceous character, it follows by an inev- itable law that caste prevails, that oppression is rile, that rents are high, and that custom and law are stereotyped. The passage ought to be a caution 214 COAST POPULATIONS. against overbold generalisation ; for it unfortunately happens that the ordinary food of the people of India is not rice. It is a product of the coast, growing in the deltas of great rivers, and only at one point of the country extending any distance inland. And there is another product of the coast of India which furnishes some of the best intentioned of our countrymen with materials for a rather hasty generalisation as to India as a Avhole. For it is in the cities of the coast and their neighbourhood that there has sprung up, under English influence, a thirst for knowledge, a body of opinions, and a standard of taste, which are wholly new in India. There you may see universities thronged like the European schools of the later middle age. There you may ob- serve an eagerness in the study of Western literature and science not very unlike the enthusiasm of Euro- pean scholars at the revival of letters. From this part of India come those most interesting samples of the native race who from time to time visit this country ; but they are a growth of the coast, and there could be no greater mistake than to generalise from them as to the millions upon millions of men who fill the vast mterior mass of India. If passing beyond the fringe of British civilisa- tion which is found at certain points of the Indian toasts, you enter this great interior block, you find that the ideas which it suggests are very different CHAEACTER OP THE INTEEIOK. 215 indeed from those current about India even in this country. Such ideas have Httle in common with the apparent belief of some educated persons here that Indians require nothing but School Boards and Nor- mal Schools to turn them into Englishmen, and very much less in common with the brutal assumption of the English vulgar that there is little to choose between the Indian and the negro. No doubt the social state there to be observed can only be called Barbarism, if we could only get rid of unfavourable associations with the word; but it is the barbarism either of the very family of mankind to which we belong, or of races which have accepted its chief and most characteristic institutions. It is a barbarism which contains a great part of our own civilisation, with its elements as yet inseparate and not yet un- folded. All this interior India has been most care- fully observed and described by English functionaries from the administrative point of view, and their descriptions of it are included in hundreds of reports, but a more accessible and popular account of the state of idea, belief, and practice at the very centre of this great group of countries may be read in a series of most instructive papers lately published by Mr. Lyall, a gentleman now high in Indian ofBce. (See Note A.) The province he describes, Berar, is specially well situated for such observations, for, though relieved from internal disturbance, it has been 218 ACTUAL BRAHMINICAL RELIGION. as yet very imperfectly brought under British influ- ences, being only held by the British Government in deposit from the great Mahometan prince of the South, the Nizam. There is no doubt that this is the real India, its barbarism (if I must use the word) imper- ceptibly giving way in the British territories until it ends at the coast in a dissolution amid which some- thing like a likeness of our own civilisation may be discerned. I spoke of the comparative preservation of primi- tive custom and idea in India as explicable in part through the geographical position of the country. But no reader of Mr. Lyall's papers can doubt that another powerfiil preservative has been the influence of Religion and Caste, an influence, however, of which I must warn my hearers that they will gain no ac- curate conception from the impressions generally given by the words I have used. European scholars, having hitherto been chiefly interested in the ancient languages of India and in the surprising inferences suggested by them, have very naturally acquiesced in the statements which the sole literary class has made about itself and its creed. But nothing can give a falser impression of the actual Braliminical religion than the sacred Brahminical literature. It represents itself as an organised religious system, whereas its great peculiarity, and (I may add) its chief interest, arises from its having no organisation EFFECTS OF BKAHMINISM ON OLDER FAITHS. 217 whatever. Incidentally, let me observe, we obtain a much more vivid impression of the prodigious effects upon Western Europe, I do not say of Christianity, but of an institution like the Christian Church, when we have under our observation in Central India a religion no doubt inspiring belief, but having no organised direction, and thus debarred from making war on alien faiths and superstitions. Brahminism is in fact essentially a religion of compromise. It reconciles itself with ancient forms of worship, and with new ones, when they become sufficiently preva- lent, by taking them up into itself and by acceptmg the fashionable divinity as an incarnation of Vishnu or Siva. Thus Brahminism does not destroy but preserves older beliefs and cults, and with them the institutions which many of them consecrate and hold together. It cannot be doubted that Central India thus reproduces the old heathen world which Christianity destroyed. There prevails in it some- thing like the paganism of classical antiquity, nnd this in the British territories shades off into the paganism, half absorbed in philosophical theory or mystical faith, which immediately gave way to the diffusion of the Christian creed. In the countries described by Mr. Lyall, every brook, every grove, every jutting rock, has its divinity; only Avith none of them is there any association of beauty; the genius of the race, radically differing in this from 918 DEIFICATION OP FORCE. the Hellenic genius, clothes them exclusively with grotesque or terrible forms. What is more to my present purpose, every institution, every pursuit, every power beneficent or maleficent, is consecrated b}'^ a supernatural influence or presidency. Thue ancient practices and customs, little protected by law, have always been protected by religion; nor would it be difficult to obtain the same protection for new laws, if sternly enforced, and for new manifestations of irresistible authority. I am persuaded that, if the British Government of India were not the organ of a free and Christian community, nothing would have been easier for it than to obtain that deification and worship which have seemed to some so monstrous when they were given to the Roman Emperors. In that mental atmosphere it would probably have grown up spontaneously ; and, as a matter of fact, some well-known Indian anecdotes narrate the severity which has had to be used in repressing minor and isolated instances of the same tendency. One brave soldier and skilful statesman is remem- bered in India not only for his death at the head of the storming party which had just made itc way into Delhi, but for having found himself the centre of a new faith and the object of a new worship, and for having endeavoured to coerce his discii)le8 into dis- belief by hearty and systematic flogging. The common religious sanction binding the various ACTUAL CHARACTER OF CASTE. 2iQ groups of native Indian society together finds an out- ward and practical expression in the usages of Caste, Here again the nearly exclusive attention paid in Europe to the Brahniinical literature has spread abroad very erroneous ideas of a remarkable in- stitution. The Brahminical theory of three or four universal castes has certainly considerable indirect influence, but the division of Hindoo society into accurately defined horizontal strata, if it ever existed as a fact (which it probably did not), exists no longer. There is only one perfect universal caste, that of the Brahmins ; there are a certain number of isolated dynasties and communities pretending to belong to the second of the theoretical castes ; but, in the enormous majority of instances, caste is only the name for a number of practices which are followed by each one of a multitude of groups of men, whether such a group be ancient and natural, or modern and arti- ficial. As a rule, every trade, every profession, every guild, every tribe, every clan is also a caste, and the members of a caste not only have their own. special objects of worship, selected from the Hindoo pantheon or adopted into it, but they exclusively eat together and exclusively intermarry. You will see at once that a solidity is thus given to all groups of men which has no counterpart in the Western world, and you can understand, I think, without difficulty, how it is that all the old natural elements of society i?20 THE COMPAEATIVE TiIETHOD AXD PEOPERTr. have been preserved under the influence of caste in extraordinary completeness, along with the institu- tions and ideas which are their appendage. At the same time, Mr. Lyall explains that the process of forming castes still continues, especially sectarian castes. A new sect, increasing in numbers and power, becomes a new caste. Even this dissolution and recombination tends, however, on the whole to preserve the ancient social order. In Western Europe, if a natural group breaks up, its members can only form a new one by voluntary agreement. In Central India they would recombine on the footing and on the model of a natural family. Assuming then that the primitive Aryan groups, the primitive Aryan institutions, the primitive Aryan ideas, have really been arrested in India at an early stage of development, let me ask whether any, and, if so, what sort of addition to our knowledge may be expected from subjecting these phenomena to a more scientific examination, that is, an examination guided by the method which has already led to considerable results in other fields of comparative enquiry. I will try to illustrate the answer which should be given by taking one great institution, Property. It is unneces- sary, 1 suppose, to enlarge on its importance. The place which it occupies as a source of human motive has been proclaimed by all sorts of writers, in all kinds of languages, in every mood and vein — gravely, THEORIES OF PROPERTY. 221 sadly, complacently, sarcastically. A large body of religious precept and moral doctrine clusters round it, and in our day the fact of its existence has been taken as the basis of a great deductive science. Poli- tical Economy. Yet any intelligent man who will be at the pains to ask himself seriously what he knows about its origin or the laws or mode of its historical growth will find that his knowledge is extraordinarily small. The best economical writers expressly decline to discuss the history of the institution itself, at most observing that its existence is for the good of the human race. Until quite recently the theories ac- cepted concerning the early history of Property would scarcely bear a moment's examination. The popular account of it, that it had its origin in a state of nature, is merely a way of giving expression to our own ignorance, and most of the theories which till lately had currency on the subject are in reality nothing more than restatements of this view, more or less ingenious. Now here, at all events, there is antecedent pro- bability that something new may be learned from Ind ian observation and experience. For of the vast official literature produced during nearly a century by functionaries in the employment of the Indian Government, much the largest part is filled with a discussion of the Eastern forms of ownership and their relation to those of the West. If indeed these 222 INDIAN FORMS OF rROPERTT. observers had written upon institutions wholly un- like ours, their papers would have small interest for us. If Englishmen settled in India had found there kinds of property such as might be attributed to Utopia or Atlantis, if they had come upon actual community of goods, or an exact equality of all fortunes, or on an exclusive ownership of all things by the State, their descriptions would at most deserve a languid curiosity. But what they found was very like, and yet appreciably unlike, what they had left at home. The general aspect of this part of social mechanism was the same. There was property, great and small, in land and moveables ; there were rent, profits, exchange, competition ; all the familiar econo- mical conceptions. Yet scarcely one of tliem exactly corresponded to its nearest Western counterpart. There was ownership, but joint ownership by bodies of men was the rule, several ownership by individuals was the exception. There was the rent of lands, but it had to be reconciled with the nearly universal prevalence of fixity of tenure and the consequent absence of any market standard. There was a rate of profit, but it was most curiously under the in- fluence of custom. There was competition, but trade was conducted by large bodies of kinsmen who did not compete together ; it was one large aggregate association which competed with another. The ob- Bervations of these facts by Anglo-Indian functionaries * INDIAN DISCUSSIONS ON OWNERSHIP. 221 are more valuable than their speculations on them. Their chief desire has been to discover how the economical phenomena of the East could best be de- scribed in the economical language of the West, and I suppose that whole volumes have been written on two classes of these phenomena in particular, on the question whether the great share of the profits of cultivation taken by the British Government of India (like all Oriental governments) is properly called land-tax or rent, and on the question whether the protected or hereditary tenancy of the East is or is not a violation of the rights of property; or, in other words, whether it can be reconciled with the Western conception of ownership. Of these sagacious men, those best read in Western literature have, on the whole, been apt to borrow the habit of the English political economists, and to throw aside, under the name of friction, all the extraneous influences which clog the action of those wheels of social mechanism to which economical science, with much more justifica- tion in the West than in the East, confines almost wholly its attention. In point of fact, the value and importance of the retarding causes thus rejected could not have been understood until quite lately. The application of the historical method to property and to all the ideas which go with it, is among the most modern of imdertakinffs. During the last five* and-twenty years Cicrman enquirers have been busy 224 VALUE OP IlfDIAN PHENOMEXA. with the early history and gradual development of European ownership, ownership, that is to say, of land. But the Historical Method in their hands has not yet been quickened and corrected by the Com- parative Method, nor are they fully as yet aware that a large part of ancient Europe survives in India. They are thus condemned for awhile to struggle with the difficulties which embarrassed the scholar who speculated on the filiation and mutual relation of languages at a time when the reality of a Sanscrit literature was obstinately discredited, or when San- scrit was believed to be an artificial cryptic dialect invented by the Brahmins. The first step towards the discovery of new truth on these subjects (and perhaps the most difficult of all, so obstinate are the prejudices which stand in the way) is to recognise the Indian phenomena of owner- ship, exchange, rent, and price as equally natural, equally respectable, equally interesting, equally worthy of scientific observation, with those of Western Europe. The next will have been accompli'^hed when a set of enquiries now actively conducted in the eastern parts of the Continent of Europe have been carried farther, and when a set of economical facts strongly resembling those familiar to Englishmen in India have been collected from Aryan countries never deeply affected by the Roman Empire on the one hand, nor by Mahometanism on the other — for Ma- EARLY HISTORY OP PROPERTY. 225 hometanism, of which the influence on Indian institu- tions and customs has been so slight as to be hardly worth taking into account, has elsewhere by its authority as a mixed body of religion and law com- pletely transformed the character of whole popula- tions. The last step of all will be to draw the proper inferences from the close and strikinoj analofries of these widely diffused archaic phenomena to the an- cient forms of the same institutions, social forces, and economical processes, as established by the written liistory of Western Europe. When all this has been done, it is not unsafe to lay down that the materials for a new science will exist, a science which may prove to be as great a triumph of the Comparatire Method as any which it has hitherto achieved. I have not the presumption to advance any very posi- tive predictions as to the conclusions at which it will arrive, but there is not much immodesty in laying before you, briefly and in general language, some of the results to which modem investigations into the history of the all-important institution of which we have been speaking, Property, appear to be at present I)ointing. Whenever a corner is lifted up of the veQ which hides from us the primitive condition of mankind, even of such parts of it as we know to have been destined to civilisation, there are two positions, now very familiar to us, wliicli scciii to be signally falsified i ANCIENT JOINT OWNERSHIP. by all we are permitted to see — All men are brothers, and all men are equal. The scene before us is rather that which the animal world presents to the mental eye of those who have the courage to bring home to themselves the facts answering to the memorable theory of Natural Selection. Each fierce little com- munity is perpetually at war with its neighbour, tribe with tribe, village with village. The never-ceasing attacks of the strong on the weak end in the manner expressed by the monotonous formula which so often recurs in the pages of Thucydides, ' they put the men to the sword, the women and children they sold into slavery.' Yet, even amid all this cruelty and carnage, we find the germs of ideas which have spread over the world. There is still a place and a sense in which men are brothers and equals. The universal belligerency is the belligerency of one total group, tribe, or village, with another; but in the interior of the groups the regimen is one not of conflict and confusion but rather of ultra-legality. The men who composed the primitive communities believed themselves to be kinsmen in the most literal sense of the word ; and, surprising as it may seem, there are a multitude of indications that in one stage of thought they must have regarded themselves as equals. When these primitive bodies first make their a[)pearance as landowners, as claiming an exclusive enjoyment in a definite area of land, not only do their MODERN ORIGIN OP COMPETITION. 227 shares of the soil appear to have been originally equal, but a number of contrivances survive for pre- serving the equality, of which the most frequent is the periodical redistribution of the tribal domain. The facts collected suggest one conclusion which may be now considered as almost proved to demonstration. Property in Land, as we understand it, that is, several ownership, ownership by individuals or by groups not larger than families, is a more modern institution than joint property or co-ownership, that is, ownership in common by large groups of men originally kinsmen, and still, wherever they are found (and they are still found over a great part of the world), believing or assuming themselves to be in some sense of kin to one another. Gradually, and probably under the in- fluence of a great variety of causes, the institution familiar to us, individual property in land, has arisen from the dissolution of the ancient co-ownership. There are other conclusions from modern enquiry which ought to be stated less confidently, and several of them only in negative form. Thus, wherever we can observe the primitive groups still surviving to our day, we find that competition has very feeble play in their domestic transactions, competition (that is) in exchange and in the acquisition of property. This phenomenon, with several others, suggests that Com- petition, that prodigious social force of which the action is measured by political economy, is of «2 S23 EXCHANGEABLENESS OF LAND. relatively modern origin. Just as the conceptions of Iiuman brotherhood and (in a less degree) of human equality appear to have passed beyond the limits of the primitive communities and to have spread them- selves in a highly diluted form over the mass of man- kind, so, on the other hand, competition in exchange seems to be the universal belligerency of the ancient world which has penetrated into the interior of the ancient groups of blood -relatives. It is the regulated private war of ancient society gradually broken up into indistinguishable atoms. So far as property in land is concerned, unrestricted competition in })ur- chase and exchange has a far more limited field of action even at this moment than an Englishman or an American would suppose. The view of land as merchantable property, exchangeable like a horse or an ox, seems to be not only modern but even now distinctively Western. It is most unreservedly ac- cepted in the United States, with little less reserve in England and France, but, as we proceed through Eastern Europe, it fades gradually away, until in Asia it is wholly lost. I cannot do more than hint at other conclusions which are suggested by recent investigation. We may lay down, I think at least provisionally, that in the beginning of the history of ownership there waa no such broad distinction as we now conmionly draw between political and proprietary power, between the COMMUNISTIC THEORIES 226 power which gives the right to tax and the power which confers the right to exact rent. It would seem as if the greater forms of landed property now exist- ing represented political sovereignty in a condition of decay, while the small property of most of the world has grown — not exclusively, as has been vulgarly supposed hitherto, out of the precarious possessions of servile classes — but out of the indissoluble associa- tion of the status of freeman with a share in the land of the community to which he belonged. I think, again, that it is possible we may have to revise our ideas of the relative antiquity of the objects of en- joyment which we call moveables and immoveables, real property and personal property. Doubtless the great bulk of moveables came into existence after land had begun to be appropriated by groups of men ; but there is now much reason for suspecting that some of these commodities were severally owned before this appropriation, and that they exercised great influence in dissolving the primitive collective OAvnership. It is unavoidable that positions like these, stated as they can only be stated here, should appear to some paradoxical, to others unimportant. There arc a few perhaps who may conceive a suspicion that, if property as we now understand it, that is, several property, be shown to he more modem, not only than the human race (which was long ago assumed). ^ SEVERAL PROPKETY AND CIVILISATION. but than ownership in common (which is only beginning to be suspected), some advantage may be gained by those assailants of the institution itself whose doctrines from time to time cause a panic in modern Continental society. I do not myself think so. It is not the business of the scientific historical enquirer to assert good or evil of any particular insti- tution. He deals with its existence and develop- ment, not witli its expediency. But one conclusion he may properly draw from the facts bearing on the subject before us. Nobody is at liberty to attack several property and to say at the same time that he values civilisation. The history of the two cannot be disentangled. Civilisation is nothing more than a name for the old order of the Aryan world, dissolved ^ut perpetually re-constituting itself under a vast variety of solvent influences, of which infinitely the most powerful have been those which have, slowly, and in some parts of the world much less perfectly than others, substituted several property for collective ownership. If such a science as I have endeavoured to shadow forth in this Lecture is ever created, if the Compara- tive Method applied to laws, institutions, customs, ideas, and social forces should ever give results resembling those given by Comparative Philology and Comparative Mythology, it is impossible that the con- sequences should be insignificant. No knowledge, THE COMPAEATIVE METHOD AND CUSTOAf. 231 new and true, can be added to the mental stock of mankind without effects penetratmg deeply and ra- mifying widely. It is conceivable that, as one result, we of Western Europe might come to understand ourselves better. We are perhaps too apt to consider ourselves as exclusively children of the age of free- trade and scientific discovery. But most of the elements of human society, like most of that which goes to make an individual man, come by inheri- tance. It is true that the old order changes, yielding place to new, but the new does not wholly consist of positive additions to the old ; much of it is merely the old very slightly modified, very slightly dis- placed, and very superficially recombined. That we have received a great legacy of ideas and habits from the past, most of us are at least blindly con- scious ; but no portion of the influences acting on our nature has been less carefully observed, and they have never been examined from the scientific point of view. I conceive that the investigations of which I have been speaking might throw quite a new light on this part of the social mechanism. As one consequence of a new method of enquiry, I believe that some celebrated maxims of public policy and private conduct, which contain at most a portion of truth, might be revised and corrected. Among these I do not hesitate to place the famous Greatest Happiness principle of Bentham. In spite 232 BENTHAMISM. of the conventional obloquy attaching to his name, and strong as is the reluctance to accept the greatest happiness of the greatest number as the standard of morality, no observant man can doubt that it is fast taking its place in the modern world as the regulative principle of all legislation. Yet nobody can carefully examine the theory of human nature which it implies without seeing that it has great imperfections, and that unless some supplementary qualifying principles be discovered, a host of social experiments will bring with them a vast measure of disappointment. For these qualifications I look forward far less to dis- cussions on moral philosophy as it is at present understood, than to some such application of the comparative method to custom, idea, and motive as 1 have tried to recommend. Another illustration of my meaning I will take from Political Economy. The science consists of deductions from the assump- tion that certain motives act on human nature with- out check or clog. There can be no question of the scientific propriety of its method, or of the greatness of some of its practical achievements ; yet only its bigots assert that the motives of which it takes account are the only important human motives, or that whether they are good or bad, they are not seriously impeded in their operation by counteracting forces. All kinds of irrelevant charges, or charges weak to puerility, have been brought against political POLITICAL ECONOMY. 233 economy ; but no doubt the best of its expositors do occasionally lay themselves open to the observa- tion that they generalise to the whole world from a part of it ; that they are apt to speak of their pro- positions as true a priori^ or from all time ; and that they greatly underrate the value, power, and interest of that great body of custom and inherited idea which, according to the metaphor which they have borrowed from the mechanicians, they throw aside as friction. The best corrective which could be given to this disposition would be a demonstration that this ' friction ' is capable of scientific analysis and scien- tific measurement ; and that it will be shown to be capable of it I myself firmly believe. For some obvious reasons, I refrain from more than a mere reference to one set of effects which ob- servation of India might have on European thought, those which might be conceived as produced by the spectacle of that most extraordinary experiment, the British government of India, the virtually despotic government of a dependency by a free people. Here, I only venture to assert that observation of the British Indian political system might throw a flood of new light on some obscure or much misunderstood epochs of history. I take an example in tlie history of tlie Romans under the Empire. It has been written with much learning and acumen ; yet it is wonderful how little popular knowledge has advanced since Gibbon 334 INDIA AND THE UOM/^ EMPIRE. published the ' Decline and Fall.' In our popular literature the old commonplaces hold their ground ; the functionaries are described as everywhere oppres- sive and corrupt, the people as enervated, the taxa- tion as excessive, the fortunes of the State are treated as wholly bound up with the crimes and foUies of the Emperors. The incompleteness, in some respects the utter falsity of the picture, is well known to the learned, yet even they have perhaps hardly made enough of the most instructive parallels furnished by the British government of India. The remark has been made that the distinction between the provinces of the Senate and the provinces of the Prince seemed to be the British Indian distinction between a Regula- tion and a Non-Regulation province, but few know how curiously close is the analogy, and how the his- tory of the competing systems has run precisely the same course. Few, again, have quite understood how the ordinary administration of a Native Indian State, or of a British ProAdnce under semi-military rule, throws light upon the condition of the Jewish Commonwealth during that era of supreme interest and importance when it was subject to the Romans, and yet not completely incorporated with the Empire. What may be called the secular portions of the Acts of the Apostles come strangely home to Indian func- tionaries. They know better than other men what sort of princes were Ilerod Antipas and Agrippa ; INDIA A^'D JUDJEA. 236 how natural to different forms of the official mind is the temper of Festus on the one hand and the temper of Gallic on the other ; how steady is the effort of priestly classes to bring secular authority to their side ; how very important and turbulent an interest is that of the makers of silver shrines for the goddess ; and how certainly, if the advent of Christian missionaritts were to cause a riot in an Indian city, the Deputy Commissioner would send for the leading citizens and, in very nearly the words of the town- clerk of Ephesus, would tell them that, if they had anything to complain of, there were Courts and the Penal Code. Turning to more general topics, let me say that a problem now much perplexing historical scholars is simplified by experience of India. How was it that some institutions of the Provinces were crushed down and levelled by the Roman Imperial system, while others, derived from the remotest Aryan antiquity, were kept in such preservation that they easily blended with the institutions of the wilder Aryan races who broke into the Empire? British India teaches us that part of the destroying process is inevitable; for instance, the mere establish- ment of a Court of Justice, such as a Roman Court was, in Gaul wDuld alter and transform all the cus- tomary rights of the Gallic Celts by arming them with a sanction. On the other hand, certain insti- tution ij of a primitive people, their corporations and 236 BRITISH GOVERNMENT OP INDIA. village-communities, will always be preserved by a suzerain state governing them, on account of the facilities which they afford to civil and fiscal admini- stration. Both the good and the evil of the Roman Empire are probably reproducfd in British India. There are the almost infinite blessings of the Pax Britannica, and an enormous growth of wealth, com- fort, and material happiness ; but there are some drawbacks, and among them no doubt is the tendency of a well-intentioned, and, on the whole, successful government, to regard these things as the sum of all which a community can desire, and to overlook the intangible moral forces which shake it below the surface. From whatever point of view India is examined, if only it be carefully and conscientiously examined, one consequence must, I think, certainly follow. The difficulty of the experiment of governing it will be better understood, and possibly the undertaking will be regarded witli more consideration. The general character of this difficulty may be shortly stated. There is a double current of influences playing upon this remarkable dominion. One of these currents has its origin in this country, begin- ning in the strong moral and political convictions of a free people. The other arises in India itself, en- gendered among a dense and dark vegetation of primitive opinion, of prejudice if you please, stub- OBSTINACY OF NATIVE PREJUDICE. 237 bornly rooted in the debris of the past. As has been truly enough said, the British rulers of India are hke men bound to make their watches keep true time in two lonsitudes at once. Nevertheless the paradoxical position must be accepted. If they are too slow, there will be no improvement. If they are too fast, there will be no security. The true solution of the problem will be found, I believe, in some such examination and classification of Indian phenomena as that of which I have bten venturing to affirm the possibility. Those who, guided solely by Western social experience, are too eager for innovations which seem to them indistinguishable from improvements, will perhaps be overtaken by a wholesome distrust when they see in institutious and customs, which would otherwise appear to them ripe for destruction, the materials of knowledge by which the Past, and to some extent the Present, of the West may be inter- preted. On the other hand, though it be virtually impossible to reconcile the great majority of the natives of India to the triumph of Western ideas, maxims, and practices, which is nevertheless inevi- table, we may at all events say to the best and most intelligent of them that we do not innovate or destroy in mere arrofjance. We rather chanjje because we cannot help it. Whatever be the nature and value of that bundle of influences which we call Progress, nothing can be more certain than that, when a society 238 HELLIirS'IC ORIGIN OP PROGRESS. is once touched by it, it spreads like a contagion, Yet, so far as our knowledge extends, there was only one society in which it was endemic ; and put- ting that aside, no race or nationality, left entirely to itself, appears to have developed any very great in- tellectual result, except perhaps Poetry. Not one of those intellectual excellencies which we regard as characteristic of the great progressive races of the world — not the law of the Romans, not the philoso- phy and sagacity of the Germans, not the luminous order of the French, not the political aptitude of the English, not that insight into physical nature to which all races have contributed — would apparently have come into existence if those races had been left to themselves. To one small people, covering in its original seat no more than a handsbreadth of terri- tory, it was given to create the principle of Progress, of movement onwards and not backwards or down- wards, of destruction tending to construction. That people was the Greek. Except the blind forces of Nature, nothing moves in this world which is not Greek in its origin. A ferment spreading from that source has vitalised all the great progressive races of mankind, penetrating from one to another, and pro- ducing: results accordant with its hidden and latent genius, and results of course often far greater than any exhibited in Greece itself It is this principle of progress which we Englishmen are communicating ENGLISH INFLUENCE IN INDIA. 239 to India. We did not create it. We deserve no special credit for it. It came to us filtered through many different media. But we have received it; and as we have received it, so we pass it on. There is no reason why, if it has time to work, it should not develope in India effects as wonderful as in any other of the societies of mankind. ADDRESS TO UNIVERSITY OF CALCUTTA.^ Those Members of the Senate who have been con- nected with our University since its foundation, will not be surprised if, in what I have to say to you, 1 depart in some degree from the addresses of former Vice-Chancellors. I have obtained from the Registrar copies of those addresses, so far as they have been reported, and I see that they are principally devoted to explaining to the Native Students, and through them to the Natives of India generally, what is the nature of a University, and to impressing on them the value of the distinctions it confers. It is not, I think, necessary to dwell any longer on those topics ; indeed I am not sure that more harm than good would not be done by my dwelling on them. There is now more evidence than enough that our University has taken root. I have seen it stated that the in- crease in the numbers of the older English Univer- sities is about six per cent. ; but the increase of the University of Calcutta is no longer expressed by ' (Delivered before the Senate, March 18G4.) NUMBER OF UNIVERSITY STUDENTS. 241 taking a percentage ; it is not even expressed by Baying that our numbers have doubled or trebled. The number of entrances has positively sextupled since the foundation of the University six years ago, which is a rate of growth never seen out of the tropics. It is easy to be wise after the event; but I think I could have predicted this. Know- ing as I do how deeply the taste for University distinctions penetrates even in England, although there it has to compete with the almost infinitely varied and multiplied forms which English enterprise assumes, I think I could have foreseen that a society like the native society of Bengal — a society whose faults no less than its excellencies lie on the side of mental acuteness, and which from its composition and circumstances has comparatively few facilities for the exercise of activity — I could have foreseen that such a society could be stirred to its inmost depths by an institution which conferred visible and tangible rewards on the early and sometimes, it is to be feared, the precocious display of intellectual ability. What now remains to be done is not so much to stimulate the ambition which seeks to gratify itself by a University degree or honour, as to make pro- vision that those honours and degrees arc really tiie symbols and the witnesses of solid acquirements. My predecessors have, I see, striven to bring out the points of similarity between this University and the B 242 ENGLISH AXD INDIAN UNIVERSITIES. / Universities of England. We should Merely be imitating their external and temporary ch tracteristica if ■we omitted to follow them in that one characteristic which has redeemed all their shortcDmings — the thoroughness of their tests and the conscientiousness of their teaching. It would be vain to deny, and I am sure that I do not care to deny, that Oxford and Cambridge have in time past been guilty of many faults both of omission and of commission. Thev have failed to teach much which they ought to have tauglit, and taught much which they ought not to have tauo^ht : but whatever thev did teach, thev have taught with a stern and severe completeness. Their weak side has been intolerance of new subjects of thought ; their strong side has been their in- tolerance of superficiality. It is this direction which all our future efforts, the efforts both of the University and of all the Colleges affiliated to it, ought to follow ; and this direction has, I am happy to say, been in fact followed in those alterations of our course to which the Senate has recently given its sanction — alterations of which the principal credit belongs, as T am sure all associated with him will allow, to my immediate predecessor Mr. Erskine One great step forwards has been made in the substitution, of course the partial and gradual substitution, of classical languages for vernacular or spoken languages, as subjects of examination. I INDIAN CLASSICAL AND VERNACULAR LANGUAGES. 243 will not trouble you with all the grounds on which this reform is justified. If you wish to understand them thoroughly, I commend you to the published writings of the accomplished scholar — whom I am proud to call my friend — who is Vice-Chancellor of the University of Bombay,^ But independently of the difficulty of examining in languages many of which have no true literature, which have only a fac- titious literature, a literature of translations, you must see what a premium is placed upon flimsiness in knowledge when a young man is examined in a spoken dialect, which is picked up, half unconsciously, in conversation and by the ear, against another young man who is examined in one of ihose classical lan- guages which, before they are mastered, bring out the strongest powers of the memory and the reason. There is really nothing in common between the linguistic attainments of a student who passes or obtains honours in Greek, or Sanscrit, or Arabic, and those of one who passes in Burmese or Oorj'a, or — for this is, to a certain extent, true of those lan- guages — even in Bengali or Hindustani. I have spoken of superficiality as our great danger. But do not suppose that I am insinuating anything with respect to the actual performances of the students. The Registrar has furnished me with some samples ' Sir Alexander Grant, now Principal of the Universitjr of Edinburgh. S44 NATIVE ENGLISH. of the papers which contain the answers. My im- pression, which coincides, I beheve, with that of the Examiners, is that, in those subjects in which high proficiency may reasonably be expected, the evidence of industry, quickness and clearness of head, is not very materially smaller than the proof of similar qualities furnished by a set of English examination papers. Superficiality will to some extent form part of the results of every examination, but I cannot conscientiously say that I have seen much more of it here than in the papers of older Universities. And now, as I am on this tof ic, I will observe that there is one characteristic of these papers which has struck me very forcibly. It is the extraordinary ambition of the Native Student to write the best — perhaps I should rather say the finest — English. In some cases the attempt has been singularly successful; in others it has failed, and I think I may do some good to the Native Students present if I say why I consider it has failed. It has failed, then, because the attempt has been too consciously and deliberately made. Of course I do not forget that these Students are writing in a foreign tongue, and that their per- formances are justly compared only with those Latin tliemes which some of the gentlemen around me have written in their youth. But on the other hand, the English of a Bengali lad is acquired for permanent NATIVE ENGLISH. 240 and practical purposes, to be written aid spoken to, and among, those who have written and spoken it ^ from their infancy. Under such circumstances, EngHsh can only be well written by following the golden rule which Englishmen themselves follow or ought to follow, and that rule is never to try de- liberately to write it well. Depend upon it, no man ever wrote well by striAing too hard to write well. What you should regard, is not the language but the thought, and if the thought be clearly and vividly conceived, the proper diction, if the writer be an educated man, will be sure to follow. You have only to look to the greatest Masters of English style to satisfy yourselves of the truth of what I have said. Take the first illustration which always suggests itself to an Englishman, and look at any one page of Shakespeare. After you have penetrated beneath the poetry and beneath the wit, you will find that the page is perfectly loaded with thought ; and so, you may depend upon it, it will always be at all times and with all writers. The more you read, the more con- vinced will you be that the finest fancies are formed, as diamonds are said to be formed, under the pressure of enormous m.asses of thought. The oppo!>ite process, that of trying to bring in at all hazards some favourite phrase or trick of language, will only lead you to a spurious and artificial result. I have said 60 much as this, because what I have read and heard d;:atu of lord i:lg:x. leaves me no doubt that the accomplishment of writing good English is something which lies very- near to the heart of the Native Students. I have now to address myself to matters which are of equal interest to all of us, to the events which have marked the history of the University during the year. The most conspicuous of these^ events is the calamity which deprived us of our Chancellor, as it did India of its Viceroy. I am very sensible that, in speaking to the Members of the University of Lord Elgin, I must use the same language which all who were associated with him are obliged to use of his government of India — that he died too soon for much visible proof to be given of the good intentions of which his heart was full. What I have to say of him with more particular relation to the University, I will postpone for a moment or two, and I pass to another incident of the year's history, of which I could almost be contented to say that no heavier blow has fallen on the University since its foundation — I mean the final departure from India of our colleague, Dr. Duff. It would be easy for me to enumerate the direct services which he rendered to us by aiding us, with unflagging assiduity, in the regulation, supervision, and amendment of our course of study; but, in the presence of so many Native Students and Native Gentlemen who viewed him with the deepest regard and admiration, although JriSSlOX ARIES IN INDIA. 347 tliey knew tliat his every-day wish and prayer waa to overthrow their ancient faith, I should be ashamed to speak of him in any other character than the only one which he cared to fill — the character of a Missionary. Regarding him, then, as a Missionary, the qualities in him which most impressed me — and you will remember that I speak of nothing except what I myself observed — were first of all his absolute self- sacrifice and self-denial. Religions, so far as I know, have never been widely propagated, except by two classes of men, by conquerors or by ascetics. The British Government of India has voluntarily (and no doubt wisely) abnegated the power which its material force conferred on it, and, if the country be ever converted to the religion of the dominant race, it will be by influences of the other sort, by the influence of Missionaries of the type of Dr. Dufi". Next I was struck — and here we have the point of contact between Dr. Dufi^'s religious and educational life — by his perfect faith in the harmony of truth. I am not aware that he ever desired the University to refuse instruction in any subject of knowledge, because he considered it dangerous. Where men of feebler minds or weaker faith would have shrunk from encouraging the study of this or that chissical language, because it enshrined the archives of some antique superstition, or would have refused to Etimulate proficiency in this or that walk of physical 248 MISSIO^•AIlIES IN INDIA. science, because its conclusions were supposed tc lead to irreligious consequences, Dr. DufF, believing his own creed to be true, believed also that it had the great characteristic of truth — that characteristic which nothing else except truth possesses — that it can be reconciled with everything else which is also true. If you only realize how rare this combination of qualities is — how seldom the energy which springs from religious conviction is found united with perfect fearlessness in encouraging the spread of knowledge, you will understand what we have lost through Dr. Duff's departure, and why I place it among th«. foremost events in the University year. The next incident I have to advert to, in relation to the University of Calcutta, is not a fact, but the contrary of a fact. Most of you have heard of the munificent donations which have been made to the University of Bombay by the Native community of that Presidency. I am sorry to have to state that there is nothing of the kind to record of Calcutta. I do not mean to say anything harsh when I declare that our position, in regard to the Natives of Bengal, is one of perpetually giving and never taking — of always conferring and never receiving. We have sextupled our students, but it is humiliating to have to state that the only assistance accruing to the higher education in Bengal from any quarter, except the Government, has consisted in the right to share THE INDIAN GOVERNMENT AND PRIVATE ENDOWMENTS. 249 in a fund for the encouragement of legal studies created by a Bombay gentleman. Of course 1 cannot pretend to be ignorant of the cause of this. It comes from the bad habit of looking to the Government as the sole natural author of every public benefit ; and, permit me to say, that the European portion of society appear to me a little under the influence of the same error which seems to stint the liberality of the Natives. Some jjeople appear to think that the University will never have attained a footing of respectability, until we are lodged in the building which has been promised to us. I shall be glad when we get that building, and I hope we shall get it; but except for its mere material convenience, I shall attach the very smallest importance to it. It in not public money, or the results of public money, that we should care to obtain. Depend upon it, the vitality of a University is proved not by the amounts which, by begging or bullying, it can extract from the guardians of the public purse ; it is proved by those benefactions Avhich are the natural payment of society for the immense benefits which it receives through the spread of education. Look to our two great English University towns. They are absolutely con- structed of the monuments of private liberality ; even the Kings and Queens who built some of their most magnificent structures, built them from their private resources, and not, as an Indian Ruler must ahvayB 250 ENTOirWEyTS OF ENGLISH UKIVEKSITIES. do, out of the taxes, paid to a great extent as taxes always must be, by the poorest of the poor. Yet I think that if ever there was a country iu which we might expect the wealthier classes to have the ambi- tion of perpetuating their names by University endow- ments, it is India. There seems to me to be no countrv in which men look so far forward or so far backward — in which men so deliberately sacrifice their lives to the consideration of what their ancestors have done before them, and of what their descendants will do after them. I may surprise some of you by saying this ; but it is my fixed opinion, that there is no surer, no easier, and no cheaper road to immortality, such as can be obtained in this world, than that which lies through liberality expending itself in the foundation of educational endowments. I turn again to the older English Universities, which I mention so often because I know them best. If you could transport yourselves to Oxford or Cambridge, you would hear ringing in your ears the names of iiundreds of men whose memories would have perished centuries ago if they had not linked them to the Universities by their benefactions. I will give ><)u an example. After you pass out of the gate of lay own College at Cambridge, you have before you one of the most famous, one of the most beautiful, one of the most useful of University foundations. It is called Caius College, and it is the chief school of CAIUS COLLEGE. 251 medicine in the University. Who was Caius, the founder? I will not say that he was an entirely obscure man — that would be unjust to his memory — but he was a man, a successful physician, who would have been thoroughly well forgotten, if he had not so bestowed a part of his wealth that his name is daily in the mouth of hundreds, it may be thousands, of the educated youth of England. That is only one instance. Oxford and Cambridge, however, are full of them; colleges, scholarships, exhibitions, prizes, each of them is associated with some name, which, but for the association, would have fallen into oblivion long since, but which, as it is, is stamped upon the memory of multitudes just at the period of life when the impressions received arc practically ineffaceable. It may almost be said that a founder of University endowments obtains for himself a new family. 1 have been told that there are in India certain companies of Hindoo ascetics — some of them largely endowed — where the descent and the title to the pro- perty are traced, not from father to son, but from dis- ciple to disciple. The records of an English College exhibit just this sort of genealogical tree. The Collegiate society forms a perpetually renewed family, and no family was ever prouder of its ancestor. Indeed, it sometimes happens that men of no mean birth almost prefier this pedigree to their own. I will mention one of them — the lute Viceroy 262 NATIVES AND EUROPEANS, of India. Lord Elgin was, as you know, th€ descendant of the most famous King in the line of Scottish Kings, and yet I doubt whether he was prouder of this great ancestry, or prouder of any of his successes in government or policy, than of the honour which he obtained in his youth when he was elected a Fellow of Merton College at Oxford. I have now a very few words more to say, and these shall be addressed to those for whom this Meeting is principally intended — the Native Students who have just>taken their degrees. As I stated when I began, I do not think that the taste of the Native youth of Bengal for intellectual knowledge requires to be much stimulated; there are too many motives at work to encourage it; still there is one motive which I will dwell upon for a moment, because, if it were properly appreciated, it would at once be the strongest and the most legitimate inducement to exertion. Probably, if we could search into the hearts of the more refined portions of the Native community, we should find that their highest aspira- tion was to be placed on a footing of real and genuine equality with their European fellow-citizens. Some persons have told them that they are equal already, equal in fact as they undoubtedly are before the law. Most of you have heard of one remarkable effort which was made to establish this position. A gentle- PHILOLOGY AND ETHNOLOGY. 253 man, who was then a Member of the Government of India, Mr. Laing, went down to the Dalhousie Insti- tute, and, in a Lecture delivered there, endeavoured to popularize those wonderful discoveries in philo- logical science which have gone far to lift the hypo- thesis of the common parentage of the most famous branches of the human family to the level of a scientific demonstration. I do Lot know that any- body was ever more to be admired than Mr. Laing for that act of courage, for I know how obstinate were those prejudices which he sought to overthrow, and to what a height they had risen at the moment when he spoke. The effect produced by his lecture on the Aryan race must have been prodigious, for I am sure I scarcely see a single native book or newspaper which does not contain some allusion to Mr. Lainfr's argument. Yet although what Mr. Laing then taught is truth, nothing can be more certain than that it is barren truth. Depend upon it, very little is practically gained by the Native when it is proved, beyond contradiction, that he is of the same race with the Englishman. Depend upon it, the true equality of mankind lies, not in the past, but in the future. It may come — probably will come — but it has not come already. There are some, who, like our late (oUeague, Dr. Duff, believe that the time will arrive, when all men in India will be equal under the shadow of the same religious faith. There are some EQUALITY OF MEN, — more perhaps in number — who look forward to a moral equality, who hope and expect that there will be a period when everybody in India will subscribe to the same moral creed, and entertain the same ideas as to honour, as to veracity, as to the obligation of promises, as to mercy and justice, as to that dut}^ of tenderness to the weak which is incumbent on the strong. But those epochs are still distant, one pro- bably much more distant than the other. Meantime the equality which results from intellectual cultivation is always and at once possible. Be sure that it is a real equality. No man ever yet genuinely despised, however he might hate, his intellectual equal. In Europe, the only community, which, so far as I see, is ab- solutely undivided by barriers of race, of nationality, of prejudice, of birth and wealth, is the community of men of letters and of science. The citizens of that Re- public have before now corresponded with each other and retained their friendships, while the deadliest wars were separating tlieir fellow-countrymen. I have heard that they are even now corresponding in the midst of the bloody conflict Avhich desolates America. The same influences which can overpower the fierce hatreds bred by civil war can assuredly beat down the milder prejudices of race and colour, and it is as fountains of such influences that I believe the Uni- versities will count for something, if they do count for an3'thing, in the history of British India. ADDRESS TO UNIVERSITY OF CALCUTTA.^ It remains for me to follow former Vice-Cliancellors, in impressing on the students who have just taken their degrees, the value of the training through which they have passed. But there is this difficulty. Much that has been said by my predecessors was, I have no doubt, new in their mouths, and even start- ling to the Native part of their audience. But the intellectual developement of Bengal has been so rapid, that many of those positions have passed here into the stage which they occupy in Europe, and have grown into mere commonplace. Now, the danger of dwelling on commonplaces is this, that it tempts men of acute minds — and there are no acuter minds than those of tlie educated Bengalis — to question and deny them ; and thus it helps to put out of sight the imi)ortant fact, that nothing becomes common- place which does not contain so large a proportion of truth as to make it commend itself at once to the perceptions of the great mass of mankind. I could ' Delivorod before the Senate of the University of Calcutta in March 18C5. •258 TRAININ(} OF LAWYERS hardly do a greater evil in a short time than by tempting my Native audience to doubt the advantages of education, simply because their reiteration has become tedious. It is not, then, because I doubt these general advantages any more than other Vice- Chancellors, than Mr. Ritchie, or Sir James Colville, or Lord Canning, but because no one here doubts them, that I put them aside to-day. What I wish to do now is, simply to say a few words to each class of the graduates who have just taken their degrees, as to the separate and special training which they have passed through. Naturally, the first class to which I should wish to address myself would be the Graduates in Law — those who are about to join my own profession. Most of you are aware that the number of those gentlemen who have just taken their degrees in law, considerable as it is, does not distantly represent the number of those who are destined, in one way or another, to follow the profession of law. Probably a large majority of the Graduates in Arts, of those who have just taken their degrees, and even of those who are studying in the Colleges, will become lawyers in some time, either as members of the Judicial service, or as pleaders, or as persons attached to the establish- ments of the various law Courts, Now, I know that tb.ere are many ajnong my own countrymen who think that these crowds of Natives flocking to the law POPULAEITY OF LEGAL STUDIES. 257 are a morbid and unhealthy symptom. And I, of course, admit that it is not a model society in which there is permanently a superfluity of lawyers. But, whether we like or dislike the symptom, there is no doubt of its being healthy and natural. There are many around me who are familiar with the accounts received of the multitudes who crowded the Bar in the early times of the Roman Republic — accounts, which would not be credible if the same state of things had not shown itself in modern Europe, after the revival of letters. I doubt not that the phenomenon which now shows itself in Bengal at this moment, is to be explained in the same way. Experience proves that the first result of intellectual cultivation in any community is always to divert an extraordinarily large part of its youth to the Bar. The reason of it is not hard to find. The pursuit of the law is one of the very few walks of life which offer attractions both to practical and to speculative tastes. It gratifies the passion of all young educated minds for generalization, but the materials for generalization — the material* which they fit in to general rules — are the business and the concenis of ever\'day life. The practice of ^he law combines the attractions of the closet and of the market-place ; it is money making and study at the same time. I can, therefore, understand the multitude of young educated Bongalis who give themselves to the law. And the aptitude of tlie S 258 NATIVE APTITUDE FOR LAW, young Native for the pursuit of law is now placed beyond question, although, of course, there has not been quite time to reach the highest level of legal ac« complishment. A gentleman who may be supposed to speak with more authority than any one in India on this subject, Sir Barnes Peacock, the Chief Justice of Bengal, informed me once that an average legal argument by Native Vakeels in the Appellate High Court was quite up to the mark of an average legal argument in Westminster Hall ; and that is very high praise indeed. On the other hand, complaints do reach me — these complaints are of course more addressed to the Native Bar of the country districts than to the Native Bar of the Presidency Towns — of a tendency to prefer subtlety to breadth, and of an over-love for technicality. Now, I should like to say a few words about this fault of over-technicality and over-subtlety, which 1 know, of course, to be the fault attributed to all lawyers by laymen. Perhaps I shall surprise some of you if I say that, if I were asked to give a definition of law to persons quite ignorant of it — I mean, of course, a rough and a popular, not a scientific definition or description — 1 should say that law is common sense. Of cour^^e, that is only true with very considerable reservations and abatements. If is not absolutely true even in England, where law has been cultivated for centuries by the flower of the national intellect, an intellect wedded, above all LAW AND COMMON SENSE. 258 things, to common sense. And again, whatever the result of the admirable Codes we are introducing, it is far from being true here. But still, with all reservations and all abatements, the proposition that law is common sense is much truer than any one look- ing at the subject from outside can possibly conceive. What conceals this from laymen is the fact that law, being not simply a science to be learned, but an art to be applied, has, like all arts, to be thrown into technical forms. Technicalities are absolutely in- dispensable to lawyers, just as the ideas of form, and proportion, and colour have to be thrown into a technical shape before they can give birth to painting or sculpture. A lawyer cannot do without technical rules, any mor^^ than a sculptor or a painter ; but still, it is universally true that a disposition to overrate technicalities, or to value them for their own sake, is the characteristic mark of the journeyman, as distin- guished from the artist. A very technical lawyer will always be a third-rate lawyer. The remedy, then, which I would apply to this alleged infirmity of the Native legal mind is simply this — always pre- fer the substance to the accident. If you are tempted to value a particular legal conclusion for its subtlety or (what sometimes comes to the same thing) its oddity or perversity, rather than its reasonableness, you may always safely suspect yourself. Technical rules will sometimes lead to perverse results, for 8 2 260 PROaHESS OF MEDICINE. technicalities framed in one generation occasionally fail to give the results expected from them in another, and, of course, technicalities reasonable in one quarter of the world sometimes do not serve their purpose in another. But still, after all, the grand criterion of legal soundness is common sense, and if you are in- clined to employ an argument, or to draw an inference, or to give an opinion which does not satisfy the test, which is out of harmony with experience and with the practical facts of life, I do not say, reject it absolutely, but strongly suspect it, and be sure that the presumption is heavily against it. I can speak to the next class of graduates, the medical graduates, with much less confidence. I suppose all of us feel that Medicine is a subject in which our interest is out of all proportion to our knowledge. Yet there is one complaint, which I think that a younger generation of medical men are likely to hear more frequently and more impatiently made than did their predecessors. A friend of mine once, in this very room, though to a very different audience, said he had no belief in medicine, that it was an art which made no progress. Now, I know that medical men, conscious as they are of daily additions to their knowledge, are apt to regard such compiaints as the fruit of presumptuous ignorance ; but it may be worth while to examine the particle of truth which makes such a view of this art possible P!:OGRESS OF MEDICINE. 2C1 to highly intelligent men, looking at it from outside. I believe that the eminent members of the medical profession who are now round about me, will agree with me that medicine is a general term, embracing a vast group of arts and sciences, all subordinate to I one master-art, the art of healing. All these contri- butory arts and sciences — physiology, pathology, toxi- cology, chemistry — are advancing at a vast rate, even with a speed beyond the march of other sciences ; because, to the influences which stimulate the pro- gress of other sciences is added, in their case, the poignant spur of professional ambition and interest ; and whenever all these arts and sciences are com- pleted, medicine will be most perfect and complete of all the arts. But, by the very necessities of their profession, medical men are compelled to act as if an art was complete which is only completing itself. We are constituted of too frail a structure to be able to wait for the long result of time, and our infirmities place medical men at a disadvantage, as compared with other men of science, by forcing them to anti- cipate a consummation which may be near but has not yet been reached. The scepticism, then, to which I have referred is the result of a misunderstanding, and is the necessary consequence of the position of the art ; it is surely pardonable, for to Europeans, at all events, in India, the common saying, * art is long — life is short,' has sometimes a terrible FACULTY OF ARTS. significance. Perhaps it would be well if the mis- understanding were cleared up, and language were used on both sides which would reconcile the justifi- ably unqualified language of medical men as to the progress of their art, with the not unjustifiable impatience of those who are sometimes tempted to think that it does not move at all. There remains one class, the largest of all, the graduates in Arts. Since their education is only introductory to pursuits and walks of life to be followed afterwards, I can only speak to them in general language, and therefore with but slight efiect. But there are some pecuharities in the course which they have gone through, which make a considerable impression on a person like myself, who am pretty well acquainted with the analogous course of the English Universities. The peculiarity of the course of the University of Calcutta which most strikes me is this — the nearer equality on which the Calcutta course, as compared with that of Oxford or Cam- bridge, places the subjects of study, which are there classed as the new and the old. Nominally, our course is just the same as that of the English Uni- versity. AVe examine in classics, mathematics, history, physical science, and (what does not seem to me a correct term) moral science. But at Oxford and Cambridge two of these subjects, classics and mathe- matics, are much older than the others, and the new RELATIVE PRIORITY OF STUDIES. 2a? branches of study have a hard fight to maintain their credit and popularity against the prestige of the old. It is found still, I believe, very difficult to get either teachers or pupils to attach the same importance to eminence in the new studies which attaches to dis- tinction in classics or in mathematics. Hence it is, that there is no commoner subject of discussion among persons interested in education than the relative priority which should be assigned to those branches of knowledge — which of them ought to take the lead in point of honour, and which is able to furnish the best training for the mind ; and I have seen recently, from some papers which came from England, in particular from the Report of the Public Schools' Commissioners, that the controversy is still going on. I will not state the arguments used in England, which would strike many of you as some- what conventional and traditional. But still, the question, which of these branches of study is really destined to take precedence over the rest, and to bring the others under its influence, is a question of interest, and in India even of some importance. Of course, but few graduates in Arts here, as in England, will follow in after life the studies of their period of education, nor is it desirable that many should follow them. Some few, however, will do it with advantage, and it is to this minority that I address the remarks I am going to make. 264 THE TRUTH OF HISTORY. I will take, first, one of the branches of study ■which enter into our course, History, and I select it, not because it is the one I mean, but because there is probably no one in the room who has not some ele- mentary knowledge of its nature and objects. If the question were put, Why should history be studied? the only answer, I suppose, which could be given is, Because it is true : because it is a portion of the truth to which it is the object of all study to attain. It is, however, an undoubted fact that the quality of the truth expected from history has always been chang- ing and cannot be said to be even now settled. Be- yond all question, it grew every where out of Poetry, and long had its characteristics even in the Western world. In the East, as my Native auditors know, down to comparatively modern times the two forms of truth, the poetical and historical form, were in- capable of being disentangled from one another. In the West, which alone has seen the real birth and growth of history, long after it ceased to be strictly poetical, it continued to be dramatic ; and many of the incomparable merits of those histo- rians to whom I see many of the students have been introduced by their recent studies, the great historians of the ancient Western world, as for ex- ample their painting and analysis of character, are quite as much due in reality to their sense of c ramatic propriety as to their love of pure truth. In modern HISTORY AND PHILOSOPHY. 265 times, too, many other considerations have had priority over truth. During the last century in France, which then had unquestionably the intellectual headship of Europe, it was a common opinion that history would be of no value unless it illustrated certain general propositions assumed or believed to be proved a priori — which is the meaning of the old and in my judgment extremely false commonplace that History is Philosophy teaching by example. The tendency in England, the effect of that interest which is the keenest of all interests in EngUshraen, their interest in politics, has been to make historians regard history as pre-eminently an instructress in the art of Government, and specially as charged with illustrating the principles of that branch of the art of which Englishmen are masters, the art of Consti- tutional Government. Some of this last school of writers have been men of the highest genius and the highest artistic power, and they have at any rate delivered history from one deadly sin against truth, its dulness. But quite recently — certainly within the lifetime of most persons in this room — a manifest dissatisfaction has shown itself with all these schools of history. It is now affirmed, and was felt long before it was affirmed, that tlie truth of history, if it exists, cannot differ from any other form of truth. If it be truth at all, it must be scientific truth. There can be no essential difference between the truths of 266 HISTORY AND SCIEXCE. the Astronomer, of the Physiologist, ai.d of the Historian. The great principle which underlies all our knowledge of the physical world, that Nature is ever consistent with herself, must also be true of human nature and of human society which is made up of human nature. It is not indeed meant that there are no truths except of the external world, but that all truth, of whatever character, must conform to the same conditions ; so that, if indeed history be true, it must teach that wliich every other science teaches, continuous sequence, inflexible order, and eternal law. This brings me to the point to which I was desirous of leading you. Among all our subjects of study, there is no doubt as to which is the one to which belongs the future. The fact is that within the last fifteen or twenty years, there has arisen in the world of thought a new power and a new influence, not the direct but the indirect influence of the physical sciences — of the sciences of experiment and obser- vation. The landmarks between the fields of know- ledge are beins: removed : the methods of cultivation are more than suspected to be the same for all. Already the most surprising results have been achieved by ap])lying scientific modes of inquiry to provinces of study once supposed to be furthest re- moved from science; and if there is any branch of knowledge which refuses to answer to these new HISTORY AND SCIENCE. attempts to improve it, there is a visible disposition to doubt and question its claims to recognition. The transformation Avhich some studies have undergone under the influence of scientific method may be illus- trated by one example of the greatest interest to my Native auditors. I suppose that if there "was one of all the studies formerly followed with ardour which had fallen into discredit, it was the study of mere words, the inquiry into the mere skeleton of ancient classical languages. It seemed to be regarded as fitted only for pedants, and for quarrelsome pedants too, and was in some danger of being banished to their closets. Yet under the influence of the new methods, even those dry bones have stirred, and to the analysis of language on strictly scientific principles we are indebted for that marvellous discovery which more than any other has roused and excited the educated Native mind in India, the discovery of an identity of origin between all the great races of the world. I should detain you longer than could be con- venient if I were to try to point out the exact degree in which scientific method has influenced other studies which form part of our course. I need not say that nobody ever doubted the real character of mathe- matical study. Still in England there is a tendency, which requires correction, to exalt pure over mixed mathematics, and I have been told that Native 263 PURE AXD MIXED MATHEMATICS. mathematicians in India strongly exhibit a similar pre. ference. This displacement of the true order of study is often defended at home on the ground that a pure mathematical training encourages accurate habits of thought and reasoning. Now, it is perfectly true that mathematical study, more than any other study, produces habits of sustained thought and attention, without which no great intellectual progress of any kind is possible. But the modes of reasoning followed in mathematics happen to be signally unlike those followed in any other walk of life or pro\ince of inquiry, and it would be well, I think, if teachers in India kept steadily before their pupils the truth that, except for the mighty aid they lend to physical science, and except for their value in bracing the faculty of attention, exercises in pure mathematics are as profitless an exercise as writing Latin or Sanscrit verses, without the same beneficial effect on the taste. In regard to the influence of the new methods on History, the only observation I will make is that their effect has been to change, so to speak, its per- spective. Many portions of it which had but small apparent value arc exalted into high esteem, just as a stone may be of greater interest to a geologist than a mountain, a weed than a flower to a botanist, a fibre than a whole organism to a physiologist, because they place beyond question a natural law or illustrate EFFECTS OF SCIENTIFIC METHOD. 2CS it with extraordinaiy clearness. One unquestionable effect of the tendency to regard history as a science of observation is to add greatly to the value of ancient, as compared with modern history, and not only to that of the wonderfully precise history of Greece and Rome, but to that of the semi-poetical history of ancient India. Ancient history has for scientific purposes the great advantage over modern, that it is incomparably simpler — simpler becaiase younger. The actions of men, their motives and the movements of society are all infinitely less complex than in the modem world, and better fitted, therefore, to serve as materials for a first generalization. I know very well that if I were addressing an Oxford or Cambridge audience and if I were to speak of the future as belonging to the sciences of experi- ment and observation, 1 should have many objections to answer, some of taste, some of philosophical preju- dice, some perhaps of religious feeling. But it is one advantage derivable from having to compare societies so differently constituted as those of England and India, that difficulties which are formidable when the two societies are viewed apart disappear when they are viewed together. Here in India at all events the conditions of truth are j)l:un enough. In the fight which the educated Hindu, which the Christian Missionary, wages against error, such success as has been gained, such as will be gained 270 MORAL AKD SCIENTIFIC ERROR. evidently depends on physical knowledge. If the mind of man had been so constituted as to be capable of discovering only moral truths, I shouhl have despaired of its making any permanent conquest of falsehood. Or again — which is much the same thinf; — if the founders of false systems of religion or philosophy had confined themselves to declaring moral errors only or false propositions concerning the unknown and unseen world, I see no reason for doubting that in most societies, at all events in Oriental societies, their empire would have been perpetual. For, so far from intellectual growth being in itself certain to destroy error, it constantly supplies it with new weapons. We may teach our students to cultivate language, and we only add strength to sophistry ; we teach them to cultivate their imagination, and it only gives grace and colour to delusion; we teach them to cultivate their reason- ing powers, and they find a thousand resources, in allegory, in analogy, and in mysticism, for evading and discrediting truth. Unchecked by external truth, the mind of man has a fatal facility for ensnaring, and entrapping, and entangling itself. But happily, happily for the human race, some frag- ment of physical speculation has been built into every false sj'stem. Here is the weak point. It8 inevitable destruction leaves a breach in the whole VALUE OF PHYSICAL TRUTH. 271 fabric, and through that breach the armies of truth march in. But I have still another reason for impressing on you the supremacy which I conceive to be reserved for the physical sciences. I think it impossible to say how much the permanence of the instruction of which this University plants the germs depends on the amount of this knowledge we dispense. Of all knowledge, the knowledge of ph3'sical laws is the least destructible and the most enduring. No English- man will admit that there is any probable limit to the continuance of the supremacy of his race in India. But there is one thing which will certainly outlast English power in the East, and that is Nature and her phenomena. If that catastrophe should ever happen, which now seems remote or impossible — if that pent-up flood of barbarism, which the empire of the Knglish race restrains, and only just restrains, were to sweep down as it has so often done on Ben^ral, and were to destroy that mere fringe of civilization and education which decorates this pro- vince, I think it i)robable that any tincture of phy- sical science we may impart would die out last. Physical truth, it has been justly said, has no advan- tage over moral truth but one ; it has a tendenc}' to be perpetually re-discovered. But this one advantage is enormous ; so miich so that no one natural law ever discovered has been wholly lost sight of, though 273 PERMANENCE OF PHYSICAL TEUTH. the fruitfulness of the discovery has sometimes been suspended for ages. All Nature witnesses to her o^vn laws and is a witness that never can be silenced. The stars in their courses fight for truth, and if physical knowledge retained any foothold here, I should say that the statement would be true which has so often been made in another sense, and Indi? might always be re-conquered from the sea-board of Bengal. Nobody who shares in that belief which I im- pressed on a similar audience as the noblest charac- teristic of that one of the founders of our University who quitted us last year, a belief in the harmony of all truth, will suppose that I have been ejcalting the truths of physical nature at the expense of moral or any other truths. The very fact which I have been impressing upon you, that the methods of physical science are proving to be applicable to fields of thought where they once had no place, is itself an indication that all truth will, at some time, be shown to be one and indivisible. But no doubt what 1 have been saying does carry with it the implication that truth of all sorts does admit of intellectual appreciation — that all asserted knowledge must at all events to some extent ring true, when sounded by the intellect l^ut who in India will deny this V Nobody, so far as I know, who ever wished or attempted any good i'ov the people of India — the politician who wished to THE INTELLECT IX LVDIA. 27S attach them to English rule, the administrator who laboured to call out the hidden wealth of their country, the missionary who toiled for their conversion, the philanthropists who founded the education which culminates in this University or who, like a pre- decessor of mine, sought to carry instruction into the recesses of Native families — ^none of these ever doubted that the foremost obstacles to success were intel- lectual errors, and that no instruments blunter than those of the intellect could thrust them aside. A great English writer who well represents part of the spirit of the English Universities, but that part which has most affinity for Oriental habits of thought, wrote the other day of the intellect as an all-dissolving, all- corroding power, before which everything good and great and beautiful was gradually melting and sinking away. The cure for this distortion of view is in India, where every one of us would rather describe the in- tellect as all-creating and all-renewing, the only known instrument of all moral and of all religious and of all material improvement. But still if intellectual culti- vation is to fill the measure of its advantages to India, there is no doubt it should be constantly progressive. I myself attach very little weiglit to the cavil at Native education which one sometimes hears in this country — that it does nothing but fosters personal conceit and mental scepticism. I suspect the intelli- gence, and still oftcner the motives of tiiese cavillers. T 974 INFINITY OF TEUTH. But still it is quite true that conceit and scepticism are the products of an arrested development of know- ledge. It is far from impossible that acute minds such as those of the educated Bengalis may come to the point of thinking that every thing is known, and that all that is known is vanity. It is principally because a scientific method of enquiry tends to correct what would be a desolating mistake that I have dwelt on this subject so long. That truth is real and certain, but that truth at the same time is infinite, is the double conviction to which enquiry conducted on scientific principles leads. There can be no manner of question that the progress of knowledge leads to the very frame of mind to which some have thought it fatal — not only to certainty, but to reverence. Whatever be your point of view, you will agree with me that to aim at any consummation short of this could be but a poor result of education by tliia University. ADDRESS TO UNIVERSITY OF CALCUTfA.' ... I AM not going over the ground which was traversed last year, and indeed it is not necessary for me to do so, because the suggestion, that the sphere of physical science in Native education should be en- larged, appears to have been generally assented to. I know it has been said — and it is the only stricture which I have seen, and it is of a somewhat vague character — that this proposal to found education in great part upon physical science is too much in har- mony with that material, hard, and unimaginative view of life which is beginning to be common in modem society. I admit that there is some truth in this in its application to Europe and England. But in contrasting England and India, in comparing the East and the West, we must sometimes bring our- selves to call evil good, and good evil. The fact is, that the educated Native mind requires hardening. That culture of the imagination, that tenderness for it, which may be necessary in the West, is out of place here ; for this is a society in which, for ' Delivered before the Senate in March 1866. T 2 8T8 UNIVERSITY BUILDINGS. centuries upon centuries, the imagination has run riot, and much of the intellectual weakness and moral evil ■which afflict it to this moment, may be traced to imagination having so long usurped the place of reason. What the Native mind requires, is stricter criteria of truth ; and I look for the happiest moral and intellectual results from an increased devotion to those sciences by which no tests of truth are accepted, except the most rigid. The only other event which I have to announce — if I can dignify it with the name of an event — is the advance through another stage of the prepara- tions of our University building. The plans for the building have received full official sanction, and nothing now will probably delay the construction, except those impediments to rapid work which are common to all undertakings in India, whether they be public or private. I greatly regret the delay, and hav^e from year to year stated in this place that I regretted it. But 1 think it just to say, that it may be explained by a naturally, and indeed, necessarily, imperfect appreciation of the rank which our claim to a building was entitled to hold among the many heavy demands for public works which press upon the Government of India. I do not suppose that any- body ever doubted that the existence of a University without a local habitation was an anomaly, or that we were entitled to a Hall for meetings like this. CKIVERSm' EXAMmATIONS. 277 But, unless the thing was seen, it was quite im- possible to understand what are the difficulties under which, for want of that building, the University labours in discharging the very simplest functions for which it exists. For myself, I confess that, until I was recently present at the Examinations, I could not have conceived the extraordinary meanness of the arrangements provided for holding them — and I know they were the only arrangements which could possibly have been made. But what was more startling than the mere insufficiency of the accommodation — more striking than the fact that we had this year to hold our Examinations in the unfinished shell of the Post Office, and the fact that, if next year we cannot have the unfinished shell of the High Court, we shall be driven to tents on the glacis — what was far more impressive than this, was the amazing contrast betwen the accommodation and the extra- ordinary importance which these Examinations have acquired. The thing must be seen to be believed. I do not know which was more astonishing, more striking, the multitude of the students, who, if not now, will soon have to be counted not by the hundred, but by the thousand ; or the keenness and eagerness which they displayed. For my part, I do not think anytliing of the kind has been seen by any European University since the Middle Ages ; and I doubt whether tlit-re is anything founded by, (^r 278 SUCCESS OF CALCUTTA UNIVERSITY. connected with, the British Government in India which excites so much practical interest in Native households of the better class, from Calcutta to Lahore, as the Examinations of this University. These are facts, and facts which are insuffi- ciently appreciated in this country, and scarcely at all at home. The truth is that we, the British Government in India, the English in India, have for once in a way founded an institution full of vitality; and by this University and by the other Universities, by the Colleges subordinate to them, and by the Department of Education, we are creating rapidly a multitudinous class, which in the future will be of the most serious impor- tance for good or for evil. And so far as this University is concerned, the success is not the less striking, because it is not exactly the success which was expected. It is perfectly clear, from the language which Lord Can- ning once employed in this place, in the early days of this University, that the institution, which he expected to come into being, was one which resembled the English Universities more than the University of Calcutta is likely to do for some time to come. Lor 1 Canning's most emphatic words occurred in a passage, in wliich he said that he hoped the time was near when the nobility and upper classes of India would think that tiieir children had not had the dues of their rank, unless they passed through the course of the University. Kow there is no doubt that that view UPPEE CLASSES AXD EDUCATION. 279 involved a mistake. The founders of the University of Calcutta thought to create an aristocratic in- stitution; and, in spite of themselves, they have created a popular institution. The fact is so; and we must accept it as a fact, whatever we may think of it. But now, after the fact, now that we are wise by experience, it is not difficult to see that hardly anything else could have occurred. It seems to me utterly idle to expect that, in a virgin field, — in a country new to all real knowledge — in a country in which learning, such as it was, being the close monopoly of a hereditary order, was in exactly the same position as if it did not exist, or existed at the other end of the world — it seems to me idle to expect that the love of learning would begin with the wealthy and the powerful. To suppose this, is to suppose that those who have no acute spur to ex- ertion would voluntarily encounter that which in its first beginnings is the most distasteful of all exercises. Before you can diflfuse education, you must create the sense of the value of it; and it is only when the beauty of the results is seen, when their positive and material importance is seen, and they get to be mingled with all the graces of life, that those who can do without knowledge begin to covet and respect it. There is nothing more certain, than that the English Universities in their origin were extremely popular institutions. Even if we could not iufer the fact MEDIEVAL UNIVERSITIES. from the crowds which flocked to them, it would ht perfectly plain from the pictures of University life preserved in the poetry of Chaucer, that the early students of Oxford and Cambridge were children of the people. And the object of those students was exactly that which is sometimes imputed to our students, as if a censure was intended. It was simply to get on in life; either to enter the Church which was then the only free field in Europe, or, a little later, to get into one of the clerkly professions that were rising up. But it was the example of the educated classes, the visible effects of education on manners and on material prosperity and its growing importance in politics which first attracted the nobility. Their first step was not to educate themselves. The first sign of interest which they showed was in the munificent en- dowments which they began to pour in upon learned institutions ; and their next step was probably to engage learned men for the education of their children. But it was very slowly, and after much temporary reaction, that that state of things was at last reached, to which Lord Canning pointed, and under which it is un- doubtedly true that the English nobility do put their children through the Universities, unless they have chosen a profession inconsistent with Academical training. But nothing could be more erroneous than tc suppose, that even now Oxford and Cambridge arc OXFORD AlfD CAMBRIDGE. 281 purely aristocratic institutions. Their endowments ai"e so munificent, and their teaching now-a-days so excellent, that membership in them is profitable, and therefore popular ; and although noblemen do un- questionably compete there on equal terms with others, the condition of such competition is the exist- ence of a class prompted by necessity or ambition to keep the prestige of learning before the eye. Lord Canning himself, no doubt, belonged to a class eminently characteristic of the English Universities. He was a nobleman who worked hard at Oxford, when he might have been idle. But the brilliant and illustrious statesman who was Lord Canning's father belonged to a class even more characteristic of them, a class which, by the lustre it receives from learning and again reflects back on it, stimulates men of Lord Canning's order, men some of whose names are not unknown to India, — Lord Ellenborough, Lord Dal- housie, and Lord Elgin, — to follow its laborious example. I have admitted that we undoubtedly are creat- ing a class of serious importance to the future of India, and of course the peculiarities and charac- teristics of that class are objects of fair criticism. One of the criticisms on this University, not uncom- monly heard, that it has failed to conciliate the Native nobility, seems to me to be founded on a false estimate of past history, and therefore a false calculation of 288 EDUCATION AND MOKAI.ITY. probabilities for the future. There are other objec- tions. Some of them I do not purpose to notice, because they are simply vulgar. When, for example, it is said that the Native graduates of this and other Indian Universities are conceited, I wonder whether it is considered how young they are, compared with English graduates, how wide is the difference which their education makes between them and their fellow countrymen, and therefore whether some such result might not to some extent be looked for in any climate or latitude. Certainly, the imputation which is some- times made, that education saps the morality of the Natives, would be serious if it were true. But, not to speak of its being paradoxical on the face of it, it is against all the evidence that I (or any body else) have been able to collect. At all events, in one department of State, with which I have reason to be acquainted, it is almost a maxim governing promotion that the better educated is a candidate for judicial employment, the less likely is he to be tainted with that corruption which was once the disgrace of the Indian Courts. But the objection which is commonest, and which most intimately concerns us here, is, that the know- ledge communicated by the subordinate Colleges and verified by this University is worthless, shallow, and superficial. The course of the University of Calcutta is sometimes said to be in fault, and it is alleged, to * CRAMMING.' 2S1 use a term at once expressive and fashionable, that it encourages ' cramminoc.' Now there are some things in our Calcutta course, of which I do not al- together approve. But it was settled after long dis- cussion, shortly after I became Vice-Chancellor, and it would be absurd to be perpetually changing that which of all things ought to be fixed and permanent, on account of small defects which are, after all, dis- putable, I wish, however, to say something of the whole class of objections implied in that one word ' cramming.' If there is anything in them, you know, I suppose, that they have a far wider application than their application to this University. They are con- stantly urged against the numerous competitive systems which are growing up in England, and in particular against the system under which the Civil Service of India, probably the most powerful official body in the world, is recruited, and will be recruited. The discredit which has been successfully attached to certain systems by this word is a good illustration of the power of what a famous writer called dyslogistic expression, or, to put it more simply, of giving a thing a bad name. And here I must say, that the liabit EngUshmen have of importing into India these commonplace censorious opinions about systems and institutions, is a great misfortune for the Natives. Even in the mouths of the Englishmen who invented them, they geuez'ally have very httle meaning, for 284 * CRAMMING.* they are based on a mere fragment of truth ; when passed about among the multitude, they have still less ; and, at last, when exported hither, and repeated by the Natives in a foreign tongue, they have simply no meaning at all. As far as I understand the word, it means nothing more than the rapid communication of knowledge, — communication, that is to say, at a rate unknown till recently. Some people, I know, would add something to the definition, and would say that cramming is the rapid communication of superficial knowledge; but the two statements will generally be found to be identical, and that they merely mean by superficial knowledge, knowledge which has been rapidly acquired. The true point, the point which really has to be proved is, whether knowledge rapidly acquired is more easily forgotten than knowledge which has been slowly gained. The point is one upon which, to some extent, everybody can judge for himself or herself. I do not assert the negative, but I am rather surprised at the readiness with which the affirmative has been usually taken for granted; no doubt, if it be true, it is a curious psychological fact, but surely there are some reasons for qiiestioning the reality. It might plausibly be argued that knowledge slowly acquired, has been acquired at the cost of frequent intervals of inattention and forgetfulness. Now everybody knows that inat- tention and forgetfulness tend to become habits of the COirPETITIVE EXAMINATIONS. 28A mind, and it might be maintained that these habitf would be likely to recur, in association with a subject of thought, even when that subject has for once been successfully mastered. On the other hand, it might be contended that knowledge rapidly acquired has been necessarily acquired under a certain strain and tension of the mental faculties, and that the effects of this tension are not likely to be so readily lost and dissipated. The simple truth is, that under the strong stimulus applied by that system of examinations by which the entrance to almost every English profession is now barred, there has sprung up an active demand for knowledge of a more varied description than was once coveted, and above all, for knowledge rapidly imbibed and mastered. To meet this demand, a class of teachers has sprung up who certainly produce remarkable results with remarkable rapidity. I hear it said, that they are men of a lower order of mind and accomplishment than the teachers who follow the old methods. It may be so ; but that only renders the probability greater, that some new power has been brought into play. I am afraid it must be allowed, that no art, of equal importance to mankind, has been so little investigated scientifically as tlie art of teaching. No art is in the hands of practitioners who are so apt to follow so blindly in the old paths. I say this with the full recollection that there has b€ the Corpus Juris, would be nearly the same thing as endeavouring to settle the relation of the Roman law to the science of jurisprudence ; and that inquiry, from its great length and difficulty, it would be obviously absurd to prosecute within the limits of an Essay like the present. Rut there is a set of considerations of a different nature, and equally forcible in their way, which cannot be too strongly impressed on all who have the control of legal or general education. The ]X)int which they tend to establish is this : — the immensity of the ignorance to which we are condemned by ignorance of Roman law. It may be doubted whether even the best educated men in England can fully rc'ilise how vastly important an element is Roman law in the general mass of human know- ledge, and how largely it enters into and pervades and modifies all products of human thouglit which are not exclusively English. Before we endeavour to give some distant idea of the extent to which this is true, we must remind the reader that the Roman 834 NATURE OP ROMAN LAW. law is not a system of cases, like our own. It ig a system of which the nature may, for practical purposes, though inadequately, be described by saying that it consists of principles, and of express written rules. Tn England, the labour of the lawyer is to extract from the precedents a formula, which, while covering them^ will also cover the state of facts to be adjudicated upon ; and the task of rival advocates is, from the same precedents, or others, to elicit differ, ent formulas of equal apparent applicability. Now, in Roman law no such use is made of precedents. The Corpus Juris, as may be seen at a glance, contains a great number of what our English law- yers would term cases ; but then they are in no respect sources of rules — they are instances of their application. They are, as it were, problems solved by authority in order to throw light on the rule, and to point out how it should be manipulated and applied. How it was that the Roman law came to assume tliis form so much sooner and more com- pletely than our own, is a question full of interest, and it is one of the first to which the student should address himself ; but though the prejudices of an Englishman will probably figure to him a juris- prudence thus constituted as. to say the least, anoma- lous, it is, nevertheless, quite as readily conceived, and quite as natural as the constitution of our own system. In proof of this, it may be remarked that DIFFERENCE BETWEEN ENGLISH AND ROMAN LAW. 33£ the English common law was clearly conceived by its earliest expositors as wearing something of this character. It Avas regarded as existing somewhere in the form of a symmetrical body of express rules, adjusted to definite principles. The knowledge of the system, however, in its full amplitude and pro- portions was supposed to be confined to the breasts of the judges, and the lay-public and the mass of the legal profession were only permitted to discern its canons intertwined with the facts of adjudged cases. Many traces of this ancient theory remain in the language of our judgments and forensic arguments, and among them we may perhaps place the singular use of the word ' principle ' in the sense of a legal proposition elicited from the precedents by com- parison and induction. The proper business of a Roman jurisconsult was therefore confined to the interpretation and applica- tion of express written rules — processes which must, of course, be to some extent employed by the pro- fessors of every system of laws — of our own among others, when we attempt to deal with statute law. But the great space which they filled at Rome has no counterpart in English practice; and becoming, as the}' did, the principal exercise of a class of men characterised as a whole by extraordinary subtlety %nd patience, and in individual cases by extra- ordinary genius, they were the means of produc- 336 ROMAN METHODS OF INTEEPRETATION. ing results which the English practitioner wants centuries of attaining. We, who speak without shame — occasionally with something like pride — of our ill success in construing statutes, have at our command nothing distantly resembling the appliances which the Roman jurisprudence supplies, partly by definite canons and partly by appropriate examples, for the understanding and management of written law. It would not be doing more than justice to the methods of interpretation invented by the Roman lawyers, if we were to compare the power which they give over their subject-matter to the advantage which the geometrician derives from mathematical analysis in discussing the relations of space. By each of these helps, difficulties almost insuperable become insignilicant, and processes nearly intermmable are shortened to a tolerable compass. The parallel might be carried still further, and we might insist on the special habit of mind which either class of mental exercise induces. Most certainly nothing can be more peculiar, special, and distinct than the bias of thought, the modes of reasoning, and the habits of illustration, which are given by a training in the Roman law. No tension of mind or length of study which even distantly resembles the labour of mastering English juris- prudence is necessary to enable the student tc realise these peculiarities of mental view ; but still they cannot be acquired without some effort, and SCHOOLS OF MORAL PHILOSOPUY. 337 the question is, whether the effort which they de- mand brings with it sufficient reward. AYe can only answer by endeavouring to point out that they per- vade whole departments of thought and inquiry of which some knowledge is essential to every lawyer, and to every man of decent cultivation. In the first place, it is to be remarked, that all discussion concerning Moral Philosophy has for nearly two centuries been conducted on the Con- tinent of Europe in the language and according to the modes of reasoning peculiar to the Roman Civil Law. Shortly after the Reformation, we find two great schools of thought dividing this class of subjects between them. The most influential of the two wa.s at first the sect or school known to us as the Casuists, all of them in spiritual communion with the Roman Catholic Church, and nearly all of them affiliated to one or other of her religious orders. On the other side were a body of writers connected with each other by a common intellectual descent from the great author of the treatise De Jure Belli et Pads, Hugo Grotius. Almost all of the latter were adhe- rents of the Reformation, and, though it cannot be said that they were formally and avowedly at con- flict with the Casuists, the origin and object of their system were, nevertheless, essentially different from those of Casuistry. It is necessary to call attention to this difference, because it involves the question of z TREATISE OF GEOTIUS. the influence of Roman law on that department of thought with which both systems are concerned. The book of Grotius, tbDUgh it touches questions of pure Ethics in every page, and though it is the parent, immediate or remote, of innumerable volumes of formal morality, is not, as is well known, a professed treatise on Moral Philosophy ; it is an attempt to determine the Law of Nature, or Natural Law. Now, without entering upon the question, whether the con- ception of a Law Natural be not exclusively a creation of the Roman jurisconsults, we may lay down that, even on the admissions of Grotius himself, the dicta of the Roman jurisprudence as to what parts of known positive law must be taken to be parts of the Law of Nature, are, if not infallible, to be received, at all events, with the profoundest respect. Hence the system of Grotius is implicated with Roman law at its very foundation ; and this connexion rendered inevi- table — what the legal training of the writer would perhaps have entailed without it — the free employ- ment in every paragraph of technical phraseology, and of modes of reasoning, defining, and illustrating, which must sometimes conceal the sense, and almost always the force and cogency, of the argument from the reader who is unfamiliar with the sources whence they have been derived. On the other hand. Casuistry borrows little from Roman law. A few technical expressions, of Roman origin, have penetrated into THE CASUISTS. SS9 its language through the medium of the Canon law ; but the form of the argument in the Casuistical writers is mostly taken from the course of a theological dis- putation in one of the academical schools, and the views of morahty contended for have nothing what- ever in common with the imdertaking of Grotius. All that philosophy of right and wrong which has become famous, or infamous, under the name of Casuistry, had its origin^ in the distinction between Mortal and Venial Sin. A natural anxiety to escape the awful consequences of determining a particular act to be mortally sinful, and a desire, equally intel- ligible, to assist the Roman Catholic Church in its conflict with Protestantism by disburthening it of an inconvenient theory, were the motives which impelled the authors of the Casuistical philosophy to the invention of an elaborate system of criteria, in- tended to remove immoral actions, in as many cases as possible, out of the category of mortal offences, and to stamp them as venial sins. The fate of this experiment is matter of ordinary history. We know that the distinctions of Casuistry, by enab- ling the priesthood to adjust spiritual control to all the varieties of human character, did really confer on it an influence with princes, statesmen, and ' This subject is fully and clearly discussed by Mr. Jowfett Epistles of St. Paul, Vol. ii., pp. 351, 352. MO THE PEOVINCIAL I JIT TEES. generals unheard of in the ages before the Reforma- tion, and did really contribute largely to that great reaction which checked and narrowed the first suc- cesses of Protestantism. But beginning in the at- tempt, not to establish, but to evade — not to discover a principle, but to escape a postulate — not to settl« the nature of right and wrong, but to determine what was not wrong of a particular nature, — Casuistry went on with its dexterous refinements till it ended in so attenuating the moral features of actions, and so belying the moral instincts of our being, that at length the conscience of mankind rose suddenly in revolt against it, and consigned to one common ruin the system and its doctors. The blow, long impend- ing, was finally struck in the Provincial Letters of Pascal ; and since the appearance of those memorable Papers, no moralist of the smallest influence or credit has ever avowedly conducted his speculations in the footsteps of the Casuists. The whole field of ethical science was thus left at the exclusive command of the writers who followed Grotius ; and it still exhibits in an extraordinary degree the traces of tha,t entangle- ment with Roman law which is sometimes imputed as a fault, and sometimes as the highest of its recom- mendations, to the Grotian theory. Many inquirers since Grotius's day have modified his principles, and many, of course, since the rise of the Critical Philo- sophy, have quite deserted them ; but even those who ROilAir LAAV IX MORAL AND POLITICAL PHILOSOPHY. 341 htive departed most widely from his fundamental as«5umptions have inherited much of his meihod of statement, of his train of thought, and of his mode of illustration ; and these have little meaning and no point to the person ignorant of Roman jurispru- dence. And, moreover, as speculations on ethics are implicated with, and exercise perceptible effect on, almost every department of inquiry which is not part of physics or physiology, the element of Roman law in the ethical systems of the Continent makes itself felt in quarters where, at first sight, one is quite un- able to understand its presence. There is reason to believe that we in England attach much too slight an importance to that remarkable tinge of Roman law which is all but universal in the moral and political philosophy of Continental Europe, It has often been remarked with regret or surprise that, while the learned in the exacter sciences abroad and in England have the most perfect sympathy with each other — while the physician or the mathematician in London is completely at home in the writmgs of the physician or the mathematician in Berlin and Paris — there is a sensible, though invisible and impalpable, barrier which separates the jurists, the moral pliilosophers, the politicians, and, to some extent, the historians and even the metaphysicians of the Continent from those who professedly follow the same pursuits in England. A vague reference to our insular positioD 342! MOKAL PHILOSOPHY. gives no clue to this anomaly. The exceptional character of our political institutions but partially explains it. Some difference in the intellectual train- ing of Enghshmen from that of foreigners must lie at the bottom of it, and the general mass of our acquu'e- ments is unlike that accumulated by educated men in other countries simply in the total omission of the ingredient of Roman law. If these views are correct, the argument for the cultivation of Roman law as a branch of English legal education will have been carried some way, for it is probably unnecessary to show at length the intimate relation of moral philosophy to jurisprudence. Per- haps the state of Enghsh thought on ethical subjects may seem to take away something from the force of the reasoning. Unquestionably, the writings of Locke, and the immense development of Locke's doctrines by Bentham, have given us an ethical system which exercises very deep influence on the intellectual condition of England, and which at the same time borrows little or nothing from Roman law. The objection, however, may be answered in several ways. While it is doubtful whether it is desirable or possible that moral philosophy should be taught in England on any one set of principles, it is certainly neither desirable nor possible that it should be taught apart from its history. Moreover, the disconnexion between the Roman law and the philosophy of Benthani LAW OP NATURE. exists rather in form than in substance. The hitcst and most sagacious expositors of Bentham have for- mally declared ^ their preference for the phraseology and the methods of Roman jurisprudence; and, indeed, there would be no great presumption in asserting that much of the laborious analysis which Bentham applied to legal conceptions was directed to the establishment of propositions which are among the fund;) mental assumptions of the jurisconsults. Truths which the language of English law, at once ultra-popular and ultra-technical, either obscures or conceals, shine clearly through the terminology of the Roman lawyers ; and it is difficult to believe that they would ever have been lost sight of, if English common sense had been protected against delusion by knowledge of a system of which common sense is the governing characteristic. It is remarkable, too, that the law of England, wherever it touches moral philo- sophy openly and avowedly, touches it at the point at which it is most deeply implicated with Roman law. It is difficult to read the early Equity Reports with- out being struck by the influence which a particular school of jurists — the series of writers on the Law of Nature — had on the minds of the judges who first gave form and system to the jurisprudence of the Court of Chancery. Now, in the volumes of this • Austin, Province of Jurisprudence Determined, App. pp M tt eeq. 344 LEGAL PHRASEOLOGY, school, not only does moral philosophy retain the phraseology and the modes of reasoning peculiar to Roman law, but the two departments of thought have not as yet been recognised as separable, and as capable of being considered apart from each other. Even now, whenever a proposition of moral philosophy makes its appearance in an argument or in a judicial decision, it generally appears in the dress which was given to it by the first successors of Grotius. This peculiarity may, perhaps, be partially accounted for by the credit into which Story's Conflict of Laws — m the main a compendium of extracts from the writers just mentioned — has risen among us as an authority on Private International Law. We are here brought to ihe verge of some con- siderations of a rather different character. In every language there are necessarily a number of words and phrases which are indicative of legal conceptions, and which carry with them a* perpetual reference to the nature and the sanctions of law. Without such ex- pressions, a vast variety of propositions in philosophy, in political economy, in theology, and even in strict science, could never be put into words. Now, it is remarkable that the English language derives a very small number of these expressions from English law; and, indeed, few things are more curious, or more illustrative of the peculiar relation in which the law of England has always stood to the other departments LEGAL PHRASEOLOGY. 345 of English thought, than the slightness of the in- fluence which our jurisprudence has exercised on our tongue. The Law of Procedure and some other sub- ordinate departments have contributed, though not largely, to enrich our vernacular dialect ; and both in England and in Anierica a considerable number of legal phrases have acquired currency as slang; but the expressions in classical English which are indica- tive of fundamental legal conceptions, come to us, almost without an exception, from Roman law. They have filtered into the language Irom a variety of sources, and never having been kept to their original meaning by any controlling system or theor}', they have become mere popular expressions, exhibiting all the deficiencies of popular speech — vague, figurative, and inconsistent. Looked at even from an unpro- fessional point of view, this is a great evil. Unlike other nations, we lose all the advantage of ha\'ing the most important terms of our philosophical phrase- ology scrutinized, sifted, and canvassed by the keen intellect of lawyers; and we deprive ourselves of that remarkable, and almost mysterious, precision which is given to words, when they are habitually used in dis- cussions which are to issue directly in acts. It is difficult to say how much of the inferiority of Eng- land in philosophical speculation is owing to this laxity of language ; and even if the mischiefs which it is calculated to produce were in themselves trifling, Ua LANGUAGE OF PROFESSIONAL LAWYERS. they would become formidable in a country which i& governed by free discussion. We can easily trace their effects on minds of rigid accuracy. Bentham was driven by them to invent a new vocabulary of his own, which is still the greatest obstacle to his in- fluence. Mr. Austin can only evade them by a style out of which metaphor has been weeded till it has become positively repulsive. Dr. Whewell has ac- knowledged them by repeatedly falling back on the strict usage of the Roman jurisconsults. The evil, however, is not one which is felt solely by writers on the philosophy of jurisprudence. It extends to pro- fessional lawyers. Like all men who speak and think, they employ the expressions which have been described as inherited by us from Roman law; but they employ them solely as popular expressions — as expressions which serve merely to eke out technical phraseology. Even ' Obligation,' the term of highest dignity and importance in all jurisprudence, is not defined in English law, and is used by our lawyers with reckless inconsistency. The consequence is not quite the same as on the unprofessional world. It would be absurd to tax the English Bench and Bar with inaccurate thinking. But the natural resource of an accurate mind, dealing with mere popular language, is pro- lixity. Words and phrases must be constantly qualified and limited, and every important proposition, to pre- vent misapprehension, oust be put in a great variety ENGLISH TECHNICALITIES. of forms. Hence the extraordinary length of oir forensic arguments and legal decisions. Hence that frightful accumulation of case-law which conveys to EngUsh jurisprudence a menace of revolution far more serious than any popular murmurs, and which, if it does nothing else, is giving to mere tenacity of memory a disgraceful advantage over all the finer quahties of the legal intellect. There never, probably, was a technical phraseology which, unaided by popular language, was in itself sufficient for all the uses of lawyers. Where, how- ever, the technical vocabulary is fairly equal to the problems which have to be discussed, the inconve- niences just alluded to are reduced to a minimum. Is this the case with English law? It is impossible to answer the question without calling attention to the singular condition of our whole legal language. The technical part of it — whatever may be thought of the system to which it was an appendage — was certainly once quite able to cope with all the points which arose ; nor did it drop or relax any of its re- markable precision in solving them. But its service- ableness has long since ceased. The technicalities of English law have lost all their rigidity and accuracy without at the same time becoming equal to the dis- cussion of the questions which press daily on the at- tention of the Bench and the Bar. We misuse our terms of art without scruple — freely applying, for 848 LEGAL iJSD LEGISLATIVE EXPRESSION. example, to Personalty expressions wliicli, having their origin in real property law, are ultimately referrible to feudal conceptions — and yet we have to call in popular phraseology to an extent unknown in any other system. Nothing harsher can be said of a legal vocabulary, than that it consists of technical phraseology in a state of disintegration, and of popu- lar language employed without even an affectation of precision. Yet this reproach is the literal truth as respects the law of England. Many causes may be assigned for it. The eccentric course of our law reforms has, doubtless, contributed to it ; and it should not be forgotten that lawyers are apt to strain technical terms to new uses, under a sense of their superiority to language borrowed from ordinary dis- course. But the grand cause of all has been the slightness of the care which, owing to the absence of an organized educational system, has been bestowed in England upon Legal and Legislative Expression. The heterogeneousness of the sources from which our tongue has been derived appears to impose on us, more than on any other nation, the duty of nurturing this branch of legal science ; and yet there is no nation in the world which has neglected it so signally. The evil consequences of our indifference have at length become patent and flagrant. They make themselves felt on all sides. They are seen in the lengthiness of our Law Reports. They show them« LEGAL AND LEGISLATIVE EXPRESSIOX. 3.19 selves in the miscarriages of our Acts of Parliament. They put us to the blush in the clumsiness of our attempts to grapple with the higher problems of law. It would be impertinent to pretend that any one com- plete remedy can be pointed out, but it may be affirmed without hesitation that several palliatives are within our reach. Though the decay of the technical element in our legal dialect is probably beyond help, a far greater amount of definiteness, distinctness, and consistency might assuredly be given to the popular ingredient. Legal terminology might be made a distinct department of legal educa- tion ; and there is no question that, with the help of the Roman law, its improvement might be carried on almost indefinitely. The uses of the Roman juris- prudence to the student of Legislative and Legal Ex- pression are easily indicated. First, it serves him as a great model, not only because a rigorous consistency of usage pervades its whole texture, but because it shows, by the history of the Institutional Treatises, in what way an undergrowth of new technical language may be constantly reared to furnish the means of expression to new legal conceptions, and to supply the place of older technicalities as they fall into desuetude. Next, it is the actual source of what has been here called the popular part of our legal dialect; a host of words and phrases, of which ' Obligation,' ' Convention,' ' Contract,' ' Consent, •60 IMPROVEMENT OP TECHNICAL LANGUAGE. ' Possession/ and ' Prescription,' are only a few sampleSj are employed in it with as much precision as are, or were, ' Estate Tail ' and ' Remainder ' in English law. Lastly, the Roman jurisprudence throws into a definite and concise form of words a variety of legal conceptions which are necessarily realized by English lawyers, but which at present are expressed differently by different authorities, and always in vague and general language. Nor is it over-presumptuous to assert that laymen would benefit as much as lawyers by the study of this great system. The whole phi- losophical vocabulary of the country might be improved by it, and most certainly that region of thought which connects Law with other branches of speculative inquiry, would obtain new facilities for progress. Perhaps the greatest of all the advantages which would flow from the cultivation of the Roman jurisprudence would be the acquisition of a phrase- ology not too rigid for employment upon points of the philosophy of law, nor too lax and elastic for their lucid and accurate discussion. In the identity of much of our popular legal phraseology with the technical dialect of Roman law we have one chief source of the intellectual mist which interposes itself between an Englishman and a large part of Continental philosophy. We have also the chief reason why it is bo difficult to convince an Englishman that any such impediment exists. Deal- LANGUAGE OF INTEENATIONAL LAW. 361 ing, for the most part, with language to which he is accustomed, he can scarcely be persuaded that he gains at most that sort of half knowledge which, as every lawyer knows, an intelligent layman will acquire from the perusal of a legal treatise on a branch of law in which the technical usage of words does not widely differ from the vernacular. There is, however, one subject of thought common to our- selves and the Continent, on which scarcely one man among us has probably consulted foreign writers of repute without feeling that he is in most imperfect contact Avith his authorities. It is the secret belief of many of the most accurate minds in England that International Law, Public and Private, is a science of declamation ; and, when phraseology intended by the writer to be taken strictly is understood by the reader loosely, the impression is not at all unnatural. We cannot possibly overstate the value of Roman Juris- prudence as a key to International Law, and particu- larly to its most important department. Knowledge of the system and knowledge of the history of the system are equally essential to the comprehension of the Public Law of Nations. It is true that inadequate views of the relation in which Roman law stands to the International scheme are not confined to English- men. Many contemporary publicists, writing in languages other than ours, have neglected to p^ace themselves at the point of view from which the 352 HISTORY OF INTEENATIONAL LAT7. originators of Public Law regarded it ; and to hia omission we must attribute much of tbe arbitrary assertion and of the fallacious reasoning with which the modern literature of the Law of Nations is un- fortunately rife. If International Law be not studied historically' — if we fail to comprehend, first, the in- fluence of certain theories of the Roman jurisconsults on the mind of Hugo Grotius, and, next, the influence of the great book of Grotius on International Juris- prudence, — we lose at once all chance of comprehend- ing that body of rules which alone protects the European commonwealth from permanent anarchy, we blind ourselves to the principles by conforming to which it coheres, we can understand neither its strength nor its weakness, nor can we separate those arrangements which can safely be modified from those which cannot be touched without shaking the whole fabric to pieces. The authors of recent international treatises have brought into such slight prominence the true principles of their subject, or for those prin- ciples have substituted assumptions so untenable, as to render it matter of no surprise that a particular school of politicians should stigmatize International Law as a haphazard collection of arbitrary rules, resting on a fanciful basis and fortified by a wordy rhetoric. Englishmen, however, — and the critics al- luded to are mostly Englishmen, — will always be more signally at fault than the rest of the world in EOMAN LAW AND INTERNATIONAL LAW 363 attempting to gain a clear view of the Law of Nations. They are met at every point by a vein of thought and illustration which their education renders strange to them; many of the technicahties delude them by consonance with familiar expressions, while to the meaning of others they have two most insufficient guides in the Latin etymology and the usage of the equivalent term in the non-l6gal literature of Rome. Little more than a year has elapsed since the Lower House of the English Parliament occupied several hours with a discussion as to the import of one of the commonest terms ^ inherited by modern jurisprudence from Roman law. Nor are these remarks answered by urging that comparative ignorance of International Law is of little consequence so long as the parties to International discussions completely understand each other ; or, as it might be put, that Roman law may be important to the closet-study of the Law of Nations, but is unessential as regards diplomacy. There cannot be a doubt that our success in negotiation is sometimes perceptibly affected by our neglect of Roman law; for, from this cause, we and tlie public, or negotiators, of other countries constantly misunderstand each other. It is not rarely that we refuse respect or at- tention to diplomatic communications, as wide of tbe point and full of verbiage or conceits, when, in fact, ' Solidairement. Hansard's Parliainentary Debates, July 27tli, 1855. A A 354 ROMAN LAW AND DU'LOMACY. they owe those imaginary imperfections simply to the juristical point of view from which they have been conceived and written. And, on the other hand, state -papers of English origin, which to an English- man's mind ought, from their strong sense and direct- ness, to carry all before them, will often make but an inconsiderable impression on the recipient from their not falling in with the course of thought which he insensibly pursues when dealing with a question of pubhc law. In truth, the technicalities of Roman law are as reall}', though not so visibly, mixed up with questions of diplomacy as are the technicalities of special pleading with points of the English Common law. So long as they cannot be disentangled, English influence suffers obvious disadvantage through the imperfect communion of thought. It is undesir- able that there should not be among the English public a sensible fraction which can completely decipher the documents of International transactions, but it is more than undesirable that the incapacity should extend to our statesmen and diplomatists. Whether Roman law be useful or not to English law- yers, it is a downright absurdity that, on the theatre of International affairs, England should appear by delegates unequipped with the species of knowledge which furnishes the medium of intellectual commu- nication to the other performers on the scene. The practitioner of English law who would care DIFFUSION OF ROMAX LAW. 355 little for the recommendations of this study which have as yet been mentioned, must nevertheless feel that he has an interest in Roman jurisprudence in respect of the relation in which it stands to all, or nearly all, foreign law. It may be confidently as- serted, that if the English lawyer only attached him- self to the study of Roman law long enough to master the technical phraseology and to realize the leading legal conceptions of the Corpus Juris, he would approach those questions of foreign law to which our Courts have repeatedly to address themselves with an advantage which no mere professional acumen acquired by the exclusive practice of our own juris- prudence could ever confer on him. The steady multiplication of legal systems, borrowing the entire phraseology, adopting the principles, and appropriat- ing the greater part of the rules of Roman juris- prudence, is one of the most singular phenomena of our day, and far more worthy of attention tlian the most showy manifestations of social progress. This gradual approach of Continental Europe to a unifor- mity of municipal law dates unquestionably from the first French Revolution. Although Europe, as is well known, formerly comprised a number of countries and provinces which governed themselves by the written Roman law, intei'polatedwith feudal observances, there docs not seem to be any evidence that the institutions -)f these localities enjoyed any vogue or favour beyond A A 2 85<5 THE FRENCH CODES. their boundaries. Indeed, in the earlier part of the last century there may be traced among the educated men of the Continent something of a feeling in favour of English law — a feeling proceeding, it is to be feared, rather from the general enthusiasm for English political institutions which was then preva- lent, than founded on any very accurate acquaintance with the rules of our jurisprudence. Certainly, as respects France in particular, there were no visible symptoms of any general preference for the institu- tions of the pays de droit ecrit as opposed to the pro- vinces in which customary law was observed. But then came the French Revolution, and brought with it the necessity of preparing a general code for France one and indivisible. Little is known of the special training through which the true authors of this work had passed ; but in the form which it ulti- mately assumed, when published as the Code Napoleon, it may be described^ without great inac- curacv, as a compendium of the rules of Roman law ^ ' It is not intended to imply that the framers of the Code Civil simply adopted the Civil law of the pays de droit ecrit, and rejected that of the pays de droit coutumier. Many texts of the French Codes which seem to be literally transcribed from the Corpus Juris come from the droit coutumier, into which a large element of Roman law had gradually worked its way. Those parts of the Code Civil in which the C'lstoms have been followed in points in which they differed from the Roman law are chiefly the chapters which have reference to Personal Relations ; but in this department there had been, as might be expected, considerable deviations from Roman jurisprudence even in the /jays de droit ^crit. FEENCH CODES ON DISSOLUTION OF EMPIEE. 367 then practised in France, cleared of all feudal ad- mixture — such rules, however, being in all cases taken with the extensions given to them, and the interpretations put upon them by one or two emi- nent French jurists, and particularly by Pothier. The French conquests planted this body of laws over the whole extent of the French Empire, and the kingdoms immediately dependent on it; and it is incontestable that it took root with extraordinary quickness and tenacity. The highest tribute to the French Codes is their great and lasting popularity with the people, the lay-public, of the countries into which they have been introduced. How much weight ought to be attached to this symptom our own experience should teach us, which surely shows us how thoroughly ind liferent in general is the mass of the public to the particular rules of civil life by which it may be governed, and how extremely super- ficial are even the most energetic movements in favour of the amendment of the law. At the fall of the Bonapartist Empire in 1815, most of the re- stored Governments had the strongest desire to expel the intrusive jurisprudence which had substituted itself for the ancient customs of the land. It was found, however, that the people prized it as the most precious of possessions : the attempt to subvert it was persevered in in very few instances, raid in most of them the French Codes were restored after a brief 558 AUSTRIAN AND OTHER CODES. abe^'anc?. And not only has the observance oi these laws been confirmed in almost all the countries which ever enjoyed them, but they have made their way into numerous other communities, and occasion- ally in the teeth of the most formidable political obstacles. So steady, indeed, and so resistless has been the diffusion of this Romanized jurisprudence, either in its original or in a slightly modified form, that the civil law of the whole Continent is clearly destined to be absorbed and lost in it. It is, too, we should add, a very vulgar error to suppose that the civil part of the Codes has only been found suited to a society so peculiarly constituted as that of France. With alterations and additions, mostly directed to the enlargement of the testamentary power on one side, and to the conservation of entails and primoge- niture on the other, they have been admitted into countries whose social condition is as unlike that of France as is possible to conceive. A written juris- prudence, identical through five-sixths of its tenor, regulates at the present moment a community mon- ai'chical, and in some parts deeply feudalized, like Austria,^ and a community dependent for its exist- ence on commerce, like Holland — a society so near ' The Code of Austria was commenced under Joseph II., but not completed till 1810. The portions of it which were framed attei the appearance of the French Codes iollow them in everything except some minor peculiarities of expression. ENGLISH LAW IN AMERICA. 358 the pinnacle of civilization as France, and one as primitive and as little cultivated as that of Sicily and Southern Italy. Undeniable and most remarkable as is this fact of the diffusion Trithin half a century over nearly all Europe of a jurisprudence founded on the Civil Law of Rome, there are some minds, no doubt, to which it will lose much of its significance when they be- think themselves that in the ground thus gradually occupied, the French Codes have not had to compete directly with the Law of England. We can readily anticipate the observation, that against these con- quests of a Romanized jurisprudence in Europe may be set off the appropriation of quite as large a field by the principles of our own system in America, There, it may be said, the English uncodified juris- prudence, with its conflict of Law and Equity, and every other characteristic anomaly, is steadily gathering within its influence populations already counted by milhons, and already distinguished by as high a social activity as the most progressive com- munities of Continental Europe. It is not the object of this Essay to dis[)arage the English law, and stiil less its suitableness to Anglo-Saxon societies ; but it is only honest to say that the comparison just sug- gested does not quite give at present the results expected from it. During many years after the severance of the United States from the mother- 880 CODE OF LOUISIANA. country, the new States successively formed out of the unoccupied territory of the Federation did all oi them assume as the standard of decision for the Courts iu cases not pro^dded for by legislation, either the Common law of England, or the Common law as transformed b)'' early New England statutes into something closely resembling the Custom of London. But this adherence to a single model ceased about 1825. The State of Louisiana, for a considerable period after it had passed under the dominion of the United States, observed a set of civil rules strangely compounded of English case-law, French code-law, and Spanish usages. The consoli- dation of this mass of incongruous jurisprudence was determined upon, and after more than one un- successful experiment, it was confided to the first legal genius of modern times — Mr. Livingston. Almost unassisted,^ he produced the Code of Louisiana, of all republications of Roman law the one which appears to us the clearest, the fullest, the most philosophical, and the best adapted to the exigencies of modern society. Now it is this code, and not the Common law of England, which the newest American States are taking for the substratum of their laws. The diffusion of the Code of Louisiana does, in fact, ' Mr. Livingston, as is well known, was the sole author of tha Criminal Code. In the composition of the Civil Code, he was asso- ciated with MM. Derbigny and Morolislet; but the most important '"iiaptt'in, iiicliulijig al' ihoto tin Contract, are entirely froui ins pea ROJIAN LAW A LINGUA FRANCA. 3G1 exactly keep step with the extension of the territory of the Federation. And, moreover, it is producing sensible effects on the older American States. But for its success and popularity, we should not probably have had the advantage of watching the greatest ex- periment which has ever been tried on English jurisprudence — the still -proceeding codification and consolidation of the entire law of New York. The Roman law is, therefore, fast becoming the lingua franca of universal jurisprudence ; and even now its study, imperfectly as the present state of English feeling will permit it to be prosecuted, may nevertheless be fairly expected to familiarize the English lawyer with the technicalities which pervade, and the jural conceptions which underlie, the legal systems of nearly all Europe and of a great part of America. If these propositions are true, it seems scarcely necessary to carry further the advocacy of the improvements in legal education which are here contended for. The idle labour which the most dexterous practitioner is compelled to bestow on the simplest questions of foreign law is the measure of the usefulness of the knowledge which would be con- ferred by an Institutional course of Roman juris- prudence. In the minds of many Englishmen, there is a decided, though vague, association between the studjf 862 CODIFICATIOX. of Roman law and the vehemently controverted topic of Codification. The fact. that the two subjects are thus associated, renders it desirable that we should endeavour to show what, in our view, is their real bearing- upon each other; but, before the attempt is made, it is worth while remarking that this term ' Codification,' modern as it is, has already undergone that decjradation of meanino; which seems in ambush for all English words that lie on the border-land between legal and popular phraseology, and has contracted an important ambiguity. Both those who affirm and those who deny the expediency of codifying the English law, visibly speak of Codi- fication in two diiFerent senses. In the first place, they emj)loy the word as synonymous with the con- version of Unwritten into Written Law. The difiier- ence between this meaning and another which wUl be noticed presently, may best be illustrated by pointing to the two Codes of Rome — the one which began and the one which terminated her jurisprudence — the Twelve Tables and the Corpus Juris of Justinian. At the dawn of legal history, the knowledge of the Customs or Observances of each community was universally lodged with a privileged order; with an Aristocracy, a Caste, or a Sacerdotal Corporation. So long as the law Avas confined to their breasts, it was true Unwritten Law ; and it became written Law when the juristical oligarchy was compelled to part TWO MEANINGS OF CODIFICATION. 36S with its exclusive information, and when the rules ol civil hfe, put into written characters and exposed to public view, became accessible to the entire society. The Twelve Tables, the Laws of Draco, and to some extent of Solon, and the earliest Hindoo Code, were therefore products of Codification in this first sense of the word. There is no doubt, too, that the English Judges and the Parliaments of the Pays Coutumiers in France long claimed, and were long considered, to be depositaries of a body of law which was not en- tirely revealed to the lay-public. But this theory, whether it had or had not a foundation in fact, gradually crumbled away, and at length we find it clearly, though not always willingly, acknowledged that the Legislature has the exclusive privilege of declaring to be law that which is not written as law in previous positive enactments, or in books and re- cords of authority. Thenceforward, the old ideas on the subject of the judicial ofifice were replaced by the assumption, on which the whole administration of justice in England is still founded, that all the law is declared, but that the Judges have alone the power of indicating with absolute certainty in what part of it particular rules are to be found. For at least two centuries before the Revolution, the French Droit Coutumier, though still conventionally opposed to the jD7-oit Ecrit^ or Roman Law, had itself become written law ; nobodj' pretended to look for it elsewhere than 364 SECOIrt) S]:NSE op CODIFICATIOIf. in Royal Ordinances, or in the Livres de Coutumes^ or in the tomes of the Feudists. So, again, it is not denied by anybody in England, and certainly not by the English Judges, that every possible proposition of Enghsh jurisprudence may be found, in some form or other, in some chapter of the Statutes at Large, or in some page of one of the eight hundred volumes of our Law Reports, English Law is therefore Written Law ; and it is also Codified Law, if the conversion of unwritten into written law is Codifi- cation. Codification is, however, plainly used in another sense, flowing fi'om the association of the word with the great experiment of Justinian. When Justinian ascended the throne, the Roman law had been written for centuries, and the undertaking of the Emperor and his advisers was to give orderly arrangement to this written law — to deliver it fi*om obscurity, uncertainty, and inconsistency — to clear it of irrelevancies and unnecessary repetitions — to re- duce its bulk, to popularize its study, and to facilitate its application. The attempt, successful or not, gives a second meaning to Codification. The word signifies the conversion of Written into well Written law ; and in this sense English jurisprudence is certainly not Codified, for, whatever be its intrinsic merits, it is loosely and lengthily written, and its Corpus Juris is a Law Library. Yet surely Codification, taken in this second acceptation, indicates one of the highest and DIFFICULTIES OF CODIFICATION. 36a worthiest objects of human endeavour. It is always difficult to know what requires to be proved in England ; but it appears tolerably obvious, that if law be written at all it is desirable that it should be clearly, tersely, and accurately written. The true question is, not whether Codification be itself a good thing, but whether there is power enough in the country to overcome the difficulties which impede its accomplishment. Can any body of men be collected which shall join accurate knowledge of the existing law to a complete command of legislative expression and an intimate familiarity with the principles of legal classification ? If not, the argument for a Codification of EngUsh law is greatly weakened. Few will deny that badly-expressed law, thoroughly understood and dexterously manipulated, is better than badly-expressed law of which the knowledge is still to seek. And, indeed, Avhen it does not seem yet conceded that we can produce a good statute, it ap- pears premature to ask for a Code. It cannot be pretended that knowledge of the Roman law would by itself enable Englishmen to cope with the difficulties of Codification, Yet it is certain that the study of Roman law, as ancillary to the systematic cultivation of legal and legislative ex- pression, would arm the lawyer with new capacities for the task ; and we may almost assert, having regard to the small success of Bentham's experiinenta 368 MEANINGS OP CODIFICATION. on English legal phraseologyj that Codification will never become practicable in England without some help from that wonderful terminology which is, as it were, the Short-hand of jurisprudence. Still larger would be the sphere of Roman law if all obstacles were overcome, and a Code of English law Averc actually prepared. It is not uncommonly urged by the antafronists of Codification, that Codified law has some inherent tendency to produce glosses, or, as they sometimes put it, that Codes always become overlaid with commentaries and interpretative cases. If the learned persons who entertain this opinion, instead of arguing from the half-understood statistics of foreign systems, would look to their own experience, they would see that their position is either trivial or para- doxical. If b}' Codified law they merely mean written law, they need not go far from home to establish their point; for the English law, which is as much written law as the Code of Louisiana, throws off in each year about fifteen hundred authoritative judgments, and about fifty volumes of unauthoritative commen- tary. On the other hand, if Codified law is used by these critics to signify law as clearly and harmoniously expressed as human skill can make it, their assertion draws with it the monstrous consequence that a well- drawn Statute produces more glosses than one Avhich is ill drawn, so that the Act for the Abolition of Fines and Recoveries ought to have produced more JUDICIAL LEGISLATIOIS". 367 cases than the Thellusson Act. The truth which lies at the bottom of these cavils is probably this — that no attainable skill applied to a Code can whoUy prevent the extension of law by judicial interpretation. Ben- tham thought otherwise, and it is well known that in several Codes the appeal to mere adjudicated cases is expressly interdicted. But the process by which the application of legal rules to actual occurrences enlarges and modifies the system to which they belong, is so subtle and so insensible, that it proceeds even against the will of the interpreters of the law ; and, indeed, the assumption made directly or indirectly in every Code, that the principles which it supplies are equal to the solution of every possible question, appears to carry necessarily with it some power of creating what Bentham would have called judge-made law. There are means, however, by which this judicial legislation may be reduced to a minimum. A Code, like a Statute, narrows the office of the judicial expositor in propor- tion to the skill shown in penning it. Some use, though very sparing ' use, is made of cases in the in- terpretation of French law; but the Code of Louisiana, which was framed by persons who had many advan- tages over the authors of the Code Napoleon, is said to have been very little modified by cases, though the [)r:ictitioners of an American State have, as might be ' Tlic exact extent to which caans are employed will be ewalj seen on opening tlie Coninicntaiy ol M. Troplong. M8 TACIT CODIFICATION. expected, no prejudice against them. Yet the surest preservative of all against over-reliance on adjudged precedents, and the best mitigation of imperfections in a Code of English Law, would be something of the peculiar tact whicli is extraordinarily developed in the Roman jurisconsults. We have already spoken ol the instruction given by the Civil law in the interpre- tation and manipulation of express written rules. It may even be affirmed that the study of Roman juris- prudence is itself an education in those particular exercises. Apart, however, from these litigated questions, attention may be called to the tacit Codification (the word being always taken in its second sense) which is constantly proceeding in our law. Every time the result of a number of cases is expressed in a formula, and that formula becomes so stamped with authority — whether the authority of individual learn- ing or of long-continued usage — that the Courts grow disinclined to allow its terms to be revised on a mere appeal to the precedents upon which it origin- ally rested, then, under such circumstances, there is, pro tanto, a Codification. Many hundred, indeed many thousand, dicta of Judges— not a few proposi- tions elicited by writers of approved treatises, such as the well-known books on Vendors and Purchasers and on Powers — arc only distinguishable in name from the texts of a Code ; and, much as the current INTERPRETATION OF WRITTEN LAW. 363 language of the legal profession may conceal it, ati acute observer may discover that the process of, as it were, stereotyping certain legal rules is at this moment proceeding with unusual rapidity, and is, indeed, one of the chief agencies which save us from being altogether overwhelmed by the enormous growth of our case-law. In the manipulation of texts thus arrived at, there is room for those instrumen- talities which the Roman law has been described as supplying — although doubtless the chance, which is never quite wanting, of the rule being modified or changed on a review of the precedents, is likely to prevent the free use of canons of interpretation which assume the fixity of the proposition to be interpreted. No such risk of modification impends, however, over the Statute-law ; and surely the state of this depart- ment of our jurisprudence, coupled with the facts of its vastness and its ever-increasing importance, make the reform of our legal education a matter of the most pressing and immediate urgency. It is now almost a commonplace among us, that English lawyers, though matchless in their familiar field of case-law, are quite unequal to grapple with express enactments ; but the profession speaks of the imperfection with levity and without shame, because the fault is supposed to lie with the Legislature. Unquestionably our legisla- tion does occasionally fall short of the highest stan- dard in respect of lucidity, tersencbs, and orderly li B 370 PARLIAMENTARY PROCEDUEE. arrangement ; but even though the admission be trua in all its tenor, it appears merely to shift the reproach a single step, for nobody doubts that our statutes are framed by lawyers, and are, in the long run, the fruit of whatever capacity for orderly disposition and what- ever power of comprehensive expression are to be found among the Bar. The Statute-book is no credit to the Legislature ; but it is, at the same time, the opprobrium, jurisperitorum. Not, indeed, that its condition is attributable to individual framers of statutes, who frequently work marvels, considering the circumstances in which they are placed. It may, with much greater justice, be explained by the special mental habits of the English Bar in general ; and it is, in fact, one of the man)' consequences of forgetting the great truth, that to secure the consistency and cohesion of a body of law, a uniform system of legal education is as necessary as a common understanding among the Judges, or a free interchange of precedents among the Courts. Before, however, we try to establish the proposi- tion just hazarded, it may be as well to notice the argument which attributes all the imperfections of the Statute-law to the procedure of Parliament. It is urged that insufficient care is bestowed on the se- lection of draftsmen, so that the results of the highest skill and labour are discredited by juxtaposition with the work of inferior hands. The grand source of COU.VCIL OF STATE. sn mischief is, however, affirmed to be the practice of introducing Amendments into Bills during their passage through the Houses ; so that the unity of language and conception which pervaded the original production is completely broken through, and the measure is interpolated with clauses penned in igno- rance of the particular technical objects which the first draftsman had in view. For remedy of this pal- pable evil, many schemes have been proposed ; and a good authority has suggested the creation of aboard of ofi&cial draftsmen, which should revise the draft of every proposed measure before it is submitted to Parliament, and to which every Bill, with its amend- ments, should, at some stage of the subsequent pro- ceedings, be referred, in order that the changes accepted by the House should be harmonized with the general texture of the enactment. The advan- tages of such an institution, for all technical purposes, are not to be questioned ; but the plan seems one little likely to be adopted, as being signally at conflict with the current sentiments of Englishmen. It interferes in appearance with the liberty of Parlia- ment, and there is no doubt that, in realitj-, it is a much more formidable institution than its projectors imagine. In order that its objects should be com- pletely realized, it would be probably necessary to arm this board with all the powers which, even under the French Constitution of 1848, were confided to the II B 2 LEGISLATIVE EXPEESSIOX. Council of State ; and the admission must in honesty be made, that the Council of State has always prac- tically fettered the activity of French legislatures, and has uniformly gained in dignity and power at the expense of constitutional freedom. Far be it from us to deny that by a carefully-elaborated mechanism all these risks might be avoided ; but an improve- ment likely at best to be opposed by such strong prepossessions, might well be postponed, if a simpler remedy can be discovered. The truth is, that both the difficulty of drafting Statutes and the confusion caused by amending them are infinitely greater than they need be, and infinitely greater than they would be if English practitioners were subjected to any system of legal education in which proper attention was paid to the dialect of legislation and law. This branch of study may be described, though the comparison cannot from the nature of the case be taken strictly, as having for its object to bring all language, for legal purposes, to the condition of algebraic symbols, and therefore to produce uniformity of method in its employment, and identity of inference in its interpretation. In ])ractice, of course, nothing more than an approxima- tion to these results could be obtained; but it is likely that a general educational machiner}-, even though comparatively inefficient, would add inaterially to the extent and importance of that portion of legis- RESULTS OF AMENDING BILLS. 37S lative j)hraseology which is common stock. As matters stand, each draftsman of statutes is absolutely separated from his colleagues. Each works on his own basis, in some cases with consummate skill and know- ledge, in occasional instances with very little either of the one or the other. Each forms his own legislative dialect, and even frames the dictionary by which the public and the Courts are to interpret it. The greatest possible varieties of style, visible even to a layman, do, in fact, show themselves in the later volumes of the Statute-book; and in the drafting of some of the most important Statutes passed quite re- cently, it is plain that two distinct models have been followed, one of them involving the use of extremely technical, the other of excessively popular language. The effect of Amendments on Bills which are drawn under such circumstances is quite disastrous; and if the confusion which they create is not immediately detected by a non-legal eye, it is only from inadequate appreciation of the value which at once attaches to the separate words and phrases of legislative enactments when subjected to judicial scrutiny. The interpola- tions are not merely like touches by an inferior artist in the painting of a master. They are not simply blemishes which offend taste, and which require a con- noisseur to discover them. They are far more like a new language, a new character, and a new vein of thought, suddenly occurring in a document or 874 ENGLISH METHODS OF INTERPKETATION". inscription, which has to be deciphered exclusively by the means of information which it furnishes itself to the interpreter. The mischiefs arising from the Amendment of Bills are much aggravated by the peculiar canons of interpretation which the insulation of draftsmen forces upon our tribunals. The English law was always distinguished from other systems, and particularly from the Roman law, by the scantiness of its apparatus of rules for ccnstruing Statute-law as a whole. In proportion, however, to the growing variety of style and arrangement in Acts of Parliament, the available - ness of the existing rules has progressively diminished, and timidity in applying them has insensibly in- creased, until at length Bench, Bar, and Commen« tators have pretty well acquiesced in the practice of looking exclusively to the particular Statute which may be under consideration for the means of inter- preting it — of refusing, as it is sometimes phrased, to travel out of the four corners of the Act. Of all the anomalies which disfigure or adorn the Law of Eng- land, This is not the one which would least astonish the foreign jurist. English lawyers, however, have lost all sense of its unnaturalness, and it really seems inevitable, so long as the different chapters of the Statute-book are connected by no relation except of subject. Unfortunately, it reacts upon the drafts- ioan, and adds very materially to his difficulties and CHARACTERISTICS OF ENGLISH LEGISLATION. OTa responsibilities. It forces him not only to set out all the bearing's of the Jeo^al innovation which he means to introduce, but to disclose the very elements of the legislative dialect in which he intends to declare them. It imposes on him a verbose prolixity which seriously increases his liability to misconstruction, and involves him in a labyrinthine complexity of detail which renders his work peculiarly susceptible of injury by {imendments and alterations. The vastness of their contents has been repeatedly pointed out as the cha- racteristic vice of English Statutes. No doubt, this is partially caused by the marked tendency of our legislation to deal not so much with principles as with applications of principles, the authors of enactments endeavouring to anticipate all the possible results of a fundamental rule, with the view of limiting or en- larging tlietn, but scarcely ever risking the attempt to modify and shape anew the fundameutnl rule itself. l>ut the gi*eat cause is certainly that which has been indicated, in the want of a common fund of technical legislative expression, and in the methods of judicial construction which are entailed upon us by this lamina in our law. Every English Act of Par- liament is, in fact, forced to carry on its back an enor- mous mass of matter which, under a better system, would be produced as it is wanted from the permanent storehouse of jurisprudence; and it is to this necessity that the frcrjuent miscarriages of our Statute- nv; 87G THE EPITHET ' PRACTICAL.' ought to be attributed, quite as mucb as to defects ix the mecbanism of legislation. There are many persons who will be sufficiently attracted to the study of Roman Law by the promise which it holds out of helping to enrich our language with a new store of Legal and Legislative Ex- pression ; of contributing to clear up the obscurity which surrounds the fundamental conceptions of all jurisprudence ; of throwing light, by the illustrative parallels which it affords, on many of the principles peculiar to English law ; and lastl}', of enabling us, by the observation of its own progress, to learn something of the course of development which every body of legal rules is destined to follow. To such minds many of the remarks offered in this Essay have been less addressed than to those who are likely to be affected by the common aspersion on these studies, that they are not of any practical value. It is to be hoped that future generations will not judge the present by its employment of the word ' practical.' This solitary term, as has been truly enough re- marked, serves a large number of persons as a substi- tute for all patient and steady thought ; and, at all events, instead of meaning that which is useful, as opposed to that which is useless, it constantly signi- fies that of M'hich the use is grossly and immediately palpable, as distinguished from that of which the usefulness can only be discerned after attention and DIFFICULTIES OF ROMAN LAW. 877 exertion, and must at first be chiefly believed, on the faith of authority. Now, certainly, if by mastering the elements of Roman Law we gain the key to International Law, public and private, and to the Civil Law of nearly all Europe, and of a large part of America — if, further, we are put in a fair way to ac- quire a dexterity in interpreting express rules which no other exercise can confer — the uses of this study must be allowed not to lie very remote from the pur- suits of even the most servile practitioner ; but still the vulgar notions concerning practical usefulness make it necessary to give the warning that the aids furnished by Roman law are not, for the most part, instantly available. It is not difiicult to perceive that the comparative credit into which Roman jurisprudence is rising is constantly tempting persons to appeal to its resources who are not properly prepared to employ them. Except where the English lawyer is gifted Avith extraordinary tact, it is exceedingly dangerous for him to open the Corpus Juris, and endeavour, by the aid of the knowledge of La'inity common in this country, to pick out a case on all-fours with his own, or a rule germane to the point before him. The Roman law is a system of rules rigorously adjusted to principles, and of cases illustrating those rules ; and unless the practitioner can guide himself by the clue of principle, he will almost infallibly imagine parallels Avhere they have no existence, and iu» S78 STUDY OP ROMAN LAW IN ENGLAND. certainly miss thorn M'hen they are there. No one, in short, should read his Digest without having mastered his Institutes. When, however, the fundamental con- ceptions ol" Roman law are thoroughly realized, the rest is mastered with surprising facility — with an ease, indeed, which makes the study, to oin: habitu- ated to the enormous difficulty of English law, little more than child's play. Whatever be the common impressions on the point, there are singular facilities in England for the cultivation of Koman law. We already prosecute with as much energy as any community in the world the studies which lead up to this one, and the studies to which this one ought to be introductory. Be- tween classical literature and English law, the place is made for the Roman jurisprudence. It would eifectually bridge over that strange intellectual gull which separates the habits of thought which are laboriously created at our Schools and Universities from the habits of thought which are necessarily produced by preparation for the Bar — a chasm which, say what we Avill, costs the legal profession some of the finest faculties of the minds which do surmount it, and the Avhole strength of the perhaps not inferior intellects which never succeed in getting across. In England, too, we should have the immense advantage of studying the pure classical Roman law, apart from the load of adventitioua HISTORY OF EOMAX LAW. 375 speculation with which it has got entangled during its contact with the successive stages of modern thought. Neither custom nor opinion would oblige us, as they oblige the jurists of many other countries, to embarrass ourselves with the solution of questions engrafted on the true Roman jurisprudence by the scholasticism of its first modern doctors, by the philosophical theories of its next expositors, and by the pedantry of its latest interpreters. Apart from these gratuitous additions, it is not a difficult study, and the way is cleared for it. Nothing would seem to remain except to demonstrate its value ; and here, no doubt, is the difficulty. The unrivalled excellence of the Roman law is often dogmatically asserted, and, for that very reason perhaps, is often superciliously dis- beheved; but, in point of fact, there are very few phe- nomena which are capable of eo much elucidation, if not explanation. The proficiency of a given commu- nity in jurisprudence depends, in the long run, on the same conditions as its progress in any other line of inquiry ; and the chief of these are the proportion of national intellect devoted to it, and the length of time during which it is so devoted. Now, a combination of all the causes, direct and indirect, which contribute to the advancing and perfecting of a science, continued to operate on the jurisprudence of Rome through the entire space between the Twelve Tables and the reform of Justinian, — and that not irregularly or at 880 PROGRESS OF ROMAN LAW. intervals, but in steadily increasing force and con« stantly augmenting number. We should reflect that the earliest intellectual exercise to which a young na- tion devotes itself is the study of its laws. The first step in mental progress is to generalize, and the con- cerns of everyday life are the first to press for com- prehension within general rules and inflexible for- mulas. The popularity of the pursuit on which all the energies of the young commonwealth are bent is, at the outset, unbounded; but it ceases in time. The monopoly of mind by law is broken down. The crowd at the morning audience of the great Roman juriscon- sult lessens. The students are counted by hundreds instead of thousands in the English Inns of Court. Art, Literature, Science, and Politics claim their share of the national intellect ; and the practice of juris- prudence is confined within the circle of a profession never, indeed, limited or insignificant, but attracted as much by the rewards as by the intrinsic recom- mendations of their science. This succession of changes exhibited itself even more strikingly at Rome than in England. To the close of the Repub- lic, the law was the sole field for all ability except the special talent of a capacity for generalship. But a new stage of intellectual progress began with the Augustan age, as it did with our own Elizabethan era. We all know what Avere its achievements in poetry and prose ; but there are some indications, it PROGRESS OF ROMAN LAW. 58] should be remarked, that, besides its efflorescence iu ornamental literature, it \s'as on the eve of tlirowing out new aptitudes for conquest in physical science. Here, however, is the point at which the history of mind in the Roman State ceases to be parallel to the routes which mental progress has since then pursued. The brief span of Roman literature, strictly so called, was suddenly closed under a variety of influences, which, though they may partially be traced, it would be improper in this place to analyse. Ancient intel- lect was forcibly thrust back into its old courses, and law again became no less exclusively the proper sphere for talent than it had been in the days when the Romans despised philosophy and poetry as the toys of a childish race. Of what nature were the external inducements which, during the Imperial period, tended to draw a man of inherent capacity to tlie pursuits of the jurisconsult, may best be understood by consider- ing the option which was practically before him in his choice of a profession. He might become a teacher of rhetoric, a commander of frontier-posts, or a pro- fessional writer of panegyrics. The only other walk of active life which was open to him was the practice of the law. Through that lay the approach to wealth, to fame, to office, to the council-chamber of the monarch — it may be to ihe very throne itself. The stoppage of literary production at Rome is sometimes spoken of as if it argued a decay of Roman 832 HOMAN INTELLECT AND SOMAN LAW. intellect, and therfore a decline in the mental energies of the civilized world. But there seems to be no ground for such an assumption. Many reasons may be assigned for the phenomenon in question; but none of them can be said to imply any degeneration of those faculties which, but for intervening impedi- ments, might have been absorbed by art, science, or literature. All modern knowledge and all modern invention are founded on some disjointed fragments of Greek philosophy, but the Romans of the Empire had the whole edifice of that philosophy at their disposal. The triumphs of modern intellect have been accomplished in spite of the barriers of separate nationalities; but the Roman Empire soon became homogeneous, and Rome, the centre towards which the flower of the provincial youth drew together, became the depository of all the available talent in the world. On these considerations, it would seem that progress of some kind or other, at least equal to our own, might have been expected a priori ; and indeed, whatever we may think of results, it seems both pre- sumptuous and contrary to analogy, to affirm that capacities were smaller in the reign of the Antonines than in the reign of James the First, And if this be so, we know the labour on which these caj)acities ex- hausted themselves. The English law lias alwaj's enjoyed even more than its fair share of the disposable abilit}' of the country; but what would it have been if', besides Coke, Somers, Hardwicke, and Mansfield, EOMAN INTELLECT AND ROMAN LAW. 333 it had counted Locke, Newton, and the whole strength of Bacon — nay, even Milton and Drydeu — among its chief luminaries? It would be idle, of course, to tiffect to find the exact counterparts of these great names among the masters of Roman jurisprudence; but those who have penetrated deepest into the spirit of the Ulpians, Papinians, and Pauluses are read}' to assert that in the productions of the Roman lawyers they discover all the grand qualities which we identify with one or another in the list of distin- guished Englishmen. They see the same force and elegance of expression, the same rectitude of moral view, the same immunity from prejudice, the same sound and masculine sense, the same sensibility to analogies, the same keen observation, the same nice analysis of generals, the same vast sweep of compre- hension over particulars. If this be delusion, it can only be exposed by going step by step over the ground which these writers have traversed. All the antece- dent probabilities are in favour of their assertion, however audacious it may appear. Unless we are pre- pared to believe that for five or six centuries the world's collective intellect was smitten with a para- lysis which never visited it before or since, we are driven to admit that the Roman jurisprudence ma; be all which its least cautious encomiasts have vec tured to pronounce it, and that the language of con- ventional panegyric may even fall short of the unvarnished truth. APPENDICES 887 APPENDIX I.» MINUTE RECORDED ON OCTOBEK 1, 1S68. TiiE 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 M'ith the Supreme Government of India. The only exceptions to complete inaction in this respect which are worth mentioning, occur in the c;ise 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 Legislatui-es introduced into India certain modern English Statutes, limiting their operation to ' cases governed by English law.' The most recent English amendments of the Statutes were, however, not followed in this country until they were embodied in Indian Acts by my predecessor, Mr. Kitchie, and myself, in accordance 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 inference which the Paper appears to me to suggest is, that the great bulk of the legislation of the Supreme Council is » Vide p. 70. c c2 888 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- vince.s, 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 Governments. 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 (f progress is very unequal and irregular. It is growing more and more diflScult to bring the population of two or more Pro- APPENDIX I. S89 vinces under any one law which goes closely home to thcii daily life and habits. Not only, then, are we the Local Legislatiire 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 forcinor 113 to act as if we were a Local Legislature, of which the powers do not extend beyond the Province for which we are legis- lating. The real proof, therefore, of our over-legislation would consist, not in showing that we pass between thirty and for+y 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. 1 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. XXV.); and by five Acts (IV., VII., VIIL, 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.) confiriniug 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 Eni^land and Wales, of which one was the Representation of the People Act. The number of Local and Personal Acts passed in the same year was 188. All this legislation, soo APPE^^)IX I. 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 millions, that of the Xorth-^Vestern Pi'ovinces 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 Tesjoect of opinions, ideas, habits, and wants, there has not been more change during thirty years in the Noilh-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 Rights, 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, pruprio 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 Kights; we only create Official Duties. No doubt Act X. of 1865 and Act XV. of 1866 do consider- ably modify Private Kights, but the first is a chapter and the last a section of the Civil Code framed in England by the Law Commissioners. The Pii[)er does not of course express the urgency with which tlie 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 for the discharge of their duties to the people, is some- times very remarkable. I am very far indeed from be- APPENDIX I. 391 lieving 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 never- theless be said that we ought to oppose a firmer resist- ance 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 promj)t 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. Tiie standard of good government before the minds of officials is constantly sliifting, perhaps it is rising. These phenomena arc 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-Ilcgulation Provinces. It is well known that, in any strict sense of the word, the Executive Government legislated for those Provinces up t<» 1861. The orders, ins,tructi()ns, ciiciihirs, and rules for the guidance of officers whieh it constantly issued were, 892 Arpnxpix T. 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. Ko Legislative power now exists in India which is not derived from this Statute ; but to jirevent 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 foimcr 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 smcMsm. The necessity i'or authoritatively declaring rules of this kind, for putting them into precise language, for amending them when their policy is doubted, or when they are tried bv the severer judicial tests now applied to them, they give diHereut results from those intended by their authors, is among the m(>st imperative causes of legislation. Such legislation will, however, diiuinish as the process of simplifv- ing and declaring these rules goes on, and must ultimately come to a close. I now come to springs of legislation which appear to inci-ease in activity rather than otherwise. First among these I do not hesitate to place the growing infiuonce ol courts of justice and of legal practitioners. Our Court? APPENDIX I. 393 are becoming more careful of precise rule both at the top and at the bottom. The more careful legal education ol the young civilians and of the younger Native judges difl'uses 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 jienctrate much further into the Mofussil than of old. The great addition, hoAvever, 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 1 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 tlie dicta embodied by them, almost any conclusion can be drawn. More than that, there are, as the Indian Law Conimissiimors have pointed out, vast gaps and interspaces ill the Substantive Law of India; there are siibjocls on which no rules exist; and the rules actually aj)]'lic'd l)y the Courts arc taken, a good deal at haphazard, from p(>pular text-books of English law. Such a conditicm of thiiig« \a a mine of legal difficulty. The Courts are getting ever more rigid in their demand of legal warrant for the actions of all S04 APPENDIX I. men, officials incluJed. 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 dispensation 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 render it necessary for the Local Governments, as being responsible for the efficiency of their administration, to press for legisla- tion. 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 otlier 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 jus- tification 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. The consequences of leaving 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 wliich we are about to deal in the Punjab. But the great majority of administrative officials, APPENDIX I. 306 ■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 paralysis 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 pcemed to me nearly the simplest and clearest evstem 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 prinutivc simplicity. 396 APPENDIX I, It must, on the other hand, be admitted that, in creating nesr 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, legislatioa 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 machinery OH applied to those less advanced parts of the country where a large discretion must inevitably be vested in the adminis- trator. 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 APPEXDIX I. actual circumstances of India, an inevitable evil— t do not admit the proposition which is sometimes advanced, that the Natives of India dislike the abridgment of offici.il dis- cretion. This assertion seems to me not only unsupported by any evidence, but to be contrary to aU the probabilities. It may be allowed that in some cases discretionary govern- ment is absolutely necessary ; but why should a people, which measures religious zeal and personal rank and respect- ability 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 pre- ference. 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 discre- tionary government has always seemed to me genuinely hearty and sincere. soe APPENDIX ll.i 0> Id. V. Maurer, Einleltung zur Geschichte der Mark-, Hof-, Dorf-, und Stadt-Verfassung und der ofFentlichen Gewalt. Miinchen. G. L. V. Maurer, Geschichte der Dorfverfassung in Deutschland. Erlangen. G. L. V. Maurer, Geschichte der Frohnhdfe, der Bauernhofe 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. J'J. Nasse, Ueber die mittelalterliche Feldgemeinschaft und die Einhegungen des sechszehnten Jahrhunderts in England. Bonn. G. Landau, Die Territorien in Bezug auf ihre Bildung und ihre Entwickelung. Hamburg. G. Landau. Das Salgut. Kassel. Ch. Lette, Die Vertheilung des Grundeigenthums in Zusammenhang mit der Geschichte der Gesetzgebung und den Volkszustauden. Berlin. N. Kindlinger, Geschichte der deutschen Horigkeit, insbesondere der sogenannten Leibeigenschaft. Berlin. W. Gessner, Geschichtliche Entwickelung der gntsherrlichen und bauerlichen Verhaltnisse Dcutschlands, oder practische Ge- schichte der deutschen Horigkeit. Berlin. Von Haxthausen, Ueber die Agrarverfassung in Norddeutschland. Berlin. ' Recent German Works bearing on the subject of the Lecturei on Village-Communities. QQQ NOTE A. » • Thb Religion of an Indian Province ' {Fortnightly Ee- v'mo, Feb. 1, 1872); 'Our Religious Policy in India' {Fortnightly Review, April 1, 1872); ' The Religious Situ- ation in India' {Fortnightly Review, Aug. 1, 1872); 'Witchcraft and Non-Christian Religions' {Fortnightly Review, April 1, 1873); 'Islam in India' {Theological Review, April 1872): ' Missionary Religions ' {Fortnightly Review, July 1, 1874). I take the following passages from the ' Berar Gazetteer,' edited by Mr. Lyall : — The cultus of the elder or classic Hindu Pantheon is only a portion of the popular religion of this country. Here in India, more than in any other part of the world, do men worship most what they understand least. Not only do they adore all strange phenomena and incom- p 1 hensible forces — being driven by incessant awe of the invisible powers to propitiate every unusual shape or strik- ing natural object — but their pantheistic piety leads them to invest with a myslerious potentiality the animals which are most useful to man, and even the implements of a pro- fitable trade. The husbandman adores his cow and his plough, the merchant pays devotion to his account-book, the writer to his inkstand. The people have set up tutelary deities without number, who watch over the interests of s '. arate classes and callings, and who are served by queer rites peculiar to their shrines. Then there is an infinite army of demigods, martyrs, and saints, of whicii the last- named division is being continually recruited by the death, in full odour of sanctity, of hermits, ascetics, and even mcQ ' Mr. Lyall's publicatious. 400 NOTE A. Tvto have been noted for private virtues in a worldly career. And perhai)s the most curious section of these canonized saints contains those who have caught the reverent fancy of the people by peculiar qualities, by personal deformity, by mere outlandish strangeness ; or who have created a deep impression by some great misfortune of their life or by the circumstances of their death. All such striking peculiari- ties and accidents seem to be regarded as manifestations of the ever-active divine energy, and are honoured accordingly. Thus it is not easy to describe in a few pages the creeds and forms of worship which prevail even in one small province of India, althougli in this imperfect sketch nothing is men- tioned but what is actually practised within Berar. This is one of those provinces in which the population is tinged throughout by the strong sediment of aboriginal races that have been absorbed into the lowest castes at bottom Therefore it may be expected that many obscure primeval deities owned by the aboriginal liturgies, and many uncouth rustic divinities set up by the shepherds or herdsmen amid the melancholy woods, will have found entiy into the Berar pantheon. Nevertheless, we have here, on the whole, a fair average sample of Hinduism, as it exists at this time throughout the greater part of India ; for we know that the religion varies in different parts of this vast country with endless diversity of detail. Vishnu and Shiva, with their more famous incarnations, are of course recognised and uni- versally honoured by all in Berdr. The great holidays and feasts of the religious calendar kept by Western India are duly observed ; and the forms and ceremonies prescribed by Brahnianical ordinance are generally the same as through- out Maharashtra. The followers of Shiva are much the most numerous, especially among the Bralunans Berdr is liberally provided with canonized saints, who are in a dim way supposed to act as intercessors between mortals and the unseen powers, or at any rate to possess lome n)ysterious influence for good and evil, which can ba NOTE A. 401 propitiated by sacrifice and offering. Pilgrimages are made to the tombs of these saints, for it must be noted that a man is always buried (not burnt) who has devoted himself en- tirely to religious practices, or whom the gods have marked for their own by some curious and wonderful visitation. When an ascetic, or a man widely renowned for virtue, has acquired the name of a sddhu, or saint, he is often consulted much during his lifetime, and a few lucky prescriptions or prophecies gain him a reputation for miracle-working. To such an one do all the j)eople round give head, from the least to the greatest, saying, as of Simon Magus, ' This man is the great power of God ; ' he is a visible manifesta- tion of the divine energy which his virtue and self-denial have absorbed. The large fairs at Wadnera (Elichpur district), Akot, Ndgar Tas, and other places, took their origin from the annual concourse at the shrines of these sdd/uts. At Akot the saint is still living ; at Wadnera he died nearly a century ago, and his descendants live on the pious offerings; at Jalgaon a crazy vagrant was canonized two or three years back on grounds which strict people consider insuflScient. There is no doubt that the Hindu religion requires a pope, or acknowledged orthodox head, to control its wonderful elasticity and receptivity, to keep up the standard of deities and saints, to keep down their number, and generally to prevent superstition from running wild into a tangled jungle of polytheism. At present public opinion consecrates whom it likes, and the Brahmans are perfectly tolerant of all intruders, though service at these shi-inea may be done by any caste The leading saints of Berdr disdain any romantic origin. They have wrested from the reluctant gods, by sheer piety and relentless austerity, a portion of the divine thaumaturgic power, and it exhales after their death from tlie pliices where their bodies were laid. Donations and thank-offerings pour in ; endowments of land and cash used to be made before Enjrlish rule drew a broad line between reliio»ik 16 108 IXDEX. JUS Jus Gentium, influence and impor- tance of the, 193, 194 I r AIXG, Mr., on discoveries in philological science, 253 Lammas lands, 85. Inclosures re- moved on Lammiis Day, 86 Land, Record of Rights in, 72. Oldest forms of property in, 76. Scarcity of laws as to the tenure of, 61. Teutonic origin of £ng- iirh 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 ol the pasturage on baulks of turf, 89. Existing baulks, 89. Vestiges of the Mark, 88, Marshall's account of the ancient state of P^ngland quoted, 90-94. TheUdal tenures of Orkney and Shetland, 94, 95. The ' Burgess Acres ' in the burgh of Lauder, 95. Mahometan 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, lOo, 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, 12] The prot-e.-^s of feudalisation, 131. Bciietice?, lo2. The Manorial group, 133, 134. 1 LAW Causes of the growth of snze* rainties, 144, Causes in Germau and Scandinavian cultivating com- munities leading to inequality of property in laud, 14G. i.and 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. Exchangeableness of, in India, 228 Languages, substitution of classical for vernacular language in India, 242 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, C9. Sources of, in primitive commu- nities, 110. Training of lawyers, 256. Popularity of legal studies, 257, Native aptitude tor, 258. Definition of, 259. Law of Nature 343. Legal phraseology, 344. Language of professional lawyers, 345. English technicalities, 347, Legal and legislati\e expression, 34-;. In)provem of the, 10. Ve I pes of it in K:i::lnT.d. 11 Mark, the Arable, rights and duties of the ancient Teutons refpecting, 79, 80. Tho Alark occasionally sliifled, 81. I'Lvistcnce of tlie .•\rable Mark in England, 86 Mark, the Cdmiuon, in ancient Teu- tonic Society, rigiits and duties of the, 79 Markets, origin of, 192. Association between maikets and neutrality. 193. Three ideas iis to, 19;^ I'.Ntrcme rule of .Market Law, lOJ no INDEX. Rule of Market Overt, 195, Ten- dency of decisions of English courts towards the law of the 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 Mathematics, pure and mixed, 267 Maurer, Von, on the law of the Mark or Township, 10. On the feudal tendency of the primitive Teutonic system, 21. His inquiiy into the forms of Teutonic village property, summary of his conclusions, 77, et seq. Medicine, progress of, 260 Missionaries in India, 246 Moral philosophy, schools of, .337, Relation of, to jurisprudence, 342 Morier, Mr., his paper in ' System of Land Tenure in various Coun- tries,' 78. His account of the yestiges of collective property in Germany, 78. On the aspects of the Teutonic freeniim as a lord and as a commoner, 82 VTASSE, Professor, on the land-law ■^^ of Germany and England, 11, 17. Account of his work, 1G8, 169 Nature, law of, 343 Neutrality, ancient associntion be- tween markets and, 19,3 Nuncoiuar, fairness of the trial of, 38 'ACCUPANCY' tenants in In- ^ dia, creation of, 184. Period of time required for determining who are, 184 PEI Orkney Isles, system of the township in the, 10. Sir "W. Scott on the Udal tenure, 94 i Oudh, settlement of estates in, 105. I Military character g.Ven to tli« naturally peaceful population of, j 124 Ownership, absolute, of the English in India, 1.57-59. Indian discus- sions on, 222. Ancient joint- ownership, 220 i PARLIAMENTARY procedure, imperfections of the Statute law attributed to, 370 Pascal's Provincial Letters, 340 Paterfamilias, the, in ancient Teti- tonic society, 78. His authority, 78, His relations to the other I heads of families, 79. His autho- ! rity in the Indian village commu- i nity, 107 j Peasant proprietary in India, esta- I blishment and success of the, 105 Personal Property, Law of, tenden- cies of, 194 Philosophy, relation of history to, 265 Police of Indian villages, recognised and paid by the British Govern- ment, 125 Political Economy, the contract i>f hiring and letting in, 190. The proposition which forms the basis of, 191. The Market, 192. Csip- able of scientific analysis and measurement, 232 ' Practical.' meaning of the word, 376 Price, early history and measure of, 189 Prize of "War, theoretical right of the sovereif^^ to, 142 INDEX. 411 PEO Production, primitive tilling com- munities ineffective for, 166 Property, collective, native control over testation of, 41. Its impor- tance, 220. Theory of, 221. In- dian forms of, 222. Early histoiy of, 225 et seq. Several property and civilisation, 229 Pundits, consulted in the courts, 60. Charges agaiiist them, 60 "DACE, modem theories of, 14 Rack-rents in ancient Ireland, 187, Generally, 187, 188. Reason why rack-rents do not exist in some places, 199 Raynal's ' Histoire Philosophique des Indes,' 213 Rent, creation and difHculties 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, 18G. Rack-rents generally, 187, 188. Modern origin of the highest obtainable rent, 198. The market for lanil 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. Revival of interest in, 330. Con- trasted with English, 331-3.35. Reasons for interest in, 332. Im- portance of, 3.3.3. Nature of, 334. In moral and political philosophy, 841. Relation of, to iuternntiomil law, .362. Technicalities of, mixed up with questions of diplo- macy, 364. Dill'usion of, 356. SUP The lingua franca of universal jurisprudence, 361. Associated with codiBcation, 862. Diffi- culties of the elements of, 377. Study of, in England, 378. His- tory of, 379. Process of, 380. Re- lation of, to Roman intellect, 382 SANSCRIT, influence of the study ^ of, 208. Political results of its study, 209 Science, relation of History to, 266. Effects of scientific method, 209 Scott, Sir Walter, his remarks on the Udal tenures of Orkney and Shetland, 94, 95 Seignory in gro^s, 184 Settlement, Indian, 32. Settlvment 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 tovraship in the, 10. Sir W. Scott on the Udal tenure of, 94 Sikhs, exactions of the, 179 Slavery, generally, predial, and under peasants, 106 Stephen, Fitzjnmes, his Law of Evidence Act, 305 Students of India, aspirations of, 252 Sudder courts, powerful influence of the Supreme courts over the, 39. History of, 43. Appeals to them, 43. Judges of tlio, 44. Their in- fluence, 45. Kdect of judicial commentaries on the, 47 Supreme courts of India and their powers, 30. Condemnation which iJ2 INDEX. srB they have everywhere received except in India, 37, 38. Their powerful influence on the Siidder courts, 39 Surnames, possible causes of the fre- quency of trades as, in England, 12G Suzerainties, causes of the growth of, H4 Switzerland, Mr. Freeman's identifi- cation of fragments of Teutonic Society in, 9 T.-VLUKUARS, settlement of the, in Oudh, and its results, 160, 151 Teutonicsociety, fragmentsof archaic, in Switzerland, 9. Enquiries of Von Maurer, 9, 77, The Teutonic Mark, 10. The ' vicus ' described by Tacitus, 10. Eesemblances 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, lH rediiary,of Indinn villages 12o. Possible causes of the plen- tifulness and persistence of trades as surnames in England, 126 Tradition, subject ol', fiS. Effect of, in India, 58, DiHerent forms of, 68,69. Value attached just now to traditional law in India, 69 Truth, physical, value and pei'- mauence of, 271, 272. Infinity of, 273 vn. I [DAL tenures of Orkney and Shet- ^ land, 94, 95 Usury laws, effect of the repeal o} the, 195 Universities, similarity between the English and Indian, 241. Me- diaeval, objects of the etudents of, 280 ylCUS, the, described by Tacitus, V 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 couiuiunity or- ganised and self-acting, 125. The out.siders, 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 ollice of Headman in varioui INDEX. VTL places, 165. Absolute ownership I of the English, 157-59. Imperfect | feudalisationoflLdia, 15&-60. The I communities left to their own way by great kings and mercenary armies, IGO. The cultivating com- munity as compared with the ab- solute property of our own day, 164, Primitive tilling communities inefiFective 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 villagers, 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, 184. Creation of ' occupancy ' tenants, 184. Comparison of In- dian and English forms of pro- perty, 186. Eviction rarely prac- tised in India, 186 419. ZEM 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 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 EMINDARS, their settlement and its results, 150. Their bad reputation in Lower Bengal oji landlords, 103